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.