Last week a federal court in Florida granted a radiology practice’s motion for judgment in its favor in a False Claims Act case, despite these formidable obstacles:  (1) the practice had billed Medicare for services performed by personnel who didn’t have the certification required by Florida law; (2) billing for the services violated Medicare conditions of participation; and (3) a jury had found the practice guilty of False Claims Act violations for the claims.

Charles Ortolano is that qui tam plaintiff so dreaded by Medicare providers:  the disgruntled former employee.  He filed a False Claims Act suit against the physician radiology practice where he had worked.  The jury ruled in Charles’s favor, finding that the practice had billed Medicare half a million dollars for PET/CT scans performed by general radiographers who didn’t have the nuclear certification Florida law requires.  What’s more, violation of a state licensing law is a violation of Medicare conditions of participation.

The defendant practice moved for judgment in its favor as a matter of law.  In a careful, well-reasoned opinion the court granted the motion.  What’s the explanation?  First, the court could find nothing in the Medicare rules that requires radiographers in a physician practice to be specially certified.  This omission impressed the court because the rules for radiographers in Independent Diagnostic Testing Facilities—as contrasted to physician practices—do include such a requirement.

Second, in submitting its Medicare bills the practice had never made a certification or express statement that the services in question were performed by personnel who met state certification requirements.  Citing Clausen v. Lab. Corp., 290 F.3d 432 (3d Cir. 2002), the court held that even when a provider disregards government regulations, it isn’t guilty of a false claim unless it knows that the government doesn’t owe the money.  And Charles had failed to prove that element.

What about violation of Medicare conditions of participation?  That’s a serious matter, but the sanction is removal from the Medicare program.  Violation can’t form the basis of an action under the False Claims Act.

The case is U.S. ex rel. Ortolano v. Amin Radiology, Case 5:10-cv-00583-WTH-TBS (M.D. Fla. Jan. 28).