Limitations on the use of the False Claims Act to enforce quality of care standards.

The False Claims Act (FCA) is established as the federal government's prosecutorial weapon of choice in combating fraud and abuse in healthcare today. The FCA's substantial penalties present potential defendants with daunting risks should they elect to put the government's case to the test at trial. The government and relators have sought to extend the contours of the FCA's coverage beyond actions involving "factually false" claims to pursue cases involving alleged violations of other laws that give rise to "legally false" claims. This article considers the viability of the legal bases upon which the FCA may be used in this regard, with specific attention to the appropriateness of implied and express false certification liability theories to punish violations of the Medicare Conditions of Participation. It is the thesis of this article that on both sound legal and policy grounds, the FCA is not an appropriate tool for punishing the failure to provide quality care, unless the quality of care provided is so substandard as to result in a factually false claim (e.g., the services billed were not actually rendered).