Hospice Care's Adventures in Fraudland: "Battle of the Experts" & Proving Falsity Under the False Claims Act

Abstract

In 2020, in United States ex rel. Druding v. Care Alternatives, the Third Circuit held that medical expert testimony alone is enough to demonstrate that a clinical judgment certifying a patient for hospice care is false. In doing so, the court rejected the objective falsehood standard, a fact-based inquiry that requires more than a showing of a “reasonable disagreement” between medical experts to prove a claim is false. The holding has lasting implications for physician liability and allows questionable hospice care claims to flood the judiciary whenever a minor dispute over a patient’s life expectancy occurs. This Comment argues that the Third Circuit’s rejection of the objective falsehood standard does not align with either Supreme Court precedent or with the Centers for Medicare & Medicaid’s intent for the Medicare Hospice Benefit. Furthermore, this Comment asserts that the Supreme Court missed an opportunity to resolve the circuit split when it denied Care Alternatives’ petition for writ of certiorari in February 2021.