United States v. Dynamic Visions Inc ( 2017 )

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 20, 2017)
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.
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The Court’s consideration has focused on the following documents and their attachments
and/or exhibits: Pl.’s Mot. for Entry of Final Judgment and for Award of Damages and Civil
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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.
Penalties, ECF No. 122 (“Pl.’s Mot.”); Pl.’s Suppl. to Mot. for Entry of Final Judgment and for
Award of Damages and Civil Penalties, ECF No. 139 (“Pl.’s Suppl.”); Def.’ Isaiah Bongam’s
Resp. to Pl.’s Suppl. to Mot. for Entry of Final Judgment and for Award of Damages and Civil
Penalties, ECF No. 146 (“Bongam’s Opp’n”); Def. Dynamic Visions’ Opp’n to Pl.’s Mot. for
Entry of Final Judgment, ECF No. 148-1 (“Dynamic Visions’ Opp’n”); Pl.’s Omnibus Reply in
Support of Mot. for Entry of Final Judgment and for Award of Damages and Civil Penalties, ECF
No. 150 (“Pl.’s Reply”). In an exercise of its discretion, 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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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
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$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.
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Defendants argue that these errors, which Agent Turner discovered on her own and have been
resolved, show that Plaintiff’s evidence is too unreliable to warrant entry of final judgment. The
Court disagrees. Contrary to Defendants’ argument, there is nothing about the particular errors
Agent Turner discovered that suggest any wide-scale problem with her calculations. If anything,
the government’s forthcoming response to its discovery of minor errors in Agent Turner’s
calculations indicate the trustworthiness of its evidence.
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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
3
In a previous Order, the Court noted that the Turner declaration appeared to discuss certain
instances of false claims submitted or paid outside of the January 2006 to June 2009 time period
alleged in the Complaint. The Court ordered the Plaintiff to supplement the record with a
“break[ ] down” of the dates associated with the false claims for which Plaintiff is seeking actual
damages to ensure the Court that the requested award of damages was based only on false claims
within that time period. The government has done so, by submitting a supplemental declaration
from Agent Turner explaining that instances discussed in her original declaration that fell outside
of the time period set forth in the Complaint were included only to provide the Court with a
“complete picture of the contents of the patient files” and that Agent Turner’s actual calculation
of damages “remained at all times within the time-frame set forth in the Complaint.” See Suppl.
Decl. of Heidi Turner, ECF No. 139-1. Agent Turner attached to her supplemental declaration a
chart that indicates the time frames for the claims considered for each patient at issue, and none
fall outside of the January 2006 to June 2009 time frame. ECF No. 139-2.
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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.
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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 of three times this amount,
or $1,469, 232.06. 4
B. Plaintiff’s Request for Civil Penalties
Next, the Court must determine the amount of civil penalties to award Plaintiff in addition
to its damages. The FCA states that Defendant “is liable to the United States Government for a
civil penalty of not less than $5,000 and not more than $10,000” for each false claim submitted,
and that “range has subsequently been increased to $5,500 to $11,000.” United States v. Speqtrum,
Inc., 2016 WL 5349196, *3 (D.D.C. 2016) (citing 64 Fed. Reg. 47099, 47103 (1999)). The Court’s
inquiry is accordingly twofold. It must first determine how many false “claims” Defendant
submitted, and then it must decide the amount of penalty to assess per claim.
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There is an exception to the trebling of damages under section 3729(a)(2), but that exception is
clearly not applicable here. Section 3729(a)(2) states that the Court can instead assess not less
than two times the amount of damages sustained if the defendant “furnished officials of the
United States responsible for investigating false claims violations with all information known to
such person about the violation within 30 days after the date on which the defendant first
obtained the information, fully cooperated with any Government investigation of such violation,
and at the time such person furnished the United States with the information about the violation,
no criminal prosecution, civil action, or administrative action had commenced under this title
with respect to such violation, and the person did not have actual knowledge of the existence of
an investigation into such violation.” Defendants do not contend that these requirements are
satisfied and, given Defendants’ well-documented lack of cooperation in this case, it is clear that
they are not.
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1. Number of “Claims”
The FCA defines the term “claim” as “any request or demand, whether under a contract or
otherwise, for 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; or . . . will reimburse such contractor, grantee,
or other recipient for any portion of the money or property which is requested or demanded . . .”
31 U.S.C. § 3729(b)(2). “Whether a defendant has made one false claim or many is a fact-bound
inquiry that focuses on the specific conduct of the defendant.” United States v. Krizek, 111 F.3d
934, 939 (D.C. Cir. 1997). “The Courts asks, ‘With what act did the defendant submit his demand
or request and how many such acts were there?’” Id.
Here, the answer is that Defendant Dynamic Visions submitted demands for payment with
each computerized invoice filing it submitted for reimbursement. Plaintiff suggested this
conclusion despite the fact that each invoice Dynamic Visions submitted contained a number of
individual recipient-based invoices which could also theoretically each be considered a “claim.”
Defendant did not respond to Plaintiff’s suggestion that this is a reasonable means of calculating
the “claims” at issue, and the Court finds that it is. Defendant made 47 such filings, see Pl.’s Ex.
27, ECF No. 122-4, and accordingly submitted 47 false “claims,” see Speqtrum, Inc., 2016 WL
5349196, *4 (in similar case, finding that each “separate and distinct computerized invoice[ ] for
reimbursement of services” constituted a claim for the purposes of calculating civil penalties).
2. Amount of Civil Penalty Per Claim
Next, the Court must determine how large of a penalty to assess per each of the 47 claims
at issue. The Court has discretion to determine the amount of civil penalty to assess between an
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amount of $5,500 and $11,000. “Though there is no defined set of criteria by which to assess the
proper amount of civil penalties against the defendant, the Court finds that an approach
considering the totality of the circumstances, including such factors as the seriousness of the
misconduct, the scienter of the defendants, and the amount of damages suffered by the United
States as a result of the misconduct is the most appropriate.” United States ex rel. Miller v. Bill
Harbert Intern. Const., Inc., 501 F. Supp. 2d 51, 56 (D.D.C. 2007).
In this case, Plaintiff argues that the totality of the circumstances calls for the maximum
penalty to be assessed per false claim because employees of Defendant Dynamic Visions forged
signatures of physicians on plans of care and Defendant took money from programs intended to
service needy patients. Plaintiff also argues that the maximum penalty is warranted because using
47 as the amount of claims at issue, despite the fact that each of the 47 invoices submitted by
Dynamic Visions contained several false acts, understates the severity of Defendants’ actions.
The Court agrees that the maximum penalty is appropriate for the reasons cited by Plaintiff.
Defendants’ arguments in response are unconvincing. Both Defendants spend a considerable
amount of their briefing challenging the Court’s prior conclusion that Dynamic Visions employees
forged the signatures of physicians on certain plains of care. Defendant Dynamic Visions argues
that “although the Court entered summary judgment in favor of Plaintiff” on this issue, it erred in
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doing so because it “failed to consider the evidence before it an draw justifiable inferences in favor
of Dynamic Visions.” Defs.’ Opp’n at 7. 5
These arguments are not well taken. The Court already determined that there was no
genuine dispute of fact with regard to whether Defendant’s employees forged signatures on plans
of care at the liability stage. The Court notes that it carefully considered this issue at that time.
The Court refused to grant summary judgment in Plaintiff’s favor on this issue initially and
required Plaintiff to file declarations from each physician at issue regarding their signatures.
Plaintiff then submitted sworn declarations from each physician, all of whom stated that the
signatures on the plans of care were not their own and also not those of anyone authorized to sign
on their behalf. In response, Defendants offered only unsubstantiated, self-serving, and conclusory
denials. Accordingly, the Court granted summary judgment for Plaintiff. The Court’s prior
Opinions addressing this issue are incorporated into this Opinion as though set forth in full.
Dynamic Visions, 216 F. Supp. 3d at 12; Dynamic Visions, 220 F. Supp. 3d at 21-22. Defendants
have offered no adequate reason for reconsidering that decision now, and the Court declines to do
so.
Moreover, even if the Court were to revisit the issue in the context of determining the
proper amount of civil penalties to assess, Defendants’ arguments are simply unpersuasive. They
5
Defendant Bongam goes further and argues that the United States Attorney’s Office has
engaged in fraud and purposely submitted false information to the Court. Defendant’s
accusations are completely unfounded and are accordingly rejected by the Court. In response to
Defendants’ repeated complaint that Plaintiff’s evidence is simply false, the Court simply notes
that Defendants had numerous opportunities to present rebutting evidence during the discovery
process and did not do so. The Court also notes once again that to the extent Defendant Bongam
continues to contest Defendant Dynamic Visions’ liability, he has no standing to do so. See Fed.
R. Civ. P. 17(a)(1) (“an action must be prosecuted in the name of the real party in interest.”).
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are based purely on Defendants’ speculation and cherry picked portions of the record, and are
rebutted by the actual non-hearsay evidentiary record.
Accordingly, for the reasons cited by Plaintiff, and noting Defendants’ lack of cooperation
in this matter, the Court will assess an $11,000 penalty per false claim. In sum, the Court will
assess a total of $517,000 in civil penalties.
III. CONCLUSION
For the foregoing reasons, the Court will GRANT Plaintiff’s Motion for Entry of Final
Judgment and for Award of Damages and Civil Penalties. The Court finds that an evidentiary
hearing is not needed and that Plaintiff is entitled to $1,469, 232.06 in damages and $517,000 in
civil penalties. In total, Plaintiff will be awarded $1,986,232.06. An appropriate Judgment
accompanies this Memorandum Opinion. 6
/s/
COLLEEN KOLLAR-KOTELLY
United States District Judge
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The Court is aware that Plaintiff has requested additional sanctions against Defendants for their
failure to comply with discovery orders. The only particular additional sanction Plaintiff has
suggested at this time is that the Court incarcerate Defendant Bongam until he provides truthful
financial discovery or pays the final judgment issued by the Court. The Court previously
indicated that it would revisit the issue of sanctions after it had ruled on Plaintiff’s Motion for
Entry of Final Judgment, and would give Defendants an opportunity to brief the issue then.
Defendants need not brief this issue because the Court will not impose the additional sanction
requested at this time. The Court assumes that the Defendants will fully and promptly comply
with the judgment of the Court. Plaintiff’s request for additional sanctions is accordingly denied
without prejudice.
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