On March 18, 2019, the Supreme Court again refused to clarify its seminal ruling in United States ex rel Escobar (discussed here) by denying certiorari in Brookdale Senior Living v. United States, ex rel. Prather, instead sending the case back to district court, where the country’s largest senior living provider faces allegations of untimely certifications of medical necessity. Brookdale had petitioned the Supreme Court to grant cert and address what Brookdale characterized as an “irreconcilable and growing circuit split” over the application of Escobar’s materiality standard after the Sixth Circuit reversed the lower’s court’s dismissal of a qui tam suit against Brookdale (previously discussed here), finding that the relator sufficiently had alleged materiality under the factors articulated in Escobar.

Since Escobar was decided in 2016, courts have struggled with the opinion’s fact-specific materiality analysis. At the start of this Supreme Court term, there was speculation that the Court might address the materiality question after the justices sought the views of the solicitor general in connection with the pending petition in United States ex rel Campie. However, since then, the Justices have denied cert in three materiality related petitions, including Campie, suggesting that the Court is not inclined to revisit Escobar at present, opting instead to let the lower courts grapple with further developing materiality case law.