United States v. Subacute
| Decision Date | 22 December 2020 |
| Docket Number | Civil Action No. 12-3319 (SDW) (MAH) |
| Parties | UNITED STATES OF AMERICA and the STATES OF NEW JERSEY and NEW YORK, ex rel. KENNETH W. ARMSTRONG, Plaintiffs and Relator, v. ANDOVER SUBACUTE & REHAB CENTER SERVICES ONE, INC., et al., Defendants. |
| Court | U.S. District Court — District of New Jersey |
NOT FOR PUBLICATION
Before this Court is Defendants Andover Subacute & Rehab Center Services One, Inc., Andover Subacute & Rehab Center Services Two, Inc. (collectively, "Andover Defendants"), and Estate of Dr. Hooshang Kipiani's (together with Andover Defendants, "Defendants") Motion for Summary Judgment pursuant to Federal Rule of Civil Procedure ("Rule") 56, as well as Relator Kenneth W. Armstrong's ("Relator") Cross-Motion for Partial Summary Judgment. Jurisdiction is proper pursuant to 28 U.S.C. §§ 1331 and 1367. Venue is proper pursuant to 28 U.S.C. § 1391 and 31 U.S.C. § 3732(a). This opinion is issued without oral argument pursuant to Rule 78. For the reasons stated herein, Defendants' Motion is GRANTED and Relator's Motion is DENIED.
The Andover Defendants are former owners of two nursing homes in Andover, New Jersey ("Building One" and "Building Two"; together, "Andover"). (D.E. 129-1 ¶ 1.)1 During the relevant time period and until his death in October 2012, Dr. Hooshang Kipiani ("Dr. Kipiani") was the medical director and an attending physician at Andover. (Id. ¶¶ 4-6.)2 This action arises from Relator's allegations that, from 2009 to 2012, the Andover Defendants and Dr. Kipiani fraudulently billed the United States and the States of New York and New Jersey for per diem services provided to Andover patients, even though Andover's physicians did not visit the patients as often as required by law.
The Andover Defendants did not submit claims for individual patient visits performed by doctors at their nursing homes, but they submitted claims for per diem services provided to Andover residents. (Id. ¶¶ 51, 53.) To submit claims to the relevant Medicare and Medicaid programs, the Andover Defendants entered into provider agreements that required them to comply with certain regulations set forth in 42 C.F.R. § 483, including a requirement that each nursing home resident be seen "by a physician at least once every 30 days for the first 90 days after admission and at least once every 60 days thereafter."3, 4 42 C.F.R. § 483.30(c)(1). In order to bepaid for the per diem services, the Andover Defendants also included with each reimbursement claim a certification verifying that they were furnishing accurate information and that the services were provided in accordance with applicable regulations. (D.E. 129-1 ¶ 55.)5 Relator alleges that these certifications were false because Andover's physicians did not visit its patients at the legally prescribed minimum intervals. The following events preceded the instant suit.
Andover hired Relator, a retired police officer, in August 2002 as a patient advocate. (Id. ¶¶ 8-13.)6 In this role, he frequently communicated with patients and considered it part of his job to make sure that the patients' needs were met. (Id. ¶¶ 21, 22.) As part of his responsibilities, Relator received investigation reports of incidents and issues involving Andover patients. (Id. ¶ 23.) Relator would log the reports, interview the patients and staff involved, review the relevant documents, write reports, and, when appropriate, forward the reports to Andover administrators, the New Jersey Ombudsman, the New Jersey Department of Health, or the Andover Township police. (Id. ¶¶ 24, 25.) Relator sent any reports involving significant injury to the New Jersey Ombudsman, and representatives from the Ombudsman's office would subsequently visit Andover to investigate, including meeting with Relator in private to ask questions. (Id. ¶¶ 26-29.)
Relator testified during his deposition that he received reports from patients, whom he could not specifically recall, that they were not being visited by a doctor. (Id. ¶ 31.) Nonetheless, he "really didn't do anything" about the reports. (Id. ¶ 32.) According to Relator, he averaged about 1,100 to 1,200 investigations per year and authored thousands of investigation reports, but Dr. Kipiani's alleged conduct was a "very low security priority." (D. E. 139-1 ¶¶ 91, 93.) Relator therefore did not report to the Ombudsman's office or to the other authorities that Andover's doctors were not visiting patients with the required frequency. (D.E. 129-1 ¶ 30.) Andover terminated Relator's employment in 2012. (Id. ¶ 34.)
Relator's witness Colleen Baxter worked at Andover from 1991 to 2012 in various positions, including as quality assurance director from 1999 to 2012. (Id. ¶ 36.) Ms. Baxter shared an office with Relator in Building Two from 2001 to 2011, and her job responsibilities as quality assurance director were limited to Building Two. (Id. ¶¶ 18, 19, 38, 39.) These job responsibilities included establishing plans to address deficiencies at the facility and investigating patient falls. (Id. ¶ 38.) Ms. Baxter occasionally met with state inspectors to discuss patient falls and incident reports, and she had opportunities at these meetings to inform the inspectors of any concerns regarding patient care. (Id. ¶¶ 40, 41.) However, she never informed the inspectors of any concerns regarding the frequency of physician patient visits. (Id. ¶ 41.) Andover terminated Ms. Baxter's employment on August 15, 2012. (Id. ¶ 44.)7
Relator, Ms. Baxter, and three other witnesses—Nurse Donna Smith, Nurse Ann Drake, and clerical worker Arnetta Williams, all of whom worked in Building Two during the relevant time period—submitted declarations in this action stating that Dr. Kipiani typically came toAndover only a few times per week, staying a few hours per visit. (D.E. 139-1 ¶¶ 67-73, 81.) They also stated that it was common knowledge among the nursing staff that Dr. Kipiani often wrote in patients' charts without performing the required patient visits. (Id. ¶ 85.) Nurse Smith, Ms. Baxter, and Relator additionally stated that they never saw Dr. Kipiani in a patient room directly attending to a patient. (Id. ¶¶ 82, 86, 87.) However, both Relator and Ms. Baxter admitted during their depositions that, as they were based in Building Two, they did not know or could not know whether Dr. Kipiani visited patients in Building One. (D.E. 129-1 ¶ 42; D.E. 139-1 ¶ 87.)
Only two witnesses, Ms. Baxter and Ms. Williams, named specific patients at all. Although Ms. Baxter identified 15 patients that she believed were Dr. Kipiani's patients, she did not specify whether or not Dr. Kipiani visited those 15 patients. (See D.E. 139-1 ¶ 64; D.E. 129-5 at 97-99.) Ms. Williams listed 21 patients that she believed "were not being seen by Dr. Kipiani," though she did qualify that he saw patients when they asked to see him and during medical emergencies. (D.E. 129-6 at 4-5.) However, three other Andover nurses—Sharon Skidmore, Rita Malones, and Sonia Velamonte—submitted declarations stating that Dr. Kipiani regularly conducted patient visits and that they accompanied him on those visits. (D.E. 139-1 ¶ 79.)
Relator filed this lawsuit on June 1, 2012, shortly after his termination, as a qui tam relator on behalf of the United States and the States of New Jersey and New York. (D.E. 1.) The United States applied for an Order staying the action so that it could decide whether to intervene, and the case was administratively terminated on September 30, 2013. (D.E. 8, 9.) The Andover Defendants continued to submit per diem claims to the Government from 2012 through 2015, and the Government continued to pay those claims. (DE. 129-1 ¶ 57.) In June 2017, the United States intervened with respect to defendant Dr. Boris Freyman but declined to intervene as to the otherdefendants. (D.E. 13.) This Court reopened the case in September 2017, and Relator filed a Second Amended Complaint in March 2019, alleging violations of the Federal False Claims Act ("FCA") (Counts I-V), the New Jersey False Claims Act ("NJFCA"), N.J.S.A. § 2A:32c-3(a)-(c) (Counts VI-X), and the New York False Claims Act ("NYFCA"), N.Y. State. Fin. Law § 189(a)-(b) (Counts XI and XII).8 (D.E. 17, 70.) Following discovery, Defendants and Relator filed their Motions for Summary Judgment and briefing was timely completed. (D.E. 124, 129, 139.)
Summary judgment is appropriate "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). The "mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). A fact is only "material" for purposes of a summary judgment motion if a dispute over that fact "might affect the outcome of the suit under the governing law." Id. at 248. A dispute about amaterial fact is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. The dispute is not genuine if it merely involves "some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
The moving party must show that if the evidentiary material of record were reduced to admissible evidence in court, it would be insufficient to permit the nonmoving party to carry its burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Once the moving party meets its initial burden, the burden then shifts to the nonmovant who must set forth specific facts showing a genuine issue for trial and may not rest upon the mere allegations, speculations, unsupported assertions or denials of its pleadings. Shields v. Zuccarini, 254 F.3d 476, 481 (3d Cir. 2001). "In considering...
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