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Good News, Providers: A Mere Difference of Medical Opinion Does Not A False Claim Make

FINALLY, some good news for providers related to false claims. In a very important Alabama case, a federal trial court granted summary judgment to AseraCare, Inc., in a False Claims Act[1] action where it had been alleged that the hospice program had knowingly submitted false claims to Medicare for patients who were allegedly not terminally ill. In its opinion, the U.S. District Court ruled that the Government may not prove falsity for purposes of the False Claims Act based solely upon the opinion of one medical expert who disagrees with the certifying physician and the patient's treating physicians about whether the medical records reported eligibility for the hospice benefit. In a ruling that all health providers can cheer, the court held that "[a] mere difference of opinion between physicians, without more, is not enough to show falsity."[2]

[1] 31 U.S.C. §§ 3729–3733

[2] United States v. AseraCare, lnc., No. 2:12-CV-245-KOB (MD

Alabama March 31, 2016) at 2.

Fingers crossedIn this False Claims action, the government alleged that AseraCare submitted false claims to Medicare by certifying patients as eligible for patient care who did not have a prognosis of a life expectancy of 6 months or less if the terminal illness runs its course. To demonstrate that the claims for 123 patients were false, the government relied upon the testimony of its one medical expert and the patients' medical records. The government's expert testified that based on his clinical judgment, the sample of 123 patients at issue were ineligible for patient care. After a 10 week trial, a jury found that AseraCare submitted false claims for 104 patients during all or some of their hospice stays. The trial court overturned the verdict, finding the jury instructions to be flawed because they did not specify that the False Claims Act requires proof of an objective falsehood, not a mere difference of medical opinion. In the March 31, 2016 ruling, the Court found that the government failed to point to any admissible objective evidence of falsity to make its case. The Court stated that "allowing a mere difference of opinion among physicians alone to prove falsity would totally eradicate the clinical judgment required of the certifying physicians."[1] In this case, AseraCare's medical experts and the Government's medical experts looked at the patient records but came to different conclusions about the patients' eligibility for hospice. Fortunately for the hospice programs, the Court found that the Government couldn't prove falsity as a matter of law because it offered only a difference of opinion about which reasonable minds could differ.

This is good news for hospice providers, as CMS and the Office of lnspector General are focusing on the eligibility status of hospice patients whose hospice care has extended past the 6 month mark. This is also good news for healthcare providers everywhere, as a ruling in the other direction would have led to increased False Claims Act liability for providers that make decisions based on their own medical judgment and good faith within their practices. Such a scenario is frightening at best. Finally – some good news! For more information on this case and how the ruling may affect False Claims Act actions going forward, contact the attorneys at McBrayer.

Lisa English Hinkle

Lisa English Hinkle is a Member of McBrayer, McGinnis, Leslie & Kirkland PLLC. Ms. Hinkle chairs the healthcare law practice and is located in the firm’s Lexington office. Contact Ms. Hinkle at lhinkle@mmlk.com or (859) 231-8780, ext. 1256, or reach out to any of the attorneys at McBrayer. We take a team approach to deliver effective counsel to all our clients, so other attorneys in the firm may perform these services as well.

This article does not constitute legal advice.

[1] Ibid. at 5

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