False Claims Act: What's Happening With Statistical Sampling and Implied Certification Liability
12 PM CDT
John Martin, a former Assistant United States Attorney and now a Partner in the Litigation and Compliance Departments of Garfunkel Wild, PC, will discuss recent developments in the use of statistical sampling and implied certification liability.
The Government and Qui Tam Relators in False Claims Act cases are increasingly attempting to use statistical sampling and extrapolation to prove liability and damages in FCA cases, particularly where the sheer number of claims at issue makes litigating every one individually overwhelmingly burdensome. Courts are not unanimous on the issue of whether and when a plaintiff in an FCA case can recover without actually proving that the particular individual claims are false, but can instead meet its burden by showing some percentage of a representative sample of claims are false, and then ask the court to extrapolate that rate to the universe of unproven claims at issue. The Fourth Circuit will soon hear argument in a case in which the District Court refused to permit an FCA Relator to use statistical sampling and extrapolation. Amicus briefs were submitted to the Circuit Court by both the United States and the American Health Care Association. See U.S. ex rel. Michaels v. Agape Senior Cmty., Inc., No. CA 0:12-3466-JFA, 2015 WL 3903675, at *7 (D.S.C. June 25, 2015), order corrected, No. CA 0:12-3466-JFA, 2015 WL 4128919 (D.S.C. July 6, 2015), appeal filed, U.S. ex rel. Michaels v. Agape Senior Cmty., Inc., 15-2145 (4th Circuit, September 29, 2015). The presentation will address the current status of the law, the Agape case, and arguments for and against sampling that have been accepted by various courts.
Implied certification liability is another hot topic in False Claims Act litigation. Most allegations of false claims assert that something about the claim itself is false, e.g., the service listed was not provided, it was not provided where or when the claim form says it was, or it was not provided by the person listed on the claim form. However, another theory of false claims act liability has been gaining traction in the federal courts, the implied certification theory. This theory does not require the plaintiff to prove that the claim itself contains any false information. By submitting a claim, the plaintiff argues, the provider has “impliedly certified” compliance with all relevant rules and regulations of the program, and any violation of those rules and regulations in connection with the services provided renders the claim “legally false.” This issue has resulted in a somewhat complex Circuit split, and the Supreme Court recently heard argument in Universal Health Services Inc. v. U.S. et al. ex rel. Escobar et al., an appeal from a First Circuit case which adopted a middle ground position in the Circuit split. The presentation will address the current status of the law and the potential changes that could result from the SCOTUS decision in Escobar.
The content of this program does not meet requirements for Continuing Legal Education (CLE) accreditation.
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