Retaliation Claim Survives Though False Claim Act Claim Is False

Roxanne Perkins was employed as a clinical supervisor of prior authorizations therapy at Wellcare Health Plans.  When she returned from a leave of absence, she learned that Wellcare had instituted a new practice of approving all preauthorization requests for durable medical equipment.   She complained that the practice violated Wellcare’s state contracts, which required that a clinical professional review all such requests.

The company’s response to Roxanne’s complaints?  She got yelled at, was disinvited from management meetings, was assigned extra work, received threats from co-workers, and was eventually fired.

So she filed a qui tam case against Wellcare alleging that the company violated the False Claims Act by failing to live up to the conditions of its state contracts and by falsely certifying that it had met the conditions.  The court dismissed both her initial complaint and her amended complaint, ruling that she hadn’t met the requirements necessary to state a claim under Federal Rule 12(b), let alone the Rule 9(b) requirement that fraud be specified with particularity.

So Wellcare is off the hook and Roxanne’s case is thrown out of court, right?  Well, no.  The court refused to dismiss Roxanne’s retaliation claim, citing two reasons.  First, a 2009 amendment broadened the definition of protected activity.  An employee needn’t have a good qui tam case.  It’s enough that she was trying to stop what she thought was fraud against the government.  Second, engaging in protected activity needn’t be the sole reason for a firing—only one of the reasons.

The case is U.S. ex rel. Perkins v. Wellcare Health Plans, 2016 BL 84490 (M.D. Fla. 2016).

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