The False Claims Act has a scienter requirement: it makes it illegal to knowingly present a false claim to the government.
So if a company innocently presents a false claim, it can’t be guilty of violating the Act, right? Well, not exactly. The answer may depend on whether the company later discovers the error and what it does about it.
If the company discovers the error, any overpayment by the government becomes a reverse false claim. Why reverse? Because instead of asking the government for a payment, the company is holding a payment that rightfully belongs to the government. The company is supposed to pay it back, and it has 60 days to do so.
That seems to be what’s behind the September settlement agreement among the federal government, the State of Florida, First Coast Cardiovascular, and whistleblower Doug Malie. The agreement recites that governmental authorities contend that they overpaid First Coast and that First Coast discovered the error but failed to repay the overpayments within the required 60 days.
The agreement recites that First Coast doesn’t admit liability but agrees to pay $449,000 to resolve the matter. That’s a lot of money, particularly when you consider that the Justice Department’s Oct. 13 press release pegs the overpayments at “over $175,000.” That suggests that First Coast is paying over two and a half times the amount of the overpayments it received. Doug gets 20% of the $449,000.
The case is US ex rel. Malie v. First Coast Cardiovascular, No. 3:16-cv-01054 (M.D. Fla.).