As its Western Division director of acute market development, he was . by. It does not follow, however, that where there is an AKS violation, the requirement of establishing a false claim evaporates. 40.1(i) and with the approval of the Chief Judge hereby return the case for reassignment by the Clerk through the random draw appropriate for this case, under which all eligible judges -including me - will be eligible for proper assignment according to the luck of the draw. may be available from PACER. (CKD Compl. United States District Court, D. Massachusetts. SALTER, GARY vs. FRESENIUS MEDICAL CARE HOLDINGS INC, Instituto Mexicano del Seguro Social v. Fresenius Medical Care AG & Co. KGaA. In that role, he was responsible for, among other duties, negotiating contracts under which FMCNA provided dialysis treatment to hospital inpatients. 01 Oct 2018. Compl. If the government declines to intervene and the qui tam case is unsealed, further proceedings are governed by 31 U.S.C. 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. 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. It is sufficient to conclude that judgmental immunity is not applicable where, as here, there is evidence, if believed, that the attorneys fell below the standard of reasonable care in representing their client. (McManus, Caetlin) (Entered: 11/22/2021), (#14) MOTION for Leave to Appear Pro Hac Vice for admission of Jamie Bennett Filing fee: $ 100, receipt number AMADC-9065597 by Martin Flanagan. We remand for further proceedings. Mo. 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. 1:2014cv00665 - Document 72 (D. Md. 299 (Washington state) (All such claims . . 44). (Id. The plaintiff further recounts various instances where Fresenius leadership was questioned about the fair market value of such relationships and the companys alleged failure to enforce annual contractual rate increases. 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. . 6:22-CV-03192 | 2022-07-28. 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. . . 334-35). Chronic kidney disease refers to the progressive loss of a person's kidney function, which is normally irreversible. 4:05-cv-985 (E.D. 1320a-7b(b)(2). The complaint alleges various methods by which FMCNA improperly induced the referral of patients to its dialysis clinics. Furthermore, they do not directly disclose the existence of any of the alleged schemes, or any other form of fraud, nor do they describe facts from which the existence of a fraudulent scheme might be inferred. As to the claims arising from that scheme, the complaint alleges the following: As set forth above, the allegations of the complaint concerning joint-venture agreements, free services to hospitals and patients, and free practice-management services to physicians will be dismissed for failure to comply with the notification and other requirements of the False Claims Act. CKD Project v. FMCNA, No. 750 F.3d at 120. 4.9 out of 5 from 219 Patient Satisfaction Ratings. 90). 272). Martin Flanagan's Phone Number and Email Last Update. (Id. (McManus, Caetlin) (Entered: 11/02/2021), (#10) Chief Judge F. Dennis Saylor, IV: ELECTRONIC ORDER entered granting #5 Motion for Leave to Appear Pro Hac Vice Added Megan S. Heinz. Learn more about the survey. Gonzales et al. WebA division of Fresenius Medical Care North America, Azura Vascular Care partners with dedicated, highly skilled physicians and surgeons, providing opportunities for practice (Id.). 14-cv-6646 (E.D.N.Y. As set forth above, the complaint alleges that FMCNA provided dialysis services to hospitals at prices well below cost in order to capture referrals of discharged patients to its dialysis clinics. 2017)). A subscription to PACER is required. 88). FMCNA is a wholly-owned subsidiary of Fresenius Medical Care AG & Co. KGaA, which is located in Bad Homburg, Germany. Flanagan Webmartin flanagan freseniusno credit check homes for rent in tucker, ga. at Edisto Beach. Co. Ltd., 737 F.3d 116, 123 (1st Cir. Beneschs healthcare+ attorneys have significant experience representing nephrology group practices and dialysis organization in governmental fraud and abuse investigations. Feb. 25, 2013), the mere publication of compensation information, without an allegation of fraud or misrepresentation, is not sufficient to trigger the bar. (Reuters) - A former top legal executive at Germany's Fresenius Medical Care AG & Co KGaA sued the dialysis clinic operator on Tuesday alleging he was To survive a motion to dismiss, a complaint alleging fraud must state with particularity the circumstances constituting fraud. Fed.R.Civ.P. General Description of Medicare and Medicaid Claim Systems. Wilson v. Bristol-Myers Squibb, Inc., 750 F.3d 111, 118 (1st Cir. Access this case on the Massachusetts District Court's Electronic Court Filings (ECF) System. Martin Flanagan - Fresenius (Id. (Id. 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. (Id. . 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. The qui tam action at issue was United States ex rel. Martin Flanagan Sandra Martin Work Experience and Education. As to some of those medical practices, the complaint provides some amount of additional detail, although again it does not describe any specific false claims. Flanagan . . 359 (NANI); id. (Attachments: #1 Affidavit Certificate of W. Scott Simmer in Support of Motion for Admission Pro Hac Vice)(Sullivan, Christopher) (Entered: 11/22/2021), Docket(#12) NOTICE of Appearance by Christopher P. Sullivan on behalf of Martin Flanagan (Sullivan, Christopher) (Entered: 11/18/2021), Docket(#11) Chief Judge F. Dennis Saylor, IV: ELECTRONIC ORDER entered granting #6 Motion for Leave to Appear Pro Hac Vice Added James F. Bennett. (Id. 321-31). Rule 9(b) may be satisfied where, although some questions remain unanswered, the complaint as a whole is sufficiently particular to pass muster under the FCA. U.S. ex rel. The Medicare ESRD program is administered through the Centers for Medicare & Medicaid Services (CMS), an agency within the Department of Health and Human Services (HHS). (Woodlock, Douglas) (Entered: 11/02/2021), Docket(#7) NOTICE of Appearance by Abraham R. George on behalf of United States of America (George, Abraham) (Entered: 10/18/2021), Docket(#6) MOTION for Leave to Appear Pro Hac Vice for admission of James F. Bennett Filing fee: $ 100, receipt number AMADC-9005666 by Fresenius Medical Care Holdings, Inc.. (Attachments: #1 Affidavit Certification of James F. Bennett)(Durant, Maria) (Entered: 10/13/2021), Docket(#5) MOTION for Leave to Appear Pro Hac Vice for admission of Megan S. Heinsz Filing fee: $ 100, receipt number AMADC-9005610 by Fresenius Medical Care Holdings, Inc.. (Attachments: #1 Affidavit Certification of Megan S. Heinsz)(Durant, Maria) (Entered: 10/13/2021), Docket(#4) NOTICE of Appearance by Maria R. Durant on behalf of Fresenius Medical Care Holdings, Inc. (Durant, Maria) (Entered: 10/07/2021), Docket(#3) NOTICE of Appearance by William H. Kettlewell on behalf of Fresenius Medical Care Holdings, Inc. (Kettlewell, William) (Entered: 10/07/2021), Docket(#2) Case transferred in from District of Maryland; Case Number 14-cv-00665-GLR. In substance, the complaint alleged that FMCNA engaged in a scheme to pay kickbacks to physicians with whom it had entered into joint-venture agreements. In summary, the amended complaint fails to state allegations of fraud under the FCA with the particularity required by Rule 9(b). Accordingly, and for the following reasons, the motion to dismiss will be granted. Flanagan filed the original complaint on March 6, 2014, alleging presentation of false claims in violation of the False Claims Act, 31 U.S.C. In response, relator filed an amended complaint. Counsel may need to link their CM/ECF account to their upgraded individual pacer account. First, defendant contends that the salaries paid to all of its medical directors is a matter of public record and is available on the website of the Center for Medicare and Medicaid Services (CMS). It then alleges: The complaint does not, however, identify a single specific false claim submitted in connection with any of those dialysis centers. The CKD complaint therefore contained the essential facts alleged here, thus barring the allegations contained in the amended complaint. (Id. 85). Instructions on how to link CM/ECF accounts to upgraded pacer account can be found at # https://www.mad.uscourts.gov/caseinfo/nextgen-current-pacer-accounts.htm#link-account. Nov. 12, 2014) (ECF No. Chief Judge F. Dennis Saylor, IV assigned to case. A claim is any request or demand . On February 5, 2021 a long-time former Fresenius Medical Care North America (Fresenius) employee, Martin Flanagan, filed a qui tam relator amended complaint (Complaint) against Fresenius alleging that the company had entered into arrangements with hospitals and physicians in order to secure dialysis patient referrals for Fresenius outpatient dialysis clinics, and that such arrangements violated the Federal False Claims Act (FCA) and the Federal Anti-Kickback Statute (AKS). 02 Jun 2016. Allegations concerning pre-merger conduct cannot be said to have disclosed post-merger conduct. 308-14). And it means that relator stands to reap a reward of 15%-30% of any recovery-an amount that might well be measured in tens of billions of dollars. 2016) (citing Duxbury I, 579 F.3d at 29). The Court has previously determined that the portion of the amended complaint that alleges claims arising out of the joint-venture agreements and the provision of free services to physicians will be dismissed for failure to comply with the pre-suit requirements of the False Claims Act. Attorneys admitted Pro Hac Vice must have an individual PACER account, not a shared firm account, to electronically file in the District of Massachusetts. As the Chair of the Local Rules Committee when the relevant rules were adopted, see generally L.R. It alleged that [t]hese problematic physician relationships generally break down into two areas. (Id.). 2013) (internal quotation marks and citations omitted). . A former employee filed an amended whistleblower complaint against Fresenius Medical Care North America, alleging the dialysis company had unlawful 81-166). (Danieli, Chris) (Entered: 11/02/2021), Docket(#8) Judge Douglas P. Woodlock: ELECTRONIC ORDER FOR TRANSFER entered. (Id.). Conrad v. Abbott Lab'ys, Inc., No. Martin Flanagan and United States of America: Defendant: FRESENIUS MEDICAL CARE HOLDINGS, INC. doing business as Fresenius Medical Care North Fourth, it alleges that FMCNA entered into favorable leases with medical directors that paid them above-market rates. It might also be entirely rational to shift the burden to the defendant: that is, once a relator has established the existence of a kickback scheme, arguably the burden should be shifted to the defendant to prove that certain referrals were not caused by payment of kickbacks. WebFlanagan v. Fresenius Medical Care Holdings, Inc. - Docket Entries . Save US$5.33. Since then Sandra has changed 4 companies and 4 roles. The first question, for the purpose of applying the first-to-file bar, is whether the first-filed complaint contained all the essential facts of the fraud later alleged. United States v. Millenium Lab'ys, Inc., 923 F.3d 240, 252 (1st Cir. (Attachments: #1 Affidavit Certificate of Jamie Bennett in Support of Motion for Appearance Pro Hac Vice)(Sullivan, Christopher) (Entered: 11/22/2021), (#13) MOTION for Leave to Appear Pro Hac Vice for admission of W Scott Simmer Filing fee: $ 100, receipt number AMADC-9065559 by Martin Flanagan. 23641 (Balboa Nephrology Medical Group in California); id. Martin Flanagan Fresenius Medical Care Holdings, Inc., 1:14-cv-00665 Brought to you by the RECAP Initiative and Free Law Project, a non-profit dedicated to creating high quality 3730(e)(4)(A). Instructions on how to link CM/ECF accounts to upgraded pacer account can be found at # https://www.mad.uscourts.gov/caseinfo/nextgen-current-pacer-accounts.htm#link-account. Ex. The complaint must set forth with particularity the who, what, when, where, and how of the alleged fraud. U.S. ex rel. Mem. Counsel may need to link their CM/ECF account to their upgraded individual pacer account. . Karvelas v. Melrose-Wakefield Hosp., 360 F.3d 220, 233 (1st Cir. FMCNA decided that one of the keys to capturing new patients for its dialysis clinics was through its relationships with hospitals providing inpatient acute care. Martin Flanagan (Id. It then used that data to identify physicians and practice groups to target for medical director positions and joint-venture agreements. (Id. Martin Flanagan is a resident of Texas. 368-74). 13 at 23); and that (3) If physicians and other referral sources cease referring patients to our dialysis clinics . [ ]. 25). . 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). First, the complaint alleges in general terms that all claims for reimbursement made to Medicare require the submission of a Form UB-40 (or a substantially similar form) that contains various data, including the patient's identifying information and line items for each claim sought to be reimbursed. (Am. Judge Douglas P. Woodlock assigned to case. 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. That may, in part, be a result of the fact that relator did not work in any financial or billing capacity, but rather worked as the Director of Acute Market Development for the Fresenius Western Business Unit, and negotiated contracts between FMCNA and hospitals for in-patient dialysis treatment. 223). See East Bay Mun. Dec. 2, 2022). 84). (Id. 3730(e)(4)(B) (2006). 23-7001 | 2023-01-06, U.S. District Courts | Personal Injury | (Attachments: #1 Affidavit Certificate of Noah M. Rich in Support of Motion for Appearance Pro Hac Vice)(Sullivan, Christopher) (Entered: 11/22/2021), Docket(#16) Chief Judge F. Dennis Saylor, IV: ELECTRONIC ORDER entered granting #14 Motion for Leave to Appear Pro Hac Vice Added Jamie Bennett. (Id. See 31 U.S.C. . Private persons, known as relators, can file civil qui tam actions on behalf of the United States against persons or entities who violate the act. Third, defendant contends that relevant public disclosures occurred in multiple SEC filings by FMCNA. While it is true that it did not use the term medical director agreements, its allegations concerning improper remuneration to physicians in the form of compensation above fair-market value and favorable leases are nonetheless substantially similar to those in the amended complaint. Please contact one of the authors below or a member of theBenesch Healthcare+ Practice Groupif you have questions regarding information contained in this Client Alert. That is not sufficient, under the case law, to state a false claim with particularity within the meaning of Rule 9(b). Instructions on how to link CM/ECF accounts to upgraded pacer account can be found at # https://www.mad.uscourts.gov/caseinfo/nextgen-current-pacer-accounts.htm#link-account. See Kelly, 827 F.3d at 15 (It may not be irrational to infer that, given [the allegations of the fraudulent scheme], some false claims . 3730(b)(2); (2) the claims are barred by the FCA publicdisclosure bar, 31 U.S.C. As is often the case with qui tam actions, the issue is not whether the complaint alleges an unlawful scheme-it does, in considerable detail-but whether it actually pleads a violation of the False Claims Act. The complaint does not allege, even in general terms, how claims are submitted under the CHAMPUS/TRICARE or CHAMPVA programs. ESRD expenditures by Medicare exceed $40 billion annually. The U.S. Justice Department said on Tuesday it joined a whistle-blower lawsuit against Fresenius Medical Care AG, the world's biggest dialysis care company, on claims that it defrauded Medicare. For the sake of simplicity, the Court will focus first on the Medicare claims. Care Holdings, Civil Action 21-11627-FDS (D. Mass. As to the appellee L. Martin Flanagan, we affirm. Add to Flanagan v. Fresenius Medical Care Holdings, Inc. our revenues would decrease. (Id. 119 (2010). 1999)). 83). 2019) (cleaned up). 242-55 (NANI in Illinois); id. Fresenius fired lawyer for reporting embezzlement, misconduct Under the circumstances, the Court concludes that the bar does not apply. (Id. at *3 (collecting cases). This docket was last retrieved on April 5, 2023. Finally, one place to get all the court documents we need. Compl. 1320a-7b(g); Patient Protection and Affordable Care Act, Pub. 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. Kelly v. Novartis Pharm. In assessing whether a given later-filed suit is based upon' publicly disclosed allegations, [courts] look to whether those allegations are substantially similar' to said allegations. Cunningham, 713 F.3d at 670. 119 (2010). It is insufficient to allege a scheme and then to make generalized allegations that the scheme must have, as a matter of logic, resulted in false claims. 01 Jun 2022. 332-36). Martin Flanagan | Book Depository 12% off. 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. Defendant also contends that the claims concerning joint-venture agreements are barred by the first-to-file rule. Again, those claims will be dismissed on other grounds; however, even if those claims survived those challenges, they are duplicative of the allegations in CKD and therefore would be barred by the first-to-file rule. One problem lies in the phrase results in-that is, the requirement of causation. First, it alleges that FMCNA offered remuneration to hospitals in two ways: by entering into contracts that provided no-cost and/or below-cost inpatient dialysis services, and by providing significant free services, including free dischargeplanning services, free in-service training to staff, free training to patients, and free quality assessment and improvement data analysis to hospitals. See United States ex rel. The fact that the CKD complaint was dismissed on jurisdictional grounds is therefore irrelevant. Second, the requirement for direct knowledge was replaced with the requirement that a relator's knowledge must materially add[ ] to the publicly disclosed allegations or transactions. Id. Since 1972, Medicare has been the primary payor for more than 80% of the cost of dialysis treatment for nearly 800,000 ESRD patients in the United States. See 31 U.S.C. Medical directors are not FMCNA employees, but physicians in private practice. 3730(e)(4)(A). 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. As the Chair of the Local Rules Committee when the relevant rules were adopted, see generally L.R. Documents and certified copy of docket sheet and order of transfer received from the Clerk in the transferor district via Email. (Id. Martin Flanagan is a Senior National Account Manager at Quick International Courier based in Jamaica, New York. (Entered: 10/05/2021), Docket(#1) ELECTRONIC NOTICE of Case Assignment. Relator Martin Flanagan has brought suit against defendant Fresenius Medical Care Holdings, Inc., d/b/a Fresenius Medical Care North America (FMCNA), As to each, it provides some specifics as to the scheme (such as referral trends and medical-director compensation levels). The following is a relevant excerpt from an SEC filing cited by the court in CKD: That excerpt discloses that the joint ventures do not qualify for safe-harbor protection and identifies the penalties that might be imposed should the company be found to be in violation of the relevant statutes. In 2014, a qui tam action was filed in the Eastern District of New York alleging that on FMCNA acquired controlling interests in dialysis clinics and paid physician owners above market value for their clinics and that this excess constituted payment to induce the doctors to refer patients back to these clinics. U.S. ex rel. Our Leadership Team - Fresenius Medical Care 15). 2005)). 110-11). Finally, the complaint alleges that medical directors were required to sign agreements containing non-competition provisions in order to preclude any medical director and those in the same practice group from engaging in any remunerative relationship with another dialysis company. In United States ex rel. Defendant further contends that the original complaint did not contain any allegations concerning medical-director agreements, and that all claims based on such agreements should likewise be dismissed. (Id. 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. FMCNA tracked the referrals recorded as part of the Bridge Program.