The American Hospital Association, the Federation of American Hospitals and the Association of American Medical Colleges have filed a friend-of-the-court brief, asking the U.S. Supreme Court to reverse an appellate court decision that expands False Claims Act liability.
Universal Health Services Inc. v. U.S. and Massachusetts ex rel. Julio Escobar and Carmen Correa focuses on the implied certification theory of False Claims Act liability. This theory essentially lowers the bar for what constitutes fraud — a change that hospitals across the nation are not going to embrace.
Under the implied certification theory, the government or a whistle-blower can allege a claim submitted by a healthcare provider is false if they can show the provider billed for services while in violation of some Medicare rule or regulation. The theory allows whistle-blowers to base their qui tam actions on statutes and regulations outside of the False Claims Act and permits cases to be brought even when payment requests contain no false information.
In its brief, the AHA argues, "FCA liability should only attach when a defendant submits a claim that it knows is ineligible for payment because some expressly designated condition for payment of that claim has not been satisfied."
With others — including the American Health Care Association and the National Center for Assisted Living — also filing friend-of-the-court briefs in the case, a high court decision holding the implied certification is valid will definitely cause a stir in the industry.
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