In recent years the False Claims Act (“FCA”) has become the Department of Justice’s (“DOJ”) favorite tool to combat large-scale fraud—particularly healthcare fraud. In fact, from 2009 to 2016 alone, the DOJ recovered over $19.3 billion in health care fraud—“more than half the health care fraud dollars recovered since the 1986 amendments to the False Claims Act.” In general, the statute prohibits (1) knowingly submitting false claims to the federal government or causing another to submit a false claim, (2) knowingly creating a false record or statement to get a false claim paid by the federal government, and (3) retaining funds improperly received from the federal government.

Although the FCA originated during the Civil War, Congress has periodically strengthened the FCA through amendments, which have converted it into a “modern weapon” that the DOJ and whistleblowers use to punish providers who knowingly submit false claims or false records or retain funds improperly received from the government. The amendments have permitted larger damages, which in turn have incentivized whistleblowers and the DOJ to use whatever means available to prove liability in as many false claims as possible. During the last five years in particular, that has meant turning away from proving liability for each individual claim and instead using statistical sampling as proof of liability for a much larger number of claims.

For nearly a decade, health care reform has been at the center of American politics. The development, enactment, and reform of the Patient Protection and Affordable Care Act (PPACA)-“Obamacare,” in the parlance of both opposition and advocates-dominated the election cycles of 2010, 2012, 2014, and 2016, and continued policy changes and market instabilities are all but certain to remain in the spotlight through 2018 and 2020. The endurance of this debate should come as no surprise: national attempts to expand access to affordable medical services have a long history, beginning not with Barack Obama, Mitt Romney, Bill Clinton, or even Lyndon Johnson, but with Teddy Roosevelt and the Progressive Party in 1912. Along the way, while employer-provided insurance came to form the cornerstone of American health care coverage, a wide range of proposals sought to extend benefits to the uninsured, including efforts to create tax subsidies, to introduce single-payer government care, and to impose employer and individual mandates. Of course, it was that final option-the individual mandate, requiring that taxpayers either carry insurance or pay for their failure to do so-that featured in the law finally passed by Congress in 2010. Of “critical importance,” the mandate was “the price for the [insurance] industry’s cooperation.” However, “perhaps because prominent Republicans had [originally] endorsed the idea, Democrats underestimated the problems it would cause.” While the mandate still survives in full through 2018, it will continue only nominally thereafter: shortly before this Note went to press, the narrow Republican majorities in Congress-following years of promises to “repeal and replace” -reduced the mandate’s penalty to $0 for 2019 and beyond, although procedural limitations required them to leave intact the theoretical command.

The mandate has been the subject and survivor of substantial litigation, as well as of considerable scholarship. Underexplored, however, is a provision within the mandate giving special consideration and accommodation to those who obtain membership in a type of medical collective known as a health care sharing ministry: such members are entirely exempt from the PPACA’s requirements. This provision is unique in federal law. Unlike traditional conscientious-objector exemptions (which the PPACA also grants), the sharing ministry exemption demands no showing of a religious burden: to avoid the demands of the individual mandate, one need only join a club structured around shared ethical principles. And as a nation, join we have: sharing ministry membership has expanded dramatically since 2010, so dramatically that the exemption may have helped to accelerate the destabilization of the very risk pools that the Act was meant to supply. But the ability to join is not universal to people of all faiths and creeds, for the exemption contains a cutoff-date clause that not only forecloses the formation of new sharing ministries, but also limits the benefit of an exemption to members of just those sharing ministries which were in operation ten years before the PPACA’s passage. Whether by accident or design, the effect of this limitation is to enshrine in law an accommodation for only five ministries-each one explicitly Christian in its tenets and joining requirements.