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United States v. AseraCare, Inc.

United States Court of Appeals for the Eleventh Circuit

September 9, 2019, Decided

No. 16-13004


 [*1281]  JULIE CARNES, Circuit Judge:

This case requires us to consider the circumstances under which a claim for hospice treatment under Medicare may be deemed "false" for purposes of the federal False Claims Act. Defendants comprise a network of hospice facilities that routinely bill Medicare for end-of-life care provided to elderly patients. In the underlying civil suit, the Government alleged that Defendants had certified patients as eligible for Medicare's hospice benefit, and billed Medicare accordingly, on the basis of erroneous clinical judgments that those patients were [**3]  terminally ill. Based on the opinion of its expert witness, the Government contends that the patients at issue were not, in fact, terminally ill at the time of certification, meaning that AseraCare's claims to the contrary were false under the False Claims Act.

As the case proceeded through discovery and a partial trial on the merits, the district court confronted the following question: Can a medical provider's clinical judgment that a patient is terminally ill be deemed false based merely on the existence of a reasonable difference of opinion between experts as to the accuracy of that prognosis? The district court ultimately answered this question in the negative and therefore granted summary judgment to AseraCare on the issue of falsity.

Upon careful review of the record and the relevant law, and with the benefit of oral argument, we concur with the district court's ultimate determination that a clinical judgment of terminal illness warranting hospice benefits under Medicare cannot be deemed false, for purposes of the False Claims Act, when there is only a reasonable disagreement between medical experts as to the accuracy of that conclusion, with no other evidence to prove the falsity [**4]  of the assessment. We do, however, think that the Government should have been allowed to rely on the entire record, not just the trial record, in making its case that disputed issues of fact, beyond just the difference of opinion between experts, existed sufficient to warrant denial of the district court's post-verdict sua sponte reconsideration of summary judgment on the falsity question. We therefore affirm in part and remand in part.

 [*1282]  I. BACKGROUND 2

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938 F.3d 1278 *; 2019 U.S. App. LEXIS 27074 **; 28 Fla. L. Weekly Fed. C 283; 2019 WL 4251875

UNITED STATES OF AMERICA, Plaintiff - Appellant, versus ASERACARE, INC., GGNSC ADMINISTRATIVE SERVICES, d.b.a. Golden Living, f.k.a. Beverly Enterprises, Inc., HOSPICE PREFERRED CHOICE, INC., HOSPICE OF EASTERN CAROLINA, INC., Defendants - Appellees.

Prior History:  [**1] Appeal from the United States District Court for the Northern District of Alabama. D.C. Docket No. 2:12-cv-00245-KOB.

United States v. AseraCare Inc, 176 F. Supp. 3d 1282, 2016 U.S. Dist. LEXIS 42986 (N.D. Ala., Mar. 31, 2016)


patient, clinical, falsity, hospice, certification, reimbursement, eligibility, district court, terminally ill, medical record, documentation, Phase, terminal illness, prognosis, provider, certifying, summary judgment, life expectancy, judgments, hospice care, new trial, bifurcation, falsehood, false claim, legal standard, regulation, practices, purposes, records, difference of opinion

Governments, Federal Government, Claims By & Against, Labor & Employment Law, Employer Liability, False Claims Act, Burdens of Proof, Remedies, Treble Damages, Scope & Definitions, Qui Tam Actions, Civil Procedure, Appeals, Summary Judgment Review, Standards of Review, Standards of Review, Abuse of Discretion, Judgments, Relief From Judgments, Motions for New Trials, Legislation, Interpretation, Healthcare Law, Insurance Coverage, Health Insurance, Medical Necessity, Public Health & Welfare Law, Social Security, Medicare, Coverage, Scope & Definitions