On August 12, 2016, the U.S. Court of Appeals for the Eighth Circuit affirmed summary judgment with respect to FCA claims asserted against an anesthesia practice based on the theory that the practice's physicians billed Medicare for anesthesia services without being present in the operating room during the patients' "emergence" from anesthesia. In U.S. ex rel. Donegan v. Anesthesia Associates of Kansas City, PC, the Eight Circuit concluded that the relator failed to establish that the practice acted with the requisite knowledge because the practice's interpretation of the billing regulation at issue was "objectively reasonable."
The relator alleged that the practice improperly billed the government at the "medical direction" level of billing for anesthesia services. Medical direction billing requires that an anesthesiologist satisfy seven different steps, including participating in "the most demanding aspects of anesthesia pain including, if applicable, induction and emergence." The relator alleged that the practice failed to satisfy that step because its anesthesiologists were almost never present during "emergence" since they typically did not see the patient after surgery until the patient was delivered to the Post-Anesthesia Care Unit (PACU) for recovery. Under even the broadest definition, the relator argued that "emergence" ends when the patient is turned over to the PACU staff.
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