Mar 5

Joel Hesch files a brief before the Supreme Court supporting a whistleblower and suggesting a framework for deciding a case that threatens to ruin the government’s most important anti-fraud statute

The Supreme Court will soon decide a case filed by a whistleblower alleging massive Medicaid fraud by a health care company that used unlicensed professionals to bill the taxpayers millions of dollars for counseling services despite a clear requirement that it must use licensed professionals. The Supreme Court will decide if contractors that knowing violate program rules can still escape liability under the False Claims Act when the contract did not specifically state that compliance with a requirement is a condition of payment, notwithstanding that the government expected contractors to fulfill all contract and program requirements when they bill for the full contract amount. Based on his unique combination of experience working for the Department of Justice in the fraud section for 16 years and 9 years of representing whistleblowers claim rewards for reporting fraud against the government in combined cases recovering more than $1 billion back to taxpayers, Joel Hesch was granted approval to file an amicus brief (known as a friend of the court brief) to the Supreme Court to suggest a framework for the Court to use when ruling upon this important case.

This case is about allegations that a mental health services company billed Medicaid for providing sensitive mental health services by counselors that were not qualified or properly supervised. For example, it is alleged that staff level employees pretended to be doctors when they gave “counseling” to a 17 year old girl suffering from trauma. Even though the Medicaid regulations clearly state that the government will only pay for counseling by licensed professionals, the company argues that is it not liable under the False Claims Act because it did not “certify” that the persons were actually counselors. Unfortunately, many courts have created a judge-made rule that to be liable under the False Claims Act a company must either certify that it actually complied with a particular requirement or that the government contract itself specify that a particular program requirement that was violated amounted to a condition of payment.

As you might imagine, most government contracts do not itemize which requirements are “conditions of payment” and most invoices do not contain certifications that identify which requirements were complied with (or which were ignored). Rather, most companies simply submit invoices for the full contract value. Because most fraud cases likely will fall outside of these judge-made “certification” requirements, judges began creating exceptions to their own rule, which is referred to as the “implied certification” exception. Not all judges agree, however, on the scope of the exception, so the Supreme Court has stepped in to decide which implied certification exception should be used.

Joel Hesch filed a brief with the Supreme Court to suggest that rather than simply picking the best “implied” certification exception to use, the Supreme Court should tell lower courts to stop using the judge-made certification requirement in the first place. Hesch points out that the government’s False Claims Act (which is the government’s chief anti-fraud tool) already contains five safeguards that keep the government (and whistleblowers) from overreaching. Hesch suggests that the Supreme Court could simply confirm that the False Claims Act already requires that violation be “material.” If the law already requires that the breaches be material, there is no basis or valid reason for courts to add yet an extra judge-made “certification” requirement in the first place. According to Hesch, “The real illusion in the ‘implied certification’ theory is the fictitious certification requirement. In fact, there is no need for an implied certification because there is no actual certification requirement in the False Claims Act.” Hesch goes on to explain how and why the five safeguards already built into the law protects against the dangers that prompted lower courts to re-write the False Claims Act to add the certification rule. Therefore, Hesch suggests that the Supreme Court strike the judge-made certification requirement before is swallows up the government’s most important anti-fraud tool.

Click here to read the amicus brief by Joel Hesch.

This is the fourth time Joel Hesch received permission to file an amicus brief before the Supreme Court, which highlights his commitment to protecting the taxpayer’s funds from fraud against the government by greedy contractors who cheat Medicare, Medicaid, the military, and other government programs. Joel Hesch also represents whistleblowers file for rewards for reporting fraud against the government. Visit his website for more details about reporting fraud against the government or how to earn a reward. See

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