NOT FOR PUBLICATION

OPINION

SUSAN D. WIGENTON, District Judge.

Before this Court is Andover Subacute & Rehab Center Services One, Inc., Andover Subacute & Rehab Center Services Two, Inc. (collectively, "Andover"), and Estate of Dr. Hooshang Kipiani's (collectively "Defendants")1 Motion to Dismiss Kenneth W. Armstrong's ("Relator") Second Amended Complaint ("SAC") pursuant to Fed. R. Civ. P. ("Rule") 9(b) and 12(b)(6). Jurisdiction is proper pursuant to 28 U.S.C. §§ 1331 and 1367 and 31 U.S.C. § 3732(a). Venue is proper pursuant to 28 U.S.C. § 1391 and 31 U.S.C. § 3732(a). This opinion is issued without oral argument pursuant to Rule 78. For the reasons stated herein, the Motion to Dismiss is DENIED IN PART and GRANTED IN PART.

I. BACKGROUND AND PROCEDURAL HISTORY

A.

This action arises from allegations that Defendants knowingly submitted false or fraudulent claims for healthcare services to the United States and to the States of New Jersey and New York. (SAC ¶ 2.) The Andover defendants are for-profit corporations that operated long-term care facilities in New Jersey. (Id. ¶¶ 12-19; D.E. 74-1 at 22.) Beginning at least as early as August 2002, and continuing until his death in October 2012, Dr. Hooshang Kipiani ("Dr. Kipiani") was the medical director and an attending physician at Andover.2 (SAC ¶¶ 20-22.) Andover employed Relator beginning in August 2002, first as a patient advocate and later as director of security, terminating his employment in October 2011. (Id. ¶¶ 10-11.)

Relator brought suit on June 1, 2012, as a qui tam relator on behalf of the United States and the States of New Jersey and New York, alleging violations of the Federal False Claims Act ("FCA") (Counts One-Five), the New Jersey False Claims Act ("NJFCA"), N.J.S.A. § 2A:32c-3(a)-(c) (Counts Six-Ten), and the New York False Claims Act ("NYFCA"), N.Y. State. Fin. Law § 189(a)-(b) (Counts Eleven and Twelve). (D.E. 1.) Relator filed the initial complaint under seal. On September 30, 2013, the United States applied for an Order staying the action so that it could decide whether to intervene, and the case was administratively terminated. (D.E. 8, 9.)3

In June 2017, the United States intervened with respect to defendant Dr. Boris Freyman but declined to intervene as to the other defendants. (D.E. 13.) This Court reopened the case in September 2017. (D.E. 17.)4,5 Relator filed the SAC on March 18, 2019, and Defendants subsequently filed the instant Motion to Dismiss. (D.E. 70, 74.)

B.

The SAC alleges that Drs. Kipiani and Jain fraudulently billed Medicare and Medicaid for physician services that were not provided (or were not provided as described) to Andover patients. (SAC ¶ 38.) The fraudulent billing began as early as 2004, but no later than 2009, and continued until (1) October 2012 for Dr. Kipiani; and (2) until 2013 or 2015 for Dr. Jain. (Id. ¶¶ 38, 67-68, and 89.) The SAC alleges that Dr. Kipiani and Dr. Jain did not visit their patients, except in medical emergencies, despite federal regulations for Medicare and Medicaid reimbursement requiring that residents at nursing facilities like Andover "must be seen" every "30 days for the first 90 days after admission, and at least once every 60 days thereafter." (Id. ¶¶ 40, 73-87.)6 "Must be seen" means that the physician "must make actual face-to-face contact with the resident." (Id. ¶ 40 (quoting Department of Health & Human Services — Centers for Medicare and Medicaid Services, Appendix PP State Operations Manual, § 483.30(c) ("Interpretive Guidelines")7.)

Similarly, the SAC alleges that Andover knowingly submitted (or caused to be submitted) false claims to Medicaid for per diem care of residents at its long-term care facilities. (SAC ¶ 37.) According to the SAC, these claims were not eligible for reimbursement because Andover was in violation of the applicable federal (and corresponding state) regulations. (Id. ¶¶ 91, 108-117.) The SAC specifies that Robert Mayer, Andover's director of operations, was personally aware that Drs. Kipiani and Jain were not seeing their patients as required by law in order to receive Medicaid reimbursement. (Id.) Nonetheless, Mr. Mayer authorized Andover to submit per diem claims to Medicaid for these patients, and even went so far as to instruct "nursing supervisors to [systematically] pull specific charts so that Dr. Kipiani and Dr. Jain [c]ould write documentation in the chart[s] as if they were seeing the patient[s]." (Id. ¶¶ 113, 116, and 125.) Andover's alleged scheme began no later than 2009 and continued until 2015, when Dr. Jain became aware of the U.S. Government's investigation. (Id. ¶ 119.)

The SAC further alleges that Defendants, in order to be reimbursed by Medicare and Medicaid, included with each claim for payment a fraudulent certification verifying that they were furnishing accurate information regarding the services provided.8 Dr. Kipiani and Dr. Jain coded some of these claims to indicate that they were for services provided in connection with the initial and periodic physician visits that are federally mandated for nursing facility residents, even though these visits did not occur. (Id. ¶¶ 128-129.) Specifically, Relator alleges that Dr. Kipiani submitted 294 Medicare claims for "physician visits" between January 4, 2001 and September 6, 2012 and Dr. Jain submitted 3,119 Medicare claims for "physician visits" between January 1, 2011 and December 31, 2013. (Id. ¶¶ 142-144.) Andover's management had "full knowledge" that its director of admissions was submitting false claims for patient visits pursuant to Dr. Kipiani's instructions. (Id. ¶¶ 140, 168.) Despite this knowledge, Andover certified that it was complying with federal and state regulations when it submitted per diem claims to New Jersey and New York Medicaid for Dr. Kipiani and Dr. Jain's patients. (Id. ¶¶ 130-136.)

II. LEGAL STANDARD

An adequate complaint must be "a short and plain statement of the claim showing that the pleader is entitled to relief." Rule 8(a)(2). This Rule "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do .... Factual allegations must be enough to raise a right to relief above the speculative level[.]" Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations omitted); see also Phillips v. Cty. of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008) (stating that Rule 8 "requires a `showing,' rather than a blanket assertion, of an entitlement to relief").

In considering a Motion to Dismiss under Rule 12(b)(6), the Court must "accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief." Phillips, 515 F.3d at 231 (citation omitted). However, "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); see also Fowler v. UPMC Shadyside, 578 F.3d 203 (3d Cir. 2009) (discussing Iqbal). Determining whether the allegations in a complaint are "plausible" is "a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Iqbal, 556 U.S. at 679. If the "well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct," the complaint should be dismissed for failing to "show[] that the pleader is entitled to relief" as required by Rule 8(a)(2). Id.

Claims for fraud are subject to the heightened pleading requirements of Rule 9(b). United States ex rel. Wilkins v. United Health Grp., Inc., 659 F.3d 295, 301 n.9 (3d Cir. 2011), abrogated on other grounds, Universal Health Serv., Inc. v. U.S., 136 S.Ct. 1989, 2001-04 (2016) ("Escobar"). The rule requires that "[i]n alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake. Malice, intent, knowledge, and other conditions of a person's mind may be alleged generally." Rule 9(b). In order to satisfy the Rule 9(b) standard in the FCA context, Relator "must provide particular details of a scheme to submit false claims paired with reliable indicia that lead to a strong inference that claims were actually submitted. Describing a mere opportunity for fraud will not suffice. Sufficient facts to establish a plausible ground for relief must be alleged." Foglia v. Renal Ventures Mgmt., LLC, 754 F.3d 153, 157-58 (3d Cir. 2014) (quotation marks and citation omitted). See also id. at 156 ("In United States ex rel. Wilkins..., we noted that we had never `held that a plaintiff must identify a specific claim for payment at the pleading stage of the case to state a claim for relief.'").

III. DISCUSSION

A.

The FCA "prohibits the submission of false or fraudulent claims for payment to the United States and authorizes qui tam actions, by which private individuals may bring a lawsuit on behalf of the government ...." Foglia v. Renal Ventures Mgmt., LLC, 830 F.Supp.2d 8, 14 (D.N.J. 2011) (citing Schindler Elevator Corp. v. U.S. ex rel. Kirk, 131 S.Ct. 1885, 1889 (2011)). The FCA provides, in relevant part:

31 U.S.C. § 3729(a)(1).

"There are two categories of false claims under the FCA: a factually false claim and a legally false claim." Wilkins, 659 F.3d at 305 (citation omitted). "A claim is factually false when the claimant misrepresents what goods or services that it provided to the Government and a claim is legally false when the claimant knowingly falsely certifies that it has complied with a statute or regulation the compliance with which is a condition for Government payment." Id. (citation omitted). Legally false claims may be express or implied. Id. at 305. "Under the `express false certification' theory, an entity is liable under the FCA for falsely certifying that it is in compliance with regulations which are prerequisites to Government payment in connection with the claim for payment of federal funds." Id. (citation omitted). Under the "implied false certification" theory, an entity is liable if it "makes a claim for payment from the Government without disclosing that it violated regulations that affected its eligibility for payment." Id. (citation omitted).

For legally false claims, plaintiffs must plead that the regulation at issue is material. Escobar, 136 S. Ct. at 2004 n.6. For the FCA, a regulation is material if it is "so central to the provision" of services that the Government would "not have paid the[] claims had it known of the[] violations." Id. at 2002-04 (describing the materiality standard as "rigorous" and "demanding"); see also U.S. ex rel. Petratos v. Genentech, Inc., 855 F.3d 481, 492 (3d Cir. 2017) (recognizing the "heightened materiality standard" set out in Escobar).

B.

The SAC raises five FCA claims,10 alleging that Defendants submitted legally false claims under both express and implied false certification theories. "To establish a prima facie claim under 31 U.S.C. § 3729(a)(1), a plaintiff must show that: `(1) the defendant presented or caused to be presented to an agent of the United States a claim for payment; (2) the claim was false or fraudulent; and (3) the defendant knew the claim was false or fraudulent.'" United States ex rel. Schmidt v. Zimmer, Inc., 386 F.3d 235, 242 (3d Cir. 2004) (citations omitted). As there appears to be no dispute that claims were submitted for payment, this Court must determine whether the SAC sufficiently pleads that the claims submitted were false or fraudulent and submitted knowingly by Dr. Kipiani (Counts One-Three) and Andover (Counts Three-Five).11 As noted above, because Relator alleges legally false claims, this Court must also determine whether the SAC sufficiently pleads that the applicable regulations were material to the Government's decision to pay the submitted claims.

1. Dr. Kipiani (Counts One and Two)

Here, Relator pleads that Dr. Kipiani seldom visited residents' rooms, but systematically documented and submitted claims for hundreds of "physician visits" that never happened. (Id. ¶¶ 50-85, 142-143.) Relator attaches a "complete" list of these claims, including dates, amounts, and patient names. (Id. ¶ 143 (referencing D.E. 106).)12 The pleadings create "a strong inference that [false] claims were actually submitted." Foglia, 754 F.3d at 157-58. Furthermore, Relator's allegation that Dr. Kipiani fraudulently coded claims to indicate that they were for services that were never provided sufficiently pleads that Dr. Kipiani knowingly submitted the false or fraudulent claims. (SAC ¶¶ 128-129.)

2. Andover (Counts Four and Five)

Similarly, Relator alleges that Andover expressly certified, in both provider agreements and payment request forms,13 that it was complying with Medicaid regulations,14 but in fact submitted per diem claims for care of residents who were never actually visited by a doctor, in violation of applicable laws and regulations.15 (Id. ¶¶ 91, 96-107.) Relator alleges that Andover's director of operations, who was aware of these laws and regulations, instructed nursing supervisors to pull specific charts so that Drs. Kipiani and Jain could timely document patient visits that he knew did not occur. (Id. ¶¶ 86, 113.) The same director then authorized Andover to submit per diem claims to Medicaid for those patients. (Id. ¶¶ 116, 125.) Taken together, these allegations are sufficient to plead that Andover knowingly submitted false or fraudulent claims.

3. Dr. Kipiani and Andover (Count Three)

The conspiracy allegations of Count Three "need only satisfy the notice pleading standards of Rule 8." United States ex rel. Rahimi v. Zydus Pharm. (USA), Inc., Civ. No. 15-6536, 2017 WL 1503986, at *12 (D.N.J. Apr. 26, 2017) (citation omitted), on reconsideration in part sub nom. Rahimi v. Zydus Pharm. (USA) Inc., Civ. No. 15-6536, 2018 WL 515943 (D.N.J. Jan. 23, 2018) (granting reconsideration in part on other grounds). "The [SAC] easily provides such notice, by alleging the general composition of the conspiracy, its broad objectives, and [Defendants'] general roles in the conspiracy." See Rahimi, 2017 WL 1503986, at *12 (citations omitted). (See, e.g., SAC ¶¶ 91, 108-117, 125, 140, and 168.) Accordingly, these allegations are sufficient to plead that Andover conspired with Drs. Kipiani and Jain to submit false or fraudulent claims.

4. Materiality

Because the SAC alleges legally false claims, Relator must also plead that the regulations requiring periodic physician visits were material to the Government's decision to pay the submitted claims. See Escobar, 136 S. Ct. at 2004 n.6. Here, Relator identifies specific federal statutes and regulations which mandated that Andover provide residents with face-to-face physician visits at prescribed minimum intervals, (SAC ¶¶ 100, 102-104, and 107), a requirement which Relator alleges is a core component of Medicaid's legal framework for long-term care nursing facilities. (Id. ¶¶ 100-104, 107, and 118.) That these visits were material to the Government's decision to pay the claims is reflected by Defendants' systematic efforts to document patient visits that never occurred. (Id. ¶¶ 113, 116, and 125.) Accordingly, Relator has sufficiently pleaded materiality.16

As Relator has sufficiently pleaded that Defendants knowingly submitted false or fraudulent claims, see Zimmer, 386 F.3d at 242, and that the regulations at issue were material, see Escobar, 136 S. Ct. at 2004 n.6, this Court will deny Defendants' Motion to Dismiss Counts One-Five.17,18,19

C.

Relator's remaining claims arise under the NJFCA and the NYFCA. These state statutes mirror the FCA and require the same showings. See, e.g., United States v. Loving Care Agency, Inc., 226 F.Supp.3d 357, 363-64 (D.N.J. 2016) ("[t]he language in the NJFCA is nearly identical to the federal statute and thus requires the same showings"); United States v. N. Adult Daily Health Care Ctr., 205 F.Supp.3d 276, 286 (E.D.N.Y. 2016) (concluding that the NYFCA "`is closely modeled on the federal FCA'" and "imposes liability for `knowingly mak[ing] a false statement or knowingly fil[ing] a false record'" (citations omitted)); Kane ex rel. U.S. v. Healthfirst, Inc., 120 F.Supp.3d 370, 381 (S.D.N.Y. 2015) ("[w]hen interpreting the NYFCA, New York courts rely on federal FCA precedent"). Because Relator has sufficiently pleaded his FCA claims, this Court will also deny Defendants' Motion to Dismiss Counts Six-Twelve.20,21

IV. CONCLUSION

For the reasons set forth above, Defendants' Motion to Dismiss is DENIED IN PART and GRANTED IN PART. An appropriate order follows.