THE STORY SO FAR: WHAT WE KNOW ABOUT FCA LITIGATION ON THE SECOND ANNIVERSARY OF UNIVERSAL HEALTH SERVICES, INC. V. UNITED STATES EX REL. ESCOBAR

[...]Escobar requires that alleged implied certification violations be tested under a "rigorous" materiality standard that the Court set forth in its decision.2 Under Escobar, a violation of a statutory, regulatory, or contractual obligation must be material to the government's decisi...

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Bibliographic Details
Published in:The Health Lawyer 2018-06, Vol.30 (5), p.1-8
Main Authors: Douglass, David L, Rhoad, Robert T, Fischer, David T, Turetzky, Matthew W
Format: Article
Language:English
Subjects:
Breach of contract
Certification
Compliance
Disclosure
Federal court decisions
Health services
Knowledge
Liability
Materiality
Violations
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Summary:[...]Escobar requires that alleged implied certification violations be tested under a "rigorous" materiality standard that the Court set forth in its decision.2 Under Escobar, a violation of a statutory, regulatory, or contractual obligation must be material to the government's decision to pay. [...]both governments were - and are - aware of the defendants' disputed practices, aware of this action, aware of the allegations, aware of the evidence, and aware of the judgments for the relator - but neither government has ceased to pay or even threatened to stop paying the defendants for the services provided to patients throughout Florida continuously since long before this action began in 2011.36 The court's decision carefully traced the Supreme Court's analysis to hold that a defendant's misrepresentation or false omission supports liability only if "material to the other party's course of action. Consider the following: * First, claims at issue will have been paid long before litigation is commenced, often years before. [...]the material facts are set and the government or a relator will have little meaningful ability to shape (or re-shape) them. * Second, the nature of agency regulation, practice, and decision-making is characteristically (although not invariably) more flexible than civil or criminal enforcement, and agency decision-makers often have greater discretion over how to address noncompliance. [...]agency officials are generally expected and required to consider programmatic needs when deciding the appropriate response to non-conforming goods, services, or regulatory paperwork.
ISSN:0736-3443