U.S. & Ill. v. Associated Anesthesiologists of Springfield, Ltd.
| Decision Date | 25 August 2014 |
| Docket Number | No. 10-3076,10-3076 |
| Court | U.S. District Court — Central District of Illinois |
| Parties | UNITED STATES OF AMERICA and the STATE OF ILLINOIS, ex rel, DONALD HELFER, M.D., and DONALD HELFER, individually Plaintiffs, v. ASSOCIATED ANESTHESIOLOGISTS OF SPRINGFIELD, LTD., ET AL., Defendants. |
Relator Donald Helfer has filed a qui tam action against Defendant Associated Anesthesiologists, Memorial Medical Center, Memorial Health System, CBIZ Medical Management Professionals, Inc., and Anesthesia Business Consultants, LLC, alleging violations of the False Claims Act, the Illinois False Claims Act, and the Illinois Insurance Claims Fraud Prevention Act. Defendant Associated Anesthesiologists filed a Motion to Dismiss Relator's claims for retaliatory discharge and collectively, all Defendantsmoved to dismiss the remaining counts. Associated Anesthesiologists' Motion to Dismiss is DENIED because Relator has sufficiently alleged in Counts X and XXI-A that his former employer discharged him in violation of the False Claims Act and the Illinois False Claims Act. The Consolidated Motion to Dismiss is GRANTED in part and DENIED in part. Counts I-III, XI-XIV, XXI-B (Billing Counts), Counts IV-VI, XV-XVII (CRNA Counts) and Counts VII-IX, XVIII-XX (Cost Report Counts) are DISMISSED WITHOUT PREJUDICE for failing to comply with Rule 9(b). Relator's allegations of violations of the False Claims Act and Illinois False Claims Act before March 30, 2000, and allegations of violations of the Illinois Insurance Claims Fraud Prevention Act before March 30, 2002 are DISMISSED WITH PREJUDICE.
From August 1990 to October 2009, Relator Donald Helfer, M.D. was an anesthesiologist, shareholder, and member of the Board of Directors at Defendant Associated Anesthesiologists ofSpringfield, LTD ("Associated") in Springfield, Illinois. Associated is the sole provider of anesthesia services to patients at Defendant Memorial Medical Center. Memorial Medical Center is an acute care hospital in Springfield, Illinois that is an affiliate hospital of Defendant Memorial Health System. Memorial Health System operates three hospitals, one mental health center, one physician group, and one home health services agency.
In addition to providing anesthesia services to Memorial Medical Center, Associated's anesthesiologists also "medically direct" Certified Registered Nurse Anesthetists employed by Memorial Medical Center to perform anesthesia services. On any shift, Associated's anesthesiologists may work in Memorial Medical Center's 16 general operating rooms, four cardiac surgery rooms, two obstetrics surgical rooms, multiple obstetrics delivery rooms, the Radiology Department, the Gastrointestinal Lab, Heart Catheterization Lab, Orthopedic Surgery Center of Illinois, or the six operating rooms at the hospital's Ambulatory Surgery Center, which is across the street from the hospital.
Relator alleges in his Amended Complaint that Associated, as well as Defendants Memorial Medical Center, Memorial HealthSystem, CBIZ Medical Management Professionals, Inc. ("CBIZ Medical"), and Anesthesia Business Consultants, LLC ("ABC"), submitted false claims to the federal government and the State of Illinois or caused these false claims to be submitted. Throughout Relator's tenure at Associated, either CBIZ Medical or ABC contracted with Associated to perform all of Associated's medical billing to private insurance companies, Medicare, and Medicaid. Until ABC took over on October 1, 2008, Associated contracted with CBIZ Medical to handle Associated's billing. Relator additionally alleges he was terminated after he started to question the propriety of how Associated billed for anesthesia services performed for obstetrics patients.
Relator claims that at an Associated board meeting in April of 2009, an ABC representative assigned to Associated reported that ABC intended to resubmit claims to all insurance carriers for epidural services administered to patients who were in labor and delivery. ABC's representative proposed billing for Associated's labor and delivery epidural anesthesia services in a way that would indicate that the anesthesiologist had continuously performed the service from the time the epidural anesthesia was administered tothe delivery of the child. The ABC representative stated that CBIZ Medical had billed epidural anesthesia service claims the same way. According to Relator, the Associated physician who was the liaison to ABC proposed that Associated or ABC cap the billing for these services at 90 percent of the maximum amount that other Illinois anesthesia groups bill for them so insurance companies would not flag Associated for review.
In the Amended Complaint, Relator explains that after this meeting, he reviewed the billing regulations the Center for Medicare and Medicaid Services ("CMMS") promulgated for anesthesia services. What Relator learned made him believe that the billing practice the ABC representative proposed was contrary to CMMS regulations.
The regulations distinguish between services that are "medically directed," and those that are "medically supervised." Services that are "medically directed" are billed at a higher rate than those that are "medically supervised." Relator thought the regulations indicated that a service was "medically directed" when an anesthesiologist was directing two, three, or four concurrent anesthesia services. Epidural anesthesia services for obstetricspatients had to be counted as a concurrent service unless they qualified as short, emergency procedures. Relator was concerned that the regulations prohibited Associated from billing for "medically directing" concurrent procedures and also billing for continuous time with an obstetrics patient. If the anesthesiologist was with an obstetrics patient the entire time, he could not be medically directing other procedures.
Relator printed the relevant CMMS regulations from the CMMS website and gave them to Dr. Peter Martin, who told Relator he would pass along the regulations to Associated's ABC representative and Dr. Bulkley. Dr. Bulkley allegedly told Relator that "Relator was just trying to cause trouble." Am. Compl., d/e 1, ¶¶ 348, 680. Relator also asked Dr. Martin and Dr. Bulkley to address the epidural billing practice at the next board meeting on June 1, 2009.
At the June 1, 2009 board meeting, Relator inquired about the billing for obstetrics patients and was again told by the ABC representative that ABC billed for continuous time. Relator responded by stating that none of the anesthesiologists at Associated stayed in the Obstetrics Department after beginning anepidural anesthesia service. He further explained that when the anesthesiologist leaves Obstetrics, he or she does not "sign-out" and no other anesthesiologist takes over care of the patient. Relator also said that Associated's anesthesiologists often leave the hospital after beginning an epidural anesthesia service. In response, the ABC representative stated that other anesthesia practices have more signatures on the patients' files, possibly indicating that more anesthesiologists monitor the patients who have been given anesthesia.
In the days following the June 1, 2009 board meeting, Relator asked Dr. Martin to call the CMMS Help-Line for guidance on the billing practice for epidurals if ABC refused to "take action." Am. Compl., d/e 1, ¶¶ 351, 683. Relator also asked Dr. Baulkey (who the Court believes may actually be the "Dr. Bulkley" referenced elsewhere in the Amended Complaint) to call the Help-Line. Relator alleges that Dr. Baulkey directed the question back at Relator: Id.
On June 4, 2009, Relator did call the CMMS Help-Line. Per CMMS's recommendation, Relator emailed his question about billing continuously for epidural services to an address CMMSprovided. In the email, Relator asked CMMS whether "there was any problem with concurrent cases counting the labor epidural" when someone bills for continuous time on a labor epidural while "supervising" four procedures in the operating rooms. Am. Comp, d/e 13-4 at 4. He noted in the email that administering the epidural requires an anesthesiologist to leave the operating rooms for 30 minutes. Id.
Eight days later, a CMMS contractor answered Relator's question. In an email dated June 12, 2009, the CMMS contractor wrote that the "scenario provided does not meet the criteria of medical direction of two, three, or four concurrent procedures." Am. Compl., d/e 13-4 at 1. The contractor cited parts of the relevant section of CMMS's Internet-Only Manual stating that "periodic" rather than "continuous" monitoring of an obstetrics patient who has been given an anesthetic does not "diminish the scope of control" a physician exercises while directing the administration of anesthesia to surgical patients. Based on the Internet-Only Manual, the contractor concluded: "Because the anesthesiologist is billing the labor epidural continuously (rather than periodically), in addition to four concurrent procedures, theanesthesiologist's services become supervisory in nature." Id. The contractor then detailed the rate of payment for medically supervised services and specified that a service is "medically supervised" when the anesthesiologist is involved in more than four concurrent procedures or performs "other services while directing concurrent procedures." Id. The actual text of the relevant section of the Internet-Only Manual is included in the email. Id.
Relator called Dr. Martin on June 14, 2009 to tell him about the email and inform him that Relator would bring him a copy of the email that next day, which was a Monday. After Dr. Martin read the email on June 15, 2009, Relator alleges that Dr. Martin said, "the guys aren't going to like this." Am. Comp., d/e 13 ¶¶ 354, 686. In the remaining weeks of June, Relator alleges that he was...
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