In Estate of Helmly v. Bethany Hospice and Paliative Care of Coastal Ga., LLC, No. 11624, 2021 WL 1609823 (11th Cir. Ap. 26, 2021), the court of appeals affirmed the Southern District of Georgia's dismissal of an FCA case for failure to plead the claim with sufficient particularity. The relators alleged that Bethany Hospice operated an illegal kickback referral scheme in which the organization paid doctors for illegal patient referrals, then submitted claims for those patients to Medicare for reimbursement. The relators demonstrated that nearly all of Bethany Hospice's patients received Medicare coverage but did not identify any specific claims submitted to the government. While the court acknowledged that the Rule 9(b) pleading threshold does not always require a sample fraudulent claim, it noted that the relators also failed to provide any facts demonstrating "personal knowledge or level of participation that can give rise of some indicia of reliability" absent a sample fraudulent claim. The relators' descriptions of Bethany Hospice's business model and proportion of Medicare patients were insufficient without some concrete examples. The court affirmed the dismissal of the compliant for failure to allege the submission of an actual false claim with particularity, warning litigants that "[r]elators cannot rely on mathematical probability to conclude that [a defendant] surely must have submitted a false claim at some point."
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