Intermountain Healthcare is trying to take its ongoing challenge of the False Claims Act (FCA) to the Supreme Court.
The Salt Lake City-based health system has asked the court to review a decision by the 10th Circuit Court of Appeals, claiming the FCA violates the Appointments Clause of the Constitution.
Specifically, they've pointed to whistleblower provisions which allow individuals to file fraud claims against health systems in the place of government officials.
Intermountain described the FCA as a problem that unfairly plagues the industry the way it has been applied. Individuals file 600 such cases annually, the system said in its petition. "Due to the time- and cost-intensive discovery that most FCA actions require, defendants typically move to dismiss."
At issue is a six-year-old case in which Intermountain and another hospital were named as defendants regarding a cardiologist who performed procedures in both of their facilities. The cardiologist was accused of performing medically unnecessary procedures that were billed to Medicare.
If upheld, that case could have broad implications across the healthcare industry. As Bloomberg reported in July, when the 10th Circuit handed down its decision, it ruled that "an inappropriate exercise of medical judgment can be considered false" under the FCA. That put the industry on notice that medical judgment couldn't be used as an FCA defense and could allow more whistleblowers to at least reach discovery, they reported.
But as Reuters reported this week, the health system is facing an uphill battle even getting the Supreme Court to take up the case. That is, in part, because Intermountain didn't raise the Appointments Clause argument at the trial in the lower courts and likely would have seen that argument rejected under precedent.