United States ex rel. McIver v. Act for Health, Inc.

Opinion

ORDER on MOTION TO DISMISS/JUDGMENT ON THE PLEADINGS

Defendants move to dismiss and for judgment on the pleadings. For the reasons set forth herein, the motion is denied.

BACKGROUND

ACT for Health, Inc., doing business as Professional Case Management ("PCM"), is a Colorado-based company that provides home health care services for current and former Energy Department employees who are eligible for benefits under the Energy Employees Occupational Illness Compensation Program Act ("EEOICPA"), 42 U.S.C. § 7384.¹ Kevin Vollmer is the sole owner of PCM. The beneficiaries of the services are workers who have become ill due to exposure to radiation and other harmful substances while on the job, such as at federal weapons sites. The services are provided by registered nurses, licensed practical nurses, and various other categories of medical and non-medical aids and assistants. PCM bills the United States for the services it provides.

Plaintiffs Kathryn McIver and Cassandra Ohnstad filed this lawsuit against PCM on April 4, 2018 under the [*3]  qui tam provisions of the False Claim Act. At that time Ms. McIver was PCM's Senior Director of Clinical Operations, but she no longer works for PCM. Ms. Ohnstad formerly was PCM's Vice President of Human Services. The case remained largely dormant while the United States considered whether to intervene. It declined to do so on September 18, 2019. ECF No. 18.

Although it is a federal program, several of the states in which PCM operates require that providers of home health care services (and professionals who physically provide the services such as nurses) must be licensed. The EEOICPA and regulations thereunder require that providers comply with the state requirements. However, the date when this was first required is disputed, and that is a central issue in this case. PCM contends that this was first required on April 9, 2019, the effective date of a regulation adopted on February 8, 2019 that expressly requires compliance with state requirements, 20 C.F.R. 30.400(c), and that it has complied with this regulation. Plaintiffs claim that the regulation only clarified the requirement that providers comply with both federal and state licensure requirements which had existed since 2006, and that PCM had [*4]  knowingly and intentionally violated the requirement for many years.

Second Amended Complaint

Full case includes Shepard's, Headnotes, Legal Analytics from Lex Machina, and more.