Sharpe et al v. Americare Ambulance
Filing
64
ORDER granting in part 55 Defendant Americare Ambulance's Motion to Dismiss, to the extent that Counts I, II, and III of the Complaint are dismissed without prejudice and with leave to amend. The Motion to Dismiss is denied in part as to C ount IV. Relator Ernest Sharpe may file an Amended Complaint within 30 days of the date of this Order. The Court defers ruling on the United States' Motion to Intervene 62 until Americare either responds or fails to timely respond. Signed by Judge Virginia M. Hernandez Covington on 7/3/2017. (KM)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
UNITED STATES OF AMERICA, and
THE STATE OF FLORIDA, ex rel.
ERNEST SHARPE,
Plaintiffs,
v.
Case No. 8:13-cv-1171-T-33AEP
AMERICARE AMBULANCE,
Defendant.
___________________________/
ORDER
This matter comes before the Court upon consideration of
Defendant Americare Ambulance’s Motion to Dismiss, filed on
May
26,
2017
(Doc.
#
55),
and
Relator
Ernest
Sharpe’s
Response, filed on June 23, 2017 (Doc. # 61). For the reasons
that follow, the Motion to Dismiss is GRANTED IN PART as to
Counts I through III, with leave to amend, and DENIED IN PART
as to Count IV. The Court defers ruling on the United States’
Motion to Intervene, filed on June 30, 2017 (Doc. ## 62, 63),
until Americare either files a response or fails to file a
timely response.
I.
Background
Defendant Americare Ambulance provides ambulance services
to Medicare and Medicaid patients in Hillsborough County and
Polk County. (Doc. # 1 at ¶ 1).
Relator Ernest Sharpe, who
worked for Americare as a paramedic for five months, alleges
that Americare violated the federal False Claims Act and the
Florida
False
Claims
Act
by
billing
the
medically-unnecessary ambulance services.
90).
government
for
(Id. at ¶¶ 6, 80-
Sharpe also alleges that he was fired after reporting
Americare’s fraud.
(Id. at ¶¶ 91-97).
The relevant facts
follow.
Medicare covers non-emergency ambulance service if, among
other requirements, a Medicare beneficiary is “bed-confined,”
which means:
(i) The beneficiary is unable to get up from bed
without assistance.
(ii) The beneficiary is unable to ambulate.
(iii) The beneficiary is unable to sit in a chair
or wheelchair.
(Id. at ¶ 39) (citing 42 C.F.R. § 410.40(d)(1)).
Non-
emergency ambulance service is also covered if the service is
scheduled, repetitive, and:
if the ambulance provider or supplier, before
furnishing the service to the beneficiary, obtains
a written order from the beneficiary’s attending
physician certifying that the medical necessity
requirements of paragraph (d)(1) of this section
are met.
(Id. at ¶ 40) (citing 42 C.F.R. § 410.40(d)(2)).
Medicaid
imposes
similar
documentation requirements.
A.
medical-necessity
and
(Id. at ¶ 42).
The alleged scheme
When Sharpe began working for Americare on October 3,
2012, he was sent to a mandatory three-day orientation.
2
(Id.
at ¶ 45).
Jay White, the manager in charge of quality
assurance, explained that a significant number of Americare’s
claims were being returned as unpaid, and that it was his job
to find ways to “word the reports in such a way that Medicare
would pay the claims.”
(Id.).
Sharpe then attended field training with Joe Prestia.
(Id. at ¶ 46).
Prestia told Sharpe that regardless of the
patient’s status, it was important to not let the patient
“walk
around,”
and
to
document
that
the
patient
was
transferred by soft stretcher and slide sheet, as that would
assist in showing that the patient was “bed-confined.” (Id.).
According to Prestia, it was also acceptable to report that
the patient was transferred “by upper extremity lift with two
crewmembers assisting.”
(Id.).
Sharpe cites three examples of what he categorizes as
medically-unnecessary ambulance services.
Sharpe
transported
“M.S.”
from
appointment on a weekly basis.
her
(Id. at ¶¶ 48-55).
home
to
(Id. at ¶ 48).
a
dialysis
Each time,
M.S. stood in her driveway waiting for the ambulance or walked
to the ambulance parked about 150 or 200 feet away from her
home.
(Id.).
Sharpe also transported “D.V.” from her home to her
dialysis appointment.
(Id. at ¶ 50).
Each time, D.V. walked
outside, locked her door, and climbed onto the stretcher in
her driveway.
When the ambulance arrived at the dialysis
3
center, D.V. climbed off the stretcher and walked a few feet
to a chair in the waiting room.
On more than one occasion,
this occurred in the presence of Chris Barwenko, a supervisor.
(Id.).
Sharpe picked up a third patient, “C.B.,” from Astoria
Health and Rehabilitation Center and transferred him to a
dialysis appointment several times a week.
(Id. at ¶ 52).
Each time, C.B. got out of bed on his own, met Sharpe in the
hallway, and climbed onto the stretcher. Once C.B. arrived at
the dialysis center, he climbed off the stretcher, walked to
the scale and weighed himself, and walked to the dialysis
chair
for
treatment.
The
first
few
times
that
Sharpe
transported C.B., Sharpe documented that C.B. was ambulatory.
Even C.B. told Sharpe that he did not see why he needed to
travel by ambulance.
(Id.).
In the first week of November 2012, Sharpe discussed
C.B.’s transportation with Americare’s Polk County operations
manager, Brittany Hanlin.
(Id. at ¶ 54).
Hanlin told Sharpe
that Americare transported C.B. to his dialysis appointment
because if they did not, Astoria would be responsible for
paying for C.B.’s transport.
Hanlin stated that “we all win”
because Astoria received the benefit of not having to pay for
transportation, and Americare was able to charge a higher rate
for ambulance service as opposed to a cheaper option, such as
a wheelchair van.
(Id.).
4
Soon after Sharpe’s conversation with Hanlin, another
supervisor, Elliot Ortiz, told Sharpe not to use the word
“ambulate” in his reports.
(Id. at ¶ 55).
Sharpe responded
that to write anything else would be a lie.
Ortiz replied
that he was not telling Sharpe to lie, he was just telling
Sharpe not to use the word “ambulatory.”
After
that
conversation,
Sharpe
(Id.).
tried
to
comply
by
reporting that he “assisted the patient to the stretcher,” but
Sharpe was told that he needed to document that the patient
was transferred by slide sheet and soft stretcher.
¶ 56).
(Id. at
Even when it was not possible to safely transfer a
patient by this method, Sharpe was instructed to use the
phrase because it resulted in fewer Medicare denials.
B.
(Id.).
The alleged retaliation
Sharpe’s first 90 days of employment were complete on
January 3, 2013.
(Id. at ¶ 57).
Sharpe received a written
evaluation rating him as “outstanding” in every category.
(Id.).
A
few
days
later,
Heather
Thomas,
a
supervisor,
instructed Sharpe to re-write a report because it was not good
enough to get Americare reimbursed.
(Id.).
Sharpe initially
refused, but after Ortiz threatened him with suspension,
Sharpe re-wrote the report almost exactly as he had written it
5
the first time.
Sharpe informed Ortiz that he felt Americare
was committing Medicare fraud.
(Id.).
Soon after the conversation with Ortiz, Prestia told
Sharpe that his evaluation had been revised because only
supervisors could receive an “outstanding” rating.
¶ 58).
(Id. at
Sharpe’s new evaluation assessed him as “average.”
(Id. at ¶¶ 58, 78).
On February 23, 2013, Prestia told Sharpe that his
reports had been the subject of a meeting among the Americare
supervisors.
(Id. at ¶ 59).
Prestia suggested that Sharpe
make his reports look just like Prestia’s reports, which,
according to Sharpe, contained misspellings and were not
complete, but ensured Medicare reimbursement.
(Id.).
Sharpe
told Prestia that he thought he was being harassed because he
pointed out Americare’s fraudulent activities. (Id. at ¶ 60).
After that conversation, Sharpe’s reports were constantly
returned to him as deficient.
(Id. at ¶ 61).
On February 26, 2013, Sharpe reported Americare’s alleged
Medicaid and Medicare fraud to the Florida Agency for Health
Care Administration, which administers the Medicaid program in
Florida.
(Id. at ¶¶ 35, 65).
On March 1, 2013, Ortiz
presented Sharpe with a write-up for taking photos on the
clock.
(Id. at ¶ 66).
Sharpe informed Hanlin and Ortiz that
the photos were being submitted to the State of Florida in
connection with a fraud complaint.
6
(Id.).
Four days later, on March 5, 2013, Americare terminated
Sharpe after falsely accusing him of taking company files and
sabotaging Americare’s computer network.
(Id. at ¶¶ 68, 79).
On May 1, 2013, Sharpe filed the instant action under
seal, pursuant to 31 U.S.C. § 3730(b)(2). (Doc. # 1). Sharpe
alleges
violations
of
the
False
Claims
Act,
31
U.S.C.
§ 3729(a)(1)(A) and (B) (Counts I and II), violation of the
Florida False Claims Act, Fla. Stat. § 68.082(2)(g) (Count
III), and retaliation in violation of the False Claims Act,
31 U.S.C. § 3730(h) (Count IV).
(Doc. #1 at ¶¶ 80-97).
On January 5, 2017, the United States filed a notice
declining to intervene, but stating that its investigation
would continue.
(Doc. # 26).
On January 10, 2017, the Court
lifted the seal and directed Sharpe to serve the Complaint on
Americare.
(Doc. #27).
On May 26, 2017, Americare filed the
instant Motion to Dismiss (Doc. # 55), which is now ripe for
review.
On June 9, 2017, the State of Florida declined to
intervene.
(Doc. # 60).
However, on June 30, 2017, the
United States filed a Motion to Intervene, requesting 60 days
to file a Complaint in Intervention.
(Doc. # 63 at 2).
The
United States suggests that its request will moot the instant
Motion
to
Dismiss,
except
as
retaliation claim in Count IV.
7
it
(Id.).
relates
to
Sharpe’s
Because the Motion to Dismiss is ripe for review, the
merits are considered below.
The Court defers ruling on the
United States’ Motion to Intervene until Americare either
files a response or fails to timely respond.
II.
Legal Standard
On a motion to dismiss, the Court accepts as true all
allegations in the complaint and construes the facts in the
light most favorable to the plaintiff.
Jackson v. Bellsouth
Telecomms., 372 F.3d 1250, 1262 (11th Cir. 2004).
Further,
the Court favors the plaintiff with all reasonable inferences
from the allegations in the complaint.
Stephens v. Dep’t of
Health & Human Servs., 901 F.2d 1571, 1573 (11th Cir. 1990).
However, the Supreme Court explains that:
While a complaint attacked by a Rule 12(b)(6)
motion to dismiss does not need detailed factual
allegations, a plaintiff's obligation to provide
the grounds of his entitlement to relief requires
more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action
will not do. Factual allegations must be enough to
raise a right to relief above the speculative
level.
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal
citations omitted).
A court is not “bound to accept as true
a legal conclusion couched as a factual allegation.”
Papasan
v. Allain, 478 U.S. 265, 286 (1986).
Rule 9(b) of the Federal Rules of Civil Procedure imposes
more stringent pleading requirements on claims alleging fraud.
8
Clausen v. Lab. Corp. of Am., Inc., 290 F.3d 1301, 1305 (11th
Cir. 2002).
place,
The complaint must allege “facts as to time,
and
substance
specifically
the
of
details
the
of
defendant’s
the
alleged
defendant[’s]
fraud,
allegedly
fraudulent acts, when they occurred, and who engaged in them.”
Hopper v. Solvay Pharm., Inc., 588 F.3d 1318, 1324 (11th Cir.
2009).
III. Discussion
A.
Presentment of a false claim (Count I)
In
Count
I,
Sharpe
alleges
that
Americare
violated
31 U.S.C. § 3729(a)(1)(A), which creates a right of action
against any person who “knowingly presents, or causes to be
presented,
a
approval.”
false
or
fraudulent
claim
for
payment
or
To establish a violation of § 3729(a)(1)(A),
Sharpe must prove three elements: “(1) a false or fraudulent
claim, (2) which was presented, or caused to be presented, for
payment or approval, (3) with the knowledge that the claim was
false.”
United States ex rel. Phalp v. Lincare Holdings,
Inc., 857 F.3d 1148, 1154 (11th Cir. 2017).
1.
Sharpe fails to allege “presentment”
In a claim under § 3729(a)(1)(A), the key question is
whether the defendant “presented or caused to be presented” a
false claim.
Urquilla-Diaz v. Kaplan Univ., 780 F.3d 1039,
1052 (11th Cir. 2015) (quoting Hopper, 588 F.3d at 1325-26).
9
Accordingly, Sharpe “must allege the actual presentment of a
claim . . . with particularity, meaning particular facts about
the ‘who,’ ‘what,’ ‘where,’ ‘when,’ and ‘how’ of fraudulent
submissions
to
the
government.”
Id.
at
1052
(internal
quotation marks omitted).
“Providing exact billing data — name, date, amount, and
services rendered — or attaching a representative sample claim
is one way a complaint can establish” presentment of a false
claim. U.S. ex rel. Mastej v. Health Mgmt. Assocs., Inc., 591
F. App’x 693, 704 (11th Cir. 2014). “However, there is no per
se rule that an FCA complaint must provide exact billing data
or attach a representative sample claim.” Id. (citing Clausen,
290 F.3d at 1312 & n.21).
Rather, a complaint must contain
“some indicia of reliability” that a false claim was actually
submitted.
Clausen, 290 F.3d at 1311 (emphasis original).
For instance, a relator with first-hand knowledge of the
defendant’s billing practices may possess a sufficient basis
for
alleging
that
the
defendant
submitted
false
claims.
Mastej, 591 F. App’x at 704.
The Complaint alleges that Americare “submitted false
claims to Medicare for payment for ambulance transportation
services” for patients M.S., D.V., and C.B. “that did not meet
the applicable Medicare guidelines because [the patients’]
medical condition at the time was such that other means of
transportation were not contraindicated.” (Doc. # 1 at ¶¶ 49,
10
51, 53).
In addition, the Complaint alleges that Americare
“created or submitted documentation that falsely represented
that a patient was either bed-confined or that transportation
by ambulance was otherwise medically required,” and that
“claims submitted to Medicare and Medicaid . . . falsely
described the condition of certain dialysis patients on the
specific day the patient was transported[.]”1
(Id. at ¶ 70).
These allegations fall short of alleging “exact billing
data.”
Mastej, 591 F. App’x at 704.
Nonetheless, Sharpe
insists that the Complaint contains sufficient “indicia of
reliability” because Sharpe is a corporate insider, and he
personally delivered medically-unnecessary ambulance services
and witnessed Americare’s efforts to disguise the scheme by
re-writing reports.
(Doc. # 61 at 11-13).
The Court agrees that Sharpe’s allegations demonstrate
first-hand knowledge of Americare’s alleged transportation
scheme.
But the Complaint fails to connect the underlying
scheme to the actual submission of a false claim. Indeed, the
Eleventh Circuit rejected similar allegations in U.S. ex rel.
Atkins v. McInteer:
1
The Complaint also alleges that Americare, “on certain
occasions” assigned false International Classification of
Disease (ICD-9) codes and obtained physician certification
statements containing false information, but the Complaint
does not allege that the codes or certifications were part of
a claim submitted for payment. (Doc. # 1 at ¶¶ 71-72).
11
In the case at hand, the complaint fails rule 9(b)
for want of sufficient indicia of reliability to
support the assertion that
the defendants
submitted false claims. As the plaintiff did in
Clausen, Atkins has described in detail what he
believes is an elaborate scheme for defrauding the
government by submitting false claims. He cites
particular patients, dates and corresponding
medical records for services that he contends were
not eligible for government reimbursement. Just
like the Clausen plaintiff, though, 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.
470
F.3d
1350,
1358-59
(11th
Cir.
2006)
(emphasis
in
original); see also Clausen, 290 F.3d at 1311-12.
Sharpe’s authority does not support a contrary result.
In Matheny, the Eleventh Circuit held that the relator’s
allegations possessed the requisite indicia of reliability
because
the
relator
“personally
participated
in
the
manipulation” of account data submitted to the government, and
the relator provided “detailed allegations of the accounting
records . . . and his involvement with the patient accounts.”
U.S. ex rel. Matheny v. Medco Health Sols., Inc., 671 F.3d
Likewise, in Walker, a
1217, 1221, 1230 (11th Cir. 2012).
nurse
practitioner
alleged
that
she
received
direct
instructions about how to bill services and also had at least
one
personal
conversation
about
the
defendant’s
practices with the defendant’s office manager.
billing
U.S. ex rel.
Walker v. R&F Props. of Lake Cty., Inc., 433 F.3d 1349, 1360
12
(11th Cir. 2005).2
Here, by contrast, the Complaint does not
allege that Sharpe possesses any knowledge of the claims
process, nor does the Complaint even allege that Sharpe’s
allegedly false reports were presented as part of a claim to
the government.
Of course, one could assume that Americare would not have
instructed Sharpe to alter his reports unless Americare was
actually submitting false claims for reimbursement.
And
similarly, one could assume that Hanlin would not have told
Sharpe that “we all win” unless Americare actually received
payment.
But to state a claim under § 3729(a)(1)(A), Sharpe
must do more than allege that it is “likely” that claims were
submitted to the government.
Clausen, 290 F.3d at 1313.
The
Court “cannot be left wondering whether a plaintiff has
offered mere conjecture or a specifically pleaded allegation
on an essential element of the lawsuit.”
Id.
Based on the foregoing, Count I is due to be dismissed.
However, the Court denies Americare’s request for dismissal
with prejudice. (Doc. # 55 at 17-18). Pursuant to Rule 15(a)
of the Federal Rules of Civil Procedure, “[t]he court should
freely give leave [to amend] when justice so requires.”
2
In
Sharpe also references this Court’s recent decision in
United States v. Premier Hospitalists PL, but in that case,
two relators alleged that they possessed detailed first-hand
knowledge of the defendants’ billing and coding practices.
No. 8:14-cv-2952-T-33TBM, 2017 WL 119773, at *5-7 (M.D. Fla.
Jan. 12, 2017).
13
this case, the Sharpe’s delay in requesting amendment is due
to the government’s protracted investigation under 31 U.S.C.
§ 3730(b)(2)-(3) and Fla. Stat. § 68.083(2)-(3).
And it does
not appear that amendment would be futile, particularly given
that Sharpe has not previously amended the complaint.
Cf.
Corsello v. Lincare, Inc., 428 F.3d 1008, 1015 (11th Cir.
2005) (affirming the denial of leave to amend where the
relator had already amended twice and unnecessarily delayed
his request to amend).
2. The Sharpe also fails to allege “falsity”
In
addition
to
challenging
the
presentment
prong,
Americare argues that Sharpe fails to allege a “false” claim
for two reasons. First, Americare maintains that the question
of whether ambulance transport is “medically necessary” is a
subjective judgment incapable of being “objectively false.”
(Doc. # 12 at 13).
Second, Americare contends that the issue
of medical necessity is irrelevant for any claim for services
prior to November 16, 2012, as the regulation then in effect
did not require a showing of medical necessity if a physician
certified the transport.
(Id. at 14-15).
Relying on facts
not pleaded in the Complaint, Americare assumes the transports
at issue were supported by physician certifications.
15).
Sharpe forcefully disputes these points.
13-19).
14
(Id. at
(Doc. # 61 at
The Court finds that resolution of the parties’ arguments
is premature because Sharpe fails to allege the element of
falsity with particularity. See Matheny, 671 F.3d at 1225 (“a
relator must identify the particular document and statement
alleged to be false”).
Courts typically identify three
different types of false claims: (1) “factually false” claims,
(2) claims that are “legally false” based on an express
certification, and (3) claims that are “legally false” based
on an implied certification.
Michael Holt & Gregory Klass,
Implied Certification Under the False Claims Act, 41 Pub.
Cont. L.J. 1, 15-16 (2011).
for
example,
“A factually false claim occurs,
when
a
the
[services]
misidentifies
supplier
submits
a
supplied
claim
or
that
requests
reimbursement for [services] that it never provided.”
United
States ex rel. Phalp v. Lincare Holdings, Inc., 116 F. Supp.
3d 1326, 1344 (S.D. Fla. 2015), aff’d as modified, 857 F.3d
1148 (11th Cir. 2017).
In other words, “the supplier falsely
bills the government for something not received.”
A
claim
is
legally
false,
under
an
Id.
express
false-
certification theory, when the defendant falsely certifies its
compliance
with
an
applicable
regulation, or contractual term.
federal
statute,
federal
United States v. The Boeing
Co., 825 F.3d 1138, 1148 (10th Cir. 2016); U.S. ex rel. Hobbs
v. MedQuest Assocs., Inc., 711 F.3d 707, 714 (6th Cir. 2013).
Conversely, under an implied false-certification theory, a
15
defendant is liable for failing to disclose its non-compliance
with
a
material
statutory,
regulatory,
or
contractual
provision if: (1) “the claim does not merely request payment,
but also makes specific representations about the goods or
services
provided,”
disclose
.
.
half-truths.”
.
and
makes
(2)
“the
those
defendant’s
failure
representations
to
misleading
Universal Health Servs., Inc. v. United States
ex rel. Escobar, 136 S. Ct. 1989, 1999-2001 (2016) (adopting
implied
false-certification
theory
under
31
U.S.C.
§ 3729(a)(1)(A)).
Here, it is not clear under which theory of “falsity”
Sharpe is proceeding.
Sharpe fails to allege within Count I
what specific facts or certifications rendered the claims
false and why they were false.
Instead, the Complaint relies
on bare legal conclusions (Doc. # 1 at ¶¶ 81-82, 84-85, 87-90,
92-97) and improperly incorporates all preceding allegations
by reference (Id. at ¶¶ 80, 83, 86, 91), a hallmark of
“shotgun” pleading.
Weiland v. Palm Beach Cty. Sheriff’s
Office, 792 F.3d 1313, 1321 (11th Cir. 2015); Speaker v. U.S.
Dep’t of Health & Human Servs. Ctrs. for Disease Control &
Prevention, 623 F.3d 1371, 1381 (11th Cir. 2010).
If Sharpe amends Count I, he must remedy these defects
and include the necessary supporting facts, either within the
body of Count I or by incorporating specific paragraphs by
reference.
Americare may re-assert its arguments relating to
16
falsity in a future motion, but Americare shall refrain from
relying on facts outside of the pleadings.
B.
False statement material to a false claim (Count II)
In Count II, Sharpe alleges a violation of 31 U.S.C.
§ 3729(a)(1)(B), which creates a cause of action against any
person who “knowingly makes, uses, or causes to be made or
used, a false record or statement material to a false or
fraudulent claim.”
In contrast to Sharpe’s claim in Count I,
a claim under § 3729(a)(1)(B) “does not demand proof that the
defendant presented or caused to be presented a false claim to
the
government
statement
or
itself
that
was
the
ever
Hopper, 588 F.3d at 1327.
defendant’s
submitted
to
false
the
record
or
government.”
Rather, “[t]o prove a claim under
§ 3729(a)(1)(B), a relator must show that: (1) the defendant
made (or caused to be made) a false statement, (2) the
defendant knew it to be false, and (3) the statement was
material to a false claim.”
Phalp, 857 F.3d at 1154.
The Complaint fails to identify what “false record or
statement” is at issue and why the statement was “material” to
a false claim.
amend.
Count II is therefore dismissed with leave to
Because § 3729(a)(1)(A) and § 3729(a)(1)(B) provide
distinct theories of liability, Sharpe must tailor the facts
alleged in Counts I and II to support the specific elements of
those claims.3
3
See United States v. Depuy Orthopaedics, Inc., 159 F.
(continued...)
17
C.
Florida False Claims Act (Count III)
In Count III, Sharpe alleges a violation of the Florida
False Claims Act (“FFCA”).
The caption to Count III cites
Fla. Stat. § 68.082(2)(g), the so-called “reverse false claim”
provision, which imposes liability when a defendant “avoid[s]
the payment of money due to the government, as opposed to
submitting to the government a false claim.” United States v.
Space Coast Med. Assocs., L.L.P., 94 F. Supp. 3d 1250, 1263
(M.D. Fla. 2015).
Within Count III, however, Sharpe quotes
statutory language from two different sections of the FFCA,
Fla. Stat. § 68.082(2)(a) and (b). (Doc. # 1 at ¶¶ 88-89).
Those sections parallel the violations of the federal False
Claims Act pleaded in Counts I and II.
To the extent that Sharpe intends to bring parallel
claims under the FFCA, Sharpe does not dispute that these
3
(...continued)
Supp. 3d 226, 252 (D. Mass. 2016) (distinguishing “pleading
standards for direct claims, or sales to the government,
which are governed by 31 U.S.C. § 3729(a)(1)(A), from
indirect claims to the government where a defendant causes
third-parties to submit false claims, which are governed by
31 U.S.C. § 3729(a)(1)(B)”); United States v. Savannah River
Nuclear Sols., LLC, No. 1:16-cv-00825-JMC, 2016 WL 7104823,
at *22 (D.S.C. Dec. 6, 2016) (explaining that under 31 U.S.C.
§ 37291(a)(1)(B), “an FCA defendant (such as a subcontractor)
may be liable for statements made to a third party (such as
a prime contractor) which the prime contractor uses in its
claim for payment or approval from the government”); Hopper,
588 F.3d at 1328 (explaining that under the former version of
§
37291(a)(1)(B),
“[a]
defendant’s
false
statements
themselves need not be presented to the government, and the
defendant need not personally submit a false claim.”)
18
claims are subject to the same pleading standards as Counts I
and II.
Klusmeier v. Bell Constructors, Inc., 469 F. App’x
718, 719 n.1 (11th Cir. 2012); United States v. LifePath
Hospice, Inc., No. 8:10-cv-1061-T-30TGW, 2016 WL 5239863, at
*8 (M.D. Fla. Sept. 22, 2016).
Accordingly, Sharpe’s claim
for violations of Fla. Stat. § 68.082(2)(a) and (b) fails for
the reasons stated above, and Count III is dismissed with
leave to amend.
If Sharpe re-pleads, Sharpe must clarify under which
section or sections of the FFCA he is proceeding.
If Sharpe
alleges a violation of more than one section of the FFCA, he
must plead the violations in separate counts.
D.
Retaliation (Count IV)
In Count IV, Sharpe alleges that he was terminated in
retaliation for his protected conduct under the False Claims
Act, in violation of 31 U.S.C. § 3720(h). (Doc. # 1 at ¶¶ 9395). Because the retaliation claim does not require a showing
of fraud, it is not subject to Rule 9(b).
U.S. ex rel.
Sanchez v. Lymphatx, Inc., 596 F.3d 1300, 1304 (11th Cir.
2010).
The False Claims Act prohibits the termination of an
employee “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.” 31 U.S.C.
19
§ 3760(h)(1).
Americare argues that the Complaint fails to
allege the requisite protected activity because it does not
allege that Sharpe objected to “fraudulent actionable medical
practices i.e. actual false bills.”
(Doc. # 55 at 16).
Americare relies on a district court decision holding
that a relator failed to allege protected activity where her
reports of misconduct were “compliance related,” rather than
“specifically
concerned
with
fraudulent
billings
to
the
government.” Farnsworth v. HCA, Inc., No. 8:15-cv-65-T-24MAP,
2015 WL 3453621, at *7 (M.D. Fla. May 29, 2015).
case,
Sharpe
alleges
that
he
“refused
to
But in this
write
reports
according to Americare’s directives and informed management
that Americare was knowingly committing fraud,” which resulted
in lower performance evaluations.
(Doc. # 1 at ¶
78).
Sharpe also alleges that he “informed Americare that he filed
a complaint with the government informing the government that
Americare was committing Medicare fraud,” which resulted in
his termination.
(Id. at ¶ 79).
Those allegations plausibly
allege protected activity. See Sanchez, 596 F.3d at 1303-1304
(holding, under previous version of § 3730(h), that relator’s
allegations were sufficient where she “complained again and
again about the unlawful actions of the Defendants” and “told
them that they were all incurring significant criminal and
civil liability”); see also United States v. Wellcare Health
Plans, Inc., No. 8:12-CV-2032-T-30EAJ, 2016 WL 1077359, at *4
20
(M.D. Fla. Mar. 18, 2016) (observing that the current version
of § 3730(h) more broadly defines protected activity).
To the extent Americare suggests that Sharpe must allege
an underlying violation of the False Claims Act in order to
state
a
retaliation
claim,
the
Court
is
not
persuaded.
“[P]roving a violation of § 3729 is not an element of a
§
3730(h)
cause
of
action.”
Graham
Cty.
Soil
&
Water
Conservation Dist. v. U.S. ex rel. Wilson, 545 U.S. 409, 416
n.1 (2005); Sanchez, 596 F.3d at 1304 n.6; Hoyte v. Am. Nat’l
Red Cross, 518 F.3d 61, 67 (D.C. Cir. 2008). Therefore, Count
IV survives.
IV.
Conclusion
Based on the foregoing, it is ORDERED, ADJUDGED, and
DECREED that:
(1) Defendant Americare Ambulance’s Motion to Dismiss
(Doc. # 55) is GRANTED IN PART, to the extent that Counts I,
II, and III of the Complaint are dismissed without prejudice
and with leave to amend consistent with the instructions in
this Order.
The Motion to Dismiss is DENIED IN PART as to
Count IV.
(2) Relator Ernest Sharpe may file an Amended Complaint
within 30 days of the date of this Order.
21
(3) The Court defers ruling on the United States’ Motion
to Intervene (Doc. ## 62, 63), until Americare either responds
or fails to file a timely response.
DONE and ORDERED in Chambers in Tampa, Florida, this 3rd
day of July, 2017.
22
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