A provider's certification of compliance with Medicare statutes and regulations as stated in an annual cost report does not render all claims submitted for reimbursement by that provider false under the False Claims Act (FCA) if that statement is not true.
A physician employed by the provider alleged that the certification of compliance submitted by the provider for services rendered was false because the provider was not in compliance with numerous conditions of participation. The certification of compliance statement within the annual cost report, however, does not condition Medicare payment on perfect compliance with any particular law or regulation.
Liability under the FCA does not occur because a false statement is included within a claim, but rather the claim itself must be false or fraudulent. Under 42 C.F.R. Part 488, providers must undergo inspections and accreditation to remain in compliance within the Medicare program. There are various methods in place to assure compliance with those conditions of participation (COPs).
A provider is not making a false claim when it certifies it is in compliance with all the conditions of participation, even when the provider is not in compliance with all COPs. An actual false claim for payment must be submitted for there to be a false claim. A broader interpretation of a certification of compliance statement would undermine the administrative scheme in place for ensuring that providers remain in compliance. On appeal to the Fourth Circuit of Illinois found that Provena failed to prove it was a charitable institution as defined in the state statute and it did not meet the test under section 6 of article IX of the Illinois Constitution that the property be used exclusively for charitable purposes.
U.S. ex rel. Conner v. Salina Regional Health Center, Inc., 10th Cir., Oct. 2, 2008, Health Care Compliance Reporter ¶800,566
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