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Combatting Inappropriate EOL with the False Claims Act

Posted Sep 22 2008 6:24am

Many providers claim that some EOL care that surrogates demand they provide to patients is inappropriate. It is inappropriate because it provides no benefit to the patient. Or worse, it actually harms the patient. If this is right, then it seems that such care ought not be billed to Medicare. It is not medically necessary care.

Medicare knows, the CBO knows, and everyone else knows that Medicare willo have to start using some more aggressive CBA to ration the treatments that it covers. But even before we get to that, it seems that even under current regulations, Medicare should not be paying for much EOL care.

One way that this determination might be made is through the prosecution of a False Claims Act Claim. This could be brought (in New Jersey where there is comparatively more inappropriate EOL care) by the U.S. Attorney, the state AG, or even a private qui tam plaintiff like a nurse who observes too much inappropriate care.

Yes, I know that using the FCA in this way is very controversial. It brings in federal statutes to regulate the quality of medical care, something that state tort law is supposed to do. Worse, it could put providers in a real bind. If they refuse surrogate-demanded care, they may have state tort exposure. If they provide the demanded care and bill for it, they may have FCA exposure. Nevertheless, some FCA theories can be litigated in some egregious outlier cases.

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