In what may be a first-of-its-kind suit, a professional medical association has filed a qui tam against physicians and other medical providers for allegedly engaging in a kickback scheme designed to divert referrals from the association’s members. The complaint, filed by the Florida Society of Anesthesiologists, alleges that the defendants—a number of physicians, anesthesiology companies, and ambulatory surgical centers (“ASCs”)—violated the federal False Claims Act and the Florida False Claims Act by defrauding the Medicare and Medicaid programs.[1] Citing the Department of Health and Human Services Office of Inspector General Advisory Opinion Number 12-06, the complaint and alleges that defendant anesthesiology companies and their physician owners, many of whom were gastroenterologists, allegedly paid kickbacks in the form of shared profits to ASCs that referred business to the anesthesiology companies and that were owned by the same physicians.

The complaint focuses on three groups of arrangements, all in which defendant ASCs were alleged to have granted exclusive arrangements to the gastroenterologist-owned anesthesia companies with which they shared profits. In some instances, the complaint asserts that these purported kickback arrangements caused the ASCs to terminate previous arrangements with “legitimate,” outside anesthesia service companies.[2] Physician owners of the ASCs were also alleged to have maximized the kickbacks by increasing the amount of anesthesia rendered to patients.[3] Some ASCs purportedly increased anesthesia utilization from use in approximately 60% of procedures to nearly 100%.[4] This, the complaint asserts, “led to over-utilization of anesthesia, as well as potential harm to the patients who would not normally have received anesthesia services.”[5]

While the United States Attorney’s Office has indicated that it is declining to intervene “at this time,” it has also stated that its investigation remains ongoing. A copy of the complaint can be found here.