Bass, Berry & Sims attorney Taylor Chenery authored an article for Law360 addressing how ambiguities within complex government rules and regulations can lead to multiple interpretations and potentially expose a healthcare provider or government contractor to FCA liability. "The question necessarily arises, then, at what point a provider's or contractor's regulatory interpretation may expose it to the harsh damages and penalties accompanying FCA liability rather than some lesser sanction if that interpretation ultimately differs from the government's or a court's," said Taylor.
In the article, Taylor cites the Eighth Circuit's opinion in U.S. ex rel. Donegan v. Anesthesia Associates of Kansas City PC as the most recent case addressing this issue, suggesting that a provider faced with a potentially ambiguous regulation or statute can protect itself from possible FCA liability by taking steps to ensure that its interpretation of the ambiguous rule is reasonable under the circumstances. In the Donegan case, the Eighth Circuit affirmed the district court's ruling that the provider strongly demonstrated that its interpretation of a billing regulation was objectively reasonable in part because an unclear term had not been clarified by the government, government contractors or professional organizations.
The full article, "When Ambiguous Regs Preclude FCA Liability," was published by Law360 on September 22, 2016, and is available online. To learn more about this issue, read Taylor's blog post on the Inside the FCA blog from August 19, 2016, "Eighth Circuit Affirms Dismissal of FCA Claims Related to Ambiguous Regulation."