by bvernia | September 22nd, 2009
On September 8, District Judge William Shubb denied the motion of a speech language pathologist and her clinic to dismiss the relator, a former pathologist at the clinic, from an intervened qui tam.
The relator’s complaint alleged that the pathologist, the clinic, and other defendants defrauded Medicare and Medicaid by submitting claims for services performed by aides and at locations which were not authorized for reimbursement.
The defendants argued that the relator’s allegations were disclosed in three ways, each of which the Court rejected:
- To the state Department of Health and Welfare (Judge Shubb ruled that, under Ninth Circuit precedent, disclosure to a state fraud investigator cannot constitute a public disclosure);
- During an audit by the state agency (the Court noted the pending case of Graham County Soil & Water Dist. v. US ex rel. Wilson, but found that the “administrative . . . audit or investigation” category of the bar could not apply because the allegations had not been disclosed to any member of the public); and
- In statements the relator made in a state-court deposition (relying on dicta in a since-vacated Ninth Circuit case, the Court rejected the theory that discovery information that is not actually filed in public could constitute a public disclosure).