Opinion
CIVIL NO. SA-21-CV-00160-OLG
2022-01-12
UNITED STATES of America, Plaintiff, v. MARLIN MEDICAL SOLUTIONS LLC, Shapa Inc., VC Pharmacy, Medscript Pharmacy LLC, David Marlin Edwards, Dr. Richard Niemeyer, Dr. Alex De Jesus, Dr. LaTisha Rowe, Syed Zulfiqar, Medico Marketing, Inc., Defendants.
Samuel M. Shapiro, Erin M. Van De Walle, Assistant United States Attorney, U.S. Attorney's Office, San Antonio, TX, for Plaintiff. Jason Davis, Harry Jay Hulings, Stephanie L. Dodge, Davis & Santos, P.C., San Antonio, TX, for Defendants David Marlin Edwards, Marlin Medical Solutions LLC. Erica Benites Giese, Josue Joel Galvan, Jackson Walker, L.L.P., San Antonio, TX, for Defendant Syed Zulfiqar. Erica Benites Giese, Josue Joel Galvan, Jackson Walker, L.L.P., San Antonio, TX, Robert L. Seibert, David & David, PC, Austin, TX, for Defendants Shapa Inc., VC Pharmacy. Martin Merritt, Pro Hac Vice, Martin Merritt, PLLC, Dallas, TX, for Defendant Medico Marketing, Inc. Bradley W. Howard, Brown & Fortunato, P.C., Amarillo, TX, for Defendant Medscript Pharmacy LLC. James Byron Hicks, R. Chad Geisler, Ryan C. Bueche, Germer Beaman and Brown PLLC, Austin, TX, for Defendant Dr. Richard Niemeyer. Mark J. Barrera, The Barrera Firm, Robert J. Barrera, Robert J. Barrera P.C., San Antonio, TX, for Defendant Dr. Alex De Jesus. Dennis L. Roossien, Jr., Frederick W. Addison, III, Munsch Hardt Kopf & Harr, PC, Dallas, TX, Casey O. Minnes, Munsch Hardy Kopf Harr P.C., Houston, TX, for Defendant Dr. Latisha Rowe.
Samuel M. Shapiro, Erin M. Van De Walle, Assistant United States Attorney, U.S. Attorney's Office, San Antonio, TX, for Plaintiff.
Jason Davis, Harry Jay Hulings, Stephanie L. Dodge, Davis & Santos, P.C., San Antonio, TX, for Defendants David Marlin Edwards, Marlin Medical Solutions LLC.
Erica Benites Giese, Josue Joel Galvan, Jackson Walker, L.L.P., San Antonio, TX, for Defendant Syed Zulfiqar.
Erica Benites Giese, Josue Joel Galvan, Jackson Walker, L.L.P., San Antonio, TX, Robert L. Seibert, David & David, PC, Austin, TX, for Defendants Shapa Inc., VC Pharmacy.
Martin Merritt, Pro Hac Vice, Martin Merritt, PLLC, Dallas, TX, for Defendant Medico Marketing, Inc.
Bradley W. Howard, Brown & Fortunato, P.C., Amarillo, TX, for Defendant Medscript Pharmacy LLC.
James Byron Hicks, R. Chad Geisler, Ryan C. Bueche, Germer Beaman and Brown PLLC, Austin, TX, for Defendant Dr. Richard Niemeyer.
Mark J. Barrera, The Barrera Firm, Robert J. Barrera, Robert J. Barrera P.C., San Antonio, TX, for Defendant Dr. Alex De Jesus.
Dennis L. Roossien, Jr., Frederick W. Addison, III, Munsch Hardt Kopf & Harr, PC, Dallas, TX, Casey O. Minnes, Munsch Hardy Kopf Harr P.C., Houston, TX, for Defendant Dr. Latisha Rowe.
ORDER
ORLANDO L. GARCIA, Chief United States District Judge On this day, the Court considered Defendant Richard Niemeyer, M.D.’s ("Niemeyer") Motion to Dismiss Plaintiff's First Amended Complaint (Dkt. No. 48, the "Niemeyer Motion") and Defendant LaTisha Rowe, M.D.’s ("Rowe") Motion to Dismiss Plaintiff's First Amended Complaint (Dkt. No. 46, the "Rowe Motion"). After a review of the parties’ briefing and applicable law, the Court finds that the Niemeyer Motion should be GRANTED IN PART AND DENIED IN PART and the Rowe Motion should be GRANTED IN PART AND DENIED IN PART .
The facts in this section are based on the allegations in the Government's First Amended Complaint (Dkt. No. 29), which the Court accepts as true for purposes of the Motion. See Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).
I. Factual Background
This case arises from an alleged kickback scheme orchestrated by Defendants Marlin Medical Solutions, LLC, and its owner and operator, David Marlin Edwards (together, "Marlin Medical"), that targeted beneficiaries of the TRICARE program, a federally funded health insurance program for members of the United States military and their dependents. First Am. Compl. ¶ 1 (Dkt. No. 29, the "Complaint"). With the other defendants, including Defendants Richard Neimeyer and LaTisha Rowe, Marlin Medical billed TRICARE for millions in reimbursements for compounded pain creams, scar creams, and wellness capsules through a referral scheme built around a series of kickback arrangements. Id.
Neimeyer and Rowe participated in events hosted by Marlin Medical in San Antonio, Texas, between November 2014 and February 2015. Id. ¶ 3. During those events, Neimeyer and Rowe briefly met with TRICARE beneficiaries, wrote them prescriptions for compounded drugs, and sent the prescriptions for fulfillment to Marlin Medical's pharmacy of choice. Id. ¶¶ 3, 5. The pharmacies then submitted the prescriptions to TRICARE for reimbursement and provided Marlin Medical with kickbacks based on a percentage of the reimbursement. Id. ¶ 6. Dr. Richard Neimeyer. Niemeyer attended a three-day event in San Antonio from December 18 through December 20, 2014. Id. ¶ 66. He understood that at the event, he would be meeting with TRICARE beneficiaries who were interested in obtaining prescriptions for compounded pain and scar creams. Id. ¶ 67. In return for his participation in the events, Marlin Medical paid for Neimeyer's travel, meals, and accommodations at a luxury hotel, paid to Niemeyer $2,500 through a donation to his charity, and provided him with premium tickets to a San Antonio Spurs basketball game, with the opportunity to interact with some of the players. Id. ¶ 68. Niemeyer also requested an additional $5,000 from Marlin Medical, which it concealed as a second donation to Niemeyer's charity. Id.
Neimeyer attended his first event on Thursday, December 18, 2014 at the house of J.G., a sports agent and member of the Marlin Medical marketing team (the "Thursday Event"). Id. ¶ 69. During that event, Niemeyer met with S.E. and K.B., two TRICARE beneficiaries for whom he wrote prescriptions for compounded drugs. Id. ¶¶ 70–71. The event on Friday, December 19, 2014 (the "Friday Event") proceeded in a similar manner, during which Niemeyer spent five to seven minutes with individual attendees to gauge their interest in compounded products. Id. ¶ 74. The event planned for Saturday, December 20, 2014 (the "Omni Seminar") was moved to a conference room at the Omni Colonnade Hotel. Id. ¶ 75. Again, Neimeyer met with attendees individually, but did not perform physical examinations or write down notes on at least two of them. Id. ¶¶ 78–79.
When Niemeyer returned to Pennsylvania, he received documents from the three-day event, with prescription pads and beneficiary information. Id. ¶ 81. He then issued compounded prescriptions for the TRICARE beneficiaries he met with in Texas and faxed them to Defendant Medscript Pharmacy, LLC ("Medscript") for fulfillment. Id. ¶ 82. Between December 18, 2014, and January 22, 2015, Neimeyer wrote 189 compounded prescriptions for ninety TRICARE beneficiaries, which resulted in the billing of 505 prescriptions, including refills, for government reimbursement. Id. ¶ 85.
Dr. LaTisha Rowe. On February 7, 2015, Rowe attended an event hosted by Marlin Medical at the DoubleTree Hilton Hotel in San Antonio (the "Rowe Seminar"). Id. ¶ 124. She understood that she was attending the Rowe Seminar to meet with and issue prescriptions for TRICARE beneficiaries in attendance. Id. ¶ 123. In exchange, Rowe received travel and hotel expenses, a check for $1,500, and the expectation that Marlin Medical would make an investment in her business, Rowe Alliance LLC ("Rowe Alliance"). Id. At the event, Rowe presented on compound pain and scar creams, then met with individual attendees. Id. ¶ 124.
Rowe did not immediately issue compounded prescriptions for the attendees she met with. Id. ¶ 125. Rather, she offered Edwards and J.L. an "investment opportunity" to buy a percentage of ownership in Rowe Alliance. Id. After Marlin Medical invested $25,000 in her company on February 24, 2015, Rowe received compound prescription forms prepared by Marlin Medical's then-preferred pharmacy, Defendant VC Pharmacy, Inc. d/b/a/ Rite Care Pharmacy IV ("Rite Care"). Id. On March 4, 2015, twenty-six days after the Rowe Seminar, Rowe completed and signed compounded prescription requests and sent them to Rite Care for fulfillment and billing. Id. ¶ 126. In total, Rowe submitted to forty prescriptions to Rite Care for compounded drug products for twenty TRICARE beneficiaries, which were then submitted as sixty-nine claims for TRICARE reimbursement. Id. ¶¶ 126–27, 129.
II. Procedural History
The Government filed its original complaint on February 22, 2021, see Dkt. No. 1, and its First Amended Complaint (at issue here) on July 9, 2021, see Dkt. No. 29. On August 27, 2021, Niemeyer and Rowe each timely moved to dismiss the claims asserted against them. See generally Dkt. Nos. 46, 48. That same day, the Government filed a Stipulation of Dismissal of Count III, which alleged violations of the Anti-Kickback Statute, as to all Defendants. See Dkt. No. 47. The Court's August 30, 2021 Order dismissed Count III as to all Defendants, see Dkt. No. 49, so it is not at issue in either the Neimeyer or Rowe Motion.
LEGAL STANDARD
Under Federal Rule of Civil Procedure 12(b)(6), a complaint may be dismissed if it "fails to state a claim upon which relief can be granted." Dismissal is appropriate if, assuming the truth of all well-pleaded facts in the complaint, it fails to state a "claim to relief that is plausible on its face." Iqbal , 556 U.S. at 678, 129 S.Ct. 1937 (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). A well-pleaded complaint must include allegations "respecting all the material elements necessary to sustain recovery under some viable legal theory." Twombly , 550 U.S. at 562, 127 S.Ct. 1955 (quoting Car Carriers, Inc. v. Ford Motor Co. , 745 F.2d 1101, 1106 (7th Cir. 1984) ). Throughout the Court's Rule 12(b)(6) analysis, "[t]he complaint must be liberally construed, with all reasonable inferences drawn in the light most favorable to the plaintiff." Morgan v. Swanson , 659 F.3d 359, 370 n.17 (5th Cir. 2011) (en banc) (quoting Woodard v. Andrus , 419 F.3d 348, 351 (5th Cir. 2005) ). The Court need not accept as true, however, mere "labels and conclusions," "a formulaic recitation of the elements of a cause of action," or legal conclusions couched as factual allegations. Twombly , 550 U.S. at 555, 127 S.Ct. 1955 (citing Papasan v. Allain , 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986) ).
Because the Government's claims sound in fraud, the Complaint must meet Rule 9(b)’s heightened pleading standards. The Government must "state with particularity the circumstances constituting fraud or mistake," Fed. R. Civ. P. 9(b), which generally includes "the time, place, and contents of the false representation and the identity of the person making the representation." United States v. Bollinger Shipyards, Inc. , 775 F.3d 255, 260 (5th Cir. 2014). In the FCA context, however, " Rule 9(b) is ‘context specific and flexible,’ " and may be met "without including all the details of any single court-articulated standard." United States ex rel. Nunnally v. W. Calcasieu Cameron Hosp. , 519 F. App'x 890, 892–93 (5th Cir. 2013) (quoting United States ex rel. Grubbs v. Kanneganti , 565 F.3d 180, 189–90 (5th Cir. 2009) ). Importantly, "[m]alice, intent, knowledge, and other conditions of a person's mind may be alleged generally," pursuant to Rule 8's plausibility standard. Fed. R. Civ. P. 9(b).
APPLICABLE LAW
I. The False Claims Act
The False Claims Act ("FCA") makes liable to the Government any person who, inter alia , knowingly causes to be presented a false or fraudulent claim for payment by the Government; knowingly makes or causes to be made a false statement material to a false or fraudulent claim; or conspires to get a false claim paid in violation of the FCA. 31 U.S.C. § 3729(a)(1)(A)–(C). The Government must plausibly allege four elements to establish an FCA claim: "(1) ‘there was a false statement or fraudulent course of conduct; (2) made or carried out with the requisite scienter; (3) that was material; and (4) that caused the government to pay out money or to forfeit moneys due (i.e., that involved a claim).’ " United States ex rel. Porter v. Magnolia Health Plan, Inc. , 810 F. App'x 237, 240 (5th Cir. 2020) (quoting Abbott v. BP Expl. & Prod., Inc. , 851 F.3d 384, 387 (5th Cir. 2017) ).
Scienter. The relevant FCA provisions require that a party act "knowingly" to be held liable. Under the FCA, however, acting "knowingly" does not require proof of specific intent to violate the law or defraud the Government. 31 U.S.C. § 3729(b)(1). Rather, the Government must allege that a party had actual knowledge of the information or acted in deliberate ignorance of or with reckless disregard for the truth or falsity of the claims. Id. Further, "[t]he FCA applies to anyone who ‘knowingly assists in causing’ the government to pay claims grounded in fraud." United States ex rel. Riley v. St. Luke's Episcopal Hosp. , 355 F.3d 370, 378 (5th Cir. 2004) (quoting Peterson v. Weinberger , 508 F.2d 45, 52–53 (5th Cir. 1975) ).
Materiality. A statement is "material" under the FCA if it has "a natural tendency to influence, or be capable of influencing, the payment or receipt of money or property." 31 U.S.C. § 3729(b)(4). The Fifth Circuit has interpreted the materiality standard to only require that a false or fraudulent statement has "the potential to influence the government's decisions." United States ex rel. Longhi v. Lithium Power Techs., Inc. , 575 F.3d 458, 470 (5th Cir. 2009). The Government need not plead that the false statements actually influenced its payment decisions. Id. at 469.
II. The Anti-Kickback Statute
The Anti-Kickback Statute ("AKS") prohibits the knowing and willful offering, solicitation, or receipt of any remuneration "to induce the referral of an individual for items or services that may be paid for by a federal health care program." Nunnally , 519 F. App'x at 893 ; 42 U.S.C. § 1320a-7b(b). To successfully plead an AKS claim, the Government must allege that the defendant "(1) knowingly and willfully (2) solicited or received, or offered or paid remuneration (3) in return for, or to induce, referral or program-related business." United States v. Medoc Health Servs. LLC , 470 F. Supp. 3d 638, 648 (N.D. Tex. 2020) (quoting United States ex rel. Wall v. Vista Hospice Care Inc. , No. 3:07-cv-00604-M, 2016 WL 3449833, at *21 (N.D. Tex. June 20, 2016) ).
FCA-AKS Relationship. "A violation of the AKS can serve as the basis for a FCA claim when the Government has conditioned payment of a claim upon the claimant's certification of compliance with the statute, and the claimant falsely certifies compliance." Nunnally , 519 F. App'x at 893. Indeed, "if claims are submitted in violation of the AKS, they are considered false claims under the FCA as a matter of law." United States ex rel. Wheeler v. Union Treatment Ctrs., LLC , No. SA-13-CA-4, 2019 WL 571349, at *5 (W.D. Tex. Feb. 12, 2019). If the Government plausibly alleges that a defendant received kickbacks made "with the intent of inducing referrals, and they plead ‘particular details of a scheme ... paired with reliable indicia that lead to a strong inference that claims were actually submitted,’ the separate elements of the AKS and FCA are satisfied." United States ex rel. Parikh v. Citizens Med. Ctr. , 977 F. Supp. 2d 654, 665 (S.D. Tex. 2013) (quoting Grubbs , 565 F.3d at 190 ).
Scienter . The AKS requires that a kickback be received knowingly and willfully. Like the FCA, violations of the AKS do not require that a person "have actual knowledge of this section or specific intent to commit a violation of this section." 42 U.S.C. § 1320a-7b(h). Rather, it is sufficient for the Government to plead "that the defendant willfully committed an act that violated the Anti-Kickback Statute." United States v. St. Junius , 739 F.3d 193, 210 (5th Cir. 2013). That is to say, the defendant committed the act voluntarily and intentionally, and not necessarily with the purpose to violate the AKS.
Niemeyer and Rowe both contend that the Court should apply the willfulness standard articulated in United States v. Nora , which sets forth that "a ‘willful’ act is one undertaken with a ‘bad purpose.’ " 988 F.3d 823, 830 (5th Cir. 2021) (quoting Bryan v. United States , 524 U.S. 184, 191–92, 118 S.Ct. 1939, 141 L.Ed.2d 197 (1998) ). But the Fifth Circuit caveats that definition twice in the surrounding paragraphs: first , by applying it to "the criminal context," and second , by recognizing that "the precise meaning of the term ‘willfully’ can vary depending on the context." Nora , 988 F.3d at 830. Here, the Government is not pursuing criminal AKS charges against the Defendants; rather, the AKS serves as an underlying violation to support the Government's civil FCA presentment and false record claims. And further, the St. Junius standard is squarely consistent with the statute's language, which expressly disclaims the need for specific intent to violate the law. See 42 U.S.C. § 1320a-7b(h).
DISCUSSION
I. The Niemeyer Motion
Niemeyer moves to dismiss the claims brought against him for three primary reasons. First , he contends that the FCA presentment and false record claims fail because the Government has not alleged the requisite scienter. See Niemeyer Mot. at 1. Second , Niemeyer asserts that the Government has neither alleged a quid pro quo relationship nor that he acted knowingly and willfully, as needed to establish the AKS predicate. See id. Lastly , he argues that the Government's conspiracy claim cannot stand because it fails to allege that Niemeyer was party to an unlawful agreement. See id. The Court will proceed to consider these arguments.
A. Count I: Presentment of False Claims Under § 3729(a)(1)(A)
The FCA establishes civil liability for any person who "knowingly presents, or causes to be presented, a false or fraudulent claim for payment or approval." 31 U.S.C. § 3729(a)(1)(A). As discussed above, the Government must establish that (1) Niemeyer presented or caused to be presented a claim for payment to the United States; (2) the claim was false or fraudulent; (3) Niemeyer knew the claim was false or fraudulent; and (4) the claim was material to the Government's payment decision. See Porter , 810 F. App'x at 240. The Court finds that the Government has alleged each element with particularity, and thus Niemeyer's Motion to Dismiss should be DENIED as to Count I.
1. Causation
There is no dispute that claims based on prescriptions issued by Neimeyer were submitted to the government for reimbursement, through the TRICARE program. Indeed, the Government alleges that Medscript submitted claims to TRICARE based on prescriptions written by Niemeyer. See Compl. ¶¶ 83–86. Niemeyer argues, however, that the Complaint lacks specific facts that demonstrate that Niemeyer had knowledge of the alleged scheme, including that the prescriptions he sent to Medscript would then be submitted to TRICARE for reimbursement. See Niemeyer Mot. at 10–12. The Court interprets this argument as one challenging causation—if Niemeyer did not know about the scheme, he could not have knowingly caused the presentment of a false or fraudulent claim to the government. Importantly, Rule 9(b) ’s particularity requirement does not apply to knowledge or "other conditions of a person's mind," which need only be pleaded plausibly. Fed. R. Civ. P. 9(b). Viewing the Complaint through that lens, the Court is not persuaded by Niemeyer's argument.
Separately, the Government is correct that the FCA defines "knowing" specifically with regards to the truth or falsity of the statement at issue. See 31 U.S.C. § 3729(b)(1).
It is well established that a person may be held liable for the presentment of a false claim even if he did not actually submit the claim to the government. See Riley , 355 F.3d at 378 (quoting United States v. Mackby , 261 F.3d 821, 827 (9th Cir. 2001) ). "Rather, the law merely demands more than mere passive acquiescence in the presentation of the claim and ‘some sort of affirmative act’ that causes or assists the presentation of a false claim." Medoc , 470 F. Supp. 3d at 655 (quoting United States ex rel. Colquitt v. Abbott Labs. , No. 3:06-cv-01769, 2016 WL 80000, at *7 (N.D. Tex. Jan. 7, 2016) ).
Here, the Complaint alleges that Niemeyer knew that TRICARE beneficiaries would attend the three-day event during which he met with potential patients, Compl. ¶ 67; that Niemeyer met with patients who provided him with their TRICARE beneficiary information, id. ¶¶ 70–71; that he received prescription pads and beneficiary information after the event, id. ¶ 81; and that he used that information to issue compounded prescriptions for TRICARE beneficiaries and sent them to Medscript for fulfillment, id. ¶ 83. It is reasonable to infer from these allegations that Niemeyer—a practicing doctor at the time—was aware that most patients rely on their health insurance to reduce out-of-pocket costs, which necessitates the submission of claims to their insurance providers. In this case, Niemeyer's patients included TRICARE beneficiaries—a fact that he allegedly knew, see id. ¶¶ 67, 70–71—and thus, it is reasonable to assume that he knew (or at least expected) that the claims would be submitted to TRICARE for reimbursement. Accordingly, the Court finds that the Government has alleged facts sufficient to establish that Niemeyer knowingly caused or assisted the claims at issue to be submitted to the government.
The Court is likewise not persuaded by Niemeyer's argument that the Government only makes collective allegations with respect to his knowledge. Although the allegation Niemeyer cites refers to the Defendant Physicians generally, see Compl. ¶ 177, it is supported by over 20 paragraphs of allegations specifically addressing Niemeyer's conduct.
2. Falsity
An FCA violation next requires a false statement or fraudulent course of conduct. Longhi , 575 F.3d at 467. Claims submitted in violation of the Anti-Kickback Statute are per se false or fraudulent claims under the FCA. See 42 U.S.C. § 1320a-7b(g). Here, Niemeyer argues that the Government has failed to allege any violation of the AKS, and thus has not established that the claims submitted were false or fraudulent. See Niemeyer Mot. at 14.
To state an AKS violation, the Complaint must allege that Niemeyer (1) solicited or received remuneration; (2) in return for referral or program-related business; and (3) did so knowingly and willfully. See Medoc , 470 F. Supp. 3d at 648. As discussed in turn below, the Court finds that the Government has adequately pleaded each element of the predicate AKS violation.
Receipt of Remuneration. Courts generally interpret "remuneration" broadly, as "anything of value in any form whatsoever." United States ex rel. Ruscher v. Omnicare, Inc. , No. 4:08-CV-3396, 2014 WL 2618158, at *8 (S.D. Tex. June 12, 2014) (quoting United States ex rel. McDonough v. Symphony Diagnostic Servs., Inc. , No. 2:08-CV-114, 2012 WL 628515, at *5 (S.D. Ohio Feb. 27, 2012) ). Here, the parties do not dispute that, according to the Complaint, Niemeyer received from Marlin Medical checks to his charity totaling $7,500, travel, meal, and luxury hotel expenses for the San Antonio trip, and premium tickets to a San Antonio Spurs game, with the opportunity to interact with some players. See Compl. ¶¶ 68, 169. These allegations are sufficient to establish that Niemeyer received something of value from Marlin Medical.
Quid Pro Quo. Case law "consistently treats the AKS's inducement element as an intent requirement." Parikh , 977 F. Supp. 2d at 665. Indeed, all that Rule 9(b) requires are allegations that kickbacks were made with the intent of inducing referrals, coupled with "the particular details of a scheme"; actual inducement is not required. Id.
Here, the Government has pleaded the details of the alleged scheme: Niemeyer received the benefits described above, which were made "[i]n return for" his agreement to attend the San Antonio events, meet with patients, and write prescriptions for compounded pain and scar creams. Compl. ¶ 68. Neimeyer would then submit the prescriptions to Marlin Medical's preferred pharmacy, Medscript (which in turn, paid a percentage of the TRICARE reimbursements to Marlin Medical). Id. ¶¶ 81, 87–88. The Complaint also identifies the total number of prescriptions issued by Niemeyer and submitted to Medscript for fulfillment and billing. Id. ¶¶ 84–86.
Niemeyer contends, however, that the allegations fail to state that the remuneration was in return for his writing of prescriptions for TRICARE beneficiaries. See Niemeyer Mot. at 14–15. Rather, he claims, the allegations only establish that the benefits to Niemeyer were provided to secure his attendance at the San Antonio events, which is consistent with legal conduct. Dkt. No. 61 at 6 (citing United States ex rel. Integra Med Analytics, LLC v. Baylor Scott & White Health , No. 5:17-CV-886, 2019 WL 3713756, at *5–6 (W.D. Tex. Aug. 5, 2019) (" Integra Med I ")). First , as the Government rightly notes, the Fifth Circuit employs the "one purpose" test, which requires that only "one purpose of the remuneration was to induce such referrals." United States ex rel. Ruscher v. Omnicare, Inc. , 663 F. App'x 368, 374 (5th Cir. 2016). As discussed above, the Government has adequately alleged as much. Second , in Integra Med I , another court in this District made clear that the allegations were " ‘not only compatible with’ but arguably ‘more likely explained by’ lawful conduct." Integra Med I , 2019 WL 3713756, at *6. Taking the Complaint as true, the Court cannot conclude here that Niemeyer's actions were "more likely explained by lawful conduct." Id.
Niemeyer also contends that it is equally likely that he thought the prescriptions were medically necessary. But "[m]edical necessity is not relevant for the AKS theory of liability." United States v. Vora , 488 F. Supp. 3d 554, 565 (W.D. Ken. 2020) (citing United States v. Eggleston , 823 F. App'x 340, 344 (6th Cir. 2020) ). Rather, the relevant question is whether Niemeyer wrote prescriptions and sent them to Medscript because of remuneration. Id.
Moreover, although the Complaint alleges that Niemeyer sent prescriptions for compounded products to Medscript for patients referred by Marlin Medical before he attended the San Antonio events, the number of prescriptions Niemeyer wrote and referred to Medscript skyrocketed after he received the benefits. Compare Compl. ¶ 83 (41 compounded prescriptions from Nov. 19, 2014, to Dec. 13, 2014) with ¶ 85 (189 compounded prescriptions from Dec. 18, 2014, to Jan. 22, 2015); accord United States ex rel. Bilotta v. Novartis Pharms. Corp. , 50 F. Supp. 3d 497, 520–21 (S.D.N.Y. 2014) (finding allegations sufficient to state kickback scheme where prescriptions "significantly increased after they began attending ... [sham speaker] events"). As such, the Court finds that the Complaint has adequately stated a quid pro quo relationship.
AKS Scienter. The AKS requires action committed knowingly and willfully—that is, an act committed voluntarily or purposely, with the intent to commit the forbidden act. See St. Junius , 739 F.3d at 210 ; 42 U.S.C. § 1320a–7b(b)(1). Importantly, "a person need not have actual knowledge of [the AKS] or specific intent to commit a violation of [the AKS]." 42 U.S.C. § 1320a–7b(h). As such, the Complaint must allege that Neimeyer acted purposely and voluntarily in accepting the remuneration to write prescriptions for TRICARE reimbursement and submit them to Medscript.
Niemeyer rather summarily argues that the Complaint does not allege that he knew the benefits were compensation for furnishing prescriptions for TRICARE reimbursement, nor that he acted willfully. See Niemeyer Mot. at 16. In response, the Government points to specific factual allegations that support the reasonable inference that Niemeyer acted with the intent of committing an act that the AKS forbids. For example, the Complaint alleges that:
• Niemeyer accepted various remunerations in exchange for attending the three-day event and prescribing compounded drug products for fulfillment at Medscript, Marlin Medical's preferred pharmacy, Compl. ¶ 68;
• Niemeyer agreed to attend the events to meet with individuals and issue prescriptions for them, id. ¶ 66;
• Niemeyer understood that some of the individuals were TRICARE beneficiaries, and thus, that the government could furnish payment for the prescriptions he signed, id. ¶ 67;
• After agreeing to attend the events but prior to arriving in San Antonio, Niemeyer solicited additional remuneration to ensure his participation, id. ¶ 68; and
• Marlin Medical agreed to Niemeyer's request for additional remuneration and issued a check to his charity for an amount double of what was originally provided, id.
From these allegations—and especially the allegation that Niemeyer solicited additional payment after he had already agreed to attend the events and received the first round of benefits—the Court can infer that Niemeyer knowingly and willfully accepted and solicited kickbacks in return for referring TRICARE beneficiaries. Accordingly, the Court finds that the Government has stated with particularity an AKS violation, and thus has established the falsity of the submitted claims.
3. Scienter
Niemeyer next contends that the Government fails to allege the requisite scienter to establish its FCA claim. Specifically, Niemeyer argues that the Complaint does not include facts to show that the prescriptions he wrote were medically unnecessary or that the benefits to Niemeyer put him on notice that he was receiving a kickback. See Niemeyer Mot. at 11–13. In response, the Government argues that (1) Niemeyer mischaracterizes the allegations in describing them as merely criticizing his scientific judgment and (2) the Complaint establishes that Neimeyer had actual knowledge of the falsity of the claim because he knowingly practiced medicine in Texas without a license. See Dkt. No. 53 (the "Niemeyer Response") at 17–19.
At minimum, the Complaint must include facts that establish that Niemeyer acted in deliberate ignorance of or with reckless disregard for the truth or falsity of the claims. 31 U.S.C. § 3729(b)(1)(A)(ii)–(iii). Allegations that demonstrate that Niemeyer did not make determinations of medical necessity before issuing prescriptions can support such a finding. See, e.g., United States ex rel. Polukoff v. St. Mark's Hosp. , 895 F.3d 730, 744 (10th Cir. 2018) (finding that complaint adequately alleged that defendants "acted with reckless disregard as to whether the [procedures defendant] was performing were medically necessary").
Here, the Government alleges that Niemeyer wrote prescriptions for pain and eczema creams for patient S.E., after spending a few minutes questioning S.E. about her symptoms. See Compl. ¶ 70. It also alleges that Niemeyer submitted a prescription for pain medication for patient K.B. after he "answered a few brief questions concerning his medical history." Id. ¶ 71. At the Thursday and Friday Events at J.G.’s home, the Complaint alleges, Niemeyer spent "no more than 5 to 7 minutes with any individual attendee." Id. ¶ 74.
At the Omni Seminar, attendees met with Niemeyer, who then filled out a compounded prescription request form for each patient, which prescribed the respective "pain or scar creams, or ‘general wellness’ products" they desired. Id. ¶ 76. For example, Niemeyer met with patient F.M. at the Omni Seminar, F.M. advised Niemeyer that she "had pain in her knees and back," and he submitted a compound pain cream for her symptoms. Id. ¶ 78. Niemeyer did not perform a physical exam on F.M., nor did he write down any information about her medical issues. Id. Patient A.M. also met with Niemeyer and received two prescriptions from him, but did not indicate a specific medical complaint, complete a medical history questionnaire, or receive a physical examination from Niemeyer. Id. ¶¶ 79, 86. The Complaint finally alleges that Niemeyer issued compounded prescriptions for patients he saw in Texas from his office in Pennsylvania "[d]espite ostensibly not taking observable written notes on beneficiary complaints or conducting examinations." Id. ¶ 82.
Niemeyer argues that the Complaint does not adequately allege a lack of medical necessity for the compounded prescriptions he issued. See Niemeyer Mot. at 13. But the actual medical necessity of the prescriptions is not relevant to the Court's inquiry, nor to the Government's argument. Rather, the Government argues in its brief that Niemeyer issued prescriptions regardless of medical necessity, by failing to conduct physical examinations or make determinations based on the patients’ physical medical conditions. See Niemeyer Resp. at 14. Indeed, the Court can reasonably infer from the allegations described above that Niemeyer issued prescriptions for compounded drug products with reckless disregard for or in deliberate ignorance of whether they were medically necessary, e.g. , without conducting physical examinations or taking written notes on patients’ conditions. Accordingly, the Court finds that the Government has adequately pleaded that Niemeyer acted with the requisite scienter.
The Court need not re-address Niemeyer's argument related to the alleged kickbacks nor discuss whether the Complaint pleads actual knowledge, in addition to the lesser scienter standards.
4. Materiality
Niemeyer summarily states that the Government "failed to plausibly allege the benefits received by Dr. Neimeyer could influence the government's payment decision," without any further support. Niemeyer Mot. at 17. But the burden is on Niemeyer to "prove that no legal cognizable claim for relief exists." United States ex rel. Monsour v. Perf. Accts. Receivable, LLC , No. 1:16-CV-38, 2018 WL 4682343, at *18 (S.D. Miss. Sept. 28, 2018) (quoting 5B Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1357 (3d ed. 2018) ). Rather than simply assert that the Complaint does not allege materiality, Niemeyer must explain why or how. He has not carried that burden.
Regardless, a review of the allegations makes clear that the Government has pleaded that the claims at issue here could have had "the potential to influence the government's decisions." Longhi , 575 F.3d at 470. The Complaint alleges that TRICARE was unaware of the falsity of the claims and thus paid for claims "that would otherwise not have been allowed." Compl. ¶ 219. And courts have found AKS violations to be inherently material to the government's decision to pay claims presented. See, e.g., Wheeler , 2019 WL 571349, at *7 ; Medoc , 470 F. Supp. 3d at 654–55 ; United States ex rel. Capshaw v. White , No. 3:12-CV-4457, 2018 WL 6068806, at *4 (N.D. Tex. Nov. 20, 2018) ; United States ex rel. Wood v. Allergan, Inc. , 246 F. Supp. 3d 772, 818 (S.D.N.Y. 2017), rev'd on other grounds , 899 F.3d 163 (2d Cir. 2018). The Court agrees: AKS violations are "serious, consequential, felony transgressions of law ... precisely the kind of violation[s] the FCA is supposed to reach." Capshaw , 2018 WL 6068806, at *4.
As such, the Court finds that the Government has sufficiently alleged materiality, and more broadly, a presentment claim under 31 U.S.C. § 3729(a)(1)(A). The Court finds that Niemeyer's Motion to Dismiss Count I should be DENIED .
B. Count II: False Record Under § 3729(a)(1)(B)
The FCA also imposes liability on a person who "knowingly makes, uses, or causes to be made or used, a false record or statement material to a false or fraudulent claim." 31 U.S.C. § 3729(a)(1)(B). As Niemeyer challenges this claim through the same arguments asserted against the presentment claim, the Court's reasoning above also applies here. Accordingly, the Court finds that the Government has adequately alleged a false record claim and that Niemeyer's Motion to Dismiss Count II should be DENIED .
C. Count IV: Conspiracy to Violate the FCA Under § 3729(a)(1)(C)
The FCA imposes liability on any person who "conspires to commit a violation" of, inter alia , the presentment and false record paragraphs of the FCA. 31 U.S.C. § 3729(a)(1)(C). To withstand a motion to dismiss an FCA conspiracy claim, the Government must allege "(1) the existence of an unlawful agreement between defendants to get a false or fraudulent claim allowed or paid ... and (2) at least one act performed in furtherance of that agreement." Grubbs , 565 F.3d at 193 (quoting United States ex rel. Farmer v. City of Hous. , 523 F.3d 333, 343 (5th Cir. 2008) ). This also includes a showing of a shared "specific intent to defraud the government" among the alleged conspirators. United States ex rel. Integra Med Analytics, LLC v. Creative Sols. in Healthcare, Inc. , No. SA-17-CV-1249, 2019 WL 5970283, at *12 (W.D. Tex. Nov. 13, 2019) (" Integra Med II ") (quoting Farmer , 523 F.3d at 343 ).
Unlike the claims discussed above, which expressly do not require specific intent to defraud or to violate the law, conspiracy under the FCA does. Indeed, the Government admits that it must allege—and argues that it has alleged—that Neimeyer "entered into an unlawful agreement to get a false or fraudulent claim paid by the Government." Niemeyer Resp. at 20. According to the Government, its allegations that Niemeyer entered into an agreement with Marlin Medical in which he would receive remunerations in exchange for attending events in San Antonio, issuing prescriptions for compounded pain and scar creams, and submitting them to Medscript, see Compl. ¶ 168, suffice to meet its burden. But neither these allegations nor others in the Complaint establish that Niemeyer participated in an agreement with Marlin Medical and others, the specific purpose of which was to defraud the government. Nor do the allegations that Niemeyer acted knowingly and willfully (in accepting kickbacks) and with reckless disregard or deliberate ignorance (of the medical necessity of the prescriptions), see supra Sections I.A.2–3, establish that he and any alleged co-conspirators acted with the intent to defraud the government.
The Government contends that 31 U.S.C. § 3729(b)(1) ’s definition of "knowing"—which disclaims any requirement of specific intent—applies with equal force to the FCA's prohibition on conspiring to violate the FCA. See Niemeyer Resp. at 19. But for that definition to apply, "knowing" must appear in the text of the provision itself—a term that is noticeably absent from the conspiracy subparagraph, see § 3729(a)(1)(C), and explicitly present in all others that establish independent violations, see §§ 3729(a)(1)(A), (B), (D)–(G).
Accordingly, the Court finds that the Government has not stated an FCA conspiracy claim against Neimeyer, and that Count IV of the Complaint should be DISMISSED WITHOUT PREJUDICE .
II. The Rowe Motion
Rowe challenges the claims brought against her on similar grounds to those Niemeyer presented. First , she argues that the Government has failed to allege the predicate AKS violation, which proves fatal to the FCA claims that rely on the predicate to establish falsity. See Rowe Mot. at 1. Second , Rowe contends that the FCA presentment and false record claims fail because the Complaint does not adequately allege "knowing presentment." See id. Finally , Rowe asserts that the FCA conspiracy allegations do not establish the existence of a "collective wrongful objective." Id. The Court will address these arguments in the discussion of each claim below.
A. Count I: Presentment of False Claims Under § 3729(a)(1)(A)
The Government must establish (1) Rowe presented or caused to be presented a claim for payment to the United States; (2) the claim was false or fraudulent; (3) Niemeyer knew the claim was false or fraudulent; and (4) the claim was material to the government's payment decision. See Porter , 810 F. App'x at 240. The Court finds that the Complaint pleads facts that establish each element, and thus Rowe's Motion to Dismiss should be DENIED as to Count I.
1. Causation
Like Neimeyer, Rowe contends that the Complaint fails to state an FCA violation because it does not establish that she knew that claims based on prescriptions she wrote would be submitted to the government. See Rowe Mot. at 10–11. The Court will again treat this argument as one bearing on the issue of causation—that is, whether the Complaint pleads that Rowe "cause[d] or assist[ed] the presentation of a false claim." Medoc , 470 F. Supp. 3d at 655 (quoting United States ex rel. Colquitt , 2016 WL 80000, at *7 ). Notably, the law merely requires "some sort of affirmative act" that assists in the presentment of a claim to the government. Id.
Here, the Complaint pleads that (1) Rowe accepted forms of remuneration in exchange for her agreement to write drug prescriptions for TRICARE beneficiaries and submit them to a specified compounding pharmacy, Compl. ¶¶ 123, 169; (2) Rowe "understood she was travelling to San Antonio to ... meet TRICARE beneficiaries in attendance, and issue prescriptions to those attendees," id. ¶ 123; (3) Rowe actually signed those drug prescriptions and faxed them to Rite Care, id. ¶ 126; (4) Rite Care submitted the prescriptions to TRICARE and received reimbursements for them, id. ¶¶ 128–29. Rowe's "affirmative act" here was the writing of compounded drug prescriptions and transferring them to Rite Care for fulfillment and billing. And—although knowledge under the FCA relates to the falsity of the claim, not its submission—it is reasonable to infer from the allegation that Rowe understood that she would be meeting with TRICARE beneficiaries, id. ¶ 123, that she knew that at least some of those claims would be submitted to the government fore reimbursement. Thus, the Complaint has established that Rowe knowingly assisted the claims at issue to be submitted to the government.
2. Falsity
The falsity element of the Government's presentment claim hinges on whether it has pleaded an AKS violation, which per se constitutes a false or fraudulent claim under the FCA. See 42 U.S.C. § 1320a-7b(g). Rowe argues that the remuneration she received was not unlawful, and thus could not be a kickback, and that the Complaint fails to allege that she acted willfully. See Rowe Mot. at 6–7, 9–11. As described below, the Court is not persuaded by either argument and finds that the Complaint has stated an AKS claim.
Remuneration . There is no dispute that Rowe received remuneration from Marlin Medical, in the form of a $25,000 investment into her company, a $1,500 check, and reimbursement of her travel, meal, and luxury hotel expenses. See Compl. ¶ 169. Rowe argues, however, that investments at fair market value, speaker fees, and travel expenses are not "improper" or "disqualifying" payments as a matter of law, and thus cannot be kickbacks. See Rowe Mot. at 6–7.
Rowe is incorrect. The Fifth Circuit defines remuneration broadly, as "anything of value." United States ex rel. Ruscher v. Omnicare, Inc. , 2015 WL 5178074, at *8 (S.D.Tex. Sept. 3, 2015). And as the Government rightly notes, the question of whether remuneration is a kickback rests on whether it was intended to induce referrals , not on its form. See id. at *13. Importantly, "[t]he presence of a legitimate business purpose for the arrangement or a fair market value payment will not legitimize a payment if there is also an illegal purpose." Id. (citing OIG Supplemental Compliance Program Guidance for Hospitals, 70 Fed. Reg. 4858, 4864 (Jan. 31, 2005) ).
Like Neimeyer, Rowe argues that "the most plausible explanation for why [she] prescribed the medication" was her determination that the "products were medically necessary." Rowe Mot. at 8. She also argues that the Government "fails to undercut the notion that the topical pain creams were, in fact, medically necessary." Id. at 9. But the medical necessity of the products Rowe prescribed is irrelevant to the Court's AKS inquiry, especially if the Court finds that the Complaint alleges that the payments to Rowe were intended to induce referrals. See Vora , 488 F. Supp. 3d at 565 ("Medical necessity is not relevant for the AKS theory of liability." (citing Eggleston , 823 F. App'x at 344 )).
Here, the Court cannot conclude—from allegations that Rowe received several forms of monetary benefits from Marlin Medical, see Compl. ¶ 169—that Rowe did not receive "anything of value" as part of her agreement to attend the Rowe Seminar. The Government has also alleged that:
• Rowe understood she was travelling to San Antonio to "meet TRICARE beneficiaries" at Marlin Medical-hosted events and "issue prescriptions to those attendees," Compl. ¶ 123;
• In exchange for her attendance and actions at the events, Marlin Medical (through Edwards) would invest in her business and issued her a $1,500 check, id. ;
• After the events, Rowe did not immediately issue compounded prescriptions. Rather, she offered Marlin Medical and its affiliate an "investment opportunity," which they took, id. ¶ 125;
• In exchange for the $25,000 in "business funding," Edwards expected Rowe to sign and issue compounded prescriptions to TRICARE beneficiaries and submit them to Rite Care for fulfillment, id. ;
• Rowe was "being paid to issue compound prescriptions to TRICARE beneficiaries," id. ¶ 174; and
• "In return, Dr. Rowe agreed to attend a Marlin Medical event ... meet with TRICARE beneficiaries, issue prescriptions for Rite Care pain and scar creams, and fax the prescriptions to Rite Care," id. ¶ 169.
Rowe argues that the Court should disregard these allegations (especially the last) as "merely a conclusion drawn from the factual allegations pertaining to Dr. Rowe, which appear earlier in the Complaint." Dkt. No. 59 at 3. But this argument highlights exactly why the Court should accept the allegation as true as it is bound to do: it is eminently reasonable to draw from the earlier factual allegations the conclusion that the payments to Rowe by Marlin Medical were made to induce referrals. And because "[t]he referral need not be the sole reason for the payment," Ruscher , 2015 WL 5178074, at *13, Rowe's arguments that (1) the investment into her company was made at fair market value and (2) the speaker fees and travel expenses were meant to compensate her for her attendance do not defeat the Government's claim.
AKS Scienter . Contrary to Rowe's contention, the AKS explicitly disclaims the need for bad purpose or the "specific intent to commit a violation" of the AKS. 42 U.S.C. § 1320a–7b(h). Rather, the Complaint must include allegations that Rowe accepted remuneration to write prescriptions for TRICARE reimbursement and submit them to Rite Care voluntarily or purposely—that is, with the intent to commit the acts, not to violate the law. See St. Junius , 739 F.3d at 210.
As previously discussed, the Complaint adequately alleges that Rowe knowingly and willfully accepted remuneration from Marlin Medical in exchange for her participation in the Rowe Seminar and the resulting prescriptions she issued to Rite Care. The Court also finds persuasive the allegation that Rowe requested additional remuneration, in the form of a $25,000 investment in her company, before she actually wrote and submitted prescriptions for individuals she met at the Rowe Seminar. See Compl. ¶ 125.
Rowe also contends that the Government has not pleaded AKS scienter because the Complaint fails to include allegations that she knew the claims at issue would be submitted to the government for reimbursement. See Rowe Mot. at 10–11. The Court disagrees. The Government alleges that Rowe knew that she would be meeting with TRICARE beneficiaries, see Compl. ¶ 123, and that Rite Care would handle the billing for prescriptions written for those beneficiaries, see id. ¶ 126. And like the allegations regarding Niemeyer's knowledge, see supra Section I.A.1, these allegations provide enough for the Court to draw the reasonable inference that Rowe—as a practicing physician—could have expected that prescriptions for TRICARE beneficiaries would be submitted to TRICARE for billing and reimbursement. Accordingly, the Court finds that the Government has stated an AKS violation and has thereby met the FCA's falsity element.
3. Scienter
Rowe next contends that the presentment claim should be dismissed "for want of knowing presentment"—i.e. , because the Complaint does not establish that she knew claims would be presented to the government. See Rowe Mot. at 12–14. But Rowe blurs the lines between the presentment and scienter requirements to state an FCA claim. Indeed, the actual submission of claims to the government is vital to an FCA presentment claim. See Grubbs , 565 F.3d at 188 ("[T]he provision's sine qua non is the presentment of a false claim.") Separately, the scienter element imposed by the FCA requires that a defendant "with respect to information" have actual knowledge of its falsity, act in deliberate ignorance of the truth or falsity of the information, or act in reckless disregard of the truth or falsity of the information. 31 U.S.C. § 3729(b)(1)(A). Despite citing the scienter standard in her motion, Rowe seems to take issue only with the allegations that speak to the presentment requirement and her knowledge of such, rather than her knowledge of the falsity of the information submitted. See Rowe Mot. at 12–14.
Here, the Court finds that the Government meets its burden on the presentment element with a table that includes information on the prescriptions written by Rowe, the fulfillment of the prescriptions by Rite Care, and the reimbursements made on the respective claims by TRICARE. See Compl. ¶ 128. Further, the Court can make (and has already done so above) the reasonable inference that Rowe knew claims based on prescriptions she submitted for TRICARE beneficiaries would be submitted to TRICARE for reimbursement.
As Rowe does not challenge the Complaint's allegations as to her knowledge of the falsity of the claims—the key inquiry to determine FCA scienter—the Court need not address the issue further.
4. Materiality
Finally, the Court has already found that the Government has established materiality through allegations that claims tainted by unlawful kickbacks could have had "the potential to influence the government's [payment] decisions." See supra Section I.A.4 (quoting Longhi , 575 F.3d at 470 ). Further discussion is not warranted here. Accordingly, the Court finds that the Government has stated a presentment claim under 31 U.S.C. § 3729(a)(1)(A). The Court finds that Rowe's Motion to Dismiss Count I should be DENIED .
B. Count II: False Record Under § 3729(a)(1)(B)
Like Niemeyer, Rowe challenges the false record claim asserted against her on the same bases as those presented in response to the presentment claim. For the same reasons the Court has provided above, it finds that the Government has stated a false record claim under 31 U.S.C. § 3729(a)(1)(B). Accordingly, the Court finds that Rowe's Motion to Dismiss Count II should be DENIED .
C. Count IV: Conspiracy to Violate the FCA Under § 3729(a)(1)(C)
Lastly, Rowe moves for dismissal of the FCA conspiracy claim asserted against her. The Complaint suffers from the same deficiency here that proved fatal to the Neimeyer conspiracy claim: to withstand a motion to dismiss, the complaint must allege that Rowe and her co-conspirators shared a "specific intent to defraud the government." Integra Med II , 2019 WL 5970283, at *12 (quoting Farmer , 523 F.3d at 343 ).
The Government contends that the Complaint establishes an unlawful "tacit" agreement to get false claims paid, citing allegations regarding Rowe's agreement to receive various benefits to attend the Rowe Seminar, issue prescriptions for certain pain and scar creams, and send those prescriptions to Rite Care. See Compl. ¶¶ 122–30, 169. And while those allegations may establish the sort of quid pro quo arrangement prohibited by the AKS, they do not meet the heightened specific intent to defraud standard required to state a conspiracy claim under the FCA. As such, the Court finds that Rowe's Motion to Dismiss Count IV should be GRANTED and Count IV as asserted against Rowe should be DISMISSED WITHOUT PREJUDICE .
The Court's conclusions that the Complaint adequately alleges scienter under the AKS and the FCA's presentment and false record provisions do not conflict with this finding. Those provisions make explicit that "no proof of specific intent to defraud," 31 U.S.C. § 3729(b)(1)(B) (FCA), nor "actual knowledge of this section or specific intent to commit a violation of this section," 42 U.S.C. § 1320a–7b(h) (AKS), are required.
CONCLUSION AND ORDER
For the reasons set forth above, it is hereby ORDERED that Richard Niemeyer, M.D.’s Motion to Dismiss Plaintiff's First Amended Complaint (Dkt. No. 48) is GRANTED IN PART AND DENIED IN PART . Specifically, the Niemeyer Motion is GRANTED with respect to Count IV (Conspiracy to Submit False Claims) and DENIED with respect to Count I (Presentment of False Claims) and Count II (Using False Statements to Get False Claims Paid).
It is FURTHER ORDERED that Defendant LaTisha Rowe, M.D.’s Motion to Dismiss Plaintiff's First Amended Complaint (Dkt. No. 46) is GRANTED IN PART AND DENIED IN PART . Specifically, the Rowe Motion is GRANTED with respect to Count IV (Conspiracy to Submit False Claims) and DENIED with respect to Count I (Presentment of False Claims) and Count II (Using False Statements to Get False Claims Paid).
It is so ORDERED .