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49 Seton Hall L. Rev. 1 (2018-2019)

handle is hein.journals/shlr49 and id is 1 raw text is: A Farewell to Falsity Shifting Standards in Medicare Fraud Enforcement Isaac D. Buckt For the better part of a decade, Americans have had a front-row seat to a fervent and turbulent debate over the future of their health care system. The passage of the Patient Protection and Affordable Care Act of 2010 (ACA), the most comprehensive health reform effort since the mid-1960s, ushered in a new era in health law and policy, granting millions of Americans access to health care. After multiple legal challenges and congressional efforts that ultimately failed to slay the law, the ACA had become entrenched by the end of the Obama administration, even though pieces of the law had failed to work exactly as planned. Now, with the surprising election of President Donald Trump, reenergized Republicans are targeting the law once more, and it suddenly appears more vulnerable than ever. Dynamic uncertainty again permeates the national debate. Although most powerful protections of the ACA may evaporate-no small event, to be sure-the value-based era which it unleashed seems here to stay. Indeed, this era-focused on efficiency, standardization, and quality within American medicine-has just begun to bear fruit. Illustrated prominently by recent changes to Medicare that alter how the program pays its doctors for services they provide to its beneficiaries, America is moving away from the old strictures of fee-for-service medicine. At the same time, traditional legal tools, and particularly the federal government's most prominent anti-fraud tool, the civilfederal False Claims Act (FCA), seem to be facing new limits. This has been recently evident in medical necessity- based fraud cases, and particularly highly publicized fights that have targeted the burgeoning industry of hospice care. This Article tracks this development, ultimately arguing that the move to reimbursement-based regulation may be a positive step in finally reining in the worst excesses of American health care. But it also cautions against the deceptive simplicity of allowing medical heterogeneity and clinical complexity to prevent application of America's most powerful anti- tAssociate Professor, University of Tennessee College of Law; Juris Doctor, University of Pennsylvania Law School; Master of Bioethics, University of Pennsylvania; Bachelor of Arts, Miami University (Ohio). Any errors or omissions are my own.

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