United States ex rel. Sharpe v. Ambulance
| Decision Date | 03 July 2017 |
| Docket Number | Case No. 8:13-cv-1171-T-33AEP |
| Parties | UNITED STATES OF AMERICA, and THE STATE OF FLORIDA, ex rel. ERNEST SHARPE, Plaintiffs, v. AMERICARE AMBULANCE, Defendant. |
| Court | U.S. District Court — Middle District of Florida |
This matter comes before the Court upon consideration of Defendant Americare Ambulance's Motion to Dismiss, filed on May 26, 2017 (Doc. # 55), and Relator Ernest Sharpe's Response, filed on June 23, 2017 (Doc. # 61). For the reasons that follow, the Motion to Dismiss is GRANTED IN PART as to Counts I through III, with leave to amend, and DENIED IN PART as to Count IV. The Court defers ruling on the United States' Motion to Intervene, filed on June 30, 2017 (Doc. ## 62, 63), until Americare either files a response or fails to file a timely response.
Defendant Americare Ambulance provides ambulance services to Medicare and Medicaid patients in Hillsborough County and Polk County. (Doc. # 1 at ¶ 1). Relator Ernest Sharpe, who worked for Americare as a paramedic for five months, alleges that Americare violated the federal False Claims Act and the Florida False Claims Act by billing the government for medically-unnecessary ambulance services. (Id. at ¶¶ 6, 80-90). Sharpe also alleges that he was fired after reporting Americare's fraud. (Id. at ¶¶ 91-97). The relevant facts follow.
Medicare covers non-emergency ambulance service if, among other requirements, a Medicare beneficiary is "bed-confined," which means:
(Id. at ¶ 39) (citing 42 C.F.R. § 410.40(d)(1)). Non-emergency ambulance service is also covered if the service is scheduled, repetitive, and:
if the ambulance provider or supplier, before furnishing the service to the beneficiary, obtains a written order from the beneficiary's attending physician certifying that the medical necessity requirements of paragraph (d)(1) of this section are met.
(Id. at ¶ 40) (citing 42 C.F.R. § 410.40(d)(2)).
Medicaid imposes similar medical-necessity and documentation requirements. (Id. at ¶ 42).
When Sharpe began working for Americare on October 3, 2012, he was sent to a mandatory three-day orientation. (Id.at ¶ 45). Jay White, the manager in charge of quality assurance, explained that a significant number of Americare's claims were being returned as unpaid, and that it was his job to find ways to "word the reports in such a way that Medicare would pay the claims." (Id.).
Sharpe then attended field training with Joe Prestia. (Id. at ¶ 46). Prestia told Sharpe that regardless of the patient's status, it was important to not let the patient "walk around," and to document that the patient was transferred by soft stretcher and slide sheet, as that would assist in showing that the patient was "bed-confined." (Id.). According to Prestia, it was also acceptable to report that the patient was transferred "by upper extremity lift with two crewmembers assisting." (Id.).
Sharpe cites three examples of what he categorizes as medically-unnecessary ambulance services. (Id. at ¶¶ 48-55). Sharpe transported "M.S." from her home to a dialysis appointment on a weekly basis. (Id. at ¶ 48). Each time, M.S. stood in her driveway waiting for the ambulance or walked to the ambulance parked about 150 or 200 feet away from her home. (Id.).
Sharpe also transported "D.V." from her home to her dialysis appointment. (Id. at ¶ 50). Each time, D.V. walked outside, locked her door, and climbed onto the stretcher in her driveway. When the ambulance arrived at the dialysiscenter, D.V. climbed off the stretcher and walked a few feet to a chair in the waiting room. On more than one occasion, this occurred in the presence of Chris Barwenko, a supervisor. (Id.).
Sharpe picked up a third patient, "C.B.," from Astoria Health and Rehabilitation Center and transferred him to a dialysis appointment several times a week. (Id. at ¶ 52). Each time, C.B. got out of bed on his own, met Sharpe in the hallway, and climbed onto the stretcher. Once C.B. arrived at the dialysis center, he climbed off the stretcher, walked to the scale and weighed himself, and walked to the dialysis chair for treatment. The first few times that Sharpe transported C.B., Sharpe documented that C.B. was ambulatory. Even C.B. told Sharpe that he did not see why he needed to travel by ambulance. (Id.).
In the first week of November 2012, Sharpe discussed C.B.'s transportation with Americare's Polk County operations manager, Brittany Hanlin. (Id. at ¶ 54). Hanlin told Sharpe that Americare transported C.B. to his dialysis appointment because if they did not, Astoria would be responsible for paying for C.B.'s transport. Hanlin stated that "we all win" because Astoria received the benefit of not having to pay for transportation, and Americare was able to charge a higher rate for ambulance service as opposed to a cheaper option, such as a wheelchair van. (Id.).
Soon after Sharpe's conversation with Hanlin, another supervisor, Elliot Ortiz, told Sharpe not to use the word "ambulate" in his reports. (Id. at ¶ 55). Sharpe responded that to write anything else would be a lie. Ortiz replied that he was not telling Sharpe to lie, he was just telling Sharpe not to use the word "ambulatory." (Id.).
After that conversation, Sharpe tried to comply by reporting that he "assisted the patient to the stretcher," but Sharpe was told that he needed to document that the patient was transferred by slide sheet and soft stretcher. (Id. at ¶ 56). Even when it was not possible to safely transfer a patient by this method, Sharpe was instructed to use the phrase because it resulted in fewer Medicare denials. (Id.).
Sharpe's first 90 days of employment were complete on January 3, 2013. (Id. at ¶ 57). Sharpe received a written evaluation rating him as "outstanding" in every category. (Id.).
A few days later, Heather Thomas, a supervisor, instructed Sharpe to re-write a report because it was not good enough to get Americare reimbursed. (Id.). Sharpe initially refused, but after Ortiz threatened him with suspension, Sharpe re-wrote the report almost exactly as he had written itthe first time. Sharpe informed Ortiz that he felt Americare was committing Medicare fraud. (Id.).
Soon after the conversation with Ortiz, Prestia told Sharpe that his evaluation had been revised because only supervisors could receive an "outstanding" rating. (Id. at ¶ 58). Sharpe's new evaluation assessed him as "average." (Id. at ¶¶ 58, 78).
On February 23, 2013, Prestia told Sharpe that his reports had been the subject of a meeting among the Americare supervisors. (Id. at ¶ 59). Prestia suggested that Sharpe make his reports look just like Prestia's reports, which, according to Sharpe, contained misspellings and were not complete, but ensured Medicare reimbursement. (Id.). Sharpe told Prestia that he thought he was being harassed because he pointed out Americare's fraudulent activities. (Id. at ¶ 60). After that conversation, Sharpe's reports were constantly returned to him as deficient. (Id. at ¶ 61).
On February 26, 2013, Sharpe reported Americare's alleged Medicaid and Medicare fraud to the Florida Agency for Health Care Administration, which administers the Medicaid program in Florida. (Id. at ¶¶ 35, 65). On March 1, 2013, Ortiz presented Sharpe with a write-up for taking photos on the clock. (Id. at ¶ 66). Sharpe informed Hanlin and Ortiz that the photos were being submitted to the State of Florida in connection with a fraud complaint. (Id.).
Four days later, on March 5, 2013, Americare terminated Sharpe after falsely accusing him of taking company files and sabotaging Americare's computer network. (Id. at ¶¶ 68, 79).
On May 1, 2013, Sharpe filed the instant action under seal, pursuant to 31 U.S.C. § 3730(b)(2). (Doc. # 1). Sharpe alleges violations of the False Claims Act, 31 U.S.C. § 3729(a)(1)(A) and (B) (Counts I and II), violation of the Florida False Claims Act, Fla. Stat. § 68.082(2)(g) (Count III), and retaliation in violation of the False Claims Act, 31 U.S.C. § 3730(h) (Count IV). (Doc. #1 at ¶¶ 80-97).
On January 5, 2017, the United States filed a notice declining to intervene, but stating that its investigation would continue. (Doc. # 26). On January 10, 2017, the Court lifted the seal and directed Sharpe to serve the Complaint on Americare. (Doc. #27). On May 26, 2017, Americare filed the instant Motion to Dismiss (Doc. # 55), which is now ripe for review.
On June 9, 2017, the State of Florida declined to intervene. (Doc. # 60). However, on June 30, 2017, the United States filed a Motion to Intervene, requesting 60 days to file a Complaint in Intervention. (Doc. # 63 at 2). The United States suggests that its request will moot the instant Motion to Dismiss, except as it relates to Sharpe's retaliation claim in Count IV. (Id.).
Because the Motion to Dismiss is ripe for review, the merits are considered below. The Court defers ruling on the United States' Motion to Intervene until Americare either files a response or fails to timely respond.
On a motion to dismiss, the Court accepts as true all allegations in the complaint and construes the facts in the light most favorable to the plaintiff. Jackson v. Bellsouth Telecomms., 372 F.3d 1250, 1262 (11th Cir. 2004). Further, the Court favors the plaintiff with all reasonable inferences from the allegations in the complaint. Stephens v. Dep't of Health & Human Servs., 901 F.2d 1571, 1573 (11th Cir. 1990). However, the Supreme Court explains that:
While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual...
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