Health Law Daily No summary judgement for FCA action regarding medically ‘necessary’ procedures
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Friday, August 21, 2020

No summary judgement for FCA action regarding medically ‘necessary’ procedures

By Wendy Biddle, J.D.

Doctors competing claims of what is a necessary procedure made summary judgment improper.

In a case questioning whether medical procedures performed and then reimbursed by Medicare were medically necessary, the federal district court in Utah denied a relator’s motion for partial summary judgment. The court held that both parties had provided evidence in support of their contradictory assertions and therefore a genuine issue of material fact exists making summary judgment inappropriate (U.S. ex rel. Polukoff v. St. Mark’s Hospital, August 19, 2020, Steward, T.).

The case revolves around whether a doctor violated the False Claims Act by submitting legally false claims for reimbursement under Medicare. The doctor is a board-certified cardiologist with experience in a procedure called Patent Foramen Ovale (PFO) closure where a tunnel-like opening between the two upper chambers of the heart, which naturally closes after birth does not and therefore has to be closed surgically.

Medicare law mandates that services that are not reasonable or necessary may not be reimbursed. The Medicare Manual defines reasonable and necessary as safe, effective—not experimental or investigational—and appropriate.

The relator filed a motion for summary judgment, claiming that there is no issue of material fact that PFO closures from 2002 to 11 were not reasonable and necessary. Additionally, the motion laid out and what constituted medical necessity for PFO closure in the medical community during that same timeframe.

The relator argued that PFO closures were not reasonable and necessary and are only appropriate in patients with either at least one cryptogenic stroke determined by a neurologist and cardiologist. The defendants argued that a PFO closure is needed for a broader range of patients and diagnosis by a neurologist was not always necessary.

The court found that the both parties provided support for their contradictory claims and because a genuine issue of material fact exists, summary judgment was inappropriate.

The case is No. 2:16-cv-304 TS.

Attorneys: Sandra L. Steinvoort, U.S. Attorney's Office, for the United States. David L. Hobbs (Fleming Nolen & JEZ LLP) and Rhome D. Zabriskie (Zabriskie Law Firm LLC) for Gerald Polukoff. Andrew A. Warth (Waller Lansden Dortch & Davis LLP) and D. Loren Washburn (Smith Washburn LLP) for St Mark's Hospital.

Companies: St Mark's Hospital

MainStory: TopStory CaseDecisions CMSNews BillingNews FCANews FraudNews PaymentNews PartBNews ProgramIntegrityNews ProviderNews QualityNews UtahNews

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