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By Eric Topor
A home health provider and its owner were hit with an almost $2 million False Claims Act judgment Oct. 20 for defrauding the District of Columbia’s Medicaid program ( United States v. Dynamic Visions, Inc. , 2017 BL 376592, D.D.C., No. 11-cv-695, 10/20/17 ).
The U.S. District Court for the District of Columbia accepted evidence from an FBI investigator that Dynamic Visions Inc. (DVI) submitted from January 2006 through June 2009 $489,744 in fraudulent Medicaid claims, which were tripled under the FCA’s damages provision. The court previously granted the Department of Justice judgment on DVI’s liability for submitting the false claims, and on the personal liability of DVI’s owner, Isaiah Bongam, for the fraudulent claims, in a December 2016 ruling on liability alone.
The DOJ has made prosecution of individuals responsible for corporate fraud an enforcement priority since the introduction of the Yates memo in 2015, and prosecutors’ efforts to hold Bongam personally liable for DVI’s actions are another example of that effort. The DOJ’s Deputy Attorney General Rod Rosenstein stated Oct. 6 that the memo’s guidelines are undergoing review, but health-care attorneys expect the DOJ’s push to hold culpable individuals accountable in corporate fraud to continue.
The government also requested the maximum allowable per-claim fine under the statute, $11,000, for the 47 false claims DVI submitted, amounting to an additional $517,000 in per-claim penalties and a total judgment of nearly $2 million against DVI and Bongam personally. Judge Colleen Kollar-Kotelly agreed with the DOJ that the forging of physician signatures on patient health plans and the commission of fraud against a program designated for needy people merited the maximum allowable per-claim fine.
Brian J. Markovitz, with Joseph Greenwald & Laake PA in Greenbelt, Md., told Bloomberg Law Oct. 23 that individuals who commit fraud “shouldn’t be able to hide from their misdeeds by claiming corporate protections.” Markovitz, who represents whistle-blowers in FCA lawsuits, said there is a stronger deterrent factor against fraud when individuals are held personally accountable.
Bongam’s attorney, Jude C. Iweanoge in Washington, told Bloomberg Law that his client planned to appeal the judgment but declined to comment further. The DOJ declined to comment on the case.
The bulk of the total judgment consisted of the tripled claim amounts, which came from an FBI investigator’s assessment of Medicaid claims that DVI made pursuant to fraudulent or missing care plans, and was supported by information supplied by the District of Columbia’s Department of Health Care Finance. Kollar-Kotelly rejected the defendant’s arguments to limit the relevant time period to December 2008, and the FCA’s damages provision, which generally mandates triple damages, left little room for alteration of that portion of the judgment.
The court had more latitude in the parties’ arguments on per-claim fines, which can vary between $5,500 and $11,000 per claim. Kollar-Kotelly noted the government’s perhaps conservative decision to label each computerized invoice submission as a “claim,” even though each electronic submission contained multiple invoices for individual care recipients, which Kollar-Kotelly said could “theoretically” be considered a claim.
Markovitz said pursuing only the submitted invoices for per-claim fines was a solid strategy. "[I]t makes sense to go for the obvious false claims, for which there can be no dispute, and then seek the highest penalties given the egregious conduct by the defendants,” Markovitz said. He added that the government’s decision on this portion of the judgment might have been influenced by the defendants’ ultimate ability to pay the judgment.
Jude C. Iweanoge in Washington represented the defendants. The U.S. Attorney’s Office for the District of Columbia represented the government.
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