Full opinion text
MEMORANDUM OPINION AND ORDER SIM LAKE, District Judge. Pending in this qui tam action brought under the False Claims Act (FCA), 31 U.S.C. § 3729 et seq., are the Motion for Summary Judgment (Docket Entry No. 678) filed by defendant Deloitte Consulting LLP (Deloitte) and two motions for partial summary judgment filed by Plaintiff-Relator, Ramesh Gudur: Relator’s Motion for Partial Summary Judgment (Time Survey v. Time Study) (Docket Entry No. 679), and Relator’s Motion for Partial Summary Judgment (Indirect Cost) (Docket Entry No. 680). Also pending is Deloitte’s Motion to Strike the Statement of Interest of the United States Regarding Deloitte’s Motion for Summary Judgment (Docket Entry No. 789). For the reasons set forth below, Deloitte’s motion for summary judgment and motion to strike will be granted, and Relator’s motions for partial summary judgment will be denied. I. Background A. Procedural Background The procedural history of this case can be found in the court’s prior orders. (Docket Entry Nos. 202, 237, 283, 344, 395, 501) Only Relator’s claims against Deloitte Consulting, LLP (“Deloitte”) remain. The claims against Deloitte are based on allegations that Deloitte caused false Medicaid claims to be submitted to the United States Government, and that Deloitte conspired with certain Texas school districts to inflate Medicaid reimbursement rates in violation of the FCA. See Relator’s Third Amended Complaint (Docket Entry No. 397) and the court’s August 31, 2004, Memorandum and Order (Docket Entry No. 501). B. Factual Background 1. Undisputed Facts (a) General Facts By federal mandate Texas school districts must provide a free and appropriate public education to all children. This includes the provision of free health-related services needed to help special education students achieve the goals set forth in their Individual Education Plans. For many years the obligation to provide free health related services was an unfunded mandate. However, in January of 1989 passage of the Medicare Catastrophic Coverage Act of 1988, Public Law 100-360 (1988) required the federal government to make Medicaid reimbursement available to qualified providers of health-related services for special education children in the school setting. This law became effective in January of 1989. (See Staff Performance Report to 74th Legislature, Docket Entry No. 678-7 at pp. 43-44.) In October of 1990 the State of Texas submitted for federal approval the first proposed State Plan Amendment (SPA) to include coverage for the School Health and Related Services (SHARS) program. (See Staff Performance Report to 74th Legislature, Docket Entry No. 678-7 at pp. 43-44.) In September of 1992 the SPA creating the SHARS program received federal approval. The SHARS program allowed school districts to claim Medicaid reimbursement for nine health-related services: occupational, physical, and speech therapy; medical, school health, and psychological services; assessments; audiology; and counseling. (See Staff Performance Report to 74th Legislature, Docket Entry No. 678-7 at pp. 43-44.) In October of 1992 the National Heritage Insurance Company (NHIC), the government’s designated claims facility, began accepting provider applications from local school districts and special education cooperatives, and in November of 1992 NHIC began accepting claims for reimbursement under the SHARS program. The SPA provided that SHARS reimbursement rates would be based on cost data gathered in a 1999 study by the Texas Interagency Council on Early Childhood Development until a new cost study could be completed. Provided that adequate documentation was available, school districts could claim reimbursement for services back to December of 1991. (See Staff Performance Report to 74th Legislature, Docket Entry No. 678-7 at pp. 43^44.) In June and July of 1993 the Medicaid operating agency gathered cost data for the purpose of establishing SHARS-specific reimbursement rates. In September of 1993 House Bill 7 shifted responsibility for administration of the SHARS program from the Texas Department of Human Services (DHS) to the Texas Department of Health (TDH). However, DHS maintained responsibility for determining Medicaid eligibility. (See Staff Performance Report to 74th Legislature, Docket Entry No. 678-7 at p. 44.) Before the cost data was compiled and analyzed, TDH determined that the data was inadequate and obsolete. In April of 1994 the State of Texas received federal approval for a second SPA to include special transportation as a (tenth) reimbursable service. In April of 1994 Deloitte began working with the Texas Education Agency (TEA) to establish new SHARS reimbursement rates based upon: (1) cost data gathered in 1993; (2) time data gathered by Deloitte in 1994; and (3) financial information relating to special education expenditures for all school districts in the state maintained by the TEA. This effort resulted in rates that ranged between 13 percent and 164 percent (an average of 98%) higher than the previously used rates. (See Staff. Performance Report to 74th Legislature, Docket Entry No. 678-7 at p. 48.) In August of 1994 Deloitte proposed new interim rates for nine of the ten SHARS services. In November of 1994 TDH approved and adopted four of the nine rates proposed by Deloitte (i.e., rates for assessment, psychological services, school health services, and speech therapy). TDH rejected the remaining five rates proposed by Deloitte (i.e., rates for audiology, counseling, medical services, occupational therapy, and physical therapy). (See Staff Performance Report to 74th Legislature, Docket Entry No. 678-7 at pp. 45 & n. 2, and 48-49.) In an October 20, 1994, letter to the TEA, Joseph Branton of the TDH explained that [t]he department has chosen to use the rates proposed by Deloitte and Touche for school health services and speech therapy services as the rate increases appear reasonable and these services are the most frequently billed. The department has also chosen to use the rates proposed by Deloitte and Touche for assessment and psychological services in light of the resources required to perform the services. While we agree that the remaining SHARS rates need to be revised, we are concerned about the insufficient data available to Deloitte and Touche to establish the revised rates. We are also concerned about the comparability of these rates to payment rates of other providers of these services and about the potential liability of the state and the department in the event of a HCFA [Health Care Financing Administration] audit. Therefore, the remaining SHARS rates are only being updated for inflation. We do .plan, however, to conduct our own cost study of the SHARS rates in the near future and will make future adjustments as necessary to reflect the costs of these services to the school districts. The revised SHARS rates will be presented to the Board of Health at its November meeting for approval to implement December 1, 1994. (Docket Entry No. 678-8 at p. 45) The following year TDH promulgated new SHARS rates for the remaining five services that it adjusted for inflation; the new rates for these five services took effect in September of 1995. (Branton Memorandum of July 10, 1995, Docket Entry No. 678-8 at p. 48) (b) Specific Facts (1) Initial SHARS Rates The SHARS reimbursement rates used through November of 1994 were based on cost data from approximately 14 school districts that had participated in a 1989 cost study conducted by the Texas Inter-agency Council on Early Childhood Intervention. The Medicaid SPA provided that these rates would be used by SHARS providers temporarily until another cost study could be completed. (See Staff Performance Report to 74th Legislature, Docket Entry No. 678-7 at p. 48.) (2) Relator’s Effort to Develop SHARS-Specific Rates In March of 1991 TDH hired Relator as a Program Specialist for the SHARS program to, inter alia, draft service definitions, prepare an SPA for federal approval, and calculate prospective SHARS reimbursement rates. Although TDH supervised Relator, TEA paid his salary pursuant to a Memorandum of Understanding between the two agencies. (See Gudur Deposition, Docket Entry No. 678-5 at pp. 5-6, and 12-13; Branton Deposition, Docket Entry No. 678-3 at p. 18.) Because Relator had no prior rate-setting experience, he was to be assisted by two experienced TDH rate-setters, Nancy Kimble and Jeff Phelps. (Gudur Deposition, Docket Entry No. 678-5 at p. 5) Realtor also worked with TEA officials Janet Spur-gin and Ken Crow to formulate a cost report and a time study for the purpose of gathering data needed to establish SHARS rates. (Gudur Deposition, Docket Entry No. 678-5 at pp. 6-7; Spurgin Affidavit, Docket Entry No. 678-7 at pp. 38-39) Relator, assisted by other state officials, developed a cost report designed to capture the actual direct costs incurred by school districts delivering SHARS. (Gu-dur Deposition, Docket Entry No. 678-5 at p. 7) TEA selected a random sample of 33 Texas school districts to which Relator mailed cost reports during the summer of 1993. (Gudur Deposition, Docket Entry No. 678-5 at pp. 23 and 25) The cost reports asked the school districts to submit data from the September 1991 to August 1992 school year. (Gudur Deposition, Docket Entry No. 678-5 at p. 9) Since this was the first time that Texas school districts had been asked to prepare cost reports, Relator provided training to the participating school districts. (Gudur Deposition, Docket Entry No. 678-5 at pp. 19-20) During the summer of 1993 the school districts completed the cost reports and returned them to TDH. (Gudur Deposition, Docket Entry No. 678-5 at p. 25) Relator then developed “rates based on that data, which were not accepted. So that’s when Deloitte & Touche came in— along with TEA- — and said that they were going to come up with rates.” (Gudur Deposition, Docket Entry No. 678-5 at p. 25) (3)Deloitte’s Effort to Develop SHARS-Specific Rates On March 21, 1994, David Bankard of Deloitte sent a letter to Joseph Branton of TDH offering — at no charge to TDH— technical assistance in setting SHARS rates. (Bankard Letter, Docket Entry No. 678-8 at pp. 2-5) On April 7, 1994, TDH accepted Deloitte’s offer of technical assistance and asked Deloitte to [pjlease note the following conditions as you proceed with your proposed work: 1) Please involve Mr. Ray Gudur, a member of our staff, in all aspects of this project. 2) Please provide copies of any and all documentation used in arriving at your results. Please note that rate development must comply with all Medicaid requirements. 3) The Texas Department of Health reserves the right to make a final decision regarding the implementation of the rates suggested. (Branton letter, Docket Entry No. 678-8 at p. 7) (See also Gudur Deposition, Docket Entry No. 678-5 at p. 17.) Deloitte assigned Paul David Christen-son, an experienced rate-setter, to work with TDH and TEA in developing SHARS rate recommendations. (Christenson Deposition, Docket Entry No. 678-4 at p. 6; Phelps Deposition, Docket Entry No. 678-7 at pp. 17-18; Bankard Deposition, Docket Entry No. 678-3 at p. 9) Christenson performed the following tasks: • Gathered the previously completed cost-study reports from Mr. Gudur; • Gathered indirect cost data from TEA’S state-wide database (PEIMS); • With assistance from TEA, developed a time survey with accompanying instructions; •With assistance from TEA, gathered time-survey data from participating school practitioners; •With assistance from TEA, analyzed the cost-study data from the school districts, the indirect cost data from PEIMS, and the time suivey responses, and compiled the supporting data into the Rate Documentation Package, which contained recommended SHARS reimbursement rates for nine services (assessment, audiology, counseling, medical services, school health services, occupational therapy, physical therapy, psychological services, and speech therapy); • Presented the Rate Documentation Package to Mr. Gudur in July 1994, and responded to his questions; and, • On August 15, 1994, presented the Rate Documentation Package to various TDH employees and answered their questions regarding it. (Deloitte’s Brief in Support of Motion for Summary Judgment, Docket Entry 678-2 at pp. 17-18) On July 19, 1994, after Relator received and reviewed Deloitte’s rate recommendations, set forth in a 772-page document titled, “Texas Department of Health, School Health and Related Services, Medicaid Rate Documentation Package, Fiscal Year Ended 8/31/94” (“Rate Documentation Package”), Relator met with Spurgin and Christenson to discuss his concerns about Deloitte’s SHARS rate recommendations, and later that day Christenson responded to Relator’s concerns in wilting. (Christenson Letter, Docket Entry No. 678-8 at pp. 9-19) On August 15, 1994, TDH’s rate-setting staff met with Deloitte to discuss Deloitte’s work and the recommendations set forth in Deloitte’s Rate Documentation Package. (See August 15, 1994, Presentation of Medicaid Rate Documentation Methodology to TDH, Docket Entry No. 678-8 at pp. 31-43; Branton Deposition, Docket Entry No. 678-3 at p. 26; Phelps Deposition, Docket Entry No. 678-7 at p. 10.) Kimble and Phelps, TDH’s experienced Medicaid rate-setters, independently reviewed Deloitte’s Rate Documentation Package and reported their findings to TDH officials in writing. (Phelps Memorandum of August 23, 1994, Docket Entry No. 678-8 at pp. 21-22; Kimble Memorandum of August 23, 1994, Docket Entry No. 678-8 at pp. 24-25) A series of meetings ensued at-which TDH, without additional input from Deloitte, discussed the Rate Documentation Package, considered various alternative approaches, and after subjecting the Rate Documentation Package to considerable scrutiny, concluded that the methodology and rates De-loitte proposed were consistent with the SPA. (Branton Deposition, Docket Entry No. 678-3 at p. 27; Phelps Deposition, Docket Entry No. 678-7 at p. 13) 2. Disputed Facts At issue in this action is Deloitte’s effort to assist TDH in developing SHARS-spe-cific reimbursement rates. Relator alleges that Deloitte (1) caused Texas school districts to submit false claims for SHARS reimbursements by using a fraudulent rate-setting methodology developed with TDH in 1994, and (2) conspired with Texas school districts — none of which remain parties to this action — to artificially inflate the SHARS reimbursement rates by falsifying cost-report and/or time-survey data. II. Deloitte’s Motion to Strike Statement of Interest On November 17, 2006, the United States filed a document titled, “Statement of Interest of the United States Regarding Defendant Deloitte Consulting LLP’s Motion for Summary Judgment.” (Docket Entry No. 783) Asserting that the United States is the “real party in interest in this qui tam action” and “because the FCA plays a central role in the Government’s ongoing efforts to combat fraud, the United States has a keen interest in the proper interpretation of the FCA,” the United States “submits this Statement of Interest to provide assistance to the Court in interpreting and applying the FCA.” (Docket Entry No. 783-1 at pp. 6-7) The Statement of Interest contains the United States’ responses to the following legal arguments raised in Deloitte’s motion for summary judgment: (1) Relator cannot establish that Deloitte or any entity presented a false claim to the Federal Government, (2) an intervening act, the State of Texas’ review of Deloitte’s rates, broke the chain of causation, and (3) a conspiracy violation under subsection 3729(a) (3) of the FCA must be predicated on proof of a violation of another subsection of the FCA. (Docket Entry No. 783-1 at p. 7) Deloitte asserts that the Statement of Interest is an untimely response to its motion for summary judgment. Because the United States filed its ... Response outside of the time permitted, without prior leave of court, and without any attempt to demonstrate “good cause” for the delay, Deloitte moves to strike it under Fed.R.Civ.P. (“Rule”) 16(b) and (f) and the Court’s inherent power to control its own docket. (Docket Entry No. 789-1 at p. 1) The United States asks the court to deny Deloitte’s motion to strike because the rules cited by Deloitte apply only to formal parties, and since “the United States declined intervention in this matter and is not a formal party ... [those rules] do not apply to the United States in [this action].” (Docket Entry No. 791-1 at p. 1) Asserting that the Statement of Interest was filed as soon as the parties had completed their briefing and the United States had received copies of the parties’ supplemental briefs, the United States argues that Deloitte should not be prejudiced by any tardiness in the filing of its Statement of Interest and declares that it does not oppose Deloitte’s request to respond to its “amicus brief.” (Docket Entry No. 791-1 at p. 2) When, as in this case, the United States does not intervene in an FCA action, the qui tam plaintiff-relator is the only party who has the “right to conduct the action.” 31 U.S.C. §§ 3730(b)(4) (B) and 3730(c)(3). However, the FCA also recognizes that even when the government does not intervene, the government maintains the right to be served with copies of all pleadings filed in the action and to be supplied with all deposition transcripts, 31 U.S.C. § 3730(b)(2); to limit discovery under certain circumstances, 31 U.S.C. § 3730(c)(4); to later intervene in the action if it so desires, upon a “showing of good cause” and “without limiting, the status and rights of the person initiating the action,” 31 U.S.C. § 3730(c)(3); to settle the action with the defendants over the objections of the individual bringing the action, 31 U.S.C. § 3730(c)(2)(B); and even to seek dismissal of the case, 31 U.S.C. § 3730(b). There is nothing in the FCA that prohibits the government from submitting an ami-cus curiae brief. No statute, rule, or controlling case defines a federal district court’s power to grant or deny leave to file an amicus brief, and the United States cites no authority in this regard. Federal Rule of Appellate Procedure 29 sets forth standards for filing an amicus brief in the United States Courts of Appeals, and in the absence of controlling authority, district courts commonly refer to Rule 29 for guidance. Waste Management of Pa. v. City of York, 162 F.R.D. 34, 36-37 (M.D.Pa.1995). The extent to which the court permits or denies amicus briefing lies solely within the court’s discretion. Id. Factors relevant to the determination of whether amicus briefing should be allowed include whether the proffered information is “timely and useful” or otherwise necessary to the administration of justice. Id. at 36. For more than six-and-a-half years the United States has stood on the sidelines of this case, content to allow the Relator to conduct this action on its behalf. Deloitte filed its motion for summary judgment on June 5, 2006 (Docket Entry No. 678); .on July 11, 2006, Relator filed his response to Deloitte’s motion for summary judgment (Docket Entry No. 702); and on July 26, 2006, Deloitte filed its reply to Relator’s response. (Docket Entry No. 719) In an August 1, 2006, Order (Docket Entry No. 725), the court struck Relator’s response to Deloitte’s motion for summary judgment for being too long and too late, and ordered Relator to file an amended response by August 10, 2006. On August 10, 2006, Relator filed his amended response (Docket Entry No. 729), and on August 24, 2006, Deloitte filed an amended reply. (Docket Entry No. 736) On October 27, 2006, the court entered an Order granting each side fourteen days “to file any further responses, replies or submissions related to De-loitte’s Motion for Summary Judgment and/or Relator’s Motions for Partial Summary Judgment.” (Docket Entry No. 762) The court’s Order of October 27, 2006, provided that “[tjhis is the final extension of time for any submissions or briefing on the pending Motions for Summary Judgment.” (Docket Entry No. 762) (emphasis in original) Although the United States asserts that the “Statement of Interest responds to ... arguments” made in Deloitte’s motion for summary judgment (Docket Entry No. 783-1 at p. 7), the United States did not file its Statement of Interest until November 17, 2006, over five months after De-loitte filed its motion for summary judgment, and the United States did not seek leave to file its Statement of Interest. Regardless of whether the timeliness of the Statement of Interest is measured from June 5, 2006, the date Deloitte filed its motion for summary judgment, or from the court’s final scheduling order of October 27, 2006, the Statement of Interest is untimely because it was filed both after the submission date, which occurred twenty days after Deloitte filed its motion, and after the final date for filing anything responsive to any of'the pending motions for summary judgment set by the court’s Order of October 27, 2006. Since the United States has made no attempt to explain why the arguments it raised could not have been made before Deloitte filed either its amended reply to the Relator’s response on August 24, 2006 (Docket Entry No. 719), or its supplemental brief in support of its motion for summary judgment on November 13, 2006 (Docket Entry No. 781), the court is not persuaded that the United States has shown good cause for its untimely filing. Moreover, since the United States has not argued that Relator’s counsel has inadequately argued the issues raised in the Statement of Interest, the court concludes that no prejudice would befall the United States from granting . Deloitte’s motion to strike. Regardless of the issues raised, if the court were to deny Deloitte’s motion to strike, Deloitte would be entitled to answer the United States’ arguments. Be7 cause the allowance of additional briefing at this late stage of the lawsuit would not only add to an already substantial record, but would also cause substantial prejudice to the parties and to the court by unnecessarily delaying the resolution of this action, the court concludes that additional briefing would not be helpful. For these reasons the court concludes that Deloitte’s motion to strike the United States’ Statement of Interest should be granted; the United States’ Statement of Interest is neither timely nor useful, nor otherwise necessary to the administration of justice. Although the court does not rest its' decision on the criteria of Federal Rule of Appellate Procedure 29, the court notes that the United States’ Statement of Interest would be untimely under that rule. In pertinent part Rule 29 provides (e) Time for Filing.' An amicus curiae must file its brief, accompanied by a motion for filing when necessary, no later than 7 days after the principal brief of the party being supported is filed. An amicus curiae that does not support either party must file its brief no later than 7 days after the appellant’s or petitioner’s principal brief is filed. A court may grant leave for later filing, specifying the time within which an opposing party may answer. (f) Reply Brief. Except by the court’s permission, an amicus curiae may not file a reply brief. Fed. R.App. P. 29(e)-(f). Rule 29 is designed to ensure the timely resolution of claims presented: [T]he 7-day period runs from when a brief is filed. The passive voice — “is filed” — is used deliberately .. •. The 7 day stagger [between filing of the principal brief and the supporting, ami-cus brief] ... is long enough to permit an amicus to review the completed brief of the party being supported and avoid repetitious argument. A 7-day period also is short enough that no. adjustment need be made in the opposing party’s briefing schedule. The opposing party will have sufficient time to review arguments made by the amicus and address them in the party’s responsive pleading. Fed. R.App. P. 29(e) Adv. Comm. Notes to 1998 Amend. Since the United States’ Statement of Interest was filed more than seven days after Deloitte’s motion for summary judgment was filed, and the United States did not seek leave of court to file it, the court concludes that it was untimely filed under Rule 29. Because the concerns of necessity and timeliness, which under-gird Rule 29, do not appear to be any less important in the district court than in the court of appeals, the court concludes that the standards established by Rule 29 support its decision to grant Deloitte’s motion to strike the United States’ Statement of Interest. See Abu-Jamal v. Horn, 2000 WL 1100784, *4-5 (E.D.Pa.2000). III. Cross-Motions for Summary Judgment Pending before the court are Relator’s two motions for partial summary judgment and Deloitte’s motion for summary judgment. For the reasons explained below, the court will deny Relator’s two motions for partial summary judgment, and grant Deloitte’s motion for summary judgment. A. Standard of Review Summary judgment is authorized if the movant establishes that there is no genuine dispute about any material fact and the law entitles it to judgment. Fed.R.Civ.P. 56(c). Disputes about material facts are “genuine” if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). The Supreme Court has interpreted the plain language of Rule 56(c) to mandate the entry of summary judgment “after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 817, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). A party moving for summary judgment “must ‘demonstrate the absence of a genuine issue of material fact,’ but need not negate the elements of the nonmovant’s case.” Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.1994) (en banc), (quoting Celotex, 106 S.Ct. at 2553-2554). If the moving party meets this burden, Rule 56(c) requires the nonmovant to go beyond the pleadings and show by affidavits, depositions, answers to interrogatories, admissions on file, or other admissible evidence that specific facts exist over which there is a genuine issue for trial. Id. (citing Celotex, 106 S.Ct. at 2553-2554). In reviewing the evidence “the court must draw all reasonable inferences in favor of the nonmov-ing party, and it may not make credibility determinations or weigh the evidence.” Reeves v. Sanderson Plumbing Products Inc., 530 U.S. 133, 120 S.Ct. 2097, 2110, 147 L.Ed.2d 105 (2000). Factual controversies are to be resolved in favor of the nonmovant, “but only when ... both parties have submitted evidence of contradictory facts.” Little, 37 F.3d at 1075. B. Applicable Law Relator’s Third Amended Complaint contains two substantive counts: (1) Count One alleges fraud against the government in violation of the FCA; and (2) Count Two alleges conspiracy to defraud the government in violation of the FCA. (Docket Entry No. 397-1 at pp. 51-52) The qui tam provisions of the FCA allow private persons acting on behalf of the government to sue those who defraud the government and share in any proceeds ultimately recovered. United States v. Bornstein, 423 U.S. 303, 96 S.Ct. 523, 531 & n. 11, 46 L.Ed.2d 514 (1976). Although Relator’s Third Amended Complaint does not cite any specific subsection of the FCA that Deloitte is alleged to have violated, Relator argues that De-loitte has violated 31 U.S.C. § 3729(a)(1)-(3). (See Docket Entry No. 679-1 at pp. 1 and 9, and No. 680-1 at pp. 7-8.) Liability for violation of the relevant provisions of the FCA arises when any person (1) knowingly presents, or causes to be presented, to an officer or employee of the United States Government or a member of the Armed Forces of the United States a false or fraudulent claim for payment or approval; (2) knowingly makes, uses, or causes to be made or used, a false record or statement to get a false or fraudulent claim paid or approved by the Government ... [or] (3) conspires to defraud the Government by getting a false or fraudulent claim allowed or paid ... 31 U.S.C. § 3729(a). Congress has determined that for FCA purposes the terms “knowing” and “knowingly” mean that a person, with respect to information— (1) has actual knowledge of the information; (2) acts in deliberate ignorance of the truth of the information; or (3) acts in reckless disregard of the truth or falsity of the information, and no proof of specific intent to defraud is required. 31 U.S.C. § 3729(b). “The FCA applies to anyone who ‘knowingly assist[s] in causing’ the government to pay claims grounded in fraud, ‘without regard to whether that person ha[s] direct contractual relations with the government.’ ” United States ex rel. Riley v. St. Luke’s Episcopal Hospital, 355 F.3d 370, 378 (5th Cir.2004). To prevail on Count One by establishing that Deloitte violated 31 U.S.C. § 3729(a)(1) or (2) Relator must prove that (1) Deloitte presented or caused to be presented a false claim to the federal government, or Deloitte made, used, or caused to be used a false record or statement to get a false claim paid or approved by the federal government, (2) the claim was false or fraudulent; and (3) Deloitte knew the claim was false or fraudulent. See United States v. Medica-Rents Co., 285 F.Supp.2d 742, 769 (N.D.Tex.2003) (citing United States ex rel. Wilkins v. North American Construction Corp., 173 F.Supp.2d 601, 618 (S.D.Tex.2001)). In addition, most courts, including those in the Fifth Circuit, require a fourth element: materiality. “Liability for both a ‘false claim’ and a ‘fraudulent claim’ implicitly requires a showing that what makes the claim either false or fraudulent is material to the asserted claim of entitlement to receive money or property from the government.” Id. (quoting Wilkins, 173 F.Supp.2d at 630). See also United States v. Southland Management Corp., 326 F.3d 669, 679 (5th Cir.2003) (en banc) (“there should no longer be any doubt that materiality is an element of a civil False Clams Act case”) (Jones, concurring) (citing United States ex rel. Thompson v. Columbia/HCA Healthcare Corp., 125 F.3d 899, 902 (5th Cir.1997) (“FCA interdicts material misrepresentations made to qualify for government privileges or services”)). To prevail on Count Two by establishing that Deloitte violated 31 U.S.C. § 3729(a)(3) Relator must prove (1) that there was an agreement with another party to submit a false claim, and (2) that one or more conspirators performed an act to effect the object of the conspiracy. See Wilkins, 173 F.Supp.2d at 639 & n. 33. See also United States ex rel. Graves v. ITT Educational Services, Inc., 284 F.Supp.2d 487, 509 (S.D.Tex.2003), aff'd 111 Fed. Appx. 296 (5th Cir.2004), cert. denied, 544 U.S. 978, 125 S.Ct. 1869, 161 L.Ed.2d 730 (2005). Congress has established that a “claim” includes any request or demand, whether under a contract or otherwise, for money or property which 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. 31 U.S.C. § 3729(c). The term “false, or fraudulent” is not defined in the FCA. See Mikes v. Straus, 274 F.3d 687, 696 (2d Cir.2001). “False” can mean “deceitful,” or “tending to mislead,” and a “false claim” is one “grounded in fraud which might result in financial loss to the Government.” Riley, 355 F.3d at 378 (quoting Webster’s Third New International Dictionary, 819 (1981), and Peterson v. Weinberger, 508 F.2d 45, 52 (5th Cir.),. cert. denied, 423 U.S. 830, 96 S.Ct. 50, 46 L.Ed.2d 47 (1975)). The Fifth Circuit has explained that “[i]t is only those claims for money or property to which a defendant is not enti-tied that are ‘false’ for purposes of the False Claims Act.” Southland, 326 F.3d at 674-675 (citing Costner v. URS Consultants, Inc., 153 F.3d 667, 677 (8th Cir.1998) (“[Ojnly those actions by the claimant ... [calculated to] caus[ej the United States to pay out money it is not obligated to pay ... are properly considered ‘claims’ within the meaning of the FCA.”)). See also Wilkins, 173 F.Supp.2d at 626 (collecting authorities for "proposition that a “false claim” is a claim for more than one is due). The FCA defines “knowingly” as: (1) possessing actual knowledge, (2) acting in deliberate ignorance of falsity, or (3) acting in reckless disregard of falsity. 31 U.S.C. § 3729(b). The requisite intent is thus the knowing presentation of what is known to be false; “which means that a lie is actionable but not an error.” Riley, 355 F.3d at 378. The statute’s definition of “knowingly” excludes liability for innocent mistakes or negligence. See Southland, 326 F.3d at 681-682 (Jones, J., concurring) (citing United States ex rel. Hochman v. Nackman, 145 F.3d 1069, 1074 (9th Cir.1998), and Hindo v. University of Health Sciences, 65 F.3d 608, 613-614 (7th Cir.1995)). Courts have thus rejected the proposition that claimants “knowingly” presented false claims where there were instances of “mere” contractual or regulatory noncompliance. [T]he FCA is not an appropriate vehicle for policing technical compliance with administrative regulations. The FCA is a fraud prevention statute; violations of [agency] regulations are not fraud unless the violator knowingly lies to the government about them. United States ex rel. Earners v. City of Green Bay, 168 F.3d 1013, 1019 (7th Cir.1999). Innocently made faulty calculations or flawed reasoning cannot give rise to liability. Wang ex rel. U.S v. FMC Corp., 975 F.2d 1412, 1420-21 (9th Cir.1992). Further, where disputed legal issues arise from vague provisions or regulations, a contractor’s decision to take advantage of a position cannot result in his filing a “knowingly” false claim. See United States ex rel. Siewick v. Jamieson Science & Engineering, Inc., 214 F.3d 1372, 1378 (D.C.Cir.2000); Hagood v. Sonoma County Water Agency, 81 F.3d 1465, 1478-79 (9th Cir.1996). Id. Claims are not “false” under the FCA when reasonable persons can disagree regarding whether service was properly billed to the Government. See Thompson, 125 F.3d at 902. (“claims for services rendered in violation of a statute do not necessarily constitute false or fraudulent claims under the FCA”). See also United States ex rel. Lamers v. City of Green Bay, 168 F.3d 1013, 1018 (7th Cir.1999) (holding that “errors based simply on faulty calculations or flawed reasoning are not false under the FCA ... [a]nd imprecise statements or differences in interpretation growing out of a disputed legal question are similarly not false under the FCA”); Hagood v. Sonoma County Water Agency, 81 F.3d 1465, 1477 (9th Cir.1996) (“How precise and how current the cost allocation needed to be in light of the [Water Supply Act’s] imprecise and discretionary language was a disputed question within the [Government], Even viewing [plaintiffs] evidence in the most favorable light, that evidence shows only a disputed legal issue; that is not enough to support a reasonable inference that the allocation was false within the meaning of the False Claims Act”); United States ex rel. Hopper v. Anton, 91 F.3d 1261, 1266 (9th Cir.1996) (violations of laws, rules, or regulations alone do not create a cause of action under the FCA, but false certifications of compliance create liability under the FCA when certification is a prerequisite to obtaining a government benefit). The FCA “reaches beyond ‘claims’ which might be legally enforced, to all fraudulent attempts to cause the Government to pay out sums of money.” Id. (quoting Peterson, 508 F.2d at 52) (recognizing that a false certification of compliance on a claim form submitted to the Government for payment is actionable under the FCA). The government’s knowledge of the alleged false claim is relevant to whether the defendant “knowingly” submitted a false claim. The inaptly-named “government knowledge defense” captures the understanding that the FCA reaches only the “knowing presentation of what is known to be false.” Id. at 682 (citing Hagood, 81 F.3d at 1478). This defense suggests that the “knowing” submission of false or fraudulent claims is logically impossible when responsible government officials have been fully apprized of all relevant information. Id. Since the crux of an FCA violation is intentionally deceiving the government, no violation exists where relevant government officials are informed of the alleged falsity, thus precluding a determination that the government has been deceived. Id. See also United States ex rel. Butler v. Hughes Helicopters, Inc., 71 F.3d 321, 327 (9th Cir.1995); Wang, 975 F.2d at 1421. C. Relator’s Motions for Partial Summary Judgment Relator has filed two motions for partial summary judgment as to liability against Deloitte. One motion seeks summary judgment that Deloitte knowingly “violated OMB Circular A-87 by failing to adhere to the requirements of the Texas State Plan Amendment that required the use of a time study to set rates for SHARS services.” (Docket Entry No. 679-1 at p. 1) Another motion seeks summary judgment that Deloitte knowingly “violated OMB Circular A-87 by including numerous categories of unallowable costs.” (Docket Entry No. 680-1 at p. 1) Relator asserts that as a result of these violations by Deloitte false claims were made or caused to be made to the government; [Deloitte] made or used a false record or statement to get a false or fraudulent claim paid or approved by the government; and [Deloitte] participated in a conspiracy to violate the False Claims Act. (Docket Entry No. 679-1 at p. 1) Deloitte argues in opposition that neither of Relator’s motions for partial summary judgment should be granted because Relator fails to present evidence that supports his factual assertions, and because even if the court agrees with Relator that certain components of Deloitte’s Rate Documentation Package were inconsistent with the SPA or the language of OMB Circular A-87, partial summary judgment on liability is not appropriate because Relator fails to present evidence that supports the prima facie elements of an FCA violation. (Deloitte Consulting LLP’s Combined Brief in Opposition to Relator’s Motions for Partial Summary Judgment (Indirect Cost) and (Time Survey v. Time Study), Docket Entry No. 699-1 at pp. 1 and 4) 1. Time Survey v. Time Study Motion for Partial Summary Judgment Asserting that Deloitte violated the FCA, Relator moves for. summary judgment as to liability that • [Deloitte] violated OMB Circular A-87 by failing to adhere to the requirements of the Texas State Plan Amendment which required the use of a time study to set rates for SHARS services; • As a result of [Deloitte’s] actions false claims were made or caused to be made to the government; [Deloitte] made or used a'false record or statement to get a false or fraudulent claim paid or approved by the government; • [Deloitte] acted knowingly. (Relator’s Motion for Partial Summary Judgment (Time Survey v. Time Study), Docket Entry No. 679-1 at p. 1) Asserting that the SPA required, as part of the SHARS rate-setting methodology,' a time study “to capture the time distribution of service provider staff delivering each of the SH[A]RS ... [and that the time study was. to] include direct contact time with the client, indirect time, time spent on administrative/supervisory activities, and time not related to SH[A]RS” (Docket Entry No. 679-3 at p. 41), Relator argues that he is entitled to summary judgment because Deloitte persuaded the state that it could use a. time survey instead of a time study by falsély representing that (1) the HCFA had approved use of the survey method, (2) the survey method was adequate and representative of time spent by the total population of care providers, and (3) the survey responses were reliable and verified. (Docket Entry No. 679-1 at pp. 5-8) (a) No Evidence Deloitte Violated SPA Relator contends that Deloitte’s “use of a [t]ime [s]urvey instead of a [t]ime [s]tudy as required by the Texas State Plan Amendment was a violation of the FCA as a matter of law.” (Docket Entry No. 679-1 at p. 17; see also Relator’s Reply to Deloitte’s Response to Relator’s Summary Judgment Motions, Docket Entry No. 722-1 at pp. 10-15.) Deloitte does not dispute that the SPA .required a time study to be conducted, or that it recommended use of a time survey to satisfy the SPA time study requirement. Instead, Deloitte argues that Relator cannot establish that a time survey was an unacceptable means for satisfying the time study requirement and cannot establish that Deloitte knowingly violated the SPA. Deloitte argues that Relator’s contention that it was required to perform a “time study” instead of a “time survey” has no basis in law or fact because in 1994 no federal or state statute or regulation defined the term “time study,” that Deloitte fully disclosed to TDH its survey approach to measure time, and that Relator cannot present any evidence that Deloitte had not successfully used a survey method of measuring time in other states. (Deloitte Consulting LLP’s Combined Brief in Opposition to Relator’s Motions for Partial Summary Judgment (Indirect Cost) and (Time Survey v. Time Study), Docket Entry No. 699-1 at pp. 8-17 and 33-35) (1) Time Survey v. Time Study Asserting that the SPA required Deloitte to conduct a time study, Relator argues that the phrase “time study” was a term of art that established a requirement that could not be satisfied unless a “period of time [was] selected during which all care providers track all their time spent on a daily basis.” (Docket Entry No. 679-1 at p. 3) Relator has not cited any authority in support of his argument that in 1994 the phrase “ ‘time study’ in the Texas Plan had a very definite meaning.” (Docket Entry No. 722-1 at p. 17) In contrast, Deloitte has presented uncontradict-ed testimony of its expert witness, Norman Brier; the state’s two experienced rate-setters, Kimble and Phelps; De-loitte’s experienced rate-setter, Christen-son; and Relator himself that in 1994 the phrase “time study” was not defined in the SPA, was not defined in any applicable state or federal statute, regulation, or guideline, and was not a term of art. (Docket Entry No. 699-1 -at p. 11) Brier, Deloitte’s expert witness, testified that Relator’s definition of “time study” was not adopted by the federal government until 2006, more than a decade after Deloitte performed the work at issue in this lawsuit, and that “there was no — no common taxonomy regarding the collection of time information in 1993, '94 that I was aware of.” (Brier Deposition at p. 189, Docket Entry No. 699-2 at p. 16) Brier explained that the phrases “time study” and “time survey” “carry no meaning of their own except as further described.” (Brier Deposition at p. 187, Docket Entry No. 699-2 at p. 16) Brier also testified that he believed that the time survey conducted by Deloitte satisfied the SPA’s timé study requirement because “neither time study nor time survey are terms of art,” and because the SPA drafted following De-loitte’s work and approved in 1995 used the undefined phrase “time study” “to describe what Deloitte had actually done.” (Brier Deposition at p. 181, Docket Entry No. 699-2 at p. 14) Kimble, an expert TDH rate-setter, testified that “ ‘time study’ can mean a lot to a lot of people” (Kimble Deposition at p. 53, Docket Entry No. 699-3 at p. 23), that in 1994 the phrase “time study” did not carry an exact definition (Kimble Deposition at p. 174, Docket Entry No. 699-3 at p. 27), that prior to 1997 the term “time study” was not defined in the Texas Administrative Code for any Medicaid services (Kimble Deposition at pp. 172-173, Docket Entry No. 699-3 at pp. 26-27), and that the 1997 amendments to the Texas Administrative Code that defined the phrase “time study” have never been applicable to the SHARS program. (Kimble Deposition at p. 173, Docket Entry No. 699-3 at p. 27) Kimble also testified that “modeling and sampling is a valid way to calculate rates.” (Kimble Deposition at p. 175, Docket Entry No. 699-3 at p. 27) Phelps testified that there was no recognizable difference between a “time study” and a “time survey” (Phelps Deposition at p. 140, Docket Entry No. 699-3 at p. 35), and when asked to describe a “time study” Phelps asked to add another adjective and then stated that “[a] valid time study would be a time study that’s done with a representative sample. A time survey may very well not meet that representative sample criteria.” (Phelps Deposition at p. 141, Docket Entry No. 699-3 at p. 35) Phelps also explained that-the two terms could be used to describe different activities. For example, he agreed that a “time study” could be conducted by enlisting “participants to fill out a daily log, keeping track of what they do over a period of time and then input that data,” that a “time survey’ could be conducted by asking people to “give an estimate of how much time they spend on a daily basis providing.different types of services and doing different types of work,” and that if Deloitte did the latter Deloitte would not have conducted a “time study.” (Phelps Deposition at pp. 141-142, Docket Entry No. 699-3 at pp. 35 — 36) However, when asked if he thought this last-described type of “time survey” would have violated the methodology described in the SPA approved by the federal government Phelps stated, “I just don’t know that, the feds would split hairs quite that closely.” (Phelps Deposition at p. 142, Docket Entry No. 699-3 at p. 36) Christenson testified that in 1994 there was no definition of the phrase “time study” in the SPA, OMB Circular A-87, or in any other state or federal statute, regulation, or guideline, and that there were alternative approaches to performing the requisite “time study.” (Christenson Deposition at pp. 619-622, Docket Entry No. 779-4 at pp. 3-4) When asked if there was anything in the Figliozzi report that caused him to have new thoughts or ideas about his analysis of the SHARS program, Relator responded A. No. I think in one area where he talks about the time study requirement ... he did not mention that there were alternative systems that could be used to perform the same kind of function as random moment sampling that he was talking about. Q. Did he — Was that an error in his report, as you see it? A. No. I think .he did not consider the other possibilities. (Gudur Deposition at pp. 114-115, Docket Entry No. 779-6 at p. 4) This testimony of Relator strongly suggests that even he does not believe the argument advanced in his briefing, i.e., that in 1994 the phrase “ ‘time study’ in the Texas Plan [SPA] had a very definite meaning.” (Docket Entry No. 722-1 at p. 17) Since Relator has failed to cite any authority from which a reasonable fact-finder could conclude that in 1994 the phrase “time study” used in the SPA had a definite meaning or that the time survey, conducted by Deloitte violated that meaning, while Deloitte has presented uncontradict-ed evidence that in 1994 the phrase “time study” was not defined in the SPA, was not defined in any applicable state or federal statute, regulation, or guideline, and was not used as a term of art, Relator has failed to raise a fact question much less establish that he is entitled to judgment as a matter of law that Deloitte’s time survey approach violated the SPA’s time study requirement. (2) Misrepresentations of Fact Relator argués that Deloitte persuaded the state that a time survey could be used to satisfy the SPA’s time study requirement by falsely representing that (1) the HCFA had approved use of the time survey method, (2) the time survey method was adequate and representative-of time spent by the total population of care providers, or (3) the time survey responses were reliable and verified. (Docket Entry No. 679-1 at pp. 5-8) See also Relator’s Reply to Deloitte’s Response to Relator’s Summary Judgment Motions at p. 11, Docket Entry No. 722-1 at p. 17 (arguing that the State of Texas “went along with Deloitte’s ‘survey’ recommendation because Deloitte misrepresented that a ‘survey’ was a legally appropriate replacement for a ‘study’ ”). (i) HCFA Approval of Time Survey Method Citing a March 21, 1994, letter from Deloitte’s David Bankard to TDH’s Joseph Branton, for its statement that “[w]e have been able to satisfy time study requirements in other jurisdictions using a' time survey approach” (Docket Entry No. 679-4 at p. 6), and a response “to comments received from the Texas Medicaid agency on September 6, 1994,” contained in' an unidentified document (Attachment N to Docket Entry No. 679, Docket Entry No. 679-4 at p. 23), Relator argues that De-loitte falsely represented to the State of Texas that the HCFA had approved use of its time survey method. (Docket Entry No. 679-1 at pp. 5-6) Citing page 59 of the Deposition of Kenneth Crow (Attachment D to Docket Entry No. 679, Docket Entry No. 679-2 at p. 24), Relator also argues that “[tjhese false statements resulted in Texas officials incorrectly believing that HCFA had specifically approved the survey approach.” (Docket Entry No. 679-1 at p. 5) The court’s review of the evidence cited by Relator shows that it does not support Relator’s version of the facts. (A) Deloitte’s March 1994 Letter to TDH The March 21, 1994, letter from Ban-kard to Branton states that it was intended to summarize “discussions concerning our [i.e., Deloitte’s] proposals to streamline the reporting requirements to reduce the SHARS administrative burdens to benefit both SHARS participating school districts and the Texas Department of Human Services.” (Attachment K to Docket Entry No. 679, Docket Entry No. 679-4 at p. 4) The letter recognized that the Texas SPA “ties the reimbursement rates to an annual cost reporting process,” contained a proposal aimed at eliminating “the annual cost reporting burden” by implementing a “base year rate methodólogy,” and explained that “[t]he next steps toward implementation of a base year rate methodology is to discuss the- approach with the Dallas regional office of the Health Care Financing Administration (HCFA) for concurrence, and submit a state plan amendment to HCFA for approval.” (Attachment K to Docket Entry No. 679, Docket Entry No. 679^1 at pp. 4-5) Although the third page of the letter contains the allegedly false assertion that “[w]e have been able to satisfy time study requirements in other jurisdictions by using a survey approach” (Attachment K to Docket Entry No. 679, Docket Entry No. 679-4 at p. 6), Relator has not presented any evidence that Deloitte had not used a survey approach to satisfy time study requirements in other jurisdictions. Moreover, since the text of the letter recognizes that the methodology proposed therein was intended to streamline the rate-setting process and identifies the “next steps” to include discussions with the HCFA and submission of a state plan amendment for HCFA approval, even if the statement was false, the state could not reasonably have relied on it to conclude that the HCFA had approved or would necessarily approve use of the proposed methodology in Texas. (B) Deloitte’s Responses to Comments . The second statement that Relator cites in support of its argument that Deloitte falsely represented to the State , of Texas that the HCFA had approved use of the survey method appears in an unidentified document as a response drafted to the comment that “[t]he time study is a survey of best guesses, I’m not sure how HCFA will view this.” (Attachment N to Docket Entry No. 679, Docket Entry No. 679-4 at p. 23) Although “Texas” appears in the document’s header, “Chicago Public Schools” appears in its footer. Since, as Deloitte argues (Docket Entry No. 699-1 at p. 15), Relator has failed to submit any evidence that either identifies this' document or shows that it was ever presented to Texas state officials, the court is not persuaded that the cited statement supports Relator’s argument that Deloitte falsely represented to the State of Texas that its survey approach had been approved by the HCFA in other regions of the country. (ii) Accuracy and Reliability of Time Survey Citing statements contained in' the same unidentified document as the previous statement, Relator argues that Deloitte falsely represented to the State of Texas that the time survey was accurate and reliable. The two statements are (Docket Entry No. 679-1 at pp. 6 — 8):(1) “use of a survey approach is considered accurate in the absence of detailed time and motion studies covering a full year because the survey approach considers the set-up and monitoring time required in different time[s] of the year when direct service intensity may vary” (Attachment N to Docket Entry No. 679, Docket Entry No. 679-4 at p. 19); and (2) “[c]omments received from the clinicians during the survey follow-up process related that the process was well explained- and conceived.” (Attachment N to Docket Entry No. 679, Docket Entry No. 679-4 at p. 19) Relator has not presented any evidence establishing either that in 1994 -use of a time survey was not considered accurate in the absence of detailed time and motion studies covering a full year, or that comments received from clinicians following the survey process did not relate that the process was well explained and conceived. Moreover, since both of these statements appear in the same unidentified document with “Texas” in the header and “Chicago Public Schools” in the footer, Rélator has failed to submit any evidence that this document was ever presented to Texas state officials; and the court is not persuaded that the cited statements support Relator’s argument that Deloitte falsely represented to the State of Texas that its survey approach was accurate and reliable. (3) State Reliance on Alleged Misrepresentations Citing the deposition testimony of Chris-tenson, Crow, and Phelps, Relator argues that “[t]he State of Texas relied on the misrepresentations and false statements by [Deloitte] in setting the SHARS rates.” (Relator’s Motion for Partial Summary Judgment (Time Survey v. Time Study), Docket Entry No. 679-1 at p. 8) None of the cited deposition testimony supports Relator’s contention that Deloitte falsely represented that “the survey was adequate and in compliance with the Texas State Plan Amendment” or that the state relied on Deloitte’s allegedly false statements in setting SHARS rates. (Docket Entry No. 679-1 at p. 8) The cited excerpts from Crow’s deposition do not relate to the time study issue but, instead, to the indirect cost issue addressed in Relator’s second motion for partial summary judgment. (Docket Entry No. 679-2 at pp. 23-24) The cited excerpts from Phelps’ deposition show that Phelps questioned whether the state would be at risk if HCFA were to audit the SHARS program and that Phelps did not recall ever getting a satisfactory answer to that question. (Docket Entry No. 679-2 at p. 3) The cited excerpts from Christenson’s deposition are not included in the attachments to the Relator’s motion, and since neither party has submitted the entire deposition, the court is unable to consider the cited excerpt. None of these citations contain evidence from which a reasonable jury could conclude either that Deloitte made false statements to the State of Texas or that, even if Deloitte did make false statements to the State of Texas, the state relied on those statements in establishing reimbursement rates for the SHARS program. (b) No Evidence of Liability Relator argues that the following “facts ... not in dispute” establish that Deloitte’s use of a time survey instead of a time study as required by the Texas State Plan Amendment constitutes a violation of the FCA as a matter of law: A. The Texas State Plan Amendment called for the performance of a Time Study. (Attachment I, CMS 223) ' B. [Deloitte] knew that a time study was required under the Texas State Plan Amendment. (Attachment P, PLTF 001-0003, Bankard to Bran-ton March 21, 1994) C. [Deloitte] recommended that the time study requirement be abandoned] and a time survey be used to set the SHARS rates. (Attachment P, Pit 001-0003, Bankard to Branton March 21, 1994.) D. In an effort to convince the State of Texas to adopt the time survey approach, [Deloitte] falsely represented to the State of Texas that HCFA had approved use of Time Survey Method (Attachment P, PLTF 00003; Attachment N, PC 0046 (Tab 7); Bankard Deposition: 100:7-25; 107:9-109:10) E. The State of Texas relied upon the false statements of [Deloitte] in adopting the [Deloitte] recommended rates. (Attachment D, Crow Deposition, 38:1-12, 59:12-14; Attachment A, Phelps Deposition; 78:21-78:7)[sic] F. Failure to follow the State Plan Amendment in setting hourly reimbursement rates for SHARS creates a false claim against the United States Government exposing the Texas Medicaid Program to forfeiture of payments by the federal Medicaid program to the state of Texas. (Attachment A, Phelps Deposition, 117:6-15; Attachment B, Bankard Deposition, 212:1-18) (Docket Entry No. 679-1 at pp. 17-18) Citing Bornstein, 423 U.S. 303, 96 S.Ct. 523, 46 L.Ed.2d 514, Relator argues that “[l]ongstanding case law holds that where, as here, the government is supplied with something that does not conform to contractual specifications, an FCA violation has occurred.” (Relator’s Reply to De-loitte’s Response to Relator’s Summary Judgment Motions at p. 13, Docket Entry No. 722-1 at p. 19) There is no dispute that the SPA called for performance of a time study “to capture the time distribution of service provider staff delivering each of the SH[A]RS[,... that the time study was to] include direct contact time with the client, indirect time, time spent on administrative/supervisory activities, and time not related to SH[A]RS” (Docket Entry No. 679-3 at p. 41), and that Deloitte knew that the SPA required a time study for this purpose and recommended that a time survey be used to satisfy the SPA time study requirement. (Bankard Letter of March 21, 1994, Docket Entry No. 679-4 at pp. 5-7) Although Relator argues strenuously that in 1994 when Deloitte conducted the work at issue the phrase “time study” was a term of art that established a requirement that could not be satisfied unless a “period of time [was] selected during which all care providers track all their time spent on a daily basis” (Docket Entry No. 679-1 at p. 3), for the reasons explained above, the court concludes that Relator has failed to present any evidence capable of raising a fact issue much less establishing as a matter of law that in 1994 the phrase “time study” was a term of art that meant what Relator argues it meant. Moreover, Deloitte has presented uncontradicted evidence that in 1994 the phrase “time study” did not constitute a term of art, was not defined in the Texas SPA, and was not defined in any applicable state or federal statute, regulation, or guideline. Although Relator also argues strenuously that Deloitte falsely represented to the State of Texas that the SPA’s time study requirement could be satisfied by use of a time survey, for the reasons explained above, the court concludes that Relator has failed to present evidence showing that the statements he asserts were false were, in fact, false, or that TDH relied on those allegedly false statements in the fall of 1994 when it decided to adopt Deloitte’s recommended reimbursement rates for four of the nine SHARS categories. For these reasons the court concludes that Relator has