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A&G’s Qui Tam Team Makes Strides in High Profile Whistleblower Case


After filing a Motion for Summary Judgment almost 10 months ago, A&G’s qui tam group and whistleblower Chester Saldivar received a favorable ruling from the U.S. District Court for the Northern District of Georgia.

The qui tam case of U.S. ex. rel. Chester Saldivar v. Fresenius Medical Care Holdings, Inc. alleges that FMC violated the False Claims Act  by billing Medicare for drugs the Company received from manufacturers for free.

FMC is one of the world’s largest healthcare providers of renal failure treatment. The relator, Mr. Saldivar, who previously worked for Fresenius as an equipment technician, alleges the company knowingly and intentionally billed Medicare for tens of millions of dollars worth of free drug overfill each year, violating the Medicare Act.  (Overfill is the term used to describe the FDA mandated extra product found in vials of drugs.)  The Act restricts reimbursement to “expenses incurred,” or what the company actually paid for, in providing health care to eligible recipients.

In the Motion for Summary Judgment filed by our Qui Tam team, Ashcraft & Gerel argued that billing  for overfill is prohibited by this language in the Medicare statute .  Furthermore,  A & G argued that because overfill is not included in Congressionally mandated calculations of the Average Sales Price (ASP) to which Medicare reimbursement for  end stage renal disease (ESRD) drugs has been pegged since 2006, Medicare cannot pay providers for overfill.  The Defendant took the position that because there was nothing in the law that specifically prohibited billing for overfill, the Company’s billing were legal.

The court ruled in Mr. Saldivar’s favor, stating:

The Court finds that, based on the facts here presented…Fresenius’s practice of  billing Medicare for overfill of Epogen and Zemplar [the two drugs in question] provided to patients constitutes a  false  claim because, as a matter of law, it represents billing for an expense the provider did not incur.

A&G congratulates both Mr. Saldivar and the Qui Tam team for this huge step forward in this case.

Click here to read the complete, official order.