Court rejects whistleblower's kickback claims against PharMerica

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A whistleblower's allegations that PharMerica, the nation's second largest long-term care pharmacy, made kickbacks to skilled nursing facilities were shot down by a federal court on Monday.

Whistleblower Marc Silver, a former nursing home and pharmacy owner, claimed that PharMerica gave providers drug discounts for Medicare Part A in exchange for prescription referrals for patients insured by Medicare Part D.

Silver's arguments that the pharmacy “must have engaged in swapping transactions” with nursing homes was based on his examination of publicly available financial information from the company, as well as his “expertise” as both a nursing home and pharmacy provider. Silver did not, however, have any business relationship to PharMerica.

In Monday's opinion, Judge Noel L. Hillman with the U.S. District Court for the District of New Jersey ruled that Silver's claims were invalid under the False Claim Act's public disclosure bar, which prevents individuals from pursuing legal action based on publicly disclosed information unless they are the “original source” of that information.

“Silver points to no evidence that would support a conclusion that he had immediate knowledge of any of the specific factual allegations which his FCA claim relies on,” Hillman wrote. “All of Silver's alleged facts are derivative of the information he gathered from other, mostly public, sources.”

While Silver's experience as a nursing home and pharmacy owner “gave him the knowledge to understand the significance of the facts,” his claims were barred under the public disclosure bar, Hillman said. PharMerica's motion to dismiss the case was granted.

The lawsuit, United States ex rel. Silver v. Omnicare, Inc., previously named pharmacy provider Omnicare as well.