United States District Court, E.D. Kentucky, Central Division, Frankfort
MEMORANDUM OPINION & ORDER
GREGORY F. VAN TATENHOVE, District Judge.
This matter is before the Court upon the Defendant Dr. Philip Robinson's Motion for Summary Judgment. [R. 41]. For the reasons set forth herein, his motion is DENIED.
This case concerns a suit which the United States brought against Dr. Philip Robinson and his employer, Associates in Eye Care, P.S.C. (AEC) under the False Claims Act, 31 U.S.C. §§ 3729-33 (FCA), and under common law theories of payment by mistake and unjust enrichment. [R. 1.] Doctor Robinson is an optometrist who provided optometric services to nursing home residents on a full-time basis through the relevant time period of January 1, 2007 through January 31, 2012. [R. 41-1 at 4; R. 45 at 2.] During this time, Robinson was employed by AEC, which is a practice group of optometrists, and he also owned 10% of its outstanding stock. [R. 45 at 2; R. 45-1.] Robinson assigned his right to bill Medicare to AEC, who then paid Robinson about 65% of the net revenue received. [ Id. ]
Robinson's practice was to travel to various nursing homes, where he treated mainly long-term patients suffering from multiple conditions including dementia. [R. 41-1 at 4.] Robinson hired assistants, one of whom typically accompanied him to the nursing home to help fill out charts, transport equipment, and locate patients but did not assist with the examinations themselves. [ Id. ; R. 45 at 3.] During most of the relevant time period, Dr. Robinson was assisted by either Brittany McKee or Stacy Boyd. [R. 45 at 4.] Robinson provided regular services to fourteen separate nursing homes during the relevant period. [R. 41-1 at 4.] The closest nursing homes were in Somerset, Kentucky, where the AEC office was located, but several of the nursing homes Dr. Robinson regularly visited were over 60 minutes or more away. [R. 46-3 at 29-30.] According to his assistants, upon arriving at the nursing home, Dr. Robinson typically consulted with the staff and prepared a cart of equipment before beginning his examinations. [R. 45 at 4.] The patients he intended to see were designated on follow-up lists with each patient's name and when he thought he should examine them again. [ Id. ; R. 41-1 at 4.] As the United States points out, and Dr. Robinson does not dispute, he typically indicated on the list that he should examine them at the "next visit, " which almost always occurred four to six weeks later. [R. 45 at 4.] Dr. Robinson's practice was to go door-to-door down a hallway and examine patients in their rooms, according to their names on the follow-up lists. [ Id. ] In this way, his records reflect that he provided some form of eye examination to almost all of his nursing home patients every four to six weeks, and only rarely did he note that the next examination should occur later than the "next visit." [ Id. at 4-5.]
Doctor Robinson's method of documenting his patients' treatment also bears particular relevance to this case. Dr. Robinson does not dispute that the United States' exhibits [R. 46-8, R. 46-9] are representative of his documentation methods, and from those exhibits and his assistants' deposition testimony [R. 46-3 at 14-15; R. 46-4] it appears Dr. Robinson or his assistant typically listed the patient's name, facility, examination date, and the patient's chief complaint on examination forms which were filled out for each patient. Much of the time the patient's complaint was documented as "follow-up" (F/U) for previous conditions rather than a new complaint. [R. 46-8, R. 46-9.] Many patients appear to have been unable to communicate a complaint at all and were described as disoriented, confused, or non-responsive. [ Id. ] For many of the patients the examination forms also indicate that there was no change in their history from the first time they were examined by Dr. Robinson. [ See, e.g., R. 46-8 at 5.] Additionally, the assistant typically would complete an "Assessment" portion of the form documenting the patient's diagnoses, which were then assigned numbers. [R. 46-8, R. 46-9, R. 46-3 at 54-55; R. 46-4 at 62.] After examining all the patients on a hall, floor, or wing, Dr. Robinson completed the forms by describing the examination and the proposed treatment plan, which for most patients was simply to "monitor" them [R. 46-3 at 54-57; R. 46-4 at 60-61], and also noted when a follow-up examination should occur which for almost all his patients was at the "next visit, " approximately four to six weeks later. [R. 41-6 at 8-9, 46-6, R. 46-7, R. 46-8, R. 46-9.] According to his assistants, Dr. Robinson and his assistant also took a lunch break every day for about thirty minutes, and after lunch would either examine more patients, or would travel to a second nursing home to repeat the routine. [R. 46-5 at 4; R. 56-4 at 77.]
According to his records, Dr. Robinson routinely saw more than 60 patients per day, for whom he later billed Medicare, and on fifteen particular days within the relevant period he claimed to have examined over 90 patients who were Medicare beneficiaries. [R. 45-2 at 2-3.] One particular day described in the Complaint was May 28, 2008, when Dr. Robinson claimed to have examined 117 Medicare beneficiaries. [ Id. ; R. 1 at 13.] The United States takes issue with how much time he logistically could have spent with each patient. Based on the assistants' testimony, Dr. Robinson and his assistant usually left to visit the nursing homes by 8:00 or 8:30 a.m. at the latest, and often left earlier than 8:00 a.m. when visiting those that were further away. [R. 46-3 at 12.] According to the time sheets the assistants filled out each day, Dr. Robinson would spend between 10 and 45 minutes talking to nursing home staff upon his arrival [R. 46-4 at 38-39], and his documentation of his services after visiting a particular hall or floor took between 30 and 60 minutes. [ Id. at 77-78; R. 46-3 at 57.] The time sheets also reflect the time the assistants spent preparing equipment, time spent on lunch breaks, travel time to the nursing homes, and travel time back to AEC at the end of the day. Doctor Robinson does not challenge the accuracy of these time sheets, and based on these reports, some objective limits to the time spent examining patients can be ascertained.
Also of particular relevance to this case is the way Dr. Robinson's claims were billed. Most of the claims at issue were billed to Medicare using the following CPT codes: 92012, 92014, 99308, and 99309. [R. 45 at 3; R. 45-2.] These codes were chosen by either Dr. Robinson or by Stacy Boyd, who admitted she had no formal training in Medicare coding and simply entered the codes the way Dr. Robinson taught her. [R. 46-4 at 91-97.] A total number of 25, 779 claims were billed to those four codes for Dr. Robinson's services during the relevant time period, for which Medicare paid AEC $1, 449, 488.29. [R. 45-3 at 59, 107, 113.] In early 2007 and early 2008, Medicare contractors audited Dr. Robinson and concluded that 35 of the 96 services they reviewed should have been downcoded or denied. [R. 46-11 at 49-52.] AEC chose not to appeal the finding, but in 2009 AEC retained a third party consultant, Soterion Medical Services, to review a random sampling of Dr. Robinson's services to nursing home patients. [ Id. at 53.] Soterion advised AEC that the audit's results were not sufficient to sustain an appeal to recoup denied payments, that "a more thorough understanding of the parameters required by CMS" was necessary to avoid frequent audits in the future, and that "[a]ccurate coding... is extremely important because it must ensure full compliance with the law." [R. 46-13 at 1.] The August 2009 results of the Soterion audit emphasized "the absolute importance of reviewing all records for medical necessity and documentation prior to assigning codes and submitting the charges to the payer, " and gave a lengthy description of how to more accurately assign billing codes in order to avoid further audits. [ Id. ; R. 14-1; R. 12-2.] In October 2009, yet another CMS contractor, AdvanceMED PSC, reviewed AEC's claims to Medicare for Dr. Robinson's services to nursing home patients by examining 24 services provided to two patients over the course of a year. [R. 46-14.] As a result, AdvanceMED deemed 23 of those services were not medically necessary and eventually referred the matter to law enforcement. [ Id. ; R. 46-15 at 91-93.]
Presently before the Court is the United States' allegation that Dr. Robinson violated the False Claims Act by submitting claims to Medicare that sought payment for routine services to nursing home residents that were not reasonable or necessary, or were for a type or level of service that was not actually provided. [R. 1 at 22.] In particular, the United States claims that on certain days during the relevant period, Dr. Robinson claimed to examine such a high number of patients that either he could not possibly have provided such services under the circumstances, and/or such services were so cursory as to render them worthless. [R. 1 at 1-2; R. 45 at 7-9.] Additionally the United States alleges that Dr. Robinson knew or should have known of the falsity of these claims. [R. 1 at 22.]
In moving for summary judgment, Dr. Robinson first claims that the United States cannot produce any objective evidence that the services billed to Medicare were not medically necessary. [R. 41-1 at 1.] In particular, concerning his services on two specific high-volume days, he claims that there is no genuine issue of material fact concerning the necessity of those services, and that the United States also cannot prove Dr. Robinson's knowledge or intent for purposes of the FCA based on the volume of patients seen in a given day. [R. 41-1 at 1-2.] Finally, Dr. Robinson also contends that the United States is improperly attempting to extrapolate damages from a sample of thirty claims, which he claims is insufficient for establishing a violation of the FCA. [ Id. at 2.]
Pursuant to Federal Rule of Civil Procedure 56(c), summary judgment should be granted "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). "A genuine dispute exists on a material fact, and thus summary judgment is improper, if the evidence shows that a reasonable jury could return a verdict for the nonmoving party.'" Olinger v. Corp of the President of the Church, 521 F.Supp.2d 577, 582 (E.D.Ky. 2007) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)). Stated otherwise, "[t]he mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff." Anderson, 477 U.S. at 252.
The moving party has the initial burden of demonstrating the basis for its motion and identifying those parts of the record that establish the absence of a genuine issue of material fact. Chao v. Hall Holding, 285 F.3d 415, 424 (6th Cir. 2002). Moreover, the movant may satisfy its burden by showing "that there is an absence of evidence to support the non-moving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Once the movant has satisfied this burden, the non-moving party must go beyond the pleadings and come forward with specific facts to demonstrate there is a genuine issue. Holding Hall, 285 F.3d at 424 (citing Celotex, 477 U.S. at 324). The non-moving party, however, "must do more than show there is some metaphysical doubt as to ...