Ninth Circuit Affirms Summary Judgment in Favor of Hospitals in Qui Tam Case
The U.S. Court of Appeals for the 9th Circuit affirmed a district court decision that a hospital had not submitted any false claims. (United States ex rel. Woodruff v. Hawaii Pacific Health, WL 5072191 (9th Cir. 2010). Kelley A. Woodruff and Robert Wilkinson, physicians in the pediatric hematology-oncology (hem-onc) and neo-natal intensive care unit (NICU) units of Kapiolani Medical Center for Women and Children, initiated a whistleblower, or qui tam, action under the False Claims Act alleging that the hospital submitted false claims in connection with UB-92 forms. Specifically, Drs. Woodruff and Wilkinson contended that the UB-92 forms, submitted to Medicaid for reimbursement of the hospital’s costs incurred in connection with medical procedures, were false because the procedures had been performed by unsupervised and unlicensed nurse practitioners. According to Woodruff and Wilkinson, the hospital falsely certified, in its provider agreement, that it would operate in compliance with all applicable laws. In granting, in part, the hospital’s motion to dismiss, the district court ruled that the certification was a condition of participation in the Medicaid program but was not a condition of payment for the hospital’s reimbursement claims. (2007 WL 1500275 (D.Hawaii 2007)). This narrowed the issue in the case to whether the UB-92 forms were facially false because they “implied” that the procedures had been performed or supervised by physicians. In granting summary judgment for the hospitals, the district court rejected the contention that the UB-92s were facially false. The district court also found that the hospital presented unrebutted evidence that the nurses were properly licensed and board-certified nurse practitioners, qualified to perform the hem-onc and NICU procedures at issue, even in the absence of physician supervision. (560 F.Supp.2d 988 (D. Hawaii 2008)).
On appeal, Woodruff and Wilkinson abandoned their contention that the claims were facially false. The Court of Appeals affirmed the determination that the nurses were properly licensed, rejected the contention that the district court relied upon Medicare standards, rather than those of Hawaii Medicaid, and ruled that the district court did not abuse its discretion in refusing to order the hospital to produce certain electronic records.
Harry R. Silver, with Hooper, Lundy & Bookman’s Washington, D.C. office, represented the hospital in the district court and on appeal.