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The DOJ just gave prosecution a big advantage in FCA cases

President Joe Biden’s Administration just gave its government attorneys a hammer to use when building False Claims Act (FCA) cases against medical providers throughout the country. The hammer comes in the form of a memo from Attorney General Merrick Garland.

Attorney General calls for increased reliance on memos to build cases

The memo basically clarifies how government attorneys can utilize guidance documents provided by the Department of Justice (DOJ). The previous administration cut back on the use of these guidance documents, restricting the reliance on DOJ documents to build cases like the pursuance of criminal charges under the FCA.

The current administration has curbed these efforts.

As noted above, this move goes counter to previous memos from the agency. Previous memos stated the DOJ could not use its own guidance documents, like these memos, to support litigation efforts. The memos served as a tool to help establish intent, but not to create additional legal obligations. The Attorney General has just rescinded these former memos, stating that where relevant, government attorneys are “free to site and rely on” these memos when building their cases. He has also called on the DOJ to update the Justice Manual to reflect these changes.

Those facing FCA charges may need a new legal strategy

The government’s strategy when building its case will likely increase its reliance on agency guidance. This can include citations of DOJ memos, policy statements and opinion letters.

Although this guidance does not create new law, it does present a hurdle when building a defense to allegations. Potentially of even more concern is the fact that this memo could signal a wave of change. As such, it is important to remain current in changes as they are announced as these changes can directly impact any FCA or other health care fraud claim.

Attorney John Rivas is responsible for this communication