Full opinion text
ORDER HARMON, District Judge. The above referenced qui tam action alleges that since 1990 Defendants (a health care provider and affiliated entities) submitted false or fraudulent Medicare reimbursement claims in violation of the False Claims Act (“FCA”), 31 U.S.C. §§ 3729 et seq. (West 1983 and 1997 Supp.), and violated the Medicare anti-kickback statute, 42 U.S.C. § 1320a-7b(b) (West 1991 & 1997 Supp.), and two versions of the Medicare self-referral statute (commonly known as the “Stark” laws), 42 U.S.C. § 1395nn (West 1992 and 1997 Supp.). As the Court summarized in its recent order, after this Court dismissed all claims under Fed.R.Civ.P. 12(b)(6), the Fifth Circuit affirmed those parts of the Court’s decision holding that Thompson’s allegations that Defendants submitted claims for medically unnecessary services should be dismissed under Fed.R.Civ.P. 9(b) and that violations of the Medicare anti-kickback statute and the Stark laws, by themselves, do not necessarily give rise to actionable false claims under the FCA. United States ex. rel. Thompson v. Columbia/HCA Healthcare Corp., 125 F.3d 899 (5th Cir.1997). In response to Relator James M. Thompson’s claim that Defendants violated the FCA by falsely certifying that the Medicare services identified in the hospital annual cost reports complied with the laws and regulations dealing with the provision of healthcare services, the appellate court ordered additional factual development in the record from which it could determine whether the government’s payments for the services identified in those annual cost reports were conditioned on the truthfulness of such certifications. In Thompson, 125 F.3d at 902, the Fifth Circuit noted that the Ninth Circuit in United States ex rel. Hopper v. Anton, 91 F.3d 1261, 1266 (9th Cir.1996), interpreted the scope of the FCA as the Fifth Circuit does and that it “concluded that false certifications of compliance create liability under the FCA when certification is a prerequisite to obtaining a government benefit.” Relator James M. Thompson had alleged that the government conditioned payment on the Defendants’ certifications and that Defendants falsely certified compliance. Moreover, the Court of Appeals also vacated that part of the judgment and remanded for further consideration the issues of whether the claims for services rendered in violation of the Stark laws, which expressly prohibit such, constitute false or fraudulent claims under the FCA. Additionally, the Fifth Circuit further pointed out that the FCA imposes liability not only on any person who submits a false or fraudulent claim for payment, but also on a person who knowingly makes a false statement in order to get a false or fraudulent claim paid. 31 U.S.C. § 3729(a)(2). Therefore the appellate court directed this Court, if it concludes that the claims for services rendered in violation of the Stark laws do constitute false or fraudulent claims under the FCA, also to decide whether Thompson has sufficiently alleged that Defendants committed separate and independent violations of the FCA by making false statements to obtain payment of false or fraudulent claims. Finally, the court of appeals left open the issue of claims raised below but not considered in the Court’s order of dismissal. Pending before the Court are the following, interrelated motions: (1) Defendant Corpus Christi Bay Area Surgery, Ltd.’s (“CBAS’ ”) amended motion to dismiss and, alternatively, motion for summary judgment (# 82); (2) Defendants Columbia/HCA Healthcare Corporation, CHC Holdings, Inc., Columbia Hospital Corporation of Bay Area, Columbia Hospital Corporation of Corpus Christi, and Columbia Surgicare Specialty Hospital’s (“Columbia Defendants’ ”) second amended motion to dismiss or, in the alternative, motion for summary judgment (# 85); and (3) Plaintiffs motion for leave to amend complaint (# 98). For the reasons indicated below, the Court agrees with Relator that he has stated claims for three separate violations of the FCA, i.e., the allegedly false certifications of compliance with all applicable Medicare statutes and regulations on which the government conditioned payments, the submission of Medicare claims in violation of the Stark laws’ express prohibition, and the submission of claims for services rendered in violation of the Medicare Anti-Fraud and Abuse Act. Furthermore, he has stated a separate and independent claim against Defendants for knowingly making a false statement in order to get false or fraudulent claim paid in violation of 31 U.S.C. § 3729(a)(2). The Court therefore denies the motions to dismiss or for summary judgment and grants Relator’s motion for leave to amend. The Court is aware that Relator has had no opportunity to pursue discovery. The purpose of the requested briefing was for this Court to be able to determine at what is still an early stage of this litigation despite the number of years it has been pending, whether, in light of the facts alleged here, which at this point the Court will assume are true, the second amended complaint (#29) asserts claims cognizable under the law, in particular the FCA. Nevertheless, because the Court has examined materials beyond the pleadings, in particular an affidavit and declaration, it must review the first two motions under a summary judgment standard, but only to determine whether viable claims have been stated as a matter of law. The movant seeking a federal summary judgment initially must inform the court of the basis for its motion and point out those portions of the pleadings, depositions, answers to interrogatories, and admissions on file that demonstrate the absence of a genuine issue of material fact and show that it is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The movant need not negate the opposing party’s claims nor produce evidence showing an absence of a genuine factual issue but may rely on the absence of evidence to support essential elements of opposing party’s claims. International Assoc. of Machinists & Aerospace Workers, Lodge No. 2501 v. Intercontinental Mfg. Co., 812 F.2d 219, 222 (5th Cir.1987). The burden then shifts to the non-movant to set forth specific facts and competent summary judgment evidence to raise a genuine issue of material fact on each essential element of any claim on which he bears the burden of proof at trial. Fed. R.Civ.P. 56(c). The substantive law governing the suit identifies the essential elements of the claims at issue and therefore indicates which facts are material. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The non-moving party may not rest on mere allegations or denials in its pleadings but must produce affirmative evidence and specific facts. Anderson, 477 U.S. at 256-57, 106 S.Ct. 2505. It meets this burden only if it shows that “a reasonable jury could return a verdict for the non-moving party.” Id. at 254, 106 S.Ct. 2505. A mere scintilla of evidence will not preclude granting of a motion for summary judgment. Id. at 252, 106 S.Ct. 2505. All reasonable inferences must be drawn in favor of the non-moving party. Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587-88, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986), citing United States v. Diebold, 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962). Once the burden of proof has shifted to the non-movant, he “must do more that simply show that there is some metaphysical doubt as to the material facts.” Id. at 586, 106 S.Ct. 1348. Instead he must produce evidence upon which a jury could reasonably base a verdict in his favor. Anderson, 477 U.S. at 249, 106 S.Ct. 2505. “[Tjhere is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.” Id., 477 U.S. at 249-50, 106 S.Ct. 2505. Unsubstantiated and subjective beliefs and opinions are not competent summary judgment evidence. Forsyth v. Barr, 19 F.3d 1527, 1533 (5th Cir.), cert. denied, 513 U.S. 871, 115 S.Ct. 195, 130 L.Ed.2d 127 (1994); Topalian v. Ehrman, 954 F.2d 1125, 1131 (5th Cir.), cert. denied, 506 U.S. 825, 113 S.Ct. 82, 121 L.Ed.2d 46 (1992). Defendant CBAS’ separate, amended motion to dismiss or for summary judgment argues that the Fifth Circuit remanded this case for a determination of only two issues, neither of which applies to CBAS, and that therefore CBAS should be dismissed from the ease. Specifically, this Court is to decide (1) whether an annual cost report containing a false certification of compliance with Medicare laws is a false claim and (2) whether a claim for services rendered in violation of the Stark Act is a false claim. In regard to the former, the Fifth Circuit has held that a false claim could arise only if the government conditioned payment of claims on the certification. United States ex rel. Thompson v. Columbia/HCA Healthcare Corp., 125 F.3d at 902-03. Relator’s complaint fails to state a false certification claim against CBAS, CBAS insists. Even though the complaint does assert such a claim against the other Defendants, CBAS contends that the second amended complaint fails to make the fundamental allegations that CBAS is a hospital, that it has submitted annual cost reports, and that it has falsely certified that services identified in annual cost reports were rendered in compliance with healthcare laws. Even if Plaintiff have so alleged, CBAS contends, the second amended complaint would still fail because Medicare does not require CBAS to submit annual cost reports or to certify that the services identified in those reports were in compliance with healthcare laws, and therefore certification is no prerequisite to Medicare’s paying CBAS. CBAS points out that Relator’s complaint, at 82, states that CBAS is “an outpatient surgical facility.” Medicare regulations label a provider of outpatient surgical facilities as an ambulatory surgical center (“ASC”). 42 C.F.R. § 416.2 (1996). In contrast, a hospital is “an institution which is primarily engaged in providing [services] to inpatients.” 42 U.S.C. § 1395x(e). Furthermore, CBAS explains, Medicare reimburses an ASC for its services based upon a fixed rate, not upon actual costs, for the specific surgical procedures performed. 42 U.S.C. § 13951(i)(2)(A)(i). Therefore Medicare does not need, nor does it require, annual cost reports from an ASC before paying claims for services. Moreover, although Medicare regulations applying to hospitals (§§ 413.20 and 413.24) require the hospitals to comply with Medicare’s cost-reporting provisions, the ASC-specific regulations (42 C.F.R. Part 416) do not. Also, under Medicare cost-reporting regulations, providers subject to filing cost reports include hospitals, but not ASCs. 42 C.F.R. § 413.1(a)(2). While the administrator or chief financial officer of a hospital must certify that the services identified in a hospital’s annual cost report (42 C.F.R. § 413.24(f)(4)(ii)) were provided in compliance with Medicare’s laws and regulations, such certification does not apply to CBAS as an ASC. In sum, Medicare does not require annual cost reports or certifications of compliance with cost reports from CBAS and has not conditioned payment of CBAS’ claims upon CBAS’ certification of compliance with healthcare laws. Thus Relator has failed to state a statutory claim for relief against CBAS. CBAS also insists that the Stark Act, 42 U.S.C. § 1395nn(a)(l), does not apply to CBAS because (1) CBAS does not maintain prohibited relationships with physicians and (2) it provides ambulatory surgical center services. Noting that Relator complains about CBAS’ alleged payments to scrub techs, CBAS contends that the Stark Act applies only to referrals based on certain relationships: “if a physician ... has a financial relationship with an entity ... then, the physician may not make a referral to the entity for the furnishing of designated health services.” 42 U.S.C. § 1395nn(a)(l). CBAS concludes that the complaint’s allegations refer to financial relationships of CBAS with non-physician scrub techs and that such relationships do not violate the Stark Act. In addition, the Stark referral prohibitions apply only to “designated health services,” id., and do not include ASC facility services. § 1395nn(h)(6)(K). In sum, CBAS insists, not only is CBAS not a hospital, but Medicare regulations specifically except ASC services from Stark’s referral prohibitions. 42 C.F.R. § 411.355(d). In the event that the Court cannot determine from the pleadings alone that dismissal is appropriate, to support its entitlement to a summary judgment CBAS submits an affidavit from Gene Hybner proving that CBAS is an ambulatory service center providing ASC services, and not filing annual cost reports or certifications of compliance. Remaining Columbia Defendants’ second amended motion to dismiss or, in the alternative, motion for summary judgment argues that dismissal is appropriate on the grounds that (1) Relator lacks standing to bring the claims (Fed.R.Civ.P.12(b)(l)), (2) the complaint fails to satisfy Fed.R.Civ.P. 9(b), and (3) the complaint fails to state a claim for which relief may be granted, under Fed. R.Civ.P. 12(b)(6). Alternatively, Defendants request a summary judgment in their favor. Before addressing the matters expressly remanded for consideration, the Court will examine the standing issue raised by Defendants. Relying on a recent ruling by Judge Kenneth Hoyt, Defendants first argue that this Court lacks subject matter jurisdiction because the qui tarn provisions of the FCA are an unconstitutional violation of the principles of separation of powers in giving Thompson, who has no cognizable injury, standing to sue. Next, Defendants identify the first issue remanded by the Fifth Circuit for consideration as “whether or not, or to what extent payment for services identified in defendants’ annual cost reports was conditioned on defendants’ certifications of compliance.” 125 F.3d at 902-03. The second issue on remand is whether the Stark laws’ express prohibition on payment for services rendered in violation of their terms rendered those particular statutory violations actionable under the FCA. Id. at 903. The Fifth Circuit further stated that if this Court determines on remand that Defendants’ claims for services rendered in violation of the Stark laws constitute false or fraudulent claims under the FCA, then this Court should also determine whether Thompson adequately alleged that the Columbia Defendants committed separate violations of 31 U.S.C. § 3729(a)(2) by making false statements to obtain such claims. Id. Furthermore, the Fifth Circuit left open for this Court the opportunity to address alternative grounds supporting dismissal that were raised in the original motion to dismiss but not reached by this Court wdien it dismissed the suit. Defendants identify the following as those raised but undecided questions: (1) whether Thompson failed to state a claim against Columbia/HCA and CHC Holdings: (2) whether Thompson adequately alleged a violation of Stark I, which prohibited only financial relationships between physicians and entities related to the provision of clinical laboratory services; and (3) whether Thompson failed to plead with particularity, as required by Fed.R.Civ.P. 9(b), with respect to claims against Columbia/HCA and CHC Holdings, claims related to the conduct of any Columbia-affiliated entities outside the Corpus Christi area, and claims based on alleged violations of Stark I if Thompson is alleging that any physicians had non-exempt financial relationships with the hospitals that related to the provision of clinical laboratory services. The Columbia Defendants provide a review of procedures under used by the government in paying Medicare claims. Medicare payments for hospital inpatient and outpatient services are made by Medicare fiscal intermediaries, usually private insurance companies under contract with the Medicare program. 42 U.S.C. § 1395h (West 1992 & Supp.1998). During the years relevant in this action, Medicare paid providers of hospital inpatient services under its prospective payment system (“PPS”), 42 U.S.C. § 1395ww(d) (West 1992 & Supp.1998). Under PPS, the hospital receives a fixed amount based on a patient’s diagnosis, regardless of the actual costs incurred in treating the patient. Therefore the information in a Medicare cost reporting form, such as Form 2552 promulgated by the Health Care Financing Administration (“HCFA”) and relied upon by Thompson here, is not relevant in determining the amount of Medicare payments to hospitals for most inpatient hospital services. A hospital submits bills for both inpatient and outpatient services to its Medicare fiscal intermediaries shortly after providing services to a patient. The billing information is submitted either electronically or on a “UB-92” form. See Medicare Intermediary Manual § 3602.5 and Ex. 2 to Appendix filed on November 29, 1995. The hospital submits a separate UB-92 form for each patient and each episode of care. The Medicare fiscal intermediaries and Medicare peer review organizations subject the bills to intensive review to determine that all services are medically necessary. 42 U.S.C. §§ 1320 et seq. As their second ground for dismissal, after their challenge to the constitutionality of the qui tam provisions, the Columbia Defendants contend that cost report certifications are not a condition of the government’s payment of Medicare claims. On appeal, the Fifth Circuit, relying on its prior holding in United States ex rel. Weinberger v. Equifax, 557 F.2d 456 (5th Cir.1977), cert. denied, 434 U.S. 1035, 98 S.Ct. 768, 54 L.Ed.2d 782 (1978) and the Ninth Circuit’s holding in United States ex rel. Hopper v. Anton, 91 F.3d 1261, 1266 (9th Cir.1996), reaffirmed that “violations of law, rules, or regulations alone do not create a cause of action under the FCA.” United States ex. rel. Thompson v. Columbia/HCA Healthcare Corp., 125 F.3d at 902 (quoting Hopper, 91 F.3d at 1266). Highlighting the Fifth Circuit’s indication that an FCA cause of action might be stated where a truthful certification of compliance with such laws and regulations is “a prerequisite to obtaining a government benefit,” 125 F.3d at 902, the Columbia Defendants follow the Ninth Circuit is identifying as the two major questions for the cost certification claim “(1) whether the false statement is the cause of the Government’s providing the benefit; and (2) whether any relation exists between the subject matter of the false statement and the event triggering the Government’s loss.” Hopper, 91 F.3d at 1266 (quoting J.T. Boese, Civil False Claim and Qui Tam Actions, 1-29 to 1-30 (1995)). The Columbia Defendants maintain that the HCFA form 2552 certification at issue here does not meet these requirements. First, they insist that the certification is not a condition of payment. The conditions under which Medicare providers can be reimbursed for services rendered to Medicare patients are set out in 42 U.S.C. § 1395f and explained by regulations located at 42 C.F.R. §§ 424.1 et seq. Conditions for a medical provider’s eligibility are found at 42 U.S.C. § 1395cc. While a certification by a physician that the services are medically necessary is among these, there is no express requirement of a general certification of compliance with every extant Medicare law and regulation, insist Columbia Defendants. Nor does 42 U.S.C. § 1395g(a), the authority under which the government requires the submission of cost reports, contain any suggestion that a certification of compliance with all Medicare laws and regulations is a prerequisite to payment. Section 1395g(a) only authorizes the government to withhold payments to a provider until “it has furnished such information as the Secretary may request in order to determine the amounts due_” The Columbia Defendants summarize that although receipt by the government of the financial information contained in a cost report may be a condition to payment, the HCFA form 2552 certification cited by Thompson is not one. The second factor in Hopper, 91 F.3d at 1266, i.e., whether there is any relation between the subject of the false statement and the government’s loss, is relevant here, according to Defendants, because the FCA requires an injury to the public fisc, and allegedly false certifications that have no nexus to that injury will not give rise to FCA liability. Government contractors are routinely required to certify their compliance with statutes and regulations, such as employment discrimination laws, which have no relationship to the validity of their requests for payment. The Columbia Defendants argue that the HCFA form 2552 certification of general compliance with Medicare laws and regulations is neither a cause in fact of the government’s payment of benefits, nor a proximate cause of any injury to the Treasury, which is what the FCA was designed to remedy. They further urge that since the Medicare system imposes a myriad of complex requirements upon hospitals, the HCFA form 2552 certification cannot be singled out as a stalking horse for every type of regulatory violation, and the FCA does not provide a remedy for every statutory or regulatory violation. In other words, the cost report certification process cannot be transformed into a “mega remedy.” They insist that the certification claim fails as a matter of law. Furthermore, note the Columbia Defendants, all but two of the cost reports at issue did not contain such a certification. See Exhibits to Strickland Declaration, Ex. A. The Columbia Defendants also contend that the alleged violations of the Stark laws, in spite of their express prohibition on payments for services rendered in violation of the laws, do not give rise to actionable false claims under the FCA. They insist that a pecuniary injury is an essential element of such claims. The statute “reaches all types of fraud, without qualification, that might result in financial loss to the Government.” United States v. Neifert-White Co., 390 U.S. 228, 232, 88 S.Ct. 959, 19 L.Ed.2d 1061 (1968); Peterson v. Weinberger, 508 F.2d 45, 52 (5th Cir.) (“[a] claim is within the purview of the False Claims Act if it is grounded in fi’aud which might result in financial loss to the Government.”), cert. denied, 423 U.S. 830, 96 S.Ct. 50, 46 L.Ed.2d 47 (1975). While the FCA aims “to protect the funds and property of the Government from fraudulent claims,” Rainwater v. United States, 356 U.S. 590, 592, 78 S.Ct. 946, 2 L.Ed.2d 996 (1958), “[I]t is equally clear that the [FCA] was not designed to reach every kind of fraud practiced on the Government.” United States v. McNinch, 356 U.S. 595, 599, 78 S.Ct. 950, 2 L.Ed.2d 1001 (1958). A claim that does not include actual injury to the Treasury is not actionable under the FCA. United States v. Cohn, 270 U.S. 339, 346-47, 46 S.Ct. 251, 70 L.Ed. 616 (1926) (“defrauding” in the statute must be construed in the ordinary sense of “relating to the fraudulent causing of pecuniary or property loss”; concluding that defendant did not “defraud” government customs officials within the meaning of the FCA where it was acting as a bailee of goods). Other courts have taken the same approach where the government has not been required to pay out more than it would have but for the alleged fraud. See, e.g., United States v. Azzarelli Constr. Co., 647 F.2d 757, 762 (7th Cir.1981) (because federal contribution to state highway program was fixed sum, no FCA claim was stated by the government against contractors involved in alleged bid-rigging scheme because it was the state’s and not the federal government’s treasury funds that were being reduced by overcharges). Defendants observe that while a false or fraudulent claim must be capable of causing damage to the public fisc, the civil monetary penalties under the FCA function as liquidated damages to allow recovery where the damages are difficult to quantify. United States v. Halper, 490 U.S. 435, 444, 109 S.Ct. 1892, 104 L.Ed.2d 487 (1989). Therefore a qui tam plaintiff does not need to plead and prove the specific damages suffered by the government if he seeks only the statutory civil penalties. Rex Trailer Co. v. United States, 350 U.S. 148, 152-53, 76 S.Ct. 219, 100 L.Ed. 149 (1956). Nevertheless, the plaintiff must demonstrate threatened injury to the United States Treasury. Halper, 490 U.S. at 445, 109 S.Ct. 1892 (“Although the Court [in Rex Trailer ] recognized that the Government’s loss due to the defendants’ fraud was difficult if not impossible to ascertain, it recognized that the Government did sustain injury. .. .”). See also United States v. Ad vance Tool Co., 902 F.Supp. 1011 (W.D.Mo.1995) (awarding civil penalties where government could not prove amount of actual damages although it could prove fact of damage), aff'd, 86 F.3d 1159 (8th Cir.1996), cert. denied, - U.S. -, 117 S.Ct. 1254, 137 L.Ed.2d 334 (1997). Columbia Defendants maintain that alleged violations of the Stark laws do not necessarily result in injury to the Treasury, as required by the FCA. While the Stark laws, in contrast to the anti-kickback statute, prohibit payment for services rendered to patients referred by physicians in violation of the laws’ provisions, 42 U.S.C. § 1395nn(g)(l), Defendants charge that Relator has not alleged that the government was required to pay more than it otherwise would if no violations of the Stark laws had occurred. The government would have paid the same amounts for inpatient services, which are reimbursed at a fixed rate, if physicians had referred the patients to other hospitals. Under Relator’s analysis, urge Defendants, they would be “potentially responsible for draconian civil monetary penalties even if their allegedly unlawful relationships with physicians practicing at the Hospitals saved the government money in Medicare benefits,” a concept contrary to the purpose of the FCA. Yet Columbia Defendants concede that the language in U.S. ex rel. Weinberger v. Equifax, Inc., 557 F.2d 456 (5th Cir.1977), and Peterson v. Weinberger, 508 F.2d 45, about what constitutes a false claim can be read to encompass Relator’s claims of Stark laws violations here. Nevertheless they assert that Halper, decided since, demonstrates that the government must be actually damaged and that the FCA was not intended to remedy fraud in the “sense of interfering with or obstructing ... lawful government functions by deceitful and fraudulent means.” Cohn, 270 U.S. at 346, 46 S.Ct. 251. Columbia Defendants further argue that FCA liability should not attach based on a post-hoc determination that those claims fell on the wrong side of an often indistinct regulatory line. United States ex rel. Windsor v. DynCorp, 895 F.Supp. 844, 851-52 (E.D.Va.1995) (FCA claim could not be predicated on alleged misclassification of employees under Davis-Baeon Act where Department of Labor had not made determination that employees were, in fact, misclassified). Defendants contend that prohibitions on billing and payment in the Stark laws are like penalties designed to deter Medicare referrals by physicians who have prohibited financial relationships with providers of Medicare services. The statute is a prophylactic and is not concerned with whether the services were medically necessary or would have been rendered by another provider. In contrast, they maintain, the FCA is a remedial statute designed to recoup actual losses incurred by the Treasury. Therefore Relator must allege the existence of claims resulting in such losses, not merely that services were performed and a billing submitted in violation of the Stark laws. In remanding this case, the Fifth Circuit stated that if this Court determined that claims for services allegedly in violation of the Stark laws constituted false or fraudulent claims under the FCA, it should decide whether Relator adequately pleaded separate violations of § 3729(a)(2) in asserting that Defendants’ alleged false statements were made to obtain Medicare funds from the government. Since the Relator’s complaint does not allege even generally any false statements by Defendants other than the alleged false certifications of the HCFA form 2552, Columbia Defendants insist that there is no basis for additional, independent violations of § 3729(a)(2). Columbia Defendants contend that Relator’s claims against Columbia/HCA and CHC Holdings fail to state a claim for which relief can be granted because his only factual allegations are their ownership interests in Columbia Hospital Corporation of Bay Area and Columbia Hospital Corporation of Corpus Christi. The last two entities are general partners of Bay Area Healthcare Group Ltd. and Corpus Christi Healthcare Group, Ltd., the entities that actually own the Hospitals to which the alleged illegal referrals of patients were made. Relator does not allege that Columbia/HCA or CHC Holdings ever submitted any claims for Medicare reimbursement nor assert any facts that would render them liable under the FCA. He merely states that Columbia/HCA “is liable for the conduct of the remaining defendants....” Such a conclusory allegation cannot withstand a motion to dismiss. Fernandez-Mantes v. Allied Pilots Ass’n, 987 F.2d 278, 284 (5th Cir.1993). Shareholders of a corporation, on that basis alone, are not liable for the tortious acts of the corporation. United States ex rel. Piacentile v. Wolk, 1995 WL 20833 at *4 (E.D.Pa.1995) (shareholder not liable for corporation’s violation of the FCA where there was no basis for piercing the corporate veil) (copy attached to supporting brief (# 86) as Ex. A). Thus the claims should be dismissed, urge Defendants. Columbia Defendants also maintain that, as a matter of law, Relator has not alleged a violation of Stark I, which was in effect from January 1, 1992 until December 31, 1992 and which addressed only referrals for clinical laboratory services. 42 U.S.C. § 1395nn(a)(l)(A) (West 1992). Stark I’s prohibition against physicians with a financial relationship with the entity furnishing clinical laboratory services does not apply “[i]n the case of a financial relationship with a hospital if the financial relationship does not relate to the provision of clinical laboratory services.” 42 U.S.C. § 1395nn(b)(4). Moreover, Stark I provided that an ownership or investment interest in a hospital would not constitute a prohibited financial arrangement if (1) the referring physician was authorized to perform the services at the hospital and (2) the ownership or investment interest was in the hospital itself, and not merely a subdivision thereof. 42 U.S.C, § 1395nn(d)(3) (West 1992). Defendants maintain that these two exceptions cover all possible financial relationships between physicians and hospitals that are limited to either ownership/investment interests or compensation arrangement. 42 U.S.C. § 1395nn(a)(2). The relevant regulations also provide that compensation arrangements that do not relate to the furnishing of clinical laboratory services are excluded from the scope of financial relationships that will invoke the statutory prohibition, and they confirm that an ownership or investment interest in a hospital is not prohibited if the referring physician is authorized to perform services at the hospital and the interest is “in the entire hospital and not merely a distinct part or department of the hospital.” 42 C.F.R. §§ 411.357(g) and 411.356(e)(3)(i). The second amended complaint, insist Defendants, does not allege any financial arrangements between physicians and the Hospitals that fall outside these broad exceptions. Relator has only alleged as financial relationships between the Hospitals and physicians such matters as below-market rent and hunting and fishing trips, but nothing related to the provision of laboratory services. Moreover his allegations fall within the hospital ownership exception to the Stark laws since the limited partnership interests were interests in the Hospitals as a whole and were allegedly offered only to those in a position to make referrals, i.e., to physicians authorized to practice at the Hospitals. Finally, Columbia Defendants urge the Court to dismiss the complaint for lack of specificity and particularity, required by Fed. R.Civ.P. 9(b). The Fifth Circuit in the appeal of this case stated that the FCA claims must satisfy Rule 9(b). 125 F.3d at 903. Thus Relator must state, at minimum, the “who, what, when, where and how” of the alleged fraud. Id., quoting Williams v. WMX Tech. Inc., 112 F.3d 175, 179 (5th Cir.1997), cert. denied, - U.S. -, 118 S.Ct. 412, 139 L.Ed.2d 315 (1997). See also United States v. Crescent City E.M.S., Inc., 151 F.R.D. 288, 290-91 (E.D.La.1993) (Rule 9(b) required government in FCA case to allege specifics regarding purported false claims, including dates, persons responsible, and factual basis for conclusory allegation that patients were not eligible for Medicare). For alleged violations of Stark I, Relator must identify which physicians, if any, had non-exempt financial relationships with the Corpus Christi Hospitals and which claims, if any, were submitted for clinical laboratory services. In a “preliminary response” and subsequent response, Relator insists that the Court has subject matter jurisdiction because the Relator does have standing to prosecute this claim. Criticizing United States ex rel. Riley v. St. Luke’s Episcopal Hosp., 982 F.Supp. 1261 (S.D.Tex.1997), as the “first reported decision in more than 130 years of the FCA’s existence holding that a qui tam relator lacked standing to prosecute an FCA case because the relator had not personally suffered a cognizable injury in fact” and a solitary aberration contrary to the overwhelming weight of authority on the constitutional standing issue, Relator points out that Judge Samuel Kent two months later summarily rejected Riley “in light of the congressional purpose underlying the FCA and its plain language.” Hopkins v. Actions, Inc. of Brazoria County, 985 F.Supp. 706, 710 (S.D.Tex.1997). Relator asserts to the Court that the leading decision on the issue is probably United States ex rel. Kelly v. Boeing Co., 9 F.3d 743 (9th Cir.1993), which rejected the constitutional challenge embraced by Judge Hoyt in Riley. The Ninth Circuit did not agree that the only cognizable injuries in a qui tam suit are injuries to the federal Treasury resulting from false claims against the United States and therefor qui tam relators lack constitutional standing because they have not personally suffered harm. Id. at 748. Instead, the Ninth Circuit concluded that the FCA effectively assigns the government’s claims to the qui tam relator, who may then sue based on the injury to the federal Treasury. Thus because the government can establish injury in fact, causation, and redressibility, the relator can also satisfy these Article III requirements. Id. (and cases cited therein). Kelly also rejected concerns based on the principles of separation of powers. Id. at 749-53. Relator points out that the only Fifth Circuit opinion dealing with the standing issue, and therefore subject matter jurisdiction, United States ex rel. Weinberger v. Equifax, Inc., 557 F.2d 456, 460 (5th Cir.1977), found that the FCA “grants informers standing to sue and an award for successful action under the statute.” The Court of Appeals for the Fourth Circuit recognized that the United States is the real party in interest in an FCA case, even when it elects not to control the suit. See also United States ex rel. Milam v. University of Texas M.D. Anderson Cancer Center, 961 F.2d 46, 48-49 (4th Cir.1992) (recognizing that the government, not the relator, must have suffered the injury in fact required for Article III standing). Furthermore, observes Relator, the Ohio district court in United States ex rel. Roby v. Boeing Co., 995 F.Supp. 790, 794 n. 5 (S.D.Ohio 1998), also rejected the argument advanced by the Columbia Defendants and accepted in Riley. Instead, the Roby court held that in view of the “present landscape of the courts’ decisions surrounding standing under the qui tam provisions of the FCA,” which it surveys, a qui tam plaintiff has standing to pursue claims on the government’s behalf for injuries suffered by the government. Id. at 795. Thus, concludes Relator, “Riley represents a solitary aberration against the overwhelming weight of authority on the constitutional standing issue” and exhibits flawed reasoning, with a resulting incorrect conclusion. Relator maintains that this Court has subject matter jurisdiction here because Relator has constitutionally sufficient standing to pursue his FCA suit. Furthermore, Relator argues, the second amended complaint, not to mention the proposed third amended complaint, does state claims for three different violations of the FCA based on three distinct courses of conduct: (1) the submission of Medicare claims in violation of the Stark laws; (2) the submission of Medicare claims for services rendered in violation of the Medicare Anti-Fraud and Abuse Act; and (3) the false certification that all of its Medicare services were rendered and billed to the government in compliance with all applicable statutes and regulations, including, by implication, the Stark and Medicare Anti-Fraud and Abuse Acts. In Relator’s second response filed in conjunction with its motion for leave to file third amended complaint, he challenges Columbia Defendants’ identification of the issues remaining for this Courts determination after the Fifth Circuit mandate issued. Relator emphasizes that the Fifth Circuit denied Columbia Defendants' Rule 12(b)(6) motion seeking dismissal of the claims based on Columbia's false certification of compliance with applicable Medicare statutes, rules, and regulations in its submissions of annual cost reports, that it remanded the issue for "further factual development,” that the ruling is now the law of the case, and that Columbia has offered no evidence to satisfy the order for factual development. United States ex rel. Thompson, 125 F.3d at 903. As one Congressional weapon to root out Medicare fraud, the Medicare Anti-Fraud and Abuse Act, 42 U.S.C. § 1320a-7b (Supp. 1996), prohibits the payment of money or any other thing of value to induce the referral of Medicare Patients, characterized as fraudulent “illegal remuneration.” 42 U.S.C. § 1320a-7b(b)(2). It also prohibits making any false statement in applying for Medicare payments, id., at § 1320a-7b(a)(l); concealment or failure to disclose certain material information, id. at § 1320a-7b(b)(3); and making false statements or representations to qualify as a certified Medicare provider, id. at § 1320a-7b(c). A second weapon is the Stark II law, 42 U.S.C. § 1395nn (Supp.1996), which explicitly bars Medicare payments that issue from the kind of self-referral scheme established by the Columbia Defendants. Stark I, 42 U.S.C. § 1395nn(a)(l) (1992), which was more limited, barred physicians from referring Medicare patients for laboratory services to clinical laboratories in which the physicians had a financial interest and barred Medicare payment for a service that violated that prohibition. Through the Omnibus Budget Reconciliation Act of 1993, P.L. 103-66 § 5074 amending Section 1877 of the Social Security Act, Stark II expanded the prohibition on physician self-referrals from clinical laboratory services to reach a wider array of eleven “designated health services,” including inter alia clinical laboratory services, radiology services, radiation therapy, durable medical equipment and supplies, home health services, and in-patient and out-patient services. 42 U.S.C. § 1395nn(h)(6) (Supp.1996). Stark II applies to referrals made after December 31,1994. Relator insists that for the purposes of a motion to dismiss under Fed.R.Civ.P. 12(b)(6), his allegations that the Columbia scheme of inducements and financial relationships in the second amended complaint violate Stark II must be taken as true, and the effect of the violation must then be determined. Under Stark II, an entity that accepts a prohibited referral is prohibited from presenting a Medicare claim or bill for its services to the government or any third-party intermediary. If such claims are presented, subsection (g) mandates that no payment may be made. 42 U.S.C. § 1395nn(g)(l) (Supp.1996). Thus even though Columbia is not entitled to present or receive Medicare claim payments for any of the services provided to Medicare patients referred by physicians enmeshed in the self-referral system outlined in the second amended complaint, HCFA has paid millions of dollars to Columbia for thousands of such illegal claims. Relator maintains that Columbia’s knowing presentation of these claims for payment when payment could not lawfully be made, is the first violation of the False Claims Act. Relator explains that the gravamen of his qui tam suit is that Columbia/HCA Healthcare, by means of its various owned and controlled subsidiary hospitals and entities, engineered and established an elaborate network of prohibited ownership and compensation arrangements resulting in the submission and payments of millions of dollars in Medicare claims for patients referred by physicians who were prohibited from making these patient referrals to Columbia under the Stark laws. Columbia was expressly barred from submitting those claims under 42 U.S.C. § 1395nn(a)(l), while it was prohibited from receiving payment for those claims under 42 U.S.C. § 1395nn(g)(l). In sum, Relator charges that Columbia’s Medicare claims violate the FCA because their presentation and payment were statutorily prohibited. By analogy, Relator relies on Peterson v. Weinberger, 508 F.2d 45, 52 (5th Cir.), cert. denied sub nom. Peterson v. Mathews, 423 U.S. 830, 96 S.Ct. 50, 46 L.Ed.2d 47 (1975) (holding that the knowing submission of Medicare claims for services that were not covered and payable under the Medicare Act was an FCA violation). Relator points to the legislative history of the 1986 FCA amendments and contends that Congress understood Peterson to mean that “a false claim for reimbursement under the Medicare, Medicaid or similar program is actionable under the act,” and that “all Medicare claims submitted on behalf of a physician who is ineligible to participate in the program” are “false and actionable under the act.” S.Rep. No. 99-345, 1986 U.S.Cong.Code & Ad.News at 5274-75. In Peterson, Zodiac Enterprises, Inc. (“Zodiac”), a corporation wholly owned by the defendant James E. Peterson, brother of defendant Dr. Donald M. Peterson, provided physical therapy services to patients. Because these services were provided to a nursing home facility also controlled by James Peterson, and thus a related company under the regulation, Zodiac could not directly submit Medicare bills, so it submitted through Dr. Donald Peterson’s office 120 claims for these services and falsely certified that they were performed by a physician or were incident to a physician’s service. The district court found that each of the 120 claims violated the FCA. The Petersons’ defense is the same argument advanced by the Columbia Defendants here: there was no violation of the FCA because the services were performed by qualified people, the patients receiving these services were entitled to them under Medicare, the monies paid by the government were thus a liability that it was statutorily required to pay, and therefore there was no financial loss to the government. On appeal, Relator emphasizes, the Fifth Circuit rejected this argument as “unsound.” Whether the services were reasonable, necessary or provided to qualified recipients entitled to the services was immaterial for FCA analysis because they were not covered or payable under the Medicare Act. Thus, argues Relator, because the services were provided in circumstances where the provider could not have been paid if it had submitted a bill, Peterson stands for the proposition that submission of claims for services that were statutorily ineligible for payment under the applicable Medicare Act is a “false claim” within the ambit of the FCA. 508 F.2d at 52, quoting United States v. Neifert-White Co., 390 U.S. at 233, 88 S.Ct. 959. Relator analogizes that just as the physical therapy claims in Peterson were false because they were not payable under the Medicare Act to the provider that submitted the bill, the claims and bills presented by Columbia in violation of the Stark laws are false or fraudulent because they cannot be lawfully paid. Dr. Peterson requested payment for each false claim from Medicare knowing he was not entitled to it; so do Columbia Defendants submit claims and bills in violation of the Stark laws with the knowledge that they are not entitled either to submit or receive payment of those claims or bills. Thus the Columbia Defendants also violate the FCA and, like James Peterson and Zodiac, “end[ ] up obtaining Government funds to which they were not entitled.” 508 F.2d at 54. Relator further contends that Columbia Defendants misconstrue Equifax, 557 F.2d 456, which involved the government’s employment of Equifax, Inc. to gather business information in violation of the Anti-Pinkerton Act, 5 U.S.C. § 3108 (1970). Relator Weinberger alleged that Equifax’s billing of the United States for those services violated the FCA, then codified at 31 U.S.C. §§ 231-32 (1970). 557 F.2d at 458. Relator distinguishes Equifax from the situation here on the grounds that in Equifax there was nothing unlawful in the defendant’s billings or services that would have prevented payment under the government contract involved. Id. at 460. Nor did the Anti-Pinkerton Act prohibit Equifax from submitting bills or being paid for services even if its employment violated the statute or conditioned the contractors’ access to government funds upon compliance with any statutory condition. In contrast, here the situation is like that Congress indicated would give rise to a false claim, i.e., where “the government made it clear [in subsection (g)(1) of the Stark Acts] that it would not [pay Stark violators] when it contracted for [Medicare] work”. 557 F.2d at 461. A contractor’s claim for payment in violation of a statute that is central to its right to receive payment or that conditions its privilege to participate in the government program is a false claim. Id. Thus, Equifax, to the extent that it has any bearing on the false claim, as opposed to false statement or certification, aspect of this case, supports Relator’s position, he maintains. Columbia Defendants’ charge that the complaint does not allege that “the government was required to pay out more on the Hospitals’ claims for reimbursement than it would have if there had been no violation of the Stark laws” fails to address the Stark automatic prohibition of payment. In effect they argue that the government and Relator cannot maintain a qui tarn action because the government would have paid for Medicare services if the services had been provided to those patients by other providers. The correct analysis would be that whatever right Medicare patients may have had to receive such services, Columbia was not entitled to receive payment from the government because it violated the Stark Act proscriptions in obtaining patients and performing services. Peterson makes clear that the disposi-tive issue for an FCA claim is whether the particular provider who billed for the services was entitled to receive payment, not whether somebody else would be entitled to compensation if he had performed the services. In sum, Relator asserts, Columbia’s self-referral and kickback system ensured that no Medicare money could legally be paid to it, and all money that was paid by the United States to Columbia constitutes “damages” to the government because the public Treasury was not obligated or liable to pay anything to Columbia. Thus Columbia’s argument that the submission of claims by Columbia is not actionable because there is no pecuniary injury to the United States is erroneous. Furthermore, insists Relator, pecuniary loss is not an element of an FCA cause of action. Rex Trailer Co. v. United States, 350 U.S. 148, 76 S.Ct. 219, 100 L.Ed. 149 (1956) (explicitly rejecting argument that a pecuniary injury has to be shown as a condition to recovery); United States v. Ridglea State Bank, 357 F.2d 495, 497 (5th Cir.1966); United States ex rel. Schwedt v. Planning Research Corp., 59 F.3d 196, 198 (D.C.Cir.1995); United States ex rel, Hagood v. Sonoma Co. Water Agency, 929 F.2d 1416, 1421 (9th Cir.,1991); United States v. Rohleder, 157 F.2d 126 (3d Cir.1946) (relied on by Fifth Circuit in Ridglea State Bank and holding that FCA claimant need not show that government would have saved money if required competitive bidding procedures had been followed); United States ex rel. Pogue v. American Healthcorp., Inc., 914 F.Supp. 1507, 1508-09 (M.D.Tenn.1996) (“[T]he False Claims Act was intended to govern not only fraudulent acts that create a loss to the government but also those fraudulent acts that cause the government to pay out sums of money to claimants it did not intend to benefit”); United States v. Kensington Hosp., 760 F.Supp. 1120, 1126 (E.D.Pa.1991); United States ex rel. Walle v. Martin Marietta Corp., No. 92-3677, 1997 WL 4566 at *1 (E.D.La.1997). The government sustains injury whenever a disqualified person seeks compensation for services which that individual or entity is statutorily precluded from receiving, regardless of whether the amount of that loss can be monetarily quantified in traditional damages terms. Congress has determined that the Medicare system requires protection from illegal remuneration, kickbacks, misrepresentations, and wrongful payments and the peril to the program and to the public fisc that this conduct presents. Hanlester Network v. Shalala, 51 F.3d 1390, 1401-02 (9th Cir.1995). Moreover, Relator asserts that even the Columbia Defendants accept that the pecuniary injury element is satisfied by the government’s investigative and administrative costs caused by violations of the Stark Act and the Medicare Anti-Fraud Act. Relator points out that the Supreme Court has made clear that other expenditures of government funds in addition to those wrongfully paid to a claimant are sufficient to underlie an FCA cause of action. See also United States v. Halper, 490 U.S. at 445, 109 S.Ct. 1892 (recognizing that where FCA forfeitures were allowed for numerous projects on which no actual pecuniary loss had been incurred, the government’s “injuries, of course, included not merely the amount of the fraud itself, but also ancillary costs, such as the costs of detection and investigation, that routinely attend the Government’s efforts to root out deceptive practices directed at the public purse.”). Halper also noted that in Rex Trailer the Supreme Court could have included the government’s investigative and prosecutorial costs in assessing the government’s loss. 490 U.S. at 446 n. 6, 109 S.Ct. 1892. In Ridglea State Bank, the Fifth Circuit also observed “that the investigation necessary to detect a false claim costs the Government money even if no money is paid on the claim.” 357 F.2d at 497. Thus Relator contends that the investigative costs incurred here also constitute ample injury to state a claim for relief for Rule 12(b)(6) purposes. Relator also argues that statutory FCA penalties, by way of forfeitures, are recoverable even without actual damages to the government. The Senate Committee reported that the “forfeiture is automatic and mandatory for each claim which is found to be false. The United States is entitled to recover such forfeiture solely upon proof that false claims were made, without proof of any damages.” S.Rep. No. 99-345, 1986 U.S.Cong.Code & Ad.News at 5273, citing Fleming v. United States, 336 F.2d 475, 480 (10th Cir.1964), cert. denied, 380 U.S. 907, 85 S.Ct. 889, 13 L.Ed.2d 795 (1965). The Fifth Circuit has also determined that while the statute requires the government to show causation between the false statements and the loss before it can recover double damages, where a complaint does not allege damages to the government it still states a claim for recovery of the forfeiture penalty. United States v. Miller, 645 F.2d 473, 475-76 and n. 4 (5th Cir.1981) (“as to the forfeiture, the knowing submission of a false claim to the government is sufficient for the levying of the statutory forfeiture penalty”). In Ridglea State Bank, 357 F.2d at 497, the Fifth Circuit flatly rejected the argument that no FCA cause of action is stated if the government has not incurred actual damages by paying money on a false claim and cited U.S. v. Rohleder, 157 F.2d 126 (1946), for the proposition that “proof of actual damage is not a prerequisite to the recovery of a forfeiture” under the FCA. See also United States ex rel. Marcus v. Hess, 317 U.S. 537, 63 S.Ct. 379, 87 L.Ed. 443 (1943) (affirming district court decision allowing forfeitures for public works projects for which no damage had been incurred). The Columbia Defendants fail to appreciate this central difference between FCA damages and penalties and the fact that the mere presentation of Columbia’s Medicare claims for patients referred in violation of the Stark laws gives rise to civil penalty liability under the FCA where that presentation is explicitly prohibited by § 1395nn(a)(l), for a claim that the defendant knows he is unauthorized to present because it is false, fictitious, and fraudulent. Dimmick v. United States, 116 F. 825, 828 (9th Cir.1902), cert. denied, 189 U.S. 509, 23 S.Ct. 850, 47 L.Ed. 923 (1903), quoted in Kercher v. United States, 409 F.2d 814, 818 (8th Cir.1969). Moreover, the second amended complaint states a claim for civil penalties even if it has not alleged actual, concrete financial loss to the United States. Relator turns to his second claim for violation of the FCA, Columbia’s false certifications of compliance on HCFA form 2552. He maintains that in light of the Fifth Circuit’s holding on appeal, now the law of the case, Columbia Defendants are barred from contesting the sufficiency of the claim and the Court should summarily deny the pending motion to dismiss. 125 F.3d at 902-03 (denying Rule 12(6)(b) motions as they relate to certification issue and remand for further factual development). Relator charges that Columbia’s false certifications of compliance on HCFA form 2552 cost reports, which Columbia is required to file with the Department of Health and Human Services (“HHS”), violate the FCA because they are a condition to Columbia’s retention of funds previously received. The government pays Medicare claims prospectively, while the form 2552 certifications are submitted after payment has already been made. Columbia therefore insists that no FCA violation has occurred because “the submission of a truthful certification of compliance ... was not a prerequisite to the government’s payment of Medicare claims.” Columbia Defs.’ Brief at 7. Relator asserts that Columbia Defendants misrepresent the Medicare claim process. The form 2552 cost reports are promulgated by the Secretary of HHS pursuant to the authority of 42 U.S.C. § 1395g. Section (a) of that statute governs payments to providers of Medicare services: The Secretary shall periodically determine the amount which should be paid under this part to each provider of services with respect to the services furnished by it, and the provider of services shall be paid ... except that no such payments shall be made to any provider unless it has furnished such information as the Secretary may request in order to determine the amounts due such provider under this part for the period with respect to which the amounts are being paid or any prior period. 42 U.S.C. § 1395g (1992). Form 2552, furthermore, expressly states the consequences of a failure or refusal to certify: This report is required by law (42 U.S.C. § 1395g; 42 C.F.R. 413.20(b)). Failure to report can result in all interim payments made since the beginning of the cost report being deemed overpayments. (42 U.S.C. § 1395g). In addition, the regulations implementing Stark II expressly require that any entity collecting payment for a service “performed under a prohibited referral must refund all collected amounts on a timely basis.” 42 C.F.R. 411.353. Thus, sums up Relator, certification of compliance on form 2552 is an absolute condition precedent to retaining the Medicare funds conditionally advanced by the government, not to mention a prerequisite to continued future participation in the program. Without such certification, under the Stark law statute Columbia could be required to forfeit all of interim Medicare payments previously made. Furthermore, Columbia’s false certification of compliance additionally violates subsection (a)(7) of the FCA. Section 3729(a)(7) imposes liability on any person who knowingly makes, uses, or causes to be made or used, a false record or statement to conceal, avoid, or decrease an obligation to pay or transmit money or property to the Government. 31 U.S.C. § 3729(a)(7) (Supp.1998). Relator argues that the amended complaint essentially indicates that Columbia’s false certification was made to conceal its obligation to refund all the amounts it had collected or to avoid or decrease its fixed obligation to transmit that money to the government. Contesting Columbia’s assertion that the form 2552 “is neither the cause in fact of the government’s payment of benefits nor a proximate cause of any injury to the Treasury that the FCA is designed to remedy,” Relator points out that the false record or statement portion of the FCA is written in the disjunctive and that liability arises when a person uses a false statement to get a false or fraudulent statement either “paid or approved by the government.” 31 U.S.C. § 3729(a)(2) (emphasis added). While the cost forms may not need to be submitted by Columbia to obtain the initial provisional payment, the government’s final approval of those interim payments is expressly conditioned upon provision of the certification in both section 1395g and on the face of the HCFA form 2552. Furthermore, interim payments are subject to retroactive adjustments, the first of which is made as soon as the annual cost report is filed. United States v. Gravette Manor Homes, Inc., 642 F.2d 231, 233 (8th Cir.1981). The “nexus” between the certifications and Columbia’s entitlement to payment is clear and the falsity of the submitted forms constitutes a violation of the FCA. Relator argues that despite Columbia’s reliance on Hopper, 91 F.3d 1261, the ease supports his position more than Columbia’s. In that case the court rejected the plaintiffs claim that submission of a certificate to the California Department of Education certifying that the school district in the future would meet all applicable requirements of state and federal law and regulations, including general compliance with the individuals With Disabilities Education Act, violated the FCA. The court emphasized that such certificates of assurance were not a prerequisite to the school district’s receipt of federal funds. In contrast, Relator contends, both 42 U.S.C. § 1395g and its implementing form, HCFA form 2552, make certification of compliance here a prerequisite for federal funds. Relator also distinguishes the facts here from those in Hopper by noting that here the HCFA cost forms require Columbia to certify that the services were provided in the past in compliance with applicable health care laws and regulations, whil