Health Law Daily U.S. prevails in Medicaid false claims suit against home health care provider
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Wednesday, October 26, 2016

U.S. prevails in Medicaid false claims suit against home health care provider

By Robert B. Barnett Jr., J.D.

Affidavits from two FBI agents and the local Medicaid program director were sufficient to establish that a home health care provider submitted false Medicaid claims, the U.S. District Court for the District of Columbia has ruled. The affidavits, however, were insufficient to establish that the plans of care were forged or that the home health care owner was individually liable because proof of those claims contained in the affidavits was based on hearsay statements made by third parties to the FBI agents. The U.S., therefore, was given leave to supplement its proof with affidavits from the actual third parties who made the statements to the FBI agents (U.S. v. Dynamic Visions, Inc., October 24, 2016, Kollar-Kotelly, C.).

Case history. A post payment review by the D.C. Department of Health Care Finance (DHCF) of claims summited by Dynamic Visions, a home health care provider, to D.C. Medicaid found rampant failure by Dynamic Visions to document payment claims. For example, of 25 recipients audited between 2006 and 2008, all 25 contained insufficient documentation.

DHCF’s findings led to a further investigation of Dynamic Visions by the FBI and by the HHS Office of Inspector General, which involved executing search warrants and seizing files. The FBI determined that many patient files lacked plans of care entirely or had plans of care that were either unsigned by any doctor or were not authorized to provide care that matched the claims. The U.S. filed suit against Dynamic Visions and individually against Isaiah Bongam, Dynamic Visions’ sole owner, alleging false claims under the False Claims Act (FCA), false certifications, false records, and common law fraud. The U.S. obtained a writ of attachment allowing it to seize 30 bank accounts, following evidence that Bongam was funneling money out of Dynamic Visions and into his personal accounts, including an offshore account in Cameroon. The U.S. subsequently filed a motion for summary judgment, seeking judgment under the FCA related to claims for 20 patients that lacked plans of care, or had plans of care that were backdated, forged, lacked signatures, or were out of date.

Adequacy of proof. To support its motion for summary judgment, the U.S. submitted affidavits from two FBI agents involved in the investigation and from the director of the D.C. Medicaid program. Dynamic Vision’s defense was that the affidavits were based on hearsay.

Summary judgment proof, the court said, need not be in a form admissible at trial as long as it capable of being converted into admissible evidence at trial. The Medicaid program director’s statements about the Medicaid program requirements and the FBI agents’ statements about what they found in their investigation constituted sufficient proof because their statements were based on personal knowledge. Their statements about bank records or patient records, though potentially hearsay, were sufficient for summary judgment purposes because that evidence could be converted into admissible evidence, by producing either the records themselves or a summary of those records.

Some parts of the FBI affidavits, however, were problematic. One FBI affidavit included a statement that physicians told the FBI agent that their signatures on the documents were forged. Similarly, the affidavit from the FBI agent who investigated the bank records included a statement from Bongam’s daughter as to her father’s role in and control over Dynamic Visions. Those statements by those third parties were hearsay and thus constituted insufficient proof of any claims related to those statements.

FCA claims. As a result, the claim that Dynamic Visions violated the FCA by submitting false records or statements could not be proved because proof depended on the hearsay statements from the doctors that their signatures were forged. The affidavits, however, did constitute sufficient proof to establish under the FCA that Dynamic Visions knowingly submitted false Medicaid claims for payment. The most difficult element to establish was falsity. Although the affidavits were insufficient to establish that the claims were factually false because the only evidence of forgery was hearsay, the U.S. was able to establish falsity through a concept called implied false certification. In effect, falsity was established by showing that Dynamic Visions repeatedly violated the Medicaid regulations and repeatedly withheld information about its regulatory violations.

Piercing the veil. The U.S. was unable to establish Bongam’s personal liability for the alleged fraud because proof depended on the statement in the affidavit from his daughter, which was hearsay.

As a result, the court granted summary judgment to the U.S. on its claim that Dynamic Visions violated the FCA by submitting false claims. The claims based on forged physician signatures and the individual claims against Bongam, however, were held in abeyance to give the U.S. time to submit supplemental affidavits from the physicians and from Bongam’s daughter.

The case is No. 11-695 (CKK).

Attorneys: Darrell C. Valdez, U.S. Attorney's Office, for the United States. Jude Chinedu Iweanoge (The Iweanoges Firm, P.C.) and Patrick J. Christmas (Patrick J. Christmas & Associates, P.C.) for Dynamic Visions Inc. d/b/a Dynamic Visions Home Health Services.

Companies: Dynamic Visions Inc.; Dynamic Visions Home Health Services

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