The Criminal False Claims Act (FCA) provides that the U.S. government can take civil action to recover civil penalties and damages for false claims and payments. A basic definition of the FCA is that it is a crime for anyone to submit a false claim to the government, or to cause someone else to submit a false claim to the government, either to get money from the government or to avoid having to pay money to the government.
The “qui tam” provisions of the FCA allow anyone with evidence of fraud against government contracts or programs to bring legal action against the wrongdoer on the U.S. government’s behalf. When a qui tam action has been filed, the government has the right to join in the suit as a party (this is called “intervening”). Sometimes, the government decides not to intervene; in those situations, the person or entity who brought the claim forward initially can still decide to pursue it alone.
Note that although the qui tam provisions allow anyone with evidence to file suit, if someone else has already filed a qui tam action on the same evidence, you will be barred from bringing a lawsuit.
What Are the Elements of the FCA?
The elements of the FCA are fairly straightforward. In order for the government to prove a violation of the act, evidence must show that:
- The defendant made, presented, or caused to be presented, a false claim to the government for payment or approval; or
- The defendant made, presented, or caused to be presented, a false document, statement or another record to facilitate the payment of a false claim; or
- The defendant conspired with others in getting the government to make payment on such a false claim or statement; and
- The defendant knew that the claim or document was false or fraudulent; or
- The defendant knowingly submitted the false or fraudulent claim or document knowing it was wrong or acted with reckless disregard of the claim’s truth or falsity.
It is important to note that FCA violations are often found to have occurred even if the government did not suffer any financial loss. If you are considering filing a False Claims Act suit, the best way to determine whether you’ve got a valid case to pursue is to talk with an experience attorney.
Examples of some of the more common FCA claims include:
- Contract violations: These come up frequently in the areas of defense contract work and construction. This type of fraud can happen when work is a company bills for work that never occurred. Or, a company uses substandard materials – especially if they are substituted for specified materials. Or, a company receives a contract kickback.
- Healthcare fraud: Fraud in Medicare, Medicaid, and other federal healthcare programs are generally proven relatively easily when an FCA violation is alleged. A few examples of cases that fall under this umbrella include a provider that charges for services that were never provided, charging for more expensive services than what were provided, providing substandard care, kickbacks, and off-label prescription drug marketing.
What Constitutes “Knowing” Under the FCA?
Anyone can be held liable in an FCA action for submitting, or causing to be submitted, a false or fraudulent claim, or a document or statement supporting a false or fraudulent claim as long as it is shown they had either actual knowledge that the claim, document or statement was false or fraudulent; or in deliberate ignorance of the claim’s, document’s or statement’s truth or falsity.
The FCA offers three different definitions of “knowing,” as follows:
- Actual knowledge
- Acting in deliberate ignorance (looking the other way)
- Acting in reckless disregard
The first definition is straightforward. However, the second and third are open to some interpretation by the courts based on the evidence of the case. Again, it’s best to have an experienced FCA attorney review your case. This will ensure you’re on the right track before you move forward.
What Damages and Penalties Do Violations of the FCA Carry?
The FCA carries steep penalties for violations, including an award of three times the amount of its loss, plus penalties of $5,500 – $11,000 per false claim/false document used. There’s a provision that says someone who self-reports under certain conditions may be liable for a lesser amount; however, in no case less than double the amount of the government’s loss.
To learn more about whistleblower defense and the criminal False Claims Act, call 770.643.1606 today.
