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United States v. Dynamic Visions, Inc.

United States District Court, District of Columbia

October 22, 2017

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”). In its Complaint, Plaintiff alleged that between January 2006 and June 2009 Defendants submitted false or fraudulent claims to Medicaid for reimbursement for home health care services. Specifically, Plaintiff claimed that many of the patient files associated with the claims made by the 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. On December 6, 2016, the Court granted Plaintiff's Motion for Summary Judgment. Now pending before the Court is Plaintiff's Motion for Entry of Final Judgment and for Award of Damages and Civil Penalties. Upon consideration of the pleadings, [1] the relevant legal authorities, and the record as a whole, the Court GRANTS Plaintiff's Motion.

         I. BACKGROUND

         The Court has already set forth the factual background and procedural history of this case in its October 24, 2016 and December 6, 2016 Memorandum Opinions, which are incorporated by reference and made a part of this Memorandum Opinion. See generally United States v. Dynamic Visions, Inc., 216 F.Supp.3d 1 (D.D.C. 2016); United States v. Dynamic Visions, Inc., 220 F.Supp.3d 16 (D.D.C. 2016). In those Memoranda and associated Orders, 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 Dynamic Visions' 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 plans of care. In its December 6, 2016 Memorandum Opinion and Order, the Court also pierced Defendant Dynamic Visions' corporate veil to hold Defendant Bongam individually liable. On January 3, 2017, Defendant Bongam filed a Motion to Set Aside the Court's December 6, 2016 Order, which the Court denied. Now pending and fully briefed is Plaintiff's Motion for Entry of Final Judgment and for Award of Damages and Civil Penalties.

         II. DISCUSSION

         The pending motion for final judgment is not an opportunity to re-litigate Defendants' liability. Defendants were given every opportunity to mount a timely defense as to their liability at the appropriate stages. The Court's only task now is to determine the amount of the final judgment to be entered. As explained below, Defendants' latest arguments are either irrelevant to that task or simply meritless.

         A. Plaintiff's Request for Damages

         The Court must first determine the amount of damages to which Plaintiff is entitled. The FCA provides that, in addition to civil penalties, any person who violates the statute shall be liable to the government for “3 times the amount of damages which the government sustains because of the act of that person.” 31 U.S.C. § 3729(a). Plaintiff has submitted several declarations and exhibits establishing the damages it has sustained. Of primary importance, Plaintiff has submitted the declaration of Federal Bureau of Investigation (“FBI”) Special Agent Heidi Turner (nee Heidi Hansberry). See Decl. of Heidi Turner, ECF No. 103-4. That declaration explains in detail the nature of the fraudulent claims submitted by Defendants and the resulting amounts of money the government outlaid. Agent Turner explains that the FBI, the Department of Health and Human Services-Office of the Inspector General, and the United States Attorney's Office for the District of Columbia conducted a review of Defendants' records, and that Agent Turner participated in that review. Based on the results of this review, Agent Turner's declaration lists the plans of care that were on file for each patient at issue in this case, the time periods that were not covered by any legitimate plans of care on file, how many invoices were submitted for the patients during the time periods where no legitimate plan of care was on file, and how much the government paid out for those unauthorized invoices. In total, Agent Turner states that the government has paid Defendants $489, 983.90 based on such fraudulent invoices. In a later-filed supplemental declaration, Agent Turner stated that she had discovered minor errors in her calculations and that the actual amount of damages was $489, 744.02.[2]

         Defendants have previously attacked Agent Turner's declaration on various evidentiary grounds and the Court has already rejected Defendants' arguments. The Court has found, and reiterates now, that the declaration is competent, reliable, non-hearsay evidence from a witness who was personally involved in reviewing Defendant's own business records, all of which were produced to Defendants during discovery. The Court did originally hold Plaintiff's motion for summary judgment in abeyance in part to allow it to provide additional evidence on certain discrete issues discussed in Agent Turner's declaration, but Plaintiff subsequently supplemented the record on those points to the Court's satisfaction. Beyond these evidentiary issues, Defendants have not presented contrary evidence to, or otherwise meaningfully rebutted, Agent Turner's findings and calculations.

         Plaintiff has also buttressed Agent Turner's declaration by submitting a declaration from the Director of Health Care Operations Administration of the DHCF, Donald Shearer. See Decl. of Donald Shearer, ECF No. 122-1. In his declaration, Mr. Shearer explains the information system DHCF uses to keep track of all of the claims filed with the DHCF by providers and the moneys the DHCF pays out. He states that he provided Agent Turner with DHCF's official reports and records from that system regarding claims paid for Defendants' patients for Agent Turner's review. The Court is satisfied that the evidence submitted by Plaintiff demonstrates that the government sustained $489, 744.02 in damages.

         Defendants raise various arguments regarding Plaintiff's evidence and calculation of damages, but all are without merit. First, Defendants challenge the time frame used to calculate damages-January 2006 to June 2009.[3] Defendants argue that the time period for damages should not extend all the way to June 2009, but should instead stop after December 2008-the outside date of the DHCF's original administrative review of Defendants' Medicaid claims and after a search and seizure was executed in Defendants' home and offices. This argument is unpersuasive. As an initial matter, Defendants themselves represented in their summary judgment filings that the relevant time period extended to June 2009. See Defs.' Stmt. of Material Facts in Dispute, ECF No. 110, ¶¶ 16-17. More importantly, there is simply no reason why the time period of Defendants liability would stop in 2008. The Complaint clearly alleges instances of fraudulent billing by the Defendants beyond that date, extending up to June 2009. Compl., ECF No. 1, ¶ 18. Accordingly, there is nothing improper about calculating damages suffered up to that date.

         Second, Defendant Dynamic Visions argues that it cannot effectively challenge the government's evidence of damages without access to the voluminous underlying DHCF payment records Agent Turner reviewed and that are summarized in the evidence Plaintiff has filed. This argument is disingenuous. Plaintiff reasonably provided its evidence in summary form pursuant to Federal Rule of Evidence 1006, and expressly stated in its supplemental motion for final judgment that the underlying documents were “available to the Defendants upon request.” Pl.'s Suppl. at 3 n.1. The Court will not allow Defendants to willfully refuse to review these documents and then rely on their purported lack of access to them as a reason for the Court to deny Plaintiff's motion.

         Finally, Defendants argue that Plaintiff's showing is insufficient because they have not proven “whether the check[ ] numbers for payment provided by Plaintiff [were] in fact cashed, ” and because Plaintiff has not shown that the payments “in fact relate[ ] to the alleged unsupported and/or unauthorized claims filed by Dynamic.” Dynamic Visions' Opp'n at 2. Both arguments fail. Although Plaintiff's evidentiary showing does not speak in terms of whether checks were “cashed, ” the records provided by Mr. Shearer to Agent Turner for her calculations contained “the amount[s] paid” in response to each of Defendants' claims. The record therefore shows that these amounts were “paid” by the government and accordingly constitute damages. Moreover, the government has in fact demonstrated how the payments made by DHCF relate to Defendants' fraudulent claims. In his declaration, Mr. Idongesit Umo, a paralegal specialist with the United States Attorney's Office, traces how the payment information from DHCF records matches up with the Medicaid recipients identified in Agent Turner's declaration. See Decl. of Idongesit Umo, ECF No. 122-2.

         In sum, the Court finds that the amount of actual damages sustained by the Plaintiff is $489, 744.02. Under section 3729(a), Plaintiff is entitled to an award ...


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