United States ex rel. Jehl v. GGNSC Southaven LLC
| Decision Date | 30 March 2022 |
| Docket Number | Civil Action 3:19-cv-091-NBB-JMV |
| Parties | UNITED STATES OF AMERICA, ex rel. CAMERON JEHL PLAINTIFFS v. GGNSC SOUTHAVEN, LLC, doing business as Golden Living Center - Southaven; GGNSC ADMINISTRATIVE SERVICES, LLC, doing business as Golden Ventures, and GGNSC CLINICAL SERVICES DEFENDANTS |
| Court | U.S. District Court — Northern District of Mississippi |
This cause comes before the court upon the defendants' Motion for Summary Judgment. Upon due consideration of the motion response, exhibits, and applicable authority, the court is ready to rule.
The relator, Cameron Jehl, a licensed attorney and resident of Shelby County, Tennessee, acting on behalf of himself and the United States, brings this qui tam action against the defendants GGNSC Southaven, LLC, GGNSC Administrative Services, LLC, and GGNSC Clinical Services. The relator alleges in his Second Amended Complaint[1] filed on July 10 2020, that the defendants submitted false claims to the United States and the State of Mississippi for Medicare and Medicaid reimbursement related to nursing and rehabilitation services. He seeks to recover treble damages, civil penalties, attorneys' fees, and costs under the False Claims Act (“FCA”), 31 U.S.C. § 3729, et seq. The defendants collectively owned, operated, or controlled Golden Living Center - Southaven in Southaven Mississippi, a nursing facility engaged in the custodial care of elderly and other individuals who are chronically infirm, mentally impaired, or otherwise in need of nursing care and treatment. GGNSC Southaven, LLC, is the entity that directly operates Golden Living.
The complaint alleges that defendant GGNSC Administrative Services, LLC, acting with the assistance and direction of the other defendants, submitted claims to the United States and the State of Mississippi to obtain Medicare and Medicaid reimbursement for healthcare services provided to Golden Living patients between April 23, 2013, and March 31, 2014, certifying that the defendants had complied with all conditions for reimbursement set forth in federal and state laws, as well as the provider agreements executed by the defendants and the United States and the State of Mississippi, when in fact, the defendants had not complied with those conditions. The complaint asserts that, during the relevant time period, the defendants knowingly or recklessly employed as Golden Living's Director of Nursing Services an individual, Lionelle Trofort, who was allegedly not licensed or lawfully authorized to practice nursing in the State of Mississippi. To practice nursing legally in Mississippi and serve as Director of Nursing Services, Trofort was required to possess either a valid Mississippi nursing license or a valid multistate license from another state that gave her the privilege to practice in Mississippi. See Miss. Code Ann. §§ 73-15-3, 73-15-22; 15 Miss. Admin. Code Pt. 16, Subpt. 1, R. 45.4.1 (2013).
Nurse Trofort was a licensed registered nurse in Virginia at all times relevant to this lawsuit. In 2005, Trofort obtained a multistate license which permitted her to work as a nurse in states outside Virginia. In 2010, Trofort began working as a traveling nurse outside Virginia and was employed in facilities in states including Arizona, Arkansas, and Mississippi. She considered each of these locations as temporary residences, frequently living in a hotel in one state and spending weekends in another state. Trofort had served in the military while stationed in Virginia, had longstanding family ties to Virginia, considered Virginia her permanent state of residence, and intended to return to Virginia after a period of working as a traveling nurse. She testified that this is why she had a Virginia multistate license.
Approximately two months prior to Trofort beginning her employment with defendant Golden Living in Southaven, the State of Virginia revoked her multistate credential. The license was reinstated, however, after Trofort sent a declaration on March 20, 2013, averring that Virginia was her primary state of residence (“PSOR”). The required declaration defines PSOR as simply “the state of a person's declared fixed permanent and principal home or domicile for legal purposes.” On April 24, 2013, the day after Trofort began her employment with Golden Living, its employee Audra Peters confirmed that Trofort held a current active Virginia license with a multistate privilege.
During the brief period during which Virginia revoked Trofort's multistate privilege, from February 28, 2013, to March 20, 2013, Trofort worked at an Arkansas facility. Arkansas State Board of Nursing investigator Dan West investigated the matter on behalf of Arkansas and learned from the defendants in this case that Trofort held a Tennessee driver's license while employed at Golden Living during the time of West's investigation. All compact nursing boards have an affirmative duty to report and disclose relevant investigative information to the boards of other nursing compact states, which is why defendant Golden Living reported this information to West during his Arkansas investigation. West took issue with Trofort's Tennessee driver's license, considering it evidence that Tennessee, not Virginia, was Trofort's PSOR. To date, however, no nursing board has cited Trofort for her work in Southaven or in any way concluded that her work at Golden Living was improper in any fashion. No. nursing board has taken action against Trofort based on her Tennessee driver's license, ostensibly because there is no law, rule, or regulation that would invalidate a multistate license based on the existence of a driver's license outside one's PSOR.
On February 28, 2014, Golden Living nevertheless suspended Trofort, and she performed no additional work at the facility. Her termination was effective a few days later on March 4, 2014. Fifteen months after Trofort's Golden Living employment ended, Virginia issued a final adverse action in a public ruling revoking Trofort's multistate credential effective May 31, 2015, based upon an administrative settlement Trofort consummated with Arizona based on her work in Arizona, unrelated to the facts of the present action.
The Second Amended Complaint alleges that, as a result of Trofort's lack of a valid license to practice nursing in Mississippi while employed at Golden Living, the defendants' certifications of compliance with applicable licensure laws in their Medicare and Medicaid reimbursement requests were false within the meaning of the FCA. The FCA imposes liability on any defendant who “knowingly presents, or causes to be presented, a false or fraudulent claim for payment or approval” or who conspires to do the same. 31 U.S.C. § 3729(a)(1)(A) and (C). A “claim” includes a request for Medicare or Medicaid reimbursement that contains (1) a false statement (2) made knowingly or recklessly and (3) that was material. See United States ex rel. Lemon v. Nurses To Go, Inc., 924 F.3d 155, 159 (5th Cir. 2019) (citing 31 U.S.C. § 3729(b)(2)(A)); United States ex rel. Grubbs v. Kanneganti, 565 F.3d 180, 188-89 (5th Cir. 2009).
The relator seeks damages, including treble damages, under the FCA for each alleged violation. The FCA provides “for a civil penalty of not less than $5, 000 and not more than $10, 000” for each act in violation of the statute. 31 U.S.C. § 3729(a)(1). The FCA requires the award of civil penalties for each false claim or statement even if no actual damages resulted from the false claims. United States ex rel. Rudd v. Schimmels, 85 F.3d 416, 419 n.1 (9th Cir. 1996); United States ex rel. Longhi v. Lithium Power Tech., Inc., 530 F.Supp.2d 888, 891 (S.D. Tex. 2008) (). The relator estimates the number of claims submitted during the period when Trofort allegedly lacked proper licensing as 1, 393. The relator therefore seeks a base of $13, 930, 000, half of it mandatory. This civil penalty scheme is just one of the remedies the relator seeks. He also seeks damages in the amount the government paid to the defendants during the applicable period, a figure of approximately $7 million dollars. When the requested treble damages are factored in, the relator appears to seek well in excess of $30 million or more, minimum, with several million dollars of the recovery in mandatory penalties.
“The court shall grant summary judgment 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). On a motion for summary judgment, the movant has the initial burden of showing the absence of a genuine issue of material fact. Celotex Corp. v Catrett, 477 U.S. 317, 325 (1986). If the movant makes such a showing, the burden then shifts to the non-movant to “go beyond the pleadings and . . . designate specific facts showing that there is a genuine issue for trial.” Id. at 324. The non-movant “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
When deciding a motion for summary judgment, the court must view the underlying facts in the “light most favorable to the party opposing the motion.” United States v Diebold, Inc., 369 U.S. 654, 655 (1962). As such, all reasonable inferences must be drawn in favor of the non- movant. Id. Before finding that no genuine issue for trial exists, the court must first be satisfied that no rational trier of fact could find for the non-movant. Matsushita, 475 U.S. at 587 (1986). “Summary judgment, although...
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