Napoli et al v. Premier Hospitalists PL et al
Filing
79
ORDER: Defendants Premier Hospitalists PL and Manish Sharma's Motion to Dismiss (Doc. # 69 ) is denied. Defendant Primed Billing LLC's Motion to Dismiss (Doc. # 70 ) is denied. Signed by Judge Virginia M. Hernandez Covington on 1/12/2017. (DMD)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
UNITED STATES OF AMERICA
and THE STATE OF FLORIDA,
ex rel. VINCENT NAPOLI,
UNHA SIN and UNJEN SIN,
Plaintiffs,
v.
Case No.: 8:14-cv-2952-T-33TBM
PREMIER HOSPITALISTS PL,
PRIMED BILLING LLC, and
MANISH SHARMA, DO, individually,
Defendants.
______________________________/
ORDER
This cause comes before the Court pursuant to Defendants
Manish Sharma, DO, and Premier Hospitalists, PL’s Motion to
Dismiss the Second Amended Complaint (Doc. # 69), filed on
November 8, 2016, and Defendant Primed Billing LLC’s Motion
to Dismiss (Doc. # 70), filed on November 15, 2016. Plaintiff
relators Vincent Napoli, Unha Sin, and Unjen Sin filed a
response on December 22, 2016 (Doc. # 76). For the reasons
that follow, the Motions are denied.
I.
Background
Dr. Sharma is the founder and owner of Premier, which
provides patient care and clinical management services to
hospitals. (Doc. # 64 at ¶¶ 2-3). Specifically, Premier
1
contracts
with
Tampa
General
Hospital
and
St.
Joseph’s
Hospital to provide medical care to patients by hiring nurse
practitioners, physician assistants, and physicians to visit
those hospitals and perform “rounds.” (Id. at ¶¶ 27-28).
Defendant Primed provides full-service practice and billing
management solutions to medical practices. (Id. at ¶ 4).
Primed handled the billing for Premier until August of 2014,
at which point Premier began using a new billing service
provider. (Id.).
Unha Sin began working for Premier on February 9, 2014,
as a nurse practitioner. (Id. at ¶ 6). She worked closely
with Dr. Sharma until her employment with Premier ended on
November 5, 2014. (Id.). As a result of her nine month
employment, Unha Sin had “in-depth knowledge of Premier’s
fraudulent billing practices.” (Id.).
Napoli worked as the Vice President of Premier from May
of 2014, until about October 15, 2014. (Id. at ¶ 5). In that
position, Napoli also “worked closely with Dr. Sharma and has
in-depth knowledge of Premier’s fraudulent billing practices”
because his job entailed, among other duties: “entering into
contracts on behalf of Premier with hospitals and patient
care facilities”; “hiring and firing office staff”; and,
“representing Premier in meetings with hospitals, patient
2
care facilities, and various corporate officers of hospitals
and other medical care facilities.” (Id.).
Unjen Sin, the sister of Unha Sin, is employed by Premier
as a medical administrator. (Id. at ¶ 7). Unjen Sin “worked
closely
with
Dr.
Sharma
and
has
in-depth
knowledge
of
Premier’s fraudulent billings practices.” (Id.). One of Unjen
Sin’s duties was “to put together a matrix, a daily log of
all the billing codes from all the providers and to send [it]
to Primed.” (Id. at ¶ 60).
Through
their
respective
positions
with
Premier,
Plaintiffs state that they became aware of the existence of
three different “schemes” by Dr. Sharma and Premier through
which false claims were submitted to the Government. First,
Premier billed for services performed by nurse practitioners
and physician assistants as though the physician performed
the service, because physicians charge higher rates. (Id. at
¶¶ 27-74).
Plaintiffs’ description of the first scheme contains
numerous new allegations. According to Plaintiffs, Napoli
“began
an
investigation
into
the
billing
practices”
of
Premier because the monthly billing summaries that Primed
returned to Premier showed that Premier and Dr. Sharma “were
not collecting sufficient sums from the amounts billed to
3
Medicare/Medicaid.” (Id. at ¶ 44). During that investigation,
Napoli reviewed the billing documents and saw that Premier’s
physicians were billing for more than 24 hours in a day, as
well as billing for the time that nurse practitioners and
physician
assistants
visited
patients,
even
though
the
physicians never treated those patients. (Id. at ¶¶ 45-46).
For
example,
Dr.
Venzor’s
“billing
reflected
billing
Medicare/Medicaid 45 hours in a 24 hour day just on his
patients.” (Id. at ¶ 45). Napoli “found over 100 patients
that will [sic] simultaneously billed as if both [Dr.] Sharma
and [Dr.] Daram examined the patients on the same days from
the monthly billing statements.” (Id. at ¶ 55).
Napoli spoke with three nurse practitioners and two
physicians employed by Premier about Dr. Sharma and Premier’s
billing practices. (Id. at ¶ 48). “Each confirmed that Dr.
Sharma mandated that they charge as if they saw the patients
for the maximum amounts of time” that could be billed for
treatment. (Id. at ¶ 50). Dr. Venzor “informed Napoli that he
followed the upcoding and billing policy of Dr. Sharma.” (Id.
at ¶ 59). Dr. Daram told Napoli that she also “followed [Dr.]
Sharma’s billing scheme and billing policy” and “like [Dr.]
Sharma and [Dr.] Venzor would log into the EPIC records system
at Tampa General Hospital, and sign off on the notes and
4
reports
of
the
[nurse
practitioners
and
physician
assistants], as if they followed up and saw the patients when
they did not.” (Id. at ¶¶ 51, 53). While creating the matrix
of daily billing codes, Unjen Sin saw that the codes billed
by physicians working at Premier often “reflected again more
than 24 hours” worth of patient treatment in a single day,
and that the coded services “were then billed by Primed to
Medicare/Medicaid . . . on [a] routine basis . . . and thus
summarized back to Premier by Primed on a monthly report
basis.” (Id. at ¶¶ 60-61).
Additionally,
according
to
Plaintiffs,
Dr.
Daram
expressed to Napoli her concern that she would lose her
license because of Premier’s billing practices, and that she
was looking for another job as a result. (Id. at ¶ 54). The
nurse practitioner Sandy Phillips told Napoli that she was
resigning because she was afraid she would lose her license
because of the fraudulent billing practices. (Id. at ¶ 62).
In the second alleged scheme, Dr. Sharma allowed other
physicians,
who
did
not
possess
their
own
Medicaid
and
Medicare numbers, to bill for services using his Medicaid and
Medicare numbers. (Id. at ¶¶ 75-83). Dr. Sharma hired other
physicians as “moonlighters” — temporary employees whom Dr.
Sharma paid $400 per patient when Premier was understaffed.
5
(Id. at ¶¶ 75-77). Dr. Sharma would then bill Medicare for
the moonlighters’ services under his Medicare number. (Id. at
¶ 78). Plaintiffs state that Primed, “through communications
with Dr. Sharma, was well aware that it was billing Medicare
and Medicaid for patients never seen by Dr. Sharma yet were
billed under his name.” (Id. at ¶ 79).
The third scheme involved the intentional “upcoding” of
services by Dr. Sharma and Premier. (Id. at ¶¶ 84-95). Code
99223, for intensive care services, “pays a significantly
higher amount from Medicare than other codes.” (Id. at ¶ 87).
Dr. Sharma instructed his billing director, Lance Myers, “to
change the billing codes to reflect that Premier’s providers
were performing intensive care services when in reality they
were not.” (Id.). Then, “Myers submitted the bills to Primed
who in turn submitted them to Medicare and Medicaid.” (Id. at
¶ 88).
Plaintiffs assert that the fraudulent practices were
perpetrated
by
Premier,
Dr.
Sharma,
and
Primed
as
co-
conspirators. (Id. at ¶ 8). Plaintiffs allege that Napoli,
during his investigation, confronted the owners and managers
of Primed Billed, who “confirmed that they were aware of the
[Dr.] Sharma and Premier billing policies and that was how
they do things with their agreement with [Dr.] Sharma.” (Id.
6
at ¶ 58). According to Plaintiffs, Primed conspired with
Premier and Dr. Sharma and processed Premier’s billing claims
because Primed received a five percent commission of all fees
recovered from Medicare by Premier. (Id. at ¶ 90).
On November 25, 2014, Plaintiffs filed their Complaint
against Premier, Dr. Sharma, and Primed under seal, alleging
violations of the False Claims Act, 31 U.S.C. § 3729(a), and
the Florida False Claims Act, Fla. Stat. §§ 68.081, et seq.
(Doc. # 1). On February 12, 2016, the Government declined to
intervene. (Doc. # 10). Plaintiffs filed an Amended Complaint
on June 10, 2016. (Doc. # 41). In response, Defendants filed
Motions to Dismiss, pursuant to Rules 9(b) and 12(b)(6), which
were granted with leave to amend on September 29, 2016. (Doc.
## 43-44, 57).
Plaintiffs
filed
their
Second
Amended
Complaint
on
October 21, 2016. (Doc. # 64). Defendants filed Motions to
Dismiss, arguing that the Second Amended Complaint suffers
from the same flaws as the Amended Complaint. (Doc. ## 69,
70). Plaintiffs filed a response on December 22, 2016. (Doc.
# 76). The Motions are ripe for review.
II.
Legal Standard
On a motion to dismiss, this Court accepts as true all
the allegations in the complaint and construes them in the
7
light most favorable to the plaintiff. Jackson v. Bellsouth
Telecomms., 372 F.3d 1250, 1262 (11th Cir. 2004). Further,
this
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)(“On a motion to dismiss, the facts stated in [the]
complaint and all reasonable inferences therefrom are taken
as true.”)
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). Courts are not “bound to accept as true
a legal conclusion couched as a factual allegation.” Papasan
v. Allain, 478 U.S. 265, 286 (1986). Furthermore, “[t]he scope
of
review
must
be
limited
to
the
four
corners
of
the
complaint.” St. George v. Pinellas Cty., 285 F.3d 1334, 1337
(11th Cir. 2002).
8
III. Analysis
Rule
8(a)
of
the
Federal
Rules
of
Civil
Procedure
requires “a short and plain statement of the claim showing
that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a).
However, Rule 9(b) of the Federal Rules of Civil Procedure
places more stringent pleading requirements on cases alleging
fraud. Clausen v. Lab. Corp. of Am., Inc., 290 F.3d 1301,
1305 (11th Cir. 2002). Rule 9(b) is satisfied only if the
complaint sets forth:
(1) precisely what statements were made in what
documents or oral representations or what omissions
were made, (2) the time and place of each such
statement and the person responsible for making
(or, in the case of omissions, not making) [the]
same, (3) the content of such statements and the
manner in which they misled the plaintiff, and (4)
what the defendants obtained as a consequence of
the fraud.
Ziemba v. Cascade Int'l, Inc., 256 F.3d 1194, 1202 (11th Cir.
2001). Thus, when a FCA claim is at issue, district courts
must disregard assertions of law and conclusory statements of
fact regarding a defendant’s alleged fraudulent submissions
to the Government. See Clausen, 290 F.3d at 1312. Furthermore,
the Eleventh Circuit held:
Rule 9(b) requires “some indicia of reliability .
. . in the complaint to support allegations of an
actual false claim for payment being made to the
Government.” Clausen, 290 F.3d at 1311. Plaintiffs
need not prove their allegations in the complaint
9
but must provide particular facts so the Court is
not “left wondering whether a plaintiff has offered
mere
conjecture
or
a
specifically
pleaded
allegation on an essential element of the lawsuit.”
Id. at 1313.
Mitchell v. Beverly Enters., Inc., 248 F. App’x 73, 74–75
(11th Cir. 2007)(citing Clausen, 290 F.3d at 1311)(emphasis
in original).
“Rule
9(b)
exists
to
prevent
spurious
charges
and
provide notice to defendants of their alleged misconduct, not
to require plaintiffs to meet a summary judgment standard
before proceeding to discovery.” United States ex rel. Kunz
v. Halifax Hosp. Med. Ctr., No. 6:09-cv-1002-Orl-31DAB, 2011
WL 2269968, at *8 (M.D. Fla. June 6, 2011)(citing United
States ex rel. Longest v. Dyncorp, No. 6:03-cv-816-Orl-31JGG,
2006 WL 47791, at *5 (M.D. Fla. Jan. 9, 2006)). Thus, “[w]hen
considering a motion to dismiss for failure to plead fraud
with particularity, the Court must be careful to harmonize
the directives of Fed. R. Civ. P. Rule 9(b) with the broader
policy of notice pleading.” United States ex rel. Childress
v. Ocala Heart Inst., Inc., No. 5:13-cv-470-Oc-22PRL, 2015 WL
10742765, at *2 (M.D. Fla. Nov. 23, 2015).
The FCA permits private persons to file qui tam actions
on behalf of the United States against any person who:
10
(a)(1)(A) knowingly presents, or causes to be presented,
a false or fraudulent claim for payment or approval;
(a)(1)(B) knowingly makes, uses, or causes to be made or
used, a false record or statement material to a false or
fraudulent claim;
(a)(1)(C)
conspires
to
commit
a
violation
subparagraph (A), (B), (D), (E), (F), or (G); [or]
of
(a)(1)(G) knowingly makes, uses, or causes to be made or
used, a false record or statement material to an
obligation to pay or transmit money or property to the
Government, or 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). Plaintiffs allege violations of all four
subsections.
To succeed on an FCA claim, a relator must prove: “(1)
a false or fraudulent claim; (2) which was presented, or
caused to be presented, by the defendant[s] to the United
States for payment or approval; (3) with knowledge that the
claim was false.” United States ex rel. Walker v. R & F Props.
of Lake City, Inc., 433 F.3d 1349, 1355 (11th Cir. 2005).
“Because the Florida False Claims Act is modeled after the
Federal False Claims Act, the claims will be analyzed using
the same general standards.” United States v. Cypress Health
Sys. Fla., Inc., No. 1:09CV137-SPM-GRJ, 2012 WL 467894, at *1
(N.D. Fla. Feb. 14, 2012); see also United States ex rel.
11
Heater v. Holy Cross Hosp., Inc., 510 F. Supp. 2d 1027, 1034
n.5 (S.D. Fla. 2007).
A. Presentment and False Statement
The submission of a false claim for payment to the
Government
is
“the
sine
qua
non
of
a
False
Claims
Act
violation.” Clausen, 290 F.3d at 1311. Plaintiffs, insiders
of Premier, pled in detail improper billing practices by
Premier and Dr. Sharma, which they claim led to false claims
being presented to and paid by the Government. Furthermore,
Plaintiffs allege that Primed participated in a conspiracy
with Dr. Sharma and Premier to implement these schemes in
order
to
increase
profits
for
all
Defendants.
Although
Plaintiffs do not identify a specific false claim submitted
to the Government, the Court finds that the Second Amended
Complaint contains sufficient indicia of reliability to meet
the pleading requirements of Rule 9(b).
Plaintiffs argue that they are analogous to the relators
in Hill v. Morehouse Medical Associates, Inc., No. 02-14429,
2003 WL 22019936 (11th Cir. Aug. 15, 2003), and Walker, 433
F.3d 1349. The Court agrees. In Hill, the Eleventh Circuit
reversed the dismissal of a FCA complaint, finding that a
former medical billing and coding employee satisfied Rule
9(b)’s particularity requirement when she claimed in her
12
complaint that she had firsthand knowledge of her employer’s
submission of false claims. Hill, 2003 WL 22019936, at *5.
Hill worked for seven months in the department responsible
for claims submission. Id. at *4. Hill saw the defendant’s
billers, coders, and physicians alter various billing codes
and thus submit false claims for Medicare reimbursement to
the Government:
Hill asserted that she observed Sylvia Washington,
Theresa Bougelow, and Nicole Toomer change the
diagnosis code for routine physical examinations,
which are not reimbursed by Medicare, twenty-five
to thirty times per week. Based upon information
and belief, she further alleged that these changes
were made at the instruction of Pat Newbill, the
manager of MMA’s billing and coding department.
Id. at *1 (emphasis added).
In Walker, relator Walker, who was a nurse practitioner
like Unha Sin, was not provided with her own Medicare billing
number. Walker, 433 F.3d at 1360. Walker was responsible for
billing the services she provided and was “instructed each
day which doctor she would be billing under.” Id. (citation
omitted). She was instructed to bill all services she provided
as “incident to the service of a physician,” even when that
was not the case. Id. When Walker questioned this practice,
she
was
defendant
informed
“billed
by
all
the
office
nurse
13
administrator
practitioner
and
that
the
physician
assistant services as rendered ‘incident to the service of a
physician’”
and
never
billed
these
services
in
another
manner. Id. Thus, Walker had alleged sufficient firsthand
knowledge of her employer’s billing practices because she was
instructed
to
bill,
and
had
billed,
her
services
under
improper billing codes. Id.; see also United States ex rel.
Mastej v. Health Mgmt. Assocs., Inc., 591 F. App’x 693, 704
(11th Cir. 2014)(“[A] plaintiff-relator without firsthand
knowledge of the defendants’ billing practices is unlikely to
have a sufficient basis for such an allegation”).
Although none of the Plaintiffs personally submitted
fraudulent bills, they allege that they gained firsthand
knowledge of the fraudulent billing practices at Premier
through their work. According to Plaintiffs, Napoli, having
served as Vice President of Premier for five months, had
access
to
numerous
billing
documents,
and
a
privileged
position from which to observe Dr. Sharma’s billing and coding
practices,
as
well
as
Dr.
Sharma’s
communications
with
Primed. Cf. Mastej, 591 F. App’x at 708 (reversing dismissal
of FCA claim where the relator, as vice president of one
defendant, “had direct information about both [defendants’]
billings, revenues and payor mix, and he was in the very
meetings where Medicare patients and the submission of claims
14
to Medicare were discussed”). Napoli, after discussion with
Dr. Sharma, undertook an investigation of Premier’s billing
records
to
determine
why
Premier
did
not
receive
full
reimbursement from the Government. (Doc. # 64 at ¶ 44). During
that investigation, Napoli had access to Premier’s medical
records and the billing summaries provided by Primed to
Premier, which summarized the bills submitted and reimbursed
by the Government each month. (Id. at ¶¶ 45, 55).
Additionally,
discovering
Plaintiffs
apparent
fraud
allege
in
the
that
Napoli,
billing
after
documents,
interviewed numerous Premier employees. Dr. Daram and Dr.
Venzor confirmed to Napoli that Dr. Sharma had a policy of
billing
the
maximum
time
allowable
to
each
patient,
regardless of how much time was actually spent, and of billing
for treatment performed solely by nurse practitioners and
physician assistants as if the physicians had also treated
the patients. (Id. at ¶¶ 49, 51, 53, 59). According to the
Plaintiffs, Dr. Daram and Dr. Venzor admitted that they
submitted false billing of their time in accordance with this
policy. (Id. at ¶¶ 51, 59).
Finally, Plaintiffs allege that Unjen Sin’s work as a
medical administrator for Premier also gave her reliable
firsthand knowledge of Defendants’ fraudulent practices. See
15
Hill, 2003 WL 22019936, at *4 (“Most important, . . . Hill
was privy to MMA’s files, computer systems, and internal
billing practices that are vital to her legal theory . . .”);
see also Mastej, 591 F. App’x at 704 (“a plaintiff-relator
without
firsthand
knowledge
of
the
defendants’
billing
practices is unlikely to have a sufficient basis for such an
allegation”). Because her job entailed creating a matrix of
all the codes billed by Premier to be submitted to Primed,
Unjen Sin saw firsthand that the codes billed by physicians
working at Premier often “reflected again more than 24 hours”
worth of patient treatment in a single day, and that the coded
services “were then billed by Primed to Medicare/Medicaid .
. . on [a] routine basis . . . and thus summarized back to
Premier by Primed on a monthly report basis.” (Id. at ¶ 60);
see Hill, 2003 WL 22019936, at *4 (“[S]he alleged that she
observed MMA billers, coders, and physicians alter various
CPT and diagnosis codes over the course of seven months and
thus submit false claims for Medicare reimbursement to the
Government”).
Thus, taking the Second Amended Complaint’s allegations
as true, Plaintiffs provide a factual basis to support that
Napoli, as Vice President, and
Unjen Sin, as a medical
administrator, had firsthand knowledge of the Defendants’
16
billing practices like the relators in Hill and Walker. The
detailed description of the allegedly fraudulent schemes, and
insider knowledge of and access to billing logs and summaries
lend
the
Second
Amended
Complaint
sufficient
indicia
of
reliability to satisfy Rule 9(b). Cf. Longest, 2006 WL 47791,
at *5 (“Longest has provided far more than mere conclusory
allegations
of
fraudulent
schemes
or
false
claims
for
payment. She routinely provides specific examples, . . . of
instances in which Dyncorp paid its employees and billed the
Government . . . . And her allegations are buttressed by her
status as a corporate insider with extensive familiarity with
Dyncorp’s billing practices and contractual obligations.”).
Regarding the applicability of Hill and Walker to the
Court’s analysis, the Eleventh Circuit has written that “to
the
extent
requirements
that
Walker
of
Clausen,
conflicts
our
with
the
specificity
prior-panel-precedent
rule
requires us to follow Clausen.” Unites States ex rel. Sanchez
v. Lymphatx, Inc., 596 F.3d 1300, 1303 (11th Cir. 2010).
Similarly, if there is any conflict between Hill and Clausen,
the Court is bound to follow Clausen. Unites States ex rel.
Atkins
v.
McInteer,
470
F.3d
1350,
1358
(11th
Cir.
2006)(“[T]he prior panel rule would dictate that Clausen
17
supersedes Hill to the extent that Hill is inconsistent with
Clausen.”).
However,
the
Court
does
not
find
Hill
and
Walker
inconsistent with Clausen. See United States ex rel. Brunson
v. Narrows Health & Wellness, LLC, 469 F. Supp. 2d 1048, 1051
(N.D. Ala. 2006)(“With respect to the potential conflict
between Hill and Clausen, the court concludes that the two
cases are not fundamentally inconsistent.”). In Clausen, the
Eleventh Circuit emphasized that Clausen was a competitor of
the
defendant,
rather
than
an
insider
with
firsthand
knowledge of the defendant’s fraudulent practices. Clausen,
290 F.3d at 1314. Regarding the value of insider knowledge,
the court acknowledged that “an insider might have an easier
time
obtaining
information
about
billing
practices
and
meeting the pleading requirements under the [FCA].” Id.
Furthermore, “there is no per se rule that an FCA
complaint
must
provide
exact
billing
data
or
attach
a
representative sample claim.” Mastej, 591 F. App’x at 704
(citing Clausen, 290 F.3d at 1312 & n.21). Rather, “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
(emphasis original). “A relator can also provide the required
18
indicia of reliability by showing that he personally was in
a position to know that actual false claims were submitted to
the government and had a factual basis for his alleged
personal knowledge.” Mastej, 591 F. App’x at 707 (citing
Walker, 433 F.3d at 1360; Hopper v. Solvay Pharm., Inc., 588
F.3d 1318, 1326 (11th Cir. 2009)); see also Childress, 2015
WL 10742765, at *3 (“A relator may also provide sufficient
indicia
of
reliability
that
false
claims
were
submitted
through first-hand knowledge of such submission.”).
In Hill and Walker, as in this case, the relators were
insiders to the respective defendants with personal knowledge
of the defendants’ fraudulent billing practices that provided
their complaints with the indicia of reliability required by
Clausen. Here, Plaintiffs have provided similar indicia of
reliability:
recounted
they
have
confirmations
described
by
the
schemes
in
detail,
Premier’s
doctors
who
billed
falsely, reviewed the matrixes of bills submitted to Primed
to be submitted to the Government, as well as the summaries
sent by Primed to Premier outlining the bills submitted and
the amounts recovered from the Government. Taken as true,
these allegations meet the pleading requirements of Rule
9(b).
19
B. Conspiracy
Complaints alleging a conspiracy to violate the FCA are
also subject to Rule 9(b)’s heightened pleading standard.
Corsello v. Lincare, Inc., 428 F.3d 1008, 1014 (11th Cir.
2005)(“The district court correctly dismissed [the relator’s]
[conspiracy count] for failure to comply with Rule 9(b).”).
A relator must establish “(1) that the defendant conspired
with at least one person to get a false or fraudulent claim
paid by the Government; and (2) that at least one of the
conspirators
fraudulent
performed
claim
paid.”
an
overt
United
act
to
States
get
ex
a
false
or
rel.
Chase
v.
LifePath Hospice, Inc., No. 8:10-cv-1061-T-30TGW, 2016 WL
5239863, at *8 (M.D. Fla. Sept. 22, 2016)(citing United States
ex rel. Bane v. Breathe Easy Pulmonary Servs., Inc., 597 F.
Supp. 2d 1280, 1289 (M.D. Fla. 2009)). “‘Conspire’ in this
context requires a meeting of the minds ‘to defraud the
Government.’” Chase, 2016 WL 5239863, at *8 (citing Bane, 597
F. Supp. 2d at 1289; Allison Engine Co., Inc. v. United States
ex rel. Sanders, 553 U.S. 662, 672 (2008)).
Plaintiffs have pled with sufficient particularity that
a conspiracy existed between Dr. Sharma, Premier, and Primed.
Plaintiffs allege that Primed, “through its communications
with Dr. Sharma, was well aware that it was billing Medicare
20
and Medicaid for patients never seen by Dr. Sharma yet were
billed under his name.” (Doc. # 64 at ¶ 79). Plaintiffs allege
that Napoli spoke with the owners and managers of Primed,
“who confirmed that they were aware of the [Dr.] Sharma and
Premier billing policies and that was how they do things with
their agreement with [Dr.] Sharma.” (Id. at ¶ 58). According
to Plaintiffs, Primed agreed to process Premier’s fraudulent
claims because Defendants had arranged for Primed to receive
a five percent commission from the money reimbursed by the
Government. (Id. at ¶ 90).
In short, Plaintiffs allege that an agreement to submit
false claims to the Government existed between Defendants,
which
was
personally
confirmed
by
Primed’s
owners
and
managers, and that Primed agreed to the scheme because it
receives five percent of all money recovered by Premier. Thus,
the Second Amended Complaint provides factual allegations,
rather than legal conclusions, about the existence of an
agreement between Defendants. See Corsello, 428 F.3d at 1014
(affirming dismissal where the relator “alleged that ‘Lincare
and Varraux conspired to defraud the Government,’ but this
bare legal conclusion was unsupported by specific allegations
of
any
agreement
or
overt
act”).
Taken
as
true,
these
allegations do provide the required particularity regarding
21
the existence of an agreement between the Defendants to submit
false claims.
Although “a failure to adequately allege the existence
of a false claim is fatal to a conspiracy claim,” Chase, 2016
WL 5239863, at *9, the Court has already concluded that
Plaintiffs have sufficiently pled the submission of actual
false claims to the Government. Therefore, Plaintiffs have
alleged that at least one Defendant took the overt step of
submitting a false claim to be paid, and the second element
of the conspiracy claim is met.
IV.
Conclusion
Although Plaintiffs must present evidence of actual
false claims submitted to the Government to ultimately prove
their
case,
violations
the
with
Second
Amended
sufficient
Complaint
particularity
to
pleads
FCA
survive
the
motion to dismiss stage. See United States v. Crumb, No. CV
15-0655-WS-N, 2016 WL 4480690, at *28 (S.D. Ala. Aug. 24,
2016)(“The Amended Complaint is not perfect, but perfection
is not the applicable pleading standard. . . . The theories
of False Claims Act liability, and the factual allegations
upon which they rest, are set forth in ample detail to alert
the defendants in this case to the precise misconduct with
which
they
are
charged,
all
22
with
sufficient
indicia
of
reliability
to
protect
defendants
against
spurious
charges.”). Therefore, Defendants’ Motions are denied.
Accordingly, it is now
ORDERED, ADJUDGED, and DECREED:
(1)
Defendants Premier Hospitalists PL and Manish Sharma’s
Motion to Dismiss (Doc. # 69) is DENIED.
(2)
Defendant Primed Billing LLC’s Motion to Dismiss (Doc.
# 70) is DENIED.
DONE and ORDERED in Chambers in Tampa, Florida, this
12th day of January, 2017.
23
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