Jack Selden

On March 31, 2016, NAFUSA member Jack Selden and his firm, Bradley Arant Boult Cummings LLP, won summary judgment on behalf of AseraCare, Inc. in an important False Claims Act case. Judge Karon Bowdre held that the government’s second guessing of physicians’ medical judgment alone cannot prove false claims. Judge Bowdre struck down a $200 million FCA case against the hospice provider, holding that the government’s second guessing of physicians’ medical judgment alone cannot prove false claims.

On Monday, October 17, 2016, Selden and his team from Bradley, urged the Eleventh Circuit to preserve the AseraCare’s high-profile victory with its opening brief. As reported by Law360 on October 18, 2016:

Monday’s brief focused heavily on a pivotal ruling in which the judge limited the DOJ’s evidence in the trial’s first phase to expert testimony and patient records, which were meant to demonstrate objective falsity. On the eve of trial, the DOJ attempted to introduce more evidence, but the judge concluded that its attempt came too late.

According to AseraCare, the DOJ “severely limited its evidence” by not disclosing the evidence sooner, making the eventual grant of summary judgment “straightforward and inevitable.”

“Because of the government’s self-imposed limits on its evidence pertaining to the FCA’s falsity element, the government did not have sufficient evidence to create a jury question,” AseraCare wrote.

In its opening brief, the DOJ in August warned that health care providers could easily escape FCA liability under the district court’s reasoning simply by pointing to differences of opinion among doctors about appropriate treatment. But AseraCare pushed back on that assertion, arguing that its case only came down to differences of opinion because of the DOJ’s limited evidence.

“Although the district court made clear that, ‘without more,’ a difference of opinion among physicians would not be sufficient evidence of falsity, the government ignores the words ‘without more’ when it makes the specious argument that the district court’s holding would unduly impede the government’s ability to pursue fraud,” AseraCare wrote.

Terminal illness means that a patient is expected to have six months or less to live. Medicare patients who elect hospice care get treatment aimed at improving quality of life but also must give up Medicare coverage for potential lifesaving treatment.

In Monday’s brief, AseraCare also accused the DOJ of glossing over statutory language that says certifications of terminal illness should be based on physician judgment.

“The government completely ignores that Congress established a certifying physician’s clinical judgment as the sole criterion for a patient’s eligibility for the Medicare hospice benefit,” according to AseraCare.

The DOJ is also contending that the district judge conflated two required elements of FCA liability: a false claim and knowledge of falsity. Its reasoning was that differences of opinion are relevant only to knowledge of falsity — an element of FCA liability that was to be explored in a second trial phase that never took place.

But AseraCare on Monday said that the DOJ’s contention “misses the mark.” It argued that because evidence presented in the first trial phase was limited to objective falsity, the two elements therefore “could not have been conflated.”