SCOTUS should stay out of False Claims Act dispute, says DOJ

(Reuters) - The U.S. Supreme Court should not use a whistleblower’s complaint against a for-profit hospice provider to clarify the level of detail required to plead Medicare fraud under the False Claims Act, the Justice Department’s top lawyer has told the court.

U.S. Solicitor General Elizabeth Prelogar said no further clarification of the standard is necessary because there is no true circuit split, contrary to the three-way split outlined in Jolie Johnson’s petition for certiorari.

Instead, “the divergent outcomes in the courts of appeals … simply reflect courts’ application of a fact-intensive standard to a range of different types of allegations,” Prelogar wrote in an amicus brief filed Tuesday that the court requested in January.

Johnson is hoping to revive her 2019 lawsuit on behalf of the United States against Georgia-based Bethany Hospice & Palliative Care, in which she provided detailed allegations about illegal kickbacks paid to physicians for patient referrals. As for billing, however, she said only that “100% or nearly 100%” of the company’s patients were on Medicare or Medicaid.

The 11th Circuit said the complaint needed more billing details, such as “the dates on or the frequency with which the defendants submitted false claims, the amounts of those claims, or the patients whose treatment served as the basis for the claim.”

Johnson’s certiorari petition, filed by Tejinder Singh of the Sparacino firm, called the 11th Circuit’s standard particularly “rigid” and said her complaint would have “easily” survived dismissal in at least six federal circuits, and “likely” would have survived in four others.

Bethany Hospice, represented by Michael Raupp of Husch Blackwell, said Johnson’s petition “vastly overstates” the circuit split and added that her complaint would fail under any of the standards.

Raupp did not immediately respond to a request for comment on Wednesday. Singh declined to comment.

Singh also represents the petitioner in another False Claims Act case the Supreme Court is considering, Owsley v. Care Connection of Cincinnati. The Supreme Court last week asked Prelogar to weigh in on Owsley's petition. She has not yet responded.

The case is Johnson v. Bethany Hospice and Palliative Care, U.S. Supreme Court, No. 21-462.

For Johnson et al: Tejinder Singh of Sparacino

For Bethany Hospice: Michael Raupp of Husch Blackwell

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