By Zack Buck
A particularly noteworthy health care fraud case—one that could have a major impact on the falsity requirement of the Federal Civil False Claims Act (FCA)—awaits a decision from the Eleventh Circuit as we enter the second half of 2017. U.S. v. AseraCare, a case that could determine whether “objective falsity” and not only a “difference of opinion” is required for FCA liability, had oral arguments in mid-March in front of the Eleventh Circuit, and has been called a “case to watch” in 2017. A decision is still forthcoming.
AseraCare was particularly notable because the FCA claim—which was alleged against the corporate hospice provider for allegedly fraudulently certifying individuals for hospice eligibility among other alleged claims—was abruptly dismissed in the Northern District of Alabama in 2016. Rejecting the claims because the government failed to prove that the claims at issue were objectively false, Federal District Court Judge Judge Karon Owen Bowdre found that the government only proved that a clinical disagreement existed as to whether or not the patients should have been certified as hospice-eligible, which was insufficient to prove a false claim under the FCA. According to the court, allowing the government to prove that a FCA action could be maintained based only upon the government’s disagreement with the defendant’s clinical judgment would allow the government to “short-circuit” the FCA’s falsity requirement.
Interestingly, this has been a common argument from defendants who have felt targeted by aggressive prosecutors who seek FCA liability for care that is allegedly unnecessary, but may not be unanimously so, at least according to clinical experts. Indeed, upholding the dismissal would constitute a major win for these defendants. Absent an “objective falsehood,” the potent FCA would be inapplicable—a stunning development in the often clinically murky area of complex medical practice, with major implications for health care fraud enforcement.
More details about the case (including other similar cases and their interaction with other payment reforms) are the topic of my most recent forthcoming article here.