Full opinion text
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS SECOND AMENDED COMPLAINT OF QUI TAM PLAINTIFF ROBERT C. BAKER (“RELATOR”) WILLIAM P. JOHNSON, District Judge. THIS MATTER comes before the Court upon Defendants’ Motion to Dismiss Second Amended Complaint of Qui Tam Plaintiff Robert C. Baker (“Relator”), filed August 28, 2009 (Doc. 55). Having considered the parties’ briefs and the applicable law, I find that Defendants’ motion has merit on some of the issues raised, and will be granted on those issues; the motion is otherwise denied, as set forth below. BACKGROUND This is a qui tam case alleging Medicaid fraud based on violations of the False Claims Act, 31 U.S.C. § 3729(a) (“FCA”). Defendants are alleged to have manipulated the Medicaid funding program by a scheme which resulted in the illegal receipt of federally funded Medicaid payments. The Relator seeks the maximum amount allowed to a qui tam plaintiff under § 3730(d). The United States seeks to recover damages and civil penalties from Defendants, in an amount exceeding tens of millions of dollars, arising from false and/or fraudulent statements, records, and claims of FCA violations. In this motion, Defendants seek dismissal of all allegations in the Second Amended Complaint (“SAC”) on the basis of insufficient pleading. The motion also required the Court’s attention to several initial matters, namely: whether jurisdiction over the additional claims in the SAC is barred under 31 U.S.C. § 3730(e)(4)(A), and whether an amended provision of the FCA, which is relevant to this case, should apply to the claims in this case. BACKGROUND Defendant Community Health Systems, Inc. (“CHSI”) is a publicly-traded company incorporated under the laws of the State of Delaware and headquartered in Tennessee. Defendants (collectively “the Hospitals,” or “hospital providers”), are indirect subsidiaries of CHSI, and are licensed acute care hospitals in New Mexico that provide a full range of emergency, inpatient, and outpatient medical services. Each is qualified as a “sole community provider hospital” under New Mexico’s Medicaid program, providing millions of dollars in health care annually to the indigent citizens of the counties they serve. I. Background on Medicaid Funding In order to better understand the parties’ positions and the legal arguments made in this case, it is helpful to gain some understanding of the way Medicaid funding works. Medicaid programs are administered by the States in accordance with Federal regulations, but they are jointly financed by the Federal and State governments. The Federal Government pays its share of medical assistance expenditures to the State on a quarterly basis according to statements of expenditures submitted by the State and a formula used to calculate how much of the total reported expenditures the Federal Government will reimburse the State. In turn, the State pays its share of medical assistance expenditures from state and local government funds in accordance with certain provisions of the Medicaid Act. See 42 U.S.C. § 1396a(a)(2). In New Mexico, two sources of Medicaid funding to hospitals are the Sole Community Provider (“SCP”) fund and the Sole Community Provider Supplemental Payment (“SCP supplemental payment”) program. The State share of SCP funds and SCP supplemental payments to hospitals must be funded by county and local governments. These funds were created by the New Mexico State Legislature in order to provide greater care to the indigent population in counties that are willing to contribute state-share dollars for sole community hospitals servicing them region. The SCP fund is administered by the Human Services Department/Medical Assistance Division and is funded by county and local governments in order to fulfill the State’s obligation to share in Medicaid expenditures with the Federal Government. These locally-generated funds are then used by the State to draw down matching federal funds, which are sent directly to participating hospitals. Through “Sole Community Provider Payments,” New Mexico hospitals serving counties and local communities that contribute to the SCP fund (for the benefit of hospitals serving those communities) receive a federal match of approximately $3 for every $1 the county or local government contributes. In 1991, in order to curb extraordinary increases in federal Medicaid expenditures resulting from states trying to shift portions of their funding obligations to the federal government, Congress prohibited the use of health-care provider donations to fund state Medicaid spending, because such donations caused disbursement of federal matching funds with no true state contribution. According to the SAC, “donations” were made where counties could not meet the State’s funding requirements to be able to pledge contributions on Defendants’ behalf, in order for the State to be eligible for federal matching funds. Sec.Am.Compl., ¶ 57. The Medicaid Act’s implementing regulations require a reduction in Federal Financial Participation (“FFP”) in Medicaid expenditures if a state receives donations from health care providers unless the donations are “bona fide.” 42 C.F.R. §§ 433.66, 433.74(d). The FFP is calculated based on the state’s qualifying Medicaid expenditures, which themselves are funded in part by transfers of funds from counties within the state (“Inter-Governmental Transfers” or “IGT’s”). A provider-related donation is “bona fide ” only if it has no direct or indirect relationship to Medicaid payments to the health care provider, which means that the donations cannot be returned to the provider under a “hold harmless provision or practice.” 42 C.F.R. §§ 433.54(a), (b). Plaintiff alleges that Defendants’ donations had a direct or indirect relationship to the Medicaid payments they received under the Sole Community, and consequently were non-bona fide donations. This qui tam case is based on Defendants’ alleged pursuit of Medicaid payments from the Federal Government through improper manipulation of the New Mexico’s Sole Community Provider Fund and Sole Community Provider Supplemental Payments programs, in violation of the FCA, 31 U.S.C. § 3729(a). II. Defendants’ Alleged Conduct Plaintiff asserts violations of the FCA against Defendants. Under 31 U.S.C. § 3729(a)(1)(A) [formerly § 3729(a)(1) ], liability is imposed for any person who “knowingly presents, or causes to be presented, a false or fraudulent claim for payment or approval.” Under § 3729(a)(1)(B) [formerly § 3729(a)(2) ], liability is imposed for any person who “knowingly makes, uses, or causes to be made or used, a false record or statement material to a false or fraudulent claim.” The SAC alleges that Defendants provided New Mexico counties with purported “donations” that in fact were “pass-through” payments to fund the counties’ contributions to the SCP fund, which is used to fund the State’s share of the SCP program (“donation” claims). Defendants purportedly had no charitable intent in making the “donations.” Rather, the payments simply enabled the counties to pledge funds to the SCP fund, and in turn to cause New Mexico’s Medical Assistance Division to return to Defendants the purported donation, along with the federal matching funds that the donations fetched (three times the value of the donations themselves), to maximize payments Defendants received for providing care to Medicaid-eligible patients. Because Defendants knew that their contributions to the SCP fund were ineligible for federal matching, they falsely characterized those payments as “unrestricted donations” in an effort to make them appear bona fide. The “donation” claims are asserted as violations of both § 3729(a)(1)(A) and § 3729(a)(1)(B) in Counts I and II of the SAC. Defendants are also alleged to have fraudulently overstated their costs of providing uncompensated indigent care to obtain federally subsidized Medicaid funds (“inflation” claims). As a result of the alleged conduct, New Mexico claimed and obtained tens of millions of dollars in federal funds in reimbursement for the Medicaid payments to Defendants, in violation of the federal prohibition on federal funding where states or counties receive nonbona fide donations from providers. Defendants characterize these “inflation” claims as the “new allegations” which were added to the SAC. Defendants also note that the SAC refers to three additional New Mexico hospital corporation affiliates which were acquired up by Defendant CHSI since the filing of the First Amended Complaint, but which are not named Defendants (“former Triad Hospitals”). III. Standard of Review The instant motion challenges the viability of all of Relator’s claims in the SAC, but moves to dismiss the “inflation” claims — the allegations added in the SAC — on jurisdictional grounds. The parties disagree on whether the Court should address the jurisdictional issues under Rule 12(b)(1) or Rule 56 of the Federal Rules of Civil Procedure. Defendants contend that Rule 12(b)(1) should be used, and that the Court consider, in addition to the allegations in the SAC, also consider a copy of the counterclaims asserted in a state court case out of the Fifth Judicial District in Chaves County, New Mexico which Defendants attach as an exhibit to their motion. Relator submits two declarations as attachments to the response for the Court’s consideration, maintaining that Rule 56 is appropriate in this instance. Rule 12(b)(1) of the Federal Rules of Civil Procedure empowers a court to dismiss a complaint for “lack of jurisdiction over the subject matter.” Fed.R.Civ.P. 12(b)(1). When making a Rule 12(b)(1) motion, a party may go beyond the allegations in the complaint to challenge the facts upon which jurisdiction depends by relying on affidavits or other evidence properly before the court. See New Mexicans for Bill Richardson v. Gonzales, 64 F.3d 1495, 1499 (10th Cir.1995); Holt v. United States, 46 F.3d 1000, 1003 (10th Cir.1995). A court has broad discretion to consider affidavits or other documents to resolve disputed jurisdictional facts under rule 12(b)(1). Holt, 46 F.3d at 1003. In those instances, a court’s reference to evidence outside the pleadings does not necessarily convert the motion to a Rule 56 motion. Id. (citation omitted). However, when subject matter jurisdiction is dependent upon the same statute which provides the substantive claim in the case, the jurisdictional claim and the merits are considered to be “intertwined,” and when both parties submit evidence beyond the pleadings, a motion to dismiss is properly characterized as one for summary judgment. Trainor v. Apollo Metal Specialties, Inc., 318 F.3d 976, 978 (10th Cir.2002); Jencks v. Modern Woodmen of America, 479 F.3d 1261, 1263 n. 2 (10th Cir.2007). The nature of this case, as well as Tenth Circuit precedent, dictates that conversion to Rule 56 is appropriate, because a challenge under the FCA’s jurisdictional bar set out in § 3730(e)(4) is considered to be “necessarily intertwined with the merits” and is, therefore, properly treated as a motion for summary judgment: As the parties correctly note, the statutory provisions of 31 U.S.C. § 3730(e)(4) implicate the district court’s subject matter jurisdiction. Jurisdictional challenges brought under that section arise out of the same statute creating the cause of action (i.e., the FCA) and are thus necessarily intertwined with the merits of the case ... As such, the court’s jurisdictional inquiry should be resolved under Federal Rule of Civil Procedure 12(b)(6) or, after proper conversion into a motion for summary judgment, under Rule 56 ... In the present case, the district court apparently treated defendant’s motion as a motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1). However, because the jurisdictional question was intertwined with the merits, and because the court relied on affidavits and other evidentiary material submitted by the parties, Spectrum’s motion to dismiss should have been treated as one for summary judgment under Rule 56(c).... Accordingly, we exercise our plenary power and consider Spectrum’s motion as a motion for summary judgment......whether we consider Spectrum’s motion as a motion to dismiss under Rule 12(b)(1) or a motion for summary judgment, Appellants’ burden remains essentially the same — they must present affidavits or other evidence sufficient to establish the court’s subject matter jurisdiction by a preponderance of the evidence.... See Trentacosta v. Frontier Pacific Aircraft Indus., Inc., 813 F.2d 1553, 1559 (9th Cir.1987) (noting that nonmovant’s burden under Rule 12(b)(1) is essentially the same as Rule 56(e)’s requirement that the nonmoving party to a motion for summary judgment set forth specific facts, beyond his pleadings, to show that a genuine issue of material fact exits); New Mexicans for Bill Richardson v. Gonzales, 64 F.3d 1495, 1499 (10th Cir.1995) (noting that when a Rule 12(b)(1) motion challenges the substance of a complaint’s jurisdictional allegations, the nonmovant must “present affidavits or any other evidence necessary to satisfy its burden of establishing that the court, in fact, possesses subject matter jurisdiction.” (citation omitted)) U.S. ex rel. Hafter D.O. v. Spectrum Emergency Care, Inc., 190 F.3d 1156, 1159-60 & n. 5 (10th Cir.1999). The Court will thus consider the jurisdictional argument under the usual summary judgment standard, thereby allowing a consideration of the declarations which the Relator offers, as well as the state court lawsuit offered by Defendants. See Kaul v. Stephan, 83 F.3d 1208, 1212 (10th Cir.1996) (summary judgment is appropriate if the pleadings, depositions, discovery, and admissions on file, together with any affidavits, show no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law). I. Jurisdictional Argument — 31 U.S.C. § 3730(e)(4)(A). Defendants contend that Relator’s new allegations regarding purportedly inflated funding requests and the former Triad Hospitals are jurisdictionally barred because they are based upon publicly disclosed allegations of which the Relator is not the original source. The FCA jurisdictionally bars a relator’s action if it is based on allegations or transactions already in the public domain — unless the relator can show that he is an “original source” of the information on which the allegations are based. In re Natural Gas Royalties Qui Tam Litigation, Grynberg v. Pacific Gas and Electric Co., et al., 562 F.3d 1032, 1034 (10th Cir.2009). Defendants contend that the new allegations, or “inflation” claims set out in the SAC are jurisdictionally barred, because they were previously advanced in a prior state court proceeding, and because they are based upon the allegations in the First Amended Complaint. Defendants rely on the jurisdictional provision of the FCA upon which states that: No court shall have jurisdiction over an action under this section based upon the public disclosure of allegations or transactions in a criminal, civil, or administrative hearing, in a congressional, administrative, or Government Accounting Office report, hearing, audit, or investigation, or from the news media, unless the action is brought by the Attorney General or the person bringing the action is an original source of the information. 31 U.S.C. § 3730(e)(4)(A) (emphasis added). The purpose of this jurisdictional bar is to accommodate the primary goals of the FCA, which is to promote private citizen involvement in exposing fraud against the government and at the same time, to prevent parasitic suits by opportunistic latecomers who add nothing to the exposure of fraud. U.S. ex rel. Reagan v. East Texas Medical Center Regional Healthcare System, 384 F.3d 168, 174 (5th Cir.2004) (citing United States ex rel. Rabushka v. Crane Co., 40 F.3d 1509, 1511 (8th Cir.1994)). This inquiry involves four separate questions: (1) whether the alleged “public disclosure” contains allegations or transactions from one of the listed sources; (2) whether the alleged disclosure has been made “public” within the meaning of the False Claims Act; (3) whether the relator’s complaint is “based upon” this “public disclosure”; and, if so, (4) whether the relator qualifies as an “original source” under section 3730(e)(4)(B). United States ex rel. Fine v. MK-Ferguson Co., 99 F.3d 1538, 1544 (10th Cir.1996). A court must address the purported public disclosure before analyzing whether the relator is an original source. If the answer to any of the first three questions is “no,” the inquiry is complete and § 3730(e)(4) does not bar the relator’s complaint. However, if each of the first three questions is answered “yes,” then the court must consider whether the relator qualifies as an “original source” under section 3730(e)(4)(B). Id. at 1004; see U.S. ex rel. Fine, 99 F.3d at 1544; In re Natural Gas Royalties, 562 F.3d 1032, 1039 (10th Cir.2009) (accord). An “original source” has “direct and independent knowledge of the information on which the allegations are based and has voluntarily provided the information to the Government before filing an action ... based on the information.” § 3730(e)(4)(B). Rockwell Intern. Corp. v. U.S., 549 U.S. 457, 457, 127 S.Ct. 1397, 167 L.Ed.2d 190 (2007). A. Whether New Allegations are Based on Prior Public Disclosure Defendants contend that the new allegations regarding inflated charges and the former Triad Hospitals must be analyzed as discrete claims subject to the jurisdictional analysis under § 3730(e)(4)(A). They argue that the allegations in these claims are barred based on allegations previously made in the Relator’s First Amended Complaint as well as putative class action “counterclaims” which was filed in the Fifth Judicial District in Chaves County, Roswell Hosp Corp. v. Sisneros, Case NO. D-504-CV-200800485 (“Sisneros ” case, attached as Ex. 1 to Doc. 56). Relator responds that the new allegations are simply amendments to a former complaint, and these amendments add detail concerning a previously pled claim. The initial inquiry here is whether the new allegations in Counts I and II of the SAC are “based upon” prior public disclosures. The “public disclosure” analysis is not a rigorous one. The Tenth Circuit treats it as a “threshold analysis ... intended to be a quick trigger for the more exacting original source analysis.” United States ex rel. Grynberg v. Praxair, Inc., 389 F.3d 1038, 1051 (10th Cir.2004). The idea behind the provision is that, “once the government knows the essential facts of a fraudulent scheme, it has enough information to discover related frauds.... ” See U.S. ex rel. Boothe v. Sun Healthcare Group, Inc., 496 F.3d 1169, 1173 (10th Cir.2007) (citing Grynberg, United States ex rel. v. Koch Gateway Pipeline Co., 390 F.3d 1276, 1279 (10th Cir.2004)). The term “based upon” is defined to mean “supported by” and has been held to encompass actions “even partly based upon” prior public disclosures. U.S. ex rel. Boothe v. Sun Healthcare Group, Inc., 496 F.3d 1169 (C.A.10 (N.M.),2007). Moreover, it is not necessary that the information concerning allegations be potentially accessible to any member of the public, only that it be accessible to some members of the public, in order to be considered publicly disclosed within the meaning of 31 U.S.C.A. § 3730(e)(4)(A). See U.S. ex rel. Doe v. John Doe Corp. 960 F.2d 318 (2nd Cir.1992). Defendants argue that both the Sisneros case and the Relator’s First Amended Complaint constitute “prior public disclosures.” 1. Can the Court Consider a State Court Case in the Analysis ? Defendants point to case law which supports their position that state court proceedings may be considered in an analysis of the FCA’s public disclosure bar. See U.S. ex rel. Hafter D.O. v. Spectrum Emergency Care, Inc., 190 F.3d 1156, 1161 (10th Cir.1999) (“Our reading of § 3730(e)(4)(A), together with other provisions of the FCA, does not convince us this statute’s reference to “civil, criminal and administrative hearings” applies only to federal proceedings, and not state proceedings .... ”); U.S. ex rel. Reagan v. East Texas Medical Center Regional Healthcare System, 384 F.3d 168, 174 (5th Cir.2004) (finding allegations disclosed in state court lawsuit were publicly disclosed under the FCA). In Reagan, the Fifth Circuit stated that “[a]ny information disclosed through civil litigation and on file with the clerk’s office should be considered a public disclosure of allegations in a civil hearing for the purposes of section § 3730(e)(4)(A)” and “[t]his includes civil complaints.... ” The Government contends that the Sisneros case cannot be used as a “prior public disclosure” because the statutory language applies only to federal — not state — proceedings. However, the case on which the Government relies for this contention is inapposite. See U.S. ex rel. Wilson v. Graham County Soil & Water Conservation Dist., 528 F.3d 292 (4th Cir.2008). The type of disclosure considered in Wilson case was very different from what is at issue here. Section 3730(e)(4) has two categories of listed disclosure types. Category 1 relates to “a disclosure of allegations or transactions in a criminal, civil, or administrative hearing....” Category 2 concerns any “congressional, administrative, or Government Accounting Office report, hearing audit, or investigation ...” In Wilson, the court found that audit reports which were provided only to state and local officials did not constitute “administrative reports” within meaning of the FCA’s public disclosure bar because the term “administrative report” was listed squarely in the middle of a list of obviously federal sources (category 2). The instant case is quite different from the Wilson case because it involves material from a state court proceeding, which clearly belongs in “category 1,” and which is not limited in any way to federal sources. The Government asks the Court to defer ruling on this issue until the Wilson case is heard on appeal by the U.S. Supreme Court. Given the case law already available on this issue, as well as the inapposite nature of Wilson, deferring ruling on this jurisdictional issue will not be helpful. Accordingly, the Court finds that the Sisneros case may be included in considering a “disclosure of allegations or transactions in a criminal, civil or administrative hearing” under § 3730(e)(4), and in deciding whether the “inflation” claims in the SAC are “based upon” the allegations made in the Sisneros suit. None of the parties has raised the issue concerning whether it makes any difference that there was only one defendant in the Sisneros case — the Roswell Hospital Corporation d/b/a Eastern New Mexico Medical Center — where the instant case includes several other defendants in addition to the Roswell Hospital Corporation. The Court assumes that a complete identity of parties is not required, since the purpose of the public disclosure requirement is to give the Government enough information to discover related frauds. Naming only one defendant would thus put the Government on sufficient notice to go after other hospitals, particularly other hospitals within the same hospital system. See, e.g. U.S. ex rel. Boothe v. Sun Healthcare Group, Inc., 496 F.3d 1169, 1173 (10th Cir.2007) (public disclosure bar applied where prior qui tam suits alleged similar abuses by defendant’s affiliates). 2. First Amended Complaint as a basis for “prior public disclosure” The Relator’s position is that the SAC simply adds details about the previously pled fraud scheme outlined in the First Amended Complaint, and thus, the First Amended Complaint should not be considered as a prior public disclosure. However, § 3730(e)(4) envisions subjecting an amended complaint to the same scrutiny as an initial complaint: In our view, the term “allegations” [in § 3730(e)(4) ] is not limited to the allegations of the original complaint. It includes (at a minimum) the allegations in the original complaint as amended. The statute speaks not of the allegations in the “original complaint” (or even the allegations in the “complaint”), but of the relator’s “allegations” simpliciter. Absent some limitation of § 3730(e)(4)’s requirement to the relator’s initial complaint, we will not infer one. Such a limitation would leave the relator free to plead a trivial theory of fraud for which he had some direct and independent knowledge and later amend the complaint to include theories copied from the public domain or from materials in the Government’s possession. Even the Government concedes that new allegations regarding a fundamentally different fraudulent scheme require reevaluation of the court’s jurisdiction. Rockwell Intern. Corp. v. U.S., 549 U.S. 457, 473, 127 S.Ct. 1397, 1408, 167 L.Ed.2d 190 (2007). The Relator insists that the new allegations in the SAC are part of the previously pled cause of action because a “claim” or “cause of action” includes all allegations arising from the same transaction, event, or series of transactions. Wilkes v. Wyoming Dept. of Employment Div. of Labor Standards, 314 F.3d 501, 504 (10th Cir.2002). The Wilkes case addresses the “transactional approach” to claim preclusion, and is not relevant to an analysis under § 3730(e)(4). Still, the Court finds some merit in the Relator’s argument that § 3730(e)(4) should not bar new allegations that add detail to a pre-existing cause of action — as long as the new allegations can withstand scrutiny on their own as required under § 3730(e)(4). Defendants do not present any case law, nor can the Court find any, which characterizes an initial complaint as the “prior public disclosure.” On the other hand, the Relator points to an unpublished federal district court case out of the eastern district of Washington which supports his position: United States ex rel. Trice v. Westinghouse Hanford Co., unpubl. opin., 2000 WL 34024248 (E.D.Wash.,2000). In that case, the court found that the relator’s amended complaint was “a continuation of the original joint Complaint” which “delved into these allegations [of fraudulent fee proposals and fraudulent cost savings initiatives and incentive fees ... ] in greater detail” and included “more supporting information.” Because the amended complaint was a continuation of the original joint initial public disclosure, the Trice court found that it was not affected by the ban created by public disclosure provisions in the FCA. The position espoused by Defendants would result in a jurisdictional bar to any amendment to a complaint and creates a kind of reverse bootstrapping: an amended complaint would be barred simply because a previous complaint had been filed. This position does not comport with the objective behind § 3730(e)(4), which is to prevent filings by opportunistic late-comers to a lawsuit. 3. Whether the “New Allegations” made in the SAC are based on prior public disclosures? In light of my findings thus far, the “prior public disclosure” inquiry will proceed on whether the new allegations in the SAC are based on those made in the Sisneros case, which was filed, or “publicly disclosed” on April 13, 2009 (attached as Ex. 1 to Defts’ Mot, Doc. 55), three months prior to the Relator’s filing of the SAC on July 2, 2009. In determining whether the new allegations are based upon prior public disclosure, the Court may consider all the relevant disclosures. See e.g., U.S. ex rel. Reagan v. East Texas Medical Center Regional Healthcare System, 384 F.3d 168, 174 n. 8 (5th Cir.2004) (finding that the entire basis of plaintiffs claim had been disclosed within the meaning of the FCA when the court considered other disclosures in addition to the state law claim). The test is whether a “substantial identity” exists between the publicly disclosed allegations or transactions and the qui tam complaint — or, in this case, between the “inflation” claim allegations in the SAC and the similar allegations made in the Sisneros ease. See, e.g., U.S. ex rel. Grynberg v. Praxair, Inc., 389 F.3d 1038, 1051 (10th Cir.2004) (finding substantial identity between qui tam complaint and amended complaint). Based on the Court’s review of the SAC, the new claims asserting “inflation” claims are: ¶ 93(g) & (h) in Count I of the SAC, alleging violations of § 3729(a)(1)(A) and ¶ 97(e) & (f), in Count II of the SAC, alleging violations of § 3729(a)(1)(B). Defendants list the new allegations as SAC ¶¶ 68, 74, 76, 93(f)-(g), 97(f). See Doc. 55 at 5. However, the Court views ¶¶ 74, 76 and 93(f) as allegations which are connected with “donation” claims rather than “inflation” claims. Also, ¶ 97(e), not listed by Defendants as a “new allegation,” appears to be an “inflation” claim as well. For Count I: ¶ 93(g) and (h): (g) submitting to the counties that Defendants’ hospitals served statements regarding purported “uncompensated” levels of indigent care that substantially overstated the properly reportable cost to the hospital’s of providing relevant care and thus that did not provide fair notice to those counties when [SCP fund] program payments had grown to the point that they substantially exceeded the properly reimbursable cost to defendants of providing care eligible for such program payments; and (h) inflating hospital charges used to report “uncompensated care” at outrageous levels designed primarily to game Medicaid, Medicare and other insurers’ reimbursement formulas and systems; For Count II: ¶ 97(e) and (j): (e) Causing New Mexico to submit statements of state Medicaid spending that are inaccurate as to the proper amount of such spending entitled to FFP payments; and (f) Providing county officials with statements regarding uncompensated indigent care that create the false impression that, at past reimbursement levels, Defendants’ hospitals would not already being paid the full cost to the hospitals of providing eligible care to Medicaid eligible patients and using such misleading reporting as the basis for seeking and obtaining approval and payment of ever increasing amounts from [SCP fund] programs that now far exceed the properly reimbursable cost to Defendants of providing covered care. The Sisneros ease is posturally different from the instant case. In the instant case, the hospital corporations are Defendants. However, in Sisneros, a hospital corporation is the plaintiff, and Chaves County residents are the defendants. Thus, the allegations made by the Relator in this case in the SAC are analogous to the counterclaims asserted by defendants in the Sisneros lawsuit. The question is whether these counterclaims contain allegations which have publicly disclosed the new allegations contained in the SAC of our case. The Sisneros counterclaims also included “donation” claims as well as “inflation” claims, alleging that the defendant’s hospitals had been investigated concerning unlawful donations to Chaves County, which resulted in exponential increases in funding requests and the receipt by the hospital defendant of tens of millions of federal and state monies. Sisneros Counterclaims, Defts’ Ex. 1, ¶¶ 23-26. The “prior public disclosure” inquiry in this ease is limited to the “inflation” claims which are being challenged by Defendants. Under the relevant case law, the Court finds that the allegations in the Sisneros counterclaims are sufficient to constitute a “prior public disclosure” of the “inflation” claims asserted in the SAC. The Court notes that the term “based upon” does not require that the allegations be completely alike, but may be even “partly based upon” prior public disclosures. See Boothe, 496 F.3d at 1173-74 (rejecting that relator’s “time, place, and manner” distinction was sufficient to escape public disclosure bar and finding claims materially identical to previously disclosed allegations in other qui tarn actions). The Sisneros counterclaims by the putative class members allege that defendant submitted false or improper claims and the manipulation of “gross billings” and “self-pay billings” reported to the county in order to receive a multiplication of funds paid back to the hospital. Counterclaim ¶¶ 23-25. Under the alleged scheme, the Hospitals overcharged the local uninsured population in order to create the false impression that, at past reimbursement levels, they were not being paid the full cost of providing eligible care to Medicaid eligible patients. The hospitals allegedly used an “unconscionable” two-tiered pricing scheme to overcharge uninsured or self-pay patients in order to make up for what the hospitals cannot get for the same treatment of insured patients. ¶¶ 21-23. The counterclaim also asserts that the hospitals used the putative class members to create artificial and fraudulent “justification” for its receipt of millions of dollars of Sole Community Provider funds. The new allegations in SAC state that Defendants are making money from Medicaid funds, based on falsely reported inflated annual costs incurred in providing indigent care. The Sisneros counterclaim asserts allegations regarding inflated charges and costs which were manipulated by the defendants hospitals in order to result in a multiplication of funds that were paid directly back to those hospitals. The SAC’s new allegations regarding inflated charges and costs are thus facially “supported by” and therefore “based upon” the Sisneros allegations. The new allegations represent more than the Relator just “fleshing out” the allegations in the First Amended Complaint. As a result, the Court finds that the “inflation” claims newly asserted in the SAC were derived from a “prior public disclosure”- — specifically, the Sisneros counterclaim. This finding requires that the Court proceed to the next step of the jurisdictional analysis under § 3730(e)(4), which is to determine whether the relator qualifies as an “original source” under section 3730(e)(4)(B). See United States ex rel. Fine v. MK-Ferguson Co., 99 F.3d 1538, 1544 (10th Cir.1996). A Allegations Against Former Triad Defendants Defendants’ jurisdictional argument encompasses Relator’s claims against hospitals which Defendant CHS had acquired since the filing of the previously filed complaint. In paragraph 11 of the SAC, the Relator notes for the first time that Defendant CHS is the owner and parent company of the New Mexico hospital corporations named as Defendants, and that CHS has acquired three additional hospitals. Defendants argue that the Relator’s claims against these “former Triad Hospitals” are identical to the allegations against Defendant Hospitals set forth in the First Amended Complaint and are thus jurisdictionally barred. For reasons I have given above, assertions regarding these entities are not barred by virtue of the sole fact that a previous complaint had been filed against Defendant CHS. The former Triad Hospitals are not named as Defendants in the SAC, and are therefore not considered added parties. They are mentioned in the SAC in order to further define Defendant CHS. Thus, claims against the former Triad Hospitals are barred only to the extent that claims are barred against the already-named Defendants. I have already found that the “inflation” claims newly asserted in the SAC were based upon a “prior public disclosure” in the Sisneros counterclaim. This finding necessarily applies to any claims that would include the “former Triad Hospitals.” Jurisdiction under § 3730(e)(4) is not barred if the Relator can show he is the “original source” of the allegations. B. Original SourcefVoluntary Disclosure An “original source” “has direct and independent knowledge of the information on which the allegations are based and has voluntarily provided the information to the Government before filing an action ... based on the information.” § 3730(e)(4)(B). The term “information” means information on which the relator’s allegations are based rather than the information on which the publicly disclosed allegations that triggered the public-disclosure bar are based. Rockwell Intern. Corp. v. U.S., 549 U.S. at 458, 127 S.Ct. 1397. However, a “relator need not ... have in his possession knowledge of the actual fraudulent conduct itself; knowledge ‘underlying or supporting’ the fraud allegation is sufficient.” Kennard v. Comstock Resources, Inc., 363 F.3d 1039, 1044-45 (10th Cir.2004). 1. Original Source Under Tenth Circuit authority, knowledge is “direct and independent” if it is “marked by the absence of an intervening agency,” and “unmediated by anything but the relator’s own labor.” In re Natural Gas Royalties Qui Tam Litigation, 467 F.Supp.2d 1117, 1146-1147 (D.Wyo.2006) (citing United States ex rel. Fine v. MK-Ferguson Co., 99 F.3d 1538, 1547 (10th Cir.1996)). Independent knowledge is knowledge which is not secondhand; rather, a relator must demonstrate that he discovered the information on which the allegations are based through his own efforts and not by the labors of others, and that the information was not derivative of the information of others. United States ex rel. Hafter v. Spectrum Emergency Care, Inc., 190 F.3d 1156, 1162 (10th Cir.1999). “To establish original source status knowledge, a qui tam plaintiff must allege specific facts — as opposed to mere conclusions — showing exactly how and when he or she obtained direct and independent knowledge of the fraudulent acts alleged in the complaint and support those allegations with competent proof.” Id. Secondhand information, speculation, background information or collateral research do not satisfy a relator’s burden of establishing the requisite knowledge. Id. at 1162-63. The “original source” requirement must be satisfied “through all stages of the litigation” — which means that the allegations in the SAC must also comply with the requirement. See Rockwell Intern. Corp. v. U.S., 549 U.S. 457, 473, 127 S.Ct. 1397, 167 L.Ed.2d 190 (2007). Defendants contend that the Relator has not alleged facts showing either “direct” or “independent” knowledge of the information underlying the new allegations in the SAC regarding inflated charges and hospital reimbursement claims to counties. However, the SAC does provide detail as to how the Relator came to realize not only that the Hospitals’ “donations” were sham transactions, and describes the kinds of false records or statements that were made in the form of letters to the county. See SAC, ¶¶ 45-58. Read narrowly, the factual allegations in the SAC are generally more relevant to the “donation” claims than to the claims regarding inflated annual costs incurred in providing indigent care. In this way, there is some merit to Defendants’ argument that the Relator has not made the requisite showing as the original source for the “inflation” claims within confines of the SAC. However, the declarations submitted by the Relator preclude judgment in favor of Defendants on this issue. As Revenue Manager for CHS from 2001-2004, the Relator, Robert Baker, was responsible for preparing and maintaining information concerning actual cost-to-charge rations for a number of CHS Hospitals. Doc. 66, Ex. 1 (Baker Deck). Part of his job duties required that he gather the information concerning the actual costs that the Hospitals incurred and the actual charges that were billed to payors. The Relator himself observed that most CHS Hospitals increased their charge rates by 5-10% (or more) several times a year, and that these increases generally did not correspond to cost increases. These cost-to-charge ratios were also used to calculate “outlier” payments, which compensate Medicare providers for furnishing care that is substantially more expensive than expected for a similarly-situated patient. The Relator received the reports detailing the cost-to-charge ratios used to calculate these “outlier” payments. He also raised the issue with Larry Carlton, a Vice President at CHS, who told the Relator that CHS was entitled to change its rates as much or as often as it wished, and could generate increased revenue from outlier claims by doing so. The statements made in the Relator’s declaration qualify as evidence that the Relator in this case had “direct and independent knowledge” of the alleged “inflation” claims. 2. Voluntary Disclosure The other prong of the “original source” requirement is the “voluntary disclosure” requirement — whereby a relator must have disclosed “the essential elements or information on which the qui tam allegations are based” before filing a complaint containing those allegations. U.S. ex rel. King v. Hillcrest Health Center, Inc., 264 F.3d 1271, 1280 (10th Cir.2001): “More must be done to qualify as an original source than to file the action. The government must be voluntarily notified beforehand.” .... The pre-filing voluntary disclosure requirement encourages private individuals to come forward with their information of fraud “at the earliest possible time and ... discourage^] persons with relevant information from remaining silent” (cited case omitted). Besides giving the government more time than the post-filing period to act on the fraud allegations, this requirement also gives the government the chance “to consider whether there has already been public disclosure of the matters, whether the prospective relator in fact possesses direct and independent knowledge of the matters he is disclosing, and whether he is making disclosure on a voluntary basis.... Hillcrest Health Center, Inc., 264 F.3d at 1280-1281. Defendants do not exercise much of a challenge to this prong. Indeed, the declaration provided by the Relator’s attorney, Peter Chatfield, satisfies the “voluntary disclosure” requirement (Doc. 66, Ex. 2, Chatfield’s Deck). Mr. Chatfield states that he provided Robert McAuliffe, an attorney from the Department of Justice (“DOJ”) with a draft of the SAC over a month before it was filed. Prior to the filing of the SAC, Mr. Chatfield engaged in discussions of the draft, including the “inflation” claims, with Mr. McAuliffe and obtained the Government’s stipulation for the lodging and filing of the complaint. The Court notes that § 3730(e)(4) is not very specific in the “voluntary disclosure” requirement. See Hillcrest Health Center, Inc., 264 F.3d at 1280 (“The statute does not lay out and the courts have not settled on what it means to have ‘voluntarily provided the information to the Government before filing an action.’ ”). At any rate, I find that Mr. Chatfield’s declaration statements make the necessary showing that the Relator voluntarily disclosed the “essential elements” of “information” on which the qui tam allegations of the SAC are based. Defendants contend that the Relator cannot be an “original source” for any information he observed or saw in 2006, two years after his employment ended at CHS. For example, in ¶ 10 of his declaration, the Relator states that he saw a document in 2006 sent by Eastern New Mexico Medical Center (“ENMMC”) to Chaves County indicating that CHS’s hospital were seeking reimbursement from New Mexico for the cost of providing “uncompensated indigent care” on the basis of charges, rather than costs. The actual dates of the Relator’s employment at CHS has no critical significance, and information which the Relator became privy is not jurisdietionally barred for consideration solely because it became available to him only after his employment ended. The relevant case law “[reveals] no requirement that a relator be a corporate insider.” Kennard v. Comstock Resources, Inc., 363 F.3d 1039, 1044-45 (10th Cir.2004); United States ex rel. Stone v. Rockwell Int’l Corp., 282 F.3d 787, 803 (10th Cir.2002) (fact that relator alleging defective process for manufacturing “pondérete” was not physically present at the nuclear weapons plant when production began is immaterial to relevant question of whether relator had direct and independent knowledge of the information underlying his claim), rev. on other grds. by Rockwell Intern. Corp. v. U.S., 549 U.S. 457, 127 S.Ct. 1397, 167 L.Ed.2d 190 (2007). A relator need only possess “direct and independent knowledge of the information on which the allegations are based.” Id. (quoting 31 U.S.C. § 3730(e)(4)(B)). Accordingly, the Court finds that the Relator has sufficiently shown that he is the “original source” for the “inflation” claims in the SAC challenged by Defendants, and that he “voluntarily” disclosed the information as required under the FCA’s jurisdictional provision. Defendants seek dismissal of the SAC on the basis of Rule 12(b)(6) as well as Rule 8(a). However, the parties disagree on whether an amended provision of the FCA applies to Plaintiffs claims, and the Court must first resolve this issue before proceeding further. II. Retroactivity of FERA provision The Fraud Enforcement Recovery Act of 2009 (“FERA”), Pub. L. No. 111-021, § 4(a)(1), 123 Stat. 1617, 1621 (May 20, 2009), amended 31 U.S.C. § 3729(a)(2) (1986) and recodified it as 31 U.S.C. § 3729(a)(1)(B) (2009), removing the requirement that a false record or statement have been made “to get” a claim paid by the federal government. See Pub L. No. 111-021, § 4(a)(1)(B). Before FERA, § 3729(a)(2) stated that liability attaches when a defendant “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.” The post-FERA version of the provision (now § 3729(a)(1)(B)) states that liability exists for any person who “knowingly makes, uses, or causes to be made or used, a false record or statement material to a false or fraudulent.” The new version broadens the required intent required to trigger liability, because it creates the possibility of FCA liability even where a false statement or records is not made “for the purpose” of getting a false or fraudulent claim paid or approved by the federal government. One year before the FERA amendments were passed, the United States Supreme Court decided Allison Engine Co. v. United States ex rel. Sanders, 553 U.S. 662, 128 S.Ct. 2123, 170 L.Ed.2d 1030 (2008) {Allison Engine I), which held that the FCA required a party asserting § 3729(a)(2) liability to demonstrate that the defendant intended that the government itself pay the claim, rather than just show that a false statement resulted in the use of government funds to pay a false or fraudulent claim. Id. at 2128. The Allison court held that “to get” in former section § 3729(a)(2) (now § 3729(a)(1)(B)) in the statutory language “denotes purpose,” a person must have the purpose of getting a false or fraudulent claim “paid or approved by the Government” in order to be liable. At the same time, the court emphasized that “a defendant is not answerable for anything beyond the natural, ordinary, and reasonable consequences of his conduct” and that there needs to be a “direct link” between the defendant’s conduct and the Government’s decision to pay or approve a false claim. Id. at 2130. Thus, if a subcontractor made a false statement to a private entity but does not intend for the Government to rely on the statement as a condition of payment, the direct link between the statement and the Government’s decision to pay or approve a false claim would be “too attenuated to establish liability.” Id. Thus, the FERA legislation can be viewed as a legislative overruling of the Allison Engine decision. Defendants raise two main arguments: (1) that the FERA does not apply to the claims asserted in this case and (2) that applying the new amendment would violate the Ex Post Facto Clause of the United States Constitution. The Relator contends that Congress intended to apply the postFERA version to this case, and that because the FCA is a civil remedial statute, it implicates no constitutional concern. The Government filed a “Statement of Interest” setting forth which its position on the retroactivity issue. (Doc. 68). The Government first urges the Court to attempt to resolve the issue without resorting to the constitutional argument if possible. The Government rejects Defendant’s contention that application of the post-FERA version of § 3729(a)(1)(B) would violate the ex post facto clause because it does not affect Defendant’s settled expectations, nor would it punish Defendants. The Court may summarily dispense with the Government’s contention that the constitutional issues can be avoided if it finds that the SAC adequately alleges intent which comports with the post-FERA version. The constitutional issues cannot be avoided. The SAC may well allege conduct that passes muster under the postFERA version of the statutory provision, but that does not answer the question of what version should be used to try those allegations on their merits at trial. A. Application of FERA by Congressional Intent Whether the FERA applies to the claims in this case is actually the threshold prong of an analysis under Landgraf v. USI Film Products, 511 U.S. 244, 281, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994), although the parties do not approach the issue as such formally. Retroactivity is not favored in the law, Landgraf, 511 U.S. at 264, 114 S.Ct. 1483 (courts apply a presumption against the retroactivity of a statute absent a clear congressional intent to the contrary) (cited in Pritchett v. Office Depot, Inc., 420 F.3d 1090, 1095 (10th Cir.2005)). A statute may not be applied retroactively absent a clear indication from Congress that it intended such a result. Id. When reading the plain language, statutory definitions normally control the meaning of statutory words. Determining congressional intent for the retroactive application of a statute is part of a two-part test established by the Supreme Court for determining whether a statute applies retroactively. The first question in Landgraf v. USI Film Products is whether Congress expressed its intentions as to the temporal reach of the statute. Valdez-Sanchez v. Gonzales, 485 F.3d 1084, 1088 (10th Cir.2007) (citing Landgraf, 511 U.S. at 280, 114 S.Ct. 1483). If congressional intent cannot be ascertained, then the court moves to the second step of the Landgraf analysis and consider whether the statute has a retroactive effect. Id. A statutory provision has a “retroactive effect” when its application impairs rights a party possessed when he acted, increases a party’s liability for past conduct, or imposes new duties or new disabilities with respect to transactions already completed. Id. If application of the statute creates a retroactive effect, “our traditional presumption teaches that it does not govern absent clear congressional intent favoring such a result.” Valdez-Sanchez v. Gonzales 485 F.3d 1084, 1088 (10th Cir.2007) (citing Landgraf, 511 U.S. at 280, 114 S.Ct. 1483). Section § 4(f)(1) of the FERA makes the new section § 3729(a)(1)(B) applicable to “all claims under the False Claims Act .... that are pending on or after [June 7, 2008]” (emphasis added). The issue is whether Congress intended the retroactivity language to apply to “cases” pending on June 7, 2009, or to “claims” pending on June 7, 2009. The Government argues that the placement of the word “claims” before the phrase “False Claims Act” indicates that Congress intended for FERA’s amendments to apply to FCA cases pending on or after June 7, 2008. Under the Government’s interpretation, the new version of § 3729(a)(1)(B) would apply to this case which was filed in federal court in 2005. Defendants have the better argument on this question because their position is bolstered by other statutory language which pins down the meaning of FERA § 4(f)(1). Section 3729(b)(2)(A) defines “claim” as “any request or demand, whether under a contract or otherwise, for money or property and whether or not the United States has title to the money or property....” Also, FERA § 4(f)(2), which directly follows the provision making § 3729(a)(1)(B) applicable to “claims” pending on or after June 7, 2008, makes other FERA amendments applicable “to cases pending on the date of enactment.” Since the language in statutory provisions should be construed narrowly, see Caterpillar Inc. v. Williams, 482 U.S. 386, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987), it is clear that Congress intended to distinguish “claims” from “cases.” See also U.S. ex rel. Sanders v. Allison Engine Co., Inc., 667 F.Supp.2d 747, 752 (S.D.Ohio 2009) (Allison Engine II) (“had Congress intended the retroactivity of subsection 4(f)(1) to be measured by ‘cases,’ it would have said so as it did in subsection 4(f)(2)”). In addition, Defendants offer two cases, both which were decided post-Allison, and which rely on the FERA’s statutory language and the legislative history in holding that the revised language is applicable to “claims” as defined in § 3729(b)(2)(A). See Allison Engine II (definition of “claims” in FERA § 4(f)(1) as demand for money or property supported by statutory definition in § 3729(b)(2)(A) as well as legislative history); U.S. v. Science Applications Intern. Corp., 653 F.Supp.2d 87, 107 (D.D.C.2009) (noting that Senate Report’s explanation of FERA’s amendments to the FCA utilizes “claims” to refer to a defendant’s request for payment and “cases” when discussing civil actions for FCA violations, following statutory definition in § 3729(a)(1)(B) (citing S.Rep. No. 110-10 (2009))). Congress has clearly indicated that the revised language at issue here is applicable to “claims” pending on June 7, 2008, and not to “cases” pending on June 7; 2008. Defendants in this ease claim that the “majority” of claims at issue in this case were pending prior to June 7, 2008, Doc. 74 at 5. Thus, the retroactivity clause in FERA § 4(f)(1) does not apply to them, and the prior version of the FCA (§ 3729(a)(2)) applies to claims brought under that provision. The retroactivity inquiry can end here because, by its plain meaning, the FERA does not apply to the claims asserted in this case. Alternatively, the Court finds that application of the amendment would violate the Ex Post Facto Clause. B. Ex Post Facto Analysis The retroactive application of a law that is intended to punish violates the ex post facto clause of the United States Constitution. See United States v. Lawrance, 548 F.3d 1329, 1332 (10th Cir.2008). Defendants argue that the FCA and FERA were intended to be punitive, based on the legislative history. The Government contends that application of the new § 3729(a)(1)(B) does not violate the Ex Post Facto clause because the FCA is a remedial, not punitive, statute. In assessing whether the retroactive application of a civil statute violates the Ex Post Facto clause, the Court should consider first whether “the legislature meant the statute to establish ‘civil’ proceedings.” Smith v. Doe, 538 U.S. 84, 92, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003) (quoting Kansas v. Hendricks, 521 U.S. 346, 361, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997)). If the intention was to enact a regulatory scheme that is civil and non-punitive, the Court we must further examine whether the statutory scheme is “so punitive either in purpose or effect as to negate [the legislature’s] intention’ to deem it ‘civil.’ ” Id. A civil as well as a criminal sanction constitutes punishment when the sanction as applied in the individual case selves the goals of punishment. U.S. v. Halper, 490 U.S. 435, 447-448, 109 S.Ct. 1892, 1901-1902, 104 L.Ed.2d 487 (1989), abrog. on other grds. by Hudson v. U.S., 522 U.S. 93, 118 S.Ct. 488, 139 L.Ed.2d 450 (1997). 1. Settled Expectations Under Landgraf, a provision has a retroactive effect if it “would impair rights a party possessed when he acted, increase a party’s liability for past conduct, or impose new duties with respect to transactions already completed.” ... In making this determination, courts should be guided by “familiar considerations of fair notice, reasonable reliance, and settled expectations.”. Hem v. Maurer, 458 F.3d 1185, 1190 (10th Cir.2006) (citing Landgraf, 511 U.S. at 270, 114 S.Ct. 1483). The Government contends that retroactive application of FERA to this case would not upset Defendants’ settled expectations, because the Supreme Court’s decision in Allison Engine I was not decided at the time Defendants acted. The Relator correctly pinpoints the weakness in the Government’s argument by noting that the Government incorrectly assumes that Allison Engine I did not accord with preexisting case law. There is no indication from a reading of Allison Engine I that the Supreme Court changed a previous interpretation of the law, nor is there any support for this theory provided by the Government. Allison Engine I interpreted the meaning of pre-FERA § 3729(a)(1)(B) which was in effect at the time Defendants acted. See United States v. Security Industrial Bank, 459 U.S. 70, 79, 103 S.Ct. 407, 74 L.Ed.2d 235 (1982) (a judicial interpretation is “traditionally regarded as an expression of pre-existing law”). Thus, the real question is whether retroactive application of § 3729(a)(1)(B), as interpreted by Allison Engine I, would violate the Ex Post Facto clause. 2. Whether the FCA is Sufficiently Punitive in Nature to Violate Ex Post Facto clause The Government contends that the Ex Post Facto clause does not prohibit the application of post-FERA § 3729(a)(1)(B) to this case because Congress intended the FCA to be remedial and not punitive. In support of its contention, the Government cites to the legislative history of one of the previous amendments to the FCA, which states that “[t]he statute is a remedial one. It is intended to protect the Treasury against the hungry and unscrupulous host that encompasses it on every side.... ” S. REP. 99-345, 11, 1986 U.S.C.C.A.N. 5266, 5276. The Government also refers to Cook County, Ill. v. U.S. ex rel. Chandler, 538 U.S. 119, 131, 123 S.Ct. 1239, 155 L.Ed.2d 247 (2003), which noted that treble damages under the FCA has a compensatory side, and that it serves a remedial purpose as well as a punitive objective. The Government is correct that a civil statute may advance punitive ends as well as remedial goals without violating the Ex Post Facto clause. See U.S. v. Halper, 490 U.S. 435, 109 S.Ct. 1892, 104 L.Ed.2d 487 (1989); Doe v. Bredesen, 507 F.3d 998, 1005 (6th Cir.2007) (penal component of sex offender registration law did not render the statute “punitive” for the purpose of the ex post facto clause). However, the Government’s argument does not go far enough. The fact that a civil statute may serve remedial ends is not dispositive to the Ex Post Facto inquiry, and the labels “criminal” and “civil” are not of paramount importance. U.S. v. Halper, 490 U.S. 435, 447-448, 109 S.Ct. 1892, 104 L.Ed.2d 487 (1989). For this reason, the Government’s reliance on legislative history and Chandler does not resolve the question of whether application of the post-FERA would violate the Ex Post Facto clause. The cited legislative history is a generic comment on the nature of the FCA based on a previous amendment — not the FERA specifically. In addition, Chandler would be miseharacterized to stand for the proposition that the FCA is generically a civil remedial statute to which the Ex Post Facto does not apply. The question in Chandler was whether a municipal entity could be considered a “person” under the FCA, particularly in the context of an imposition of treble damages. The Supreme Court noted that treble damages served a compensatory purpose, and did not equate with classic punitive damages. 538 U.S. at 131, 123 S.Ct. 1239. Despite the punitive nature of treble damages under the statute, the Court concluded that a municipal corporation was considered a “person” under the FCA and could be exposed to treble damages under the statute. There was no discussion on the punitive nature of the FCA in the context of a violation of the Ex Post Facto clause. Thus, Chandler is not helpful to the analysis here. The determinati