Stephen A. Wood is a Partner with Chuhak & Tecson, P.C. in Chicago, IL and serves as the WLF Legal Pulse’s Featured Expert Contributor on the False Claims Act.

Can a medical opinion that serves as the basis for a treatment recommendation and subsequent federal Medicare/Medicaid reimbursement qualify as a false statement subjecting a defendant to liability under the False Claims Act?  That was the question at issue in United States v. AseraCare, Inc., 938 F.3d 1278 (11th Cir. 2019).  On appeal from the trial court’s post-verdict grant of summary judgment for the defendant (that’s correct, post-verdict summary judgment), the Eleventh Circuit explored the various angles of how statements of opinion could possibly represent false statements leading to FCA liability.  The case is important for what it says not only about the requirement of falsity under the FCA, but also the government’s enforcement zeal where the defendant’s conduct falls short, even well short, of an intent to commit fraud.

United States v. AseraCare—The Facts 

The defendants in this case provide end-of-life hospice care services to patients.  They operated a network of 60-some facilities located in 19 states, taking in roughly 10,000 patients annually.  The vast majority of these 10,000 or so patients were enrolled in Medicare, and Medicare payments represented 95% of the defendants’ revenues.