On June 24, 2010, in United States of America et al. v. Roy Silas Shelburne, Case No. 09-00072, 2010 WL 2542054 (W.D. Va. Jun. 24, 2010), the Virginia district court denied the defendant’s motion to dismiss an action brought by the United States and the Commonwealth of Virginia, holding that the “FCA includes any fraudulent Medicaid claim that causes the government to lose money.” 

The federal government and Virginia brought claims under the federal False Claims Act and the Virginia Fraud Against Taxpayers Act (VFATA), alleging that defendant Roy Shelburne, a dentist practicing in Virginia, submitted reimbursement claims to the Virginia Medicaid program for work that was not medically necessary, not performed, or previously paid. The defendant argued that the government’s FCA claim failed as a matter of law because the alleged fraudulent reimbursement claims were submitted to government contractors working on behalf of the Virginia Medicaid dental program, rather than directly to the federal government. Thus, the government did not satisfy the “presentment clause” of the FCA, i.e., that a false claim be submitted to the federal government. The court rejected the defendant’s argument, finding that the submission of a false claim for Medicaid reimbursement satisfies the presentment clause because “funds used to pay the claims are predominantly federal.”   

In 2009, Congress amended the language of the FCA’s presentment clause in the Fraud Enforcement and Recovery Act (FERA), Pub. L. No. 111-21, 123 Stat. 1617 (May 20, 2009), to make clear that a false claim need not be presented directly to the federal government. Prior to this amendment, section 3729(a)(1) of the FCA required that a person “knowingly presents, or causes to be presented, to an officer or employee of the United States Government or a member of the Armed Forces of the United States, a false or fraudulent claim for payment or approval.” FERA eliminated from this provision the reference to “United States Government or a member of the Armed Forces of the United States.” 

Since the alleged fraudulent claims were submitted by the defendant Shelburne between 2003 and 2006, the prior version of the FCA would have applied to his case. This decision by the Virginia district court thus follows recent district court decisions in other states, including Illinois, Georgia, Massachusetts, Missouri, Alabama, and Idaho, that have also held that Medicaid claims are presented to the federal government under the prior, pre-2009 version of the FCA.