A hearing on these matters was conducted on November 7, 2014.[1]

By her Motion, Relator generally complains that Defendants continue to improperly seek to confine their discovery obligations to the documents produced to the Department of Justice and documents related to the two skilled nursing facilities where Relator worked (Marshall and Governor's Creek) and a limited number of other facilities, for a narrow period of time inconsistent with her allegations. She also urges that production of emails and communications is far to slow and at a pace incompatible with the Court's scheduling order. She contends that production should be made from all of the Defendants' skilled nursing facilities in Florida for the period from June 2005 to the present. Because Defendants' process of reviewing and producing relevant emails and communications is far too slow to meet the Court's deadlines, Relator urges that they be compelled to accept a more efficient search protocol or to produce all emails for her review subject to a confidentiality agreement and “clawback” provision. As to specifics, Relator cites Defendants' responses to Request Nos. 5-6, 9 and 10.[2] (Doc. 143).

In response and by their Motion for Protective Order (Doc. 145), Defendants seek an Order limiting the temporal scope of discovery to the period from March 10, 2010, through January 25, 2012; facilities to those where Relator worked in 2011 (Marshall and Governor's Creek facilities); and residents to P.B., V.D., J.S., E.H., and W.S. as identified in Relator's complaint. Defendants also seek an Order stating they are not required to preserve material prior to March 10, 2010, and beyond January 25, 2012. Defendants argue the limitations sought are appropriate in light the allegations in Relator's Revised Second Amended Complaint (“RSAC”) (Doc. 75), Fed. R. Civ. P. 9(b) considerations, and the applicable statute of limitations. Further, Defendants contend Relator has no proof of fraud dating back to 2005 and she seeks discovery to “the present,” even though she has no credible information that any alleged fraud beyond her last date of employment. (Doc. 145).

In opposition, Relator argues that Defendants fail to provide good cause for issuance of a protective order. Relator urges that her allegations of fraud by management-level Defendants operating the facilities in Florida justify discovery at Defendants' facilities throughout Florida and a temporal scope much broader than that urged by Defendants. She claims that information discovered by the U.S. Department of Justice (“DOJ”), which dates back to 2008, suggests an earlier staring point is in order. Relator also claims that her demand for discovery from June 2005 is made consistent with the six-year statute of limitations. In any event, Relator urges Defendants now have reneged on providing even those matters previously agreed to, in particular, their production made to the DOJ, and their bald claims of burdensomeness are not demonstrated. (Doc. 148).

*2 Upon consideration, Relator's Motion to Compel (Doc. 143) and Defendants' Motion for Protective Order (Doc. 145) are GRANTED in part and DENIED in part as set forth below. An examination of the RSAC demonstrates that Relator alleges Defendants operated 53 skilled nursing homes in the State of Florida[3] and engaged in a scheme to defraud the United States and the State of Florida of Medicare, Medicaid and TRICARE funds by routinely misrepresenting the medical condition and treatment actually provided to residents at the skilled nursing facilities. Allegations in the RSAC also reveal allegations that Defendants routinely misrepresented the identity and credentials of those completed and/or certified the claims. Relator alleges first hand knowledge of this conduct based on her employment between January 2011 and May 2011 at two of the LaVie facilities in North Florida. By her allegations, senior officers of LaVie Management Services, including the CFO and regional vice presidents, established Medicare and Medicaid budgets for each facility which set a targeted average per diem reimbursement rate for Medicare and/or Medicaid residents that was geared not to patient care but to maximizing profits at each facility. Regional reimbursement specialists were tasked to see that Medicare budgets were met or exceeded. They visited the facilities, and suggested ways to upcode resident's Minimum Data Set (“MDS”) assessment so that the facility could achieve higher Resource Utilization Group (“RUG”) levels. Nurses were offered cash bonuses if they exceeded the budgets. Such was accomplished by upcoding the RUG levels reported on a resident's MDS assessment. Similar tactics were taken to fraudulently increase RUG levels and thus reimbursement rates for TRICARE as well. Additionally, false statements concerning resident's ADL scores, billing for unnecessary rehabilitative therapy, and manipulating the reporting of therapy minutes were routinely used to enhance the profits at the facilities where Relator worked. For many residents, individual care plans did not exist and where they did, such were not timely prepared. These assorted activities were driven by cost reduction and profit motives and resulted in deficient levels of patient care. Moreover, to facilitate and conceal the fraudulent scheme, employees routinely misrepresented their identities on the MDS submitted to state and federal intermediaries. By the allegations, the fraudulent conduct was promoted by executive level employees at the regional level or above.

On the bases of Relator's allegations that the alleged fraud was driven by regional officers and management level employees at the companies managing the facilities, I find that discovery in this action may be directed to the activities at all the LaVie facilities within Florida[4] and to any and all residents at such facilities for whom Defendants were billing for Medicare, TRICARE, and/or Medicaid reimbursement as such discovery relates to the allegedly false statements to state and federal authorities concerning residents' care plans, medical conditions, and their care and treatment at each facility; the establishment of Medicare, TRICARE and Medicaid budgets and the manner and means employed by Defendants to meet or exceed the budgets; the allegations of routine upcoding of resident's MDS assessments and/or RUG levels and any other means employed to fraudulently maximize Medicare, TRICARE and Medicaid reimbursements at these facilities, and all efforts taken to facilitate and conceal the scheme from state and federal authorities.

On the other hand, Defendants' objections concerning the temporal scope urged by the Relator appear well taken at this time. Consistent with Defendants' arguments, I conclude, at present, that the appropriate temporal scope of discovery should be January 1, 2008, through January 25, 2012.[5]

*3 Consistent herewith, Relator's Motion to Compel (Doc. 143) is GRANTED as to Request Numbers 5, 6, 9 and 10 as set forth in Relator's Third Request for Production. Documents and communications, in whatever format, including patient populations for each facility and identification of patients at each facility, including dates of care, treatment records, method of payments for care; care plans and MDS assessments for the same; all manner of billing and coding information for the pertinent residents; budgets, documents reflecting targeted reimbursement rates, and addressing any practice, policy and/or program for enhancing Medicare, Medicaid and/or TRICARE reimbursements, as well as scorecards or audits reflecting on the same; and annual cost reports shall be produced or otherwise made available for review within twenty-eight days (28) from the date of this Order. Emails within this order shall be made available on a rolling production basis to be completed within forty-five (45) days from the date of this Order.[6] Production of ESI shall be made in the format requested by Relator unless such cannot be accomplished or a different format is otherwise agreed to.

To the extent not granted herein, the Relator's Motion to Compel (Doc. 143) and Defendants' Motion for Protective Order (Doc. 145) are DENIED.

The Court does not reach Relator's cross-motion to compel production but notes that some form of statistical sampling may be a reasonable next step to address issues going forward. The Court would again encourage counsel to confer on the same to arrive at an acceptable protocol.

Done and Ordered in Tampa, Florida, this 14th day of November 2014.