By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law
On March 30, 2012, the 4th U.S. Circuit Court of Appeals overturned a federal district judge's 2010 decision for Tuomey Healthcare System. (U.S. ex rel. Drakeford v. Tuomey Health. Sys., Inc., 4th Cir., No. 10-1819 (Mar. 30, 2012)) The lower court's decision ordered Toumey Healthcare System to pay $44.9 million for allegedly violating the Stark Law. (42 U.S.C. § 1395nn) The appeals court decided that the 2010 district ruling denied Tuomey its Seventh Amendment right to a jury trial.
A physician initiated a qui tam or whistle-blower suit against Toumey under the False Claims Act in 2005. The suit was later picked up and prosecuted by the U.S. Department of Justice. In the False Claims Act complaints filed in the U.S. District Court in Columbia, S.C., the whistle-blower and the U.S. Department of Justice (DOJ) alleged that Tuomey had contracts with physicians that were illegally overpaid by Tuomey. This was alleged to be in exchange for their exclusively referring patients to Tuomey's hospital, thus violating the Stark Law. Billings for referrals from those physicians allegedly constituted false claims as a result of this.
Novel Theory Used to Obtain Large Recovery
This was a novel theory to pursue in a qui tam or whistle-blower case because it was not based directly on submission of false claims. Instead it put forth the theory that the claims were false because they violated the anti-referral provisions of the Stark Act.
In March 2010, a jury found that Tuomey had not violated the False Claims Act but did find Tuomey guilty of committing Stark Law violations. (Note: The Stark Act does not establish a private cause of action for plaintiff to recover civil damages.) This jury verdict was set aside by the judge and a new trial regarding the False Claims Act allegations was granted. Under the lower court's decision, Tuomey was still required to repay the government $44.9 million in Medicare payments that were allegedly received through physician contracts that violated the Stark Law. This was the part of the verdict that was not set aside by the trial court.
However, according to the opinion of the appeals court, when the district court set aside the jury's verdict, it specifically ordered that the new trial would encompass the whole False Claims Act matter, including whether Tuomey had violated the Stark Law. This nullified the jury's interrogatory answer (part of the verdict it returned) regarding the Stark Law. Thus, when the district court ordered Tuomey to repay the government for violating the Stark Law, it denied Tuomey of its right to a jury trial.
Two Major Stark Issues Discussed
The appeals court also addressed two major Stark Law issues that were raised on appeal and are likely to recur on remand. The first issue is whether the facility component of the services performed by the physicians, for which Tuomey billed a facility fee to Medicare, constituted a "referral" within the meaning of the Stark Law. The court used the Health Care Financing Administration's (now the Centers for Medicare and Medicaid Services) final rule on referrals (66 Fed. Reg. 856, 941, Jan. 4, 2001) to conclude that the facility/technical component of the physician’s personally performed services does constitute a referral.
The second issue was the correct standard to use. Having decided that the physicians were making referrals to Tuomey, the appeals court then examined if an arrangement that takes into account anticipated referrals violate the Stark Act's "volume or value standards." The "volume or value standards" require that compensation must be calculated in a way that does not take into account the volume or value of referrals between the parties.
Fair Market Value Standard
Additionally, Stark Act requires that whatever financial relationship exists reflects “fair market value.” Stark defines "fair market value" as compensation that "has not been determined in any manner that takes into account the volume or value of anticipated or actual referrals"(42 C.F.R. § 411.351). Thus, the court concluded that compensation based on the volume or value of anticipated referrals does implicate the volume or value standard. The court left it to the jury to decide if Tuomey's contracts violated the fair market value standard.
$50 Million May be Returned to Tuomey
The government has 45 days from the date of the decision to request a rehearing. If it doesn't, the matter goes back to the South Carolina federal district court where it was originally decided. Tuomey can then request the money that it had set aside to pay the government back, $50 million according to it, to be released to the health system.
Tuomey Issues Press Release
In a press release dated March 31, 2012 (Press Release), signed by Jay Cox, its President and Chief Executive Officer (CEO), Tuomey Healthcare System stated:
The 4th Circuit has issued an opinion in favor of Tuomey on our appeal. We are pleased that the 4th Circuit Court has decided that the District Court's judgment violated Tuomey's Seventh Amendment right to a jury trial, and vacated (reversed) the $50 million judgment against Tuomey Healthcare System.
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As the Court of Appeals said in the opinion: "The whole case, including the issues of fact at the former trial is open for hearing and determination." This includes the incorrect finding by the first jury that Tuomey violated the Stark Law. Again, we are pleased with this news and we will keep you posted as we learn more.
Setback to Plaintiff's Qui Tam Bar?
The original decision in Tuomey had encouraged plaintiff's attorneys who take whistle-blower cases in health care matters and had alarmed health care systems across the country. Although this does not eliminate the ability to use Stark Act violations as the basis for False Claims Act recoveries, it does indicate that the courts will require strict pleading, proof and procedural rules before it does allow this.
Blesch, Gregg, "Appeals Court Overturns Order for S.C. Hospital to Pay $45 Million in Stark Case," Modern Healthcare (Apr. 1, 2012). From:
Cheung, Karen M., "Federal Appeals Court Overturns $45M Stark Ruling," FierceHealthcare (Apr. 2, 2012). From:
Cox, Jay, "Federal Case Update," Tuomey Healthcare System Press Release (Mar. 31, 2012).
Cox, Jay, "Federal Case Update," Tuomey Healthcare System Press Release (Mar. 31, 2012). From: http://www.tuomey.com/Articles/federal_case_update.aspx
Davis, Caralyn, "Stark Violations: Tuomey Healthcare in South Carolina Ordered to Pay $50 Million," FierceHealthcare (June 9, 2012). From: http://www.fiercehealthfinance.com/story/stark-violations-tuomey-healthcare-s-c-ordered-pay-50-million/2010-06-09
HHS, "Medicare and Medicaid Programs: Physicians' Referrals to Health Care Entities With Which They Have Financial Relationships," 66 Fed. Reg. 856, 941 (Jan. 4, 2001). From: http://www.gpo.gov/fdsys/pkg/FR-2001-01-04/pdf/01-4.pdf
U.S. ex rel. Drakeford v. Tuomey Health.Sys., Inc., 4th Cir., No. 10-1819 (Mar. 30, 2012). From: http://pacer.ca4.uscourts.gov/opinion.pdf/101819.P.pdf
About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone: (407) 331-6620.
Tag words: Tuomey, Tuomey case, physicians, whistle-blower, qui tam case, Stark Act, Stark Law, Medicare overpayment, healthcare providers, false claims act, litigation, appeals court, hospital contracts, hospital referrals, physician referrals, fair market value standard