Yesterday, May 7, 2019, the United States Court of Appeals for the Fifth Circuit unanimously held that hospice providers “cannot provide and charge for services without certifying that the patients are first eligible for those services under the terms of eligibility established by Congress and Medicare, which limit hospice services to a distinct class of patients.” United States ex rel. Lemon v. Nurses To Go, Incorporated, 2019 WL 2004353, at *6 (5th Cir. (Tex.), 2019).
In doing so, the panel expressly cited two district courts in other circuits that held that a lack of accompanying clinical information and supporting documentation alone are sufficient to prove falsity even in the face of an otherwise valid physician certification of terminal illness. Id. (citing United States ex Evercare Hospice, Inc., No. 11-CV-00642-PAB-NYW, 2015 WL 5568614, at *7 (D. Colo. Sept. 21, 2015) (“the requirement that physicians’ certifications are accompanied by clinical information and other documentation that support a patient’s prognosis is a condition of payment under applicable Medicare statutes and regulations.”); see also, e.g., United States ex rel. Hinkle v. Caris Healthcare, L.P., No. 3:14-CV-212-TAV-HBG, 2017 WL 3670652, at *9 (E.D. Tenn. May 30, 2017) (“the government’s complaint alleges that defendants’ written certifications were false, in that the documentation for certain patients did not support a prognosis of terminal illness.”)
By relying on U.S. ex rel. Fowler v. Evercare Hospice and U.S. ex. rel. Hinkle v. Caris Healthcare, the Fifth Circuit implicitly rejected an Alabama district court’s reasoning in U.S. ex. rel. Paradies v. Aseracare (currently on appeal to the Eleventh Circuit) which oppositely held that absent more, a demonstration that a patient’s medical record fails to support an otherwise valid physician certification cannot support an FCA allegation of falsity. Accordingly, at least in the Fifth Circuit, prior decisions that followed the district court in U.S. ex. rel. Aseracare should no longer have any persuasive effect. Decisions such as U.S. ex rel. Wall v. Vistacare from the Northern District of Texas — which relied on the same reasoning as and cited the Aseracare opinion but which was settled prior to a full appeal — must be rejected to the extent that they are at odds with the now clear instruction from the Fifth Circuit that every aspect of a hospice certification must be met, not just the stated medical judgment and opinion of a physician.
Rather, the Fifth Circuit has established that the sound reasoning of other district court opinions such as the court in Evercare must govern, which noted that Tenth Circuit (like the panel in Lemon), have “expressly rejected the argument that the exercise of clinical judgment poses an absolute bar to FCA liability.” U.S. ex. rel. Fowler v. Evercare.
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