The healthcare industry is exposed to False Claims Act liability more so than other industries because of the federal government’s unique role as both a regulator and payor. Universal Health Services, Inc. v. United States ex rel. Escobar is a game changing decision for those in the healthcare industry because it makes violations of certain regulations potential bases for liability under the False Claims Act. Indeed, Escobar itself was a case about a facility that allegedly violated Massachusetts Medicaid regulations requiring mental health facility staff to have certain qualifications. Since Escobar, we have seen numerous cases brought against healthcare entities based on an implied certification theory. Although it seems that Relators and the Government continue to push the boundaries to find new avenues to liability, the decisions are uniformly enforcing what the Supreme Court described as a “rigorous” materiality requirement. This materiality requirement is governed by several principles described in the Escobar decision. Earlier this summer, to mark the one-year anniversary of the Escobar decision, our team prepared a handy desk reference describing those principles, which we would encourage you to download by clicking here.
