Last week, the Department of Justice rolled out a new memorandum from Associate Attorney General Rachel Brand that may have significant impact on False Claims Act cases. The memo prohibits DOJ attorneys from relying on so called “agency guidance” in pursuing affirmative civil enforcement cases. The memo follows up on the November 16, 2017 memo from Attorney General Sessions prohibiting the promulgation by the department of guidance documents that create binding obligations or rights on regulated parties.
This new DOJ policy is not limited to False Claims Act whistleblower cases. However, given the importance of whistleblowers and the False Claims Act generally in combatting fraud against Medicare, Medicaid, the military, and other government programs, this policy could have a meaningful impact on what cases the DOJ chooses to pursue and how it chooses to litigate them. For example, guidance issued by the Department of Health and Human Services on what constitutes a kickback cannot be used to “presumptively or conclusively” establish a violation of the Anti-Kickback Statute. The impact that these policy memorandums will have on future enforcement actions pursuant to the False Claims Act remains to be seen, but it certainly signals trouble for any claims not based upon rules and regulations that were subject to a formal rulemaking process.
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