Delia Bell v. Karl E. Cross ( 2021 )


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  • USCA11 Case: 21-11064    Date Filed: 11/26/2021   Page: 1 of 9
    [DO NOT PUBLISH]
    In the
    United States Court of Appeals
    For the Eleventh Circuit
    ____________________
    No. 21-11064
    Non-Argument Calendar
    ____________________
    DELIA BELL,
    Ex Rel,
    Plaintiff-Appellant
    Cross-Appellee,
    versus
    KARL E. CROSS,
    CROSS GARDEN CARE CENTER, LLC,
    a.k.a. Golden 190, LLC,
    Defendants-Appellees
    Cross-Appellants,
    USCA11 Case: 21-11064         Date Filed: 11/26/2021    Page: 2 of 9
    2                      Opinion of the Court                 21-11064
    TABITHA CROSS, et al.,
    Defendants.
    ____________________
    Appeals from the United States District Court
    for the Middle District of Florida
    D.C. Docket No. 8:16-cv-00961-JDW-AEP
    ____________________
    Before WILSON, JILL PRYOR, and BRANCH, Circuit Judges.
    PER CURIAM:
    This is a False Claims Act (FCA) case. Delia Bell, a registered
    nurse, alleges that her former employer—a skilled nursing facility
    (SNF) called Cross Garden Care Center (CGCC)—and its owner
    Karl Cross (together, the Defendants) submitted false claims for re-
    imbursement to the Centers for Medicare and Medicaid Services
    (CMS). The district court granted the Defendants’ motion for sum-
    mary judgment. Bell argues on appeal that the district court erred
    by allocating the burden of proof to her, rather than to the Defend-
    ants. On a conditional cross-appeal, the Defendants argue that the
    affidavit Bell attached to her motion for summary judgment was a
    sham and should have been stricken. We need not reach the De-
    fendants’ conditional cross-appeal because the district court
    USCA11 Case: 21-11064        Date Filed: 11/26/2021     Page: 3 of 9
    21-11064               Opinion of the Court                        3
    correctly found that the Defendants are entitled to summary judg-
    ment, even when considering Bell’s affidavit.
    I.
    We begin with some background on Medicare reimburse-
    ment at SNFs. Medicare is a federal program that funds health in-
    surance for eligible elderly and disabled people. See 
    42 U.S.C. §§ 1395
     et seq. The program will cover at least some of the cost of an
    eligible patient’s first 100 days at an SNF. SNFs can seek reimburse-
    ment for the services they provide through a per diem payment
    system. 42 U.S.C. § 1395yy; 
    42 C.F.R. § 413.335
    .
    The per diem rate at which Medicare reimburses SNFs is re-
    lated to the patient’s Resource Utilization Group (RUG) score,
    which quantifies the patient’s need for therapy. See Ruckh v. Salus
    Rehab., LLC, 
    963 F.3d 1089
    , 1095 (11th Cir. 2020). A higher RUG
    score equates to higher Medicare reimbursement. RUG scores are
    derived from periodic assessments conducted by SNFs to evaluate
    patients’ residual functional capacity. 
    Id.
     at 1094 (citing 42 U.S.C.
    § 1395i-3(b)(3)(C)). SNFs must submit these assessments, which
    are called Minimum Data Sets (MDS), in order to receive Medicare
    reimbursement. Id.
    II.
    Bell worked as a nursing home administrator at CGCC from
    November 2014 until she resigned in August 2015. In April 2016,
    Bell sued CGCC under the FCA. The FCA enables private citizens,
    known as qui tam relators, to sue on behalf of the United States
    USCA11 Case: 21-11064               Date Filed: 11/26/2021          Page: 4 of 9
    4                           Opinion of the Court                        21-11064
    government. 
    31 U.S.C. § 3730
    (b). “To establish a cause of action
    under the [FCA], a relator must prove three elements: (1) a false or
    fraudulent claim; (2) which was presented, or caused to be pre-
    sented, by the defendant to the United States for payment or ap-
    proval; (3) with the knowledge that the claim was false.” United
    States v. R&F Props. of Lake Cty., Inc., 
    433 F.3d 1349
    , 1355 (11th
    Cir. 2005) (citing 
    31 U.S.C. § 3729
    (a)).
    Bell alleged, in part, that the Defendants violated §
    3729(a)(1)(A) by providing unnecessary therapy services, artificially
    inflating RUG scores, improperly refusing to discharge patients
    during their first 100 days at the facility, and improperly re-admit-
    ting patients to reset the 100-day period during which Medicare
    would reimburse for therapy services. 1 According to Bell, the De-
    fendants then submitted false claims for reimbursement to the gov-
    ernment.
    The Defendants deposed Bell in September 2020. She testi-
    fied at the deposition that she is not a licensed therapist and, there-
    fore, cannot order therapy or prescribe medications. During her
    time at CGCC, Bell was not involved in billing or the creation of
    MDS reports. In fact, she never saw a bill or an MDS report. Bell
    also had difficulty recalling any patients whose RUG scores had
    been manipulated. She recalled generally that Cross sent her
    emails inquiring why patients’ RUG scores were not higher, but
    1 Bell also alleged violations of § 3729(a)(1)(B) and 
    Fla. Stat. § 68.082
    (2)(a), but
    those counts were previously dismissed and are not before us on appeal.
    USCA11 Case: 21-11064         Date Filed: 11/26/2021      Page: 5 of 9
    21-11064                Opinion of the Court                          5
    she was unsure whether any RUG scores were changed as a result.
    She later discussed one patient who she believed underwent un-
    necessary therapy sessions, though she admitted that a therapy
    company had concluded that the patient needed the therapy.
    Following the deposition, Bell filed a motion for partial sum-
    mary judgment. She attached to that motion her own declaration
    stating that she had refreshed her recollection as to the treatment
    of seven patients. In her declaration, Bell claimed that CGCC over-
    treated these patients and sought reimbursement from the govern-
    ment, despite the fact that these patients required little or no ther-
    apy. Bell also stated that Cross directed her to increase one pa-
    tient’s RUG score without offering any justification. According to
    Bell, she raised concerns to a manager at CGCC, but the manager
    responded that “this is just how Cross operates.”
    The Defendants opposed Bell’s motion for summary judg-
    ment and filed their own motion for summary judgment. They also
    moved to strike Bell’s declaration because it contradicted her dep-
    osition testimony and contained inadmissible testimony. The dis-
    trict court denied Bell’s motion, granted the Defendants’ motion
    for summary judgment, and denied the Defendants’ motion to
    strike Bell’s declaration as moot. In its order, the district court held
    that the Defendants had established that there was no genuine is-
    sue of material fact as to the FCA claim, and that Bell had “failed to
    rebut [that] showing.”
    USCA11 Case: 21-11064         Date Filed: 11/26/2021    Page: 6 of 9
    6                      Opinion of the Court                 21-11064
    III.
    We review de novo a district court’s grant of summary judg-
    ment. Jurich v. Compass Marine, Inc., 
    764 F.3d 1302
    , 1304 (11th
    Cir. 2014) (per curiam). We view all facts and make all reasonable
    inferences in the light most favorable to the nonmovant. 
    Id.
    IV.
    Bell’s argument on appeal is that the district court “failed to
    hold [CGCC] to their burden of proof on summary judgment.” She
    argues that the district court improperly shifted the burden of proof
    to the non-movant.
    After careful review, we find that the district court did not
    improperly shift the burden of proof. The district court accurately
    cited our precedents for the proposition that the moving party (in
    this case, the Defendants) bears the initial burden of showing that
    there are no genuine disputes of material fact, but “[o]nce the mo-
    vant adequately supports its motion, the burden shifts to the non-
    moving party to show that specific facts exist that raise a genuine
    issue for trial.” Dietz v. Smithkline Beecham Corp., 
    598 F.3d 812
    ,
    815 (11th Cir. 2010).
    Applying this standard, the district court found that there
    was no genuine issue of material fact as to (1) whether the Defend-
    ants submitted false claims; and (2) the Defendants’ scienter. We
    agree with the district court on the first basis and therefore we need
    not reach the second.
    USCA11 Case: 21-11064         Date Filed: 11/26/2021    Page: 7 of 9
    21-11064               Opinion of the Court                         7
    The district court correctly found that Bell “failed to rebut
    Defendants’ showing of the absence of a genuine issue of material
    fact” as to whether the Defendants submitted a false claim. Bell
    attempts to establish a false statement by focusing on the Defend-
    ants’ determination that certain patients needed therapy when
    such therapy was unnecessary. But in order for a clinical judgment
    to be “false” in the context of the FCA, it must be objectively false,
    meaning that it “contains a flaw that can be demonstrated through
    verifiable facts.” United States v. AseraCare, Inc., 
    938 F.3d 1278
    ,
    1297 (11th Cir. 2019) (“[A] reasonable difference of opinion among
    physicians reviewing medical documentation ex post is not suffi-
    cient on its own to suggest that those judgments—or any claims
    based on them—are false under the FCA.”). “Objective falsehood
    can be shown in a variety of ways,” including through expert testi-
    mony. 
    Id.
    Here, Bell failed to create a genuine issue of material fact as
    to whether the Defendants’ treatment of patients—and thus their
    claims for reimbursement pursuant to that treatment—were based
    on objective falsities. See 
    id.
     Bell acknowledged that she is not a
    licensed therapist or medical doctor, and that she cannot order
    therapy or write prescriptions for patients. She did not offer any
    testimony in support of her position from a professional who is
    qualified to do so. And her own testimony that treatments were
    “unnecessary,” which differed from that of the professionals who
    authorized the therapy at CGCC, does no more than establish a
    difference of opinion. As our decision in AseraCare explains, such
    USCA11 Case: 21-11064         Date Filed: 11/26/2021    Page: 8 of 9
    8                      Opinion of the Court                 21-11064
    a difference of opinion falls short of establishing objective falsity.
    See 
    id.
    Bell also stated in her deposition that Cross inquired about
    raising RUG scores via email, and she stated in her declaration that
    Cross instructed her to raise one patient’s RUG score without of-
    fering a reason for the change. However, Bell fails to offer suffi-
    cient evidence to establish who these patients are, that these pa-
    tients’ RUG scores should not have been altered, and that Cross
    submitted an objectively false claim on behalf of these patients.
    Also problematic for Bell, she never saw the billing state-
    ments that CGCC submitted for reimbursement for the seven pa-
    tients she identifies. We have emphasized the importance of med-
    ical and billing content in cases where relators allege false claims
    based on the provision of unnecessary medical services. See United
    States ex rel. Clausen v. Lab’y Corp. of Am., 
    290 F.3d 1301
    , 1303
    (11th Cir. 2002). Bell argues that a spreadsheet provided by the
    government offers sufficient detail of patients’ billing history and
    CGCC’s submissions to Medicare. But as the district court found,
    the spreadsheet does not identify the patients in Bell’s declaration.
    Nor has Bell used the information in the spreadsheet to marshal
    any cogent argument as to how it creates an issue of fact regarding
    CGCC’s submission of a false claim. We agree with the district
    court, then, that even considering Bell’s declaration, there is no ev-
    idence in the record creating a genuine issue of material fact as to
    whether the Defendants submitted false claims.
    USCA11 Case: 21-11064         Date Filed: 11/26/2021     Page: 9 of 9
    21-11064                Opinion of the Court                         9
    Because we find no error in the district court’s allocation of
    the burden of proof or in its finding that Bell failed to create a gen-
    uine issue of material fact on the submission of false claims, we af-
    firm the district court’s grant of summary judgment.
    AFFIRMED.