WHAT IS THE FALSE CLAIMS ACT - 31 USC 3729 - 3733? 

CIVIL FCA 

The False Claims Act (FCA) protects the federal government for false claims made for payment to Medicare or Medicaid. A claim that is illegal under the AKS or Stark laws may also violate the False Claims Act. The penalties differ and an FCA violation can result in fines up to three times the programs' loss plus $11,000 per claim filed. 

The “per claim” FCA penalty is huge because every single each instance of billing is subject to the separate $ 11,000 fine.  So, each and every item sold or service provided and billed is a claim.  

Mental state or intent is a major battleground in FCA cases. No deliberate fraud is required. It is not a criminal statute so the standard of proof is lower than for a crime. The False Claims Act does require that a person acting knowingly. 

The FCA defines "knowing" as having actual knowledge of the fraud or misstatement. But it does not stop there. It also includes where there is no actual knowledge and no specific intent. A person (or corporation) is in violation of the FAC when the person/entity acted with deliberate ignorance or reckless disregard of the truth or falsity of the information.  No deliberate fraud is required!

Third party whistleblowers can use the FCA as a profit engine. The statute allows private individuals to file a lawsuit on behalf of the United States. That whistleblower gets a percentage of any recoveries. People who are wrongfully terminated or have a business dispute will often look at the FCA as a tool against their opponents.

CRIMINAL FCA

There also is a criminal FCA (18 U.S.C. § 287). Criminal penalties for submitting false claims include imprisonment and criminal fines.  

Like the civil False Claims Act, specific intent to defraud is not required for a conviction. Specific intent is the knowledge that you are violating the law and choosing to do it. Willfulness should in our opinion, be required for any criminal conviction.

The United Stated Courts of Appeals for the Tenth, Fifth and Second Circuits have held that willfulness is not an essential element of Section 287, while the Ninth, Eighth and Fourth Circuits appear to indicate that willfulness is an essential element of Section 287.