[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
FILED
No. 04-15283 U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
December 30, 2005
THOMAS K. KAHN
D. C. Docket No. 02-00131-CV-OC-10-GRJ CLERK
UNITED STATES, ex rel.,
Plaintiff,
KARYN L. WALKER,
a.k.a. Karyn L. Denk-Walker,
Plaintiff-Appellant
Cross-Appellee,
versus
R & F PROPERTIES OF LAKE COUNTY, INC.,
A Florida Professional Association,
Defendant-Appellee
Cross-Appellant.
________________________
Appeals from the United States District Court
for the Middle District of Florida
_________________________
(December 30, 2005)
Before BIRCH, WILSON and COX, Circuit Judges.
COX, Circuit Judge:
Plaintiff Karyn L. Walker is a qui tam relator, seeking recovery on behalf of
the United States pursuant to the False Claims Act, 31 U.S.C. § 3729. Walker
appeals a summary judgment granted to Defendant R&F Properties of Lake
County, Inc., formerly known as Leesburg Family Medicine, (LFM). And Walker
contends that the district court erred in limiting the scope of information
discoverable in the case to that information relevant to the time period during
which she was employed by LFM as a nurse practitioner. LFM cross-appeals,
contending that the district court erred in denying its motion to dismiss Walker’s
Amended Complaint.
We conclude that the district court erred in holding that Walker had not
produced sufficient evidence of the falsity of the claims submitted by LFM to resist
summary judgment. Therefore, we reverse the district court’s judgment. We also
find error in the district court’s order limiting discovery. We find no error in the
district court’s denial of LFM’s motion to dismiss.
I. BACKGROUND & PROCEDURAL HISTORY
The Medicare Program is a system of health insurance administered by the
United States Department of Health and Human Services, through the Center for
Medicare and Medicaid Services (CMS). CMS was formerly known as the Health
Care Financing Administration (HCFA). Medicare Part B is a federally
subsidized, voluntary health insurance program that pays a portion of the costs of
2
certain health services, including the costs of clinic visits to healthcare providers
(among them, physicians, physician assistants, and nurse practitioners).
Reimbursement for Medicare Part B claims is made through CMS, which contracts
with private insurance carriers throughout the United States to administer and pay
claims within their regions from the Medicare Trust Fund. These insurance
carriers are known as Fiscal Intermediaries, or FIs. In general, when a healthcare
service is rendered to a patient covered by Medicare Part B, the healthcare provider
bills Medicare/CMS through the FI. The FI reviews the bill and pays the
healthcare provider. CMS publishes a series of manuals that provide billing and
payment instructions to the Medicare community. Among these manuals are the
Medicare Carrier’s Manual, directed to the FIs, and the Provider Reimbursement
Manual, directed to healthcare providers.
LFM operates medical clinics in Leesburg and Lady Lake, Florida. At these
clinics, physicians, physician assistants, and nurse practitioners provide medical
services to the community. Many, if not most, of LFM’s patients are covered by
Medicare Part B. LFM submits claims for Medicare reimbursement for healthcare
services rendered by physicians, physician assistants and nurse practitioners to its
FI, Blue Cross Blue Shield of Florida, pursuant to a contract between LFM and
Blue Cross Blue Shield. These claims are made on HCFA 1500 forms in electronic
3
form, as required by the Medicare regulations, and signed electronically by LFM’s
physicians. Each HCFA 1500 form states:
SIGNATURE OF PHYSICIAN OR SUPPLIER
(MEDICARE, CHAMPUS, FECA AND BLACK LUNG)
I certify that the services shown on this form were medically
indicated and necessary for the health of the patient and were
personally furnished by me or were furnished incident to my
professional service by my employee under my immediate personal
supervision, except as otherwise expressly permitted by Medicare or
CHAMPUS regulations.
For services to be considered “incident” to a physician’s
professional service, 1) they must be rendered under the physician’s
immediate personal supervision by his/her employee, 2) they must be
an integral, although incidental part of a covered physician’s service,
3) they must be of kinds commonly furnished in physician’s offices,
and 4) the services of nonphysicians must be included on the
physician’s bills.
(R.2-79 Ex. G.)
Healthcare providers may bill Medicare Part B for the services of physician
assistants and nurse practitioners in one of two ways; the amount of reimbursement
the providers receive is dependent on the billing method. Physician assistant or
nurse practitioner services may be billed as services “incident to the service of a
physician.” 42 CFR §§ 410.10, 410.26. To be correctly billed in this manner, the
physician assistant or nurse practitioner services must have been provided under
certain circumstances.1 When physician assistant or nurse practitioner services are
1
For the relevant time period prior to January 1, 2002, 42 CFR § 410.26 stated:
4
billed as “incident to the service of a physician,” the physician’s Unique Provider
Identification Number (UPIN) is used on the bill submitted to the FI.
Alternatively, a provider may bill Medicare for physician assistant and nurse
(a) Medicare Part B pays for services and supplies incident to a
physician’s professional services, including drugs and biologicals
that cannot be self-administered, if the services or supplies are of the
type that are commonly furnished in a physician’s office or clinic,
and are commonly furnished either without charge, or included in the
physician’s bill.
Effective January 1, 2002, 42 CFR § 410.26 was amended to read, in relevant part:
(b) Medicare Part B pays for services and supplies incident to the
service of a physician (or other practitioner).
(1) Services and supplies must be furnished in a
noninstitutional setting to noninstitutional patients.
(2) Services and supplies must be an integral, though
incidental, part of the service of a physician (or other practitioner) in
the course of diagnosis or treatment of an injury or illness.
(3) Services and supplies must be commonly furnished
without charge or included in the bill of a physician (or other
practitioner).
(4) Services and supplies must be of a type that are commonly
furnished in the office or clinic of a physician (or other practitioner).
(5) Services and supplies must be furnished under the direct
supervision of the physician (or other practitioner). The physician (or
other practitioner) directly supervising the auxiliary personnel need
not be the same physician (or other practitioner) upon whose
professional service the incident to service is based.
...
“Direct supervision,” as used in 42 CFR § 410.26, is defined by reference to 42 CFR §
410.32(b)(3)(ii), a provision that, since 1998, states:
Direct supervision in the office setting means the physician must be
present in the office suite and immediately available to furnish
assistance and direction throughout the performance of the procedure.
It does not mean that the physician must be present in the room when
the procedure is performed.
5
practitioner services under the physician assistant’s or nurse practitioner’s own
UPIN. Billing Medicare in this second way indicates that the physician assistant or
nurse practitioner has performed the service under some level of supervision by a
physician, but the requirements of 42 CFR § 410.26 have not necessarily been met.
For services billed under a physician assistant’s or nurse practitioner’s UPIN, the
FI pays 85% of what it would pay for the same services billed under a physician’s
UPIN.
Walker worked for LFM from February 1997 until May 1999 as a nurse
practitioner. During that time, there were many occasions when she saw patients
independently without physician supervision. Physicians were not always
physically present in the LFM clinic while Walker and other nurse practitioners
and physician assistants saw patients, but physicians were always available for
consultation by pager and telephone.
II. CONTENTIONS OF THE PARTIES
Walker brings this suit as a qui tam relator under the False Claims Act. She
alleges that LFM filed false claims for Medicare reimbursement by billing
Medicare for services rendered by nurse practitioners and physician assistants as if
those services were rendered “incident to the service of a physician,” even though
LFM knew that the nurse practitioner and physician assistant services did not meet
several of the criteria necessary for billing in that manner. Chief among Walker’s
6
complaints is that LFM billed all nurse practitioner and physician assistant services
as “incident to the service of a physician,” even though the nurse practitioners and
physician assistants often treated patients at LFM’s clinics when no physician was
physically present in the clinic. She contends that a physician’s physical presence
within the office suite was required in order for the nurse practitioner’s or
physician assistant’s service to have been rendered “incident to the service of a
physician,” as used in 42 CFR § 410.26 and “under the physician’s immediate
personal supervision” as certified by the physician on each HCFA 1500 claim
form. Walker further contends that LFM knew that its billing practice was
fraudulent and that LFM knew the proper way to bill the services (as services
rendered directly by the nurse practitioner or physician assistant rather than as
services “incident to the service of a physician”). Walker alleges that, as a result of
the fraudulent manner in which LFM billed Medicare, LFM was paid 15% more
than it should have been paid for nurse practitioner and physician assistant services
to Medicare patients.
LFM admits that physicians were not always physically present in the clinic
while nurse practitioners and physician assistants treated patients. LFM also
admits that it submitted HCFA 1500 forms to Blue Cross Blue Shield requesting
Medicare reimbursement for services of nurse practitioners and physician
assistants performed “incident to the service of a physician,” even if the nurse
7
practitioner and physician assistant services were performed while no physician
was physically present in the LFM office suite. LFM further concedes that the
submission of the HCFA 1500 forms constitutes the presentation of claims for
purposes of the False Claims Act. However, LFM argues that, as a matter of law,
these claims could not have been false within the meaning of the False Claims Act
because the phrase “incident to the service of a physician” was, at least until
January 1, 2002, vague and subject to reasonable interpretations other than that
championed by Walker. It further argues that the “immediate personal
supervision” language in the HCFA 1500 certification is similarly vague and
therefore, as a matter of law, cannot be the basis for a false claim.
The parties also disagree about the time period relevant to Walker’s lawsuit.
Walker maintains that LFM made false claims for physician assistant and nurse
practitioner services performed from the time it first hired a physician assistant in
1994 through the date Walker filed her complaint, and she argues that her
complaint properly alleges the existence of false claims throughout this entire
period. LFM, on the other hand, contends that Walker could allege properly only
that false claims were presented from February 1997 through May 1999, the dates
of her employment at LFM.2
2
According to LFM, however, this is a hypothetical. LFM contends that Walker’s Amended
Complaint does not properly plead any cause of action regarding any time period and that it should
have been dismissed by the district court because it is not specific enough to satisfy the pleading
8
The district court granted LFM summary judgment because it found that
LFM’s requests for reimbursement could not be false as a matter of law. The
district court reasoned that, because the Medicare statutes and regulations in effect
during the period of Walker’s employment with LFM did not adequately define the
phrase “incident to the service of a physician” and because the terms “immediate,”
“integral,” and “incidental” as used on the HCFA 1500 form “are inherently
imprecise,” LFM’s interpretation of the terms (that nurse practitioners and
physician assistants could see patients independently so long as a physician was
available by pager and telephone) must be accepted as reasonable. In opposition to
LFM’s motion for summary judgment, Walker offered evidence of how the
regulatory language and the HCFA 1500 certification language were interpreted in
the Medicare community. Walker contends that this evidence would support a
finding that the claims submitted were false. However, the district court
considered the evidence insufficient to present an issue of fact as to the meaning of
the terms.
III. ISSUES ON APPEAL
To determine whether the district court erred in granting summary judgment,
we must decide whether the Medicare regulations and HCFA 1500 form are
requirements of Federal Rule of Civil Procedure 9(b).
9
unclear regarding the criteria that must be fulfilled in order for services of a nurse
practitioner or physician assistant to be billed as services “incident to the service of
a physician.” If we decide that they are unclear, we must then decide whether a
court may look to evidence other than the language of the regulation and form to
determine whether a claim, allegedly submitted in violation of that language, is
false within the meaning of the False Claims Act. If we decide that a court may
look to evidence outside the language at issue, we must determine whether the
evidence Walker presented in opposition to LFM’s motion for summary judgment
is sufficient to create an issue of fact as to the falsity of the claims LFM made to
Medicare.
We also decide whether the district court erred in limiting discovery in the
action to information relevant to the time period during which Walker was
employed by LFM.
Finally, to decide LFM’s cross-appeal, we determine whether Walker’s
Amended Complaint satisfies the requirements of Rule 9(b).
IV. STANDARDS OF REVIEW
We review the district court’s grant of summary judgment de novo, applying
the same legal standards that bound that court and “viewing all facts and
reasonable inferences in the light most favorable to the nonmoving party.”
Strickland v. Water Works and Sewer Bd. of the City of Birmingham, 239 F.3d
10
1199, 1203 (11th Cir. 2001). Summary judgment is appropriate when “there is no
genuine issue as to any material fact and . . . the moving party is entitled to a
judgment as a matter of law.” Fed. R. Civ. P. 56(c).
The district court’s discovery decisions are reviewed for abuse of discretion.
See Burger King Corp. v. Weaver, 169 F.3d 1310, 1315 (11th Cir. 1999).
We review de novo the denial of a motion to dismiss. See Nolen v. Jackson,
102 F.3d 1187, 1190 (11th Cir. 1997).
V. DISCUSSION
The False Claims Act states:
Any person who . . . knowingly presents, or causes to be
presented, to an officer or employee of the United States
Government . . . a false or fraudulent claim for payment or
approval . . . is liable to the United States Government for
a civil penalty of not less than $5,000 and not more than
$10,000, plus 3 times the amount of damages which the
Government sustains because of the act of that person . . . .
31 U.S.C. § 3729(a). The False Claims Act authorizes private citizens to bring
actions on behalf of the United States. 31 U.S.C. § 3730(b). These plaintiffs are
known as qui tam relators. To establish a cause of action under the False Claims
Act, a relator must prove three elements: (1) a false or fraudulent claim; (2) which
was presented, or caused to be presented, by the defendant to the United States for
payment or approval; (3) with the knowledge that the claim was false. 31 U.S.C. §
3729(a). Recovery under the False Claims Act is not measured by the amount of
11
any actual damage a relator might have sustained personally as a result of a
defendant’s false claim. Rather, the relator stands in the shoes of the United States
government. She can prosecute the lawsuit on the United States’ behalf, and
recover, for the United States, the losses attributable to any fraudulent claim and
the civil penalty authorized by the statute. 31 U.S.C. § 3730.
A. The Grant of Summary Judgment
In this case, the district court granted summary judgment for LFM because it
found that, as a matter of law, Walker’s complaint and evidence did not present the
possibility of a false or fraudulent claim. As stated above, the district court found
that the regulatory language that Walker claimed was violated when LFM
submitted its claims was ambiguous and therefore could not, as a matter of law,
serve as the predicate for a false claims action. We find error in the district court’s
reasoning.
First, we note that the district court granted LFM summary judgment on
Walker’s entire complaint even though a subset of the claims alleged by Walker
were allegedly submitted after the Medicare regulation had been amended and
clarified. See supra n.1. As of January 1, 2002 (four months before Walker filed
her original complaint in this case), the regulation providing conditions for
coverage of services rendered “incident to the service of a physician” was clear
about the meaning of that phrase. As of that date, all services billed as “incident to
12
the services of a physician” must have been rendered under a physician’s “direct
supervision.” 42 CFR § 410.26(b)(5) (2002). In order to satisfy this “direct
supervision” requirement, “the physician must [have been] present in the office
suite and immediately available to furnish assistance and direction throughout the
performance of the procedure.” 42 CFR § 410.26(a)(2) (2002), 410.32(b)(3)(ii)
(2002). This regulatory language unambiguously requires that a physician be
present in the office. Furthermore, this new regulatory language illuminates the
meaning of the physician certification on the HCFA 1500 form that the billed
services “were personally furnished by me or were furnished incident to my
professional service by my employee under my immediate personal supervision,”
at least as of January 1, 2002.
Medicare claims may be false if they claim reimbursement for services or
costs that either are not reimbursable or were not rendered as claimed. See United
States v. Calhoon, 97 F.3d 518, 524 (11th Cir. 1996); Peterson v. Weinberger, 508
F.2d 45, 52 (5th Cir. 1975). Given the clear definition of services rendered
“incident to the service of a physician” that became effective January 1, 2002,
Walker should be permitted to present evidence to a fact-finder supporting her
allegations that any Medicare claims LFM submitted from January 1, 2002 until
the date of her complaint for services of nurse practitioners or physician assistants
13
“incident to the service of a physician,” were not, in fact, rendered in compliance
with the applicable Medicare regulation and, therefore, were false. An issue of fact
also exists as to whether LFM physician certifications on the HCFA 1500 forms
submitted from January 1, 2002 until the date of Walker’s complaint were false.
Additionally, the district court erred by holding that any ambiguity in the
earlier version of 42 CFR § 410.26 and the HCFA 1500 certification necessarily
forecloses, as a matter of law, the falsity of claims submitted by LFM prior to
January 1, 2002. We agree that the regulatory language in effect until January 1,
2002 was ambiguous. But we disagree as to the legal significance of that
ambiguity. In opposition to LFM’s motion for summary judgment, Walker
submitted provisions from the Medicare Carrier’s Manual, Medicare bulletins,
seminar programs, and expert testimony regarding proper billing “incident to the
service of a physician,” as used in 42 U.S.C. § 410.26. She also presented two
notes written by LFM’s employee that paraphrase a billing consultant’s advice.
All of these sources were offered to show the meaning of the language in the
regulation and on the HCFA 1500 form and the reasonableness of LFM’s claimed
understanding of that language. At least some of these sources would support a
finding that, in the Medicare community, the language was understood to mean
that a physician had to be physically present in the office suite and otherwise more
14
involved in a patient’s course of care than the LFM physicians were. The district
court considered this evidence irrelevant and held that, because none of it held the
force of law, it could not be the basis for a false claim.
As the district court recognized, the Supreme Court has stated that agency
interpretations contained in policy statements, manuals, and enforcement
guidelines are not entitled to the force of law. Christensen v. Harris County, 529
U.S. 576, 587, 120 S. Ct. 1655, 1662 (2000). For that reason, we agree with the
district court that evidence of a defendant’s failure to comply with an
administrative guideline does not necessarily establish that the defendant presented
legally false claims–claims in violation of a statute or regulation–to the United
States. But that is not the issue here. What is at issue is whether any evidence
outside the language of a Medicare regulation (including guidance issued by the
governmental agency charged with administering the regulatory scheme) can be
consulted to understand the meaning of that regulation. We hold that it can.
The Supreme Court has held that agency interpretations are “entitled to
respect . . . to the extent that those interpretations have the power to persuade.” Id.,
120 S. Ct. at 1663 (citing Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S. Ct.
161, 164 (1944)). Our precedent is consistent. Indeed, we have followed this rule
in the context of Medicare false claims cases. In affirming a criminal false claims
15
conviction, this court looked to a manual published by HCFA to determine the
meaning of a Medicare regulation and establish the falsity of the defendant’s
claims for Medicare reimbursement. See Calhoon, 97 F.3d at 526 (consulting the
Provider Reimbursement Manual to define the meaning of a phrase in the Medicare
regulations). The fact that the Medicare Carrier’s Manual was not issued to
Defendants does not negate its probative value regarding the meaning of a
Medicare regulation. See United States v. Gold, 743 F.2d 800, 816 (11th Cir.
1984) (affirming criminal conviction of eye doctor for Medicare fraud and
approving admission of Medicare Carrier’s Manual provisions as evidence of what
types of claims were properly payable under Medicare).
In a case remarkably similar to this one, the Eighth Circuit recently held, “If
a statement alleged to be false is ambiguous, the government (or here, the relator)
must establish the defendant’s knowledge of the falsity of the statement, which it
can do by introducing evidence of how the statement would have been understood
in context.” Minnesota Assoc. of Nurse Anesthetists v. Allina Health System Corp.,
276 F.3d 1032, 1053 (8th Cir. 2002) (emphasis added). In the Minnesota case, the
relator alleged that anesthesiologists billed Medicare as if they had “personally
performed” an entire anesthesia case or were “continuously involved” in the
performance of that case when, in fact, they were not continuously present during
16
the case and were instead simultaneously engaged in other activities. Id. at 1037,
1038. A district court granted the defendants summary judgment because the court
considered the Medicare regulation’s phrases “personally performed” and
“continuously involved” to be ambiguous. Id. at 1052-1053. The Eighth Circuit
reversed, stating, “If the [relator] shows the defendants certified compliance with
the regulation knowing that the HCFA interpreted the regulations in a certain way
and that their actions did not satisfy the requirements of the regulation as the
HCFA interpreted it, any possible ambiguity of the regulations is water under the
bridge.” Id. at 1053. The Eighth Circuit found that evidence presented by the
relator (including the defendants’ attorney’s advice, HCFA memoranda, a bulletin
published by the FI, and an American Society of Anesthesiologists newsletter) was
relevant to a determination of the Medicare regulation’s meaning and that there
was a question of fact as to the defendants’ understanding of the meaning of the
regulatory language. Id. at 1053-54.
In opposition to LFM’s motion for summary judgment, Walker presented
provisions from the Medicare Carrier’s Manual in use during the relevant time
period 3, bulletins published by the FI (and received and maintained by LFM) that
3
The parties agree that, throughout the time period relevant to this lawsuit (whatever that
might be), the Medicare Carrier’s Manual set forth five criteria for a service to be covered as
“incident to the services of a physician.” To be covered, a service must: (1) be an integral, although
incidental, part of the physician’s professional service; (2) be commonly rendered without charge
or included in the physician’s bill; (3) be of the type commonly furnished in physicians’ offices or
17
provide guidance on proper “incident to the service of a physician” billing,
programs for seminars attended by LFM personnel that reviewed information on
proper “incident to the service of a physician” billing, and copies of notes
handwritten by LFM personnel documenting conversations between LFM
administrative personnel and a billing consultant regarding the need for UPINs for
physician assistants and nurse practitioners. Each of these pieces of evidence is
relevant to the meaning of the Medicare regulation at issue and LFM’s
understanding of that meaning. See Gold, 743 F.2d at 816 (Medicare Carrier’s
Manual and FI letter to provider properly admitted into evidence). Taken together,
they are sufficient to support findings that the Medicare regulation required that a
physician be physically present in the office suite and otherwise more involved in a
patient’s course of care than the LFM physicians were and that LFM knew of these
requirements. Thus, they raise an issue of fact as to the falsity of LFM’s billing for
clinics; (4) be furnished under the direct personal supervision of a physician; and (5) be furnished
by a physician or an employee of a physician. Medicare Carriers Manual Part 3, Claims Process
Pub. 14-3 (MCM), § 2050, at 2-19.
The parties also agree that, since at least 1992, the MCM has defined “direct personal
supervision in the office setting” to require that “the physician must be present in the office suite and
immediately available to provide assistance and direction throughout the time the aide is performing
services.” MCM, § 2050.1.B. at 2-20.
The parties disagree, however, regarding the meaning of other language in the MCM,
particularly the language in MCM, § 2050.2, that states “there must have been a direct, personal,
professional service furnished by the physician to initiate the course of treatment of which the
service being performed by the nonphysician practitioner is an incidental part, and there must be
subsequent services by the physician of a frequency that reflects his or her continuing active
participation in and management of the course of treatment.” Id. at 2-21.
18
nurse practitioner and physician assistant services “incident to the service of a
physician.” Summary judgment was inappropriate.
B. The Limit on Discovery
Walker also challenges the district court’s decision to limit discovery in the
case to the date range of her employment as a nurse practitioner at LFM. She
correctly states that, if, in limiting the temporal scope of discovery, the district
court “made a clear error of judgment . . . or . . . applied an incorrect legal
standard,” we must reverse that decision. Peat, Inc. v. Vanguard Research, Inc.,
378 F.3d 1154, 1159 (11th Cir. 2004) (citing Alexander v. Fulton County, 207 F.3d
1303, 1326 (11th Cir. 2000)).4
We find that the district court misconstrued the False Claims Act when it
limited discovery to the term of Walker’s employment. We therefore reverse the
discovery order. Under the False Claims Act, any person may serve as a qui tam
relator. 31 U.S.C. § 3730(b). The relator need not have any relation at all to the
defendant. Id. Neither is there a requirement that the relator suffer injury at the
hands of the defendant in order to state a claim under the False Claims Act. Id.
“The United States is the real party in interest in a qui tam action under the FCA
even if it is not controlling the litigation.” United States ex rel. Dimartino v.
4
Walker raised this issue in her initial brief, but LFM did not respond or otherwise address
the argument in any of its briefing.
19
Intelligent Decisions, Inc., 308 F.Supp. 2d. 1318, 1322 n.8 (M.D. Fla. 2004) (citing
United States ex rel. Rodgers v. Arkansas, 154 F.3d 865, 868 (8th Cir.1998);
United States ex rel. Hyatt v. Northrop Corp., 91 F.3d 1211, 1217 n. 8 (9th
Cir.1996); United States ex rel. Milam v. University of Texas M.D. Anderson
Cancer Center, 961 F.2d 46, 48-49 (4th Cir.1992)).
Under the Federal Rules of Civil Procedure, discovery is limited to
“matter[s], not privileged, that [are] relevant to the claim or defense of any party . .
. . Relevant information need not be admissible at the trial if the discovery appears
reasonably calculated to lead to the discovery of admissible evidence.” Fed. R.
Civ. P. 26(b)(1). Thus, Walker should have been permitted discovery of all
information relevant to her claims, on behalf of the United States, that false claims
for payment were made by LFM.
An examination of the Amended Complaint, the operative pleading in this
case, demonstrates that Walker alleges that LFM submitted false claims from at
least the time of Walker’s hiring 5 into the undefined future. Paragraph 11 of the
Amended Complaint recounts a conversation that Walker allegedly had with
LFM’s office manager, Gail Mayer. As part of that conversation, Mayer allegedly
5
Walker argues that discovery should be allowed from as far back as 1994, when LFM first
hired a physician assistant (a fact that Walker learned from deposition testimony of LFM’s office
administrator). However, the Amended Complaint does not make any allegation that a physician
assistant or nurse practitioner was employed at LFM prior to February 1997.
20
told Walker that LFM “never” billed nurse practitioner and physician assistant
services as independent services but rather always billed them as services “incident
to the service of a physician” and that if LFM were to bill the nurse practitioner
and physician assistant services as independent services, “it could not afford to
employ [Walker].” Amended Complaint ¶ 11. The same paragraph further
alleges, “LFM’s Medicare billing practices did not change subsequent to
[Walker’s] conversation with Gail Mayer.” Id. Paragraph 9 of the Amended
Complaint states, “Since [Walker’s] employment with LFM, LFM has employed at
least two more nurse practitioners and two more physician’s assistants.” Thus, the
Amended Complaint does not limit the allegations of false claims to the time
period during which Walker was employed by LFM. Rather, it alleges an ongoing
practice of false billing from the time Walker began working as a nurse practitioner
at LFM, in February 1997. The proper temporal range for discovery is February
1997 through the date of the original complaint.
C. The Denial of the Motion to Dismiss
Finally, LFM cross-appeals, arguing that the district court erred in denying
LFM’s Federal Rule of Civil Procedure 12(b)(6) motion to dismiss the Amended
Complaint. The motion was grounded on the assertion that the Amended
Complaint failed to plead fraud with particularity as required by Federal Rule of
Civil Procedure 9(b). We find this argument meritless.
21
This is not a case like United States ex rel. Clausen v. Laboratory
Corporation of America, Inc., 290 F.3d 1301 (11th Cir. 2002), in which a
“corporate outsider” made speculative assertions that claims “must have been
submitted, were likely submitted or should have been submitted to the
Government.” 290 F.3d at 1311. Neither is this case like Corsello v. Lincare, Inc.,
428 F.3d 1008 (11th Cir. 2005), in which we recently affirmed the district court’s
dismissal on the ground that the relator’s complaint was deficient under Rule 9(b)
because it “failed to explain why he believe[d] fraudulent claims were ultimately
submitted.” 428 F.3d at 1014.
Walker’s complaint identifies her as a nurse practitioner who was employed
at LFM. Amended Complaint ¶7. Walker alleges that, during her employment at
LFM, she never had her own UPIN and that she was instructed each day “which
doctor she would be billing under.” Amended Complaint ¶¶ 11, 15. The Amended
Complaint also alleges that Walker had at least one personal discussion with
LFM’s office administrator (identified in the complaint by name) during which the
two women discussed that Walker did not have her own UPIN, whether Walker
and the other nurse practitioners and physician assistants should have their own
UPINs, that (according to the office administrator) LFM billed all nurse
practitioner and physician assistant services as rendered “incident to the service of
a physician,” that (also according to the office administrator) LFM had “never”
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billed nurse practitioner or physician assistant services in another manner, and the
propriety of the billing method. Amended Complaint ¶¶ 10-12. These allegations
are sufficient to explain why Walker believed LFM submitted false or fraudulent
claims for services rendered by nurse practitioners and physician assistants
“incident to the service of a physician.” Therefore, we affirm the district court’s
order denying LFM’s motion to dismiss Walker’s complaint.
VI. CONCLUSION
For the reasons stated above, we reverse the grant of summary judgment in
favor of R&F Properties of Lake County, Inc., formerly known as Leesburg Family
Medicine. We find no error in the district court’s denial of R&F Properties of Lake
County, Inc.’s motion to dismiss the Amended Complaint. Finally, we conclude
that the district court erred in limiting the temporal scope of discovery and remand
for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
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