Montcrieff et al v. Peripheral Vascular Associates, P.A.

Filing 151

ORDER GRANTING IN PART AND DENYING IN PART 140 Motion for Reconsideration. Having reconsidered its order on the parties cross-motions for summary judgment, Relators motion for summary judgment is hereby DENIED on the issue of materiality with respect to the allegedly false claims under the WrongProvider tranche. All other rulings resolving the parties cross-motions for summary judgment remain in effect. Signed by Judge Xavier Rodriguez. (rg)

Case 5:17-cv-00317-XR Document 151 Filed 01/07/22 Page 1 of 8

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
UNITED STATES OF AMERICA, EX.
REL.; TIFFANY MONTCRIEFF,
RELATOR; ROBERTA A. MARTINEZ,
RELATOR; AND ALICIA BURNETT,
RELATOR,
Plaintiffs

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v.
PERIPHERAL VASCULAR
ASSOCIATES, P.A.,
Defendant.

SA-17-CV-00317-XR

ORDER
On this date, the Court considered Defendant’s motion for reconsideration (ECF No. 140),
Relators’ response (ECF No. 141), and Defendant’s reply (ECF No. 142). For the reasons
discussed more fully below, the Court GRANTS IN PART and DENIES IN PART the motion.
BACKGROUND
This False Claims Act case arises out of the alleged fraudulent billing practices of
Defendant Peripheral Vascular Associates, P.A. (“PVA”), a healthcare provider. Relators filed
their initial complaint under seal in April 2017. ECF No. 1. They filed their first amended
complaint, also under seal, in December 2017. ECF No. 8. Relators brought this action under the
authority granted by 31 U.S.C. § 3730(b), which authorizes private persons to sue for violations
of the False Claims Act, 31 U.S.C. §§3729 et seq., on behalf of the United States Government.
Relators allege that PVA falsely billed Medicare for services it did not perform. See ECF No. 8.
On August 21, 2020, the parties filed cross-motions for summary judgment. ECF Nos. 94,
95. In their motion, Relators identified three distinct tranches of false claims that PVA allegedly
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made, including, as is relevant here, a Wrong Provider tranche. See ECF No. 95, at 30–31. Relators
describe false claims under the Wrong Provider tranche as those claims that PVA submitted under
the wrong “rendering” physician’s name. Id. at 31. Relators allege that PVA submitted 1,690
claims containing the wrong physician’s signature. Id.
On December 14, 2020, the Court issued an order resolving the parties’ cross-motions for
summary judgment. See ECF No. 124. Therein, the Court denied PVA’s motion for summary
judgment and granted in part and denied in part Relators’ motion for summary judgment. See id.
Significantly for purposes of the instant motion, the Court found “that there is no genuine issue of
material fact as to the materiality of claims that encompass the Wrong Provider Tranche.” Id. at
47. The Court explained:
Strong evidence shows that the Government probably would not
have reimbursed PVA for claims which listed the name of a
physician who did not render the services described therein had it
known such claims had been submitted. As Relators point out, the
Medicare Program Integrity Manual’s list of “Examples of Medicare
Fraud” include “Misrepresenting . . . the identity of the beneficiary
or the individual who furnished the services.” ECF No. 95 at 32–
33 (citing ECF No. 95 Ex. 205 § 4.2.1) (emphasis added). That this
particular conduct is listed as an example of Medicare fraud is
telling. CMS uses less forceful language in its CMS Manual when it
provides a list of “[e]xamples of improper claims.” See ECF 95 Ex.
204 at 11 (emphasis added). Put simply, identifying conduct as
“fraud” as opposed to “improper” implies a greater level of
culpability associated with that conduct. This language from CMS,
viewed in conjunction with American courts’ understanding that the
submission of claims under the wrong physician’s name generally
leads to FCA liability, see Mackby, 261 F.3d at 826, leads the Court
to conclude that the Government would not have paid these claims
if it knew of their falsity.
Id. at 47–48. As a result, the Court granted summary judgment in favor of Relators on the issue of
materiality only as to the claims that encompass the Wrong Provider Tranche. Id. at 48.

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On September 9, 2021, PVA filed the instant motion for reconsideration pursuant to FED.
R. CIV. P. 54(b). ECF No. 140. On September 23, 2021, Relators filed a response. ECF No. 141.
Thereafter, on September 30, 2021, PVA filed a reply. ECF No. 142.
DISCUSSION
I.

Legal Standard
The Federal Rules of Civil Procedure do not recognize a “motion for reconsideration” by

that name. However, the Federal Rules of Civil Procedure do permit the Court to reconsider an
interlocutory order. Federal Rule of Civil Procedure 54(b) provides that “any order or other
decision, however designated, that adjudicates fewer than all the claims or the rights and liabilities
of fewer than all the parties does not end the action as to any of the claims or parties and may be
revised at any time before the entry of a judgment adjudicating all the claims and all the parties'
rights and liabilities.” “Under Rule 54(b), ‘the trial court is free to reconsider and reverse its
decision for any reason it deems sufficient, even in the absence of new evidence or an intervening
change in or clarification of the substantive law.’” Austin v. Kroger Texas, L.P., 864 F.3d 326, 336
(5th Cir. 2017) (quoting Lavespere v. Niagara Mach. & Tool Works, Inc., 910 F.2d 167, 185 (5th
Cir. 1990)). Rule 54(b) “reflect[s] the ‘inherent power of the rendering district court to afford such
relief from interlocutory judgments as justice requires.’” Austin, 864 F.3d at 336 (quoting Covell
v. Jewell, 802 F.3d 12, 25–26 (D.C. Cir. 2015)).
II.

Analysis
PVA argues that the Court committed reversible error in finding that claims with an

incorrect provider name, as alleged in this case, are materially false under the False Claims Act
(“FCA”). ECF No. 140, at 9. PVA submits that “Relators made baseless allegations without
providing actual medical record documentation to show that the physician [identified in the

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submitted claims] was not the physician that read and interpreted a patient’s vascular ultrasound.”
Id. at 6. Even if Relators’ allegations are true, PVA contends, any allegedly false claims under the
Wrong Provider tranche would not be material because “[e]very single physician is within the
PVA group practice and therefore each claim was correctly submitted to Medicare and other
federal health care programs using the correct group provider number.” Id. at 7. According to PVA,
“While the name of a specific physician may be different, given the dynamics of a large physician
practice, geographical disparities, and on-call schedules, the uncontroverted fact remains that PVA
alone performed the services, submitted the Medicare claims, and identified the right group
practice’s NPI, name, and address to Medicare.” Id. Thus, PVA argues, the allegedly false claims
under the Wrong Provider tranche “fail to meet the materiality standard.” Id. at 5. PVA therefore
asks the Court to reconsider its order granting Relators’ motion for summary judgment on the issue
of materiality with respect to the allegedly false claims under the Wrong Provider tranche; deny
Relators’ motion for summary judgment on this issue; and grant summary judgment in its favor
on these allegedly false claims. Id. at 9.
For a false claim to violate the FCA, it must be material. Universal Health Servs., Inc. v.
United States (“Escobar”), 579 U.S. 176, 191 (2016). The FCA defines “material” as “having a
natural tendency to influence, or be capable of influencing, the payment or receipt of money or
property.” 31 U.S.C. § 3729(b)(4). In the Fifth Circuit, the FCA requires “proof only that the
defendant’s false statements could have influenced the government’s pay decision or had the
potential to influence the government’s decision, not that the false statements actually did so.” U.S.
ex rel. Harman v. Trinity Indus. Inc., 872 F.3d 645, 661 (5th Cir. 2017). “[T]he False Claims Act
is not a means of imposing treble damages and other penalties for insignificant regulatory or
contractual violations.” Escobar, 579 U.S. at 196.

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The Court finds that justice requires reconsideration of its order granting summary
judgment in favor of Relators on the issue of materiality with respect to the allegedly false claims
under the Wrong Provider tranche. 1 To be sure, American courts have understood “that the
submission of claims under the wrong physician’s name generally leads to FCA liability[.]” ECF
No. 123, at 48 (emphasis added); see United States v. Mackby, 261 F.3d 821, 826 (9th Cir. 2001)
(citing Peterson v. Weinberger, 805 F.2d 45, 52 (5th Cir. 1975)). But not always. See U.S. ex rel.
Steury v. Cardinal Health, Inc., 625 F.3d 262, 268 (5th Cir. 2010) (quoting U.S. ex rel. Thompson
v. Columbia/HCA Healthcare Corp., 125 F.3d 899, 902 (5th Cir. 1997)) (“The FCA is not a general
‘enforcement device’ for federal statutes, regulations, and contracts.’”); see also U.S. ex rel.
Lamers v. City of Green Bay, 168 F.3d 1013, 1020 (7th Cir. 1999) (“But the FCA is not an
appropriate vehicle for policing technical compliance with administrative regulations.”). Indeed,
the FCA “does not adopt such an extraordinarily expansive view of liability.” Escobar, 579 U.S.
at 196. The Court is therefore persuaded that materiality is not established as a matter of law as to
the allegedly false claims under the Wrong Provider tranche merely because the Medicare Program
Integrity Manual’s list of examples of Medicare fraud include misrepresenting “the identity of the
beneficiary or the individual who furnished the services.” ECF No. 95-14, at 542.
Nevertheless, reconsideration does not, ipso facto, establish that summary judgment in
favor of the party requesting reconsideration is warranted. It is well established that the Court shall
grant summary judgment if the movant shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law. FED. R. CIV. P. 56. The moving

1
Relators argue that the motion must be denied because “PVA is merely ‘rehashing’ the materiality argument
it made in opposition to Relators’ Motion for Summary Judgment.” ECF No. 141, at 4. “Indeed,” Relators submit,
“PVA has not shown a ‘subsequent evolution in the case,’ or any other factor that would warrant reconsideration.” Id.
The Court disagrees. And, in any event, the Court is within its discretion to reconsider its decision even in the absence
of new evidence or an intervening change in or clarification of the substantive law. See Austin, 864 F.3d at 336.

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party bears the initial burden of “informing the Court of the basis of its motion” and identifying
those portions of the record that “it believes demonstrate the absence of a genuine issue of material
fact.” Adams v. Travelers Indem. Co., 465 F.3d 156, 163 (5th Cir. 2006). To establish that there is
no genuine issue as to any material fact, the movant must either submit evidence that negates the
existence of some material element of the nonmovants’ claims or defenses, or, if the crucial issue
is one for which the nonmovants will bear the burden of proof at trial, point out that the evidence
in the record is insufficient to support an essential element of the nonmovants’ claims or defenses.
Little v. Liquid Air Corp., 952 F.2d 841, 847 (5th Cir. 1992), on reh’g en banc, 37 F.3d 1069 (5th
Cir. 1994). Once the moving party meets this burden, the nonmoving parties must “go beyond the
pleadings” and designate specific facts in the record showing that there is a genuine issue for trial.
Access Mediquip, L.L.C. v. United Healthcare Ins. Co., 662 F.3d 376, 378 (5th Cir. 2011).
To conclude that there are no genuine issues of material fact, the Court must be satisfied
that no reasonable trier of fact could have found for the nonmovants, or, in other words, that the
evidence favoring the nonmovants is insufficient to enable a reasonable jury to return a verdict for
the nonmovants. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In making this
determination, the Court should review all the evidence in the record, giving credence to the
evidence favoring the nonmovants as well as the “evidence supporting the moving part[ies] that is
uncontradicted and unimpeached, at least to the extent that evidence comes from disinterested
witnesses.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 151 (2000). The Court “may
not make credibility determinations or weigh the evidence” in ruling on a motion for summary
judgment, id. at 150, and must review all facts in the light most favorable to the nonmoving parties,
First Colony Life Ins. Co. v. Sanford, 555 F.3d 177, 181 (5th Cir. 2009).

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Here, Relators have presented sufficient evidence showing that there is a genuine issue for
trial on the issue of whether claims with an incorrect provider’s name, as alleged in this case, are
materially false under the FCA. For instance, Relators rely on the Medicare Program Integrity
Manual’s list of examples of Medicare fraud, which explicitly states that misrepresenting “the
identity of the beneficiary or the individual who furnished the services” constitutes fraud. ECF No.
95, at 32–33 (citing ECF No. 95-14, at 542). Relators also point to an internal 2013 e-mail thread,
indicating that PVA knew the importance of billing under the correct physician’s identifier. See
ECF No. 94-9, at 348. Relators also cite to internal documents from 2017, wherein PVA’s Vascular
Lab Committee identified “[e]nsure billed to appropriate physician” as a purported motive for
“[t]ransition to billing after studies are read[.]” ECF No. 95-5, at 24.
In the Fifth Circuit, the FCA requires “proof only that the defendant’s false statements
could have influenced the government’s pay decision or had the potential to influence the
government’s decision, not that the false statements actually did so.” Harman, 872 F.3d at 661. 2
Giving credence to the evidence Relators have presented, the Court finds that a reasonable trier of
fact could find that PVA’s submission of claims under the wrong physician’s name, as alleged in
this case, could have influenced the Government’s pay decision or had the potential to influence

PVA relies heavily on United States ex rel. Alejandro v. Philadelphia Vision Ctr., No. CV 20-2027, 2021
WL 3051908, at *3 (E.D. Pa. July 20, 2021). See ECF No. 140, at 2, 4–5, 7–9. In Alejandro, the relator identified “the
submission of a claim for physician services under the NPI number of a doctor who did not perform these services as
a ‘misleading half-truth[.]’” 2021 WL 3051908, at 3. The court found that the relator’s complaint failed “to allege
facts which could plausibly show that the relevant claims would not have been paid if the correct NPI number, as
opposed to that of a different optometrist, had been used instead.” Id. The court further found that the relator had “not
alleged the Government paid for any services that were not provided or for services provided by an unlicensed
professional.” Id. “These omissions[,]” the court held, “preclude [the relator] from sufficiently alleging materiality.”
Id. As Relators in this case correctly note, the Alejandro court assessed the materiality of the allegedly false claims
under a distinct legal standard. See ECF No. 141, at 5. Indeed, the Alejandro court determined that “[t]he claims’
alleged falsity ‘was not material’ ‘because the government would have paid [them] regardless of whose NPI was on
the form.’” 2021 WL 3051908, at *3 (citing United States ex rel. Spay v. CVS Caremark Corp., 875 F.3d 746, 765
(3d Cir. 2017)) (emphasis added). The Fifth Circuit, however, requires “proof only that the defendant’s false
statements could have influenced the government’s pay decision or had the potential to influence the government’s
decision, not that the false statements actually did so.” Harman, 872 F.3d at 661 (emphasis added). The Court is bound
by Fifth Circuit precedent; therefore, PVA’s reliance on Alejandro is both misplaced and unavailing.
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the Government’s decision. In other words, a reasonable trier of fact could find that the claims
under the Wrong Provider tranche, as Relators allege, are materially false. 3
CONCLUSION
Accordingly, the Court hereby GRANTS IN PART and DENIES IN PART Defendant
PVA’s motion for reconsideration (ECF No. 140). Having reconsidered its order on the parties’
cross-motions for summary judgment, Relators’ motion for summary judgment is hereby
DENIED on the issue of materiality with respect to the allegedly false claims under the Wrong
Provider tranche. All other rulings resolving the parties’ cross-motions for summary judgment
remain in effect.
It is so ORDERED.
SIGNED this January 7, 2022.

XAVIER RODRIGUEZ
UNITED STATES DISTRICT JUDGE

3
PVA’s contention that Relators made baseless allegations without providing actual medical record
documentation to show that the physician identified in the submitted claims was not the physician that read and
interpreted a patient’s vascular ultrasound, see ECF No. 140, at 6, goes to the weight of the evidence Relators have
presented. “In determining whether there is a dispute regarding a material fact, [the Court] consider[s] all evidence in
the record but do[es] not make credibility determinations or weigh the evidence.” Man Roland, Inc. v. Kreitz Motor
Exp., Inc., 438 F.3d 476, 478 (5th Cir. 2006) (citing Reeves, 530 U.S. at 150).

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