United States ex rel. Simms v. Austin Radiological Assoc.

292 F.R.D. 378, 2013 WL 3305513, 2013 U.S. Dist. LEXIS 90783
CourtDistrict Court, W.D. Texas
DecidedJune 27, 2013
DocketNo. A-10-CV-914-AWA
StatusPublished
Cited by5 cases

This text of 292 F.R.D. 378 (United States ex rel. Simms v. Austin Radiological Assoc.) is published on Counsel Stack Legal Research, covering District Court, W.D. Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States ex rel. Simms v. Austin Radiological Assoc., 292 F.R.D. 378, 2013 WL 3305513, 2013 U.S. Dist. LEXIS 90783 (W.D. Tex. 2013).

Opinion

ORDER

ANDREW W. AUSTIN, United States Magistrate Judge.

Before the Court is Defendant Austin Radiological Association’s (“ARA”) Motion for Clarification (Dkt. No. 98) and Relator Katherine J. Simms’s (“Simms”) Response (Dkt. No. 102). The following documents are also considered in relation to ARA’s Motion for Clarification: Advisory to the Court regarding Relator’s List of Issues Remaining (Dkt. No. 106) and an Exhibit List, submitted in camera (Dkt. No. 110). On May 24, 2013, the Court held a hearing on ARA’s Motion for Clarification. Due to scheduling issues, the hearing was continued and concluded on May 31, 2013.

I. BACKGROUND

The relevant background in this ease was detailed in a previous order. See Dkt. No. 93. ARA’s current pending motion concerning discovery is the fifth discovery-related motion in this case. See Dkt. Nos. 62, 65, 76 and 94. Despite previous encouragement to resolve their discovery disputes without the intervention of the Court, the parties have been unable to do so and still have the following unresolved discovery issues in relation to Simms’s claims under the False Claims Act. At this time, there do not appear to be any discovery issues related to Simms’s retaliation and wrongful discharge claim.

II. ANALYSIS

ARA’s Motion for Clarification reflects the continued dispute between the two parties concerning discovery in this case. In its motion, ARA seeks clarification with regard to the following three issues:

1. “Whether ARA has complied with its discovery obligations by producing all Charge Codes within the reasonable time frame for discovery of 1/1/2007 to 9/22/2011 for those charge codes that [381]*381have a class code of Medicare, Medicaid, or Champus/Tricare as a primary, secondary or tertiary payor and farther including all of the payment data and adjustment data or other data for each of those Charge Codes.”
2. “Whether ARA’s discovery obligations have been fulfilled with respect to government payors.”
3. “Whether it must produce non-responsive portions of documents or whether it may redact this information.”

Dkt. No. 98 at 8. As a general matter, ARA believes that it has complied with the Court’s March 18th order concerning discovery. On the other hand, Simms asserts that ARA has not complied fully with the Court’s March 18th order and is continuing to delay production. Dkt. No. 102. Simms requests that the Court order ARA to (1) “produce all responsive financial documents existing between January 1, 2007 and September 22, 2011,” (2) “produce unredacted versions of all documents existing between January 1, 2007 and September 22, 2011 on which redactions were made because they reference an earlier date,” and (3) “produce unredacted versions of documents redacted for unresponsiveness or because related to entities not a party to the litigation.” Id. at 4. The Court will address each issue in turn.

A. Whether ARA has complied with its discovery obligations by producing all Charge Codes within the reasonable time frame for discovery of 1/1/2007 to 9/22/2011 for those charge codes that have a class code of Medicare, Medicaid, or Champus/Tricare as a primary, secondary or tertiary payor and further including all of the payment data and adjustment data or other data for each of those Charge Codes.

This issue concerns ARA’s production of its financial and accounting data with regard to accounts where Medicare, Medicaid or CHAMPUS/TRICARE are a primary, secondary or tertiary payor. ARA asserts that it is not required to produce all data generated during the time frame “if that data concerns adjustment codes or payment codes related to charges that occurred prior to January 1, 2007.” Dkt. No. 98 at 5. ARA also believes that it is not required to produce “data generated after September 21, 2011 related to charges prior to September 22, 2011.” Id. ARA argues that ordering it to produce such information subjects it to unending discovery. Id. On the other hand, Simms contends that ARA is required to produce “all data generated during the relevant time period regarding charges to government health care programs, regardless of the dates of service.” Dkt. No. 102 at 2. Simms stresses that the Court emphasized that the important date is the date of retention of overpayments, not the date on which the service was provided. Id.

Before the Court outlines the particulars of ARA’s discovery obligations, the Court finds it necessary to address the continuing dispute over using the date of service as the event by which to determine whether a particular account is relevant to Simms’s claims. In a number of separate motions and proceedings, ARA has requested that the Court “clarify,” or “reconsider,” its rulings with regard to the reach of Simms’s claims, and has continued to assert in pleadings and in arguments that the Court has misconstrued the False Claims Act (“FCA”), as amended by the Fraud Enforcement Recovery Act (“FERA”), and has misunderstood Judge Yeakel’s order on ARA’s Motion to Dismiss. See, e.g., Dkt. No. 94. In essence, ARA contends either: (1) that Judge Yeakel has dismissed all claims that related to retention of overpayments involving patients whose dates of service were prior to May 20, 2009 (the effective date of the FERA amendments); or (2) that regardless of what Judge Yeakel did or did not dismiss, Simms is precluded by the FCA, FERA, and case law—such as the decision in United States ex rel. Stone v. OmniCare, Inc., No. 09-4319, 2011 WL 2669659 (N.D.Ill. July 7, 2011)— from pursuing any claim for retained over-payments stemming from patients whose dates of service predate the FERA amendments.

As the undersigned has expressed on several occasions, Judge Yeakel quite clearly declined to dismiss a portion of Simms’s claims, specifically those claims related to [382]*382overpayments retained after May 20, 2009. Nowhere in his order does Judge Yeakel tie this category of claims to patients whose “dates of service” fell into any particular time frame. Instead, and quite to the contrary, in concluding that Simms had validly stated reverse FCA claims, Judge Yeakel pointed to the fact that the complaint alleged that Simms had run reports in April 2010 showing significant credit balances for patients who received services in August 2008, May 2007, and March 2005. Dkt. No. 68 at 11-12. In fact, he pointed to the age of the account balances as evidence in support of his decision not to dismiss the claims:

The fact that Simms was able to identify hundreds of overpayments that remained unpaid in the course of her investigation, some of which were associated with services many years prior to the date Simms ran the payment lists, constitutes reliable indicia leading to a strong inference that ARA deliberately ignored or recklessly disregarded the existence of government overpayments.

Dkt. No. 68 at 13. Judge Yeakel even went so far as to reject ARA’s claim that liability for retaining overpayments did not attach until the Patient Protection and Affordable Care Act (“PPACA”) imposed the 60-day limit on retaining overpayments, given “Congress’s clear statement [in FERA] that retention of an overpayment by a government payor subjected providers to civil liability as of May 20, 2009.” Id. Judge Yeakel summarized his decision by dismissing “Simms’s complaint with respect to its

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292 F.R.D. 378, 2013 WL 3305513, 2013 U.S. Dist. LEXIS 90783, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-ex-rel-simms-v-austin-radiological-assoc-txwd-2013.