On January 19, 2021, the U.S.D.C. for the Middle District of Florida, dismissed the Relator’s First Amended Complaint. Relator is an ophthalmologist that purchased an ophthalmology practice from Defendant, who is also an ophthalmologist. Relator alleges that after purchasing the practice, he discovered years of Medicare fraud conducted by Defendant. Specifically, Relator alleges that Defendant would falsely diagnose patients as being “glaucoma suspect” so he could provide unnecessary services to patients and then bill Medicare for these services.
Defendant moved to dismiss Relator’s First Amended Complaint for failing to meet the heightened pleading requirements for fraud claims, among other things. The district court dismissed the entire First Amended Complaint.
This blog post focuses only on Count I, asserting a violation of 31 U.S.C. § 3729(a)(1)(A) for presenting false claims. Relator alleges that Defendant knowingly presented false or fraudulent claims for payment by Medicare. The gravamen of Relator’s claim is that Defendant routinely and falsely diagnosed patients as being “glaucoma suspect” in order to render unnecessary services to them at Medicare’s expense. Relator provided patient dates of testing and testing procedures, but no information about claims actually submitted to the government.
The Eleventh Circuit has repeatedly held the sine qua non of a False Claims Act violation is the submission of a false claim to the government. To satisfy the heightened pleading standard under Fed. R. Civ. P. 9(b) for an FCA claim, the Relator must allege facts as to time, place, and substance of a defendant’s alleged fraud, particularly the details of the defendants’ allegedly fraudulent acts, when they occurred, and who engaged in them.
Indeed, the FCA does not create liability 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. The paramount issue is whether the defendant presented, or caused to be presented, to the government a false or fraudulent claim for payment.
To satisfy Rule 9(b)’s heightened pleading requirements, the Relator must allege the actual presentment of a claim with particularity, meaning particular facts about the who, what, where, when, and how of fraudulent submissions to the government. The Relator’s First Amended Complaint failed to do that and was dismissed, without prejudice.