v. Balfour Beatty Infrastructure, Inc., 2014 WL 2611312, at *2 (N.D. Cal. Flanagan and his colleagues were allegedly instructed by their superiors to obtain hospital contracts at any cost to secure the referrals of discharged patients. To register for a PACER account, go the Pacer website at # https://pacer.uscourts.gov/register-account.Pro Hac Vice Admission Request Instructions # https://www.mad.uscourts.gov/caseinfo/nextgen-pro-hac-vice.htm.A Notice of Appearance must be entered on the docket by the newly admitted attorney. Fresenius Medical Care North America, Waltham, MA, USA See all articles by this author. Fighting proud: the remarkable story of Indigenous Defendant correctly contends that the initial complaint did not contain any allegations concerning unlawful joint-venture agreements, or the provision of free services to hospitals, physicians, and patients. United States District Court, D. Massachusetts. As to the submission of false claims, it makes the following general allegations: The complaint also describes the compensation paid to a number of specific medical directors around the United States. (McManus, Caetlin) (Entered: 11/22/2021), (#17) MOTION for Leave to Appear Pro Hac Vice for admission of Noah M. Rich Filing fee: $ 100, receipt number AMADC-9065658 by Martin Flanagan. The first issue is whether relator complied with the requirements of the False Claims Act to notify the government of his claims prior to filing suit. It is true that a violation of the Anti-Kickback Statute that results in a federal health care payment is a per se false claim. Guilfoile, 913 F.3d at 190. The first-to-file bar provides that [w]hen a person brings an action . (Id. Co., 827 F.3d 5, 13 (1st Cir. 02 Jun 2016. As to Scripps, it alleges the following: The complaint further alleges, at considerable length, a scheme to pay medical directors compensation above fair market value in order to induce referrals. Attorneys admitted Pro Hac Vice must have an individual PACER account, not a shared firm account, to electronically file in the District of Massachusetts. . Bonuses and performance evaluations for mid-level managers were tied, in part, to patient growth and the increase in number of treatments at individual clinics. The 2005 complaint alleged improper conduct dating from a decade before the conduct alleged here. Flanagan Nor does it provide any representative or sample claims. In other words, an AKS violation that results in a federal health care payment is a per se false claim under the FCA. Guilfoile v. Shields, 913 F.3d 178, 190 (1st Cir. 2016). Make your practice more effective and efficient with Casetexts legal research suite. FMCNA also established the Bridge Program, allegedly to help hospitals save money by streamlining the process for patient discharge from the hospital and admission to a chronic facility for dialysis. (Id. Here, the complaint describes in general terms how claims are submitted to Medicare and Medicaid; it describes the various ways in which FMCNA allegedly paid kickbacks for referrals; and as to each such aspect of the scheme, it alleges that every claim or all claims were fraudulent. The plausibility standard is not akin to a probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 556). 343). Gagne v. City of Worcester, 565 F.3d 40, 45 (1st Cir. 93). Web1 of 5 stars 2 of 5 stars 3 of 5 stars 4 of 5 stars 5 of 5 stars. If relator is correct, that means that the entire government-payor business of FMCNA-which appears to amount to more than $10 billion in revenue per year-is based on fraud. Martin Flanagan (Attachments: #1 Affidavit Certificate of W. Scott Simmer in Support of Motion for Admission Pro Hac Vice)(Sullivan, Christopher) (Entered: 11/22/2021), (#11) Chief Judge F. Dennis Saylor, IV: ELECTRONIC ORDER entered granting #6 Motion for Leave to Appear Pro Hac Vice Added James F. Bennett. Accordingly, the claims concerning joint-venture agreements are barred by the first-to-file rule. Cases involving fraud against the government, False Claims Act (FCA) - 31 USC 3729-3733. There is, of course, considerable logic to relator's arguments: if 100% of the business of FMCNA is tainted by kickbacks, and if 80% or more of the business of FMCNA involves government payors, it follows that FMCNA must have submitted many false claims. But nowhere does the complaint identify a specific physician who made a specific referral as a result of a specific unlawful practice that resulted in a specific false claim. (McManus, Caetlin) (Entered: 11/22/2021), (#15) Chief Judge F. Dennis Saylor, IV: ELECTRONIC ORDER entered granting #13 Motion for Leave to Appear Pro Hac Vice Added W. Scott Simmer. The CKD complaint therefore contained the essential facts alleged here, thus barring the allegations contained in the amended complaint. Attorneys admitted Pro Hac Vice must have an individual upgraded PACER account, not a shared firm account, to electronically file in the District of Massachusetts. The complaint further alleges that FMCNA would typically pay high-performing physicians 10 to 12% of the clinic's topline revenue, whereas it would pay lower-performing physicians up to 6% of topline revenue. 308-20). For example, medical directors at 160 FMCNA clinics made more than $300,000 in 2019, well above the average compensation of medical directors at similarly located clinics. (Id. Relator relies on the Sixth Circuit's holding in United States ex rel. See Wilson, 2011 WL 2462469, at *7. (CKD Compl. Flanagan v. FRESENIUS MEDICAL CARE HOLDINGS, INC. (1:21-cv-11627), Massachusetts District Court Flanagan v. FRESENIUS MEDICAL CARE HOLDINGS, Res., 162 F.3d 195, 200 (2d Cir. Therefore, the court may consider any public disclosures made prior to 2021 for purposes of determining whether the claims are prohibited by the public-disclosure bar. According to the United States Renal Data System, there were approximately 746,557 ESRD patients in the United States at the end of 2017. United States ex rel. UNITED STATES ex rel. . After describing that scheme in some detail, the complaint alleges the following as to the submission of actual false claims: The complaint also provides a somewhat more complete description of the false claims for services allegedly provided to Scripps Health, a large health care system with five hospitals in San Diego, California. (Id. (Id. 35). L. No. . 256-69 (IMN and other practices in Indiana); id. Previo usly, Third, it alleges that FMCNA provided physicians free or below-cost practice-management services. United States ex rel. . a. Martin Flanagan is a journalist and author who writes on sport, Australian culture and the relationship between indigenous and non-indigenous Australia. Add to basket. Counsel may need to link their CM/ECF account to their upgraded individual pacer account. 2008) (quoting Centro Medico del Turabo, Inc. v. Feliciano de Melecio, 406 F.3d 1, 6 (1st Cir. Relator first alleged fraud concerning joint ventures in the amended complaint, which was filed in 2021. 3729 et seq., by a company that provides dialysis services to patients with kidney failure. no person other than the Government may intervene or bring a related action based on the facts underlying the pending action. 31 U.S.C. (McDonagh, Christina). I understand that the relevant personnel have since received training to avoid such errors in the future. (Id.). There must be particularized allegations of claims for payment arising from that scheme. 2016). at 999. The second question is whether there is an exception to the first-to-file bar that would allow relator's pre-2010 claims to survive. 40). WebSenior Vice President of Strategic Business Integrations Fresenius Medical Care. (Id. Sandra Martin Work Experience and Education. 2005)). See Pub. To survive a motion to dismiss, a complaint alleging fraud must state with particularity the circumstances constituting fraud. Fed.R.Civ.P. (Id. Sanders, 553 U.S. 662 (2008). (Entered: 10/05/2021), Docket(#1) ELECTRONIC NOTICE of Case Assignment. SALTER, GARY vs. FRESENIUS MEDICAL CARE HOLDINGS INC, Instituto Mexicano del Seguro Social v. Fresenius Medical Care AG & Co. KGaA. 25) and five paragraphs addressing how the scheme resulted in false claims (Id. His last title was Director of Acute Market Development for the Fresenius Western Business Unit. 162). CHAMPVA, which is administered by the United States Department of Veterans Affairs, is a health-care program for families of veterans with 100% service-connected disabilities and provides ESRD benefits to covered beneficiaries. By contrast, here the statements in defendant's securities filings concerning medical-director agreements do not even convey the possibility that those agreements might violate the law. According to the complaint, FMCNA budgeted for the anticipated losses in the acute programs at many of the larger hospitals. Second, it alleges that FMCNA engaged in improper remuneration relationships with physicians who served as medical directors in its outpatient clinics in five ways: by selecting medical directors based on their expected and historical referrals; by paying them above-market compensation to reward referrals; by making no effort to report or verify their hours; by tracking their referrals to make sure they were not making referrals to competitors; and by requiring them to sign onerous noncompete agreements to lock them into their arrangements with FMCNA. 217). Westmoreland v. Amgen, 707 F.Supp.2d 123, 130 (D. Mass. 3730(b)(5); (4) the complaint has not pleaded fraud with particularity as required by Rule 9(b); and (5) the complaint fails to state a claim for FCA conspiracy. Courts have therefore required relators to abide by those requirements when filing an amended complaint that is not substantially similar to the original complaint. 3729(a)(1)(B) (Count 2); and conspiring to present false claims and making or using false records material to a false or fraudulent claim in violation of the False Claims Act, 31 U.S.C. 22-1304 | 2022-04-25, U.S. Courts Of Appeals | Other | 131). 1). If the government declines to intervene and the qui tam case is unsealed, further proceedings are governed by 31 U.S.C. were false.) (emphasis added)). To the extent that the amended complaint addresses those remuneration relationships, therefore, the claims will not be dismissed. Save US$2.12. 2016). Accordingly, the motion to dismiss will be granted. . . MEMORANDUM AND ORDER: This case was erroneously assigned to my docket as a result of a failure by docketing personnel in the Clerks Office to recognize that it is not related to the MDL proceeding assigned to me. June 11, 2014). Martin Flanagan United States of America Defendant FRESENIUS MEDICAL CARE HOLDINGS, INC. doing business as Fresenius Medical Care North America A subscription to PACER is required. 299 (Washington state) (All such claims . At most, the filings describe a set of circumstances that might be vulnerable to manipulation. Util. Counsel may need to link their CM/ECF account to their upgraded individual pacer account. . The Anti-Kickback Statute, 42 U.S.C. Relator Martin Flanagan has brought suit against defendant Fresenius Medical Care Holdings, Inc., d/b/a Fresenius Medical Care North America (FMCNA), alleging that FMCNA improperly provided free or below-cost services to hospitals and physicians, and made various types of improper payments to physicians, in exchange for referrals to its dialysis clinics. Marvel Studios Phenomenon And even though the regulatory guidance defines the medicaldirector position as occupying 0.25 FTE, the complaint alleges that FMCNA neither tracked nor enforced medical directors' hours spent on duties to their clinics. were false .); id. Subscribe to Justia's Free Newsletters featuring summaries of federal and state court opinions. It includes a blank example of such a form as Exhibit A. The matter was unsealed, and therefore publicly disclosed, in 2018. US$184.67 US$190.00. Chief Judge F. Dennis Saylor, IV assigned to case. Fresenius fired lawyer for reporting embezzlement, misconduct Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. (McManus, Caetlin) (Entered: 11/02/2021), (#9) ELECTRONIC NOTICE of Case Reassignment. Here, defendant contends that the allegations were previously disclosed in multiple ways, including a 2005 government investigation and a 2005 Corporate Integrity Agreement (CIA) between FMCNA and the Office of Inspector General of the Department of Health and Human Services (OIG). Ex. A subscription to PACER is required. 23). 3729-33, provides for civil liability for anyone who knowingly presents, or causes to be presented, a false or fraudulent claim for payment or approval or knowingly makes, uses, or causes to be made or used, a false record or statement material to a false or fraudulent claim. 31 U.S.C. Evidence of an actual false claim is the sine qua non of a False Claims Act violation. Karvelas, 360 F.3d at 225. In addition to Medicare and Medicaid, CHAMPUS/TRICARE, which is administered by the United States Department of Defense, provides ESRD benefits to health-care programs for individuals and dependents affiliated with the armed forces and to covered beneficiaries. 40. 304 (Washington state) (All such claims . Michael P. Flanagan, MD | Penn State Health End-Stage Renal Disease (ESRD) is the stage of advanced kidney impairment that requires either continued dialysis treatments or a kidney transplant to sustain life. (Id.). (Id. 361 (Dallas Nephrology Associates)). 88). Flanagan v. Fresenius Medical Care Holdings, Inc. :: Justia Dockets & Filings Notice of appeal (doc. 2021), the court found that SEC filings disclosing the nature of the joint-venture relationships and the regulatory risks associated with them were sufficient to qualify as public disclosures. It then alleges: The complaint does not, however, identify a single specific false claim submitted in connection with any of those dialysis centers. (Id. (Id. The complaint goes on to identify four specific sets of joint-venture arrangements (Balboa, NANI, ENA, and Dallas Nephrology Associates) and again alleges that all claims submitted in connection with patients treated by those physicians or facilities were tainted by kickbacks and therefore false. (Id. . facetime call on chromebook; On February 5, 2021 a long-time former Fresenius Medical Care North America (Fresenius) employee, Martin Flanagan, filed a qui tam relator amended 3730(b)(2), (b)(4), (c)(1). A more recent docket listing 1320a-7b(b)(2). UniCourt uses cookies to improve your online experience, for more information please see our Privacy Policy. at 555 (citations omitted). These arrangements allegedly also used long-term non-competition covenants to lock in patient referrals for the centers; non-fair market value space leases for dialysis centers where there was a landlord physician referral source; and. The complaint describes a culture of doing whatever it takes to enter into hospital contracts to secure patient referrals for Fresenius outpatient dialysis centers. The False Claims Act, 31 U.S.C. It appears, therefore, that the government may have suffered little or no actual financial loss. Flanagan v. Fresenius Medical Care Holdings, Inc. - Law360 (Id. (Id.). 2014), the First Circuit affirmed the denial of a motion to amend the complaint a third time.