According to an article titled “Government Appealing Medicare Set-Aside Suit” on WorkCompCentral (subscription required), the government plans to appeal the dismissal of U.S. v. Stricker, one of the largest Medicare reimbursement suits ever filed. The government recently filed a motion for reconsideration based upon a theory of “continuing accrual,” that the statute of limitations re-starts each time a class Plaintiff received a settlement payment. The motion for reconsideration was denied on August 12, 2011. For a copy of PMSI’s previous legal bulletins on U.S. v. Stricker please click here.
The WorkCompCentral article states that the Department of Justice has filed a notice of appeal with the U.S. 11th Circuit Court of Appeal, notifying the court that an appeal is forthcoming. Additionally, the article states that since learning of the impending appeal, the attorney defendants have filed a cross-appeal arguing that the three-year statute of limitations applies to them and that the government has until November 22nd to file their appellate brief, which will outline its specific arguments on appeal. However, an extension of that deadline may be sought.
It will be interesting to see if the government puts forth its theory of “continuing accrual” yet again, and whether the U.S. 11th Circuit Court of Appeal will ultimately agree with the lower court’s decision that the Federal Claims Collection Act (FCCA) does apply to Medicare conditional payment matters, and that a six year statute of limitations applies if the underlying claim is a contract, and a three year statute of limitations applies if the underlying claim is a tort.
PMSI will continue to follow this matter and the arguments that are set forth in the government’s appeal. PMSI will also continue to follow and support the SMART Act, which seeks to clarify and set the government’s statute of limitations with regard to conditional payment demands at three years.