United States of America et al v. Gentiva Health Services, Inc (TV1)
Filing
96
MEMORANDUM AND ORDER granting in part and denying in part 77 Motion to Compel and to Extend the Deadline for Filing Motions to Compel. Signed by Magistrate Judge C Clifford Shirley, Jr on 7/27/15. (JBR)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE
UNITED STATES OF AMERICA, ex rel.,
Plaintiff,
v.
GENTIVA HEALTH SERVICES, INC.,
Defendants.
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No. 3:10-CV-394-PLR-CCS
MEMORANDUM AND ORDER
This case is before the undersigned pursuant to 28 U.S.C. § 636, the Rules of this Court,
and Standing Order 13-02.
Now before the Court is a Motion to Compel and to Extend the Deadline for Filing
Motions to Compel [Doc. 77], filed by Relator Vicky White (“White”). The parties appeared
before the Court on July 14, 2015, to present oral arguments on this motion and to address
certain discovery issues in this case. Having considered the parties’ positions and the procedural
posture of this case, the Court finds that the Motion to Compel and to Extend the Deadline for
Filing Motions to Compel is well-taken, in part, and it is GRANTED IN PART and DENIED
IN PART.
I.
BACKGROUND
In this action, White alleges that Gentiva Health Services, Inc., (“Gentiva”), violated the
False Claims Act (“FCA”) by engaging in a scheme to fraudulently bill Medicare for psychiatric
home health services in the Middle Tennessee/Southern Kentucky region in which White was
employed.
White alleges that Gentiva kept psychiatric patients on its rolls for years, and
continued to collect Medicare funding for those patients, even though it knew that they did not
need home health services. During the period that White was employed by Gentiva, she worked
at the office in McMinnville, Tennessee, and occasionally visited another Gentiva facility in
Tullahoma, Tennessee.
On June 25, 2014, the District Judge entered a Memorandum Opinion and Order limiting
the scope of this action to the claim identified above. White has filed a Motion for Leave to File
Amended and Restated Complaint [Doc. 70], in which White moves the Court to grant her leave
to modify her Complaint to name the proper corporate entities as defendants in this case. On the
other hand, Gentiva has filed a Motion for Summary Judgment arguing that the particular
corporate entity named as the defendant in this action does not actually bill for home health
services and had no role in the alleged violations of the FCA. Additionally, White has filed a
Motion Pursuant to Rule 56(d) to Deny or Defer Ruing on Gentiva Health Services, Inc.’s
Motion for Summary Judgment. These motions are pending disposition.
II.
POSITIONS OF THE PARTIES
White moves the Court to order Gentiva to produce discovery related to its Middle
Tennessee and Southern Kentucky offices supervised by Deana Murphy, an area supervisor who
White alleges actively participated in the scheme. Specifically, White moves the Court to order
Gentiva to supplement its responses to First Interrogatory Set Nos. 3-8, 10, 11, 15-17; Second
Interrogatory Set, No. 2; and Second Set of Document Requests Nos. 1-7. White also moves the
Court to require Gentiva to restore and search emails. White also moves the Court for an
extension of the time for filing motions to compel.
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Gentiva responds [Doc. 87] that the District Judge limited the scope of discovery through
the ruling on the Motion to Dismiss and alleges that White is now trying to improperly expand
the scope of discovery. It suggests that discovery be limited to the McMinnville facility in 2009
and 2010 and to an audit conducted at that location during that period. Gentiva contends that
White cannot demonstrate that Gentiva played a role in the alleged FCA violations and that, as a
result, it should not be required to produce this discovery. Additionally, Gentiva argues that it
has already spent a substantial amount of resources attempting to fulfill its discovery obligations
in this case. Gentiva argues that White has delayed bringing these issues to the Court’s attention
and the motion to compel deadline should not be extended.
White replies [Doc. 90] that there is no basis for limiting discovery to the McMinnville
facility and patients identified in a single audit, as Gentiva has suggested. White maintains that
the corporate parent defense should not limit discovery, and she contends that the requested
discovery is targeted and reasonable.
III.
ANALYSIS
The Court has considered each of the party’s positions, and the Court finds and orders as
follows:
1. First Set of Interrogatories
a. Interrogatory Nos. 3, 4:
Gentiva shall answer both of these questions with
reference to “psychiatric patients” or “patients with psychiatric diagnosis”
discharged or serviced by Gentiva between October 1, 2009, and March 31, 2010,
in addition to the 51 patients at the McMinnville office that were previously
identified.
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b. Interrogatory No. 5: Gentiva shall answer this question with reference to all
offices or braches at which Deana Murphy had job duties.
c. Interrgatory No. 6: Gentiva shall answer this question with reference to all
“psychiatric patients” or “patients with psychiatric diagnosis” at the McMinnville,
Tullahoma, Nashville, or Lebanon offices/branches between January 1, 2009, and
June 30, 2010.
d. Interrogatory No. 7: Gentiva shall answer this question with reference to all
complaints made by employees, patients, or patient family members at the
McMinnville, Tullahoma, Nashville, or Lebanon offices/branches between
January 1, 2009, and June 30, 2010.
e. Interrogatory No. 8: Gentiva shall answer this question with reference to any
employees
at
the
McMinnville,
Tullahoma,
Nashville,
or
Lebanon
offices/branches between January 1, 2009, and December 31, 2010 including
answering regarding all warnings and discipline in connection with the
certification or recertification of “psychiatric patients” or “patients with
psychiatric diagnosis” for home health services, submissions of claims to the
Government, or the falsification of patient charts.
f. Interrogatory No. 16: Gentiva shall answer this question with reference to any
person who held the listed positions in the Tullahoma office/branch from January
1, 2008, through the date of White’s termination.
g. Interrogatory No. 17: Gentiva shall answer this question with reference to any
employees or groups of employees at the McMinnville, Tullahoma, Nashville, or
Lebanon braches/offices.
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2. Second Set of Interrogatories
a. Interrogatory No. 2: Gentiva shall answer this question with reference to any
“psychiatric patients” or “patients with psychiatric diagnosis” discharged from the
McMinnville office/branch from October 1, 2009, to March 31, 2010.
3. Second Set of Document Requests
a. Request No. 1(b): Gentiva shall respond to this request with reference to any
“psychiatric patients” or “patients with psychiatric diagnosis” who received
services from the Lebanon, Nashville, or Tullahoma branches/offices.
b. Request No. 2: Gentiva shall respond to this request with reference to persons at
the Lebanon, Nashville, or Tullahoma branches/offices.
c. Request No. 6: Gentiva shall respond to this request with reference to complaints
made at the Lebanon, Nashville, or Tullahoma branches/offices.
d. Request No. 7: Gentiva shall respond to this request with reference to documents
from the McMinnville branch/office. If no such documents exist, Gentiva shall
state whether there were any documents relating to the audit that took place in
September or October 2009 and fully explain why no documents relating to this
audit exist or can be found. Gentiva shall also respond to this request with
reference
to
documents
at
the
Tullahoma,
Nashville,
and
Lebanon
branches/offices.
4. First Set of Document Requests
a. Request Nos. 1, 2, 4, 11: To the extent Gentiva claims any protection pursuant to
the attorney-client privilege, the work-product doctrine, or other privilege,
Gentiva must produce a full and complete privilege log as soon as practicable.
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b. Request No. 8: Gentiva shall produce all documents relating to communications
between Gentiva and the U.S. Government relating to: (a) overpayments,
inappropriate payments, or payments returned by Gentiva to the Government for
“psychiatric patients” or “patients with psychiatric diagnosis” who were ineligible
for home health services, (b) from January 1, 2009, to December 31, 2010, (c)
relating to the McMinnville, Tullahoma, Nashville, and Lebanon branches/offices.
c. Request No. 14: Gentiva shall also respond to this request with reference to
documents
at
the
McMinnville,
Tullahoma,
Nashville,
and
Lebanon
branches/offices from January 1, 2009 to December 31, 2010.
5. Additional Rulings
a. Gentiva shall supplement and fully answer or make specific objections to the
discovery. As stated in the hearing, the Court does not consider general and
unsubstantiated objections based upon undue burden to be sufficient, nor does the
Court consider Gentiva’s objection asserting that the Court limited the scope of
discovery through the Memorandum Opinion and Order entered on June 25, 2014,
to be sufficient.
b. The Court finds that it is not appropriate to award fees, costs, or other monetary
sanctions at this time. See Fed. R. Civ. P. 37(a)(5)(C).
c. Gentiva shall supplement its responses on or before September 18, 2015.
d. White’s requests for further discovery that are not addressed herein are reserved at
this time. After Gentiva supplements, in light of this Memorandum and Order,
Plaintiff may renew such specific requests on or before September 25, 2015.
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White shall only renew her requests if they are relevant and appropriate for
consideration under Rule 26 and Rule 37 of the Federal Rules of Civil Procedure.
e. The undersigned GRANTS the request for an extension of the deadline for filing
motions to compel, only with regard to Defendant Gentiva Health Services, Inc.,
until thirty days after ruling on White’s Motion for Leave File Amended and
Restated Complaint [Doc. 70].
f. Finally, the undersigned RECOMMENDS that the District Judge consider
delaying ruling on the Motion for Summary Judgment [Doc. 72] until after
October 2, 2015, to allow White to obtain additional discovery and to allow the
parties to engage in settlement discussions.
IV.
CONCLUSION
Accordingly, the Motion to Compel and to Extend the Deadline for Filing Motions to
Compel [Doc. 77] is GRANTED IN PART and DENIED IN PART, to the extent stated above.
IT IS SO ORDERED.
ENTER:
s/ C. Clifford Shirley, Jr.
United States Magistrate Judge
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