3:13-cv-00666-JFA Date Filed 07/10/13 Entry Number 7 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION

The United States of America, )

ex rel. SUSAN RUSH; BELINDA )
PICKETT and TAMARA KEITT )
) CA No.: 3:13-cv-00666-JFA
Plaintiffs, )
)
vs. ) FILED EX PARTE AND
) UNDER SEAL
AGAPE SENIOR, LLC; AGAPE SENIOR )
SERVICES, INC.; AGAPE SENIOR )
SERVICES FOUNDATION, INC.; AGAPE )
SENIOR PRIMARY CARE, INC.; AGAPE )
SENIOR FOUNDATION, INC.; AGAPE )
SENIOR COMMUNITY, INC.; AGAPE )
HOSPICE OF THE PIEDMONT, INC.; )
AGAPE HOSPICE OF THE LOW )
COUNTRY INC.; AGAPE HOSPICE HOUSE )
OF LAURENS, LLC; AGAPE HOSPICE OF )
HORRY COUNTY, INC.; and AGAPE HOSPICE )
HOUSE OF HORRY COUNTY, INC., )
)
Defendants. )

UNITED STATES’ MOTION TO EXTEND THE SEAL PERIOD

AND TO PARTIALLY LIFT THE SEAL

In this qui tam lawsuit, Susan Rush, Belinda Pickett, and Tamara Keitt (“Relators”) allege

that Agape Senior, LLC, specifically its hospice entities, (“Defendants”) violated the False Claims

Act (the “FCA”), 31 U.S.C. §§ 3729–3733, as amended. Pursuant to § 3730(b)(3) of the FCA, the

United States of America respectfully submits this ex parte application for a six month extension of

time in which to notify the Court of its decision on whether to intervene in the above-captioned

case. This is the first extension request made by the United States.

The United States also respectfully moves the Court for an Order to partially lift the seal in

this action to allow it to disclose the Complaint, when in its discretion it is appropriate, to (1)

Defendants and their attorneys; (2) any employees or agents that Defendants deem necessary for the
 3:13-cv-00666-JFA Date Filed 07/10/13 Entry Number 7 Page 2 of 2

defense of this case; (3) to persons the United States deems necessary to the investigation of the

case; (4) employees of the State of South Carolina who are charged with investigating or

prosecuting Medicaid fraud;1 (5) to expert witnesses; (6) should mediation become necessary, to a

mediator and mediator’s staff; and (7) to relator and relator’s counsel in any other qui tam cases

with complaints containing similar allegations against these or related Defendants which are or may

be pending.

Relators’ counsel consents to these requests. As this case is still under seal, the Defendants

are unaware of this lawsuit and the United States did not seek their consent.

A memorandum in support of this application is included herein, and a proposed

order is submitted for the Court’s consideration.

Respectfully submitted,

WILLIAM N. NETTLES
United States Attorney

By: s/Elizabeth C. Warren

Jennifer J. Aldrich (#6035)
Elizabeth C. Warren (#11360)
Assistant United States Attorneys
1441 Main Street, Suite 500
Columbia, South Carolina 29201
Telephone (803) 929-3037

July 9, 2013

1
The United States Attorney’s Office has been informed that Relators’ counsel mistakenly served
the South Carolina Attorney General a copy of this qui tam. The South Carolina Attorney General’s
office is aware of the significance of the seal in FCA qui tam cases and is therefore aware of its
obligation to keep the seal in such cases. Relator’s counsel has been notified of its error.
2
 3:13-cv-00666-JFA Date Filed 07/10/13 Entry Number 7-1 Page 1 of 5

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION

The United States of America, )

ex rel. SUSAN RUSH; BELINDA )
PICKETT and TAMARA KEITT )
) CA No.: 3:13-cv-00666-JFA
Plaintiffs, )
)
vs. ) FILED EX PARTE AND
) UNDER SEAL
AGAPE SENIOR, LLC; AGAPE SENIOR )
SERVICES, INC.; AGAPE SENIOR )
SERVICES FOUNDATION, INC.; AGAPE )
SENIOR PRIMARY CARE, INC.; AGAPE )
SENIOR FOUNDATION, INC.; AGAPE )
SENIOR COMMUNITY, INC.; AGAPE )
HOSPICE OF THE PIEDMONT, INC.; )
AGAPE HOSPICE OF THE LOW )
COUNTRY INC.; AGAPE HOSPICE HOUSE )
OF LAURENS, LLC; AGAPE HOSPICE OF )
HORRY COUNTY, INC.; and AGAPE HOSPICE )
HOUSE OF HORRY COUNTY, INC., )
)
Defendants. )

UNITED STATES' MEMORANDUM IN SUPPORT OF ITS MOTION TO EXTEND

THE SEAL PERIOD AND FOR A PARTIAL LIFT OF THE SEAL

PROCEDURAL HISTORY

This is an action filed under the qui tam provisions of the False Claims Act, 31 U.S.C.

§ 3730(b), as amended (the “FCA”), brought by Relators Susan Rush, Belinda Pickett, and

Tamara Keitt (the “Relators”), on behalf of the United States. The FCA provides that a qui tam

Complaint shall be filed in camera and remain under seal for 60 days and during any extensions

of that time granted by the Court while the government investigates the allegations and

determines whether to intervene and prosecute the action. The 60-day seal period commences

from the date of service of a copy of the Complaint and statement of material information upon
 3:13-cv-00666-JFA Date Filed 07/10/13 Entry Number 7-1 Page 2 of 5

both the Attorney General and the United States Attorney, whichever is later. See 31 U.S.C. §

3730(b)(2).

This action was filed on March 12, 2013, and the United States Attorney’s Office for the

District of South Carolina was served on March 15, 2013. However, Relators did not serve the

United States Attorney the complaint until May 13, 2013. Therefore, the 60-day seal expires on

July 12, 2013. The United States respectfully requests this Court grant a six-month extension of

time to investigate the allegations contained in Relators’ complaint, until January 13, 2014.

FACTUAL BACKGROUND

Relators allege that Agape Senior, LLC, et al (collectively, “Defendants”) committed

numerous FCA violations. Specifically, Relators allege Defendants encouraged its employees to

admit and to re-certify patients who were inappropriate for hospice care. Relators allege

Defendants instructed employees to only report patients’ negative or declining symptoms and to

omit positive symptoms to create the appearance of a hospice appropriate patient. Additionally,

Relators allege Defendants fraudulently billed Medicare for General In-Patient (GIP) care by

“flipping” current Assisted Living Facility (ALF) or Skilled Nursing Facility (SNF) residents to

GIP care when it was not medically necessary and, in many cases, by not providing the

heightened care required for this higher reimbursement rate. Although the allegations contained

in the above-captioned qui tam overlap in several ways with the allegations contained in the qui

tam brought against Defendants by Relators Michaels and Whitesides, case number 0:12-cv-

03466-JFA, a case in which the United States declined intervention, the claim that Defendants

did not provide the requisite level of care for GIP reimbursement is unique to the above-

captioned qui tam. Moreover, witnesses referred to the United States by Relators Pickett, Rush,

2
 3:13-cv-00666-JFA Date Filed 07/10/13 Entry Number 7-1 Page 3 of 5

and Keitt, have revealed additional and unique allegations that the United States has and will

continue to investigate.

DISCUSSION

Under the qui tam provisions of the FCA, the United States initially has 60 days from the

date it receives the relator’s complaint and written disclosure of the material evidence in the

relator’s possession to elect whether to intervene and take over the prosecution of the qui tam

action, during which time the complaint remains under seal. 31 U.S.C. § 3730(b)(2). However,

the United States may receive extensions of that time for good cause. 31 U.S.C. § 3730(b)(3).

The United States respectfully seeks a six (6) month extension of time, in the above-captioned

case, to make its intervention decision.

The qui tam provisions of the False Claims Act provide in pertinent part:

(2) A copy of the complaint and written disclosure of

substantially all material evidence and information the person
possesses shall be served on the Government pursuant to Rule
4(d)(4) of the Federal Rules of Civil Procedure. The complaint
shall be filed in camera, shall remain under seal for at least 60
days, and shall not be served on the defendant until the court so
orders. The Government may elect to intervene and proceed with
the action within 60 days after it receives both the complaint and
the material evidence and information.

(3) The Government may, for good cause shown, move the
court for extensions of the time during which the complaint
remains under seal under paragraph (2).

31 U.S.C. §§ 3730(b)(2) and (3). The purpose of these provisions is to allow the United States a

reasonable time to investigate the relator’s allegations, review the evidentiary material, and make

an informed decision regarding the United States’ right to intervene before the defendants are

informed of the case and before the case is made public.

3
 3:13-cv-00666-JFA Date Filed 07/10/13 Entry Number 7-1 Page 4 of 5

Since learning of this case the United States has been diligently investigating Relators’

allegations. The government has conducted separate interviews of each relator in this case, and

has subsequently spoken to one of the relators to gather more information. From information

gathered at these Relators’ interviews, the government contacted several former employees of

Defendants and to date has interviewed four of them. In addition to witness interviews, the

United States has been reviewing documentation retained by a former employee before departing

Agape. This documentation was obtained by the government through a Civil Investigative

Demand (CID). Finally, the United States has requested and received claims information related

to the allegations in the above-captioned qui tam.

The United States has made significant progress in its investigation but will need

additional time in order to make a decision on whether to intervene in this case. The documents

obtained from the former employee required a privilege review, which took nearly a month. The

attorneys, investigator, and USAO-SC staff assigned to this case

recently received the privilege-reviewed documents and have since been reviewing their

contents. From this and other information received to date, the United States is formulating a

Civil Investigative Demand for Defendants. The government anticipates that any production

received from Defendants will take considerable time to review, and may require review by an

expert. Therefore, good cause exists for the requested extension of time.

CONCLUSION

For the foregoing reasons, the United States respectfully requests that the Court extend

the seal period to and including January 13, 2014.

The United States further requests an order partially lifting of the seal to allow it to

disclose the Amended Complaint, when in its discretion it is appropriate, to (1) Defendants and

4
 3:13-cv-00666-JFA Date Filed 07/10/13 Entry Number 7-1 Page 5 of 5

their attorneys; (2) any employees or agents that Defendants deem necessary for the defense of

this case; (3) to persons the United States deems necessary to the investigation of the case; (4)

employees of the State of South Carolina who are charged with investigating or prosecuting

Medicaid fraud; (5) to expert witnesses; (6) should mediation become necessary, to a mediator

and mediator’s staff; and (7) to relator and relator’s counsel in any other qui tam cases with

complaints containing similar allegations against these or related Defendants which are or may

be pending.

A proposed order is being submitted contemporaneously with this request for the Court’s

consideration.

Respectfully submitted,

WILLIAM N. NETTLES
United States Attorney

By: s/Elizabeth C. Warren

Jennifer J. Aldrich (#6035)
Elizabeth C. Warren (#11360)
Assistant United States Attorneys
1441 Main Street, Suite 500
Columbia, South Carolina 29201
Telephone (803) 929-3037

July 9, 2013

5
 3:13-cv-00666-JFA Date Filed 07/10/13 Entry Number 7-1 Page 1 of 5

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION

The United States of America, )

ex rel. SUSAN RUSH; BELINDA )
PICKETT and TAMARA KEITT )
) CA No.: 3:13-cv-00666-JFA
Plaintiffs, )
)
vs. ) FILED EX PARTE AND
) UNDER SEAL
AGAPE SENIOR, LLC; AGAPE SENIOR )
SERVICES, INC.; AGAPE SENIOR )
SERVICES FOUNDATION, INC.; AGAPE )
SENIOR PRIMARY CARE, INC.; AGAPE )
SENIOR FOUNDATION, INC.; AGAPE )
SENIOR COMMUNITY, INC.; AGAPE )
HOSPICE OF THE PIEDMONT, INC.; )
AGAPE HOSPICE OF THE LOW )
COUNTRY INC.; AGAPE HOSPICE HOUSE )
OF LAURENS, LLC; AGAPE HOSPICE OF )
HORRY COUNTY, INC.; and AGAPE HOSPICE )
HOUSE OF HORRY COUNTY, INC., )
)
Defendants. )

UNITED STATES' MEMORANDUM IN SUPPORT OF ITS MOTION TO EXTEND

THE SEAL PERIOD AND FOR A PARTIAL LIFT OF THE SEAL

PROCEDURAL HISTORY

This is an action filed under the qui tam provisions of the False Claims Act, 31 U.S.C.

§ 3730(b), as amended (the “FCA”), brought by Relators Susan Rush, Belinda Pickett, and

Tamara Keitt (the “Relators”), on behalf of the United States. The FCA provides that a qui tam

Complaint shall be filed in camera and remain under seal for 60 days and during any extensions

of that time granted by the Court while the government investigates the allegations and

determines whether to intervene and prosecute the action. The 60-day seal period commences

from the date of service of a copy of the Complaint and statement of material information upon
 3:13-cv-00666-JFA Date Filed 07/10/13 Entry Number 7-1 Page 2 of 5

both the Attorney General and the United States Attorney, whichever is later. See 31 U.S.C. §

3730(b)(2).

This action was filed on March 12, 2013, and the United States Attorney’s Office for the

District of South Carolina was served on March 15, 2013. However, Relators did not serve the

United States Attorney the complaint until May 13, 2013. Therefore, the 60-day seal expires on

July 12, 2013. The United States respectfully requests this Court grant a six-month extension of

time to investigate the allegations contained in Relators’ complaint, until January 13, 2014.

FACTUAL BACKGROUND

Relators allege that Agape Senior, LLC, et al (collectively, “Defendants”) committed

numerous FCA violations. Specifically, Relators allege Defendants encouraged its employees to

admit and to re-certify patients who were inappropriate for hospice care. Relators allege

Defendants instructed employees to only report patients’ negative or declining symptoms and to

omit positive symptoms to create the appearance of a hospice appropriate patient. Additionally,

Relators allege Defendants fraudulently billed Medicare for General In-Patient (GIP) care by

“flipping” current Assisted Living Facility (ALF) or Skilled Nursing Facility (SNF) residents to

GIP care when it was not medically necessary and, in many cases, by not providing the

heightened care required for this higher reimbursement rate. Although the allegations contained

in the above-captioned qui tam overlap in several ways with the allegations contained in the qui

tam brought against Defendants by Relators Michaels and Whitesides, case number 0:12-cv-

03466-JFA, a case in which the United States declined intervention, the claim that Defendants

did not provide the requisite level of care for GIP reimbursement is unique to the above-

captioned qui tam. Moreover, witnesses referred to the United States by Relators Pickett, Rush,

2
 3:13-cv-00666-JFA Date Filed 07/10/13 Entry Number 7-1 Page 3 of 5

and Keitt, have revealed additional and unique allegations that the United States has and will

continue to investigate.

DISCUSSION

Under the qui tam provisions of the FCA, the United States initially has 60 days from the

date it receives the relator’s complaint and written disclosure of the material evidence in the

relator’s possession to elect whether to intervene and take over the prosecution of the qui tam

action, during which time the complaint remains under seal. 31 U.S.C. § 3730(b)(2). However,

the United States may receive extensions of that time for good cause. 31 U.S.C. § 3730(b)(3).

The United States respectfully seeks a six (6) month extension of time, in the above-captioned

case, to make its intervention decision.

The qui tam provisions of the False Claims Act provide in pertinent part:

(2) A copy of the complaint and written disclosure of

substantially all material evidence and information the person
possesses shall be served on the Government pursuant to Rule
4(d)(4) of the Federal Rules of Civil Procedure. The complaint
shall be filed in camera, shall remain under seal for at least 60
days, and shall not be served on the defendant until the court so
orders. The Government may elect to intervene and proceed with
the action within 60 days after it receives both the complaint and
the material evidence and information.

(3) The Government may, for good cause shown, move the
court for extensions of the time during which the complaint
remains under seal under paragraph (2).

31 U.S.C. §§ 3730(b)(2) and (3). The purpose of these provisions is to allow the United States a

reasonable time to investigate the relator’s allegations, review the evidentiary material, and make

an informed decision regarding the United States’ right to intervene before the defendants are

informed of the case and before the case is made public.

3
 3:13-cv-00666-JFA Date Filed 07/10/13 Entry Number 7-1 Page 4 of 5

Since learning of this case the United States has been diligently investigating Relators’

allegations. The government has conducted separate interviews of each relator in this case, and

has subsequently spoken to one of the relators to gather more information. From information

gathered at these Relators’ interviews, the government contacted several former employees of

Defendants and to date has interviewed four of them. In addition to witness interviews, the

United States has been reviewing documentation retained by a former employee before departing

Agape. This documentation was obtained by the government through a Civil Investigative

Demand (CID). Finally, the United States has requested and received claims information related

to the allegations in the above-captioned qui tam.

The United States has made significant progress in its investigation but will need

additional time in order to make a decision on whether to intervene in this case. The documents

obtained from the former employee required a privilege review, which took nearly a month. The

attorneys, investigator, and USAO-SC staff assigned to this case

recently received the privilege-reviewed documents and have since been reviewing their

contents. From this and other information received to date, the United States is formulating a

Civil Investigative Demand for Defendants. The government anticipates that any production

received from Defendants will take considerable time to review, and may require review by an

expert. Therefore, good cause exists for the requested extension of time.

CONCLUSION

For the foregoing reasons, the United States respectfully requests that the Court extend

the seal period to and including January 13, 2014.

The United States further requests an order partially lifting of the seal to allow it to

disclose the Amended Complaint, when in its discretion it is appropriate, to (1) Defendants and

4
 3:13-cv-00666-JFA Date Filed 07/10/13 Entry Number 7-1 Page 5 of 5

their attorneys; (2) any employees or agents that Defendants deem necessary for the defense of

this case; (3) to persons the United States deems necessary to the investigation of the case; (4)

employees of the State of South Carolina who are charged with investigating or prosecuting

Medicaid fraud; (5) to expert witnesses; (6) should mediation become necessary, to a mediator

and mediator’s staff; and (7) to relator and relator’s counsel in any other qui tam cases with

complaints containing similar allegations against these or related Defendants which are or may

be pending.

A proposed order is being submitted contemporaneously with this request for the Court’s

consideration.

Respectfully submitted,

WILLIAM N. NETTLES
United States Attorney

By: s/Elizabeth C. Warren

Jennifer J. Aldrich (#6035)
Elizabeth C. Warren (#11360)
Assistant United States Attorneys
1441 Main Street, Suite 500
Columbia, South Carolina 29201
Telephone (803) 929-3037

July 9, 2013