Whether a physician's honestly held clinical judgment regarding hospice certification can be 'false' under the False-Claims-Act based solely on a reasonable difference of opinion among physicians

QUESTION PRESENTED Each year, millions of terminally ill Americans make the difficult decision to forgo curative treatment in favor of hospice care, which provides a humane alternative to continued costly and often painful medical interventions. A hospice submitting a Medicare claim must obtain certifications from both the patient’s attending physician and a medical director at the hospice that the patient is “terminally ill’—meaning that, in the physicians’ “clinical judgment,” the patient has a life expectancy of six months or less. Because predicting life expectancy is a notoriously inexact science, the federal government has long reassured hospices and physicians that such opinions will not be lightly second-guessed. In the decision below, however, the Third Circuit held that a Medicare claim for hospice care can be “false” under the False Claims Act based on nothing more than an expert’s after-the-fact opinion that a given patient was not terminally ill—even when the certifying physician’s prognosis had a reasonable basis and was honestly held. In so holding, the Third Circuit expressly rejected the contrary view of the Eleventh Circuit, creating a sharp and acknowledged circuit split while exacerbating continuing confusion in the lower courts regarding when a physician’s clinical judgment can be deemed false under the False Claims Act. The question presented is: Whether a physician’s honestly held clinical judgment regarding hospice certification can be “false” under the False Claims Act based solely on a reasonable difference of opinion among physicians.