UNITED STATES OF AMERICA ex rel. ROBERT C. O’LAUGHLIN, M.D. v. RADIATION THERAPY SERVICES, P.S.C., dba Ashland Bellefonte Cancer Center

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 25a0232p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA ex rel. ROBERT C.
O’LAUGHLIN, M.D.,
Relator-Appellant,
v.
RADIATION THERAPY SERVICES, P.S.C., dba Ashland
Bellefonte Cancer Center; KIRTI K. JAIN, M.D., P.S.C.,
dba Highland Cancer Center; A ONE BIZ SOLUTIONS,
LLC; KIRTI K. JAIN, M.D.; MANISH JAIN,
Defendants-Appellees.
┐
│
│
│
│
│
│
│
│
│
│
│
┘
No. 24-5898
Appeal from the United States District Court for the Eastern District of Kentucky at Ashland.
No. 0:16-cv-00148—David L. Bunning, District Judge.
Argued: May 6, 2025
Decided and Filed: August 21, 2025
Before: BOGGS, GRIFFIN, and NALBANDIAN, Circuit Judges
_________________
COUNSEL
ARGUED: Andrew Grosso, ANDREW GROSSO & ASSOCIATES, Washington, D.C., for
Appellant. Christopher Melton, WYATT, TARRANT & COMBS, LLP, Louisville, Kentucky,
for Appellees. ON BRIEF: Andrew Grosso, ANDREW GROSSO & ASSOCIATES,
Washington, D.C., for Appellant. Christopher Melton, Victoria Boland Fuller, WYATT,
TARRANT & COMBS, LLP, Louisville, Kentucky, for Appellees.
>

-- 1 of 22 --

No. 24-5898 United States ex rel. O’Laughlin Page 2
_________________
OPINION
_________________
NALBANDIAN, Circuit Judge. Dr. Robert O’Laughlin brought this qui tam action on
behalf of the United States under the False Claims Act. He claimed that his former employers,
providers of radiation and chemotherapy services, fraudulently billed Medicare and other federal
programs. He alleged that they falsely represented that their services were either supervised or
performed by qualified physicians. The district court dismissed some claims and, after
discovery, granted summary judgment for the defendants on the rest. O’Laughlin appeals both
rulings. Because the district court correctly rejected his claims, we AFFIRM.
I.
A.
Dr. O’Laughlin was a radiation oncologist practicing out of three cancer centers in
Kentucky from July 2012 until about October 2015. Through his work, O’Laughlin claimed to
have learned that his employers were submitting false claims to Medicare and other federal
programs. So in December 2016, he brought a qui tam action on behalf of the United States
under the False Claims Act (FCA), 31 U.S.C. § 3729. The United States investigated and
reached a settlement with one of the centers, Logan Oncology Care, in 2019. But it declined to
intervene in O’Laughlin’s remaining claims. So O’Laughlin moved forward on his own, and the
remaining defendants moved to dismiss. O’Laughlin responded with an amended complaint, and
the defendants again moved to dismiss. The court granted that motion in part and denied it in
part, leading O’Laughlin to file a second and then third amended complaint, with the third
amended complaint being the operative complaint in this appeal.1
1After O’Laughlin amended his complaint and the defendants moved to dismiss, the district court
dismissed certain counts from O’Laughlin’s amended complaint with prejudice. But in O’Laughlin’s third amended
complaint he “essentially allege[d] the same counts as its previous iterations” so the district court again considered
the previously dismissed counts and rejected them for the same reasons as in the court’s first opinion. So we treat
the third amended complaint as the operative complaint on appeal.

-- 2 of 22 --

No. 24-5898 United States ex rel. O’Laughlin Page 3
The third amended complaint named five defendants: Dr. Kirti K. Jain; Manish Jain;
Radiation Therapy Services d/b/a Ashland Bellefonte Cancer Center (Ashland BCC); Highlands
Cancer Center (Highlands CC); and A One Biz, a medical billing company. During the relevant
time, Kirti Jain was the director of both Ashland BCC and Highlands CC. And Manish Jain was
a manager at Ashland BCC, Logan CC, and A One Biz. K. Jain also served as a manager at A
One Biz.
The eight counts boiled down to claims that the defendants fraudulently represented that
their services were either supervised by or performed by qualified physicians. The claims fell
into two groups: claims for radiation services and those for chemotherapy services.
B.
Begin with the radiation-services claims. These claims covered counts I, II, III, IV, and
VII.2 Three of these counts related to radiation therapy and simulation services. O’Laughlin
said that Medicare only allowed a radiation oncologist or radiologist to perform the professional
component of radiation therapy and simulation services. And he claimed that no such qualified
radiologists were present at the cancer centers when those services were done. So, he argued,
any billing to Medicare for those services was necessarily fraudulent.
But the district court disagreed, dismissing these claims after finding that O’Laughlin did
not show that a specific type of physician must perform these services. Because performance by
a radiologist or radiation oncologist was not a material precondition of payment for the Medicare
claims, the court dismissed the three counts (counts I, II, and VII) that relied on this argument.
The next two radiation-services claims dealt with the defendants’ allegedly
fraudulent billing practices (counts III, IV). O’Laughlin claimed that no physician either
supervised or performed the services described in certain billing codes as ‘physician services’
because no physician was on site at the time. But the district court found that this allegation was
2Count I alleged false claims and count II alleged false statements related to radiation therapy services.
Count VII alleged false claims related to simulation services. All three counts were based on the same theory of
liability and underlying facts.
Count III alleged false claims and count IV alleged false statements related to what O’Laughlin called
“absent physician” claims. Both relied on the same underlying facts.

-- 3 of 22 --

No. 24-5898 United States ex rel. O’Laughlin Page 4
“bare-bones” and inadequate to state a claim. R.141, Op. & Order on 3d Mot. to Dismiss, p.9,
PageID 2049. And because O’Laughlin did not address any of the defendant’s arguments on
these counts in his response to the defendants’ motion to dismiss, the district court considered
counts III and IV waived and dismissed them.
C.
For his chemotherapy claims,3 O’Laughlin claimed that the defendants billed Medicare as
if physicians were performing chemotherapy services, when really, either a nurse practitioner or
a physician’s assistant performed the services. The district court allowed these claims to survive
through discovery. After more than a year of discovery battles, the defendants moved for
summary judgment, claiming O’Laughlin did not produce evidence of a single fraudulent claim.
In response, O’Laughlin presented four “categories” of false claims.4
Category One. O’Laughlin claimed that on weekdays from December 27, 2013, to June
30, 2014, the centers billed federal programs as if physicians administered chemotherapy
services when either no physicians were scheduled to work, or none could have worked at a
center. To draw this conclusion, O’Laughlin used what he called a “triangulating” method—he
compared the centers’ employment practices, Master Schedules, and billing records. Appellant
Br. at 16–22.
Based on this data, he argued only two physicians were spread across three centers. And
because “a physician simply could not be in two places at the same time” no physician was
available to see patients at the third cancer center. R.224, Resp. to Mot. for Summ. J., p.22. But
the district court rejected this analysis because it hinged on the faulty inference that the Master
3Count V alleged false claims and count VI alleged false statements. Both relied on the same underlying
facts.
4O’Laughlin presented the false claims in what he called “summary charts.” The defendants moved to
exclude these charts. While O’Laughlin claimed the charts were made based on his own expertise, the defendants
found that he could not answer basic questions about the methodology, and so they say the charts were really the
work of his attorney. And sure enough, when asked about the methodology, O’Laughlin invoked attorney work-
product protection. So the defendants said O’Laughlin was trying to use his attorney as his expert and moved to
exclude the charts. The district court did not separately rule on the motion but called O’Laughlin’s “‘analysis’
unreliable” because of the data it was based on. R.234, Op & Order on Mot. for Summ. J., pp.6–7, PageID 6926–27.
While the parties’ briefing dedicates much attention to whether the charts should be excluded, we agree with the
district court that a separate discussion of this issue is unnecessary.

-- 4 of 22 --

No. 24-5898 United States ex rel. O’Laughlin Page 5
Schedules correctly reported a physician’s actual location at all times. O’Laughlin assumed that a
physician scheduled to work at a particular center must have actually worked at that center at
that time. But the district court found the record did not support that inference. The centers did
not update the schedules to reflect personnel changes and the schedules were never designed to
reflect when a physician would be present, only when a patient would be present.
O’Laughlin’s theory also only accounted for two locum tenens physicians working at the
centers, not several others discussed in the record. So there was little to suggest that two
physicians were spread across three centers and O’Laughlin could not point to any specific day
where a center lacked a physician.
Categories Two & Three. O’Laughlin’s next two categories of false claims dealt with
Thursday coverage. Category two covered chemotherapy services at the Ashland BCC during
the noon hour. He claimed that every Thursday at noon all physicians attended a one hour
“tumor board” meeting at a nearby hospital. As a result, no physicians could oversee
chemotherapy at that center during that hour. Category three covered chemotherapy services at
the Highlands CC all day on Thursdays. O’Laughlin said every physician was scheduled to work
at the Ashland BCC that day so that they could attend the board meetings. For both claims,
O’Laughlin relied on the Master Schedules, which showed that all physicians were scheduled to
be at Ashland BCC on Thursday and had a “block” on their schedules for the noon hour.
The district court also rejected these claims. The court again found the Master Schedules
unreliable indicators of which physicians were at the centers on any given day or time. And
testimony from various doctors—including O’Laughlin—confirmed that physicians did not
attend the meetings regularly regardless of if the time was blocked on their calendar. Because
O’Laughlin could not definitively point to a single day that he could say a physician was absent
from either center because of the meetings, the court found the claim lacked merit.
Category Four. The final category dealt with weekend claims. O’Laughlin claimed that
no physicians worked on weekends unless there was an emergency. But the centers nonetheless
regularly administered Leukine injections on weekends—a “chemotherapy service” that

-- 5 of 22 --

No. 24-5898 United States ex rel. O’Laughlin Page 6
O’Laughlin said needs a physician’s supervision. And since no physicians were on site, none of
these services were eligible for reimbursement.
Again, the district court found this claim lacked merit. It determined that Leukine is not a
chemotherapy service and so did not require a physician to administer or supervise. Instead, it is
a simple, usually self-administered injection offered to immunocompromised patients to boost
their white-blood-cell count. And the centers only administered it to patients who couldn’t do it
themselves. So this category could not survive either.
Finally, O’Laughlin alleged a conspiracy count related to the facts underlying the
radiation claims (count VIII). Since O’Laughlin had pleaded sufficient allegations that—taken
as true—made out a claim of conspiracy, the district court allowed this claim to go forward.
Because each category of claims failed, the district court concluded that O’Laughlin did
not show the existence of a single false claim. And that is necessary to an FCA claim, so the
court granted summary judgment to the defendants.
O’Laughlin appealed both the district court’s dismissal on the radiation-services claims
and its grant of summary judgment on the chemotherapy claims.
II.
O’Laughlin alleged two types of FCA violations: false claims for payment under
31 U.S.C. § 3729(a)(1)(A), and false statements under 31 U.S.C. § 3729(a)(1)(B).
Section 3729(a)(1)(A) imposes liability on “any person who . . . knowingly presents, or causes to
be presented, a false or fraudulent claim for payment or approval.” To state a claim,
the complaint must allege “(1) a person present[ed], or cause[d] to be presented, a claim for
payment or approval; (2) the claim [wa]s false or fraudulent; and (3) the person’s acts [were]
undertaken ‘knowingly,’ i.e., with actual knowledge of the information, or with deliberate
ignorance or reckless disregard for the truth or falsity of the claim.” United States ex rel.
Prather v. Brookdale Senior Living Cmtys., 838 F.3d 750, 761 (6th Cir. 2016) (quoting United
States ex rel. Bledsoe v. Cmty. Health Sys., Inc., 342 F.3d 634, 640 (6th Cir. 2003)).

-- 6 of 22 --

No. 24-5898 United States ex rel. O’Laughlin Page 7
Relatedly, § 3729(a)(1)(B) provides liability for “any person who . . . knowingly makes, uses, or
causes to be made or used, a false record or statement material to a false or fraudulent claim.”
Both subsections rely on the relator alleging “an actual claim made to the government.”
United States ex rel. Ibanez v. Bristol-Myers Squibb Co., 874 F.3d 905, 916 (6th Cir. 2017)
(internal quotation marks omitted). “[I]t is insufficient to simply plead the scheme, [the relator]
must also identify a representative false claim that was actually submitted to the government.”
Id. at 914 (internal quotation marks omitted). Even a “complex and far-reaching fraudulent
scheme” must come with “examples of specific false claims submitted to the government
pursuant to that scheme.” Id. (internal quotation marks omitted). Put simply, “a fraudulent
claim is the sine qua non of a False Claims Act violation.” United States ex rel. Marlar v. BWXT
Y-12, LLC, 525 F.3d 439, 447 (6th Cir. 2008) (internal quotation marks omitted).
Both parties agree that “[t]he FCA reaches claims submitted by healthcare providers to
Medicare.” Chesbrough v. VPA, P.C., 655 F.3d 461, 467 (6th Cir. 2011). Medicare Part B deals
with doctors’ services and outpatient care. See 42 U.S.C. §§ 1395j–1395w. The Department of
Health and Human Services, through the Centers for Medicare and Medicaid Services (CMS)
administers the Medicare Program. And CMS reimburses medical claims through fiscal
intermediaries. See generally id. § 1395u. As relevant here, Medicare Part B reimburses
“physicians’ services,” including radiation therapy services, that are “reasonable and necessary.”
42 U.S.C. §§ 1395x(q), 1395y(a)(1); 42 C.F.R. § 410.20(a); 42 C.F.R. § 410.35. But not all
services are reimbursed at the same rate. See 42 C.F.R. § 405.520. When a nurse practitioner or
physician assistant performs a service, CMS will reimburse up to 85% of the amount payable to
a physician. Id. § 414.56, 414.52. And billing at the higher physician rate for services
performed by a nurse could be fraudulent.
A.
The district court found that O’Laughlin failed to state a claim on his radiation-services
theories. FCA complaints are subject to the heightened pleading requirements of Federal Rule of
Civil Procedure 9(b). Prather, 838 F.3d at 760. The relator must plead “with particularity the
circumstances constituting fraud.” Fed. R. Civ. P. 9(b). We review the district court’s dismissal

-- 7 of 22 --

No. 24-5898 United States ex rel. O’Laughlin Page 8
de novo. United States ex rel. Sheldon v. Kettering Health Network, 816 F.3d 399, 407 (6th Cir.
2016). And in the qui tam context, like with most motions to dismiss, we “construe the
complaint in the light most favorable to the [relator], accept all factual allegations as true, and
determine whether the complaint contains enough facts to state a claim to relief that is plausible
on its face.” Prather, 838 F.3d at 761.
1.
We begin with O’Laughlin’s counts related to radiation and simulation services.
O’Laughlin admits that the same analysis applies to his radiation-therapy claims in counts I and
II as his simulation-services claim in count VII. For both, he alleged that the defendants falsely
certified their compliance with Medicare rules.
When compliance with a statute is a prerequisite for payment, failure to comply may
make a claim under the statute fraudulent. Chesbrough, 655 F.3d at 467. This is the “false
certification” theory of FCA liability. Id. But “a health care provider’s disregard of Government
regulations” alone does not create liability. Prather, 838 F.3d at 768. Instead, “noncompliance
constitutes actionable fraud only when compliance is a prerequisite to obtaining payment.”
Chesbrough, 655 F.3d at 468 (emphasis added). So to allege a false-certification theory of FCA
liability, the complaint must allege the defendant did more than “merely request payment” when
filling out a claim. Universal Health Servs., Inc. v. United States, 579 U.S. 176, 190 (2016).
The claim must implicitly “make[] specific representations about the goods or services
provided,” and “the defendant’s failure to disclose noncompliance with material
statutory . . . requirements” must make those representations misleading. Id.
O’Laughlin’s false-certification theory fails because the law does not impose the
requirements he claims. He alleges the centers allowed unqualified physicians to perform and
supervise radiation and simulation services, so they did not follow Medicare rules and falsely
certified to their compliance when submitting claims. But Medicare does not limit qualified
physicians the way O’Laughlin says that it does.
CMS divides radiation services into two components: professional and technical.
“[A] physician having appropriate qualifications” must perform professional components.

-- 8 of 22 --

No. 24-5898 United States ex rel. O’Laughlin Page 9
R.124, 3d Am. Compl., p.11; see also Medicare Claims Processing (MCP) Manual, Ch. 13,
§ 20.1. But a radiation therapist, nurse practitioner, or physician’s assistant working under the
supervision of a qualified physician can perform technical components. But the Medicare
Claims Processing (MCP) Manual does not limit what makes a physician “qualified” to perform
professional services or supervise technical services. It does the opposite; it says that any
physician may perform radiation services “regardless of the specialty of the physician who
performs the service.” MCP Manual, Ch. 13, § 20.1.
O’Laughlin does not dispute this. Instead, he takes several steps, looking to a patchwork
of federal and state authorities, to argue the law is more limiting than the MCP Manual’s
language suggests. First, O’Laughlin looks to 42 C.F.R. § 410.26(b)(7), which requires that
reimbursable services “must be furnished in accordance with applicable State law.” Then he
argues that the applicable state law (Kentucky) requires that a radiologist or radiation oncologist
perform or supervise radiation services either on its face or by incorporating industry practice
standards.
There are several problems with this argument. First, § 410.26 doesn’t apply to radiation
services. Second, even if it did, Kentucky law likely does not impose the requirement
O’Laughlin claims. And finally, even if he could clear these hurdles, O’Laughlin does not take
the final, necessary step of showing this so-called requirement is a material precondition of
payment.
We start at the federal level, where O’Laughlin tries to find support for his theory that
CMS mandates compliance with state law for the centers to receive reimbursement for radiation
services. Section 410.26(b) specifies that “Medicare Part B pays for services and supplies
incident to the service of a physician” if the services meet certain requirements (one of those
requirements being compliance with state law). But the section’s definition for “services and
supplies” covers those services “that are included in section 1861(s)(2)(A) of the Act and are not
specifically listed in the Act as a separate benefit included in the Medicare program.”
§ 410.26(a)(8) (emphasis added). Radiation-therapy services have a separate benefit category.
See 42 U.S.C. § 1395x(s)(4) (separately listing “[x]-ray, radium, and radioactive isotope

-- 9 of 22 --

No. 24-5898 United States ex rel. O’Laughlin Page 10
therapy”). So it is not a service or supply regulated under § 410.26, and O’Laughlin’s reliance
on the section to lead him to state law is misplaced.
But even if § 410.26’s requirements applied to radiation therapy, it’s not clear that
Kentucky law requires a radiologist or radiation oncologist to perform or supervise these services
either. O’Laughlin first looks to Kentucky Administrative Regulation 201 KAR 46:040 § 1
(2015),5 which regulates individuals performing radiation therapy “while under the direct or
indirect supervision of a licensed practitioner of the healing arts as specified by practice
standards, by scope of practice, and in the ACR-AAPM Technical Standard For The
Management of The Use of Radiation in Fluoroscopic Procedures.” He says the “scope of
practice” language implied that the supervising physician’s practice must be the delivery of
radiation oncology.
Kentucky law defines both “licensed practitioner of the healing arts” and “scope of
practice.” A “licensed practitioner of the healing arts” is “a person licensed in Kentucky to
practice medicine, osteopathy, dentistry, chiropractic, podiatry, or veterinary medicine.”
Ky. Rev. Stat. Ann. § 311B.020(8) (West 2012). And a “scope of practice” means “the
parameter of the specific practice.” 201 KAR 46:010(46) (2015). So reading the two provisions
together, perhaps “scope of practice” narrows the broad category of “licensed practitioner of the
healing arts” to only those licensed practitioners who practice radiology (i.e., radiologists or
radiation oncologists).
But other provisions in the law make this questionable. Kentucky defines radiation
therapy as “the therapeutic administration of ionizing radiation by a radiation therapist.” Id. at
46:010(40). Missing from the definition of “radiation therapist” is any specific physician-
supervision requirement, which other provisions explicitly include. Compare Ky. Rev. Stat.
Ann. § 311B.020(15) (defining radiation therapist), with 201 KAR 46:010(44) (defining
“radiologist assistant” as someone “who works under the supervision of a radiologist”), and 201
KAR 46:010(27) (defining “nuclear medicine advanced associate” as someone “who works
under the supervision of a radiologist or nuclear medicine physician”). Similarly, Kentucky’s
5These regulations were amended in November 2017, but the claims here only concern the 2015 version of
the regulations and statutes.

-- 10 of 22 --

No. 24-5898 United States ex rel. O’Laughlin Page 11
regulations defining direct and indirect supervision contemplate oversight by “a licensed
practitioner of the healing arts,” but nothing more specific than that. So a rule that a radiation
therapist must be supervised by a radiologist or radiation oncologist seems out of place with the
larger regulatory language.
O’Laughlin tries to cure any defects in the regulatory language with yet another move.
He points to 201 KAR 46:040 § 11, which required that licensed individuals conform to practice
standards. And he claims practice standards support his supervision requirement. The
defendants argue about both how much the regulations incorporate state practice standards and
whether the state practice standards actually require supervision by a radiation oncologist. But
we need not dive into Kentucky’s practice standards as O’Laughlin suggests because he doesn’t
show, or even suggest, that compliance with these standards is a prerequisite for payment under
federal programs.
To succeed on a false-certification theory, O’Laughlin must show that the defendants’
compliance with the supervision requirement was a prerequisite to obtaining payment.
Chesbrough, 655 F.3d at 468. “[G]arden-variety . . . regulatory violations” or noncompliance
that is “minor or insubstantial” will not lead to liability. Universal Health Servs., 579 U.S. at
194. The noncompliance must amount to materially misleading a regulatory official. Id. And
O’Laughlin provides no argument that the defendants’ alleged noncompliance rises to this level.
Sure, § 410.26(b)(7) says services “must be furnished in accordance with applicable State
law.” But a statement is not materially misleading “merely because the Government designates
compliance with a particular statutory [or] regulatory . . . requirement as a condition of
payment.” Universal Health Servs., 579 U.S. at 194. O’Laughlin must allege that the
defendants misrepresented their compliance with state requirements “that are so central to the
provision of [reimbursement] that the Medica[re] program would not have paid these claims had
it known of these violations.” Id. at 196. And for that, O’Laughlin has nothing besides the
single sentence from § 410.26 saying services must conform with state law.
O’Laughlin does not attempt to argue that using the wrong type of doctor under state law
(rather than no doctor at all) stretches beyond minor or insubstantial noncompliance with federal

-- 11 of 22 --

No. 24-5898 United States ex rel. O’Laughlin Page 12
regulations. O’Laughlin points to nothing to show that if Medicare knew the wrong type of
supervising physician was used, it would withhold payment for the centers’ otherwise lawful
claims. So O’Laughlin has not met his burden. Because Medicare does not require a radiologist
or radiation oncologist to perform or supervise radiation services as a material precondition for
payment, O’Laughlin cannot state an FCA claim against the defendants on these counts.
2.
For the next two counts, O’Laughlin alleged that the defendants fraudulently billed
radiation services as if a physician performed them when no physician provided the services,
supervised the services, or was even on site for them. He calls these “Absent Physician claims”
because he says a physician’s name was listed on the bills, but no physician was there to
supervise or provide the services. He adds that these “statements and representations were
preconditions and material for the payment of these claims.” R.124, 3d Am. Compl., p.31.
The defendants responded that only two of the allegedly fraudulently billed codes involve
professional components—the rest are technical components that do not require a physician to
perform or supervise. And the two professional codes relate to the interpretation of radiological
procedures and need not be performed on the premises to be reimbursable. So even if the bills
had an absent physician’s name on them, it would either be proper because technical components
don’t require a physician or proper because the physician could perform the service remotely.
O’Laughlin didn’t respond to this argument in either his response to the motion to dismiss or
when the defendant’s raised it again on appeal. He has also never provided any relevant
regulation or federal law to support his claim that the physicians’ names were “preconditions and
material for the payment of these claims.” R.124, 3d Am. Compl., p.31.
Instead, O’Laughlin claims the district court blessed his argument in an earlier opinion
with a sentence distinguishing professional and technical components. We disagree. In a
different discussion about the other radiation claims, the court acknowledged that physicians
often perform professional components and therapists perform technical components under
supervision. R.76, Op. & Order on 2d Mot. to Dismiss, pp.10–11, PageID 775–76. But that
dicta about components does not address O’Laughlin’s specific claims here. Nor does it absolve

-- 12 of 22 --

No. 24-5898 United States ex rel. O’Laughlin Page 13
O’Laughlin of his responsibility to respond to the defendants’ arguments on these claims. So his
argument that he “relied upon” the district court which now “reversed itself” is unavailing.
Appellant Br. at 56.
Because O’Laughlin has not defended either the law or the facts behind these counts, he
has abandoned them. Doe v. Bredesen, 507 F.3d 998, 1007 (6th Cir. 2007). Despite multiple
opportunities, O’Laughlin’s allegations do not rise above “mere assertions and
unsupported . . . conclusions.” Sanderson v. HCA-The Healthcare Co., 447 F.3d 873, 876 (6th
Cir. 2006). So the district court correctly dismissed these claims.
* * *
The district court correctly dismissed O’Laughlin’s radiation services claims under the
FCA.
B.
Next O’Laughlin appeals the district court’s grant of summary judgment to the
defendants on his chemotherapy claims. After discovery, the court concluded O’Laughlin failed
to present evidence of a single false claim.
We review a district court’s grant of summary judgment de novo. Smith v. Newport
Utils., 129 F.4th 944, 948 (6th Cir. 2025). A court should grant summary judgment if “there is
no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a). The court must draw “all reasonable inferences in favor of the
nonmoving party.” Kenney v. Aspen Techs., Inc., 965 F.3d 443, 448 (6th Cir. 2020). And “must
consider whether the evidence presents a sufficient disagreement to require submission to a jury
or whether it is so one-sided that one party must prevail as a matter of law.” Id. (internal
quotation marks omitted). “The mere existence of a scintilla of evidence in support of the
plaintiff’s position” is not enough. Baker v. City of Trenton, 936 F.3d 523, 529 (6th Cir. 2019)
(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)). “[T]here must be evidence
on which the jury could reasonably find for the plaintiff.” Id. (quoting Anderson, 477 U.S. at
252).

-- 13 of 22 --

No. 24-5898 United States ex rel. O’Laughlin Page 14
Recall the FCA’s bedrock requirement that a relator show “a representative false claim
that was actually submitted to the government.” Ibanez, 974 F.3d at 914 (internal quotation
marks omitted). It is not enough to allege a fraudulent scheme. Id. “[A] fraudulent claim is the
sine qua non of a[n] [FCA] violation.” Marlar, 525 F.3d at 447 (quoting Sanderson, 447 F.3d at
878).
O’Laughlin alleged hundreds of false claims falling into four categories. Each category
shows a different way to commit the same type of Medicare fraud: inflated reimbursement for
services. Under Medicare rules, when a nurse practitioner or physicians’ assistant performs a
service, CMS will reimburse up to 85% of the amount payable to a physician. 42 C.F.R.
§§ 414.56, 414.52. But when a physician performs the same service, CMS will reimburse the
full amount. O’Laughlin alleged that in the first three categories of claims, the centers billed
services at the physician’s rate when no physician was on site to perform the service. And in the
last category, he said the claims were ineligible for any reimbursement.
1.
O’Laughlin claimed that on certain weekdays from December 27, 2013, to June 30, 2014,
the centers submitted Medicare claims indicating that physicians administered chemotherapy
services when either no physicians were scheduled to work, or none could have worked at a
center. This date range stood for the time between when Dr. Hayek left the centers and new
physicians were hired. O’Laughlin also excluded certain dates when two temporary physicians
were working. That left three cancer centers with only two physicians—O’Laughlin and K. Jain.
From there, O’Laughlin used the Master Schedules to find specific claims for specific patients
that had to be false because the physicians were scheduled elsewhere. And to bolster this
analysis, he pointed to testimony describing the “practice at the . . . cancer centers to administer
chemotherapy services without physicians being present.” Appellant Br. at 15.
The evidence does not support O’Laughlin’s conclusion and does not point to any
specific false claims. First, O’Laughlin’s claim that there were only two physicians working
across three centers is unsupported. After Hayek left, O’Laughlin admits that the center hired
temporary physicians (locum) when “there was a . . . gap” in coverage. R.207-18, O’Laughlin

-- 14 of 22 --

No. 24-5898 United States ex rel. O’Laughlin Page 15
Dep., pp.103–04, PageID 4512–13. In his briefing, he pointed to two temporary physicians, Dr.
Bertram and Dr. Batra, who worked at the centers. And says he “backed-out” the dates they
were employed from his claims. Appellant Br. at 19.
But O’Laughlin also admitted in his deposition that he never met or worked with any of
the temporary physicians. And other witness testimony said that the centers employed other
locums that O’Laughlin (at best) did not know about. Nurse Stephanie Howard remembered “an
Indian lady” that came in (both Bertram and Batra are men), a man named Ramon (neither
Bertram nor Batra’s first name), and other “different ones” who came in. R.217-1, Howard
Dep., pp.118–19, PageID 5315–16.6 She also said the centers used locums “off and on” “for it
all” including when K. Jain or another physician were out. Id. at pp.120–21, PageID 5317–18.
And the locums’ schedules would change regularly “according to what coverage [the centers]
needed.” Id. at p.65, PageID 5262. As a result, she said that she didn’t know of any instances
after Hayek left when the centers “ever gave chemotherapy without a physician” present. Id. at
p.107, PageID 5304.
K. Jain also said the centers “had several locums who were covering” after Hayek left.
R.215-1, K. Jain Dep., p.71, PageID 4949. He named Bertram, Batra, and another locum, Dr.
Janowski. Medical Assistant Theresa Kintigos also testified that the centers had locums after
Hayek left and before other physicians began working full time. And there was “[n]ever a time
that [she] was aware of” when neither Hayek, Bertram, nor Batra were working at the centers.
R.207-16, Kintigos Dep., p.29, PageID 4081.
O’Laughlin’s only response is to raise the testimony of other witnesses who alleged a
“practice” of administering chemotherapy without a physician being present. Appellant Br. at
15. But in each of these depositions, the witnesses could not provide any specific dates when
this may have occurred. For example, Nurse Jessica Dove said the nurses “would administer
medication without a physician on-site.” R.216-1, Dove Dep. I, p.26, PageID 5128. But she
could not say how often this occurred, name any day when it may have occurred, or name any
6Almost all of these depositions occurred in late 2023 and early 2024. The period we are discussing is
almost a decade earlier, so many witnesses said their memories of the exact names and number of locums was
lacking.

-- 15 of 22 --

No. 24-5898 United States ex rel. O’Laughlin Page 16
patient who may have received chemotherapy without a physician present. Similarly, Nurse
Katrina Holliman testified that there were occasions when a physician would leave the center
before a chemotherapy session was over. But she also said it could be that the physician left
after the chemotherapy drugs were administered while the patient was still there receiving
ancillary care.
These statements alone are not enough to meet O’Laughlin’s burden. They do not come
close to naming the “who, what, when, where, and how of the alleged fraud.” Sanderson, 447
F.3d at 877 (internal quotation marks omitted). At best, the centers’ alleged “practice” provides
a hint of a fraudulent scheme, but that is not enough for an FCA claim. Ibanez, 974 F.3d at 914.
O’Laughlin must point to a specific fraudulent claim. And for that, he looks to the Master
Schedules. When asked to name any claim where the clinic billed for chemotherapy when no
physician was present, he referred to the Master Schedule. He said you would need to look at
“when chemotherapy [was] administered” and compare that with where K. Jain was scheduled to
work and his “routine schedule” because “he can’t be in two places at once.” R.207-18,
O’Laughlin Dep., pp.78–79, PageID 4487–88. And recall, according to him, K. Jain and
O’Laughlin were the only working physicians.
But this argument rests on even shakier foundations than the last. As discussed,
O’Laughlin’s claim that K. Jain “can’t be in two places at once” relies on his misunderstanding
of how many locums were used. And the Master Schedules do not serve the purpose O’Laughlin
claims—just because a physician was scheduled to be at a particular center at a particular time,
does not mean he actually worked at that center at that time.
The Master Schedules were created when a patient checked out and showed when the
patient had scheduled his follow-up appointment. But they were not regularly updated to reflect
changes. So while they may show when a patient would be on the premises, they did not
necessarily show when a physician was on the premises. For example, K. Jain explained that if a
locum ended up taking over the appointment, it would still appear on the schedule as if the
originally assigned doctor worked it. R.215-1, K. Jain Dep., p.71, PageID 4949. For that reason,
Hayek regularly appeared on the schedule after he left the centers. And Nurse Howard also

-- 16 of 22 --

No. 24-5898 United States ex rel. O’Laughlin Page 17
testified that physicians were “pretty regularly” on-site when they were not scheduled to see
patients that day. R.217-1, Howard Dep., p.131, PageID 5328.
O’Laughlin responded that while the Master Schedules may not have been created to
show who was at which centers when, they can still be used for this purpose. But as Howard and
K. Jain’s testimony make clear, they cannot be reliably used for this purpose. On any given day,
it is not clear that who the schedule says worked, did work. And even the K. Jain testimony that
O’Laughlin cited to show that the schedule can be used for this purpose does not show that the
schedule alone can tell us who worked where. K. Jain says that a combination of documents,
including the schedules, would need to be reviewed to learn where a physician worked on a
particular day. So it is not reasonable to infer (as O’Laughlin alleged) that because K. Jain was
scheduled to work at Highlands CC on Monday, March 31, he or any other physician was not
also treating patients at Ashland BCC. K. Jain could have been at Ashland while a locum was at
Highlands. Or his schedule could have changed. Or any other combination of events that show
that the Master Schedule is an unreliable indicator of where physicians are actually working.
Because O’Laughlin’s weekday category relies on two unreliable indicators— the locums
and the Master Schedules—he cannot say with any certainty that any single one of the claims he
presented is, in fact, false. And a representative false claim is a prerequisite to an FCA violation,
so this category of claims fails. See Ibanez, 974 F.3d at 914. Speculation cannot support an
FCA violation. See Marlar, 525 F.3d at 447. O’Laughlin can’t show there were only two
physicians split between three centers, and the Master Schedules don’t offer sufficient evidence
on the staffing of the different centers either. So his analysis “triangulating” which claims are
false is, as the district court described, “a house built upon the sand.” R.234, Op & Order on
Mot. for Summ. J., p.6, PageID 6926.
2.
O’Laughlin’s next two categories of fraudulent claims deal with Thursday services. He
claims that every Thursday, all physicians worked out of Ashland BCC so that they could attend
educational “tumor board” meetings in a nearby hospital at noon. So no physicians worked at
Highlands CC on Thursdays and no physicians were available during the noon hour at Ashland

-- 17 of 22 --

No. 24-5898 United States ex rel. O’Laughlin Page 18
BCC on Thursdays to provide chemotherapy services. But this category suffers from two flaws:
it assumes every physician attended the meetings and it relied on the Master Schedules to say
both that all physicians were at Ashland BCC and that all physicians were unavailable for the
noon hour.
First, the record does not support O’Laughlin’s claim that every physician attended the
board meetings every Thursday. Start with O’Laughlin’s own testimony. He said that
physicians were not required to attend the meetings, that they were held “[u]sually three out of
every four Thursdays,” and that the schedule would “adjust” if doctors could not attend. R.207-
18, O’Laughlin Dep., pp.32, 72, PageID 4441, 4481. He also admits that he did not attend every
meeting and says it would be “impossible” to do so. Id. at p.72, PageID 4481. He later said he
would attend “on average, . . . at least two of the meetings.” Id. at p.101, PageID 4510. But
sometimes he would “have to go to Logan or one of the other clinics on a Thursday” such that he
could not “attend every meeting.” Id. At first, he also agreed that K. Jain would “usually” attend
the meetings because it was his “routine schedule.” Id. at pp.69–70, 72 PageID 4478–79, 4481.
But he later said K. Jain would “[a]lways” attend the meeting and leave the clinic to do so. Id. at
p.124, PageID 4533.
K. Jain testified that the meetings took place on Thursdays as well as “a variety of
different days at a variety of different times.” R.215-1, K. Jain Dep., p.80, PageID 4958.
Sometimes they were held in the mornings and sometimes in the evenings—whatever time
“could get the best attendance from multiple physicians.” Id. at p.82, PageID 4960. He also said
he attended “[v]ery occasionally” and agreed that he did “not go religiously.” Id. at 81, PageID
4959. The centers aimed to have at least one medical oncologist and one radiation oncologist
attend, but K. Jain acknowledged that this did not always happen “because patient care came
first.” Id. at p.83, PageID 4961. And while he would try not to schedule patients during the
meetings, if an earlier scheduled patient “spilled over” or a patient needed to be seen, he would
not attend the meeting. Id. at p.84, PageID 4962.
Other testimony was similar. Medical Assistant Kintigos said K. Jain “hardly ever
attended” the meetings unless they were in the morning before the centers opened. R.207-16,
Kintigos Dep., p.108–09, PageID 4160–61. And when he did, he would go to the meetings and

-- 18 of 22 --

No. 24-5898 United States ex rel. O’Laughlin Page 19
then “would come back for when patients started” coming in. Id. at p.24, PageID 4076. She said
only one physician, Doctor Konala, attended the meetings regularly. Nurse Howard said that
when K. Jain went to the meetings, she would go with him. But she also said the meetings were
at 7:00 a.m. on those days and the center did not start seeing patients until K. Jain returned.
Only one person claimed that “[n]o physician or non-physician provider was left in the
building” when the meetings were going on. R.210-8, Stephenson Decl., p.5, PageID 4631. But
even she said the meetings only “occurred on about three Thursdays a month” and “[g]enerally”
all physicians went to them. Id. At best, this is a scintilla of evidence in O’Laughlin’s favor. It
does not counter the overwhelming evidence—including from O’Laughlin himself—showing
that the meetings did not occur regularly on Thursdays at noon, K. Jain did not attend them
regularly, and patient care was not affected when he did attend the meetings. And so it does not
create a genuine dispute of fact. See Baker, 936 F.3d at 529.
O’Laughlin pointed to the Master Schedules as a final piece of evidence in his favor. For
the reasons outlined above, the Master Schedules are not reliable for proving which physicians
were at each clinic. Even so, he says that each physician had a “block” on their schedule during
the noon hour on Thursdays, so the physicians were not on the premises. But while Medical
Assistant Kintigos said a schedule block could mean a physician was not on the premises, she
never said that was necessarily what it meant. This tracked K. Jain’s testimony that the block
implied that the physician should not be scheduled with patients at that time. And the centers
tried not to schedule physicians when they thought the meetings would be in the hopes that they
could attend. But if the physician had to work because another patient’s appointment spilled
over or a patient needed care, they could (and would) skip the meeting. Medical Assistant
Kintigos also testified that the blocks were set in advance based on predicted schedules. And we
know the schedules were not regularly updated to reflect changes.
The evidence shows that the tumor board meetings did not occur regularly on Thursdays
at noon, were not regularly attended by K. Jain or O’Laughlin, and physicians were at the centers
regardless of when the meetings took place or what the Master Schedules said. Thus, the
evidence does not show that physicians were absent from the Highlands CC on Thursdays or
from the Ashland BCC on Thursday from noon to 1:00 p.m. In other words, as the trial court

-- 19 of 22 --

No. 24-5898 United States ex rel. O’Laughlin Page 20
found, there isn’t sufficient, reliable evidence on which a jury could rely on to find in
O’Laughlin’s favor. So these two categories of claims also fail.
3.
O’Laughlin’s final category of chemotherapy claims covered weekend services. He said
the centers administered chemotherapy services on weekends without physicians present.
Specifically, he asserted that Leukine injections are a chemotherapy service administered on
weekends and physicians do not work on weekends. So any reimbursement for these services
was improper because they were ineligible for reimbursement. The defendants don’t dispute that
physicians seldom work on weekends but argue that Leukine injections are not a chemotherapy
service.
Leukine is a drug that stimulates the production of white blood cells to reduce a patient’s
risk of infection after chemotherapy. A patient can often self-administer it. But if the patient
cannot, they can come into the centers and have it administered for them.
Both parties look to the American Medical Association’s (AMA) Current Procedural
Terminology (CPT) guidelines to define “chemotherapy drugs.” Medical codes are housed in the
Healthcare Common Procedure Coding System (HCPCS), which is split into two main levels.
Level one has the CPT codes, which provide identifying codes for medical services and
procedures. And in the CPT, the chemotherapy administration codes range from 96401 to
96549. Level two of the HCPCS has another standardized coding system for identifying
products, supplies, and other services not included in the CPT codes. Leukine is in level two.
O’Laughlin concedes that Leukine is listed separately from chemotherapy drugs. But he
argues that it is an injection and infusion service that is part of the overall chemotherapy services
that require physician supervision. But even his own expert said the opposite. In his deposition,
the expert clarified that Leukine’s class of codes are not chemotherapy codes, saying: “[W]ords
matter. . . . I call it all chemotherapy services, but the actual chemotherapy code has its own
range. Therapeutic injections ha[ve] their own range. . . . That’s how the CPT book is . . . set
up.” R.228-6, Kunz Dep., p.6, PageID 6811. So O’Laughlin’s own expert’s testimony does not
support his argument that Leukine injections are a chemotherapy service.

-- 20 of 22 --

No. 24-5898 United States ex rel. O’Laughlin Page 21
Instead, O’Laughlin looks to deposition testimony that, according to him, shows that the
centers viewed Leukine injections as “part and parcel” of chemotherapy services. But even if
that were true, how the staff treats a service does not change its classification for Medicare
purposes. And anyway, it does not seem like that is true. Medical Assistant Kintigos said these
injections “didn’t have to be supervised . . . because the[y] are not chemotherapy shots.” R.207-
16, Kintigos Dep., p.44, PageID 4096. Nurse Dove said a medical oncologist orders the
medication, but that is true of most medications—the physician orders it and someone else
administers it. And she agreed that Leukine injections were “part and parcel” with
chemotherapy services, but only when O’Laughlin’s attorney defined “part and parcel” as “part
of the chemotherapy regime given to patients at Ashland [BCC].” R.216-2, Dove Dep. II, p.31,
PageID 5192. But Nurse Holliman said it was not a chemotherapy drug. And Nurse Howard
said she believed Leukine injections could be given without a physician present, and they were
given on weekends when a physician may or may not have been there. Even O’Laughlin agreed
Leukine injections were a “chemotherapy service” but not a “chemotherapy drug.” R.207-18,
O’Laughlin Dep., p.123, PageID 4532. So even if the staff considered Leukine injections part of
the centers’ overall chemotherapy treatment, it is unclear the staff considered Leukine injections
a chemotherapy service.
Because O’Laughlin did not demonstrate that Leukine injections were a chemotherapy
service, the defendants did not improperly bill Medicare for these services, and this category of
claims fails as well.
* * *
All three alleged categories of false claims fail, so O’Laughlin cannot identify any
specific claim that was false. And because “a fraudulent claim is the sine qua non of a[n] [FCA]
violation,” the district court properly granted summary judgment for the defendants. See Marlar,
525 F.3d at 447 (quoting Sanderson, 447 F.3d at 878).
C.
O’Laughlin’s final count alleged a conspiracy to submit false or fraudulent claims to
defraud the government. The FCA provides liability for conspiracies to violate the statute.

-- 21 of 22 --

No. 24-5898 United States ex rel. O’Laughlin Page 22
United States ex rel. Angelo v. Allstate Ins. Co., 106 F.4th 441, 451–52 (6th Cir. 2024). But “an
agreement that made it likely there would be a violation of the FCA” is not enough. Id. at 452
(internal quotation marks omitted). The agreement’s purpose must be to violate the FCA—that
is, the relator must “plead a ‘specific statement showing the plan was made in order to defraud
the government.’” Id. (quoting Ibanez, 874 F.3d at 917). And “without facts demonstrating ‘a
plan to get false claims paid,’ the allegations fail[].” Id. (quoting Ibanez, 874 F.3d at 917).
The only evidence that O’Laughlin pleaded in support of his conspiracy claim was that
all the defendants committed FCA violations. After all, coordinated false and fraudulent claims
by the defendants would be strong evidence of a conspiratorial agreement. And yet O’Laughlin
has not provided enough proof of these violation. So the conspiracy claim fails.
III.
For these reasons, we affirm.

-- 22 of 22 --