Difference Of Opinion Is Insufficient to Prove False Billing

Today, the Eleventh Circuit ruled in United States v. AseraCare, Inc. that a mere difference of reasonable opinion among doctors is insufficient to prove objectively false billing. Unfortunately, the opinion significantly curtails an FCA win by hospice chain AseraCare, Inc. in the trial court.

United States v. AseraCare, Inc

The underlying case began in 2008, when three former AseraCare employees, acting as qui tam relators, filed a complaint against AseraCare alleging submission of unsubstantiated hospice claims. The Government intervened and filed a complaint based on a false certification theory. The complaint alleged that AseraCare submitted documentation that falsely represented that certain Medicare recipients were terminally ill when, in the Government’s view, they were not.

In developing its case, the Government identified a universe of approximately 2,180 patients for whom AseraCare had billed Medicare for at least 364 continuous days of hospice care. The Government then had its expert focus on 223 patients of that subset. The Government’s expert determined that 123 patients from the sample pool were, in her opinion, ineligible for hospice benefits. At trial, the Government intended to extrapolate from the sample to impose further liability on AseraCare for a statistically valid set of additional claims within the broader universe of AseraCare patients.

The Government’s allegations were narrowly focused and there were no claims that AseraCare billed for phantom patients or that documentation was forged. The sole issue was the sufficiency of the clinical judgments, i.e., whether or not the patients were terminally ill.

Ultimately, the expert testimony at trial revealed a fundamental difference of professional opinion regarding whether the patients presented were “terminally ill.”

The Eleventh Circuit concurred with the trial court’s post-verdict conclusion that “physicians applying their clinical judgment about a patient’s projected life expectancy could disagree, and neither physician [would] be wrong.” The Court further held that the Government must show something more than the mere difference of reasonable opinion concerning the prognosis of a patient’s likely longevity.

The opinion further holds that the trial court judge overlooked evidence showing that the company withheld crucial information about patient health from doctors who certified hospice eligibility.

In criminal cases that go to trial where real services are provided, the issues at trial usually come down to a difference of opinion among experts. This decision makes it clear that a difference of opinion among experts is insufficient to conclude that billings are false, creating an argument for criminal defendants in cases were Government is alleging a lack of medical necessity.

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