                Case: 15-10838        Date Filed: 05/03/2016       Page: 1 of 3


                                                                        [DO NOT PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                              ________________________

                                     No. 15-10838
                               ________________________

                              D.C. 5:10-cv-00583-WTH-TBS

USA, ex rel., STATE OF FLORIDA, ex rel.,

                                                                                      Plaintiffs,

CHARLES ORTOLANO,
                                                                           Plaintiff-Appellant,

                                             versus

AMIN RADIOLOGY, d.b.a. Citrus
Diagnostic Center, d.b.a. Dunnellon Open MRI,

                                                                         Defendant-Appellee.

                               ________________________

                      Appeal from the United States District Court
                          for the Middle District of Florida
                            ________________________

                                        (May 3, 2016)

Before WILLIAM PRYOR, ANDERSON and PARKER,* Circuit Judges.


__________
*Honorable Barrington D. Parker, Jr., United States Circuit Judge for the Second Circuit, sitting
by designation.
              Case: 15-10838     Date Filed: 05/03/2016   Page: 2 of 3


PER CURIAM:

      After oral argument, and careful review of the briefs and record, we

conclude that the judgment of the district court should be affirmed. The particular

arguments of plaintiff-appellant on appeal are not persuasive for the reasons fully

explored at oral argument.

      We agree with the district court that the only claim that appellant has

preserved for appeal relates to the defendant’s use of general radiographers for a

partial role in the procedure, rather than using licensed nuclear medicine

technologists for every aspect of the procedure. Appellant has expressly

disavowed any reliance on an implied certification theory; thus, any claim based on

that theory is deemed abandoned.

      We also reject appellant’s arguments based upon the factually false theory.

The claims that defendant submitted to the government agencies for payment were

simply not factually false, because there was no representation, either express or

implied, that the services had been performed exclusively by licensed nuclear

medicine technologists. Moreover, even if Florida requires every aspect of the

procedure to be handled by licensed nuclear medicine technologists (which we

assume arguendo, but expressly do not decide), such requirement is not a

prerequisite for “reasonable and necessary” status, and thus not a prerequisite for




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                Case: 15-10838        Date Filed: 05/03/2016       Page: 3 of 3


reimbursability. 1 Accordingly, the submission of defendant’s claims made no

representation with respect to licensure, and the claims were not false.

       The judgment of the district court is

       AFFIRMED.




1
        Although 42 C.F.R. §410.32(b) does make “the appropriate level of supervision by a
physician” a prerequisite for reasonable and necessary status, we agree with the district court
that, especially in light of 42 C.F.R. §410.33, §410.32 does not require licensure. Similarly,
although the Medicare Program Integrity Manual may impose as a prerequisite that the service
be provided by “qualified personnel,” especially in light of the strong indication from 42 C.F.R.
§§410.32 and 410.33 that no license is required, we decline appellant’s invitation to import
Florida’s licensing provisions into the definition of “qualified.”



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