DOJ Civil Division Accelerates Review of FCA Whistleblower Complaints Involving Federally Funded, State-Administered Benefits Programs

The Highlights

• Accelerated FCA Investigative Timeline: The U.S. Department of Justice (DOJ) is taking new steps to implement the directives of Executive Order 14395 of March 16, 2026, “Establishing the Task Force To Eliminate Fraud,” by expediting the review for newly filed False Claims Act (FCA) qui tam actions involving federally funded state-administered benefits programs. The May 27, 2026, memorandum from Assistant Attorney General Brett A. Shumate (“Shumate Memo”) states that all newly filed state-administered benefits program fraud qui tam actions will now be reviewed by DOJ in 60 to 120 days after filing to determine if the government will continue its investigation, permit the whistleblower to proceed, or act to dismiss the case.
• DOJ Reaffirmation of Relator Authority: The Shumate Memo reaffirms DOJ’s position that whistleblowers may “stand in the shoes” of the government and indicates that the agency will let relators lead litigation subject to DOJ’s “oversight and ultimate control.”
• Automatic Criminal and Administrative Referrals: New benefits program fraud qui tam matters will be automatically referred to the Criminal Division and/or the National Fraud Enforcement Division for evaluation of potential criminal violations and to the affected agency for potential administrative action, including payment suspension.

The Details

On May 27, 2026, DOJ’s Civil Division announced (“Announcement”) new efforts included in the Shumate Memo to accelerate the review of FCA whistleblower complaints alleging fraud against federally funded, state-administered benefits programs by committing to performing its review of such matters within 60 to 120 days. This window of review may be extended for one 120-day period with the permission of Deputy Assistant Attorney General Brenna Jenny, and any further request for extension may be granted only by Assistant Attorney General Shumate. Both DOJ and those responding to its investigative requests will be under pressure to move quickly in order to meet these accelerated deadlines.

DOJ does not identify the “state-administered benefits programs” subject to the Announcement. It is likely that relators with claims under state-managed programs, such as Medicaid and SNAP, will see advantages from this policy. The new emphasis on federally funded, state-administered benefits programs reflects the administration’s desire to focus on allegations of health care fraud in the states.

For those facing these investigations, note that the Shumate Memo instructs DOJ attorneys to:

• promptly issue subpoenas and/or Civil Investigative Demands (CIDs);
• file actions to enforce subpoenas and/or CIDs, if defendants fail to respond to deadlines absent a justifiable reason;
• use targeted requests for information, early witness interviews, and/or oral examinations;
• request assistance from relator’s counsel;
• consider refining damages estimates during discovery; and
• seek an additional 120 days (and/or a subsequent extension) to complete the investigation if necessary.

After the investigative period elapses, DOJ will decide whether to: (i) permit the relator to proceed with the action and to assume primary responsibility for litigating it, subject to the government’s ongoing supervision and ultimate control of the matter; (ii) conclude the allegations warrant further government investigation; or (iii) determine that the government should use its authority under the FCA to act to dismiss the action. Although DOJ has previously indicated an intent to increasingly utilize its dismissal authority under the FCA, it remains to be seen whether this will be the case generally and under this new policy. If so, defendants should be prepared to make early efforts to encourage DOJ to exercise such authority and bring meritless cases to a close.

DOJ is directed to take into consideration various factors in deciding whether to permit a relator to proceed with litigating and assuming primary responsibility for the action, including whether:

• the complaint alleges conduct that, if true, would constitute an FCA violation;
• the complaint alleges facts that are supported or corroborated by available information, including data analytics, agency information, or the relator’s inside information;
• the case involves a scheme or course of misconduct that is not novel or complex;
• the amount of the potential damages is below $10,000,000; and
• aggravating factors are present, such as beneficiary harm, ongoing misuse of federal funds, or concealment or deceit by the defendant.

The Takeaways

The Announcement is the latest since January 2025, to indicate that DOJ is making aggressive use of the FCA, particularly to tackle allegations of health care fraud. In the first half of 2026, the administration has launched the Task Force to Eliminate Fraud, as well as the newly constituted National Fraud Enforcement Division at DOJ.

According to the Announcement, the DOJ will “leverage a whole-of-government approach to ensure that new benefits fraud matters receive accelerated review and evaluation for all available enforcement options.” In addition to investigating civil FCA liability, the Civil Division intends to refer new matters to the Criminal Division and/or the National Fraud Enforcement Division for evaluation of potential criminal violations as well.

While the U.S. Court of Appeals for the Eleventh Circuit has yet to speak on the constitutionality of the FCA’s qui tam provisions, the DOJ seems to be relying heavily on FCA whistleblowers to bring claims. According to the Announcement and another on April 30 regarding data miners, the agency will now proactively seek out information “to assist in corroborating the whistleblower’s allegations.” Whistleblowers, who typically receive between 15 and 30 percent of the government’s recovery, will be further incentivized to bring FCA cases—on top of the record-breaking 1,297 qui tam matters reported by DOJ in FY 2025.

Above all, DOJ intends to move quickly. Entities subject to these investigations should anticipate being pressed to respond to requests to produce information expeditiously, and it is likely that DOJ efforts to seek testimony from witnesses will happen far earlier in the investigative process. Correspondingly, entities should be prepared to make efforts early on to challenge overbroad requests and to advocate that DOJ dismiss appropriate cases, rather than allowing them to proceed to costly litigation, consistent with these new time parameters.

If you have questions regarding the issues discussed in this post, please reach out to the authors.

Epstein Becker Green Staff Attorney Ann W. Parks contributed to the preparation of this post.