The Eleventh Circuit affirmed the district court’s dismissal of a relator’s qui tam lawsuit under the FCA’s public disclosure bar and, in doing so, concluded that the ACA’s amendments to the public disclosure bar created grounds for dismissal for failure to state a claim, rather than for lack of jurisdiction.  In U.S. ex rel. Osheroff v. Humana, Inc., the relator alleged that various Florida-based clinics and health insurers violated the FCA through the provision of various services to patients as kickbacks designed to induce and influence the patients’ healthcare decision-making.  Defendants pointed to allegations in state court litigation and news media as publicly disclosing the allegations upon which the relator based his qui tam lawsuit, and the district court agreed.

According to the Eleventh Circuit, dismissal of the relator’s lawsuit was appropriate because the lawsuit was based at least “in … part” upon the publicly disclosed information cited by defendants.  The relator also did not qualify as an original source of the information in his complaint.  Under the pre-ACA original source exception, the relator was not an original source because he offered nothing more than “background information that helps one understand or contextualize [the] public disclosure.”  And, under the post-ACA original source exception, the relator had not materially added to the public disclosures, which already were sufficient to give rise to an inference of wrongful conduct.

The U.S. District Court for the Middle District of Tennessee reached a similar conclusion concerning similar allegations made by the same relator in U.S. ex rel. Osheroff v. HealthSpring, Inc., No. 3:10-cv-01015 (M.D. Tenn.).