United States District Court, N.D. Oklahoma
UNITED STATES OF AMERICA, ex rel. SANDRA WAGNER, Plaintiff,
CARE PLUS HOME HEALTH CARE, INC.; PRASAD ITTY; and KUMAR GOVIND, Defendants.
OPINION AND ORDER
GREGORY K. FRIZZELL, CHIEF JUDGE.
the court is the Motion for Leave to Amend Relator's
Complaint [Doc. #58] of plaintiff United States of America
ex rel. Sandra Wagner. For the reasons discussed
below, the motion is granted in part and denied in part.
Care Plus Home Health Care, Inc. is a certified home health
agency owned and operated by individual defendants Prasad
Itty and Kumar Govind. Plaintiff Sandra Wagner was formerly
employed by Care Plus, first as an independent contractor
registered nurse from May 2006 to January 2013, and then as
the Office Director of Nursing from January 2013 until her
termination in February 2015.
employed as the Office Director of Nursing, Wagner alleges
that she “determined that Defendants' business
practices were designed to fraudulently maximize billing,
primarily to Medicare.” [Doc. #60-1, ¶ 28].
Specifically, Wagner asserts that she witnessed two types of
fraudulent conduct by defendants: (1) continuing to provide
services to patients who were not eligible for home health
services under the Medicare guidelines, and billing Medicare
for such unnecessary and/or ineligible services; and (2)
falsifying required documentation and medical records to
increase Medicare billings and avoid reimbursement of
Medicare overpayments. Wagner estimates that defendants'
alleged scheme has been ongoing since 2010, and resulted in
losses to the United States in the amount of approximately
$1, 490, 000 per year. [Doc. #60-1, ¶ 129].
initiated this qui tam action against defendants on
behalf of the United States pursuant to False Claims Act, 31
U.S.C. §§ 3729 et seq. The Complaint
asserted three causes of action: (1) presentation of false
claims in violation of 31 U.S.C. § 3729(a)(1)(A); (2)
making or using a false record or statement to cause a false
or fraudulent claim to be paid in violation of 31 U.S.C.
§ 3729(a)(1)(B); and (3) making or using a false record
or statement to avoid an obligation to pay (refund) money to
the government in violation of 31 U.S.C. §
3729(a)(1)(G). See [Doc. #2]. Defendants moved to
dismiss count I pursuant to Fed.R.Civ.P. 12(b)(6) and all
counts pursuant to Fed.R.Civ.P. 9(b). See generally
order of December 11, 2017, this court granted
defendants' motion to dismiss as to Wagner's claims
for presentation of a false claim in violation of §
3729(a)(1)(A), making or using a false record or statement to
cause a claim to be paid in violation of §
3729(a)(1)(B), and reverse fraud in violation of §
3729(a)(1)(G) premised on allegations that defendants
knowingly brought on, and retained, ineligible patients.
See [Doc. #56]. However, the court denied
defendants' motion to dismiss with regard to Wagner's
claims for presentation of a false claim in violation of
§ 3729(a)(1)(A), making or using a false record or
statement to cause a claim to be paid in violation of §
3729(a)(1)(B), and reverse fraud in violation of §
3729(a)(1)(G), to the extent premised on allegations that
defendants falsified OASIS information and medical records.
[Id.] Wagner seeks leave to amend the Complaint to
provide additional supportive factual allegations as to the
claims that were dismissed. See [Doc. #58].
Motion to Amend Standard
Rule of Civil Procedure 15(a) permits a party to amend its
pleading once as a matter of course within twenty-one (21)
days of service or, if the pleading is one to which a
responsive pleading is required, within 21 days of service of
the responsive pleading or motion. Fed.R.Civ.P. 15(a)(1).
“In all other cases, a party may amend its pleading
only with the opposing party's written consent or the
court's leave.” Fed.R.Civ.P. 15(a)(2).
leave to amend should be freely given “when justice so
requires, ” Fed.R.Civ.P. 15(a)(2), “denial of a
motion to amend may be appropriate where there has been shown
‘undue delay, bad faith or dilatory motive on the part
of the movant, repeated failure to cure deficiencies by
amendments previously allowed, undue prejudice to the
opposing party by virtue of allowance of the amendment,
futility of amendment, etc.'” Steadfast Ins.
Co. v. Agric. Ins. Co., No. 05-CV-126-GKF-TLW, 2014 WL
1901175, at *4 (N.D. Okla. May 13, 2014) (quoting Foman
v. Davis, 371 U.S. 178, 182 (1962)). “‘[T]he
grant of leave to amend the pleadings pursuant to Rule 15(a)
is within the discretion of the trial court.'”
Minter v. Prime Equip. Co., 451 F.3d 1196, 1204
(10th Cir. 2006) (alteration in original) (quoting Zenith
Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321,
Overview of the False Claims Act
FCA ‘covers all fraudulent attempts to cause the
government to pay out sums of money.'” U.S. ex.
rel. Conner v. Salina Reg'l Health Ctr., Inc., 543
F.3d 1211, 1217 (10th Cir. 2008) (quoting United States
ex rel. Boothe v. Sun Healthcare Grp., Inc., 496 F.3d
1169, 1172 (10th Cir. 2007) (quotation omitted in original)).
The relevant sections of the FCA are as follows:
(a) Liability for certain acts -
(1) In general. - Subject to paragraph (2), any person who -
(A) knowingly presents, or causes to be presented, a false or
fraudulent claim for payment or approval;
(B) knowingly makes, uses, or causes to be made or used, a
false record or statement material to a false or fraudulent
(G) knowingly makes, uses, or causes to be made or used, a
false record or statement material to an obligation to pay or
transmit money or property to the Government, or knowingly
conceals or knowingly and improperly avoids or decreases an