On September 22, 2016, the United States District Court for the Middle District of Florida granted defendant hospice providers’ motions to dismiss plaintiff-relator’s claims under the False Claims Act, Florida’s False Claims Act, and claims for conspiracy and retaliation.  United States v. LifePath, Inc., 2016 WL 5239863, Case No. 8:10-cv-0161-T-30TGW (M.D. Fla. September 22, 2016).  

Plaintiff, a licensed clinical social worker previously employed by one of the defendants, alleged that defendants had conspired to defraud the government by submitting claims to Medicare for hospice care they did not provide or for hospice care they provided to patients who were ineligible for that care because they were not terminally ill.  Id. at * 1.  Plaintiff filed her qui tam FCA lawsuit under seal in 2010.  After investigating her allegations, the United States and the State of Florida declined to intervene in the lawsuit.  Id. at * 4.  Plaintiff alleged causes of action for: (1) violation of the False Claims Act and Florida’s parallel statute, Fla. Stat. § 66.082(2)(a)-(b); (2) conspiracy to violate the False Claims Act and Florida’s False Claims Act; and (3) retaliation and employment discrimination against plaintiff’s former employer.  Id.

The court held that plaintiff fell well short of meeting the heightened pleading requirement under Fed. R. Civ. Proc. 9(b) for claims alleging fraud because plaintiff failed to identify a single claim submitted to the government let alone a false one.  Id. * 7.  The court noted that plaintiff failed to allege “facts as to time, place, and substance of the defendant’s alleged fraud” – that is, a fraudulent claim.  Id. (citing United States ex rel. Clausen v. Laboratory Corp. of America, Inc., 290 F.3d 1301, 1310 (11th Cir. 2002).  Accordingly, the court dismissed plaintiff’s claims for violation of the False Claims Act and Florida’s False Claims Act.  Id. * 8.  The court also dismissed plaintiff’s claims for conspiracy to violate the False Claims Act and Florida’s False Claims Act because plaintiff’s failure to plead the existence of a false claim, a necessary element in establishing her claim for conspiracy, necessarily meant that, as a matter of law, plaintiff could not prevail.  Id. at * 9.Lastly, the court found that plaintiff’s allegations failed to state a claim for retaliation and discrimination because, “accepted as true, the allegations fail to allege a necessary element of the claim – namely, that [plaintiff] engaged in a protected activity, …”  Id.  The court explained that while plaintiff alleged that she objected to unethical medical practices, she failed to allege “that she objected to fraudulent medical practices.”  Id. (italics in original). 

Finally, the court found that leave to amend would be futile given that the court had already granted leave to amend twice, and plaintiff had repeated chances to cure the deficiencies in her complaint.  Id. at * 11. Accordingly, the court ordered that the case be dismissed with prejudice.