In a September 2022 filing in U.S. ex rel. Osinek v. Kaiser Permanente, the Kaiser Permanente consortium defendants (Kaiser) highlighted the distinction between clinically inaccurate diagnoses (factual falsity) and clinically...more
It should surprise absolutely no one that “falsity” is a core element of the False Claims Act – it is the FALSE Claims Act, after all. However, it may come as a surprise that there is substantial disagreement over what...more
The United States Supreme Court denied certiorari without comment in two cases seeking to resolve a Circuit split regarding the proof required to establish that a claim for payment was false or fraudulent under the False...more
For several years, courts have wrestled with the question of whether subjective clinical decisions regarding the type and amount of treatment patients may need can be false for purposes of establishing False Claims Act (FCA)...more
In its conference on Feb. 19, the U.S. Supreme Court is scheduled to consider two pending petitions for certiorari that could resolve a critical but deeply disputed issue that impacts both the False Claims Act and health care...more
Key Points - Recently three circuit courts have considered when opinions can be false under the FCA. - Although the circuits disagree regarding whether plaintiff must establish “objective falsity” to assert an FCA...more
In this installment of the Healthcare Enforcement Roundup we cover new and longstanding issues impacting the healthcare enforcement landscape. First, we explore the impact of the Coronavirus (COVID-19) on the healthcare...more
The first half of 2020 set the tone for an unprecedented year for the healthcare industries. In light of the COVID-19 pandemic, healthcare organizations are navigating uncharted compliance waters while continuing to face...more
Last week, the Third Circuit joined several other appellate courts in finding that medical opinions related to medical necessity of hospice services can be subject to scrutiny and found to be “false” for purposes of proving a...more
The United States Court of Appeals for the Third Circuit ruled last week that whistleblower relators need not show “objective falsity” to prove their claims, and that a dispute among physician experts about a clinical...more
Neurosurgeons' Compensation in Top 10 Percent Nationwide Gives Rise to Stark Act and FCA Claims - In United States ex re. Bookwalter v. UPMC, 946 F. 3d 162 (3d Cir. 2019), the court ruled that the relators stated a Stark...more
All hospice providers routinely should assess risk exposure under the False Claims Act — now with the benefit of the U.S. Court of Appeals for the Eleventh Circuit’s long-awaited decision in United States v. AseraCare Inc. ...more
The 11th Circuit’s long-awaited AseraCare opinion requires more than mere disagreement regarding clinical judgment to prove falsity under the False Claims Act. The 11th Circuit rejected the government’s theory of falsity...more
On September 9, 2019, the Eleventh Circuit issued a highly anticipated opinion addressing the critical question of when Medicare claims for reimbursement (in this case, claims for hospice care) can be considered “false” under...more
On September 9, in a setback for AseraCare but an overall win for hospice providers, the Eleventh Circuit affirmed a Northern District of Alabama decision to grant a new trial in a False Claims Act (FCA) case against...more
The Eleventh Circuit agreed with the trial court that the government must do more than present expert evidence that a physician’s clinical judgment was inaccurate to establish falsity under the False Claims Act. Nonetheless,...more
The Tenth Circuit Court of Appeals has issued a significant decision, finding that a physician’s medical judgment about the medical necessity of heart procedures can be “false or fraudulent” under the federal False Claims Act...more
A number of recent FCA decisions have grappled with the question of objective falsity, particularly in the context of FCA claims where the alleged falsity is premised on a lack of medical necessity in connection with the...more