Lucas Matheny v. Medco Health Solutions, Inc.

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 10-15406 FEB 22, 2012
JOHN LEY
CLERK
D.C. Docket No. 2:08-cv-14201-DLG

UNITED STATES OF AMERICA, ex rel.,

Plaintiff

LUCAS MATHENY,
DEBORAH LOVELAND,

Plaintiffs–Appellants,

versus

MEDCO HEALTH SOLUTIONS, INC.,
POLYMEDICA CORPORATION,
LIBERTY HEALTHCARE GROUP, INC.,
LIBERTY MEDICAL SUPPLY, INC.,
LIBERTY COMMERCIAL HEALTH SERVICES CORP., et al.,

Defendants–Appellees.

Appeal from the United States District Court
for the Southern District of Florida

(February 22, 2012)
Before WILSON and FAY, Circuit Judges, and RESTANI,* Judge.

RESTANI, Judge:

Appellants Lucas W. Matheny (“Matheny”) and Deborah Loveland

(“Loveland”) (collectively “Relators”) appeal the decision of the United States

District Court for the Southern District of Florida dismissing with prejudice

Relators’ Third Amended Complaint for failure to state a claim upon which relief

may be granted. The district court held that Relators failed to allege with

particularity, as required by Federal Rule of Civil Procedure 9(b), that the

Defendants knowingly made a false statement for the purpose of concealing or

avoiding an obligation to pay money to the government. For the following

reasons, we reverse and hold Counts I and II of Realtors’ Third Amended

Complaint are sufficient to survive a motion to dismiss for failure to state a claim.1

BACKGROUND

Relators Lucas Matheny and Deborah Loveland brought a qui tam action2

*
Honorable Jane A. Restani, Judge of the United States Court of International Trade,
sitting by designation.
1
The Third Amended Complaint also alleges a Count III, which was dismissed by the
district court for failure to state a claim. Relators do not appeal the dismissal of Count III.
2
A qui tam action permits an private individual, known as a relator, to bring an action on
their own and the government’s behalf. Cooper v. Blue Cross & Blue Shield of Fla., Inc., 19
F.3d 562, 565 n.2 (11th Cir. 1994) (per curiam). The complaint is first filed under seal to allow
the government time to investigate and intervene. 31 U.S.C. § 3730(b). If the government
declines to intervene, the relator may continue with the action, id. § 3730(c)(3), and if successful,
2
against defendant Medco Health Solutions, Inc. (“Medco”) and its subsidiaries,

alleging violations of the reverse false claim provision of the False Claims Act

(“FCA”), 31 U.S.C. § 3729(a)(7) (2006) (amended 2009).3 The subsidiary

defendants include PolyMedica Corporation (“PolyMedica”), Liberty Healthcare

Group, Inc. (“LHG”), and Liberty Medical Supply, Inc. (“LMS”).4 Two corporate

executives of LMS were also named as defendants, Arlene Perazella, the

Executive Vice President of Operations, and Carl Dolan, the Vice President of

Special Projects and Compliance.

We account the facts as alleged in the Third Amended Complaint

(“Complaint”). Relator Matheny was employed as a Report Analyst, Accounts

Receivable Manager, Project Manager, and eventually Cash Management Manager

by defendant LMS. Relator Loveland was employed as Accounting Manager,

may recover between 25 and 30 percent of the judgment or settlement, plus reasonable expenses,
attorney fees, and costs, id. § 3730(d)(2). An FCA violator is also subject to statutory penalties
of between $5,000 and $10,000 per claim and treble damages. Id. § 3729(a).
3
Relator Matheny first filed a complaint in June 2008. The complaint was subsequently
amended to include Relator Loveland. The United States declined to intervene and the district
court unsealed what was then the Second Amended Complaint. Defendants moved to dismiss
the Second Amended Complaint for failure to state a claim, which was granted by the district
court without prejudice. Relators filed the Third Amended Complaint in July 2010, which the
district court dismissed with prejudice and is the subject of this appeal.
4
The remaining subsidiary defendants are Liberty Commercial Health Services Corp.,
Liberty Direct Services Corp., and Liberty Medical Supply Pharmacy, Inc. All corporate and
individual defendants are referred to herein as “Defendants.”
3
Director, Assistant Controller, and Controller by LMS and LHG. All of the

corporate and individual Defendants were subject to a Corporate Integrity

Agreement (“CIA”), which the parent company PolyMedica entered into with the

Office of the Inspector General of the U.S. Department of Health and Human

Services in November 2004.5 The CIA required the Defendants to remit payments

from the government that lacked sufficient documentation and payments received

in duplicate or in error. The CIA defined these excess or unidentified payments as

“Overpayments.” The CIA required the Defendants to return to the government

all Overpayments within thirty days of identification with the use of an

“Overpayment Refund Payment Form.”

During their time as employees, Relators became aware of a scheme by their

supervisors to conceal approximately $69 million dollars in Overpayments that,

under the CIA, should have been remitted to the government. Relators first

learned of Overpayments in an April 2006 meeting attended by Relator Matheny

and Defendants Perazella and Dolan. At this meeting, PolyMedica’s Compliance

Officer Alana Sullivan informed the Defendants that the Overpayments identified

5
Defendant Medco, the parent company of PolyMedica, is also subject to a corporate
integrity agreement, which contains standards more stringent than those contained in
PolyMedica’s CIA. At oral argument, Relators clarified that all the corporate Defendants shared
the same billing department, and thus, all corporate defendants had knowledge of the fraudulent
conduct.
4
at the meeting needed to be refunded to the government. Despite the identification

of Overpayments, Perazella and Dolan stated in the April 2006 meeting that the

Defendants would not repay the Overpayments because they lacked the manpower

to do so.

The Overpayments were never refunded and instead remained in the

Defendants’ possession through April 2008. By March 2008, Defendants

Perazella and Dolan had identified over $62 million in Overpayments resulting

from the lack of documentation and $7 million in Overpayments due to duplicate

billings, billings in error, or some other error. Under the direction of Perazella and

Dolan, Defendants developed a scheme by which the Overpayments were

transferred to unrelated patient accounts, fictitious patient accounts, or eliminated

from the records through a computer program called a “datafix.” Relator Matheny

reported the datafix scheme to PolyMedica’s Compliance Officer Kim Ramey and

was later told by the Assistant Vice President of Compliance that the datafix

scheme was appropriate and had been approved by PolyMedica’s Chief Operating

Officer. Relator Matheny worked with other employees to perform the datafix.

PolyMedica’s Compliance Officer Kim Ramey, despite knowledge of the

scheme to retain and conceal the Overpayments in violation of the CIA, certified

in a 2008 report to the government that the Defendants had complied with all CIA

5
requirements (the “Certification of Compliance”). Count I alleges that the 2008

Certification of Compliance was false due to the failure to report or remit the

millions of dollars in identified Overpayments, and that the Defendants made and

used the Certification to conceal and avoid the obligation to remit Overpayments.

Count II involves the same obligation to remit Overpayments within thirty

days but is based on a separate scheme and separate false records. In addition to a

certification of compliance, the CIA required the Defendants to submit annually a

random sample of patient accounts (the “Discovery Sample”) to the Office of

Inspector General/Independent Review Organization (“IRO”). The IRO would

then review the patient accounts in the Discovery Sample to determine whether all

CIA requirements had been satisfied. If the IRO review resulted in an error rate of

above 5%, the IRO would initiate an audit of all patient accounts.

Instead of supplying a Discovery Sample of random patient accounts as

required, Defendants removed accounts that contained Overpayments, generated

multiple samples, and then removed all remaining evidence of the Overpayments

from these samples until a perfect sample was created. As a result, the Discovery

Sample passed the annual IRO review in 2005 through 2008 with a 0% error rate

and the Defendants avoided a full audit, which would have revealed the

unresolved Overpayments. Relator Matheny personally participated in the

6
manipulation of the Discovery Sample. Count II alleges the Defendants made and

used these false Discovery Samples to conceal the obligation to remit

Overpayments within thirty days of identification.

JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction to review a final order of the district court under 28

U.S.C. § 1291.6 We review de novo a dismissal for failure to state a claim upon

which relief may be granted. Corsello v. Lincare, Inc., 428 F.3d 1008, 1012 (11th

Cir. 2005) (per curiam) (citing United States ex rel. Clausen v. Lab. Corp. of Am.,

Inc., 290 F.3d 1301, 1307 n.11 (11th Cir. 2002)). We accept as true the facts

alleged in the complaint and construe the facts in the light most favorable to the

plaintiff. Corsello, 428 F.3d at 1012; White v. Lemacks, 183 F.3d 1253, 1255

(11th Cir. 1999).

DISCUSSION

The False Claims Act (“FCA”) imposes liability on any person who

“knowingly makes, uses, or causes to be made or used, a false record or statement

to conceal, avoid, or decrease an obligation to pay or transmit money or property

to the Government[.]” 31 U.S.C. § 3729(a)(7).7 This is known as the “reverse

6
The district court had jurisdiction under 28 U.S.C. § 1331 and 31 U.S.C. § 3732.
7
In 2009, Congress amended and renumbered sections of the FCA. Fraud Enforcement
(continued...)
7
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. See United States v. Pemco Aeroplex, Inc., 195 F.3d

1234, 1235–36 (11th Cir. 1999). The purpose of the FCA is to encourage private

citizens who are aware of fraud against the government to expose the fraud, while

preventing opportunistic suits by individuals who hear of fraud publicly but play

no part in exposing it. Cooper, 19 F.3d at 565.

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 money to the

government; and (5) the materiality of the misrepresentation. See 31 U.S.C.

§ 3729(a)(7); see also United States v. Bourseau, 531 F.3d 1159, 1164–70 (9th

Cir. 2008).

At the pleading stage, a complaint alleging violations of the FCA must

satisfy two pleading requirements. First, the complaint must provide “a short and

plain statement of the claim showing that the pleader is entitled to relief.” Fed. R.

7
(...continued)
& Recovery Act of 2009, § 4(a), Pub. L. No. 111–21, 123 Stat. 1617, 1621–22 (2009). These
amendments do not apply to this case. See id. § 4(f), 123 Stat. at 1625. Citations herein refer to
the FCA without the 2009 amendments.
8
Civ. P. 8(a)(2). A complaint cannot merely recite the elements of a cause of action

but must contain factual allegations sufficient to raise the right to relief above the

speculative level. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Second,

a complaint must comply with Rule 9(b)’s heightened pleading standard, which

requires a party to “state with particularity the circumstances constituting fraud or

mistake.” Fed. R. Civ. P. 9(b); Clausen, 290 F.3d at 1308–09 (holding Rule 9(b)

applies to FCA claims). The purpose of Rule 9(b) is to “alert[] defendants to the

precise misconduct with which they are charged and protect[] defendants against

spurious charges . . . .” Ziemba v. Cascade Int’l, Inc., 256 F.3d 1194, 1202 (11th

Cir. 2001) (citation and internal quotation marks omitted).

The particularity requirement of Rule 9(b) is satisfied if the complaint

alleges “facts as to time, place, and substance of the defendant’s alleged fraud,

specifically the details of the defendants’ allegedly fraudulent acts, when they

occurred, and who engaged in them.” Hopper v. Solvay Pharm., Inc., 588 F.3d

1318, 1324 (11th Cir. 2009) (internal quotation marks omitted) (citing Clausen,

290 F.3d at 1310)); see also Ziemba, 256 F.3d at 1202 (noting the pleading

standards are satisfied if alleging precisely what statements were made in what

documents, when, where and by whom, the content, the manner in which they

misled the plaintiff, and what the defendants obtained as a consequence of the

9
fraud). We address first the issues common to Count I and II and then turn to each

count individually.

I. Issues Common to Counts I and II

A. Obligation

The district court dismissed Counts I and II for failure to establish the

existence of an obligation that was knowingly unpaid.8 Defendants do not

challenge the existence of an obligation, only whether that obligation was

violated, which we discuss below. We conclude Relators have adequately alleged

with particularity the existence of an obligation to pay money to the government.

To sustain a reverse false claim action, relators must show that the

defendants owed an obligation to pay money to the United States at the time of the

allegedly false statements. See Pemco, 195 F.3d at 1236–37. An express

contractual obligation to remit excess government property is a definite and clear

obligation for FCA purposes.9 See id. at 1238 (holding a “written contract which

8
The district court does not state whether it evaluated the existence of an obligation
under Rule 8 or 9. Because we conclude Relators have pled the existence of an obligation with
particularity, we do not decide which pleading standard applies.
9
Although not applicable to this case, we note that Congress recently amended the FCA
to define “obligation” as “an established duty, whether or not fixed, arising from an express or
implied contractual, grantor-grantee, or licensor-licensee relationship, from a fee-based or similar
relationship, from statute or regulation, or from the retention of any overpayment[.]” Fraud
Enforcement & Recovery Act of 2009, § 4(b)(3), 123 Stat. at 1623. This amendment was not
retroactive, and thus, this definition does not apply here. See id. § 4(f), 123 Stat. at 1625.
10
expressly obligated [defendant] to be responsible and accountable for the

government property in its possession and to return that property . . . in accordance

with the government’s instructions” a sufficient obligation).

Here, the Complaint contains detailed allegations relating to the

Defendants’ contractual obligation to identify, report, and remit excess

government money in accordance with the CIA’s instructions. Specifically,

Relators allege that the CIA obligated Defendants to report and remit all

Overpayments within thirty days of identification through the use of the

Overpayment Refund Payment Form. This allegation is supported by the terms of

the CIA, which state that “[i]f at any time, PolyMedica identifies or learns of any

Overpayment, PolyMedica shall notify the payor . . . within 30 days after

identification of the Overpayment . . . . PolyMedica shall repay the Overpayment

to the appropriate payor . . . .”10 The CIA defines Overpayments as “the amount of

money PolyMedica has received in excess of the amount due and payable under

any Federal health care program requirements.” The Complaint explains that

money is not “due and payable” if PolyMedica lacks the necessary documentation

to match that money to a specific patient account. Without the necessary

10
The CIA and account spreadsheets are attached to the Complaint as exhibits, and thus,
we may consider them here. Fed. R. Civ. P. 10(c) (“A copy of a written instrument that is an
exhibit to a pleading is a part of the pleading for all purposes.”).
11
documentation, the entire payment received is an Overpayment that must be

repaid. The Complaint outlines the procedures set by the CIA which Defendants

must use to remit any identified Overpayments. Under these procedures

Overpayments must be remitted with an Overpayment Refund Payment Form

within thirty days of identification. The Overpayment Refund Payment Form

requires PolyMedica to specify a reason for the Overpayment such as duplicate,

billed in error, or insufficient documentation. Thus, Relators have alleged an

express contractual obligation on behalf of the Defendants to remit Overpayments

within thirty days of identification and defined that obligation in detail with

references to particular contract sections. These factual allegations are sufficient

to plead with particularity the existence of an obligation to pay money to the

government.

B. Knowingly

The district court found that Relators had failed to allege that the

Defendants knowingly submitted a false Certification of Compliance. The

Defendants do not specifically address Relators’ challenge in this regard. We

conclude the Complaint adequately alleges that the Certification of Compliance

and the Discovery Sample were knowingly false.

The FCA imposes liability if the defendant knowingly “makes, uses, or

12
causes to be made or used, a false record or statement . . . .”11 31 U.S.C. §

3729(a)(7). At the pleading stage, “knowledge, and other conditions of a person’s

mind may be alleged generally.” Fed. R. Civ. P. 9(b). Here, Relators allege that

Defendants Perazella and Dolan “willfully and knowingly devised a scheme to

create false records to eliminate the cash overpayments.” Additionally, Relators

allege Compliance Officer Kim Ramey was fully aware of the mismanagement of

Overpayments and the use of the datafix in violation of the CIA, but nevertheless

certified that the Defendants were in compliance with all CIA requirements. On

Count II, Relators allege “[t]he creation of multiple random Discovery Sample

lists was an intentional and knowing attempt” by the Defendants to make a false

record and avoid an obligation to the government. Under Rule 9(b)’s standards,

these general allegations are sufficient.

II. Count I: False Certification of Compliance

In order to state a cause of action, a FCA relator must allege: (1) a false

record or statement; (2) the defendant’s knowledge of the falsity; (3) that the

defendant made, used, or caused to be made or used a false statement or record;

(4) for the purpose to conceal, avoid, or decrease an obligation to pay money to

11
The FCA defines “knowingly” as when a person “(1) has actual knowledge of the
information; (2) acts in deliberate ignorance of the truth or falsity of the information; or (3) acts
in reckless disregard of the truth or falsity of the information . . . .” 31 U.S.C. § 3729(b).
13
the government, and; (5) the materiality of the misrepresentation. See 31 U.S.C.

§ 3729(a)(7); see also Bourseau, 531 F.3d at 1164–70. Here, the remaining

elements at issue are whether there was a Certification of Compliance, and if so,

whether it was false and material.

A. Existence and Submission of the Certification of Compliance

The district court found Relators failed to allege a basis of knowledge of the

contents of the Defendants’ Certification of Compliance. The Defendants argue

this basis of knowledge must be personal knowledge of the actual certification or

its submission and that only employees in the compliance department could obtain

such knowledge. According to Defendants, without such knowledge, the

allegation that a Certification of Compliance actually existed or was submitted is

conclusory. We conclude the Complaint alleges with particularity the actual

existence and submission of the Certification and thus, is not conclusory.12

In order to plead the submission of a false claim with particularity, a relator

12
We note that for a reverse false claim action, presentment of a false claim is not at
issue and presentment of a false statement is not required by the statute and thus, does not need to
be pled. See 31 U.S.C. § 3729(a)(7); c.f. Hopper, 588 F.3d at 1327 (holding the absence of a
presentment clause in § 3729(a)(2) means relators do not have to plead the actual presentment of
a false claim). When the false statement is alleged to be a Certification of Compliance, however,
submission to the government may be one way to demonstrate how the Certification was material
to the concealment of an obligation. Thus, we will consider whether the Certification was
submitted to the government, not, as Defendants allege, because our precedent requires it, but
because submission may be necessary to demonstrate materiality. See Neder v. United States,
527 US 1, 16 (1999) (defining materiality as having the “natural tendency to influence . . . the
decisionmaking body to which it was addressed”) (citations omitted).
14
must identify the particular document and statement alleged to be false, who made

or used it, when the statement was made, how the statement was false, and what

the defendants obtained as a result. See Hopper, 588 F.3d at 1324 (citing Clausen,

290 F.3d at 1310). Here, the Complaint contains factual allegations relating

directly to the submission of the Certification of Compliance. Relators state

exactly which documents (the annual report of 2008), exactly which sentence and

its substance (“PolyMedica is in compliance with all of the requirements of this

CIA”), who was responsible (Compliance Officer Kim Ramey under the direction

of Defendants Dolan and Perazella), when the Certification was submitted (2008

reporting period), how the statement misled the government (false assurance of

compliance), and what the Defendants gained as a result ($69 million).

This is not a case like Clausen and its progeny, in which the complaint

failed to allege any factual specifics identifying the existence or submission of an

actual claim. See e.g., Corsello, 428 F.3d at 1013–14 (holding complaint failed to

satisfy Rule 9 when it failed to allege the who, what, when, where, and how of the

fraudulent submissions); United States ex rel. Atkins v. McInteer, 470 F.3d 1350,

1358 (11th Cir. 2006) (holding complaint failed to allege with particularity the

actual submission of a false claim); Clausen, 290 F.3d at 1312 (holding relator’s

failure to allege if or when any actual improper claims were submitted was fatal to

15
complaint). Here, Relators pled specifics relating to the submission of a specific

statement in a specific document, submitted by a specific person during a specific

review, as required by a particular government contract. Because these allegations

are well-pled, we may accept them as true and conclude that a Certification was

actually submitted. Relators do not need to further support their well-pled factual

allegations with some other “factual basis,” such as personal knowledge of the

submission or employment in the compliance department. See Clausen, 290 F.3d

at 1312–14 (noting corporate outsiders may have a harder time gathering the

factual specifics necessary to plead a claim but noting the same pleading standard

applies regardless of the relator’s status).

Even if Relators did need to allege some level of personal knowledge or

insider status, they have done so. In addition to Relator Matheny’s involvement in

the April 2006 meeting in which Overpayments were identified, Relator Matheny

alleges subsequent involvement in the discussions and operation of the datafix.

For example, in a meeting on April 21, 2008, Compliance Officer Kim Ramey

allegedly asked Relator Matheny what happened to all of the unbatched cash and

Relator Matheny reported the datafix scheme. Relator Matheny also met with

Assistance Vice President of Compliance Nancy Gregory on or about April 23,

2008 to discuss the use of the datafix and cash Overpayments. These allegations

16
demonstrate that Relator Matheny, despite not technically a member of the

compliance department, was involved and personally aware of the process he now

claims to be fraudulent. Personal involvement with the funds, direct conversations

with Defendants regarding the Overpayments, and personal knowledge of the

account procedures and CIA requirements further support Relators’ allegations.

See United States ex rel. Walker v. R&F Properties of Lake Cnty. Inc., 433 F.3d

1349, 1360 (11th Cir. 2005) (noting that allegations of personal knowledge

resulting from employment and conversations with billing employees can provide

support to a FCA complaint). Thus, Relators established the existence and

submission of a Certification of Compliance by Defendants. We now turn to

whether this Certification was false.

B. False Statement

In order to establish that the Certification of Compliance was a false

statement, Relators must allege with particularity how Defendants violated the

CIA. The district court held and the Defendants argue that the Complaint failed to

allege a factual basis to show that the funds identified in the Complaint were

actually Overpayments.13 We conclude Relators have pled with particularity the

13
The district court found the failure to show the obligation was not repaid was fatal to
the Complaint. In order to show the Certification of Compliance was false, Relators must allege
that at the time of Certification the CIA had been violated, regardless of whether it was later
(continued...)
17
existence of Overpayments that were not repaid according to the CIA instructions

and thus, have established a violation of the CIA.

In order to plead with particularity, Relators must allege the time, place, and

substance of the Defendants’ violation of the CIA, specifically, the details of the

what constituted the violation, when it occurred, and who engaged in it. See

Hopper, 588 F.3d at 1324. Here, Relators allege that in April 2006 and again in

March 2008, Defendants Perazella and Dolan identified $62 million in

Overpayments resulting from insufficient documentation and $7 million in

Overpayments resulting from duplicate billings or other errors. These

Overpayments remained in the Defendants’ accounts for more than thirty days

until Defendants eliminated the Overpayments from their records, or applied the

Overpayments to fictitious patient accounts or unrelated patient accounts.

Because the CIA required Defendants to remit all Overpayments within thirty days

of identification, and the identified Overpayments remained in the Defendants’

accounts for two years, the Complaint alleges that the Defendants did not comply

with the CIA requirements.

13
(...continued)
repaid. Moreover, Relators allege the obligation was not merely to remit Overpayments, but to
do so within thirty days of identification with the Overpayment Request Form. The failure to use
that process within the thirty day deadline is itself a violation of the CIA, regardless of whether
Overpayments were eventually repaid. Thus, whether the Defendants violated the CIA does not
turn on repayment of the Overpayments.
18
 Relators supply particularized facts to support these allegations. Relators

allege the date of the meeting in which Overpayments were identified, specify the

employees in attendance by name and title, and identify some of the accounts

discussed in the meeting by account number and amount. Attached as exhibits to

the Compliant are several spreadsheet identifying the accounts discussed at the

April 2006 meeting by patient or account number, the Medicare or Medicaid claim

invoice number or reimbursement check number, the line item number of the

invoice, the carrier, fiscal intermediary or insurance company code, the amount of

Overpayment, and how long the Overpayment remained in each patient account.

Although the Complaint’s exhibits include details on only a portion of the

accounts alleged to contain Overpayments, the inclusion of some records for some

of the accounts is sufficient. Atkins, 470 F.3d at 1358–59 (noting that while dates,

amounts, and account numbers can provide particularity, Rule 9(b) does not

mandate all of that information for each alleged claim, only “some of the

information for at least some of the claims”) (quoting Clausen, 290 F.3d at 1312

n.21).

Relators further support their allegation of the existence of Overpayments

with personal knowledge of the identification. Relator Matheny alleges he was

present at the meeting when the accounts were identified by a Compliance Officer

19
as Overpayments. He also alleges that he discussed the existence of

Overpayments with Compliance Officer Ramey and the appropriateness of the

datafix scheme. Such conversations and direct knowledge relating to how the

Defendants identified Overpayments further supports Relators allegations. See

Clausen, 290 F.3d at 1306 (searching the complaint for allegations of billing

practices or second-hand information about billing practices); see also Walker,

433 F.3d at 1360 (holding at least one personal discussion regarding defendants

billing practices and being told how the defendants bill the government sufficient

to support an allegation of a fraudulent claim). Here, Relator Matheny’s personal

knowledge and discussions relating to how, when, and who identified the

existence of Overpayments lends support to the allegation that Overpayments

existed, were identified by the defendants, and can be found in the attached

accounts. Thus, Relators’ allegations are particular because they establish exactly

how the Defendants violated the CIA, including when the violations occurred,

who directed and performed the violations, how and which accounts were

affected, and what the Defendants gained as a result.

Defendants argue these allegations fail to satisfy the particularity

requirement because the Complaint does not show the funds identified in the

Complaint were received from federal payors or that they were in excess of the

20
amount due and payable to Defendants. Contrary to Defendants’ first argument,

the Complaint contains detailed allegations that the Overpayments were received

from Medicare, Medicaid, or other federally funded healthcare programs. The

Complaint specifies the Medicare or Medicaid invoice number or reimbursement

check and the “carrier, fiscal intermediary and/or insurance company code” for

accounts alleged to contain Overpayments. The exhibits also identify the

Medicare or Medicaid claim invoice number for the claim originally submitted to

the government or the government reimbursement check number. By providing

the specific amount, invoice number, and carrier code, the Relators have alleged

the existence of federal funds with particularity.

Defendants’ second argument, relating to the definition of “due and

payable,” is equally without merit. The Complaint alleges $62 million in

Overpayments resulted from the lack of sufficient documentation to match the

payments to specific patient accounts. As described above, Relators allege in

detail, and with support of the CIA, how amounts not “due or payable” include

payments for which Defendants cannot provide sufficient documentation to match

the payment to a patient. Relators support their allegations with exhibits that

identify the specific fictitious patient account numbers used to hold the unmatched

payments. The exhibits also show accounts that have positive balances after all

21
debits, credits, and payments, which suggest the government paid Defendants

more than Defendants requested to cover the cost of the particular patient.

Although Defendants dispute the interpretation of the CIA to include payments

that lack sufficient documentation, such an argument goes to the merits of the case

and does not affect the sufficiency of the Complaint’s allegations at the pleading

stage.14

Relators have therefore pled with particularity that Defendants identified

Overpayments but failed to report or remit the funds as the CIA required. Because

Relators have established a violation of the CIA, the Certification of Compliance

submitted by Defendants constituted a false statement. We now turn to whether

14
Defendants argue Relators’ definition of Overpayments to include payments with
insufficient documentation is based on CIA provisions taken out context. Specifically,
Defendants argue the definition relied on by Relators applies only for purposes of the annual
“Claims Review” and if such a definition applied to Overpayments in other situations, a
definition for only this purpose would not be needed. We cannot and do not conclude whether
Defendants have a viable defense to Relators’ allegations based on the interpretation of the CIA.
At the pleading stage, we are limited to concluding whether Relators’ Complaint alleges a
plausible claim for relief that has been pled with particularity. In addition to the definition
disputed by Defendants, Relators allege that the Overpayment Refund Form required Defendants
to specify why the refunded money was an Overpayment and that one of the available definitions
was “insufficient documentation.” Relators also allege that federal law prohibits Defendants
from transferring payments designated for one patient to a different patient account. It seems
plausible that if the Defendants lacked the documentation necessary to determine to which
patient the payment applied, the payment was not “due and payable” because the Defendants
could not apply that payment to the correct patient account. Moreover, even if the definition of
Overpayments does not include payments with insufficient documentation, Relators allege that
$7 million in Overpayments resulted from duplicate billings or payments billed in error. Thus,
even if Defendant’s interpretation of the CIA is correct, this merely decreases the damage to the
government and does not destroy Relators’ plausible claim for relief.
22
that Certification of Compliance had a material affect on the government’s

decision-making.

C. Material

The district court held Relators failed to show how the Defendants used or

caused to be used, the Certification of Compliance to conceal, avoid, or decrease

an obligation to the government.15 Defendants do not specifically address

Relators’ challenge in this regard. We hold that because the CIA required the

Defendants to provide an accurate account of any excess government property in

the Defendants’ possession, and the Certification of Compliance misrepresented

the value of the property in the Defendants’ possession, the submission of the

Certification played a material role in the concealment and avoidance of an

obligation.

To be material, a misrepresentation must have the ability to influence the

government’s decision-making. See Neder, 527 U.S. at 16 (defining materiality as

15
The FCA requires a showing that the defendants “makes, uses, or cause to be made or
used” a false statement with the purpose to conceal an obligation. 31 U.S.C. § 3729(a)(7). In
Astra, on which the district court based its conclusion, it was undisputed that the defendants did
not make the certifications, and thus, relators needed to show that the defendants “used” the
certifications. United States ex rel. Cullins v. Astra, Inc., 2010 WL 625279, at *6 (S.D. Fla.
2010). To the extent the district court found the Complaint did not allege the Defendants “make,
use, or cause to be made or used” a Certification of Compliance, we refer to our above discussion
which concluded Relators adequately pled the existence and submission of a Certification. To
the extent the district court concluded Relators failed to show how the Certification played a role
in the concealment of the obligation, we characterize the issue as materiality of the
misrepresentation and refer to the following discussion.
23
having the “natural tendency to influence . . . the decisionmaking body to which it

was addressed”). When the government relies on the defendant to identify and

report the value of government property in the defendant’s possession, and the

defendant misrepresents the value of that property, the misrepresentation is

material. See Pemco, 195 F.3d at 1235 (holding complaint alleged the required

elements of a reverse false claim cause of action). In Pemco, the defendant’s

contract required the defendant “upon determining that it possessed excess

government property . . . [to identify] the excess property and to dispose of that

property in accordance with the government’s instructions.” Id. at 1237. The

defendant corporation in Pemco identified excess government aircraft wings in its

possession but mis-reported to the government the type of aircraft wing. Id. at

1236. As a result, the government agreed to sell the excess property to the

defendants at a significant discount. Id. at 1236–37.

Here, Relators have similarly alleged a contractual arrangement whereby the

government relies on the Defendants to identify and report excess government

property in the Defendants’ possession. Once the Defendants identified excess

payments, they had the obligation to report and remit the full value according to

the CIA instructions. Although the Defendants identified Overpayments as early

as April 2006 and continued to identify millions of dollars in Overpayments

24
through 2008, the Defendants assured the government, through the Certification,

that they did not possess any unreported Overpayments. By certifying that they

did not owe the government any additional money, the Defendants concealed the

true value of the government property in its possession. We conclude the

misrepresentation was material because, as a result of the Certification of

Compliance, the government was unable to identify and recover excess

government payments. Thus, Relators have sufficiently pled each element of a

reverse false claim for the Certification of Compliance and the district court’s

dismissal of Count I is reversed.

III. Count II: False Discovery Sample

The district court does not explicitly address Count II, but seems to have

dismissed it for failure to establish the existence of an obligation that was not

repaid.

Defendants argue the dismissal of Count II should be affirmed because the

Complaint does not plead with particularity that a Discovery Sample was actually

submitted. Specifically, Defendants argue the Complaint does not allege when

such samples were submitted, to whom they were submitted, who submitted them,

or what exactly the submission contained. Defendants argue Relator Matheny’s

personal involvement is insufficient to support his allegations because he could

25
have been working on the creation of a sample for Defendants’ internal use only

and not for submission to the government. Because we concluded above that

Relators adequately alleged an obligation, we address only the Defendants’

argument.

Here, the Complaint alleges that the Defendants made a false Discovery

Sample in October of 2005, 2006, 2007, and 2008. The Complaint alleges that the

Defendants submitted the Discovery Samples to the IRO auditor during the annual

review in November of the same years. The Complaint alleges in detail who made

the Discovery Samples (LMS Business Analyst employee Bob Swiatek), who

approved and directed the process (Defendants Perazella and Dolan), and how

various employees, including Relator Matheny, altered the patient accounts to

produce a false Discovery Sample. Thus, the Complaint alleges what statement

was false (the Discovery Sample), in what documents (the annual review

documents), when it was submitted (between October and November of each

year), to whom it was submitted (IRO auditor), what the statement did and did not

contain (Paid Claims with no evidence of Overpayments), who approved the

process, and who was responsible for developing the Discovery Samples. The

Complaint does not however, specify by name or title the person who actually

pushed the send button and transmitted the Discovery Sample to the IRO auditor.

26
We do not conclude the exclusion of this detail is fatal to Relators’ Complaint.

As Defendants recognize, we are more tolerant 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. See

Walker, 433 F.3d at 1360 (holding discussions with billing employee regarding

the fraudulent practices and participation in the process that led to false claims

sufficient to satisfy Rule 9(b)). Relator Matheny alleges personal involvement in

not only the process that lead to a false Discovery Sample, but the creation of the

actual Discovery Sample that was submitted. We recognized that Relator

Matheny’s personal involvement does not relate to the actual submission of the

Discovery Sample, but we conclude Matheny’s detailed allegations of the

accounting records, his position at the company, and his involvement with the

patient accounts provide sufficient support to Relator Matheny’s allegation that he

was working on the records used to populate the Discovery Sample and the

Discovery Sample itself, and not merely an internal sample. See Walker, 433 F.3d

at 1360 (holding explanations as to why relator believed false claims were

submitted sufficient when relator had personal knowledge of the scheme).

Second, this is not a case, such as Clausen, where the presentment of a false

statement is an element of the cause of action and the sin qua non of liability. See

27
Clausen, 290 F.3d at 1311. Instead, the submission is relevant only to the extent

necessary to show a material effect on the government’s decision-making. To that

end, Relators provide additional factual support to show the Discovery Sample

was submitted to the IRO auditor. According to the Complaint, once the

Defendants submitted a Discovery Sample, the IRO would review the sample

accounts for Overpayments or other errors. If the Discovery Sample resulted in

greater than a 5% error rate, a full audit of the Defendants’ accounts would occur.

For each year between 2005 and 2008, the IRO reviewed the Discovery Sample

and found a 0% error rate. If a Discovery Sample had never been submitted, the

IRO could not have performed a review or determined an error rate. Moreover,

the Complaint alleges the CIA required a Discovery Sample to be submitted every

year as part of the larger annual review and supports that allegation with express

contract language.16 The use of the Discovery Sample to determine whether the

IRO conducted an entire audit of the Defendants’ accounts and the existence of a

16
Defendants argue that the CIA required the IRO to select the random sample and
therefore, the Defendants never submitted anything to the IRO. Assuming the IRO selects the
random sample itself, the IRO must still be made aware of the total population of Defendants’
accounts in order to select a sample. Thus, even under the Defendants’ interpretation, the
Defendants had to alert the IRO of the accounts in some way. While such conduct may not be
sufficient to establish presentment for an (a)(1) claim, it is sufficient to establish a material link
between the manipulated records and the government’s actions. Moreover, if Defendants
manipulated the total population of accounts, as alleged, and the IRO selected a random sample,
Defendants caused the IRO to use or make a false (i.e. not random) record. See 31 U.S.C.
3729(a)(2) (imposing liability of a person who “makes, uses, or causes to be made or used” a
false statement).
28
contractual obligation to submit the Discovery Sample lends support to Relators’

allegations. We conclude Relators have pled all the remaining elements for a

reverse false claim for the Discovery Samples and thus, the district court’s

dismissal of Count II is reversed.

CONCLUSION

For the foregoing reasons, the district court’s dismissal of Count I and II of

the Third Amended Complaint is REVERSED.

29