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United States ex rel Gear v. Emergency Medical Associates of Illinois

February 1, 2006

UNITED STATES OF AMERICA, EX REL. DR. BRENT GEAR, PLAINTIFF-APPELLANT,
v.
EMERGENCY MEDICAL ASSOCIATES OF ILLINOIS, INC., AND ILLINOIS/INDIANA EM-1 MEDICAL SERVICES, S.C., DEFENDANTS-APPELLEES.



Appeals from the United States District Court for the Northern District of Illinois, Eastern Division. No. 00 C 1046-Charles R. Norgle, Sr., Judge.

The opinion of the court was delivered by: Evans, Circuit Judge.

ARGUED DECEMBER 1, 2005

Before FLAUM, Chief Judge, and BAUER and EVANS, Circuit Judges.

Brent Gear individually, and on behalf of the United States, filed this qui tam action under the False Claims Act (FCA), 31 U.S.C. § 3729 et seq. He alleges that the defendants-Emergency Medical Associates of Illinois, Inc., and Illinois/Indiana EM-1 Medical Services, S.C.-fraudulently billed Medicare for services performed by residents in Midwestern University's residency program as if those services had been performed by attending physicians. The district court granted summary judgment to the defendants and Gear appeals. Our review is de novo. Commercial Underwriters Ins. Co. v. Aires Envtl. Servs., Ltd., 259 F.3d 792 (7th Cir. 2001).

It's undisputed that both corporate defendants provide physicians to hospital emergency rooms. Gear is a graduate of Midwestern University's emergency medicine program and during the relevant time was fulfilling his residency requirements at three Chicago area hospitals: St. Bernard, Edgewater, and Grant.

Residents are medical school graduates who gain experience by working in hospitals. Residents' services are not reimbursable by Medicare; however, Medicare provides funds to hospitals to offset the costs of residency programs.

42 C.F.R. § 415.208(b)(1). On the other hand, the services of attending physicians, who are licensed doctors, are reimbursable by Medicare. Residents can obtain medical licenses and become senior residents. Senior residents are then properly allowed to moonlight as attending physicians. 42 C.F.R. § 415.208. When they act as attending physicians, their services are also reimbursed by Medicare.

That said, however, it is also true that senior residents cannot work as attending physicians during residency hours; in other words, they cannot be two things at once. The problem Gear highlights is that the two defendants double-billed Medicare for the work of residents in their capacity as attending physicians but performed during residency hours.

Gear filed this qui tam action claiming that these billing practices violated the FCA, which provides that "[a]ny person who . . . conspires to defraud the Government by getting a false or fraudulent claim allowed or paid . . . is liable to the United States Government for a civil penalty of not less than $5,000 and not more than $10,000, plus 3 times the amount of damages which the Government sustains . . . ." 31 U.S.C. § 3729(a). Even though a qui tam action is brought in the name of the government, 31 U.S.C. § 3730(b)(1), the government has a 60-day period in which to decide to participate-intervene-in the suit. 31 U.S.C. § 3730(b)(2). If it does intervene, government attorneys take control of the case; if not, the "relator," Gear in this case, may proceed on his own. 37 U.S.C. § 3730(c)(3). Regardless whether the government intervenes, the relator is eligible to receive a percentage of any recovery. If the government intervenes, that percentage is between 15 and 25 percent of the recovery, 37 U.S.C. § 3730(d)(1); if not, it is between 25 and 30 percent. 37 U.S.C. § 3730(d)(2). In this case, the government chose not to intervene.

There are bars to qui tam actions under the FCA. The relevant one here is the "public disclosure" bar, which provides, in part, that "[n]o court shall have jurisdiction over an action under this section based upon the public disclosure of allegations or transactions in a . . . Government [General] Accounting Office report, hearing, audit, or investigation, or from the news media, unless the action is brought by the Attorney General or the person bringing the action is an original source of the information."

37 U.S.C. § 3730(e)(4)(A). The bar is designed to deter parasitic qui tam actions. We have surmised that the word "jurisdiction" in the statute refers not to the power of the court, but to the right of a particular qui tam plaintiff to represent the government. United States ex rel. Fallon v. Accudyne Corp., 97 F.3d 937, 941 (7th Cir. 1996):

In context, the word appears to mean that once information becomes public, only the Attorney General and a relator who is an "original source" of the information may represent the United States. This does not curtail the categories of disputes that may be resolved (a real "jurisdictional" limit) but instead determines who may speak for the United States on a subject, and who if anyone gets a financial reward.

This statement is reinforced by Hughes Aircraft Co. v. United States ex rel. Shumer, 520 U.S. 939, 951 (1997), remarking that a similar provision in the 1982 version of the FCA (which was deleted by a 1986 Amendment) spoke "not just to the power of a particular court but to the substantive rights of the parties as well" even though the statute was phrased in jurisdictional terms.

To determine whether a relater has the right to bring a suit, we first look to two questions: Was the information on which his allegations are based "publicly disclosed" and, if so, is the suit based on the publicly disclosed information. If not, he avoids the public disclosure bar. However, even if his suit is based on public information, he can still proceed if he is an "original source" of ...


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