GONITE v. UNITEDHEALTHCARE OF GEORGIA INC

          IN THE UNITED STATES DISTRICT COURT                        
           FOR THE MIDDLE DISTRICT OF GEORGIA                        
                    MACON DIVISION                                   

UNITED STATES OF AMERICA and the  )                                       
STATE OF GEORGIA ex rel. BROOK  )                                         
GONITE,                         )                                         
                           )                                         
          Plaintiffs,      )                                         
     v.                    )                                         
                           )                                         
UNITEDHEALTHCARE OF             )   CIVIL ACTION NO. 5:19-cv-246 (MTT)    
GEORGIA, INC., et al.,          )                                         
                           )                                         
          Defendants.      )                                         
                           )                                         

                        ORDER                                        
In this action under the False Claims Act (“FCA”), 31 U.S.C. § 3729, and the 
Georgia False Medicaid Claims Act (“GFMCA”), O.C.G.A. § 49-4-168, Defendants 
UnitedHealthcare of Georgia, Inc., UnitedHealth Group, Inc., United Healthcare 
Services, Inc., UnitedHealthcare, Inc., Optum, Inc., and Optum Services, Inc. move to 
dismiss Relator Brook Gonite’s amended complaint (Doc. 52) on the grounds that (1) 
the FCA is unconstitutional and (2) Gonite fails to state a claim.  Doc. 69-1.  For the 
following reasons, the defendants’ motion (Doc. 69) is DENIED in part and GRANTED 
in part.                                                                  
                    I. BACKGROUND                                    
A. Medicare Part C or “Medicare Advantage”                                
The Medicare Program consists of four parts: Part A covers inpatient care, Part B 
covers outpatient care, Part C is the Medicare Advantage Program, and Part D covers 
prescription drugs.  Doc. 52 ¶ 1.  If a Medicare beneficiary chooses to be covered under 
what is commonly referred to as “traditional” Medicare (Parts A and B), then the Centers 
for Medicare and Medicaid Services (“CMS”) reimburse healthcare providers for 
services rendered to the beneficiary via submission of claims, which is known as a fee-
for-service payment system.  Id.  If instead, a Medicare beneficiary chooses to enroll in 
a Medicare Advantage plan managed by a private insurance company operating as a 

Medicare Advantage Organization (“MAO”), CMS pays the Medicare Advantage plan a 
set capitation payment for the complete care of the beneficiary, starting as soon as the 
beneficiary enrolls.  Id.  This model is known as “value-based care.”  Doc. 69-1 at 11 
n.3.  Institutional Special Needs Plans (“ISNPs”) are a type of Medicare Advantage plan 
designed for full-time nursing home residents.  Id. at 9.                 
B. The Parties                                                            
Defendant UnitedHealth Group, Inc. is the parent company of the other 
defendants in this action.  Doc. 52 ¶ 25.  UnitedHealth Group offers a broad spectrum of 
products and services through two distinct primary direct corporate subsidiaries: (1) 
UnitedHealthcare, Inc., a health benefits (i.e., insurance) company; and (2) Optum, Inc., 

a health services company.  Id.  Both companies have direct and indirect subsidiaries of 
their own.  Id.  Accordingly, UnitedHealth Group’s direct or indirect subsidiaries, 
including the other defendants in this action, offer its healthcare insurance products 
(including those under Medicare Part C) and manage its Medicare Advantage plans.  Id.  
¶¶ 25-29.  The Court refers to the defendants collectively as “United.”   
The relator, Brook Gonite, is a former Georgia-licensed insurance agent and 
Sales Implementation Manager.  Doc. 52 ¶ 21.  Gonite was employed by United from 
approximately June 2015 to August 2018.  Id.  During his employment, Gonite was 
responsible for executing new facility implementation plans to sell United’s ISNP in 
skilled nursing facilities (“SNFs”) throughout Georgia.  Id.  Gonite alleges that from 
2016, when he began reporting to former Director of Sales James Rodgers, until his 
termination in August 2018, he personally witnessed and gained direct and independent 
knowledge forming the basis of the allegations in the complaint.  Id. ¶¶ 21, 23, 174.  

C. Gonite’s Allegations                                                   
Gonite alleges that United generated fraudulent Medicare Part C business at the 
Government’s expense by using illegal means to solicit and enroll vulnerable, elderly 
patients for its INSP and by paying kickbacks to SNFs to obtain illegal referrals of their 
residents to the ISNP.  Doc. 52 ¶ 2.  Gonite asserts two closely related fraudulent 
schemes under the FCA: (1) to enroll SNF patients in its ISNP, United engaged in 
marketing activities that violated Medicare marketing regulations and HIPAA; and (2) 
United offered or paid kickbacks to SNFs for the purpose of inducing referrals to 
United’s ISNP in violation of the Anti-Kickback Statute (“AKS”).  Id. ¶¶ 381-388.  Gonite 
also asserts a reverse false claim, a fraudulent inducement claim, a state law claim, and 

a conspiracy claim based on the same fraudulent schemes.  Id. ¶¶ 389-408. 
D. Procedural Summary                                                     
On June 19, 2019, Gonite filed a complaint under seal.  Docs. 1–3.  The United 
States (“Government”) and the State of Georgia declined to intervene.  Docs. 44; 45.  
On April 1, 2024, the complaint was unsealed and ordered to be served on the 
defendants.  Doc. 46.  On June 7, 2024, Gonite moved to file an amended complaint.  
Doc. 48.  The Court granted the request.  Doc. 51.  United moved to dismiss the 
amended complaint in its entirety, arguing that the qui tam provision of the FCA violates 
the United States Constitution and the amended complaint fails to state a claim.  Doc. 
69-1.  The Government filed a Statement of Interest and response brief opposing the 
motion to dismiss.  Docs. 76; 77.                                         
                      II. STANDARD                                   
The Federal Rules of Civil Procedure require that a pleading contain a “short and 

plain statement of the claim showing that the pleader is entitled to relief.”  Fed. R. Civ. 
P. 8(a)(2).  To avoid dismissal pursuant to Rule12(b)(6), a complaint must contain 
sufficient factual matter to “‘state a claim to relief that is plausible on its face.’”  Ashcroft 
v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 
570 (2007)).  A claim is facially plausible when “the court [can] draw the reasonable 
inference that the defendant is liable for the misconduct alleged.”  Id.  “Factual 
allegations that are merely consistent with a defendant’s liability fall short of being 
facially plausible.”  Chaparro v. Carnival Corp., 693 F.3d 1333, 1337 (11th Cir. 2012) 
(internal quotation marks and citations omitted).                         
At the motion to dismiss stage, “all well-pleaded facts are accepted as true, and 

the reasonable inferences therefrom are construed in the light most favorable to the 
plaintiff.”  FindWhat Inv’r Grp. v. FindWhat.com., 658 F.3d 1282, 1296 (11th Cir. 2011) 
(internal quotation marks and citations omitted).  But “conclusory allegations, 
unwarranted deductions of facts or legal conclusions masquerading as facts will not 
prevent dismissal.”  Wiersum v. U.S. Bank, N.A., 785 F.3d 483, 485 (11th Cir. 2015) 
(internal quotation marks and citation omitted).  The complaint must “give the defendant 
fair notice of what the ... claim is and the grounds upon which it rests.”  Twombly, 550 
U.S. at 555 (internal quotation marks and citation omitted).  Where there are dispositive 
issues of law, a court may dismiss a claim regardless of the alleged facts.  Patel v. 
Specialized Loan Servicing, LLC, 904 F.3d 1314, 1321 (11th Cir. 2018) (citations 
omitted).                                                                 
“The FCA is designed to protect the Government from fraud by imposing civil 
liability and penalties upon those who seek federal funds under false pretenses.”  United 

States ex rel. Lesinski v. S. Fla. Water Mgmt. Dist., 739 F.3d 598, 600 (11th Cir. 2014).  
“As an enforcement mechanism, the FCA includes a qui tam provision under which 
private individuals, known as relators, can sue ‘in the name of the Government’ to 
recover money obtained in violation of § 3729.”  United States ex rel. Bibby v. Mortg. 
Invs. Corp., 987 F.3d 1340, 1343 (11th Cir. 2021), cert. denied sub nom. Mortg. Invs. 
Corp. v. United States ex rel. Bibby, 141 S. Ct. 2632 (2021).  “In an action under the 
False Claims Act, Rule 8’s pleading standard is supplemented but not supplanted by 
Federal Rule of Civil Procedure 9(b).”  Urquilla-Diaz v. Kaplan Uni., 780 F.3d 1039, 
1051 (11th Cir. 2015).                                                    
Rule 9(b) requires that the relator “must state with particularity the circumstances 

constituting fraud” but may generally allege scienter.  Id.  See Fed. R. Civ. P. 9(b); 
United States ex rel. Clausen v. Lab. Corp. of Am., 290 F.3d 1301, 1308 (11th Cir. 
2002).  To meet Rule 9(b)’s particularity requirements, a relator must plead “facts as to 
time, place, and substance of the defendant's alleged fraud, specifically the details of 
the defendants allegedly fraudulent acts, when they occurred, and who engaged in 
them.”  U.S. ex rel. Clausen v. Lab’y Corp. of America, Inc., 290 F.3d 1301, 1310 (11th 
Cir. 2002) (cleaned up). “Liability under the False Claims Act arises from the submission 
of a fraudulent claim to the [G]overnment, not the disregard of government regulations 
or failure to maintain proper internal policies.”  Corsello v. Lincare, Inc., 428 F.3d 1008, 
1012 (11th Cir. 2005) (citation omitted).  “Indeed, the ‘central question’ regarding 
whether a relator’s allegations state a claim under [§ 3729(a)(1)] is, did the defendant 
present (or caused to be presented) to the government a false or fraudulent claim for 
payment?”  Urquilla-Diaz, 780 F.3d at 1052 (quoting Hopper v. Solvay Pharm., Inc., 588 

F.3d 1318, 1326 (11th Cir. 2009)).                                        
                     III. DISCUSSION                                 
A. Constitutionality of the qui tam provision of the FCA                  
1. The qui tam provision does not violate the Appointments Clause    
United asserts that “an ‘Officer of the United States’ is an ‘appointee [of the 
President] [who] exercise[es] significant authority pursuant to the laws of the United 
States’ and who occupies a ‘continuing position established by law.’”  Doc. 69-1 at 17-18 
(citing Buckley v. Valeo, 424 U.S. 1, 126 (1976)).  United argues that an FCA relator “is 
an ‘Officer of the United States’ under this test because he or she (1) exercises 
significant authority due to the possession of ‘civil enforcement authority on behalf of 

the United States’; and (2) occupies a continuing position due to the relator’s ‘statutory 
duties, powers, and emoluments [prescribed by the FCA].’”  Id.  Thus, United concludes, 
Gonite cannot proceed in this suit because he is not an “Officer” of the United States.1  
Id.                                                                       
Qui tam relators are not officers under the Appointments Clause.  Supreme Court 
precedent requires an “officer” to have “tenure, duration, emolument, and duties [that 


1 United urges the Court to follow the Middle District of Florida’s recent decision in United States ex rel. 
Zafirov v. Fla. Med. Assocs., LLC, 751 F. Supp. 3d 1293 (M.D. Fla. Sept. 30, 2024), which dismissed a qui 
tam action on the ground that the relator was an improperly appointed officer of the United States.  Doc. 
83 at 6.  Zafirov is currently on appeal at the Eleventh Circuit.  United States ex rel. Zafirov, Case No. 24-
13581 (11th Cir.).                                                        
are] continuing and permanent, not occasional or temporary.”  United States v. 
Germaine, 99 U.S. 508, 511-12 (1878); see Auffmordt v. Hedden, 137 U.S. 310, 327 
(1890) (“His position is without tenure, duration, continuing emolument, or continuous 
duties, and he acts only occasionally and temporarily.  Therefore, he is not an ‘officer’ 

within the meaning of the clause of the constitution referred to.”).  United’s extensive 
briefing overlooks this precedent.2                                       
Gonite’s duties are temporary and not continuous.  His authorization to litigate 
under the FCA is not permanent and his position only exists for the duration of the 
lawsuit.  See Riley v. St. Luke's Episcopal Hosp., 252 F.3d 749, 757-58 (5th Cir. 2001) 
(en banc); United States ex rel. Taxpayers Against Fraud v. Gen. Elec. Co., 41 F.3d 
1032, 1041 (6th Cir. 1994).  He wields no governmental power and enjoys no 
governmental benefits.  Id.  “Instead, the Government restricts [his] power as [a] civil 
litigant[]: the Government can intervene, monitor and limit discovery, and settle the 
action without relator[’s] consent.”  United States ex rel. Wallace v. Exactech, Inc., 703 

F. Supp. 3d 1356, 1364 (N.D. Ala. 2023) (citing 31 U.S.C. § 3730).  The Eleventh Circuit 
has recognized that a qui tam relator “in effect, su[es] as a partial assignee of the United 
States.”  United States ex rel. Hunt v. Cochise Consultancy, Inc., 887 F.3d 1081, 1086 
(11th Cir. 2018) (citing Vt. Agency of Nat. Res. v. United States ex rel. Stevens, 529 U.S. 
765, 773 n.4 (2000)) (emphasis omitted).  Thus, Gonite is not an “officer” and the qui 
tam provision does not violate the Appointments Clause.                   


2 Moreover, while United purports to argue that Buckley establishes a more expansive definition of 
“officer,” the United States Supreme Court in Buckley expressly relied on both Auffmordt and Germaine 
and made clear that its holdings should be read in conformity with those prior decisions.  Buckley, 424 
U.S. at 126 n.162.  Thus, Buckley did not overrule Auffmordt and Germaine. 
2. The qui tam provision does not violate the Take Care Clause       
United maintains that the Take Care Clause “grants the President the ‘exclusive 
authority’ to determine whether to commence civil action on the government’s behalf.”  
Doc. 69-1 at 19 (citing United States v. Nixon, 418 U.S. 683, 693 (1974)).  Thus, “‘[t]he 

President must exercise ‘sufficient control’ over the government’s litigation.’”  Id. (citing 
Morrison v. Olson, 487 U.S. 654, 696 (1988).  United argues that “[b]ecause the FCA’s 
qui tam provision permits relators to maintain primary control over litigation on the 
government’s behalf, the qui tam provision violates the Take Care Clause.”  Id.   
First, the Take Care Clause does not unequivocally convey to the President 
exclusive authority to initiate any type of litigation against the United States.  See Riley, 
252 F.3d at 753.  United relies on dicta in Nixon for this proposition.  418 U.S. at 693.  
Rather, the Take Care Clause directs the President to “take Care that the Laws be 
faithfully executed.”  U.S. Const., art. II, § 3.  And on the matter of control, the Eleventh 
Circuit has recognized that the United States possesses “substantial control” over non-

intervened FCA qui tam actions.  See Yates v. Pinellas Hematology & Oncology P.A., 21 
F.4th 1288, 1310-11 (11th Cir. 2021) (citing Riley, 252 F.3d at 753); Hunt, 887 F.3d at 
1086 (describing the control mechanisms at the government’s disposal when a relator 
brings an FCA action); 31 U.S.C. § 3730.  The qui tam provision does not violate the 
Take Care Clause.                                                         
In sum, while the Eleventh Circuit has not yet weighed in on the constitutionality 
of the qui tam provision, the current state of the law compels the conclusion that the qui 
tam provision is constitutional.                                          
B. Gonite plausibly pleads violations of 31 U.S.C. § 3729(a)(1)(A), (B)   
Gonite’s primary FCA claims are set forth in Counts I and II.  Doc. 52 ¶¶ 381-388.  
Count I alleges that United “knowingly presented or caused to be presented false or 
fraudulent claims for payment or approval … by submitting claims for Medicare Part C 

payments on behalf of beneficiaries enrolled as the result of illegal marketing tactics 
[and AKS violations] 3 and whose personal health information (PHI) was wrongfully 
obtained in exchange for remuneration provided to facilities by [United].”  Id. ¶¶ 381-384 
(citing 31 U.S.C. § 3729(a)(1)(A)).  Count II alleges that United “knowingly made or 
used a false record or statements representing that [United was] compliant with the 
regulations related to the marketing of Medicare Advantage plans, HIPAA, and the 
AKS.”  Id. ¶¶ 385-388 (citing 31 U.S.C. § 3729(a)(1)(B)).                 
United argues that Gonite fails to state a claim on Counts I and II because he 
fails to plead with particularity: (1) presentment of a claim; (2) falsity; (3) materiality; and 
(4) scienter.  See generally Doc. 69-1.  United further argues that, regarding the AKS-

based FCA claims in Counts I and II, Gonite fails to plead an AKS violation because he 
does not sufficiently allege (1) remuneration to induce referrals; (2) referrals; (3) claims 
that resulted from the alleged kickbacks; and (4) that United acted knowingly and 
willfully.  Id.  Because those claims fail, United argues that Gonite’s remaining FCA and 
FCA-based claims fail.  Id.                                               
1. Gonite plausibly pleads presentment of a claim                    

United argues that Gonite fails to plead sufficient facts to support his allegation 
that “[United] submitted claims to Medicare.”  Doc. 69-1 at 13-14.  Under Rule 9(b), a 

3 Count I does not mention the AKS, but the complaint read as a whole makes clear that AKS violations 
are part of Gonite’s claim under § 3729(a)(1)(A).  Counsel confirmed this at the motion hearing.  
Relator must have “some indicia of reliability … to support the allegation of an actual 
false claim for payment being made to the Government.”  United States ex rel. Clausen 
v. Lab. Corp. of Am., 290 F.3d 1301, 1311 (11th Cir. 2002); see United States ex rel. 
84Partners, LLC v. Nuflo, Inc., 79 F.4th 1353, 1360 (11th Cir. 2023) (“Standing alone, a 

fraudulent scheme, no matter how egregious, is not enough; there must be an actual 
false claim.”).  A court evaluates whether a relator has sufficiently alleged presentment 
of a false claim on a “case-by-case basis.”  Atkins v. McInteer, 470 F.3d 1350, 1358 
(11th Cir. 2006).                                                         
Here, Gonite relies on his alleged direct, first-hand knowledge of United’s 
submission of false claims gained through his employment.  Specifically, Gonite alleges 
that on November 9, 2017, he personally observed Director of Sales James Rodgers 
instruct Oceanside Nursing & Rehab4 personnel to provide a list of current residents 
and their HIPAA-protected information.  Doc. 52 ¶¶ 226, 227.  Gonite further alleges 
that, based on his first-hand knowledge, United “used this information to improperly 

solicit nursing home patients” and “at least 16 patients at Oceanside enrolled.”  Id. ¶¶ 
230, 231.                                                                 
United contends that these allegations do not provide a sufficient indicia of 
reliability to establish presentment, arguing that Gonite’s failure to provide a “‘copy of a 
[] bill’” or “‘policies about billing or even second-hand information about billing practices’” 
warrants dismissal of his claim.  Doc. 69-1 at 22 (citing United States ex rel. 84Partners, 
LLC v. Nuflo, Inc., 79 F.4th 1353, 1361 (11th Cir. 2023) (internal citations omitted)).  But 
“Rule 9(b) does not always require documentary proof at the pleading stage.  A relator 


4 Oceanside is one of sixteen SNFs cited by Gonite as specific examples of United’s fraudulent schemes.  
can satisfy the rule by other means—so long as he still pleads the submission of a claim 
with ‘sufficient indicia of reliability.’”  Vargas ex rel. Alvarez v. Lincare, Inc., 2025 WL 
1122196 at *4 (11th Cir. 2025) (citing Atkins, 470 F.3d at 1357-58).  And this argument 
ignores the structure of Medicare Part C and Gonite’s allegations based on first-hand 

knowledge of billing practices.                                           
In the typical healthcare FCA case, the scheme involves a fraudulent service for 
which a bill, or claim, is later presented.  See, e.g., United States ex rel. Atkins v. 
McInteer, 470 F.3d 1350, 1354 (11th Cir. 2006); Corsello v. Lincare, Inc., 428 F.3d 1008, 
1011 (11th Cir. 2005); United States ex. rel. Sanchez v. Lymphatx, Inc., 596 F.3d 1300, 
1302 (11th Cir. 2010) (claims seeking reimbursement for medical services never 
rendered to the patient).  Those cases often have “presentment” issues because the 
relator has firsthand knowledge of the service, and thus knows of the fraud, but he has 
no knowledge of the billing for that service.  In this typical scenario, which also arises 
outside the healthcare context as illustrated in 84Partners, there are multiple steps in 

the scheme between the fraudulent service and the presentment of a claim for that 
service.  84Partners, 79 F.4th at 1361-62 (explaining that “underlying improper 
practices, even if fraudulent and so widespread as to constitute standard operating 
procedure, are not enough; a complaint must allege with particularity a connection 
between those practices and one or more actual claims.”) (emphasis added).  
Claims presented under Medicare Part C are different.  “Unlike traditional 
Medicare, where a patient could be enrolled in Medicare but not receive any services 
[and thus no bill is presented], … once a patient is enrolled in a Medicare Part C plan 
and the MAO provider (such as United) certifies that the enrollee is validly enrolled, the 
Government begins paying monthly capitated payments to the MAO for the enrolled 
beneficiary.”  Doc. 74 at 10.  Thus, each enrollment triggers an automatic capitated 
payment from CMS.  In short, enrollment constitutes presentment of a claim.  See 
United States v. Health Mgmt. Assocs., 591 Fed. App’x. 693, 708 (11th Cir. 2014) 

(“[T]he type of fraud alleged here does not depend as much on the particularized 
medical or billing content of any given claim form…. [T]he type of medical service 
rendered and described in that interim claim, the billing code, or what was charged for 
that service are not the underlying fraudulent acts.”).                   
Here, Gonite essentially alleges a fraudulent bill, not a fraudulent service for 
which a bill was later presented.  He alleges personal involvement with and knowledge 
of fraudulent conduct to concoct that bill, i.e., an enrollment.  See Doc. 52 ¶¶ 226-233.  
As a practical matter, Gonite alleges that he helped put the bills together for SNF 
residents whose HIPAA-protected information United improperly obtained—he 
personally participated in meetings where Rodgers asked SNF personnel to provide 

residents’ protected information, and the SNFs complied, to facilitate enrollments.  Id. ¶ 
226-27.  He alleges that he knows the bills he helped concoct were presented because 
the patients were enrolled, and thus the bills were paid.  Id. ¶¶ 230-233.  There are no 
steps of consequence, and therefore no “gaps,” between what Gonite knows and the 
presentment of a claim.  Compare 84Partners, 79 F.4th at 1362.  Gonite has sufficiently 
alleged the “time, place, and substance of the alleged fraud, specifically the details of 
the defendants allegedly fraudulent acts, when they occurred, and who engaged in 
them.”  Clausen, 290 F.3d at 1310.                                        
The same reasoning applies to claims tainted by AKS violations.  Putting the 
actual AKS violations at Oceanside aside and focusing solely on presentment, Gonite 
alleges, based on his personal knowledge, that residents at Oceanside enrolled.  Doc. 
52 ¶¶ 230-233.  Again, the Court need not rely on “mathematical guesswork” to 

conclude that claims were submitted to Medicare.  See Carrel v. AIDS Healthcare 
Found., Inc., 898 F.3d 1267, 1277 (11th Cir. 2018).  Each enrollment of an Oceanside 
resident was the presentment of a claim and Gonite participated in the presentment of 
that claim.                                                               
Gonite has plausibly pled presentment.                               
2. Gonite plausibly pleads falsity                                   
An FCA relator must allege that the claims at issue are false—for example, that 
an “entity fails to comply with statutory, regulatory, or contractual requirements but 
certifies that it has complied with them.”  Yates v. Pinellas Hematology & Oncology, P.A., 
21 F.4th 1288, 1299 (11th Cir. 2021).  A legal falsity may be based on either an express 

or an implied certification.  See Urquilla-Diaz, 780 F.3d at 1045; Ruckh v. Salus Rehab., 
LLC, 963 F.3d 1089, 1103 (11th Cir. 2020).  United contends that Gonite has not 
sufficiently alleged that United’s certifications, with respect to the alleged marketing 
violations, were false.5  Doc. 69-1 at 24-26.                             
Gonite alleges that federal regulations require United to make certifications as 
part of its contract with CMS.  See Doc. 52 ¶¶ 58, 71-75, 128, 371, 373 (citing 42 C.F.R. 
§ 422.504).  As a condition for receiving monthly payments, United must certify that it is 


5 United does not argue that Gonite’s allegations of falsity with respect to United’s certifications of AKS 
compliance are insufficient.  Doc. 69-1 at 24-26.  See 42 C.F.R. § 422.504(h) (Medicare Advantage 
organizations required to certify compliance with the AKS).               
only seeking payment for valid enrollees.  Doc. 52 ¶ 73 (citing 42 C.F.R. § 422.504(l)).  
Specifically, the signatory must “certify that each enrollee for whom the organization is 
requesting payment is validly enrolled in an MA plan offered by the organization and the 
information relied upon by CMS in determining payment (based on best knowledge, 

information, and belief) is accurate, complete, and truthful.”  42 C.F.R. § 422.504(l). 
United also certifies that it agrees to comply with “[f]ederal laws and regulations 
designed to prevent or ameliorate fraud, waste, and abuse” and “HIPAA administrative 
simplification rules at 45 CFR parts 160, 162, and 164.”  Doc. 52 ¶ 85 (quoting 42 
C.F.R. § 422.504(h)).                                                     
Gonite’s complaint identifies a number of Medicare marketing and HIPAA rules 
and alleges that United’s violations of these rules render its CMS contract certifications 
false.  See id. ¶¶ 83-99, 107-112.   Federal regulations prohibit, for example, 
unauthorized use or disclosure of personal health information.  Id. ¶¶ 111, 112 (citing 45 
C.F.R. § 164.508(a)); see, e.g., id. ¶¶ 226-27 (alleging United requested and received 

from Oceanside a list of all current residents and their HIPAA-protected information).  
Further, regulations place limitations on SNFs’ marketing or enrollment activities on 
behalf of an MAO.  Id. ¶¶ 96, 97 (citing 42 C.F.R. § 422.2266(d)); see id. ¶¶ 183, 186, 
196 (“[T]he UnitedHealth Defendants directed the SNFs to do their bidding instead—
having the SNFs themselves market UnitedHealth’s ISNP in direct violation of federal 
regulations.”).  These are but illustrative examples of the violations which form the basis 
of Gonite’s false certification claim.                                    
United argues that “the only courts that have allowed an FCA case to proceed 
under [] sub-section [422.504(l)] have involved allegations concerning the purported 
falsification of risk adjustment data.”  Doc. 69-1 at 25 (citing United States ex rel. Osinek 
v. Permanente Med. Grp., Inc, 640 F. Supp. 3d 885, 908 (N.D. Cal. 2022)).  Further, 
United maintains that § 422.504(l) relates to “accuracy,” and Gonite does not challenge 
the accuracy of enrollment information or any information that United provides to CMS.  

Id.  United does not contest the falsity of express or implied false certifications under 
other subsections of 42 C.F.R. § 422.504, thus the Court considers only whether a false 
certification was made under § 422.504(l).                                
The Court agrees with United that the completeness or accuracy of enrollment 
information is not at issue in this case.  But aside from acknowledging the dearth of 
binding legal authority, United does not identify any reason for the Court to rule, as a 
matter of law, that illegal marketing practices cannot render enrollments invalid.  In its 
contract with CMS, United was required to certify “valid[]” enrollment.  42 C.F.R. § 
422.504(l).  United asks the Court to ignore the “validly enrolled” component or translate 
it to read enrolled based on “accurate” enrollment data.  See Doc. 69-1 at 25 (“[T]the 

C.F.R. provision applies only to accuracy.”).  But on its face the provision plainly requires 
United to certify that “each enrollee … is validly enrolled … and the information relied 
upon by CMS in determining payment … is accurate, complete, and truthful.”  Id.  
(emphasis added).  United’s interpretation would render the “validly enrolled” 
requirement meaningless, and thus the Court rejects it.  See In re Walter Energy, Inc., 
911 F.3d 1121, 1146 (11th Cir. 2018) (“[W]e generally construe a statute so that no 
clause, sentence, or word is rendered superfluous, void, or insignificant.”) (quoting TRW 
Inc. v. Andrews, 534 U.S. 19, 31 (2001)).                                 
Gonite has plausibly pled falsity.                                   
3. Gonite plausibly pleads FCA materiality                           
FCA claims can only be supported by material misrepresentations.  Universal 
Health Servs., Inc. v. United States ex rel. Escobar, 579 U.S. 176, 178 (2016).  The FCA 
“defines ‘material’ to mean ‘having a natural tendency to influence, or be capable of 

influencing, the payment or receipt of money or property.’”  Id. at 182 (quoting 31 U.S.C. 
§ 3729(b)(4)).  The materiality requirement is “rigorous” and “demanding.”  Id. at 192, 
194.  “And while several factors can be relevant to the analysis, ‘materiality cannot rest 
on a single fact or occurrence as always determinative.’”  Bibby, 987 F.3d at 1347 (citing 
Escobar, 579 U.S. at 191).  Although “no single factor is dispositive, some factors that 
are relevant to the materiality analysis include: (1) whether the requirement is a 
condition of the government's payment, (2) whether the misrepresentations went to the 
essence of the bargain with the government, and (3) to the extent the government had 
actual knowledge of the misrepresentations, the effect on the government's behavior.”  
Id.  United argues that the alleged false certifications based on HIPAA and marketing 

violations were not material to the government’s payment decision.6  Doc. 69-1 at 26.  
     a. Condition of payment                                         
For the first factor, “the Government's decision to expressly identify a provision as 
a condition of payment is relevant, but not automatically dispositive” of materiality.  
Bibby, 987 F.3d at 1343 (citing Escobar, 579 U.S. at 194).  Gonite alleges that “[a]s a 
condition for receiving monthly payments from CMS, a MAO must … attest to the fact 
that each enrollee for whom the organization is requesting payment is validly enrolled in 


6 United does not contend that Gonite’s allegations of materiality with respect to its alleged AKS false 
certifications are insufficient.  Doc. 69-1 at 26-29.                     
a Medicare Advantage plan offered by the MAO and that the information relied upon by 
CMS in determining payment is accurate, complete, and truthful.”  Doc. 52 ¶ 73 (citing 
42 C.F.R. § 422.504(l)) (emphasis added).                                 
United argues that compliance with marketing and HIPAA rules are not conditions 

of payment because “‘general statements that an entity must comply with applicable 
regulations [are] insufficient’” to satisfy the first factor.  Doc. 69-1 at 27 (citing United 
States ex rel. Holt v. Medicare Medicaid Advisors, Inc., 115 F.4th 908, 920 (8th Cir. 
2024); and United States ex rel. Wilkins v. United Health Grp., Inc., 659 F.3d 295, 308 
(3d Cir. 2011)).  In Holt, the Eighth Circuit considered an MAO’s certification under 42 
C.F.R. § 422.504(h) and determined that such certification did not render compliance 
with marketing rules a condition of payment.  115 F.4th at 920.  The relator in Holt, 
however, did not plead HIPAA violations as part of the alleged marketing scheme.   
HIPAA compliance is an express condition of payment.  42 C.F.R. § 422.504(h) 
specifically names compliance with “HIPAA administrative simplification rules at 45 CFR 

parts 160, 162, and 164” as a contract requirement.  See Wilkins, 659 F.3d at 313-314 
(holding that compliance with the AKS is a condition of payment under Medicare Part C 
because “Medicare regulations specifically name the AKS as a statute that is ‘designed 
to prevent or ameliorate fraud, waste, and abuse’”) (quoting 42 C.F.R. § 422.504(h)).  
Further, the Ninth Circuit has determined that an MAO’s certification under 42 C.F.R. § 
422.504(l) is an express condition of payment.  See United States ex rel. Silingo v. 
Wellpoint, Inc., 904 F.3d 667, 673 (9th Cir. 2018) (“[I]t is an express condition of 
payment that a Medicare Advantage organization ‘certify (based on best knowledge, 
information, and belief) that the [risk adjustment] data it submits … are accurate, 
complete, and truthful.’” (quoting 42 C.F.R. § 422.504(l)(2)).            
On the other hand, Gonite has not identified any provision that clearly designates 
compliance with marketing rules a condition of payment.  Likely for that reason, Gonite 

stated at the motion hearing that he ultimately may pursue an implied certification 
theory.  See Marsteller ex rel. United States v. Lynn Tilton, Patriarch Partners, LLC, 880 
F.3d 1302, 1308 n.13 (11th Cir. 2018) (explaining that “an FCA action is available on an 
implied certification theory even absent an express designation as a condition of 
payment, where the requirement plainly satisfies materiality”).  As discussed, whether 
HIPAA and marketing violations render enrollments invalid under 42 C.F.R. § 422.504(l) 
is a fact question—there is no express certification of compliance with marketing rules 
to establish an express condition of payment in this provision.           
In sum, compliance with HIPAA administrative rules is an express condition of 
payment, but compliance with marketing rules likely is not.               

     b. Essence of the bargain                                       
Gonite plausibly alleges that the HIPAA and marketing violations go “to the 
essence of the bargain with the government.”  Bibby, 987 F.3d at 1347.  United argues 
that “‘[r]egulatory violations that go to the essence of Medicare’s programs would have 
to impact [the] ability to provide healthcare services to those who qualify.  Marketing 
violations … likely do not hinder CMS’s or a carrier’s ability to provide those medical 
services.’”  Doc. 69-1 at 28 (citing Holt, 115 F.4th at 920).  The Court disagrees that the 
purpose of the contract between CMS and United can be so narrowly construed.    
As Gonite alleges, “safeguarding vulnerable patients from being illegally recruited 
into [a] Part C plan in the first place” is an essential rather than an ancillary component 
of the Medicare Part C program.  Doc. 52 ¶ 59.  The factual allegations set forth in the 
complaint are substantial and concerning: by colluding with SNFs to refer patients and 

provide HIPAA-protected information, United exploited a fiduciary-like relationship 
between the patients and SNFs for the precise reason that SNFs were in a position to 
offer United the information it needed to enroll more patients.  The complaint plausibly 
alleges that the HIPAA and marketing violations deprived a vulnerable population of the 
opportunity to make an informed choice about their medical care, fundamentally 
impacting the purpose of a program designed to benefit the elderly and disabled.   
Moreover, Gonite argues that the HIPAA and marketing violations are at the core 
of CMS’s contract because the alleged “widespread, multi-year fraudulent scheme [] 
requires that the SNFs participate in the illegal marketing scheme in order … to obtain 
the ISNP contract.”  Doc. 74 at 19.  In short, CMS does not make payments without 

enrollments, and Gonite alleges that the enrollments at issue would not have occurred 
but for United’s fraudulent scheme because United would not enter into contracts with 
SNFs unless the SNFs agreed to provide HIPAA-protected information and refer 
patients.  See Doc. 52 ¶ 367 (“[W]hat triggers the payment of the capitated payment 
claim … is the patient’s enrollment in the ISNP, an enrollment that would not have 
occurred without the illegal marketing.”); id. ¶ 206 (“[United] offered to provide and 
provided remuneration, that is, the opportunity to participate in the UnitedHealth 
Defendants’ provider network, to induce the Skilled Nursing Facilities to steer and refer 
their Medicare residents to the ISNPs.”).  Gonite has plausibly alleged that compliance 
with HIPAA and marketing rules goes to the “essence of the bargain.”  This factor 
weighs in favor of materiality.                                           
     c. Government enforcement                                       
The third factor turns on whether the Government would deny United’s Medicare 

payments if it knew of the alleged violations.  If the Government “refuses to pay claims 
in the mine run of cases based on noncompliance” with a particular rule, then the 
requirement is almost certainly material.  Escobar, 579 U.S. at 194-95.  In contrast, if 
the Government “regularly pays a particular type of claim in full despite actual 
knowledge” of the violations, this weighs against a finding of materiality.  Id.  
This factor, for now, is neutral.  The record contains no evidence of how CMS 
responds when it has actual knowledge of marketing or HIPAA violations.  See Holt, 115 
F.4th at 919 n.5 (“[I]t would be illogical to require a relator (or the United States) to plead 
allegations about past government action in order to survive a motion to dismiss … 
Indeed, the Government's legal investigations are often conducted in secrecy; we do not 

expect [a relator] to know precisely the Government's prosecutorial practices without the 
benefit of discovery.”) (citing United States ex rel. Lemon v. Nurses To Go, Inc., 924 F.3d 
155 (5th Cir. 2019); United States ex rel. Prather v. Brookdale Senior Living Cmtys., 
Inc., 892 F.3d 822, 831 (6th Cir. 2018) (internal quotations omitted).    
In weighing the three factors, the Court finds that Gonite has plausibly alleged 
materiality.                                                              
4. Gonite plausibly pleads FCA scienter                              
“With regard to scienter, a relator must show that the defendant acted ‘knowingly,’ 
which the FCA defines as either ‘actual knowledge,’ ‘deliberate ignorance,’ or ‘reckless 
disregard.’”  United States ex rel. Phalp v. Lincare Holdings, Inc., 857 F.3d 1148, 1155 
(11th Cir. 2017) (citing 31 U.S.C. § 3729(b)).  This standard was designed to include 
“those who fail ‘to make such inquiry as would be reasonable and prudent to conduct 
under the circumstances.’”  Urquilla-Diaz, 780 F.3d at 1058 (citation omitted).  Although 

relators “must state with particularity the circumstances constituting fraud,” they may 
generally allege scienter under Rule 9(b).  Id. at 1051; United States ex rel. Matheny v. 
Medco Health Solutions, Inc., 671 F.3d 1217, 1224 (11th Cir. 2012).  With respect to 
corporations, all material facts known by its officers and agents who are working for the 
corporation's benefit are imputed to the corporation.  Badger v. S. Farm Bureau Life Ins. 
Co., 612 F.3d 1334, 1347 (11th Cir. 2010).  Thus, “where the [complaint] gives specific, 
detailed notice to [the] defendant of what wrongdoing it is alleged to have engaged in, 
and which of its agents or representatives were purportedly involved,” the complaint 
need not “identify a particular corporate agent who made a certain statement or 
decision” to satisfy Rule 9(b).  United States v. Crumb, 2016 WL 4480690 at *21 (S.D. 

Ala. Aug. 24, 2016).                                                      
United contends that Gonite cannot plausibly allege that United acted with 
scienter.   First, United argues that “although Relator claims to have personal 
knowledge regarding certain marketing activities and contractual payments made to 
SNFs, he does not allege ‘to have observed the submission of an actual false claim’ and 
did not ‘personally participate in the submission of false claims.’”  Doc. 69-1 at 30 
(quoting Est. of Helmly v. Bethany Hospice & Palliative Care of Coastal Ga., LLC, 853 F. 
App’x 496, 502 (11th Cir. 2021).  As discussed in the context of presentment, the Court 
rejects that argument.  Gonite alleges that he observed and was a participant in the 
submission of false claims, i.e., enrollments.  See Doc. 52 ¶¶ 226-233.  Gonite plausibly 
alleges personal knowledge about the false claims submitted to the Government.  
United next argues that Gonite cannot support his allegation that the defendants 
“‘knew their illegal marketing and kickback schemes were unlawful.’”  Doc. 69-1 at 30 

(quoting Doc. 52 ¶ 361).  Specifically, United maintains that Gonite improperly “tries to 
impute the ‘collective knowledge’ of himself and his supervisor to the entire enterprise.”  
Id.  But Gonite’s knowledge and that of his supervisors can be imputed to United.  
Badger, 612 F.3d at 1347.  The complaint describes specific examples of wrongdoing 
and identifies specific corporate officers who engaged in wrongdoing.  For example, 
Gonite alleges that the illegal marketing scheme and AKS violations began “when 
James Rodgers took over as the Director of Sales for Georgia, Alabama, and Florida.”  
Doc. 52 ¶  174.  He further alleges that a Vice President based in New York participated 
in calls discussing the illegal schemes and put “enormous pressure on Rodgers and set 
unreasonable sales goals that could only be met through improper marketing.”  Id. ¶¶ 

181, 202.  The complaint proceeds to describe in detail the resulting marketing and anti-
kickback violations.  See, e.g., Doc. 52 ¶¶ 170-202; 203-221.  Moreover, the complaint 
identifies both internal policies and certifications of compliance that establish United’s 
awareness of the illegality of its marketing and AKS violations.  See, e.g., id. ¶¶ 58, 71-
75, 128, 149-162, 163-169, 356-64, 371.                                   
Gonite has plausibly pled scienter.                                  
C. Gonite plausibly pleads AKS violations                                 
United argues that Gonite fails to plead the AKS theory of his FCA claims 
because he does not sufficiently allege (1) remuneration to induce referrals; (2) 
referrals; (3) claims that resulted from the alleged kickbacks; and (4) that United acted 
knowingly and willfully.  Doc. 69-1.                                      
1. Remuneration to induce referrals                                  
     a. “One purpose” or “motivating factor”                         

“An AKS violation requires the offering or payment of ‘remuneration’ to induce a 
transaction.”  United States ex rel. Heller v. Guardian Pharmacy, LLC, 521 F. Supp. 3d 
1254, 1278 (N.D. Ga. 2021) (citing Bingham v. HCA, Inc., 783 F. App'x 868, 873 (11th 
Cir. 2019).  See 42 U.S.C. § 1320a-7b(b)(2)(A), (B).  Gonite and the Government 
maintain that a relator need only sufficiently allege that “one purpose” of the 
remuneration was to induce Medicare referrals.  Docs. 74 at 24-25; 77 at 7 (citing 
Heller, 521 F. Supp. 3d at 1271) (“Courts are clear that an AKS violation exists if one 
purpose of the alleged remuneration was to induce Medicare purchases, even if other 
legitimate purposes for the remuneration existed”) (collecting cases) (internal quotations 
and citations omitted)).  United argues that the “one purpose” test “ignores economic 

realities inherent to [Medicare Advantage]” because “the government explicitly 
recognizes that value-based care arrangements may inherently result in ‘referrals.’”  
Doc. 69-1 at 33 (citing 85 Fed. Reg. 77684, 77733 (Dec. 2, 2020)).  Further, United 
laments that “applying the one purpose test in the context of value-based care … would 
require a determination of whether the value-based care arrangement at issue naturally 
resulted in referrals or was instead willfully designed to unlawfully induce them.”  Doc. 
84 at 17-18.                                                              
No court has replaced the widely accepted “one purpose” test with a “motivating 
factor” test.  See United States v. McClatchey, 217 F.3d 823, 834 (10th Cir. 2000) 
(adopting the one-purpose rule); United States v. Omnicare, Inc., 663 F. App’x 368 (5th 
Cir. 2016); Heller, 521 F. Supp. 3d at 1271.  The “motivating factor” language comes 
from a footnote in McClatchey where the court ultimately adopted the “one purpose” 
test.  217 F.3d at 834 n.7.  For the following reasons, the Court declines to invent a 

“motivating factor” test.                                                 
First, United acknowledges that HHS has created “several AKS safe harbors 
specifically for value-based care arrangements.”  Doc. 84 at 17.  Thus, it appears HHS 
has already carved out exemptions to address the policy concerns raised by United.  
Moreover, courts applying the “one purpose” test, and the value-based care regulations 
themselves, have easily recognized the ultimate distinction that United deems unduly 
“problematic”—a natural consequence is not the same as a “purpose” and juries are 
capable of determining the difference.  See United States v. Omnicare, Inc., 663 F. 
App’x 368 (5th Cir. 2016) (“There is no AKS violation … where the defendant merely 
hopes or expects referrals from benefits that were designed wholly for other purposes); 

United States v. McClatchey, 217 F.3d 823, 834 (10th Cir. 2000) (same); 85 Fed. Reg. at  
77733 (“[C]hanges in referral patterns alone are not the goal of a value-based 
arrangement but may be the consequence.”).  Distinguishing between a “purpose” and 
a collateral hope or expectation is precisely the role of a jury.  McClatchey, 217 F.3d at 
834 n.7.  The value-based care backdrop of this case thus does not warrant exceptional 
treatment for United.                                                     
     b. Illegal remuneration                                         
Remuneration under the AKS “include[s] anything of value in any form 
whatsoever,”—“directly or indirectly, overtly or covertly, in cash or in kind.”  Heller, 521 F. 
Supp. 3d at 1266.  As discussed, a relator must plausibly allege that one purpose of the 
remuneration was to induce Medicare referrals.  United argues that the alleged 
kickbacks do not constitute illegal remuneration under the AKS.  Doc. 69-1 at 33-37.  
Gonite responds that he sufficiently pleads the following forms of illegal remuneration: 

the opportunity to contract and implementation and incentive payments.  Doc. 74 at 24.   
          i. The opportunity to contract                             
Gonite maintains that the opportunity to contract with United was illegal 
remuneration because it was something of value leveraged for the purpose of inducing 
referrals.  Doc. 74 at 24 (citing United States v. Bay State Ambulance & Hospital Rental 
Service, Inc., 874 F.2d 20, 29 (1st Cir. 1989) and United States v. SouthEast Eye 
Specialists, PLLC, 570 F. Supp. 3d 561, 576 (M.D. Ten. 2021)).  Specifically, Gonite 
alleges that each SNF’s opportunity to do business with United was “contingent upon 
the SNF participating in [United’s] illegal marketing efforts and meeting a quota of 
enrollees.”  Doc. 52 ¶ 205.  In other words, “[United] offered to provide and provided 

remuneration, that is, the opportunity to participate in the UnitedHealth [] provider 
network, to induce the Skilled Nursing Facilities to steer and refer their Medicare 
residents to the ISNPs.”  Id. ¶ 206.                                      
United argues that the contracts alleged were nothing other than “typical, arms’-
length agreements to pay for services and quality delivered to Medicare beneficiaries of 
the type that every MAO running an I-SNP must execute with SNFs.”  Doc. 84 at 21.  
Taking the factual allegations as true, this argument clearly fails.  As discussed, Gonite 
alleges that each SNF’s opportunity to contract with United was contingent on the SNF’s 
participation in marketing and HIPAA violations to induce referrals.  Doc. 52 ¶¶ 205-206.  
This is the opposite of a “typical, arms’ length agreement.”  See, e.g., Doc. 52 ¶ 237 (“In 
order to obtain the opportunity to contract with United … SNFs were instructed “to 
provide patient lists and patients’ PHI … so that the UnitedHealth Defendants’ 
employees could improperly target the patients or their responsible parties.”).   

Furthermore, the AKS was designed to capture a wide range of kickbacks and 
schemes.  42 U.S.C. § 1320a-7b(b)(2)(A), (B); see United States ex rel. Hart v. 
McKesson Corp., 96 F.4th 145, 155 (2d Cir. 2024) (explaining that the “plain language 
[of the AKS] is expansive” and Congress created both statutory exceptions and 
regulatory regimes “to cabin the statute’s broad reach”).  While it may be the case that 
an opportunity to contract alone, without the condition of participation in an illegal 
marketing scheme, would not constitute remuneration to induce referrals, the fact that 
the contracts alleged here were contingent on such conduct is sufficient to render the 
opportunity to contract unlawful remuneration.                            
          ii. Incentive and implementation payments                  

Gonite alleges that United paid incentive and implementation payments to SNFs 
to induce enrollments.  See, e.g., Doc. 52 ¶¶ 212-221.  United argues that the incentive 
payments are “harmless” because they “reward clinical performance” and because 
“enrollment in a Medicare Advantage plan necessarily comes with payment,” thus 
payments always increase as enrollments increase.  Docs. 69-1 at 25-36; 84 at 22.  
Regarding the implementation payments, United contends that Gonite has failed to 
satisfy Rule 9(b) because he does not allege “which SNFs received implementation 
payments, when they received them, and how much they amounted to.”  Doc. 69-1 at 
36.                                                                       
It is true that Gonite alleges potentially proper purposes for the incentive 
payments.  Doc. 52 ¶¶ 142-147.  But he also alleges that he personally overheard 
conversations among United sales personnel and leadership about using     
implementation and incentive payments to convince SNFs to refer more patients.  Id. ¶¶ 

216; 219.  Again, under the “one purpose” test, incentive payments can be designed to 
both induce referrals (i.e., increase enrollments) and reward SNFs for achieving quality 
or utilization measures.  While Gonite does not allege which SNFs received the 
implementation payments besides one, he alleges that he personally delivered 
payments, the amounts of the payments, and who approved and directed him to make 
the payments.  See Doc. 52 ¶¶ 212-216.  And despite Gonite’s allegation that 
implementation payments were specifically designed to induce referrals,7 United does 
not argue a proper purpose for the implementation payments at all.  See Docs. 69-1; 84. 
Finally, United does not argue now that the incentive or implementation 
payments fall within a statutory exception or regulatory “safe harbor,” which are 

affirmative defenses.  Yet United suggests in a footnote that the value-based care safe 
harbors do apply to the remuneration alleged, which gives the Court pause about why 
United argues that the payments alleged are not within the ambit of the AKS.  Doc. 84 at 
15-16 n.7 (“[M]ultiple safe harbors have been designed to support payment systems like 
the one Relator challenges.  A finding that the alleged remuneration streams do not fall 
within a safe harbor would undermine and disrupt participation in that system.”) 
(emphasis in original).  No doubt, United will advance a safe harbor defense.  But for 



7 Doc. 52 ¶¶ 212-216.                                                     
now, the Court cannot say as a matter of law that the incentive and implementation 
payments alleged do not constitute unlawful remuneration.                 
Gonite has plausibly pled remuneration to induce referrals.          
2. Referrals                                                         

United argues that Gonite “has not alleged that SNFs were induced to provide 
‘referrals.’”  Doc. 69-1 at 37.  United argues that at most, Gonite alleges that “residents 
were approached about the possibility of enrolling in the I-SNP outside of the ‘consent 
to contact’ process; they were not ‘referred’ into I-SNP enrollment, forced to enroll, or 
required to remain enrolled.”  Id.  Gonite and the Government contend that United 
construes “referrals” under the AKS too narrowly.  Docs. 74 at 25; 77 at 13.  The Court 
agrees.  See Stop Illinois Health Care Fraud, LLC v. Sayeed, 957 F.3d 743, 750 (7th Cir. 
2020) (“[R]eferral under the Anti-Kickback Statute is broad, encapsulating both direct 
and indirect means of connecting a patient with a provider. It goes beyond explicit 
[referrals or] recommendations to include more subtle arrangements.”); United States v. 

Cooper, 38 F.4th 428, 432-433 (5th Cir. 2022) (same).  There is nothing in the text of the 
AKS that warrants the conclusion that connecting residents to United’s ISNP is not a 
referral under the statute.                                               
Gonite has plausibly pled referrals.                                 
3. AKS causation                                                     
United argues that Gonite has not sufficiently alleged the necessary causal link 
between AKS violations and false claims.  Doc. 69-1 at 39.  United maintains that the 
2010 amendment to the AKS requires but-for causation, thus, a “relator must show that 
the alleged false claims would not have been submitted ‘but for’ the alleged 
remuneration.”  Id.  Gonite responds that the Eleventh Circuit imposes a lesser 
causation standard to claims brought under the 2010 amendment, but regardless of the 
applicable standard, he says he has sufficiently pled causation.  Doc. 74 at 27-28.  
In McNutt ex rel. United States v. Haleyville Med. Supplies, Inc., 423 F.3d 1256, 

1259-1260, the Eleventh Circuit held that a violation of the AKS can form a basis for a 
claim pursuant to the FCA.  McNutt was decided before the 2010 amendment to the 
AKS, which added a provision that “a claim that includes items or services resulting 
from a violation of [the AKS] constitute[] a false or fraudulent claim for purposes of [the 
FCA].”  42 U.S.C. § 1320a-7b(g) 1320a-7b(g).  One district court in the Eleventh Circuit 
has held that the 2010 amendment does not require but-for causation.  United States ex 
rel. Heller v. Guardian Pharm. of Atlanta, LLC, 2023 WL 11909741 at *27–28 (N.D. Ga. 
Sept. 30. 2023).                                                          
While the Eleventh Circuit has not decided the question of which causation 
standard applies to claims brought under the 2010 amendment, three circuit courts have 

adopted the but-for causation standard.  See United States ex rel. Cairns v. D.S. Med. 
LLC, 42 F.4th 828, 835–36 (8th Cir. 2022) (holding that the phrase “resulting from” in the 
2010 amendment imposes a but-for causation requirement); United States ex rel. Martin 
v. Hathaway, 63 F.4th 1043, 1052–53 (6th Cir. 2023) (same); United States v. 
Regeneron Pharms., Inc., 128 F.4th 324, 330 (1st Cir. 2025) (same).  The Third Circuit 
has held that a lesser causation standard applies to claims brought under the 2010 
amendment.  United States ex rel. Greenfield v. Medco Health Sols., Inc., 880 F.3d 89, 
100 (3d Cir. 2018)).                                                      
In this case, Gonite does not rely solely on the 2010 amendment to establish 
falsity but also asserts a false certification theory under the FCA.  See Doc. 52 ¶¶ 54-58 
(alleging that United certified compliance with the AKS and such compliance was a 
material condition of payment) (citing 42 C.F.R. § 422.504(h)).  The same circuit courts 

that have imposed a but-for causation standard in claims brought under the 2010 
amendment have made clear that a causal link is not required for claims brought under 
a false certification theory.  See Regeneron, 128 F.4th at 333-334 (“[T]he 2010 
amendment offers a pathway to establish falsity in FCA actions based on AKS violations 
without reliance on the false certification theory … [C]laims under the 2010 amendment 
run on a separate track than do claims under a false certification theory.”) (internal 
citations and quotations omitted); Cairns, 42 F.4th at 836 (same); Martin, 63 F.4th at 
1053 (same).  United conceded at the motion hearing that AKS causation is not an 
element in false certification claims.  A material misrepresentation of compliance with 
the AKS is enough.8  In sum, Gonite’s complaint is not subject to dismissal on AKS 

causation.  The Court need not determine the applicable causation standard for claims 
brought under the 2010 amendment on this motion.                          
  4. Scienter                                                        
To violate the AKS, the defendant must act “knowingly and willfully.”  42 U.S.C. § 
1320a-7b(b).  Regarding knowledge, a defendant “need not have actual knowledge of 
[the AKS] or specific intent to commit a violation of [the AKS].”  Id. § 1320a-7b(b), (h). 


8 Unlike false certification claims, some courts have found that claims brought under the 2010 amendment 
are material as a matter of law.  42 U.S.C. § 1320a-7b(g).  See, e.g., Guilfoile v. Shields, 913 F.3d 178, 
190 (1st Cir. 2019) ( “[T]he AKS amendment … obviat[es] the need for a plaintiff to plead materiality.”); 
United States ex rel. Heller v. Guardian Pharmacy, LLC, 521 F. Supp. 3d 1254, 1277–79 (N.D. Ga. 2021) 
(collecting cases).                                                       
Though “willfully” is not defined in the AKS, it requires “the specific intent to do 
something the law forbids.”  United States v. Vernon, 723 F.3d 1234, 1256 (11th Cir. 
2013).                                                                    
United argues that Gonite has failed to sufficiently allege scienter because there 

is no “concealment” in this case—many of the alleged kickbacks were memorialized in 
written agreements.  Doc. 69-1 at 41.  But concealment is not an element of an AKS 
claim; United only argues that in “most AKS cases, there is evidence of concealment.”  
Id.  Gonite has alleged that United was aware of its obligation to comply with the AKS 
and still offered kickbacks, including the opportunity to contract, to induce referrals.  
See, e.g., Doc. 52 ¶¶ 58, 72, 170, 363.  And the mere fact that certain agreements were 
in writing does not mean the complaint is lacking allegations of concealment, deception, 
or disguise.  Gonite’s allegations, taken as true, support an inference that United’s 
scheme to induce referrals via illegal conduct was concealed, for example, within 
payment arrangements purporting to reward clinical quality and as an unwritten 

condition of its contracts with SNFs.  Gonite need only plead scienter generally under 
Rule 9(b), and he has carried this light burden.                          
Gonite has plausibly alleged scienter.                               
D. Remaining FCA claims                                                   
United maintains that the other FCA claims in the complaint should be dismissed.  
Doc. 69-1 at 43.  United’s brief argument on the reverse false claim and Georgia False 
Medicaid Claims Act claim is this: if the Court finds that Gonite fails to state a claim 
under 31 U.S.C. § 3729(a)(1)(A) and (B), these claims should likewise fail.  Docs. 69-1 
at 42-43; 84 at 30-32.  The Court determined that Gonite plausibly pled violations of § 
3729(a)(1)(A) and (B).  Thus, Gonite has plausibly pled his reverse false claim and state 
law claim.                                                                
On the fraudulent inducement claim, United initially maintains that “a successful 
fraudulent inducement claim requires a completely different set of facts” that Gonite 

“cannot possibly allege.”  Doc. 69-1 at 42.  But United proceeds to argue that Gonite 
fails to identify “the who, what, where, when, and how … the alleged fraud took place”—
the exact basis for dismissal it raised for FCA presentment.  Id.  The Court considered 
and rejected argument in the presentment context.  Thus, Gonite has plausibly pled 
fraudulent inducement.9                                                   
Finally, on the false claims conspiracy claim under 31 U.S.C. § 3729(a)(1)(C)), 
Gonite simply alleges that United “entered into a conspiracy or conspiracies through 
their employees and others to defraud the United States.”  Doc. 52 ¶ 401.  To state a 
claim for conspiracy under the FCA, the plaintiff must show “(1) that the defendant 
conspired with one or more persons to get a false or fraudulent claim paid by the United 

States; (2) that one or more of the conspirators performed any act to effect the object of 
the conspiracy; and (3) that the United States suffered damages as a result of the false 
or fraudulent claim.”10  Gose v. Nativ Am. Serv. Corp., 109 F.4th 1297 (11th Cir. 2024) 
(citing Corsello v. Lincare, Inc., 428 F.3d 1008, 1014 (11th Cir. 2005)).  Rule 9(b)'s 
heightened pleading standard applies to claims brought under the conspiracy provision.  
Corsello, 428 F.3d at 1014.  United argues that Gonite’s allegation is insufficient 


9 However, the Court notes that Gonite’s fraudulent inducement claim appears to be duplicative and thus 
likely unnecessary.                                                       

10 It is not clear whether damages remain a required element under the new conspiracy provision 
following the 2009 amendments.  Gose, 109 F.4th at 1297 n.28 (citations and quotations omitted).  
because he “alleges nothing about who conspired with who and how this constitutes a 
conspiracy under the law.”  Doc. 84 at 32.  The Court agrees.  See United States v. HPC 
Healthcare, Inc., 723 F. App’x 783, 791 (11th Cir. 2018) (dismissing a complaint which 
“alleged merely that ‘Defendants knowingly conspired with each other’ to violate §§ 

3729(a)(1)(A) and 3729(a)(1)(B)”).  Gonite’s failure to identify which individuals or 
entities conspired with each other, or to cite specific facts that show an unlawful 
agreement, is fatal to his conspiracy claim.  Accordingly, the FCA conspiracy claim is 
DISMISSED without prejudice.                                              
                    IV. CONCLUSION                                   
For the reasons discussed, United’s motion to dismiss (Doc. 69) is DENIED in 
part and GRANTED in part.11                                               
SO ORDERED, this 23rd day of April, 2025.                            
                              S/ Marc T. Treadwell                   
                              MARC T. TREADWELL, JUDGE               
                              UNITED STATES DISTRICT COURT           








11 In his response to United’s motion to dismiss, Gonite requests leave to amend the amended complaint 
“[i]f the Court [d]eems the [first amended complaint] [i]nadequate.”  Doc. 74 at 31.  Gonite’s request in a 
responsive brief is not a proper motion to amend.  See Newton v. Duke Energy Fl., LLC, 895 F.3d 1270, 
1277 (11th Cir. 2018) (“Where a request for leave to file an amended complaint simply is imbedded within 
an opposition memorandum, the issue has not been raised properly.”).  Accordingly, Gonite’s request to 
amend is DENIED.