UNITED STATES OF AMERICA ex rel. Marc Osheroff, Plaintiff - Appellant,
HUMANA, INC., et al., Defendants - Appellees
Appeal from the United States District Court for the Southern District of Florida. D.C. Docket No. 1:10-cv-24486-RNS.
For MARC OSHEROFF, Relator, Plaintiff - Appellant: Jonathan Kroner, Jonathan Kroner Law Office, Miami Beach, FL; Gary P. Timin, Squire Sanders (U.S.), LLP, Tampa, FL.
For Humana, Inc., Defendant - Appellee: David Jeffrey Leviss, K. Lee Blalack II, Amanda M. Santella, Sara Zdeb, O'Melveny & Myers, LLP, Washington, DC; Andrew Russell Kruppa, Daniel Christopher Mazanee, Squire Patton Boggs (U.S.) LLP, Miami, FL.
For Humana Health Plan, Inc., Defendant - Appellee: Amanda M. Santella, O'Melveny & Myers, LLP, Washington, DC.
For Humana Medical Plan, Inc., Defendant - Appellee: David Jeffrey Leviss, K. Lee Blalack II, Amanda M. Santella, Sara Zdeb, O'Melveny & Myers, LLP, Washington, DC; Andrew Russell Kruppa, Daniel Christopher Mazanee, Squire Patton Boggs (U.S.) LLP, Miami, FL.
For Cac-Florida Medical Centers, LLC, Careplus Health Plans, Inc., Defendant - Appellee: David Jeffrey Leviss, K. Lee Blalack II, Amanda M. Santella, Sara Zdeb, O'Melveny & Myers, LLP, Washington, DC.
For For Pasteur Medical Center, Inc., Defendant - Appellee: John Clifford Hanson II, The Barthet Firm, Miami, FL.
For Humana Health Insurance Company of Florida, Inc., Defendant - Appellee: David Jeffrey Leviss, K. Lee Blalack II, Amanda M. Santella, Sara Zdeb, O'Melveny & Myers, LLP, Washington, DC; Andrew Russell Kruppa, Daniel Christopher Mazanee, Squire Patton Boggs (U.S.) LLP, Miami, FL.
Before TJOFLAT, JILL PRYOR and FAY, Circuit Judges.
JILL PRYOR, Circuit Judge:
This appeal follows the district court's dismissal of a qui tam complaint upon holding that the lawsuit was barred by the public disclosure provision of the False Claims Act. After careful review of the record and the briefs, and with the benefit of oral argument, we affirm.
Relator Marc Osheroff operates medical office buildings in Miami and has considered opening a health clinic there since the early 2000s. While doing market research on health clinics, Mr. Osheroff learned that many area clinics provide a variety of free services to patients. Upon learning of these programs, Mr. Osheroff began to research the clinics' services in more detail by interviewing employees and patients. Mr. Osheroff has never been employed by or done business with any of the defendants.
Mr. Osheroff filed this qui tam action under seal on December 16, 2010, and the United States declined to intervene. Mr. Osheroff amended his complaint in December 2011, reducing the named defendants
to three clinics and several health insurers that contract with the clinics. The clinics are Pasteur Medical Center, Inc. (" Pasteur" ); CAC-Florida Medical Centers, LLC (" CAC" ); and MCCI Group Holdings, LLC, which reached a settlement with Mr. Osheroff prior to this appeal. The health insurers are Humana Inc.; Humana Health Insurance Company of Florida, Inc.; Humana Medical Plan, Inc.; and CarePlus Health Plans, Inc., a subsidiary of Humana Inc. (collectively, the " Humana defendants" ). The Humana defendants all provide Medicare Advantage health plans to the clinics' patients and are paid by Medicare on a per-patient basis; the plans in turn pay the clinics based on patient enrollment.
The amended complaint includes information Mr. Osheroff gathered through his interviews, as well as information from the clinics' websites. Specifically, Mr. Osheroff alleges that the clinics provided, and the Humana defendants either knew of or promoted, a variety of free services for patients and health plan members, including transportation, meals, spa and salon services, and entertainment. The amended complaint includes a great amount of detail about these services. For example, the amended complaint alleges that: the clinics used limo-class vehicles to transport patients and " nearly all trips . . . contained two or fewer passengers even though the vehicles seat 8, 10 or more" passengers, Am. Compl. at 21, ¶ 130; CAC limos took 93 trips to Mr. Osheroff's medical office buildings in early 2010, 88 of which carried two or fewer people, id.; lunch at a CAC clinic on October 7, 2010 included " white rice, meat, [and] plantains, but the options change daily," id. at 29, ¶ 201; lunch at a Pasteur clinic on June 17, 2010 included " rice and beans, meat, bread, soft drink, and vegetables," id. at 31, ¶ 219; the clinics provided takeaway containers for lunch, id. at 29, ¶ 203; and the clinics held holiday and birthday parties with meals, soda, and cake. Id. at 32, ¶ 221.
Mr. Osheroff alleges that the clinics offered these services without regard for medical purpose or financial need and that the value of the services is more than nominal. To show the worth of the clinics' services, the amended complaint includes the price of comparable services, including the taxi and limo rates in Miami-Dade County, id. at 23, ¶ ¶ 138-42, and the price of a Cuban sandwich and a hot lunch special at a local restaurant. Id. at 37, ¶ ¶ 247-48.
The Anti-Kickback Statute (" AKS" ), 42 U.S.C. § 1320a-7b(b), prohibits knowingly offering or providing remuneration for the purpose of inducing the recipient to purchase a good or service for which payment may be made under a federal health care program. The Civil Monetary Penalties Law (" CMPL" ), 42 U.S.C. § 1320a-7a(a)(5), similarly prohibits offering or providing remuneration for the purpose of influencing the recipients to order or receive care from a particular provider, payment for which may be made under Medicare. The amended complaint alleges that the defendants' actions violated both statutes. Mr. Osheroff also alleges ...