Supreme Court Upholds the False Claims Act Implied Certification Theory

By: Stephen Siegel

The following article was published in the July 2016 edition of South Florida Hospital News and Healthcare Report.

TREBLE DAMAGES PLUS A PENALTY of as much as $11,000 per claim; that is the exposure a physician, hospital or other healthcare provider may face for violating the federal False Claims Act (“FCA”). One of the issues that is important in any allegation that the statute has been violated is determining that a claimant knowingly submitted “false” or “fraudulent” information. Every claim and cost report (as well as many other forms) that is submitted to the Medicare or Medicaid program includes a statement wherein the submitter attests to the truth of the information contained thereon.

In many instances falsity is fairly easy to determine; for example, whether services were performed as billed. However, in some instances it is not so clear; for example, when a service is rendered and accurately billed, but provided by someone who is not appropriately licensed. While the information on the claim is accurate, under the circumstances is this a false statement? The government and many Whistleblowers have argued that the FCA encompasses this second type of billing under the theory of “implied false certification”; that is, in signing the attestation a claimant is certifying that not only is the information on the claim (or cost report) accurate, but all of the underlying legal/regulatory conditions necessary to provide those services and submit that claim have been satisfied.

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