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United States ex rel. El-Amin v. George Washington Univ.

United States District Court, D. Columbia.

November 25, 2013

UNITED STATES OF AMERICA, ex rel. SHEILA EL-AMIN, et al., Plaintiffs/Relators,
v.
THE GEORGE WASHINGTON UNIVERSITY, Defendant

For SHEILA EL-AMIN, JOYCE B. LASLEY, KATHERINE LINDEN, ROBERT A. ROUBIK, Plaintiffs: Victor Aronoff Kubli, LEAD ATTORNEY, Law Office of Victor A. Kubli, P.C., Germantown, MD.

For GEORGE WASHINGTON UNIVERSITY, Defendant: Thomas B. Smith, LEAD ATTORNEY, GEORGE WASHINGTON UNIVERSITY, Office of the Senior Vice President and General Counsel, Washington, DC; Betsy K. Wanger, GEORGE WASHINGTON UNIVERSITY, Office of the Vice President & General Counsel, Washington, DC; Jonathan Lee Diesenhaus, William David Nussbaum, HOGAN LOVELLS U.S. LLP, Washington, DC.

For UNITED STATES OF AMERICA, Movant: Michael F. Hertz, LEAD ATTORNEY, Department of Justice, Washington, DC.

COLLEEN KOLLAR-KOTELLY, United States District Judge. JOHN M. FACCIOLA, United States Magistrate Judge.

OPINION

COLLEEN KOLLAR-KOTELLY, United States District Judge.

Page 31

MEMORANDUM OPINION

Relators Sheila El-Amin, Joyce Lasley, Katherine Linden, and Robert Roubik are four certified registered nurse anesthetists (" CRNAs" ) formerly employed by Defendant, the George Washington University (" GWU" ). They bring this qui tam action against GWU on behalf of the United States, alleging that GWU violated the False Claims Act (" FCA" ), 31 U.S.C. § § 3729-3733, by submitting false claims for reimbursement for anesthesia procedures to Medicare. Relators contend that these claims were false because GWU allegedly sought reimbursement from Medicare under the pretense that the anesthesia procedures had been wholly performed by a licensed anesthesiologist when parts had actually been performed by residents or CRNAs.

Presently before the Court is Defendant GWU's [797] Motion for Summary Judgment, which seeks summary judgment on the remaining claims of Relators' Third Amended Complaint. Upon careful consideration of the parties' submissions,[1] the relevant authorities, and the record as a whole, GWU's Motion for Summary Judgment is GRANTED.

I. BACKGROUND

This case has been actively litigated for over eighteen years, during which time three district judges and two magistrate judges have issued myriad rulings that have culminated in the pending motion. Although the Court assumes familiarity with the many prior opinions and orders detailing the background of this protracted action, it provides here a relevant summary of the facts and procedural developments that have led to this point.[2]

A. The Remaining Claims

For all practical purposes, the story of this case in its present form began on June 5, 1998, when Relators filed the fourth and final iteration of their Complaint. See Third Am. Compl., ECF No. [42] (" Compl." ). The Complaint, in this final iteration, asserted three overarching claims. Relators' First Claim asserted that GWU has " knowingly presented, or caused to be presented, to officers or employees of the United States Government, false or fraudulent claims for payment or approval in violation of 31 U.S.C. § 3729(a)(1) [3]."

Page 32

Id. ¶ 63. Relators' Second Claim asserted that GWU " knowingly made, used, or caused to be made or used, false records or statements to get false or fraudulent claims approved by the Government in violation of 31 U.S.C. § 3729(a)(2)." Id. ¶ 65. Relators' Third Claim asserted that GWU " conspired" with three national anesthesiologist associations to " defraud" the federal government. Id. ¶ 67.

Of these three claims, only two remain " live," and only in part. Relators' Third Claim was dismissed by Judge Thomas A. Flannery on November 10, 1998, because Relators " fail[ed] to identify any agreement between the parties to defraud the government or to engage in any act that could constitute an attempt to defraud the government." U.S. ex rel. El-Amin v. George Washington Univ., 26 F.Supp.2d 162, 165 (D.D.C. 1998). In that same decision, Judge Flannery also held that Relators' First and Second Claims are barred by the applicable statute of limitations insofar as they relate to Medicare claims predating October 24, 1989. See id. at 173. In addition, many years later--specifically, on February 25, 2005--Judge John Garrett Penn further narrowed the scope of this action by dismissing Relators' so-called " false concurrency" subspecies of claims, concluding that the allegations in the Complaint failed to meet the heightened pleading standards of Federal Rule of Civil Procedure 9(b). See U.S. ex rel. El-Amin v. George Washington Univ., 2005 WL 485971, at *11 (D.D.C. Feb. 25, 2005).

Today, we are left only with Relators' First and Second Claims, as limited by the aforementioned decisions. To prevail on their First Claim, Relators must show that (1) GWU submitted a claim for payment or approval to the federal government, (2) the claim was false, and (3) GWU knew the claim was false. See 31 U.S.C. § 3729(a)(1). To prevail on their Second Claim, Relators must show that (1) GWU created a record and used the record to get the government to pay its claim for payment or approval, (2) the record was false, and (3) GWU knew the record was false. See id. § 3729(a)(2). Under either provision, Relators must show that GWU submitted a " claim" to the government, a term that is broadly defined to include any request or demand of money from the government, whether made directly or through an intermediary. See id. § 3729(c).

B. Falsity and the " Seven Steps" Regulation

In this case, to demonstrate that GWU submitted " false" claims to Medicare, Relators will attempt to show that GWU's anesthesiologists failed to meet the requirements of a billing regulation commonly known as the " seven steps" regulation. See 42 C.F.R. § 405.552. Much earlier in this action--specifically, on August 31, 2005--Judge Penn concluded that a physician must perform each of the seven steps for each procedure to be eligible for the highest level of reimbursement and could not delegate performance of those tasks to residents or CRNAs. See U.S. ex rel. El-Amin v. George Washington Univ., 2005 WL 3275997, at *8 (D.D.C. Aug. 31, 2005); see also Mem. Order (June 19, 2006), ECF No. [604] (denying GWU's motion for reconsideration). Therefore, for each allegedly false claim, Relators will attempt to show that the attending anesthesiologist failed to satisfy one or more of the seven steps. See 42 C.F.R. § 405.552(a)(1)(i)-(vii).

Page 33

C. The Fifteen Named Anesthesiologists

The Complaint includes allegations about the conduct of fifteen named anesthesiologists, but periodically alludes to other, unnamed anesthesiologists. See Compl. ¶ 34. On February 25, 2005, Judge Penn found that, together, the FCA and Federal Rule of Civil Procedure 9(b) require " specificity regarding identities of individual actors." U.S. ex rel. El-Amin v. George Washington Univ., 2005 WL 485971, at *6 (D.D.C. Feb. 25, 2005). Judge Penn accordingly held that Relators can pursue " only claims based on the conduct of the fifteen anesthesiologists named," and dismissed " any claims based on the conduct of unnamed anesthesiologists." [WL] at *7. Judge Penn denied Relators an opportunity to amend their Complaint, noting that " [t]he record clearly reveals that ...


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