Aside from Constitutional and negligence arguments, plaintiffs seeking to recover for nursing home COVID-19 related injuries or deaths have a third route: the federal and state False Claims Acts. This paper will examine the landscape of the False Claims Act (FCA) as it applies to nursing home liability in the wake of COVID-19. Specifically, it responds to concerns raised by a number of highly regarded practitioners that a 2016 Supreme Court decision, Universal Health Sers., Inc. v. United States ex rel. Escobar, will severely heighten the risk of FCA liability for nursing homes. As will be explained herein, that case confirms the implied false certification theory of FCA prosecution as a valid basis for FCA liability, widening the scope of government inquiry into these facilities. At the very minimum, Escobar allows for more cases to move past the discovery phase, imposing large expenditures and professional anxiety for operators and nursing practitioners alike. This paper, however, argues that such concerns are overblown. Neither Escobar nor its district and appellate progeny require such a widened degree of contractor liability. In fact, the general absence of FCA cases against nursing homes from federal and state dockets since the start of the pandemic is itself evidence of the FCA’s lackluster appeal. The reasons for this ambivalence will unfold in the following sections.

Last modified

• 05/12/2021

Creator

• Huang, Xiaoyu

DOI

• https://doi.org/10.21985/n2-2hrx-j882

Publisher

• Northwestern Undergraduate Law Journal

Keyword

• northwestern undergraduate law journal

Date created

• 2021

Resource type

• Article

Rights statement

• In Copyright

License

• Creative Commons BY Attribution 4.0 International