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FCA and Statute of Limitations: A Puzzle for the Supreme Court
The False Claims Act (FCA), 31 U.S.C. §3729 et seq., which is more than 150 years old, was originally intended to protect the federal government from fraud perpetrated by war profiteers. Over the years, its scope has expanded to any recipient of federal dollars, especially health care companies. Since 1986, the federal government's recoveries have exceeded $59 billion in FCA settlements and judgments. DOJ, Fraud Statistics – Overview, at 1 (http://bit.ly/2GlIAvp). In 2018 alone, the total recovery was over $2.8 billion, most of which was health-care related. DOJ, Fraud Statistics – Overview, at 1, 3.
As the FCA's use increased over time, Congress strengthened and amended its provisions to add treble damages, increase the civil money penalties, and remove an intent requirement, thereby extending liability to subcontractors. See, Allison Engine Co. v. United States ex rel. Sanders, 553 U.S. 662 (2008) (establishing the intent requirement that Congress later removed). The Supreme Court also broadened the FCA's scope, condoning "implied false certification," Universal Health Servs. v. United States ex rel. Escobar, 136 S. Ct. 1989, 1995-96 (2016), as well as resurrecting the need for "materiality" of any fraud for a FCA claim to succeed. Id. at 2002-04.
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