Keeping an Eye on the Eleventh

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.

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This entry was posted in Health Care Finance, Health Law Policy, Medicare/Medicaid, Zack Buck by buckz. Bookmark the permalink.

About buckz

Isaac D. (“Zack”) Buck is an assistant professor at the University of Tennessee College of Law, where he teaches torts and various health law courses. His scholarship focuses on how health care cost impacts the quality of American health care and the role of the physician. In 2013, he was selected as a Health Law Scholar as part of the ASLME Health Law Scholars Workshop at Saint Louis University School of Law, and he has recently published articles in the Ohio State Law Journal, Maryland Law Review, U.C. Davis Law Review, and Cardozo Law Review, and has articles forthcoming in the California Law Review and Florida State Law Review in 2016. Before joining Tennessee, Zack was an assistant professor at Mercer University School of Law, and was formerly a visiting assistant professor at Seton Hall University School of Law. Upon graduation from law school, he practiced law at Sidley Austin LLP in Chicago. Zack holds a J.D. from the University of Pennsylvania Law School, a Masters of Bioethics from the University of Pennsylvania School of Medicine Center for Bioethics, and a B.A. from Miami University (OH).

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