SCOTUS Declines to Hear Argument Over FCA “Objective Falsehood”

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The U.S. Supreme Court has decline to hear argument over “objective falsehood” under the False Claims Act (FCA). This has been a hot button issue in litigation that has federal courts split and left federal contractors, and the lawyers who represent them, with no clear answers.

The question posed: What evidence is required to prove a false claim under the Medicare hospice benefit, and whether the FCA requires a so-called “objective falsehood.”

In the Third Circuit- Pennsylvania, New Jersey, and Delaware- a FCA claim could be brought against a health care provider with the only proof being an expert’s subjective opinion. While the eleventh circuit- Florida, Georgia, and Alabama- require more proof.

These subjective opinions include billing for services not provided, billing for services not needed, kickbacks, and other frauds committed against the government.

On John Oliver’s bit Long-Term Care, Last Week Tonight with John Oliver, covers the many ways in which healthcare facilities defraud the government’s Medicare and Medicaid programs. (7:27 Too much attention)

  • A healthcare whistleblower describes how she was told by management at a nursing home chain to do billable therapy in which she felt about 40% was “unreasonable and unnecessary” under Medicare Guidelines.
  • Another facility’s healthcare workers wrote a letter to management stating “…we have been encouraged to maximize reimbursement even when clinically inappropriate…”
  • A DOJ lawsuit against the facility, Life Care Centers of America, who billed for 48 minutes of physical therapy, 47 minutes of occupational therapy, and 30 minutes of speech therapy for a 92 year-old man two days before his death.

Although the two cases that made it to the Supreme Court deal with health care providers, this issue impacts all federal contractors. The Chamber of Commerce and PhRMA found the issue significant enough to weigh in stating it “potentially affects any entity, public or private, that receives federal funds in myriad contexts.”

“Objective Falsehood” is sure to find its way back to the Supreme Court again, as whistleblowers come forward and Biden’s DOJ crackdown on those who fraudulently received funds from the pandemic relief bills.

Long-Term Care: Last Week Tonight with John Oliver (HBO) see 7:27 (Too much attention)

Health-Care Providers Still Stymied on Evidence Needed to Prove FCA Violation, Bloomberg Law, March 17, 2021

Epic Litigation Landscape Awaits Health, Life Sci Attys In 2021, Law360, January 3, 2021

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