June 21, 2016
The Supreme Court of the United States in Universal Health Services, Inc. v. Escobar et al., weighed in on and embraced the implied certification theory of liability within the False Claims Act (FCA).   

Under the implied certification theory, a party can be held liable for the mere submission of a claim where the claim results from or is tied to the violation of a law, regulation or even a government contract. The rationale underlying this theory is that, upon submission of a claim seeking reimbursement from federal funds, the submitter is impliedly certifying that the claim does not result from the violation of any applicable law or regulation. Critics of this theory argue that it unduly expands the scope of the FCA by rendering it an enforcement tool for the violation of separately enacted laws and regulations.

It is likely that the Government and qui tam relator’s bar will call this decision a “win.” But the real impact of the decision is more subtle.

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