USCA11 Case: 21-11064 Date Filed: 11/26/2021 Page: 1 of 9
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-11064
Non-Argument Calendar
____________________
DELIA BELL,
Ex Rel,
Plaintiff-Appellant
Cross-Appellee,
versus
KARL E. CROSS,
CROSS GARDEN CARE CENTER, LLC,
a.k.a. Golden 190, LLC,
Defendants-Appellees
Cross-Appellants,
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2 Opinion of the Court 21-11064
TABITHA CROSS, et al.,
Defendants.
____________________
Appeals from the United States District Court
for the Middle District of Florida
D.C. Docket No. 8:16-cv-00961-JDW-AEP
____________________
Before WILSON, JILL PRYOR, and BRANCH, Circuit Judges.
PER CURIAM:
This is a False Claims Act (FCA) case. Delia Bell, a registered
nurse, alleges that her former employer—a skilled nursing facility
(SNF) called Cross Garden Care Center (CGCC)—and its owner
Karl Cross (together, the Defendants) submitted false claims for re-
imbursement to the Centers for Medicare and Medicaid Services
(CMS). The district court granted the Defendants’ motion for sum-
mary judgment. Bell argues on appeal that the district court erred
by allocating the burden of proof to her, rather than to the Defend-
ants. On a conditional cross-appeal, the Defendants argue that the
affidavit Bell attached to her motion for summary judgment was a
sham and should have been stricken. We need not reach the De-
fendants’ conditional cross-appeal because the district court
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21-11064 Opinion of the Court 3
correctly found that the Defendants are entitled to summary judg-
ment, even when considering Bell’s affidavit.
I.
We begin with some background on Medicare reimburse-
ment at SNFs. Medicare is a federal program that funds health in-
surance for eligible elderly and disabled people. See
42 U.S.C. §§
1395 et seq. The program will cover at least some of the cost of an
eligible patient’s first 100 days at an SNF. SNFs can seek reimburse-
ment for the services they provide through a per diem payment
system. 42 U.S.C. § 1395yy;
42 C.F.R. § 413.335.
The per diem rate at which Medicare reimburses SNFs is re-
lated to the patient’s Resource Utilization Group (RUG) score,
which quantifies the patient’s need for therapy. See Ruckh v. Salus
Rehab., LLC,
963 F.3d 1089, 1095 (11th Cir. 2020). A higher RUG
score equates to higher Medicare reimbursement. RUG scores are
derived from periodic assessments conducted by SNFs to evaluate
patients’ residual functional capacity.
Id. at 1094 (citing 42 U.S.C.
§ 1395i-3(b)(3)(C)). SNFs must submit these assessments, which
are called Minimum Data Sets (MDS), in order to receive Medicare
reimbursement. Id.
II.
Bell worked as a nursing home administrator at CGCC from
November 2014 until she resigned in August 2015. In April 2016,
Bell sued CGCC under the FCA. The FCA enables private citizens,
known as qui tam relators, to sue on behalf of the United States
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4 Opinion of the Court 21-11064
government.
31 U.S.C. § 3730(b). “To establish a cause of action
under the [FCA], a relator must prove three elements: (1) a false or
fraudulent claim; (2) which was presented, or caused to be pre-
sented, by the defendant to the United States for payment or ap-
proval; (3) with the knowledge that the claim was false.” United
States v. R&F Props. of Lake Cty., Inc.,
433 F.3d 1349, 1355 (11th
Cir. 2005) (citing
31 U.S.C. § 3729(a)).
Bell alleged, in part, that the Defendants violated §
3729(a)(1)(A) by providing unnecessary therapy services, artificially
inflating RUG scores, improperly refusing to discharge patients
during their first 100 days at the facility, and improperly re-admit-
ting patients to reset the 100-day period during which Medicare
would reimburse for therapy services. 1 According to Bell, the De-
fendants then submitted false claims for reimbursement to the gov-
ernment.
The Defendants deposed Bell in September 2020. She testi-
fied at the deposition that she is not a licensed therapist and, there-
fore, cannot order therapy or prescribe medications. During her
time at CGCC, Bell was not involved in billing or the creation of
MDS reports. In fact, she never saw a bill or an MDS report. Bell
also had difficulty recalling any patients whose RUG scores had
been manipulated. She recalled generally that Cross sent her
emails inquiring why patients’ RUG scores were not higher, but
1 Bell also alleged violations of § 3729(a)(1)(B) and
Fla. Stat. § 68.082(2)(a), but
those counts were previously dismissed and are not before us on appeal.
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21-11064 Opinion of the Court 5
she was unsure whether any RUG scores were changed as a result.
She later discussed one patient who she believed underwent un-
necessary therapy sessions, though she admitted that a therapy
company had concluded that the patient needed the therapy.
Following the deposition, Bell filed a motion for partial sum-
mary judgment. She attached to that motion her own declaration
stating that she had refreshed her recollection as to the treatment
of seven patients. In her declaration, Bell claimed that CGCC over-
treated these patients and sought reimbursement from the govern-
ment, despite the fact that these patients required little or no ther-
apy. Bell also stated that Cross directed her to increase one pa-
tient’s RUG score without offering any justification. According to
Bell, she raised concerns to a manager at CGCC, but the manager
responded that “this is just how Cross operates.”
The Defendants opposed Bell’s motion for summary judg-
ment and filed their own motion for summary judgment. They also
moved to strike Bell’s declaration because it contradicted her dep-
osition testimony and contained inadmissible testimony. The dis-
trict court denied Bell’s motion, granted the Defendants’ motion
for summary judgment, and denied the Defendants’ motion to
strike Bell’s declaration as moot. In its order, the district court held
that the Defendants had established that there was no genuine is-
sue of material fact as to the FCA claim, and that Bell had “failed to
rebut [that] showing.”
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III.
We review de novo a district court’s grant of summary judg-
ment. Jurich v. Compass Marine, Inc.,
764 F.3d 1302, 1304 (11th
Cir. 2014) (per curiam). We view all facts and make all reasonable
inferences in the light most favorable to the nonmovant.
Id.
IV.
Bell’s argument on appeal is that the district court “failed to
hold [CGCC] to their burden of proof on summary judgment.” She
argues that the district court improperly shifted the burden of proof
to the non-movant.
After careful review, we find that the district court did not
improperly shift the burden of proof. The district court accurately
cited our precedents for the proposition that the moving party (in
this case, the Defendants) bears the initial burden of showing that
there are no genuine disputes of material fact, but “[o]nce the mo-
vant adequately supports its motion, the burden shifts to the non-
moving party to show that specific facts exist that raise a genuine
issue for trial.” Dietz v. Smithkline Beecham Corp.,
598 F.3d 812,
815 (11th Cir. 2010).
Applying this standard, the district court found that there
was no genuine issue of material fact as to (1) whether the Defend-
ants submitted false claims; and (2) the Defendants’ scienter. We
agree with the district court on the first basis and therefore we need
not reach the second.
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21-11064 Opinion of the Court 7
The district court correctly found that Bell “failed to rebut
Defendants’ showing of the absence of a genuine issue of material
fact” as to whether the Defendants submitted a false claim. Bell
attempts to establish a false statement by focusing on the Defend-
ants’ determination that certain patients needed therapy when
such therapy was unnecessary. But in order for a clinical judgment
to be “false” in the context of the FCA, it must be objectively false,
meaning that it “contains a flaw that can be demonstrated through
verifiable facts.” United States v. AseraCare, Inc.,
938 F.3d 1278,
1297 (11th Cir. 2019) (“[A] reasonable difference of opinion among
physicians reviewing medical documentation ex post is not suffi-
cient on its own to suggest that those judgments—or any claims
based on them—are false under the FCA.”). “Objective falsehood
can be shown in a variety of ways,” including through expert testi-
mony.
Id.
Here, Bell failed to create a genuine issue of material fact as
to whether the Defendants’ treatment of patients—and thus their
claims for reimbursement pursuant to that treatment—were based
on objective falsities. See
id. Bell acknowledged that she is not a
licensed therapist or medical doctor, and that she cannot order
therapy or write prescriptions for patients. She did not offer any
testimony in support of her position from a professional who is
qualified to do so. And her own testimony that treatments were
“unnecessary,” which differed from that of the professionals who
authorized the therapy at CGCC, does no more than establish a
difference of opinion. As our decision in AseraCare explains, such
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8 Opinion of the Court 21-11064
a difference of opinion falls short of establishing objective falsity.
See
id.
Bell also stated in her deposition that Cross inquired about
raising RUG scores via email, and she stated in her declaration that
Cross instructed her to raise one patient’s RUG score without of-
fering a reason for the change. However, Bell fails to offer suffi-
cient evidence to establish who these patients are, that these pa-
tients’ RUG scores should not have been altered, and that Cross
submitted an objectively false claim on behalf of these patients.
Also problematic for Bell, she never saw the billing state-
ments that CGCC submitted for reimbursement for the seven pa-
tients she identifies. We have emphasized the importance of med-
ical and billing content in cases where relators allege false claims
based on the provision of unnecessary medical services. See United
States ex rel. Clausen v. Lab’y Corp. of Am.,
290 F.3d 1301, 1303
(11th Cir. 2002). Bell argues that a spreadsheet provided by the
government offers sufficient detail of patients’ billing history and
CGCC’s submissions to Medicare. But as the district court found,
the spreadsheet does not identify the patients in Bell’s declaration.
Nor has Bell used the information in the spreadsheet to marshal
any cogent argument as to how it creates an issue of fact regarding
CGCC’s submission of a false claim. We agree with the district
court, then, that even considering Bell’s declaration, there is no ev-
idence in the record creating a genuine issue of material fact as to
whether the Defendants submitted false claims.
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21-11064 Opinion of the Court 9
Because we find no error in the district court’s allocation of
the burden of proof or in its finding that Bell failed to create a gen-
uine issue of material fact on the submission of false claims, we af-
firm the district court’s grant of summary judgment.
AFFIRMED.
