United States District Court, N.D. Illinois, Eastern Division
United States of America ex rel. Donna Myers, and Donna Myers, individually, Plaintiff,
America's Disabled Homebound, Inc.; Benchmark Health Corp.; Robert M. Kaplan; Richard Ansfield; Scott Schneider, Defendants.
MEMORANDUM OPINION AND ORDER
Honorable Thomas M. Durkin United States District Judge
Myers worked as a nurse for America's Disabled Homebound,
Inc. (“ADH”), which is a home physician service.
She alleges that ADH; its president, Richard Ansfield; its
chief operating officer, Scott Schneider; its employee Dr.
Robert Kaplan; and Benchmark Health Corp., another home
physician service of which Ansfield is the president, falsely
certified that certain patients were homebound in order to
receive reimbursement from Medicare for their services in
violation of the False Claims Act (“FCA”). She
also alleges that Defendants violated the FCA by requiring
her to use Medicare billing codes for patient visits of a
greater duration than she actually provided. In addition to
her FCA claims, Myers alleges that she was fired in violation
of the Illinois Whistleblower Act when she refused to follow
Defendants' instructions for visiting patients and
recording the treatment services she provided because she
believed those instructions violated federal regulations.
Defendants have moved to dismiss Myers's claims for
failure to state a claim pursuant to Federal Rule of Civil
Procedure 12(b)(6). R. 38; R. 41; R. 44; R. 49. For the
following reasons, those motions are denied in part and
granted in part.
12(b)(6) motion challenges the sufficiency of the
complaint. See, e.g., Hallinan v. Fraternal Order of
Police of Chi. Lodge No. 7, 570 F.3d 811, 820 (7th Cir.
2009). A complaint must provide “a short and plain
statement of the claim showing that the pleader is entitled
to relief, ” Fed.R.Civ.P. 8(a)(2), sufficient to
provide defendant with “fair notice” of the claim
and the basis for it. Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555 (2007). This standard “demands more
than an unadorned, the-defendant-unlawfully-harmed-me
accusation.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009). While “detailed factual allegations”
are not required, “labels and conclusions, and a
formulaic recitation of the elements of a cause of action
will not do.” Twombly, 550 U.S. at 555. The
complaint must “contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is
plausible on its face.'” Iqbal, 556 U.S.
at 678 (quoting Twombly, 550 U.S. at 570).
“‘A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.'” Mann v.
Vogel, 707 F.3d 872, 877 (7th Cir. 2013) (quoting
Iqbal, 556 U.S. at 678). In applying this standard,
the Court accepts all well-pleaded facts as true and draws
all reasonable inferences in favor of the non-moving party.
Mann, 707 F.3d at 877.
it is well established that the FCA “is an anti-fraud
statute and claims under it are subject to the heightened
pleading requirements of Rule 9(b).” Thulin v.
Shopko Stores Operating Co., LLC, 771 F.3d 994, 998 (7th
Cir. 2014). Rule 9(b) requires a plaintiff to “state
with particularity the circumstances constituting fraud or
mistake.” “The reference to
‘circumstances' in the rule requires the plaintiff
to state the identity of the person who made the
misrepresentation, the time, place and content of the
misrepresentation, and the method by which the
misrepresentation was communicated to the plaintiff
[.]” United States v. Sanford-Brown, Ltd., 788
F.3d 696, 705 (7th Cir. 2015); see also United States ex
rel. Lusby v. Rolls-Royce Corp., 570 F.3d 849, 853 (7th
Cir. 2009) (“particularity . . . means the who, what,
when, where, and how”). Nevertheless, courts should not
“take an overly rigid view of the formulation, ”
and the “requisite information . . . may vary on the
facts of a given case.” Pirelli v. Armstrong Tire
Corp. Retiree Med. Benefits Trust v. Walgreen Co., 631
F.3d 436, 442 (7th Cir. 2011). Thus, although plaintiffs
“‘are not absolutely required to plead the
specific date, place, or time of the fraudulent acts,
'” they “still must ‘use some
alternative means of injecting precision and some measure of
substantiation into their allegations of fraud.'”
Id. (quoting 2 James Wm. Moore, Moore's Federal
Practice § 9.03 [b], at 9-18 (3d ed. 2010)). Rule
9(b) requires a “plaintiff to do more than the usual
investigation before filing [a] complaint. Greater
precomplaint investigation is warranted in fraud cases
because public charges of fraud can do great harm to the
reputation of a business firm or other enterprise (or
individual).” Ackerman v. Nw. Mut. Life Ins.
Co., 172 F.3d 467, 469 (7th Cir. 1999) (citations
relevant Medicare regulations provide the following:
For a patient to be eligible to receive home health services
under Part A and Part B, the law requires that a physician
certify in all cases that the patient is confined to his/her
home. For purposes of the statute, an individual shall be
considered “confined to the home” (homebound) if
the following two criteria are met:
1. Criterion One:
The patient must either:
- Because of illness or injury, need the aid of supportive
devices such as crutches, canes, wheelchairs, and walkers;
the use of special transportation; or the assistance of
another person in order to leave their place or residence
- Have a condition such that leaving his or her home is
If the patient meets one of the criterion one
conditions, then the patient must ALSO meet two additional
requirements defined in criterion two below.
2. Criterion Two:
- There must exist a normal inability to leave home; AND
- Leaving home must require considerable and taxing effort.
* * * *
If the patient does in fact leave the home, the patient may
nevertheless be considered homebound if the absences from the
home are infrequent or for periods of relatively short
duration, or are attributable to the need to receive health
* * * *
Any absence of an individual from the home attributable to
the need to receive health care treatment, including regular
absences for the purpose of participating in therapeutic,
psychosocial, or medical treatment in an adult day-care
program that is licensed or certified by a state, or
accredited to furnish adult day-care services in a state,
shall not disqualify an individual from being considered to
be confined to his home. Any other absence of an individual
from the home shall not so disqualify an individual if the
absence is of an infrequent or of relatively short duration.
For purposes of the preceding sentence, any absence for the
purpose of attending a religious service shall be deemed to
be an absence of infrequent or short duration.
* * * *
However, occasional absences from the home for nonmedical
purposes, e.g., an occasional trip to the barber, a walk
around the block or a drive, attendance at a family reunion,
funeral, graduation, or other infrequent or unique event
would not necessitate a finding that the patient is not
homebound if the absences are undertaken on an infrequent
basis or are of relatively short duration and do not indicate