A federal court of appeals Dec. 30 reinstated a False Claims Act
qui tam action alleging that a group of Florida medical clinics filed
false reimbursement claims (United States ex rel. Walker v. R &
F Properties of Lake County Inc.,
11th Cir.,
No. 04-15283,
12/30/05).
The action alleged that the false claims involved the billing of
Medicare for services rendered by non-physicians without a physician
present as if they were rendered "incident to the service of a
physician," even though the clinics knew the services did not
meet the criteria of physician supervision necessary for billing in
that manner.
Senior Judge Emmett Ripley Cox of the U.S. Court of Appeals for the
11th Circuit, concluded that relator Karyn L. Walker presented
sufficient evidence to raise an issue of fact as to the falsity of the
billing practices of her employer, the clinics of R & F Properties
of Lake County Inc., despite an ambiguous Medicare regulation (42 CFR
§410.26) that did not explicitly say whether a physician had to
be physically present on the premises for nurse practitioner and
physician assistant services to be billed as "incidental"
services.
Cox said provisions from the Medicare Carrier's Manual, Medicare
bulletins, and expert testimony regarding the proper billing of
incidental services could provide the basis for Walker's claim that R
& F understood the language of the regulation to mean that a
physician had to be physically present in order to bill for incidental
services.
In addition, four months before Walker filed the whistleblower
action, 42 CFR §410.26 was amended to require that all services
billed as "incident to the services of a physician" be
rendered under the "direct supervision" of a physician.
Accordingly, Cox said, Walker should be permitted to present evidence
that services provided without physician supervision were not in
compliance with the Medicare regulation.
The ruling overturned the district court decision that ambiguity in
the regulation foreclosed, as a matter of law, any notion that R &
F could have knowingly submitted false claims to
Medicare.
Higher Reimbursement for Incident Services.
According to Cox, R & F received a 15 percent higher
reimbursement rate when it billed its physician assistant and nurse
practitioner services as incidental to physician services--using a
physician's unique provider identification number--rather than if they
had billed the same services under the nurse practitioner's or
physician assistant's own UPIN.
Walker alleged that she never had her own UPIN during her
employment as a nurse practitioner with R & F. Instead, she
alleged that she was instructed each day as to which doctor she would
bill under, Cox said.
R & F acknowledged that it used its physician assistants and
nurse practitioners, including Walker, to service its Medicare
patients without a physician being physically present on the premises,
but argued that physicians were always available by telephone or
pager.
Rather than rely on the ambiguity of 42 CFR §410.26 as the
district court did, Cox said the evidence Walker presented supports
the finding "that the Medicare regulation required that a
physician be physically present in the office suite and otherwise more
involved in a patient's court of care than the [R & F] physicians
were and that [R & F] knew of these
requirements."
Time Limit Unaffected.
Cox also held that the district court improperly interpreted the
FCA to limit the Walker's allegations of false claims to the time in
which she was employed with R & F.
Walker's complaint alleged "an ongoing practice of false
billing" from the time she was first employed by R & F.
Accordingly, Cox said, the proper time period for discovery is from
the date Walker was first employed with R & F through the date of
the original qui tam complaint.
Full text of the decision is available at
http://www.ca11.uscourts.gov/opinions/ops/200415283.pdf.