THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK ---------------------------------------------------------------x UNITED STATES ex rel.

DENISE ROMANO, : : Plaintiff, : : v. : : NEW YORK PRESBYTERIAN HOSPITAL, : : Defendant. : ---------------------------------------------------------------x

00 CIV 8792 (LLS)

STATEMENT OF INTEREST OF THE UNITED STATES IN OPPOSITION TO DEFENDANT’S RENEWED MOTION FOR SUMMARY JUDGMENT

MICHAEL J. GARCIA United States Attorney for the Southern District of New York Attorney for the United States of America 86 Chambers Street, 3rd Floor New York, New York 10007

REBECCA C. MARTIN Assistant United States Attorney – Of Counsel –

TABLE OF CONTENTS PRELIMINARY STATEMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 A. Relator’s Claims Are Actionable Under 31 U.S.C. § 3729(a)(2) Because False Records and Statements Were Allegedly Caused to Be Made or Used to Get False Claims Paid and Approved. . . . . . . . . . 3 1. Section 3729(a)(2) Does Not Require That a Claim Actually be Presented to or Paid by the Federal Government. . . . . . . . . . . . . . . . . . 4 Medicaid Claims Are “Paid or Approved” By the Federal Government.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

2.

B.

The Alleged False Claims Were Presented to the United States for Payment and Approval and Are Thus Actionable Under § 3729(a)(1). . . . . . . . . . 7

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

TABLE OF AUTHORITIES Cases: Page

Allison Engine Co. v. U.S. ex rel. Sanders, __ U.S. __, __ S. Ct. __, 2008 WL 2329722 (June 9, 2008). . . . . . . . . . . . . . . . . . . passim United States v. Bornstein, 423 U.S. 303 (1975).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 United States v. Jacobson, 467 F. Supp. 507 (S.D.N.Y. 1979).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 United States ex rel. Atkins v. McInteer, 345 F. Supp. 2d 1302 (N.D. Ala. 2004).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 United States ex rel. Brunson v. Narrows Health & Wellness LLC, 469 F. Supp 2d. 1048 (N.D. Ala. 2006).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 United States v. City of Houston, No. H-03-03713, 2006 WL 2382327 (S.D. Tx. Aug. 16, 2006) aff’d on other grounds, 523 F.3d 333 (5th Cir. 2008).. . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 United States ex rel. Fahner v. Alaska, 591 F. Supp. 794 (N.D. I11. 1984). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 United States v. Jacobson, 467 F. Supp. 507 (S.D.N.Y. 1979).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 United States ex rel. Rafizadeh v. Continental Common, Inc., No. Civ. A. 04-1778, 2006 WL 980676 (E.D. La. Apr. 11, 2006). . . . . . . . . . . . . . . . . . 11 United States v. Rogan, 459 F. Supp. 2d 692, 717 (N.D. Ill. 2006), aff’d , 517 F.3d 449 (7th Cir. 2008). . . . . . . . . 9 United State ex rel. Totten v. Bombadier Corp., 380 F.3d 488 (D.C. Cir. 2004), cert. denied, 544 U.S. 1032 (2005). . . . . . . . . . . . . . . . . . 2 United States ex rel. Tyson v. Amerigroup Illinois, Inc., No. 02 C 6074, 2005 WL 2667207 (N.D. Ill. Oct. 17, 2005). . . . . . . . . . . . . . . . . . . . . . . 9

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Statutes: 28 U.S.C. §§ 517. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 31 U.S.C. § 3729(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 31 U.S.C. § 3729(a)(2).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Regulations: 42 C.F.R. § 430.30(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 42 C.F.R. § 430.30(d)(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 8

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PRELIMINARY STATEMENT The United States of America (the “Government”), by its attorney, Michael J. Garcia, United States Attorney for the Southern District of New York, respectfully submits this memorandum of law in response to New York Presbyterian Hospital’s (NYPH) renewed motion for summary judgment. NYPH now argues that the Supreme Court’s decision in Allison Engine Co. v. U.S. ex rel. Sanders, __ U.S. __, __ S. Ct. __, 2008 WL 2329722 (June 9, 2008), requires this Court to reconsider its April 2, 2008 ruling that the relator’s complaint states a claim under § 3729(a)(2) of the False Claims Act (“FCA”).1 Allison Engine, however, simply confirms that this Court’s ruling under § 3729(a)(2) was correct. Indeed, Allison Engine makes clear that section (a)(2) does not, in fact, contain a requirement that a claim be “presented to” or “paid by” the federal government. In any event, NYPH’s contention that Medicaid claims are not “paid by” the federal government is foreclosed. As this Court correctly observed, “the funds used to pay the Medicaid claims at issue were federal funds for the entire period prior to their disbursement.” Opin. at 5. Because those funds were drawn for the sole purpose of paying or reimbursing the state for actual Medicaid claims, the Medicaid claims at issue unquestionably were “paid by” the federal government. NYPH’s additional argument that § 3729(a)(1) is not satisfied because each Medicaid claim submitted by providers to the state Medicaid agency is not individually submitted to the federal government for payment is equally without merit. Allison Engine did not alter the scope

Because the United States is the real party-in-interest in a qui tam suit under the federal False Claims Act, has an interest in this civil action even though it has declined to intervene and take over the conduct of this litigation as it relates to NYPH. The Attorney General or any officer of the Department of Justice may, by statutory right, attend to the interests of the United States in any suit in federal or state court and may conduct or argue any case in which it is interested. 28 U.S.C. §§ 517 and 518(b).

1

of (a)(1), and NYPH’s argument is contrary to established precedent interpreting that provision. Although this Court declined to rule on the issue of whether the relator can satisfy the “presentment” requirement of § 3729(a)(1), it is clear that false Medicaid claims are “presented” to the United States through the Form CMS-64, which includes all actual Medicaid claims paid by the state during a fiscal quarter and serves as the basis for the federal government to recoup monies or pay additional monies to the state as reimbursement for Medicaid claims actually paid. As already established in this case, the Medicaid program creates a system in which federal funds are used to pay and reimburse Medicaid claims. In light of this system, NYPH’s arguments that Medicaid claims are neither presented nor paid by the federal government should be rejected. ARGUMENT2 NYPH previously argued that the relator’s claims should be dismissed for failure to meet the “presentment” requirement set forth in United State ex rel. Totten v. Bombadier Corp., 380 F.3d 488 (D.C. Cir. 2004), cert. denied, 544 U.S. 1032 (2005). This Court rejected that argument, ruling that § 3729(a)(2) had no such requirement and that the relator stated a claim under that section. Specifically, this Court ruled as follows: Relator alleges that NYPH assisted and caused Columbia to create and use false patient charts and records to get fraudulent claims paid by the Government through the Medicaid program. The Sixth Circuit [in Allison Engine, 471 F.3d 610 (6th Cir. 2006)] states the better rule: that such conduct violates § 3729(a)(2), which punishes any person who "knowingly makes, uses, or causes to be made or used, a false record or statement to get a false or fraudulent claim
2

Rather than repeat the relevant regulatory background applicable to this case, the Government respectfully refers the Court to the Government’s March 20, 2008 Statement of Interest at 2-4. 2

paid or approved by the Government." There is no "presentment" requirement preventing liability from being imposed under § 3729(a)(2). Opinion. at 10 . Since the Court’s ruling, the Supreme Court issued a decision in Allison Engine, 2008 WL 2329722, vacating the Sixth Circuit’s ruling. However, in so doing, the Supreme Court reinforced this Court’s ruling and nothing in that Supreme Court decision requires this Court to revise or revisit its ruling under § 3729(a)(2). A. Relator’s Claims Are Actionable Under 31 U.S.C. § 3729(a)(2) Because False Records and Statements Were Allegedly Caused to Be Made or Used to Get False Claims Paid and Approved Liability attaches under the False Claims Act (“FCA”) if a defendant “causes to be made or used, a false record or statement to get a false or fraudulent claim paid or approved by the Government.” 31 U.S.C. § 3729(a)(2). As this Court previously (and correctly) held, the false claim itself need not be presented to the United States in order for liability to attach. Instead, the plain language of this section simply requires that a false record or statement be made, used or caused to be made or used to “get” the Government to pay or approve the false or fraudulent claim. See Allison Engine, 2008 WL 2329722, at *6. NYPH contends the requirements of Allison Engine are not satisfied because the relator cannot show that the Medicaid claims were “paid by” the federal government. NYPH argues that the federal government is “merely providing funding” that is used by New York state to pay the allegedly false claims. See NYPH Br. at 10-11. NYPH’s argument is both legally and factually flawed.

3

1.

Section 3729(a)(2) Does Not Require That a Claim Actually be Presented to or Paid by the Federal Government

In Allison Engine, the Supreme Court clarified that “Congress did not intend to include a presentment requirement in subsection [3729](a)(2).” 2008 WL 2329722, at *6. In that case, the plaintiffs, employees of subcontractors, alleged fraud on the part of their employers and other subcontractors in the negotiation and execution of subcontracts to build generator sets for the United States Navy. Plaintiffs claimed that the defendants knew that the generator sets were defective, yet submitted invoices for payment to the shipyards, which were the primary contractors with the Navy. The defendants sought to dismiss the case, relying on Totten, 380 F.3d 488, arguing that the invoices were presented to the general contractors rather than to the federal Government. Thus, defendants asserted that, even if the invoices were false, defendants could not have violated the FCA. Allison Engine, 2008 WL 2329722, at **3-4. The Supreme Court reasoned that the plain language of section 3729(a)(2) — which makes actionable the use of a false record or statement to get a false claim paid or approved by the Government — does not require a claim to be presented to the federal Government. Id. at *6. In contrast to the language of section 3729(a)(1), the Court found nothing on the face of section 3729(a)(2) requiring presentment of the underlying claim to the United States. Id. The Court explained: What § 3729(a)(2) demands is not proof that a defendant caused a false record or statement to be presented or submitted to the Government but that the defendant made a false record or statement for the purpose of getting “a false or fraudulent claim paid or approved by the Government.” Therefore, a subcontractor violates § 3729(a)(2) if the subcontractor submits a false statement to the prime contractor intending for the statement to be used by the prime contractor to get the Government to pay its claim. 4

Id. at *6. In short, a defendant is liable under 3729(a)(2) if the defendant made (or caused to be made) a false statement or record “for the purpose” of getting a false claim paid or approved by the government, regardless of whether the government actually paid or approved that claim. Accordingly, NYPH’s argument that the relator has to establish that the Medicaid claims at issue were “paid by” the federal government is contrary to the Supreme Court’s holding in Allison Engine. 2. Medicaid Claims Are “Paid or Approved” By the Federal Government

More fundamentally, however, NYPH’s argument that the Medicaid claims at issue were not “paid by” the federal government is factually erroneous. That argument simply ignores this Court’s previous finding that “the funds used to pay the Medicaid claims at issue were federal funds for the entire period prior to their disbursement,” Opin. at 5, and turns a blind eye to the process by which Medicaid claims are paid. NYPH’s argument also ignores the plain terms of § 3729(c), which clearly encompasses false claims that are paid by entities that are subsequently reimbursed by the federal government. Allison Engine observed that “a ‘claim’ may include a request or demand that is made to ‘a contractor, grantee, or other recipient if the United States Government provides any portion of the money or property which is requested or demanded, or if the Government will reimburse such contractor, grantee, or other recipient for any portion of the money or property which is requested or demanded.’” 2008 WL 2329722, at *6 (citing 31 U.S.C. § 3729(c)). The Medicaid regulations clearly show the process by which Medicaid claims are paid, demonstrating that the federal government “pays” or “reimburses” a “portion of the money . . . which is requested.” 5

As previously detailed,3 the federal government establishes a continuing line of credit certified to the Secretary of the Treasury in favor of the state payee. 42 C.F.R. § 430.30(d)(3) & (4). The federal government authorizes the state payee “to draw Federal funds as needed to pay the Federal share of disbursements.” 42 C.F.R. § 430.30(d)(3) (emphasis added). The state can draw down on those funds only to pay the Medicaid claims of healthcare providers. 42 C.F.R. § 430.30(d). The funds made available to the state thus remain federal funds, in a Federal Reserve account, until they are drawn by the state and used to pay a provider’s claim. The federal government also approves the claims submitted and paid through the Medicaid program. As this Court has already noted, see Opinion at 4-5, when a state presents its Form CMS-64, i.e., the quarterly report of actual expenditures, to the Centers for Medicare and Medicaid Services (“CMS”) after the close of each quarter, the amounts of any fraudulent claims the state paid will be included in those reports. Based on the information in the reports, CMS determines – and approves – whether the provider claims that the state paid with federal funds were appropriate. If CMS determines that certain claims paid by the state were improper, CMS may recoup the amount of the erroneously expended funds by reducing the amount of money provided to the state during the next quarter. Because the Form CMS-64 constitutes the United States’ means for approving and paying the amount of federal funds expended by the state, and because, under the facts alleged by the relator, these reports would overstate the amount of federal funds to which the state was entitled — by the amount fraudulently paid — they are false records or statements caused to be made or used to get false claims paid and approved by the United States, and are thus actionable under section 3729(a)(2).
3

See March 20, 2008 Statement of Interest at 2-4. 6

Allison Engine makes clear that where, as here, the “natural, ordinary and reasonable consequences” of the defendant’s conduct were that false claims were paid, reimbursed and approved by the federal government, the defendant is liable for causing those false claims, and the resulting loss to the United States, under § 3729(a)(2). Id. at *6. 4 B. The Alleged False Claims Were Presented to the United States for Payment and Approval and Are Thus Actionable Under § 3729(a)(1) NYPH fares no better with respect to its arguments concerning section 3729(a)(1). Allison Engine did not alter the law with respect to presentment under § 3729(a)(1). Indeed, the Supreme Court reaffirmed the notion that the presentment requirement can be satisfied where, as here, the claims are “forwarded” by a private entity, or state Medicaid agency, to the federal government. See Allison Engine, 2008 WL 2329722, at *6 n. 1 (definition of “claim” in § 3729(c) makes clear that “there can be liability under §§ 3729(a)(1) . . . [where] the request or demand for money or property that a defendant presents to a federal officer for payment or approval . . . was originally ‘made to’ a contractor, grantee, or other recipient of federal funds and then forwarded to the Government”). Nonetheless, NYPH re-asserts its argument that the relator cannot meet the presentment requirement of § 3729(a)(1) apparently on the meritless ground that state Medicaid agency, to whom the claims are initially submitted, “did not re-submit individual claims to the United States.” NYPH Br. at 8.

NYPH asserts that relator’s claims under § 3729(a)(3), which prohibits conspiring “to defraud the Government by getting a false or fraudulent claim allowed or paid,” fail for the same reasons NYPH put forward under section (a)(2), i.e., that “the federal government itself cannot and did not pay any of the specific claims at issue.” NYPH Br. at 11. For the reasons set forth above, it is clear that the federal government pays and approves Medicaid claims. Accordingly, the relator’s claims arising under § 3729(a)(3) should not be dismissed. 7

4

As the Government previously set forth, see March 20, 2008 Statement of Interest at 611, and summarized above, under the Medicaid program, Medicaid claims are “presented” to the federal government when the state presents the claims to the United States for payment of the federal share. The state receives its payment by drawing federal funds through a commercial bank and the Federal Reserve System against a continuing line of credit certified to the Secretary of the Treasury in favor of the state payee. 42 C.F.R. § 430.30(d)(3) & (4). Wwhile federal funds are available to a state for payment of provider claims at the beginning of each quarter, a state may not draw on these funds except in connection with a Medicaid claim, and then only in an amount equal to the federal portion of the claim. Id. Thus, the claims at issue in this case were presented to the United States when New York State drew down the federal funds available to it for the payment of the submitted claims for Medicaid reimbursement. Even if it could somehow be argued that the alleged false claims were not presented to the United States for payment, the alleged false claims unquestionably were presented to the United States for approval. As discussed supra at pages 6-7, after the close of each quarter, a state must submit to the United States an accounting of the state’s actual recorded Medicaid expenditures for that quarter on a Form CMS-64. Based on its review of this submission, CMS determines whether the provider claims paid by the state with the federal funds were appropriate. If CMS determines that any claims paid by the state were improper, CMS may recoup the amount of the erroneously expended funds by reducing the amount of money provided to the state during the next quarter. Accordingly, CMS’ review of the state’s Form CMS-64 is the means by which

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the United States approves the Medicaid claims paid by the state with federal funds.5 If, as alleged here, a false claim for Medicaid services was paid by the state, the amount of such a fraudulent claim would be included in the Form CMS-64 submitted to the United States. Because these reports are CMS’s means for approving the amount of federal funds spent by the state, and because the reports included the amount of the false claims submitted to the state, those same claims were presented to the United States for approval in violation of section 3729(a)(1). NYPH’s current argument, i.e., that a provider’s individual claims must be re-submitted to the United States before the presentment requirement of (a)(1) can be satisfied is contradicted

Indeed, courts have routinely held that claims that providers submit under the Medicaid program are presented to the United States for payment, and thus are actionable under the FCA. See United States v. Rogan, 459 F. Supp. 2d 692, 717 (N.D. Ill. 2006) (“Medicaid claims submitted to a state are also ‘claims’ to the federal government under the FCA”) (citation omitted), aff’d, 517 F.3d 449 (7th Cir. 2008); United Statesex rel. Tyson v. Amerigroup Illinois, Inc., No. 02 C 6074, 2005 WL 2667207, at *3 (N.D. Ill. Oct. 17, 2005) (“claims submitted to state Medicaid agencies or intermediaries are considered to be claims presented to the federal government, and thus may give rise to liability under the FCA”; “federal government ultimately approved the alleged false Medicaid claims processed and submitted to it by the [state Medicaid agency]. Based on the claims, the federal government then reimbursed the State of Illinois by disbursing funds into an account drawn upon by the State of Illinois. . . . [A]ny false or fraudulent claims submitted to [Medicaid], in turn, are presented to the federal government for reimbursement, thereby resulting in an impairment or misappropriation of federal funds when those claims are actually paid.”); United States ex rel. Fahner v. Alaska, 591 F. Supp. 794, 794 (N.D. I11. 1984) (collecting cases and stating that “many courts have recognized the applicability of the False Claims Act to Medicaid programs”); United Statesv. Jacobson, 467 F. Supp. 507, 508 (S.D.N.Y. 1979) (rejecting argument that FCA did not apply because defendant’s demand for payment was made to New York City Department of Social Services and holding that “the requisite ‘claim upon or against’ the government under the statute includes demand for payment presented to local government agencies which are in turn partially refunded by the United States”). Likewise, the legislative history of the FCA expressly endorses this construction of the FCA, and confirms that false claims submitted to third-party intermediaries who initially make payment under the Medicare and Medicaid programs are covered under the FCA. See S. Rep. No. 99-345, at 21-22, reprinted in 1986 U.S.C.C.A.N. at 5286-87. 9

5

by long-standing Supreme Court authority. In United Statesv. Bornstein, 423 U.S. 303 (1975), the Supreme Court made clear that a subcontractor's precise claim need not be presented to the government for liability under the FCA to attach. In Bornstein, a subcontractor made three false claims causing the prime contractor to submit 35 false claims to the federal government. The Supreme Court held that the subcontractor was only liable for 3 false claims and noted, conversely, that "if . . . [the subcontractor] had committed three separate such causative acts, [it] would be liable for three forfeitures, even if [the prime contractor] had filed only one false claim." Id. at 311. Thus, Bornstein makes clear that the form in which a false claim is presented to the federal government is immaterial – so long as the defendant caused a third party to present a false claim to the United States, the defendant is liable. Neither Allison Engine nor any other authority referenced by NYPH purports to suggest that for liability to attach under the FCA, the precise claims submitted by the defendant must be submitted to the federal government. Rather, it is clear that the manner of presentment – whether the claim is divided to appear in multiple claims to the federal government or consolidated with other claims and not presented individually – is not prescribed by any caselaw or other authority and does not affect the applicability of the FCA. Indeed, § 3729(a)(1) does not require the defendant to present any claims to be liable – it requires only that the defendant "cause" claims to be presented to the United States. Thus, so long NYPH is alleged to have caused the state Medicaid agency to present false claims to the United States – which NYPH does not deny – it is irrelevant whether or how many claims NYPH may have submitted initially to the state Medicaid agency. Finally, in support of its meritless argument that the “presentment” requirement of section 10

(a)(1) was not met, NYPH relies on inapposite caselaw already presented to this Court in its prior submission. See NYPH Br. at 9 (citing United States v. City of Houston, No. H-03-03713, 2006 WL 2382327 (S.D. Tx. Aug. 16, 2006), aff’d on other grounds, 523 F.3d 333 (5th Cir. 2008); United States ex rel. Rafizadeh v. Continental Common, Inc., No. Civ. A. 04-1778, 2006 WL 980676 (E.D. La. Apr. 11, 2006), appeal pending; United States ex rel. Brunson v. Narrows Health & Wellness LLC, 469 F. Supp 2d. 1048, 1053-54 (N.D. Ala. 2006); and United States ex rel. Atkins v. McInteer, 345 F. Supp. 2d 1302 (N.D. Ala. 2004), aff’d, 470 F.3d 1350 (11th Cir 2006). The first of these cases, City of Houston, does not address the Medicaid program and, notably, was affirmed by the Fifth Circuit on alternative grounds other than the lack of presentment. The remaining cases relied upon by NYPH also fail to support its argument that the presentment requirement cannot be met where the defendant did not directly present the claim to the federal government. Indeed, Brunson, which dismissed section (a)(1) claims under Rule 9(b) for failure to plead with particularity how the claims were forwarded to the federal government, acknowledges that “[l]iability under the False Claim Act may . . . attach if a fraudulent claim is presented to a non-government intermediary, and the intermediary subsequently presents the claim to an officer or employee of the United States government.” 469 F. Supp. 2d at 1053. NYPH’s reliance on Atkins is similarly misplaced. NYPH fails to cite to the Eleventh Circuit’s decision in this case, see NYPH Br. at 9, which makes clear that, at best, Atkins stands for the proposition that to comply with Rule 9(b), a FCA complaint must allege the actual submission of a claim rather than a summary conclusion that such submission occurred. See Atkins, 470 F.3d at 1359 (relator failed to alleged that “defendants actually submitted 11

reimbursement claims for the services he describes”).6 Finally, Rafizadeh also fails to assist NYPH. In that case false records that were submitted to a state agency, which was allegedly “heavily subsidized” by the federal government. See 2006 WL 980676, at *2. That state agency incorporated the false claims into its estimates for a proposed budget, which was forwarded to the federal government. Id. This is in clear contrast to the case at bar where federal payments for Medicaid claims are based on claims of actual expenditures. CONCLUSION For the foregoing reasons, the United States respectfully urges this Court to deny NYPH’s motion for summary judgment. Dated: New York, New York June 25, 2008 MICHAEL J. GARCIA United States Attorney for the Southern District of New York Attorney for the United States of America

By:

/s/ REBECCA C. MARTIN Assistant United States Attorney 86 Chambers Street, 3rd Floor New York, New York 10007 Tel.: (212) 637-2714 rebecca.martin@usdoj.gov

Indeed, the Eleventh Circuit reversed the district court’s ruling that there was no subject matter jurisdiction over claims arising under section (a)(1) where relator failed to allege that defendants had directly presented any false claim to a federal officer or employee . 47 F.3d at 1356-57. 12

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