The United States District Court for the District of Delaware has ruled that the 2009 False Claims Act Amendments do not apply to a physician’s submission of false claims to Medicare made prior to the Amendments’ enactment where the claims were not actually paid by the government. Before the 2009 Amendments, federal appellate courts had held that 31 U.S.C. §3729(a)(2 )required a showing of the government’s actual payment of claims submitted for medical services that had not been performed. But in the Delaware case, the government admitted that it had not actually paid any of the doctor’s false claims for payment. And the court refused to allow the retroactive application of the new 2009 Amendments, which do not require a showing of actual payment. Thus, the court dismissed the government’s False Claims Act allegations against the doctor under section 3729(a)(2 ).

But it was a different story for the government’s charges against the doctor under section 3729(a)(1) of the False Claims Act. That pre-2009 provision—governing the submission of claims for services at a higher billing code than warranted—did not require a showing of actual payment by the government. Therefore, the court refused to dismiss the claims against the doctor based on section §3729(a)(1).

The court’s ruling was made in the case of U.S. v. Aguillon, (D. Del., June 24, 2009).

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