Government appealing loss in Medicare hospice fraud case

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

The Department of Justice filed a notice of appeal on Friday seeking a new trial against AseraCare, a subsidiary of 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 said “reasonable minds” can disagree on whether a patient is eligible for hospice care, Modern Healthcare reported — but that disagreement doesn't automatically make a claim fraudulent. In order for a patient to become eligible for hospice care, two physicians must decide that they aren't likely to live more than six months.

Bowdre agreed with the provider.

“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,” Bowdre wrote in the ruling.

Law experts told Modern Healthcare if an appeals court sides with the government it could spell trouble for healthcare providers by placing more value on the opinion of government physicians than the front-line physicians who deal directly with patients.