UNITED STATES OF AMERICA ex rel. GURPREET MAUR, M.D., Plaintiff-Appellant, v. ELIE HAGE-KORBAN; DELTA CLINICS, PLC, dba The Heart and Vascular Center of West Tennessee; KNOXVILLE HMA HOLDINGS, LLC, dba Tennova Healthcare; JACKSON HOSPITAL CORPORATION, dba Regional Hospital of Jackson; DYERSBURG HOSPITAL COMPANY, LLC, dba Dyersburg Regional Medical Center, Defendants-Appellees.
No. 20-5301
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
December 1, 2020
Argued: October 7, 2020; RECOMMENDED FOR PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b); File Name: 20a0373p.06
Appeal from the United States District Court for the Western District of Tennessee at Jackson. No. 1:17-cv-01079—S. Thomas Anderson, District Judge.
Decided and Filed: December 1, 2020
Before: SILER, SUTTON, and LARSEN, Circuit Judges.
COUNSEL
OPINION
LARSEN, Circuit Judge. In this qui tam action, Dr. Gurpreet Maur accuses Dr. Elie Hage-Korban (“Korban“) of submitting false claims to Medicare for unnecessary cardiac testing and procedures, in alleged violation of the False Claims Act (FCA). See
I.
Dr. Korban, along with his medical practice Delta Clinics, is engaged in the private practice of diagnostic and interventional cardiology. This is not the first time he has been accused of this alleged scheme to defraud the government.
A.
In June 2007, Dr. Wood Deming filed a qui tam action (the “Deming action“) under the FCA against two of the defendants in this case—Korban and Regional Hospital of Jackson (“Jackson Regional“)—as well as other Tennessee hospitals where Korban performed cardiac procedures. See United States ex rel. Deming v. Jackson-Madison Cnty. Gen. Hosp., No. 1:07-cv-01116-SHL-egb (W.D. Tenn. June 13, 2007). In essence, Deming charged the defendants with submitting fraudulent claims to federal government insurance programs by “ignor[ing] blatant overutilization of cardiac medical services by Korban.” The United States intervened in the Deming action and ultimately settled the case for cardiac procedures performed between 2004 and 2012.
Two of those settlements are pertinent here. First, as a condition of his settlement, Korban entered into an Integrity Agreement (the “Korban IA“) with the Office of Inspector General for the United States Department of Health and Human Services (the “Inspector General“). The Korban IA was in effect from November 13, 2013 through November 13, 2016 and was publicly available on the Inspector General‘s website during that time. It required Korban to engage an Independent Review Organization to monitor “[c]oding, billing, and claims submission to all Federal health care programs by or on behalf of Korban, and reimbursement records for cardiology items.” The Korban IA further called for the Organization to conduct a review of “[c]ardiac procedures including interventional cardiac procedures . . . performed by Korban” and to “evaluate and analyze the medical necessity and appropriateness” of those procedures. It was then to generate quarterly reports of these findings for the Inspector General, who retained ultimate supervisory authority over Korban‘s medical practice. The U.S. Department of Justice issued a press release on December 19, 2013 that detailed
B.
Now to the present allegations. Plaintiff-Relator Dr. Maur is a cardiologist who began working for Korban‘s medical practice, Delta Clinics, in 2016. At bottom, he alleges that Korban is “simply up to his old tricks.” Specifically, his complaint lists five examples of “unnecessary angioplasty and stenting” and four examples of “unnecessary cardiology testing” performed by Korban on patients between March and November 2016. Those allegedly unnecessary procedures were paid for in part by Medicare.
In his complaint, Maur recognizes that “this exact scheme was previously detailed and exposed in” the Deming action, though the named defendants differ slightly. In addition to Korban and Jackson Regional, Maur has also sued Jackson Regional‘s corporate parent (Tennova Healthcare), a second Tennova subsidiary where Maur performed cardiac procedures (Dyersburg Regional Medical Center), and Tennova‘s corporate parent (Community Health Systems). He alleges these entities knew or should have known that many of Korban‘s procedures were medically unnecessary.
C.
Maur filed his initial qui tam complaint in April 2017. The United States declined to intervene. The defendants then moved to dismiss, arguing that Maur‘s claims could not proceed because of the FCA‘s public-disclosure bar,
II.
The FCA “prohibits submitting false or fraudulent claims for payment to the United States, [
To guard against potential “parasitic lawsuits” and “opportunistic plaintiffs,”
The court shall dismiss an action or claim under [the FCA], unless opposed by the Government, if substantially the same allegations or transactions as alleged in the action or claim were publicly disclosed—
(i) in a Federal criminal, civil, or administrative hearing in which the Government or its agent is a party;
(ii) in a congressional, Government Accountability Office, or other Federal report, hearing, audit, or investigation; or
(iii) from the news media,
unless the . . . person bringing the action is an original source of the information.
We employ a three-step analysis to decide whether this public-disclosure bar applies. First, we ask whether, before the filing of the qui tam complaint, there had been any public disclosures from which fraud might be inferred. Holloway, 960 F.3d at 844. Second, we assess whether the allegations in the complaint are “substantially the same” as those contained in the public disclosures. Id. at 849. And third, we ask whether the qui tam plaintiff is nevertheless an “original source of the information.” See id. at 843. Maur claims that the district court erred at all three steps.
A.
At the first step, Maur concedes that the Deming action and the press releases were all publicly disclosed. However, he contends that the Korban IA was not a public disclosure as defined in the FCA.
As an initial matter, Maur has forfeited this argument by failing to raise it below. See Armstrong v. City of Melvindale, 432 F.3d 695, 700 (6th Cir. 2006). The hospital defendants specifically argued in their motion to dismiss that the Korban IA was a public disclosure. Yet Maur failed to contest this argument in his response. But even if the issue were not forfeited, we would still conclude that the contents of the Korban IA qualify as a public disclosure.
The Korban IA was publicly available through the Inspector General‘s website from November 2013 to November 2016. And it undoubtedly qualifies as a “Federal report” within the meaning of
The “sources of public disclosure in
B.
We next consider whether the publicly disclosed sources present “substantially the same allegations or transactions” as Maur‘s complaint.
“To decide whether a claim has been publicly disclosed, courts look at the essential elements of alleged fraud to determine if enough information exists in the public domain to expose the fraudulent transaction.” United States ex rel. Ibanez v. Bristol-Myers Squibb Co., 874 F.3d 905, 918 (6th Cir. 2017). The key inquiry is whether the disclosures could have “put[] the government on notice of the fraud alleged in the qui tam complaint.” Holloway, 960 F.3d at 851. Yet there need not be a “complete identity of allegations, even as to time, place, and manner” to trigger the public-disclosure bar. Poteet, 552 F.3d at 514 (citation omitted).1 There need be only a “‘substantial identity‘” between the public disclosures and the qui tam complaint such that “the prior disclosures depict ‘essentially the same’ scheme.” Holloway, 960 F.3d at 848 (quoting Poteet, 552 F.3d at 514). This is because “once the government knows the essential facts of a fraudulent scheme,” it generally “has enough information to discover related frauds.” Poteet, 552 F.3d at 516 (citation omitted); accord Holloway, 960 F.3d at 848, 851; United States ex rel. Armes v. Garman, 719 F. App‘x 459, 464 (6th Cir. 2017); United States ex rel. Antoon v. Cleveland Clinic Found., 788 F.3d 605, 616 (6th Cir. 2015).
1.
Maur himself states in his complaint that this “exact scheme was previously detailed and exposed in” the Deming action. He readily admits that his “complaint make[s] nearly identical claims” about the “same types” of fraudulent conduct. And he does not purport to offer any “unique new details or dramatic twists to the aforementioned scheme, which was previously investigated and seemingly resolved.” Indeed, he copies much of the Deming complaint verbatim.
Maur nonetheless protests that our decision in Ibanez allows his case to proceed. In Ibanez, we stated in considered dictum2
(or was restarted) simply because [the government] had uncovered, and then resolved, a similar scheme before.” Id. This was true, we hypothesized, at least “to the extent that the new allegations [were] temporally distant from the previously resolved conduct.” Id. at 919 n.4. Maur argues that because this case, like Ibanez, alleges fraud occurring after the execution of an integrity agreement, the new allegations cannot be “substantially the same” as those publicly disclosed.
For their part, the defendants claim that the rigorous oversight mechanism contained in the Korban IA distinguishes this case from Ibanez. Because the Korban IA “requires substantial independent oversight, review, and reports to the government,” Maur, 2020 WL 912753, at *4, the defendants contend that the government here must have had “notice of the likelihood of related fraudulent activity” by Korban, United States ex rel. Gilligan v. Medtronic, Inc., 403 F.3d 386, 389 (6th Cir. 2005). In defendants’ view, then, Maur‘s new allegations should be treated as “substantially the same” as those previously disclosed. We cannot fully embrace either party‘s understanding.
Both theories falter because the presence (or lack) of a robust mechanism for reporting future fraud to the government has no bearing on whether “substantially the same allegations or transactions” of fraud have been previously “publicly disclosed.”
That being said, we agree with defendants, and with the district court, that the character of the government‘s oversight arrangements can sometimes matter. And we agree with Ibanez, and with Maur, that post-settlement allegations of a substantially similar fraudulent scheme can sometimes serve to avoid the public-disclosure bar. See 874 F.3d at 919. But we think that both insights are best applied in conducting the “original source” inquiry, rather than when asking whether new allegations are “substantially the same” as those previously “publicly disclosed.”
Even if a qui tam complaint contains “substantially the same allegations or transactions” as those previously “publicly disclosed,” the suit may continue if “the person bringing the action is an original source of the information.”
Post-settlement allegations that a substantially similar scheme has continued or restarted could provide the government with “knowledge that is independent of and materially adds” to the public disclosures. See Booker, 9 F. Supp. 3d at 48. At the same time, the presence of ongoing government monitoring might detract from the conclusion that these allegations have anything material to add. But analyzing these considerations under the “original source” exception is, in our view, more consistent with the public-disclosure bar‘s text than the approach either party proposes. Cf. Reed, 923 F.3d at 757; Winkelman, 827 F.3d at 211. For only the original source exception—which focuses on the “material[ity]” of the new allegations—asks us to consider how a relator‘s allegations might actually “affect[] the government‘s decision-making.” United States ex rel. Advocates for Basic Legal Equal., Inc. v. U.S. Bank, N.A., 816 F.3d 428, 432 (6th Cir. 2016) [hereinafter ABLE].
The structure of the public-disclosure bar further supports this interpretation. The question whether a relator‘s information “materially adds” to disclosures will “often overlap[]” with “whether the relator‘s allegations are substantially the same as those prior revelations.” Winkelman, 827 F.3d at 211. But “the ‘materially adds’ inquiry must remain conceptually distinct; otherwise, the original source exception would be rendered nugatory.” Id. at 211–12. If, as the defendants argue, both inquiries were to focus on what “the government may have expected” and how the integrity agreements would influence the government‘s actions, Ibanez, 874 F.3d at 919 & n.4, that would have “the effect of collapsing the materially-adds inquiry into the substantially-the-same inquiry,” Reed, 923 F.3d at 757. We decline to accept that construction “[a]bsent clear evidence that Congress intended this surplusage.” Nat‘l Ass‘n of Mfrs. v. Dep‘t of Def., 138 S. Ct. 617, 632 (2018); see Davis v. Helbling, 960 F.3d 346, 355 (6th Cir. 2020). The defendants’ interpretation would leave an exception that excepts nothing.
Hence, we are left with two distinct inquiries to apply. First, Maur‘s allegations are “substantially the same” if there exists a “substantial identity” between the public disclosures and his complaint such that “the prior disclosures depict ‘essentially the same’ scheme.” Holloway, 960 F.3d at 848, 851 (quoting Poteet, 552 F.3d at 514). For purposes of this inquiry, “[i]t is not enough” for Maur “to allege new, slightly different, or more detailed factual allegations.” Id. at 848; accord ABLE, 816 F.3d at 432–33; Armes, 719 F. App‘x at 464. Second, even if Maur has depicted essentially the same scheme, he may still clear the public-disclosure bar under the “original source” exception if he has proffered independently obtained information that “materially adds” to the public disclosures.
Turning to the first inquiry, we conclude that Maur‘s allegations are “substantially the same” as the public disclosures. Indeed, our caselaw demands such a result. In Holloway, a relator brought a qui tam action alleging the defendant had “orchestrat[ed] a corporate-wide scheme to submit false claims.” 960 F.3d at 839. She claimed that the scheme persisted from 2004 through 2018. See id. at 842. However, because her “allegations [were] substantially the same as those made” in three qui tam actions that had been voluntarily dismissed in 2008, we held that the public-disclosure bar applied. Id. at 845, 851. We did so even though those previous actions from a decade earlier “were focused on a single hospice facility,” as opposed to “the corporate-wide conduct alleged in [Holloway].” Id. at 849. What drove our decision was that, as in this case, the prior complaints publicly revealed that the “same . . . actor” had engaged in “the same type of fraud” alleged. Id. at 847, 851. Because those “prior disclosure[s] put[] the government on notice of the fraud alleged,” adding “new details to describe essentially the same scheme” was insufficient even to “survive the more lenient post-amendment public-disclosure bar.” Id. at 850–51.
So too here. “If anything, [Maur]‘s allegations add some new details to describe essentially the same scheme by [Dr. Korban].” Id.; see also Bellevue v. Universal Health Servs. of Hartgrove, Inc., 867 F.3d 712, 720 (7th Cir. 2017) (finding allegations were “substantially similar” to public disclosures where the defendant‘s “conduct in subsequent years” was simply part of a “continuing practice” by the “same entity” (citation omitted)); Oliver, 826 F.3d at 473 (similar). Both the public disclosures and Maur‘s complaint were levied against the same actor for the same type of fraud. Both accuse Dr. Korban of performing unnecessary cardiac and stent procedures. Both charge him of doing so at western Tennessee hospitals owned by Tennova Healthcare. And both allege that the wrongful procedures were paid for by Medicare.
It also does not matter that Maur has added another Tennova subsidiary, its parent, and Korban‘s personally owned business as additional defendants. See Holloway, 960 F.3d at 849 (concluding that earlier allegations “focused on a single hospice facility” were sufficient to put the government “on notice of the corporate-wide conduct alleged“); Poteet, 552 F.3d at 511, 514 (barring claims where the “defendants involved [were] slightly different,” because public disclosures “revealed the same kind of fraudulent activity“). What matters instead is that Maur has presented “substantially the same allegations” concerning a scheme perpetuated by Korban. As Maur admits, that “exact scheme” has already been publicly disclosed. The “wide-reaching public disclosure bar” therefore forecloses Maur‘s qui tam suit unless he qualifies as an “original source.” Schindler Elevator, 563 U.S. at 408; see
C.
The amended public-disclosure bar defines “original source” in two ways. First, it covers an individual who “prior to a public disclosure under subsection (e)(4)([A]) has voluntarily disclosed to the Government the information on which allegations or transactions in a claim are based.”
1.
Maur does not fall within the first definition of an “original source” for a simple reason. He does not allege that he relayed anything to the government “prior to a public disclosure under subsection (e)(4)([A]).”
In response, Maur urges that his allegations are not “based” upon those prior public disclosures because they describe conduct occurring after that covered by the Deming action. Yet this is just an attempt to repackage the argument that his allegations are not “substantially the same” as the disclosures. Cf. Armes, 719 F. App‘x at 463 (“A later qui tam complaint is based upon a publicly disclosed fraud when a substantial identity exists between the publicly disclosed allegations or transactions and the qui tam complaint.” (internal quotation marks omitted)). Because Maur did not communicate anything to the government prior to those public disclosures, he does not fit within the first definition of an “original source.”3
2.
Nor does Maur fall within the second definition of an “original source.” He did not provide any additional, “material[]” information to the government before filing the present complaint.
Here, Maur cites nine additional patient examples, but there “is nothing significant or new” about them. ABLE, 816 F.3d at 431. Maur even concedes in his complaint that his allegations are “not new” and provide “no unique new details.”
Yet that alone is not necessarily fatal to Maur‘s claim. We noted in Ibanez that “the mere resemblance of [the current] allegations to a scheme resolved years earlier is not by itself enough to trigger the public disclosure bar.” 874 F.3d at 919. But here,
To see why, compare this case to one like Ibanez. There, the defendants’ scheme persisted seven years after they entered the integrity agreements, and two years after both had expired. In those circumstances, we could not “assume[] that the government [was] aware [the] fraudulent scheme continue[d] (or was restarted) simply because it had uncovered, and then resolved, a similar scheme before.” Ibanez, 874 F.3d at 919. Bringing to light that the scheme had in fact continued well after the execution of the agreements—after they had expired even—might well have “affected the government‘s decision-making.” ABLE, 816 F.3d at 432; see Ibanez, 874 F.3d at 919 n.4.
By contrast, Maur alleges the perpetuation of—in his words—the “exact scheme” exposed in the Deming action, only months after the 2015 settlement and while the Korban IA was still in effect. This temporal proximity to the prior settlement, combined with the ongoing effect of the Korban IA, dooms Maur‘s claim that he is an original source. The Korban IA required Korban to engage an Independent Review Organization for the submission of quarterly reviews to the federal government throughout the period of Maur‘s allegations. The point of this oversight arrangement was to subject Korban to heightened scrutiny—to monitor whether the fraudulent scheme was continuing. With this arrangement in place, “simply asserting a longer duration for the same allegedly fraudulent practice does not materially add to the information already publicly disclosed.” Winkelman, 827 F.3d at 212. The government was still dealing with the Deming allegations and scrutinizing the precise set of transactions Maur believes were fraudulent, with the benefit of an independent reviewer‘s assistance. And that robust review system suggests “the government may have expected” the fraud to continue even “after the agreement[ was] entered.” Ibanez, 874 F.3d at 919 n.4.
Thus, by merely providing additional instances of the same type of fraud during the oversight period, Maur has failed to offer information of “such a nature that knowledge” of it “would affect” the “government‘s decision-making.” ABLE, 816 F.3d at 431–32. After all, in these circumstances, where there is no allegation of falsification in the reports,4 it can “be assumed that the government [would be] aware” if the same “fraudulent scheme continue[d] (or was restarted).” Ibanez, 874 F.3d at 919.
proffered no new information that materially adds to what is already contained in public disclosures. He does not qualify as an original source. And he cannot overcome the public-disclosure bar.
* * *
For the foregoing reasons, we hold that Maur‘s action is foreclosed by the FCA‘s public-disclosure bar. We therefore AFFIRM the district court‘s dismissal.