Worthless Services
In the nursing-home context, the government or qui tam relator (the private party bringing suit on behalf of the government) alleges that the home’s efforts to provide care to residents are so inadequate that they equate to no services being rendered. Often, the evidence points to severe staffing shortages and other wide-ranging failures on the part of the nursing facility to meet the physiological and psychological needs of residents, with attendant adverse medical effects.
At least one federal district court (in the Western District of Missouri), in the case of United States v. NHC Healthcare Corp. (2000), has recognized worthless services as a viable theory.
Express Certification
Under this theory the government’s case is based on the false representations made by the defendant. These representations can often be found in claim-form provisions explicitly affirming that the claimant complied with federal and state laws and government instructions. The claim form may further affirm that documents exist to support payment.
Express certification is directly applicable to nursing homes. For example, claim forms that the nursing home files each month seeking reimbursement may contain an explicit affirmation that the facility has complied with the government’s care standards. Under this theory the government may allege that the claim the facility filed was false because, contrary to assurances in the claim, the facility failed to provide mandated care. Courts have explained that the false certification of compliance creates liability when certification is a prerequisite for obtaining a government benefit, as it is with Medicare and Medicaid.
