Understanding False Claims Act- Hypothetical Scenario

At Home is a home health company.  HHS regulations specify that At Home is only permitted to bill for patients if two conditions are satisfied. First, the patient has to be homebound. Second, the patient has to be certified by a physician to be homebound. The regulation expressly states that “both conditions are material conditions of payment, and no payment shall be made if either condition is not satisfied.” Notwithstanding these requirements, from the beginning of 2010 through the end of 2016, At Home routinely billed for patients who were homebound, but for whom At Home lacked a physician certification that the patients were homebound.  The claim forms that At Home submitted for these payments only required At Home to attest to the fact that the patient was homebound and said nothing about a physician certification. When it first started billing for home health services in 2010, At Home submitted a letter to HHS stating that since the attestation on the billing form did not reference the physician certification requirement, At Home assumed HHS did consider this requirement to be material and thus At Home was not complying with it.   At Home never received a response to this letter.  Nevertheless, in 2017, At Home became concerned about the fact that it was submitting claims for homebound patients without physician certifications, and stopped the practice.  It also notified HHS of its prior practice of submitting claims for homebound patients where a physician certification was lacking and paid HHS back for each such claim.     You are a renowned attorney who specializes in representing whistleblowers under the False Claims Act.  In January 2018, an employee of At Home, Ms. Lai Zee, contacts you to ask your advice on the following three questions: Whether At Home’s conduct between 2010 and 2016 violated any provision of the False Claims Act, and if so, why? If there has been a False Claims Act violation, whether At Home is liable for any damages, and if so, why? Whether there is any bar to Ms. Zee filing a qui tam action alleging a violation of the False Claims Act.   What advice do you give to Ms. Zee ?