On March 31, 2016, the district court granted summary judgment for hospice provider AseraCare in a case alleging that it had submitted false claims to Medicare by certifying patients as eligible for service who did not have a prognosis of six months or less to live if their terminal illness ran its normal course. U.S. ex rel. Paradies v. AseraCare Inc., 2106 WL 1270521 (N.D. Ala. Mar. 31, 2016). In its opinion, the district court reiterated that “the submission of a false claim is the sine qua non of a False Claims Act violation,” and held a “contradiction based on clinical judgment or opinion alone cannot constitute falsity under the FCA as a matter of law.” The district court further explained that 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.”
This opinion comes after an unusual procedural trajectory. As discussed in a previous post, the district court granted AseraCare’s motion to bifurcate the trial, allowing the question of falsity to be tried first. The bifurcation decision came after the district court issued its ruling allowing the government to use statistical sampling and extrapolation to prove falsity. After the jury returned a verdict finding AseraCare had submitted false claims for 104 of the 123 patients in the sample, the district court vacated the jury verdict and reopened the question of whether summary judgment should be entered, noting that it had “committed reversible error in failing to provide the jury with complete instructions as to what was legally necessary for it to find that the claims before it were false.” U.S. ex rel. Paradies v. AseraCare Inc., 2015 WL 8486874 (N.D. Ala. Nov. 3, 2015).
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