Health Care Daily Report

Volume: 11 Number: 3
January 05, 2006



Federal Court Reinstates Qui Tam Action Alleging Improper Billing of 'Incidental' Care

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.


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