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United States v. Dynamic Visions, Inc.

United States District Court, District of Columbia

December 6, 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 and president, 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 physicians or other qualified health care workers, 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.

         On October 24, 2016, the Court granted-in-part Plaintiff's Motion, and held the remainder in abeyance to allow Plaintiff to supplement the record with competent affidavits on certain discrete issues. Plaintiff has now supplemented the record. Upon consideration of the pleadings, [1] the relevant legal authorities, and the record as a whole, incorporating the October 24, 2016 Opinion as part of that record, the Court now further GRANTS Plaintiff's [103] Motion for Summary Judgment.

         I. BACKGROUND

         The Court already set forth the factual background and procedural history of this case in its October 24, 2016 Memorandum Opinion, which is incorporated and made a part of this Memorandum Opinion. See generally United States v. Dynamic Visions, Inc., No. CV 11-695 (CKK), 2016 WL 6208349 (D.D.C. Oct. 24, 2016). In that Opinion, the Court held that Defendant Dynamic Visions was liable under the FCA for submitting false Medicaid claims to the D.C. Department of Health Care Finance (“DHCF”). The Court found that Defendants' claims impliedly certified compliance with D.C. Medicaid regulations that required home health care services be rendered pursuant to signed “plans of care.” The Court additionally found that the services for which Defendants had billed DHCF were not, in fact, rendered pursuant to such signed plans of care. The Court temporarily withheld judgment on a subset of claims-those associated with Medicaid recipients 1714, 9770 and 4435-in which Plaintiff alleged that plans of care existed in Defendants' records, but that the physician signature on the plan of care had been forged. The Court also withheld judgment on the individual liability of Defendant Isaiah Bongam. The Court gave Plaintiff an opportunity to supplement the record with competent summary judgment evidence on these issues, and Defendants filed a response to that supplement.

         II. LEGAL STANDARD

         Summary judgment is appropriate where “the movant shows that 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 mere existence of some factual dispute is insufficient on its own to bar summary judgment; the dispute must pertain to a “material” fact. Id. Accordingly, “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Nor may summary judgment be avoided based on just any disagreement as to the relevant facts; the dispute must be “genuine, ” meaning that there must be sufficient admissible evidence for a reasonable trier of fact to find for the non-movant. Id.

         In order to establish that a fact is or cannot be genuinely disputed, a party must (a) cite to specific parts of the record-including deposition testimony, documentary evidence, affidavits or declarations, or other competent evidence-in support of its position, or (b) demonstrate that the materials relied upon by the opposing party do not actually establish the absence or presence of a genuine dispute. Fed.R.Civ.P. 56(c)(1). Conclusory assertions offered without any factual basis in the record cannot create a genuine dispute sufficient to survive summary judgment. See Ass'n of Flight Attendants-CWA, AFL-CIO v. Dep't of Transp., 564 F.3d 462, 465-66 (D.C. Cir. 2009). Moreover, where “a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact, ” the district court may “consider the fact undisputed for purposes of the motion.” Fed.R.Civ.P. 56(e).

         When faced with a motion for summary judgment, the district court may not make credibility determinations or weigh the evidence; instead, the evidence must be analyzed in the light most favorable to the non-movant, with all justifiable inferences drawn in its favor. Liberty Lobby, 477 U.S. at 255. If material facts are genuinely in dispute, or undisputed facts are susceptible to divergent yet justifiable inferences, summary judgment is inappropriate. Moore v. Hartman, 571 F.3d 62, 66 (D.C. Cir. 2009). In the end, the district court's task is to determine “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.” Liberty Lobby, 477 U.S. at 251-52. In this regard, the non-movant must “do more than simply show that there is some metaphysical doubt as to the material facts, ” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); “[i]f the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.” Liberty Lobby, 477 U.S. at 249-50 (internal citations omitted).

         III. DISCUSSION

         The Court will first explain the supplemental evidence that Plaintiff has submitted after the Court's October 24, 2016 Opinion, and then discuss the implications of that new evidence for the Court's final resolution of Plaintiff's motion for summary judgment.

         A. Plaintiff's Supplemental Evidence

         As explained in the Court's October 24, 2016 Opinion, nearly Defendants' entire Opposition to Plaintiff's motion for summary judgment is devoted to the argument that the declarations of Claudia Schlosberg and FBI agents Heidi Hansberry and Nicholas J. Phend are inadmissible hearsay and therefore incompetent summary judgment evidence. Defs.' Opp'n at 8-10. The Court considered that argument in its prior Opinion and agreed that certain discrete statements in the declarations of agent Hansberry and Phend were not competent summary judgment evidence. First, the Court held that agent Hansberry's references to statements allegedly made by third-party physicians to FBI agents during the FBI's investigation of Dynamic Visions were hearsay. Agent Hansberry stated that those physicians had told FBI agents that signatures purporting to be theirs on Dynamic Visions' records were forged. The Court gave Plaintiff an opportunity to present the declarations of the physicians themselves.

         Plaintiff has now done so, providing the declarations of Georges Awah, MD, Raj Mathur, MD and Marc Schlosberg, MD. ECF Nos. 115-1 (“Awah Decl.”), 115-2 (“Mathur Decl.”), 115-3 (“Schlosberg Decl.”). Doctor Awah states that he was contacted by FBI Agent Phend on April 8, 2015, about the authenticity of signatures purporting to be his on plans of care associated with Medicaid recipient 1714. Awah Decl. ¶ 2. He states that Agent Phend faxed three such records to him, that he reviewed those records, and that the signatures on two of the three records were not his. Id. ¶¶ 3-5. Doctor Mathur similarly states that he was contacted by Agent Hansberry on April 19, 2015, about the authenticity of signatures purporting to be his on plans of care associated with Medicaid recipient 4435. Mathur Decl. ¶ 2. He states that Agent Hansberry faxed seven such records to him, that he reviewed those records, and that the signatures on four of the seven records were not his. Id. ΒΆΒΆ 3-5. Finally, Doctor Schlosberg states that he was contacted by Agent Phend on April 7, 2015, about the ...


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