UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

VADIM SHMUSHKOVICH AND BENJAMIN 

RINE, individually and on behalf of and 

in the name of the UNITED STATES OF 

AMERICA, and the STATE OF ILLINOIS, 

 Plaintiffs, 

 v. 

HOME BOUND HEALTHCARE, INC.; HOME 

BOUND HEALTHCARE HOSPICE, LLC;

HOME BOUND HEALTHCARE CONSULTING,

LLC; HOME BOUND HEALTHCARE 

MEDICAL EQUIPMENT & SUPPLIES, LLC;

HOME BOUND HEALTHCARE OUTPATIENT 

THERAPY SERVICES, LLC; HOME BOUND 

HEALTHCARE STAFFING, LLC; and HOME 

BOUND HEALTHCARE NEVADA, INC.,

 Defendants. 

 No. 12 C 2924 

 Judge Thomas M. Durkin

MEMORANDUM OPINION AND ORDER

Vadim Shmushkovich and Benjamin Rine allege that their former employer, 

Home Bound Healthcare, Inc.,1 knowingly submitted false claims for payment to 

Medicare in violation of the False Claims Act (“FCA”) (Counts I and II), and to 

Medicaid in violation of the Illinois False Claims Act (Count III). See R. 32. Home 

Bound has moved to dismiss the complaint pursuant to Federal Rules of Civil 

Procedure 12(b)(6) and 9(b) for failure to state a claim with the requisite 

																																																								

1 Defendants include a number of entities related to Home Bound Healthcare, Inc. 

The Court will refer to these entities as “Home Bound.” 
2

particularity. R. 36. For the following reasons, the motion is denied in part and 

granted in part. 

Legal Standard 

 A Rule 12(b)(6) motion challenges the sufficiency of the complaint. See, e.g., 

Hallinan v. Fraternal Order of Police of Chi. Lodge No. 7, 570 F.3d 811, 820 (7th 

Cir. 2009). A complaint must provide “a short and plain statement of the claim 

showing that the pleader is entitled to relief,” Fed. R. Civ. P. 8(a)(2), sufficient to 

provide defendant with “fair notice” of the claim and the basis for it. Bell Atl. Corp. 

v. Twombly, 550 U.S. 544, 555 (2007). This standard “demands more than an 

unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 

U.S. 662, 678 (2009). While “detailed factual allegations” are not required, “labels 

and conclusions, and a formulaic recitation of the elements of a cause of action will 

not do.” Twombly, 550 U.S. at 555. The complaint must “contain sufficient factual 

matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” 

Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). “‘A claim has facial 

plausibility when the plaintiff pleads factual content that allows the court to draw 

the reasonable inference that the defendant is liable for the misconduct alleged.’” 

Mann v. Vogel, 707 F.3d 872, 877 (7th Cir. 2013) (quoting Iqbal, 556 U.S. at 678). In 

applying this standard, the Court accepts all well-pleaded facts as true and draws 

all reasonable inferences in favor of the non-moving party. Mann, 707 F.3d at 877.

 Additionally, it is well established that the FCA “is an anti-fraud statute and 

claims under it are subject to the heightened pleading requirements of Rule 9(b).” 
3

Thulin v. Shopko Stores Operating Co., LLC, 771 F.3d 994, 998 (7th Cir. 2014). Rule 

9(b) requires a plaintiff to “state with particularity the circumstances constituting 

fraud or mistake.” “The reference to ‘circumstances’ in the rule requires the plaintiff 

to state the identity of the person who made the misrepresentation, the time, place 

and content of the misrepresentation, and the method by which the 

misrepresentation was communicated to the plaintiff[.]” United States v. SanfordBrown, Ltd., 788 F.3d 696, 705 (7th Cir. 2015); see also United States ex rel. Lusby 

v. Rolls-Royce Corp., 570 F.3d 849, 853 (7th Cir. 2009) (“particularity . . . means the 

who, what, when, where, and how”). Nevertheless, courts should not “take an overly 

rigid view of the formulation,” and the “requisite information . . . may vary on the 

facts of a given case.” Pirelli v. Armstrong Tire Corp. Retiree Med. Benefits Trust v. 

Walgreen Co., 631 F.3d 436, 442 (7th Cir. 2011). Thus, although plaintiffs “‘are not 

absolutely required to plead the specific date, place, or time of the fraudulent acts,’” 

they “still must ‘use some alternative means of injecting precision and some 

measure of substantiation into their allegations of fraud.’” Id. (quoting 2 James 

Wm. Moore, MOORE’S FEDERAL PRACTICE § 9.03[1][b], at 9-18 (3d ed. 2010)). Rule 

9(b) requires a “plaintiff to do more than the usual investigation before filing [a] 

complaint. Greater precomplaint investigation is warranted in fraud cases because 

public charges of fraud can do great harm to the reputation of a business firm or 

other enterprise (or individual).” Ackerman v. Nw. Mut. Life Ins. Co., 172 F.3d 467, 

469 (7th Cir. 1999) (citations omitted). 
4

Background 

 Home Bound is a provider of health care services in patients’ homes. R. 32 ¶¶ 

10-11. Such services can be eligible for Medicare coverage. Id. ¶¶ 15-16. To be 

eligible for home health care under Medicare, patients must require “fewer than 

eight hours per day” of in-home care, and “must be unable to leave their homes 

without considerable effort.” Id. ¶ 21. A physician must certify a patient’s eligibility 

for home health care. Id. ¶ 22. To certify a patient for home health care, a physician 

must have a “face-to-face encounter” with the patient, whether in person or via 

“telehealth.” Id. ¶¶ 26-27. Medicare pays for home health care in 60-day periods, 

meaning that a patient’s eligibility for such care must be recertified every 60 days. 

Id. ¶¶ 23-24. Plaintiffs allege that the “vast majority of the services performed by 

Home Bound are ultimately reimbursed by Medicare.” Id. ¶ 13. 

 Plaintiffs are former Home Bound employees. Their allegations are based on 

information they learned while working at Home Bound, both from other Home 

Bound employees and from Home Bounds records. Plaintiffs allege that Home 

Bound knowingly submitted the following four kinds of false claims: (1) “claims for 

reimbursement . . . for services that were performed for people who were not of 

restricted mobility and hence were not qualified to receive home health services, 

and claims for “services that were not reimbursable because of a lack of medical 

necessity”; (2) “claims for services which were not rendered”; and (3) claims for 

“services which were not reimbursable because they were the result of illegal 

referral kickback schemes.” Id. ¶ 19. 
5

1. False Claims for Patients who did not Qualify to Receive Home 

Health Services, and Claims for Services which Were Not 

Medically Necessary 

 Plaintiffs allege that they have been told by Home Bound nurses Ashley 

Bardez-Banian, Angela Clark, and Donna Livengood that “90% to 95%” of the 

patients the nurses saw while working for Home Bound “were not legitimately 

qualified for home health services.” R. 32 ¶ 43. Plaintiffs allege that Home Bound 

employed marketing professionals (specifically Amanda Mauer and Sherry Mauer) 

to research and find potential patients. Id. ¶ 30. Plaintiffs also allege that Home 

Bound gave the marketers the authority to determine whether Home Bound should 

provide home health care services to these patients, regardless of whether the 

patients they discovered were eligible for home services under Medicare. Id. ¶¶ 30-

33. 

 Plaintiffs allege that Nurse Bardez-Banian told them that Home Bound 

ordered her to provide home health care services for at least four patients—

identified by name in the complaint—even though she informed Home Bound that 

these patients did not require such services. Id. ¶¶ 58, 65. According to Plaintiffs, 

Nurse Bardez-Banian told them that three of these four patients had been found to 

be ineligible for home health care services, but were later assigned to resume such 

services at the behest of Home Bound’s marketing department. Id. ¶ 58. Nurse 

Bardez-Banian also told Plaintiffs that the fourth patient identified in the 

complaint had a stable health condition that did not require regular health visits. 

Id.
6

 Additionally, Home Bound Nurse Ronald Athens told Plaintiffs that Home 

Bound ordered him to provide home health care services for a patient—also 

identified by name in the complaint—who did not qualify for such services under 

Medicare. R. 32 ¶¶ 67-72. According to Plaintiffs, Nurse Athens told them that he 

“had no idea what he was supposed to be treating [the patient] for” because “there 

was nothing for which she needed any assistance.” Id. ¶ 69. The patient’s husband 

told Nurse Athens that he should not visit them anymore because the patient did 

not require his assistance. Id. When Nurse Athens reported this to Home Bound, he 

was told to continue to see the patient for a minimum of six weeks. Id.

2. False Claims for Services which Were Not Rendered 

 Plaintiffs allege that the services Home Bound provided were driven by a 

desire to maximize reimbursement from Medicare, rather than by the patients’ 

medical needs. Specifically, Plaintiffs allege that, according to Nurses BardezBanian and Livengood, Home Bound nurses were trained to visit patients once a 

week for nine weeks—known as the “one times nine” policy—because Medicare 

reimbursement is maximized when patients are visited between six and nine times 

during a 60-day episode of home health care services. R. 32 ¶¶ 36, 41. Plaintiffs 

allege that “[p]atients with serious illnesses, such as congestive heart failure, were 

regularly not seen as often as medically necessary because Home Bound 

management instructed nurses to see each patient only once per week.” Id. ¶ 37. 

Plaintiff Rine analyzed Home Bound’s records and found that over half of all 60-day 
7

episodes of care involved between six and nine nursing visits, with Home Bound’s 

Peoria location providing that number of visits 62% of the time. Id. ¶ 40. 

 In addition to Home Bound’s policy regarding number of visits, Plaintiffs 

allege the Home Bound nurses “shorten . . . [patient] assessments, and [do not] do 

certain assessments at all, in order to minimize the time caring for any one patient 

and maximize . . . profits.” Id. ¶ 45. Plaintiffs allege that Nurse Denise Smith trains 

nurses at Home Bound’s Peoria location to perform truncated assessments for 

patients who had already received home health care services for 60 days and were 

being reassessed for eligibility for another 60 days. Id. ¶ 46. Specifically, Plaintiffs 

allege that in such circumstances Nurse Smith trained nurses to skip the “Timed 

Up & Go” test, which tests a patient’s mobility and risk of falling. Id. Plaintiffs also 

allege that nurses were trained to skip taking vital signs at every visit, and instead 

reuse vital sign measurements from the previous visit. Id. ¶ 47. Further, Plaintiffs 

allege Home Bound instructs nurses to limit visits to approximately 15 minutes 

each, but then charges Medicate for 30 minutes visits. Id. ¶ 45. 

3. False Claims Supported by Illegal Kickback Referrals 

 Plaintiffs also allege that Home Bound pays doctors to certify patients for 

home health care without examining them in person. Plaintiffs contend that this 

violates the Anti-Kickback Statute and as such constitutes a violation of the False 

Claims Act. R. 32 ¶ 83 (citing 42 U.S.C. § 1320a-7b(g)). 

 Plaintiffs allege that Ruby Rosalem, an administrator at Home Bound’s 

Peoria location, delivered blank certification forms to Dr. Michael Honan to sign 
8

without examining any patients. R. 32 ¶ 95. Sometime between October 2011 and 

February 24, 2012, Nurse Angela Clark witnessed Rosalem leave the Peoria office 

with the forms and state that she was delivering them to Dr. Honan for his 

signature. Id. Plaintiffs also allege “on information and belief” that Dr. Honan 

signed one of those forms on December 29, 2011, attesting that he had examined a 

certain patient—also identified by name in the complaint—on December 28, 2011, 

and that she was eligible for home health care services. Id. ¶ 96. Plaintiffs allege, 

however, that Dr. Honan never actually met the patient and that he did not 

actually sign the form on December 29, 2011. Id. Plaintiffs do not explain why they 

believe these allegations about Dr. Honan to be true. 

 Plaintiffs also allege on information and belief that Home Bound pays 

kickbacks to doctors “who recommend that their patients receive home health 

services,” but “classifies” those payments as “consulting fees.” R. 32 ¶¶ 84-85. 

Specifically, Plaintiffs allege on information and belief that Home Bound pays Dr. 

Honan as a “medical director” in remuneration for Dr. Honan’s agreement to certify 

patients for home health care services under Medicare even though he has not 

examined them. Id. ¶ 94. Plaintiffs do not explain why they believe these 

allegations to be true either. 

Analysis 

 The complaint includes three counts: Count I alleges violations of the federal 

False Claims Act based on Home Bound’s alleged presentment of false claims for 

home health care services to Medicare. Count II alleges violations of the federal 
9

False Claims Act based on conduct that allegedly constitutes a violation of the AntiKickback Statute. Count III alleges violations of the Illinois False Claims Act based 

on Home Bound’s alleged presentment of false claims for home health care services 

to Medicaid. 

Count I – Medicare Claims under the Federal False Claims Act 

 The False Claims Act creates liability for a “person who knowingly presents, 

or causes to be presented, a false or fraudulent claim for payment or approval.” 31 

U.S.C. § 3729(a)(1)(A). “To establish civil liability under the False Claims Act, a 

relator generally must prove (1) that the defendant made a statement in order to 

receive money from the government; (2) that the statement was false; and (3) that 

the defendant knew the statement was false.” United States ex rel. Yannacopoulos v. 

General Dynamics, 652 F.3d 818, 822 (7th Cir. 2010). Plaintiffs allege that Home 

Bound presented claims to Medicare (A) for patients who were not qualified, and for 

services that were not medically necessary, and (B) for services not actually 

provided, such that those claims were false. 

A. Claims for Patients who did not Qualify to Receive Home 

Health Care Services, and Claims for Services which Were Not 

Medically Necessary 

1. Whether Plaintiffs Have Sufficiently Alleged that Home 

Bound Presented Claims to Medicare 

 Home Bound argues that Plaintiffs’ allegations are insufficient because 

“there are no plausible particularized allegations that a reasonably identifiable false 

claim was actually submitted by [Home Bound] that would otherwise excuse 

Plaintiffs’ inability to provide the details of even a single allegedly false claims.” R. 
10

54 at 4. This is simply an incorrect characterization of Plaintiffs’ allegations. 

Plaintiffs have alleged that four Home Bound nurses told them that Home Bound 

required the nurses to provide home health care services to at least five patients 

who did not require such services and so were not eligible for Medicare 

reimbursement for such services. Plaintiffs also allege that these five patients were 

nevertheless covered by Medicare, and that the “vast majority of the services 

performed by Home Bound are ultimately reimbursed by Medicare.” R. 32 ¶ 13. 

Plaintiffs allege that Home Bound’s “marketing” staff (specifically Amanda Mauer 

and Sherry Mauer) was responsible for discovering potential patients regardless of 

their medical need. Nurse Bardez-Banian also told Plaintiffs that she was ignored 

when she brought these circumstances to Home Bound’s attention, and that 

patients who had been found to be ineligible for home health care were nevertheless 

reassigned such care at the behest of Home Bound’s marketing staff. Plaintiffs 

allege that they know these facts because Home Bound nurses—whom Plaintiffs 

have identified by name—told them they are so. 

 These allegations do not fully describe the “who, what, when, where, and 

how” of the fraud. But Plaintiffs are not in a position of access to specific billing 

records, so they are not required to plead with particularity information that would 

be derived from such records. See Pirelli, 631 F.3d at 443; Lusby, 570 F.3d at 854-55 

(“We don’t think it essential for a relator to produce the invoices (and accompanying 

representations) at the outset of the suit. True, it is essential to show a false 

statement. But much knowledge is inferential . . . . It is enough to show, in detail, 
11

the nature of the charge, so that vague and unsubstantiated accusations of fraud do 

not lead to costly discovery and public obloquy.”). Plaintiffs allegations are also 

based almost entirely on information and belief, and “a plaintiff generally cannot 

satisfy the particularity requirement of Rule 9(b) with a complaint that is filed on 

information and belief.” Pirelli, 631 F.3d at 442. But the fact that Plaintiffs’ 

allegations are based on information and belief is not fatal to their claims because 

they “provide the grounds for their suspicions,” id. at 443, by referencing the 

information they learned from Home Bound nurses specifically named in the 

complaint. Considering the nurses’ direct experience with Home Bound’s patients 

and policies, the nurses’ stories provide a basis for Plaintiffs to make plausible 

allegations of False Claims Act violations against Home Bound. Cf. Pirelli, 631 F.3d 

at 443-44 (implying that information a pharmacist-relator learned from 

pharmacists employed by a competitor pharmacy was sufficient to state a False 

Claims Act claim against the competitor pharmacy). These allegations also satisfy 

Rule 9(b) because they sufficiently identify the “circumstances” of the false claims 

such that Home Bound “can respond effectively, and [the Court] can set an 

appropriate course for the litigation process.” Cincinnati Life Ins. Co. v. Beyrer, 722 

F.3d 939, 949 (7th Cir. 2013). 

 a. Access to Evidence 

 Home Bound contends, however, that “there is absolutely nothing to support 

Plaintiffs’ position that the facts constituting the alleged fraud are not accessible to 

them or are within the exclusive control of [Home Bound].” R. 54 at 5. Certainly it is 
12

true that Plaintiffs have some knowledge about Home Bound. In fact, they have 

some of Home Bound’s records, which enabled Plaintiffs to include statistics in their 

complaint regarding the frequency with which Home Bound nurses visited patients. 

But it is entirely plausible that Plaintiffs did not have access to billing records for 

the five patients they identify in their complaint that would have allowed them to 

specifically allege that Home Bound submitted Medicare claims for services 

rendered to those patients. Plaintiffs do not allege that they worked in the billing 

department of Home Bound. And even if it was possible at some point during their 

employment for Plaintiffs to access the records necessary to confirm their 

allegations, this does not mean that they had Home Bound’s permission to access 

those records. Sometimes in the a course of a relator’s employment, the relator will 

come into possession of records containing information enabling the relator to 

directly allege with particularity that the defendant-employer made false claims. 

But the Seventh Circuit has recognized that this is frequently not the case, and it is 

unreasonable to expect employees to breach an employer’s policies regarding access 

to records in order to state a claim under the False Claims Act. The law should not 

encourage theft or other questionable behavior. 

 Home Bound also argues that Plaintiffs have access to the relevant records 

because “the documents containing the alleged requisite information are in the 

possession of other entities, including the government, to whom the Plaintiff’s no 

doubt provided information when they tried to get the government to prosecute the 

case against [Home Bound].” R. 54 at 5. It is unclear why Home Bound believes 
13

Plaintiffs should have access to the billing information necessary to support their 

claims because they reported their suspicions to the U.S. Attorney’s Office in this 

district in accordance with the False Claims Act’s requirements. Of course the 

“government”—since Medicare is a government program—has copies of claims 

Home Bound has submitted to Medicare. But Plaintiffs could only “access” those 

records through a Freedom of Information Act request, and even then it is 

questionable what records, if any, would be disclosed in light of HIPPA and other 

health care privacy laws. Home Bound cites no authority for the contention that 

Plaintiffs are required to go to such lengths before filing a complaint under the 

False Claims Act. To the extent that courts in other Circuits have held that records 

must be in the defendants “unique” or “exclusive” control to permit relaxing Rule 

9(b)’s standard in the manner described in Pirelli and Lusby, that is not the law in 

this Circuit, and Home Bound’s citation to cases relying on such authority is 

unavailing. See R. 54 at 5-6 (citing Peterson v. Comm. Gen. Hosp., 2003 WL 262515, 

at *2 (N.D. Ill. Feb. 7, 2003) (citing United States ex rel. Clausen v. Lab. Corp. of 

Am., Inc., 290 F.3d 1301, 1314 n.25 (11th Cir. 2002); United States ex rel. Russell v. 

Epic Healthcare Mgmt. Group, 193 F.3d 304, 308 (5th Cir. 1999))).2

b. Presentation of Claims 

 Home Bound also argues that “even assuming . . . the facts constituting the 

fraud are not accessible to Plaintiffs, they are still not entitled to plead allegations 

																																																								

2 Home Bound also cites Bankers Trust Co. v. Old Republic Inc. Co., 959 F.2d 677, 

684 (7th Cir. 1992), but that case does not involve the False Claims Act or any 

complaint submitted to the government. 
14

with respect to the submission of a false claim based solely on ‘information and 

belief’ because they have not provided factual grounds for their suspicions.” R. 54 at 

6. As discussed, however, Plaintiffs have alleged that four Home Bound nurses told 

them about five patients who received home health services when they did not need 

those services, and that those five patients were Medicare patients. Home Bound 

argues that these allegations are insufficient because “it is impossible to ascertain 

what, if any, false claims were actually submitted to Medicare.” R. 54 at 7. But at 

this stage of the case, Plaintiffs do not have the burden to produce evidence that 

would enable the Court to “ascertain” whether Home Bound “actually” submitted 

false claims to Medicate. Plaintiffs simply have to plausibly allege these facts, and 

they have done so. See Lusby, 570 F.3d at 853 (“To say that fraud has been pleaded

with particularity is not to say that it has been proved (nor is proof part of the 

pleading requirement).”) (emphasis in original). 

 Home Bound argues that Plaintiffs “must allege specific details concerning 

how [Home Bound] submitted false claims to the government, such as identifying 

claims, dates, or details of payment.” R. 54 at 7. In a similar vein, Home Bound 

argues that Plaintiffs’ allegations are insufficient because they have failed to allege 

the “how” or the “who” regarding Home Bound’s alleged false claims. See R. 54 at 

10. But Plaintiffs do not plausibly have access to such detailed information. As 

discussed, in the False Claims Act context Plaintiffs are not required to allege such 

billing minutia in order to satisfy Rule 9(b). Rather, Plaintiffs must allege 

“circumstances” plausibly indicating a false claim, which provide notice to the 
15

defendant. Here, Plaintiffs have provided the names of the patients involved, the 

nurses who are the sources of their information, and the four month time period 

during which the alleged false claims occurred. This is enough information to 

substantiate Plaintiffs’ suspicions and for Home Bound to defend itself. 

 Home Bound argues that in Lusby, one of the primary cases in which the 

Seventh Circuit has held that False Claims Act plaintiffs are not required to 

specifically identify false claims, the plaintiff was able to allege greater detail than 

Plaintiffs have here. To the extent that the allegations in Lusby were more detailed, 

the Court disagrees that this greater detail is dispositive here. The plaintiff in 

Lusby alleged that certain engine parts built pursuant to a government contract did 

not meet the government’s specifications, and stated the dates on which those parts 

were shipped to the government. Plaintiffs here have similarly alleged that five 

patients did not require home health care, and that Home Bound presented claims 

for their services to Medicare within a four month time window. These facts are not 

as distinguishable as Home Bound contends. 

 Home Bound’s citation to a recent case from the Central District of Illinois is 

unavailing. R. 54 at 11 (citing United States ex rel. Gravett v. Methodist Med. Ctr. of 

Ill., 82 F. Supp. 3d 835 (C.D. Ill. Mar. 4, 2015)). In Gravett, the court stated, “Courts 

of Appeal are in agreement that unless the relator is in a special position of 

personal knowledge of involvement in the billing practices of the defendant that 

affords some indicia of reliability to the allegations, the failure to provide specific 

information of at least a single false claim that was actually submitted for payment 
16

is fatal to a relator’s action under the FCA.” Id. at 842. But the court in Gravett

cited a decision on summary judgment to support this proposition. Id. (citing United 

States ex rel. Crews v. NCS Healthcare of Ill., Inc., 460 F.3d 853, 856 (7th Cir. 

2006)). Of course on summary judgment the plaintiff will have to show some 

evidence that a false claim was actually submitted. But that is not the law at the 

pleading stage. Moreover, Crews and another appellate decision relied on by Crews

and Gravett (United States ex rel. Quinn v. Omnicare, Inc., 382 F.3d 432, 440 (3d 

Cir. 2004), concerned cases in which the plaintiff attempted to defeat summary 

judgment on claim for medication reimbursement using statistical analysis that 

compared the percentage of the defendant’s patients who were covered by Medicare 

with the percentage of medication the defendant’s patients returned unused. The 

courts in those cases held that the statistical analysis alone was insufficient to 

create a question of fact that the defendant actually submitted any claim for 

reimbursement, let alone a false claim. 

 These cases are not analogous to Plaintiffs’ allegations here. Plaintiffs rely on 

information they learned from Home Bound nurses who have identified by name 

five patients for whom Home Bound allegedly submitted false claims. These 

allegations are much more fulsome than the allegations based on abstract statistical 

analysis that were at issue in the cases Home Bound argues support dismissal. 

 Moreover, Home Bound should know the answer to the question of whether 

Home Bound submitted claims to Medicare on behalf of the patients named in the 

complaint. If Home Bound knew that they never actually submitted a Medicare 
17

claim for home health services provided to the five named patients, Home Bound 

could have sought summary judgment based on those records. As noted, it is more 

than plausible that Home Bound has submitted Medicare claims for services 

provided to the five patients. The real question in this case will be whether those 

patients were properly certified as eligible for those services under Medicare. 

 2. Whether Plaintiffs Have Sufficiently Alleged Falsity

 In addition to its arguments regarding Rule 9(b) and presentation of claims, 

Home Bound argues that Plaintiffs do not plausibly allege that the claims Home 

Bound is alleged to have presented to Medicare were false. Home Bound contends 

that Plaintiffs allegations are insufficient because they are based on information 

learned from nurses, whereas only doctors can certify that patients are eligible for 

home health services under Medicare. R. 54 at 15. This is an issue relevant to 

determining Home Bound’s liability. But it does not destroy the plausibility of 

Plaintiffs’ allegations. Although nurses may not have the legal authority to certify 

patients under Medicare, it is certainly plausible that nurses have knowledge of 

when a person requires such services, since nurses are intimately involved in 

provision of such care. Further, nurses would gain some knowledge of Medicare’s 

requirements because of their involvement in completing the paperwork necessary 

for billing. Plaintiffs’ allegations are plausible despite the fact that they rely on 

information from nurses as opposed to doctors. 

 Home Bound also argues that Plaintiffs “fail[] to allege the course of 

treatment prescribed for any particular patients that would allow for the inference 
18

that home health services were not necessary or that the patient was in fact not 

‘homebound.’” R. 38 at 23. Relatedly, with reference to three of the patients cited in 

the complaint, Home Bound contends that the “fact that a patient resumed home 

health services after being discharged, does not, in [and] of itself, make such 

services fraudulent.” Id. at 25. These arguments, however, are also based on the 

idea that the opinion of a nurse is irrelevant. Plaintiffs allege that Home Bound 

nurses told them that Home Bound provided and charged Medicare for home health 

care services for five patients who did not require those services. Certainly, the 

nurses could be wrong, or the resumption of home health care services for certain 

patients could be perfectly legitimate. But since these allegations are based on the 

opinions of nurses who were directly involved in the patients’ care, they “allow for 

the inference” that Home Bound violated the False Claims Act, and that is all that 

is required at this stage. 

 Home Bound also contends that Plaintiffs’ allegations with respect to the five 

patients “fail to include even the most basic clinical data that would allow for 

judgment on . . . whether the five named . . . patients were in fact home bound.” R. 

38 at 25. This arguments also requires too much of Plaintiffs at this stage. Plaintiffs 

have made allegations that will permit Home Bound to locate the “clinical data” in 

discovery that is relevant to its liability or lack thereof. No “judgment” about the 

“facts” is appropriate at this point in the case. 
19

B. Claims for Services which Were Not Rendered 

 1. Presentation of Claims 

 Home Bound makes the same arguments based on Rule 9(b) with respect to 

Plaintiffs’ allegations of presentation of claims for services not rendered as it does 

with respect to Plaintiffs’ allegations of services provided to patients who did not 

qualify for home health care services. The Court’s earlier application of Rule 9(b) 

regarding allegations of presentation of false claims to Medicare applies equally to 

this theory of liability. For the reasons stated with respect to Plaintiffs’ theory 

regarding patients who did not qualify for home health care services, the Court will 

not dismiss Plaintiffs’ FCA claim alleging that Home Bound presented claims for 

services not rendered. 

 2. Falsity 

 Plaintiffs allege that Home Bound failed to render certain services for which 

it claimed Medicare reimbursement because nurses were instructed to skip certain 

patient assessments. Home Bound contends that Plaintiffs “do not identify who told 

the nurses to skip taking the basic assessments or whether that actually happened.” 

R. 38 at 17. But Plaintiffs allege that Nurse Denise Smith instructed nurses to skip 

assessments like the “Timed Up & Go” assessment. See R. 32 ¶ 46. Additionally, 

Plaintiffs allege that a statistical analysis of the frequency of visits made to Home 

Bound patients shows that Home Bound determines the frequency of patient visits 

according to the number that is most profitable under Medicare regulations. Other 

paragraphs of the complaint alleging skipped assessments do not specifically allege 
20

how Plaintiffs know this information. But the specific reference to Nurse Smith, the 

statistics Plaintiffs cite, combined with the references to other nurses named in the 

complaint, adequately convey the basis for Plaintiffs knowledge and make those 

allegations plausible. As discussed, the complaint identifies the patients and nurses 

who are the relevant players in Plaintiffs’ story, and the actions they took that form 

the basis of Plaintiffs’ claims. These allegations are sufficient to survive a motion to 

dismiss. 

Count II – Anti-Kickback Statute 

 The Anti-Kickback Statute “makes it illegal to ‘knowingly and willfully 

solicit[] or receive[] any remuneration (including any kickback, bribe, or rebate) . . . 

in return for referring an individual to a person for the furnishing’ of health care 

services paid for, in whole or in part, by a federal health program.” United States v. 

Patel, 778 F.3d 607, 609 (7th Cir. 2015) (quoting 42 U.S.C. § 1320a-7b(b)(1)(A)). 

Courts in this district “have recognized [False Claims Act] claims based on 

violations of the [Anti-Kickback Statute].” United States ex rel. Kalec v. NuWave 

Monitoring, LLC, 84 F. Supp. 3d 793, 806 (N.D. Ill. 2015) (citing cases). 

 Plaintiffs fail to state a claim under the Anti-Kickback Statute. Plaintiffs 

allege that Nurse Angela Clark witnessed Ruby Rosalem, an administrator at Home 

Bound’s Peoria location, leave the office with blank certification forms to take to Dr. 

Michael Honan to sign. Plaintiffs also allege that Dr. Honan signed one of those 

forms certifying a certain patient for home health care services without actually 
21

examining her, and that Home Bound compensates Dr. Honan for certifying 

patients he has not actually examined. 

 Plaintiffs’ allegations based on Nurse Clark’s observations are well pled, but 

those allegations alone are insufficient to allege a violation of the Anti-Kickback 

Statute. Plaintiffs have not made any allegations to make it plausible that Rosalem 

was delivering the forms to Dr. Honan for a nefarious purpose, let alone sufficient to 

satisfy Rule 9(b)’s particularity standard. If Dr. Honan is a consulting physician for 

Home Bound as Plaintiffs allege, it is unsurprising that Home Bound would provide 

him with the forms he needed to do his job. Additionally, Plaintiffs have not alleged 

how they know that Home Bound pays Dr. Honan or any other doctor for certifying 

patients for home health care services without examining them. Similarly, although 

Plaintiffs specifically identify a patient they believe Dr. Honan certified without 

examination, Plaintiffs fail to allege why they believe this to be true. 

 Unlike Plaintiffs’ allegations in Count I, Plaintiff have failed to justify their 

pleading on information and belief in Count II. As discussed, the Seventh Circuit 

permits plaintiffs in an FCA action to plead facts for which they do not have access 

on information and belief as long as the plaintiff provides “some firsthand 

information to provide grounds to corroborate [the plaintiff’s] suspicions.” Pirelli, 

631 F.3d at 446. Plaintiffs have provided no such grounds with respect to their AntiKickback claim. Nurse Clark’s observations do not make plausible Plaintiffs’ 

suspicions about Home Bound’s payments to doctors generally, or Dr. Honan’s 

certification of the individual patient specifically. Unlike Plaintiffs’ allegations in 
22

Count I, Plaintiffs do not allege that any Home Bound employees have told them 

that Home Bound pays doctors to certify patients without examination. Neither 

have Plaintiffs identified any documentary evidence making their allegations 

plausible. Thus, Count II is dismissed.3

Count III –False Medicaid Claims under the Illinois False Claims Act

 In Count III, Plaintiffs allege that “Home Bound has made, and continues to 

make, false and fraudulent claims for payments by the State of Illinois through the 

Medicaid program as described hereunder, in violation of the Illinois False Claims 

Act.” R. 32 ¶ 109. But Plaintiffs have not made any substantive allegations 

regarding Medicaid claims. Plaintiffs’ substantive allegations reference only false 

Medicare claims. 

																																																								

3 Home Bound also argues that “Plaintiffs fail to allege that certification of 

regulatory compliance with the [Anti-Kickback Statute] was a condition of receiving 

payment from the government,” which is a necessary element of an “FCA claim 

premised upon an alleged false certification of compliance with statutory or 

regulatory requirements.” R. 38 at 32 (citing Crews, 460 F.3d at 858). Plaintiffs 

implicitly concede that they failed to make such an allegation. But such an 

allegation is likely easily made with reference to the correct Medicare regulations 

and forms. And a number of courts have held that compliance with the AntiKickback Statute is a condition of payment for Medicare. See United States v. 

Rogan, 459 F. Supp. 2d 692, 714 (N.D. Ill. 2006) (“Compliance with the AntiKickback Statute is a condition of payment by the Medicare and Medicaid 

programs.”); United States ex rel. Wilkins v. United Health Group, Inc., 659 F.3d 

295, 313 (3d Cir. 2011) (“Compliance with the [Anti-Kickback Statute] is clearly a 

condition of payment under Parts C and D of Medicare . . . .”); United States ex rel. 

McNutt v. Haleyville Med. Supplies, Inc., 423 F.3d 1256, 1260 (11th Cir. 2005). For 

these reasons, the Court would order additional briefing on this point if it was 

necessary to decide this motion. But since the Court has held that Plaintiffs’ 

allegations are insufficient for the reasons discussed, the Court does not need to 

reach the question of whether certification of compliance with the Anti-Kickback 

Statute is a condition of payment for Medicare reimbursement claims. 
23

 To the extent Plaintiffs intended to allege a claim that Home Bound violated 

the Illinois False Claims Act by presenting false Medicaid claims, that claim is 

dismissed. However, to the extent Plaintiffs intended to allege that Home Bound 

violated the Illinois False Claims Act by presenting the false Medicare claims they 

alleged with reference to the federal False Claims Act, such a claim rises and falls 

with the foregoing analysis of Plaintiffs allegations, because the statutory language 

and standards for the FCA and the IFCA are substantially the same. See United 

States ex rel. Absher v. Momence Meadows Nursing Ctr., Inc., 764 F.3d 699, 704 n.5 

(7th Cir. 2014) (“the [Illinois False Claims Act] closely mirrors the [federal False 

Claims Act]”); United States ex rel. Kennedy v. Aventis Pharm., Inc., 512 F. Supp. 2d 

1158, 1163 n.2 (N.D. Ill. 2007) (“Case law regarding the [federal False Claims Act] 

is also applicable to the [Illinois False Claims Act].”). 

Conclusion 

 For the foregoing reasons, Home Bound’s motion to dismiss, R. 36, is denied 

with respect to Count I, and granted with respect to Counts II and III without 

prejudice. To the extent Plaintiffs can cure the deficiencies the Court has described 

with respect to Counts II and III, Plaintiffs may file an amended complaint by 

December 8, 2015. A status hearing is set for December 18, 2015. 

ENTERED: 

 ______________________________ 

 Honorable Thomas M. Durkin 

 United States District Judge 

Dated: November 17, 2015