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United States, ex rel. Fiederer v. Care

United States District Court, D. Nevada

September 18, 2014

UNITED STATES OF AMERICA, ex rel., EVA FIEDERER, et al., Plaintiffs,
v.
HEALING HEARTS HOME CARE, INC, et al., Defendants.

ORDER

CAM FERENBACH, Magistrate Judge.

This matter involves Eva Fiederer's qui tam action against Healing Hearts Home Care, Inc., Julius Fuentebella, and Dr. Brian E. Lee. (Compl. 1#).[1] Before the court is Fiederer's Motion to Compel (#30). Defendants filed an opposition (#31); and Fiederer replied (#34). For the reasons stated below, Fiederer's Motion to Compel is granted.

BACKGROUND

Eva Fiederer is a registered nurse. (Compl. (#1) at ¶ 4). On May 14, 2013, she began working at Healing Hearts Home Care, Inc. ( Id. at ¶¶ 5, 30). On her first day of work, Healing Heart's billing and administrative assistant, "Mama Mers, " instructed Fiederer that every patient's chart should indicate that the patient is hard of hearing, incontinent, homebound, confused, and is visually impaired, regardless of the patient's actual condition. ( Id. at ¶ 31). "Mama Mers" also told Fiederer that every Healing Hearts employee, including its physician, receives a $500.00 bonus for new patient referrals. ( Id. at ¶ 32).

Fiederer began seeing patients the next day. ( Id. at ¶ 33). Her duties included visiting patients, treating patients, and completing patient charts. ( Id. ) After visiting the last patient for the day, Fiederer's chart work was reviewed by Healing Heart's director, Julius Fuentebella. ( Id. at ¶ 34). Fuentebella told Fiederer that her charts required revision. ( Id. ) The problem: Fiederer's charts did not reflect the general rule instituted by Fuentebella: "We have to have a reason to be seeing the patient." ( Id. ) Fuentebella directed Fiederer to revise her charts in accordance with this rule.

For instance, on one patient's chart, Fiederer noted that the patient declined service from Healing Hearts because Healing Hearts does not employ a physical therapist who will travel to Henderson, Nevada. ( Id. at ¶ 35). In this case, Fuentebella stated that Fiederer should remove the sentence stating that Healing Hearts does not employ a physical therapist who will travel to Henderson. ( See id. ) In its place, Fuentebella told Fiederer to simply write that the "patient refused service." ( Id. ) Fiederer believes that Healing Hearts then submitted the revised chart to a Medicare carrier for reimbursement under the Medicare Program. ( Id. at ¶ 36).

On May 28, 2013, Fiederer completed two additional charts in connection with patient visits. ( See id. ¶¶ 37-42). Again, Fuentebella instructed Fiederer to revise her charts in accordance with the general rule that "[w]e have to have a reason to be seeing the patient." ( See id. ) In both cases, Fiederer visited the patient to administer medicine. But, in both cases, Fiederer discovered that there was no medication to administer. ( Id. at ¶¶ 38, 41). Fiederer noted this fact in the patients' charts. ( Id. ) Fuentebella objected. He stated that if Healing Hearts submits documentation indicating that the there was no medication to administer, then "it might be understood that [Healing Heart's service] was not needed." ( Id. )

Fiederer believes that Healing Hearts then submitted the revised charts to a Medicare carrier for reimbursement under the Medicare Program. ( Id. at ¶¶ 39, 42). Fiederer also believes that one of Healing Heart's physicians, Dr. Lee, received a $1, 000.00 bonus for referring these patients to Healing Hearts for treatment. ( Id. at ¶¶ 37, 40). These actions, combined with similar conduct by Healing Hearts' employees with regard to other patients, led to Fiederer's resignation, effective June 11, 2013. ( Id. at ¶¶ 43-60). Fiederer's employment at Healing Hearts lasted just twenty-eight days. ( Id. at ¶¶ 30, 54).

On October 10, 2013, Fiederer commenced this qui tam action. She alleges that Healing Hearts, Fuentebella, and Dr. Lee violated the False Claims Act, 31 U.S.C. § 3729, and Nevada's False Claims Act, NEV. REV. STAT. § 357.040(1), in connection with their billings practices. Under Title VII of the Social Security Act, 42 U.S.C. §§ 1935, et seq., which is popularly known as Medicare, healthcare providers must certify that documentation submitted in support of requests for reimbursement are accurate. See 42 C.F.R. § 483.20. If, as Fiederer alleges here, Healing Hearts knowingly submitted inaccurate documentation for reimbursement, then it may be liable under the False Claims Act. See United States v. Prabhu, 442 F.Supp.2d 1008, 1026 (D. Nev. 2006) (citing United States v. Mackby, 261 F.3d 821, 826 (9th Cir. 2001)) (outlining the elements of False-Claims-Act liability). The False Claims Act contains a six-year statute of limitations. See 31 U.S.C. § 3731(b)(1).

Now, the parties are in the midst of discovery. On May 22, 2014, Fiederer served Healing Hearts, Fuentebella, and Dr. Lee with her First Set of Requests for Production of Documents. (Bessel Aff. (#30) at ¶ 4). Two requests are contested here. ( Id. at 1: 22-23). The first seeks "all of your patient intake records [...] for six (6) years from the date [Fiederer] filed the Complaint (October 10, 2013) to present." ( Id. at 5: 4-7). The second seeks "all records evidencing any and all payments you made to Dr. Brian Lee." ( Id. at 6:13-14).

Because Fiederer worked at Healing Hearts for just twenty-eight days, Defendants produced responsive documents for that time period only. Following a failed meet and confer, Fiederer filed the instant Motion to Compel, arguing that the False Claims Act's statute of limitations entitles her to six-years of documents. Defendants oppose Fiederer's motion, asserting that Fiederer must plead actual knowledge regarding Defendants' actions during the six-year period to be discoverable. This order follows.

LEGAL STANDARD

Federal Rule of Civil Procedure 26(b)(1) governs discovery's scope and limits. In pertinent part, Rule 26(b)(1) provides that "[p]arties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense." FED. R. CIV. P. 26(b)(1). Rule 26 defines relevant information as any information that "appears reasonably calculated to lead to the discovery of admissible evidence." Id. The Supreme Court states that Rule 26 affords liberal discovery. Seattle Times, Co. v. Rhinehart, 467 U.S. 20, 34 (1984). Liberal discovery "serves the integrity and fairness of the judicial process by promoting the search for the truth." Shoen v. Shoen, 5 F.3d 1289, 1292 (9th Cir. 1993).

Where-as here-a party resists discovery, the requesting party may file a motion to compel. Rule 37 governs motions to compel, and provides that a "party seeking discovery may move for an order compelling an answer, designation, production, or inspection" if a party fails to answer an interrogatory submitted under Rule 33" or "fails to respond" to a request under Rule 34. Before moving to compel, Rule 37 requires the movant to include a certification that the movant has "in good faith conferred or attempted to confer" with the party resisting discovery before seeking judicial intervention. FED. R. CIV. P. 37(a)(1); see also LR ...


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