What is the concurring and desenting opinion? UNITED STATES of America ex rel. T
ID: 355754 • Letter: W
Question
What is the concurring and desenting opinion?
UNITED STATES of America ex rel. Ted D. KOSENSKE, M.D.
v.
CARLISLE HMA, INC.; Health Management Associates, Inc.
Ted D. Kosenske, M.D., Appellant.
No. 07-4616.
United States Court of Appeals, Third Circuit.
Argued October 31, 2008.
Opinion Filed January 21, 2009.
90*90 Gregory M. Simpson (Argued), Simpson Law Firm, LLC, Jonesboro, GA, and Andrew M. Stone, Stone Law Firm, LLC, Pittsburgh, PA, for Appellant Ted D. Kosenske.
D. Brian Simpson, Office of the U.S. Attorney, Harrisburg, PA, for Amicus Curiae United States of America.
Larry B. Selkowitz (Argued), James W. Saxon, Stevens & Lee, Harrisburg, PA, for Appellees.
Before SLOVITER, STAPLETON and TASHIMA,[*] Circuit Judges.
91*91 OPINION OF THE COURT
STAPLETON, Circuit Judge:
Appellant Ted D. Kosenske brought this qui tam action under the False Claims Act, 31 U.S.C. § 3729, et seq., against Carlisle HMA, Inc. ("HMA"), and its parent company, Health Management Associates, Inc. The complaint alleged that they submitted outpatient hospital claims to the Medicare program and other federal healthcare programs, falsely certifying that such claims were in compliance with the Stark Act, 42 U.S.C. § 1395nn ("the Act"), and the Anti-Kickback Act, 42 U.S.C. § 1320a-7b. The parties filed cross-motions for summary judgment. The District Court granted the defendants' motion and denied the plaintiff's motion. This appeal followed.
This appeal presents two principal issues. First, we must decide whether the exclusive service arrangement between Kosenske's former practice, Blue Mountain Anesthesia Associates, P.C. ("BMAA"), and defendants, in which BMAA provided pain management services at an outpatient HMA clinic, triggered the restrictions placed by the Stark and Anti-Kickback Acts on the submissions of claims for services rendered following "referrals" by a physician having a "financial relationship" with the service provider. We conclude that the Stark and Anti-Kickback Acts were implicated. Second, we must determine if the arrangement between BMAA and HMA satisfied the personal service exception to the Stark Act and the substantially identical safe harbor provision of the Anti-Kickback Act. We conclude that it did not. It follows that summary judgment was wrongly awarded to HMA. Accordingly, we will reverse and remand to the District Court for further proceedings consistent with this opinion. Because the parties agree that, in the context of this case, the requirements of the Anti-Kickback Act and its implementary regulations are indistinguishable from those of the Stark Act, we refer only to the latter in the following analysis.
Explanation / Answer
In law, a concurring opinion is in certain legal systems a written opinion by one or more judges of a court which agrees with the decision made by the majority of the court, but states different (or additional) reasons as the basis for his or her decision.
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