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Qui Tam 2020 is the third annual conference of the Federal Bar Association's Qui Tam Section, for which TELG's Scott Oswald serves as chair. The two-day event will tackle some of the hottest topics in False Claims Act litigation, with panels featuring attorneys from both sides of the aisle, along with government prosecutors, agency representatives, and subject-matter experts.
Here Scott discusses U.S. v. AseraCare Inc. and its impact on so-called "medical necessity" cases under the False Claims Act with Douglas W. Baruch of Morgan, Lewis & Bockius LLP, who'll speak on a panel on the topic on Day One of the conference.
This video interview by TELG managing principal R. Scott Oswald was published by The Employment Law Group, P.C. on February 17, 2020.
“Qui Tam 2020” Panel Preview: AseraCare and the Future of Medical Necessity Cases under the False Claims Act
» Click here for registration and full details on Qui Tam 2020
(Transcribed and edited lightly by The Employment Law Group)
R. Scott Oswald: [Addressing camera] We are here with Doug Baruch, who is a partner at Morgan Lewis, and we are talking about medical necessity.
[Turning to Baruch] So Doug, we have a panel at this year’s False Claims Act conference at the FBA on medical necessity. Give us a sense of what medical necessity is under the False Claims Act, and why it matters to folks who practice under the False Claims Act.
Douglas W. Baruch: Well, I don’t think anybody wants to be subjected to potential allegations of fraud or wrongdoing based on disagreements over clinical judgments — and that’s really where the False Claims Act was going before [U.S. v. AseraCare Inc.] came down.
Oswald:AseraCare is [a hospice case] out of the Eleventh Circuit, [which] includes Florida … So let’s talk about medical necessity in the wake of the AseraCare case. Does it apply beyond hospice, as an example?
Baruch: Sure. So it certainly can apply beyond hospice. The question in AseraCare was whether mere clinical disagreements among physicians can be the basis for establishing falsity under the False Claims Act.
Oswald: So, in the wake of AseraCare, now what’s the landscape? In order to have a claim under the False Claims Act, what would a relator need to have in order to meet that standard?
Baruch: In addition to all the other elements — just focusing on falsity itself — there has to be some objective evidence of falsity. It can’t be merely based on a disagreement among experts as to a government expert, or an expert hired by relators’ counsel, claiming that the physician or the provider got it wrong. That’s not going to be enough, coming in after the fact and making that type of assessment. There has to be some other indicia of falsity.
Oswald: So what would those indicia be?
Baruch: Well, the traditional elements of some kind of misconduct, such as a false certification. The physician certified that a patient was eligible for some type of treatment but never examined the patient — that would be indicia, right? Even if the patient actually was eligible for and actually had the diagnosis that ultimately the physician provided, if the physician never examined the patient that could be a basis for claiming that there was a false claim.
Oswald: Talk to us a little bit about the panel and what folks in the audience might expect to hear from you on the subject of medical necessity — in particular, where that aspect of the False Claims Act is going in the future.
Baruch: Sure. I myself will be interested in hearing from the government what their perspective is on it, and what relators’ counsel are doing about it. But essentially I think … the panel’s going to be talking about whether, in the wake of AseraCare, there’s going to need to be more than simply an after-the-fact, cold record review with an expert to determine whether there’s indicia of False Claims Act violations. They’re going to have to have something more, even at the time of the complaint being filed. There has to be some other evidence of fraud — and not simply corporate policies that are focused on improving [the patient census] and … billing and things like that. There has to be some other evidence that the judgment of the physician that a patient had the medical necessity that the physician attested to was wrong.
Oswald: Got it. So give us a sense of the kind of advice, broadly, that you’re giving to your clients right now as it relates to medical necessity in the wake of the AseraCare case.
Baruch: The AseraCare case obviously was something that is beneficial, because it does limit the reach [of the False Claims Act] within the Eleventh Circuit. I certainly don’t think anybody’s all that comfortable yet, because it’s just one case that’s out there. It’s certainly an important decision — and a decision, in my view, in the right direction — but it’s not something that providers can be comfortable knowing that across the board, across their nationwide … network, that the AseraCare case is going to insulate them from liability for the same types of allegations that were raised in AseraCare.
Oswald: Doug, thank you.
Baruch: Sure thing.
Oswald: [Turning to camera] We look forward to seeing you at this year’s False Claims Act conference on February 27-28,  here in Washington. You can find us, and register, at fedbar.org.