Donegan v. Anesthesia Assoc., No. 15-2420 (8th Cir. 2016)Annotate this Case
Relator filed a qui tam action under the False Claims Act (FCA), 31 U.S.C. 3729-33, alleging that his former employer, AAKC, violated the FCA by submitting claims for Medicare reimbursement of anesthesia services at the “Medical Direction” rate. Relator alleged that, because AAKC anesthesiologists were not present in the operating room during patients’ “emergence” from anesthesia, and therefore AAKC did not comply with the Medicare conditions of payment for submitting such claims. The district court granted AAKC summary judgment. The court granted the United States leave to appear as amicus curiae supporting neither party. The court concluded that, because the agency had not clarified an obvious ambiguity in its Step Three regulation for decades, AAKC’s failure to obtain a legal opinion or prior CMS approval cannot support a finding of recklessness. The court also concluded that the district court did not abuse its discretion in refusing to consider a new theory first articulated in relator's summary judgment papers. Finally, the court rejected relator's claim that AAKC violated 42 C.F.R. 415.110(b). Accordingly, the court affirmed the judgment.
Court Description: Loken, Author, with Riley, Chief Judge, and Benton, Circuit Judge] Civil case - False Claims Act. In qui tam action alleging defendant defrauded the government by misbilling anesthesia services because an anesthesiologist was not usually present when the patient "emerged" from anesthesia, the district court did not err in granting defendant summary judgment based on its conclusion that the defendant could not knowingly submit false or fraudulent claims because neither the government agency administering the Medicare and Medicaid programs nor any other relevant governing body has issued guidance on the meaning of "emergence," and defendant's interpretation that the regulations permitted its billing practice was objectively reasonable; as the agency had not clarified an obvious and decades-old ambiguity in its regulations, defendant's failure to obtain a legal opinion or prior agency approval for the billing cannot support a finding of recklessness; the district court did not err in refusing to consider a new theory relator presented for the time at summary judgment.