The U.S. Department of Justice (DOJ) issued two internal memoranda in January that relate to the agency’s role in actions brought under the False Claims Act (FCA) 31 U.S.C. Section 3729. Generally speaking, the FCA allows a private individual—or a “whistleblower”—who possesses knowledge of a past or present fraud committed against the federal government to bring a suit on the government’s behalf. These January 2018 memoranda are likely to have a large impact on the health care industry due to the numerous qui tam matters and heavy reliance on manuals and other sub-regulatory guidance in the industry.

The first memorandum, issued Jan. 10, emphasizes the DOJ’s “gatekeeping role” in protecting the FCA and encourages DOJ attorneys to consider not only their power to dismiss meritless actions brought under the FCA, but also their responsibility to do so. While the FCA authorizes the attorney general to dismiss a qui tam action (a lawsuit brought by a private citizen against a person or company who is believed to have violated the law in the performance of a contract with the government or in violation of a government regulation, when there is a statute that provides for a penalty for such violations) under 31 U.S.C. Sections 3730(c)(2)(A), the DOJ has historically been hesitant to exercise its dismissal authority. The Jan. 10 memorandum emphasizes that the DOJ must utilize its dismissal authority to advance government interests, preserve limited resources, and avoid adverse precedent.

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