Statement from NHPCO

To:          NHPCO Membership
From:    Edo Banach, President and CEO
Date:     September 10, 2019

Eleventh Circuit Confirms Mere Difference of Opinion Between Physicians Does Not Establish Falsity Under the False Claims Act

On December 31, 2014, NHPCO filed an Amicus Brief with the U.S. Court of Appeals for the Eleventh Circuit regarding a False Claims lawsuit and what constitutes a falsity under the FCA. This brief was filed by NHPCO with support of many in the entire provider community.

Providers may remember the case, which ultimately debates the authority of a Medical Director to be confident that medical decisions made in good faith and grounded in medical science should not be questioned and reversed years after the fact.

NHPCO’s Amicus Brief argued that a “disagreement among physicians as to an individual’s terminal prognosis based on a review of the individual’s medical record give rise to a FCA violation, ignores the well-recognized difficulty of accurately predicting the end of life and threatens to undermine Congress’s goal of ensuring access to the Medicare hospice benefit where a physician has concluded, in his or her clinical judgement, that a patient is terminally ill.”

To simplify the legal point that NHPCO was making and continues to stand by: If the government (in this case, the Centers for Medicare and Medicaid Services) accepts a Medical Director’s determination of a terminal prognosis and approves a beneficiary’s claims for hospice care services, CMS cannot come back and demand repayment based on a change of opinion on prognosis or medical necessity.

To trace the case through the courts, on March 31, 2016, the court of the Northern District of Alabama granted summary judgment in favor of AseraCare, finding that “contradiction based on clinical judgment or opinion alone cannot constitute falsity under the False Claims Act as a matter of law.” The court recognized that “[w]hen two or more medical experts look at the same medical records and reach different conclusions about whether those medical records support the certifying physicians’ certifications of terminal illness, all that exists is a difference of opinion.” The case then went to the Eleventh Circuit who returned a decision on September 9, 2019. The Eleventh Circuit agreed with the District Court’s determination that “a clinical judgment of terminal illness warranting hospice benefits under Medicare cannot be deemed false, for purposes of the False Claims Act, when there is only a reasonable disagreement between medical experts as to the accuracy of that conclusion, with no other evidence to prove the falsity of the assessment.”

Putting aside the merits of this particular case, NHPCO wants to reinforce among the provider community that a mere difference of opinion does not constitute falsity under the FCA.

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