United States: Eleventh Circuit Confirms: Mere Difference Of Opinion Between Physicians Does Not Establish Falsity Under The False Claims Act

More than two years after the Northern District of Alabama granted summary judgment in a False Claims Act (FCA) case in favor of AseraCare Inc., holding that "contradiction based on clinical judgment or opinion alone cannot constitute falsity under the FCA as a matter of law[,]"1 the Eleventh Circuit has affirmed in part and vacated in part the district court decision. The case will now be remanded to the district court for further proceedings. Critically, the Eleventh Circuit concurred with the district court's ultimate determination that "a clinical judgment of terminal illness warranting hospice benefits under Medicare cannot be deemed false, for purposes of the False Claims Act, when there is only a reasonable disagreement between medical experts as to the accuracy of that conclusion, with no other evidence to prove the falsity of the assessment."2In other words, a mere difference of opinion does not constitute falsity under the FCA.

The AsceraCare case began in 2008 when three qui tam relators filed a complaint alleging the company had submitted unsubstantiated hospice claims. The government later intervened and filed the operative complaint. The U.S. Department of Justice sought $202 million in fines and penalties, arguing that AseraCare, a hospice provider, fraudulently billed Medicare for hospice patients who were not, in the government's view, terminally ill.3

In order for a hospice claim to be eligible for Medicare reimbursement, a physician must "certify in writing at the beginning of [each] period, that the individual is terminally ill . . . based on the physician's or medical director's clinical judgment regarding the normal course of the individual's illness."4 "Terminally ill" means that the individual has a medical prognosis that the individual's life expectancy is 6 months or less if the illness runs its normal course.5 Of course, as CMS has recognized, "[p]redicting life expectancy is not an exact science."6 Accordingly, the Medicare framework covers reimbursement for periods of hospice care that extend beyond six months, as long as the patient's eligibility is continually recertified every 60 days after an initial 90-day period.7

From the beginning, this case was procedurally intriguing. The district court chose to bifurcate the trial, restricting the first phase to evidence on the issue of falsity, and the second phase to the presentation of evidence on the question of whether AseraCare submitted false claims "knowingly," as that term is defined by the FCA. After a 10-week trial and nine days of deliberations on phase one, the AseraCare jury found that the majority of the sample claims were false. Shortly thereafter, the district court ordered a new trial, finding that its jury instructions on falsity were incomplete, and sua sponte reopened summary judgment. In granting summary judgment for AseraCare, the district court recognized that "all that exists is a difference of opinion."8 And a difference of opinion, without more, simply is not enough to establish that a claim is false.

The Eleventh Circuit agreed with the district court's analysis on that issue. The evidence in AseraCare revealed a fundamental difference of expert opinion regarding the manner in which each patient's complete medical picture contributed to his or her life expectancy at the time he or she received hospice care. The Eleventh Circuit took a hard look at the text and history of the hospice rules and regulations. It found that "CMS's rulemaking commentary signals that well-founded clinical judgments should be granted deference."9The Eleventh Circuit further found that the legal framework asks only that "physicians exercise their best judgment in light of the facts at hand and that they document their rationale."10 It does not require certainty.

So what does this mean for falsity under the theory of false certification? Reasonable differences of opinion among physicians who have reviewed the same medical charts is not enough: "A properly formed and sincerely held clinical judgment is not untrue even if a different physician later contends that the judgment is wrong."11 Accordingly, in order to properly state a claim under the FCA in the context of hospice reimbursement, a plaintiff alleging that a patient was falsely certified for hospice care must identify an objective and knowing falsehood. The Eleventh Circuit noted that objective falsity can be proved if (1) the certifying physician fails to examine the underlying medical records, (2) the certifying physician did not subjectively believe that the patient was terminally ill, or (3) if expert evidence proves that no reasonable physician could have concluded that a patient was terminally ill.12 In the absence of such evidence of an objective falsehood, however, the FCA is "an inappropriate instrument."13

The Eleventh Circuit did, however, agree with the government that the district court erred in granting summary judgment sua sponte. The appellate court found that the district court should have considered all the evidence, both in the trial record and the summary judgment record, to determine whether a triable issue existed regarding falsity.14 The court acknowledged that there may be evidence of improper certification practices that could support a finding that AseraCare presented objectively false claims for payment to Medicare. However, in another holding that may be even more significant for the broader issue of FCA liability, the court admonished that, on remand, the government must be able to link any evidence of improper certification practices to the 123 claims specifically at issue in its case. Endorsing an argument that we often present on behalf of clients, the Eleventh Circuit stated that "[s]uch linkage is necessary to demonstrate both falsehood and knowledge."15

This instruction could have wide-ranging impact in FCA litigation. The court's caution may be aimed at an approach relators and the government frequently invoke in health care cases – alleging that evidence of a "corporate scheme" and evidence of false claims can support an inference of causation and then a basis for extrapolation. Here, the Eleventh Circuit states that "untethered" evidence of corporate atmosphere is not sufficient insisting that linkage must be shown before misconduct can be found to have infected a particular claim for which the defendant can be held liable under the FCA. That holding may also help defense counsel argue against extrapolation from a sample for liability and damages because there is no linkage to the extrapolated claims.

The Medicare hospice benefit does not incorporate objective standards for physician certification of terminal illness. Rather, Congress placed the difficult task of prognostication squarely within physicians' clinical judgment. For the first time, a Circuit court has considered the question of falsity in the context of the Medicare hospice benefit, where the controlling condition of reimbursement is a question of physician's clinical judgment of likely future events. And the Court's answer is clear: a mere difference of reasonable opinion between physicians, without more, as to the prognosis for a patient seeking hospice benefits does not constitute an objective falsehood under the FCA.16


1           United States v. AseraCare Inc, 176 F. Supp. 3d 1282, 1286 (N.D. Ala. 2016).

2           United States v. AseraCare Inc., No. 16-13004, slip op. at 3 (11th Cir. Sept. 9, 2019) (published).

3           Id. at 10.

4           42 U.S.C. § 1395f(a)(7)(A).

5           42 U.S.C. § 1395x(dd)(3)(A).

6           75 Fed. Reg. 70372, 70448 (Nov. 17, 2010).

7           Id.

8           AseraCare, 176 F. Supp. 3d at 1285.

9           AseraCare, No. 16-13004, at 33.

10          Id. at 38.

11          Id. at 39.

12          Id. at 38.

13          Id. at 48.

14          Id. at 51.

15          Id. at 56.

16          Id. at 48.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions