It’s well known that Medicare, Medicaid and commercial insurers hate the ever-increasing trend of hospitals buying facilities and practices and then charging provider-based (i.e., higher) rates than the facilities and practices charged before the acquisition.

Julia Zeman doesn’t like it, either.  Why?  Because it cost her an extra $96, that’s why.  So Julia did what Americans do.  She filed a qui tam action against USC University Hospital alleging Medicare fraud in connection with her surgery in an ambulatory surgical center (ASC) acquired by the hospital.

Her theory?  The charges were for post-operative follow-up within 90 days after surgery.  Under Medicare regulations provider-based facilities can charge for follow-up within 90 days, but others can’t.  Julia alleges that the ASC doesn’t meet the requirements for provider-based status.

But on Wednesday of last week the court ruled against Julia and gave the hospital summary judgment.  The problem with Julia’s case?  Her provider-based argument wasn’t included in her complaint– or in her amended complaint.  The court and the defendant saw it for the first time during summary judgment skirmish.  Adding insult to injury, the court also denied Julia’s motion to amend her complaint yet another time.

The case is Zeman v. USC University Hospital, Case No. 2:11-cv-05755-DDP-MRW (C.D.Calif. 2014).