United States Ex Rel. Wilkins v. United Health Group, Inc.
2011 U.S. App. LEXIS 13322
| 3rd Cir. | 2011Background
- Wilkins and Willis filed a qui tam FCA suit alleging United Health, AmeriChoice, and AmeriChoice-NJ engaged in Medicare marketing violations and kickback schemes to induce enrollment changes.
- Plaintiffs contend CMS marketing regulations and the AKS conditioned payment or eligibility for payment, making such conduct actionable as false claims.
- The District Court dismissed for lack of a pleaded single false claim and because marketing-regulation violations were not payment-conditions; AKS claims were also dismissed.
- The Third Circuit reverses in part, adopting an implied false certification theory for AKS liability and remanding for further proceedings, while affirming dismissal of marketing-regulation claims as not conditioning payment.
- The court discusses FERA amendments, but applies the pre-FERA framework for liability and determines the implied-certification pathway governs the AKS claim.
- The Government filed an amicus brief urging reversal on the AKS theory; case proceeded on Rule 12(b)(6) standards, with deference to the allegations as pleaded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Medicare marketing violations support FCA liability | Wilkins argues marketing noncompliance implies false claims. | United Health contends marketing rules are not payment conditions. | Marketing claims not proven to condition payment; district court affirmed. |
| Whether implied false certification can support FCA in health care context | Implied certification theory can apply when claims submitted despite AKS violations. | Implied theory should be limited to prerequisites to payment in health care. | Implied false certification liability adopted for AKS claims; sufficient at pleading stage. |
| Whether AKS claims require explicit certification of AKS compliance | Amended complaint alleges monthly certifications of compliance with MA guidelines including AKS. | District Court required explicit certification; not necessary under implied theory. | AKS claims viable under implied certification theory; remand for further proceedings. |
| FERA retroactivity and which FCA version governs | Amendment could ease pleading requirements for claims pre- or post-FERA. | Retroactivity unclear; many courts declined retroactivity for pending cases. | Proceedings analyzed under pre-FERA framework for liability; not necessary to decide retroactivity here. |
Key Cases Cited
- Rodriguez v. Our Lady of Lourdes Medical Ctr., 552 F.3d 297 (3d Cir. 2008) (implied false certification requires payment conditioned on compliance)
- Mikes v. Straus, 274 F.3d 687 (2d Cir. 2001) (implied false certification in health care context discussed; conditioning of payment matters)
- Conner v. Salina Regional Health Cctr., 543 F.3d 1211 (10th Cir. 2008) (distinguishes between participation vs payment conditions; supports implied theory limits)
- U.S. ex rel. Kosenske v. Carlisle HMA, Inc., 554 F.3d 88 (3d Cir. 2009) (express false certification liability; AKS awareness in FCA context)
- Rodriguez, 552 F.3d 304, — (3d Cir. 2008) (necessity to allege payment condition relevance for implied theory)
- Allison Engine Co. v. U.S. ex rel. Sanders, 553 U.S. 662 (Supreme Court) (construction of materiality and retroactivity prompting 'material to' wording)