A major hospice provider is praising an appeals court decision that agreed a clinical judgment cannot be deemed as fraud under the False Claims Act based on a difference of physician opinions.  

The ruling by the U.S. Court of Appeals for the Eleventh Circuit, however, also vacated a March 2016 ruling in favor of AseraCare, a subsidiary of Golden LivingCenters. The court agreed with the previous ruling that a clinical judgment cannot be deemed as fraud under the False Claims Act “when there is only a reasonable disagreement between medical experts as to the accuracy of that conclusion” and no other evidence to support the claim.

AseraCare applauded the opinion, saying it “provides comfort for the physicians who are making these difficult determinations related to terminally ill patients as well as the hospice providers who are reimbursed by Medicare for services for these patients.”

The government joined a whistleblower lawsuit against AseraCare in 2012, accusing it of knowingly submitting false Medicare claims for patients who were not medically eligible for hospice care. It argued that many patients were not terminally ill at the time of the certification and the company’s claims were false under the False Claims Act. 

The government’s case may have been given new life after the appeals court ruled the lower court failed to consider relevant evidence before ruling in favor of the provider. 

The court vacated the 2016 ruling in favor of AseraCare, saying the federal 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 (and) beyond just the difference of opinion between experts.” 

“Nonetheless, under all these unusual circumstances, it is only fair that the government be allowed to have summary judgment considered based on all the evidence presented at both the summary judgment and trial stages, and we direct that this occur,” court documents stated.

The district court’s post-verdict grant of summary judgment in favor of AseraCare was vacated and the case was remanded for further consideration.