Bass, Berry & Sims attorney Taylor Chenery provided insight in a Bloomberg article on the effect that a Department of Justice (DOJ) Memorandum is having on healthcare fraud enforcement actions and corresponding defense strategies. The Brand Memo, named after then-Associate Attorney General Rachel Brand, was issued by the DOJ in January 2018 and limits the use of guidance documents in civil enforcement actions and prevents DOJ attorneys from using “informal agency guidance as binding law.”

As Taylor points out, the Brand Memo gives defendants an additional tool to use in defending against government enforcement actions. However, “one reason it may be difficult to assess the full effect of the memo is that much of that effect is likely occurring in the investigative phase of government enforcement actions, the details of which aren’t publicly available. I’m suspecting a good number of targets of enforcement actions can and are arguing the government can’t use subregulatory guidance documents to prove the regulatory violations at issue.”

The full article, “DOJ Memo Barring Reliance on Agency Guidance: Where Are We Now?” was published by Bloomberg Law Health Law & Business News on July 25, 2018, and is available online (subscription required). The article was also published by Bloomberg’s Big Law Business section on July 26, 2018.