RKJ is Featured in Law360 After Client Defeats Defendants’ Motions to Dismiss Client’s Retaliation Claim Under the False Claims Act’s Retaliation Provision

RKJ attorneys Adam Rabin and Havan Clark, together with co-counsel Cathleen Scott, recently prevailed in defeating defendants’ motions to dismiss on behalf of their client in a False Claims Act retaliation case filed pursuant to 31 U.S.C.§ 3730(h). After the oral argument, the court wrote a 19-page order denying defendants’ motions, which was featured in Law360.

The case involves the firm’s client, a physician, who was terminated by his provider organization and an affiliated managed care organization after the client reported fraud to both companies after they presented him with suggested diagnoses that were false and mandated that he document them in patients’ records. The client’s refusal to “play ball” led the companies to terminate the client’s services.

The Law360 article featuring the court’s denial of both defendants’ motions to dismiss is here:

A Florida federal judge on Wednesday said that he would not dismiss a physician’s claims that a health maintenance organization he worked for violated the False Claims Act by conspiring to recommend unneeded care to Medicare Advantage enrollees.

George Mansour, the physician, further claims that when Freedom Health Inc. learned of his refusal to participate in its scheme to artificially inflate risk-adjustment scores used to determine payouts, the company retaliated against him by terminating his contract and retaining approximately 600 of his patients.

U.S. District Judge William F. Jung denied dismissal motions from both Freedom Health and practice group Physician Partners LLC, and said the organizations “failed to show their ability to defend [Mansour’s] individual claims” and their arguments have been “materially diminished.”

“The circumstantial evidence forwarded by [Mansour] gives rise to the inference that Freedom knew that Dr. Mansour was a problem and that they acted to stop him in concert with [Physician Partners],” Judge Jung wrote.

Freedom Health argued that Mansour failed to show he was engaged in a protected activity when making FCA retaliation claims. However, Judge Jung in his order concluded that Mansour adequately alleged this by describing his efforts to stop one or more FCA violations from occurring.

“We’re glad that Judge Jung reached a quick, well-reasoned decision that recognizes the merit of Dr. Mansour’s allegations,” Adam T. Rabin, Mansour’s counsel, told Law360 on Thursday. “My co-counsel and I look forward to proving Dr. Mansour’s allegations at trial.”

According to Mansour, while working at Physician Partners, a practice management group that provides care to Medicare enrollees from Freedom Health, he was given patient forms with doctored medical histories and false diagnoses in an attempt to get Mansour to recommend additional, unneeded care.

In addition, Mansour said Physician Partners selected 21 of his patients for free ultrasound exams, if he agreed to arrange follow-up visits. In all 21 cases, the radiologist “made peripheral vascular findings.” But upon examination, Mansour said a majority of the diagnoses were incorrect.

Mansour also said that Physician Partners mailed a notice to 200 of his patients without his knowledge, requesting they come in for preventative screening. Mansour found, however, that half of the patients who arrived had already been diagnosed with some form of cardiovascular disease.

Mansour alleged Physician Partners “conducted the tests solely to produce additional, fraudulent diagnoses that could be used to increase [risk-adjustment] scores and capitation revenues,” Judge Jung wrote.

In 2017, Freedom Health agreed to pay $32.5 million to settle claims that its managed care providers violated the FCA by entering fake diagnosis codes to inflate reimbursements of its Medicare Advantage plans.

Representatives for Freedom Health Inc. and Physician Partners LLC did not respond to requests for comment.

Mansour is represented by Adam T. Rabin and Havan M. Clark of Rabin Kammerer Johnson.

Freedom Health Inc. and Physician Partners LLC are represented by Jason P. Mehta, Natalie Hirt Adams and Lauren L. Valiente of Foley & Lardner LLP.

The case is Mansour, MD et al. v. Freedom Health Inc. et al., case number 8:22-cv-00595, in the U.S. District Court for the Middle District of Florida.