Government Still Seeks $44.9 Million


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Under common law claims of payment by mistake of fact and unjust enrichment, the government seeks repayment of $44,888,651 in Medicare claims filed from January 2005 to June 2009 under 19 physician contracts for the hospital’s Outpatient Surgery Center that a jury found, following a month long trial, to violate Stark Law.

Tuomey was found on March 29 not to have violated the False Claims Act. The government sought more than $200 million in relation to the False Claims Act but will be not be awarded anything related to that law because of the jury’s verdict.

But as far as the Stark Law violation, the government, using a varying scale of interest rates and Medicare repayment formulas, seeks, as a conservative figure, $4,040,133.92 in interest, plus $5,122.50 in additional interest for each day from Thursday until a final decision is made by Senior U.S. District Judge Matthew J. Perry Jr.

The filing also shows that using alternate interest rates and formulas, the government could seek $13,637,068.53 in interest on top of the $44.9 million, meaning Tuomey could face $58.5 million in damages if Perry deems interest to be a factor.

Other than to say that the hospital now has up to seven business days to file a motion in response, Tuomey spokeswoman Brenda Chase wrote in an e-mail that “Tuomey is reserving additional comments on the case.”

Dan Mulholland, one of the lawyers representing Tuomey, echoed Chase’s comments Friday.

“Well, we don’t have any comments at this time,” he said, noting that the hospital will respond to the two government filings separately.

The Stark Law provides that if a physician or immediate family member has a financial relationship with an entity, the physician may not make a referral to the entity for the furnishing of designated health services for which payment otherwise may be made, one of the filings shows, and the entity may not present or cause to be presented a claim or bill to any individual, third-party payor, or other entity for designated health services furnished pursuant to a prohibited referral.

“The Stark Law further provides: ‘No payment may be made under this title for a designated health service which is provided in violation of subsection (a)(1),” one of the filings states. “Likewise, the regulations promulgated by the Secretary of the Department of Health and Human Services require that ‘(a)n entity that collects payment for a designated health service that was performed pursuant to a prohibited referral must refund all collected amounts on a timely basis.”

Thursday’s filing rebuts Tuomey’s most recent motion, which seeks to assert that no money should be repaid to the government.

“Tuomey’s suggestion that the government has no right to invoke longstanding principles of common law to recover the $45 million in taxpayer money that Tuomey unlawfully claimed and received from the Medicare program is not only unsupported, but it would create reversible legal error,” one of the filings states.

Mulholland explained that Tuomey has until April 26 to respond to the government’s memorandum in opposition to the hospital’s motion for judgment on equitable claims and has until May 3 to respond to the government’s motion for judgment on its common law claims.

It is unknown when Perry will hold a hearing to entertain arguments from both sides regarding the recently filed motions.




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