False or Fraudulent
Update on “False
Certification” Doctrine
2
31 U.S.C. 3729
(a)
LIABILITY FOR CERTAIN ACTS.—
(1)
IN GENERAL.—Subject to paragraph (2), any person who—
(A)
knowingly presents, or causes to be presented, a false or
fraudulent claim for payment or approval;
(B)
knowingly makes, uses, or causes to be made or used, a false
record or statement material to a false or fraudulent claim
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United States ex rel. Mikes v. Strauss, 274 F 3d. 687 (2nd Cir. 2001)
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Examples of Certifications
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Medicare Conditions of Participation
42 C.F.R. § 482.41 Condition of participation: Physical environment.
The hospital must be constructed, arranged, and maintained to
ensure the safety of the patient, and to provide facilities for
diagnosis and treatment and for special hospital services
appropriate to the needs of the community.
(a) Standard: Buildings. The condition of the physical plant and the
overall hospital environment must be developed and maintained
in such a manner that the safety and well-being of patients are
assured.
There must be emergency power and lighting in at least the
operating, recovery, intensive care, and emergency rooms, and
stairwells. In all other areas not serviced by the emergency supply
source, battery lamps and flashlights must be available. . . . .
....
a hospital may install alcohol-based hand rub dispensers in its
facility if -(ii) The dispensers are installed in a manner that minimizes leaks
and spills that could lead to falls;
42 C.F.R. § 483.70 Physical environment.
1) Bedrooms must -(i) Accommodate no more than four residents;
(ii) Measure at least 80 square feet per resident in multiple
resident bedrooms, and at least 100 square feet in single
resident rooms;
42 C.F.R. § 485.918 Condition of participation:
Organization, governance, administration of
services, and partial hospitalization services.
(e) Standard: Physical environment. (1)
Environmental conditions. The CMHC must
provide a safe, functional, sanitary, and
comfortable environment for clients and staff that
is conducive to the provision of services that are
identified in paragraph (b) of this section.
(4) Therapy sessions. The CMHC must ensure that
individual or group therapy sessions are
conducted in a manner that maintains client
privacy
and ensures
client
dignity.
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Fraud
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Defense Federal Acquisition Regulations
48 CFR 252.203-7004
252.203-7004 Display of fraud hotline poster(s).
(b) Display of fraud hotline poster(s).
(1) The Contractor shall display prominently in common
work areas within business segments performing work in
the United States under Department of Defense (DoD)
contracts DoD hotline posters prepared by the DoD
Office of the Inspector General. DoD hotline posters
may be obtained via the Internet at
http://www.dodig.mil/HOTLINE/hotline]posters.htm.
48 CFR 252.225-7041
252.225-7041 Correspondence in English.
As prescribed in 225.1103(2), use the following
clause:
The Contractor shall ensure that all contract
correspondence that is addressed to the
United States Government is submitted in
English or with an English translation.
(2) If the contract is funded, in whole or in part, by
Department of Homeland Security (DHS) disaster relief
funds, the DHS fraud hotline poster shall be displayed in
addition to the DoD fraud hotline poster.
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Health Care Fraud: Kickbacks
• The Medicare Anti-Kickback Statute
42 U.S.C. 1320a – 7b
• Affordable Care Act amends
Anti-Kickback Statute
42 U.S.C. 1320a – 7b(g)&(h)
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Health Care Fraud:
Quality of Care/ Worthless Services
United States ex rel. Absher, et al., v. Momence Meadows Nursing Center,
2014 WL 4092258
7th Cir (2014)
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Procurement Fraud:
Defense Acquisition
United States ex rel. Badr v. Triple Canopy, Inc., 950 F. Supp. 2d. 888 (E.D. VA 2013),
on appeal (No. 13-2191, 4th Cir.)
Oral Argument: October 30, 2014
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Procurement Fraud:
Organizational Conflicts of Interest
United States v. Science Applications Int’l
Corp. (SAIC), 626 F.3d 1257 (D.C. Cir. 2010)
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Procurement Fraud:
Reporting of Employment of Veterans
United States ex rel. Kirk v. Schindler Elevator
Corp., 601 F.3d 94 (2nd Cir. 2010), reversed in part
on other grounds, 131 S. Ct. 1885 (2011)
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Education Fraud
• United States ex rel. Hendow v. University
of Phoenix, 461 F.3d 1166 (9th Cir. 2006)
• United States ex rel. Vigil v. Nelnet, Inc.,
639 F.3d 791 (8th Cir. 2011)
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Developments in the Law
Recent Decisions

US ex rel. Absher v. Momence
Meadows Nursing Center (7th Cir
2014)

US ex rel Rostholder v. Omnicare
(4th Cir. 2014) (pharmaceutical
cGMPs)

US ex rel. Kester v. Novartis (SDNY
2014) (pharmaceutical kickbacks)
Cases to Watch

US ex rel. Badr v. Triple
Canopy, Inc. (oral argument
October 30, 2014 )

US ex rel. D’Agostino v. EV3
Inc.(D. Mass) (defective
devices)
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Summary
 False
Certification – Judicial Construct; Circuit Law Differs
 May not be an issue if cases alleges that services or
goods not delivered as required by statute, regulation or
contract (“factual falsity”)
 May arise where Courts deciding whether alleged noncompliance triggers material condition of payment
 Material to Payment: Capable of Influencing
Government Decision to Pay
 Materiality and Scienter Inquiries
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