Gacek v. Premier Medical Management Inc.

Filing 54

Order granting in part denying in part the 31 MOTION to Dismiss First Amended Complaint. Answer due from Premier Medical Management Inc. on 7/14/2017. Signed by District Judge William H. Steele on 6/30/2017. (tgw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
UNITED STATES OF AMERICA,
ex rel. MARK R. GACEK, SR.,

)
)
)
Plaintiff,
)
)
v.
)
)
PREMIER MEDICAL MANAGEMENT,
)
INC., d/b/a PREMIER MEDICAL GROUP, )
)
Defendant.
)

CIVIL ACTION 14-0342-WS-B

ORDER
This matter comes before the Court on defendant’s Motion to Dismiss (doc. 31). The
Motion has been extensively briefed via two full rounds of briefing (see docs. 31, 37, 41, 44) and
is now ripe for disposition.
I.

The First Amended Complaint.
A.

Nature of the Case.

This is a qui tam action1 brought by relator, Mark R. Gacek, Sr., M.D., on behalf of the
United States and against named defendant, Premier Medical Management, Inc. (“Premier”),
alleging multiple violations of the False Claims Act, 31 U.S.C. §§ 3729 et seq. (the “FCA”).2

1

“A qui tam action permits a private individual, known as a relator, to bring an
action on their own and the government’s behalf. … If the government declines to intervene, the
relator may continue with the action … and if successful, may recover between 25 and 30
percent of the judgment or settlement, plus reasonable expenses, attorney fees, and costs.”
United States ex rel. Matheny v. Medco Health Solutions, Inc., 671 F.3d 1217, 1219 n.2 (11th Cir.
2012) (citations omitted).
2

As required by 31 U.S.C. § 3730(b)(2)-(5), the Government was given an
opportunity to investigate Gacek’s claims and to determine whether it wished to intervene in this
action. After a pair of investigative periods collectively spanning from August 2014 through
January 2017, the Government announced its decision to decline intervention. (Doc. 23.)
Significant portions of the court file predating that Second Notice of Election to Decline
(Continued)

According to the well-pleaded allegations of the First Amended Complaint (doc. 21), Gacek is a
former physician employee of, and former partner in, Premier, which is characterized as “one of
the largest multi-specialty eye, ear, nose, and throat groups in the southeastern United States.”
(Doc. 21, ¶¶ 11-14.) Gacek worked for Premier from 1997 until April 2013, at which time his
employment was terminated for “repeatedly complaining about healthcare fraud and unethical
medical practices” at Premier. (Id., ¶¶ 15-16.)
The bulk of the 31-page, 133-paragraph First Amended Complaint is devoted to setting
forth the details of Premier’s alleged fraudulent schemes, Gacek’s unsuccessful efforts to stop
them, and the termination of his employment. (Doc. 21, ¶¶ 17-122.) On the strength of these
factual allegations, Gacek identifies five causes of action, all alleging violations of the FCA. In
Count I, Gacek asserts that Premier knowingly presented, or caused to be presented, false or
fraudulent claims for payment or approval, in violation of 31 U.S.C. § 3729(a)(1)(A) and/or §
3729(a)(1), thereby damaging the Goverment. (Id., ¶¶ 114-15.) In Count II, Gacek alleges that
Premier knowingly made, used or caused to be made or used false records or statements material
to false or fraudulent claims, in violation of 31 U.S.C. § 3729(a)(1)(B) and/or § 3729(a)(2),
thereby damaging the Government. (Id., ¶¶ 117-20.) Count III is a claim of retaliation pursuant
to 31 U.S.C. § 3730(h), alleging that Premier terminated Gacek’s employment because of his
lawful efforts to stop Premier’s violations of the FCA. (Id., ¶¶ 122-23.) In Count IV, Gacek
brings a claim of conspiracy, alleging that Premier conspired to violate the FCA “with regard to
the performance of RAST procedures,” in violation of 31 U.S.C. § 3729(a)(1)(C) and/or §
3729(a)(3), thereby damaging the Government. (Id., ¶¶ 125-26.) Finally, Count V is a “reverse
false claims” cause of action alleging that Premier failed to reimburse the Government for
payments made by the Government for services procured in violation of the Anti-Kickback
Statute, 42 U.S.C. § 1320a-7b(b). In particular, Count V alleges that an unlawful internal
kickback scheme for patient referrals among certain Premier physicians and staff created an
obligation for Premier to reimburse the Government for payments received for services
performed pursuant to those referrals. By failing to reimburse those funds, the Complaint

Intervention (doc. 23) filed on January 13, 2017 remain sealed to protect the Government’s
interest in maintaining the confidentiality of the details of its investigation.

-2-

alleges, Premier violated the FCA, and specifically 31 U.S.C. § 3729(a)(1)(G) and/or §
3729(a)(1)(7).
The Amended Complaint describes three specific schemes on which these claims are
predicated. The factual allegations concerning each such scheme will be summarized separately.
B.

Medically Unnecessary Allergy Testing.

Gacek alleges that, beginning in 2000 and continuing through the present, he observed
Premier physicians “routinely” subjecting young patients to an allergy blood test known by the
acronym RAST. (Doc. 21, ¶ 18.) The Amended Complaint identifies certain shortcomings of
RAST as a diagnostic test in the ordinary case (i.e., high cost, long wait times, lack of sensitivity
as compared to skin test alternative) and explains why such testing is generally inappropriate for
very young children. (Id., ¶¶ 20-25.) Notwithstanding these considerations, Gacek alleges that
Premier “regularly and routinely performed RAST because RAST was more profitable than skin
testing because Premier Medical could bill and receive payment from the Government on a
higher volume.” (Id., ¶ 27.) Thus, one scheme alleged in the Amended Complaint is that
Premier routinely presented false claims and made false statements to the Government “by
billing and receiving payment for medically unnecessary RAST.” (Id.)
As evidence of this purportedly false and fraudulent practice, the Amended Complaint
attaches an October 2012 internal e-mail that purportedly demonstrates Premier’s efforts to
determine “which allergy test would yield the biggest economic gain,” without regard to medical
need or patient symptoms. (Id., ¶¶ 28-30.) Gacek alleges that RAST was found to be “more
profitable because it could be performed in higher volumes,” and that after reaching that
conclusion, Premier “used/uses RAST in the vast majority of all allergy testing.” (Id., ¶¶ 32-33.)
According to the Amended Complaint, Premier double-billed the Government for both RAST
and skin tests in connection with the October 2012 trial tests despite awareness “that both forms
of allergy testing were not medically necessary,” and that Gacek’s objections to this practice
were ignored. (Id., ¶¶ 34-35, 40.) The Amended Complaint further documents the scheme by
recounting a 2010 conversation in which Premier physicians indicated they “could also bill the
Government for RAST” along with certain surgical procedures in order to increase revenues
because Medicare/Medicaid reimbursement on surgeries was lower than that of private insurers.
(Id., ¶ 38.) Gacek alleges that Premier routinely performed RAST in surgical procedures from
2010 onward, and presented false claims and made false statements to the Government, but that

-3-

the allegedly false claims/statements and the specific information contained therein “are in the
exclusive control of Premier Medical.” (Id., ¶ 39.) As an example, Gacek provides operative
reports dated May 23, 2014 and May 30, 2014, showing instances in which Premier physicians
administered RAST in connection with surgeries on very young patients. (Id., ¶¶ 42-43 & Exhs.
1-2.) All told, Gacek estimates that from 2000 through 2013, Premier billed $30,000-$50,000
per month for medically unnecessary RAST, and identifies four specific physicians involved in
such a scheme. (Id., ¶¶ 46.)
C.

Up-Coding of Medical Procedures.

The second form of scheme set forth in the Amended Complaint involves Premier’s
alleged practice of “up-coding medical services for the purpose of fraud.” (Doc. 21, ¶ 48.)
Gacek states that Premier “routinely up-coded” facial cosmetic work and selective neck
dissections more than 80% of the time “to obtain higher reimbursements per procedure.” (Id., ¶
49.) As a specific example, the Amended Complaint documents an October 2006 incident in
which a private insurer requested immediate reimbursement of $250,000 for facial cosmetic
work (specifically, skin-tightening treatments) that Premier physicians had “up-coded and billed
as Rosacea treatments in order for Premier Medical to obtain higher reimbursement.” (Id., ¶¶
51-58.) Although the specific incident involved a private insurer, Gacek was told by one
Premier physician that other Premier physicians were concerned that “Medicare, Medicaid, and
other private insurance companies” would likewise discover the up-coding and request
repayment. (Id., ¶ 59.) At that time, Premier took no steps to “self-report[] the fraud to
Medicare, Medicaid, or other private insurance companies.” (Id., ¶ 60.)
Another type of up-coding that Gacek alleges relates to selective neck dissections, in
which cancerous lymph nodes are removed. (Id., ¶¶ 62-64.) From 2000 through April 2013, the
Amended Complaint alleges, Premier physicians fraudulently up-coded certain neck dissection
procedures as other, more invasive procedures “on a routine basis in order for Premier Medical
to obtain a higher reimbursement.” (Id., ¶¶ 63, 65.) For instance, Gacek points to a patient
named F.H., whose post-operative report in December 2004 reflected that a Premier physician
had performed an invasive form of neck dissection when in fact a less invasive procedure
(subject to lower reimbursement) had been done, and “[u]pon information and belief” Premier
billed and received payment from Medicare for the more invasive procedure. (Id., ¶¶ 68-77.)
Gacek indicates that the fraudulently billed claims or statements, and the specific information

-4-

contained therein, “are in the exclusive control of Premier Medical.” (Id., ¶ 77.) Gacek also
discusses the example of patient R.B., as to whom Premier billed Medicare for an emergency
surgery to clear an airway blockage in December 2010 when in fact there was no blockage and
no need for emergency surgery. (Id., ¶¶ 78-86.) Gacek characterizes this as fraudulent upcoding, and alleges “[u]pon information and belief” that Premier billed Medicare and received
payment from the Government; however, Gacek also states that the fraudulently billed claims or
statements, and the specific information therein, “are in the exclusive control of Premier
Medical.” (Id., ¶ 86.)
D.

Kickbacks and Retaliation.

The third type of fraudulent scheme discussed in the Amended Complaint is an alleged
“kickback scheme” pursuant to which certain Premier physicians “paid cash gifts” to front desk
personnel / appointment clerks “for scheduling more patient appointments on the doctors’
respective calendars.” (Doc. 21, ¶¶ 89-90.) This scheme is alleged to have been “going on for
several months” as of November 2010. (Id., ¶ 89.) A front desk clerk named Cassandra apprised
Gacek of the scheme, so Gacek confronted the supervising doctor. Shortly thereafter, Cassandra
and certain non-physician employees involved in the kickbacks were fired. (Id., ¶¶ 92-93.)
According to the Amended Complaint, this scheme resulted in Premier “billing Medicare for
tainted and illegal procedures,” and receiving payment “from the Government for services
performed pursuant to illegal referrals in violation of the Anti-Kickback Statute.” (Id., ¶ 94.)
When Premier learned what had happened, Premier “failed to pay back to the Government
money and/or funds it received as reimbursement payments from Medicare” relating to those
tainted and illegal procedures. (Id., ¶ 95.) Gacek alleges that fraudulent claims or statements,
and the specific information therein, are “in the exclusive control of Premier Medical.” (Id.)
The Amended Complaint alleges that Premier fired a nurse in January 2013 for
complaining about the improper up-coding of medical services. (Id., ¶ 102.) Moreover, Gacek
alleges that he had numerous meetings with Premier executives (including both the CEO and the
Doctor Manager) in 2011 and 2012 to discuss his concerns about unnecessary tests, up-coded
billings, and the kickback scheme. (Id., ¶¶ 97-101.) In January 2013, Premier requested Gacek’s
resignation. (Id., ¶ 103.) When he declined to resign, Premier terminated his employment via
open vote at a special shareholder meeting, effective April 20, 2013. (Id., ¶¶ 104-06.) The

-5-

Amended Complaint alleges that Gacek’s discharge “was a direct result of speaking out about
Premier Medical fraudulent billing practices,” as described above. (Id., ¶ 107.)
II.

Applicable Legal Standards.
Premier now moves for dismissal of the Amended Complaint pursuant to Rule 12(b)(6),

Fed.R.Civ.P., for failure to state a claim upon which relief can be granted. Premier argues that
the Amended Complaint is procedurally improper and should be dismissed for noncompliance
with Rule 15(a), Fed.R.Civ.P. It asserts that the retaliation claim set forth at Count III is timebarred. And it contests the sufficiency of Counts I, II, III, IV and V to state actionable claims
under the False Claims Act and governing pleading standards.
Ordinarily, to withstand Rule 12(b)(6) scrutiny and satisfy Rule 8(a), a plaintiff need only
plead “enough facts to state a claim to relief that is plausible on its face,” so as to “nudge[] [its]
claims across the line from conceivable to plausible.” Bell Atlantic Co. v. Twombly, 550 U.S.
544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct.
1937, 173 L.Ed.2d 868 (2009) (citation omitted). “This necessarily requires that a plaintiff
include factual allegations for each essential element of his or her claim.” GeorgiaCarry.Org,
Inc. v. Georgia, 687 F.3d 1244, 1254 (11th Cir. 2012). Thus, minimum pleading standards
“require[] more than labels and conclusions, and a formulaic recitation of the elements of a cause
of action will not do.” Twombly, 550 U.S. at 555. As the Eleventh Circuit has explained,
Twombly / Iqbal principles require that a complaint’s allegations be “enough to raise a right to
relief above the speculative level.” Speaker v. U.S. Dep’t of Health and Human Services Centers
for Disease Control and Prevention, 623 F.3d 1371, 1380 (11th Cir. 2010) (citations omitted).
“To survive a Rule 12(b)(6) motion to dismiss, the complaint does not need detailed factual
allegations … but must give the defendant fair notice of what the plaintiff’s claim is and the
grounds upon which it rests.” Randall v. Scott, 610 F.3d 701, 705 (11th Cir. 2010) (citations and
internal quotation marks omitted).
Notwithstanding this general pleading standard, the parties correctly recognize that the
heightened standard of Rule 9(b) also applies to Gacek’s fraud-based FCA claims. See, e.g.,
United States ex rel. Matheny v. Medco Health Solutions, Inc., 671 F.3d 1217, 1222 (11th Cir.
2012) (complaint alleging violations of the FCA “must comply with Rule 9(b)’s heightened

-6-

pleading standard”); United States ex rel. Clausen v. Laboratory Corp. of America, Inc., 290
F.3d 1301, 1308-09 (11th Cir. 2002) (“we now make clear that Rule 9(b) does apply to actions
under the False Claims Act”). “A False Claims Act complaint satisfies Rule 9(b) if it sets forth
facts as to time, place, and substance of defendants’ allegedly fraudulent acts, when they
occurred, and who engaged in them.” Hopper v. Solvay Pharmaceuticals, Inc., 588 F.3d 1318,
1324 (11th Cir. 2009) (citations and internal quotation marks omitted). “If Rule 9(b) is to carry
any water, it must mean that an essential allegation and circumstance of fraudulent conduct
cannot be alleged in … conclusory fashion.” Clausen, 290 F.3d at 1313. In the FCA context,
the objective of Rule 9(b) is to “alert[] defendants to the precise misconduct with which they are
charged and protect[] defendants against spurious charges.” Matheny, 671 F.3d at 1222 (citation
omitted).
Of course, the Rule 9(b) particularity requirement “must be read in conjunction with
Federal Rule of Civil Procedure 8’s directives that a complaint need only provide a short and
plain statement of the claim,” and courts considering motions to dismiss for failure to plead fraud
with particularity “should always be careful to harmonize the directives of [R]ule 9(b) with the
broader policy of notice pleading found in Rule 8.” Hill v. Morehouse Medical Associates, Inc.,
2003 WL 22019936, *3 (11th Cir. Aug. 15, 2003) (citations and internal quotation marks
omitted). In other words, the two pleading standards are considered together, such that “[i]n an
action under the False Claims Act, Rule 8’s pleading standard is supplemented but not
supplanted by Federal Rule of Civil Procedure 9(b).” Urquilla-Diaz v. Kaplan University, 780
F.3d 1039, 1051 (11th Cir. 2015).
III.

Analysis.
A.

Whether the First Amended Complaint Violates Rule 15(a).

As an initial matter, Premier argues that the Amended Complaint must be dismissed in its
entirety as violative of Rule 15(a) of the Federal Rules of Civil Procedure. Gacek filed his
Amended Complaint (doc. 21) on November 3, 2016, more than two years after filing his
original Complaint (doc. 2) on July 23, 2014. He neither requested nor obtained leave of court to
file the Amended Complaint; rather, plaintiff proceeded under Rule 15(a)(1), which provides that
“[a] party may amend its pleading once as a matter of course within … 21 days after service of a
responsive pleading or … a motion under Rule 12(b), (e), or (f), whichever is earlier.” Rule
15(a)(1)(B), Fed.R.Civ.P. Premier insists that Rule 15(a)(1)(B) is inapplicable and that Gacek

-7-

could not amend his complaint as a matter of course until after Premier filed a responsive
pleading or Rule 12(b) motion, which did not happen until March 27, 2017. Thus, Premier’s
position is that no right to amend once as a matter of course exists under Rule 15(a)(1)(B) until a
motion to dismiss or Rule 12(b) motion is filed. (Doc. 41, at 14 (“the rule allows a plaintiff to
amend its complaint as a matter of course within a 21 day window that begins on the date of
service of the defendant’s answer or motion to dismiss”).)
Defendant’s interpretation lacks supporting case citations. Moreover, it is fundamentally
inconsistent with the longstanding practice in this District Court, pursuant to which plaintiffs are
routinely permitted to amend their complaints once as a matter of course at any time from the
date they are filed until a date 21 days after service of a responsive pleading or motion to
dismiss. Under defendant’s reading of Rule 15(a)(1)(B), a plaintiff wanting to amend his
complaint one day after filing it must wait until a responsive pleading is filed before the Federal
Rules of Civil Procedure would allow him to file an amended complaint as a matter of course.
That is not what Rule 15(a)(1)(B) says.3 Premier’s construction would be terribly inefficient,
because a defendant might go to the trouble of preparing and filing a lengthy Rule 12(b) motion
to attack a defect in the complaint that the plaintiff already intended to correct by amendment,
but that the plaintiff was prohibited from correcting as a matter of course until a 21-day window
opened after said Rule 12(b) motion was filed. Such a prohibition on pre-answer amendments as
a matter of course would make no sense. And it would be contrary to extant case law. See, e.g.,
Swanigan v. City of Chicago, 775 F.3d 953, 963 (7th Cir. 2015) (“Because no responsive

3

The only authority on which Premier relies is the section of the Advisory
Committee Notes to the 2009 Amendments to Rule 15 that explains why the right to amend once
as a matter of course was being modified to treat answers and motions to dismiss the same, in
terms of a plaintiff’s right to amend once as a matter of course. (Doc. 41, at 14.) Nothing in the
Advisory Committee Notes purports to extinguish the right of a plaintiff to amend his complaint
once as a matter of course before an answer or Rule 12(b) motion is filed. Previously, Rule 15
allowed such amendments as a matter of course. See, e.g., Coventry First, LLC v. McCarty, 605
F.3d 865, 869 (11th Cir. 2010) (“Federal Rule of Civil Procedure 15(a) gives a plaintiff the right
to amend a complaint once as a matter of course, so long as no responsive pleading has been
filed.”). The 2009 Amendments did not alter that aspect of the rule.

-8-

pleading or motion to dismiss had been filed, the 21-day clock under Rule 15(a)(1)(B) never
started and Swanigan retained the right to amend his complaint.”).4
In short, the Court finds that Gacek was entitled to amend his Complaint without leave of
court on November 3, 2016. Accordingly, the Amended Complaint was properly filed as a
matter of course pursuant to Rule 15(a)(1)(B). The Motion to Dismiss is denied insofar as it
seeks dismissal of the Amended Complaint as violative of Rule 15.
B.

Whether the Retaliation Cause of Action (Count III) is Time-Barred.

Another aspect of the Motion to Dismiss that may be dispatched in short order is
Premier’s argument that Gacek’s retaliation cause of action (Count III) is time-barred. Movant
contends that Count Three is untimely based on the following reasoning: (i) Gacek alleges that
Premier terminated his employment in April 2013 for speaking out about fraudulent billing
practices (doc. 21, ¶¶ 106-07); (ii) Gacek’s retaliation claim is subject to a three-year limitations
period by operation of 31 U.S.C. § 3730(h)(3);5 and (iii) Gacek’s Amended Complaint was filed
on November 3, 2016,6 after expiration of the three-year period. (Doc. 31, at 21-22.)

4

See also In re Alfes, 709 F.3d 631, 639 (6th Cir. 2013) (Rule 15(a)(1) “gives
plaintiffs an absolute right to amend their complaint one time before a responsive pleading is
served’) (citation omitted); Rosin v. Thaler, 417 Fed.Appx. 432, 434 (5th Cir. Mar. 11, 2011)
(under Rule 15(a), “Rosin was entitled to amend his pleading once as a matter of right because
the respondent had not yet filed a responsive pleading”); Galustian v. Peter, 591 F.3d 724, 730
(4th Cir. 2010) (“Peter had not yet filed a responsive pleading. … Galustian then had a right to
amend his complaint, with or without leave of the court to do so.”); Barrientos Arita v. Victor’s
Café, LLC, 2015 WL 12672721, *1 (S.D. Fla. Nov. 17, 2015) (“The Amended Complaint was
filed before the Defendant served any responsive pleading and was, therefore, timely” under
Rule 15(a)(1)).
5

The False Claims Act provides that an employee is entitled to be made whole if
he or she “is discharged, demoted, suspended, threatened, harassed, or in any other manner
discriminated against in the terms and conditions of employment because of lawful acts done by
the employee … to stop 1 or more violations of” the Act. 18 U.S.C. § 3730(h)(1). A civil action
under that subsection “may not be brought more than 3 years after the date when the retaliation
occurred.” 18 U.S.C. § 3730(h)(3).
6

Premier’s Motion alleges that Gacek filed his Amended Complaint on “November
3, 2017” (doc. 31, at 21), which is plainly a typographical error. The correct filing date is
November 3, 2016.

-9-

Defendant fails to explain, however, why it contends that the filing of the Amended
Complaint (as opposed to the original Complaint) is the applicable date for limitations purposes.
After all, Gacek filed the first iteration of his Complaint in this District Court on July 23, 2014,
well within the § 3730(h)(3) limitations period. (See doc. 2.) Although the original Complaint is
under seal, it does include specific allegations concerning Premier’s firing of Gacek in April
2013. (Doc. 2, ¶¶ 81-84.) Moreover, the Complaint pleaded a retaliation claim under § 3730(h)
based on allegations that “Gacek was discharged, harassed and/or discriminated against in his
termination by Defendant Premier Medical … because of lawful acts done by Relator Gacek …
including, but not limited to, Relator Gacek’s efforts to stop violations of the False Claims Act.”
(Id., ¶ 99.) In fairness to Premier, it constructed its timeliness argument without access to the
sealed original Complaint; however, the fact remains that defendant’s apparent assumption that
Gacek never raised a retaliation claim until November 2016 is unfounded. To the contrary,
Gacek pleaded a § 3730(h) retaliation claim against Premier in his Complaint filed in July 2014,
well within the three-year limitations period. As such, defendant’s argument that Count III
should be dismissed as time-barred misses the mark, and that aspect of its Motion to Dismiss is
denied.7
C.

Sufficiency of Pleading Counts I and II.

As indicated, Count I alleges that Premier is liable under the FCA because it “knowingly
present[ed], or cause[d] to be presented, a false or fraudulent claim for payment or approval.” 31
U.S.C. § 3729(a)(1)(A). Similarly, Count II alleges that Premier is liable under the FCA because
it “knowingly ma[de], use[d], or cause[d] to be made or used, a false record or statement material
7

In a footnote in its Reply, Premier raises for the first time an argument that Count
III is somehow improper because “[a]n FCA retaliation claim is personal to the relator” and
“Gacek, individually, is not a party” to this action. (Doc. 41, at 2 n.3.) As a general rule, federal
courts do not consider new arguments raised for the first time in reply briefs. See, e.g., Brown v.
CitiMortgage, Inc., 817 F. Supp.2d 1328, 1332 (S.D. Ala. 2011) (“New arguments presented in
reply briefs are generally not considered by federal courts.”) (citations omitted); Kirksey v.
Schindler Elevator Corp., 2016 WL 7116223, *6 (S.D. Ala. Dec. 6, 2016) (“this argument is
improper because it is newly raised in a reply although it was available earlier”); United States v.
Crumb, 2016 WL 4480690, *17 (S.D. Ala. Aug. 24, 2016) (“this kind of new, previously
available argument in support of a motion is not appropriately presented for the first time in a
reply”). This argument could have been presented in Premier’s principal brief, but was not.
Therefore, the Court will not consider it at this time.

-10-

to a false or fraudulent claim.” 31 U.S.C. § 3729(a)(1)(B). As Premier correctly observes, the
Eleventh Circuit requires that such claims be pleaded with particularity, pursuant to the teachings
of the leading case, U.S. ex rel. Clausen v. Laboratory Corp. of America, Inc., 290 F.3d 1301
(11th Cir. 2002).
For a “presentment clause” claim under § 3729(a)(1)(A), “Rule 9(b) requires that actual
presentment of a claim be pled with particularity,” meaning that the complaint must “assert the
who, what, where, when, and how of fraudulent submissions to the government.” Hopper, 588
F.3d at 1327 (citation and internal quotation marks omitted). Thus, “[i]n order to plead the
submission of a false claim with particularity, a relator must identify the particular document and
statement alleged to be false, who made or used it, when the statement was made, how the
statement was false, and what the defendants obtained as a result.” Matheny, 671 F.3d at 1225
(requirement satisfied where “Relators pled specifics relating to the submission of a specific
statement in a specific document, submitted by a specific person during a specific review, as
required by a particular government contract”); see also Britton ex rel. U.S. v. Lincare Inc., 634
Fed.Appx. 238, 241 (11th Cir. Dec. 10, 2015) (FCA presentment clause claim inadequately
pleaded where plaintiff “is unable to muster any facts tending to show that Lincare asked the
Government to pay amounts it does not owe,” “disclaims any knowledge of Lincare’s billing
practices,” and “does not allege the who, what, where, when, and how of fraudulent submissions
to the government”) (citation and internal quotation marks omitted).
Likewise, for a “false statement” claim under § 3729(a)(1)(B), a plaintiff must plead with
particularity that “(1) the defendant made a false record or statement for the purpose of getting a
false claim paid or approved by the government; and (2) the defendant’s false record or
statement caused the government to actually pay a false claim.” Hopper, 588 F.3d at 1327; see
also Urquilla-Diaz, 780 F.3d at 1052.8

8

That said, the Eleventh Circuit has left open the possibility that the particularity
requirements may be relaxed in a “false statement” claim as to the details of the false claims
themselves. See Hopper, 588 F.3d at 1329 (“The identity of the person or entity who submitted a
or caused to be submitted a claim for payment is not an element of a [§ 3729(a)(1)(B)] cause of
action. So, in the appropriate case, we may consider whether the particularity requirements of
Rule 9(b), as to the details of the alleged false claims at issue, are more relaxed for claims under
31 U.S.C. § [3729(a)(1)(B)] than for claims under [§ 3729(a)(1)(A)].”).

-11-

Premier’s position, quite simply, is that Gacek’s Amended Complaint lacks this required
level of detail. The argument resonates. On its face, the Amended Complaint fails to identify
the who, what, where, when, and how of Premier’s false submissions to the Government. It does
not recite specific statements in specific documents, submitted by specific persons during
specific times, to specific government programs. It fails to point to particular bills or claims that
were submitted to the Government for payment, the dates of service accompanying such bills,
the dates of such bills, the patients to whom they relate, the agency to which they were
submitted, or the person at Premier who sent them. It does not plead with particularity that the
Government actually paid false claims in reliance on any false records or statements that may
have been submitted by Premier.
In response, Gacek does not suggest that his Amended Complaint comports with the level
of detail demanded in the Clausen line of authorities. Instead, plaintiff maintains that “Clausen
is not to be strictly applied in every FCA lawsuit,” and that “[w]here a relator’s complaint
provides other ‘indicia of reliability’ to support the relator’s beliefs and allegations that a
defendant submitted fraudulent claims to the government, a more flexible case-by-case approach
to Clausen may be applied.” (Doc. 37, at 5.) Although defendants sharply criticize this
characterization of the law, Gacek is correct. The “indicia of reliability” language has long been
featured in Circuit precedents describing the FCA pleading standard. In Clausen itself, the
Eleventh Circuit opined that “if Rule 9(b) is to be adhered to, some indicia of reliability must be
given in the complaint to support the allegation of an actual false claim for payment being made
to the Government.” Clausen, 290 F.3d at 1311. More recently, the court explained, “We
evaluate whether the allegations of a complaint contain sufficient indicia of reliability to satisfy
Rule 9(b) on a case-by-case basis.” United States ex rel. Atkins v. McInteer, 470 F.3d 1350,
1358 (11th Cir. 2006); see also United States ex rel. Mastej v. Health Management Associates,
Inc., 591 Fed.Appx. 693, 704 (11th Cir. Oct. 30, 2014) (explaining that “there is no per se rule
that an FCA complaint must provide exact billing data or attach a representative sample claim,”
and that “other means are available to present the required indicia of reliability that a false claim
was actually submitted”).
The Eleventh Circuit’s decision in United States ex rel. Atkins v. McInteer, 470 F.3d 1350
(11th Cir. 2006), is instructive. In Atkins, the relator was a psychiatrist who provided medical
care, and he described in detail an elaborate scheme for defrauding the government by

-12-

submitting false claims, including particular patients, dates and corresponding medical records.
Nonetheless, the Eleventh Circuit concluded that his complaint flunked Rule 9(b). The problem
was that “Atkins fails to provide the next link in the FCA liability chain: showing that the
defendants actually submitted reimbursement claims for the services he describes. Instead, he
portrays the scheme and then summarily concludes that the defendants submitted false claims to
the government for reimbursement.” Id. at 1359. The necessary indicia of reliability were
absent because “Atkins does not profess to have firsthand knowledge of the defendants’
submission of false claims,” inasmuch as he was responsible for providing care, and was “not a
billing and coding administrator responsible for filing and submitting the defendants’ claims for
reimbursement.” Id. Under these circumstances, Atkins concluded that “the public policies
behind Rule 9(b), the FCA, and qui tam actions required the district court to dismiss Atkins’s
complaint under Rule 9(b); for it lacks sufficient indicia of reliability to haul the defendants into
court.” Id. at 1360 (footnote omitted).9 More recently, in Jallali v. Sun Healthcare Group, 667
Fed.Appx. 745 (11th Cir. July 1, 2016), the plaintiff alleged that the defendant engaged in
“improper internal practices” and that she had personal knowledge of “patients who were billed
for services not rendered” and “billing fraud.” Id. at 746. But she did not plead facts showing
indicia of reliability to support an allegation that an actual false claim for payment was made to
the Government; rather, the plaintiff “fail[ed] to allege that her general conclusion that the
Defendants submitted to the Government false claims for payment is supported by anything
other than conjecture or inference.” Id. On that basis, the Jallali panel affirmed the dismissal of
her FCA claim.
In applying this case-by-case approach to Rule 9(b)’s heightened pleading requirements
in the FCA context, several principles emerge from Circuit jurisprudence. First, “a relator with
direct, first-hand knowledge of the defendants’ submission of false claims gained through her
9

The analysis in Clausen was much the same. The Clausen plaintiff provided
detailed descriptions of the defendant’s schemes to increase testing revenues; however, he fell
short of Rule 9(b) because he failed to “provide any factual basis for his conclusory statement
tacked on to each allegation that bills were submitted to the Government as a result of these
schemes.” Clausen, 290 F.3d at 1312. While indicating that it was “not unsympathetic” to his
plight, the Eleventh Circuit also “reject[ed] Clausen’s argument that we should apply a more
lenient pleading standard because evidence of fraud was uniquely held by the defendant.” Id. at
1314 & n.25.

-13-

employment with the defendants may have a sufficient basis for asserting that the defendants
actually submitted false claims.” Mastej, 591 Fed.Appx. at 704. Second, “a plaintiff-relator
without first-hand knowledge of the defendants’ billing practices is unlikely to have a sufficient
basis for such an allegation.” Id. And third, “[a]t a minimum, a plaintiff-relator must explain the
basis for her assertion that fraudulent claims were actually submitted,” and must do more than
“state baldly that he was aware of the defendants’ billing practices.” Id. at 704-05.
Here, it is undisputed that Gacek has not provided exact billing data or sample claims to
support an allegation that Premier submitted actual false claims for payment to the Government.
While Gacek is correct that he may satisfy his pleading burden through other indicia of
reliability, he still must plead a factual basis for his assertion that false claims were actually
submitted to the Government. This he has not done.10 In his briefs, Gacek holds forth at length
about the indicia of reliability of his knowledge of Premier’s purportedly fraudulent schemes and
how they were implemented. That’s all well and good, but it is not sufficient. From Clausen
through Atkins and all the way through Mastej and Jallali, the Eleventh Circuit has consistently
required a FCA plaintiff to plead facts showing a reliable basis of knowledge that the defendant
actually submitted fraudulent claims to the Government in conjunction with the alleged scheme.
“Because it is the submission of a fraudulent claim that gives rise to liability under the False
Claims Act, that submission must be pleaded with particularity and not inferred from the
circumstances.” Corsello v. Lincare, Inc., 428 F.3d 1008, 1013 (11th Cir. 2005); see generally
Hopper, 588 F.3d at 1328 (“Improper practices standing alone are insufficient to state a claim
under either § 3729(a)(1) or (a)(2) absent allegations that a specific fraudulent claim was in
fact submitted to the government.”) (emphasis added). Gacek does not allege that he submitted
fraudulent bills, that he worked in or supervised Premier’s billing and coding department, or that
he had first-hand observations of fraudulent bills being transmitted to the Government for
payment. Nor does Gacek otherwise explain how he purports to know that the submission
10

An example may help illustrate the point. In the Amended Complaint, Gacek
pleads specific facts that on May 23, 2014, a Premier physician administered RAST on four
patients in connection with ENT surgeries on patients age four and younger. (Doc. 21, ¶ 42.)
But the Amended Complaint is devoid of particularized facts to show that Premier actually billed
the Government for any of those purportedly unnecessary RAST treatments, or that the
Government actually paid those purportedly fraudulent claims.

-14-

requirement is satisfied.11 Instead, he would apparently have the Court speculate or infer that
there was an actual “submission” of a false claim to the Government. The Eleventh Circuit
refuses to indulge in such speculation or inference. Thus, Count I (the § 3729(a)(1)(A) claim for
“false presentment”) must be dismissed as failing to comport with Rule 9(b)’s particularity
requirements as to the submission of false claims.
Nor, for purposes of Count II (the § 3729(a)(1)(B) claim), does Gacek plead with
specificity facts showing that the Government actually paid Premier claims containing false
statements. From review of the Amended Complaint, even if we were to assume that Premier
made false records or statements to the Government, we would have to speculate that the
Government actually paid Premier’s false claims. The Complaint is devoid of any facts showing
that happened; therefore, dismissal of Count II is necessary for failure to satisfy Rule 9(b). See,
e.g., Urquilla-Diaz, 780 F.3d at 1052 (“to satisfy Rule 9(b)’s heightened-pleading requirements,
the relator has to allege with particularity that the defendant’s false statements ultimately led the
government to pay amounts it did not owe”) (citation and internal quotation marks omitted).
In light of the foregoing discussion, the Motion to Dismiss is properly granted as Counts
I and II, neither of which meet the particularity requirements of Rule 9(b).
D.

Sufficiency of Pleading Retaliation Claim (Count III).

In Count Three of the Amended Complaint, Gacek brings a retaliation claim. That claim
is predicated on an allegation that Premier discharged Gacek “because of lawful acts done by
Relator Gacek in the furtherance of an action under the False Claims Act including, but not
limited to, Relator Gacek’s efforts to stop violations of the False Claims Act.” (Doc. 21, ¶ 122.)
Such “efforts” are documented in the pleading, including the following assertions: (i) Gacek met
with Premier’s CEO in January 2011 “concerning medically unnecessary tests, up-coded medical
11

In his Sur-Reply, Gacek suggests that he has the requisite first-hand knowledge of
the submission of false claims to the Government because of an e-mail he received on October
17, 2012 concerning unnecessary RAST tests. (Doc. 44, at 4 (“Since Relator Gacek was one of
the physicians who received the email he had sufficient personal and firsthand knowledge about
who was billed for these tests.”).) But the subject e-mail (which is attached to the Amended
Complaint as an exhibit) says nothing about “who was billed for these tests,” much less anything
about bills actually being submitted to the Government. (See doc. 21, Exh. 5.) Receipt of this email may give Gacek knowledge about a fraudulent scheme by Premier, but it confers no firsthand knowledge or indicia of reliability to his conclusory statements about the actual submission
of false claims to the Government.

-15-

services, and the inner-office kickback scheme” (id., ¶ 97); (ii) at that meeting, Premier’s CEO
provided assurances that an internal investigation would be conducted, but Gacek never received
any indication that such an investigation actually took place (id., ¶ 98); (iii) over the next year
and a half, Gacek met with the CEO and Doctor Manager “separately and on numerous
occasions” (id., ¶ 99); (iv) in September 2012, Gacek objected to Premier’s CEO “that his
concerns had routinely been overlooked” (id., ¶ 100); (v) after that meeting, Gacek sent a letter
to Premier’s CEO following up on defendant’s apparent “disinterest in investigating the fraud
and unethical practice concerns that he had raised,” but Premier never responded (id., ¶ 101); and
(vi) Premier demanded Gacek’s resignation in January 2013 (id., ¶ 103).
In its Motion to Dismiss, Premier contends that Count Three fails to state a claim for
retaliation under 31 U.S.C. § 3730(h) and Rule 8(a), Fed.R.Civ.P., because it does not allege
protected activity, specifically “that Premier ‘feared’ being reported to the government or sued
by Gacek.” (Doc. 31, at 18-19.)
The FCA provides a cause of action for an employee who is discharged “or in any other
manner discriminated against in the terms and conditions of employment because of lawful acts
done by the employee … in furtherance of an action under this section or other efforts to stop 1
or more violations of this subchapter.” 18 U.S.C. § 3730(h)(1). That said, the Eleventh Circuit
has cautioned that Ҥ 3730(h) only protected an employee from retaliation when there was at
least ‘a distinct possibility’ of litigation under the False Claims Act at the time of the employee’s
actions.” United States ex rel. Sanchez v. Lymphatx, Inc., 596 F.3d 1300, 1303 (11th Cir. 2010).
The Sanchez panel noted that “an employee may put her employer on notice of possible False
Claims Act litigation by making internal reports that alert the employer to fraudulent or illegal
conduct.” Id. at 1304 (citations omitted). The rule, then, is that “[i]f an employee’s actions, as
alleged in the complaint, are sufficient to support a reasonable conclusion that the employer
could have feared being reported to the government for fraud or sued in a qui tam action by the
employee, then the complaint states a claim for retaliatory discharge under § 3730(h).” Id. FCA
retaliation claims do not hinge on allegations of fraud; therefore, the heightened-pleading Rule
9(b) standard is inapplicable to Count III. Id.
Gacek specifically pleaded that he complained internally to Premier on numerous
occasions about fraudulent and unethical conduct relating to medically unnecessary tests, upcoding of medical services, and an unlawful kickback scheme. Such allegations of reported

-16-

misconduct, if true and if a link to Medicare/Medicaid billings were established, would violate
the False Claims Act, and may subject Premier to civil or criminal liability for defrauding the
Government. Under those circumstances, it is plausible to infer that Premier could have feared
being reported to the Government or being sued by Gacek in a qui tam action. As such, the
Court readily concludes that Count III traverses the Twombly / Iqbal plausibility threshold and
states a claim upon which relief can be granted. Gacek has pleaded a short and plain statement
showing a plausible claim for retaliation under § 3730(h). Nothing further was required.
Accordingly, the Motion to Dismiss is denied as to Count III.12
E.

Sufficiency of Pleading Conspiracy Claim (Count IV).

In Count IV of the Amended Complaint, Gacek brings a FCA claim against Premier for
conspiracy “with regard to the performance of RAST procedures.” (Doc. 21, ¶ 125.) The FCA
creates a civil right of action against a defendant who conspires to violate § 3729(a)(1)(A)
(presentment of a false or fraudulent claim for payment) or § 3729(a)(1)(B) (making or using a
false record or statement material to a false or fraudulent claim). See 31 U.S.C. § 3729(a)(1)(C).
To state a claim for conspiracy under the FCA, a plaintiff must show “(1) that the
defendant conspired with one or more persons to get a false or fraudulent claim paid by the
United States; (2) that one or more of the conspirators performed any act to effect the object of
the conspiracy; and (3) that the United States suffered damages as a result of the false or
fraudulent claim.” Corsello, 428 F.3d at 1014; see also United States v. LifePath Hospice, Inc.,
2016 WL 5239863, *8 (M.D. Fla. Sept. 22, 2016) (“A defendant is liable for conspiracy if the
relator can prove two elements: (1) that the defendant conspired with at least one person to get a
12

As the Court understands it, Premier’s argument is that Gacek did not engage in
protected activity because he did not explicitly tie his internal complaints of fraudulent billing
activity to Medicare or Medicaid fraud, as opposed to private insurance fraud. But he did not
have to do so. After all, the Complaint pleads that when Blue Cross Blue Shield of Alabama (a
private insurer) had previously objected to Premier about improper upcoding of facial cosmetic
work, Premier physicians held a meeting at which they “expressed fears that the federal
government would get involved.” (Doc. 21, ¶¶ 51-60.) This factual allegation demonstrates
awareness by Premier that fraudulent practices alleged as to private insurers could lead to
government investigation for fraud. Therefore, when Gacek later complained to Premier about
fraudulent billing practices, it is reasonable to infer that Premier could have feared being
reported to the Government for fraud even if Gacek’s internal complaints did not single out
Medicare/Medicaid claims. After all, Premier had raised precisely that fear years earlier when
BCBS had raised concerns of improperly up-coded billings.

-17-

false or fraudulent claim paid by the government; and (2) that at least one of the conspirators
performed an overt act to get a false or fraudulent claim paid.”). A plaintiff asserting a §
3729(a)(1)(C) conspiracy claim must satisfy the heightened pleading requirements of Rule 9(b).
See, e.g., Corsello, 428 F.3d at 1014 (dismissing FCA conspiracy claim “for failure to comply
with Rule 9(b)”); United States ex rel. Grubbs v. Kanneganti, 565 F.3d 180, 193 (5th Cir. 2009)
(“The particularity requirements of Rule 9(b) apply to the False Claims Act’s conspiracy
provision with equal force as to its ‘presentment’ and ‘record’ provisions.”).
Premier argues that there cannot be a FCA conspiracy here because Gacek appears to be
alleging “a conspiracy between Premier physicians and/or employees” (doc. 31, at 14), which
cannot pass muster under the intracorporate conspiracy doctrine. For his part, Gacek embraces
this characterization of Count IV, stating that his pleading “clearly allege[s] an intracorporate
conspiracy between Premier and other employees.” (Doc. 36, at 16-17.)
The general rule is that “[t]he intracorporate conspiracy doctrine bars conspiracy claims
against corporate or government actors accused of conspiring together within an organization.”
Rehberg v. Paulk, 611 F.3d 828, 854 (11th Cir. 2010); see also McAndrew v. Lockheed Martin
Corp., 206 F.3d 1031, 1036 (11th Cir. 2000) (“Simply put, under the doctrine, a corporation
cannot conspire with its employees, and its employees, when acting in the scope of their
employment, cannot conspire among themselves.”). Nonetheless, Gacek properly invokes the
criminal-conspiracy exception to this doctrine. The Eleventh Circuit has “long recognized an
exception to the applicability of the intracorporate conspiracy doctrine for intracorporate
criminal conspiracies arising under 18 U.S.C. § 371 of the federal criminal code.” McAndrew,
206 F.3d at 1038 (footnote omitted). McAndrew extended that longstanding exception to reach
civil rights conspiracies that also would constitute crimes, reasoning that public policy and
legislative history “counsel in favor of a consistent application of the criminal conspiracy
exception to the intracorporate conspiracy doctrine regardless of whether the criminal
conspiracy arises under the federal criminal or civil code.” Id. at 1040 (emphasis added). As
McAndrew explained, the doctrine “was never intended nor used to shield conspiratorial conduct
that was criminal in nature,” and “there is no reason to differentiate between the criminal and
civil conspiracy statutes” where the underlying conspiratorial conduct is the same. Id. at 104041. The conduct alleged by Gacek in the Amended Complaint, if proven at trial, would not only
give rise to civil liability but also would be a criminal conspiracy in violation of 18 U.S.C. § 371.

-18-

Therefore, under the reasoning of McAndrews, the intracorporate conspiracy doctrine cannot and
does not bar Gacek’s Count III against Premier.13
In the alternative, Premier maintains that Count III has not been pleaded with the
particularity required by Rule 9(b), because the Amended Complaint fails to provide details of
the alleged FCA conspiracy “with regard to the performance of RAST procedures.” (Doc. 21, ¶
125.) Who conspired with whom? What was the agreement, the requisite meeting of the minds
to defraud the Government? How did the conspiracy work? What overt actions were taken in
furtherance of the conspiracy? Premier correctly observes that the Amended Complaint is
devoid of specificity as to each of these issues.
In response to Premier’s Rule 9(b) challenge to the § 3729(a)(1)(C) conspiracy claim,
Gacek refers solely to paragraphs 28-34 of the Amended Complaint. (Doc. 37, at 16; doc. 44, at
3.) Those paragraphs concern the October 17, 2012 e-mail sent from Margaret Murray to more
than a dozen recipients (identified in the Amended Complaint as ENT physicians at Premier)
bearing the subject line “PRICK TESTS.” (Doc. 21, Exh. 5.) This correspondence delineates a
“trial procedure” for skin tests, indicates that the Allergy Department has supplies for 25 test
patients to perform prick skin tests, and explains that “[w]e will run RAST also on a few select
pts. … to compare during this trial period.” (Id.) The e-mail states, “We will bill maximum
allowed of $7.00 each and track reimbursement and report in 3-6 weeks.” (Id.) It also reflects
the author’s observation that reimbursement is “quoted as about the same or slightly less for
prick vs RAST … and our cost is considerably less,” plus “insurance companies seem to be
willing to pay for a greater number of this type tests in one day.” (Id.) On its face, nothing in
the October 17 e-mail memorializes an agreement among Premier physicians to defraud the
Government by double-billing for both skin tests and RAST, by performing medically
13

See United States ex rel. Harris v. Lockheed Martin Corp., 905 F. Supp.2d 1343,
1354 (N.D. Ga. 2012) (applying McAndrew to find that intracorporate conspiracy doctrine did
not bar § 3729(a)(1)(C) claim against Lockheed Martin where complaint’s allegations “plainly
describe conduct that, if true, would be violative of both the civil liability provisions of the
[FCA] and the criminal fraud conspiracy provisions of 18 U.S.C. § 371”); United States ex rel.
Beattie v. Comsat Corp., 2001 WL 35992080, *3 (M.D. Fla. Apr. 18, 2001) (in FCA context,
agreeing with Government that “the conspiracy at issue between EMS and its employees is
criminal in nature and invokes the logic found in the Eleventh Circuit’s McAndrew opinion,”
such that intracorporate conspiracy doctrine did not bar FCA conspiracy claim).

-19-

unnecessary RAST, and so on.14 Although Gacek pleads that “Premier Medical billed and
received payment from the Government for both RAST and skin tests” as a result of the October
2012 trial procedure (doc. 21, ¶ 34), he neither identifies any basis of first-hand knowledge of
that fact (i.e., the indicia of reliability discussed supra) nor points to any facts showing with
specificity that Premier physicians and employees agreed to perform such double-billings to
defraud the Government.
In light of the foregoing, the Court agrees with Premier that Gacek has failed to plead a
FCA conspiracy cause of action under 31 U.S.C. § 3729(a)(1)(C) with the particularity required
by Rule 9(b). Upon careful review of the Amended Complaint, the undersigned discerns no
specific factual allegations that Premier physicians had a meeting of the minds to defraud the
Government as to RAST billings. The pleading does not allege a specific agreement to doublebill for RAST and skin tests, or anything to show that the conspirators’ purpose was to defraud
the Government. The “smoking gun” of the October 17, 2012 e-mail – on which Gacek relies so
heavily – is, by itself, unhelpful to plead the existence of a conspiracy for Rule 9(b) purposes.
For all of these reasons, the Motion to Dismiss is granted as to Count IV.
F.

Sufficiency of Pleading Reverse False Claim (Count V).

Count V of the Amended Complaint is a cause of action for a reverse false claim. This
type of claim arises, inter alia, where a defendant “knowingly conceals or knowingly and
improperly avoids or decreases an obligation to pay or transmit money or property to the
Government.” 31 U.S.C. § 3729(a)(1)(G).15 Although somewhat convoluted, Gacek’s theory (as
pleaded in the Amended Complaint) works like this: There was an internal, unlawful kickback
scheme in 2010 pursuant to which certain Premier physicians paid cash gifts to appointment
clerks for shifting patient appointments to their calendars. (Doc. 21, ¶¶ 89-92.) Premier billed
14

If anything, the October 17 e-mail appears to describe a trial procedure under
which Premier would use prick skin tests instead of RAST, and documents with specificity how
the skin test works, the number of antigens tested for, the location of the skin tests on the
patient’s body and so on. Thus, this exhibit appears to be exploring a potential move away from
the RAST procedure that Gacek condemns in his Amended Complaint as being far more
expensive than, and inferior to, skin tests. (Doc. 21, ¶¶ 18-27, 44-46.)
15

“This is known as the ‘reverse false claim’ provision of the FCA because liability
results from avoiding the payment of money due to the government, as opposed to submitting to
the government a false claim.” Matheny, 671 F.3d at 1222.

-20-

Medicare for services performed by those physicians based on patient referrals that they received
through that kickback scheme, and Medicare paid Premier for those services. (Id., ¶¶ 94, 130.)
This arrangement, the Amended Complaint pleads, is violative of the Anti-Kickback Statute
(“AKS”), which provides in relevant part that it is a felony for a person to “knowingly and
willfully offer[] or pay[] any remuneration … to any person to induce such person … to refer an
individual to a person for the furnishing … of any item or service for which payment may be
made in whole or in part under a Federal health care program.” 42 U.S.C. § 1320a7b(b)(2)(A).16 According to Gacek, the AKS violation created an obligation on the part of
Premier to reimburse the Government for payments it received for services provided by its
physicians pursuant to that illegal kickback scheme.17 Although Premier “was made aware that
it had billed Medicare and received payments from the Government for services procured” in
violation of the AKS, Premier failed to reimburse those funds. (Doc. 21, ¶ 131.) That is the
reverse false claim.
Premier’s only argument for dismissal of Count V is a conclusory assertion that Gacek
“failed specifically to allege facts supporting a claim that Premier concealed or knowingly
avoided or decreased an obligation to pay the government.” (Doc. 31, at 18.)18 But Premier
16

If proven, the pay-for-referral scheme described in the Amended Complaint
would appear to violate the AKS. See, e.g., Mastej, 591 Fed.Appx. at 698 (“A violation of the
Anti-kickback statute occurs when the defendant (1) knowingly and willfully, (2) pays money,
directly or indirectly, to doctors, (3) to induce the doctors to refer individuals to the defendants
for the furnishing of medical services, (4) paid for by Medicare.”); see also United States v.
Vernon, 723 F.3d 1234, 1252 (11th Cir. 2013) (similar).
17

This contention appears well-grounded in law. After all, the AKS provides that
“a claim that includes items or services resulting from a violation of this section constitutes a
false or fraudulent claim for purposes of subchapter III of chapter 37 of Title 31,” 42 U.S.C. §
1320a-7b(g), which of course references the False Claims Act. By statute, the recipient of an
“overpayment” (meaning funds to which the person is not entitled) of Medicare or Medicaid
funds must promptly report and return the overpayment to the Government, which is an
“obligation” for purposes of § 3729(a)(1)(G). See 42 U.S.C. § 1320a-7k(d).
18

To be sure, in its Motion to Dismiss, Premier raised a host of other arguments
concerning Count V; however, those arguments were predicated on what Premier now
acknowledges was a misinterpretation of the claim being asserted. (Doc. 41, at 12 (“It turns out,
however, that Premier misinterpreted Count V.”).) Thus, Premier’s other contentions concerning
Count V are of no consequence because they relate to a species of claim that is not being asserted
by Gacek.

-21-

does not explain why it believes Count V’s allegations are deficient to state a claim under §
3729(a)(1)(G). The Amended Complaint contains specific allegations (including names and
dates) of the fraudulent conduct that Gacek says violated the AKS. These factual allegations
bear the appropriate indicia of reliability for Rule 9(b) purposes. The Amended Complaint also
alleges that Premier billed Medicare for services rendered by its physicians on referrals they had
received in violation of the AKS, that the Government paid those claims, and that Premier knew
about the AKS violation because Gacek himself had reported it to the supervising doctor in
November 2010. Despite all of that, the Amended Complaint alleges, and the corresponding
statutory obligation to repay the resulting overpayment to the Government, Premier failed to do
so. Defendant has not identified what, exactly, about this narrative set forth in the Amended
Complaint is insufficiently pleaded. The Motion to Dismiss is thus properly denied as to Count
V.
IV.

Conclusion.
For all of the foregoing reasons, it is ordered as follows:
1.

Defendant’s Motion to Dismiss First Amended Complaint (doc. 31) is granted in
part, and denied in part;

2.

The Motion is granted as to Counts I, II, and IV, and those claims are all
dismissed;

3.

In all other respects, the Motion is denied, and this action will proceed as to the
retaliation cause of action set forth at Count III and the reverse false claim cause
of action set forth at Count V; and

4.

Defendant’s answer must be filed by no later than July 14, 2017.

DONE and ORDERED this 30th day of June, 2017.
s/ WILLIAM H. STEELE
UNITED STATES DISTRICT JUDGE

-22-