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It is sufficient to conclude that judgmental immunity is not applicable where, as here, there is evidence, if believed, that the attorneys fell below the standard of reasonable care in representing their client. Flanagan v. Fresenius Medical Care Holdings, Inc. Martin Flanagan and United States of America, FRESENIUS MEDICAL CARE HOLDINGS, INC. doing business as Fresenius Medical Care North America, US District Court for the District of Massachusetts. 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. It also provides a very limited amount of statistical evidence to attempt to bolster those allegations. Nor is there any contention that any dialysis services that were paid by Medicare in fact should have been paid by a private payor. 332). To be clear, the dispositive question is not whether FMCNA engaged in an illegal and pervasive scheme to pay kickbacks for referrals. The complaint must set forth with particularity the who, what, when, where, and how of the alleged fraud. U.S. ex rel. See Id. Attorneys admitted Pro Hac Vice must have an individual PACER account, not a shared firm account, to electronically file in the District of Massachusetts. Martin Flanagan. Counsel may need to link their CM/ECF account to their upgraded individual pacer account. . (Id.). D. Pleading Fraud with Particularity under Rule 9(b). 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. 35). (Id. The complaint goes on to identify four specific sets of joint-venture arrangements (Balboa, NANI, ENA, and Dallas Nephrology Associates) and again alleges that all claims submitted in connection with patients treated by those physicians or facilities were tainted by kickbacks and therefore false. (McDonagh, Christina). (CKD Compl. Under the circumstances presented here, the Court concludes that he cannot. (Reuters) - A former top legal executive at Germany's Fresenius Medical Care AG & Co KGaA sued the dialysis clinic operator on Tuesday alleging he was 13). 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. (Id. If the trial Judge issues an Order of Reference of any matter in this case to a Magistrate Judge, the matter will be transmitted to Magistrate Judge Judith G. Dein. Based on the allegations of the complaint, it appears that all of the patients in question would have received treatment at a facility operated by FMCNA or a competitor, and all of those treatments would have been paid by Medicare regardless. Scott Downing at 312.624.6326 or sdowning@beneschlaw.com, Mark Silberman at 312.212.4952 or msilberman@beneschlaw.com, Juan Morado Jr. at 312.212.4967 or jmorado@beneschlaw.com, Whistleblower Lawsuit Against Fresenius Alleges Unlawful Arrangements with Hospitals and Nephrologists Intended to Induce Dialysis Referrals. The second was that these same doctors are often provided with opportunities to rent office space that they own to Fresenius at above or at the very top of fair market value, with guaranteed long-term leases that are not commercially reasonable. (Id. If the government declines to intervene and the qui tam case is unsealed, further proceedings are governed by 31 U.S.C. 256-69 (IMN and other practices in Indiana); id. Kelly v. Novartis Pharm. Flanagan 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. Judge Douglas P. Woodlock assigned to case. WebMichael P. Flanagan, MD. (Id. . 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. Martin Flanagan The 2010 Patient Protection and Affordable Care Act amendment to the public-disclosure bar made two notable changes to that definition. Defendant contends that the allegations concerning the compensation of medical directors were publicly disclosed prior to the filing of the complaint. Relator here has not attempted to do so. Id. 40. According to ZoomInfo records, Sandra Martins professional experience began in 1986. 131). Add to basket. And it further alleges that Flanagan was instructed not to enforce escalator clauses, which called for annual fee increases of up to 4.0%. United States v. Cyberonics, Inc., 844 F.3d 26, 31 (1st Cir. Martin Flanagan worked for Fresenius Medical Care North America (FMCNA) for 29 years. Subscribe to Justia's Free Newsletters featuring summaries of federal and state court opinions. 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. (Id. 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. In many states, Medicaid pays for treatment costs for ESRD patients who do not qualify for Medicare and/or pays for the 20% of treatment costs not covered by Medicare. Compl. In summary, the amended complaint fails to state allegations of fraud under the FCA with the particularity required by Rule 9(b). 15). Patients who were referred to non-FMCNA clinics were categorized as leakage. (Id. MARTIN FLANAGAN, Plaintiff-Relator, v. FRESENIUS, Court:United States District Court, D. Massachusetts. 22). (Id.). The complaint alleges various methods by which FMCNA improperly induced the referral of patients to its dialysis clinics. In that role, he was responsible for, among other duties, negotiating contracts under which FMCNA provided dialysis treatment to hospital inpatients. In summary, because the new allegations concerning (1) joint-venture agreements, (2) free services to hospitals and patients, and (3) free practice-management services to physicians are not substantially similar to the allegations in the initial complaint, that portion of the complaint will be dismissed for failure to comply with the filing and service requirements of the FCA. Duxbury v. Ortho Biotech Prods., L.P., 579 F.3d 13, 26 (1st Cir. Journal of Intensive Care Medicine 2011 26: 4, 237-249 Download Citation. Flanagan v. Fresenius Medical Care Holdings, Inc. Under Rule 9(b), the standard for allegations of fraud is higher than the normal pleading standard. First, defendant contends that the salaries paid to all of its medical directors is a matter of public record and is available on the website of the Center for Medicare and Medicaid Services (CMS). Flanagan v. FRESENIUS MEDICAL CARE HOLDINGS, INC. (1:21-cv-11627), Massachusetts District Court Flanagan v. FRESENIUS MEDICAL CARE HOLDINGS, Protecting Participants of Clinical Trials Conducted in the Documents and certified copy of docket sheet and order of transfer received from the Clerk in the transferor district via Email. 3730(e)(4)(B) (2006). Fifth, it alleges that FMCNA entered into favorable joint-venture agreements (JVAs) with physician groups to induce them to make referrals. Id. FMCNA tracked the referrals recorded as part of the Bridge Program. The portions of the claims based on those allegations will therefore be dismissed for failing to comply with the FCA's pre-suit requirements. 343). The Clerks Office nevertheless takes the position that the matter may not reassigned by their corrective action alone but requires some action of a judicial officer under the Local Rules. Fourth, it alleges that FMCNA entered into favorable leases with medical directors that paid them above-market rates. See 31 U.S.C. Res., 162 F.3d 195, 200 (2d Cir. 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. 368-74). 2023-03-21, U.S. Courts Of Appeals | Other | WebFlanagan v. Fresenius Medical Care Holdings, Inc. View recent docket activity Reflects complaints, answers, motions, orders and trial notes entered from Jan. 1, 2011. Duxbury v. Ortho Biotech Prods., L.P., 719 F.3d 31, 33 (1st Cir. 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 Furthermore, they do not directly disclose the existence of any of the alleged schemes, or any other form of fraud, nor do they describe facts from which the existence of a fraudulent scheme might be inferred. The Line: A Man's Experience; A Son's Quest to Understand. If the trial Judge issues an Order of Reference of any matter in this case to a Magistrate Judge, the matter will be transmitted to Magistrate Judge Judith G. Dein. 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. 270-84 (ENA and other practices in North Carolina); id. For example, medical directors at 160 FMCNA clinics made more than $300,000 in 2019, well above the average compensation of medical directors at similarly located clinics. 88). Defendant next contends that the remaining FCA claims in the amended complaint are barred by the public-disclosure bar of the statute, 31 U.S.C. In substance, the complaint alleges the FMCNA created a nationwide scheme to pay unlawful kickbacks for referrals at all of its outpatient dialysis facilities; that all claims submitted for all dialysis services are therefore tainted by kickbacks; and that therefore every claim submitted by FMCNA during the relevant period was false. As the Chair of the Local Rules Committee when the relevant rules were adopted, see generally L.R. at *3 (collecting cases). FMCNA is a wholly-owned subsidiary of Fresenius Medical Care AG & Co. KGaA, which is located in Bad Homburg, Germany. 292-307 (practices in Washington state)). There must be particularized allegations of claims for payment arising from that scheme. 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. Feb. 25, 2013), the mere publication of compensation information, without an allegation of fraud or misrepresentation, is not sufficient to trigger the bar. b. And even though the regulatory guidance defines the medicaldirector position as occupying 0.25 FTE, the complaint alleges that FMCNA neither tracked nor enforced medical directors' hours spent on duties to their clinics. [23-1305] (JAW) [Entered: 04/05/2023 09:24 PM]. et al, County of Lycoming v. Purdue Pharma, L.P. et al, Lazy S Ranch Properties v. Valero Terminaling and Distribution, et al, Lester E. Cox Medical Centers d/b/a Cox Medical Centers et al v. Amneal Pharmaceuticals, LLC et al. A subscription to PACER is required. 2009) to support the contention that when a first-filed complaint is dismissed on jurisdictional grounds, it cannot bar a later-filed complaint. However, even if allegations are based upon public disclosures, claims may nonetheless be asserted if the relator is an original source. Before 2010, the statute defined an original source as an individual who has direct and independent knowledge of the information on which the allegations are based and has voluntarily provided the information to the Government before filing an action under this section which is based on the information. 31 U.S.C. 360 (ENA); id. (Am. . Please contact one of the below authors if you have questions about the lawsuit and its implications for the nephrology and dialysis industry. Relator responds that (1) the complaints do not allege the same essential facts and (2) the CKD complaint was later dismissed on jurisdictional grounds, which makes the first-to-file bar inapplicable. The U.S. Justice Department said on Tuesday it joined a whistle-blower lawsuit against Fresenius Medical Care AG, the world's biggest dialysis care company, on claims that it defrauded Medicare. were false.); id. As to Medicaid, the complaint alleges in general terms that state administrators of the program obtain reimbursement from the federal government by submitting a quarterly Form 64 to the Centers for Medicare and Medicaid Services at Department of Health and Human Services. 25) and five paragraphs addressing how the scheme resulted in false claims (Id. 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. Employed by Penn State Health. 2009). 242-55 (NANI in Illinois); id. 321-31). Relator first alleged fraud concerning joint ventures in the amended complaint, which was filed in 2021. Relator's allegations here describe the same essential scheme and do not materially add to those allegations. Flanagan v. Fresenius Medical Care Holdings, Inc. - Law360 Defendant correctly contends that the initial complaint did not contain any allegations concerning unlawful joint-venture agreements, or the provision of free services to hospitals, physicians, and patients. (Id. United States ex rel. may be available from PACER. Family Medicine Call for an Michael D. Flanagan, MD | Main Line Health 45-49). Care Holdings, Inc., 906 F.Supp.2d 1264, 1274 (N.D.Ga. Here, defendant contends that the allegations were previously disclosed in multiple ways, including a 2005 government investigation and a 2005 Corporate Integrity Agreement (CIA) between FMCNA and the Office of Inspector General of the Department of Health and Human Services (OIG). Here, the allegations are substantially similar to those in CKD and are thus based upon the public disclosures. 39). 29). . were false .); id. His last title was Director of Acute Market Development for the Fresenius Western Business Unit. (Id. Vascular Access Care - Fresenius Medical Care There is no checklist of mandatory requirements that each allegation in a complaint must meet to satisfy Rule 9(b). Hagerty ex rel. Wilson v. Bristol-Myers Squibb, Inc., 2011 WL 2462469, at *6-7 (D. Mass. 2014), the First Circuit affirmed the denial of a motion to amend the complaint a third time. Plaintiff-Relator Martin Flanagan (Relator) worked for Fresenius for twenty-nine years, most recently as Director of Acute Market Development for the Search Google Scholar for this author Martin Flanagan - Director, Natio.. - Liberty Dialysis 2017)). #57) filed by Appellant Martin Flanagan. The complaint alleges that certain medical practices, such as Diablo and Balboa, benefited financially from medical-director agreements and joint-venture agreements with FMCNA, that in return they referred patients to FMCNA facilities, and as a result all of their claims for government reimbursement were false. 3730(b)(2), (b)(4), (c)(1). It then provides a table of patients and patient treatments for the same facilities over the same time period. 3730(b)(2). were false .); id. (Id. Id. A more recent docket listing joins whistleblower suit vs. Fresenius (Id. The initial complaint has since been amended to add 125 pages of allegations, including multiple new claims. Whistleblower Lawsuit Against Fresenius Alleges (Id. A more recent docket listing And under Rule 9(b), those claims must be described with some level of specificity. The Medicare ESRD program is administered through the Centers for Medicare & Medicaid Services (CMS), an agency within the Department of Health and Human Services (HHS). 40). 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. 9(b). 1320a-7b(g); Patient Protection and Affordable Care Act, Pub. (Entered: 10/05/2021), Docket(#1) ELECTRONIC NOTICE of Case Assignment. (Attachments: #1 Affidavit Certificate of W. Scott Simmer in Support of Motion for Admission Pro Hac Vice)(Sullivan, Christopher) (Entered: 11/22/2021), Docket(#12) NOTICE of Appearance by Christopher P. Sullivan on behalf of Martin Flanagan (Sullivan, Christopher) (Entered: 11/18/2021), Docket(#11) Chief Judge F. Dennis Saylor, IV: ELECTRONIC ORDER entered granting #6 Motion for Leave to Appear Pro Hac Vice Added James F. Bennett. . Compl. 11). For the foregoing reasons, defendant's motion to dismiss is GRANTED. Flanagan v. Fresenius Med. WebA division of Fresenius Medical Care North America, Azura Vascular Care partners with dedicated, highly skilled physicians and surgeons, providing opportunities for practice 2012). United States v. Fresenius Med. Care Holdings - casetext.com Want to Read. medical director agreements that compensated physicians in excess of fair market value and contained sticks and carrots, in the form of onerous non-competition covenants and medical directorship rights of first refusal to provide medical director services at other centers; non-fair market value joint venture arrangements that allegedly did not comply with applicable fraud and abuse safe harbors, both because physician referral sources often held more than a 40% equity interest in such centers and because they were offered equity in such centers at less than fair market value. Hardback. SALTER, GARY vs. FRESENIUS MEDICAL CARE HOLDINGS INC, Instituto Mexicano del Seguro Social v. Fresenius Medical Care AG & Co. KGaA. The complaint alleges that FMCNA engaged in improper remunerative relationships with medical directors in its outpatient clinics to capture their referrals. 3730(e)(4)(A). FMCNA also inserted non-competition clauses into their JVAs in order to lock partners into referring patients to its facility. 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.). FRESENIUS MEDICAL CARE HOLDINGS, INC. doing business as Fresenius Medical Care North America, (#20) NOTICE of Appearance by Noah M Rich on behalf of Martin Flanagan (Rich, Noah) (Entered: 11/24/2021), (#19) NOTICE of Appearance by W. Scott Simmer on behalf of Martin Flanagan (Simmer, W.) (Entered: 11/22/2021), Affidavit Certificate of Noah M. Rich in Support of Motion for Appearance Pro Ha, Affidavit Certificate of Jamie Bennett in Support of Motion for Appearance Pro H, Affidavit Certificate of W. Scott Simmer in Support of Motion for Admission Pro, (#12) NOTICE of Appearance by Christopher P. Sullivan on behalf of Martin Flanagan (Sullivan, Christopher) (Entered: 11/18/2021), Affidavit Certification of Megan S. Heinsz, (#4) NOTICE of Appearance by Maria R. Durant on behalf of Fresenius Medical Care Holdings, Inc. (Durant, Maria) (Entered: 10/07/2021), (#3) NOTICE of Appearance by William H. Kettlewell on behalf of Fresenius Medical Care Holdings, Inc. (Kettlewell, William) (Entered: 10/07/2021), Docket(#20) NOTICE of Appearance by Noah M Rich on behalf of Martin Flanagan (Rich, Noah) (Entered: 11/24/2021), Docket(#19) NOTICE of Appearance by W. Scott Simmer on behalf of Martin Flanagan (Simmer, W.) (Entered: 11/22/2021), Docket(#18) Chief Judge F. Dennis Saylor, IV: ELECTRONIC ORDER entered granting #17 Motion for Leave to Appear Pro Hac Vice Added Noah M. Rich. Conrad v. Abbott Lab'ys, Inc., No. (Woodlock, Douglas) (Entered: 11/02/2021), (#7) NOTICE of Appearance by Abraham R. George on behalf of United States of America (George, Abraham) (Entered: 10/18/2021), (#6) MOTION for Leave to Appear Pro Hac Vice for admission of James F. Bennett Filing fee: $ 100, receipt number AMADC-9005666 by Fresenius Medical Care Holdings, Inc.. (Attachments: #1 Affidavit Certification of James F. Bennett)(Durant, Maria) (Entered: 10/13/2021), (#5) MOTION for Leave to Appear Pro Hac Vice for admission of Megan S. Heinsz Filing fee: $ 100, receipt number AMADC-9005610 by Fresenius Medical Care Holdings, Inc.. (Attachments: #1 Affidavit Certification of Megan S. Heinsz)(Durant, Maria) (Entered: 10/13/2021), (#2) Case transferred in from District of Maryland; Case Number 14-cv-00665-GLR.