The Eleventh Circuit recently clarified the standard for deciding whether a plaintiff has engaged in a protected activity for purposes of successfully pleading a False Claims Act (“FCA”) retaliation claim. In Simon ex rel. Florida Rehabilitation Associates, PLLC v. HealthSouth of Sarasota Limited Partnership, No. 21-11618, 2022 WL 3910607 (11th Cir. Aug. 31, 2022), Dr. Emese Simon alleged that her employer, HealthSouth, submitted fraudulent claims to the government involving the allegedly fraudulent diagnosis of disuse myopathy. She also alleged that HealthSouth ultimately constructively discharged her due to her complaints about the allegedly false diagnosis. After Dr. Simon’s allegations of fraudulent billing were dismissed, the district court granted summary judgment for HealthSouth on Simon’s retaliation claim. It found, and the Eleventh Circuit agreed, that Simon could not show that she had an objectively reasonable belief that HealthSouth was violating the FCA, as necessary to recover for a claim of FCA retaliation.
Dr. Simon was an attending physician with admitting privileges in HealthSouth Sarasota Hospital. She alleged that HealthSouth encouraged her and other physicians to diagnose patients with disuse myopathy, representing to them that it was a diagnosis that counted toward meeting the requisite patient mix to qualify for funding under 42 C.F.R. § 412.29(b)(2), which establishes payment conditions for inpatient rehabilitation facilities (“IRFs”). Dr. Simon...
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