Public Employees' Retirement System v. Amedisys, Inc.

769 F.3d 313, 2014 WL 4931411
CourtCourt of Appeals for the Fifth Circuit
DecidedOctober 2, 2014
DocketNo. 13-30580
StatusPublished
Cited by50 cases

This text of 769 F.3d 313 (Public Employees' Retirement System v. Amedisys, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Public Employees' Retirement System v. Amedisys, Inc., 769 F.3d 313, 2014 WL 4931411 (5th Cir. 2014).

Opinion

JAMES RODNEY GILSTRAP, District Judge:

Plaintiffs-Appellants Public Employees’ Retirement System of Mississippi and Puerto Rico Teachers’ Retirement System (collectively, “PERSM” or “Plaintiffs”) [317]*317are the Lead Plaintiffs and, on behalf of the Class, filed suit under Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 (“Exchange Act”) against Defendants-Appellees Amedisys, Inc. (“Amedi-sys”) and seven current or former board members of Amedisys including the company’s chairman and CEO William Borne, and officers Dale E. Redman, Larry Graham, Gregory Browne, John F. Giblin, Alice Ann Schwartz, and Jeffrey Jeter (collectively, “Defendants”) claiming that Amedisys defrauded investors by concealing a Medicare fraud scheme. PERSM alleges that despite knowledge or reckless disregard of Amedisys’s unlawful billing practices, Defendants issued materially false and misleading public statements to cause Amedisys securities to be traded at materially inflated prices from August 2, 2005 through September 28, 2010 (the relevant Class Period). As information concerning such fraudulent practices became known, the value of Amedisys securities dropped precipitously, which caused PERSM and the Class to suffer significant financial loss.

The district court granted a motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) and dismissed the lawsuit with prejudice. The Plaintiffs then filed a motion for reconsideration of the order granting dismissal and a request for leave to file an amended complaint, which the district court summarily denied. We reverse and remand.

I. FACTUAL AND PROCEDURAL BACKGROUND

Amedisys is a publicly traded corporation that provides home health services to patients with chronic health problems. Amedisys is compensated through Medicare’s Prospective Payment System (PPS) reimbursements based on the number of in-home visits provided to a given patient within the course of a sixty-day treatment period, called an episode. Medicare payments represent roughly 90% of the company’s reimbursements for services rendered from 2005-2009.

During the first part of the Class Period through December 31, 2007, the Medicare PPS provided a flat fee of approximately $2,200 for treatment of a patient with at least five but fewer than ten therapy visits in an episode. If the number of therapy visits within the episode increased to ten or more, Medicare paid approximately $2,200 more, essentially doubling the amount of reimbursement for services rendered for that patient. Medicare eliminated the ten-visit threshold on January 1, 2008 and revised the PPS to implement thresholds for increased reimbursements upon the occurrence of six, fourteen, and twenty therapy visits during an episode. This 2008 revision remained in effect throughout the remainder of the Class Period.

Under federal law, home health companies are entitled to Medicare reimbursement only for providing medically necessary services. 42 U.S.C.A. § 1395n(a)(2)(A)-(B). PERSM alleges that Defendants committed fraud by pressuring Amedisys employees into providing medically unnecessary treatment visits to patients in order to hit the most lucrative Medicare reimbursement thresholds. In the course of this fraudulent conduct, the Complaint alleges that Defendants made a series of materially false and misleading statements beginning on August 2, 2005, which artificially inflated the price of Am-edisys stock throughout the Class Period.

The Complaint alleges the truth of Am-edisys’s misrepresentations becáme publicly known through a series of five partial disclosures. As the truth gradually leaked into the market, the artificial inflation was [318]*318removed and the value of Amedisys securities significantly declined, causing economic loss to the Lead Plaintiffs and other members of the Class.

The first alleged partial disclosure is an online report published by Citron Research on August 12, 2008 that raised questions about Amedisys’s accounting and Medicare billing practices. On the same day, the price of Amedisys’s stock dropped 17.86% or $11.80 per share to close at $54.27. During a conference call with various investment firms on October 28, 2008 to discuss its third quarter earnings, Am-edisys touted its billing-related compliance programs and reassured investors that compliance is central to everything we do as a company ... Amedisys is a leader in disclosing detailed information.

The second alleged partial disclosure came about with the resignations of Amedisys’s President and CEO, Larry Graham, and the Chief Information Officer, Alice Ann Schwartz. This announcement was made on September 3, 2009 in a press release stating that the two executives were leaving “to pursue other interests.” On that day, Amedisys’s stock dropped 21.68% or $9.42 per share to close at $34.04.

The third alleged partial disclosure is an article published by the Wall Street Journal (WSJ) on April 26, 2010, reporting on Amedisys and including a detailed analysis of Medicare data indicating that the company might be “taking advantage of the Medicare reimbursement system.” The WSJ enlisted Henry Dove, a Yale professor, to analyze Medicare records to determine how often between 2005 and 2008 various home health companies sent therapists to patients’ homes during a 60 day treatment period and whether such visits coincided with Medicare financial incentives. Professor Dove’s results revealed a questionable pattern of home visits clustered around reimbursement targets. After the 2008 change in Medicare’s PPS threshold, the percentage of Amedisys patients getting 10 visits (the prior threshold) dropped by 50% while the percentage that got 14 visits (a new threshold) rose 33%, and the percentage getting 20 visits (another new threshold) increased 41%. Additionally, the article quoted a former Amedisys nurse as saying that “I was told ‘we have ten visits to get paid,’ ” and “[t]he tenth visit was not always medically necessary.” Within the WSJ Article was a statement from an Amedisys spokesperson, Kevin LeBlanc, declaring any suggestion that the company may have increased its number of therapy visits to receive higher reimbursements is “both incendiary and inaccurate.” The next day, Amedi-sys’s stock dropped 6.58% or $3.98 per share to close at $56.52.

The fourth alleged partial disclosure is a combination of three government investigations into Amedisys’s billing practices that commenced during the remainder of the Class Period. On May 12, 2010, the WSJ reported that the Senate Finance Committee (SFC) had launched an investigation to determine whether Amedisys deliberately boosted the number of home therapy visits to trigger higher Medicare reimbursements. Senator Charles Grass-ley was quoted as saying: “It appears that either the home health care reimbursement policy is flawed, some companies are gaming the system, or both. We’re working to figure out what’s going on.” The next day, Amedisys issued a public statement attempting to downplay the importance'of the SFC investigation and to otherwise reassure its investors: The letter of inquiry received from Senators Grassley and Baucus references an article published recently in The Wall Street Journal. The article told an incomplete story about the value of home health to patients, their [319]*319families, and the overall healthcare system. Despite these reassurances, however, the company’s stock dropped 7.97% or $4.48 per share to close at $51.73.

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769 F.3d 313, 2014 WL 4931411, Counsel Stack Legal Research, https://law.counselstack.com/opinion/public-employees-retirement-system-v-amedisys-inc-ca5-2014.