Monthly Archives: October 2015

Update: Reconsideration Denied in Baker Case

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We earlier reported about the District of Colorado’s denial of the defendant’s early summary judgment motion in Baker v. Banner Health (D. Colo. 2015), in which the court found that because nurse practitioners could not provide therapeutic radiation therapy services, they could not supervise such services for purposes of Medicaid reimbursement.

The defendant recently filed a motion for reconsideration, which the court denied. The court rejected the defendant’s attempt to distinguish the concepts of being able to “personally furnish” certain medical services and the ability to “prescribe” such services. The court ruled that for purposes of the applicable Medicaid regulations, the two concepts are the same. The court found that because nurse practitioners could not prescribe therapeutic radiation doses–or change those doses–under Colorado law, nurse practitioners cannot personally furnish those services within the meaning of the regulations.

The court also rejected the defendant’s request to certify the decision for interlocutory appeal, finding that discovery was almost closed and that the plaintiff’s false claim theory was broader than this particular issue.

Boeing Settles for $18M Over False Claims Act Suit Based on Inflated Labor Costs

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The DOJ announced Thursday that Boeing will pay $18 million under the False Claims Act for overcharging the Air Force for labor to maintain C-17 Globemaster aircraft. Like most False Claims Act cases, the suit was brought by a former Boeing employee, James Thomas Webb, who discovered the fraudulent billing practices while working at the company.

The case is a good reminder that while the False Claims Act is flexible and applies to all attempts to defraud the government, sometimes it’s the obvious cases that get overlooked. Padding bills, billing for services not rendered, billing for products not provided, or even simply billing for a few hours that were never worked are classic examples of false claims covered by the False Claims Act.

 

Colorado District Court’s “Early” Summary Judgment Ruling Sides With Relator in Medcaid FCA Case

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In Baker v. Banner Health (D. Colo. 2015), the court was asked to decide whether non-physicians–specifically nurse practitioners–could supervise therapeutic radiation treatment for purposes of Medicaid regulations. The court decided the issue on an “early” summary judgment motion by defendant Banner Health, which asked the court to conclude that nurse practitioners could supervise such treatment under applicable Medicaid rules. The court granted the request for an early summary judgment ruling because the case turned on this critical legal issue. (It is not clear why the defendant chose the summary judgment procedure instead of a motion to dismiss.)

The answer to the question presented depended on a complex series of Medicaid regulations and state regulations governing therapeutic radiation services. Distilled to its essence, the applicable Medicaid regulation, 42 C.F.R. § 410.27, provided that non-physicians could supervise the radiation treatments only if they could “personally furnish [such treatments] in accordance with State law.” The relator pointed to Colorado regulations that limited the provision of radiation treatment to a “physician who has a current active State of Colorado license” and other relevant qualifications. The relator argued, based on these regulations, that nurse practitioners could not personally furnish such services and thus could not supervise such treatments for Medicaid purposes.

The court was not persuaded by Banner’s counterarguments based on (1) a general Colorado statute limiting the Colorado board of health’s power to restrict the use of radiation-emitting medical equipment, and (2) a Colorado law that permitted nurse practitioners to supervise radiation therapy. The court found that neither of these laws addressed the specific question at issue–whether nurse practitioners could personally furnish radiation therapy services. As a result of this analysis, the court denied Banner’s early summary judgment ruling and allowed the case to proceed.