The U.S. District Court for the Northern District of Alabama awarded summary judgment to AseraCare in a False Claims Act (FCA) case stemming from whistleblower allegations that AseraCare knowingly certified clinically ineligible patients as eligible for Medicare hospice benefits. The court found that when hospice certifying physicians and medical experts look at the same medical records and disagree about whether the medical records support hospice eligibility, the opinion of one medical expert alone is not sufficient to prove falsity as a matter of law.

The government alleged that AseraCare submitted false claims to Medicare by certifying patients as eligible for hospice benefits who did not have a prognosis of “a life expectancy of 6 months or less if the terminal illness runs its normal course.” Such certifications, known as Certificates of Terminal Illness, are based on the certifying physician’s clinical judgment. To prove falsity, the government relied on the testimony of its medical expert, Dr. Solomon Liao, and the patients’ medical records, which Dr. Liao contended did not support the patients’ prognoses.

Although the court initially denied AseraCare’s motion for summary judgment, the court sua spontereconsidered the motion after vacating a jury verdict in favor of the government upon finding that the court’s jury instructions were incorrect. Specifically, the district court determined that it should have instructed the jury that a mere difference of opinions among physicians, without more, is insufficient to show falsity under the FCA.

On reconsideration of AseraCare’s motion for summary judgment, the court determined that the government failed to point to any admissible evidence to prove falsity other than Dr. Liao’s opinion that the patients’ medical records at issue did not support certification for hospice services. Importantly, AseraCare’s medical experts opined that the information in the same patient medical records supported hospice eligibility. The court found that this difference in opinion among experts alone did not constitute falsity under the FCA. In support of its ruling, the court noted that CMS guidance emphasizes the importance of a physician’s clinical judgment in the hospice certification process. Thus, the court reasoned that allowing a mere difference of opinion among physicians to prove falsity “would totally eradicate the clinical judgment required of the certifying physicians.” The court further observed that the government had “backed itself into a corner regarding its proof of falsity” by representing to the court that the government did not intend to use the testimony of relators’ or the treating clinicians’ to prove falsity. Instead, the government relied solely on the testimony of an expert who simply offered expert opinion based on the expert’s clinical judgment.

Because a difference of opinion between physicians and medical experts about which reasonable minds could differ was all the government presented to prove falsity of the claims for the patients at issue, the district court concluded that the falsity element could not be proven as a matter of law and, therefore, granted AseraCare’s motion for summary judgment.