Courts of Appeals Continue to Limit the Government’s Aggressive False Claims Act Theories

by Bradley Arant Boult Cummings LLP
Contact

This spring saw two significant victories for health care providers in the federal courts of appeals. In both cases, the courts rejected an aggressive government theory under the False Claims Act (FCA), the first related to damages calculation and the second related to liability.

On March 21, 2013, the Seventh Circuit Court of Appeals overturned a $2.7 million damages award against Anchor Mortgage Corporation,1 holding that the district court improperly calculated treble damages under the FCA. The Seventh Circuit now joins the majority of its sister circuit courts in determining that FCA damages should be calculated using a “net trebling” method, rather than a “gross trebling” method. Under the gross trebling method the government advocated, FCA damages would have been calculated by first trebling the false claim amount and then deducting the value of the goods or services provided, leading to significantly larger damage awards than the “net trebling approach,” which accounts for any recouped losses prior to trebling.

On April 1, 2013, the Sixth Circuit Court of Appeals overturned an $11.1 million judgment against MedQuest Associates, Inc. and three of its Nashville-area subsidiaries for alleged violations of the False Claims Act (FCA).2 Echoing its October 2012 opinion in Renal Care3 that overturned an $82.6 million judgment, the Court in MedQuest, reaffirmed that “[t]he False Claims Act is not a vehicle to police technical compliance with complex federal regulations.” In doing so, the Court rejected both government theories, holding that MedQuest was neither liable for its failure to comply with physician supervision regulations nor liable for its failure to satisfy Medicare enrollment regulations. For both claims, the Court found that MedQuest’s failures were violations of conditions of participation, which cannot give rise to FCA liability, rather than conditions of payment, which can give rise to such liability.

Anchor Mortgage

In Anchor Mortgage, the district court determined that the company and its CEO lied when applying for federal guarantees of 11 loans. In calculating the damages award, the district judge added the amounts the United States had paid to lenders under the guarantees and trebled the total. The district judge then subtracted any amounts that had been realized from selling the properties that secured the loan, resulting in $326,729.15 in damages.

The Seventh Circuit affirmed the judgment of FCA liability but “reversed to the extent it adopts the gross trebling approach” to calculate damages. Writing for the Court, Judge Frank Easterbrook noted that although the FCA does not specify whether the gross trebling or net trebling approach should be used, it also does not “signal a departure from the norm,” and the norm is net trebling in civil litigation, including treble-damages actions under the Clayton Act. The Justice Department relied on the Supreme Court’s decision in United States v. Bornstein 423 U.S. 303 (1976), in support of the gross trebling approach, which is the precedent followed by the Ninth Circuit Court of Appeals. Judge Easterbrook determined that the Bornstein decision “unambiguously uses the contract measure of loss, supporting a net trebling approach” based upon Footnote 13 in the opinion. Although the Ninth Circuit has adopted the gross trebling approach, Judge Easterbrook cited the Second, Sixth, D.C., and Federal Circuits in observing that appellate decisions generally favor the net trebling approach.

MedQuest

(1) Physician Supervision Claims

For contrast MRI and CT scans performed at independent diagnostic testing facilities (IDTFs), Medicare regulations require direct or personal supervision by one of the IDTF's supervising physicians. CIGNA, MedQuest’s Medicare carrier at the time, imposed an additional requirement that the supervising physicians be board certified in radiology or be approved by CIGNA as having sufficient training and experience in radiology to supervise procedures. MedQuest listed three CIGNA approved supervising physicians on its enrollment file. The government alleged that MedQuest used physicians who were not reported on its enrollment file 4 and were not board certified in radiology or approved by CIGNA to directly supervise contrast scans.

To support its claim, the government asserted “express certification” and “implied certification” theories under the FCA. Under the express certification theory, the government argued that MedQuest certified compliance with Medicare regulations as a condition of government payment, yet knowingly failed to comply with the regulations. MedQuest violated its express certification that the physicians listed on its enrollment file would supervise such testing. Under the implied certification theory, the government argued that MedQuest impliedly certified that the Medicare claims submitted for testing at its Nashville-area IDTFs were based upon diagnostic testing that conformed to Medicare regulations and policies regarding physician supervision. Based upon 42 C.F.R. § 410.33(b)(2), the district court determined that “the requisite physician supervision is a condition of payment of claims.”

In overturning the lower court’s decision, the Sixth Circuit determined that the requisite physician supervision was in fact a condition of participation, which could not support an FCA claim. The Court noted that “[a] conclusion that compliance with the supervising-physician requirements is a condition of payment is only possible by weaving together isolated phrases from several sections in the complex scheme of Medicare regulations,” a cut-and-paste approach the Court deemed inappropriate. The Court further noted that “it is not reasonable to expect Medicare providers to attempt such an approach to statutory interpretation in their efforts to comply with the FCA.” Moreover, the Court determined that the express certification theory failed because MedQuest’s certification in its enrollment application that it would “abide by the Medicare laws, regulations and program instructions” does not contain language conditioning payment on compliance with any particular law or regulation. In addition, the Court determined that “the falsity of a claim is determined at the time of the submission” and the government presented no proof that MedQuest intended to violate Medicare regulations at the time that it applied for enrollment in the Medicare program.

The Sixth Circuit also dismissed the government’s implied certification theory that the claims submitted by MedQuest violated conditions of payment because the tests were not “reasonable and necessary,” a primary prerequisite to Medicare payment. The Court concluded that the direct supervision provided during contrast procedures was sufficient for the claims to meet the “reasonable and necessary” requirement and satisfy the conditions for payment. Although the supervising physicians did not meet CIGNA’s additional requirements, those additional requirements did not affect whether the tests were “reasonable and necessary” for purposes of payment.

(2) Medicare Enrollment Claims

Changes of ownership involving IDTFs must be reported within 30 days of the change to the appropriate Medicare contractor.5 MedQuest acquired via stock purchase a physician practice, which became one of the subsidiaries involved in the FCA litigation. After the acquisition, MedQuest operated the location as an IDTF, but it continued using the physician’s Medicare number and failed to notify CIGNA of the change of ownership until 18 months after the acquisition. The government alleged that MedQuest’s failure to notify CIGNA of the change of ownership and the continued use of the physician’s Medicare number constituted violations of the FCA. The district court again determined that these actions were violations of Medicare conditions of payment based upon 42 C.F.R. § 410.33(a), which states that “carriers will pay for diagnostic procedures under the physician fee schedule only when performed by a physician, a group practice of physicians, . . . or an [IDTF].” Because the IDTF was not enrolled and approved as an IDTF by Medicare, it was not entitled to be paid for tests.

The Sixth Circuit again overturned the district court’s ruling, finding that MedQuest’s actions constituted violations of conditions of participation, not conditions of payment. The Court noted that Section 410.33(a) does not require Medicare enrollment and approval for an entity to be an IDTF. As such, because the facility was being operated as an IDTF, it met the condition of payment contained in Section 410.33(a). In dismissing the government’s claim, the Court emphasized that the facility was already enrolled in the Medicare program, albeit as a physician practice, and that “at most, [this case] represents a failure to update enrollment information, which we have held is not a violation of a condition of payment.” ***

Both Anchor Mortgage and MedQuest symbolize some courts’ growing resistance to the more aggressive applications of the FCA. The Sixth Circuit’s opinion in MedQuest is particularly notable as it continues that Circuit’s trend of reining in the government’s most tenuous theories of FCA liability for healthcare providers. While acknowledging the FCA’s role in enforcing Medicare regulations, the Sixth Circuit made clear that “the bluntness of the FCA’s hefty fines and penalties makes them an inappropriate tool for ensuring compliance with technical and local program requirements.” Those are welcome words to health care providers that may face FCA liability while attempting to navigate the complex Medicare regulatory scheme.

For additional information, please contact Ty Howard, Jack Selden, Chelsey Hadfield, or one of the other attorneys in the Health Care or White Collar Defense practice groups at Bradley Arant Boult Cummings LLP.

1 United States v. Anchor Mortg. Corp., -- F.3d -- , 2013 WL 1150213 (7th Cir. Mar. 21, 2013).

2 United States ex rel. Hobbs v. MedQuest Assoc., Inc., -- F.3d --, 2013 WL 1285590 (6th Cir. Apr. 1, 2013).

3 United States ex rel. Williams v. Renal Care Group, Inc., 696 F.3d 518 (6th Cir. 2012).

4 Medicare regulations allow physicians not listed on a provider’s CMS-855 form to provide services for locum tenens coverage. Locum tenens means a physician who is temporarily covering for another physician and is identified on a claim submitted to Medicare by attaching a modifier to the claim which identifies it to Medicare. Accordingly, the fact that MedQuest was using the services of these locum tenens physicians was not at issue; rather, the issue was that the locum tenens physicians were not board certified in radiology or approved by CIGNA.

5 The Court noted that 42 C.F.R. § 410.33(g), which sets forth the notice procedures for a change of ownership of an IDTF, was not enacted at the time of the violations claimed by the government.

Written by:

Bradley Arant Boult Cummings LLP
Contact
more
less

Bradley Arant Boult Cummings LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
- hide

JD Supra Privacy Policy

Updated: May 25, 2018:

JD Supra is a legal publishing service that connects experts and their content with broader audiences of professionals, journalists and associations.

This Privacy Policy describes how JD Supra, LLC ("JD Supra" or "we," "us," or "our") collects, uses and shares personal data collected from visitors to our website (located at www.jdsupra.com) (our "Website") who view only publicly-available content as well as subscribers to our services (such as our email digests or author tools)(our "Services"). By using our Website and registering for one of our Services, you are agreeing to the terms of this Privacy Policy.

Please note that if you subscribe to one of our Services, you can make choices about how we collect, use and share your information through our Privacy Center under the "My Account" dashboard (available if you are logged into your JD Supra account).

Collection of Information

Registration Information. When you register with JD Supra for our Website and Services, either as an author or as a subscriber, you will be asked to provide identifying information to create your JD Supra account ("Registration Data"), such as your:

  • Email
  • First Name
  • Last Name
  • Company Name
  • Company Industry
  • Title
  • Country

Other Information: We also collect other information you may voluntarily provide. This may include content you provide for publication. We may also receive your communications with others through our Website and Services (such as contacting an author through our Website) or communications directly with us (such as through email, feedback or other forms or social media). If you are a subscribed user, we will also collect your user preferences, such as the types of articles you would like to read.

Information from third parties (such as, from your employer or LinkedIn): We may also receive information about you from third party sources. For example, your employer may provide your information to us, such as in connection with an article submitted by your employer for publication. If you choose to use LinkedIn to subscribe to our Website and Services, we also collect information related to your LinkedIn account and profile.

Your interactions with our Website and Services: As is true of most websites, we gather certain information automatically. This information includes IP addresses, browser type, Internet service provider (ISP), referring/exit pages, operating system, date/time stamp and clickstream data. We use this information to analyze trends, to administer the Website and our Services, to improve the content and performance of our Website and Services, and to track users' movements around the site. We may also link this automatically-collected data to personal information, for example, to inform authors about who has read their articles. Some of this data is collected through information sent by your web browser. We also use cookies and other tracking technologies to collect this information. To learn more about cookies and other tracking technologies that JD Supra may use on our Website and Services please see our "Cookies Guide" page.

How do we use this information?

We use the information and data we collect principally in order to provide our Website and Services. More specifically, we may use your personal information to:

  • Operate our Website and Services and publish content;
  • Distribute content to you in accordance with your preferences as well as to provide other notifications to you (for example, updates about our policies and terms);
  • Measure readership and usage of the Website and Services;
  • Communicate with you regarding your questions and requests;
  • Authenticate users and to provide for the safety and security of our Website and Services;
  • Conduct research and similar activities to improve our Website and Services; and
  • Comply with our legal and regulatory responsibilities and to enforce our rights.

How is your information shared?

  • Content and other public information (such as an author profile) is shared on our Website and Services, including via email digests and social media feeds, and is accessible to the general public.
  • If you choose to use our Website and Services to communicate directly with a company or individual, such communication may be shared accordingly.
  • Readership information is provided to publishing law firms and authors of content to give them insight into their readership and to help them to improve their content.
  • Our Website may offer you the opportunity to share information through our Website, such as through Facebook's "Like" or Twitter's "Tweet" button. We offer this functionality to help generate interest in our Website and content and to permit you to recommend content to your contacts. You should be aware that sharing through such functionality may result in information being collected by the applicable social media network and possibly being made publicly available (for example, through a search engine). Any such information collection would be subject to such third party social media network's privacy policy.
  • Your information may also be shared to parties who support our business, such as professional advisors as well as web-hosting providers, analytics providers and other information technology providers.
  • Any court, governmental authority, law enforcement agency or other third party where we believe disclosure is necessary to comply with a legal or regulatory obligation, or otherwise to protect our rights, the rights of any third party or individuals' personal safety, or to detect, prevent, or otherwise address fraud, security or safety issues.
  • To our affiliated entities and in connection with the sale, assignment or other transfer of our company or our business.

How We Protect Your Information

JD Supra takes reasonable and appropriate precautions to insure that user information is protected from loss, misuse and unauthorized access, disclosure, alteration and destruction. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. You should keep in mind that no Internet transmission is ever 100% secure or error-free. Where you use log-in credentials (usernames, passwords) on our Website, please remember that it is your responsibility to safeguard them. If you believe that your log-in credentials have been compromised, please contact us at privacy@jdsupra.com.

Children's Information

Our Website and Services are not directed at children under the age of 16 and we do not knowingly collect personal information from children under the age of 16 through our Website and/or Services. If you have reason to believe that a child under the age of 16 has provided personal information to us, please contact us, and we will endeavor to delete that information from our databases.

Links to Other Websites

Our Website and Services may contain links to other websites. The operators of such other websites may collect information about you, including through cookies or other technologies. If you are using our Website or Services and click a link to another site, you will leave our Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We are not responsible for the data collection and use practices of such other sites. This Policy applies solely to the information collected in connection with your use of our Website and Services and does not apply to any practices conducted offline or in connection with any other websites.

Information for EU and Swiss Residents

JD Supra's principal place of business is in the United States. By subscribing to our website, you expressly consent to your information being processed in the United States.

  • Our Legal Basis for Processing: Generally, we rely on our legitimate interests in order to process your personal information. For example, we rely on this legal ground if we use your personal information to manage your Registration Data and administer our relationship with you; to deliver our Website and Services; understand and improve our Website and Services; report reader analytics to our authors; to personalize your experience on our Website and Services; and where necessary to protect or defend our or another's rights or property, or to detect, prevent, or otherwise address fraud, security, safety or privacy issues. Please see Article 6(1)(f) of the E.U. General Data Protection Regulation ("GDPR") In addition, there may be other situations where other grounds for processing may exist, such as where processing is a result of legal requirements (GDPR Article 6(1)(c)) or for reasons of public interest (GDPR Article 6(1)(e)). Please see the "Your Rights" section of this Privacy Policy immediately below for more information about how you may request that we limit or refrain from processing your personal information.
  • Your Rights
    • Right of Access/Portability: You can ask to review details about the information we hold about you and how that information has been used and disclosed. Note that we may request to verify your identification before fulfilling your request. You can also request that your personal information is provided to you in a commonly used electronic format so that you can share it with other organizations.
    • Right to Correct Information: You may ask that we make corrections to any information we hold, if you believe such correction to be necessary.
    • Right to Restrict Our Processing or Erasure of Information: You also have the right in certain circumstances to ask us to restrict processing of your personal information or to erase your personal information. Where you have consented to our use of your personal information, you can withdraw your consent at any time.

You can make a request to exercise any of these rights by emailing us at privacy@jdsupra.com or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

You can also manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard.

We will make all practical efforts to respect your wishes. There may be times, however, where we are not able to fulfill your request, for example, if applicable law prohibits our compliance. Please note that JD Supra does not use "automatic decision making" or "profiling" as those terms are defined in the GDPR.

  • Timeframe for retaining your personal information: We will retain your personal information in a form that identifies you only for as long as it serves the purpose(s) for which it was initially collected as stated in this Privacy Policy, or subsequently authorized. We may continue processing your personal information for longer periods, but only for the time and to the extent such processing reasonably serves the purposes of archiving in the public interest, journalism, literature and art, scientific or historical research and statistical analysis, and subject to the protection of this Privacy Policy. For example, if you are an author, your personal information may continue to be published in connection with your article indefinitely. When we have no ongoing legitimate business need to process your personal information, we will either delete or anonymize it, or, if this is not possible (for example, because your personal information has been stored in backup archives), then we will securely store your personal information and isolate it from any further processing until deletion is possible.
  • Onward Transfer to Third Parties: As noted in the "How We Share Your Data" Section above, JD Supra may share your information with third parties. When JD Supra discloses your personal information to third parties, we have ensured that such third parties have either certified under the EU-U.S. or Swiss Privacy Shield Framework and will process all personal data received from EU member states/Switzerland in reliance on the applicable Privacy Shield Framework or that they have been subjected to strict contractual provisions in their contract with us to guarantee an adequate level of data protection for your data.

California Privacy Rights

Pursuant to Section 1798.83 of the California Civil Code, our customers who are California residents have the right to request certain information regarding our disclosure of personal information to third parties for their direct marketing purposes.

You can make a request for this information by emailing us at privacy@jdsupra.com or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

Some browsers have incorporated a Do Not Track (DNT) feature. These features, when turned on, send a signal that you prefer that the website you are visiting not collect and use data regarding your online searching and browsing activities. As there is not yet a common understanding on how to interpret the DNT signal, we currently do not respond to DNT signals on our site.

Access/Correct/Update/Delete Personal Information

For non-EU/Swiss residents, if you would like to know what personal information we have about you, you can send an e-mail to privacy@jdsupra.com. We will be in contact with you (by mail or otherwise) to verify your identity and provide you the information you request. We will respond within 30 days to your request for access to your personal information. In some cases, we may not be able to remove your personal information, in which case we will let you know if we are unable to do so and why. If you would like to correct or update your personal information, you can manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard. If you would like to delete your account or remove your information from our Website and Services, send an e-mail to privacy@jdsupra.com.

Changes in Our Privacy Policy

We reserve the right to change this Privacy Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our Privacy Policy will become effective upon posting of the revised policy on the Website. By continuing to use our Website and Services following such changes, you will be deemed to have agreed to such changes.

Contacting JD Supra

If you have any questions about this Privacy Policy, the practices of this site, your dealings with our Website or Services, or if you would like to change any of the information you have provided to us, please contact us at: privacy@jdsupra.com.

JD Supra Cookie Guide

As with many websites, JD Supra's website (located at www.jdsupra.com) (our "Website") and our services (such as our email article digests)(our "Services") use a standard technology called a "cookie" and other similar technologies (such as, pixels and web beacons), which are small data files that are transferred to your computer when you use our Website and Services. These technologies automatically identify your browser whenever you interact with our Website and Services.

How We Use Cookies and Other Tracking Technologies

We use cookies and other tracking technologies to:

  1. Improve the user experience on our Website and Services;
  2. Store the authorization token that users receive when they login to the private areas of our Website. This token is specific to a user's login session and requires a valid username and password to obtain. It is required to access the user's profile information, subscriptions, and analytics;
  3. Track anonymous site usage; and
  4. Permit connectivity with social media networks to permit content sharing.

There are different types of cookies and other technologies used our Website, notably:

  • "Session cookies" - These cookies only last as long as your online session, and disappear from your computer or device when you close your browser (like Internet Explorer, Google Chrome or Safari).
  • "Persistent cookies" - These cookies stay on your computer or device after your browser has been closed and last for a time specified in the cookie. We use persistent cookies when we need to know who you are for more than one browsing session. For example, we use them to remember your preferences for the next time you visit.
  • "Web Beacons/Pixels" - Some of our web pages and emails may also contain small electronic images known as web beacons, clear GIFs or single-pixel GIFs. These images are placed on a web page or email and typically work in conjunction with cookies to collect data. We use these images to identify our users and user behavior, such as counting the number of users who have visited a web page or acted upon one of our email digests.

JD Supra Cookies. We place our own cookies on your computer to track certain information about you while you are using our Website and Services. For example, we place a session cookie on your computer each time you visit our Website. We use these cookies to allow you to log-in to your subscriber account. In addition, through these cookies we are able to collect information about how you use the Website, including what browser you may be using, your IP address, and the URL address you came from upon visiting our Website and the URL you next visit (even if those URLs are not on our Website). We also utilize email web beacons to monitor whether our emails are being delivered and read. We also use these tools to help deliver reader analytics to our authors to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

Analytics/Performance Cookies. JD Supra also uses the following analytic tools to help us analyze the performance of our Website and Services as well as how visitors use our Website and Services:

  • HubSpot - For more information about HubSpot cookies, please visit legal.hubspot.com/privacy-policy.
  • New Relic - For more information on New Relic cookies, please visit www.newrelic.com/privacy.
  • Google Analytics - For more information on Google Analytics cookies, visit www.google.com/policies. To opt-out of being tracked by Google Analytics across all websites visit http://tools.google.com/dlpage/gaoptout. This will allow you to download and install a Google Analytics cookie-free web browser.

Facebook, Twitter and other Social Network Cookies. Our content pages allow you to share content appearing on our Website and Services to your social media accounts through the "Like," "Tweet," or similar buttons displayed on such pages. To accomplish this Service, we embed code that such third party social networks provide and that we do not control. These buttons know that you are logged in to your social network account and therefore such social networks could also know that you are viewing the JD Supra Website.

Controlling and Deleting Cookies

If you would like to change how a browser uses cookies, including blocking or deleting cookies from the JD Supra Website and Services you can do so by changing the settings in your web browser. To control cookies, most browsers allow you to either accept or reject all cookies, only accept certain types of cookies, or prompt you every time a site wishes to save a cookie. It's also easy to delete cookies that are already saved on your device by a browser.

The processes for controlling and deleting cookies vary depending on which browser you use. To find out how to do so with a particular browser, you can use your browser's "Help" function or alternatively, you can visit http://www.aboutcookies.org which explains, step-by-step, how to control and delete cookies in most browsers.

Updates to This Policy

We may update this cookie policy and our Privacy Policy from time-to-time, particularly as technology changes. You can always check this page for the latest version. We may also notify you of changes to our privacy policy by email.

Contacting JD Supra

If you have any questions about how we use cookies and other tracking technologies, please contact us at: privacy@jdsupra.com.

- hide

This website uses cookies to improve user experience, track anonymous site usage, store authorization tokens and permit sharing on social media networks. By continuing to browse this website you accept the use of cookies. Click here to read more about how we use cookies.