FCA Whistleblower's Deficient Anesthesia E-Billing Suit Dismissed With Prejudice By Florida District Court

Author:Mr Emre Ilter
Profession:McDermott Will & Emery

On February 6, 2018, the US District Court for the Middle District of Florida granted a motion to dismiss a non-intervened False Claims Act (FCA) suit concerning electronic billing practices for anesthesiology services. As with another recent dismissal, the court found that Relator had failed to present sufficient allegations to meet the particularity requirement of Federal Rule of Civil Procedure 9(b).

The operative complaint alleged that Relator was a compliance review specialist and supervisor of physician coding at a health care provider, and that she utilized the defendant, Epic System's Corp.'s, medical e-billing software. Relator alleged that she was trained for a week on the software, and then allegedly identified a software issue that resulted in double-billing for the time of anesthesiologists. Specifically, Relator referenced a January 1, 2012, change in Medicare practices which adjusted "units to be billed" for anesthesia services to be measured in actual minutes rather than 15-minute increments. Relator asserted that the e-billing software allowed hospitals to "double-charge" 15-minute increments plus the precise number of minutes of service. Relator alleged that she raised this issue with the defendant repeatedly and that Defendant implemented a very narrow adjustment which would only fix the issue at Relator's employer's office, allegedly leaving the "double-charge" error in effect at other users' offices.

In granting the defendant's motion to dismiss, the court found that the complaint lacked the indicia of reliability required to state a claim under the FCA. Specifically, the court noted that the complaint failed to set forth any allegations of false representations by the defendant regarding its software, and observed that the complaint merely "parroted" the statutory language from the FCA. Furthermore, the court found that there were no credible allegations that any false claims were actually submitted to Medicare. The court went on to list the deficiencies of the complaint on this front, finding that it was "entirely unclear...

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