Many are debating whether a new U.S. Department of Justice memo indicates less rigorous enforcement of the government’s informal policy views, including regarding fraudulent billing.
Associate Attorney General Rachel Brand’s memo, sent last week, discussed the government’s views on laws, including those related to Medicare and Medicaid billing. Brand said the DOJ “may not use its enforcement authority to effectively convert agency guidance documents into binding rules.” The memo did not preclude the use of guidance in DOJ cases and said that guidance violations could still be probative of intent or knowledge. Brand’s memo should apply to civil enforcement, including False Claims Act litigation.
The memo may have significant implications, including in settlement negotiations and trials. But in a recent email exchange between attorney Pat Hooper and DOJ attorney David Finkelstein, Hooper suggested that an FCA complaint against a client should be amended to remove references to OIG guidance, and that such guidance should not be used in any criminal case. Finkelstein said DOJ did not plan to remove the guidance references and that the DOJ’s criminal division did not report to Brand. Some suggest that it’s an impractical distinction. The implications and impact of the memo remain to be seen.