Implied Certification Liability Under the FCA: Guidance for Healthcare Counsel to Navigate the Circuit Split

Minimizing the Likelihood of Penalties, Cost of Litigation and Damages; Ensuring Regulatory or Contractual Compliance

Recording of a 90-minute CLE webinar with Q&A

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Conducted on Thursday, February 4, 2016

Recorded event now available

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Course Materials

This CLE course will provide guidance to healthcare counsel on the implied certification doctrine. The panel will explore how the courts are applying the doctrine and the circuit split and the impact that has on litigation strategy. The panel will also discuss best practices for ensuring compliance to minimize the risk of litigation.


It is increasingly rare for FCA plaintiffs (whether the government or a relator suing on the government’s behalf) to bring what some consider to be a “classic” FCA case—one in which a relator alleges that the defendant billed for a good or service that simply was not provided. Many FCA cases are now premised, at least in part and often entirely, on the theory that in providing a good or service, such as medical care, the defendant violated a regulation, statute or contractual provision. This results in FCA liability because, so the theory goes, the defendant implicitly certified compliance with the regulation, statute or contractual provision when submitting a claim for reimbursement to the government.

One of the challenges for healthcare providers facing FCA allegations based on the theory of implied certification is the different treatment being delivered by the courts. For example, several federal circuit courts of appeal limit the application of the theory to situations in which the regulation, statute or contractual provision is an express prerequisite to payment, and one circuit has stated that it rejects the implied certification theory. Other circuits readily apply the theory, and interpret it relatively broadly. This variance among the circuits puts providers who receive Medicare, Medicaid, etc., in an increasingly uncertain position with respect to potential FCA exposure.

Providers and their counsel need to understand the different approaches taken by the federal courts of appeal and the district courts on the implied certification theory, and they need to have compliance and litigation strategies in place that take into account the fact that outcomes in these cases can vary significantly depending on where they are filed. This is particularly important given that FCA liability comes with mandatory multiple damages and statutory penalties.

Listen as our authoritative panel reviews the implied certification doctrine and explores how the courts are applying the doctrine and the circuit split. The panel will offer practical guidance for companies facing FCA lawsuits based on the implied certification theory. The panel will also discuss best practices for minimizing, to the extent possible, the risk of potential exposure to costly implied certification litigation under the FCA.



  1. Implied certification doctrine
    1. Trends in the use of the doctrine
    2. Court treatment—circuit split
  2. Practical guidance for companies facing suits based on implied false certification theory
    1. Motion practice
    2. Discovery
    3. Settlement considerations
  3. Best practices for compliance


The panel will review these and other key issues:

  • What are the trends in the use of the implied certification doctrine and how are the courts treating the issue?
  • How are motion practice and the potential for underlying liability impacted depending on where litigation is filed?
  • What best practices can counsel employ to ensure compliance and minimize the risk of litigation?


Adam S. Lurie
Adam S. Lurie

Cadwalader Wickersham & Taft

Mr. Lurie is a trial lawyer and corporate counselor who serves as lead counsel for clients in civil, criminal, and...  |  Read More

Laura McLane
Laura McLane

McDermott Will & Emery

Ms. McLane represents national and international health care providers and other companies in government investigations...  |  Read More

Anne M. Tompkins
Anne M. Tompkins

Cadwalader, Wickersham & Taft

Ms. Tomkins' practice focuses on representing companies and financial institutions, as well as their officers...  |  Read More

Emma R. Cecil
Emma R. Cecil


Ms. Cecil focuses her practice on defending individuals in a range of white collar matters and representing health care...  |  Read More

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