# Appendix — Allina Health System Corp. v. United States Ex Rel. Minnesota Association of Nurse Anesthetists > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_0054%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 2002 - **Citation:** 537 U.S. 944 ## Text No.0 2 2:7 JUN 27 2002 OFRICE OF THE CLERK In The Supreme Court of the Anited States ¢ ALLINA HEALTH SYSTEM CORP,, ET AL., Petitioners, \ UNITED STATES OF AMERICA, EX REL. MINNESOTA ASSOCIATION OF NURSE ANESTHETISTS, Respondent. ¢ On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Eighth Circuit ¢ APPENDIX VOLUME II, PAGES 226 to 474 f S v JOHN D. FRENCH Counsel of Record for Petitioners FAEGRE & BENSON LLP 2200 Wells Fargo Center 90 South Seventh Street Minneapolis, MN 55402-3901 (612) 766-7000 COCKLE LAW BRIEF PRINTING CO. (800) 225-6964 OR CALL COLLECT (402) 342-2831 APPENDIX TABLE OF CONTENTS Page Volume I United States ex rel. Minnesota Ass’n of Nurse Anesthetists v. Allina Health System, et al., Ap- peal No. 99-2356 (Slip Op. 8th Cir. Jan. 17, 2002) (276 F.3d 1032 (8th Cir. 2002)................ccccccsssseeee App. 1 United States ex rel. Minnesota Ass’n of Nurse Anesthetists v. Allina Health System, et al., Civ. No. 4-96-734 (Slip Op. D. Minn. Sept. 24, 1997) .. App. 49 United States ex rel. Minnesota Ass’n of Nurse Anesthetists v. Allina Health System, et al., Civ. No. 4-96-734 ADM/AJB (Slip Op. D. Minn. Mar. Bh an isitsistasienbsly iianaaviatexteuncbileneacbiiseersuiarn App. 60 United States ex rel. Minnesota Ass’n of Nurse Anesthetists v. Allina Health System, et al., Ap- peal No. 99-2356 (Order denying Motion to Stay Issuance of the Mandate, May 23, 2002).............. App. 83 United States ex rel. Minnesota Ass’n of Nurse Anesthetists v. Allina Health System, et al., Ap- peal No. 99-2356 (Order denying Petition for Rehearing and for Rehearing En Banc, March 25, En iicttlighidesraiktint nee ecdakaseniiidtunns ecbpmuibcascssecinasn kates App. 84 Statutory and Regulatory Provisions Involved........ App. 85 MANA’s Complaint in the AntiTrust Action (No- Se ii, SE csi icincnseciassjnivbuntinianiicebisediovaicassasiaplecnese App. 159 Borger, Judith Yates, “Nurses File Suit Against 3 Hospitals Nurse Anesthetists Say Conspiracy Ended Jobs,” Pioneer Press, November 10, 1994, TABLE OF CONTENTS -— Continued Page Larus, Christopher K., “Suit Accuses Hospitals of Conspiracy,” St. Cloud Times, November 11, LOOS .......-0ssnnesiscicnenesinntsiesiicimeaplnadaidaiaaainaaniaba dain App. MANA’s First Complaint in the Qui tam Action (December BB, WG a. ccsscscinncstivnbivisaeuainaens App. Volume II MANA’s Third Amended Complaint in the Qui tam Action (March: 90, BDF Riscsiisiscssiscssetnnnicetinenns App. Excerpts from deposition of Medicare Carrier (Travelers) representative Patrick Donohue, Samaary G, WG cccesesesnciscsmnniniaiaaasaales App. United States Department of Justice, Press Re- lease, February 24, 2000..............ccccccccsscceceeeeeeees App. Holder, Eric H., Deputy Attorney General, “Guid- ance On the Use of the False Claims Act in Civil Health Care Matters,” June 3, 1998................... App. Articles of Incorporation of MANA, a Minnesota NON-PFOfit COTPOTALION ............cccccccceceeeeeeeececeeeeees App. Affidavit of Marcy Victoria Yarns, Manager of Regulatory Billing for Allina Health System Consolidated Business Office..................ssseeccceees App. Medicare News, September 1993. Newsletter from the Travelers to provider communities .............. App. Medicare Newsletter, April 1994. Newsletter from BlueCross . BlueShield of Minnesota to Part B PROTEIN ....001s0rscnsnrinenmianinaianaaaamiil App. Letter from Daniel Roach, attorney for Health Span Systems Corp., to Patrick Dorohue, the Travel- eae, Baas TE, Be es iciicecsciscsicevmnbiensopiaieeeteaion App. 203 206 226 333 338 342 352 372 374 377 ill TABLE OF CONTENTS - Continued Page Letter from Patrick Donohue, the Travelers, to Daniel Roach, attorney for Health Span Systems Corp., March 25, 1998..........sssessessrerereersrerennenes App. 388 Fax from Charles R. Booth, HCFA, to Travelers, July 27, 1998 ........scscercscereecessssesrencensnensenseesneseenens App. 390 Analysis of Carrier Correspondence, prepared by Brenda Morrow, Defendants’ Expert, February, ME oc scdunmuviabeebasvsennenonescedpeshensnivasipietensase App. 393 Report of James F. Arens, M.D., Defendants’ Expert, December 12, 1997.........:::ssssseserrereeners App. 411 Report of Bertran W. Coffer, M.D., Defendants’ Expert, December 5, 1997...........ssseserssrerresennees App. 445 Affidavit of Kathy Parsons, Director of Managed Care Contracting for St. Cloud Hospital, J uly 30, DE ccvacscoussurososessvsnenstnsvonvecsegbiossoosocsoresosenens App. 457 Exhibits to Parsons’s Affidavit Letter to Kathy Parsons, Director of Managed Care Contracting for St. Cloud Hospital, from Linda Mack, Assistant to the Medical Director Government Programs, August 28, 1989........... App. 461 Letter to Mary Stotko, Business Office, St. Cloud Hospital, from Linda Krecklau, Professional Re- lations Representative, Medicare, August 29, TOT. csasncsetvasenecesbabubvessienovesovenssoucsssscsosonvonenonee App. 463 BlueCross BlueShield Interoffice Memorandum from Kathy Henry to Becky Timm, November 15, DT . _-. -. cccpadounuweceserbubeneveosssvoreesenerevesosecersouseess App. 467 Excerpts from Deposition of defendant Mark Sperry, M.D., May 15, 1996.........s-sssssessssrsseserees App. 469 a App. 226 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MINNESOTA afe oe ee ae a 2 2 ie 2 2 eo 2 2h he a 2 ee 2 2 2 2 he a 2 2 he hs 2 2 2 ee 2 OK UNITED STATES OF AMERICA, Civil Action ex rel MINNESOTA ASSOCIATION File No. OF NURSE ANESTHETISTS, 4-96-734 v. ALLINA HEALTH SYSTEM CORP., UNITY HOSPITAL, MERCY HOSPI- TAL, JOHN MURPHY, MIDWEST ANESTHESIOLOGISTS, P.A., MET- ROPOLITAN ANESTHESIA NET- THIRD WORK, ALLEN TANK, HEALTH AMENDED BILLING SYSTEMS, INC., THELMA COMPLAINT * * * . ca * * * a » * * +’ * * * * . ¥ + . ok * rs x ok * * * * * o* ca M. ALBAY, M.D., GARY BAGGEN- STOSS, M.D., MINDA CASTILLEJOS, M.D., DAVID CUMMING, M.D., TERI HEIL, M.D., SANG HONG, M.D., TED JANOSSY, M.D., RAYMOND KLOEP- PER, II, M.D., JOHN MAGDSICK, M.D., THOMAS MAGGS, M.D., THO- MAS POLTA, M.D., JOHN ROSE- BERG, M.D., JAI SUH, M.D., MARK SPERRY, M.D., JEFFREY YUE, M.D., and JOHN RYDBERG, M.D., ST. CLOUD HOSPITAL, ANESTHESIA ASSOCIATES OF ST. CLOUD LTD., GARY A. BOEKE, M.D., PHILIP F. BOYLE, M.D., L. MICHAEL ESPE- LAND, M.D., ALAN D. ESPELIEN, M.D., PAUL J. HALVERSON, M.D., CRAIG JOHNSON, M.D., LANSE C. LANG, M.D., A. WADE McMILLAN, M.D., WILLIAM H. RICE, M.D., ALLAN REITZ, M.D., ANNETTE E. App. 227 ZWICK, M.D., ANESTHESIOLOGY, P.A., ABBOTT NORTHWESTERN HOSPITAL, NORTHWEST ANES- THESIA, P.A., BRYCE BEVERLIN, M.D., RICHARD BLOMBERG, M.D., JEAN BOENING, M.D., MITCHELL BURKE, M.D., RAJARAO DWARA- KANATH, M.D., RICHARD ENG- WALL, M.D., JAMES GAYES, M.D., LUIS GIRON, M.D., NANCY GROVES, M.D., JONATHAN GUDMAN, M.D., RICHARD JOHNSON, M.D., JOHN LILLEHEI, M.D., ROBERT McKLVEEN, M.D., JUDITH MEIS- NER, M.D., MICHAEL MENZEL, M.D., JAMES MUSICH, M.D., MARK NISSEN, M.D., XAVIER PEREIRA, M.D., DAVID PLUT, M.D., JEFFREY SHAW, M.D., RICHARD SKOOG, M.D., WILLIAM STAUFFER, M.D., OFELIO TIU, M.D., ROBERT TRONNIER, M.D., JOHN WINTER- MUTE, M.D., and [other unknown defendants], Does I through XX Defendants. 2 of i i 2c 2 a 2h 2c a 2 fe 2c 2c 2c 2k 2 2k 2c 2c 2 2c 2c 2 2 2k 2c 2c 2 a 2 2c 2 2k ok ak 2k * * &€& F&F eH He HEHE HEHEHE HHH EHH He HR ON OFX Plaintiffs as and for their Third Amended complaint against defendants say: JURISDICTION AND VENUE 1. This is an action to recover damages and civil penalties on behalf of the United States of America arising out of false and/or fraudulent claims presented by Defen- dants under the Federal Medicare Program. This action App. 228 arises under the provisions of Title 31 U.S.C. Section 3729, et seq. popularly known as the False Claims Act which provides that the United States District Courts shall have exclusive jurisdiction of actions brought under that Act. 29. Under Section 3732(A), venue is proper in this District because defendants reside in this District and the acts complained of herein occurred in the State of Minne- sota, within this judicial district. PARTIES TO THE ACTION 3. Qui tam Plaintiff Minnesota Association of Nurse Anesthetists (“MANA”) is an association formed for the purpose of preserving and advancing the profession of Certified Registered Nurse Anesthetists (“CRNAs”) in Minnesota and to engage in activities to promote and protect the legal rights of its members through, among other things, lobbying efforts, legal action and public relations activities. MANA has standing to bring this complaint for itself and on behalf of the United States Government pursuant to 31 U.S.C. § 3730. Various of MANA’s members were employed by defendant hospitals at times relevant to this complaint. Hereafter, MANA will alternatively be referred to as “Relator.” 4. Under the Act, the Complaint must be filed in camera and remain under seal for a period of at least sixty (60) days and shall not be served on the Defendant until the Court so orders. The Government may elect to inter- vene and proceed with the action in sixty (60) days after it receives both the Complaint, and the material evidence and information or to authorize the Relator to prosecute the action on the Government's behalf. Plaintiffs have complied with these provisions. App. 229 5. On May 17, 1995, the Government requested the Court to unseal this action and authorized MANA to pursue the action in the name of the United States. The Court unsealed the action by Order dated May 23, 1995. Since that time the Government hes monitored the action and reviewed copies of discover, motions and pleadings in the case. 6. As required under the False Claims Act, 31 U.S.C. § 3730 (a) (2), Relator has provided to the Attorney Gen- eral of the United States and to the United States Attor- ney for the District of Minnesota, simultaneous with the filing of the Complaint, a statement of material evidence and information in Relator’s possession related to the Complaint as well as a copy of this Complaint. The disclo- sure statement supports the existence of overcharges and false claims by the defendants. MANA is the original source of this information under the Act. 7. Defendant Allina Health System Corp. (“Allina”) is a nonprofit corporation and integrated health care system. 8. Defendant Unity Hospital (“Unity”) is a hospital operating at 550 Osborne Road in Fridley, Minnesota. 9. Defendant Mercy Hospital (“Mercy”) is a hospital operation at 4050 Coon Rapids Boulevard in Coon Rapids, Minnesota. 10. Defendant John Murphy currently and was at all times pertinent hereto Vice President of Unity and Mercy Hospitals. He was personally advised by CRNA members of MANA of the fraud alleged herein in 1992. 11. Defendant Midwest Anesthesiologists, P.A. (“MAPA”) is a Minnesota professional association which App. 230 engages in, among other things, the provision of anesthe- sia services to the defendants Unity and Mercy Hospitals. 12. Defendant Metropolitan Anesthesia Network (“MAN”) is a professional corporation which owns and controls MAPA, as well as other professional associations with anesthesiologists with privileges at Unity and several other Minnesota Hospitals. 13. Health Billing Systems, Inc. (“HBS”) is a Minne- sota corporation which is owned and controlled by MAN and is responsible for providing billing services to MAN and MAPA employees. On information and belief, Allen Tank is a principal of HBS. 14. Defendant Allen Tank (“Tank”) at all times pertinent hereto was an employee of either HBS, MAN or MAPA and performed business management functions for these groups, including billings for anesthesia which it is alleged were deceptive and fraudulent. 15. Defendants Thelma M. Albay, M.D. (“Albay”), Gary Baggenstoss, M.D. (“Baggenstoss”), Minda Cas- tillejos, M.D. (“Castillejos”), David Cumming, M.D. (“Cumming”), Teri Heil, M.D. (“Heil”), Sang Hong, M.D. (“Hong”), Ted Janossy, M.D. (“Janossy”), Raymond Kloep- per, Il, M.D. (“Kloepper”), John Magdisick, M.D. (“Magdsick”), Thomas Maggs, M.D. (“Maggs”), Thomas Polta, M.D. (“Polta”), John Roseberg, M.D. (“Roseberg”), Jai Suh, M.D. (“Suh”), Mark Sperry, M.D. (“Sperry”), Jeffrey Yue, M.D. (Yue”) and John Rydberg, M.D. (“Rydberg”) are medical doctors specializing in anesthesia (“MDAs”) who maintained privileges at Unity and/or Mercy Hospitals at all times relevant to this Complaint and are members of MAPA (hereinafter collectively the “Unity/Mercy MDAs”). App. 231 16. The defendants named in paragraphs 7 through 15 shall be collectively referred to as the “Unity/Mercy defendants”. 17. Defendant St. Cloud Hospital (“St. Cloud”) is a hospital operating at 1406 6th Avenue N., St. Cloud, Minne- sota 56303. 18. Defendant Anesthesia Associates of St. Cloud Ltd. (“AASC”) is a professional partnership located at 816 West St. Germain St. Suite 403, St. Cloud, Minnesota 56301, whose anesthesiologists members maintain privi- leges at St. Cloud Hospital. 19. Defendants Gary A. Boeke, M.D. (“Boeke”), Philip F. Boyle, M.D. (“Boyle”), L. Michael Espeland, M.D. (“Espeland”), Alan D. Espelien, M.D. (“Espelien”), Paul J. Halverson, M.D. (“Halverson”), Craig Johnson, M.D. (“Johnson”), Lanse C. Lang, M.D. (“Lang”) and A. Wade McMillan, M.D. (“McMillan”), William H. Rice, M.D. (“Rice”), Allan Reitz, M.D. (“Reitz”) and Annette E. Zwick, M.D. (“Zwick”) are medical doctors specializing in anesthe- sia (“MDAs”) who maintained privileges at St. Cloud Hospital at all times relevant to this Complaint and are members and/or employees of AASC. 20. Defendants » paragraphs 17 through 19 will hereinafter collectively be referred to as the “St. Cloud defendants.” 21. Defendant Anesthesiology, P.A. (“APA”) is a professional association which, among other things, provides anesthesia services to North Memorial Hospital. 22. Defendant Abbott Northwestern Hospital is a hospital operating at East 28th Street, Minneapolis, App. 232 Minnesota. Abbott Northwestern is owned by defendant Allina. 23. Defendant Northwest Anesthesia, P.A. (“NWA”) is a Minnesota professional corporation which, among other things, provides anesthesia services to Abbott Northwestern. 24. Defendants Bryce Beverlin, M.D. (“Beverlin”), Richard Blomberg, M.D. (“Blomberg”), Jean Boening, M.D. (“Boening”), Mitchell Burke, M.D. (“Burke”), Rajarao Dwarakanath, M.D. (“Dwarakanath”), Richard Engwall, M.D. (“Engwall”), James Gayes, M.D. (“Gayes”), Luis Giron, M.D. (“Giron”), Nancy Groves, M.D. (“Groves”), Jonathan Gudman, M.D. (“Gudman”), Richard Johnson, M.D. (“Johnson”), John Lillehei, M.D. (“Lillehei”), Robert McKlveen, M.D. (“McKlveen”), Judith Meisner, M.D. (“Meisner”), Michael Menzel, M.D. (“Menzel”), James Musich, M.D. (“Musich”), Mark Nissen, M.D. (“Nissen”), Xavier Pereira, M.D. (“Pereira”), David Plut, M.D. (“Plut”), Jeffrey Shaw, M.D. (“Shaw”), Richard Skoog, M.D. (“Skoog”), William Stauffer, M.D. (“Stauffer”), Ofelio Tiu, M_D. (“Tiu”), Robert Tronnier, M.D. (“Tronnier”) and John Wintermute, M.D. (“Wintermute”) are medical doctors specializing in anesthesia (“MDAs”) who maintained privileges at Abbott Northwestern Hospital at all times relevant to this Complaint and are members and/or employees of NWA (hereinafter collectively the “Abbott Northwestern MDAs”). 25. Defendants in paragraphs 22 through 24 will hereinafter collectively be referred to as the “Abbott Northwestern” defendants. App. 233 26. Plaintiffs sue fictitious defendants Does I through XX, inclusive, because their names and/or capaci- ties and/or facts showing them liable are not presently known. 27. All of the Hospital defendants named above shall hereinafter alternatively be referred to as “the defendant hospitals.” 28. All of the anesthesiologist defendants and their professional associations named above shall hereinafter be collectively alternatively referred to as “the defendant anesthesiologists.” THE ROLES OF ANESTHESIOLOGISTS AND OF CRNAs IN THE PROVISION OF ANESTHESIA 29. Anesthesia is a medical specialty which deals with the management of procedures for rendering a patient insensible to pain during surgical, obstetrical and certain other medical procedures; the support of life functions under the stress of anesthetic and surgical manipulation; the clinical management of the patient unconscious for whatever cause; the management of problems in cardiac and respiratory resuscitation; the application of specific methods of inhalation therapy; and the clinical management of various fluid electrolyte and metabolic disturbances. 30. Certified registered nurse anesthetists are a group of health providers who are virtually unknown to the public at large, yet they administer more the 65% of the 26 million anesthetics given to patients each year in the United States. In 85% of rural hospitals, CRNAs are the sole anesthesia providers providing all aspects of anesthesia, including obstetrical, surgical and trauma stabilization services. While anesthesiologists, who are physicians, are often involved in the delivery of anesthesia services as part of an anesthesia care team, they are frequently absent from the operating room during the administration of anesthesia and for long periods of time during the surgery. It is the CRNA who, in most cases, performs the majority of the anesthesia services and who stays in the operating room with the patient and the surgeon throughout the operation. 31. The principal activity of most anesthesia previd- ers who are in the clinical practice of medicine is in con- nection with the performance of surgery in a hospital. Ordinarily the patient about to undergo surgery does not choose his anesthesia provider. That decision is usually made by the surgeon or assigned to the patient’s case by the operating room supervisor or head of the anesthesia department. It is not uncommon for a patient to have his first contact with the anesthesia provider just prior to being brought into the operating room for surgery. 32. Historically, since World War II, while anesthe- sia services have been provided in a variety of settings, including CRNAs only, anesthesiologists only, and CRNAs under the direction of physicians or anesthesiologists, the majority of anesthesia care in the United States has been provided by way of anesthesia care teams. The anesthesia care teams are made up of a number of CRNAs who provide the majority of the anesthesia and related services under the direction of and/or supervision of an anesthesi- ologist. Such teams are the most cost effective method of providing anesthesia care since they utilize lower cost providers, CRNAs, and they minimize the involvement of App. 235 substantially higher cost providers, anesthesiologist MDAs. MEDICARE REGULATIONS RELEVANT TO DEFENDANTS’ FALSE CLAIMS 33. Since, on average, hospitals in the Twin Cities area, including defendant hospitals, that provide general surgical services provide approximately 30% of those services to Medicare related patients, Medicare strongly affects the way those hospitals operate. In addition, many private insurers look to Medicare regulations to guide their insurance reimbursement policies. 34. Reimbursement for the provision of anesthesia services has been treated uniquely by Medicare. 35. Prior to 1982, anesthesiologists billed under Part B of Medicare as independent health care practitioners, whereas CRNAs’ costs were billed by the hospital under Part A as part of the general costs of providing Medicare services. 36. Under pre-1982 Medicare regulations, anesthesi- ologists were permitted to supervise as many CRNAs as they wished and to bill for as many cases simultaneously as they wished. There was no limit of the number of concurrent cases for which an anesthesiologists could receive reimbursement for medically directing CRNAs, even though the direct participation of the MDA may have been minimal. 37. In 1982, in part as a result of what was believed to be widespread fraudulent billing practices by MDAs, the Tax Equity and Fiscal Responsibility Act of 1982 App. 236 (“TEFRA”) was enacted, establishing conditions for anes- thesiologists to fulfill in order to be paid for medically directing CRNAs. Those conditions were: (a) Performs a pre-anesthesia examination and evaluation; | (b) Prescribes the anesthesia plan; (c) Personally participates in the most demand- ing procedures of the anesthesia plan, in- cluding induction and emergence, (d) Ensures that any procedures in the anes- thesia plan that he or she does not perform are performed by a qualified anesthetist; (e) Monitors the course of anesthesia administration at frequent intervals; (f) Remains physically present and available for immediate diagnosis and treatment of emergencies; and (g) Provides indicated post anesthesia care. 38. Subsequently Congress passed the Omnibus Budget Reconciliation Act of 1986 (“OBRA ‘86”), which established the ability for CRNAs to bill directly under Medicare Part B effective January 1, 1989. In practice, since most CRNAs were employed by hospitals, they assigned their independent billing rights to the hospitals, which billed Medicare for the CRNAs’ services. 39. Another crucial change which was introduced in OBRA ’86 was a change in the methodology for payment of anesthesiologists and nurse anesthetists. 42 C.F.R. 414.450 provided that, in most cases where an anesthesi- ologists was engaged in a single procedure and was not — = _— ano ciel cantante "yp, neta cas alls ee ee — : App. 237 involved in any other concurrent cases, the anesthesiolo- gists would be paid 100% of the cost of the procedure regardless of whether any nurse anesthetists was in- volved. Thus, in such cases, often referred to as “one-on- ones,” the anesthesiologists may be paid for 100% of the work even if the CRNA performs the work. In contrast, if an anesthesiologist is involved in two, three or four con- current cases, he will receive only a portion of the allo- cated cost of the procedure and the other portion will be paid to the CRNA. This change was crucial because it permitted an MDA, by fraudulently billing concurrent cases as “one-on-ones,” to increase the amount he was paid by Medicare substantially beyond that which he should have been paid. DEFENDANTS’ FALSE CLAIMS 40. This Qui Tam complaint is based upon the fact that for years the defendant anesthesiologists, with the knowledge and active assistance of the defendant hospi- tals, have been billing Medicare for services which they either did not perform or which did not qualify for reim- bursement under the applicable Medicare laws and regu- lations. In particular, while the Medicare regulations pertaining to reimbursement for anesthesia services have been amended from time to time, since January 1988 an anesthesiologists was only entitled to be personally reim- bursed for services provided by him in three specific situations, two of which are relevant here: (1) where he personally performs the anesthesia procedure; and (2) where he medically directs another qualified anesthesia provider (such as a CRNA) in connection with two, three or four procedures. 41. In order to be reimbursed for personally perform- ing the anesthesia procedure, the anesthesiologist is required to either (1) “personally perform the entire anesthesia procedure (42 C.F.R. 414.46 (2) (i); or (2) be “continuously involved in a single case involving a certified registered nurse anesthetist (“CRNA”), an anesthesiologist assistant (“AA”) or a student nurse anesthetist” (42 C.F.R. 414.46 (2) (ii)). Cases where one MDA works with one CRNA are often referred to as “one-on-one” cases. 42. In order to be continuously involved in a single case, the anesthesiologist must be present in the operating room for the entire time. In particular, 42 C.F.R. 4:14.46 provides that billing for anesthesia services is based upon base units which assign a value to each anesthesia proce- dure and “time units” which “involve the continuous actual presence of the physician ... and starts when he or she begins to prepare the patient for anesthesia ... and ends when the anesthesiologist ... is no longer in personal attendance.” In contrast, where the physician is “medically directing” a CRNA which may only occur in connection with two, three or four concurrent procedures, time units may be billed based on the “presence” of the “medically directed” CRNA. Because the MDA must be present with the CRNA at all times to be reimbursed for personally performing a procedure, Section 4:14.46 also provides that where the anesthesiologist personally performs the proce- dure, he receives the full fee and no payment will be made to the CRNA unless the CRNA’s presence is “medically necessary”. See 42 C.F.R. 4:14.46 (c) (3). The requirement that an anesthesiologist must be in the operating room for the entire time if he seeks to be reimbursed for personally performing a procedure and may not be engaged for any amount of time in other activities was confirmed on App. 239 numerous occasions in letter interpretations issued by the Department of Health & Human Services. On December 9, 1987 the Director of the Office of Reimbursement Policy, Bureau of Eligibility, Reimbursement Coverage responsi- ble for officially interpreting Medicare regulations regard- ing reimbursement wrote to St. Cloud defendants’ Medicare carrier, Blue Shield and stated the following: “It is our opinion that 42 CFR 405.552 (a) (2) re- fers to two patterns of anesthesia administration payable on a reasonable charge basis. Either the anesthesiologist performs the procedure directly without the assistance of an anesthetist or the anesthesiologist medically directs anesthesia during concurrent procedures. Medical direction would occur in the context of concurrent proce- dures not a single procedure. In the situation where the anesthesiologist is involved in a single anesthesia procedure involving a CRNA, we would deem the procedure to be performed by the anesthesiologist ... we would deem an anesthe- sia procedure as personally performed by an an- esthesiologist as long as the anesthesiologist was continuously present with the CRNA for those services that the anesthesiologist does not per- sonally perform and the anesthesiologist is not involved in any other anesthesia procedure.” Subsequently in its administrative bulletins issued in March 1988 to defendant anesthesiologists Blue Cross/Blue Shield stated: “We deem the anesthesia procedure as personally performed by the anesthesiologist as long as the anesthesiologist was continually present with the ee App. 240 CRNA for those services that the anesthesiologist does not personally perform and the anesthesiolo- gist is not involved in any other anesthesia proce- dure.” Again, on August 10, 1990, Blue Cross/Blue Shield issued another bulletin stating in pertinent part “Personally furnished anesthesia services are provided personally by the anesthesiologist to an individual patient. You cannot bill for personally furnished anesthesia if you are also simultane- ously involved with the delivery of anesthesia services for any other patient.” Furthermore, in a memorandum to defendant, John Murphy, on December 14, 1992, is written: In order to qualify to receive reimbursement for personal delivery (1/1) of a service, the anesthesi- ologist must be continuously present with the CRNA (if a CRNA is also involved) for those ser- vices, the anesthesiologist does not personally per- form, and the anesthesiologist cannot be involved in any other anesthesia procedure.” (April 1988 Medicare Bulletin, Administrative Bulletin #177.) Finally, as recently as January 7, 1994, Bernard Patash- nick, Director of the Division of Medical Services Payment Bureau of Policy Development wrote to the American Society of Anesthesiologists stated the following: “The anesthesiologist who is billing for personal performance of the case must personally perform the case. In theory, there is no one else to hand the case to. In the medically directed case we do not require the anesthesiologist to personally perform all anesthesia activities. In fact, many of these activities are performed by the CRNA.” App. 241 Consequently, an MDA cannot bill one-to-one if the forego- ing criteria are not met, even if the MDA participated in some portion of the process. As recently as April 1996, HCFA confirmed in a letter to the private carrier who administers defendant MDAs’ claims that HCFA requires the anesthesiologist to remain in the operating room in billing for personally performed cases. In that same letter, HCFA confirmed that medical direction of single proce- dures does not exist. Defendants have been provided with copies of this letter. 43. The defendant hospitals were on notice as early as December 19, 1987, that the defendant anesthesiolo- gists were billing fraudulently. Moreover, between 1990 and 1992, CRNAs at those hospitals reported the fraud. For example, at Unity Mercy, copies of charts showing that MDAs were fraudulent [sic] billing and were actually in other operating rooms at the time were provided to in- house counsel for Allina and to defendant Murphy, yet the hospital did not report this fraud to any governmental agency. At St. Cloud Hospital, Jerry Boldon, a CRNA, wrote a memo disclosing the fraud to administrators. However, instead of taking steps to stop the MDA’s fraud, the hospitals fired Relator’s members who had brought the fraud to their attention and knowingly facilitated the continuation of the fraud. 44. Relator’s members have personal knowledge that defendant anesthesiologists have routinely billed Medicare for personal performance of anesthesia procedures in which they were not continuously involved or present, as required by Medicare. Those bills were for services for which the defendant anesthesiologists knew they were not entitled to reimbursement from Medicare, and were false or fraudulent claims within the meaning of 31 U.S.C. App. 242 3729. Defendant MAN used the services of defendants Tank and HBAS who knowingly billed on their behalf for services which they knew or should have known were not performed by them. 45. The second basis for Medicare reimbursement of a physician anesthesiologist is for medically directing a CRNA or other anesthesia provider in two, three or four concurrent anesthesia procedures. In order to be entitled to such reimbursement, the anesthesiologist need not be present in the operating room at all times. As previously noted, however, he must comply with the following condi- tions: (1) For each patient, the physician must — (i) Perform a preanesthetic examination and evaluation; (ii) | Prescribe the anesthesia plan; (iii) Personally participate in the most demand- ing procedures in the anesthesia plan, including induction and emergence, (iv) Ensure that any procedures in the anesthe- sia plan that he or she does not perform are performed by a qualified individual as de- fined in program operating instructions; (v) Monitor the course of anesthesia adminis- tration at frequent intervals; (vi) Remain physically present and available for immediate diagnosis and treat of emer- gencies; and (vii) Provide indicated post-anesthesia care. 42 C.F.R. 405.552. App. 243 46. Relator’s members have personal knowledge that during the past six (6) years defendant anesthesiologists have billed for medically directed services and personally performed services without complying with the conditions set forth in 42 C.F.R. § 405.552. Those bills were for services for which the defendant anesthesiologists knew they were not entitled to reimbursement from Medicare and were false or fraudulent claims under Section 3729. 47. In particular, defendant Northwest Anesthesia engaged in similar false billing practices and false claims in connection with the provision of anesthesia services at Abbott Northwestern Hospital. For example, anesthesiolo- gists who work for NWA and provide services at Abbott Northwestern have on numerous occasions billed for personally performing operations when they were only present in the operating room for a fraction of the actual anesthesia time. Relator has supplied to the Government affidavits from members of MANA who have been at Abbott Northwestern which state that the anesthesiolo- gists who provided anesthesia services at operations in which those CRNAs were involved were “virtually never present for the entire time.” Similar statements confirm that anesthesiologists often left the operating room after starting cases late in the day and never returned. Relator has also obtained and supplied to the Government numer- ous rejection documents reflecting operations or proce- dures which were billed by the defendant Abbott Northwestern anesthesiologists as “personally performed” which Relator is informed and believe were false and fraudulent. In order to facilitate this fraud, Allina and Abbott Northwestern have announced plans to terminate all of their CRNA employees. Relator and the Government are informed and believe that this termination was not ee a ee Ce et OD Hoenn © Vs ae cen detent stent, Labtn Maite sha, Sw mF App. 244 because the CRNAs were not economically viable but rather in order to force the CRNAs to be employed by the defendant MDAs and thereby to simultaneously distance the hospital from the defendant anesthesiologists’ fraudu- lent billing practices. 48. Defendant anesthesiologists also contravened the requirements of §405.552 as follows. Medicare does not provide reimbursement to anesthesiologists in a group practice for medical supervision of a procedure where one member of the group substitutes for another during the course of the procedure, except as follows: If anesthesiologists are in a group practice, one physician member may provide pre-anesthesia examination and evaluation while another ful- fills the other criteria. Similarly, one physician member of the group may provide post- anesthesia care while another member of the group furnishes the other component parts of the anesthesia service. However, the medical record must indicate that the services were furnished by physicians and identify the physicians who ren- dered them. CCH Medicare and Medicaid Guide, 3455.40, Medicaid Carriers Manual, §15018 (C). Relator’s members have personal knowledge that defendant anesthesiologists in group practices billed Medicare for medical direction of procedures during the course of which one group member had taken over the procedure from another under circum- stances which precluded reimbursement from Medicare. Those bills were for services as to which the defendant anesthesiologists knew they were not entitled to reimburse- ment from Medicare, and were false or fraudulent claims within the meaning of 31 U.S.C. §3729. The defendant ————— App. 245 anesthesiologists have knowingly concealed such false claims by failing to sign in and out of the operating room during such procedures, thereby depriving Medicare of a standard medical record which, if fully and accurately prepared, would reveal defendants’ fraud. Defendant hospitals have assisted them in this fraud by refusing to require them to sign in and out of the operating room, and in the case of defendants Unity and Mercy, by refusing to require defendant anesthesiologists to carry “pagers” or | “beepers.” 49. As CRNA’s who daily worked alongside the defendant anesthesiologists at the defendant hospitals, Relator members have personal knowledge of defendants’ | false claims by virtue of communications with defendants themselves, participation in the anesthesia procedures which were later fraudulently billed by the defendant anesthesiologists, and familiarity with hospital records disclosing defendants’ fraud. DEFENDANTS’ FRAUDULENT SCHEME 50. As previously alleged, since the 1983 TEFRA regulations went into effect in November 1983, Medicare has only recognized two ways for anesthesiologists to be paid for anesthesia services: (1) personally performing a procedure and (2) medically directing 2, 3, or 4 procedures. HCFA has never recognized medical direction of one procedure. As early as 1987, in a letter to one of the Minnesota carriers to which defendants had access, Charles Booth, Director of Policy and Reimbursement for HCFA, stated in no uncertain terms that there is no such thing as medical direction of a single procedure. Moreover, in order to bill for personal performance of a procedure, _————$— SS App. 246 the anesthesiologist must either (1) personally perform every aspect of the anesthesia procedure on the patient and be present for the entire time, or (2) be continuously present with the patient and a CRNA and continuously involved with the case. These requirements make simple common sense since when the anesthesiologist is involved in a procedure with one CRNA, he is paid as if he per- formed every aspect of the procedure by himself without assistance and in most cases the CRNA receives nothing. 51. The requirement of continuous presence in the operating room has been repeated by HCFA since 1987. It is contained in Bulletins issued by Blue Cross/Blue Shield, the carrier for the St. Cloud defendants; it is contained in letters to the American Society of Anesthesiologists which were republished in Newsletters available to defendants; and it was enforced by government enforcement authori- ties in Minnesota who investigated another hospital owned by the Allina defendant for similar types of fraud. 52. As for medical direction of two, three and four procedures, the rules are very strict if an anesthesiologist seeks to be reimbursed. Of particular interest in this case, the anesthesiologist must be Present in the operating room with the patient and personally participate in all demand- ing aspects of the anesthesia plan, even though he may be absent from the operating room at other times to monitor concurrent cases. In particular, the anesthesiologist must be present at induction when the anesthetic is first intro- duced into the patient at the beginning of the case and at emergence when the surgery has been completed and the patient is being revived from the anesthetic. Moreover, in any event, the anesthesiologist must be present at the end of the case because it is at that time that the anesthesiolo- gist must make a determination as to whether or not the App. 247 patient is in sufficiently stable condition to be turned over to a non-anesthesia provider. 53. A second requirement which is required to be satisfied to be reimbursed for medical direction of concur- rent procedures is that the anesthesiologist must remain present and immediately available for diagnosis and emergencies. It goes without saying that the anesthesiolo- gist cannot be involved in any other procedures other than the concurrent procedures for which he is billing and must bill the concurrencies correctly. For example, it is im- proper for bill Medicare for medically directing two proce- dures if, in fact, the anesthesiologist is involved in four concurrent procedures. 54. Failure to satisfy any of the above requirements _ disqualifies the anesthesiologist from reimbursement for medical direction and submission of such a bill knowingly | or with blind or reckless disregard for its truth constitutes a false claim under the False Claims Act. The defendant anesthesiologists enumerated in the caption to this Com- plaint have routinely submitted bills to Medicare when they did not satisfy the above requirements. 55. The defendant hospitals, including Abbott Northwestern, St. Cloud, Unity and Mercy have actively assisted the defendant anesthesiologists in submitting those fraudulent bills, abetted their behavior, attempted to conceal the fraud and chill reporting of the fraud by relator members and, in addition, plaintiffs believe have submitted false claims directly themselves which could have resulted or did result in overpayments by Medicare. 56. The general fraudulent scheme carried out by the defendant anesthesiologists practicing at the defen- dant hospitals was to provide loose “supervision” of the App. 248 CRNAs who were employed by defendant hospitals in a manner which failed to satisfy either the requirements for “medical direction” or for “personal performance”, yet to bill Medicare as if they had in many cases “personally performed” the procedure and in other cases, “medically directed” the procedure. The direct consequences of this was that CRNAg’ bills submitted on behalf of the CRNAs who actually performed the procedures were not paid at all or were dramatically reduced from the payments to which they were entitled. ik 57. MANA has further corroborating evidence of defendants’ false claims in the form of contemporaneous records that were kept by MANA members. In particular, MANA members Drew Mathews and Charles Hauwiller kept a record and recorded on the patient’s anesthesia record over a several year period when defendants left the room and failed to appear for emergence. These records have already been Provided to the defendants and are incorporated herein by reference. Kristi Vogt, another MANA member employed at North Memorial Hospital, recorded the defendants’ presence or absence at emergence on the anesthesia record. These records are in the posses- sion of defendant Anesthesiology, P.A. and North Memo- rial Hospital and are incorporated herein by reference. With particularity, the types of fraud engaged in by the anesthesiologists at each of the defendant hospitals was the following. FALSE CLAIMS ASSOCIATED WITH FAILURE TO PARTICIPATE IN THE MOST DEMANDING PROCEDURES OF THE ANESTHESIA PLAN | ees RE ANESTHESIA PLAN 58. The defendant MDAs practicing at unity, Mercy and North Memorial Hospitals failed to Participate in App. 249 either emergence or the most demanding part of the anesthesia plan in virtually every anesthesia procedure performed there in violation of 42 C.F.R. 405.552. Instead, defendants’ general practice at those hospitals was to appear for induction at the time that the anesthesia was being provided to the patient, to leave approximately 10 minutes later and to seldom, if ever, return at all. Instead, the CRNA who was the only anesthesia provider left in the operating room, would perform all of the procedures necessary to maintain the patient in the appropriate state of unconsciousness, to bring the patient out of the anes- thesia, to extubate the patient when appropriate, and to make the decision whether or not the patient was stable enough to be transferred to a non-anesthesia provider such as the post-anesthesia care unit. For those cases billed as MAC (monitored anesthesia care), it was common practice for MDAs at Mercy, Unity and North Memorial to never enter the operating room at all, or only long enough to sign the anesthesia record. While there was some very small percentage of cases in which Unity, Mercy and North Memorial defendants were present at emergence and at extubation a minimum of 95% of the time they were not present as required by Medicare in any Medicare case. 59. The Abbott Northwestern and St. Cloud defen- dants were present more often at emergence. However, approximately 5% of the time they failed to satisfy this requirement and, nevertheless, improperly billed Medicare for the procedure. Some representative examples of this practice at each of the aforementioned defendant hospitals are the following (Relators can identify the particular patients involved in the vast majority of procedures detailed in this Third Amended Complaint. However, a App. 250 these names have not been included to protect those patient’s confidentiality): Date of Procedure Associated With False Defendant Claim MDA Summary of Procedure 1. Location Defendant Unity and Mercy 12/29/93 Albay Billed for extensive repair of a vagina. The procedure lasted 1 hour and 30 minutes. Con- temporaneous records of Drew Mathews demonstrate that defendant Albay was only present for approximately 20 minutes at the beginning of the case and did not return for emergence. 1/12/94 Heil Billed for medical direction of an operation. Drew Mathews’ contemporaneous record shows that Heil was present for only 20 minutes out of a 1 hour 40 minutes operation and was not present at emergence. 2/2/94 Sperry Billed for medical direction of a case that lasted 1 hour and 10 minutes in connection with surgery to repair a superficial wound. Drew Mathews’ con- temporaneous record shows that Defendant Sperry was only present for 20 minutes and was not present for emergence. 3/2/94 3/16/94 3/21/94 App. 251 Magdsick Billed for an operation in OR-3 at Unity Hospital which began Albay Jones at 7:25 and ended at 9:20. In fact, during this procedure he was attending a meeting with the Critical Care Committee which commenced at 8:00 a.m. and was not available for the emergence of the patient. Billed for an operation last- ing 1 hour and 10 minutes. Drew Mathews’ contempor- aneous record shows that Defendant Albay was present only for approximately 15 minutes at the beginning of the case and was not present at emergence. Billed for Medically directing three operations when, in fact, he was involved in four concurrent operations. Fur- ther, Dr. Jones billed for an operation in OR-7 for which he was only present for 20 minutes out of a 3 hours and 35 minutes hysterectomy op- eration. Drew Mathews’ con- temporaneous record shows that he was not present at emergence. App. 252 2. Location North Memorial 9/14/95 Everly Billed for personally perform- ing a case when he was not there at emergence. 11/15/93 Lader Billed for personally perform- ing a case when he was not there at emergence. In addition, as previously stated, the North Memorial defendants were absent at emergence approximately 95% of the time in all cases, including Medicare cases. With specificity, plaintiffs allege that in every case in which Kristi Vogt was a CRNA, to the extent she did not note on the medical records that defendant MDAs were present at emergence, they were absent. The dates, times, locations and other relevant information concerning these false claims are within the possession of defendant Anesthesiol- ogy, P.A. and North Memorial Hospital. Plaintiff has requested this information but has not yet received it. 3. Location defendant Abbott Northwestern enon cerendant Abbott Northwestern Hospital 12/19/95 Meisner Failed to participate in emergence in a case per- formed in the main operating room in the basement of Abbott Northwestern Hospi- tal. Her failure to do so was based upon her involvement in medically directing a case in the minimally invasive unit five floors above. 6/1/95 ; Engwall Was responsible for a case at Abbott Northwestern Hospi- tal. Charles Hauwiller was App. 253 the CRNA on the case. Eng- wall left for lunch and no anesthesiologist relieved him or came into the room after he left. No anesthesiologist was present at the end of the case during emergence. Def- endant Engwall was paged several times during the case but failed to appear at the end of the case. 10/5/95 Engwall Was responsible for a case at Abbott Northwestern Hospi- tal. Charles Hauwiller was the CRNA on the case. Defendant Engwall was at lunch throughout the case and never entered the operat- ing room from the beginning until the end of the case. 3/1/95 Engwall Was responsible for an | anesthesia case in the base- ment while at the same time taking responsibility for a | concurrent case in the mini- mally invasive center on the fifth floor. Despite being paged twice, defendant Eng- wall did not return for emer- gence or extubation. Defen- dants McKlveen, Skoog, Nis- sen and Musich were also paged, however, no MDA ap- peared for emergence of the patient. App. 254 Drew Mathews Records In addition, Drew Mathews recorded on the anesthe- sia records in scores of instances when MDAs at Unity were not present at emergence. The dates and times of these procedures are on records currently solely in defen- dants’ possession. 4. Location defendant St. Cloud Hospital ———etdant St. Vioud Hospital 8/26/94 McMillan Started a case at 10:40 a.m. and turned the case over to defendant Rice at 11:56 a.m. The first cased ended at 13:15. Rice started another case at 13:12 and neither McMillan nor Rice were pre- sent for the emergence of the patient at the end of the case yet McMillan billed under the AA modifier for person- ally performing the case. 5/31/90 Gacusana Was performing an operation at St. Cloud Hospital in OR- l. He billed for personally performing this procedure even though he was also involved in and responsible for a procedure in OR-4 which commenced 1 minute before the procedure in OR 1 and ended 40 minutes after the procedure in OR-1. This bill was fraudulent both on the basis of Gacusana’s fail- ure to be present and partici- pate in the most demanding procedures of the anesthesia plan and also on the basis App. 255 that he did not remain in the room with the patient. Medi- care rejected the CRNA’s bill for the operation in OR-1 on the basis that Defendant Gacusana billed it as “per- sonally performed.” 3/18/94 Johnson Billed Medicare for person- ally performing a case where he had become ill and leftthe room shortly after induction and never returned. In fact, Defendant Johnson was at- tached to an IV in the doc- tors’ lounge while this pro- cedure was occurring. Based on the anesthesia _ record, which was altered by defen- dant Zwick, no anesthesiolo- gist was responsible for the case between 15:15 and 16:33. 2/4/92 Espelien _ Billed for a procedure in St. Cloud Hospital under the AA modifier which began at 10:51 and ended at 13:58. This whole time defendant Espelien billed for an anesthesia pro- cedure which commenced at 12:25 in another operating room and ended at 13:25. The two procedures were concur- rent. Moreover, because he was not present in the room the entire time and was, in fact, involved in other procedures, Defendant Espelien did not qualify to bill the procedure as personally performed. a a i - App. 256 FALSE CLAIMS ASSOCIATED WITH FAILURE TO FULFILL REQUIREMENTS OF PERSONAL PERFORMANCE 60. In addition, the defendant MDAs practicing at St. Cloud, Unity, Mercy, North Memorial and Abbott Northwestern Hospitals were never present in the operat- ing room with the patient and the CRNAs in 1:1 cases for the entire anesthesia time as required by Medicare for any Medicare procedure between January 1988 and June 14, 1996. While their reasons for these absences from the operating room varied including, among others: (1) provid- ing servcies on a time billed basis to other patients; (2) providing services on a fixed fee basis to other patients; (3) sleeping; (4) reading or attending to personal business on the phone; (5) attending meetings or performing duties on other floors; (6) being attached to an IV and receiving fluids in the doctors’ lounge; (7) watching Star Trek; (8) watching Vikings football games; (9) leaving the hospital; or (10) engaging in other activities. Their failure to be present with the CRNA and patient for the entire anesthe- sia service time in these procedures disqualified them from billing for personally performing anesthesia proce- dures to Medicare. In May 1994 MAPA defendants even discussed adopting a policy whereby they would start cases at one hospital and leave to do cases at the other hospital. 61. In violation of the False Claims Act, the afore- mentioned defendants nevertheless filed at least 40,000 bills to Medicare under the “AA” modifier claiming that they personally performed procedures between January 1988 and the date of this Third Amended Complaint. The specific dates and time of these procedures is set forth in computer printouts in MANA’s possession, as well as in App. 257 records maintained by the defendants and by MetraHealth Ins. Co. A summary of many of the bills submitted by each of the defendant anesthesiologists is annexed hereto as Exhibit “A” and incorporated herein by reference. Since the printouts of the individual procedures and billing information in question cover over 250,000 separate bills and instances, they are not annexed to this Third Amended Complaint. However, they are incorporated herein by reference and are available in plaintiffs’ counsel’s office for review by defendants should they desire to do so. Addi- tional billing information is in the possession of defen- dants’ Medicare carrier. Representative examples of what plaintiffs believe to be fraudulent claims by these defen- dants based upon their failure to be present with the patient in the operating room for the entire anesthesia time are as follows: Date of Procedure Associated With False Defendant Claim MDA Summary of Procedure Location Defendant Mercy Hospital 6/9/92 Janossy Defendant Janossy billed Medicare for personally per- forming a heart case from 8:30 to 23:55. He billed for a second Medicare case, which started at 7:35 and ended at 8:50, as though there were two concur- rent cases. During the span of the first case he billed nine other cases on non-Medicare patients: (1) 9:04 to 9:20; (2) 9:10 to 10:55; 11/2/89 8/21/90 App. 258 Baggenstoss: Suh (3) 9:33 to 11:15; (4) 11:15 to 11:45; (5) 12:45 to 13:35; (6) 12:30 to 17:35; (7) 17:35 to 18:35; (8) 7:48 to 8:45; and (9) 8:45 to 9:00. At 8:45, he was involved in four concurrent cases. There- fore both the first and the second Medicare cases were fraudulently billed. He billed for personally performing an operation in OR-4 which began at 11:20 and ended at 12:20. However, at the same time, he was also performing a proce- dure in OR-7 which began at 10:57 and ended at 11:55. Under the rules, these were concurrent procedures and it was fraudulent to bill either one of them as personally performed. He billed for personally per- forming an operation in OR-2 between 18:50 and 21:20 when the records indicate he was also performing an anesthesia procedure in OR-5 between 20:45 and 23:40. These were concurrent pro- cedures and it was fraudu- lent to bill them as per- sonally performed. EN ee App. 259 7/2/90 Sperry He billed for performing an operation in OR-2 which last- ed 1 hour and 45 minutes and began at 7:25 and ended at 8:50. However, at the same time, in OR-4, he was involved in an anesthesia procedure which began at 8:05 and ended at 8:20. These procedures are clearly concurrent procedures and billing one or both of them as personally performed was fraudulent. 9/20/89 Baggenstoss He billed for an operation in OR-3 as_ personally _per- formed. The operation lasted over 7 hours beginning at 19:15 and ending at 2:30. At the same time, he was performing anesthesia pro- cedures in OR-2 beginning at 18:05 and ending at 19:35 and OR-2 beginning at 20:25 and ending at 21:50. Both of these operations overlap the personally per- formed operation and, there- fore, they should have been billed as concurrent medi- cally directed operations. Billing one or more of them as personally performed was fraudulent. eet App. 260 11/15/89 Baggenstoss He billed for personally performing an operation which lasted 7.5 hours between 10:30 and 18:15. At the same time, he billed | for performing an anesthesia procedure and operating in OR-2 which began at 16:55 and ended at 18:10. These two operations clearly overlapped under the Medi- care regulations and billing one or more of chem as personally performed is clear fraud. 10/11/89 Jernigan He billed for personally performing an operation in OR-9. The procedure lasted two hours. It began at 12:30 and ended at 14:25. At the same time, he was billing for an anesthesia pro- cedure in OR-2 which began at 11:50 and ended at 14:30. These two operations clearly overlapped and billing one or more of them as personally performed was clearly fraud- ulent. 3/7/94 Magdsick He billed for personally performing an operation in OR-10. The operation lasted 11 hours and 25 minutes and began at 6:35 and ended at 18:00. App. 261 During that same time period, Defendant Magdsick billed for an anesthesia pro- cedure in OR-6 which began at 11:15 and ended at 12:40 and an anesthesia procedure in OR-8 which began at 11:48 and ended at 12:35. The first bill is clearly fraudulent since all of these operations were concurrent. The other two bills may also be fraudulent, however, they have not been provided to us. 3/10/94 Suh Defendant Suh was perform- ing a catscan and an X-ray between 12:45 and 15:30 and billed for same. At the same time he billed for performing anesthesia pro- cedures in another part of the hospital in OR-3, the first procedure beginning at 12:50 and ending at 13:02 and the second procedure beginning at 13:20 and ending at 15:00. Both these procedures were ongoing while Defendant Suh was apparently in another part of the hospital perform- | ing a catscan. Clearly he was : not present and available to attend to any emergencies that might arise regardless of how he may have billed those procedures. App. 262 Location Defendant Unity Hospital 2/7/92 Castillejos 10/7/92 Hong 1/24/92 Heil 3/28/92 Magdsick 11/25/92 Albay 2/15/93 Albay 7/19/93 Polta Billed for personally perform- ing a case from 11:00 to 12:05 while at the same time doing another case from 10:20 to 11:20. Billed for personally perform- ing a case from 12:25 to 16:00 while at the same time bill- ing for a procedure from 12:15 to 13:05 and from 14:25 to 15:25. Billed for personally perform- ing a case from 15:20 to 17:25 while at the same time bill- ing for a procedure from 13:30 to 15:50. Billed for personally perform- ing a case from 8:15 to 16:20 while at the same time bill- ing for a procedure from 12:20 to 13:35. Billed for personally perform- ing a case from 10:25 to 14:45 while at the same time bill- ing for a procedure from 13:30 to 15:15. Billed for personally perform- ing a case from 7:38_to 8:30 while at the same time bill- ing for a procedure from 7:30 to 7:45 and from 7:50 to 8:05. Billed for personally perform- ing a case from 9:20 to 19:20 App. 263 while at the same time bill- ing for a procedure from 7:30 to 11:15 and another case from 11:55 to 12:55. Location Defendant St. Cloud Hospital 5/31/90 Gacusana Gacusana billed for person- ally performing in this op- ration in OR-1. It began at 12:35 and ended at 13:03. At the same time, Defendant Gacusana was billing for an operation in OR-4 which began at 12:34 and ended at 13:43. The CRNA’s bill for the prior operation was rejected by Medicare. Accordingly, Def- endant Gacusana’s bill was clearly fraudulent. 2/4/92 Espelien He billed for personally per- orming an operation which began at 10:51 and ended at 13:58. Because of this the bill for the CRNA who actually performed the _ operation, Mary Stotko, was rejected by Medicare. In fact, Defendant Espelien was also billing for an anes- thesia procedure in another operating room which com- menced at 12:25 and ended at ~ 13:28. - Therefore, his bill for the first operation was fraudulent. The Seams memos = App. 264 CRNA in question had to take this matter all the way -to a Judge before she was able to obtain a reversal and be paid the modest amount she was owed for actually performing the case. 8/8/91 Gacusana He billed for an operation in OR-5 which began at 20:40 and ended at 2:12. He billed for personally performing this operation and as a result the CRNA’s bill was rejected by Medicare. During the same time Defen- dant Gacusana was also bill- ing for an anesthesia pro- cedure that began at 21:40 and ended at 23:00 and an operation that began at 23:11 and ended at 00:17. Thus the bill for personal performance was fraudulent and as a result the bill for the CRNA who performed the work was re- ected by Medicare. 3/29/90 Johnson Billed for personally perform- ing a case in OR-8 which be- gan at 7:20 and ended at 10:35. At the same time he was also billing for an anesthesia pro- cedure in OR-10 which began at 7:43 and ended at 10:04. App. 265 These operations clearly over- lapped and Defendant John- son’s bill was clearly fraud- ulent. As a result the bill from the CRNA who per- formed the case was rejected by Medicare. 2/6/90 Johnson Billed for personally perform- ing an operation in OR-1 which commenced at 12:05 and ended at 14:55. At the same time he was billing for an anesthesia pro- cedure in OR-4 which com- menced at 13:45 and ended at 15:50. There is a discrep- ancy in the times on the chart and the times on the Anesthesia Daily Log. In any event, these opera- tions clearly overlapped. Def- endant Johnson fraudulently billed the first operation as personally performed and as a result the bill from the CRNA who actually performed the work was rejected by Medi- care. 3/5/90 Rice He billed for personally performing a case in OR-1 which began at 14:25 and ended at 15:50. This, by the way, is the same patient that Defendant Johnson had pre- viously fraudulently billed. ' t ; App. 266 At the same time Defendant Rice was billing for anesthe- sia in OR-2 which began at 12:20 and ended at 15:10. Again there is a discrepancy between the actual times no the anesthesia record and the times on the computerized Daily Log. In any event the two opera- tions clearly overlap. Defen- dant Rice fraudulently billed the first operation as person- ally performed and as a result, the bill for the CRNA who actually performed the opera- tion was rejected by Medicare. 1/12/90 Gacusana He billed for an operation in OR-5 which commenced at- 19:15 and ended at 22:00. At the same time he was billing for an anesthesia pro- cedure in OR-3 which com- menced at 20:40 and ended at 22:15. Gacusana fraudulently billed for personally performing the first operation although he was concurrently medically directing another operation.., As a result, the bill from the CRNA who actually per- formed the anesthesia pro- cedure was rejected by Medi- care. App. 267 11/30/89 Halvorson He was performing an anes- thesia procedure in OR-6 which commenced at 7:45 and ended at 11:15 and billed for personally performing same. At the same time he was billing for an anesthesia pro- cedure in OR-7 which com- menced at 7:30 and ended at 9:50. As a result of Defendant Halvorson’s fraudulent bill for the first operation, the bill for the CRNA who actually per- formed the procedure was denied by Medicare. 10/31/89 Johnson Johnson billed for an anesthe- sia procedure in OR-1 which began at 7:30 and ended at 9:20. He billed for personally performing this procedure although at the same time he was billing for a procedure in OR-7 which began at 6:55 and ended at 8:25. This case was followed by another case in OR-7 which started 8:45 and ended at 10:55. Both cases in OR-7 were concurrent with the proce- dure in OR-1. Accordingly, Defendant Johnson’s bill for the first operation was fraud- ulent. As a result of his : fraudulent bill, the bill from App. 268 the CRNA who actually per- formed the procedure was rejected by Medicare. 11/8/89 Boyle Boyle billed for personally performing an operation that began at 9:55 and ended at 11:05. At the same time he was also billing for a concurrent op- eration which began at 7:50 and ended at 10:45. The bill for the first operation was fraudulent and as a result the bill from the CRNA who actually performed the pro- cedure was rejected by Medi- care. 8/25/89 Evenson Evenson billed for an opera- tion in OR-7 which began at 14:25 and ended at 16:55. At the same time he was billing for an operation in OR-CR which began at 16:45 and ended at 18:10. Defen- dant Evenson’s bill for the first operation was fraudu- lent. As a result the bill from the CRNA who actually per- formed the procedure was rejected by Medicare. 7/24/89 Espeland He billed for an anesthesia procedure in OR-8 which began at 15:20 and ended at 20:50. App. 269 At the same time he was billing for an anesthesia pro- cedure in OR-3 which began at 18:25 and ended at 18:55. The bill for the first procedure was fraudulent and as a result the bill from the CRNA who actu- ally performed the procedure was denied by Medicare. 11/4/93 Zwick Zwick started at case at 11:04 in OR-11, and turned this case over to Defendant Boyle at 12:36. She was also doing another case from 9:25 - 11:20, yet she billed the case in OR- 11 as personally performed. 7/2/94 Rice Billed Medicare for personally performing, yet was not con- tinuously involved and the CRNA noted “Doctor Rice notified” when cardiac changes occurred. 5/13/94 Boyle Boyle billed Medicare for per- sonally performing a case in OR-5 from 18:16 to 19:20. Prior to starting this case, he relieved Defendant Johnson on a different case at 17:41 and finished that case at 18:23. 5/30/94 McMillan McMillan billed Medicare for personally performing a case in OR-5 from 22:55 to 0:49. From 23:15 until 00:01, he was involved in a C-section in delivery room 1 on a different floor. App. 270 11/11/93 Boeke Boeke billed Medicare for personally performing a case from 20:45 to 21:45 in OR-5. He did a different case in OR- 18 from 21:45 to 23:06. 8/26/94 McMillan McMillan billed Medicare for and Rice personally performing a case in OR-6 that started at 10:40. The case was turned over to Defendant Rice at 11:56. The CRNA time shows the case ended at 13:15, but apparently Defendant Rice was not present for emergence, since there is no MDA stop time charted. This seems likely since Defendant Rice started another case in OR-2 at 13:12 and finished it at 15:54. At any rate there were two con- current cases going on at the Same time and he was not allowed to bill for personally performing the case in OR-6. 12/28/94 Lang Lang billed for personally per- forming a case in OR-1 from 7:28 to 10:30. He was doing another case in OR-4 from 8:13 to 10:09. The first case was therefore fraudulent. The record was altered to show that Defendant Reitz did the first case. Location Defendant Abbott IN orthwestern Hospital 12/16/89 Beverlin Drew Mathews record shows and ‘this case lasted 2 hours and 1/18/95 6/16/93 12/3/92 11/28/95 App. 271 Dwarkanath Boening Burke Gayes and Burke Gayes 20 minutes. Beverlin started the case but was later relieved by Dwarkanath. In total, the two of them were present in the room for 25 minutes. The case was billed as AA. Drew Mathews record shows this case lasted one hour. Boe- ning was present for 20 min- utes. Drew Mathews record shows this case lasted one hour, but Burke was only present for 30 minutes, yet billed for per- sonally performing the case. Drew Mathews record shows this case lasted 3 hours and 10 minutes. Gayes started the case and was later relieved by Burke. Together the two of them were present for 25 minutes yet billed for per- sonally performing the case. Drew Mathews records shows this case lasted 3 hours and 5 minutes, but Defendant Gayes never entered the operating suite but rather peered through the window of the adjacent ante-room occasion- ally during the case. He billed for personally performing the case. Clearly this was a non- medically directed CRNA case, and as such should have been billed using the QZ modifier. 1/12/93 8/13/93 9/1/93 App. 272 Gudman Lillehei McKlveen and Gudman Instead the hospital rou- tinely billed using the QX modifier (medically directed CRNA services) confirming the MDA fraudulent bill, even though this meant Medicare paid nothing or less than they should have for the CRNA services. Drew Mathews record shows this case lasted 2 hours and 35 minutes, but Defendant Gudman was present for only 35 minutes, yet he billed for personally performing the case. Drew Mathews record shows this case lasted one hour and 18 minutes but Defendant Lillehei was present for only 25 minutes, yet he billed for personally performing the case. McKlveen started this case and was later relieved by Defendant Gudman. Drew Mathews record shows this case listed 8 hours, but Def- endant McKlveen and Defen- dant Gudman were present for only one hour and 45 minutes, yet they billed for personally performing the case. iittala a App. 273 12/3/92 Menzel and Menzel started this case and Meisner was later relieved by Defen- dant Meisner. Drew Mathews record shows this case lasted 3 hours and 30 minutes, but Defendant Menzel and Def- endant Meisner were present for only 25 minutes, yet they billed for personally perform- ing the case. 3/26/94 Musich and Miusich started this case and Lillehei was later relieved by Defen- dant Lillehei. Drew Mathews record shows this case lasted 2 hours and 10 minutes, but Defendant Musich and Def- endant Lillehei were present for only 30 minutes, yet they billed for personally perform- ing the case. 7/21/93 Plut Drew Mathews record shows this case lasted 2 hours and 45 minutes but Defendant Plut was present for only 1 hour and 30 minutes, yet he billed for personally perform- ing the case. 3/23/90 R. Johnson Drew Mathews record shows this case lasted 2 hours, but Defendant Richard Johnson was present for only 50 min- utes, yet he billed for person- ally performing the case. 10/3/94 Shaw, Shaw started this case and Boening, was later relieved by Defen- Beverlin dant Boening, who was in App. 274 turn relieved by Defendant Beverlin. Drew Mathews re- cord shows this case lasted 2 hours and 15 minutes. Defen- dant Shaw was present for 16 minutes. Defendant Boening was present for 2 minutes. Defendant Beverlin was pre- sent for 7 minutes. They billed for personally performing the case. 5/23/95 Stauffer Drew Mathews record shows this case lasted 2 hours and 40 minutes, but Defendant Stauffer was present for only 40 minutes, yet he billed for personally performing the case. 12/25/93 Wintermute Drew Mathews record shows this case lasted 2 hours and 30 minutes, but Defendant Wintermute was present for only 1 hour and 5 minutes, yet he billed for personally per- forming the case. Location North Memorial Hospital 3/31/91 Lader Billed for personally perform- ing procedure when he was absent from the room for a substantial period of time. 5/7/91 Walker Billed for personally perform- ing case when he was not in the room for the entire time. 4/25/91 Atmore Billed for personally perform- ing a case when he was not in App. 275 the room for a substantial period of the time. 5/30/91 Lader Billed for personally perform- ing a case when he was ab- sent from the room for a sub- stantial period of time. 4/26/91 Everly Billed for personally perform- ing a case when he was ab- sent from the room for a substantial period of the time. 5/9/91 Peterman Billed for personally perform- ing a case when he was ab- sent from the room for a substantial period of the time. 9/27/94 Walker Billed for personally perform- ing a case when he was ab- sent from the room for a substantial period of the time. 10/3/94 Peterman Billed for personally perform- ing a case when he was ab- sent from the room for a sub- stantial period of the time. In addition, plaintiffs have in their possession print- outs detailing the defendant, date, procedure, amount paid and other relevant information demonstrating that defen- dant Anesthesia P.A. during the relevant period submitted approximately 7,000 bills under the AA modifier. Plaintiffs intend to prove that in all of these cases, the Anesthesia, P.A. MDAs were absent from the room disqualifying them for reimbursement under Medicare. See Exhibit “A” hereto. App. 276 62. Defendent anesthesiologists were not merely momentarily absent from the operating room during the anesthesia procedures described above. Rather, during the relevant time period January 1988 to at least June 1996, it was routine for each of the defendant anesthesiologists to leave the operating room for substantial portions of the time that the procedure was taking place even though they intended to bill and did bill Medicare for personally performing the procedure occurring in the operating room. While the anesthesiologist was absent, it was the CRNA members of plaintiff MANA who actually provided the anestheria services to the patient. FALSE CLAIMS BASED UPON _ WRONG CONCURRENCY 63. The plaintiffs have also billed a substantial number of procedures with the wrong concurrency thereby inducing overpayments from Medicare. Some representa- tive examples are the following: Location Defendant Northwest Anesthesia 6/21/93 _ Beverlin Billed for personally performing a procedure from 9:40 to 14:30 while concurrently involved in a proce- dure in another case from 7:15 to 10:05. 7/21/93 — Beverlin Billed for personally performing a procedure from 8:30 to 13:05 while concurrently involved in a proce- dure in another case from 7:15 to 8:55. Z 9/8/93 11/9/93 11/25/93 12/23/93 7/25/94 10/3/94 4/12/95 Beverlin Beverlin Beverlin Beverlin Beverlin Beverlin Beverlin App. 277 Billed for personally performing a procedure from 9:15 to 11:05 while concurrently involved in a proce- dure in another case from 7:30 to 11:00 Billed for personally performing a procedure from 14:30 to 19:40 while concurrently involved in a procedure in another case from 12:25 to 14:40. Billed for personally performing a procedure from 10:20 to 18:02 while concurrently involved in a procedure in another case from 9:20 to 11:10. Billed for personally performing a procedure from 8:30 to 11:40 while concurrently involved in a proce- dure in another case from 7:30 to 8:30. Billed for personally performing a procedure from 9:55 to 16:40 while concurrently involved in a proce- dure in another case from 8:20 to 10:40. Billed for personally performing a procedure from 12:40 to 15:40 while concurrently involved in a procedure in another case from 11:30 to 13:30. Billed for personally performing a procedure from 9:25 to 13:00 while concurrently- involved in a proce- dure in another case from 7:40 to 14:40. \ 5/18/95 _—Beverlin 6/1/95 Beverlin 12/15/95 Beverlin 8/8/93 Blomberg 11/11/93 Blomberg 2/10/94 Blomberg 11/18/94 Blomberg App. 278 Billed for personally performing a procedure from 13:00 to 17:00 while concurrently involved in a procedure in another case from 11:25 to 14:15. Billed for personally performing a procedure from 9:10 to 12:10 while concurrently involved in a proce- dure in another case from 8:00 to 10:30. Billed for personally performing a procedure from 15:20 to 18:10 while concurrently involved in a procedure in another case from 14:20 to 16:05. Billed for personally performing a procedure from 10:35 to 13:50 while concurrently involved in a procedure in another case from 10:20 to 12:30. Billed for personally performing a procedure from 14:40 to 19:00 while concurrently involved in a procedure in another case from 13:00 to 14:40. Billed for personally performing a procedure from 16:05 to 20:30 while concurrently involved in a procedure in another case from 13:10 to 16:20. Billed for personally performing a procedure from 15:07 to 19:50 1/24/95 2/8/95 4/20/95 6/9/95 10/3/95 6/24/93 Blomberg Blomberg Blomberg Blomberg Blomberg Boening App. 279 while concurrently involved in a procedure in another case from 14:00 to 15:35. Billed for personally performing a procedure from 11:03 to 14:10 while concurrently involved in a procedure in another case from 7:35 to 11:30. Billed for personally performing a procedure from 8:40 to 9:10 while concurrently involved in a proce- dure in another case from 7:30 to 9:05. Billed for personally performing a procedure from 10:30 to 14:00 while concurrently involved in a procedure in another case from 8:05 to 10:30. Billed for personally performing a procedure from 11:20 to 16:10 while concurrently involved in a procedure in another case from 7:40 to 13:15. Billed for personally performing a procedure from 8:50 to 15:25 while concurrently involved in a proce- dure in another case from 7:35 to 8:50. Billed for personally performing a procedure from 10:25 to 13:30 while concurrently involved in a procedure in another case from 10:00 to 11:45. 8/18/93 11/17/93 4/6/94 7/23/94 8/21/94 10/11/94 1/21/96 Boening Boening Boening Boening Boening Boening Boening App. 280 Billed for personally performing a procedure from 9:35 to 14:35 while concurrently involved in a proce- dure in another case from 7:30 to 9:50. Billed for personally performing a procedure from 8:10 to 11:20 while concurrently involved in a proce- dure in another case from 7:25 to 10:15. Billed for personally performing a procedure from 8:30 to 9:50 while concurrently involved in a proce- dure in another case from 7:15 to 9:00. Billed for personally performing a procedure from 12:10 to 13:05 while concurrently involved in a proce- dure in another case from 7:50 to 12:10. Billed for personally performing a procedure from 17:45 to 19:45 while concurrently involved in a proce- dure in another case from 16:45 to 17:35. Billed for personally performing a procedure from 11:55 to 13:15 while concurrently involved in a proce- dure in another case from 10:50 to 12:22. Billed for personally performing a procedure from 21:40 to 0:55 while 6/16/93 6/17/93 1/3/94 10/17/94 10/26/94 10/31/94 Burke Burke Burke Burke Burke Burke App. 281 concurrently involved in a proce- dure in another case from 20:50 to 22:45. Billed for personally performing a procedure from 11:35 to 18:50 while concurrently involved in a proce- dure in another case from 10:35 to 12:10. Billed for personally performing a procedure from 10:50 to 12:55 while concurrently involved in a proce- dure in another case from 10:35 to 12:55. Billed for personally performing a procedure from 9:05 to 12:10 while concurrently involved in a proce- dure in another case from 7:15 to 9:10. Billed for personally performing a procedure from 9:35 to 12:55 while concurrently involved in a proce- dure in another case from 7:30 to 9:35. Billed for performing a procedure from 9:10 to 10:35 while concur- rently involved in a procedure in another case from 7:35 to 11:30. Billed for performing a procedure from 9:55 to 11:35 while concur- rently involved in a procedure in another case from 7:30 to 9:55. 11/17/94 Burke 2/20/95 Burke 9/27/95 Burke 7/30/93 Blomberg 10/28/94 Blomberg 7/4/93 Boening 7/21/93 ~+Boening 8/9/94 Dwaraka- nath App. 282 Billed for performing a procedure from 20:50 to 22:30 while concur- rently involved in a procedure in another case from 18:45 to 20:50. Billed for performing a procedure from 9:12 to 13:20 while concur- rently involved in a procedure in another case from 7:45 to 9:45. Billed for performing a procedure from 9:50 to 13:12 while concur- rently involved in a procedure in another case form 7:40 to 10:45. Billed for performing two concur- rent procedures when he was in- volved in three concurrent pro- cedures. Billed for personally performing a case from 15:00 to 16:15 when he was involved in a concurrent case from 12:15 to 15:00. Billed for personally performing a procedure when she was involved in two concurrent procedures. Billed for performing two concur- rent procedures when she was in- volved in three concurrent procedures. Billed for performing a procedure from 9:00 to 13:30 while concur- rently involved in a procedure in another case from 7:40 to 9:55. 9/8/94 6/16/93 7/19/93 7/23/93 8/25/93 9/2/93 9/7/93 9/2/93 Dwaraka- nath Engwall Gayes Gayes Giron Groves Gudman Johnson App. 283 Billed for performing a procedure from 10:20 to 12:40 while concur- rently involved in a procedure in another case from 7:45 to 14:20. Billed for performing a procedure from 13:15 to 15:00 while concur- rently involved in a procedure in another case from 13:10 to 13:40. Billed for performing a procedure from 11:45 to 16:45 while concur- rently involved in a procedure in another case from 7:10 to 12:00. Billed for performing a procedure from 14:20 to 16:25 while concur- rently involved in a procedure in another case from 13:25 to 14:45. Billed for performing a procedure from 16:20 to 19:00 while concur- rently involved in a procedure in another case from 16:10 to 17:30. Billed for performing a procedure from 11:45 to 14:35 while concur- rently involved in a procedure in another case from 10:40 to 11:50. Billed for performing a procedure from 9:15 to 11:10 while concur- rently involved in a procedure in another case from 9:00 to 11:05. Billed for performing a procedure from 13:55 to 17:45 while concur- rently involved in a procedure in another case from 7:00 to 15:30. 10/22/93 Johnson 12/8/93 _— Lilllehei 8/5/93 McKlveen 9/15/93. Meisner 4/29/94 Meisner 6/4/93 Menzel 10/19/93 Musich 10/22/93 Musich App. 284 Billed for performing a procedure from 14:15 and 19:45 while con- currently involved in a procedure in another case from 13:35 to 15:10. Billed for performing a procedure from 17:55 to 20:40 while concur- rently involved in a procedure in another case from 16:25 to 18:20. Billed for performing a procedure from 17:45 to 19:45 while concur- rently involved in a procedure in another case from 17:00 to 18:15. Billed for performing a procedure from 12:15 to 14:00 while concur- rently involved in a procedure in another case from 11:20 to 12:32. Billed for performing a procedure from 8:15 to 10:15 while concur- rently involved in a procedure in another case from 8:00 to 9:15. Billed for performing a procedure from 9:50 to 13:30 while concur- rently involved in a procedure in another case from 7:25 to 10:50. Billed for performing a procedure from 11:45 to 14:45 while concur- rently involved in a procedure in another case from 11:00 to 11:55. Billed for performing a procedure from 23:00 to 3:30 while concur- rently involved in a procedure in another case from 22:30 to 23:55. 8/26/93 12/22/93 7/12/93 8/12/93 9/9/93 10/20/93 8/23/93 9/2/93 Nissen Nissen Pereira Pereira Pereira Pereira Plut Plut App. 285 Billed for performing a procedure from 12:30 to 16:40 while concur- rently involved in a procedure in another case from 12:15 to 14:40. Billed for performing a procedure from 15:10 to 17:00 while concur- rently involved in a procedure in another case from 14:50 to 16:10. Billed for performing a procedure from 12:00 to 17:30 while concur- rently involved in a procedure in another case from 7:35 to 12:25. Billed for performing a procedure from 9:45 to 14:45 while concur- rently involved in a procedure in another case from 8:40 to 12:05. Billed for performing a procedure from 11:35 to 14:05 while concur- rently involved in a procedure in another case from 10:10 to 16:30. Billed for performing a procedure from 20:10 to 21:55 while concur- rently involved in a procedure in another case from 18:05 to 20:40. Billed for performing a procedure from 12:25 to 14:55 while concur- rently involved in a procedure in another case from 12:25 TO 13:25. Billed for performing a procedure from 9:55 to 13:35 while concur- rently involved in a procedure in another case from 9:15 to 11:20. 6/25/93 11/4/93 10/4/93 10/28/93 7/21/93 11/5/93 3/2/94 8/6/93 Shaw Shaw Skoog Skoog Stauffer Tiu Tiu Tronnier App. 286 Billed for performing a procedure from 8:00 to 8:35 while concur- rently involved in a procedure in another case from 7:25 to 9:45. Billed for performing a procedure from 10:40 to 13:50 while concur- rently involved in a procedure in another case from 9:40 to 11:15. Billed for performing a procedure from 18:20 to 23:05 while concur- rently involved in a procedure in another case from 17:45 to 19:25. Billed for performing procedure from 10:00 to 16:45 while concur- rently involved in a procedure in another case from 8:45 to 12:15. Billed for performing a procedure from 11:00 to 12:15 while concur- rently involved in a procedure in another case from 9:45 to 11:05. Billed for performing a procedure from 9:45 to 14:15 while concur- rently involved in a procedure in another case from 7:20 to 10:15. Billed for performing a procedure from 10:25 to 14:20 while concur- rently involved in a procedure in another case from 9:45 to 11:00. Billed for performing a procedure from 17:00 to 21:45 while concur- rently involved in a procedure in another case from 13:15 to 19:00. App. 287 6/22/93 Wintermute Billed for performing a procedure from 11:10 to 15:00 while concur- rently involved in a procedure in another case from 7:00 to 13:20. 3/21/94 Wintermute Billed for performing a procedure from 11:30 to 14:20 while concur- rently involved in a procedure in another case from 7:15 to 11:40. Location Defendant Mercy Hospital 3/6/92 Polta Billed for performing two concur- rent procedures when he was in- volved in three concurrent pro- cedures. 3/12/92 Polta Billed for performing two concur- rent procedures when he was in- volved in three concurrent pro- cedures. 3/12/92 Polta Billed for performing two concur- rent procedures when he was in- volved in three concurrent pro- cedures. 3/25/92 ~Polta Billed for performing two concur- rent procedures when he was in- volved in three concurrent pro- cedures. 3/25/92 ~=Polta Billed for performing two concur- rent procedures when he was in- volved in three concurrent pro- cedures. 3/26/92 Polta Billed for performing two concur- rent procedures when he was in- volved in three concurrent pro- - cedures. App. 288 3/11/92 Magdsick Billed for performing two concur- rent procedures when he was in- volved in three concurrent pro- cedures. 3/18/92 Magdsick Billed for performing two concur- rent procedures when he was in- volved in three concurrent pro- cedures. 3/25/92 Magdsick Billed for performing two concur- rent procedures when he was in- volved in three concurrent pro- cedures. 3/17/92 Kloepper _ Billed for performing two concur- rent procedures when he was in- volved in three concurrent procedures. 1/14/92 Yue Started a Medicare case at 10:50 and finished it at 11:50. The case was billed as though there were two concurrent cases, but he was involved in other cases from 11:30 to 12:30 and from 10:55 to 11:30. 3/18/92 Yue Started a Medicare case at 9:05 and finished it at 10:20. The case was billed as though there were two concurrent cases but he was involved in other cases from 8:30 to 9:25, and from 8:40 to 11:30. 3/18/92 Yue Billed for performing two concur- rent procedures when he was in- volved in three concurrent pro- cedures. ae Pee AST Ne ee eee ee TE ee 3/23/92 3/23/92 3/25/92 3/31/92 1/28/92 3/6/92 3/30/92 Yue Yue Albay Janossy Roseberg Polta Cumming iit App. 289 Billed for performing two concur- rent procedures when he was in- volved in three concurrent pro- cedures. Billed for performing two concur- rent procedures when he was in- volved in three concurrent pro- cedures. Billed for performing two concur- rent procedures when she was in- volved in three concurrent pro- cedures. Billed for performing two concur- rent procedures when he was in- volved in three concurrent pro- cedures. Started a Medicare case at 12:07 and finished it at 13:10. The case _ was billed as though there were two concurrent cases, but he was involved in other cases from 11:45 to 14:15 and from 12:20 to 14:10. Started a Medicare case at 7:30 and finished it at 11:20. The case was billed as though there were cwo concurrent cases, but he was involved in other cases from 7:35 to 8:00 and from 7:30 to 8:25. Started a Medicare case at 7:25 and finished it at 11:45. The case was billed as though there were two concurrent cases, but he was involved in other cases from 9:10 - - to 10:35 and from 7:30 to 11:45. App. 290 Started a Medicare case at 11:55 and finished it at 15:00. The case was billed as though there were two concurrent cases but he was involved in other cases from 13:15 to 14:25, from 13:55 to 17:15 and from 14:50 to 17:20. Location Defendant Unity Hospital . 8/18/92 - Albay Billed for performing two concur- rent procedures when she was in- volved in three concurrent pro- cedures. Billed for performing two concur- rent procedures when he was in- volved in three concurrent pro- cedures. Billed for performing two concur- rent procedures when he was in- volved in three concurrent pro- cedures. Billed for performing two concur- rent procedures when he was in- volved in three concurrent pro- cedures. Billed for performing two concur- rent procedures when he was in- volved in three concurrent pro- -cedures. Billed for performing two concur- rent procedures when she was in- volved in three concurrent pro- cedures. App. 291 7/23/92 Castillejos Billed for performing two concur- rent procedures when she was in- volved in three concurrent pro- cedures. 6/11/92 Castillejos Billed for performing two concur- rent procedures when she was in- volved in three concurrent pro- cedures. Location Defendant St. Cloud Hospital 11/3/93 Espelien Billed QK indicating a concurrency of two for a case in OR-8 from 7:18 to 10:19. At the same time he was doing one case in OR-9 from 7:24 to 12:11 and another in OR-4 from 9:16 to 11:17. These cases should have been billed as a concurrency of three. 5/12/94 Reitz, Boyle, Halvorson Reitz started a Medicare case in OR-9 at 7:40. At 9:00 he was re- lieved by one of his partners — either Boyle or Halvorson finished the case at 10:07. Initially the chart said Boyle took over the case, but the chart was altered to read that Halvorson took over the case instead. Boyle did other cases from 7:49 to 10:05 and from 9:15 to 9:40. Halvorson did other cases from 7:26 to 9:55 and from 10:03 to 11:44. Regardless who relieved Reitz, there were three concurrent cases, yet it was billed under Reitz’s name as though there were . only two concurrent cases. App. 292 5/6/94 Reitz, Boyle —__—~Reeitz started a Medicare case in R- 4 at 7:51. At 11:26 Boyle took over the case and finished it at 12:02. Reitz was doing other cases from 7:25 to 10:30 and from 8:55 to 9:00. The case was billed under Reitz’s name as though there were two concurrent cases, but in fact there were three. FALSE CLAIMS ASSOCIATED WITH PAIN MANAGEMENT 64. In addition to the specific instances of fraud discussed above anesthesiologists practicing at St. Cloud, Unity, Mercy, North Memorial and Abbott Northwestern Hospitals have submitted false claims in connection with post-operative epidurals. Under Medicare regulations in force since at least 1992, anesthesiologists were not permitted to bill for epidurals which were performed during a general anesthesia and under no circumstances were they permitted to bill for daily management of an epidural on the date of the surgical procedure. In fact, the defendant anesthesiologists at St. Cloud Hospital, Unity and Mercy Hospitals violated this restriction and, never- theless, submitted bills to Medicare. Between 1992 and the date of this Third Amended Complaint, it has been St. Cloud anesthesiology defendants’ common practice to improperly stop the anesthesia time on the anesthesia record while the patient is still under anesthesia and the surgery has not yet been completed in order to place a post-operative epidural catheter. The purpose of stopping the anesthesia time on the record is to deceive Medicare into believing that the anesthesia procedure ended before the post-operative epidural was placed so that the doctor App. 293 may bill separately for the more expensive post-operative epidural. Between 1992 and the date of this Third Amended Complaint, defendants have on a number of occasions filed claims with Medicare which were improper and constituted false claims in connection with post-operative epidurals. In particular, by way of representative example, defendants filed the following claims on the following dates: Date of Procedure Associated With False Defendant Claim MDA Summary of Procedure Cases Billed Where The MDA Stopped The Anes- thesia Time In Order To Separately Bill For Placement Of An Epidural Location Defendant St. Cloud Hospital 11/2/93 + Rajala Rajala billed for personally per- forming a Medicare case in OR-5 from 7:40 to 14:40. The case was not finished until 15:05, but De- fendant Rajala ended her time early in order to bill separately for placing an epidural catheter for post operative pain management. Since, by her own record, she was not involved in administering the general anesthetic of this case for the last 25 minutes, and did not participate in emergence, she was not entitled to bill for this case. In addition, she did the pre-operative evaluation of a patient for a case ‘that started in OR-3 at 1330, App. 294 which would disqualify her from billing using the AA modifier. | MDA TIME ; ACTUAL ABORTED ANESTHESIA TO BILL FOR TIME EPIDURAL 5/1/93 Espelien 08:01-10:40 08:01-10:15 6/1/93 Lang 09:34-11:12 19:34-11:05 12/20/93 Zwick 07:26-10:50 17:26-10:29 : 12/29/93 Espelien 09:49-12:58 19:49-12:40 12/16/93 Boyle 09:38-12:10 09:38-11:45 12/16/93 Boeke 17:58-21:11 17:58-20:45 12/1/93 McMillan 09:20-13:20 09:30-12:58 12/1/93 Zwick 07:24-11:47 07:24-11:29 SUR TA Ges LEA ree ED Z Other Cases Involving Improper Bills For Epidural 4 Anesthesia 3/17/93 Boeke Charged for more than four days of i epidural management. i 3/18/93- Boeke Charged for more than four days of 5 epidural management. ‘ 2/17/95 Boeke Charged for more than four days of ‘ : epidural management. 2/18/95 Boeke Charged for more than four days of epidural management. 2/19/95 Boeke Charged for more than four days of epidural management. 5/3/94 5/4/94 5/29/94 7/7/93 7/8/93 7/9/93 11/22/95 1/6/95 8/23/94 4/3/95 4/4/95 4/5/95 8/5/92 8/6/92 Boyle Boyle Boyle Boyle Boyle Boyle Boyle Espeland Espeland Espeland Espeland Espeland Espelien Espelien App. 295 Charged for more than four days of epidural management. Charged for more than four days of epidural management. Charged for more than four days of epidural management. Charged for more than four days of epidural management. Charged for more than four days of epidural management. Charged for more than four days of epidural management. Charged for more than four days of epidural management. Charged for more than four days of epidural management. Charged for more than four days of epidural management. Charged for more than four days of epidural management. Charged for more than four days of epidural management. Charged for more than four days of epidural management. Charged for more than four days of epidural management. Charged for more than four days of epidural management. Nn Si AA ented) ae EL al at ee RI AE IE UPR Site AO Pee ade Cer e he eines - 8/7/92 8/8/92 8/9/92 11/23/94 12/26/92 11/22/92 11/23/92 7/11/94 12/2/95 12/3/95 12/4/95 12/14/94 6/22/94 12/6/95 Espelien Espelien Espelien Espelien Evenson Evenson Evenson Gacusana Halvorson Halvorson Halvorson Halvorson C. Johnson C. Johnson App. 296 Charged for more than four days of epidural management. Charged for more than four days of epidural management. Charged for more than four days of epidural management. Charged for more than four days of epidural management. Charged for more than four days of epidural management. Charged for more than four days of epidural management. Charged for more than four days of epidural management. Charged for more than four days of epidural management. Charged for more than four days of epidural management. Charged for more than four days of epidural management. Charged for more than four days of epidural management. Charged for more than four days of epidural management. Charged for more than four days of epidural management. Charged for more than four days of epidural management. 12/7/95 C.Johnson 12/8/95 C. Johnson 12/9/95 C. Johnson 12/10/95 C. Johnson 12/11/95 C. Johnson 12/12/95 C. Johnson 12/13/95 C. Johnson App. 297 Charged for more than four days of epidural management. Charged for more than four days of epidural management. Charged for more than four days of epidural management. Charged for more than four days of epidural management. Charged for more than four days of epidural management. Charged for more than four days of epidural management. Charged for more than four days of epidural management. In addition to the above representative examples, plaintiffs have a printout of approximately 87 pages listing similar claims by the St. Cloud defendants. Defendant Anesthesia P.A. 4/1/92 Pizzaro 4/7/93 Hoffman 4/8/93 Hoffman 9/6/92 Mazur 1/20/92 Lader Charged for more than four days of epidural management. Charged for more than four days of epidural management. Charged for more than four days of epidural management. Charged for more than four days of epidural management. Charged for 2 epidurals on the ‘ game day. Pye ee Te ve lS iden pi ion’ 7 (APE EON 2/5/93 8/4/93 8/5/93 8/6/93 8/7/93 8/8/93 8/9/93 3/11/95 3/12/95 3/13/95 3/14/95 3/15/95 9/4/93 9/5/93 8/30/93 Lader Schultz Schultz Schultz Schultz Schultz Schultz Schultz Schultz Schultz Schultz Schultz Mont- gomery Mont- gomery Wright App. 298 Charged for 2 epidurals on the same day. Charged for more than four days of epidural management. Charged for more than four days of epidural management. Charged for more than four days of epidural management. Charged for more than four days of epidural management. Charged for more than four days of epidural management. Charged for more than four days of epidural management. Charged for more than four days of epidural management. Charged for more than four days of epidural management. Charged for more than four days of epidural management. Charged for more than four days of epidural management. Charged for more than four days of epidural management. Charged for more than four days of epidural management. Charged for more than four days of epidural management. Charged for more than four days of epidural management. App. 299 Defendant MAPA 8/12/92 Baggen- Charged for more than four days of stoss epidural management. 8/14/92 Baggen- Charged for more than four days of stoss epidural management. 8/15/92 + Baggen- Charged for more than four days of stoss epidural management. DE PIT. 1 F NT CO T 65. The defendant anesthesiologists’ general practices described above were based not on the interest of the patient or quality of care, but rather on maximizing defendant anesthesiologists’ profits. For example, during the past six years the defendant anesthesiologists were invariably present for relatively simple billable proce- dures, such as placement of epidurals or arterial lines, but as set forth herein, are routinely absent for more crucial procedures such as (1) intubations (including emergency intubations), extubations in general anesthesia cases (in the case of Unity, Mercy and North Memorial anesthesi- ologists); (2) dosing and managing epidurals in labor cases; and (3) intubating and managing airways in trauma cases which are non-billable or have relatively low reimburse- ment value. 66. Furthermore, the defendants’ practice of leaving the operating room for substantial periods of time is not motivated simply by the increased income that their false billing generates from Medicare, but also by the substan- tially increased compensation they can earn by improperly concurrently performing non-Medicare procedures which pay at a substantially higher rate. Indeed, Relator’s re a ry App. 300 members have been informed by at least two separate individuals familiar with anesthesia billing practices that it would be impossible for the defendant anesthesiologists to obtain the annual compensation they make if they were, in fact, fulfilling the billing requirements of Medicare and accurately billing Medicare. At the defendant hospitals Medicare accounts for between 20%-30% of the procedures performed. Some of these procedures are lengthy and complex procedures such as open-heart procedures and craniotomies lasting up to 8 or 10 hours. If the defendant anesthesiologists actually performed those procedures as they have represented to Medicare they would be pre- cluded from billing for any other procedure during that time period. In fact, as set forth herein, the defendant anesthesiologists in almost every case are involved in others activities, in many cases billable activities, at the same time as they have represented to Medicare that they are personally performing heart procedures, craniotomy procedures and other lengthy and complex procedures. As a result, plaintiffs are informed and believe that the defendant MDA anesthesiologists have obtained compen- sation far in excess of the national average and, in some cases, in excess of $500,000 per year. It is in order to maintain this improperly high level of compensation that the defendants have gone to the lengths that they have as described in this complaint to preserve their ability to submit false claims and to punish and chill the Relator’s members who have sought to prevent or curb their fraudu- lent practices. ~ 67. In addition to knowingly and actively aiding, abetting and facilitating defendant anesthesiologists’ submissions of false claims and knowingly causing the Government to pay claims grounded in fraud as set forth App. 301 elsewhere herein and in the case of Unity and Mercy Hospitals profiting directly from that fraud, MANA is informed and believes that the defendant hospitals have themselves submitted false, misleading and inaccurate bills to Medicare which have resulted in overpayments by Medicare. In particular, in cases of medical necessity, defendant Abbott Northwestern, defendant Unity and Mercy and defendant St. Cloud have submitted bills seeking 100% reimbursement from Medicare on the basis that it was medically necessary for both a CRNA and an anesthesiologist to be involved in the case. Although the information concerning anesthesia time and services provided given to the hospital by the CRNAs was accurate, the hospitals billed the case under an improper modifier. As a result, Medicare paid both providers 100% of their qualified fee. In fact, in these cases the hospital knew that the anesthesiologists did not personally perform the case and that, in fact, there were not two providers involved in the case. Had the hospital correctly billed Medicare and advised the hospital that the doctors were not personally performing their cases, Medicare would only have been required to pay approximately 50% of the fee it actually paid. The hospitals also failed to bill for non-medical direction of a CRNA when there was either no MDA participation (cardioversions and MAC cases) or for participation which failed to meet minimal medical direc- tion or personal performance requirements. To facilitate the inaccurate billings hospital medical records depart- ments at Unity and Mercy would flag anesthesia records not signed by MDAs and required co-signing after the fact. This inaccurately led Medicare to assume participation by anesthesiologists and incorrectly identified the anesthesi- ologist billing for the procedure. Some representative examples at the defendant hospitals are the following: Date of Procedure Associated With False Defendant Claim MDA App. 302 Summary of Procedure Demonstrating MDA’s Absence Location Defendant Abbott Northwestern 5/9/93 Dwarkanath Drew Mathews record shows 6/15/93 Lillehei 3/3/93 Pereira 1/25/90 Skoog and Meisner this open heart case lasted 3 hours and 15 minutes, but Defendant Dwarkanath was present for only one hour and 50 minutes, yet he billed for personally performing the case. Drew Mathews record shows this case lasted 5 hours, but Defendant Lillehei was pre- sent for only 3 hours, yet he billed for personally perform- ing the case. Drew Mathews record shows this case lasted 5 hours and 30 minutes, but Defendant Pereira was present for only 2 hours, yet he billed for personally performing the case. Skoog started this case and was later relieved by Defen- dant Meisner. Drew Mathews record shows this case lasted 6 hours and 30 minutes, but Defendant Skoog and Defen- dant Meisner were present for only 4 hours and 5 minutes, yet they billed for App. 303 personally performing the case. 11/12/92 Tiu Drew Mathews record shows this case (repair of an aortic aneurysm) lasted 4 hours, but Defendant Tiu was pre- sent for only 1 hour and 20 minutes, yet he billed for personally performing the case. 10/1/90 Tronnier Drew Mathews record shows this open heart case lasted 4 hours and 20 minutes, but Defendant Tronnier was pre- sent for only 2 hours and 30 minutes, yet he billed for personally performing the case. 6/22/93 Wintermute Drew Mathews record shows this open heart case lasted 3 hours and 20 minutes, but Defendant Wintermute was present for only 1 hour and 45 minutes, yet he billed for personally performing the case. Location Defendant Mercy Hospital 5/19/94 —=_ Sperry Defendant Sperry billed for personally performing the anesthesia for placement of an arteriovenous shunt that started at 12:05 p.m. and ended at 1:30 p.m. Defendant Sperry was doing other cases as follows: (1) 12:50 p.m. to 2:15 pm.; (2) 9:45 a.m. to 3:08 App. 304 p.m.; (3) 1:15 p.m. to 2:30 f p.m.; and (4) 1:10 p.m. to 2:10 : p.m. At 1:30 p.m. Defendant Sperry was involved in five concurrent cases and was not entitled to bill (for either performing or medically dir- 3 ecting the case. He could have billed for medical super- vision and received a fee : appropriate for his involve- ment. In addition, this simple procedure is not among the CPT codes accepted by the local Medicaye carrier as £ “medically necessary” for two 3 providers. This case occurred 4 after CRNAs were forced to subcontract with the ane- sthesiologists if they wanted to still work at Mercy Hospi- tal. Health Billing Systems submitted both Defendant Sperry’s bill for personally performing the case and a bill for the subcontracted CRNA’s services. Location Defendant Unity Hospital 8/19/94 Eggen Billed for personally perform- ing a case from 11:45 a.m. to 1:55 p.m. while performing a case from 1:30 p.m. to 3:00 p.m. Health Billing Systems submitted a bill for Defen- dant Eggen using the AA modifier and a CRNA bill for the same case. =~ _ 3 eR We at ap eft bite polit en Mid st Seno Malai ey SOE AG thy WS ast App. 305 9/20/94 Ryberg Billed for personally perform- ing a case from 11:35 a.m. to 1:55 p.m. while performing a case from 10:50 a.m. to 12:25 p.m. Health Billing Systems submitted a bill for Defen- dant using the AA modifier and a CRNA bill for the same case. 9/27/94 Maggs Billed for personally perform- ing a case from 11:25 a.m. to 2:15 p.m. while performing another case from 1:25 p.m. to 3:00 p.m. Health Billing Systems submitted a bill for Defendant Maggs using the AA modifier and a bill for the CRNA subcontractor for the same case. Information regarding defendant St. Cloud is not in MANA’s possession. However, plaintiff is informed and believes, based upon its members’ knowledge of billing practices at that hospital, that similar bills were submit- ted by the hospital for medical necessity where MANA members know there were not two anesthesia providers present for the entire procedure. The specific dates and patients’ names will appear on those bills which are currently only in defendant St. Cloud’s possession. CONDUCT EVIDENCING FRAUDULENT INTENT 68. The defendant hospitals and anesthesiologists defendants have engaged in conduct in furtherance of the above-referenced fraud for purposes of either concealing App. 306 the fraud or perpetuating it. Examples of this conduct include: (1) On a substantial number of occasions, MAPA defendants at Unity and Mercy Hospitals changed circles on the anesthesia record which correctly reflected the concurrency of the cases they were billing to a lower number which misrepresented the true concurrency of the case. (2) It was a frequent practice for the call MDA to go through previous days records and make changes to the circles. (3) Defendant Castillejos was seen circling numbers on stacks of anesthesia records at the end of the day which had not been circled by the anesthesiologist in charge of the case. Defendant Magdsick on a number of occasions was seen by Annette Atchison to circle concur- rency the following day on cases by other MDAs. On information and belief defendant Castillejos and Magdsick had no knowledge that the circles that they were entering were accurate. This was further confirmed when defen- dant Heil stated to a Unity CRNA, Maureen Merriam, that defendant Al Tank, MAPA’s billing person, said they should be billing a lot more 1:1 and stated to Marie Parvie, one of the Mercy CRNAs, that defendant Al Tank had told her that they were “entitled to bill” about 50% of their cases 1:1. Castillejos also stated to Maureen Merriam that Al Tank was “upset” because Catillejos was not circling enough cases as 1:1. (4) The MAPA defendants made no attempt to put times on electroconvulsive therapy or pain manage- ment records thereby precluding Medicare from determin- ing whether their involvement in those procedures would App. 307 have disqualified them from billing Medicare for person- ally performing concurrent procedures. (5) Defendant Sperry stated to Maureen Mer- riam that Medicare will not penalize me “if I do a small case during a 1:1 and bill Medicare for personally perform- ing a 1:1. (6) In or about April 1991 or 1992 on a weekend in connection with four consecutive fractured hip cases for Medicare patients, defendant Rydberg circled a 1 on each record although he was not in the operating room for the majority of the procedure and was, in fact, up in OBGYN on another floor giving epidurals or engaged elsewhere in the hospital. The- specific date and times of these false claims can be determined by reviewing the billing records for the relevant period which are exclusively in defen- dants’ possession at this time. (7) Defendant Craig Johnson at St. Cloud and defendants Mark Sperry and John Magdsick at Unity and Mercy and defendant Mark Nissen at Abbott Northwest- ern all stated at different times that they did not intend to lose a single penny as a result of changing reimbursement policies and would take whatever steps were necessary to ensure that this occurred. (8) Defendant Al Tank stated on repeated occasions to CRNAs, including to Fred Benjamin, Mary Buchman, Faye Leatherman, Kaye Vaske and others that he kept multiple sets of books, one for the government, one for the hospital and one for the doctors. Al Tank also told MANA member Fred Benjamin that he had a special way of billing that nobody else could do which would maximize the anesthesiologists’ bills. Defendant Sperry told Annette Atchison, CRNA they had special ways of hiding the etiam eee aoe wy > 407 en poh Bote Br NE ind ere 2 oie . a = bs 7 b. App. 308 profits made by CRNAs, and told Mary Jo Krauel he was going to have to remember which lies he told to whom. Defendant Al Tank made no attempts to confirm whether the anesthesiologist doctors for which he was submitting bills were following Medicare regulations. MAPA defen- dants made no attempt to determine whether or not their billing persons, Al Tank and Carol Kolbinger, were appro- priately following Medicare regulations. (9) The MAPA defendants, despite the use of an expensive software program to determine concurrencies, consistently submitted incorrect bills to Medicare between 1992 and 1994 resulting in most cases in over payments to MAPA. When the law was changed in January 1994 to provide that supervising additional concurrent procedures would not reduce the anesthesiologist’s fee, these errors decreased substantially. (10) Ladonna Schweer and Terry Rozinka repeatedly asked to see Medicare Denials at Unity and Mercy to appeal those which were incorrect, but the hospitals refused to allow the CRNAs to review them. When Chuck Hauwiller and Drew Mathews began docu- menting MDA presence in the room during a case, they received a warning from the hospital and the defendants MDAs to stop. (11) Even though CRNAs at St. Cloud, Unity, Mercy and Abbot Northwestern presented records to each of those defendant hospitals showing not only that the doctors were not present at key times during procedures they had billed but, in fact, that those doctors were in other operating rooms. The hospitals refused to seek a change in the practice of the doctors in their hospitals or to directly address the doctors’ proven fraudulent billing. App. 309 (12) At all times, defendant hospitals have been or should have been aware that defendant anesthesiolo- gists were presenting false claims to Medicare. Rather than taking steps to prevent the fraud, however, Defen- dant hospitals have knowingly aided, abetted and facili- tated it. (13) In 1990, Faye Leatherman confronted one of the MDAs who was circling the wrong number for concurrencies on the anesthesia record, she was told to mind her own business. (14) Between 1990 and 1994, Bart Barry, a CRNA hospital employee, was circling the correct concur- rencies on the anesthesia records in which he was in- volved. He was told by both defendant Sperry and defendant Janossy to stop circling the numbers. (15) Ladonna Schweer told Judy Haviland and John Murphy, both Operations Vice Presidents of Unity and Mercy, and Dan Roach, corporate counsel, that the Unity and Mercy anesthesiologists were not personally performing cases and were billing for cases when they were in other operating rooms. The hospital took no steps to stop this practice. (16) Lisa Citak, a CRNA at Abbott Northwest- ern, repeatedly reported that the doctors were fraudu- lently billing to hospital personnel but received no response other than blanket denials that fraudulent billing was occurring. (17) At defendant St. Cloud, Sandra Henschke, Jerry Boldon and other CRNAs reported directly their belief that the defendant doctors were fraudulently sub- mitting bills since the CRNAs were performing the services PMLA TES APE TAGE MA ERE EI LI > ee ne ane COS ey SAT SA App. 310 and the doctors were in other operating rooms. St. Cloud Hospital took no action to address this fraud. (18) John O’Konek, a CRNA at Unity, and Bart Barry, a CRNA at Mercy, observed on a number of occa- sions defendant anesthesiologists in the hospital were covering four to five concurrent procedures. The specific times and dates of these procedures are not available at this time but can be discovered through review of the appropriate anesthesia records in possession of the defen- dants. It was a common practice for anesthesiologists to start cases and turn them over to MDAs who were already responsible for 2-3 room. Documentation on the anesthesia record or billing, did not reflect these changes. (19) In a case involving Faye Leatherman when she was a student at Abbott Northwestern, defendant Pereira left Leatherman alone in the room with an ex- tremely difficult heart surgery. Leatherman paged Pereira on multiple occasions and Pereira failed to respond. Later when the patient was taken to PACU a comment was made by the PACU nurse when she learned that Pereira had failed to respond that the patient must have been a Medicare patient. Chuck Hauwiller repeatedly paged for assistance with a patient who was hemorrhaging, but defendant Rick Johnson failed to respond. In a recent case at Abbott Northwestern, Pereira followed his general practice of failing to frequently monitor the case and failing to respond to pages. As a result of Pereira’s failure to respond to pages, his giving inappropriate telephone orders given without being present to assess the patient, and creating an environment where CRNAs are restricted, the patient died. This incident, unbeknownst to MANA or its members, was reported by a non-CRNA to the Depart- ment of Health. The Department of Health independently App. 311 investigated the incident on behalf of HCFA and concluded that Abbott Northwestern was deficient in several areas of anesthesia, including: 42 C.F.R. 482.12(a) Medical Staff (A022), 42 C.F.R. 482.21(a) Clinical Plan (A054); 42 C.F.R. 482.52(a) Organization and Staffing (A264); 42 C.F.R. 482.52(b) Delivery of Services (A279). In connection with these findings, HCFA noted (a) it was reported and veri- fied by interview that some anesthesiologists failed to appropriately respond to their pagers; (b) that delay of reviews of quality assurance matters in the anesthesia department for five months were not unusual; (c) that student registered nurse anesthetists were allowed by the hospital and the MDAs to provide anesthesia without being under the direct supervision of a CRNA or an MDA; (d) that a record review revealed at least two occasions where the only signature of an anesthesia provider on the record was a student anesthetist; (e) that an MDA inter- viewed by HCFA admitted that he routinely responded late to pages to the PACU; and (f) that documentation revealed that the MDA defendants in this case did not always assist with the transport of ASA-4 patients to the PACU. The foregoing findings corroborate the allegations of this complaint and demonstrates the hospital’s unwilling- ness to address concerns brought to its attention by the CRNAs. Further proof of the hospital’s complicity in this fraud is its attempt to cover up the investigation by intimidating CRNA witnesses and attempting to blame the whole incident on the CRNAs involved rather than investigating and appropriately sanctioning the MDA responsible for the case. (20) At Abbott Northwestern, defendant Boen- ing, twice in the space of a month, left a patient unat- tended in a surgery with no CRNA and no MDA present. "Sak bes GaGa aa ee me ee WOE ats frida Sahay cskeharidaet Ween Rae aah Neh VE App. 312 On the first occasion, defendant Boening relieved a CRNA responsible for the case and told her to go to lunch and then Boening left the room. The CRNA discovered Boening outside the operating room when she returned from lunch. In the second case, the CRNA was Curt Pascoe. Boening instructed him to go obtain medication from a locked medicine cabinet. When Pascoe returned, Boening was sitting talking on the telephone outside the operating room and there was no anesthesia provider in the room with the patient and the surgeon. (21) Defendant Albay was discovered sleeping during a case by Fred Benjamin, the CRNA involved with the case. Defendant Baggenstoss appeared to have been sleeping during a case involving Bart Barry. (22) Maureen Merriam repeatedly observed that MDAs were sleeping at night during cases for which she was the responsible CRNA and yet marking that they ' _ personally performed the case on the record. (23) In a case involving Bart Barry, on which defendant Maggs was the responsible anesthesiologist which occurred during the relevant time period to the complaint, Maggs was watching a movie and did not respond when paged by Barry. Maureen Merriam was unable to get defendant Maggs to respond to an unstable patient because he was on the phone with his wife about a charity ball. (24) Many of the anesthesiologists at Unity and Mercy Hospital owned beepers but intentionally did not carry them with them when they were at the hospital. In 1993, Bart Barry twice stat paged defendant Roseberg to App. 313 the OR and never responded. Annette Atchison paged defendant Magdsick several times at the surgeons request and he did not respond. Defendant Suh did not respond to a page from Bart Barry when his patient undergoing heart surgery was coming off bypass. A patient which defendant Castillejos was responsible for died in the preoperative holding area while she was in the Doctor’s Lounge next door. Because of this reported lack of response, Ladonna Schweer raised the issue that the Unity and Mercy MDAs do not carry beepe [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_0054%3A2. Public record. Not legal advice.