United States District Court, E.D. Arkansas, Western Division
UNITED STATES OF AMERICA ex rel., JACQUELINE CLEMENTE, COLLIN DA VIES, MIA GORDON, KATHI KINDER, and MAUREEN SKINNER PLAINTIFFS
LEAD TEACH MENTOR LLC; CURTISS ROBINSON; and VICKI ROBINSON DEFENDANTS
WEBBER WRIGHT UNITED STATES DISTRICT JUDGE.
employees of mental health counseling franchises commenced
this qui tarn action as relators for the United States,
charging that the franchise owners and others submitted
fraudulent insurance claims in violation of the False Claims
Act ("FCA"). By order entered April 11, 2018, the
Court dismissed claims against separate defendants
Thriveworks Franchising LLC, Thriveworks, Inc., VIP Solutions
LLC, and Anthony Centore. Now before the Court is a motion
for summary judgment by the remaining defendants, Lead Teach
Mentor LLC ("LTM") and Curtiss and Vicki Robinson.
The time for filing a response has expired, and the
plaintiffs have not responded. After careful consideration,
and for reasons that follow, the motion for summary judgment
is granted and claims against LTM and Curtiss and Vicki
Robinson are dismissed with prejudice. LTM's
counterclaims against Jacqueline Clemente, Collin Davies, and
Maureen Skinner remain outstanding. LTM is directed to file a
status report, within five days from the entry of this order,
stating whether it will proceed with these counterclaims.
LTM is an Arkansas LLC owned by Curtiss and Vicki Robinson,
who are husband and wife. LTM owns and operates Thriveworks
counseling centers that offer mental health counseling
services and receive insurance reimbursements, paid at least
in part by the federal government. Plaintiffs are individuals
who worked at LTM's Thriveworks counseling centers.
imposes a civil penalty for any person who "knowingly
presents, or causes to be presented, [to a federal official]
a false or fraudulent claim for payment or approval," or
"knowingly makes, uses, or causes to be made or used, a
false record or statement material to a false or fraudulent
claim[.]" 31 U.S.C. § 3729(a)(1)(A)-(B). Plaintiffs
charge that the defendants submitted fraudulent claims for
government reimbursement by two means. First, they allege
that defendants engaged in the corporate practice of
medicine, in violation of the Arkansas Medical Corporation
Act ("MCA") and submitted claims for insurance
reimbursement without disclosing this noncompliance with
Arkansas law. Second, Plaintiffs claim that defendants
submitted false claims for government reimbursement by
billing for services that were never provided and submitted
claims with erroneous billing codes.
move for summary judgment, asserting that (1) they did not
engage in the practice of corporate medicine and were not
required to comply with MCA licensing requirements and (2)
Plaintiffs have no proof that Defendants submitted false
Practice of Medicine
allege that the defendants violated the MCA because Curtiss
and Vicki Robinson owned and operated Thriveworks counseling
centers and did not possess a license to practice psychology.
Plaintiffs further charge that defendants submitted false
claims for reimbursement from government-backed insurance
programs by implicitly representing that the Thriveworks
franchises were operating in accordance with Arkansas law.
permits one or more persons "licensed to practice
medicine pursuant to the Arkansas Medical Practices Act"
to associate to form a corporation "to own, operate, and
maintain an establishment for the study, diagnosis, and
treatment of human ailments and injuries, whether physical or
mental, and to promote medical, surgical, and scientific
research and knowledge." Ark. Code Ann. §
4-29-305(a). The MCA also provides that "medical or
surgical treatment, consultation, or advice may be given by
employees of the corporation only if they are licensed
pursuant to the Arkansas Medical Practices Act[, ]" Ark.
Code Ann. § 4-29-305(b), and all officers, directors,
and shareholders of a corporation subject to the MCA
"shall at all times be persons licensed pursuant to the
Arkansas Medical Practices Act." Ark. Code Ann. §
MCA, by its plain language, applies to persons "licensed
to practice medicine pursuant to the Arkansas Medical
Practices Act." Ark. Code Ann. § 4-29-305(a).
Defendants correctly note that Arkansas law defines the
"practice of psychology" separately from "the
practice of medicine." Compare Ark. Code Ann.
§ 17-95-202(3) (defining the "practice of
medicine") with Ark. Code Ann. §
17-97-102(2)(defining the "practice of
psychology"). Furthermore, the Arkansas Medical
Practices Act sets forth licensing requirements for
physicians, not psychologists. Statutory provisions that are
separate from the Arkansas Medical Practices Act govern the
licensing and practice of psychologists and psychological
examiners, with the intent that "the practice of
psychology . . . should not infringe the practice of
medicine." Ark. Code Ann. § 17-97-101.
present undisputed evidence that Thriveworks offers
counseling and social work services and does not engage in
the practice of medicine. Given these facts and statutory
provisions that clearly distinguish the practice of
psychology from the practice of medicine, the Court agrees
that Defendants were not required to comply with MCA
succeed with a claim under the FCA, a plaintiff must show (1)
the defendant made a claim against the United States, (2) the
claim was false or fraudulent, and (3) the defendant knew the
claim was false or fraudulent. See United States ex rel.
Raynor v. Nat'l Rural Utilities Co-op. Fin., Corp.,690 F.3d 951, 955 (8th Cir. 2012)(quoting United States
v. Basin Elec. Power Coop.,248 F.3d 781, 803 (8th
Cir.2001)). Here, Plaintiffs claim that Curtiss ...