Baker v. Banner Health – May 2015 (Summary)

FALSE CLAIMS ACT/NONPHYSICIAN SUPERVISION OF RADIOLOGY SERVICES

Baker v. Banner Health, Civil Action No. 12-cv-3029-WJM-CBS (D. Colo. May 28, 2015)

The United States District Court for the District of Colorado granted a qui tam relator’s motion for partial summary judgment in a lawsuit she brought alleging violation of the False Claims Act by a medical center and its medical group, on the basis that they inappropriately billed Medicare for external beam radiation therapy despite having no qualified physician on the premises. The medical center argued that it could provide Medicare-reimbursable radiation therapy in the absence of a specialized physician as long as an advanced practice nurse (“APN”) supervised the procedure. The relator argued, on the other hand, that federal regulations allow “direct supervision” to be done by a non-physician practitioner only if the non-physician practitioner may “personally furnish” the relevant service in accordance with state law. In this case, the court noted that Colorado regulations do not permit non-physician practitioners to personally furnish radiation therapy services. Accordingly, the medical center was not permitted to bill Medicare for radiation therapy services provided without the presence of a specialized physician. The court noted that its decision did not resolve the question of intent, a matter which must also be considered in determining liability under the False Claims Act.