The federal False Claims Act (“FCA”)^[1] casts an incredibly long shadow, covering every transaction between the federal government and a private party seeking payment from it. Enacted at the height of the Civil War in 1863, the law was designed to keep military suppliers honest in their dealings with a government already strapped from fighting a war. Since then, the FCA has served as an almost nuclear deterrent to those who would attempt to defraud the government when requesting payment for services. In 2014, the Department of Justice managed to recover $5.69 billion under the law. False claims in federal healthcare programs accounted for $2.3 billion of that figure, which makes the FCA, as well as its interaction with other laws such as the Affordable Care Act, fraught with difficulty for unwary healthcare providers.

FCA liability accrues when a person knowingly submits a false claim to the government, causes another to submit a false claim to the government, or knowingly makes a false record or statement to get a false claim paid by the government. There is also liability under the law for those who conspire to violate it, as well as a “reverse false claims” provision that attaches liability when a person acts to avoid paying the government.

The most important element of FCA liability for a healthcare practitioner is knowledge. A false claim filed with the government is not, in and of itself, a violation of the FCA. A violation only occurs when a claimant files a claim with knowledge that it is false. Deliberate ignorance and reckless disregard for the truth or falsity of the claim are both defined in the statute as “knowledge.”^[2] While there is no requirement of actual intent to defraud the government,^[3] the FCA can attach liability to a practitioner who is negligent or careless in his or her filing practices. For Medicare- and Medicaid-enrolled practitioners who file claims with governmental entities on a daily basis, this potential liability should sound a strong warning.

_{[1] 31 U.S.C. §§3729-3733}

_{[2] 31 U.S.C. §3729(b)(1)(A)}

_{[3] 31 U.S.C. §3729(b)(1)(B)}