MERRITT et al v. AMEDISYS INC et al

Filing 36

ORDER denying 29 Motion to Dismiss Complaint. Ordered by US DISTRICT JUDGE HUGH LAWSON on 8/23/2023. (aks)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
VALDOSTA DIVISION
UNITED STATES OF AMERICA ex rel.
CHANDRA MERRITT,
Plaintiff,

Civil Action No. 7:21-CV-17 (HL)

v.
AMEDISYS, INC., AMEDISYS GEORGIA,
L.L.C., and DR. JAMES GRAHAM,
Defendants.
ORDER

Relator Chandra Merritt brought this action on behalf of the United States
of America pursuant to the False Claims Act (“FCA”), 31 U.S.C. §§ 3729-3733,
and the Anti-Kickback Statute (“AKS”), 42 U.S.C. § 1320a-7b(b), against
Defendants Amedisys Inc., Amedisys Georgia, L.L.C., and Dr. James Graham for
alleged fraudulent practices. Before the Court is Defendants’ Motion to Dismiss
Relator’s Complaint for failure to state a claim upon which relief may be granted.
(Doc. 29). After considering the motions, pleadings, and applicable law, the Court
DENIES Defendants’ motion.
I.

BACKGROUND
Defendant Amedisys, Inc. (“Amedisys”) is a publicly traded corporation

engaged in the home health care and hospice business (Doc. 1, ¶ 3). Amedisys
operates approximately 321 home health care agencies throughout the United

States. (Id.). The company primarily targets patients enrolled in the Medicare
Program. (Id.). Defendant Amedisys Georgia, L.L.C. (“Amedisys Georgia”) is a
subsidiary of Amedisys. 1 (Id. at ¶ 4). Amedisys Georgia manages home health
care agencies throughout Georgia, including the Tifton, Georgia Amedisys
Agency (“Tifton Agency”). (Id.). Defendant James L. Graham (“Dr. Graham”) is a
Family Medicine physician. (Id. at ¶ 5). Dr. Graham has served as the Tifton
Agency’s Medical Director since 2011. (Id.). As the Medical Director, Dr. Graham
is responsible for reviewing and certifying patients’ eligibility for home health care
services and for reviewing patient plans of care for medical appropriateness. (Id.
at ¶ 59). Relator Chandra Merritt (“Relator”) is a Certified Occupational Therapist.
(Id. at ¶ 6). Relator worked for the Tifton Agency from 2011 until her termination
on May 7, 2020. (Id.).
Relator filed this qui tam action on February 11, 2021, alleging Defendants
violated the FCA and the AKS. Relator claims that during her ten years working
for Amedisys, she witnessed abuses of the Medicare Program, including false
certification of ineligible patients and billing for services for which a patient did not
qualify or that were not actually rendered. She further alleges that she witnessed
Amedisys compensating Dr. Graham for referring new patients to the agency and

Throughout her Complaint, Relator refers to the two Amedisys entities
collectively. For clarity, the Court will do the same. However, the Court
recognizes Defendants’ position that they are independent organizations and are
not otherwise interchangeable. (Doc. 29-1, p. 2).
2
1

falsifying patient certification forms. When Relator voiced her concerns,
Amedisys responded by terminating her employment.
Pursuant to 31 U.S.C. § 3730(b)(2), the Complaint was placed under seal
to permit the United States an opportunity to investigate Relator’s allegations and
to decide whether to intervene in the action. (Doc. 3). The Government
requested, and the Court granted, two extensions of the seal and the time to
consider intervention. (Docs. 8, 10, 11, 13). On April 18, 2022, the Government
provided notice of its election not to intervene in the case. (Doc. 14). The Court
lifted the seal on April 19, 2022, and ordered service on Defendants. (Doc. 15).
A.

Regulatory Framework

The FCA provides for an award of treble damages and civil penalties for
knowingly presenting or causing to be presented false or fraudulent claims for
payments to the Government; for knowingly making or using, or causing to be
made or used, false records or statements material to false or fraudulent claims
paid by the Government; and for knowingly and improperly avoiding an
obligation. (Id. at ¶ 8) (citing 31 U.S.C. § 3729(a)(1)(A), (B), (C), (G)). The FCA
additionally prohibits knowing and willful receipt of payments intended to induce
referral of services and provides for relief from retaliatory actions. (Id. at ¶¶ 12,
13-17) (citing 31 U.S.C. § 3720(h); 42 U.S.C. § 1320a-7b(b)).
The alleged FCA violations in this case arise within the Medicare Program.
Established under Tile XVIII of the Social Security Act, 42 U.S.C. § 1395, et seq.,
3

the Medicare Program provides health insurance coverage for eligible citizens.
(Id. at ¶ 18). The United States Department of Health and Human Services,
through the Center for Medicare and Medicaid Services (“CMS”), administers the
Medicare Program. (Id.).
Pertinent to this case, the Medicare Program provides some home health
care services for eligible Medicare recipients. (Id. at ¶ 19). To be eligible, a
Medicare recipient must:
(i)

need intermittent skilled nursing services or physical, speech,
or occupational therapy;

(ii)

be homebound (as defined by Medicare);

(iii)

have an established care plan that is periodically reviewed by
a physician;

(iv)

be under the care of a physician; and

(v)

have a “face-to-face” encounter with a physician who can
assess the patient and personally certify the recipient’s
eligibility for services.

(Id. at ¶ 20) (citing 42 U.S.C. § 1395(f)(a)(2)(C); 42 C.F.R. 424.22). Covered
services for eligible recipients include: (1) part-time skilled nursing care; (2)
physical, occupational, or speech therapy; (3) medical social services
(counseling); (4) part-time home health aid services; and (5) medical equipment
and supplies. (Id. at ¶ 22) (citing 42 U.S.C. § 1395x(m)).
Most home health care providers utilize CMS Form 485 to outline the
patient’s care plan and to certify the patient’s Medicare eligibility. (Id. at ¶ 23).
4

CMS Form 485 requires the certifying physician sign and date a certification
statement, which includes the following language:
I certify this patient is confined to his/her home and needs
intermittent skilled therapy and/or speech therapy, or continues to
need occupational therapy. This patient is under my care, and I have
authorized the services on this plan of care and will periodically
review the plan. I further certify this patient had a face-to-face
encounter that was performed on xx/xx/xxxx by a physician or
Medicare allowed non-physician practitioner that was related to the
primary reason the patient requires home health services.
(Id. at ¶ 23) (citing CMS Form 485).
The form further warns:
Anyone who mispresents, falsifies, or conceals essential information
required for payment of Federal funds may be subject to fine,
imprisonment, or civil penalty under applicable Federal laws.
(Id. at ¶ 24) (citing CMS Form 485).
B.

Factual Allegations

Relator alleges Defendants engaged in four separate fraudulent schemes
to defraud the Government in violation of the FCA:
1.

Admission and Certification of Ineligible Patients

Relator claims that while employed by Amedisys, she witnessed the
agency admitting nearly every Medicare-insured individual, regardless of
eligibility. (Id. at ¶ 46). According to Relator, between 2017 and 2020, Amedisys’
patient census for the Tifton Agency ballooned from 170 patients to over 430
patients. (Id. at ¶ 47). Amedisys accomplished this dramatic increase in their
5

patient roster by knowingly admitting non-homebound, and therefore ineligible,
patients and by universally recertifying patients for home health care services,
ensuring that the agency was able to bill for each enrolled patient for at least 120
days. (Id. at ¶¶ 48-50).
Relator offers the following examples of this purportedly fraudulent
practice:
a.

Amedisys admitted Patient B.S. for care from November

26, 2018 through January 24, 2019. (Id. at ¶ 52(a)). Amedisys certified Patient
B.S. was homebound and required skilled physical therapy, occupational
therapy, and nursing care. Amedisys assigned Relator to provide Patient B.S.
nine occupational therapy visits during the certification period. (Id.). Relator
asserts Patient B.S. was not homebound and was often absent from home during
scheduled home health visits and drove his own vehicle. (Id.). Relator reported
her concern regarding Patient B.S.’s eligibility. (Id.). Relator alleges Amedisys
ignored her reports. (Id.). Instead, Amedisys continued to bill Medicare for
services provided to Patient B.S. (Id.).
b.

Amedisys admitted, discharged, and re-admitted Patient

G.S. numerous times between 2011 and 2020. (Id. at ¶ 52(b)). According to
Relator, Patient G.S. did not meet Medicare’s homebound requirement. (Id.).
Patient G.S. regularly left his home, including going to breakfast at local fast-food
restaurants almost daily. (Id.). He also routinely walked over 300 feet to the end
6

of his driveway. (Id.). Relator reported Patient G.S. to the Amedisys compliance
hotline on June 23, 2017. (Id.). Amedisys responded by removing Relator as
Patient G.S.’s occupational therapist. (Id.).
2.

Billing for Medically Unnecessary or Excessive Services

Relator alleges Amedisys routinely billed Medicare for skilled home health
care services that were medically unnecessary and excessive because the
patients did not require skilled care. (Id. at ¶ 53). Relator states she and other
clinicians regularly informed Amedisys that certain patients did not require skilled
nursing and therapy services. (Id. at ¶ 54). Some clinicians ceased performing
prescribed but unnecessary therapies. (Id. at ¶ 55). Yet Amedisys continued to
bill Medicare for medically unnecessary, excessive, and duplicative services as
well as for unperformed services. (Id. at ¶¶ 54-55). Relator further alleges
Amedisys “up-coded” unskilled services as skilled services. (Id. at ¶ 56).
Relator offers the following examples of patients for whom Amedisys billed
for unnecessary or unperformed services:
a.

Amedisys admitted Patient M.W. for home health care

services on January 23, 2019. (Id. at ¶ 57(a)). Patient M.W. was prescribed
seven occupational therapy visits and eleven physical therapy visits between
January 23, 2019 and March 23, 2019. (Id.). Relator was the occupational
therapist assigned to Patient M.W. (Id.). Relator quickly assessed that Patient
M.W. could perform all her activities of daily living, went on regular walks, and
7

attended church. (Id.). Patient M.W. therefore did not require occupational
therapy. (Id.). Relator informed Amedisys accordingly. (Id.). However, Amedisys
continued to bill Medicare for these allegedly medically unnecessary services
and recertified Patient M.W. for home health care services through January
2020. (Id.).
b.

Amedisys admitted Patient C.S. for home health care

services from April 4, 2016 through November 19, 2018. (Id. at ¶ 57(b)). During
the certification period from September 21, 2018 to November 19, 2018, Patient
C.S. was prescribed, and Amedisys billed Medicare, for fifteen skilled nursing
visits and twelve speech therapy visits. (Id.). In reality, the only service Patient
C.S. received was weekly catheter changes. (Id.).
c.

Amedisys admitted Patient J.C. for home health care

services on February 23, 2018, and recertified the patient for care through at
least August 21, 2018. (Id. at ¶ 57(c)). For the June 23, 2018 to August 21, 2018
certification period, Patient J.C. was prescribed, and Amedisys billed Medicare
for, three occupational therapy visits and seven physical therapy visits. (Id.). The
only service Amedisys actually provided to Patient J.C. was monthly catheter
changes. (Id.).
d.

Amedisys admitted Patient P.R. for home health care

services from September 16, 2018 through May 7, 2019. (Id. at ¶ 57(d)). During
the first two weeks of care, grab bars were installed in Patient P.R.’s bathroom.
8

(Id.). She was instructed how safely to transfer into and out of the bath. (Id.).
Once Patient P.R. mastered this skill, she no longer required occupational
therapy. (Id.). Relator contends Amedisys should have discharged Patient P.R. at
this point. (Id.). Instead, Amedisys continued billing Medicare for services
provided to Patient P.R. for another six months. (Id.). Relator alleges Amedisys
fraudulently coded unskilled services, such as bathing and drying the patient’s
hair, as occupational therapy services provided by Relator. (Id.). Relator claims
these services should have been performed by a home health aid at a
reimbursement rate of $94 per visit. (Id.). By requiring Relator to perform these
unskilled services, Amedisys was able to assess a reimbursement rate of $200
for each visit. (Id.).
3.

Illegal Payments for Referrals and False Certifications

Relator accuses Dr. Graham of serving as nothing more than “a physician
signature for hire” for Amedisys. (Id. at ¶ 63). Relator alleges Dr. Graham willingly
and falsely certified ineligible home health care patients in exchange for payment
from Amedisys. (Id.). Relator states she witnessed Dr. Graham sign knowingly
false patient certification forms in exchange for the $400-600 hourly rate he
received as Medical Director for the Tifton Amedisys Agency. (Id. at ¶ 64).
Relator alleges that when a patient’s treating physician declined to certify a
patient for continued home health care, Amedisys would request Dr. Graham
take the patient under his care. (Id. at ¶ 65). Amedisys often presented hundreds
9

of certifications for Dr. Graham’s signature at once. (Id.). Dr. Graham signed the
stack of documents without reviewing any documentation and without verifying
patients’ continued eligibility for home health care. (Id.). Dr. Graham did not
attend patient care conferences, which took place on Wednesdays and
Thursdays. (Id. at ¶ 67). However, Amedisys compensated Dr. Graham at a rate
of $400-$600 per hour for these weekly conferences. (Id.).
Relator offers Patient M.B. as an example of Amedisys’ arrangement with
Dr. Graham. (Id. at ¶ 70). Dr. Cameron Nixon certified Patient M.B. as eligible for
home health care on July 20, 2017. (Id.). Dr. Nixon specifically approved Patient
M.B. for skilled speech therapy. (Id.). In March 2018, Dr. Nixon determined
Patient M.B. no longer required these services and did not recertify her. (Id.).
Amedisys then requested Dr. Graham undertake Patient M.B.’s care. (Id.). Dr.
Graham certified Patient M.B.’s continuing eligibility. (Id.).
Relator further alleges Dr. Graham referred significant numbers of patients
exclusively to Amedisys. (Id. at ¶¶ 71-72). Amedisys relied on this referral system
to increase its patient census in Tifton. (Id. at ¶ 73). Relator claims she has
personal knowledge Amedisys paid Dr. Graham for referrals from his medical
practice. (Id.). Spikes in referrals resulted in increased hourly compensation to
Dr. Graham for his services as Medical Director. (Id. at ¶ 74).

10

4.

Retaliation

Relator claims she “regularly and repeatedly” voiced her concern that
Amedisys was providing home health care services to ineligible patients. (Id. at
¶ 77). She informed Amedisys that continuing to bill Medicare for ineligible
patients constituted fraud. (Id.). Amedisys in turn retaliated against Relator,
ostracizing her and removing patients from her case load. (Id. at ¶¶ 78-80).
Amedisys’ actions placed Relator in danger of not meeting productivity
requirements and caused her to lose pay and employment benefits. (Id. at ¶ 80).
In July 2018, Relator met with Amedisys’ Area Vice President Monica
Rouse. (Id. at ¶ 82). Relator complained that the Tift Agency was requiring her to
treat non-homebound patients who did not require skilled occupational therapy.
(Id.). She informed Ms. Rouse that she reported these issues to the Tift Agency,
but the local office ignored her concerns and had begun retaliating against her.
(Id.). Ms. Rouse acknowledged the validity of Relator’s concerns, but nothing
changed. (Id.).
On November 15, 2018, Relator raised concerns about the living
conditions of Patient D.M. during a patient care conference (Id. at ¶ 83). Relator
informed Amedisys that the small trailer in which Patient D.M. resided was
covered in animal feces and was unsanitary. (Id.). Relator urged Amedisys to
report the deplorable conditions to a social worker at the Georgia Division of
Adult Protective Services. (Id.). Relator also expressed her belief that Patient
11

D.M. was physically capable of caring for herself and did not require occupational
therapy; however, Patient D.M. suffered from mental and behavioral health
problems which impeded her ability to attend to her needs. (Id.). Relator opined
Patient D.M. would be better suited for assisted living. (Id.). Amedisys ignored
Relator’s concerns and took no action, continuing to bill Medicare for
occupational therapy Patient D.M. did not need. (Id.).
Ms. Rouse was present at the November 2018 meeting. (Id. at ¶ 84).
Despite her earlier assurances to Relator that she would address any eligibility
issues, Ms. Rouse declared that clinicians would no longer play a role in
determining patient eligibility, treatment, or plans of care. (Id.). Relator and a
fellow clinician opposed this new policy. (Id. at ¶ 85). Relator informed Ms. Rouse
that delegating these responsibilities to someone who does not interact with
patients would result in further Medicare fraud. (Id.). Relator exclaimed, “this is
illegal . . . all the continued recertifications are ineligible and not homebound and
[the unnecessary care billed for by Tifton staff] was duplication of services.” (Id.
at ¶ 86). Relator then asked, “How can we bill this? How can we bill for nonhomebound patients and how can we bill for therapy when no therapy is
provided?” (Id.). Ms. Rouse replied, “Don’t worry about it. . . . Amedisys’
attorneys will back you.” (Id. at ¶ 87).
On November 19, 2018, Ms. Rouse chastised Relator for inciting the fraud
discussion at the November 15 meeting. (Id. at ¶ 88). She warned Relator, “if we
12

can’t find a common ground, we will have to part ways.” (Id.). Relator became
less vocal about her concerns and instead began refusing to treat ineligible
patients or patients she believed did not require skilled occupational therapy. (Id.
at ¶ 89). Amedisys responded by moving these patients to other clinicians and
not assigning new patients to Relator. (Id. at ¶ 90).
On March 25, 2020, Relator complained to Amedisys’ management about
purported up-coded and medically unnecessary services billed to Medicare. (Id.
at ¶¶ 91-92). Those concerns were communicated to Ms. Rouse, who again
warned Relator about the need to “find common ground.” (Id. at ¶ 93). Relator
suggested Amedisys transfer her to another office with different management.
(Id. at ¶ 94). Amedisys rejected Relator’s offer. (Id.).
Amedisys suspended Relator on April 6, 2020, and ultimately terminated
her on May 7, 2020. Amedisys claimed Relator acted outside the scope of her
practice area in her treatment of Patient N.D. during a visit on February 25, 2020.
(Id. at ¶ 95). According to Relator, she saved Patient N.D.’s life by performing
“percussion” to loosen phlegm in the patient’s chest, allowing him to breathe. (Id.
at ¶ 97). Amedisys determined Relator exceeded the scope of the care she was
authorized to provide because Patient N.D.’s plan of care did not include
percussion treatment. (Id. ¶ 98). Amedisys still billed Medicare for this
purportedly improper care. (Id. at ¶ 99). Relator further alleges she is aware of
other clinicians employed by Amedisys who harmed patients by performing
13

services outside the scope of their practice areas yet were not disciplined by
Amedisys. (Id. at ¶ 100). Relator contends Amedisys terminated her in retaliation
for her efforts to prevent the submission of false claims to Medicare. (Id. at
¶ 101).
II.

LEGAL STANDARD
On a motion to dismiss, the Court must accept as true all well-pleaded

facts in a plaintiff’s complaint. Sinaltrainal v. Coca-Cola Co., 578 F.3d 1252, 1260
(11th Cir. 2009). To avoid dismissal pursuant to Federal Rule of Civil Procedure
12(b)(6), “a complaint must contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007)). A claim is plausible where the plaintiff alleges factual content that “allows
the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Id. The plausibility standard requires that a plaintiff allege
sufficient facts “to raise a reasonable expectation that discovery will reveal
evidence” that supports a plaintiff’s claims. Twombly, 550 U.S. at 556.
Under Rule 8(a)(2) of the Federal Rules of Civil Procedure, a complaint
must contain “a short and plain statement of the claim showing that the pleading
is entitled to relief.” Fed. R. Civ. P. 8(a)(2). The purpose of this requirement is to
“give the defendant fair notice of what the ... claim is and the grounds upon which
it rests.” Twombly, 550 U.S. at 554-55 (quoting Conley v. Gibson, 355 U.S. 41,
14

47 (1957)) (internal quotation marks omitted) (alteration in original). “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
‘entitle[ment] to relief’ requires more than labels and conclusions.” Id. at 555
(citations omitted) (alterations in original). The complaint must contain enough
factual allegations to “raise a right to relief above the speculative level.” Id. at
555-56.
In addition, the heightened pleading standard of Federal Rule of Civil
Procedure 9(b) applies to causes of action brought under the FCA. Hopper v.
Solvay Pharm., Inc., 588 F.3d 1318, 1324 (11th Cir. 2009). Under Rule 9(b),
when “alleging fraud or mistake, a party must state with particularity the
circumstances constituting fraud or mistake. Malice, intent, knowledge, and other
conditions of a person’s mind may be alleged generally.” Fed. R. Civ. P. 9(b). An
FCA complaint must plead not only the “who, what, where, when, and how of
improper practices,” but also the “who, what, where, when, and how of fraudulent
submissions to the Government.” Corsello v. Lincare, Inc., 428 F.3d 1008, 1014
(11th Cir. 2005) (citation omitted). Rule 9(b) serves to ensure that a FCA claim
has “some indicia of reliability . . . to support the allegation of an actual false
claim for payment being made to the Government.” United States ex rel. Clausen
v. Lab. Corp. of Am., Inc., 290 F.3d 1301, 1313 n.24 (11th Cir. 2002).

15

III.

DISCUSSION
A.

Group Pleading

Defendants argue Relator’s Complaint impermissibly relies upon group
pleading and should be dismissed. Relator names both Amedisys, Inc. and
Amedisys Georgia, L.L.C. as Defendants in this action. However, throughout her
Complaint, Relator refers to the two entities generically as Amedisys. Defendants
contend this lumping together of the two corporate entities fails to place
Defendants on notice of which Defendant Plaintiff contends is responsible for
which conduct.
Federal Rule of Civil Procedure 8(a)(2) provides that to state a claim for
relief, a complaint must contain “a short and plain statement of the claim showing
that the pleader is entitled to relief.” Generally, “group pleading,” or referring to
defendants collectively rather than to each defendant specifically by name, fails
to meet the pleading standard of Rule 8(a)(2). See Diamond Resorts U.S.
Collection Dev., LLC v. Sumday Vacations, LLC, No. 6:19-cv-982-Orl-78DCI,
2020 WL 3250130, at *2 (M.D. Fla. Feb. 21, 2020). Where, however, the
“complaint can be fairly read to aver that all defendants are responsible for the
alleged conduct,” group pleading “does not render the complaint deficient.” Kyle
L. v. Chapman, 208 F.3d 940, 944 (11th Cir. 2000); see also Nafta Traders, Inc.
v. Corkcicle, LLC, No. 6:19-cv-1672-Orl-78GJK, 2020 WL 7422061, at * 2 (M.D.
Fla. May 27, 2020) (concluding that collective pleading does not run afoul of
16

federal pleading requirements provided “the allegations give the individual
defendants sufficient notice” of the wrongdoing “they are alleged to have
committed”).
The Court declines to dismiss Relator’s Complaint based on Defendants’
assertion of group pleading. The Complaint sufficiently identifies each Defendant
and how they are related. Moreover, the Complaint clearly outlines who was
involved in each of the acts alleged such that Defendants are on notice of the
claims asserted against them. The collective reference of the two Amedisys
entities as Amedisys does not deprive Defendants of fair notice of the conduct
attributed to them.
B.

Submission of a False Claim (Counts I and II)

In Counts One and Two of her Complaint, Relator alleges Defendants
violated 31 U.S.C. § 3729(a)(1)(A) by presenting, or causing to be presented,
false claims to the Government for payment. Specifically, Relator alleges
Defendant Amedisys submitted false claims for home health care services on
behalf of recipients who either did not meet Medicare’s homebound criteria or
who did not require skilled nursing and therapy services. Relator further alleges
Amedisys submitted false claims for home health care services that were
medically unnecessary or never performed. This fraud was perpetuated by
Defendant

Dr.

James

Graham’s

knowingly

signing

home

health

care

certifications and plans of care for ineligible patients. Defendants move to
17

dismiss Counts One and Two of Relator’s Complaint, arguing that Relator has
failed to allege the submission of a false claim with particularity as required by
Rule 9(b).
The FCA imposes liability on any person who “knowingly presents or
causes to be presented a false or fraudulent claim for payment or approval.” 31
U.S.C. § 3729(a)(1)(A). Liability under the FCA does not attach “merely for a
health care provider’s disregard of Government regulations or improper internal
policies unless, as a result of such acts, the provider knowingly asks the
Government to pay amounts it does not owe.” Clausen, 290 F.3d at 1311
(emphasis in original). The “act of submitting a fraudulent claim to the
[G]overnment is the sine qua non of a [FCA] violation.” Corsello, 428 F.3d at
1012 (quotation and citation omitted). “Without the presentment of such a claim,
while the practices of an entity that provides services to the Government may be
unwise or improper, there is simply no actionable damage to the public fisc as
required” under the FCA. Clausen, 290 F.3d at 1311 (emphasis in original).
Allegations of an FCA violation must meet the heightened pleading
standard of Rule 9(b). Estate of Helmly v. Bethany Hospice and Palliative Care of
Coastal Ga., 853 F. App’x 496, 501 (11th Cir. 2021) (citing Corsello, 428 F.3d at
1012; United States ex rel. Atkins v. McInteer, 470 F.3d 1350, 1357 (11th Cir.
2006)). As the Eleventh Circuit explained in Corsello, submission of a fraudulent

18

claim may not be inferred from allegations of improper practices. 428 F.3d at
1013. To meet the Rule 9(b) pleading standard, the complaint must include:
(1) precisely what statements were made in what documents or oral
representations or what omissions were made, and (2) the time and
place of each such statement and the person responsible for making
(or, in the case of omissions, not making) same, and (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.
Clausen, 290 F.3d at 1210 (quoting Ziemba v. Cascade Int’l, Inc., 256 F.3d 1194,
1202 (11th Cir. 2001)). More succinctly, a relator must “allege the ‘who,’ ‘what,’
‘where,’ ‘when,’ and ‘how’ of fraudulent submissions to the [G]overnment.”
Corsello, 428 F.3d at 1014.
Relator’s Complaint carefully details Defendants’ allegedly fraudulent
practices, naming specific dates of service for patients Relator contends
Defendants approved for home health care services but who did not qualify or did
not need those services. Missing, however, are details regarding the actual
submission of any claim for payment of these allegedly fraudulent services. The
Complaint contains no information about the amounts or dates of any charges,
the specific services for which Defendants billed the Government, the names of
any persons involved in the billing, or a copy of any bill or payment. Rather, as
highlighted by Defendants, Relator broadly states Defendants billed the
Government for fraudulently performed or underperformed services and
summarily claims the Government paid those bills.
19

Relator does not deny the absence of specific billing details in the
Complaint. Nor does she deny a lack of personal knowledge that Defendants’
billing office submitted a bill to the Government. Nevertheless, Relator argues
based on the particular circumstances of this case, the Court should not dismiss
her false presentment claims under Rule 9(b). Relator maintains the Court should
afford “some indicia of reliability” to her claim that Defendants submitted false
claims to the Government based on Relator’s ten years of employment, during
which she “personally observed, reported, and endured the submission of false
claims.” (Doc. 32, p. 10) (citing United States ex rel. Mastej v. Health Mgmt.
Assoc., Inc., 501 F. App’x 693, 704 (11th Cir. 2014)). According to Relator,
because the Complaint sets forth a factual basis for the assertion that fraudulent
claims were submitted, exact billing data is not required for the Complaint to
survive a motion to dismiss.
In Clausen, the Eleventh Circuit explained that the purpose of Rule 9(b)’s
heightened pleading requirement in fraud actions is to alert “defendants to the
precise misconduct with which they are charged” and to protect “defendants
against spurious charges of immoral and fraudulent behavior.” 290 F.3d at 1310
(quoting Ziemba v. Cascade Int’l, Inc., 256 F.3d 1194, 1201 (11th Cir. 2001)). In
the context of the FCA, that means a plaintiff may not “merely . . . describe a
private scheme in detail but then . . . allege simply and without any stated reason
for his belief that claims requesting illegal payments must have been submitted,
20

were likely submitted[,] or should have been submitted to the Government.” Id. at
1311. “[S]ome 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.”
Id. (emphasis in original).
As observed by another jurist in this district, Clausen “has been read to
hold that the minimum indicia of reliability required to satisfy Rule 9 are the
specific contents of actual claims.” United States ex rel. Willis v. Angels of Hope
Hospice, Inc., No. 5:11-CV-041 (MTT), 2014 WL 684657, at *7 (M.D. Ga. Feb.
21, 2014). But such specifics are not always warranted. Id. For example, in Hill v.
Morehouse Med. Assoc., the Eleventh Circuit distinguished the pleading
requirements imposed on a corporate outsider, who provides no factual basis for
the conclusion that false bills were submitted to the Government, versus an
employee of the defendant, who offers a firsthand account of the defendant’s
specific fraudulent conduct. 2003 WL 22019936, at *4 (11th Cir. Aug. 15, 2003).
The Eleventh Circuit accordingly signaled that a more relaxed pleading standard
may be applied when the relator “witnessed firsthand the alleged fraudulent
submissions” thereby providing “the indicia of reliability that is necessary in a
complaint alleging a fraudulent billing scheme.” Id. at *5; see also United States
ex rel. Walker v. R & F Prop. of Lake Cnty., Inc., 433 F.3d 1349, 1360 (affirming
denial of motion to dismiss where the complaint identified the relator as an
employee of the defendant and asserted allegations sufficient to explain why the
21

employee believed the defendant submitted false or fraudulent claims). Several
years later, the Eleventh Circuit again emphasized tolerance “toward complaints
that leave out some particularities of the submissions of a false claim if the
complaint also alleges personal knowledge or participation in the fraudulent
conduct.” United States ex rel. Matheny v. Medco Health Sol., Inc., 671 F.3d
1217, 1230 (11th Cir. 2012). In short, “whether the allegations of a complaint
contain sufficient indicia of reliability to satisfy Rule 9(b)” must be evaluated on a
case-by-case basis. McInteer, 470 F.3d at 1358.
Under the circumstances presented in this case, the Court is satisfied that
the requirements of Rule 9(b) have been met. Relator worked for Defendants for
ten years. During the last several years of her employment, Relator witnessed an
extreme uptick in patient admissions, which she claims was accomplished by
Defendants knowing admission and recertification of ineligible patients. Relator
offers the names and dates of certification for several patients for whom she
personally provided occupational therapy services. She interacted with these
patients on an individual basis and was able to assess their therapy needs.
Moreover, she regularly voiced her concern that Defendants were committing
Medicare fraud, telling Defendants, “this is illegal . . . all the continued
recertifications are ineligible and not homebound and [the unnecessary care
billed for by Tifton staff] was duplication of services.” (Doc. 1, ¶ 86). She also
asked, “How can we bill this? How can we bill for non-homebound patients and
22

how can we bill for therapy when no therapy is provided?” (Id.). Defendants
replied, “Don’t worry about it. . . . Amedisys’ attorneys will back you.” (Id. at ¶ 87).
Taking these allegations as true, it logically follows that Defendant were
submitting bills to the Government for the allegedly fraudulent services rendered.
Concluding Relator has alleged facts sufficient to establish sufficient indicia
of reliability that Defendants submitted false claims for payment to the
Government, the Court DENIES Defendants’ motion to dismiss Counts One and
Two of Relator’s Complaint.
C.

Creation of False Records or Statements (Counts III and IV)

Relator alleges in Counts Three and Four that Defendants knowingly made
or used false records to procure payment from the Government. Relator
contends Defendants knowingly included false information on CMS Forms 485,
certifying unqualified patients as homebound and in need of skilled nursing and
therapy services. Relator alleges the false information notated on these forms
was material to Defendants’ objective of getting false claims paid or approved by
the Government. Relator further alleges Defendant Amedisys made or used false
CMS Forms 1450 and 855 A and other false certifications concerning past,
present, and future compliance with prerequisites for payment or reimbursement
by the Government.
To state 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
23

knew it to be false, and (3) the statement was material to a false claim.” United
States ex rel. Phalp v. Lincare Holdings, Inc., 857 F.3d 1148, 1154 (11th Cir.
2017). What § 3729(a)(1)(B) “demands is not proof that the defendant caused a
false record or statement to be presented or submitted to the Government but
that the defendant made a false record or statement for the purpose of getting a
false or fraudulent claim paid or approved by the Government.” Allison Engine
Co., Inc. v. United States ex rel. Sanders, 553 U.S. 662, 671 (2008) (internal
quotation marks omitted). If a defendant makes a false statement but does not
intend the Government to rely on that false statement “as a condition of payment,
the statement is not made with the purpose of inducing payment of a false claim”
by the Government, and there is no FCA violation. Id.
Relator alleges Amedisys “made and used false records reflecting nursing
and therapy visits that were not medically necessary, did not qualify as skilled
services, or were rendered to patients who did not qualify under the Medicare
home health benefit.” (Doc. 1, ¶ 111(a)). Relator further alleges Graham
participated in completing and approving these forms, knowing that the
information contained therein was false. (Id. at ¶¶ 116-117). According to Relator,
Defendants knowingly included false information in these records, specifically
CMS Form 485, for the purpose of inducing the Government to pay for services
Defendants knew did not qualify for reimbursement. (Id. at ¶¶ 111-114, 117-119).

24

Defendants argue Relator’s reliance on Form 485 and others is misplaced
as submission of the Medicare forms is not required for payment of any claim.
Rather, those forms are more ministerial in nature and are simply to be kept on
file by the home health care agency. That may be true. But, as Relator points out,
to state a claim under § 3729(a)(1)(B), Relator need not show that Defendants
presented the falsified records to the Government. Rather, the Relator must only
demonstrate that Defendants created the false records with the intent to secure
payment for a false claim. For the purposes of this motion, the Court is satisfied
that Relator has met this pleading requirement. The Court therefore DENIES
Defendants’ motion to dismiss Counts Three and Four.
D.

Anti-Kickback Statute (Count V)

In Count Five of her Complaint, Relator asserts Defendants violated the
AKS. A violation of the AKS arises when a person or entity “knowingly and
willfully solicits or receives any remuneration (including any kickback, bribe or
rebate) directly or indirectly, overtly or covertly, in cash or in kind” when that
remuneration is given “in return for purchasing, leasing, ordering, or arranging for
or recommending purchasing, leasing or ordering any good, facility, service, or
item for which payment may be made in whole or in part under a Federal health
care program.” (Id. at ¶ 15) (citing 42 U.S.C. § 1320a-7b(b)). A violation of the
AKS constitutes a false or fraudulent claim for purposes of the FCA. (Id. at ¶ 14)
(citing 42 U.S.C. § 1320a-7b(g)). The AKS requires no proof of a person’s
25

motivation to accept the illegal payment, only that the person knowingly and
willfully accepted the kickback. (Id. at ¶ 17).
Defendants address Count Five solely in connection with Counts One and
Two, arguing only that Relator cannot pursue a claim under the AKS because
Realtor’s Complaint does not sufficiently allege the submission of a false claim.
As discussed, the Court is satisfied that Relator has met the heightened pleading
requirements to maintain her false submission claims. Defendants having raised
no other grounds for dismissing Relator’s AKS claim, the Court DENIES
Defendants’ motion to dismiss Count Five of Relator’s Complaint.
E.

Conspiracy (Count VI)

Count IV of Relators’ Amended Complaint alleges Amedisys and Graham
conspired with one another to violate the FCA pursuant to 31 U.S.C.
§ 3729(a)(1)(C). Section 3792(a)(1)(C) imposes liability on any person who
conspires to defraud the Government by getting a false or fraudulent claim
allowed or paid. 31 U.S.C. § 3792(a)(1)(C). To state a claim for conspiracy to
violate the FCA, a relator 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 affect the object of the
conspiracy; and (3) that the [Government] suffered damages as a result of the
false or fraudulent claim.” Corsello, 428 F.3d at 1014. A conspiracy rarely can be
established by showing “an explicit agreement; most conspiracies are inferred
26

from the behavior of the alleged conspirators . . . and from other circumstantial
evidence.” City of Tuscaloosa v. Harcros Chems., Inc., 158 F.3d 548, 569 (11th
Cir. 1998) (citation omitted).
Relator’s allegations of conspiracy meet the heightened pleading
requirements of Rule 9(b). Relator plainly alleges that Graham and Amedisys
entered into an agreement whereby Amedisys agreed to compensate Graham for
certifying patients Defendants collectively knew did not meet Medicare’s eligibility
requirements for home healthcare services for the purpose of securing payment
from the Government. (Doc. 1, ¶ 126). According to Relator, Graham served as
nothing more than a “signature for hire.” (Id. at ¶ 63). Amedisys regularly
presented Graham with stacks of patient certification forms, which Graham
signed without conducting any sort of eligibility review. (Id. at ¶¶ 65-68).
Amedisys further incentivized Graham to refer patients from his personal practice
exclusively to Amedisys and relied upon Graham to certify patients whose own
treating physicians determined were no longer eligible for home healthcare. (Id.
at ¶¶ 65, 71-72, 74). With these false certifications in hand, Amedisys then
submitted claims for payment to the Government. (Id. at ¶¶ 128-29). As a result
of the agreement between Graham and Amedisys, the Government paid
Amedisys for fraudulently obtained services. (Id. at ¶ 130).

27

The Court accordingly finds Relator has sufficiently set forth a claim for
conspiracy under the FCA. The Court therefore DENIES Defendants’ motion to
dismiss Count Six of Relator’s Complaint.
F.

Reverse False Claim (Count VII)

Defendants next move to dismiss Count Seven of Relator’s Complaint,
which alleges Defendants are liable under § 3729(a)(1)(G) of the FCA for reverse
false claims. Defendants contend Relator’s claim is redundant of the claims
raised in Count One and otherwise fails to meet the heighted pleading
requirements of Rule 9(b).
The FCA imposes liability on “any person who . . . 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)(1)(G).
“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
(citation omitted). “To establish a reverse false claim, a relator must prove: (1) a
false record or statement; (2) the defendant’s knowledge of the falsity; (3) that
the defendant made, used, or causes to be made or used a false statement or
record; (4) for the purpose to conceal, avoid, or decrease an obligation to pay
28

money to the government; and (5) the materiality of the misrepresentation.” Id.
(citations omitted).
Defendant contends Relator’s reverse false claim cause of action is
nothing more than a duplication of her other FCA claims. While the facts
underlying Relator’s reverse false claim allegations closely relate to those
supporting her other FCA claims, Relator sets forth a separate and independent
cause of action based on Defendants’ knowing retention of overpaid funds.
Relator alleges that Defendants knowingly completed forms certifying patients for
home healthcare services for which those patients were not eligible. Based on
those certifications, Defendants then submitted false statements to the
Government for payment to which Defendants knew they were not entitled,
creating an overpayment. Relator further alleges Defendants were aware of the
overpayment and of their obligation to refund those payments but instead
retained the funds and continued billing the Government. These allegations are
sufficient to meet the heightened pleading requirements of Rule 9(b) and to state
a separate claim for a reverse false claim. The Court therefore DENIES
Defendants’ motion to dismiss Count Seven of Relator’s Complaint.
G.

Retaliation (Count VIII)

Relator alleges Amedisys terminated her in retaliation for her efforts to
report and prevent Medicare fraud. The FCA “protects employees who are
targeted by their employers after they seek to prevent a violation of the Act.”
29

Hickman v. Spirit of Athens, Ala., Inc., 985 F.3d 1284, 1286 (11th Cir. 2021)
(citing 31 U.S.C. § 3720(h)(1)). To state a claim of retaliation, a plaintiff must
allege three essential elements: “(1) she engaged in statutorily protected activity,
(2) an adverse employment action occurred, and (3) the adverse action was
causally related to the plaintiff’s protected activities.” Simon ex rel. Fla. Rehab.
Assocs., PLLC v. Heathsouth of Sarasota L.P., 2022 WL 3910607, at *5 (11th
Cir. Aug. 31, 2022).
Defendants move to dismiss Relator’s retaliation claim based solely on
impermissible group pleading. The Court rejected Defendants’ group pleading
argument. Defendants do not otherwise contend that Relator has failed to state a
claim of retaliation under the FCA. The Court accordingly DENIES Defendants’
motion to dismiss Relator’s retaliation claim.
IV.

CONCLUSION
For the foregoing reasons, the Court DENIES Defendants’ Motion to

Dismiss (Docs. 29).
SO ORDERED this 23rd day of August, 2023.

s/ Hugh Lawson________________
HUGH LAWSON, SENIOR JUDGE
aks

30