United States v. Aseracare, Inc.
938 F.3d 1278
11th Cir.2019Background
- AseraCare, a large hospice operator, billed Medicare for hospice care (2007–2012); Government alleged false certifications that patients were "terminally ill" under the False Claims Act (FCA).
- Medicare hospice eligibility requires written certification by the attending physician and hospice medical director based on clinical judgment that life expectancy is six months or less; supporting clinical documentation must accompany the certification.
- Government sampled 223 long-stay patients (from ~2,180) and, via expert Dr. Solomon Liao, identified 123 it contended were ineligible; Government sought to extrapolate damages from the sample.
- Trial Phase One was bifurcated to decide falsity first; experts offered competing methodologies (a checklist/LCD-driven approach v. a holistic “whole patient” approach), and a jury found 104 of 123 claims false.
- District court granted a new trial, concluding its jury instructions were legally insufficient: an objective-falsity standard is required and a mere reasonable difference of medical opinion is not enough; the court then sua sponte granted summary judgment to AseraCare, but the Eleventh Circuit vacated that summary judgment and remanded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standard for FCA falsity when hospice eligibility depends on physician clinical judgment | Government: falsity can be shown by expert testimony that medical records do not, as a factual matter, support a terminal prognosis; jury may resolve competing expert opinions. | AseraCare: claim is not false if the certifying physician exercised genuine clinical judgment; mere disagreement among physicians cannot establish falsity. | Court: FCA falsity requires objective falsehood; a mere reasonable difference of medical opinion is insufficient. |
| What constitutes an objectively false clinical judgment | Government: supporting documentation must, on after-the-fact review, demonstrate the prognosis; expert disagreement can show falsity. | AseraCare: regulatory scheme centers on physician clinical judgment; documentation need only "support" the prognosis, not prove it definitively. | Court: objective falsehood exists if (e.g.) physician did not review records, did not actually hold the belief, relied on known incorrect facts, or no reasonable physician could have reached that prognosis. |
| Sufficiency of record considered in post-verdict summary judgment | Government: district court improperly limited evidence to only trial-record evidence of Dr. Liao on falsity; should consider all evidence (discovery + both trial phases) including evidence of flawed certification practices. | AseraCare: Government designated primary falsity evidence as Dr. Liao’s opinions during discovery; court relied on that. | Court: vacated summary judgment and remanded; district court must consider the entire record (trial and summary-judgment submissions) to determine if triable issues remain. |
| Appropriateness of new trial and jury role | Government: new trial usurps jury role; jury should decide credibility between experts. | AseraCare: jury instruction was legally inadequate because it permitted liability based on reasonable expert disagreement. | Court: affirmed grant of new trial—jury must be instructed that reasonable differences of opinion alone do not establish FCA falsity. |
Key Cases Cited
- United States ex rel. Walker v. R & F Props. of Lake Cty., Inc., 433 F.3d 1349 (11th Cir. 2005) (agency guidance can create jury questions on Medicare interpretation; distinguishable where statutory ambiguity—not clinical judgment—was at issue)
- Omnicare, Inc. v. Laborers Dist. Council Constr. Indus. Pension Fund, 135 S. Ct. 1318 (2015) (a sincere statement of opinion is not an untrue statement of fact absent demonstrable inconsistency with speaker’s beliefs)
- United States ex rel. Yannacopoulos v. General Dynamics, 652 F.3d 818 (7th Cir. 2011) (false-statement element requires an objective falsehood)
- Loughren v. Unum Group, 613 F.3d 300 (1st Cir. 2010) (opinions can be false if speaker knows facts that would preclude such an opinion)
- Wilson v. Kellogg Brown & Root, Inc., 525 F.3d 370 (4th Cir. 2008) (FCA requires an objective falsehood; imprecise statements or disputed interpretations are not false)
- Burlbaw v. Orenduff, 548 F.3d 931 (10th Cir. 2008) (at a minimum FCA requires proof of objective falsehood)
- Hooper v. Lockheed Martin Corp., 688 F.3d 1037 (9th Cir. 2012) (opinion-based statements may be actionable where speaker lacks basis or knows contrary facts)
- United States v. Paulus, 894 F.3d 267 (6th Cir. 2018) (distinguishes opinion cases where underlying facts—readings of diagnostic tests—are objectively verifiable and expert evidence can show actual misrepresentation)
- Urquilla-Diaz v. Kaplan University, 780 F.3d 1039 (11th Cir. 2015) (elements of FCA include falsity, scienter, materiality, and causation; linkage to specific claims is required)
- Carrel v. AIDS Healthcare Foundation, Inc., 898 F.3d 1267 (11th Cir. 2018) (general corporate practices untethered to specific claims cannot by themselves establish an actual false claim)