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Rogers v. Waples

United States District Court, N.D. Alabama, Northeastern Division

May 3, 2018

CHARIS K ROGERS, Plaintiff,
v.
JOHN WAPLES, ET AL, Defendants.

          MEMORANDUM OPINION AND ORDER

          ABDUL K. KALLON, UNITED STATES DISTRICT JUDGE.

         Charis Rogers filed a qui tam action against her former employer, Clearview Cancer Institute (CCI), and several of its physicians, alleging that they used unaccredited equipment and fraudulently billed Medicare and Tricare in violation of the False Claims Act. Doc. 1. Rogers subsequently amended her complaint to add a retaliation claim after CCI discharged her shortly after the court unsealed the complaint. Doc. 11. Presently before the court is the Defendants' motion to dismiss, doc. 20, which is fully briefed and ripe for consideration, docs. 20; 24; & 26. After reading the briefs and considering the relevant law, the court grants the motion solely as to Rogers' qui tam claims.

         I. LEGAL STANDARD FOR A MOTION TO DISMISS

         A complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). This pleading standard “does not require ‘detailed factual allegations, ' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The allegations “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Id.

         A claim is facially plausible when “the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. The complaint must establish “more than a sheer possibility that a defendant has acted unlawfully.” Id. Ultimately, this inquiry is a “context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. at 679.

         For suits under the FCA, Rule 9 of the Federal Rules of Civil Procedure imposes a heightened pleading standard, requiring that a party “state with particularity the circumstances constituting fraud or mistake.” See Fed. R. Civ. P. 9(b). This particularity requirement “alert[s] defendants to the precise misconduct with which they are charged, ” Durham v. Bus. Mgmt. Assocs., 847 F.2d 1505, 1511 (11th Cir. 1988), and requires the plaintiff to plead “particular facts about the ‘who, ' ‘what, ' ‘where, ' ‘when, ' and ‘how' of fraudulent submissions to the government, ” Urquilla-Diaz v. Kaplan Univ., 780 F.3d 1039, 1052 (11th Cir. 2015) (internal quotations omitted).

         II. FACTUAL ALLEGATIONS

         Rogers began her employment at CCI, a cancer treatment facility, as a PET Nuclear Medicine Technologist. Doc. 11 at 11. During the period relevant to this lawsuit, she held the position of Director of Imaging. Id. Based on her review of patients' files and diagnostic equipment documents, Rogers maintains that the Defendants “used unaccredited diagnostic imaging equipment to run PET and CT scans in violation of federal regulations.” Id. at 12-13. Consequently, she alleges that the Defendants “knowingly, systematically, and illegally submitted hundreds to thousands of false and/or fraudulent bills to Medicare and Tricare representing that they were in compliance with [applicable] regulations, ” and billed for medically unnecessary PET and CT scans. Id.

         III. ANALYSIS

         Rogers's amended complaint includes four causes of action: (1) Presentation of False Claims, 31 U.S.C. § 3729(a)(1)(A), (Count I); (2) Making or Using False Record Statement to Cause Claim to be Paid, 31 U.S.C. § 3729(a)(1)(B), (Count II); (3) Making or Using False Record Statement to Avoid an Obligation to Refund, 31 U.S.C. 3729(a)(1)(G), (Count III); and (4) Retaliation, 31 U.S.C. 3730(h), (Count IV). Doc. 11 at 14-19. The Defendants have moved to dismiss all four claims. Doc. 20. The court will address the Defendants' contentions below, beginning with the FCA claims in Part A, and the retaliation claims in Part B.

         A. FCA Claims (Counts I, II, and III)

         The nub of Rogers' FCA claims is that CCI used unaccredited equipment, in violation of the requirements set by the Centers for Medicare and Medicaid Services, and billed Medicare and Tricare for medically unnecessary procedures. Doc. 11. Therefore, to state a valid claim, Rogers must plead sufficient facts to support her contentions regarding the use of unaccredited equipment and the Defendants' ordering of unnecessary medical procedures. Rogers has failed to do so.

         1. Allegedly unaccredited equipment

         In their motion, the Defendants challenge Rogers' accreditation claim and attach a document to support their contention. Docs. 20 at 5, 9; 20-1. In the Eleventh Circuit, “a document attached to a motion to dismiss may be considered by the court without converting the motion into one for summary judgment only if the attached document is: (1) central to the plaintiff's claim; and (2) undisputed.” Horsley v. Feldt, 304 F.3d 1125, 1134 (11th Cir. 2002). A document is “undisputed” in this context if its authenticity is not challenged. Id. The document at issue demonstrates that the equipment at CCI's Huntsville, Alabama facility is properly accredited by the American College of Radiology (“ACR”), one of the accreditors approved by the Centers for Medicare and Medicaid Services.[1]Docs. 20 at 5; 20-1 at 2. Rogers does not dispute the authenticity of the document ...


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