False Claims Act

Question 1

False Claims Act (FCA)

Answer 1

Liability for knowingly presenting or causing presentation of false or fraudulent claim for payment or approval to government

Question 2

Penalties for violating the FCA

Answer 2

Civil penalties (adjusted yearly) plus 3 times (treble) the amount of total damages (that the government suffered).

Question 3

60-Day Rule

Answer 3

-Claimants must return overpayments by 60 days after date they are identified

-But get 6 months to investigate questionable claims & determine amount before 60 days triggered

-So, in reality, you get 8 months to resolve the matter

Question 4

Quit tam actions are:

Answer 4

Brought by private individual whistleblowers to enforce the FCA

-Qui tam relator (“relating” a false claim) must notify govt & govt can intervene.

Question 5

The statute of limitations for FCA cases is:

Answer 5

10 years

Question 6

Do you need objective falsity or just expert’s subjective clinical opinion?

Answer 6

11th circuit: Must prove objective falsehood of claims

Example: It’s not enough to have a medical expert that says “it isn’t medically necessary”. Need objective falsehood that Dr. did not engage in due diligence to determine if the treatment was necessary.

Question 7

Implied false certification:

Answer 7

When you submit a claim, you are implying that it’s a valid claim and that you have complied with all legal requirements, like the treatment was provided by licensed professionals who are allowed to provide this treatment. And that you have complied with whatever terms there are in the law or the contract.

Question 8

Materiality factors (Escobar materiality test):

Answer 8

1. Did D know govt refuses to pay if noncompliant?
2. Does govt routinely pay despite knowledge of noncompliance?
3. Does violation go to essence of bargain? (for instance, selling guns to someone with the understanding that the guns are going to work, but the guns are broken).

NOTE: materiality question arises only when D made a false statement important to claim. E.g. “service provided by bd-certified dr.” (but the “board certified doctor” is actually a secretary with no certification)

Question 9

Recovery Audit Contractors - FCA enforcement

Answer 9

private entities that k w/ fed govt
-Paid by contingency fee - % of recovery. Providers can appeal RAC findings.

Question 10

Corporate integrity Agreements - FCA enforcement

Answer 10

Negotiated settlements with OIG to avoid exclusion f/ Medicare & Medicaid