Update: Dominic Rotella vs. TriCenturion

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09/20/2011

We got quite a bit of feedback from readers when we ran a story about Dominic Rotella, an HME provider who won an audit on appeal and who is now suing TriCenturion, the CMS contractor that conducted the audit, for $10 million in damages.

Rotella’s civil lawsuit was dismissed by the U.S District Court for the Eastern District of Pennsylvania in March, but earlier this month his attorney submitted a 31-page brief to the U.S. Court of Appeals for the Third District.

Attorney David Hollar disagrees with the court’s ruling that TriCenturion, as a government agency, has “official immunity” from Rotella’s claim. In his brief, Hollar asks:

Should official immunity from civil liability be extended to government contractors for damages arising from adjudicated unlawful conduct?; and

Should official immunity be extended to a Medicare audit contractor with a direct financial interest in the audit and recovery process?

The answer, Rotella and Hollar believe, is no.

In fact, in his brief, Hollar points out that the Supreme Court ruled in 1988 that any government-contracted auditor that stands to benefit from any audit they perform is not subject to government immunity.

“TriCenturion is a PSC and, unlike carriers and fiscal intermediaries, does indeed have a direct financial interest in the audit and recovery process employed in Medicare’s ‘pay and chase’ model,” Hollar writes. “The District Court’s opinion in this case appears to be the first ever to extend official immunity to a PSC.”

Rotella’s still waiting for the Department of Justice to file its brief. He doesn’t expect to hear back from the U.S. Court of Appeals for the Third District until early next year.

Stay tuned.

Liz Beaulieu

Comments

As anticipated we received notice today the DOJ requested its' first 30 day extension to file a response to David's Appeal brief. Being this is there first request it is expected the court will grant it. This now moves there filing date from October 2 to November 2, 2011.