Supreme Court Passes on Opportunity to Clarify False Claims Act's Implied False Certification Theory of Liability

The blog Health Law & Policy Matters ("Health Policy") reports that the Supreme Court recently turned down a chance to clarify and define the contours of how and when a claimant seeking payment from the government may be subject to False Claims Act liability for an "implied false certification"  “Implied false certification,"  the blog explained, "generally means that a claim for payment to the government (i.e. to Medicare, Medicaid, or CHIP) is legally false if that party had, and failed to meet, an ongoing obligation to comply with an underlying law — regardless of whether that party submitted a claim that was false on its face or expressly certified compliance with that law when it submitted the claim."  Health Policy previously highlighted two petitions for certiorari filed this fall that sought to bring this matter to the Supreme Court:  Amgen Inc. et al., v. State of New York et al. and  Blackstone Medical Inc., v. U.S. ex rel. Hutcheson, No. 11-269.  Health Policy reports, however, that the Supreme Court recently denied certiorari in Hutcheson and that the Court will likely not hear Amgen since the company informed the Court that it had settled the False Claims Act claims

False Claims Act liability based on an implied false certification can be quite broadly applied, and the circuit courts, as the blog False Claims Alert noted, have not applied a consistent test for implied false certification liability.  We recently discussed United States ex rel. Wilkins v. United Health Group, Inc.,  659 F.3d 295 (3^rd Cir. 2011) and the Third Circuit's adoption of the implied certification theory of  liability.  In Wilkins, the Third Circuit found the False Claims Act was not a “blunt instrument” to enforce compliance with all regulations, just those “regulations that are a precondition to payment.”  In that case, as in other circuits, the Court found that the claimant's violation of the Anti-Kickback Act legally tainted its claims for payments, regardless of whether the services billed were actually rendered. See e.g., McNutt ex rel. United States v. Haleyville Medical Supplies, Inc., 423 F.3d 1256, 1259 (11th Cir. 2005).