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[,]” 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.” In other words, a mere difference of opinion does not constitute falsity under the FCA.

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