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United States v. AseraCare Inc

United States District Court for the Northern District of Alabama, Southern Division

March 31, 2016, Decided; March 31, 2016, Filed




"Contradiction is not a sign of falsity, nor the lack of contradiction the sign of truth."

~Blaise Pascal

This case has always been about whether AseraCare knowingly submitted false claims to Medicare by certifying patients as eligible for hospice who did not have a prognosis of "a life expectancy of 6 months or less if the terminal illness runs its normal [**3]  course." See 42 C.F.R. § 418.22(b)(1) (emphasis added). The Government claims that the medical records of the 123 patients at issue in this case do not contain "clinical information and other documentation that support [this] medical prognosis," and thus, AseraCare's claims for those patients were "false." (Doc. 493 at 11-16). However, this case boils down to conflicting views of physicians about whether the medical records support AseraCare's certifications that the patients at issue were eligible for hospice care. When hospice certifying physicians and medical experts look at the very same medical records and disagree about whether the medical records support hospice eligibility, the opinion of one medical expert alone cannot prove falsity without further evidence of an objective falsehood.

In its November 3, 2015, Memorandum Opinion, the court set out the applicable law in this case regarding the falsity element of the False Claims Act. (Doc. 482).1 In finding that it had incorrectly instructed the jury on the falsity element in Phase One of the trial, the court granted a new trial and concluded that, to prove falsity, the Government would have to provide more evidence than just the opinion of a medical [**4]  expert who disagrees with the certifying physicians and other medical experts regarding whether the medical records support hospice eligibility. (Id.). A mere difference of opinion between physicians, without more, is not enough to show falsity. See e.g., United States ex rel. Phalp v. Lincare Holdings, Inc., 116 F. Supp. 3d 1326, 1360 (S.D. Fla. 2015) ("Expressions of opinion, scientific judgments, or statements as to conclusions about which reasonable minds may differ cannot be false.").

As the Eleventh Circuit recently reconfirmed, "our case law is clear: the submission of a false claim is the sine qua non of a False Claims Act violation." Urquilla-Diaz v. Kaplan Univ., 780 F.3d 1039, 1052 (11th Cir. 2015) (citations and internal quotations omitted). "The FCA requires 'proof of an objective falsehood.'" United States ex rel. Parato v. Unadilla Health Care Ctr. Inc., 787 F. Supp. 2d 1329, 1339 (M.D. Ga. 2011); see also United States ex rel. Lawson v. Aegis Therapies, Inc., No. CV-210-072, 2015 U.S. Dist. LEXIS 45221, 2015 WL 1541491, at *12 (S.D. Ga. Mar. 31, 2015). Further, "'[p]ractices that may be improper, standing alone, are insufficient to show falsity without proof that specific claims were in fact false when submitted to  [*1284]  Medicare.'" Urquilla-Diaz, 780 F.3d at 1045 (quoting Corsello v. Lincare, Inc., 428 F.3d 1008, 1012 (11th Cir. 2005)) ("Liability under the False Claims Act arises from the submission of a fraudulent [**5]  claim to the government, not the disregard of government regulations or failure to maintain proper internal procedures.").

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176 F. Supp. 3d 1282 *; 2016 U.S. Dist. LEXIS 42986 **

UNITED STATES OF AMERICA; ex rel., et al., Plaintiffs, v. ASERACARE INC, et al., Defendants.

Subsequent History: Affirmed in part and remanded in part by United States v. AseraCare, Inc., 2019 U.S. App. LEXIS 27074 (11th Cir. Ala., Sept. 9, 2019)

Prior History: United States v. AseraCare Inc., 2012 U.S. Dist. LEXIS 136059 (N.D. Ala., Sept. 24, 2012)


patients, falsity, medical record, hospice, certifying, summary judgment, eligibility, medical expert, clinical, sua sponte, new trial, difference of opinion, false claim, contradiction