WSJ Editorial Debates Hospice Fraud Case

A major fraud case centered around live hospice discharges is being argued not only in 11th Circuit Court of Appeals, but in the editorial pages of the Wall Street Journal.

Kyle Clark and Andrew George, trial lawyers for the Washington-based law firm of Baker Botts published a recent editorial, “Medicare’s Hospice Rules Could Make Your Doctor a Criminal,”  on the case United States vs. AseraCare.

Arguments in the United States vs. Aseracare have tried to untangle the complex question of whether the live discharges were the result of deliberate fraud or occurred because of the inherent difficulty of predicting a patient’s life expectancy.

“The decision could ratify a trend of criminalizing medical judgments and jailing doctors based on disagreements with other doctors,” Clark and George wrote in the editorial.

Much of the case indeed hinges on disagreements among physicians. A physician witness for the government reviewed 233 patient records and found that most of the patients should have been found ineligible for the Medicare Hospice Benefit. Other physician witnesses backed AseraCare, saying that they too would have determined that the patients in question should have been to hospice.

The government’s physician later changed his mind on some of the patients, saying in later court proceedings that “he was not the same physician in 2013 that he was in 2010,” according to the editorial.

The government appealed the case after a lower court sided with AseraCare on the grounds that physician witnesses could not reach consensus on the medical necessity of hospice care for the patients, making culpability unclear. The judge’s decision overruled the jury who had sided with the government.

In court documents obtained by Hospice News, the government further alleged that two AseraCare questioned the six-month terminal prognosis of several patients, only to be admonished that the admissions were necessary due to the organization’s lower than expected patient census.

Thus far, the courts have been unable to conclusively establish whether the nurses’ account represents evidence of fraud or yet another difference of opinion

In a response to the editorial, North Carolina medical oncologist Gustav Magrinat, M.D., wrote to the journal that the AseraCare case should be dismissed because predicting death with absolute certainty is impossible.

“It seems to me the AseraCare case is based on an incorrect premise that a physician can tell how long an individual patient will live. Actually, no one knows how long an individual will live,” Magrinat wrote.”What doctors do know is what the median survival is for a group of patients similar to the one they are dealing with. Perhaps if all those involved in the Asera case took a course in basic epidemiology, they would agree to dismiss.”

The U.S. Centers for Medicare & Medicaid Services and the U.S. Department of Justice in recent years have increasingly scrutinized hospice providers because of live discharges and re-certifications. These issues have resulted in an increasing number of CMS audits, Health and Human Services Inspector General investigations, and litigation. An Optima Health survey earlier this year found that fewer than 50 percent of hospice providers felt prepared to respond to such scrutiny.

In a 2017 case, ChemEd Corp. agreed to pay a $75 million settlement on behalf of its subsidiary Vitas Hospice Services, in a False Claims Act case also centered on live discharges. Vitas is the largest for-profit hospice chain in the United States.

“Settlements involving allegations about medical necessity of hospice services continued to dominate enforcement actions this last year,” John Kelly of the Law Firm Bass, Berry, and Sims told Hospice News in February. “Hospice organizations should be particularly mindful of the patients they are accepting and ensure that the appropriate documentation is retained.”

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