Despite much recent attention to the new administration's plans to deploy the False Claim Act (FCA) to advance other policy objectives, a July 2, 2025 Department of Justice (DOJ) press release announcing a DOJ-HHS False Claims Act Working Group reaffirmed its commitment to use the FCA as an enforcement tool against healthcare fraud and abuse.
The DOJ press release fills a gap left by the Civil Division Enforcement Priorities Memorandum, issued on June 11 by Civil Division Assistant Attorney General Brett Shumate, which listed five other priorities – (1) Combatting Discriminatory Practices and Policies; (2) Ending Antisemitism; (3) Protecting Women and Children; (4) Ending Sanctuary Jurisdictions; and (5) Prioritizing Denaturalization – without similar emphasis on healthcare fraud and abuse or other traditional FCA enforcement priorities. As the new DOJ press release acknowledges, the DOJ and the Department of Health and Human Services (HHS) “have a long history of partnering to use one of the government's most effective and successful tools” – the FCA – "to combat healthcare fraud.” Accordingly, this DOJ press release confirms that the DOJ and HHS will continue their well-established pattern of partnership in this space and that the DOJ does not intend to lessen its focus on this area notwithstanding its intentions to also use to FCA elsewhere.
The DOJ press release does identify several “priority enforcement areas”:
- Medicare Advantage
- Drug, device, or biologics pricing, including arrangements for discounts, rebates, service fees, and formulary placement and price reporting
- Barriers to patient access to care, including violations of network adequacy requirements
- Kickbacks related to drugs, medical devices, durable medical equipment, and other products paid for by federal healthcare programs
- Materially defective medical devices that impact patient safety
- Manipulation of Electronic Health Records systems to drive inappropriate utilization of Medicare covered products and services
Among other things, the DOJ press release expressly notes the possibility of HHS-driven payment suspension pursuant to 42 C.F.R. § 405.370 et seq., while endeavoring to leverage HHS capabilities “through enhanced data mining and assessment of HHS and HHS-OIG report findings.” The potential enhanced deployment of payment suspension in particular poses a significant risk to healthcare providers that directly bill the government. And, consistent with prior initiatives, the press release “encourages whistleblowers to identify and report violations of the [FCA] involving priority enforcement areas.”
Looking forward
Much attention has understandably been given to the administration's repeated pronouncements that it intends to deploy the FCA to pursue novel theories such as alleged violations of federal antidiscrimination law. The priorities set forth in the DOJ-HHS False Claims Act Working Group press release make clear, however, that the pursuit of such novel theories will not come at the expense of the DOJ's longstanding use of the FCA to combat alleged healthcare fraud and abuse. The DOJ and qui tam relators continue to utilize the FCA aggressively in the healthcare arena, and the working group's pronouncements make clear that likely will not change. Accordingly, entities in the healthcare space should remain diligent in implementing and enforcing robust compliance programs and have a clear plan in place if they become the focus of a DOJ FCA investigation.
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