THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF NEW YORK

---------------------------------------------------------------x
UNITED STATES ex rel. DENISE ROMANO, :
:
Plaintiff, :
:
v. : 00 CIV 8792 (LLS)
:
NEW YORK PRESBYTERIAN HOSPITAL, :
:
Defendant. :
---------------------------------------------------------------x

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

2. Medicaid Claims Are “Paid or Approved” By the

Federal Government.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

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

ii
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

iii
 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

1
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).
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.

4
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
 As the Government previously set forth, see March 20, 2008 Statement of Interest at 6-

11, 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

8
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

5
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
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

6
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