Amicus briefs urge Supreme Court to uphold broad false claims approach

Twenty-three states, the AARP and one senator were among the groups that filed amicus briefs to the Supreme Court that argue in favor of making the "implied certification" theory a viable avenue for False Claims Act (FCA) liability, according to SCOTUS blog.

Oral arguments for the case have been scheduled for April 19. The Supreme Court will determine whether a payment can be considered false if payment conditions are not expressly stated. The case revolves around mental health claims that were said to be fraudulent because the provider employed unlicensed counselors.

Twenty-two states filed an amicus brief arguing that the implied certification theory should not be broadly restricted since some states have enacted their own false claims laws and exposed fraudulent providers under the various implied certification theories. The Commonwealth of Massachusetts filed its own separate brief, arguing that MassHealth explicitly requires facilities to employ board-certified psychiatrists as part of its payment conditions.

Other organizations, such as the Taxpayers Against Fraud Education Fund, argued that "implied certification simply reflects the basic principle that a contractor violates the FCA when it submits a claim while knowingly concealing facts material to payment," and that the current law makes it clear that "claims are not reimbursable without compliance."

Sen. Charles E. Grassley (R-Iowa), a strong proponent of healthcare fraud enforcement, wrote that the FCA was broadly written "to make it equal to the task of reining in the increasingly resourceful and ever-changing ways in which swindlers attempt to cheat the government."

In February, more than a dozen organizations submitted amicus briefs calling for the Supreme Court to rule against implied certification, including two major provider organizations that contended implied certification lowers the bar for fraud. Payers and attorneys will be closely watching the proceedings that could have a major impact on fraud enforcement.

To learn more:
- here are all the amicus briefs