On October 15, 2026, the U.S. Department of Justice’s National Fraud Enforcement Division (NFED) and the Department of Health and Human Services Office of Inspector General (HHS-OIG) announced a new joint policy governing voluntary self-disclosure of potential criminal healthcare misconduct.

The policy represents an important change in how healthcare companies may report suspected criminal violations involving federal healthcare programs.

Under the new framework, companies seeking the benefits of both DOJ’s Corporate Enforcement Policy and HHS-OIG’s Self-Disclosure Protocol generally need to make only one disclosure—to the Health Care Fraud Section of DOJ’s National Fraud Enforcement Division.

Previously, healthcare organizations confronting potential criminal, civil, and administrative exposure faced difficult decisions about whether to disclose suspected misconduct to DOJ, HHS-OIG, or both.

The new policy is intended to simplify that process.

But for physicians, medical practice owners, laboratory executives, healthcare administrators, and other professionals, the announcement raises a more consequential question:

Does voluntarily disclosing suspected healthcare fraud protect the company, or could it expose individual physicians and executives to federal criminal prosecution?

The answer requires careful consideration before any disclosure is made. Contact us to understand the ramifications.

What Changed Under DOJ’s October 15, 2026 Healthcare Fraud Policy?

The new policy establishes a streamlined reporting process for companies that discover potential criminal healthcare fraud affecting federal healthcare programs.

According to DOJ’s announcement, a company that voluntarily self-discloses qualifying criminal conduct to NFED’s Health Care Fraud Section will receive the benefits of HHS-OIG’s Self-Disclosure Protocol without having to make a separate submission through HHS-OIG’s reporting portal.

The agencies also clarified an important distinction: HHS-OIG’s protocol addresses conduct potentially violating civil or administrative law, while potentially criminal healthcare misconduct should be disclosed to DOJ.

A company that reports potentially criminal conduct only to HHS-OIG generally will not qualify for a DOJ declination based on that disclosure alone.

In other words, the agency receiving the disclosure matters.

The policy does not eliminate the substantive requirements of DOJ’s Corporate Enforcement Policy. Companies must still satisfy applicable conditions to receive the benefits of voluntary disclosure, including cooperation and appropriate remediation.

Nor does the new policy provide blanket immunity from criminal prosecution.

Why Is DOJ Encouraging Healthcare Companies to Self-Disclose?

Federal healthcare investigations frequently involve overlapping criminal, civil, and administrative statutes.

For example, a medical practice may discover billing irregularities involving Medicare or Medicaid. A laboratory may identify potentially improper financial relationships with referring physicians. A healthcare company may uncover evidence that services were billed under the credentials of an excluded provider.

Depending on the facts, these circumstances may implicate:

• The federal Anti-Kickback Statute, 42 U.S.C. § 1320a-7b(b).
• The federal healthcare fraud statute, 18 U.S.C. § 1347.
• The False Claims Act, 31 U.S.C. §§ 3729–3733.
• Federal wire fraud or conspiracy statutes.
• Medicare and Medicaid administrative regulations.
• Federal exclusion and civil monetary penalty authorities.

The same underlying conduct may potentially trigger multiple enforcement mechanisms.

DOJ’s new policy is intended to remove uncertainty about where companies should report potentially criminal healthcare misconduct.

The government also has a practical incentive to encourage self-disclosure: companies that conduct internal investigations may identify witnesses, financial records, electronic communications, and other evidence that federal investigators have not yet obtained.

For healthcare organizations, however, that creates a significant strategic consideration.

A disclosure that benefits the corporation may also provide federal prosecutors with evidence concerning the conduct of individual employees, physicians, officers, or executives.

Does Voluntary Self-Disclosure Mean DOJ Will Decline Criminal Prosecution?

Not automatically.

DOJ’s Corporate Enforcement Policy provides a framework under which qualifying companies may receive favorable treatment, potentially including a declination of criminal prosecution.

But a declination is not an unconditional guarantee simply because a company reports suspected wrongdoing.

Eligibility and the ultimate resolution depend on the requirements of the applicable policy, including the timing and voluntariness of the disclosure, the company’s cooperation, remediation, and other relevant circumstances.

The distinction between corporate and individual criminal liability is particularly important.

A company may seek to resolve its own criminal exposure through voluntary disclosure and cooperation while federal prosecutors separately investigate whether particular individuals committed criminal offenses.

A corporate resolution does not necessarily resolve the criminal exposure of the individuals involved.

For physicians and healthcare executives, this distinction should be evaluated before participating in an internal investigation or providing statements concerning suspected misconduct.

Can a Healthcare Company’s Self-Disclosure Lead to Criminal Charges Against Its Physicians or Executives?

Potentially, yes.

Consider a medical practice that discovers questionable Medicare billing practices during an internal compliance review.

The company may determine that it should investigate whether claims were submitted for medically unnecessary services, whether billing codes were improperly used, or whether financial arrangements violated federal law.

As part of that investigation, the company may review emails, billing records, financial transactions, and communications involving physicians or administrators.

If the company subsequently makes a voluntary disclosure to DOJ, information developed during its investigation may become relevant to a federal criminal investigation of individual employees or executives.

The company’s interests and the individual’s interests may not be identical.

A company may seek to demonstrate that misconduct was limited to certain individuals, that senior management was unaware of the conduct, or that the organization has implemented appropriate corrective measures.

An individual physician or executive may dispute those conclusions.

For example, a physician accused of participating in improper billing may contend that coding decisions were made by administrative personnel, that services were medically necessary, or that the physician lacked knowledge of the alleged misconduct.

These issues can become especially complicated when the company is attempting to obtain cooperation credit from DOJ.

Physicians and executives should not assume that attorneys conducting a corporate internal investigation represent them personally. Seek independent legal advice.

What Is an Upjohn Warning, and Why Does It Matter?

When a healthcare company investigates potential misconduct, its attorneys may interview employees, physicians, officers, or executives.

Before conducting such an interview, corporate counsel may provide what is commonly known as an Upjohn warning.

The warning generally explains that the attorney represents the company rather than the individual employee, that the attorney-client privilege belongs to the company, and that the company may decide to disclose the substance of the interview to third parties, including the government.

This distinction is critical.

A physician who participates in an internal investigation may believe that communications with the company’s lawyers are confidential and protected for the physician’s benefit.

That assumption may be incorrect.

The company generally controls its own attorney-client privilege and may decide whether to waive it, subject to applicable law and the circumstances.

Where individual criminal exposure is possible, obtaining independent criminal defense counsel before participating in a substantive corporate interview may be essential.

Should a Physician or Healthcare Executive Cooperate with an Internal Investigation?

There is no universal answer.

Cooperation may be required under employment agreements, corporate policies, professional obligations, or other applicable arrangements.

At the same time, statements made during an internal investigation may have consequences if the matter is later referred to federal prosecutors.

An employee’s Fifth Amendment rights, contractual obligations, employment consequences, and potential criminal exposure require individualized analysis.

An attorney representing the individual can evaluate the scope of the interview, the identity of the investigating attorneys, the relevant documents, and whether separate representation or other protections are appropriate.

Refusing to participate without understanding the consequences can create problems. Participating without understanding the risks can also create problems.

The decision should be informed by the individual’s particular circumstances.

What Types of Healthcare Misconduct May Be Subject to the New Disclosure Policy?

The October 15 announcement specifically identifies several examples of conduct that may create overlapping criminal, civil, or administrative exposure.

Illegal Kickbacks and Referral Arrangements

A healthcare company may discover that payments to physicians, marketers, consultants, or referral sources potentially violate the federal Anti-Kickback Statute.

These arrangements can involve medical laboratories, pharmacies, durable medical equipment suppliers, physician practices, and other healthcare businesses.

Not every financial relationship involving referrals is illegal. The analysis depends on the applicable statute, regulatory protections, intent requirements, and specific facts.

Medically Unnecessary Services

A healthcare provider may identify allegations that Medicare or Medicaid was billed for services that were not medically necessary.

Such investigations may involve laboratory testing, genetic testing, diagnostic procedures, prescription medications, or other healthcare services.

Importantly, disagreements about medical necessity do not automatically establish criminal fraud.

Federal prosecutors must prove the elements of the applicable criminal offense, including the required mental state.

Excluded Providers

A healthcare organization may discover that claims were submitted in connection with services involving an individual excluded from participation in federal healthcare programs.

Depending on the circumstances, these matters may create administrative, civil, or criminal exposure.

The applicable consequences depend on the individual’s status, the nature of the services, the billing arrangements, and the knowledge and conduct of the parties involved.

Does the New Policy Replace HHS-OIG’s Existing Self-Disclosure Protocol?

No.

HHS-OIG continues to maintain its Self-Disclosure Protocol for qualifying matters involving potential civil or administrative violations.

The October 15 update clarifies how potentially criminal conduct should be handled and establishes a coordinated pathway for companies seeking the benefits of both agencies’ policies.

This distinction matters because healthcare organizations may discover conduct that implicates the False Claims Act, civil monetary penalties, exclusion authorities, or criminal statutes.

Determining whether suspected misconduct is potentially criminal, civil, administrative, or some combination of those categories requires careful legal analysis.

The new policy should not be interpreted as requiring every billing error or compliance concern to be reported as criminal fraud.

Nor should a company assume that a voluntary disclosure to one agency resolves every possible issue involving other regulators, payors, or enforcement authorities.

What Should Georgia Healthcare Companies Do Before Making a Voluntary Disclosure?

For healthcare companies considering voluntary self-disclosure, the most important decision may occur before contacting DOJ.

A company should evaluate the nature of the suspected misconduct, the available evidence, potential criminal exposure, and the requirements of the applicable disclosure policies.

Among the issues that may warrant legal review are:

1. Whether the conduct is potentially criminal. Billing mistakes, overpayments, regulatory violations, and intentional fraud are not interchangeable legal concepts.
2. Whether the company qualifies for voluntary disclosure benefits. Timing, prior government knowledge, cooperation requirements, and other policy conditions may affect eligibility.
3. Whether individual physicians or executives face separate exposure. The interests of the company and its personnel may diverge.
4. Whether an internal investigation should be conducted. The investigation’s scope, privilege protections, document preservation, and employee interviews require careful planning.
5. Whether other reporting or repayment obligations apply. The DOJ policy does not necessarily displace separate obligations under Medicare, Medicaid, the False Claims Act, or other applicable laws.
6. Whether disclosure could affect professional licensing or exclusion risks. Physicians and other licensed professionals may face consequences beyond the resolution of a corporate investigation.

A voluntary disclosure may offer meaningful benefits in an appropriate case. But the decision should not be made without understanding what information will be provided to the government and how that information could affect the organization and its personnel.

Frequently Asked Questions About DOJ’s New Healthcare Fraud Self-Disclosure Policy

Does the October 2026 policy require healthcare companies to report all suspected fraud to DOJ?

No. The policy establishes a pathway for companies seeking the benefits of voluntary self-disclosure. It does not, by itself, create a universal obligation to report every suspected violation. Separate reporting, repayment, or disclosure obligations may apply under other laws.

Can a healthcare company avoid criminal prosecution by voluntarily disclosing fraud?

Potentially, if it satisfies the applicable Corporate Enforcement Policy requirements. However, voluntary disclosure does not automatically guarantee a declination.

Does a corporate declination protect physicians and executives from prosecution?

Not necessarily. Corporate and individual criminal liability are distinct. Individual physicians, executives, or employees may still face investigation or prosecution.

Should a physician speak to company lawyers during an internal fraud investigation?

A physician facing potential individual criminal exposure should consider obtaining independent legal advice before participating in a substantive interview. Corporate counsel represents the organization, not necessarily the physician.

Does the new policy apply to Medicare and Medicaid fraud?

The policy concerns potentially criminal healthcare misconduct affecting federal healthcare programs, which may include Medicare and Medicaid-related matters.

Can a company still disclose civil healthcare violations to HHS-OIG?

Yes. HHS-OIG’s Self-Disclosure Protocol remains available for qualifying civil and administrative matters. Potentially criminal conduct should be evaluated under DOJ’s disclosure framework.

Facing a Federal Healthcare Fraud Investigation in Georgia? Contact Conaway & Strickler, PC

DOJ’s October 15, 2026 announcement reflects the federal government’s continuing emphasis on healthcare fraud enforcement and corporate cooperation.

For healthcare companies, the new policy may simplify the process of voluntarily reporting suspected criminal misconduct.

For physicians, practice owners, laboratory executives, and healthcare administrators, however, it also highlights the importance of understanding how corporate cooperation can affect individual criminal exposure.

The interests of a healthcare company and the individuals who work for it are not always the same.

Before participating in an internal investigation, responding to a federal subpoena, or making a voluntary disclosure concerning potential criminal healthcare conduct, it is important to understand the legal risks.

At Conaway & Strickler, PC, our Atlanta federal criminal defense attorneys represent physicians, healthcare professionals, executives, and businesses facing federal investigations and prosecutions involving healthcare fraud, Medicare and Medicaid billing, kickback allegations, and other white-collar criminal offenses.

If your medical practice, laboratory, or healthcare organization is considering a voluntary self-disclosure—or if you are a physician or executive whose conduct is being reviewed as part of a corporate investigation—contact Conaway & Strickler, PC to discuss your legal options.

Early, independent legal representation can be critical when a corporate compliance matter becomes a federal criminal investigation.

This article is provided for general informational purposes and does not constitute legal advice.

The most important thing to understand is this:

Do not ignore a federal grand jury subpoena—but do not assume that you must immediately turn over everything requested or answer every question without first speaking with an experienced federal criminal defense attorney like Conaway & Strickler, PC.

Federal grand jury subpoenas carry the authority of the federal court. At the same time, important legal protections may apply, including the Fifth Amendment privilege against self-incrimination, attorney-client privilege, other recognized privileges, and the ability in appropriate circumstances to challenge, limit, or seek modification of a subpoena.

What you do after receiving a subpoena can have significant consequences for the investigation and for your own potential exposure.

What Is a Federal Grand Jury Subpoena?

A federal grand jury investigates whether there is probable cause to believe a federal crime has been committed and whether criminal charges should be brought. In the Northern District of Georgia (or in another federal jurisdiction), federal grand juries regularly meet in Atlanta.

Federal prosecutors may use grand jury subpoenas to obtain evidence from individuals, businesses, financial institutions, healthcare providers, employers, accountants, and other potential witnesses or custodians of records.

A subpoena generally takes one of two forms.

A Subpoena to Testify (aka subpoena ad testificandum)

A subpoena may command you to appear before the grand jury and answer questions under oath.

This is not the same as being invited to participate in a voluntary interview with federal agents. A subpoena is compulsory legal process.

If you have any possibility of criminal exposure, appearing without first obtaining legal advice can be dangerous.

A Subpoena for Documents or Records (aka subpoena duces tecum)

A subpoena may instead—or additionally—require production of documents, data, communications, or other evidence.

Federal Rule of Criminal Procedure 17(c) permits subpoenas seeking books, papers, documents, data, and other objects. The Rule also provides a mechanism for a court to quash or modify a subpoena if compliance would be unreasonable or oppressive.

Federal grand jury document subpoenas can be extraordinarily broad. They may seek years of:

• Emails and text messages;
• Financial and banking records;
• Corporate records;
• Contracts and invoices;
• Patient or medical records;
• Billing information;
• Accounting records;
• Tax records;
• Employee files;
• Electronic data;
• Phone records;
• Compliance materials; and
• Communications with third parties.

The fact that the government requested a document, however, does not automatically mean that the document must be produced without further analysis.

Do You Have to Comply With a Federal Grand Jury Subpoena?

Generally, yes—a valid federal grand jury subpoena cannot simply be ignored.

But “complying” with a subpoena does not necessarily mean immediately producing everything the government requests.

Contact us so we can discuss and assess whether there are grounds to object to the subpoena, negotiate its scope, assert applicable privileges, seek additional time for compliance, or ask the court to quash or modify it.

That analysis should happen quickly.

The subpoena itself will ordinarily specify the date, time, and place for compliance. Federal Rule of Criminal Procedure 17(c)(2) states that a motion seeking to quash or modify a document subpoena should be made “promptly.”

Waiting until the return date can severely limit your options.

Am I a Witness, Subject, or Target?

One of the first questions an experienced federal criminal defense firm, like Conaway & Strickler, PC may try to determine is your status in the investigation.

In federal investigations, people commonly hear three terms:

Witness: Someone believed to possess information relevant to the investigation.

Subject: Someone whose conduct falls within the scope of the grand jury’s investigation.

Target: Someone prosecutors believe has substantial evidence linking them to a crime and whom prosecutors may be considering for indictment.

Receiving a subpoena does not, by itself, tell you which category applies.

A person may receive what appears to be a routine records subpoena while simultaneously being investigated personally.

For that reason, counsel may contact the Assistant United States Attorney handling the investigation before the client responds. Depending on the circumstances, counsel may seek information regarding the client’s status and determine whether compliance can be negotiated without unnecessarily increasing the client’s exposure.

Can I Assert the Fifth Amendment Before a Federal Grand Jury?

Potentially.

The Fifth Amendment protects individuals against compelled self-incrimination.

If answering a particular grand jury question could reasonably tend to incriminate you, the Fifth Amendment may provide a basis for declining to answer that question.

But asserting the Fifth Amendment before a federal grand jury is not something that should be improvised.

A witness generally cannot simply refuse to appear because the witness believes incriminating questions may be asked. The privilege ordinarily must be asserted in response to particular questions where an answer could be incriminating.

That is one reason obtaining legal advice before the appearance date is so important.

Does the Fifth Amendment Protect Documents?

This question is considerably more complicated.

The Fifth Amendment generally does not protect the contents of voluntarily created documents merely because those documents contain incriminating information.

But producing documents can itself sometimes communicate information.

By producing records, a person may implicitly communicate that:

• The documents exist;
• The documents are authentic;
• The person possesses or controls them; or
• The documents produced are responsive to the government’s request.

This is known as the act-of-production doctrine.

The United States Supreme Court has recognized that the act of producing subpoenaed documents can, under certain circumstances, have a testimonial component protected by the Fifth Amendment.

Whether that protection applies depends heavily on the facts, including who received the subpoena, what records are requested, whether the government already knows the records exist, and whether the records are personal or held in a representative capacity for an entity.

This area of law is technical and highly fact-specific. A subpoena recipient should not assume either that the Fifth Amendment protects all requested records or that it protects none of them.

What About Corporate and Business Records?

Different rules may apply when a subpoena seeks records belonging to a corporation or other collective entity.

A business owner, officer, employee, or records custodian may be required to produce entity records in circumstances where that same person could potentially assert a Fifth Amendment privilege concerning personal testimony or personal records.

This distinction can become especially important in federal investigations involving:

• Healthcare companies;
• Medical practices;
• Pharmacies;
• Laboratories;
• Government contractors;
• Financial institutions;
• Closely held businesses;
• Accounting and tax matters; and
• Alleged fraud schemes.

Before producing company records, counsel should determine who owns the records, in what capacity the recipient possesses them, and whether producing them could create additional legal issues for the individual or company.

What If the Subpoena Requests Attorney-Client Communications?

Attorney-client privilege may protect confidential communications between an attorney and client made for the purpose of obtaining or providing legal advice.

A grand jury subpoena does not automatically eliminate that privilege.

If responsive documents include potentially privileged communications, counsel may need to identify and preserve those objections rather than simply producing the materials.

Privilege disputes in federal grand jury investigations can become complex. The Eleventh Circuit has addressed litigation involving grand jury subpoenas seeking materials claimed to be protected by attorney-client privilege, including disputes concerning the crime-fraud exception.

Other protections may also apply depending on the circumstances, including attorney work-product protection and privileges applicable to particular professional relationships.

The key is to identify privilege issues before production occurs.

Once privileged information has been disclosed to the government, attempting to undo that disclosure can be substantially more difficult.

Can You File a Motion to Quash a Federal Grand Jury Subpoena?

Yes, under appropriate circumstances.

Federal Rule of Criminal Procedure 17(c)(2) provides that a court may quash or modify a subpoena if compliance would be unreasonable or oppressive.

Depending on the facts, potential challenges may involve issues such as:

• Overbreadth;
• Undue burden;
• Privilege;
• Fifth Amendment concerns;
• Requests extending beyond an appropriate investigative purpose; or
• Other legal defects affecting the subpoena.

A motion to quash is not appropriate merely because complying with the subpoena is inconvenient or because the recipient would prefer not to provide the requested evidence.

Grand juries have broad investigative authority.

But broad authority is not unlimited authority.

In some cases, the more practical solution is not litigation at all. Defense counsel may be able to negotiate directly with the prosecutor to narrow the requested categories, modify search terms, establish procedures for privileged material, or obtain additional time to respond.

What Should You Do With Documents After Receiving a Subpoena?

Preserve them.

Do not delete emails, destroy documents, erase text messages, modify files, dispose of devices, or instruct employees or other people to remove potentially relevant information.

A subpoena recipient should ordinarily preserve potentially responsive information while counsel determines what ultimately must be produced.

This can include electronically stored information on:

• Cell phones;
• Computers;
• Email accounts;
• Cloud storage;
• Messaging applications;
• Business servers; and
• Backup systems.

Destroying or concealing evidence after learning of a federal investigation can create problems far more serious than the original subpoena.

What If the Deadline Is Too Soon?

Do not simply miss it.

Contact us immediately.

Depending on the circumstances, we may be able to contact the Assistant United States Attorney and request additional time to respond, particularly when the subpoena seeks a substantial amount of electronically stored information or requires privilege review.

But an extension should be confirmed with the government. A subpoena recipient should not simply assume that additional time is available.

Does Receiving a Grand Jury Subpoena Mean I Am Going to Be Indicted?

No.

Grand juries issue subpoenas to many people and entities that are never charged with crimes.

But receiving a subpoena can be an important opportunity to determine what is happening before charges are filed..

That pre-indictment period can be one of the most important stages of a federal criminal case.

If you have received a federal grand jury subpoena, the safest time to evaluate your options is before you produce documents or testify—not afterward.

Conaway & Strickler, P.C. represents individuals and businesses in federal criminal investigations, grand jury matters, white-collar cases, healthcare investigations, fraud investigations, and other federal criminal matters.

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The Eleventh Circuit has issued the highly anticipated decision we discussed in our June 2026 article concerning the constitutionality of the False Claims Act’s whistleblower provisions.

And, at least for now, the False Claims Act’s qui tam system survives.

On September 1, 2026, the U.S. Court of Appeals for the Eleventh Circuit vacated the district court’s dismissal in United States ex rel. Zafirov v. Florida Medical Associates, LLC, No. 24-13581.

The Eleventh Circuit rejected the district court’s conclusion that False Claims Act relators—private whistleblowers who prosecute FCA cases in the name of the United States—are “Officers of the United States” who must be appointed in accordance with Article II of the Constitution.

But the decision does not necessarily end the constitutional challenge to the False Claims Act.

Instead, the Eleventh Circuit sent the case back to the district court to consider two additional constitutional arguments that were never decided below: whether the qui tam provisions violate the Constitution’s Take Care Clause or Vesting Clause.

For companies, physicians, health care providers, government contractors, and individuals facing False Claims Act investigations or litigation, the September 1 decision is important.

The most significant constitutional challenge to the FCA’s qui tam mechanism has been rejected by the Eleventh Circuit—but other constitutional arguments remain alive.

What Happened in Zafirov?

As we discussed in our earlier article, Zafirov arose from allegations of Medicare fraud.

Dr. Clarissa Zafirov brought a False Claims Act lawsuit against her employer and related health care entities. She alleged that the defendants knowingly submitted false diagnosis codes to Medicare in order to receive payments to which they were not entitled.

The United States declined to intervene initially, meaning that Dr. Zafirov proceeded with the litigation as a private FCA relator.

Years into the litigation, the defendants attacked something much larger than the underlying fraud allegations:

They challenged the constitutionality of the False Claims Act’s qui tam system itself.

The defendants argued that permitting a private citizen to exercise federal enforcement authority in the name of the United States violates Article II of the Constitution.

The district court agreed with one of those arguments.

The District Court’s Landmark 2024 Decision

In 2024, U.S. District Judge Kathryn Kimball Mizelle concluded that the FCA’s qui tam provisions violated the Constitution’s Appointments Clause.

The constitutional problem, according to the district court, arose from the enormous authority exercised by a False Claims Act relator.

A relator can bring litigation in the name of the United States, select defendants, pursue discovery, litigate motions, and potentially prosecute a massive federal fraud case even after the Department of Justice declines to intervene.

The district court concluded that a relator exercising that authority qualified as an “Officer of the United States.”

That presented a constitutional problem.

Article II provides a specific mechanism for appointing federal officers. A False Claims Act relator is not appointed by the President, a court, or the head of a federal department.

Instead, the relator effectively assumes the position by filing a qui tam lawsuit.

The district court therefore concluded that the arrangement violated the Appointments Clause and dismissed Zafirov’s case.

The decision immediately attracted national attention because, if its reasoning ultimately prevailed, it could threaten one of the federal government’s most powerful fraud-enforcement mechanisms.

The Eleventh Circuit Disagrees: FCA Relators Are Not Federal Officers

On September 1, 2026, the Eleventh Circuit rejected the district court’s Appointments Clause analysis.

The appellate court focused on a fundamental requirement for determining whether someone qualifies as an “Officer of the United States.”

Under Supreme Court precedent, officer status requires more than the exercise of significant federal authority. The person must also occupy a “continuing position established by law.”

The Eleventh Circuit concluded that an FCA relator does not.

A relator’s role is tied to a particular lawsuit. The position is temporary and personal to the relator. The relator does not receive a continuing government salary or other continuing compensation, and the relator’s duties are not transferred to a successor who occupies an ongoing governmental office.

In short, the Eleventh Circuit rejected the concept that the False Claims Act creates a permanent governmental “office of relator.”

Because relators do not occupy a continuing governmental position, the court held that they are not “Officers of the United States” for purposes of the Appointments Clause.

Accordingly:

The False Claims Act’s qui tam provisions do not violate the Appointments Clause.

The Eleventh Circuit vacated the dismissal of Zafirov’s case.

The Eleventh Circuit Now Joins Other Federal Appeals Courts

The decision is also significant because the Eleventh Circuit joined the other federal appellate courts that have considered similar Appointments Clause challenges to False Claims Act relators.

The Fifth, Sixth, Ninth, and Tenth Circuits have previously rejected constitutional challenges based on the theory that FCA relators are improperly appointed federal officers.

The September 1 decision therefore does not create a circuit split on the Appointments Clause question.

Instead, the Eleventh Circuit has now aligned itself with the other circuits that have addressed that issue.

For False Claims Act defendants in Georgia, Florida, and Alabama, which comprise the Eleventh Circuit, the decision is particularly important.

At the appellate level, an argument that the ordinary FCA relator violates the Appointments Clause because the relator has not been constitutionally appointed now faces binding Eleventh Circuit precedent.

But Zafirov Is Not Over

This may be the most important part of the September 1 ruling.

The Eleventh Circuit did not resolve every constitutional challenge to the False Claims Act’s qui tam provisions.

The defendants originally raised three separate Article II arguments:

1. Appointments Clause — the relator allegedly acts as an unconstitutionally appointed federal officer;
2. Take Care Clause — allowing a private relator to prosecute federal claims allegedly interferes with the President’s constitutional obligation to “take Care that the Laws be faithfully executed”; and
3. Vesting Clause — permitting a private citizen to exercise federal enforcement authority allegedly conflicts with Article II’s vesting of executive power in the President.

The district court found an Appointments Clause violation and therefore did not reach the other two arguments.

The Eleventh Circuit reversed the Appointments Clause holding.

But instead of deciding the remaining constitutional questions itself, the appellate court remanded the case to the district court to consider the Take Care Clause and Vesting Clause challenges.

That means the constitutional litigation continues.

The Next Battle: Who Controls a Declined False Claims Act Case?

The unresolved issues go to the heart of the unusual structure of the False Claims Act.

The federal government unquestionably possesses authority to investigate and prosecute fraud against itself.

The more difficult constitutional question is what happens when the government declines to intervene and allows a private citizen to prosecute the government’s claim.

Under the False Claims Act, the government retains substantial statutory rights even after declining intervention.

But the private relator can nevertheless conduct extensive litigation in the name of the United States.

That raises a broader separation-of-powers question:

Does the Executive Branch retain sufficient control over litigation brought in the name of the United States when a private relator is actually prosecuting the case?

The district court will now have an opportunity to address that issue through the defendants’ remaining Take Care Clause and Vesting Clause arguments.

What Does the Decision Mean for False Claims Act Defendants?

For defendants, the immediate consequence is straightforward:

Qui tam False Claims Act litigation remains alive in the Eleventh Circuit.

Companies and individuals cannot currently obtain dismissal merely by arguing that an FCA relator is an improperly appointed “Officer of the United States.”

But defendants should not interpret Zafirov as eliminating every constitutional defense to qui tam litigation.

The Eleventh Circuit expressly remanded the case for consideration of the remaining Article II challenges.

Those issues may be particularly important in declined cases, where the Department of Justice has chosen not to intervene and the private relator is conducting the litigation.

The constitutional argument has therefore become narrower—but it has not disappeared.

Why Zafirov Matters So Much in Health Care Fraud Cases

The False Claims Act is especially significant in the health care industry.

FCA investigations and lawsuits frequently arise from allegations involving:

• Medicare billing;
• Medicaid billing;
• allegedly false diagnosis codes;
• medically unnecessary services;
• laboratory testing;
• genetic testing;
• durable medical equipment;
• improper physician referrals;
• Anti-Kickback Statute allegations;
• Stark Law issues;
• pharmaceutical arrangements;
• hospice and home health services;
• upcoding;
• false certifications; and
• allegedly improper reimbursement claims.

A whistleblower—often a current or former employee, physician, billing professional, executive, or business partner—can file a sealed qui tam complaint alleging that a health care provider caused false claims to be submitted to the government.

The Department of Justice then investigates and determines whether to intervene.

If DOJ declines, the relator may still be permitted to proceed.

Zafirov matters precisely because it challenges the constitutional legitimacy of that last scenario.

A Declined FCA Case Does Not Mean the Case Is Over

Health care providers sometimes misunderstand what it means when DOJ declines to intervene in a qui tam case.

Declination can certainly be an important development.

But it does not necessarily mean the lawsuit disappears.

The private relator may continue litigating the case on behalf of the United States.

And because False Claims Act liability can include treble damages and statutory penalties for individual violations, the financial exposure can become enormous.

That makes early defense strategy critical.

False Claims Act Cases Can Also Create Criminal Exposure

Companies and individuals facing FCA allegations should also recognize another important issue:

A civil False Claims Act investigation can overlap with a federal criminal investigation.

Allegations involving false Medicare claims, kickbacks, fabricated medical records, false certifications, medically unnecessary procedures, or fraudulent billing can potentially attract scrutiny from criminal investigators and prosecutors.

That may include agencies such as:

DOJ, FBI, HHS-OIG, DEA, or other federal investigative agencies.

For physicians and other licensed health care professionals, additional consequences can include licensing proceedings, Medicare or Medicaid exclusion, credentialing issues, hospital-privilege problems, and potential DEA consequences.

The civil and criminal strategies therefore should not be developed in isolation.

What Should You Do If You Receive an FCA Subpoena or Learn About a Qui Tam Investigation?

Do not assume that receiving a subpoena means the government has already decided that fraud occurred.

But do not treat it as a routine records request either.

An FCA investigation can involve years of billing data, medical records, emails, text messages, internal compliance materials, employee communications, financial records, and other evidence.

Early counsel can help determine:

What is the government actually investigating?

Is the investigation civil, criminal, or parallel?

Which billing practices or transactions are under scrutiny?

Who are the potential individual targets?

Is there a sealed qui tam complaint behind the investigation?

What evidence exists that contradicts the government’s theory?

Are the alleged false claims actually the product of reasonable medical judgment, coding disagreements, regulatory ambiguity, or mistake rather than knowing fraud?

Those distinctions can be critical under the False Claims Act.

Zafirov Preserves Qui Tam—for Now

The September 1, 2026 decision represents an important victory for the continued operation of the False Claims Act’s qui tam framework.

But it is not necessarily the final word on its constitutionality.

The Eleventh Circuit held that FCA relators are not “Officers of the United States” because they do not occupy continuing positions established by law. That defeats the Appointments Clause theory accepted by the district court.

But the court sent the case back for consideration of the defendants’ Take Care Clause and Vesting Clause challenges.

So the constitutional question has changed.

It has not disappeared.

For businesses, physicians, health care providers, executives, and other individuals facing False Claims Act allegations in Georgia and throughout the Eleventh Circuit, Zafirov is a decision worth watching closely.

Facing a False Claims Act Investigation? The Civil Case May Be Only Part of the Risk.

False Claims Act cases can expose companies and individuals to enormous financial liability.

For physicians, health care executives, and other professionals, the consequences can extend further—to criminal investigations, professional licenses, Medicare and Medicaid participation, DEA registration, credentialing, and professional reputation.

At Conaway & Strickler, P.C., we represent individuals and businesses facing complex federal investigations, health care fraud allegations, False Claims Act matters, and parallel civil and criminal proceedings.

If you have received a Civil Investigative Demand, federal subpoena, grand jury subpoena, search warrant, DOJ inquiry, HHS-OIG inquiry, or notice of a False Claims Act investigation, the time to evaluate the government’s allegations and potential exposure is before critical decisions are made.

Contact Conaway & Strickler, P.C. to discuss your False Claims Act or federal health care fraud matter.

Frequently Asked Questions About the Zafirov False Claims Act Decision

What did the Eleventh Circuit decide in Zafirov?

On September 1, 2026, the Eleventh Circuit held that False Claims Act relators are not “Officers of the United States” because they do not occupy a continuing position established by law. The court therefore held that the FCA’s qui tam provisions do not violate the Constitution’s Appointments Clause.

Did the Eleventh Circuit rule that the entire False Claims Act is constitutional?

No. The court resolved the Appointments Clause issue presented on appeal but remanded the case for the district court to consider the defendants’ remaining Take Care Clause and Vesting Clause arguments.

Was the False Claims Act struck down?

No. The Eleventh Circuit vacated the district court’s dismissal. Qui tam False Claims Act actions continue to be available in the Eleventh Circuit.

Does Zafirov apply in Georgia?

Yes. Decisions of the U.S. Court of Appeals for the Eleventh Circuit govern federal courts within Georgia, Florida, and Alabama.

What is a False Claims Act qui tam lawsuit?

A qui tam action allows a private person known as a “relator” to bring specified False Claims Act claims in the name of the United States. The government has an opportunity to investigate and decide whether to intervene in the litigation.

What happens when DOJ declines to intervene in a False Claims Act case?

Declination does not necessarily end the case. Subject to the FCA’s statutory framework, the relator may continue pursuing the action even though the federal government has declined to take over primary responsibility for litigating it.

Can a False Claims Act investigation become a criminal case?

Potentially. Conduct underlying FCA allegations may also be investigated under federal criminal statutes depending upon the facts. This is particularly important in health care fraud cases involving allegations of intentional false billing, kickbacks, fabricated records, or other allegedly fraudulent conduct.

What should a physician do after receiving an FCA subpoena?

Contact Conaway & Strickler, PC. We are experienced with federal investigations and we work with you before providing substantive explanations concerning the allegations. We determine whether the matter is civil, criminal, or parallel and evaluate potential professional consequences in addition to the FCA exposure.

Is the constitutional challenge to FCA whistleblower lawsuits over?

Not necessarily. Although the Eleventh Circuit rejected the Appointments Clause challenge in Zafirov, it remanded for consideration of the defendants’ separate Take Care Clause and Vesting Clause arguments.

A physician facing criminal allegations may find themselves dealing with two separate proceedings:

The criminal case AND a Georgia Composite Medical Board matter.

Those proceedings operate under different rules, serve different purposes, and can create very different consequences.

For a Georgia physician, successfully defending the criminal case is critically important—but protecting the medical license may require a coordinated strategy from the beginning.

Does an Arrest Automatically Cause a Georgia Doctor to Lose Their Medical License?

No.

An arrest is an allegation. It is not a conviction and does not establish that the physician committed the alleged offense.

A physician should therefore not assume that being arrested automatically results in suspension or revocation of a Georgia medical license.

But the analysis does not end there.

The Georgia Composite Medical Board has broad regulatory authority over physicians, and criminal allegations can potentially lead to Board scrutiny or investigation depending upon the circumstances.

The Board identifies criminal violations among matters that can warrant formal investigation.

The important distinction is:

An arrest does not automatically equal license discipline—but a criminal case can create a separate licensing problem.

Can the Georgia Medical Board Investigate a Doctor Before the Criminal Case Is Over?

Potentially, yes.

A Medical Board proceeding does not necessarily have to follow the same timeline as the criminal prosecution.

That creates a difficult strategic situation.

The physician may simultaneously have Conaway & Strickler, PC assist with:

prosecutors, agents and investigators and also the the licensing matter requiring interaction with the Georgia Composite Medical Board.

Those proceedings should be coordinated carefully.

Be Careful About Explaining the Arrest to the Medical Board

Physicians are trained to document, explain, and solve problems. After an arrest, that instinct can sometimes create additional risk.

A doctor may want to immediately write a detailed explanation establishing why the allegations are wrong.

That explanation could become important.

But when a criminal investigation or prosecution remains pending, counsel should consider how substantive statements concerning the allegations could affect the criminal case.

The physician may have constitutional protections in the criminal proceeding that do not translate neatly into a professional licensing investigation.

A statement intended to save the medical license should not inadvertently damage the criminal defense.

This is one of the strongest reasons for retaining counsel early on.

What Can the Georgia Medical Board Do?

The consequences of a Board proceeding depend upon the facts, applicable law, and procedural posture.

Potential professional consequences can include conditions or restrictions on practice, probation, suspension, surrender, revocation, and other disciplinary or remedial action authorized by Georgia law.

Not every complaint or investigation results in public discipline.

But once a matter develops into formal public disciplinary action, the consequences may extend beyond the Georgia license itself.

Public discipline can potentially affect credentialing, employment, hospital privileges, other state licenses, malpractice coverage, and future professional opportunities.

Can the Medical Board Act While Criminal Charges Are Still Pending?

The existence of an unresolved criminal case does not necessarily mean that licensing issues must remain frozen until the prosecution ends.

The Georgia Composite Medical Board’s published orders demonstrate that interim restrictions can arise while criminal charges remain pending.

That does not mean that every physician who is arrested will have their license suspended.

The nature of the allegations matters enormously.

A criminal allegation involving medical practice, patient safety, controlled substances, fraud, dishonesty, impairment, or other conduct directly connected to professional responsibilities may present different licensing issues from an unrelated allegation.

The individual facts matter.

What Types of Criminal Charges Can Create Medical-License Problems?

There is no single category of criminal charge that automatically determines the outcome of a Georgia licensing matter.

But allegations that can raise significant professional concerns include:

• health care fraud;
• Medicare or Medicaid fraud;
• unlawful prescribing;
• controlled-substance diversion;
• prescription fraud;
• theft or embezzlement;
• false statements and fraud offenses;
• patient abuse or neglect;
• sexual offenses;
• criminal allegations involving patients;
• offenses allegedly committed through the medical practice; and
• substance-related allegations that raise questions concerning professional practice or patient safety.

The connection between the alleged conduct and the practice of medicine may be particularly important.

What About a DUI Arrest?

A DUI arrest should not automatically be equated with loss of a medical license.

But depending upon the circumstances, a DUI or other substance-related case can raise issues extending beyond the traffic or criminal proceeding.

For example, facts suggesting impairment in connection with patient care or a broader professional-practice issue could create different concerns from an isolated allegation unrelated to medical practice.

The individual circumstances should be evaluated rather than assuming that every DUI produces the same licensing result.

What If the Criminal Charges Are Dismissed?

A dismissal is obviously significant to the criminal case, but physicians should not automatically assume that every licensing issue disappears solely because prosecutors dismiss the charge.

The criminal justice system and professional licensing system apply different procedures and standards.

Conversely, an arrest or allegation should not be treated as proof of professional misconduct merely because it occurred.

Counsel should determine whether a licensing investigation exists and, if so, what steps are necessary to bring it to a favorable conclusion after the criminal matter is resolved.

A Plea Agreement Must Be Reviewed for Medical-License Consequences

This is one of the most important considerations for a physician charged with a crime.

Imagine that the prosecutor offers:

No jail. Reduced charge. Probation. Case closed.

For some clients, that might sound like an excellent resolution.

A physician needs to ask another question:

“What does this plea do to my medical license?”

The exact offense, statutory language, factual basis, plea terminology, and ultimate disposition can potentially affect professional consequences.

The answer should be investigated before the physician enters the plea.

Once a plea has been entered and sentence imposed, attempting to undo an unexpected professional consequence can be considerably more difficult.

Could Medical Board Discipline Affect Hospital Privileges?

Potentially.

A licensing action can create consequences outside the Medical Board proceeding itself.

Hospitals, employers, insurers, and credentialing organizations may have disclosure requirements concerning disciplinary actions.

Certain adverse professional actions may also implicate reporting requirements involving the National Practitioner Data Bank.

This creates a potential domino effect:

Criminal case → licensing proceeding → professional discipline → credentialing or privileges issues.

Avoiding or minimizing that cascade requires thinking several steps ahead. It is important to divulge the arrest and surrounding circumstances on all applications for renewal. Conaway & Strickler, PC can assist with these applications.

What Should a Georgia Doctor Do Immediately After an Arrest?

First, do not assume the criminal case and medical license are separate problems that can be addressed independently.

Before making substantive statements concerning the allegations, the physician should determine what criminal, licensing, employment, credentialing, and reporting obligations may apply.

Physicians should also preserve relevant records and communications and should never alter medical records, create misleading retrospective documentation, destroy evidence, or attempt to influence potential witnesses.

And before accepting any criminal disposition, the physician should understand what that resolution may mean for the medical license.

The Goal Is to Protect Both the Criminal Case and the Medical Career

A physician facing criminal charges has often invested more than a decade in education and training before beginning independent practice.

The consequences of a criminal case therefore cannot be measured solely by the potential sentence.

At Conaway & Strickler, P.C., we understand that representing a physician requires looking beyond the criminal courtroom.

When a Georgia doctor is arrested or placed under investigation, the defense strategy should consider:

the criminal allegations, the Georgia medical license, DEA registration where applicable, hospital privileges, credentialing, federal health care program participation, and the potential long-term impact on the physician’s career.

Georgia Doctor Arrested or Under Investigation? Talk to Counsel Before You Talk to Anyone Else About the Allegations.

If you are a Georgia physician who has been arrested, charged with a crime, contacted by law enforcement, served with a subpoena, or learned that you are under criminal investigation, do not wait until the criminal case is resolved to determine what it means for your medical license.

The decisions made early in the case can affect both proceedings.

Conaway & Strickler, P.C. represents physicians and other professionals facing serious state and federal criminal investigations and prosecutions in Georgia.

If your freedom, medical license, professional reputation, and career are at stake, the defense needs to account for all of them.

Contact Conaway & Strickler, P.C. to discuss the criminal case and the potential consequences for your Georgia medical license before making decisions that may be difficult—or impossible—to reverse.

Frequently Asked Questions About Georgia Medical Licenses and Criminal Charges

Does an arrest automatically cause a Georgia doctor to lose their medical license?

No. An arrest is not a conviction and should not be treated as an automatic license revocation. Criminal allegations can, however, potentially lead to investigation or other action by the Georgia Composite Medical Board depending upon the circumstances.

Can the Georgia Medical Board investigate a physician while criminal charges are pending?

A licensing matter can potentially proceed while a criminal matter remains unresolved. This makes coordination between the criminal-defense and licensing strategies particularly important.

Should I respond to the Medical Board without a lawyer if criminal charges are pending?

A physician should consider obtaining legal advice before making substantive statements about allegations that are also the subject of an active criminal investigation or prosecution. Statements made in one proceeding can potentially have consequences in another.

Can a felony conviction affect a Georgia medical license?

Yes. A felony conviction can have significant professional-licensing consequences. The specific consequences depend upon the offense, facts, applicable Georgia law, and action taken by the Georgia Composite Medical Board.

Will a DUI cause a Georgia physician to lose their medical license?

A DUI arrest does not automatically mean a physician will lose a medical license. The particular circumstances, including whether the allegations implicate professional practice or patient safety, can matter.

What happens if the criminal charges against the doctor are dismissed?

Dismissal of the criminal charge is highly significant but does not necessarily answer every question in a separate licensing proceeding. If a Board investigation has already begun, counsel should determine what remains necessary to resolve it.

Should a physician consider medical-license consequences before accepting a plea?

Absolutely. A proposed plea should be analyzed for licensing and other professional consequences before it is entered. A resolution that appears favorable from a sentencing perspective may have separate consequences for a physician’s career.

A doctor facing criminal allegations may also have to worry about hospital privileges, DEA registration, employment, credentialing, Medicare and Medicaid participation, the National Practitioner Data Bank, malpractice insurance, and professional reputation, among other issues.

And some of those problems can develop before the criminal case is over.

At Conaway & Strickler, P.C., we represent professionals facing serious state and federal criminal investigations and prosecutions. When the client is a physician, criminal defense requires understanding something prosecutors may not be focused on:

The way a criminal case is resolved can affect the physician’s ability to practice medicine for years to come.

An Arrest Is Not a Conviction

Being arrested does not mean a physician is guilty.

Charges can be dismissed. Evidence can be suppressed. Prosecutors can decline prosecution. Charges can be reduced. Cases can end without a traditional conviction.

But physicians are different from many criminal defendants because their careers are regulated by numerous entities outside the criminal justice system.

A criminal matter may potentially implicate the Georgia Composite Medical Board, DEA, hospitals, employers, credentialing organizations, Medicare and Medicaid, HHS-OIG, malpractice insurers, and the National Practitioner Data Bank.

That makes it essential to investigate collateral consequences before resolving the criminal case.

The Plea That Avoids Jail Could Still Damage a Medical Career

For some clients, a plea offer involving probation and no incarceration may appear extremely favorable.

But for a physician, that is not necessarily the end of the analysis.

The exact offense of conviction, factual basis for the plea, and form of disposition can potentially determine whether other professional consequences follow.

One particularly important example involves the National Practitioner Data Bank.

For qualifying health-care-related offenses, federal NPDB rules use a definition of “conviction” that can encompass guilty and nolo contendere pleas as well as certain deferred-adjudication and first-offender arrangements in which judgment has been withheld.

That means:

“You won’t have a traditional conviction on your record” does not necessarily mean “this disposition won’t affect your medical career.”

The professional consequences should be analyzed before the plea is entered.

DEA Registration Can Become a Separate Problem

Criminal cases involving controlled substances create another level of risk for physicians.

Physicians who prescribe controlled substances generally depend upon DEA registration in addition to their state authority.

Federal law gives DEA authority to pursue suspension or revocation of registration on specified grounds, including certain felony controlled-substance convictions and loss of state authority to handle controlled substances. If you receive an Order to Show Cause and Immediate Suspension of Registration, it is imperative to seek legal counsel immediately.

This can be particularly important in cases involving allegations of:

unlawful prescribing, diversion, prescription fraud, controlled substances, pill mills, Schedule II medications, or improper distribution.

For physicians whose specialties depend heavily upon prescribing authority, a DEA problem can make continued practice extremely difficult even if the criminal sentence itself is relatively limited.

Medicare and Medicaid Exclusion Can Be Devastating

Certain criminal convictions can result in exclusion from federal health care programs.

HHS-OIG has mandatory exclusion authority for specified offenses, including certain Medicare and Medicaid fraud offenses, felony health care fraud offenses, patient abuse or neglect offenses, and felony controlled-substance offenses.

Several categories carry a minimum five-year exclusion period.

Other criminal offenses may create grounds for permissive exclusion.

The consequences can extend far beyond a physician’s ability to submit a Medicare claim personally. Federal exclusion rules can prohibit federal health care program payment for services furnished, ordered, or prescribed by an excluded physician.

For physicians whose practices depend on federal health care program reimbursement, exclusion can threaten the economic viability of the practice.

Hospital Privileges and Credentialing May Also Be Affected

Hospitals, medical groups, insurers, and credentialing organizations maintain their own rules concerning criminal matters.

The actual language matters.

There is a significant difference between a policy requiring disclosure of:

an arrest; criminal charges; an indictment; a conviction; or disciplinary action against a medical license.

A physician should not assume either that disclosure is required or that nothing needs to be disclosed.

Conaway & Strickler, PC can assist in reviewing the applicable hospital bylaws, employment agreements, medical-staff policies, credentialing applications, and insurance agreements.

The National Practitioner Data Bank Can Follow a Physician for Years

Certain licensing actions, clinical-privilege actions, exclusions, and health-care-related criminal convictions can be reported to the National Practitioner Data Bank.

An arrest alone is not the same thing as an NPDB criminal-conviction report.

But what happens after the arrest may create a reportable event.

That distinction makes the structure of the ultimate criminal disposition particularly important.

Federal Physician Investigations Often Begin Before an Arrest

Many federal investigations involving physicians begin quietly.

The first indication may be:

• an FBI or DEA interview request;
• an HHS-OIG inquiry;
• a grand jury subpoena;
• a search warrant;
• seizure of electronic devices;
• interviews of employees;
• requests for medical or billing records; or
• a federal target letter.

A physician does not need to wait for an indictment to retain criminal defense counsel.

The pre-indictment period may provide important opportunities to investigate the allegations, preserve favorable evidence, communicate with prosecutors, and identify professional consequences before the case reaches a critical stage.

Physicians Need a Criminal Defense Strategy Designed for Physicians

Medical school. Residency. Fellowship. Board certification. Hospital privileges. DEA registration. A medical practice. Patients.

A physician may have spent decades building a career before a criminal investigation begins.

The defense strategy therefore cannot be limited to:

“How do we keep you out of jail?”

It should also ask:

Can we prevent charges from being filed?

Can the charge be dismissed or defeated?

Is it possible for negotiaion on the wording of the offense or factual basis to reduce collateral consequences?

Could the resolution affect DEA registration?

Could it result in federal health care program exclusion?

Is there an NPDB consequence?

Could it affect hospital privileges or credentialing?

And, critically:

What does it mean for the physician’s Georgia medical license?

That last issue deserves its own analysis. See our related article: Can a Georgia Doctor Lose Their Medical License if Arrested

Georgia Physician Under Investigation? Protect Your Career Before Making Irreversible Decisions.

If you are a physician who has been arrested, indicted, subpoenaed, contacted by federal agents, served with a search warrant, or informed that you are under investigation, obtaining counsel early can matter.

At Conaway & Strickler, P.C., we represent professionals in serious state and federal criminal matters and understand that physicians have professional consequences at stake beyond the criminal courtroom.

Before speaking to your employer or an investigator, or answering a subpoena, it is very important to understand both the criminal and collateral consequences.

Contact Conaway & Strickler, P.C. to discuss your case and the steps that may be available to protect your freedom, your reputation, and your medical career.

A target letter is a letter from a federal prosecutor informing you that you are the focus of a federal criminal investigation. It indicates that the government possesses substantial evidence linking you to a federal offense and is considering charging you. A target letter will contain key information for your lawyer to assist you. It will have a description of the suspected offense, and the name of the AUSA handling the case. As soon as we are retained, we reach out to that AUSA to learn more about the situation.

If you receive a target letter, reach out for legal counsel as soon as possible.

What is the difference between Target, Subject and Witness?

A “target” is someone prosecutors are investigating for having allegedly committed a crime. A “witness”, on the other hand, is someone whom prosecutors believe may have information that may help investigators. However, they’re not currently suspected of wrongdoing.

Finally, a “subject” falls in the middle. You are within the scope of the investigation, and your conduct is definitely being investigated, but the government has not decided yet whether to bring charges against you.

These labels are fluid. Your status can change as the government investigates further. That is why you need a lawyer whether or not you initially fall in any of these three categories. Remember anything you say can and WILL be used against you.

What If I Receive a Target Letter from the Department of Justice?

Contact us immediately.

Whether you’re a witness in a federal investigation or already a subject of a federal investigation, you need to know your rights before speaking with the government. We contact the AUSA immediately, as discussed above, but also we get a full understanding of the allegations against you so that we can begin our defense against any potential charges.

It is very important to hire legal counsel as soon as possible to protect your rights and assist you on the complex federal criminal justice system.

The Numbers

The 2026 Takedown did not match last year’s record numbers.  But, 455 defendants, including 90 doctors and other licensed medical professionals were charged.  The coordinated enforcement involved a “whole of government” approach which included:

• Actions by the Centers for Medicare and Medicaid Services (CMS) to suspend 1,079 providers and revoke billing privileges for 1,403 providers.
• 48 Civil Monetary Payment settlements amounting to over $73 million, over 1,400 provider exclusions, and 25 actions by the U.S. Department of Health and Human Services, Office of Inspector General (“HHS-OIG”) under the Civil Monetary Penalties Law seeking more than $10 billion in payments to the Medicare Trust Fund from payments that CMS caught and suspended before the funds were paid to the fraudulent providers.
• Civil charges against 13 defendants for $14.8 million in health care fraud schemes, as well as civil settlements with 31 defendants totaling $23 million.
• 928 administrative cases by the Drug Enforcement Administration (DEA) seeking the revocation of authority to handle and/or prescribe controlled substances since October 1, 2025.

Increased “Whole of Government” approach

The government has always used multiple agencies in its efforts to combat fraud.  But the DOJ has now stated they are using “cutting-edge use of data analytics to target the worst actors”, including employing advanced data analytics through its Data Fusion Center. The DOJ is now working to ensure coordination with asset seizure, civil remedies, administrative actions, and payment-policy changes.  As a result, a single health care fraud investigation may now include parallel criminal, civil, administrative, exclusion, payment-suspension, and licensing consequences.  Conaway & Strickler, PC routinely handles licensing and regulatory issues as well as fighting False Claims Act issues at the civil and criminal level.  

Creation of the National Fraud Enforcement Division (“NFED”) 

NFED may be the clearest sign of this whole of government approach.  According to the April, 2026 DOJ memorandum, the NFED’s mission is to “zealously investigate and prosecute” fraud involving taxpayer dollars.  The 2026 Takedown appears to be NFED’s first major public health care fraud press release.

TRENDS: Healthcare Fraud in Allografts

Allografts and skin grafts cases have risen significantly from an emerging issue to front-line enforcement target.

The allograft cases are important to note because they clearly show what a healthcare investigation looks like in 2026.  The DOJ uses their data driven investigatory prowess to detect high reimbursement, aggressive marketing, alleged kickbacks, vulnerable patients, questionable medical necessity, and patient harm. In the press release for 2026, the DOJ charged 11 defendants in schemes involving allografts, and the press release described Medicare payments for allografts rising sharply before CMS adjusted payment rates.  

DOJ’s theory here is like the cancer genetic cases.  Both the allograft and CGx cases show a high payment for the claim which is an area that created an opportunity for fraud, according to the DOJ.  The 2026 Takedown shows how data analysis has moved to the forefront of their investigations. They comb through all the claims, match it with financial tracing and draw conclusions from there.

Thoughts for Health Care Companies

The 2026 Takedown reinforces that health care fraud enforcement is here to stay. As discussed above, the government investigations are becoming more coordinated, targeted and more focused on the numbers. 

It is important therefore to respond accordingly and be sure all documentation necessary is on hand before any type of inquiry occurs.  

Conaway & Strickler, PC has a deep understanding of these kinds of cases.  Sometimes, prompt disclosure and cooperation is the route to take and sometimes combatting the allegations is the route to take. We continue to monitor enforcement actions to remain aware of all of the newest developments.  Contact us for more information or for assistance.

The Whistleblower on Trial: The History and Uncertain Future of Zafirov v. Florida Medical

For over a century, the False Claims Act (FCA) has been the federal government’s most potent weapon against fraud. At its core sits the qui tam provision—a mechanism allowing private citizens (called “relators”) to sue companies on behalf of the government and pocket a portion of the recovered funds.

But a case in Florida has put the entire multi-billion-dollar whistleblower framework on trial. The case is United States ex rel. Zafirov v. Florida Medical Associates, LLC. After lower-court rulings and tense appellate arguments in December 2025, the legal and healthcare worlds are anxiously awaiting to see how the Eleventh Circuit Court of Appeals will rule.

The History of this False Claims Act suit: How We Got Here

The story began when Dr. Clarissa Zafirov, a physician in Florida, alleged that her employer and other defendants engaged in systemic Medicare fraud by misrepresenting patient conditions to pad federal reimbursements. The U.S. government chose not to intervene, leaving Dr. Zafirov to spearhead the complex litigation herself.

The defendants, however, didn’t just fight the fraud allegations; they attacked the constitutional foundation of the lawsuit. In September 2024, U.S. District Judge Kathryn Kimball Mizelle dropped a bombshell by dismissing Zafirov’s suit. She didn’t rule on whether fraud occurred. Instead, she ruled that the False Claims Act’s qui tam provisions are unconstitutional.

The Article II Battleground

Judge Mizelle’s ruling hinged on the Appointments Clause of Article II of the U.S. Constitution.
Is a Whistleblower an "Officer of the United States"? ├── YES ──> Must be appointed by the President, Courts, or Dept. Head. (FCA Fails) └── NO ──> Private citizen pursuing a claim. (FCA Succeeds)

Judge Mizelle argued that because a relator wields significant executive power—conducting civil litigation in the name of the United States to vindicate public rights—they act as an “Officer of the United States.” Because Dr. Zafirov appointed herself to this role by simply filing a complaint, her status bypassed constitutional appointment protocols. “Zafirov has determined which defendants to sue, which theories to raise, which motions to file, and which evidence to obtain… Yet no one… appointed Zafirov to the office of relator. Instead… Zafirov appointed herself. This she may not do.”
— Judge Kathryn Kimball Mizelle

While decades of judicial precedent across the country had uniformly rejected this argument, Judge Mizelle’s ruling breathed real life into a legal theory previously sparked by Supreme Court Justice Clarence Thomas in a 2023 dissenting opinion (U.S. ex rel. Polansky), where Justices Kavanaugh and Barrett also expressed interest in reviewing the issue.

The Eleventh Circuit Showdown

The Department of Justice and Dr. Zafirov promptly appealed, leading to highly anticipated oral arguments before a three-judge panel of the Eleventh Circuit on December 12, 2025.

The panel – Circuit Judges Elizabeth L. Branch, Robert J. Luck, and Senior District Judge Federico A. Moreno—focused intensely on the concept of control.

The arguments were mainly over two competing perspectives:

1. The Government’s and Relator’s Defense
The DOJ shifted its strategy slightly at oral arguments, focusing heavily on the “continuing position” prong of officer status. They argued that an “officer” must occupy a permanent, continuous government seat (like the Secretary of State). A whistleblower is a temporary, self-interested private actor whose role dissolves when the case ends. Furthermore, they argued the government retains ultimate control because it can step in and dismiss or settle the case at any time.

2. The Defense and Amici Pushback
Attorneys for Florida Medical and supporting business groups argued that when the government declines to intervene (which occurs in roughly 80% of FCA cases), the relator is entirely “in the driver’s seat.” They exercise massive, unaccountable federal authority to issue subpoenas, freeze corporate assets, and force massive settlements without answering to the President.

Prediction: How Might the 11th Circuit Rule?

Predicting appellate outcomes is tricky, but the panel’s questioning in December 2025 offered some clues. The judges did not treat the constitutionality of the FCA as a settled matter. They repeatedly pressed the DOJ on why Justice Thomas’s strict separation-of-powers logic was wrong.

The court essentially faces three paths:

1) Reverse the Dismissal (Uphold the FCA)
The court aligns with decades of historical practice and other circuits (like the Sixth Circuit’s January 2026 ruling), finding that private bounty-hunters are not public “officers.” Therefore it would remain business as usual. Whistleblower cases proceed normally in Florida, Georgia, and Alabama.

2) Affirm the Dismissal (Strike down Qui Tam)
The panel adopts Judge Mizelle’s and Justice Thomas’s strict textualist view that prosecuting public fraud is an exclusively executive function that cannot be outsourced to unappointed citizens. This would create Immediate chaos. Hundreds of pending qui tam cases in the Southeast would face dismissal, crippling a primary source of federal fraud recovery.

3) The Middle Ground (Narrow Procedural Fix)
The court rules that qui tam actions are only unconstitutional if the government completely declines to intervene, or suggests a fix where the DOJ must sign off on major litigation steps. A logistical headache for the DOJ, which would be forced to actively micromanage cases it initially wanted no part of.

The Verdict on the Horizon

Given the conservative, textualist leanings of the Eleventh Circuit panel, an affirmance (ruling the qui tam provision unconstitutional) is a highly distinct possibility. The judges seemed genuinely troubled by the lack of day-to-day executive oversight in declined whistle-blower lawsuits.

However, regardless of whether the Eleventh Circuit upholds the law or strikes it down, Zafirov is on a fast track to the ultimate destination. Because a stark circuit split is opening up between courts upholding the False Claims Act and those questioning it, this case is highly likely to end up before the U.S. Supreme Court, where the future of American whistleblower law will be decided once and for all.

Although it is not required, having an attorney assist you in physician license defense usually helps you achieve a better outcome than if you were on your own.

WHAT CAN AN ATTORNEY DO TO ASSIST?

If you have had an arrest for any crime, it is important to consult with an attorney to understand your duties to inform the Georgia Composite Medical Board. You may need to immediately self report if the arrest involved substance abuse or moral turpitude issues. How and when you communicate with the Board is crucial to your future success in maintaining your license.

In addition, when it comes time to renewal, you must answer the question about any interactions with law enforcement with a YES and attach a narrative. Again, having an attorney assist you with any and all communications with the Composite Board will help your ultimate success in maintaining your license as a physician.

WHAT IF MY LICENSE IS UNDER INVESTIGATION?

If you have been notified by the Georgia Composite Medical Board that you are under investigation, you should immediately contact an experienced health care physician license defense lawyer. We can assist you in all communications with the Board so that you don’t make any statements or submit any documents that could inadvertently hurt you. You will also need to contact your malpractice insurance carrier right away and be sure to document everything involved in what is alleged in the allegations.

WHAT IF I AM ASKED TO SURRENDER MY DEA REGISTRATION?

Has your clinic been subject to a search warrant? At the time of the execution of the search warrant, did one of the agents ask you to voluntarily surrender your DEA registration? You need to consult an attorney immediately not only because a search warrant was executed on your clinic, but, also because there are long term effects of surrendering your DEA registration. Submitting a DEA Form 104 (“Voluntary Surrender of Controlled Substances Registration”) without legal advice is not a good idea. Voluntary surrenders are also typically reported to the National Practitioner Data Bank (NPBD).

WHAT IS THE NPBD?

The National Practitioner Data Bank was created by Congress in 1986 in order to prevent practitioners with histories of misconduct or incompetence from moving state to state without disclosure. Hospitals, state boards, malpractice insurers, and federal agencies are now legally required to report certain actions. There is an online guidebook that provides details on what specific actions are reported. Most importantly, any and all adverse restrictions or surrenders of privileges and adverse state licensing actions are reported.

Contact us immediately so that we can answer all of your questions and so that we can assist you in properly defend ing your physician license defense.

It is important to secure competent legal counsel as soon as possible to argue your case successfully.

There are many defenses that can be explored to get a positive outcome in your case. For example, the first one that comes to mind is entrapment. These days law enforcement often pose as other users in chat rooms or on the dark net. They pose as someone actively seeking CSAM. You may not have ever done anything illegal but for their persuading you to so. There are legal motions we can file that may be dispositive for your case.  Remember, the government has become well versed in programs like BitTorrent, and can be on the dark net doing things illegal themselves all in their efforts to “combat crime.”

Additionally, when law enforcement comes to execute a search warrant for devices at your home or office, they must have a valid search warrant or everything they seized will be discarded and not used in the case against you. You need an experienced criminal defense lawyer to ensure law enforcement did not violate your Constitutional rights in executing the search warrant.

Sometimes, a download from a proper website can result in what is termed as an “accidental download”. We have experts ready to assist us in showing the government exactly what is and what is not on your devices and what is and what was purposely downloaded and accessed.

These are but some defenses that Conaway & Strickler, PC have successfully argued. Contact us to discuss your case in more depth. The consequences of a child pornography or CSAM (“Child Sexual Abuse Material”) conviction are severe and life-altering. And the collateral consequence of being on the sex offender registry can be devastating. We are here to help.

To understand the specifics of this case, below we have quoted directly from the Petitioner’s Brief:

This case concerns the constitutionality of geofence warrants. For cell phone users to use certain services, their cell phones must continuously transmit their exact locations to their service providers. A geofence warrant allows law enforcement to obtain, from the service provider, the identities of users who were in the vicinity of a particular location at a particular time. In this case, law enforcement obtained, and served on Google, a geofence warrant seeking anonymized location data for every device within 150 meters of the location of a bank robbery within one hour of the robbery. After Google returned an initial list, law enforcement sought— without seeking an additional warrant—information about the movements of certain devices for a longer, two-hour period, and Google complied with that request as well. Then—again without seeking an additional warrant—law enforcement requested de anonymized subscriber information for three devices. One of those devices belonged to petitioner Okello Chatrie. Based on the evidence derived from the geofence warrant, petitioner was convicted of armed robbery.

The last time the Supreme Court wrestled with cell phone privacy issues was in Carpenter v. United States, 585 U.S. 296 (2018), which is a landmark United States Supreme Court case concerning the privacy of historical cell site location information. The Court held in that case that the government violates the Fourth Amendment when accessing historical cell phone Iocation records containing the physical locations of cellphones without a search warrant. That case, however, was after a suspect was identified, making it unlike the current case before the Supreme Court.

We receive terabytes of data in discovery for our cases. Motions to suppress can be filed for all of the data seized from search warrants of phones. We are cognizant of the ever changing landscape of Fourth Amendment case law. We ensure that law enforcement follows the appropriate procedures for every single case. Contact us now if you have a case you would like to discuss.

The recent conviction involving AI-generated obscene material of women and children highlights complex legal issues arising from the intersection of technology and criminal law. The Department of Justice is saying this is the first in the nation – a conviction of violating the new Take It Down Act. This new legislation, targeting AI-generated content, opens the door to prosecution of newly-defined crimes, but also raises critical questions about evidence, intent, due process, among others. This is especially an issue with any charges alleging CSAM (Child Sex Abuse Material). Recent cases are increasingly alleging use of generative artificial intelligence (AI) to digitally alter clothed images of minors into child pornography.

Prosecutors now have the ability to pursue cases involving synthetic media that depict explicit material. The use of AI to generate highly realistic images and videos makes these cases unique, requiring forensic expertise to distinguish fabricated content from authentic imagery. The prosecution must prove that the defendant knowingly produced and distributed material deemed obscene under the law, regardless of its digital origins.

One avenue for CSAM prosecution involves demonstrating that AI-generated content was used with the intent to exploit, harass, or endanger individuals. The law may enable prosecutors to argue that even virtual representations pose real harm, especially when circulated widely. In such cases, expert testimony and digital forensics play a crucial role in examining detailed technological material.

However, the defense may challenge the scope and application of the new law, questioning whether AI-generated images constitute actual offenses under existing legal definitions of obscenity and exploitation. Furthermore, issues of free speech and artistic expression may arise, requiring careful legal navigation. It is essential for courts to weigh the balance between protecting society and safeguarding individual rights.

As technology evolves, so must legal strategies. Defense attorneys fighting for clients charged with CSAM must remain vigilant, not only in protecting the rights of the accused, but also in ensuring that prosecution under new laws is fair, evidence-based, and respectful of civil liberties. The emergence of AI-generated content cases marks a new chapter in criminal justice.

If you or a loved one is facing charges related to AI-generated content, contact the attorneys at Conaway & Strickler to discuss your legal options.