False or Fraudulent Update on “False Certification” Doctrine

31 U.S.C (a) LIABILITY FOR CERTAIN ACTS.— (1) IN GENERAL.—Subject to paragraph (2), any person who— (A) knowingly presents, or causes to be presented, a false or fraudulent claim for payment or approval; (B) knowingly makes, uses, or causes to be made or used, a false record or statement material to a false or fraudulent claim Taxpayers Against Fraud Education Fund Annual Conference, September

United States ex rel. Mikes v. Strauss, 274 F 3d. 687 (2nd Cir. 2001) Taxpayers Against Fraud Education Fund Annual Conference, September

Examples of Certifications Taxpayers Against Fraud Education Fund Annual Conference, September

Medicare Conditions of Participation 42 C.F.R. § Condition of participation: Physical environment. The hospital must be constructed, arranged, and maintained to ensure the safety of the patient, and to provide facilities for diagnosis and treatment and for special hospital services appropriate to the needs of the community. (a) Standard: Buildings. The condition of the physical plant and the overall hospital environment must be developed and maintained in such a manner that the safety and well-being of patients are assured. There must be emergency power and lighting in at least the operating, recovery, intensive care, and emergency rooms, and stairwells. In all other areas not serviced by the emergency supply source, battery lamps and flashlights must be available a hospital may install alcohol-based hand rub dispensers in its facility if -- (ii) The dispensers are installed in a manner that minimizes leaks and spills that could lead to falls; 42 C.F.R. § Physical environment. 1) Bedrooms must -- (i) Accommodate no more than four residents; (ii) Measure at least 80 square feet per resident in multiple resident bedrooms, and at least 100 square feet in single resident rooms; 42 C.F.R. § Condition of participation: Organization, governance, administration of services, and partial hospitalization services. (e) Standard: Physical environment. (1) Environmental conditions. The CMHC must provide a safe, functional, sanitary, and comfortable environment for clients and staff that is conducive to the provision of services that are identified in paragraph (b) of this section. (4) Therapy sessions. The CMHC must ensure that individual or group therapy sessions are conducted in a manner that maintains client privacy and ensures client dignity. 5

Defense Federal Acquisition Regulations Taxpayers Against Fraud Education Fund Annual Conference, September CFR Display of fraud hotline poster(s). (b) Display of fraud hotline poster(s). (1) The Contractor shall display prominently in common work areas within business segments performing work in the United States under Department of Defense (DoD) contracts DoD hotline posters prepared by the DoD Office of the Inspector General. DoD hotline posters may be obtained via the Internet at (2) If the contract is funded, in whole or in part, by Department of Homeland Security (DHS) disaster relief funds, the DHS fraud hotline poster shall be displayed in addition to the DoD fraud hotline poster. 48 CFR Correspondence in English. As prescribed in (2), use the following clause: The Contractor shall ensure that all contract correspondence that is addressed to the United States Government is submitted in English or with an English translation. 6

Health Care Fraud: Kickbacks Taxpayers Against Fraud Education Fund Annual Conference, September The Medicare Anti-Kickback Statute 42 U.S.C. 1320a – 7b Affordable Care Act amends Anti-Kickback Statute 42 U.S.C. 1320a – 7b(g)&(h)

Taxpayers Against Fraud Education Fund Annual Conference, September Health Care Fraud: Quality of Care/ Worthless Services United States ex rel. Absher, et al., v. Momence Meadows Nursing Center, 2014 WL th Cir (2014)

Procurement Fraud: Defense Acquisition Taxpayers Against Fraud Education Fund Annual Conference, September United States ex rel. Badr v. Triple Canopy, Inc., 950 F. Supp. 2d. 888 (E.D. VA 2013), on appeal (No , 4 th Cir.) Oral Argument: October 30, 2014

Procurement Fraud: Organizational Conflicts of Interest Taxpayers Against Fraud Education Fund Annual Conference, September United States v. Science Applications Int’l Corp. (SAIC), 626 F.3d 1257 (D.C. Cir. 2010)

Procurement Fraud: Reporting of Employment of Veterans Taxpayers Against Fraud Education Fund Annual Conference, September United States ex rel. Kirk v. Schindler Elevator Corp., 601 F.3d 94 (2 nd Cir. 2010), reversed in part on other grounds, 131 S. Ct (2011)

Education Fraud Taxpayers Against Fraud Education Fund Annual Conference, September United States ex rel. Hendow v. University of Phoenix, 461 F.3d 1166 (9 th Cir. 2006) United States ex rel. Vigil v. Nelnet, Inc., 639 F.3d 791 (8 th Cir. 2011)

Developments in the Law Recent Decisions  US ex rel. Absher v. Momence Meadows Nursing Center (7 th Cir 2014)  US ex rel Rostholder v. Omnicare (4 th Cir. 2014) (pharmaceutical cGMPs)  US ex rel. Kester v. Novartis (SDNY 2014) (pharmaceutical kickbacks) Cases to Watch  US ex rel. Badr v. Triple Canopy, Inc. (oral argument October 30, 2014 )  US ex rel. D’Agostino v. EV3 Inc.(D. Mass) (defective devices) Taxpayers Against Fraud Education Fund Annual Conference, September

Summary  False Certification – Judicial Construct; Circuit Law Differs  May not be an issue if cases alleges that services or goods not delivered as required by statute, regulation or contract (“factual falsity”)  May arise where Courts deciding whether alleged non- compliance triggers material condition of payment  Material to Payment: Capable of Influencing Government Decision to Pay  Materiality and Scienter Inquiries Taxpayers Against Fraud Education Fund Annual Conference, September