United States District Court, N.D. Alabama, Southern Division
DAVID PROCTOR UNITED STATES DISTRICT JUDGE.
matter is before the court on Motions to Dismiss filed by
Defendants Comfort Care Home Health Services, LLC, Restore
Management Company, LLC, and Restore Professionals Company,
LLC (Doc. # 39); Defendant Edwin Moyo (Doc. # 40); and
Defendant Alan Parker (Doc. # 42). Defendants' Motions
are fully briefed. (Docs. # 47, 49, 50, 51). For the reasons
stated below, Defendants' Motions are due to be denied.
Second Amended Complaint states two claims for relief. Count
I asserts that Defendants violated the False Claims Act as
prohibited by 31 U.S.C. § 3729(a)(1)(A) and (B). Count
II alleges that Defendant Comfort Care Home Health Services,
LLC retaliated against Plaintiff in violation of the False
Claims Act. See 31 U.S.C. § 3730(h). The court
will address each of these claims for relief in turn.
Plaintiff's Second Amended Complaint Alleges a Violation
of the False Claims Act with the Requisite
the Federal Rules of Civil Procedure require only that a
civil complaint state “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) applies
to actions under the False Claims Act. U.S. ex rel.
Clausen v. Lab. Corp. of Am., 290 F.3d 1301, 1308-09
(11th Cir. 2002). In averments alleging fraud or mistake,
“a party must state with particularity the
circumstances constituting fraud or mistake.”
Clausen, our Circuit noted that the practices of an
entity that provides services to the Government may be unwise
or even improper, but unless a false claim is actually
presented there is no actionable damage as is required
by the False Claims Act. Clausen. 290 F.3d at 1311.
As such, Rule 9(b)'s directive that “the
circumstances constituting fraud or mistake shall be stated
with particularity” does not permit a False Claims Act
plaintiff merely to describe a private scheme in detail but
then to allege simply and without any stated reason for his
belief that claims requesting illegal payments must have been
submitted, were likely submitted or should have been
submitted to the Government. As in Cooper, and as
with every other facet of a necessary False Claims Act
allegation, if Rule 9(b) is to be adhered to, some indicia of
reliability must be given in the complaint to support the
allegation of an actual false claim for payment being made to
U.S. ex rel. Clausen v. Lab. Corp. of Am., 290 F.3d
1301, 1311 (11th Cir. 2002). Defendants contend that
Plaintiff's Second Amended Complaint fails to plead that
any Defendant actually submitted fraudulent reimbursement
claims, and that that failure prevents Plaintiff's Second
Amended Complaint from clearing the hurdle of Rule 9(b).
(See Doc. # 39 at pp. 11-13). The court disagrees.
Second Amended Complaint alleges four different schemes which
she contends amount to violations of the False Claims Act:
(1) a scheme involving the misrepresentation and
falsification of documents, (2) a scheme involving the
submission of claims for non-qualifying, non-homebound
patients and the billing of unnecessary therapy
services, (3) a scheme involving the submission of
claims for a separate group of non- qualifying, non-homebound
patients, and (4) a scheme involving the billing of
unnecessary therapy visits. Plaintiff's Second Amended
Complaint describes each of these schemes in detail, but
admittedly does not identify specific false claims (related
to specific patients) that were actually submitted as a
result of the alleged misconduct.
this alone is not fatal to Plaintiff's Second Amended
Complaint. Indeed, since Clausen, our Circuit has
stated that “there is no per se rule that an FCA
complaint must provide exact billing data or attach a
representative sample claim.” Mastej v. Health
Management Associates, Inc., 591 F.App'x
693, 704 (11th Cir. 2014).
Under this Court's nuanced, case-by-case approach, other
means are available to present the required indicia of
reliability that a false claim was actually submitted.
Although there are no bright-line rules, our case law has
indicated that a relator with direct, first-hand knowledge of
the defendants' submission of false claims gained through
her employment with the defendants may have a sufficient
basis for asserting that the defendants actually submitted
false claims. See U.S. ex rel. Walker v. R & F
Properties of Lake County, Inc., 433 F.3d 1349, 1360
(11th Cir. 2005) (holding that Rule 9(b) was satisfied where
the relator was a nurse practitioner in the defendant's
employ whose conversations about the defendant's billing
practices with the defendant's office manager formed the
basis for the relator's belief that claims were actually
submitted to the government).
Id. “At a minimum, a plaintiff-relator must
explain the basis for her assertion that fraudulent claims
were actually submitted.” Id.
Plaintiff has not pled any details as to specific patients
for whom false claims were submitted, or any specifics
related to any false claims actually submitted. However, the
court's analysis does not end there. Rather, the court
has looked carefully at Plaintiff's averments and finds
that her allegations have a sufficient “indicia of
reliability” which supports the allegation of an actual
false claim (or claims) even absent detailed information
about a representative claim. See Clausen, 290 F.3d
at 1311; Mastej, 591 Fed.App'x at 707. Plaintiff
has pled a detailed factual basis which supports her
knowledge of the submission of false claims. Plaintiff's
Second Amended Complaint alleges that Plaintiff (1) had
personal knowledge of Defendants' (allegedly fraudulent)
billing practices, (2) derived that knowledge based on the
nature of her employment and communications with other
employees, (3) and sought to investigate Defendants'
allegedly unlawful billing practices. (Doc. # 37 at
¶¶ 41, 52, 59, 77). Not only is Plaintiff a former
officer of Comfort Care Home Health, but she alleges that she
personally observed Defendants engage in unlawful conduct.
(See Doc. # 37 at ¶ 59). Moreover, Plaintiff
has identified specific categories of patients for whom
Defendants allegedly submitted fraudulent documents and
reimbursement claims. (Doc. # 37 at ¶¶ 57-68, 74, 76).