Home Health & Hospice Week

Forthcoming decision could determine fate of many whistleblower cases.

A U.S. Appeals Court ruling expected any time may have a major impact on how prevalent whistleblower cases are going forward.

Recap: In 2015, jurors in Alabama federal court found that 104 of the 121 claims they examined in the case against for-profit hospice chain Asera-Care were false (see Eli's HCW, Vol. XXIV, No. 38).

But in an unusual move, Judge Karon Bowdre tossed out the judgment and ordered a new trial based on erroneous jury instructions. Then she told the Department of Justice to come up with proof that the case could prove false claims via "object falsity" rather than a difference of medical opinion.

"If the court were to find that all the Government needed to prove falsity in a hospice provider case was one medical expert who reviewed the medical records and disagreed with the certifying physician, hospice providers would be subject to potential FCA liability any time the Government could find a medical expert who disagreed with the certifying physician's clinical judgment," Bowdre said in the decision. "The court refuses to go down that road."

As promised, the feds appealed the ruling and the parties argued the case in front of the 11^th Circuit Court of Appeals in October 2016. They, and the rest of the healthcare industry, are still waiting on a decision that will influence how government prosecutors use False Claims Act cases.

"This is going to be a pivotal case," attorney Justin Linder told The Atlanta Journal-Constitution newspaper. If the court upholds the district judge's ruling, "then you have some very far-ranging ramifications, not only to hospices but to any health care providers whose health care reimbursement is conditioned on providing medically necessary services," said Linder, with Dughi, Hewit & Domalewski in New Jersey.

The result: More fraud cases will likely proceed to trial, rather than settle out of court and "it could also wipe out a number of cases that already have been filed," Linder said.

If the appeals court rules against the lower court, then the government may pursue more whistleblower cases, experts predict.