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United States v. Dynamic Visions, Inc.

United States District Court, District of Columbia

October 24, 2016

UNITED STATES OF AMERICA, Plaintiff,
v.
DYNAMIC VISIONS, INC. and ISAIAH BONGAM, Defendants.

          MEMORANDUM OPINION

          COLLEEN KOLLAR-KOTELLY UNITED STATES DISTRICT JUDGE

         This is 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 [103] Motion for Summary Judgment.

         Upon consideration of the pleadings, [1] the relevant legal authorities, and the record as a whole, the Court shall GRANT-IN-PART Plaintiff's [103] 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.

         I. BACKGROUND

         A. Factual Background

         Before 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.”).

         Defendants 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)).

         1. Home Health Care and Medicaid

         Defendant 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.

         Dynamic 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.

         The 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.

         Providers 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.

         Dynamic 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.

         To the 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.

         2. Investigations of Dynamic Visions

         In 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.[2]

         The 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.[3] Id. at ¶ 29.

         B. Procedural History

         Based 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 ¶¶ 24-31.

         Plaintiff 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 ...


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