aps complaint

IN THE UNITED STATES DISTRICT COURTFOR THE NORTHERN DISTRICT OF GEORGIA

ATLANTADMSIDN

FILED IN L'LERKs OFFICEl1 .S .D .C. Atla nta

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UNITED STATES OF AMERICA }ex rel. MICHAEL CLAEYS, and }

STATE OF GEORGIA }ex rel. MICHAEL CLAEYS, }

}Plantiff-Relator, )

v. )

APS HEALTHCARE, INC., }APS HEALTHCARE BETHESDA, INC.,}and INNOVATIVE RESOURCE )GROUP, LLC d/b/a APS )HEALTHCARE NIIDWEST, )

Defendants. )

i :OCv.277Civil Action o .Jury Trial Demanded

FILED UNDER SEAL

3732(a), 31 U .S .C . § 3732(b), and 28 U.S.C. § 1345 .

i) ommNAL

COMPLAINT

The United States of America and the State of Georgia, by and through Relator Michael

Claeys, bringg this action under 31 U .S .C. §§ 3729-3732 ("False Claims Act") and O .C .G.A. §

49-4-168.1 et seq . ("State False Medicaid Claims Act") to recover all damages, penalties, and

other remedies established by the False Claims Act on behalf of the United States and himself

and the State False Medicaid Claims Act on behalf of the State of Georgia and himself, and

would show the following :

JURISDICTION AND VENUE

1 . This action arises under the False Claims Act, as amended, 31 U.S.C. §§ 3729 et seq .,

and the Georgia State False Medicaid Claims Act, O .C .G.A. § 49-4-168.1 et seq

2. This court has subject matter jurisdiction over this action pursuant to 31 U .S.C. §

Case 1:09-cv-02779-WSD Document 1 Filed 10/07/09 Page 1 of 21

3. This court has personal jurisd iction over the Defendants pursuant to 28 U .S.C. § 1331

and 31 U.S.C. § 3732(a) in that Defendants do or transact business in this jurisdiction and

portions of the violations of the False Claims Act and the State False Medica id Claims Act

described herein were carried out in this district .

4. Venue is proper in this district under 28 U.S.C. §§ 1391(b) and (c) and under 31 U .S.C. §

3732(a) .

THE PARTIES

5 . APS Healthcare, Inc. is a privately-held company headquartered in White Plains, New

York and incorporated in the state of Delaware .

6 . APS Healthcare Bethesda, Inc. is a privately-held company headquartered in Silver

Spring, Maryland and incorporated in the state of Iowa .

7. Innovative Resource Group, LLC dlb/a APS Healthcare Midwest is a privately-held

company headquartered in White Plains, New York and incorporated in the state of Wisconsin .

(Defendants APS Heal #licare, Inc.; APS Healthcare Bethesda, Inc .; and Innovative Resource

Group, LLC d/b/a APS Healthcare Midwest shall hereinafter be collectively referred to as

«APS»)

8. Innovative Resource Group, LLC d/bla APS Healthcare Midwest has contracted with the

state of Georgia to operate the Georgia Medicaid Management Program (hereinafter

"GAMMP").

9. APS Healthcare, Inc . ; APS Healthcare Bethesda, Inc .; and Innovative Resource Group,

LLC dlbla APS Healthcare Midwest all provided services under the GAMMP contract resulting

in improper billing to the State of Georgia .

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10. Relator Michael Claeys (hereinafter "Relator") is a resident of Marietta, Georgia and

former employee of APS .

11 . Relator's ten year employment at APS was marked by high performance reflected in high

customer satisfaction and multiple promotions, including a promotion to Executive Director II on

August 26, 2008, where he assumed supervision of the GAMMP program .

THE MEDICAID PROGRAM

12. Title XIX of the Social Security Act, 42 U .S.C. §§ 1396 et seq ., establishes Medicaid, a

federally assisted grant program for the States . Medicaid enables the States to provide medical

assistance and related services to needy individuals. The Centers for Medicare and Med icaid

Services ("CMS") administers Medicaid on the federal level. Within broad federal rules,

however, each state decides who is eligible for Medicaid, the services covered, payment levels

for services and administrative and operational procedures .

13 . At all times relevant to this Complaint, the United States provided funds to the States

through the Medicaid program pursuant to Title XIX of the Social Security Act, 42 U .S .C . §§

1396 et seq. Enrolled providers of medical services to Medicaid recipients are eligible for

payment for covered medical services under the provisions of Title XIX of the 1965

Amendments to the federal Social Security Act . By becoming a participating provider in

Medicaid, enrolled providers agree to abide by the rules, regulations, policies and procedures

governing claims for payment, and to keep and allow access to records and information as

required by Medicaid . In order to receive Medicaid funds, enrolled providers, together with

authorized agents, employees, and contractors, are required to abide by all the provisions of the

Social Security Act, the regulations promulgated under the Act, and all applicable policies and

procedures issued by the State .


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14. 42 C.F.R. § 455 et seq., expressly states that a provider must certify that it is in

compliance with all federal and state statutes and regulations in order to receive payment from

Medicare and/or Medicaid.

15 . The Georgia Department of Community Health's "Policies and Procedures for

Medicaid/PeachCare for Kids" (hereinafter "Medicaid Policies and Procedures") requires that, as

a general condition of participation, all enrolled providers "[c]omply with all State and Federal

laws and regulations related to furnishing MedicaicilPeachCare for Kids services ." Id. at 106(B) .

16. The Medicaid Policies and Procedures mandate that enrolled providers "[n]either bill the

Division for any services not performed or delivered in accordance with all applicable policies,

nor submit false . or inaccurate information to the Division relating to provider costs, claims, or

assigned certification numbers for services rendered ." Id. at 106(J).

17. The Medicaid Policies and Procedures also state that enrolled providers must "[a]ccept

responsibility for every claim submitted to the Division that bears the provider's name or

MedicaidlPeachCare for Kids provider number. Submission of a claim by a provider or his

agent, acceptance of a Remittance . Advice, or acceptance of claim payment constitutes

verification that the services were performed by that provider (or under his direct supervision, if

allowed by the Division) and that the provider authorized submission of the claim for

reimbursement. . . . Payments shall be deemed accepted when cashed, negotiated, or deposited,

including those payments deposited electronically ." Id. at 106(K) .

18. The Medicaid Policies and Procedures define "overpayment" to include a payment to a

provider that is "for a service not actually rendered by that provider" or "rendered by a provider

who failed to comply with all conditions of participation related to the service(s) for which a

claim was paid" or "for a service that does not comply with all requirements, terms and


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conditions for reimbursement detailed in the Division's Policies and Procedures manuals ." Idd at

Definitions, 30(d), (f), (j ) .

19 . The Medicaid Policies and Procedures require enrolled providers to "[r]efund any

overpayments or Advance Payments to the Division within required time frames ." Id. at

106(M).

20. According to the Medicaid Policies and Procedures, "[w]hen a provider believes a

negative adjustment is appropriate, the provider may adjust and resubmit a claim . . . . This will

result in a deduction from future reimbursement . A provider may also mail a check for the

appropriate amount . . ." Id. at 205(B) .

21 . The Department of Community Health encourages providers to self-audit in an effort to

identify claims errors and overpayments . Should an overpayment be discovered by the provider,

it "must alert the Department and work toward a resolution or refund ." Id. at 402.10 (emphasis

added).

22. Moreover, the provider must send the Program Integrity Unit with the Office of Inspector .

General a self disclosure letter detailing the potential overpayments, and that includes a

"Corrective Action Plan" describing actions that have been taken to correct the cause of the

overpayment and steps that will be taken to prevent such overpayments inthe future . Id

FRAUDULENT SCHEMES

23. APS's GAMMP contract with Georgia Medicaid and the Georgia Department of

Community Health (hereinafter "DCH") has been in effect since February 19, 2007 .

24. Under the guidelines of the GAMMP, APS agreed to "provide a full range of care

management and informatics services statewide to approximately 230,000 Medicaid


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beneficiaries with chronic conditions, including asthma, chronic obstructive pulmonary disease,

congestive heart failure, diabetes, HIV, mental illness and sickle cell anemia ."

25 . Medicaid pays APS $2 .24 per eligible member per month in exchange for mailings, a

nurse call line, and provider profiling .

26. Members with chronic diseases (e .g., Chronic Pulmonary Disease, Asthma, Diabetes,

Mental Illness, and Chronic Artery Disease) qualify for Disease Management ("DM") services

and are paid out by Medicaid at an additional rate of $31 .73 per participating member- per

month.

27. Members with these conditions and/or other acute high cost conditions also qualify for

Case Management ("CM") services and are paid out by Medicaid at -an additional rate of $55 .51

perparticipating member per month.

28 . APS operates a call center in Atlanta dedicated to reaching approximately 75,000

members out of the estimated 230,000 Georgia residents who qualify for either Disease

Management or Case Management services .

29. Members must consent to participate in the program (which can be done verbally, but

must be documented by APS) to be included on a monthly invoice .

30. Once a member is enrolled in either DM or CM, APS conducts an assessment of the

member in order to formulate a "care plan," which entails a list of goals to improve the

member's health .

31 . Once a care plan is completed, APS staff (typically nurses) contacts the member

telephonically, ranging from daily for members with acute needs, to monthly for those members

merely requiring ongoing maintenance and education .


32. Each month, APS bills the DCH between $1 .5 million and $2 million for supplying these

services under GANIlMP .

33. Prior to 2008, APS had no means of tracking its services or when it contacted members .

34. APS simply billed Medicaid for all eligible members, without having any reliable way of

knowing whether these members actually participated or received any services whatsoever .

35 . Between 2007 and 2008, APS Healthcare built an information system called Care

Connection to track its participation in GAMMP, including frequency of contact with members,

assessments, and care plans .

36. The completed tracking system, however, had numerous flaws that resulted in overbilling

to the State.

37. For example, certain glitches in the system removed members from the case load of a

particular nurse and eliminated any notice for follow up to occur by a different nurse .

38 . Another flaw with the system caused issues whenever a nurse left APS or ceased working

on GAMMP. The tracking system contained no simple method for transferring the case load of

one nurse - approximately 400-600 members - to other nurses .

39. This failure to assign the members to a new nurse left the members without any provision

of services in GAMMP .

40. These members received no DM or CM services from APS, in violation of the GAMMP

contract, but APS still billed Medicaid for their services aspartieipatingmembers.

41 . A third error with the system was a lack of an integrated reporting mechanism that could

readily identify whether an enrolled DM or CM member was in need of an assessment (required

upon admission and annually), care plan (formulated after each assessment), or contact at the

frequency as set out in a particular member's care plan .

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42. Without any means of alerting nurses that a service was necessary, members often failed

to receive the services required by GAMMP, but APS billed for the services as if they had been

provided to these members anyway .

43. Finally, the system failed to accurately update the status of members who lost their

eligibility or died .

44. Ineligible and deceased members continued to appear active in the system, and APS

billed the State for services alleged to have been provided to them.

45. Between 2007 and 2008, APS Healthcare improperly invoiced the DCH for services

rendered for approximately 12,000 Medicaid members who received no or inadequate treatment

from APS because they fell through the cracks of the inadequate tracking system .

46 . Quality Improvement Director, Connie Smith, first reported to the APS Executive

Leadership Team (consisting of Greg Scott, Jerry Vaccaro, John Tillotson, Joyce Tichy, and

John McDonough) about the system errors and resulting billing issues following an internal

record audit in or about October 2008 .

47. Upon discovering these problems, APS spent more than twoo months attempting to define

the exact number of members that received no services .

48 . By December 2008, it was evident to APS that there were between 8,000 and 12,000

members who had consented to DM or CM services, but who were receiving no or inadequate

services, for whom APS billed Medicaid .

49. Additionally, there was a group of several hundred members, some of who were

receiving services and some whoo were not, for whom consent was not documented . -

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50. An internal examination of APS's recordss found that from May 2007 through May 2008,

APB had enrolled and billed for 310 CM members and 2,433 DM members that it had never even

attempted to contact .

51. The 310 CM members and 2,433 DM members had been enrolled for many months

without APS ever attempting to contact them, and APS billed Medicaid for these patients for

every one of those months .

52. For example, 49 DM members had been enrolled in May 2007 whom APS had not

attempted to contact . APS billed Medicaid for $31 .73' per month for these 49 patients, resulting

in total overpayments by Medica id of $20,212.01 from May 2007 through May 2008 .

53. In total, from May 2007 through May 2008, APS had billed and was paid by Med icaid

$597,913 .67 for patients that it had enrolled in CM or DM services during that time, but that it

had not attempted to contact during those thirteen months, nor during the three months after.

54. APS continued to bill and be paid by Medicaid for these patients on a monthly basis after

May 2008 as well .

55 . This same internal review found that from May 2007 through May 2008, APS had

enrolled and billed for 980 CM members and 3,054 DM members that it had not successfully

contacted .

56. Similarly, the 980 CM members and 3,054 DM members had been enrolled for many

months without APS ever successfully contacting them, and APS billed Medicaid for these

patients for every one of those months .

57. For example, 107 CM members had been enrolled in May 2007 whom APS had not

successfully contacted in the subsequent sixteen months. APS billed Medicaid for $55.51 per


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month for these 107 patients, resulting in total overpayments by Medicaid of $77,214 .41 from

May 2007 through May 2008.

58 . In total, from May 2007 through May 2008, APS had billed and was paid by Medicaid

$1,119,121 .57 for patients that it had enrolled in CM or DM services during that time, but that it

had failed to successfully contact during the entire thirteen month span, nor the three months

after

59. APS continued to bill and be paid by Medicaid for these patients on a monthly basis after

May 2008 as well .

60 . In addition, in June 2008, APS enrolled 1,979 CM members and 1,538 DM members that

it did not contact in the following three months .

61 . APS billed and was paid by Medicaid monthly for these 1,979 CM members and 1,538

DM members .

62. A subsequent examination conducted on November 13, 2008 found that APS was

improperly billing an additional $378,715 .37 each month: $144,770 .08 per month for 2,608

members billed for CM (at a monthly rate of $55 .51 per member) who had never received an

initial assessment, and $233,945 .29 per month far. 7,373 members billed for DM (at a monthly

rate of $31 .73 per member) who had never received an initial assessment .

63. Once these numbers came to light in December 2008, Connie Smith noted in an APS

staff meeting that keeping these members on future invoices constituted Medicaid fraud .

64. Upon hearing this at the meeting, Senior Vice President Joanne Brown Lee instructed

Relater to limit Smith's involvement in this and other issues "around APS liability."


65. As a result of the initial findings of overbilling from Smith and other APS reporting staff,

in or about early January 2009, Lee ordered Relator to perform an individual record review to

ensure that active members would not be mistakenly discharged from the service .

66. Because only two employees were assigned to this project, the review was a time-

consuming process that prolonged the disenrollment of these members by an additional two to

three months, and thus kept them on the invoices during that time .

67. The purpose of the review and individual disenrollments, rather than one mass

disenrollment, was to create a slow decline in revenue rather than a single massive drop in

revenue.

68. The review merely confirmed what APS already knew and improperly kept the members

on the invoices in the meantime .

69. Relator estimates that this review resulted in additional revenue to APS of approximately

$500,000 to $700 ,000 during that period .

70. When Relator indicated to Lee that he should communicate to the DCH contract manager

(Aggie Russell) about these billing errors and APS's intent to repay Government fimds, Lee told

Relator that due to the sensitivity of the issue, she would seek direction from the Executive

Leadership Team.

71, Approximately 7-10 days later Lee forwarded the Relator a "script" for him to read over

the phone (authored by Chairman and CEO Greg Scott and National Operations Executive John

Tillotson, and copied to President and COO Jerry Vaccaro) .

72. As directed, Relator delivered the script in a phone conversation with Aggie Russell .

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73 . The script merely stated that APS wouldd be conducting a review to evaluate how .many

individuals were not serviced within a 90-120 day period (a policy instituted by APS, but not

approved by DCH} .

74. The script did not give any indication that APS had overfilled Medicaid or that APS

intended to repay any improperly obtained funds to the State .

75 . . Moreover, the script failed to mention any o f the issues which APS's prior review had

revealed.

76. While the script indicated that APS would inform Russell of its findings, Lee instructed

Relator prior to a contract management meeting the following month to not mention the results

to Russell unless he was asked about them .

77. The extent of the problem was never shared with DCH, and no discussion about

repayment of funds ever took place .

78. From around December 2008 to March 2009, under the supervision of Davaria Whitten

(an APS project manager assigned to investigate and clean up this problem), approximately

11,890 members, who had been enrolled in the program but never received even an initial

assessment, were disenrolled from DM or CM services, thus removing them from future billing .

79. When Relator approached Lee about repayment of improper Medicaid billing for these

members, Lee told him that "this was an Executive Leadership Team issue and to just focus on

strategies to enroll more people to make up for this loss ."

80. Concurrently, reengagement campaigns were implemented in an attempt to reconnect

with these members and continue billing, but less than 10% were successfully reengaged

81 . During the review process, in or about January 2009, Joanne Brown Lee was notified that

in addition to the above 12,000 members who were being disenrolled, there were other cases


where members hadd received initial assessments, and in some cases plans of care, but who had

not been contacted in over a year.

82. APS, however, had been billing the Government every month for services allegedly

provided to these members .

83. Unaware of the magnitude of the problem at that time, Lee instructed Relator to not

include this group in the initial disenrollment review, but to set up phone campaigns to reach out

to those members to reengage them .

84. When APS failed in its efforts to contact and reengage the majority of members that had

not received adequate services, in late April/early May 2009, Lee gave instructions to cease

reengagement efforts and begin a second round of disenroliments .

85 . By early May 2009, APS had determined that there were approximately 8,000 members

who fell within this category of receiving initial assessments but no follow-up contact.

86. Under Lee's direction, Relator initiated plans to disenroll these members .

87. Lee relayed to Relator a message from the APS Executive Leadership team that "they

don't want to hear anything about more disenrollments," and to just getthe clisenrollment project

done .

88. Relator encouraged his staff to rapidly identify and disenroll all members who had had no

contact from APS in more than six months .

89. Again, Relator referenced APS's obligation to repay Medicaid for these members, but he

received no response from Lee or the Executive Leadership Team .

90. From January to May 2009, the APS Executive Leadership Team instituted a hiring

freeze for GAMMP.

91 . During that same period, APS lost approximately one nurse per week to resignations .

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92. Relator pointed out to Lee, John Tillotson (APS National Operations Executive), and

Stephen Saunders (APS Chief Medical Officer) on several occasions that the nurse resignations

resulted in APS falling out of compliance with the required staffing provisions in the contract

between APS and DCH .

93 . Joanne Brown Lee informed Relator that Joyce Tichy (APS Chief Legal Officer) advised

the APS Executive Leadership Team that APS was not contractually obligated to follow what

was in APS's Request for Proposal to the Government .

94. Whenn the Department of Community Health conducted a review of the GAMMP

program in December 2008, it cited non-compliance with the minimum staffing requirements .

95. This violation was brought up at almost everyy contract management meeting between

APS and DCH.

96. Despite this non-compliance and the reducing workforce, APS Healthcare failed to hire a

single nurse to serve the influx of new GAMMP enrollees (up to 2,000 per month) .

97. As of May 2009, the average caseload for a nurse ranged from 400-600 members .

98. Additionally, as of May 2009, there were approximately 1,100 members who had

enrolled but hadd not received an assessment and approximately 9,000 members that did not even

have a nurse assigned .

99. The continued nurse shortages will lead to even more disenrollment of members who fail

to receive the contracted-for DM or CM services .

100. The slow process of hiring and training new nurses, in conjunction with the high turnover

rate at APS, resulted in more overbilling and members receiving no or inadequate DM or CM

services from APS .


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101 . The inordinately high caseload for each nurse severely limits the frequency at which

members with significant. health conditions can obtain help, resulting in direct violations of

APS's contract with the State of Georgia .

RETALIATION

102 . The more Relator spoke to his supervisors about the necessity of talking to the GAPi

contract manager about being understaffed needing to repay t he State of Georgia, the more

tension was created between him and his supervisors at APS .

103 . Although Relator was in charge of the execution of the GAMMP contract, and thus acted

as the liaison between the State and the rest of APS, Lee told Relator that repayment of improper

Medicaid billing was not his concern .

104. The tension between Relator and his supervisors hit its peak in late spring of 2009, when

the focus of APS executives was on the anticipated drop in revenue concurrent with the second

round of disenroilments .

105. On June 22, 2009, Relator was constructively discharged by Greg Scott (APS CEO and

Chairman of the Board) and Judy Ehrenreich ("Chief HR Officer") in violation of 31 U .S.C. §

3730(b) .

COUNT I

Violation of 31 U.S.C. § 3729 - False Claims Act

106. Relator hereby incorporates and reallege herein all other paragraphs as if fully set forth

herein.

107. As set forth above, - APS by and through its agents, officers .and employees, knowingly

presented, , or caused to be presented to the United States Government numerous false or


fraudulent claims for payment or approval, in violation of the False Claims Act ;. 31 U.S.C. §

3729(a)(1)(A) .

108 . As set forth above, APS by and through itss agents, officers and employees, knowingly

made, used, or caused to be made or used, false records or statements material to numerous false

claims, in violation of the False Claims Act, . 31 U.S.C . § 3729(a)(1)(B).

109 . As set forth above, APS by and through its agents, officers and employees, knowingly

made, used, or caused to be made or used a false record or statement material to an obligation to

pay or transmit money or property to the Government, or knowingly concealed or knowingly and

improperly avoided or decreased an obligation to pay or transmit money or property to the

Government, in violation of the False Claims Act, 31 U .S .C. § 3729{a}(1)(G).

110 . Due to APS's conduct, the Government has suffered substantial monetary damages .

111 . The United States is entitled to treble damages based upon the amount of damage

sustained by the United States as a result ofAPS's violations of the False Claims Act, 3 1 U.S.C .

§§ 3729-3733, an amount that will be proven at trial .

112. The United States is entitled to a civil penalty of between $5,500 and $11,000 as required

by 31 U.S.C. § 3729(a) for each of APS's fraudulent claims .

113 . Relator is also entitled to reasonable attorney's fees and costs, pursuant to 31 U .S.C. §

COUNT II

Violation of O .C.G.A. § 49-4-168 .1 - State False Medica id Claims Act

114. Relator hereby incorporates and reallege herein all other paragraphs as if fully set forth

herein.

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115. As set forth above, APS by and through its agents, officers and employees, knowingly

presented, or caused to be presented to the Georgia Medicaid program numerous false or

fraudulent claimss for payment or approval, in violat ion ofO.C .G.A. § 49-4-168.]. {a}(1) .


made, used, or caused to be made or used, false records or statements to get false or fraudulent

claims . paid or approved by the Georgia Medicaid program, in violat ion of O .C.G.A. § 49-4-

168.1(a)(2) .


made, used, or caused to be made or used a false record or statement material to an obligation to

pay or transmit money or property to the State of Georgia, in violation of O.C.G.A. § 49-4-

168.1(a)(7) .

118 . Due to APB's conduct, the State of Georgia has suffered substantial monetary damages .

119. The State of Georgia is entitled to treble damages based upon the amount of damage

sustained by the State of Georgia as a result of APS's violations of the State False Medicaid

Claims Act, O.C.G.A. § 49-4-168.1, an amount that will be proven at trial .

120. The State of Georgia is entitled to a civil penalty of between $5,500 and $11,000 as

required by O .C.G.A. § 49-4-168.1 for each of APS's fraudulent claims .

121 . Relator is also entitled to reasonable expenses which the court finds to have been

necessarily incurred and reasonable attorney's fees and costs, pursuant to O .C .G.A. § 49-4-

168. 1(1)(2) .

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126. APS violated Relator's rights pursuant to O .C.G.A. § 49-4-168.4 by retaliating against

_ Relator for lawful acts done by Relator in furtherance of an action under this section, including

investigating matters that could reasonably lead to the filing of such an action .

127. As a result of APS's actions, Relator has suffered damages in an amount to be shown at

L trial .

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courrr III

Violation of 31 U.S.C. § 3730 -- Retaliation

122. Relator hereby incorporates and realleges herein all other paragraphs as if fully set forth

herein .

123 . APS violated Relator's rights pursuant to 3 1 U.S.C. § 3734(h) by retaliating against

Relator for lawful acts done by Relator in furtherance of other efforts to stop one or more

violations alleged in this action.

124. As a result of APS's actions, Relator has suffered damages in an amount to be shown at

trial .

COUNT IV

Violation ofO.C.G.A. § 49-4-168.4 - Retaliation

125 . Relator hereby incorporates and realleges herein all other paragraphs as if fully set forth

herein .


COUNT V

Breach of Contract

128 . Relator hereby incorporates and realleges herein all other paragraphs as if fully set forth

herein .

129 . . On August 26, 2008, APS COO David Glazer offered Relator a promotion to Executive

Director II .

130. Upon accepting his promotion on August 29, 2008, Relator signed an offer sheet from

Glazer and APS that offered him "severance of 4 weeks per year of service with a minimum of

12 weeks and a maximum of 38 weeks ."

131 . At the time of his termination, on June 22, 2009, Relator had worked for APS for over ten

years, making him eligible for 38 weeks of pay pursuant to his severance agreement .

132. APS offered Relator only 26 weeks of pay, and made that amount, which was only about

two-thirds of what had originally been agreed upon, contingent upon his signing a separation

agreement requiring that he have no future contact with APS staff, state officials, or providers, as

well as a host of other restrictions designed to protect APS and limit Relator's whistleblawing

activities .

133. Relator informed APS that it has no legal basis for its refusal to remit the past due and

owing severance amounts, yet APS persistently refuses . .

134. By refusing to pay him pursuant to the terms of Relator's contract, APS has breached the

employment contract with Relator, causing Relator to have suffered damages in an amount to be

shown at trial.

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COUNT VI

Litigation Expenses Pursuant to 4.C.G.A. § 13-6-11

135. Relator hereby incorporates and realleges herein all other paragraphs as if fully set forth

herein.

136 . APS has acted in bad faith, has been stubbornly litigious, and hass caused the plaintiff

unnecessary trouble and expense .

137. Accordingly, the Court should award Plaintiff the expenses of litigation, including

attorneys' fees and costs, pursuant to O .C .G.A. § 13-6-11,

PRAYER FOR RELIEF

WHEREFORE, Relator Michael Claeys prays for judgment :

(a) awarding the United States treble damages sustained by it for each of the false claims or

overpayments that APS knowingly and improperly concealed so as to avoid its obligation

to pay money to the Government ;

(b) awarding the United States a civil penalty of $11,000 for each of the false claims ;

(c) awarding the State of Georgia treble damages sustained by it for each of the false claims

or overpayments that APS knowingly and improperly concealedd so as to avoid its

obligation to pay money to the Government;

(d) awarding the State of Georgia a civil penalty of $11,000 for each of the false claims ;

(e) awarding Relator 30% of the proceeds of this action and any alternate remedy or the

settlement of any such claim ;

(f) providing Relator reinstatement with the level of seniority and benefits he would have but

for the violations of 31 U.S.C . § 3730(h) ;

(g) awarding Relator special damages resulting from the retaliation ;

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(h) awarding Relator damages resulting from the breach of contract ;

(i) awarding Relator his litigation costs and reasonable attorney's fees ; and

(j) grantingg such other relief as the Court may deem just and proper .

Respectfully submitted,

Julie BrackerGeorgia Bar No. 073803Jason MarcusGeorgia Bar No. 949698

BOTH WELLBRACICER,,

,fVANNLATTORNEYS AT ,AW

3 04 Macy DriveRoswell , Georg ia 30076Ph: 770-643-1606Fax: 770-643-1442

-21-


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aps complaint