Many courts require plaintiff/whistleblowers, or “relators,” in False Claim Act litigation allege in their complaints the “who, what, where, when and how” of the fraudulent conduct that shows that a defendant is liable under the FCA. These courts reason that relators under the False Claims Act must satisfy more stringent pleading requirements than other plaintiffs under the Federal Rules of Civil Procedure, as the rules create a higher pleading hurdle for allegations of fraud. This heightened standard requires False Claims Act plaintiffs allege actual “presentment” of a false claim, meaning the relator must allege that a false claim was actually presented to the government for payment. As the Eleventh Circuit Court of Appeals explained, the relator’s complaint must contain “some indicia of reliability … in the complaint to support allegations of an actual false claim for payment being made to the government.” Clausen v. Lab. Corp. of Am. Inc., 290 F.3d 1301, 1305 (11th Cir. 2002).
How does a whistleblower satisfy the presentment requirement when bringing an action under the False Claims Act? In U.S. ex rel. Napoli v. Premier Hospitalists, et al., No. 8:14-cv-2952-T-33TBM (M.D. Fla. Sept. 29, 2016), the U.S. District Court for the Middle District of Florida looked at how other courts approached the presentment issue when it decided whether a plaintiff properly alleged a claim under the FCA. The defendant in Napoli provided patient care and clinical management services for hospitals. The company hired nurse practitioners, physician assistants and doctors to visit hospitals and provide medical assessment, diagnosis and treatment. Id. at *1.
The plaintiffs in Napoli alleged defendants submitted false claims to the government which included billing for services performed by nurse practitioners and physician assistants as though the services were performed by physicians. The court in Napoli granted the defendants’ motion to dismiss the plaintiffs’ complaint, finding that the complaint lacked “sufficient detail regarding the actual submission of false claims to the government.” The court reasoned that the plaintiffs did not allege that one of the whistleblowers witnessed the submission of false claims, nor did they allege that the defendants told the plaintiffs about the fraudulent nature of the defendants’ billing practices. Id. at *5.
Napoli is helpful because it looks at other cases where courts have found that the presentment requirement had and had not been satisfied. For example, in U.S. ex rel. Walker v. R & F Properties of Lake City, Inc., 433 F.3d 1349 (11th Cir. 2005), the whistleblower alleged firsthand knowledge of her employer’s billing practices and alleged he was instructed to bill, and actually did bill, for her services under improper billing codes. In contrast, the whistleblower in Napoli did not allege that she either billed, or saw someone bill, her services as though a doctor had treated patients. Id. at *5.
A whistleblower must allege the “who, what, where, when and how” of fraudulent submissions to the government. It is not enough to allege the “who, what, where,” etc. of improper actions by a defendant. Whistleblowers must allege that claims were submitted to the government for payment. Without this “presentment” component of the claim, it is very likely the action will not succeed.
Jason Cornell is an attorney who represents whistleblowers with the law firm Clark Fountain LaVista Prather Keen & Littky-Rubin. Clark Fountain represents plaintiffs in various matters throughout the United States. If you have questions regarding the issues addressed in this or other posts, you can reach Jason at email@example.com.