Lincare Non Compete Agreement

Lincare, Inc., one of the country`s largest suppliers of long-life medical equipment, paid $5.25 million to resolve charges brought by a complaint by a Relateur filed by a Relateur on behalf of the United States. The Relator claimed that between 2011 and 2017, Lincare violated the False Claims Act and anti-kickback status by attempting to compete in the market by illegally forgoing insurance, payments and deductibles for beneficiaries participating in a Medicare Advantage plan, also known as Medicare Part C.  On-demand waiting time can be paid if it is carried out primarily for the benefit of the employer and his or her business.  (Armour – Co. w. Wantock (1944) 323 U.S. 126, 132, 65 P.Ct. 165, 89 L.Ed. 118 [time spent at the request of firefighters in the fire room was paid, although they spent time in “slowing down” and “pleasures”).

  Whether the waiting time on demand is primarily devoted to the employer depends on two considerations: (1) the agreement of the parties and (2) the freedom of the worker to engage in personal activities.   (Owens v. Local No. 169, Assn. of Western Pulp – Paper Workers (9. Cir.1992) 971 F.2d 347, 350-355.) One of Lincare`s biggest competitors in the urea products sector is Apria. Humana, a health insurance fund, manages various Federally funded Medicare Advantage health insurance. Thomas said Humana successfully negotiated with Apria to accept payments using Humanas Medicare`s benefits plans for equipment and oxygen supply lower than those calculated by Lincare Humanas Medicare Advantage for similar SMEs. Apria`s agreement to accept such reduced rebates by Humana reduced the costs borne by the federal government to fund these Medicare Advantage home oxygen benefits and also led beneficiaries of the Humanas Medicare Advantage plans to pay lower supplements when they received their equipment and oxygen supply from Apria and not Lincare. Thomas said lincare partially waived the supplements it billed to Humana-managed Medicare Advantage plans to cover, for the most part, the premiums they paid for Humana`s Medicare Advantage plans to cover, for the most part, the surcharges they would pay if they received oxygen at Apria`s home. Lincare, however, continued to receive larger refunds than those received from Apria for such an MATTER, funded by Humanas. Thomas said the reduction of these co-countries to influence customers` decisions to purchase or lease their oxygen equipment and supplies to Lincare, not Apria, was contrary to the federal government`s anti-kickback status, which made Lincare`s bids under Humana`s Medicare advantage plans illegal under the False Claim Act.