[00:00:05] Speaker 01: Oh, yay, oh, yay, oh, yay. [00:00:08] Speaker 01: All persons having business before the Honorable, the United States Court of Appeals for the District of Columbia Circuit are admonished to draw near and give their attention, for the Court is now sitting. [00:00:19] Speaker 01: God save the United States and its Honorable Court. [00:00:21] Speaker 01: Be seated, please. [00:00:26] Speaker 01: Case number 17-5265 at L, United States of America versus [00:00:39] Speaker 01: E.U. [00:00:39] Speaker 01: Amnesium for Pellet Bionic Efficiency. [00:01:12] Speaker 03: Good morning. [00:01:13] Speaker 03: You may proceed. [00:01:22] Speaker 04: My name is Azaya Bongam. [00:01:26] Speaker 04: I was the CEO of Dynamic Vision and I performed my duties as it was prescribed by the Board of Directors. [00:01:39] Speaker 04: The only issue is that in 2008, we had the FBI come into the office and looted everything from the office. [00:01:52] Speaker 04: So that is how it started. [00:01:55] Speaker 04: They went with everything, swept my house, swept the office, went and stayed from 2008 to 2015. [00:02:04] Speaker 04: And they came back and told me that [00:02:08] Speaker 04: I didn't have any criminal offense, but they went back and held a meeting with Medicaid that they were going to sue me for false POCs. [00:02:26] Speaker 04: But these are POCs that were signed by the doctors. [00:02:32] Speaker 04: So we waited, they went to court, [00:02:37] Speaker 04: And the judge told them that the claim for civil award was not possible because they had no supporting documents. [00:02:49] Speaker 04: So on the 15th of April, no, on the 4th of April, 2015, the investigators decided to institute another investigation. [00:03:06] Speaker 04: So they went down to the medical doctors. [00:03:09] Speaker 04: They called Dr. Awa, Dr. Matthew, and Dr. Schultzberg and told them that they wanted them to verify some POCs. [00:03:25] Speaker 04: and tell them if these POCs were valid or not. [00:03:30] Speaker 04: So they faxed the POCs to these doctors. [00:03:33] Speaker 04: Dr. Awa received his on the 7th of April. [00:03:37] Speaker 04: On the 8th, he called them on the phone and told them that the three POCs that were with him, he realized that his signature was only on one. [00:03:52] Speaker 04: But in the end, he told them that [00:03:55] Speaker 04: He realized that in 2008, somebody complained in his office that one of his employees was signing POCs in his name. [00:04:09] Speaker 04: And they did all this investigative report on telephone. [00:04:14] Speaker 04: So they were in their office and taking notes of what the doctors were saying. [00:04:21] Speaker 04: But what happened is that when they wrote [00:04:25] Speaker 04: The report in April, they did not send the results to the court, not to anywhere. [00:04:34] Speaker 04: They waited until November 2016. [00:04:39] Speaker 04: Then they created a new report. [00:04:44] Speaker 04: And in the new report they created, they did not write exactly what the doctors had told them to write. [00:04:54] Speaker 04: So they kept the report that they wrote in April and just drafted something and sent down to the doctor after 19 months. [00:05:06] Speaker 04: So the doctor just signed and sent them back to them. [00:05:11] Speaker 04: So with that document, since the judge had [00:05:17] Speaker 04: did a summary ruling and put in abeyance. [00:05:21] Speaker 03: I'm out of my time? [00:05:25] Speaker 03: Yes, you're out of your time. [00:05:35] Speaker 05: May it please the court, Judy Wanage on behalf of the Appellant Dynamic Visions. [00:05:42] Speaker 05: The broad issue in this case is whether the district court erred by granting summary judgment to the government at the stage of the proceedings that we were. [00:05:55] Speaker 05: This is a false claim case and as this court recognizes, false claim essentially boils down to [00:06:04] Speaker 05: knowledge of the falsity and materiality of the alleged falsity. [00:06:09] Speaker 05: And based on the record before the district court, there was insufficient and clearly disputed evidence before that court for the court to make a finding that there was no dispute and that summary judgment was required or was necessary at that point. [00:06:31] Speaker 05: And when it comes down to the issue of knowledge, the question becomes whether dynamic vision acted with knowledge of the falsity as required for liability to attack. [00:06:42] Speaker 05: And that is an evidentiary question, and courts look to the totality of the circumstances [00:06:48] Speaker 05: And this cannot be done at that summary judgment stage, especially in a case such as this where the district court was aware that this case actually was taken before the grand jury. [00:06:59] Speaker 05: The grand jury could not find anything and did not even come down with an indictment. [00:07:03] Speaker 05: The court essentially relied on an investigative report which, as the record shows, kept changing as we went on. [00:07:14] Speaker 05: But the district court, in essence, pretty much weighed the evidence because if the court looks at what the court said at some point, in order for the court to base knowledge, the court said that at least the employees of Dynamic Vision should have been aware that they ignored signs. [00:07:33] Speaker 05: So using that, it's possible that they should have known. [00:07:37] Speaker 05: So the court, in essence, [00:07:40] Speaker 05: went into weighing evidence, contrary to what this court knows that the ruling in Cellotex requires, that the court is not supposed to weigh the evidence in order to make that determination. [00:07:50] Speaker 05: But however, the district court gave the government, well, after the initial review of the pleadings by the court, the court determined that they didn't have enough and then gave the government another bite at the apple, that they should go down, seek information, [00:08:07] Speaker 05: And as Mr. Bongham stated, the government essentially prepared affidavits, faxed to doctors, doctors came back, and then the court just went in. [00:08:16] Speaker 05: Without making the necessary inference, the court basically was saying that the appellant, Dynamic Vision, did not dispute [00:08:27] Speaker 05: the facts. [00:08:28] Speaker 03: As I understand it, one of the concerns the district court had was that you've never introduced valid plans of care supporting all of the claims in question. [00:08:41] Speaker 05: Well, you know, there were valid plans of care. [00:08:43] Speaker 05: The issue bowed down to whether, one, the plans of care were forged, two, whether the plans of care were signed after the six-month period, which is what was required. [00:08:54] Speaker 05: by the Medicaid styling and the regulations. [00:08:57] Speaker 05: So the issue was, it was the burden of the government to produce records to show that these were in fact forged plans of care or that the claims that were presented by dynamic research. [00:09:10] Speaker 03: We'll ask the government about the forgery claims, but what I'm getting at is [00:09:16] Speaker 03: As far as I can tell, for the record, you never produced valid plans of care in support of all your claims. [00:09:23] Speaker 05: There are a lot of claims that you had no valid plans of care to offer. [00:09:33] Speaker 05: thousands and thousands of claims that were presented. [00:09:35] Speaker 05: The government did an audit, big 25 out of the 25. [00:09:40] Speaker 05: They said some of them, that the plans of care were signed beyond the time period, and that some of them were unsigned. [00:09:47] Speaker 05: But there were plans of care that were presented. [00:09:48] Speaker 05: The issue was whether the plans of care complied with what they required. [00:09:53] Speaker 05: And unsigned plans of care don't comply, right? [00:09:56] Speaker 05: Well, an unsigned plan of care will not comply based on the statute. [00:09:59] Speaker 05: However, the issue still boils down to, [00:10:03] Speaker 05: Was that part of the claim or was that the claim that was presented before the court? [00:10:07] Speaker 05: And if they were not signed, that particular issue, just like the court recognized in Escobar, that it's... [00:10:14] Speaker 05: fact by fact basis. [00:10:16] Speaker 05: Each claim is independent of the other. [00:10:18] Speaker 05: They are not the same thing. [00:10:19] Speaker 05: But the district court grouped it and in fact found . [00:10:24] Speaker 03: . [00:10:24] Speaker 03: . [00:10:24] Speaker 03: If you've got an audit of 25 claims and none of them has a valid plan of care, that's not sufficient for the district court to conclude? [00:10:37] Speaker 03: That there's reckless disregard of whether the claims are being submitted with the proper documentation? [00:10:43] Speaker 05: Well, that's the issue, Your Honor. [00:10:44] Speaker 05: Not all of them were related to no signatures. [00:10:47] Speaker 05: Some of them had signatures. [00:10:48] Speaker 05: The issue was whether the signature was valid. [00:10:50] Speaker 05: That's why I use the phrase valid plans of care. [00:10:52] Speaker 03: Yes. [00:10:52] Speaker 03: They are defective in various ways, not just one way, in various ways. [00:10:57] Speaker 05: You know, that's the issue. [00:10:59] Speaker 05: It comes down to, if you say it was defective, how do we determine it was defective? [00:11:03] Speaker 05: That was why this case was required, to go to a find-out fact, to determine if it was in fact defective. [00:11:11] Speaker 05: Just like Dr. Matos said, that he and other doctors, and in his practice, which is what happens with Medicaid claims, that other doctors can sign, once it's a practitioner who signs, it becomes valid. [00:11:22] Speaker 05: It doesn't become invalid just because it wasn't sent by the actual doctor who is this person's physician, another physician, just like in my office. [00:11:29] Speaker 03: Okay, now I noticed you didn't ask for any rebuttal time, but we'll give you some back. [00:11:33] Speaker 03: But before, I'll ask my colleagues if you have any questions. [00:11:36] Speaker 03: Okay, we'll give you some time back on rebuttal, but we'll go down here from the government. [00:11:40] Speaker 03: Thank you very much. [00:11:52] Speaker 06: May it please the court, Carolyn Lopez on behalf of the United States. [00:11:56] Speaker 06: Plans of care are the way that DC Medicaid determines whether the services it's paying for are medically necessary. [00:12:03] Speaker 06: And here I just want to back up to the big picture first before addressing specific questions. [00:12:08] Speaker 06: I just want to emphasize that there's absolutely no dispute here that this requirement of valid plans of care as Judge Griffith [00:12:14] Speaker 06: was discussing is material and that if you submit a claim without a valid plan of care, it's false. [00:12:20] Speaker 06: That's . [00:12:20] Speaker 02: . [00:12:20] Speaker 02: . [00:12:20] Speaker 02: . [00:12:20] Speaker 02: . [00:12:20] Speaker 02: . [00:12:20] Speaker 02: . [00:12:20] Speaker 02: . [00:12:21] Speaker 02: . [00:12:21] Speaker 02: . [00:12:21] Speaker 02: . [00:12:21] Speaker 02: . [00:12:21] Speaker 02: . [00:12:21] Speaker 02: . 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[00:12:55] Speaker 06: As the district court said, whether even a cursory glance at these patient files, which dynamic visions in its answers to the interrogatories at 68-1, page 17, described as containing only a few documents that are self-explanatory, whether it would have been obvious to the people tasked with sending out services and billing Medicaid for them. [00:13:12] Speaker 02: And there's no doubt the government has a very strong case on that issue. [00:13:19] Speaker 02: But you also have the burden of proof, and we're up on summary judgment. [00:13:25] Speaker 02: And I can't think of a lot of cases where a party with the burden of proof has been granted summary judgment on a question like intent. [00:13:35] Speaker 06: Yes, Your Honor. [00:13:36] Speaker 06: In fact, in this court's case in Kryzak, this case is very similar to this court's case in Kryzak. [00:13:41] Speaker 06: That's also a Medicaid case. [00:13:43] Speaker 06: That's a case where the court that was on summary judgment using sampling, and there this court held at page 942 that both, so in that case it was like this company, a small company, so in this company it's seven employees responsible for this. [00:14:00] Speaker 06: That's at page 14 of the answers to their interrogatories. [00:14:03] Speaker 06: it was two people who were involved so that the court found that at summary judgment it was appropriate to find both that the physician who had delegated all billing responsibilities to his wife and didn't even glance at the bills to make sure that they were accurate, that that was appropriate to find at summary judgment that he had the requisite scene terror. [00:14:23] Speaker 06: and also his wife who didn't do any checks before sending out the billing. [00:14:28] Speaker 06: And that's exactly what we have here. [00:14:29] Speaker 06: And I think it's really important to step back and discuss exactly how easy it would have been for these seven people who are tasked with ensuring that the reimbursements are only where the plans of care are. [00:14:42] Speaker 06: back up those services, how easy it would be to look. [00:14:45] Speaker 06: So for example, you look in a patient file that's only a couple of documents, there's absolutely no plan of care. [00:14:50] Speaker 06: That's true for 55% of the people for whom damages were sought. [00:14:55] Speaker 06: You look at a plan of care, you flip to the signature page, there's a blank signature. [00:14:59] Speaker 06: The right person never signed off on that plan of care. [00:15:01] Speaker 06: That's true for 35% of the patients for whom damages were sought. [00:15:05] Speaker 02: 55% no plan, not... For certain periods of time. [00:15:09] Speaker 02: So it's a little bit complicated because... [00:15:12] Speaker 02: Papers in the file and you're fighting over the sufficiency of the plan, just no plan at all. [00:15:16] Speaker 06: There's no plan at all. [00:15:17] Speaker 06: Okay. [00:15:18] Speaker 06: And again, I do just want to clarify there that the percentages will end up adding up to more than 100%, but that's because certain patients for different periods of time have different problems. [00:15:28] Speaker 06: So similarly, you can, it's really easy to look at a plan of care and say, [00:15:33] Speaker 06: look at the date next to the signature and say, was this done in the right period of time? [00:15:37] Speaker 06: And that's really important because you can't look at a patient six months later and say, that's why you have to re-up these every six months and say, they probably needed these services earlier. [00:15:46] Speaker 06: And so when you have that type of evidence, and again, it's for 80% of the patients were exactly squarely within CRiSEC. [00:15:56] Speaker 00: What, 80%? [00:15:56] Speaker 00: What are you covering within the 80%? [00:15:58] Speaker 06: Oh, so, sorry. [00:15:59] Speaker 06: So the 80% is of the 25 patients that were originally investigated, and all of the damages are drawn directly from those 25 patients, so there's no extrapolation being done here. [00:16:09] Speaker 06: For 80% of those patients, there was not, at various points, there were not valid plans of care backing up the services that were built to D.C. [00:16:18] Speaker 00: Medicaid. [00:16:19] Speaker 00: So there's 55% where there's no pun of care at all. [00:16:21] Speaker 06: of those of those for whom damages were sought. [00:16:24] Speaker 00: So fifty five percent of the percent and then the fifty fifty five to eighty the delta between the thirty five. [00:16:31] Speaker 06: So I can also break it down into numbers. [00:16:33] Speaker 06: So there are eleven patients for whom there are no valid plans of care at all. [00:16:38] Speaker 06: There are seven patients for whom there are blank physician signature boxes three with untimely signatures six with plans of care that for example said this person needs [00:16:49] Speaker 06: five days of services, but seven days of services. [00:16:52] Speaker 03: So it goes beyond what's covered by the plan of care. [00:16:54] Speaker 06: Exactly. [00:16:54] Speaker 03: And how many were alleged forgeries? [00:16:57] Speaker 06: There are three patients. [00:16:59] Speaker 06: It's a really small proportion of the total damages. [00:17:02] Speaker 06: So there are three patients for whom the district court found that there were forgeries. [00:17:07] Speaker 06: But also one of those patients, almost half of the claims for which damages were sought were actually because of an untimely plan and not the forgery. [00:17:15] Speaker 03: And what is the evidentiary link [00:17:17] Speaker 03: that establishes that dynamic visions was responsible for that forgery. [00:17:21] Speaker 03: The affidavits from the doctors don't say anything about that. [00:17:24] Speaker 03: All they say is, it's not mine. [00:17:27] Speaker 03: I didn't authorize anybody to sign for me. [00:17:28] Speaker 03: How do we get from there to tagging dynamic visions with that? [00:17:33] Speaker 06: Your Honor, what the district court did here and what the government thinks is entirely appropriate to do here is, in the face of knowing that there were these affidavits where the doctor said, these signatures are forged, they're not mine, they're not by anybody who's authorized to sign for me. [00:17:53] Speaker 06: And the government sent out interroctories and said, show us valid plans of care, [00:18:00] Speaker 06: and dynamic visions knew that there were these four trees. [00:18:04] Speaker 06: Dynamic visions came up with absolutely no evidence on summary judgment in response to that to say, this wasn't us. [00:18:11] Speaker 06: There's a speculative statement by Mr. Bongaman, an affidavit that just says, no, dynamic visions wouldn't have done this. [00:18:20] Speaker 06: But although they identified the seven people that would have been responsible for these things. [00:18:25] Speaker 00: I don't think it said wouldn't have done. [00:18:28] Speaker 00: It said didn't do, right? [00:18:29] Speaker 00: Didn't do. [00:18:30] Speaker 06: Yeah. [00:18:31] Speaker 06: But this court... Which is a little bit different. [00:18:33] Speaker 06: I apologize, Ron. [00:18:34] Speaker 06: I didn't mean to interject to you. [00:18:36] Speaker 00: Oh, yeah. [00:18:36] Speaker 00: No, I was suggesting you do something intentional. [00:18:37] Speaker 00: I'm just saying that there's a difference between saying, this is not the type of thing we would have done, to saying, as a matter of fact, we didn't do this. [00:18:45] Speaker 06: Yes, Your Honor, but under this court's standards, which is similar to the standards in all the other courts of appeal, where the only counter evidence is this kind of speculative assertion that's on information and belief, because Mr. Bongham cannot, I mean, he could speak for himself in writing that affidavit, but he could not speak on behalf of the other six employees tasked with these duties as they identified in their answers to the interrogatories. [00:19:13] Speaker 02: And so the doctors say, we didn't sign. [00:19:18] Speaker 02: Mr., I'm sorry, it's Bongram says he didn't sign. [00:19:25] Speaker 02: And then who signed? [00:19:26] Speaker 02: Well, maybe it was someone else at the company. [00:19:29] Speaker 02: Maybe it was someone in the doctor's office who knowingly or unknowingly thought she had authority to sign the thing and send it over to the provider. [00:19:42] Speaker 06: Your Honor. [00:19:43] Speaker 02: I mean, that doesn't seem, again, back to my summary judgment point, that doesn't seem like one on which the party with the burden of proof would get summary judgment. [00:19:54] Speaker 06: While we disagree in this context because of the litigation history and the fact that defendants were well aware that these were the allegations and that this was the evidence, and they didn't come up with any competent or admissible evidence to the contrary, we do think that it was appropriate for the district court [00:20:11] Speaker 06: to assess damages based on these forgeries as well. [00:20:16] Speaker 06: I did just want to step back to emphasize again that the percentage of these forgeries, if this court disagrees, is a relatively small percentage of the overall damages that were sought. [00:20:29] Speaker 00: Can I ask one question about the forgeries? [00:20:31] Speaker 00: I take your point that it's a small percentage. [00:20:33] Speaker 00: It still would be something that we send back and the district court would sort through, presumably. [00:20:37] Speaker 00: You guys would decide whether you want to proceed on the forgery once, obviously. [00:20:40] Speaker 06: Yes, Your Honor, if this court disagreed that the burden of proof was met with respect to the forgery. [00:20:46] Speaker 06: But that would leave entirely intact all of the other damages, which were in fact decided in an entirely separate liability decision by the district court. [00:20:54] Speaker 00: So one fact that was interesting to me just at a macro level is that there's wands as to which there's allegedly forged signatures, and then there's wands that were left blank with no signature. [00:21:05] Speaker 06: Yes, Your Honor. [00:21:05] Speaker 00: So when you juxtapose those, [00:21:07] Speaker 00: it seems like it's a little bit more difficult to reach the conclusion that there was a forged signature when the company, even under the government's argument, thought that it would be okay not to have a signature at all. [00:21:18] Speaker 06: Sorry, I do just want to clarify that the company did not think that it was fine to have a blank signature and this is why, they understood that they did have to have signatures. [00:21:28] Speaker 06: So there's an example. [00:21:29] Speaker 00: Okay, they didn't think it was okay, I take your point, but there are at least circumstances in which there was no effort to forge a signature. [00:21:38] Speaker 00: You have the plans of care in which there was no signature at all, right? [00:21:44] Speaker 06: Yes, there are. [00:21:44] Speaker 00: And so with those, it just seems a little odd then to lead to the assumption that where there is a signature, it's forged, because at least for some, even under your estimation, [00:21:58] Speaker 00: There wasn't a signature at all. [00:21:59] Speaker 06: So the inference that the signatures were, I apologize, I really don't want to say inference here. [00:22:06] Speaker 06: We know, and it's undisputed, that the signatures were forged. [00:22:11] Speaker 06: And then the only question is whether or not Dynamic Visions employees were responsible for those forgeries. [00:22:18] Speaker 06: And here, [00:22:20] Speaker 06: It's our position that that in accordance with what the district court found where the United States presented this evidence that the signatures were forged and that the doctors were saying listen nobody in my office was authorized to sign on my behalf that where dynamic visions didn't meet [00:22:39] Speaker 06: its burden under summary judgment to come forward with competent evidence saying, no, it was not one of our folks. [00:22:44] Speaker 06: As Your Honor points out, there are things in the record in which there are blank signature blocks, so it would be possible for a Dynamic Visions employee to do so that that burden is satisfied. [00:22:56] Speaker 06: I apologize. [00:22:56] Speaker 06: I see that my time has expired. [00:22:58] Speaker 06: But if there are more. [00:23:03] Speaker 03: We'll give you back one minute. [00:23:05] Speaker 05: One of the facts about what counsel is arguing in terms of trying to downplay the number or increase the percentages, part of the issue in this case was the amendment that was done by the district court. [00:23:20] Speaker 05: While the district court called it a typographical error as to numbers, but they play significant part in this case, the reason being that the defense [00:23:30] Speaker 05: may rely on the mistake of the plaintiff in order to defend their case. [00:23:35] Speaker 05: So by not coming up and telling you what your mistake is, the counsel who's bringing the case to the court has the body and was required to present the case to the court in the fashion it's supposed to be. [00:23:48] Speaker 05: Like one of the numbers I cited in my reply brief jumped from 1,000 for something to 53,000. [00:23:53] Speaker 05: So it becomes significant in the sense that, okay, [00:23:57] Speaker 05: It's not only the forged plans of care. [00:24:00] Speaker 05: There were other things because they had a different number, so it was impossible or at least difficult for the appellant to determine who we are talking about to be able to present anything at that point. [00:24:11] Speaker 05: So the court, by going forward and granting summary judgment, even though there were clear signs that there were mistakes in everything that they presented, was clearly [00:24:22] Speaker 05: in error on the part of the district court. [00:24:26] Speaker 03: Thank you very much. [00:24:27] Speaker 03: We have your argument. [00:24:28] Speaker 03: The case is submitted.