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United States ex rel. Carson v. Manor Care, Inc.

United States Court of Appeals, Fourth Circuit

March 16, 2017

UNITED STATES OF AMERICA ex rel. PATRICK GERARD CARSON, Plaintiff - Appellant,
v.
MANOR CARE, INCORPORATED, a/k/a HCR Manor Care, Inc., d/b/a HCR Manor Care; HCR MANOR CARE; HEARTLAND EMPLOYMENT SERVICES, LLC, Defendants - Appellees, and UNITED STATES OF AMERICA ex rel. CHRISTINE A. RIBIK, Plaintiff, and MANOR CARE - FAIR OAKS OF FAIRFAX VA, LLC, d/b/a Manorcare Health Services - Fair Oaks; MANOR CARE OF ARLINGTON VA, LLC, d/b/a Manorcare Health Services - Arlington; MANOR CARE OF NORTH HILLS OF PITTSBURGH PA, LLC, a/k/a ManorCare Health Services - North Hills; MANOR CARE OF POTTSTOWN, PA, LLC, a/k/a ManorCare Health Services - Pottstown; MANOR CARE OF POTTSVILLE PA, LLC, a/k/a ManorCare Health Services - Pottsville; MANOR CARE OF SINKING SPRING PA, LLC, a/k/a ManorCare Health Services - Sinking Spring; MANOR CARE OF SUNBURY PA, LLC, a/k/a ManorCare Health Services - Sunbury; MANOR CARE OF WEST READING PA, LLC, a/k/a ManorCare Health Services - West Reading North; MANOR CARE OF WHITEHALL BOROUGH PA, LLC, a/k/a ManorCare Health Services - Whitehall Borough; MANOR CARE OF WILLIAMSPORT PA (SOUTH), LLC, a/k/a ManorCare Health Services - Williamsport South; MANOR CARE OF YARDLEY PA, LLC, a/k/a ManorCare Health Services - Yardley; MANOR CARE OF YEADON PA, LLC, a/k/a ManorCare Health Services - Yeadon; MANOR CARE OF YORK (NORTH) INC., a/k/a Manor Care - North, a/k/a ManorCare Health Services - York North; MANOR CARE OF YORK (SOUTH) INC., a/k/a Manor Care - South, a/k/a ManorCare Health Services - York South; MANOR CARE OF CHARLESTON, INC., a/k/a HCR ManorCare Health Services - Charleston, a/k/a Manor Care, Incorporated; MANOR CARE OF COLUMBIA, INC., a/k/a HCR Manor Care - Columbia, a/k/a Manor Care, Incorporated; MANOR CARE OF LEXINGTON, INC., a/k/a Manor Care Nursing and Rehab Center, a/k/a Manor Care, Incorporated; MANOR CARE OF ABERDEEN SD, LLC, a/k/a ManorCare Health Services - Aberdeen; MANOR CARE OF TENNESSEE, INC.; MANOR CARE OF DALLAS TX, LLC, a/k/a ManorCare Health Services - Dallas; MANOR CARE OF FORTH WORTH TX, LLC, a/k/a ManorCare Health Services - Fort Worth; MANOR CARE OF HOUSTON TX, LLC, a/k/a ManorCare Health Services - Houston, a/k/a ManorCare Health Services - Sharpview; MANOR CARE OF NORTH RICHLAND HILLS TX, LLC, a/k/a ManorCare Health Services - North Richland Hills; MANOR CARE OF SAN ANTONIO TX, LLC; MANOR CARE OF WEBSTER TX, LLC; MANOR CARE OF ALEXANDRIA VA, LLC; MANOR CARE OF IMPERIAL (RICHMOND VA), LLC; MANOR CARE OF STRATFORD HALL (RICHMOND VA), LLC; MANOR CARE HEALTH SERVICES OF WASHINGTON INC.; MANOR CARE OF GIG HARBOR WA, LLC; MANOR CARE OF LYNWOOD WA, LLC; MANOR CARE OF TACOMA WA, LLC; MANOR CARE OF APPLETON WI, LLC; MANOR CARE OF FOND DU LAC WI, LLC; MANOR CARE OF GREEN BAY WI (EAST), LLC; MANOR CARE OF KENOSHA WI, LLC; MANOR CARE OF PEWAUKEE WI, LLC; CARLYLE GROUP, a/k/a Carlyle - Manorcare; CARLYLE MC PARNERS, L.P.; CARLYLE PARTNERS V MC, L.P.; MANORCARE HEALTH SERVICES OF ARIZONA, INC.; HEATHER MANOR CARE CENTER, INC., a/k/a Heather Manor Nursing and Rehab Center; STELLA MANOR CARE CENTER, INC.; MANOR CARE OF CALIFORNIA INC.; BROADWAY MANOR CARE CENTER, INC.; CARLYLE PARTNERS, LLC; CARLYLE GROUP LLC; DESERT MANOR CARE CENTER LP; FREDERICKA MANOR CARE CENTER, INC.; KINGSLEY MANOR CARE CENTER, INC.; MANOR CARE OF CITRUS HEIGHTS CA, LLC; MANOR CARE OF FOUNTAIN VALLEY CA, LLC; MANOR CARE OF SUNNYVALE CA, LLC; MANOR CARE OF HEMET CA, LLC; MANOR CARE OF PALM DESERT CA, LLC; MANOR CARE HEALTH SERVICES - TICE VALLEY; MANOR CARE OF RANCHO BERNARDO CA, LLC; PINE MANOR CARE HOME, INC.; PLEASANT MANOR CARE HOMES, INC.; WALNUT MANOR CARE CENTER, INC.; VALENCIA MANOR CARE, INC.; VILLA MANOR CARE CENTER, INC.; ASHLEY MANOR CARE CENTERS, INC.; BERKLEY MANOR CARE CENTER, INC.; CCF - MANOR CARE, LLC; COLUMBINE MANOR CARE CENTER, INC.; GRACE MANOR CARE CENTER, a/k/a Burlington Nursing Home, LLC; HRC MANOR CARE MEDICAL SERVICES OF FLORIDA, INC.; LAUREL MANOR CARE CENTER, INC.; MANOR CARE HEALTH SERVICES - BOULDER, a/k/a Manorcare Health Services, Incorporated, f/k/a ManorCare Health Services of Colorado; MANOR CARE HEALTH SERVICES - DENVER, a/k/a Manorcare Health Services, Incorporated; VALLEY MANOR CARE CENTER, INC.; WHEATRIDGE MANOR CARE CENTER; PILGRIM MANOR CARE CENTER, INC.; WESTFIELD MANOR CARE CENTER, INC.; MANOR CARE HEALTH SERVICES - PIKE CREEK; MANOR CARE HEALTH SERVICES - WILMINGTON; MANOR CARE OF BOCA RATON, INC., a/k/a Manor Care of Boca Raton FL, LLC; MANOR CARE OF BOYNTON BEACH, INC., a/k/a ManorCare Services of Boynton Beach FL, LLC; MANOR CARE OF BREVARD, INC.; MANOR CARE OF BROWARD, INC.; MANOR CARE - CARROLLWOOD OF TAMPA FL, LLC, a/k/a ManorCare Health Services-Carrollwood of Tampa Florida; MANOR CARE OF DELRAY BEACH FL, LLC, a/k/a ManorCare Health Services - Delray; MANOR CARE OF DUNEDIN FL, LLC; MANOR CARE OF FORT MYERS, INC., a/k/a ManorCare Health Services of Fort Myers, Inc.; MANOR CARE - LELY PALMS OF NAPLES FL (SH), LLC; MANOR CARE OF PALM HARBOR FL, LLC, a/k/a ManorCare Health Services - Palm Harbor; MANOR CARE OF PLANTATION, INC., a/k/a ManorCare Health Services of Plantation, Inc.; MANOR CARE OF SARASOTA, INC., a/k/a ManorCare Nursing Center of Sarasota FL, LLC; MANOR CARE OF VENICE FL, LLC; MANOR CARE OF WEST PALM BEACH FL, LLC, a/k/a ManorCare Health Services - West Palm Beach; MANOR CARE OF WINTER PARK FL, LLC, a/k/a ManorCare Health Services - Winter Park; MANOR CARE HEALTH SERVICES OF GEORGIA, INC.; GCI VALLEY MANOR CARE HEALTH CENTER; MANOR CARE OF COVINGTON, LLC; MANOR CARE OF MARIETTA GA, LLC, a/k/a ManorCare of Marietta Nursing and Rehab; MANOR CARE REHABILITATION CENTER OF DECATUR GA, LLC, a/k/a ManorCare Nursing and Rehab Center - Decatur, a/k/a ManorCare Health Services - Decatur; MANOR CARE OF ARLINGTON HEIGHTS IL, LLC, a/k/a ManorCare Health Services - Arlington Heights; MANOR CARE OF CHAMPAIGN IL, LLC, a/k/a ManorCare Health Services - Champaign; MANOR CARE OF ELGIN IL, LLC; MANOR CARE OF ELK GROVE VILLAGE IL, LLC, a/k/a ManorCare Health Services - Elk Grove Village; MANOR CARE OF HIGHLAND PARK IL, LLC, a/k/a ManorCare of Highland Park; MANOR CARE OF HINSDALE IL, LLC, a/k/a ManorCare of Hinsdale; MANOR CARE OF HOMEWOOD IL, LLC, a/k/a ManorCare Health Services - Homewood; MANOR CARE OF KANKAKEE IL, LLC, a/k/a ManorCare Health Services - Kankakee; MANOR CARE OF LIBERTYVILLE IL, LLC, a/k/a ManorCare Health Services - Libertyville; MANOR CARE OF NAPERVILLE IL, LLC, a/k/a ManorCare Health Services - Naperville; MANOR CARE OF NORTHBROOK IL, LLC, a/k/a ManorCare Health Services - Northbrook; MANOR CARE OF OAK LAWN (EAST) IL, LLC, a/k/a ManorCare Health Services - Oak Lawn East; MANOR CARE OF OAK LAWN (WEST) IL, LLC; MANOR CARE HEALTH SERVICES - SKOKIE IL; MANOR CARE OF PALOS HEIGHTS (EAST) IL, LLC; MANOR CARE OF PALOS HEIGHTS (WEST) IL, LLC; MANOR CARE OF ROLLING MEADOWS IL, LLC; MANOR CARE OF SOUTH HOLLAND IL, LLC; MANOR CARE OF WESTMONT IL, LLC; MANOR CARE OF WILMETTE IL, LLC; RUTLEDGE MANOR CARE HOME, INC.; MANOR CARE - ANDERSON, INDIANA; MANOR CARE OF PRESTWICK AVON IL, LLC, a/k/a ManorCare Health Services - Prestwick; MANOR CARE HEALTH SERVICES - SUMMER TRACE; MANOR CARE HEALTH SERVICES - INDY SOUTH; MANOR CARE OF CEDAR RAPIDS IA, LLC, a/k/a ManorCare Health Services- Cedar Rapids; MANOR CARE OF DAVENPORT IA, LLC, a/k/a ManorCare Health Services - Davenport; MANOR CARE OF DUBUQUE IA, LLC, a/k/a ManorCare Health Services - Dubuque; MANOR CARE OF WATERLOO IA, LLC, a/k/a ManorCare Health Services - Waterloo; MANOR CARE OF WEST DES MOINES IA, LLC, a/k/a ManorCare Health Services - West Des Moines; MANOR CARE OF UTICA RIDGE IA, LLC, a/k/a ManorCare Health Services - Utica Ridge; GREENWOOD MANORCARE CENTER, INC.; LINN MANORCARE CENTER, INC.; NORTHBROOK MANORCARE CENTER, INC.; TABOR MANORCARE CENTER INC.; MANORCARE HEALTH SERVICES OF KANSAS INC.; MANOR CARE OF OVERLAND PARK KANSAS, LLC, a/k/a ManorCare Health Services - Overland Park; MANOR CARE OF WICHITA KANSAS, LLC, a/k/a ManorCare Health Services - Wichita; MANORCARE OF KENTUCKY, INC.; MANORCARE OF MT. HOLLY, INC.; WOODCREST MANOR CARE CENTER, INC.; MANORCARE OF ST. MATTHEWS MANOR, INC.; MANORCARE HEALTH SERVICES - BETHESDA, a/k/a Manor Care of Bethesda MD, LLC, f/k/a Manor Care of Bethesda Inc.; MANORCARE HEALTH SERVICES - CHEVY CHASE, a/k/a Manor Care of Chevy Chase MD, LLC; MANORCARE HEALTH SERVICES - DULANEY, a/k/a Manor Care - Dulany MD, LLC; MANORCARE FOUNDATION INC., a/k/a HCR ManorCare Foundation Inc.; MANORCARE HEALTH SERVICES - LARGO, a/k/a Manor Care of Largo MD, LLC, f/k/a Manor Care of Largo Inc.; MANORCARE HEALTH SERVICES - POTOMAC, a/k/a Manor Care of Potomac MD, LLC; MANORCARE HEALTH SERVICES - ROLAND PARK, a/k/a Manor Care - Roland Park; MANORCARE HEALTH SERVICES - ROSSVILLE, a/k/a Manor Care - Rossville MD, LLC; MANORCARE HEALTH SERVICES - RUXTON, a/k/a Manor Care Ruxton MD, LLC; MANORCARE HEALTH SERVICES - SILVER SPRING, a/k/a Manor Care of Silver Spring MD, LLC; MANORCARE HEALTH SERVICES - TOWSON, a/k/a Manor Care of Towson, LLC; MANORCARE HEALTH SERVICES - WHEATON, a/k/a Manor Care of Wheaton MD, LLC; MANORCARE HEALTH SERVICES - WOODBRIDGE VALLEY; ARBOR MANOR CARE CENTER, INC.; COUNTRY MANOR CARE CENTER, INC.; MANORCARE NURSING AND REHABILITATION CENTER; COLUMBIA MANOR CARE CENTER, INC.; GRANDVIEW MANOR CARE CENTER, INC.; KIRKSVILLE MANOR CARE CENTER, INC.; LABELLE MANOR CARE CENTER, INC.; MANORCARE HEALTH SERVICES - FLORISSANT, a/k/a Manor Care of Florissant MO, LLC; MANORCARE HEALTH SERVICES - SPRINGFIELD, a/k/a Manor Care of Springfield MO, LLC; REDWOOD MANOR CARE CENTER, INC.; MANORCARE HEALTH SERVICES - RENO, a/k/a Manor Care of Reno NV, LLC; MANORCARE HEALTH SERVICES - WINGFIELD HILLS, a/k/a Manor Care of Wingfield Hills NV, LLC; RIVERVIEW MANOR CARE CENTER, INC.; KING MANOR CARE AND REHABILITATION CENTER, INC.; MANORCARE HEALTH SERVICES - CHERRY HILL, a/k/a Manor Care of Cherry Hill NJ, LLC; MANORCARE HEALTH SERVICES - MOUNTAINSIDE; MANORCARE HEALTH SERVICES - NEW PROVIDENCE, a/k/a Manor Care of New Providence NJ, LLC; MANORCARE HEALTH SERVICES - VOORHEES, a/k/a Manor Care of Voorhees NJ, LLC; MANORCARE HEALTH SERVICES - WASHINGTON TOWNSHIP, a/k/a Manor Care of Washington Township NJ, LLC; MANORCARE HEALTH SERVICES - WEST DEPTFORD, a/k/a Manor Care of West Deptford NJ, LLC; STRATFORD MANOR CARE AND REHABILITATION CENTER, INC.; MANORCARE HEALTH SERVICES - PINEHURST, a/k/a Manor Care of Pinehurst, Inc., a/k/a Manor Care of Pinehurst NC, LLC; MANOR CARE OF FARGO ND, LLC, a/k/a ManorCare Health Services - Fargo; MANOR CARE OF MINOT ND, LCL, a/k/a ManorCare Health Services - Minot; HRC MANORCARE PROPERTIES, LLC; HRC MANOR CARE FOUNDATION INC.; HILLCREST MANOR CARE CENTER, INC.; MANOR CARE OF AMERICA, INC.; MANOR CARE OF AKRON OH, LLC, a/k/a ManorCare Health Services - Akron; MANOR CARE - BELDEN VILLAGE OF CANTON OH, LLC, a/k/a ManorCare Health Services - Belden Village of Canton; MANORCARE HEALTH SERVICES - BARBERTON; MANOR CARE OF CENTERVILLE, INC., a/k/a Heartland of Centerville, a/k/a HRC ManorCare - Centerville; MANOR CARE - EUCLID BEACH OF CLEVELAND OH, LLC, a/k/a ManorCare Health Services - Euclid Beach; MANORCARE SERVICES - LAKE SHORE, a/k/a Manor Care at Lake Shore; MANOR CARE MT. AIRY, a/k/a Heartland of Mt. Airy; MANOR CARE OF MAYFIELD HEIGHTS OH, LLC, a/k/a ManorCare Health Services - Mayfield Heights; MANOR CARE OF NORTH OLMSTEAD OH, LLC, a/k/a ManorCare Health Services - North Olmstead; MANOR CARE OF PARMA OH, LLC, a/k/a ManorCare Health Services - Parma; MANOR CARE PROPERTIES, INC.; MANORCARE HEALTH SERVICES - ROCKY RIVER, a/k/a Manor Care of Rocky River OH, LLC; MANOR CARE AT SYCAMORE GLENN; MANOR CARE OF WESTERVILLE OH, LLC, a/k/a ManorCare Health Services - Westerville; MANOR CARE OF WILLOUGHBY OH, LLC, a/k/a ManorCare Health Services - Willoughby; OAKHILL MANOR CARE CENTER, INC.DEF; PICKAWAY MANOR CARE CENTER, INC.; MANOR CARE OF MIDWEST CITY OK, LLC, a/k/a ManorCare Health Services - Midwest City; MANOR CARE OF OKLAHOMA CITY (NORTHWEST), LLC, a/k/a ManorCare Health Services - Northwest; MANOR CARE OF OKALAHOMA CITY (SOUTHWEST), LLC, a/k/a ManorCare Health Services - Southwest; MANOR CARE OF TULSA OK, LLC, a/k/a ManorCare Health Services - Tulsa; DEVON MANOR CORPORATION, a/k/a Manor Care at Devon; MANOR CARE OF ALLENTOWN PA, LLC, a/k/a ManorCare Health Services - Allentown; MANOR CARE OF BETHEL PARK PA, LLC, a/k/a ManorCare Health Services - Bethel Park; MANOR CARE OF BETHLEHEM PA (2021), LLC, a/k/a ManorCare Health Services - Bethlehem (2021); MANOR CARE OF BETHLEHEM PA (2029), LLC, a/k/a ManorCare Health Services - Bethlehem (2029); MANOR CARE OF CAMP HILL PA, LLC, a/k/a ManorCare Health Services - Camp Hill; MANOR CARE OF CARLISLE PA, LLC, a/k/a ManorCare Health Services - Carlisle; MANOR CARE OF CHAMBERSBURG PA, LLC, a/k/a ManorCare Health Services - Chambersburg; MANOR PARK OF DALLASTOWN PA, LLC, a/k/a ManorCare Health Services - Dallastown, a/k/a ManorCare Health Services - Camp Hill; MANOR CARE OF EASTON PA, LLC, a/k/a ManorCare Health Services - Easton; MANOR CARE OF ELIZABETHTOWN, LLC, a/k/a ManorCare Health Services - Elizabethtown; MANOR CARE - GREENTREE OF PITTSBURGH PA, LLC, a/k/a ManorCare Health Services - Greentree; MANOR CARE HEALTH SERVICES - HARRISBURG, a/k/a Manor Healthcare Corp.; MANOR CARE OF HUNTINGDON VALLEY PA, LLC, a/k/a ManorCare Health Services - Huntington Valley; MANOR CARE OF JERSEY SHORE PA, LLC, a/k/a ManorCare Health Services - Jersey Shore; MANOR CARE KING OF PRUSSIA PA, LLC, a/k/a ManorCare Health Services - King of Prussia; MANOR CARE OF KINGSTON PA, LLC, a/k/a ManorCare Health Services - Kingston; MANOR CARE - KINGSTON COURT OF YORK PA, LLC, a/k/a ManorCare Health Services - Kingston Court; MANOR CARE OF LANCASTER PA, LLC, a/k/a ManorCare Health Services - Lancaster; MANOR CARE LANSDALE OF MONTGOMERY PA, LLC, a/k/a ManorCare Health Services - Lansdale; MANOR CARE OF LAURELDALE PA, LLC, a/k/a ManorCare Health Services - Laureldale; MANOR CARE OF LEBANON PA, LLC, a/k/a ManorCare Health Services - Lebanon; MANOR CARE OF MCMURRAY PA, LLC, a/k/a ManorCare Health Services - McMurray; MANOR CARE OF MONROEVILLE PA, LLC, a/k/a ManorCare Health Services - Monroeville; MANOR CARE OF PLATTEVILLE WI, LLC; MANOR CARE OF SHAWANO (EAST) WI, LLC; MANOR CARE OF SHAWANO (WEST) WI, LLC; HCR MANORCARE, Defendants.

          Argued: December 7, 2016

         Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Claude M. Hilton, Senior District Judge. (1:09-cv-00013-CMH-TCB)

         ARGUED:

          William Louis Hurlock, MUELLER LAW LLC, Montclair, New Jersey, for Appellant.

          James Christopher Martin, REED SMITH LLP, Pittsburgh, Pennsylvania, for Appellees.

         ON BRIEF:

          Christopher P. Furlong, MUELLER LAW LLC, Montclair, New Jersey; L. Kendall Satterfield, Robert Wilson, Rosalee B.C. Thomas, FINKELSTEIN, THOMPSON LLP, Washington, D.C., for Appellant.

          Eric A. Dubelier, Katherine J. Seikaly, Washington, D.C., Colin E. Wrabley, M. Patrick Yingling, REED SMITH LLP, Pittsburgh, Pennsylvania, for Appellees.

          Before SHEDD, AGEE, and DIAZ, Circuit Judges.

         Affirmed in part and vacated and remanded in part by published opinion.

         Judge Agee wrote the opinion, in which Judge Shedd and Judge Diaz joined.

          AGEE, Circuit Judge:

         Patrick Gerard Carson filed a qui tam suit on behalf of the United States and several states under the False Claims Act ("FCA") and the state equivalents, claiming that his employer, HCR Manor Care, and related companies, Manor Care, Inc. and Heartland Employment Services, LLC, (collectively, "Manor Care") were overbilling the respective governments for medical services. Carson included a separate claim of retaliation in his complaint, alleging that his employment was terminated after he notified his employer of the alleged overbilling. The district court dismissed the complaint in its entirety under the FCA's first-to-file rule. For the reasons below, we affirm in part and vacate and remand in part.

         I.

         In January 2009, Christine A. Ribik filed a qui tam suit under seal in the Eastern District of Virginia on behalf of the United States against Manor Care.[1] As a former occupational therapist for Manor Care's nursing facilities, Ribik alleged that she "witnessed therapists and other staff members commit numerous offenses in violation of Medicare regulations, which give rise to violations of the False Claims Act." J.A. 49. The complaint alleged that Manor Care inflated its revenues through overbilling Medicare for "skilled physical therapy and rehabilitation" costs. J.A. 52. Ribik claimed that Manor Care regularly and fraudulently classified its patients as needing more physical therapy than necessary and instructed its physical therapists to spend more time than needed with the patients, resulting in higher Medicare payments. She also alleged that Manor Care sent some patients to physical or occupational therapy who did not need it at all and refused to discharge patients for whom physical therapy was no longer useful. Ribik amended her complaint in April 2011.

         In September 2011, Carson filed a qui tam suit under seal in the Eastern District of Virginia on behalf of the United States and several individual states[2] against Manor Care under the FCA and the state-equivalent statutes. The suit sought

to recover on behalf of the Government damages and civil penalties arising from false or fraudulent claims that Defendants submitted or caused to be submitted to federal Government-funded health insurance programs for skilled nursing facility stays and the therapies administered during those stays to Government-funded health insurance including, ...

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