With the increase of Qui Tam lawsuits alleging violations of the federal False Claims Act ("FCA"), it is important to understand that FCA liability maybe predicated on whether the alleged wrongful act violated a condition of payment or a condition of participation. False claims can generally be categorized into two broad types of actionable false claims, those that are factually false and those that are legally false. Factually false claims are those that are false for any number of reasons including the provider submitted an incorrect description of the services, the claim was billed using the wrong provider or the services were never provided at all. Legally false claims are not false on their face. Instead, the claim is false because the provider falsely certified that it is in compliance with certain statutory or regulatory provisions at the time it submitted the claim. Legally false claims are sometimes referred to as "false certification" claims. Increasingly, FCA suits in the health care context involve false certification claims.

The success or failure of a FCA suit based on false certification claims will depend on whether the underlying violations are violations of conditions of payment or conditions of participation. The distinction between a condition of payment and a condition of participation is particularly important because of the damages available under the FCA. These damages include treble damages, so once the trier of fact determines the amount of damages, the judge must then triple the amount. In addition to treble damages, a provider may be subject to civil monetary penalties ranging from $5,500 to $11,000 per claim. Finally, the realtor's lawyer is also entitled to a recovery of reasonable attorney's fees.

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