DOJ’s Shifting View of Guidance Documents: Implications for Health Care Fraud Enforcement
This Feature Article is brought to you by AHLA's Fraud and Abuse Practice Group.
- September 01, 2025
- Anthony J. Burba , Barnes & Thornburg LLP
- Megha Mathur , Barnes & Thornburg LLP
On February 5, 2025, Attorney General Pamela Bondi issued a memorandum titled “Reinstating the Prohibition on Improper Guidance Documents” (Bondi Memo). In one short page, the Attorney General rescinded Merrick Garland’s July 1, 2021 memorandum on agency guidance, revived the substance of the 2017 Sessions Memo and the 2018 Brand Memo, and ordered the Associate Attorney General to deliver within 30 days “strategies and measures that can be utilized to eliminate the illegal or improper use of guidance documents.” Together with the Supreme Court’s 2024 decision in Loper Bright Enterprises v. Raimondo (overruling Chevron and limiting judicial deference to agency interpretations), the Bondi Memo may significantly affect how the Department of Justice (DOJ) investigates and litigates False Claims Act (FCA) matters, particularly cases that turn on sub-regulatory materials such as provider manuals, Frequently Asked Questions (FAQs), Centers for Medicare & Medicaid Services (CMS) transmittals, or advisory opinions.
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