Higher Education: An Appropriate Realm to Impose False Claims Act Liability Under the Post-Formation Implied False Certification Theory

Abstract

Confederate batteries opened up on Fort Sumter in April of 1861, inaugurating the bloodiest conflict in American history. President Abraham Lincoln’s war effort, nursing wounds from defeats at Fredericksburg in 1862 and Chancellorsville in 1863, sorely needed more men and supplies. Propaganda campaigns and conscription efforts filled gaps in the depleted ranks of Lincoln’s army, helping it swell into the largest mobilization of troops in the world. Reliable supplies were, however, harder to come by; while Union soldiers fell to Confederate bullets and bayonets on the battlefield, army commissaries and quartermasters fell victims to fraud. A lack of meaningful government oversight had created an environment rife with profiteering. During the first years of the war, the government unwittingly purchased 1,000 horses so sick with every known equine disease that they were entirely useless; in another instance, the government paid a contractor for 411 horses of which only 76 were found fit for service (with the remainder being either blind, undersized, ringboned, or dead upon arrival). The government also bought artillery shells filled with sawdust rather than gunpowder, flimsy shoes that lasted for only twenty days, “rotten” blankets, “worthless” overcoats, and “muskets not [even] worth shooting.” To stop these abuses, Congress appointed a special committee, called the Select Committee on Government Contracts, to investigate the extent of the fraudulent contracting; the committee solicited testimony from military personnel, experts, and others that highlighted the disturbing magnitude of the problem. In response, the Union government promulgated the False Claims Act (“FCA”) in March of 1863. Following the conclusion of the war, and the rapid decline of government contracting needs, the FCA was left to gather dust in a forgotten corner of federal law until the late twentieth century. In the 1980s, the FCA surged back to prominence to address abuses in the defense contracting industry and, once again, it became the government’s weapon of choice to combat fraud.

Since its Civil War origins, the FCA has undergone substantial changes. Congress, in recognition of the FCA’s increasing importance with the growth of the modern regulatory state, expanded the purview of the FCA in both 1986 and 2009, much to the chagrin of government contractors. The 2009 amendment, in particular, was a clear demonstration of congressional intent to expand the scope of the FCA by overriding federal judicial precedent that attempted to limit it. Congress’s goal in amending the FCA, thus, was not just to “enact a broad remedial statute” but rather to “preserve the traditional boundaries of fraud,” as well.

The FCA operates as a powerful tool to combat fraud that, otherwise left unchecked, might imperil the federal government’s finances. The FCA allows either the Attorney General or a qui tam whistleblower (known in the FCA context as a relator) to bring an action on behalf of the United States against persons or entities committing certain types of fraud against the government. The FCA, codified at 31 U.S.C. § 3729, holds that any individual who “knowingly” presents or knowingly conspires to “present[], or cause[] to be presented, a false or fraudulent claim for payment or approval” or “makes, uses, or causes to be made or used, a false record or statement material to a false . . . claim” is liable under the FCA, which imposes damages up to $11,000 per violation in addition to treble the amount of the government’s damages. This can result in cases where the damages could total a staggering $2 billion. The FCA, as a tool of fraud deterrence and of compliance enforcement, has had the most significant effect on the healthcare industry. By way of illustration, between 1986 and 2009, two-thirds of the $22 billion recovered by the federal government ($14.3 billion) came from recoveries in the healthcare industry. Since 2009, however, differing interpretations of the Fraud Enforcement and Recovery Act (“FERA”), the passage of the Patient Protection and Affordable Care Act (“ACA”), and the Supreme Court’s unanimous decision in Universal Health Services, Inc. v. United States ex rel. Escobar have all expanded the scope of the FCA, leading new industries to find themselves increasingly in the crosshairs of expanded procedural theories of liability.

At an operative level, the FCA posits that both “factually false” and “legally false” claims are actionable; “factually false” claims include goods or services either incorrectly described or not provided at all, and “legally false” claims are false based on statements, promises, or other certifications of compliance. While various circuits have held that the FCA reaches factually false conduct, legal falsity (with the Supreme Court’s recent endorsement) could gain traction as an equally important theory for prosecuting fraud. This expanded theory of liability may continue to evolve as the industries that the FCA regulates continue to evolve, as well. One such industry falling under this broad purview is higher education.

This Note will address whether or not educational institutions in the for-profit sector should be held liable under the FCA for entering into a Program Participant Agreement (“PPA”) with the government, in good faith, only to thereafter commit fraud. This Note contends that the modern higher education environment provides an appropriate context in which courts may permissibly disregard any distinction between conditions of participation and conditions of payment for purposes of imposing FCA liability. It further posits that the Supreme Court’s Escobar decision, though an important landmark toward a broader enforcement tool, did not go far enough to deter fraud in higher education. Part I will describe the background of the FCA, the rationale for the development of the “legally false” theory of liability, and the differences between the express and implied types of certification. It will also discuss judicial interpretation of legal falsity, with emphasis on the Supreme Court’s decision in Escobar. Part II will address conditions of participation and conditions of payment and why the difference may remain significant in the fraud context. Part III will explain the structure of for-profit educational institutions, their role as government contractors, and the nature of the circuit split regarding the receipt of Higher Education Act (“HEA”) Title IV funds and FCA liability. Part IV will discuss policy implications of this “implied certification of post-formation performance” theory and why the educational setting is the appropriate venue in which to hold government contractors liable for fraud on an expansive sub-theory of implied false certification.