United States v. Dynamic Visions, Inc. ( 2016 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA,
Plaintiff,
v. Civil Action No. 11-695 (CKK)
DYNAMIC VISIONS, INC. and ISAIAH
BONGAM,
Defendants.
MEMORANDUM OPINION
(October 24, 2016)
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
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The Court’s consideration has focused on the following documents and their attachments
and/or exhibits: Pl.’s Mot. for Summary Judgment, ECF No. 103 (“Pl.’s Mot.”); Defs.’ Opp’n to
Pl.’s Mot. for Summary Judgment, ECF No. 110 (“Defs.’ Opp’n”); Pl.’s Reply to Defs.’ Opp’n to
Pl.’s Mot. for Summary Judgment, ECF No. 111 (“Pl.’s Reply”). In an exercise of its discretion,
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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
the Court finds that holding oral argument in this action would not be of assistance in rendering a
decision. See LCvR 7(f).
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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.
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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 re-
certified. 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
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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
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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
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Defendants argue that there is a contested issue of fact as to whether this investigation
determined that Dynamic Visions had submitted claims for services that were not, in fact,
rendered at all. Defs.’ Opp’n at 10. Defendants claim that all services for which they billed
Medicaid were rendered. Defs.’ Stmt. at ¶¶ 9-10, 23. However, although some reference is
made in Plaintiff’s Complaint and in the briefing of this Motion to findings that Dynamic Visions
had submitted claims for services not rendered, the Court does not interpret Plaintiff’s Motion as
seeking summary judgment on those claims. Accordingly, the Court assumes Plaintiff is not
pursuing these types of claims in this case, and Plaintiff should notify the Court and Defendants
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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.
if that assumption is not correct. Instead, Plaintiff’s Motion appears to only be seeking judgment
on claims based on services rendered without proper authorization. Therefore, whether or not
the services were, in fact, rendered, is not a material fact.
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Defendants complain that Plaintiff did not provide with its Motion the full names and
identifying information of the patients whose file are at issue. Defs.’ Stmt. at ¶¶ 14, 21. The
omission of this information by Plaintiff appears, however, to be in compliance with Local Civil
Rule 5.4(f), which requires that parties reference only the last four digits of certain account
numbers in their pleadings. Moreover, Defendants’ claims that they could not identify the
patients at issue are debunked by the fact that they provided exhibits with their Opposition which
identify the patients by name.
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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 accounts maintained by Defendant Bongam, including accounts in overseas
banks located in Cameroon. Id. at ¶¶ 2-3.
As the case progressed, it became apparent that Defendants had little intention of
providing Plaintiff any meaningful discovery. This included any discovery related to
Defendants’ finances, as well as practically any discovery related to the substantive factual issues
in this case. ECF No. 85 (holding that “Defendants have repeatedly failed to comply with the
Court’s orders to provide financial and factual discovery requested by Plaintiff” and listing the
categories of discovery Defendants failed to provide). After extensive motion practice and
hearings, and an Order to Show Cause, the Court issued an Order on April 14, 2015 holding
Defendants in contempt for their discovery abuses. ECF No. 94. The Court ordered that
Defendants were precluded from introducing or relying upon in their response to Plaintiff’s
Motion for Summary Judgment or at trial any and all documents that Defendants had not
specifically identified or produced up to that point as relevant to Defendants’ defenses to the
allegations in the Complaint. Id. at 4. The Court held consideration of additional sanctions in
abeyance.
Subsequently, Plaintiff filed the pending Motion for Summary Judgment seeking
judgment on its FCA causes of action with regard to Medicaid claims associated with twenty of
Dynamic Visions’ patients whose files lacked any plans of care, or contained plans of care that
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were backdated, forged, lacked signatures, or were out of date. See Pl.’s Mot. at 29. Defendants
oppose Plaintiff’s motion. 4 See Defs.’ Opp’n. The Motion is now fully briefed and ripe for
resolution.
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
4
The Court refers herein to the amended version of Defendants’ Opposition to Plaintiff’s Motion
for Summary Judgment, filed on August 25, 2015. ECF No. 110. Defendants first filed an
Opposition to Plaintiff’s Motion for Summary Judgment on August 7, 2015. Defs.’ Opp’n to
Pl.’s Mot. for Summary Judgment, ECF No. 106. On August 10, 2015, Defendants requested
leave of Court to amend their Opposition, claiming that they had inadvertently filed the wrong
version of the document and omitted one exhibit. Defs.’ Mot. for Leave to Amend Opp’n to Pl.’s
Mot. for Summary Judgment, ECF No. 107. Plaintiff opposed, arguing that the new Opposition
improperly added legal arguments to its statement of facts in genuine dispute. Pl.’s Opp’n to
Defs.’ Mot. for Leave to Amend, ECF No. 108 at 2. By Minute Order on August 25, 2015, the
Court granted Defendants’ Motion to Amend, but noted that it was withholding judgment on
whether Defendants’ additions to their Opposition were appropriate. The Court addresses that
issue further in this Memorandum Opinion.
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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. U.S. Dep’t of Transp., 564 F.3d 462, 465-66 (D.C.
Cir. 2009). “[S]elf-serving affidavits alone will not protect the non-moving party from summary
judgment.” Carter v. George Washington Univ., 180 F. Supp. 2d 97, 111 (D.D.C. 2001), aff’d,
387 F.3d 872 (D.C. Cir. 2004).
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).
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III. DISCUSSION
A. Defendants’ Hearsay Objections
As a threshold matter, the Court must resolve the parties’ dispute regarding the hearsay
nature of Plaintiff’s summary judgment evidence. Defendants devote nearly all of their
Opposition to Plaintiff’s Motion for Summary Judgment to the argument that the declarations of
FBI agents Heidi Hansberry and Nicholas J. Phend, and the declaration of Claudia Schlosberg,
are inadmissible hearsay and therefore incompetent summary judgment evidence. Defs.’ Opp’n
at 8-10. Unfortunately, Defendants do not point the Court to particular statements in these
declarations that they contend are hearsay, opting instead to characterize the declarations in their
entirety as incompetent summary judgment evidence. The reality, as usual, is more nuanced: the
declarations contain both hearsay and non-hearsay statements. The Court will discuss only those
statements in the declarations that are necessary for the resolution of this Motion.
Defendants are correct that “[a]n affidavit or declaration used to support or oppose a
motion [for summary judgment] must be made on personal knowledge, set out facts that would
be admissible in evidence, and show that the affiant or declarant is competent to testify on the
matters stated.” Fed. R. Civ. P. 56(c)(4). Accordingly, “‘sheer hearsay’ . . . ‘counts for nothing’”
on summary judgment. Greer v. Paulson, 505 F.3d 1306, 1315 (D.C. Cir. 2007) (quoting Gleklen
v. Democratic Cong. Campaign Comm., Inc., 199 F.3d 1365, 1369 (D.C. Cir. 2000)). However,
summary judgment evidence need not be “in a form that would be admissible at trial,” so long as
it is “capable of being converted into admissible evidence.” Gleklen, 199 F.3d at 1369; Sabre
Int’l Sec. v. Torres Advanced Enter. Sols., LLC, 72 F. Supp. 3d 121, 129 n.10 (D.D.C. 2014)
(holding that a declaration could be considered for the purposes of summary judgment because
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“[t]he statements in . . . [the] Declaration are capable of being converted into admissible, non-
hearsay, evidence when . . . [the declarant] testifies at trial”). 5
Applying these principles, the declaration of Claudia Schlosberg is competent summary
judgment evidence because it is based on Ms. Schlosberg’s personal knowledge and does not
contain hearsay. Plaintiff relies on the Schlosberg Declaration as evidence regarding the nature
of D.C. Medicaid Regulations and the requirements for being reimbursed by DHCF for home
health care services. Pl.’s Stmt. at ¶ 29. These are matters about which Ms. Schlosberg has
personal knowledge because she is the Medicaid Director for the District of Columbia Medicaid
Program. Schlosberg Decl. at ¶ 2. In her role, Ms. Schlosberg oversees the administration that
provides oversight and monitoring of personal care aid, which includes home health care
services. Id. at ¶ 3. Accordingly, as stated in her declaration, Ms. Schlosberg is “familiar with
the regulations governing the conditions of payment or reimbursement from Medicaid funds for
the provision of [personal care] services,” and her statements are all based upon “personal
knowledge.” Id. at ¶¶ 1, 3. She is clearly an appropriate declarant with regard to DHCF’s
practices, rules and agreements.
Similarly, the majority of the declarations of FBI agents Heidi Hansberry and Nicholas J.
Phend are competent summary judgment evidence. Plaintiff primarily relies on the Hansberry
Declaration as evidence regarding the content of Dynamic Visions’ patient files, invoices
5
Defendants devote nearly half of their Opposition to Plaintiff’s Motion for Summary Judgment
to a discussion of the admissibility of “overview testimony” given by a government agent at the
opening of a criminal trial, and whether such testimony violates the Confrontation Clause. This
entire passage from Defendants’ brief appears to be copied and pasted from the D.C. Circuit’s
opinion in a criminal case, United States v. Smith, 640 F.3d 358, 366-67 (D.C. Cir. 2011). Put
mildly, the Court does not find this portion of Defendants’ brief particularly persuasive. These
cases do not provide the proper framework for analyzing Defendants’ hearsay objections in this
civil case at the summary judgment stage.
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submitted by Dynamic Visions to DHCF, and various other administrative forms from Dynamic
Visions’ files. 6 Pl.’s Stmt ¶ 29. Plaintiff primarily relies on the Phend Declaration as evidence
regarding the content of Defendants’ various bank records. Both represent an acceptable form of
proof at the summary judgment stage. First, agent Hansberry states that her declaration is based
on “personal knowledge” and that she “participated in the review” of the documents she
describes, Decl. of Heidi Hansberry, ECF No. 103-4 (“Hansberry Decl.”) at ¶¶ 4, 10, and agent
Phend represents that his declaration is based on “information gathered during the course of the
investigation” of Dynamic Visions, of which he has “personal knowledge,” Declaration of
Nicholas J. Phend, ECF No. 103-2 (“Phend Decl.”) at ¶ 4. Like Ms. Schlosberg’s declaration,
although “technically hearsay,” Bortell v. Eli Lilly & Co., 406 F. Supp. 2d 1, 8 (D.D.C. 2005)
(quoting EchoStar Commc’ns Corp. v. FCC, 292 F.3d 749, 753 (D.C. Cir. 2002)), these
declarations clearly could be “converted into admissible evidence,” Gleklen, 199 F.3d at 1369,
should these agents testify at trial.
Moreover, to the extent that the agents’ references to the content of Defendants’ patient
records, bank records or invoices might constitute hearsay, they too are capable of being
6
In their “Statement of Material Facts in Dispute,” Defendants argue that agent Hansberry’s
declaration is “unreliable” because it discusses claims made outside the period alleged in
Plaintiff’s Complaint and because the amount of money agent Hansberry states is associated with
Defendants’ false claims differs from figures put forth by Plaintiff earlier in this litigation. Defs.’
Stmt. at ¶¶ 13, 15. Beyond the fact that neither of these are statements of fact, they are also not
persuasive legal arguments. The Complaint discusses false claims spanning from as early as
January 2006 to as late as June 2009, a time frame which encompasses the vast majority of the
claims discussed by agent Hansberry. Hansberry Decl. at ¶¶ 12-76; Compl. at ¶¶ 17-18. With
respect to a small minority of the patients at issue, the Hansberry declaration does mention
certain records and claims made outside of that period, but, as discussed further below, the Court
will not enter judgment on those claims. Nor is there anything improper or “unreliable” about
the reduction in alleged damages. Plaintiff has apparently made the decision to pursue only
some of the false claims it originally alleged and not others, and the amount of damages pursued
has accordingly been reduced. Pl.’s Response to Defs.’ Stmt. at ¶ 13.
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converted into admissible evidence. All of the records, of which these agents claim to have
personal knowledge from their investigation of Dynamic Visions, themselves facially appear to
be admissible either as non-hearsay statements of a party opponent, Fed. R. Evid. 801(d)(2), or
under exceptions to the hearsay rule for business records, Fed. R. Evid. 803(6), or missing
business records, Fed. R. Evid. 803(7). Plaintiff could also lay the proper foundation for these
agents to provide summary evidence of these records, which seems particularly appropriate
given the thousands of claims at issue and the, at least, thirty bank accounts maintained by
Defendants. “For a summary of documents to be admissible, the documents must be so
voluminous as to make comprehension by the jury difficult and inconvenient; the documents
themselves must be admissible; the documents must be made reasonably available for inspection
and copying; the summary must be accurate and nonprejudicial; and the witness who prepared
the summary should introduce it.” United States v. Fahnbulleh, 752 F.3d 470, 479 (D.C. Cir.
2014); Fed. R. Evid. 1006 (“The proponent may use a summary, chart, or calculation to prove the
content of voluminous writings, recordings, or photographs that cannot be conveniently
examined in court.”). All of these requirements either are satisfied or could be satisfied at trial
with regard to the agents’ summaries of these records.
However, the same cannot be said for agent Hansberry’s references to statements
allegedly made by third-party physicians to FBI agents during the FBI’s investigation of
Dynamic Visions. Agent Hansberry states that various physicians told FBI agents that they did
not sign certain documents, and that signatures on documents that the FBI provided to the
doctors were not their own. See, e.g., Hansberry Decl. ¶ 40 (“Dr. Schlosberg was interviewed
twice by FBI agents by telephone” and stated that certain forms “contained signatures that did
not belong to him and which he did not recognize.”). Plaintiff relies on these statements as
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evidence that the signatures on those documents were forged. Pl.’s Stmt. ¶¶ 29(c), (i), (l).
Defendants’ objection to the use of this evidence is not “baseless,” as Plaintiff claims. Pl.’s
Reply at 6. Plaintiff offers no hearsay exception these statements might fall into. They are
classic hearsay, and accordingly “count for nothing” at the summary judgment stage. Gleklen,
199 F.3d at 1369; see also United States v. Speqtrum, Inc., 47 F. Supp. 3d 81, 89 (D.D.C. 2014)
(noting “an FBI agent’s account of his conversation with a witness” as an example of hearsay
that would normally not be considered at the summary judgment stage in FCA suit).
Also hearsay is FBI agent Phend’s statement about what other FBI agents told him
Octavie Bongam had said about her and her fathers’ respective roles within, and control over,
Dynamic Visions. Phend Decl. at ¶¶ 26-28. While the Court may be inclined to find that Ms.
Bongam’s statements are non-hearsay admissions of a party opponent, Fed. R. Evid. 801(d)(2),
Plaintiff does not provide the Court with any hearsay exception applicable to the statements of
the non-declarant FBI agents. Plaintiff should provide declarations from the actual agents who
claim to have heard these statements. See Equal Employment Opportunity Comm’n v. Howard
Univ., 70 F. Supp. 3d 140, 148 (D.D.C. 2014) (refusing to consider at the summary judgment
stage notes that were “classic hearsay” because “they contain[ed] the out-of-court statements of
third parties and [were] offered to prove the truth of the matter they assert,” and noting that
“plaintiff should have deposed, or obtained declarations from, employees with knowledge.”).
Because it will not consider this hearsay evidence at this time, the Court will hold
Plaintiff’s Motion in abeyance with regard to two sets of claims: (1) claims based on invoices
submitted between January 2006 and June 2009 pursuant to forged plans of care and (2) claims
against Defendant Isaiah Bongam individually. Holding Plaintiff’s Motion in abeyance is
appropriate because the parties’ papers suggest that Plaintiff may be able to marshal the
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testimony of these physicians and other FBI agents, Pl.’s Response to Defs.’ Stmt., ECF No. 111-
1 at 7; Phend Decl. at ¶¶ 26-28, and that Defendants’ sole response to that testimony may be
unsubstantiated, self-serving and conclusory refutation that would not warrant denying summary
judgment, see Decl. of Isaiah Bongam, ECF No. 110-1 at ¶ 7 (“Dynamic Vision did not forge any
physician’s signatures.”); id. at ¶ 20 (“There is no hand writing expert report to show that any
signatures contained in the plans of care are forged.”); id. at ¶ 3 (“I did not have sole control over
[D]ynamic [V]isions accounts . . . I was not the only signatory on the accounts”). Accordingly,
as detailed in the accompanying Order, the Court will allow Plaintiff an opportunity to
supplement the record with affidavits from these physicians and agents.
B. Plaintiff’s FCA Claims
Having resolved Defendants’ evidentiary objections, the Court now moves to the merits of
Plaintiff’s FCA claims. The FCA creates liability for anyone who (1) “knowingly presents, or
causes to be presented, a false or fraudulent claim for payment or approval,” (“false claims”), as
well as anyone who (2) “knowingly makes, uses, or causes to be made or used, a false record or
statement material to a false or fraudulent claim” (“false records or statements”). 31 U.S.C. §
3729(a)(1)(A)-(B). Plaintiff moves for summary judgment on both types of FCA claims.
1. False Records or Statements
Plaintiff’s argument in favor of summary judgment on its “false records or statements”
claim can be quickly dispatched at this time. The only “false statements” Plaintiff points the Court
to are plans of care with forged physician signatures. Pl.’s Mot. at 9. As discussed above,
Plaintiff’s claims of forgery are dependent on hearsay statements from third-party physicians
regarding their signatures. The Court will not consider these statements for the purposes of this
16
Motion unless the record is supplemented with affidavits from the physicians. Accordingly,
Plaintiff is not entitled to summary judgment on this claim at this time.
2. False Claims
The Court will, however, grant-in-part Plaintiff’s Motion with regard to its claim under
Section 3729(a)(1)(A) for presenting “false claims.” The elements of this claim are “[a]
defendant submitted a claim to the government, [b] the claim was false, and [c] the defendant
knew the claim was false.” United States v. Toyobo Co., 811 F. Supp. 2d 37, 45 (D.D.C. 2011)
(quoting United States ex rel. Harris v. Bernad, 275 F. Supp. 2d 1, 6 (D.D.C. 2003)).
a. Dynamic Visions Submitted Claims to the Government
No genuine dispute exists as to whether Dynamic Visions submitted claims to the
Government. The evidence clearly demonstrates that Dynamic Visions submitted numerous
Medicaid claims for payment to DHCF between January 2006 and June 2009. Pl.’s Stmt. ¶ 29.
Defendants argue that Plaintiff cannot satisfy this element because Dynamic Visions did not submit
claims directly to the United States government, Defs.’ Stmt. ¶ 25, but this argument fails to
properly grasp the scope of the FCA. The FCA defines “claim” to encompass “any request or
demand . . . for money or property . . . whether or not the United States has title to the money or
property, that . . . is made to a contractor, grantee, or other recipient, if the money or property is to
be spent or used on the Government’s behalf or to advance a Government program or interest, and
if the United States Government . . . provides or has provided any portion of the money or property
requested or demanded.” 31 U.S.C. § 3729(b)(2). Defendants do not dispute that “Federal and
state governments jointly fund Medicaid.” Pl.’s Stmt. ¶ 2 (emphasis added). Accordingly,
“[b]ecause state Medicaid expenditures are, in part, reimbursed by the federal government,
‘Medicaid claims submitted to a state are . . . ‘claims’ to the federal government under the FCA.’”
17
Speqtrum, 47 F. Supp. 3d at 90 (quoting United States v. Rogan, 459 F. Supp. 2d 692, 717 (N.D.
Ill. 2006), aff’d, 517 F.3d 449 (7th Cir. 2008)).
b. The Claims Were False
The next element Plaintiff must prove under a “false claims” theory of liability is
falsity. There are two overarching ways Plaintiff may demonstrate falsity. The first is factual
falsity: “[i]n the paradigmatic case, a claim is false because it ‘involves an incorrect description
of goods or services provided or a request for reimbursement for goods or services never
provided.’” United States v. Sci. Applications Int’l Corp., 626 F.3d 1257, 1266 (D.C. Cir. 2010)
(“SAIC”) (quoting Mikes v. Straus, 274 F.3d 687, 697 (2d Cir. 2001)).
Plaintiff briefly argues that it has demonstrated that Dynamic Visions’ claims were
factually false, but the Court disagrees. First, to the extent that Plaintiff’s argument is based on
forged signatures on plans of care, Plaintiff’s only evidence of forgery is hearsay and thus will not
be credited for the purposes of summary judgment at this time, without supplementation of the
record with the sworn affidavits of the physicians. Second, Plaintiff argues that Dynamic Visions’
claims for reimbursement were factually false because the services for which Dynamic Visions
sought reimbursement were not duly authorized as required under D.C. Medicaid
Regulations. The Court disagrees with Plaintiff that this renders the claims factually false. Far
from falling within the “paradigmatic” case of falsity, as Plaintiff claims, the fact that the services
for which Dynamic Visions sought reimbursement were not rendered pursuant to proper
authorization in a signed plan of care does not render the claims factually “false.” See United
States v. Kellogg Brown & Root Servs., Inc., 800 F. Supp. 2d 143, 155 (D.D.C. 2011) (rejecting the
government’s “somewhat surprising[ ]” argument that defendant’s claims were factually false
18
simply because they sought reimbursement for “costs that [defendant] knew were not allowed”).
Instead, as discussed below, these claims are actionable under a different theory of falsity.
The second way a claim may be false is if it falsely certifies compliance with an applicable
statute, regulation or contract. False certifications can be either express or implied. See SAIC, 626
F.3d at 1266. Here, Plaintiff argues that Dynamic Visions impliedly certified compliance with
D.C. Medicaid Regulations when it submitted claims for reimbursement to DHCF. “[T]o establish
the existence of a ‘false or fraudulent’ claim on the basis of implied certification,” Plaintiff must
show not only that Dynamic Visions withheld information in a misleading way regarding its
noncompliance with the regulations, but also that that noncompliance would have been material
to the DHCF’s decision to pay Dynamic Visions’ claims. SAIC, 626 F.3d at 1269; Universal
Health Servs., Inc. v. United States, 136 S. Ct. 1989, 2001-02 (2016). Plaintiff has made that
showing here.
First, the undisputed evidence shows that Dynamic Visions withheld information about its
regulatory violations. As explained above, D.C. Medicaid Regulations require providers to prepare
and maintain written plans of care for each patient, which have been approved by the patient’s
physician or other qualified health care worker. Plaintiff has demonstrated, and Defendants have
not meaningfully rebutted, that Dynamic Visions did not comply with these regulations. 7 Pl.’s
Stmt. ¶ 29. Numerous invoices were submitted to DHCF between January 2006 and June 2009
7
Defendants do provide the Declaration of Mr. Bongam which states, without explanation or
supporting documentation, that Dynamic Visions “maintained a policy and procedure manual
that was compliant with DCHF regulations” and “followed the policy and procedures stated in
the manual.” Defs.’ Stmt. at ¶ 1. But this does not create a genuine issue of material fact. The
fact that Dynamic Visions “established” a manual that it believed complied with D.C. Medicaid
Regulations does not rebut Plaintiff’s documentary evidence that plainly shows that Dynamic
Visions, whether it adhered to that manual or not, in fact violated those regulations.
19
for services that were beyond the scope of existing, signed and authorized plans of care maintained
by Dynamic Visions. 8 The Court notes that the Hansberry Declaration makes reference to even
more claims for unauthorized services that were submitted outside of this time period, but the
Court will enter judgment only on those claims submitted inside the January 2006 to June 2009
period alleged in the Complaint.
Moreover, this is not a case where Dynamic Visions was merely silent about its compliance,
or lack thereof, with these regulations. Here, Dynamic Visions’ silence was misleading because it
had previously affirmatively represented to the D.C. Department of Health, in a written contract,
that it would “be in full compliance” with these regulations, “submit invoices for payment
according to the Department’s requirements,” and maintain all required records. Provider
Agreement at 14, 16.
Second, Plaintiff has also made a sufficient and unrebutted showing that Dynamic Visions’
noncompliance, had it been known to DHCF, would have been material to DHCF’s decision to
pay Dynamic Visions’ claims. “[A] misrepresentation about compliance with a statutory,
regulatory, or contractual requirement must be material to the Government’s payment decision in
order to be actionable under the False Claims Act.” Universal Health Servs., 136 S. Ct. at 2002.
“[W]hen evaluating materiality under the False Claims Act, the Government’s decision to
expressly identify a provision as a condition of payment is relevant, but not automatically
dispositive.” Id. at 2003. The Government’s practice of paying or not paying claims when it
knows that the particular provision has been violated is also probative. Id.
8
This includes each of the flaws Plaintiff has argued exist in Dynamic Visions’ patient files
(unsigned or non-existent plans of care, plans of care signed too far before or after service dates,
duplicate claims, and services not authorized by existing plans of care), with the exception of
plans of care with forged signatures.
20
Plaintiff offers at least three forms of evidence that compliance with the plan of care
requirements was material to DHCF’s decision to pay Dynamic Visions’ claims. First, the D.C.
Medicaid Regulations themselves state that reimbursement will only be made for “authorized
services.” Pl.’s Ex. 2 at § 5009.4. The requirement that services be “authorized” in turn refers to
the existence of a plan of care signed by a physician or other qualified health care worker.
Schlosberg Decl. at ¶ 10. As Plaintiff explains, and the Court finds eminently reasonable,
authorization in the form of a signed plan of care is a requirement for reimbursement because it is
the only way D.C. Medicaid can know that the services for which it is paying have been determined
to be medically necessary. Pl.’s Mot. at 2. Second, Dynamic Visions’ contract with the D.C.
Medicaid Program states that payment can be withheld “[i]f the Department determines that a
provider has failed to comply with the applicable Federal or District law or rule.” Provider
Agreement at 17. Finally, Plaintiff provides the declaration of the Medicaid Director of the District
of Columbia Medicaid Program that states that DHCF does not, in fact, reimburse providers for
services provided where there is no plan of care, where the plan of care has not been signed by a
physician or advanced practice nurse, where the plan of care has been signed but only after services
had been rendered, or where a signed plan of care exists but the services billed exceed the scope
of that plan. Schlosberg Decl. at ¶¶ 13-18.
Defendants do not dispute any of this evidence of materiality, nor do they argue in even a
conclusory manner that the regulatory violations at issue would not have been material to DHCF’s
decision to pay. The Court accordingly finds that no dispute of material fact exists with regard to
the falsity of Defendants’ claims based on an implied certification theory.
21
c. Dynamic Visions Knew the Claims Were False
Finally, Plaintiff also must prove that Defendants knew their claims were false. The FCA
only prohibits “knowingly” submitting false claims, a term it defines as either having “actual
knowledge of the information,” acting “in deliberate ignorance of the truth or falsity of the
information,” or acting “in reckless disregard of the truth or falsity of the information.” 31 U.S.C.
§ 3729(a)(1)(A), (b)(1). “Establishing knowledge . . . on the basis of implied certification requires
the plaintiff to prove that the defendant knows (1) that it violated a contractual [or regulatory]
obligation, and (2) that its compliance with that obligation was material to the government's
decision to pay.” SAIC, 626 F.3d at 1271. Plaintiff has made this showing with respect to
Defendant Dynamic Visions.
First, the evidence demonstrates that Dynamic Visions acted with at least a “reckless
disregard” for the truth regarding its submission of claims in violation of D.C. Medicaid
Regulations. False claims were rampant, including thousands of invoices for services worth nearly
half of one million dollars over an approximately three year period from 2006 to 2009. Pl.’s Stmt.
at ¶ 29. When the DHCF-OPI, FBI and HHS-OIG conducted a post payment review of the records
of twenty-five recipients of Dynamic Visions’ services, all twenty-five were found to have
contained insufficient documentation to support Dynamic Visions’ claims. Hansberry Decl. at ¶¶
7-9. And these violations would not have been difficult to identify. Even a cursory review of the
company’s files would have revealed most of these problems, such as files with absolutely no
authorizations from doctors for the care being rendered, see, e.g., Pl.’s Stmt. ¶ 29(e), or plans of
care with blank signature blocks, Ex. 3b, ECF 103-7 at 2. Nor is this a case where knowledge of
these violations might have been diffuse: from the record, it appears that Dynamic Visions is a
very small operation. The only employee identified other than Defendant Bongam is his daughter,
22
Octavie Bongam. Provider Agreement at 20. The record shows that, even if they lacked actual
knowledge, Dynamic Visions’ employees ignored signs of trouble. Dynamic Visions appears to
have had in place quality control mechanisms that included calling the recipients of their services.
See Hansberry Decl. at ¶¶ 24 n.8, 26 n.11, 50 n.16, 54 n. 24, 72 n. 29. And yet, when Dynamic
Visions was unable to make any contact with a recipient, even after upwards of fifteen attempts to
do so, it simply continued to submit claims to D.C. Medicaid. Id. Disregarding these red flags
further shows that Dynamic Visions acted with reckless disregard for the truth.
Second, the evidence is also sufficient to show that Dynamic Visions knew, or was at least
reckless in not knowing, that these violations were material to DHCF’s willingness to pay its
Medicaid claims. In late 2003, Octavie Bongam, then the Administrator of Dynamic Visions,
affirmatively acknowledged in a written agreement that Dynamic Visions was required to comply
with D.C. Medicaid Regulations and submit its invoices according to those regulations, and that
failure to do so could lead to the withholding of payment. Provider Agreement at 14, 16-17. As
already explained, those D.C. Medicaid Regulations, in turn, plainly require plans of care be in
place authorizing service, a point reaffirmed by the undisputed statements of the D.C. Medicaid
Director that DHCF does not reimburse providers for services without such authorization. Pl.’s
Ex. 2 at § 5000 et seq.; Schlosberg Decl. at ¶¶ 13-18.
Moreover, Dynamic Visions demonstrated its knowledge of the materiality of these
requirements through its own conduct. Dynamic Visions prepared a “policy and procedure
manual” for its employees to make sure that they billed for services in compliance with D.C.
Medicaid Regulations, Defs.’ Stmt. 1, and developed quality control procedures to ensure
compliance, Hansberry Decl. at ¶¶ 24 n.8, 26 n.11, 50 n.16, 54 n. 24, 72 n. 29. Tellingly, in at least
23
one instance, when a plan of care was found to be missing a signature, an “urgent” memo was sent
to the physician requesting authorization. Ex. 8e, ECF No. 103-12.
In response to this showing, Defendants offer no evidence that would create a genuine
dispute as to the knowing nature of this conduct. Accordingly, the Court finds that Plaintiff is
entitled to summary judgment on its false implied certification claim against Defendant Dynamic
Visions. 9
C. Defendant Isaiah Bongam and Piercing the Corporate Veil
Plaintiff seeks to hold Defendant Isaiah Bongam individually liable for submitting these
false claims as well, either on the theory that he himself violated the FCA, or that Dynamic Visions
was merely Bongam’s “alter-ego” and therefore the Court should pierce its corporate veil. The
Court will hold Plaintiff’s Motion in abeyance with regard to these matters pending Plaintiff’s
submission of the supplemental affidavits discussed above.
IV. CONCLUSION
For the reasons discussed above, the Court shall GRANT-IN-PART Plaintiff’s [103]
Motion for Summary Judgment. Specifically, the Court GRANTS Plaintiff’s Motion with respect
to Plaintiff’s “false claims” claim under an implied certification theory against Defendant Dynamic
9
Specifically, the Court grants summary judgment against Dynamic Visions with regard to the
false claims submitted between January 2006 and June 2009 associated with Medicaid recipients:
9667, 6415, 9805, 2853, 5899, 3146, 5592, 4070, 6512, 2297, 3442, 1464, 5215, 3097, 4956,
5315, 9608. See Pl.’s Stmt. at ¶ 29. The Court also grants summary judgment as to the false
claims from this period associated with Medicaid recipient 1714 to the extent they relate to the
complete absence of any plan of care. Id. at ¶ 29(c). However, absent supplemental affidavits
from the physicians whose signatures were allegedly forged, the Court does not at this time grant
summary judgment with regard to claims associated with recipients 9770 or 4435, or with regard
to the subset of claims associated with recipient 1714 that are related to forged plans of care. Id.
at ¶¶ 29(c), (i), (l).
24
Visions. 10 As to claims based on forged physician signatures and claims against Defendant
Bongam individually, the Court will hold Plaintiff’s Motion in abeyance to allow Plaintiff an
opportunity to file supplemental affidavits.
An appropriate Order accompanies this Memorandum Opinion.
/s/
COLLEEN KOLLAR-KOTELLY
United States District Judge
10
The Court grants summary judgment only as to liability, and will also hold in abeyance a
determination of the particular amount of damages. Plaintiff’s explanation of its damages are
insufficient for the Court to be able to discern which damages relate solely to forged plans of
care and the judgment should not include any damages from claims outside of the January 2006
to June 2009 period. Moreover, Plaintiff does not address in its Motion for Summary Judgment
its request for treble and other damages. See Compl. at 8.
25