Gear, Brent Dr. v. Emergency Medical As , 436 F.3d 726 ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 05-2235 & 05-3202
UNITED STATES OF AMERICA, ex rel. DR. BRENT GEAR,
Plaintiff-Appellant,
v.
EMERGENCY MEDICAL ASSOCIATES OF ILLINOIS, INC.,
and ILLINOIS/INDIANA EM-1 MEDICAL SERVICES, S.C.,
Defendants-Appellees.
____________
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 00 C 1046—Charles R. Norgle, Sr., Judge.
____________
ARGUED DECEMBER 1, 2005—DECIDED FEBRUARY 1, 2006
____________
Before FLAUM, Chief Judge, and BAUER and EVANS,
Circuit Judges.
EVANS, Circuit Judge. Brent Gear individually, and on
behalf of the United States, filed this qui tam action under
the False Claims Act (FCA), 31 U.S.C. § 3729 et seq. He
alleges that the defendants—Emergency Medical Associ-
ates of Illinois, Inc., and Illinois/Indiana EM-1 Medical
Services, S.C.—fraudulently billed Medicare for services
performed by residents in Midwestern University’s resi-
dency program as if those services had been performed
by attending physicians. The district court granted sum-
2 Nos. 05-2235 & 05-3202
mary judgment to the defendants and Gear appeals. Our
review is de novo. Commercial Underwriters Ins. Co. v.
Aires Envtl. Servs., Ltd., 259 F.3d 792 (7th Cir. 2001).
It’s undisputed that both corporate defendants provide
physicians to hospital emergency rooms. Gear is a graduate
of Midwestern University’s emergency medicine program
and during the relevant time was fulfilling his residency
requirements at three Chicago area hospitals: St. Bernard,
Edgewater, and Grant.
Residents are medical school graduates who gain experi-
ence by working in hospitals. Residents’ services are not
reimbursable by Medicare; however, Medicare provides
funds to hospitals to offset the costs of residency programs.
42 C.F.R. § 415.208(b)(1). On the other hand, the services of
attending physicians, who are licensed doctors, are reim-
bursable by Medicare. Residents can obtain medical licenses
and become senior residents. Senior residents are then
properly allowed to moonlight as attending physicians. 42
C.F.R. § 415.208. When they act as attending physicians,
their services are also reimbursed by Medicare.
That said, however, it is also true that senior residents
cannot work as attending physicians during residency
hours; in other words, they cannot be two things at once.
The problem Gear highlights is that the two defendants
double-billed Medicare for the work of residents in their
capacity as attending physicians but performed during
residency hours.
Gear filed this qui tam action claiming that these
billing practices violated the FCA, which provides that
“[a]ny person who . . . conspires to defraud the Government
by getting a false or fraudulent claim allowed or paid . . . is
liable to the United States Government for a civil penalty
of not less than $5,000 and not more than $10,000, plus 3
times the amount of damages which the Government
sustains . . . .” 31 U.S.C. § 3729(a). Even though a qui tam
Nos. 05-2235 & 05-3202 3
action is brought in the name of the government, 31 U.S.C.
§ 3730(b)(1), the government has a 60-day period in which
to decide to participate—intervene—in the suit. 31 U.S.C.
§ 3730(b)(2). If it does intervene, government attorneys take
control of the case; if not, the “relator,” Gear in this case,
may proceed on his own. 37 U.S.C. § 3730(c)(3). Regardless
whether the government intervenes, the relator is eligible
to receive a percentage of any recovery. If the government
intervenes, that percentage is between 15 and 25 percent of
the recovery, 37 U.S.C. § 3730(d)(1); if not, it is between
25 and 30 percent. 37 U.S.C. § 3730(d)(2). In this case, the
government chose not to intervene.
There are bars to qui tam actions under the FCA. The
relevant one here is the “public disclosure” bar, which
provides, in part, that “[n]o court shall have jurisdiction
over an action under this section based upon the
public disclosure of allegations or transactions in a . . .
Government [General] Accounting Office report, hearing,
audit, or investigation, or from the news media, unless
the action is brought by the Attorney General or the person
bringing the action is an original source of the information.”
37 U.S.C. § 3730(e)(4)(A). The bar is designed to deter
parasitic qui tam actions. We have surmised that the word
“jurisdiction” in the statute refers not to the power of the
court, but to the right of a particular qui tam plaintiff to
represent the government. United States ex rel. Fallon v.
Accudyne Corp., 97 F.3d 937, 941 (7th Cir. 1996):
In context, the word appears to mean that once infor-
mation becomes public, only the Attorney General and a
relator who is an “original source” of the information
may represent the United States. This does not curtail
the categories of disputes that may be resolved (a real
“jurisdictional” limit) but instead determines who may
speak for the United States on a subject, and who if
anyone gets a financial reward.
4 Nos. 05-2235 & 05-3202
This statement is reinforced by Hughes Aircraft Co. v.
United States ex rel. Shumer, 520 U.S. 939, 951 (1997),
remarking that a similar provision in the 1982 version of
the FCA (which was deleted by a 1986 Amendment) spoke
“not just to the power of a particular court but to the
substantive rights of the parties as well” even though the
statute was phrased in jurisdictional terms.
To determine whether a relater has the right to bring
a suit, we first look to two questions: Was the informa-
tion on which his allegations are based “publicly disclosed”
and, if so, is the suit based on the publicly disclosed infor-
mation. If not, he avoids the public disclosure bar. However,
even if his suit is based on public information, he can still
proceed if he is an “original source” of the information.
United States and Mathews v. Bank of Farmington, 166
F.3d 853, 859 (7th Cir. 1999).
The first issue, then, is whether the information on which
the complaint is based was already publicly disclosed when
Gear filed his complaint. United States ex rel. Feingold v.
Adminastar Fed., Inc., 324 F.3d 492 (7th Cir. 2003).
Clearly, it was. Since the mid-1990s there have been public
allegations that Medicare was being billed for services
provided by residents as if attending physicians had
actually performed the services. In 1998, the General
Accounting Office issued a report to the chairman of the
Subcommittee on Health, Committee on Ways and Means,
of the House of Representatives. The report stated that
in 1995 there was a settlement between the Department
of Justice and the University of Pennsylvania under
which the University agreed to pay $30 million to settle
allegations of improper billing. Because of concern that such
problems might be widespread, the Department of Health
and Human Services-Office of Inspector General (OIG)
instituted a nationwide initiative—known as Physicians at
Teaching Hospitals (PATH) Audits—to investigate how the
nation’s 125 medical schools, including Midwestern Univer-
Nos. 05-2235 & 05-3202 5
sity, billed Medicare for services provided by residents. The
stated purpose of the PATH initiative was to determine
whether hospitals and other entities were improperly
billing Medicare for services provided by unsupervised
residents. Teaching hospitals associated with the nation’s
125 medical schools were informed that they were subject
to an audit of the billings for resident services. Within a
year, audits were underway or planned at 49 institutions.
A few years later, five PATH audits had been resolved,
resulting in three settlements totaling more than $37
million.
Medical news sources were taking notice, with some
alarm. In 1997, the American Medical News reported that
the PATH issue was gaining congressional interest. In
1998, Physician’s Weekly reported that the “[t]eaching
hospitals are still in the HHS inspector general’s cross-
hairs.” The Journal of the American Heart Association
remarked about the concern the PATH audits were caus-
ing in teaching hospitals. Then in February 2000, the
University of Chicago agreed to pay a $10.9 million settle-
ment for improper billing for the work of unsupervised
residents. This was at the same time that Gear, while a
resident at Midwestern University, filed his complaint in
this case. Fighting back from the audits, the American
Association of Medical Colleges and the American Medical
Association (AMA) filed a complaint in California seeking
relief from what they saw as coercive conduct by the
government.
Whether the information Gear provided in his com-
plaint was in the public domain is not a close question.
Public disclosure occurs when “critical elements exposing
the transaction as fraudulent are placed in the public
domain.” Feingold, at 495. The fraud scheme Gear alleges
was publicly disclosed.
Gear contends, however, that these public disclosures
do not expose any transactions from which the govern-
ment (or anyone else) could infer that the particular entities
6 Nos. 05-2235 & 05-3202
he has named were fraudulently billing Medicare. We are
unpersuaded by an argument that for there to be public
disclosure, the specific defendants named in the lawsuit
must have been identified in the public records. The
disclosures at issue here were of industry-wide abuses and
investigations. Defendants were implicated. Industry-wide
public disclosures bar qui tam actions against any defen-
dant who is directly identifiable from the public disclosures.
See United States v. Alcan Elec. and Eng’g, Inc., 197 F.3d
1014 (9th Cir. 1999); United States ex rel. Findley v. FPC-
Boron Employees’ Club, 105 F.3d 675 (D.C. Cir. 1997);
United States ex rel. Fine v. Sandia Corp., 70 F.3d 568 (10th
Cir. 1995). We have said that “[w]here a public disclosure
has occurred, [the government] is already in a position to
vindicate society’s interests, and a qui tam action would
serve no purpose.” Feingold, at 495.
We are also convinced that Gear’s lawsuit is based on
these disclosures. It is true that in response to the summary
judgment motion Gear submitted his own affidavit saying
that he based his complaint on “personal observations and
experience.” That statement, however, is insufficient to
counter the weighty public record, which it is difficult to
believe Gear did not notice, especially because he was an
editor of the American College of Emergency Physicians’
publication 24/7 News for Emergency Medicine Residents.
While Gear was an editor, that publication featured an
article titled “PATH Investigations Result in First D.C.
Settlement.” The article described the PATH initiative and
named five hospitals that settled PATH investigations.
Gear’s self-serving affidavit is insufficient to sustain a claim
that his allegations are not based on public information. As
we said in the Feingold case, “Because Feingold points to no
evidence upon which this suit depends that is not publicly
disclosed, we hold that Feingold has based this action on
publicly disclosed documents . . . .” Feingold, at 497.
Nos. 05-2235 & 05-3202 7
Nor can Gear be viewed as an “original source” as that
term is used in the FCA. To qualify for that designation,
Gear must not only have direct and independent knowledge
of the information on which the suit is based, but he must
have “voluntarily provided the information to
the Government before filing [the] action . . . .” 31 U.S.C.
§ 3730(e)(4)(B). Gear admits he has never claimed to have
spoken to the government about his claims prior to filing
suit. For all these reasons, the district court correctly
granted the defendants’ motion for summary judgment.
Gear also contends that the district court abused its
discretion in the award of $2,065.65 in costs to the defen-
dants. Particularly he objects to the award of $200 for
admission of defendants’ counsel pro hac vice and to
what he sees as excessive fees for copying documents.
Looking particularly to the copying fees, we are somewhat
in the dark as to why the amount is justified. At first,
defendants requested $3,155.07 for internal copying fees.
Upon Gear’s objection, they withdrew their claim for
$1,289.52 of that amount. They now contend that they
charged 15 cents per page, and that information plus the
documents filed and the number of copies required justifies
the amount. Gear, however, points to information (which
defendants do not contest) that in the building in which
defendants’ counsel’s law firm is housed, a copy shop
charges 6 to 7 cents per page. Gear multiples that
amount by the number of copies calculated using the
method defendants propose and arrives at a much lower
cost—$676.20. Neither the district court decision nor the
defendants’ arguments in this court provide us with insight
as to why the larger amount is justified. We therefore find
an abuse of discretion and reduce the award of costs to
$876.20 ($676.20 for copying and $200 for attorney admis-
sion).
Accordingly, the judgment for defendants is AFFIRMED,
but the costs allowed in the district court are reduced
8 Nos. 05-2235 & 05-3202
to $876.20. On this appeal, each side shall bear its own
costs.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—2-1-06