by Ben Vernia | January 28th, 2016
On December 10, 2015, the Court of Appeals for the Eleventh Circuit, in an unpublished opinion in U.S. ex rel. Britton v. Lincare, Inc., affirmed the dismissal of a declined qui tam suit for failure to satisfy Fed. R. Civ. P. 9(b)’s requirement of pleading fraud with particularity. The Court described the relator’s “information and belief” allegations of false claims based on the company’s violation of its internal policy that only clinicians should instruct patients in the use of its nebulizers:
Here, Britton’s complaint alleges that he performed services that Lincare’s internal documents reserved for clinicians. However, “[t]he False Claims Act does not create liability merely for a health care provider’s disregard of Government regulations or improper internal policies unless, as a result of such acts, the provider knowingly asks the Government to pay amounts it does not owe.” Clausen, 290 F.3d at 1311. Britton is unable to muster any facts tending to show that Lincare asked the Government to pay amounts it does not owe. He disclaims any knowledge of Lincare’s billing practices, and does not allege the “who,” “what,” “where,” “when,” and “how” of fraudulent submissions to the government. Nor does Britton allege that the United States actually paid a false claim, or that Lincare intended for the government to rely on false statements in deciding whether to pay a false claim. See Hooper, 588 F.3d at 1329-30 (holding that actual payment of a claim is an element of § 3729(a)(2), and dismissing the relator’s action because even if actual payment need not be pled with particularity, the complaint failed to allege that the defendants intended for the government to rely on their false statements in deciding whether to pay a false claim).
The Court also affirmed the District Court’s denial of leave to amend the complaint.