Feds seek redo in hospice eligibility case

The Department of Justice is refusing to back down in a fight over physicians and patient hospice eligibility. 

The agency filed a notice of appeal in late May seeking a new trial against AseraCare, a subsidiary of long-term giant Golden Living that provides hospice and palliative care in 19 states. The government joined a whistleblower suit against the company in 2012, claiming it had knowingly submitted false Medicare claims for patients who were not medically eligible for hospice care.

U.S. District Court Judge Karon Bowdre ruled in favor of AseraCare in March, saying the case “boiled down” to conflicting physician views on hospice eligibility.

AseraCare had previously stated that “reasonable minds” can differ on whether a patient is eligible for hospice care, but a disagreement doesn't automatically make a claim fraudulent. In order for a patient to become eligible for hospice care, two physicians must decide that the patient isn't likely to live more than six months.

Bowdre sided with the provider, writing:

“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.” 

In its notice of appeal, the DOJ said it would appeal Bowdre's ruling, as well as how the case was handled — the trial was split into two phases, one to determine falsity of the claims and a second to calculate damages.

Should an appeals court side with the DOJ, it could ramp up pressure on healthcare providers by placing more value on the opinion of government physicians than front-line doctors who deal directly with patients, law experts told Modern Healthcare. n