July 12, 2016 Top Story

Evidence Lacking in False Claims Act Suit

A difference of opinion among physicians does not establish fraud

Sara E. Costello

A disagreement between medical experts regarding hospice eligibility is not enough to establish falsity under the False Claims Act (FCA), 31 U.S.C. §§ 3729–3733. United States v. AseraCare Inc. The court in AseraCare bifurcated the trial into two phases—first addressing the falsity of the claims; and subsequently addressing the hospice provider’s knowledge of the claims, damages, and any additional issues. The bifurcation of issues worked in the defendant’s favor. ABA Section of Litigation leaders say that the decision highlights the Department of Justice’s (DOJ) priority of FCA enforcement, and that future defendants will seek to repeat the bifurcation strategy used in this case.

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