Relator Matt Anderson alleged that Saint Elizabeth Medical Center, Inc., and Summit Medical Group, Inc. — doing business as St. Elizabeth Physicians — conspired with The Kidney and Hypertension Center, Inc. and Davita Healthcare Partners Inc. to steer patients toward medically unnecessary dialysis treatments and to collect kickbacks in exchange for those referrals. The scheme, Anderson alleged, was enforced through the EPIC medical-records software, which was configured so that St. Elizabeth's primary care physicians could realistically refer patients only to specialists participating in the arrangement. Anderson also alleged a separate vascular-treatment fraud: that KHC owned a 49% stake in a Vascular Center and automatically scheduled dialysis patients for procedures there.
The problem for Anderson's dialysis claims was a prior lawsuit, United States ex rel. Kent v. St. Elizabeth Medical Center, filed in the Eastern District of Kentucky in 2017. That case — brought by a dialysis patient who later died, represented by attorneys affiliated with Anderson's counsel — alleged the same three-party kickback arrangement among St. Elizabeth, KHC, and Davita. The government declined to intervene in Kent, and the estate voluntarily dismissed it.
Writing for a panel that also included Circuit Judges Clay and McKeague, Circuit Judge Nalbandian held that Anderson's dialysis allegations were substantially the same as those in Kent and therefore barred. The court rejected Anderson's argument that he had added meaningfully new facts. Naming Dr. Shaughnessy as KHC's leader, identifying EPIC as the referral software, and adding allegations about billing commercial insurers did not move the needle: the first two were details the government could uncover on its own, and fraud on non-governmental payors falls outside the FCA's reach entirely.
The original-source exception did not rescue Anderson's dialysis claims either. The court observed that nothing in the record showed Anderson had voluntarily disclosed his allegations to the government before filing suit — a prerequisite under the statute — and that his additions to Kent were not material. The court also rejected Anderson's argument that a seven-year gap between the lawsuits made his allegations fresh, noting that the renewed-fraud rationale applies only where the government previously pursued and resolved the earlier-disclosed scheme, which it had not done here.
Anderson's vascular-treatment allegations survived the public-disclosure bar because Kent said nothing about a Vascular Center. But those four sentences of pleading failed on an independent ground: Rule 9(b). The court held that Anderson identified no representative false claim actually submitted to the government and offered no allegations supporting a strong inference of specific personal knowledge — the two pathways to satisfying Rule 9(b) in the FCA context under Sixth Circuit precedent.
On the state-law side, the court affirmed dismissal of Anderson's claim under Kentucky's negligence per se statute, Ky. Rev. Stat. § 446.070, which he had tried to combine with a Kentucky criminal healthcare-fraud provision, Ky. Rev. Stat. § 205.8463, to construct a state-law qui tam device. The court held that Anderson failed the second prerequisite for a negligence per se claim: the criminal statute protects the state's medical assistance programs, not whistleblowers, and Anderson is neither a program beneficiary nor a healthcare provider receiving payments under it.
The court also declined to remand for leave to amend, noting that Anderson never asked the district court for that relief and had therefore forfeited the argument.
The opinion is designated not recommended for publication.