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Eleventh Circuit rules in qui tam False Claims Act case that a clinical judgment of terminal illness warranting hospice benefits under Medicare cannot be deemed false when there is only a reasonable disagreement between medical experts

On September 9, 2019, in United States v. Aseracare, Inc., et al., No. 16-13004, the Eleventh Circuit Court of Appeals reversed a summary judgment for the defendant hospice facility in a qui tam False Claim Act (FCA) litigated by the Department of Justice. The government alleged that the facility falsely certified patients as being terminally ill (life expectancy of less than six months), consequently qualifying them for Medicare benefits paid to the facility. To prevail on an FCA claim, the plaintiff must generally prove that the defendant (1) made a false statement, (2) with scienter, (3) that was material, (4) causing the Government to make a payment. Urquilla-Diaz v. Kaplan Univ., 780 F.3d 1039, 1045 (11th Cir. 2015). In a “false certification” case, such as this, FCA liability may arise where a defendant falsely asserts or implies that it has complied with a statutory or regulatory requirement when, in actuality, it has not so complied. See Universal Health Servs., Inc. v. United States ex rel. Escobar, 136 S. Ct. 1989, 1999 (2016). To prove its case, the government relied on the testimony of an expert who reviewed the records of a sample pool of 223 patients and identified 123 patients whom in his opinion were not terminally ill at the time of the certification. The defense expert disagreed as to the life expectancy of the patients. The government also presented other evidence with which it sought to develop the theory that the defendant’s broader business practices fostered and promoted improper certification procedures while deemphasizing clinical training on terminal-illness prognostication. However, focusing on the expert opinions, the district court granted summary judgment to the defense on the basis that a mere difference of opinion among experts was not sufficient to establish that materially false statements were made. The Eleventh Circuit affirmed on this point, holding that a judgment of terminal illness warranting hospice benefits under Medicare cannot be deemed false when there is only a reasonable disagreement between medical experts about life expectancy. The Eleventh Circuit quoted from the Sixth Circuit’s decision in United States v. Paulus, 894 F.3d 267, 275 (6th Cir. 2018): “[o]rdinarily, facts are the only item that fits in [the false statement] category; opinions—when given honestly—are almost never false . . . .There is no such thing as a false idea.” However, the Eleventh Circuit concluded that the district court erred in not considering all the government’s corroborative evidence and remanded for a reconsideration by the district court in the light of such evidence.

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