Eleventh Circuit Decision Will Impact FCA Healthcare Investigations

By on December 30, 2019

Executive Summary of an article written by
Kathleen McDermott, Morgan, Lewis & Bockius LLP

The Court of Appeals for the Eleventh Circuit issued its much-awaited decision in United States v. AseraCare, Inc., debunking the government’s flawed theory that mere differences in clinical opinion can support punitive False Claims Act liability. The decision is significant for hospice providers and all healthcare providers that have battled government enforcers for the last decade on its theory that evidence of subjective lack of medical necessity is fraud.

Although health care providers should feel good that a federal court understood the disputed issues for the hospice benefit and issued a reasoned decision, the AseraCare decision is not a good reason to take the foot off the pedal for strong clinical compliance oversight assuring that services to patients meet eligibility criteria. Sustained compliance oversight by corporate boards is now an expected norm. Compliance programs should be querying data to assess whether there is a questionable pattern of too little or too many services and reporting these findings to the board.

AseraCare is an interesting decision and strong precedent in favor of healthcare providers who provide services based on medical necessity or clinical eligibility.

But it is one tree in a vast forest. The healthcare community should heed the court’s caveats that documentation should support well-founded physician judgement and assure that its clinical practices can consistently meet this favorable standard. It should strive to use data analytics to identify irregular trends that may reveal issues with physician participation in their programs.

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