United States District Court, District of Columbia
COLLEEN KOLLAR-KOTELLY UNITED STATES DISTRICT JUDGE
a False Claims Act (“FCA”) suit brought by
Plaintiff United States of America against home health care
provider Dynamic Visions, Inc. and its sole owner, registered
agent, president and chief corporate officer, Isaiah Bongam
(collectively “Defendants”). Plaintiff alleges
that between January 2006 and June 2009 Defendants submitted
false or fraudulent claims to Medicaid for reimbursement for
home health care services. Specifically, Plaintiff claims
that many of the patient files associated with the claims
made by Defendants did not contain “plans of
care” as required under applicable regulations, or
contained plans of care that were not signed by a physician
or other qualified health care worker, did not authorize all
of the services that were actually rendered, or contained
forged or untimely signatures. Presently before the Court is
Plaintiff's  Motion for Summary Judgment.
consideration of the pleadings,  the relevant legal
authorities, and the record as a whole, the Court shall
GRANT-IN-PART Plaintiff's  Motion for Summary
Judgment. With one exception, the Court finds that Plaintiff
is entitled to summary judgment on its claim that Defendant
Dynamic Visions submitted false claims under an implied
certification theory of liability. The Court excepts from
this finding, however, Plaintiff's claims based on forged
plans of care because Plaintiff's evidence of forgery is
hearsay and therefore not competent summary judgment
evidence. The Court will temporarily hold Plaintiff's
Motion in abeyance as to these claims and as to
Plaintiff's claims against individual Defendant Isaiah
Bongam to give Plaintiff an opportunity to supplement the
record with competent affidavits.
discussing the facts of this case, the Court must address the
implications of Defendants' failure to respond to the
vast majority of the facts in Plaintiff's Statement of
Material Facts Not in Genuine Dispute. Federal Rule of Civil
Procedure 56(e) states that “[i]f a party . . . fails
to properly address another party's assertion of fact as
required by Rule 56(c), the court may . . . consider the fact
undisputed for purposes of the motion.” In this case,
the parties were specifically and repeatedly put on notice
that “[t]he party responding to a statement of material
facts must respond to each paragraph with a correspondingly
numbered paragraph, indicating whether that paragraph is
admitted or denied” and “[t]he Court may assume
that facts identified by the moving party in its statement of
material facts are admitted, unless such facts are
controverted in the statement filed in opposition to the
motion.” ECF No. 86 (emphasis in original); see
also Order Establishing Procedures, ECF No. 2
(“[t]he Court assumes facts identified by the moving
party in its statement of material facts are admitted, unless
such a fact is controverted in the statement of genuine
issues filed in opposition to the motion.”).
did not heed these warnings. Defendants did include with
their Opposition to Plaintiff's Motion for Summary
Judgment a “Statement of Material Facts in
Dispute.” However, Defendants did not indicate the
particular facts in Plaintiff's statement to which
Defendants' listed “facts” correspond and
rebut. As far as the Court can tell, the listed
“facts” either are not responsive to any fact in
Plaintiff's Statement, are irrelevant to the pending
Motion, or are merely legal arguments. Accordingly, although
the Court will address the facts in Defendants' Statement
where appropriate, the majority of the facts in
Plaintiff's Statement will be considered admitted.
See Canning v. U.S. Dep't of Def., 499 F.Supp.2d
14, 16 (D.D.C. 2007) (deeming facts admitted that were not
adequately addressed by non-movant's Statement of
Material Facts in Dispute that “blend[ed] factual
assertions with legal argument”) (quoting Colbert
v. Chao, No. CIV.A. 99-0625, 2001 WL 710114, at *8
(D.D.C. June 19, 2001), aff'd, 53 F.App'x
121 (D.C. Cir. 2002)).
Home Health Care and Medicaid
Dynamic Visions is a home health care provider. Pl.'s
Stmt. of Material Facts Not in Genuine Dispute, ECF No. 103-1
(“Pl.'s Stmt.”) at ¶ 13. Home health
care refers to the provision of care in a patient's
residence and other assistance with the activities of daily
life such that the patient may continue to live at home.
Id. at ¶ 6. Defendant Isaiah Bongam is the sole
owner, registered agent, president and chief corporate
officer of Dynamic Visions. Id. at ¶ 17.
Visions provided home health care services to recipients of
Medicaid, and regularly submitted claims for reimbursement
for those services to the D.C. Department of Health Care
Finance (“DHCF”). Id. at ¶ 13.
Medicaid provides medical services to eligible individuals
with incomes too low to meet their own medical needs.
Id. at ¶¶ 1-2.
rules and requirements for the reimbursement of home health
care services under D.C. Medicaid are contained in the D.C.
Municipal Regulations. Pl.'s Ex. 2, ECF No. 103-6 (D.C.
Mun. Regs. tit. 29, § 5000, et seq.)
(“D.C. Medicaid Regulations”). Under these
regulations, recipients may qualify for the type of home
health care services provided by Dynamic Visions if:
(a) The Medicaid recipient has received an initial assessment
in which the recipient is determined to have functional
limitations in one or more activities of daily living for
which personal care services are needed; and
(b) The physician or nurse, after evaluation of the Medicaid
recipient, has an expectation that the medical, nursing and
social needs can be safely, adequately and appropriately met
in the recipient's home or other location.
Id. § 5005.1. A central condition to D.C.
Medicaid's willingness to pay for such home health care
services is that they must have been authorized by a
physician or other qualified health care worker in a document
referred to as a “plan of care.” Specifically,
the D.C. Medicaid Regulations require that “[e]ach
Provider shall develop a written plan of care within
seventy-two (72) hours of the initial evaluation of the
patient based upon an assessment of the patient's
functional limitations.” Id. § 5006.2.
“The plan of care shall specify the frequency, duration
and expected outcome of the services rendered.”
Id. § 5006.3. “The plan of care shall be
approved by the patient's physician or advanced practice
registered nurse” and must be regularly recertified.
Id. §§ 5006.4-6.5.
are also required to “maintain accurate records
reflecting past and current findings, the initial and
subsequent plans of care, and the ongoing progress of each
patient.” Id. § 5007.1. These patient
records must include, among other things, “the initial
certification and re-certifications of the plan of
care.” Id. § 5007.8(a). The regulations
state that “[e]ach provider shall agree to accept as
payment in full” an amount determined to be
reimbursement for “the authorized services
provided to clients.” Id. § 5009.4
(emphasis added). In other words, providers are only entitled
to reimbursement for services that are authorized by
physicians or other qualified health care workers pursuant to
their plans of care. Decl. of Claudia Schlosberg, ECF No.
103-3 (“Schlosberg Decl.”) at ¶ 10. The D.C.
Medicaid Regulations provide a mechanism for auditing
providers to ensure that Medicaid payments are “made in
accordance with federal and District rules governing
Medicaid, ” and to “recoup . . . those monies
erroneously paid to the Provider . . . .” Pl.'s Ex.
2 at §§ 5010.1-10.4.
Visions was on notice of the importance of complying with
these regulations. Dynamic Visions entered into a written
agreement with the D.C. Department of Health that stated that
in order to participate in D.C. Medicaid, Dynamic Visions
must “comply with applicable Federal and district
standards for participation in [Medicaid].” Medicaid
Provider Agreement, ECF No. 103-5 (“Provider
Agreement”) at 13. Dynamic Visions agreed to remain
“in full compliance with the standards prescribed by
Federal and State standards” and to “maintain all
records relevant to this Agreement at [Dynamic Visions']
cost, for a period of six years or until all audits are
completed, whichever is longer.” Id. at 14.
Dynamic Visions was also required to “submit invoices
for payment according to the Department's
requirements.” Id. at 16. Finally, the
Provider Agreement states that “[i]f the Department
determines that [Dynamic Visions] has failed to comply with
the applicable Federal or District law or rule[s] . . . the
Department may . . . [w]ithhold all or part of the
providers' payments.” Id. at 17.
extent that there is any ambiguity in this regulatory and
contractual framework regarding the importance of properly
authorized plans of care and the maintenance of provider
records, the Court finds that the undisputed declaration of
Claudia Schlosberg cements these points. Ms. Schlosberg, the
Medicaid Director of the District of Columbia Medicaid
Program, states that “the failure to obtain proper
authorization from a physician or advanced practice
registered nurse, or to maintain records, such as timecards
or other records of services actually rendered, would result
in denial of reimbursement.” Schlosberg Decl. at ¶
10. More specifically, Ms. Schlosberg states that DHCF would
not reimburse providers for services rendered outside the
scope of authorization documented in a plan of care in the
following scenarios: (1) “when the plan of care is not
signed by a physician or advanced practice nurse, ” (2)
“when there is no plan of care in the beneficiary's
file, ” (3) “when the plan of care is signed
before or after the dates of service, ” (4) “when
the provider is rendering . . . services based on a plan of
care with a forged signature, ” (5) “when the
provider submits duplicate claims, ” and (6)
“when the provider bills for . . . services that exceed
the hours that are authorized in the [p]lan of [c]are or
bills for services that are not authorized in the plan of
care.” Id. at ¶¶ 13-18.
Investigations of Dynamic Visions
2008, the DHCF conducted a “post payment review”
of claims submitted by Dynamic Visions to D.C. Medicaid.
Pl.'s Stmt. at ¶ 22. During that review, DHCF
audited the records of twenty-five recipients of Dynamic
Visions' services between January 2006 and October 2008,
and concluded that they contained insufficient documentation
to support Dynamic Visions' claims for payment.
Id. at ¶¶ 23-24.
DHCF's findings led to a further review of Dynamic
Visions' claims by the Federal Bureau of Investigation
(“FBI”) and the Department of Health and Human
Services - Office of the Inspector General
(“DHHS-OIG”). Id. at ¶ 25. The FBI
and the DHHS-OIG confirmed the DHCF's findings and
subsequently obtained and executed a search warrant for
Dynamic Visions' office and Isaiah Bongam's home,
during which Dynamic Visions' patient files were seized.
Id. at ¶¶ 26-28. The FBI's review of
these patient files revealed that many either lacked plans of
care entirely, or had plans of care that were not signed or
otherwise did not authorize the care that Defendants claimed
to have provided. Id. at ¶ 29.
on the results of these investigations, Plaintiff filed this
suit on April 7, 2011. Compl., ECF No. 1. Plaintiff alleged
that Defendants submitted fraudulent claims to D.C. Medicaid
for home health care services not rendered or not authorized.
Id. at ¶ 1. At its most inclusive, the period
of time Plaintiff alleges these claims were submitted is
January 2006 to June 2009. Id. at ¶¶
17-18. Plaintiff asserted causes of action under the FCA for
false claims, false certifications and false records, as well
as a cause of action for common law fraud. Id. at
then promptly moved for, and the Court granted, a prejudgment
writ of attachment and garnishment with regard to, among
other things, thirty bank accounts maintained by Defendants
Bongam and Dynamic Visions. See App. for Prejudgment
Writ of Attachment and Garnishment, ECF No. 6. Plaintiff
produced evidence at that time to support its concern that
large amounts of money were being funneled out of Dynamic
Visions and into personal or unrelated corporate ...