6. Whistleblower/False Claims Act Basic Elements

The False Claims Act imposes liability for knowingly making a claim for or retaining federal funds to which the claimant is not entitled.

To have a claim under the FCA you must have the following:

The affirmative action required to find a violation of the FCA includes:

• knowingly presenting or causing to be presented a false or fraudulent claim for payment
• knowingly making or causing to be made a false statement material to a false or fraudulent claim
• conspiracy to commit a violation of the act
• knowingly making or causing to be made a false statement material to an obligation to pay money to the U.S. or knowingly concealing or knowingly and improperly avoiding or decreasing an obligation to pay the U.S.

“Claim” means any request or demand, whether under a contract or otherwise, for money or property and whether or not the U.S. has title to the money, that:

I. is presented to the U.S.; or
ii. is made to a contractor, grantee, or other recipient if money is to be spent on behalf of the U.S. or to advance a Government program or interest, and the U.S.

(I) provides any portion of the money; or
(II) will reimburse for it.

This definition also includes claims made to someone using federal government salary or income subsidy to pay claim; and claims, statements, records, etc. submitted under Internal Revenue Code.

“Falsity” means:

• knowingly presenting or causing to be presented a false or fraudulent claim for payment
• knowingly making or causing to be made a false statement material to a false or fraudulent claim
• knowingly making or causing to be made a false statement material to an obligation to pay money to the U.S. or knowingly concealing or knowingly and improperly avoiding or decreasing an obligation to pay the U.S.

Falsity may be both factual or legal, as well as express or implicit. In addition, as per 42 U.S.C. §1320a-7b (g), a claim that is in a violation of the Anti-Kickback Statute also constitutes a false or fraudulent claim for purposes of the FCA.

“Scienter” means:

• Actual knowledge that the claim was false;
• Reckless disregard as to the truth or falsity of the claim; or
• Deliberate ignorance.

To have a claim under the FCA, proof of intent to defraud is not necessary.