they [therefore] violated the FCA's filing and service requirements. Wilson, 750 F.3d at 120. (Id. To be clear, the dispositive question is not whether FMCNA engaged in an illegal and pervasive scheme to pay kickbacks for referrals. 30-31). See 31 U.S.C. (Id. 154). (Id. 2:22-CV-01807 | 2022-10-21, U.S. District Courts | Personal Injury | constitutes a false claim.); id. 1998) (rev'd on other grounds, 529 U.S. 765 (2000)). 35). 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. (Am. Defendant further contends that the CIA it had entered into with the OIG relating to conduct of a company FMCNA later acquired (National Medical Care) qualified as a public disclosure. Add to basket. Our Leadership Team - Fresenius Medical Care WebFlanagan v. Fresenius Medical Care Holdings, Inc. View recent docket activity Reflects complaints, answers, motions, orders and trial notes entered from Jan. 1, 2011. . Ex. (Id.). Compl. (Am. Martin Flanagan To do so, the complaint must both allege the existence of a scheme to defraud and identify particularized false claims. Quick View. United States District Court, D. Massachusetts. The first-to-file bar provides that [w]hen a person brings an action . See East Bay Mun. FMCNA has moved to dismiss the amended complaint on the grounds that (1) the amended complaint is essentially a new complaint and should therefore have been filed under seal as required by 31 U.S.C. 2009) to support the contention that when a first-filed complaint is dismissed on jurisdictional grounds, it cannot bar a later-filed complaint. [ ]. 2009). Relator's allegations here describe the same essential scheme and do not materially add to those allegations. (Id. Duxbury v. Ortho Biotech Prods., L.P., 579 F.3d 13, 26 (1st Cir. In response, relator filed an amended complaint. The qui tam provisions of the FCA permit relators, in some instances, to reap huge financial windfalls. 2019) (quoting U.S. ex rel. 17). Co., 827 F.3d 5, 13 (1st Cir. Instead, those services were provided free of charge. 2016); Fed.R.Civ.P. See Ge, 737 F.3d at 124 (stating that the court reject[s][the] approach sought by the relator, which was a per se rule that if sufficient allegations of misconduct are made, it necessarily follows that false claims and/or material false information were filed). . Martin The complaint further alleges that FMCNA provided free or below-cost services to physicians to secure referrals. Ex. This docket was last retrieved on April 5, 2023. (Id. Submission of claims to Medicaid that were ineligible for payment because of violation of the AKS are actionable under the FCA because the payments of those claims were made with federal funds. (Id. . Although the budgetary spreadsheets were reviewed and approved by mid-level and upper management, the complaint alleges that the decision to run hospital programs at a loss was made by corporate management. Cancellation and Refund Policy, Privacy Policy, and at 233. 110-11). (McManus, Caetlin) (Entered: 11/22/2021), Docket(#15) Chief Judge F. Dennis Saylor, IV: ELECTRONIC ORDER entered granting #13 Motion for Leave to Appear Pro Hac Vice Added W. Scott Simmer. The settlement required DaVita to repay a total of $400 million to the federal government and various states, and the CIA that it entered into with the government impacted various aspects of DaVitas business operations. 2010). Martin Flanagan | Book Depository Martin Flanagan. 2013). (McManus, Caetlin) (Entered: 11/02/2021), (#9) ELECTRONIC NOTICE of Case Reassignment. See U.S. ex rel. Flanagan v. Fresenius Medical Care Holdings, Inc., No. . The complaint alleges that FMCNA engaged in improper remunerative relationships with medical directors in its outpatient clinics to capture their referrals. (Id. Family Medicine Call for an The amended complaint in this case, which was the first time relator raised any allegations concerning joint ventures, was filed three years later, in 2021. And, presumably, it has other weapons in its arsenal for dealing with fraudulent conduct. Here, the allegations are substantially similar to those in CKD and are thus based upon the public disclosures. occurred in the manner which is specified in the FCA; and (3) the relator's suit [is] based upon' those publicly disclosed allegations or transactions. U.S. ex rel. 242-55 (NANI in Illinois); id. The complaint must set forth with particularity the who, what, when, where, and how of the alleged fraud. U.S. ex rel. 45). On February 5, 2021 a long-time former Fresenius Medical Care North America (Fresenius) employee, Martin Flanagan, filed a qui tam relator amended 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. 2016). 2013) (Duxbury II) (internal quotation marks and citations omitted). 3730(b)(2); (2) the claims are barred by the FCA publicdisclosure bar, 31 U.S.C. (Danieli, Chris) (Entered: 11/02/2021), (#8) Judge Douglas P. Woodlock: ELECTRONIC ORDER FOR TRANSFER entered. 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. of Cunningham v. Millennium Lab'ys of Cal., Inc., 713 F.3d 662, 669-70 (1st Cir. 286 (Texas) (All such claims . WebA division of Fresenius Medical Care North America, Azura Vascular Care partners with dedicated, highly skilled physicians and surgeons, providing opportunities for practice Save US$2.12. By continuing to use this website, you agree to UniCourts General Disclaimer, Terms of Service, Counsel may need to link their CM/ECF account to their upgraded individual pacer account. Physicians who wanted to terminate the non-competition agreements were forced to negotiate onerous buyouts. 257 (Indiana) (All such claims . It also provides a very limited amount of statistical evidence to attempt to bolster those allegations. Wilson v. Bristol-Myers Squibb, Inc., 750 F.3d 111, 118 (1st Cir. Unless otherwise noted, the following facts are alleged in the amended complaint. Essentially, that version of the complaint alleged that FMCNA's efforts to incentivize referrals to its clinics violated the Anti-Kickback Statute, 42 U.S.C. It further alleges that defendant is required to submit on an annual basis a Form 265 cost report to Medicare that certifies, among other things, that the services identified in the report (that is, the dialysis services) were provided in compliance with federal law, including the Anti-Kickback Statute. He is also a trustee and vice-Chair of the Inv Martin Flanagan's Phone Number and Email Last Update 4/3/2023 2:19 PM Contact Number (***) ***-**** Engage via Phone Mobile Number (***) ***-**** Engage via Mobile Test Drive . While it is true that CMS data are reports for the purposes of the public disclosure bar, see U.S. ex rel. Martin Flanagan United States of America Defendant FRESENIUS MEDICAL CARE HOLDINGS, INC. doing business as Fresenius Medical Care North America . to purchase . 3729 et seq., by a company that provides dialysis services to patients with kidney failure. WebView the profiles of professionals named "Martin Flanagan" on LinkedIn. Because he did not present those new claims to the government, that portion of the amended complaint alleging false claims based on that conduct will be dismissed. . 308-20). #57) filed by Appellant Martin Flanagan. 9(b). June 11, 2014). To the extent the complaint here provides any factual or statistical evidence as to the actual false claims, it does so by alleging in a handful of instances that certain types of claims associated with patients at certain facilities were false. 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. The first was that these physicians were generally paid in excess of fair market value for the services they actually rendered. (Id.). A). The third, and perhaps most difficult, issue is whether the amended complaint pleads fraud with sufficient particularity to meet the requirements of Fed.R.Civ.P. Search Google Scholar for this author Patients who were referred to non-FMCNA clinics were categorized as leakage. (Id. . 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. It then used that data to identify physicians and practice groups to target for medical director positions and joint-venture agreements. Courts have therefore required relators to abide by those requirements when filing an amended complaint that is not substantially similar to the original complaint. WebDr. Martin Flanagan The portions of the claims based on those allegations will therefore be dismissed for failing to comply with the FCA's pre-suit requirements. The Anti-Kickback Statute, 42 U.S.C. 308-14). 172, 206-13). A secondary objective was to prevent defendants from having to answer complaints without knowing whether the government or relators would pursue the litigation. Id. (Am. were false .); id. Currently, Mr. Flanagan is President, Chief Executive Officer & Director at Invesco Ltd. Mr. Flanagan is also Chairman at Metro Atlanta Chamber of Commerce and on the board of 19 other companies. (Id. . FMCNA tracked the referrals recorded as part of the Bridge Program. Karvelas v. Melrose-Wakefield Hosp., 360 F.3d 220, 233 (1st Cir. According to ZoomInfo records, Sandra Martins professional experience began in 1986. (Id. 3730(e)(4)(A). . 3730(b)(2), (b)(4), (c)(1). 2012). Jason S. Greis at 312.624.6412 orjgreis@beneschlaw.com. Martin Flanagan (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. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia. Judge Douglas P. Woodlock assigned to case. 1:2014cv00665 - Document 72 (D. Md. Fighting proud: the remarkable story of Indigenous 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. (Id. Want to Read. The original complaint referred to joint-venture agreements between FMCNA and physicians, but only in order to contrast such agreements (which it referred to as a product of arms-length negotiations) with the higher compensation paid to medical directors in the absence of such agreements. Documents and certified copy of docket sheet and order of transfer received from the Clerk in the transferor district via Email. At most, the filings describe a set of circumstances that might be vulnerable to manipulation. (McManus, Caetlin) (Entered: 11/22/2021), (#15) Chief Judge F. Dennis Saylor, IV: ELECTRONIC ORDER entered granting #13 Motion for Leave to Appear Pro Hac Vice Added W. Scott Simmer. 176). In any event, as noted, the complaint does not include a single allegation concerning a single specific false claim. Under Rule 9(b), the standard for allegations of fraud is higher than the normal pleading standard. or recommend purchasing . 1:19-OP-45655 | 2019-07-22, U.S. Courts Of Appeals | Property | 2004), abrogated on other grounds by Allison Engine Co. v. United States ex rel. 247-48). I understand that the relevant personnel have since received training to avoid such errors in the future. It then alleges, in general terms, that all claims from those facilities were tainted by kickbacks and therefore constitute false claims within the meaning of the False Claims Act. Again, the complaint does not identify a single specific false claim-by Form UB-40, by patient name, by date, by location, by dollar amount, by billing code, by type of service, or otherwise. Michael D. Flanagan, MD | Main Line Health Nor does it provide any representative or sample claims. Chief Judge F. Dennis Saylor, IV assigned to case. (Id. The complaint further alleges that FMCNA paid its medical directors far above fair market value. 28, 38-40, 60-65). His last title was Director of Acute Market Development for the Fresenius Western Business Unit. In an FCA case, these may include details concerning the dates of the claims, the content of the forms or bills submitted, their identification numbers, the amount of money charged to the government, the particular goods or services for which the government was billed, the individuals involved in the billing, and the length of time between the alleged fraudulent practices and the submission of claims based on those practices. U.S. ex rel. Wilson v. Bristol-Myers Squibb, Inc., 2011 WL 2462469, at *6-7 (D. Mass. 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. 25) and five paragraphs addressing how the scheme resulted in false claims (Id. See Kelly, 827 F.3d at 13. US$20.14. Flanagan v. Fresenius Medical Care Holdings, Inc. 23-1305 | U.S. Court of Appeals, First Circuit | Justia Justia Dockets & Filings First Circuit U.S. Court of Appeals, That statute provides: The policy behind that requirement-allowing the government to investigate the claims and decide whether to intervene-is implicated when a relator amends a complaint to add completely new FCA claims. 25). 41 (The fact that medical director compensation is lower where the physician actually shares the cost of his or her compensation through his or her joint venture (ownership) agreement shows that where there are arms-length negotiations between two more or less equal parties, a lower compensation rate results.)). (Id. UNITED STATES ex rel. Third, it alleges that FMCNA provided physicians free or below-cost practice-management services. According to the complaint, FMCNA offered physicians the opportunity to enter into free practice-management agreements, in return for which it obtained the practice's data from the prior three to five years. Read More . (Id. Learn more about the survey. Under the circumstances, the Court concludes that the bar does not apply. b. . . The government had an opportunity to intervene if it chose, and elected not to do so. The complaint further alleges that FMCNA would typically pay high-performing physicians 10 to 12% of the clinic's topline revenue, whereas it would pay lower-performing physicians up to 6% of topline revenue. If the government declines to intervene and the qui tam case is unsealed, further proceedings are governed by 31 U.S.C. any good, facility, service, or item for which payment may be made in whole or in part under a Federal health care program shall be guilty of a felony. 31 U.S.C. Compl. 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. Martin Flanagan is a Senior National Account Manager at Quick International Courier based in Jamaica, New York. The complaint provides a detailed account of Fresenius acute care dialysis management business and alleges that it systematically used acute care dialysis management contracts with hospitals as loss leaders to secure patient referrals for Fresenius outpatient dialysis centers in violation of the FCA and AKS. 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. The Line: A Man's Experience; A Son's Quest to Understand. 02-11738, 2013 WL 682740, at *5 (D. Mass. Those arguments, however, are unavailing. ESRD expenditures by Medicare exceed $40 billion annually. Subscribe to Justia's Free Newsletters featuring summaries of federal and state court opinions. (Id. It alleged that [t]hese problematic physician relationships generally break down into two areas. (Id.). 2016). . 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. There is no checklist of mandatory requirements that each allegation in a complaint must meet to satisfy Rule 9(b). Hagerty ex rel. It then provides a table of patients and patient treatments for the same facilities over the same time period. 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. 3730(e)(4)(B). plaintiff the benefit of all reasonable inferences therefrom. Ruiz v. Bally Total Fitness Holding Corp., 496 F.3d 1, 5 (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. 2016). No published case in the First Circuit, however, has ever gone so far. He was employed by Fresenius for 29 years. United States v. Cyberonics, Inc., 844 F.3d 26, 31 (1st Cir. . WebMartin Flanagan is a Director, National of Acute Dialysis Services at Liberty Dialysis based in Anchorage, Alaska. Subscribe to Justia's Free Newsletters featuring summaries of federal and state court opinions. (Attachments: #1 Affidavit Certificate of Noah M. Rich in Support of Motion for Appearance Pro Hac Vice)(Sullivan, Christopher) (Entered: 11/22/2021), (#16) Chief Judge F. Dennis Saylor, IV: ELECTRONIC ORDER entered granting #14 Motion for Leave to Appear Pro Hac Vice Added Jamie Bennett. Here, despite its length, the amended complaint does not describe a single particular false claim. 304 (Washington state) (All such claims . Id. 142-43). As to Diablo Nephrology, the complaint alleges the following: As to Balboa Nephrology Medical Group, it alleges the following: As to NANI, the complaint provides a table of Medicare and Medicaid revenue for a period of five years at seventeen dialysis centers in the Chicago area. Email. (Id. Dr. Michael D. Flanagan, MD | Bryn Mawr, PA - US News Health Flanagan v. Fresenius Medical Care Holdings, Inc. 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. Third, defendant contends that relevant public disclosures occurred in multiple SEC filings by FMCNA. (Id. Dialysis refers to a treatment regimen aimed at artificially replacing some of the functions performed by a healthy kidney. We remand for further proceedings. (McManus, Caetlin) (Entered: 11/22/2021), Docket(#14) MOTION for Leave to Appear Pro Hac Vice for admission of Jamie Bennett Filing fee: $ 100, receipt number AMADC-9065597 by Martin Flanagan. The complaint further alleges a scheme to provide favorable leases to physician groups in order to induce referrals. 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. 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. Martin Flanagan is a Director, National of Acute Dialysis Services at Fresenius Medical Care North America based in Waltham, Massachusetts. The complaint alleges that FMCNA provided free discharge-planning services to hospitals, free in-service training to staff, free training to patients, and free quality assessment and improvement program data analysis. 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. The complaint does not allege, even in general terms, how claims are submitted under the CHAMPUS/TRICARE or CHAMPVA programs. The critical question is whether the complaint meets the exacting standard for FCA claims required by law. Id. Counsel may need to link their CM/ECF account to their upgraded individual pacer account. Why is this public record being published online? President, National Cardiovascular Partners; President, Spectra Laboratories. Fifth, it alleges that FMCNA entered into favorable joint-venture agreements (JVAs) with physician groups to induce them to make referrals. 1). (Id. (Attachments: #1 Docket Sheet from District of Maryland, #2 Docket Entries 1-30, #3 Docket Entries 31-50, #4 Docket Entries 51-56, #5 Docket Entries 58-74) (Jones, Sherry) Modified on 10/7/2021 to correct docket text. Attorneys admitted Pro Hac Vice must have an individual PACER account, not a shared firm account, to electronically file in the District of Massachusetts. Accordingly, [f]ailure to comply with these mandatory threshold requirements warrants dismissal of the qui tam complaint with prejudice. United States ex rel. The matter was unsealed, and therefore publicly disclosed, in 2018. (Attachments: #1 Affidavit Certificate of W. Scott Simmer in Support of Motion for Admission Pro Hac Vice)(Sullivan, Christopher) (Entered: 11/22/2021), (#11) Chief Judge F. Dennis Saylor, IV: ELECTRONIC ORDER entered granting #6 Motion for Leave to Appear Pro Hac Vice Added James F. Bennett. Previo usly, (Id. FMCNA also inserted non-competition clauses into their JVAs in order to lock partners into referring patients to its facility. CKD Project, LLC v. Fresenius Med. 1320a-7b, and False Claims Act, 31 U.S.C. 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. 3730(b)(2). In 2010, Congress amended the AKS to clarify that any Medicare claim that includes items or services resulting from a violation of [the AKS] constitutes a false or fraudulent claim for the purposes of [the FCA]. 42 U.S.C. Arch Flanagan, Martin Flanagan. The amended complaint describes-in considerable detail-a multi-part scheme to compensate caregivers in return for referrals. Free or Below-Cost Management Services. According to the complaint, [f]or this reason, claims submitted to the state Medicaid agencies are presented to the federal government within the meaning of the [False Claims Act]. (Id.). Counsel may need to link their CM/ECF account to their upgraded individual pacer account. Flanagan v. Fresenius Medical Care Holdings, Inc.