DETROIT – Congress passed and President Obama signed the Fraud Enforcement and Recovery Act of 2009. There is a section on the False Claims Act eliminating the requirement that a false claim must be presented to a federal official or that it involves direct federal funds to bring a FCA action. This is an important change because if overpayments are retained then that could give rise to a False Claim.
A change in Compliance Plans is likely indicated to address overpayments. The legislation says the “knowing” retention of an overpayment is a violation of the FCA. The implication is clearly a process is needed to address identification of overpayments.
The new law also removes the intent element ie. intent to defraud. The liability will depend on whether a false record or statement was “material” to getting a false claim paid. The “materiality” provision means “having a natural tendency to influence, or be capable of influencing, the payment or receipt of money or property…”
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