Department of Justice: Manual Revised to Strengthen False Claims Act Enforcement
By P. Czuprynski
On 9/18/26, the Department of Justice (DOJ) issued a press release notifying the public that it has revised the justice manual to strengthen False Claims Act enforcement.
A False Claims Act (FCA) violation occurs when an individual or entity knowingly submits false claims, makes false statements, or conceals obligations to defraud the U.S. government. This can result in civil penalties and treble damages for the individual or entity.
Qui tam is a phrase used in FCA claims to demonstrate that a private person has sued on behalf of the federal government. Among other options, the federal government has the authority to dismiss the qui tam action if the case does not serve the interests of the United States.
In Medicare Secondary Payer (MSP) litigation, we have seen FCA allegations as a part of a suit for reimbursement of conditional payments. In general, the allegation is that the fraudulent actions by the carrier/self-insured resulted in Medicare paying for treatment.
The revisions to the manual demonstrate a focus on dismissing qui tam actions that are based on sub regulatory guidance. The manual identifies that Medicare’s guidance or policies could create additional obligations that are not enforceable under laws or regulations. If these additional obligations are the basis of the qui tam action, dismissal may be warranted.
The manual is directed at the Attorney Generals responsible for litigating False Claims Act violations. However, it should be noted that in Loper v. Bright, the Supreme Court overturned chevron deference and the updated manual may be incorporating that decision.
The decision in Loper v. Bright is special for the MSP industry because the guidance and policies issued by Medicare may no longer be given deference in court. This could impact a conditional payment reimbursement, treatment denials, or unreasonable Medicare Set-Aside claims by Medicare.
For example, imagine Medicare determined the amount of a non-submit Medicare Set-Aside (MSA) was deficient or additional treatments should be covered under the MSA. If this issue makes its way to federal court, an Attorney General may be faced with a circumstance where Medicare’s guidance or policy with respect to the amount of the MSA (or treatments covered) could create an additional obligation outside of the MSP Act and regulations. Under Loper v. Bright, it is possible the court would not give any deference to Medicare’s assessment or interpretation of the Medicare Secondary Payer Act. Without deference, Medicare’s impact on a court’s decision is diminished.
Although aimed at FCA litigation, the instructions in the DOJ manual identify core principles that Medicare should also be following when enforcing its rights under the Medicare Secondary Payer Act. If Medicare is not following these principles, the MSP industry and its stakeholders can lose stability, fairness, and effective enforcement – goals identified by the DOJ press release. Moreover, a beneficiary’s access to care could be impeded.
We are happy to discuss the revision to the justice manual and address other Medicare Secondary Payer questions. Should you wish to discuss these topics further, please contact us at [email protected].