Court decision upholds provider sovereignty over determinations of medical necessity

Ruling focused on key hospice admission.

Last week, the 11th Circuit (the federal appeals court for the Southeastern United States) issued a decision in the AsceraCare case.    

We have been waiting for this decision since the case was argued two and a half years ago. The key question in the case is: if a hospice provides care to a patient based on a physician’s reasonable conclusion that the patient is terminally ill, can the hospice face False Claim Act liability if another physician working for the contractor disagrees? 

The trial court had originally concluded that such claims could still be false, but over the course of the trial, the judge changed his mind. Upon the conclusion of the trial, the judge reversed himself and ruled that as a matter of law, if two reasonable physicians could differ about the issue, the claim could not be false.

That ruling really bothered the government, because it makes it very difficult to make a False Claims Act case that is based on physician judgment. On appeal, the 11th Circuit rejected the government’s arguments and agreed with the trial court, ruling that when coverage hinges on a physician’s medical judgment, as long as a physician holds a sincere belief, a fact that another physician might disagree is irrelevant.

Procedurally, the 11th Circuit did vacate part of the trial court’s order and remanded the case back to the trial court, but that portion of the decision relates to whether AsceraCare had a good-faith basis for relying on the judgment of its physicians. The government asserts that there was evidence that the physicians were not given all of the relevant information and that other information was withheld from the physicians. The court is to consider that question on the remand.

Most of the decision focuses on the False Claims Act, so it is not clear how much of the decision is applicable to a standard Medicare overpayment. The government also brought claims for unjust enrichment, arguing that the hospice received money for unnecessary services. The appeals court decision does not address that claim. But I want to stress that the analysis here is similar to analysis made under the Medicare treating physician rule.

In Medicare overpayment cases, courts have said that the judgment of the treating physician is entitled to deference. This decision reinforces the idea that in a medical necessity case if you are capable of finding an expert to support your physician, you should be able to prevail unless the government can show that someone was intentionally withholding information from the physicians, or your physician was lying about his or her opinion.

The bottom line is that if reasonable people can differ about the medical necessity of service, there should not be any liability under the False Claims Act. In fact, while the AscereCare case doesn’t address the question, rulings on other cases applying the “treating physician rule” have indicated that there should not be any overpayment liability or a duty to refund.

There are a few other interesting statements associated with this case, and they will be the subject of a future article. 

Programming Note: Listen to David Glaser’s live reports every Monday on Monitor Monday, 10-10:30 a.m. EST.

Facebook
Twitter
LinkedIn

David M. Glaser, Esq.

David M. Glaser is a shareholder in Fredrikson & Byron's Health Law Group. David assists clinics, hospitals, and other health care entities negotiate the maze of healthcare regulations, providing advice about risk management, reimbursement, and business planning issues. He has considerable experience in healthcare regulation and litigation, including compliance, criminal and civil fraud investigations, and reimbursement disputes. David's goal is to explain the government's enforcement position, and to analyze whether this position is supported by the law or represents government overreaching. David is a member of the RACmonitor editorial board and is a popular guest on Monitor Mondays.

Related Stories

Leave a Reply

Please log in to your account to comment on this article.

Featured Webcasts

AI, Audits, and the Future of the Revenue Cycle

Artificial intelligence is rapidly transforming healthcare revenue cycle operations, from coding and auditing to compliance and denials. Join industry leaders Pam Warren (MaineHealth) and Raemarie Jimenez (AAPC) for a live fireside chat exploring how AI is changing workflows, workforce roles, payer-provider dynamics, and compliance risk—and what organizations should be doing now to prepare.

June 17, 2026

Trending News

Featured Webcasts

CMS CRUSH: What You Need to Know About the Next Wave of Program Integrity and Payment Oversight

CMS CRUSH (Comprehensive Regulations to Uncover Suspicious Healthcare) signals a new era of data-driven program integrity oversight that extends far beyond coding and CDI. As federal scrutiny of claims, documentation, billing practices, provider enrollment, and payment accuracy intensifies, healthcare organizations must be prepared to identify and address vulnerabilities before they result in audits, denials, repayments, or enforcement actions. Join us for this timely webcast to learn what CMS CRUSH could mean for your organization and discover practical strategies to strengthen documentation, claims integrity, compliance readiness, and reimbursement defensibility.

July 14, 2026

Ask Dr. Hirsch: Clarifying Medicare’s Most Misunderstood Rules – Part 2

Medicare regulations are complex and even seasoned professionals struggle to apply them consistently. Due to overwhelming demand, Dr. Hirsch returns for Part 2 of Ask Dr. Hirsch: Clarifying Medicare’s Most Misunderstood Rules to answer even more of Medicare’s most misunderstood questions, covering inpatient status, observation, SNF access, Medicare Advantage denials, and more. Join Dr. Hirsch as he provides clear, referenced answers to real-world questions submitted by your peers, helping you navigate Medicare compliance with confidence and clarity.

June 18, 2026

Reengineering Utilization Management: Building an Adaptive Model for the New Payer Era

Traditional utilization management models can no longer keep pace with regulatory shifts, payer scrutiny, and operational pressures. In this webcast, Tiffany Ferguson, LMSW, CMAC, ACM, ACPA-C, introduces an Adaptive Model strategy that modernizes UM through role specialization, technology-driven workflows, and proactive, team-based processes. Attendees will learn how to restructure programs to improve efficiency, strengthen clinical collaboration, and enhance financial performance in a rapidly changing healthcare environment.

May 20, 2026

Compliance for the Inpatient Psychiatric Facility (IPF-PPS): Minimizing Federal Audit Findings by Strengthening Best Practices

Federal auditors are intensifying their focus on inpatient psychiatric facilities, using advanced data analytics to spotlight outliers and pursue high‑dollar repayments. In this high‑impact webcast, Michael Calahan, PA, MBA, Compliance Officer and V.P., Hospital & Physician Compliance, breaks down what regulators are really targeting in IPF-PPS admissions, documentation, treatment and discharge planning. Attendees will learn practical steps to tighten processes, avoid common audit triggers and protect reimbursement and reduce the risk of multimillion-dollar repayment demands.

April 9, 2026

Trending News

Celebrate Lab Week with MedLearn! Sign up to win one year of our Laboratory All Access Pass! Click here to learn more →

Have a Medicare regulation question you’d love Dr. Hirsch to answer? Now is your chance! CLICK HERE to learn more→

Happy National Doctor’s Day! Learn how to get a complimentary webcast on ‘Decoding Social Admissions’ as a token of our heartfelt appreciation! Click here to learn more →

This Memorial Day, we honor those who gave all for our freedom. Take 20% off sitewide through May 29 with code MEMORIAL26 at checkout

CYBER WEEK IS HERE! Don’t miss your chance to get 20% off now until Dec. 1 with code CYBER25

CYBER WEEK IS HERE! Don’t miss your chance to get 20% off now until Dec. 2 with code CYBER24