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UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION UNITED STATES OF AMERICA and THE STATE OF TEXAS ex rel' DOUG MOORE, et al., Plaintiffs, v. CITY OF DALLAS, TEXAS, et al., Defendants.

Civil Action No. 3:09-CV-1452-O-BH

CITY OF DALLAS MOTION FOR SUMMARY JUDGMENT

Respectfully submitted, THOMAS P. PERKINS, JR. DALLAS CITY ATTORNEY s/ Amy I. Messer Amy I. Messer Assistant City Attorney Texas State Bar No. 00790705 amy.messer@dallascityhall.com Janice S. Moss Assistant City Attorney Texas State Bar No. 14586050 janice.moss@dallascityhall.com 1500 Marilla Street, 7CN Dallas, Texas 75201 214-670-3500 214-670-0622 Fax Attorneys for the City of Dallas

City of Dallas Response Motion To Relators Motion For Summary Judgment Civil Action No. 3:09-CV-1452-O-BH

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TO THE HONORABLE U.S. MAGISTRATE JUDGE IRMA CARRILLO RAMIREZ: Defendant, City of Dallas, (the City or Defendant) files this motion for summary judgment, pursuant to Federal Rules of Civil Procedure 56 and Northern District of Texas Local Rules 56.1 56.6. The City is entitled to judgment as a matter of law on Plaintiff Douglas Moores (hereinafter Moore or Plaintiff or relator) claims of retaliation under the False Claims Act (FCA), the Texas Medicaid Fraud Prevention Act (TMFPA) and the Texas Whistleblower Act (TWA) because the pleadings, depositions and discovery responses on file in this case, together with the evidence included in the accompanying Appendix, establish that no genuine issues of material fact exist for trial. I. SUMMARY OF THE CITYS ARGUMENT

The only issues remaining in this matter involving the City and Moore are his retaliation claims of retaliation under the FCA, the TMFPA and TWA. Moore alleges the City retaliated against him by terminating his employment immediately after receiving notice that he had notified the government, including the United States Attorney Generals office of the Citys fraudulent conduct in defrauding the Medicare program and Texas Medicaid program, in furtherance of a federal False Claims Act action. To show a prima facie case of retaliation under the FCA and TMFPA, the plaintiff must prove that: (1) the employee engaged in protected activity, (2) the employee suffered adverse action, and (3) there is an inference of causation between the protected activity and the adverse action. Moores evidence does not clearly demonstrate that the undisputed facts conclusively establish each essential element of his claim as required. If Moore establishes a prima facie case, under the traditional McDonnell Douglas approach, the burden then shifts to the City to rebut the presumption by producing sufficient evidence to raise a genuine issue of fact as to whether the employer took retaliatory acts against the employee. Even if Moore does establish a prima facie
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case of FCA or TMFPA retaliation, he cannot overcome the Citys legitimate, nonretaliatory reason for the employment decision. Further, the City asserts that the Court does not and would not have jurisdiction of the TMFPA claim because Moore has failed to assert this cause of action within the required time period. The Texas Whistle Blower Act provides, a state or local governmental entity may not suspend or terminate the employment of, or take other adverse personnel action against, a public employee who in good faith reports a violation of law by the employing governmental entity or another public employee to an appropriate law enforcement authority. Moore cannot

conclusively establish each essential element of this claim. Moore must establish a but for causal connection between the reported violation of law and the Citys actions. Further, the City asserts that the Court does not and would not have jurisdiction of the TWA claim because Moore has failed to assert this cause of action within the required time period. The City moves for summary judgment because Moore cannot demonstrate that the undisputed facts will conclusively establish each element of his claims and Moore has failed to assert his TWA and TMFPA causes of action within the required time period. Further, that the Court does not and would not have jurisdiction of these causes of action because Moore has failed to assert this cause of action within the required time period. II. FACTUAL GROUNDS UPON WHICH THE CITY RELIES

The City provides the following grounds upon which it relies in this response. On October 1, 2008 a written offer of employment was extended to Moore. Moore was working for a company which was completing a federal contract and City Auditor Craig Kinton (Kinton) agreed to allow his start date with the City of Dallas Auditors Office to be delayed until February 2009. (DAPPX at 296, Moore Depo. at 105:1-9; DAPPX at 176, Kinton Declar. 4.)

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Moore was hired as an Assistant City Auditor III and was assigned to work in the Fraud Waste and Abuse section of the City Auditors Office. Moores resume reflected he has a Bachelor of Arts in Criminal Justice from Sam Houston State University awarded in 1993. Moores resume indicates he became a Certified Fraud Examiner in 2006. Moores work history included a supervisory position for TriCenturion, a Medicare and Medicaid contactor from 2006 until he was employed in the City Auditors Office, also employment with two police departments and he owned his own business. (DAPPX at 176, Kinton Declar. 5.) In October of 2008, the Audit Plan for Fiscal Year 2009 was approved by the Dallas City Council. One of the objectives identified by the 2009 Audit Plan was to evaluate controls over accounts receivable and effectiveness of collections processes. Based on information regarding accounts receivable, Dallas Fire-Rescue (DFR) accounts were selected for audit. (DAPPX at 176-177, Kinton Declar. 6.) Due to his knowledge regarding the topic, Moore was assigned to the Emergency Ambulance Fees audit team. On March 26, 2009, a focus meeting was held to discuss the audit objectives. Moore brought up a concern about the City being susceptible to an overpayment audit based on the City billing Medicare and Medicaid for all ambulance transports at the higher Advanced Life Support (ALS) level rather than billing some at the ALS level and some at the Basic Life Support (BLS) level. This issue and several others were identified as Quick Hits and Kinton requested they become priority. (DAPPX at 278, Moore Depo. at 32:18-21; DAPPX at 278, Moore Depo at 33:1-14; DAPPX at 177, Kinton Declar. 7.) Moores involvement in the Emergency Ambulance Fees Audit was to determine if the City was billing ambulance transports properly. Moore participated in the April 7, 2009

Entrance Conference which was held with the Emergency Ambulance Fees Audit team, DFR,

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the Citys Office of Financial Services and Special Collections. Moore remained assigned to the Emergency Ambulance Fees Audit team for the duration of his employment. (DAPPX at 279, Moore Depo. at 37:3-16; DAPPX at 177, Kinton Declar. 8.) Shortly after the April 7, 2009 meeting, Moore began contacting attorneys and met with his current attorney in May of 2009 in regarding his allegations of the Citys improper billing ambulance transport claims. (DAPPX at 277, Moore Depo. at 26:9-25; DAPPX at 307, Moore Depo. at 149:10-21.) The Emergency Ambulance Fees Audit team wanted to collect data regarding ALS/BLS so they could take a sample of cases to evaluate the documentation that DFR was inputting when they were called out and to see if they were actually meeting ALS criteria. Assistant City Auditor Gary Lewis (Lewis), Moores supervisor, believed the Emergency Ambulance Fees Audit team needed to sample cases with documentation so they could evaluate those sample documentation against the Medicare criteria. (DAPPX at 265, Lewis Depo. at 111:21-112:1.) Moore determined that the DFR ALS/BLS sample had 100% error. (DAPPX at 285, Moore Depo. at 58:17-22.) Lewis expressed to Kinton that he was not comfortable with Moores findings of a 100% error rate from the ambulance billing samples tested or Moores quantification of the potential monetary exposure the City might face. (DAPPX at 266, Lewis Depo. at 146:15-147:2; DAPPX at 177, Kinton Declar. 9.) Kinton also learned that Theresa Hampden, Assistant City Auditor and Quality Control Manager on this audit, was concerned about Moores conclusion of a 100% error rate. (DAPPX at 177, Kinton Declar. 9.) Moore concluded that based on the sample error rate the City may be liable an overpayment of $26,990,207.36. (DAPPX at 283, Moore Depo. at 50:15-51:6; DAPPX at 340-345, Moore Depo. exhibit 5.) Lewis testified that in his 40 years as an auditor he had never seen a 100%

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error rate and he was concerned because Moore had only been with the office six or seven months. (DAPPX at 267, Lewis Depo. at 154:3-19.) Sometime between August and November 2009, Kinton learned that Lewis was considering having the audit team draft a confidential memo addressed to the Dallas City Council, conveying the concern that the City may be susceptible to Medicare and Medicaid overpayments and subject to an audit of the ALS/BLS billing issues. Kinton learned that Lewis had contemplated the issuance of a confidential memo regarding the ALS/BLS issue and Kinton informed Lewis that, in his opinion, this issue was not appropriate for a confidential memo because there was nothing pursuant to the Texas Open Records Act which would allow this information to be confidential. (DAPPX at 258, Kinton Depo. at 65:3-12; DAPPX at 177, Kinton Declar. 9.) From April 2009 until November 2009, the Emergency Ambulance Fees audit team was working on a draft of the Emergency Ambulance Fee audit report which included information that the City may be susceptible to Medicare overpayment. (DAPPX at 282-283, Moore Depo. at 49:16-51:6; DAPPX at 268, Lewis Depo. p. 176:17-19; DAPPX at 177, Kinton Declar. 9.) Around November 24, 2009, Kinton was informed by City Attorney Tom Perkins that Moore had filed a False Claims Act lawsuit alleging that the City (DFR) was fraudulently billing Medicare and Medicaid by upcoding and billing all ambulance transports at the ALS level. (DAPPX at 177, Kinton Declar. 10.) Also, Kinton learned that Moore had filed this lawsuit under seal on August 5, 2009, while he remained assigned to the Emergency Ambulance Fee audit. (DPPX at 177, Kinton Declar. 10.) Moore testified in April 2009 he was aware there was a financial reward involved in being a relator in a False Claims Act case. (DAPPX at 292, Moore Depo. at 86:15-24.) Moore

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was aware that when he worked for TriCenturion as a government employee he was not entitled to a financial reward for reporting a False Claim. (DAPPPX at 292, Moore Depo. at 87:25-88:8.) Moore also testified that if the False Claims Act reward were 10% of 26 million that was a significant amount of money. (DAPPX at 293, Moore Depo. at 90:5-21.) Twenty six million dollars was the amount which Moore estimated that the City had received in Medicaid and Medicare overpayment. (DAPPX at 283, Moore Depo. at 50:15-51:6; DAPPX 337-350, Moore Depo. exhibit 5.) At the beginning of his employment with the City Auditors Office on February 27, 2009, Moore signed an Office of the City Auditor annual checklist to ensure independence against personal and external impairments. Further, Moore signed an Office of the City Auditor annual checklist to ensure independence against personal and external impairments on October 5, 2009, two months after he filed the above referenced lawsuit using information obtained in his job responsibilities from the Emergency Ambulance Fee audit. (DAPPX at 303, Moore Depo. at 133:2-12; DAPPX at 177-178, Kinton Declar. 11; DAPPX at 187-189, Kinton exhibit 3.) This internal document communicated to each auditor the importance of maintaining independence and included examples of personal and external impairments that auditors were required to read carefully, mark yes or no and add comments if applicable. These documents also included an acknowledgement that the auditor had completed the check list, had neither personal nor external impairments that would affect assignments, would reevaluate his or her independence if assignments or circumstances changed, would promptly notify the assignment Audit Manager and complete the attached addendum if his or her independence was affected. (DAPPX at 177-178, Kinton Declar. 11; DAPPX at 187-189, Kinton exhibit 3.) Additionally, on June 16, 2009, Moore signed off on the Independence Statement in the

City of Dallas Response Motion To Relators Motion For Summary Judgment Civil Action No. 3:09-CV-1452-O-BH

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Emergency Ambulance Billing audit electronic work papers stating I have no known independence impairment as of the date of this sign-off. However, I will promptly notify the assignment Audit Manager and complete the required Addendum if needed. (DAPPX at 303304, Moore Depo. at 133:2-135:7; DAPPX at 177-178, Kinton Declar. 11.) Kinton terminated Moores employment with the City on December 2, 2009 because Moore violated his fiduciary responsibilities to the City and the City Auditors Office. Moore violated multiple Generally Accepted Government Auditing Standards (GAGAS) and numerous City Auditors Office Offices policies and procedures. (DAPPX at 178-179, Kinton Declar. 12, 13, 14.) III. LEGAL GROUNDS AND APPENDIX

The Citys brief in support of this motion set outs the Citys legal grounds upon which it relies. Further, the Citys brief is accompanied by an Appendix in support of its assertions and motion, which is contained in the contemporaneously filed Appendix. IV. PRAYER Plaintiff is not entitled to relief on any of his claims because he cannot meet the burden of proof on his retaliation claims and to timely file claims. Plaintiff is not entitled to any of the relief requested including attorneys fees. Therefore, summary judgment should be granted to the City on all of Plaintiffs claims. WHEREFORE, PREMISES CONSIDERED, the City respectfully prays that its motion for summary judgment be granted and this action be dismissed with prejudice; that Plaintiff take nothing by this suit and that the relief requested therein be denied; that the City recover from Plaintiff all reasonable attorneys fees and all costs of suit; and for such other and further relief, general or specific, at law or in equity, to which it is justly entitled.

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Respectfully submitted, THOMAS P. PERKINS, JR. DALLAS CITY ATTORNEY s/ Amy I. Messer Amy I. Messer Assistant City Attorney Texas State Bar No. 00790705 amy.messer@dallascityhall.com Janice S. Moss Assistant City Attorney Texas State Bar No. 14586050 janice.moss@dallascityhall.com 1500 Marilla Street, 7CN Dallas, Texas 75201 214-670-3500 214-670-0622 Fax Attorneys for the City of Dallas

CERTIFICATE OF SERVICE I hereby certify that on July 29, 2011, I electronically filed the foregoing document with the clerk of the court of the U.S. District Court, Northern District of Texas, using the electronic case filing system of the court. The electronic filing system sent a Notice of Electronic Filing to the following attorneys of record who have consented in writing to accept this notice as service of this document by electronic means: Kyla G. Cole Charles S. Siegel Loren Jacobson Waters & Kraus LLP Counsel for Plaintiff David L. Haron Maro E. Bush Frank Haron Weiner Counsel for Plaintiff D. Paul Dalton Cowles & Thompson PC Counsel for Co-Defendant Southwest General Services

City of Dallas Response Motion To Relators Motion For Summary Judgment Civil Action No. 3:09-CV-1452-O-BH

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William McMurrey Joshua Bock Jacqueline A. Garza-Rothrock Patrick Hanchey Bracewell & Giuliani Counsel for Co-Defendant Southwest General Services

s/ Amy I. Messer

City of Dallas Response Motion To Relators Motion For Summary Judgment Civil Action No. 3:09-CV-1452-O-BH

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