Defrauding the government of taxpayer dollars has gotten tougher over the past five months.
Important changes to the nation’s primary anti-fraud statute, the False Claims Act, took effect on May 20, 2009, when the Fraud Enforcement and Recovery Act of 2009 became law.
Among the most significant changes, Congress clarified and corrected the False Claims Act by legislatively overruling certain court decisions that sought to limit the scope of the Act, including Allison Engine Co. v. United States ex rel. Sanders, 128 S. Ct. 2123 (2008); United States ex rel. Totten v. Bombardier Corp., 380 F.3d 488 (D.C. Cir. 2004), cert. denied, 544 U.S. 1032 (2005); and United States ex rel. DRC, Inc. v. Custer Battles, LLC, 376 F. Supp. 2d 617 (E.D. Va. 2005), rev’d, 562 F.3d 295 (4th Cir. 2009).
These important 2009 changes to the False Claims Act include the following:
1. The amendments expand the definition of “claim,” and fraud directed against government contractors, grantees and other recipients is now plainly covered by the law.
2. Funds administered by the United States government (such as in Iraq) are now protected.
3. Retaining overpayments of money from the government is now an explicit basis of liability, which will be a source of concern for health care providers, among others.
4. Liability for “conspiracy” to violate the Act is broader than before.
5. Protection of whistleblowers and others against “retaliation” now extends not only to “employees,” but also to “contractors” and “agents”; and persons other than “employers” potentially may be liable for retaliation.
6. In investigating, the government now has authority to use “Civil Investigative Demands” more broadly, and to share information more with state and local authorities and with whistleblowers/relators.
7. A standard definition of what is “material” now applies in False Claims Act cases.
8. The statute of limitations has been clarified to allow the government to assert its own claims, after the whistleblower (or “relator”) has filed a qui tam case under the False Claims Act.
Click here for a detailed discussion of the False Claims Act and the wave of new State False Claims Acts.
The amended False Claims Act is reprinted below, in its entirety: