A Grossly Negligent Claim Isn’t a False Claim

You have to feel sorry for whistleblower Darilyn Johnson.  The former billing clerk thought she had a sure-fire, double-barrel False Claims Act (FCA) case against the medical clinic that fired her.

Barrel one was her basic FCA case.  Darilyn could prove that when the allergy clinic filled out its Medicare claim forms, it always listed the referring provider as the provider who supervised the treatment, even though sometimes other providers did the supervising.

Barrel two was her FCA retaliation case.  Darilyn sent two emails to her supervisor complaining that the clinic was illegally billing Medicare and Medicaid patients directly.  The day she sent the second one she got fired.

A sure-fire case, right?  Wrong.  The district court dismissed the case on its own motion, and on March 7 the Fifth Circuit affirmed the dismissal.

Here’s why.  As to barrel one, FCA liability requires that the defendant knowingly asks the government to pay claims it doesn’t owe.  Under FCA case law negligence in billing—even gross negligence—doesn’t qualify as knowingly false billing.  Besides, the government wasn’t harmed by the errors Darilyn pointed to.

As to barrel two, bills to Medicare and Medicaid patients can’t be false claims under the FCA because the FCA applies only to claims submitted to the government.  A bill to a patient isn’t a bill to the government.  So even if the clinic retaliated against Darilyn for complaining about bills to patients, the FCA doesn’t apply.

The case is U.S. ex rel. Johnson v. Kaner Medical Group, 2106 BL 68506 (5th Cir. 2016).

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