Differences in Clinical Opinion Do Not Show Fraud under the False Claims Act, 11th Circuit Rules

October 2, 2019 | Strategic Insights for Health System


​By themselves, differences in clinical opinion among medical experts cannot support a finding of false certification for hospice eligibility under the False Claims Act (FCA), the U.S. Court of Appeals for the 11th Circuit held. In the lawsuit, the government had alleged that a network of hospice facilities routinely billed Medicare based on inaccurate clinical judgments that the patients were terminally ill. In so ruling, the 11th Circuit affirmed the trial court's decision regarding this issue and its granting of a new trial. However, the court reversed and remanded in part, stating that the government needed a chance to rely on the entire record to show that other facts suggested that the hospice provider knew that it was submitting false claims.

Three former employees filed a whistleblower suit against the hospice provider, alleging that it knowingly submitting unsubstantiated claims for Medicare payment; the government later intervened and filed suit. The government identified about 2,180 patients for whom the hospice provider had billed Medicare for at least 365 continuous days of hospice care. The government's primary medical expert identified a sample of 123 patients who he believed were not terminally ill at the time of certification. Thus, the government argued that the claims for...

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