                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA



UNITED STATES OF AMERICA,

       Plaintiff,

               v.                                          Civil Action No. 10-2111 (JEB)


SPEQTRUM, INC.,
d/b/a Speqtrum Health Care Services,

       Defendant.



                                  MEMORANDUM OPINION

       Florence Nightingale once said that “nursing is an art.” In this case, the Government

contends that employees of one D.C. healthcare provider were better schooled in the art of fraud

than the art of nursing.

       Defendant Speqtrum, Inc., is a home-healthcare agency that furnishes the elderly and

disabled with assistance in the day-to-day activities of living, such as bathing, dressing, and

taking needed medications. D.C. Medicaid, which is subsidized by the federal Medicaid

program, pays for many of Speqtrum’s services for low-income patients. Somewhere along the

way, Speqtrum developed a habit of cooking the books: overbilling for hours not worked,

charging the District for clients it did not service, and forging physician signatures on its

paperwork. In addition, many of Speqtrum’s patient files omitted required treatment-related

documents altogether. The District’s Department of Health Care Finance discovered this

massive fraud during a routine audit of Speqtrum’s paperwork in May 2009. The federal




                                                  1
Government began its own investigation shortly thereafter, and this lawsuit – alleging violations

of the federal False Claims Act, among other laws – followed.

        The Government, presenting ample evidence of intentional fraud, now moves for

summary judgment. Speqtrum, adducing almost no evidence of its own, opposes and cross-

moves for summary judgment. Because the Government has carried its burden in proving at

least some of the FCA violations alleged, the Court will enter partial judgment on liability but

will require the Government to present additional evidence of liability and proof of specific

damages at trial. Speqtrum’s cross-motion will be denied in its entirety.

I.      Background

        The federal Medicaid program is designed to protect the most vulnerable among us. As a

jointly funded state-federal effort, it subsidizes healthcare for “low-income persons who are age

65 or over, blind, disabled, or members of families with dependent children,” as well as

“pregnant women” and “children.” 42 C.F.R. § 430.0; see About Us, Medicaid.gov,

http://www.medicaid.gov/About-Us/About-Us.html (last visited May 23, 2014). To that end,

Medicaid funds may be used to pay for home-healthcare and personal-care services. See

Medicaid Long-Term Care Services, LongTermCare.gov, http://goo.gl/VtK8Sp (last visited May

23, 2014). Those at-home services help seniors and others who are struggling to live

independently to avoid nursing homes and other forms of expensive, long-term care. Id.; see

also D.C. Mun. Regs., tit. 29, § 5000.2 (Personal-care-aide services are designed “(a) To provide

necessary hands-on personal care assistance with the activities of daily living”; and “(b) To

encourage home-based care as a preferred and cost-effective alternative to institutional care.”). 1




1
 All references are to the 2006 version of the D.C. Code, which was in force at the time of Speqtrum’s alleged
conduct.

                                                         2
       Needless to say, budgets for these programs are not unlimited. As a result, states and the

federal government tightly regulate Medicaid and have devised stiff penalties for defrauding the

program. States are the primary drivers of Medicaid regulation. The District of Columbia, for

example, has set guidelines that Medicaid providers must meet to be reimbursed for certain

services.

       In terms of personal-care-aide (PCA) services, providers and their PCA patients must

clear several hurdles to qualify for D.C. Medicaid funding. To begin with, patients must have a

prescription for PCA services from their medical professional, see D.C. Mun. Regs., tit. 29,

§ 5004.1, based on a finding that they “have functional limitations in one or more activities of

daily living” – such as bathing, dressing, or administering vital medications – “for which

personal care services are needed.” Id. § 5005.1. After the doctor writes a PCA prescription and

the patient receives a referral, the provider must assess “the patient’s functional status and needs”

within 48 hours. Id. § 5006.1. Seventy-two hours after that, it must draw up a plan of care for

delivering services per the doctors’ orders and patient’s needs. Id. § 5006.2. Those plans must

“specify the frequency, duration[,] and expected outcome of the services rendered,” and they

must be approved and “signed by the physician within thirty (30) days of prescription.” Id. §§

5006.3, 5006.6. A registered nurse must review the plan every 62 days, and any “update[] or

modifi[cation]” must be signed by the physician. Id. § 5006.6. Services must be reauthorized by

a physician or advanced-practice registered nurse every six months. Id. § 5006.4.

       In addition, all licensed PCA-service providers are required to “maintain accurate records

reflecting the specific personal care services provided to each patient.” Id. § 5007.2. Those

records must include “past and current [medical] findings, the initial and subsequent plans of

care, and the ongoing progress of each patient,” as well as a “[d]escription and dates of services



                                                 3
rendered, including the name of the personal care aide performing the service.” Id. §§ 5007.1,

5007.8(c).

         If a provider “[k]nowingly and willfully ma[kes] or cause[s] to be made any false

statement or misrepresentation of material fact in claiming, or in determining the right to,

payment under Medicaid,” then the District may refuse to reimburse that provider for its

services. Id. § 1301.2(a). The provider’s agreement with the District, allowing it to render PCA

services, may also be terminated. Id. §§ 1301.3, 1302.1.

         On top of those penalties, because the federal government funds roughly 70 percent of

D.C. Medicaid, see Alison Mitchell et al., Cong. Research Serv., R43357, Medicaid: An

Overview 35 (2014), the United States may also seek to recover funds fraudulently obtained.

Under the False Claims Act, a provider may be liable if it “knowingly presents, or causes to be

presented, to an officer or employee of the United States Government . . . a false or fraudulent

claim for payment or approval” or “knowingly makes, uses, or causes to be made or used, a false

record or statement to get a false or fraudulent claim paid or approved by the Government.” 31

U.S.C. § 3729(a)(1)-(2). 2 Providers that violate the FCA may be “liable to the United States

Government for a civil penalty of not less than $5,000 and not more than $10,000, plus 3 times

the amount of damages which the Government sustains because of the act of that person.” Id.

         In this FCA case, the federal Government alleges that Speqtrum, a home-healthcare and

PCA-service provider, defrauded Medicaid of over a million dollars. The Government charges

Speqtrum with a pattern of fraud encompassing both (i) charging the Government for services


2
  Although the Government cites the current version of the False Claims Act in its briefs, the fraudulent activities at
issue in this case appear to have occurred almost entirely when a prior version of the Act – which was amended on
May 20, 2009 – was in effect. See Fraud Enforcement and Recovery Act of 2009, § 4, Pub. L. No. 111-21, 123 Stat.
1617, 1621-25 (2009). The Court is not aware of any substantive difference between the two versions that would
affect this case, with the exception, perhaps, of some language relating to the Government’s “false statements”
allegations. The Court will turn to that issue later in the Opinion, but will use the pre-May 2009 version of the Act
for the time being.

                                                          4
not rendered – e.g., services allegedly provided to dead or hospitalized patients – and (ii)

charging the Government for unauthorized services – e.g., services that were rendered without an

operative plan of care.

       At this juncture, the Court views the evidence in the light most favorable to the non-

moving party, and when facts are in dispute, the non-movant’s version governs. In this case,

however, because Speqtrum did not produce any affidavits, declarations, or deposition transcripts

– or much of any other evidence that the Court could consider at this stage – the Court must treat

the vast majority of the facts offered by the Government as conceded. The picture that evidence

paints, along with Speqtrum’s meager evidentiary contributions, is quite grim.

       In late May and early June of 2009, DHCF – which is responsible for D.C. Medicaid

compliance – conducted an audit of Speqtrum’s D.C. office. See Mot., Attach. 2 (Declaration of

Gregg C. Domroe), ¶ 6; Exh. 10 (DHCF Notice of Overpayment Recovery) at 1; Exh. 11 (DHCF

Notice of Termination of Provider Agreement) at 2. Such audits are routine and are provided for

by D.C. law. See D.C. Mun. Regs., tit. 29, § 5010. During DHCF’s visit, its employees

randomly reviewed the records of 220 Medicaid beneficiaries. Domroe Decl., ¶ 6; DHCF Notice

of Termination of Provider Agreement at 2. Of those records, 208 lacked the documentation

required to legitimize the services allegedly rendered. Domroe Decl., ¶ 7. Some files had no

plan of care, or the plan of care had gone unsigned. Id., ¶¶ 8, 12. Other plans of care contained

forged signatures, as multiple doctors later confirmed after examining the fabricated records. Id.,

¶¶ 15-16; Mot., Exh. 3A-E (FBI Doctor Interviews). Other files lacked records to substantiate

the amount of time PCAs had supposedly spent with patients. Domroe Decl., ¶ 9. Still other

files revealed overbilling for services not rendered, id., ¶ 10, or that the patient was not even

receiving services from Speqtrum. Id., ¶ 13. One patient’s file could not be located, and DHCF



                                                  5
soon discovered that the patient had died prior to the dates on which Speqtrum purported to

render its services. See DHCF Notice of Termination of Provider Agreement at 2.

       Later that year, the FBI and other government agencies pulled twenty random files

belonging to patients who had supposedly received care from Speqtrum seven days a week for

eight hours per day. Domroe Decl., ¶ 18. Fifteen of those twenty files contained fraudulent

claims, according to interviews with the patients themselves. Id. One of the beneficiaries, for

example, received care only from 10 a.m. to 4 p.m. five days a week. Id., ¶ 20. Other patients

similarly received services from Speqtrum, but for a lesser number of hours or days per week.

Id., ¶¶ 24-27. Another patient claimed she had been receiving services through Ultra Home

Health Agency – and only through Ultra – for about four years. Id., ¶¶ 22-23. An FBI agent

confirmed that Ultra had been billing Medicaid for PCA services during the same period that

Speqtrum claimed it had rendered services. Id. It thus appeared that Speqtrum had never, in

fact, provided the patient with any of the $19,714.59 worth of services that it had billed for. Id.

Yet another purported patient never received any home-healthcare services whatsoever – and had

no need for them. Id., ¶¶ 29-30. Speqtrum had nevertheless billed Medicaid for almost $14,000

in services on his behalf. Id.

       On July 15, 2009, the FBI and other agencies executed a search warrant and seized piles

of documents from Speqtrum’s D.C. and Maryland offices. Id., ¶ 32. The documents collected

tended to confirm that patient files contained forged signatures or falsified timesheets. One

document appears to contain various trial runs at forging a doctor’s signature – which later

appears in a patient file. See Mot., Exh. 5 (Trial Signatures and File). Another set of documents

consists of pre-signed timesheets – initialed in advance by patients – which PCAs could then fill

in with (potentially) inaccurate hours. See Mot., Exh. 9 (Pre-Filled Timesheets).



                                                 6
       Yet another document alerted Speqtrum’s President and Founder, Pauline Nnawuba, to

the fact that a high-level employee had been defrauding Medicaid on the company’s behalf. See

Mot., Exh. 6 (Ahouste Memo). Until about 2008, Joahana Tingem, the Director of Nursing,

hired family members who were not licensed to provide PCA services. Id. at 1. She was,

moreover, billing for services she had not rendered, including services supposedly provided to

hospitalized and deceased clients. Id. She even used the identities of other PCAs to collect

Medicaid money for herself. Id. In doing so, she forged both doctors’ and patients’ signatures.

Id. Tingem was eventually fired, but Nnawuba never alerted DHCF of the fraudulent charges

she had made.

       As a result of the audit and investigation, yet another high-level employee – Florence

Nguh, Nurse Director of Case Management – was fired in late 2009 for similarly conducting

illegal activities on Spectrum’s behalf. Her termination letter, which the FBI acquired, noted that

she had “billed D.C. Medicaid for potentially illegal nursing and personal care assistant services

and diverted those funds” into her own personal accounts. Mot., Exh. 7 (Florence Nguh

Termination Letter). According to Camille Gabriel, Speqtrum’s Assistant Quality Assurance

Manager, both Nguh and Shola Adebusoye, the new Director of Nursing, knew that many of

their patients had no plan of care in place. Mot., Exh. 15 (FBI Interview with Camille A.

Gabriel) at 1. When Gabriel would bring it up, Nguh and Adebusoye told her they would

“handle getting the approval.” Id. The issue was also raised at staff meetings. Id. at 1-2.

According to Gabriel, Nnawuba knew about these problems. Id. at 1. Other staff members

complained to Nguh that PCAs were billing for hours they had not worked, yet nothing was

done. Id. at 2-3. Similarly, Speqtrum was notified that some PCAs were paying off their

patients to collude in the fraud. Id. at 3. Another employee testified that Speqtrum generally and



                                                 7
Nguh specifically knew that there were problems with the files, but would generally be tipped off

and would “clean up” the files before auditors arrived. Mot., Exh. 16 (FBI Interview with

Jozanne Browne) at 1-3.

       Nnawuba, meanwhile, maintained that she had no idea what was going on in the D.C.

office – or, apparently, within the company she founded and ran in general. When asked if she

was “knowledgable [sic]” of her “company’s Medicaid compliance practices,” she responded,

“Not [at] all because I hired somebody in charge of that.” Nnawuba Depo. at 20:3-6. She also

delegated all hiring authority for the D.C. Office to her Director of Nursing, who was Shola

Adebusoye at the time of the audit. Id. at 30:17-32:24. The Director of Nursing was also in

charge of making sure that the PCAs were showing up for work and turning in accurate

timesheets. Id. at 33:1-13. According to Nnawuba, the Director of Nursing essentially “r[a]n the

company.” Id. at 32:7. The Director of Case Management, who was Florence Nguh at the time

of the audit, had a similar level of responsibility over patients enrolled in the Medicare Waiver

plan. Id. at 33:13-35:4. When asked about the lack of signed plans of care and the overbilling,

Nnawuba claimed that she could not testify about it, but that the FBI would have to ask “[t]he

people in charge” – namely, Nguh or Adebusoye. Id. at 48:8-49:6.

       Based on the results of the various audits, DHCF moved to terminate Speqtrum as a PCA

provider and to recoup over $8 million dollars in District funds implicated by the fraud. See

DHCF Notice of Termination of Provider Agreement at 1; DHCF Notice of Overpayment

Recovery at l.

       On December 13, 2010, the federal Government filed this case alleging that Defendant

had knowingly submitted false invoices to the D.C. Medicaid Program in violation of the False




                                                 8
Claims Act, thereby defrauding the United States of $1,840,724.92. 31 U.S.C § 3729; see

Compl. at 11-13.

       In connection with its Complaint, the Government moved for preliminary injunctive

relief to recover funds improperly paid to Speqtrum. That relief was granted, and the District

was ordered to freeze certain Medicaid funds it had recouped from Speqtrum until the case could

be tried. See ECF No. 13 (Order Granting PI) at 6. Since that time, the Court has ordered and

then vacated an entry of default against Speqtrum, see ECF No. 30 (Order Vacating Default) at

3, and granted partial summary judgment to the Government, thereby denying Speqtrum’s

assertion of an Equal Protection defense. See ECF No. 56 (Memorandum Opinion and Order

Striking Equal Protection Defense). The Government has moved for summary judgment, and

Defendant has cross-moved. The Court now turns to those Motions.

 II.         Legal Standard

       Summary judgment may be granted if “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); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986); Holcomb v.

Powell, 433 F.3d 889, 895 (D.C. Cir. 2006). A fact is “material” if it is capable of affecting the

substantive outcome of the litigation. See Liberty Lobby, 477 U.S. at 248; Holcomb, 433 F.3d at

895. A dispute is “genuine” if the evidence is such that a reasonable jury could return a verdict

for the nonmoving party. See Scott v. Harris, 550 U.S. 372, 380 (2007); Liberty Lobby, 477

U.S. at 248; Holcomb, 433 F.3d at 895. “A party asserting that a fact cannot be or is genuinely

disputed must support the assertion” by “citing to particular parts of materials in the record” or

“showing that the materials cited do not establish the absence or presence of a genuine dispute,




                                                 9
or that an adverse party cannot produce admissible evidence to support the fact.” Fed. R. Civ. P.

56(c)(1).

       When a motion for summary judgment is under consideration, “[t]he evidence of the non-

movant[s] is to be believed, and all justifiable inferences are to be drawn in [their] favor.”

Liberty Lobby, 477 U.S. at 255; see also Mastro v. PEPCO, 447 F.3d 843, 850 (D.C. Cir. 2006);

Aka v. Wash. Hosp. Ctr., 156 F.3d 1284, 1288 (D.C. Cir. 1998) (en banc). On a motion for

summary judgment, the Court must “eschew making credibility determinations or weighing the

evidence.” Czekalski v. Peters, 475 F.3d 360, 363 (D.C. Cir. 2007).

       The nonmoving party’s opposition, however, must consist of more than mere

unsupported allegations or denials and must be supported by affidavits, declarations, or other

competent evidence, setting forth specific facts showing that there is a genuine issue for trial.

See Fed. R. Civ. P. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). The nonmovant is

required to provide evidence that would permit a reasonable jury to find in its favor. See

Laningham v. Navy, 813 F.2d 1236, 1242 (D.C. Cir. 1987).

       In light of this requirement, and pursuant to Local Rule 7(h) and Federal Rule 56(c), the

Court, in resolving summary-judgment motions, “assume[s] that facts identified by the moving

party in the statement of material facts are admitted, unless such a fact is controverted in the

statement of genuine issues filed in opposition to the motion.” LCvR 7(h)(1). These rules

“assist[] the district court to maintain docket control and to decide motions for summary

judgment efficiently and effectively.” Jackson v. Finnegan, Henderson, Farabow, Garrett &

Dunner, 101 F.3d 145, 150 (D.C. Cir. 1996). “Requiring strict compliance with the . . . rule[s] is

justified both by the nature of summary judgment and by the rule[s’] purposes . . . . The

procedure contemplated by the rule thus isolates the facts that the parties assert are material,



                                                 10
distinguishes disputed from undisputed facts, and identifies the pertinent parts of the record.” Id.

at 150-51 (quoting Gardels v. CIA, 637 F.2d 770, 773 (D.C. Cir. 1980)).

       The Government argues that Speqtrum has failed to comply with this requirement, as its

Response to Plaintiff’s Statement of Purported Undisputed Material Facts is inadequate. The

Government is, for the most part, correct. Called on to answer the Government’s detailed and

well-supported Statement of Facts – which cites FBI Agent Domroe’s Declaration as well as

sixteen additional exhibits – Speqtrum has filed only the most cursory of responses. In its

Response, Speqtrum generally fails to cite to any record evidence whatsoever, preferring to

baldly assert its version of the story. If Defendant cites any outside document, it generally refers

to its Answer to the Complaint – which is not evidence – or to an attachment to that Answer that

the Court has already deemed irrelevant. See ECF No. 56 (Memorandum Opinion and Order

Striking Equal Protection Defense) at 6. As Speqtrum “fails to cite specific record support for a

number of assertions included in its Statement,” the Court will deem most of the Government’s

facts admitted. See Valles-Hall v. Ctr. for Nonprofit Advancement, 481 F. Supp. 2d 118, 123-24

(D.D.C. 2007); see also Fed. R. Civ. P. 56(e); Celotex Corp., 477 U.S. at 324.       This includes

evidence that might otherwise be excluded as hearsay – for example, an FBI agent’s account of

his conversation with a witness – because Defendant has failed to raise any hearsay objections.

See Diaz v. United States, 223 U.S. 442, 450 (1912) (“when [hearsay] is admitted without

objection, it is to be considered and given its natural probative effect as if it were in law

admissible”); NLRB v. Int’l Union of Operating Engineers, Local Union No. 12, 413 F.2d 705,

707 (9th Cir. 1969) (“Unobjected to hearsay is admissible and of probative value in the district

courts.”). In addition, the Court cannot credit – even at the summary-judgment stage –




                                                  11
Defendant’s bare assertions about any incidents not specifically pled and supported with record

evidence.

       Speqtrum does, however, offer some of its own evidence – for the first time – in its Reply

to the Government’s Opposition to its Cross-Motion for Summary Judgment. Despite the fact

that Defendant offered these scraps of evidence late in the game, the Court will take them into

account. The Court, however, will also consider the Government’s Surreply in response, as well

as the subsequent and related briefing by both parties. Cf. Flynn v. Veazey Const. Corp., 310 F.

Supp. 2d 186, 189 (D.D.C. 2004) (“If the movant raises arguments for the first time in his reply

. . .[,] the court will either ignore those arguments in resolving the motion or provide the non-

movant an opportunity to respond to those arguments . . . .”).

III.   Analysis

       The sole dispute to be resolved at the summary-judgment stage is the validity of the

Government’s False Claims Act allegations. The FCA is “intended to reach all types of fraud,

without qualification, that might result in financial loss to the Government.” United States v.

Neifert-White Co., 390 U.S. 228, 232 (1968); see also United States ex rel. Lemmon v.

Envirocare of Utah, Inc., 614 F.3d 1163, 1167 (10th Cir. 2010) (“The FCA ‘covers all fraudulent

attempts to cause the government to pay out sums of money.’”). Under the False Claims Act, a

provider may be liable if it “(1) knowingly presents, or causes to be presented, to an officer or

employee of the United States Government . . . a false or fraudulent claim for payment or

approval” or “(2) knowingly makes, uses, or causes to be made or used, a false record or

statement to get a false or fraudulent claim paid or approved by the Government.” 31 U.S.C.

§ 3729(a)(1)-(2). (emphasis added). This broad standard has enabled the FCA to become one of

the Government’s principal tools in combating Medicaid and Medicare fraud. According to the



                                                 12
Department of Justice, over two-thirds of the funds recovered under the Act last year – that is,

$2.6 billion out of a total of $3.8 billion recouped – stem from healthcare fraud. See Press

Release, Dep’t of Justice, Justice Department Recovers $3.8 Billion from False Claims Act

Cases in Fiscal Year 2013 (Dec. 20, 2013), available at http://goo.gl/V2cNqR.

        To prove a “false claim” violation, the Government generally must show that

“(1) defendant submitted a claim to the government; (2) which was false; and (3) which the

defendant knew was false.” United States ex rel. Hockett v. Columbia/HCA Healthcare Corp.,

498 F. Supp. 2d 25, 57 (D.D.C. 2007) (internal quotation marks omitted). To prove a “false

statement” violation, the Government must prove that Speqtrum made or used a (1) “false record

or statement,” (2) which Defendant knew to be false, (3) “to get” the “claim paid or approved by

the Government.” 31 U.S.C. § 3729(a)(2). The Court will analyze each element of each cause

of action in turn.

        A. False Claims

            1. Submitted Claim to Government

        Under the FCA, a “claim” is defined broadly as “any request or demand, whether under a

contract or otherwise, for money or property.” Id. § 3729(c). It includes requests “made to a

contractor, grantee, or other recipient” – such as the District government – “if the United States

Government provides any portion of the money” or “will reimburse [the] contractor, grantee, or

other recipient for any portion of the money” requested by the provider. Id.

        Because 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.” United States v. Rogan, 459 F. Supp. 2d 692, 717 (N.D. Ill. 2006); United States ex rel.

Totten v. Bombardier Corp., 380 F.3d 488, 493 (D.C. Cir. 2004) (Pre-2009, liability would



                                                13
“attach if the Government provides the funds to [a] grantee” like Medicaid “upon presentment of

a claim to the Government.”). Each request for payment that Speqtrum submitted to D.C., then,

qualifies as an FCA “claim.”

           2. Falsity

       There are three ways in which a claim for payment can be false. First, a claim can be

factually false if it “involves an incorrect description of goods or services provided or a request

for reimbursement for goods or services never provided.” United States v. Science Applications

Intern. Corp. (SAIC), 626 F.3d 1257, 1266 (D.C. Cir. 2010) (quoting Mikes v. Straus, 274 F.3d

687, 697 (2d Cir. 2001)). Next, a claim can be false if the request for payment itself expressly,

yet falsely, certifies “compliance with an applicable federal statute, federal regulation, or

contractual term.” Id. Finally, a claim may be false if it impliedly certifies compliance with an

applicable regulation or contractual provision. In other words, implied certification occurs when

the provider requests payment and remains silent as to its non-compliance with a term or

regulation that “was a prerequisite to the government [payment] sought.” Id. (quoting United

States ex. rel. Siewick v. Jamieson Sci. & Eng’g, Inc., 214 F.3d 1372, 1376 (D.C. Cir. 2000)).

       The Government alleges that Speqtrum made two different types of false claims:

(i) claims for services that Speqtrum did not render and (ii) claims for services that Speqtrum

purportedly rendered, but which were out of compliance with various D.C. regulatory

requirements. The first set of claims fits neatly into the “factually false” category, while the

remaining ones must rely on a false-certification theory to succeed.

               a. Factually False Claims

       To begin with, the Government contends that Speqtrum submitted a number of claims

that were factually false – that is, invoices or bills for services that the agency never actually



                                                  14
provided. Such claims are “paradigmatic” violations of the False Claims Act. Id.; see also, e.g.,

Mikes, 274 F.3d at 697; United States v. Krizek, 859 F. Supp. 5, 12 (D.D.C. 1994) (psychiatrist

billed for more hours than he could possibly have worked in single day); S. Rep. No. 99-345, at

9, reprinted in 1986 U.S.C.C.A.N. 5266, 5274 (“a false claim may take many forms, the most

common being a claim for goods or services not provided”); Robert Fabrikant & Glenn E.

Solomon, Application of the Federal False Claims Act to Regulatory Compliance Issues in the

Health Care Industry, 51 Ala. L. Rev. 105, 111-12 (1999) (“a claim may be false because it seeks

reimbursement for services or goods not provided”).

       Here, the Government’s evidence reveals several instances in which D.C. Medicaid was

billed for services that Speqtrum’s PCAs never provided. Thus, the actual claim or bill

submitted to D.C. and forwarded to the Government was itself factually false. In many cases,

FBI agents found – based on interviews with clients – that Speqtrum was billing for more hours

per week than PCAs actually worked. See, e.g., Domroe Decl., ¶¶ 10, 20, 24-27. Speqtrum was

also billing for at least two clients that had never received any services from Speqtrum at all.

See id., ¶¶ 22-23, 29-30; see also id., ¶13. According to DHCF, moreover, one client was

deceased when services were billed under his name. See DHCF Notice of Termination of

Provider Agreement at 2.

       This is the classic case of false claims being presented to acquire undeserved funds.

Because Speqtrum presents no evidence to contradict any of the Government’s assertions

regarding the falsity of the specified claims, the Court must take it as given that Defendant did,

in fact, submit the fraudulent claims outlined above.




                                                 15
               b. Falsely Certified Claims

       In addition, the Government avers that Speqtrum submitted claims that falsely certified

“compliance with an applicable . . . statute, . . . regulation, or contractual term” that was material

to Medicaid’s decision to pay. SAIC, 626 F.3d at 1266. Plaintiff does not assert that Defendant

expressly certified compliance with the relevant regulations in its various reimbursement

requests. That is, no one claims that the bills or invoices submitted to D.C. contained explicit

statements that Speqtrum was in compliance with all the relevant regulations. The Government,

accordingly, must be proceeding under an “implied” certification theory, which does not require

Defendant to submit factually or expressly false claims to the Government.

       “An implied false certification claim is based on the notion that the act of submitting a

claim for reimbursement itself implies compliance with governing federal” – or, in the case of

Medicaid, state-based – “rules that are a precondition to payment.” Mikes, 274 F.3d at 699.

“[I]mplied false certification occurs when an entity has previously undertaken to expressly

comply with a law, rule, or regulation, and that obligation is implicated by submitting a claim for

payment.” SAIC, 626 F.3d at 1270 (quoting Ebeid ex rel. United States v. Lungwitz, 616 F.3d

993, 998 (9th Cir. 2010)). Put another way, if a provider is asking for payment, it is fair to

assume that she has done everything necessary to merit reimbursement. If she has not, there is a

problem.

       “[T]o establish the existence of a ‘false or fraudulent’ claim on the basis of implied

certification of a contractual” or regulatory “condition, the FCA plaintiff – here[,] the

[G]overnment – must show that the contractor withheld information about its noncompliance

with material contractual” or regulatory “requirements.” Id. at 1269. With its Motion for

Summary Judgment, the Government has included plenty of evidence showing that Speqtrum



                                                 16
violated various regulatory requirements. To begin with, according to D.C. law, each PCA

patient’s file must contain a plan of care that “specif[ies] the frequency, duration[,] and expected

outcome of the services rendered” and is approved and “signed by the physician within thirty

(30) days of prescription.” D.C. Mun. Regs., tit. 29, §§ 5006.3, 5006.6. Yet many Speqtrum

files lacked a plan of care, contained unsigned plans of care, or contained plans of care with

forged physician signatures. See Domroe Decl., ¶¶ 8, 12, 15-16; FBI Doctor Interviews. In

addition, each patient’s file must contain a “[d]escription and dates of services rendered,

including the name of the personal care aide performing the service.” D.C. Mun. Regs., tit. 29,

§ 5007.8(c). Some of Speqtrum’s files, however, lacked the requisite timesheets, and other

evidence indicated that timesheets that were included in files may have been forged. See

Domroe Decl., ¶ 9; Pre-Filled Timesheets. Again, Speqtrum has adduced no evidence to

contradict any of these allegations, so the Court takes the facts as conceded.

       The Government, however, cannot win the day simply by claiming that Speqtrum

violated any of the many regulatory obligations placed on it by D.C. law. Rather, the

requirement violated must be material to the Government’s decision to pay. That is, Plaintiff

must show that, had the Government known about Speqtrum’s non-compliance, it might not

have paid Speqtrum for its services. See Lemmon, 614 F.3d at 1169 (“[F]alse certification –

regardless of whether it is implied or express – is actionable under the FCA only if it leads the

government to make a payment which, absent the falsity, it may not have made.”). This is

particularly important in the Medicaid and Medicare context, where providers face an abundance

of regulations, some of which may be more vital to the Government’s payment decision than

others. For example, if compliance with every D.C. regulation were essential, a provider could

be charged under the Act for something as innocuous as having a policy manual that was not



                                                 17
entirely up to snuff or failing to update its “organizational chart.” D.C. Mun. Regs., tit. 29,

§ 5002.

       For that reason, Medicaid and Medicare cases distinguish between conditions of payment

– which are material contractual terms or regulations – and conditions of participation in the

federally funded program, which are not. See, e.g., Mikes, 274 F.3d at 701-02; Fabrikant &

Solomon, supra, at 122-24. In Mikes, for example, the Second Circuit distinguished between the

requirement that services under Medicare be “reasonable and necessary” – which was an express

condition of payment – and the requirement that services comply with a certain “standard of

care” – which was not, although repeated failures could ultimately lead to a provider’s removal

from the program. 274 F.3d at 701-702. The key point here is that FCA liability is not triggered

every time a doctor or nurse allegedly fails to comply with even the most minor American

Medical Association guideline.

       The Government, then, must establish that it might not have paid Speqtrum had it known

of the provider’s faulty files. See Lemmon, 614 F.3d at 1169. That it has not done. According

to Plaintiff, the D.C. Code establishes that having all the required documentation in a patient’s

file is material to the District’s decision to pay. The Code, however, is quite specific about what

is required for payment, and an up-to-code patient file is not one of those requirements. See

D.C. Mun. Regs., tit. 29, § 5009. To be sure, the District may deny payment if a provider

“[k]nowingly and willfully made or caused to be made any false statement or misrepresentation

of material fact in” requesting payment. Id. § 1301.2(a) (emphasis added). But that does no

more than frame the question: which facts and regulations are material? In addition, a provider’s

Medicaid contract may be terminated if it “[f]ail[s] to furnish requested information,” such as




                                                 18
documentation necessary to determine whether and how much the provider should be paid. Id. §

1302.1(d). But that is a condition of participation, not a condition of payment for each claim.

       To be fair, Speqtrum’s contract with the District is slightly more specific. In a section

labeled “Sanctions for Non-Compliance,” the District states that “[i]f the Department determines

that a provider has failed to comply with the applicable Federal or District law or rule . . ., the

Department may do all of the following,” including “[w]ithhold all or part of the providers’

payments” and “[t]erminate the agreement.” Mot., Exh. 1 (Medicaid Provider Agreement) at 17.

As Speqtrum points out, however, it is not entirely clear what violations actually lead to non-

payment – for example, it is highly doubtful that the District ever denies payment on the basis of

a provider’s use of an outdated organizational chart, even if it could conceivably do so. As a

counterpoint, the Government notes that the District did, in fact, seek to recoup a large amount of

Medicaid funds from Speqtrum based on its faulty files. See DHCF Notice of Overpayment

Recovery at l. The Court is thus convinced that at least some of the implied-certification

breaches were likely material. Because the Government does not attach documentation

explaining which of the 208 files flagged by DHCF caused the District itself to revoke payment

and why, however, the Government is not entitled to judgment as a matter of law on all of those

claims. Rather, it will have to prove at trial which of the 208 potential implied-certification

violations were material to payment.

           3. Scienter

       The Court now turns to the final element of a “false claim” violation: scienter. False

claims must be made “knowingly” to be actionable. This occurs if the provider “(1) has actual

knowledge of the [false] information; (2) acts in deliberate ignorance of the truth or falsity of the

information; or (3) acts in reckless disregard of the truth or falsity of the information.” 31 U.S.C.



                                                  19
§ 3729(b). This standard is quite broad and does not require intent to defraud. Id. Rather,

“deliberate ignorance” or “reckless disregard” may suffice. Id.

       The Court first considers scienter with respect to the factually false claims – that is, the

overbilled hours and other services not rendered. The Government has presented evidence that

high-level Speqtrum employees had actual knowledge of the falsity of those claims. See, e.g.,

Ahouste Memo at 1 (Director of Nursing was intentionally billing for services not rendered);

Gabriel Interview at 2-3 (Nurse Director of Case Management knew PCAs were billing for

services not rendered). As a defense, Speqtrum claims that these executives were “rogue

employees.” Defendant, however, presents nothing to rebut the Government’s evidence that

those employees, including Tingem, Nguh, and Adebusoye, were acting within the scope of their

employment as they billed for Medicaid services under Speqtrum’s name. Cf. United States v.

O’Connell, 890 F.2d 563, 569 (1st Cir. 1989) (“a corporation should be held liable under the

False Claims Act for the fraud of an agent who acts with apparent authority even if the

corporation received no benefit from the agent’s fraud”). Even if these women were somehow

acting solely of their own accord, the company would still be liable because its President,

Nnawuba, acted “in deliberate ignorance of the truth or falsity of” Speqtrum’s claims or, at a

minimum, acted with “reckless disregard.” After learning that Tingem had been committing

rampant fraud in 2008, Nnawuba did nothing to clean up the books or to identify the fraudulent

files. She knew they were there, as a document from Speqtrum’s office indicates. See Ahouste

Memo at 1. But she did nothing about the fraud other than to let Tingem go. Nor did she

investigate for any further evidence of corruption – even though Tingem had hiring authority and

(naturally) brought on other employees like Nguh who, as it turned out, continued employing her

methods. See Nnawuba Depo. at 82:3-5; Florence Nguh Termination Letter at 1-2. Nnawuba



                                                 20
knew that at least one high-level Speqtrum employee had committed Medicaid fraud; she cannot

now claim anything other than “deliberate ignorance” of the fact that such fraud resulted in false

claims to Medicaid.

       The same basic logic applies to the implied-certification claims for faulty, missing, or

forged paperwork. To establish scienter for an implied-certification claim, the Government must

prove Defendant knew both “(1) that it violated a contractual obligation” or regulation, and

“(2) that its compliance with that obligation was material to the government’s decision to pay.”

SAIC, 626 F.3d at 1269. As to knowledge of the contractual violation, the Government has

proffered sufficient evidence. Many high-level employees knew that patients had no plan of care

in place, and the topic was discussed at staff meetings. See Gabriel Interview at 1-2. Before

audits, moreover, those same employees would deliberately “clean up” files that they no doubt

knew were faulty. See Browne Interview at 1-3. One employee averred that Nnawuba was also

aware of these problems. See Gabriel Interview at 1. Even if she was not, her conduct exhibits

reckless disregard or deliberate ignorance of the company’s non-compliance. The vast majority

of Speqtrum’s files had obvious deficiencies, and even a cursory inspection of some files would

have revealed that fact. See Domroe Decl., ¶ 17 (listing various problems with 208 out of 220

examined files).

       Whether Speqtrum knew that compliance with the relevant regulations was “material” to

payment, though, is another question. The Government has not provided enough evidence of

awareness of materiality for each of the various implied-certification claims to merit judgment as

a matter of law – particularly where the Court has found that materiality itself remains in dispute.

Conversely, the fact that the files were “cleaned up” before auditing does suggest an awareness

that certain paperwork-centered regulations may have been material to payment, see Browne



                                                21
Interview at 1-3, as does the language in Speqtrum’s Medicaid contract. See Medicaid Provider

Agreement at 17. Therefore, summary judgment in Speqtrum’s favor is not warranted either.

The question of scienter on those particular claims, accordingly, will be left to the finder of fact.

                                                ***

       In sum, then, the Government has proved that it is entitled to summary judgment as to its

claims of overbilling and billing for services not rendered. On that front, Plaintiff has submitted

uncontroverted evidence that Speqtrum knowingly requested payment for services it had not, in

fact, provided. The Government has not, however, submitted sufficient evidence to merit

summary judgment on its implied-certification claims regarding faulty paperwork. It has,

though, mustered enough evidence to overcome Speqtrum’s Cross-Motion and to go to trial on

those claims.

       B. False Records or Statements

       The Government claims that Speqtrum has violated an additional provision of the FCA.

It argues that Defendant “knowingly ma[de], use[d], or cause[d] to be made or used, a false

record or statement to get a false or fraudulent claim paid or approved by the Government.” 31

U.S.C. § 3729(a)(2) (emphasis added). Plaintiff’s argument on this front consists of a single

sentence stating that “every claim that forms the basis of this Complaint is comprised of a ‘false

statement’ or record.” Pl. Mot. at 6. That, of course, is not true. Omitting a plan of care from a

file does not constitute making a “false record or statement.” An omission is no statement at all,

and it is certainly not a false record. See, e.g., SAIC, 626 F.3d at 1267; United States ex rel.

Hopper v. Anton, 91 F.3d 1261, 1266-67 (9th Cir. 1996). The only acts, then, that could be

encompassed by a false-records or -statements claim are (a) the false statements made regarding

hours worked and services provided and (b) any falsified plans of care or timesheets. As a result,



                                                 22
all of the allegations the Government makes under the “false statements” prong of the Act would

seemingly also be covered by the “false claims” prong. The Government may thus be advised to

consider whether this part if its suit is actually beneficial to its cause, rather than cumulative and

potentially confusing to the factfinder. The Court, in any event, will not linger over the issue.

           1. Falsification

       As explained above, the Government has adduced uncontested evidence showing that

Speqtrum falsified reports and claims relating to hours worked and services provided. In

addition, it forged physicians’ signatures and hence created fraudulent plans of care. See supra,

§ III.A.2. These false records may be actionable even if they were never actually presented to

the Government along with Speqtrum’s request for payment. See Allison Engine Co. v. United

States ex rel. Sanders, 553 U.S. 662, 671 (2008) (“What [the Act] demands is not proof that the

defendant caused a false record or statement to be presented or submitted to the Government but

that the defendant made a false record or statement for the purpose of getting a false or

fraudulent claim paid or approved by the Government.”) (internal quotation marks omitted);

United States ex rel. Grubbs v. Kanneganti, 565 F.3d 180, 192 (5th Cir. 2009) (false-records or

-statements claim need not allege that record itself was submitted to government).

           2. Scienter

       As explained previously, Speqtrum did this knowingly, as the term is defined in the FCA.

See supra, § III.A.3.

           3. Get Claim Paid/Materiality

       The Government has not necessarily shown, however, that Speqtrum falsified its records

“to get a false or fraudulent claim paid or approved by the [federal] Government.” 31 U.S.C.

§ 3729(a)(2). It is likely self-evident that the overbilling was done for the purpose of getting the



                                                  23
claim approved by the federal Government, since D.C. can only pay its providers to the extent

that it is reimbursed by the U.S. Government. In other words, because claims made to D.C.

Medicaid are “forwarded to the Government” for partial reimbursement, any bills submitted for

services not rendered would meet this requirement. See Allison Engine Co., 553 U.S. at 670 n.1.

It is, nonetheless, unclear whether the other forged paperwork was created “to get” the “claim[s]

paid” by the Government or simply to feign compliance with local regulations unrelated to

payment. See supra, § III.A.2. In essence, this is the same problem the Government faced with

respect to materiality under the “false claims” prong of the Act.

       Indeed, the 2009 version of the Act replaces the “to get a false or fraudulent claim paid”

requirement with an explicit materiality requirement. And that updated language on materiality

may govern some of the claims at issue here, since Congress directed that the materiality

requirement apply retroactively to claims (that is, presumably, claims for payment) pending as of

June 2008. See Fraud Enforcement and Recovery Act of 2009, § 4(f), Pub. L. No. 111-21, 123

Stat. at 1625. As far as the Court can tell, however, the issue plaguing the Government here

would remain even under the revised Act. See 31 U.S.C. § 3729(a)(1)(B) (2012) (liable when

“knowingly makes, uses, or causes to be made or used, a false record or statement material to a

false or fraudulent claim”) (emphasis added); id. § 3729(b)(4) (“the term ‘material’ means

having a natural tendency to influence, or be capable of influencing, the payment or receipt of

money or property”); but see Allison Engine Co., 553 U.S. at 670 (requiring a slightly more

burdensome standard pre-2009). Either way, the Government must show that the false record

was “material” or made “to get” the claim paid.

                                               ***




                                                24
       Under this second “false statement” theory of liability, therefore, the Government is also

entitled to summary judgment regarding services never rendered. Its claims related to forged

paperwork, however, must proceed to trial because it is unclear whether complete records are

material to the Government’s payment decision.

       C. Damages

       To prove a False Claims Act violation, a Plaintiff need not specifically plead or prove

damages. See United States ex rel. Schwedt v. Planning Research Corp., 59 F.3d 196, 199 (D.C.

Cir. 1995). The Government, nevertheless, does claim that it has suffered extensive damages in

this case. It thus offers some evidence that it has suffered damages in each instance of fraud –

namely, a declaration from FBI Agent Domroe, who has been through all the files and calculated

the damages. See Domroe Decl., ¶¶ 17, 30. It is not entirely clear from the declaration,

however, which damages stem from violations that are undoubtedly actionable and material –

such as billing for services not provided – and which stem from regulatory violations whose

materiality is still in dispute. Domroe’s declarations, moreover, do not make clear how the

damages were calculated; rather, with the exception of a few fleshed-out examples, they simply

state the amount of funds the Government believes it has lost. As a result, Speqtrum quarrels

with the Government’s calculations. Since the Government has not produced evidence that

would necessarily convince a reasonable jury that it is entitled to the full sum that it desires, the

question of damages will also be reserved for trial.

       D. Defenses

       Other than Speqtrum’s argument regarding its “rogue employees,” the company raises

only a few scattershot defenses that were all made with almost no reference to either governing

law or relevant evidence. First, Speqtrum objects to certain pieces of the Government’s evidence



                                                  25
as unauthenticated. See Fed. R. Evid. 901. Any document requiring authentication, however,

has been vouched for by Agent Domroe. See Pl. Reply, Attach. 2 (Supplemental Declaration of

Gregg C. Domroe), ¶¶ 3-11. In addition, Speqtrum decries its inability to cross-examine

witnesses. This is not a proper objection on summary judgment, particularly where discovery

has closed and Defendant has not raised any dispute of material fact.

       Speqtrum also claims that DHCF did not in practice require plans of care to be signed by

a physician within 30 days of prescription, but its scant evidence shows no such thing. See ECF

No. 16-2 (document from another local agency regarding non-Medicaid provider’s compliance

with regulations irrelevant to present litigation); Def. Reply, Exh. 2 (Action Steps for Early PA

Number Release) at 3 (DHCF document allowing providers to submit clinical information and

other documents within 30 days of receiving “Prior Authorization,” but still requiring full

documentation and compliance with law). Similarly, Defendant claims that it has not yet

received payment from Medicaid for each of the patients at issue, but this is also without support

(and beside the point, given that the Court is not now determining damages). Finally, Speqtrum

objects that the Government’s damage calculation uses “gross” rather than “net” damages. That

is, Plaintiff failed to subtract from its gross damages the value of services Speqtrum actually

rendered to the Government. This objection seems to be foreclosed by D.C. Circuit precedent

stating that services rendered to a third party are of no value to the Government at all. See SAIC,

626 F.3d at 1279 (“In some cases, such as where the defendant fraudulently sought payments for

participating in programs designed to benefit third-parties rather than the government itself, the

government can easily establish that it received nothing of value from the defendant and that all

payments made are therefore recoverable as damages.”); United States v. Rogan, 517 F.3d 449,

453 (7th Cir. 2008) (defendant who submitted false Medicaid claims was required to repay full



                                                26
amount because he “did not furnish any medical service to the United States”). As with the other

damages issues, however, the Court will reserve judgment until trial.

IV.    Conclusion

       For the foregoing reasons, the Court concludes that the Government is entitled to

summary judgment as to the allegations of overbilling and charging for services not rendered.

Plaintiff has thus established partial liability. All other claims, along with the issue of damages,

must proceed to trial. The Court will therefore grant the Government’s Motion for Summary

Judgment in part and deny it in part. Defendant’s Cross-Motion for Summary Judgment will be

denied. A separate Order consistent with this Opinion will be issued this day.



                                                                        /s/ James E. Boasberg
                                                                        JAMES E. BOASBERG
                                                                        United States District Judge
Date: June 13, 2014




                                                 27
