Where a relator has brought a qui tam action under the False Claims Act alleging that the defendant knowingly submitted reimbursement claims to Medicare for unused units of botulinum toxin Type A (“BOTOX”), the defendant’s motion to dismiss should be allowed because the relator has not established that billing for 100-unit vials of BOTOX was false or fraudulent and has also failed to plead facts sufficient to establish that the defendant knowingly created false records.
“Richard Cohen (‘Cohen’ or ‘Relater’), a former patient of Lahey Clinic Hospital, Inc. (‘Lahey’ or ‘defendant’), brings this qui tarn action on behalf of the United States of America under the False Claims Act, 31 U.S.C. §§3729 (a)(1)(A)-(C) (‘the FCA’). Cohen alleges that Lahey knowingly submitted reimbursement claims to Medicare for unused units of the drug botulinum toxin Type A (more commonly known as ‘BOTOX’), inducing the government to release funds to Lahey far in excess of Medicare billing guidelines.
“Lahey moves to dismiss the action for failure to state a claim upon which relief can be granted. For the reasons that follow, the motion (Docket No. 27) will be allowed. …
“Relater makes two distinct allegations of fraud. First, he asserts that Lahey used, and billed for, 100-unit vials of BOTOX when it should have used the available 50-unit vials. He contends that because Lahey was billing for the discarded units it was required to use the smallest (50-unit) vial available to provide the appropriate...
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