On September 1, 2016, the U.S. Court of Appeals for the Seventh Circuit reversed the dismissal of an FCA lawsuit by the U.S. District Court for the Eastern District of Wisconsin, and in doing so, evaluated the particularity required to survive a motion to dismiss under Rule 9(b) as it relates to both a relator's obligation to plead specific claims and the specifics of the underlying fraudulent conduct at issue.
In U.S. ex rel. Presser v. Acacia Mental Health Clinic, LLC, the relator worked at a mental health clinic as an independent contractor nurse practitioner and alleged that the clinic fraudulently billed for medically unnecessary services. The relator alleged that the FCA violations resulted from four types of conduct: (1) requiring patients to see four clinicians and incur separate charges from each in order to be provided with medications; (2) mandating that the receptionist and medical nurse practitioner use a billing code for full psychological assessment by a therapist or a psychiatric medical evaluation by a psychiatrist or psychiatric nurse practitioner; (3) performing mandatory urine screens for each patient on each visit; and (4) requiring patients to come in to the clinic for refills or to speak with a physician.
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