Whose Knowledge Counts? The Expanding Scope of Government Knowledge in FCA Cases

This week marks the four-year anniversary of the Supreme Court’s landmark False Claims Act decision in Universal Health Services, Inc. v. Escobar, 136 S. Ct. 1989 (2016).  In Escobar, the Supreme Court confirmed that the question of government knowledge lies at the heart of FCA liability determinations, but it did not specifically address who counts as “the Government” for purposes of this inquiry.  In a recent article, Covington & Burling examine how a number of circuits have made clear that the relevant scope of government knowledge includes both the payor agency and other agencies with regulatory oversight and enforcement responsibilities.