United States ex rel. Scott v. Arizona Center for Hematology and Oncology PLC

          ORDER

          David G. Campbell Senior United States District Judge

         Qui tam relator J. Scott (“Relator”) filed a motion to dismiss the counterclaim by Defendant Arizona Center for Hematology and Oncology PLC, d/b/a Arizona Center for Cancer Care (“AZCCC”). Doc. 114. AZCCC did not respond, but filed an amended counterclaim. Doc. 122. Relator again moves to dismiss. Doc. 123. The motion is fully briefed and the Court finds that oral argument is not needed. Docs. 126, 128. For the following reasons, the Court will deny Relator's motion.

         I. Background.

         The Court takes the allegations of AZCCC's counterclaim as true for purposes of a motion to dismiss. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). AZCCC is a “multispecialty cancer treatment center” that cares for patients throughout Phoenix. Doc. 122 at 49 ¶ 7. In 2008, AZCCC hired Relator to work as billing manager of the Radiation Oncology Department to develop and implement its billing system. Id. at 49

         ¶¶ 8-9. Relator's responsibilities included: “analyzing billing and claims for accuracy and completeness; serving as the . . . expert on coding and billing processes; ensuring that . . . billing operations [wer]e conducted in a manner consistent with payor rules and guidelines; . . . and keeping up-to-date with current coding, billing, and compliance requirements.” Id. ¶ 10. Relator was, “essentially[, ] the architect” of the billing system, and AZCCC relied on him to “ensure all claims were properly coded and compliant with applicable billing requirements prior to submission.” Id. at 49-50 ¶¶ 9, 11.

         AZCCC's billing policy included routine monitoring of overpayments and prompt refunds. Id. at 51 ¶ 17. An overpayment “is any payment that a healthcare provider receives in excess of amounts due and payable under the payor's policies.” Id. ¶ 17. As a senior-level employee, Relator had the sole responsibility of overseeing insurance refunds and was authorized to “immediately approve and issue” identified overpayments. Id. at 51 ¶¶ 15-16, 18. AZCCC alleges Relator failed to complete required refunds, and that in several instances Relator reviewed an account multiple times, noted an overpayment, but failed to issue a necessary refund on the account. Id. at 52 ¶¶ 19-20. Relator's failure to issue refunds interfered with AZCCC's contractual relationships with payors and exposed it to a risk of liability. Id. at 53 ¶ 23.

         When an account is not collectible, AZCCC will sometimes “write off accounts receivable - monies owed to it. Id. at 54 ¶ 26. AZCCC's policy required Relator to “confer with and obtain consent from the physician associated with the account receivable” before writing off an account. Id. ¶ 27. “Relator was not authorized to write off accounts without approval.” Id. ¶ 26. But Relator wrote off “approximately $250, 000 in accounts receivable without obtaining the requisite consent from an AZCCC physician.” Id. at 54-56 ¶¶ 28-32. Relator also used an incorrect code when billing a particular procedure, resulting in underpayments and lost revenue to AZCCC in the amount of approximately three million dollars between 2008 and 2017. Id. at 57-61 ¶¶ 34-42.

         On October 26, 2016, Relator, individually and on behalf of the United States, sued AZCCC and several of its doctors - Dr. Christopher Biggs, Dr. Devinder Singh, Dr. Daniel Reed, and Dr. Terry Lee - for violations of the False Claims Act, 31 U.S.C. §§ 3729 et seq. (“FCA”). Doc. 1. The case originally was sealed, but was unsealed in February 2017. Doc. 9. AZCCC was served on June 6, 2017 (Docs. 117 ¶ 45; 18), terminated Relator (Doc. 124 at 6-7), and counterclaimed, alleging breach of fiduciary duty (Doc. 122 at 62, 64).

         II. Legal Standard.

         A successful motion to dismiss under Rule 12(b)(6) must show either that the complaint lacks a cognizable legal theory or fails to allege facts sufficient to support its theory. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). A complaint that sets forth a cognizable legal theory will survive a motion to dismiss as long as it contains “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Iqbal, 556 U.S. at 678 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). 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.” Id., 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). “The plausibility standard is not akin to a ‘probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (citing Twombly, 550 U.S. at 556).

         III. Relator's Motion to Dismiss.

         AZCCC never responded to Relator's first motion to dismiss (Doc. 114), and has since filed an amended counterclaim (Doc. 122). The Court will deny Relator's first motion as moot and consider only Relator's subsequent motion to dismiss. Doc. 124. Relator argues that AZCCC's claim is barred by the statute of limitations (id. at 12), fails sufficiently to plead breach of fiduciary duty (id. at 8-15), and violates Arizona's anti-SLAPP statute (id. at 15).

         A. Statute of Limitations.

         “[T]he statute of limitations defense . . . may be raised by a motion to dismiss . . . [i]f the running of the statute is apparent on the face of the complaint.” Jablon v. Dean Witter & Co., 614 F.2d 677, 682 (9th Cir. 1980). But even if the relevant dates alleged in the complaint are beyond the statutory period, the “‘complaint cannot be dismissed unless it appears beyond doubt that the plaintiff can prove no set of facts that would establish the timeliness of the claim.'” Hernandez v. City of El Monte, 138 F.3d 393, 402 (9th Cir. 1998) (quoting Supermail Cargo, Inc. v. United States, 68 F.3d 1204, 1206 (9th Cir. 1995)); see Cervantes v. City of San Diego, 5 F.3d 1273, 1275 (9th Cir. 1993). Indeed, “[d]ismissal on statute of limitations grounds can be granted pursuant to Fed.R.Civ.P. 12(b)(6) ‘only if the assertions of the complaint, read with the required liberality, would not permit the plaintiff to prove that the statute was tolled.'” TwoRivers v. Lewis, 174 F.3d 987, 991 (9th Cir. 1999) (citing Vaughan v. Grijalva, 927 F.2d 476, 478 (9th Cir. 1991) (quoting Jablon, 614 F.2d at 682)); see Pisciotta v. Teledyne Indus., Inc., 91 ...