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

Description

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.