Full opinion text
ORDER DENYING DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT Randy Crane, United States District Judge Now before the Court are Defendants McAllen Medical Center’s (“MMC”), South Texas Health System’s, and McAllen Hospitals, L.P.’s (collectively, the “MMC Defendants”) Motion to Dismiss, or, in the Alternative, for Summary Judgment, (Dkt. No. 172); Defendants RedMed, Inc.’s (“RedMed”),. Jeffrey L. Hannes’s, and Northern Services LLC d/b/a Advanced Orthopedic Solutions’ (“AOS”) (collectively, the “RedMed Defendants”) Motion for Summary Judgment, (Dkt. No. 173); Defendant Dr. Ray Fulp, Ill’s Motion- for Summary Judgment, (Dkt. No, 175); and Defendant Alex Santos’s Motion for Summary Judgment, (Dkt. No. 176). Having considered the Motions for Summary Judgment of the various Defendants and the MMC Defendants’ Motion to Dismiss, as well as the responsive briefing, (Dkt. Nos. 182, 183, 186, 187, 190, 191, 192, 193, 194), the Court finds that the Motions should be denied for the following reasons. I. Factual and Procedural Background Plaintiffs and qui tarn Relators Keith Waldmann and Adan Ponce (collectively, “Relators”) brought suit against Defendants Dr. Ray Fulp, III, Alex Santos, MMC, RedMed, and Jeff Hannes on September 9, 2013. (Dkt. No. 1). Relators subsequently amended their complaint to add Defendant Northern Services, LLC d/b/a Advanced Orthopedic Solutions “AOS.” (Dkt. No. 165). Defendant Fulp is a Doctor of Osteopathy who practices at MMC and other hospitals in the Rio Grande Valley, and Defendant Santos, is a Surgical Technologist First Assistant (“scrub technician” or “surgical assistant”) who also works at MMC. Id., ¶¶ 27, 28. Defendants RedMed, Inc. and AOS are Texas, corporations that specialize in providing medical devices to doctors in the Rio Grande Valley, and Defendant Hannes is the sole owner of both RedMed and AOS. Id., ¶¶ 30, 32; (Dkt. No. 173-2, ¶¶ 2, 3). Relators’ Second Amended Complaint, their live pleading, generally alleges that Defendants have submitted or caused to be submitted hundreds of false claims to federal and state agencies in conjunction with requests for payment by Medicare, Medicaid, and TriCare for surgical and other medical procedures performed at MMO. Specifically, Relators allege that since at least 2009 Defendants have engaged in a pattern and practice of submitting claims that falsely certify that Dr. Fulp performed medical procedures on patients, while in reality they were performed in whole or in part by Mr. Santos and/or one another individual, Eberardo Martinez, neither of whom are licensed to practice medicine in any state. (Dkt. No. 1, ¶¶ 1, 4). In addition, Relators allege that Santos was receiving illegal kickback payments from RedMed, AOS, and Hannes in exchange for Fulp’s and Santos’s use of Red-Med devices in violation of the Federal Fraud and Abuse Anti-Kickback Statute, 42 U.S.C. §§ 1320a-7b, (“AKS”) and the Prohibited Referral Provisions, 42 U.S.C. § 1394nn, (“the Stark Law”). Id., at ¶ 2. In addition to the false claims that Fulp performed surgeries when in fact Santos or Martinez did, Relators allege that these AKS and Stark Law violations also resulted in fraudulent claims. Id. Relators allege that, through this scheme, the Defendants have caused hundreds of false certifications and claims to be made to federal and state agencies, resulting in millions of dollars in damages. Id., ¶ 4. They bring claims for violation of the False Claims Act (“FCA”), 31 U.S.C. §§ 3729(a)(1)(A), (a)(1)(B), FCA Conspiracy under 31 U.S.C. § 3729(a)(1)(C), and the, Texas Medicaid Fraud Prevention Act (“TMFPA”), Tex. Human Res. Code Ann. §§ 36.002(1), (4)(B). Id., ¶¶ 92-109. After Relators , filed their First Amended Complaint, Defendants filed motions to dismiss for failure to state, a claim, (Dkt. Nos. 24, 25, 26, 31), which the Court denied without prejudice to refiling as motions for summary judgment in order to allow for a brief period of discovery, (Dkt. No. 44). Defendants subsequently moved for summary judgment. (Dkt. Nos. 55, 56, 59). After concluding that'Relators had not had the opportunity to conduct adequate discovery regarding specific aspects of them claims, the Court denied' the motions without prejudice to allow for an additional ninety’day period of discovery,’ (Dkt. No. 140). After the additional discovery period ended, and with leave of the Court, Rela-tors filed their Second Amended Complaint, to which the present Motions for Summary Judgment and Motion to Dismiss are now directed. See (Dkt. Nos. 164, 165). II. Relators’ Second Amended Complaint The Court considers that the ease can be divided generally' into two theories which, if supported, may give "rise to liability for one or more of the Defendants under the FCA and TMFPA: hereinafter the “Surgery Delegation Scheme” and the “Device Scheme.” In discussing the Rela-tors’ Second Amended Complaint and the pending motions, the' Court will address each of these theories of liability separately. A. The Surgery Delegation Scheme The Relators’ Second Amended Complaint alleges that Relators, who worked as medical device sales representatives in the Rio Grande Valley, personally witnessed Santos and Martinez — who are both scrub techs not licensed ,to practice medicine— perform “numerous procedures, without Fulp’s supervision, including epidural steroid injections, pulling infected pins from patients who had previously undergone surgery, a cervical fusion, inserting scoliosis pins, a total knee replacement, and a total hip replacement,” and that such incidences occurred “almost every time they were in the operating room with Fulp.” (Dkt. No. 165, ¶¶ 39, 41, 43). They allege that, “[o]n numerous occasions, Waldmann and Ponce independently witnessed Fulp attend the start of a surgery and perform initial incisions, only to leave the room entirely and turn the remainder of the surgery over to Santos.” Id. at ¶ 42. Without direction or supervision from Fulp, Santos would cut through tissue and bone, install artificial joints, and close the incision site.” Id. While Relators acknowledge that they did not attend every one of Fulp’s procedures, they claim that nearly every one they witnessed involved Santos performing “key and critical portions” of the surgeries. Id. at ¶ 66. This delegation of surgical duties to Santos, Relators allege, was part of a scheme which “allowed Fulp to leave the operating room to perform, or begin, other surgeries and procedures at MMC,” thereby allowing Fulp and MMC to bill for and collect more funds from government health-insurance programs. Id. at ¶¶ 1, 42. They allege that MMC knew about the scheme and received complaints from hospital employees, but did nothing to stop it, and that MMC continued to submit its own claims, each time falsely certifying that Fulp had performed the procedures. Id. at ¶ 1. To illustrate what they assert is a pattern and practice, Relators list illustrative examples of the Surgery Delegation Scheme. They point specifically to four separate occasions between August 2010 and March 2012 in which either Santos or Martinez performed all or substantially all of the surgeries on patients without Fulp’s supervision or presence in the operating room. Id. ¶¶ 46-53. Relators allege that each of these surgeries were billed to government payors as if Fulp or someone under his direct supervision had performed them. Id. On two such incidences, they allege MMC was made aware that the scrub technician had acted outside of the scope of what the scrub technician is permitted to do under state and federal laws. Id. In response to complaints, MMC conducted a “cursory” investigation wherein MMC administrators determined that it was “clear” that Fulp should have been directly supervising the scrub technician, but that MMC took no action other than “counseling” of Santos, who continued to conduct surgeries unsupervised in violation of state and federal laws. Id., ¶ 53. Relators’ complaint also incorporates by reference a video ⅛aken on a cell phone camera in an MMC operating room, which Relators allege depicts Santos performing a total knee arthroplasty while Fulp was not present in the operating room. Id., ¶¶ 56-64. They also allege that a nurse at MMC made reports to MMC administrators that she witnessed Santos complete surgical procedures without Fulp being present and that, on September 30, 2010, several nurses sent a signed petition to MMC administrators expressing “concern for our patients” because scrub technicians were performing surgical .tasks. Id., ¶¶ 50, 55. They allege that, upon hearing of these complaints, Fulp became angry and' attempted to intimidate hospital staff by posting signs in MMC’s OR suite calling those who reported the incidents to MMC “ráts” and “bottomdwellers.” Id., ¶ 54. As other indicia of the willful scheme, Relators allege that, in May or June of 2013, Santos served a three-day suspension for violating a HIPAA regulation, during which time Fulp cancelled all of his scheduled procedure. Id. at 65. On certain occasions, Relators allege, Fulp’s second, third, and fourth patients would be in the recovery room while Fulp’s first patient was still in surgery. Id. They also allege that Santos, instead of Fulp, would sometimes meet patients’ families to discuss results of operations. Id. Relators assert that the Surgical Delegation Scheme resulted in fraudulent claims being submitted to and paid by government healthcare payors. B. The Device Scheme With respect to the alleged AKS and Stark Law violations, Relators allege that RedMed, AOS, and Hannes paid commissions to Santos for devices that Fulp used in surgeries with the purpose of inducing Santos and Fulp to order and use Red-Med’s medical equipment. Id., ¶ 79. Santos, who Relators allege held himself out to be a sales representative to doctors, MMC staff, and other device representatives, allegedly received commissions from RedMed and later AOS for surgical devices he used while also working as Fulp’s scrub technician. Id. at ¶¶ 83, 84. This relationship, according to Relators, created powerful incentives for Fulp and Santos to overuse and misuse medical devices and products by RedMed. Id., ¶ 80. As an example of such overuse, they allege that, while a typical bone surgery may require a plate and six screws — totaling to a $1,800 bill from the manufacturer — Fulp and Santos would use the same hardware, plus a 5cc amount of frozen bone growth material, of which they only use lcc and discard the rest, resulting in an additional $4,000 in sales to the manufacturer. Id. at ¶¶ 80, 87. Relators further allege that both Fulp and MMC were aware of the relationship between Santos and RedMed and were either eomplicit in or helped establish it. Id., ¶¶ 81, 82. They allege that, after having received numerous complaints about the propriety of the arrangement, MMC’s compliance department urged administrators to end the relationship, but that MMC executive officer Joe Riley instructed the compliance department to “back off’ of Santos because he was a “key player” in the hospital’s business. Id. at ¶ 82. Stryker, a device manufacturer that supplied products to RedMed, was allegedly alerted of the kickback scheme and asked RedMed to sever ties with Santos. Id. at ¶ 85. Relators allege that MMC OR Supervisor Mario Garza wrote Stryker, purporting that MMC had conducted an “extensive investigation” and found the relationship between Santos and RedMed to be legal. Id. In reality, Relators allege, MMC only performed a cursory review of the relationship and did not take any action to change it. Id. In May 2012, Relators allege that Hannes assured Stryker that RedMed had no further financial arrangement with Santos but that,'in reality, Hannes had .simply begun to remunerate Santos through AOS instead of RedMed. Id. at ¶ 86. Relators allege that'RedMed’s payments to Santos were for the benefit of Fulp and a “bribe” or “kickback” to Fulp so that Fulp received the benefit of Santos’s services without having to compensate him for the value of those services in exchange for using medical devices sold by Red-Med/AOS. Id. at ¶ 86. Relators allege that the Device Scheme resulted in fraudulent claims being submitted to and. paid by government healthcare payors., III. Defendants’ Motions to Dismiss and for Summary Judgment The MMC Defendants argue in .their Motion to Dismiss, or, in the Alternative, for Summary Judgment that Relator’s claim for FCA and TMFPA liability from the Surgery Delegation Scheme should be dismissed because such delegation, even if improper, does not give rise to FCA liability. (Dkt. No. 172). The MMC Defendants, Fulp, and Santos also move for summary judgment on the FCA and TMFPA claims on this ground. (Dkt. Nos. 172, 175, 176). In addition, they argue for summary judgment because they assert that Relators have failed to identify specific false claims that were submitted to a government pay- or. Id. With respect to the Device Scheme, the RedMed Defendants - seek summary judgment on the FCA and TMFPA claims under the theory of an AKS violation on the grounds that Santos was a bona fide employee of either RedMed or AOS, and thus payments to Santos fall under the AKS safe harbor provision. (Dkt. No. 173). The RedMed Defendants, Fulp, and Santos move for summary judgment on the FCA and TMFPA claims under the theory of a Stark Law violation on the grounds that Relators have provided no evidence of a financial relationship between the Red-Med Defendants and Fulp. (Dkt. Nos. 173, 175, 176). Finally, MMC also moves to dismiss Relators’ FCA and TMFPA claims on the grounds that their Stark Law and AKS allegations fail to satisfy the proper pleading requirements of Rules 9(b) and 12(b)(6). (Dkt. No. 172). The Court notes that, although Defendants have filed their motions separately, there is significant overlap among the arguments presented therein. Accordingly, the Court will address the Motions as a whole. Furthermore, the Court notes that, while the MMC Defendants’ Motion was filed under Rule 12(b)(6), it presents significant matters outside the scope of the pleadings. See (Dkt. No. 172-1) (incorporating ten exhibits, including MMC internal documents, patient records, e-mails, and deposition transcripts). The Court has discretion to convert a motion to dismiss into a motion for summary judgment and thereby consider the matters submitted by the parties that are beyond the scope of the pleadings. See, e.g., Isquith for & on Behalf of Isquith v. Middle S. Utilities, Inc., 847 F.2d 186, 193-96 (5th Cir. 1988). A court may convert a Rule 12(b)(6) motion into, a motion for summary judgment without advising either party of its intention to do so, but must allow the non-moving party at least ten days in which to submit its own evidence. Id. at 195-96; Holguin v. U.S. Dept. of Army, 98 F.3d 1337 (5th Cir. 1996). Relators responded to each of the pending Motions, including the Motion to Dismiss, in one omnibus response and provided their own summary judgment evidence. See (Dkt. No. 182). The Court considers the materials proffered by the MMC Defendants in their Motion to Dismiss to be useful and that a consideration of those materials here would facilitate a prompt disposition of the action. See Isquith, 847 F.2d at 193, note 3. Furthermore, in light of the period of discovery already provided, the Parties’ lengthy briefing on the Summary Judgment Motions, and the fact that the MMC Defendants ‘requested Summary Judgment as an alternative to dismissal in their Motion, the Court considers that neither party will be prejudiced by the Court’s conversion of the 12(b)(6) Motion into a Motion for Summary Judgment. Accordingly, the Court will consider the materials and assess the MMC Defendants’ Motion as a Motion for Summary Judgment under the standard set forth in Rule 56. A. Summary Judgment Standard of Review : A district court must grant summary' judgment when there is no genuine dispute as.-to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). A fact is material if it might affect the outcome of the lawsuit under the governing law, and is genuinely in dispute only if a reasonable jury could return a verdict for the nonmov-ing party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A party moving for summary judgment has the initial responsibility of informing! the court of the basis for its motion and identifying those portions of the pleadings and materials in the record, if any, which it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Fed. R. Civ. P. 56(a), (c). Where the movant bears the burden of proof because it is asserting an affirmative defense, it must establish “ ‘beyond peradventure all of the. essential elements of the... defense to warrant judgment in [its] favor.’” Chaplin v. NationsCredit Corp., 307 F.3d 368, 372 (5th Cir. 2002) (quoting Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986)) (emphasis in original). Once the moving party carries its burden, the burden shifts to the nonmovant to go beyond the pleadings and provide specific facts showing the existence of a genuine issue for trial. Celotex, 477 U.S. at 324, 106 S.Ct. 2548; FED. R. CIV. P. 56(c). In conducting its review of the summary judgment record, the court “may not make credibility determinations or weigh the evidence” and must resolve doubts and reasonable inferences regarding the facts in favor of the nonmoving party. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000); Anderson, 477 U.S. at 255, 106 S.Ct. 2505; Dean v. City of Shreveport, 438 F.3d 448, 454 (5th Cir. 2006). However, the nonmovant cannot satisfy its burden with “conclusory allegations, speculation, and unsubstantiated assertions which are either entirely unsupported, or supported by a mere scintilla of evidence.” Chaney v. Dreyfus Serv. Corp., 595 F.3d 219, 229 (5th Cir. 2010); see also Brown v. City of Houston, 337 F.3d 539, 541 (5th Cir. 2003) (“Unsubstantiated assertions, improbable inferences, and unsupported speculation are not sufficient to defeat a motion for summaiy judgment”). B. False Claims Act Liability The False Claims Act (FCA) prohibits false and fraudulent claims to government programs. An individual violates the False Claims Act (FCA) when he: (1) knowingly presents, or causes to be presented, to ah officer or employee of the United States Government 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. • United States ex rel. Longhi v. United States, 575 F.3d 458, 467. (citing 31 U.S.C. § 3729(a) (2015)). The FCA attaches liability “not to the underlying fraudulent activity or to the government’s wrongful payment, but to the claim for payment.” Id. (Citing Harrison v. Westinghouse Savannah River Co., 176 F.3d 776, 785 (4th Cir. 1999). The statute 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.” Peterson v. Weinberger, 508 F.2d 45, 52-53 (5th Cir. 1975). Under the FCA, a person acts “knowingly” with respect to information if the person “has actual knowledge of the information,” “acts in deliberate ignorance of the truth or falsity of the information,” or “acts -in reckless disregard of the truth or falsity of the information.” 31 U.S.C. 3729(b); see also Longhi, 575 F.3d at 467. In addition to the statutory requirements, courts have held that a false or fraudulent claim violates the FCA only if the misrepresentation it contains is material. Longhi, 575 F.3d at 467; United States ex rel. Thompson v. Columbia/HCA Healthcare Corp., 125 F.3d 899, 902 (5th Cir. 1997) (explaining that the FCA ‘inter-diets material misrepresentations made to qualify for government privileges and services”); see also Universal Health Servs., Inc. v. United States, — U.S. —, 136 S.Ct. 1989, 2002, 195 L.Ed.2d 348 (2016) (holding that “a misrepresentation about compliance with a statutory, regulatory, or contractual requirement must be material to the Government’s payment decision in order to be actionable under the False Claims Act”). The materiality requirement is a “rigorous one.” Universal Health Servs., 136 S.Ct. at 2004, n.6. The Fifth Circuit has adopted a concise test for false claims liability: “(1) whether there was a false statement or fraudulent course of conduct; (2) made or carried out with the requisite scienter; (3) that was material; and (4) that caused the government to pay out money or to forfeit moneys due (i.e., that involved a claim).” Longhi, 575 F.3d at 467 (citations omitted). C. The Surgery Delegation Scheme Relators allege that the Surgery Delegation Scheme resulted in MMC and Fulp making false claims to government health payors in violation of the FCA. The MMC Defendants and Fulp argue that they are entitled to summary judgment on this issue because, even if Fulp over-delegated his surgical duties to Santos in certain procedures, claims made for such procedures are not thereby “false or fraudulent claims” under the FCA. Furthermore, they argue that, even if they made false claims, they did not do so with the requisite scien-ter. Finally, Defendants argue that Rela-tors have failed to identify specific false claims that were actually made by either of them. The Court addresses each of these arguments in turn. 1. False Statement or Fraudulent Course of Conduct MMC contends that the alleged conduct does not constitute a false claim as a matter of law. “False claims” under the FCA may be either “factually false” or “legally false.” United States ex rel. Bennett v. Medtronic, 747 F.Supp.2d 745, 765 (S.D. Tex. 2010). “Factually false” claims involve “an incorrect description of goods or services or a request for reimbursement for goods or services never provided.” Bennett, 747 F.Supp.2d at 765. Alternatively, “legally false” claims arise when a party that submits claims to the government affirmatively certifies compliance with a statute or regulation and the certification is a material condition to receiving a government benefit. Id., at 765-66. In determining whether Defendants submitted false claims under the FCA, the Court examines both theories of falsity. a. Factual Falsity As previously noted, factually false claims involve “an incorrect description of goods or services or a request for reimbursement for goods or services never provided.” Id. The archetypical example of a factually false claim is when a person bills for a procedure that was never performed. See, e.g., Peterson v. Weinberger, 508 F.2d 45, 52 (5th Cir. 1975). A claim may also be factually false where, for example, the claim represents that a certain provider performed the billed-for procedures when in fact those services were delivered by an unlicensed provider. See, e.g., United States ex rel. Riley v. St. Luke’s Episcopal Hospital, 355 F.3d 370 (5th Cir. 2004). Pulp and Santos both argue that Fulp did not submit factually false claims because, even assuming he improperly delegated his surgical duties to Santos, he was still properly designated as the responsible physician for all services on any claims submitted., The MMC Defendants argue that MMC did not submit any factually false claims because, they only bill government payors for services rendered as hospitals, and correctly indicated Fulp as the “Operating Provider” on those forms. The Court addresses each argument in turn, i. Claims made by Fulp The Parties agree that, as a physician, Fulp submits claims to government healthcare payors under Medicare Part B on the CMS-1500 Health Insurance Claim Form, or its electronic equivalent. See (Dkt. No. 182-47). The form contains a certification that the signing physician “certifies] that the services listed above were medically indicated and necessary to the health of this patient and were personally furnished by me or my employee under my personal direction.” Id., at p. 3. Relators assert that the delegation scheme rendered Fulp’s claims false in that they were not “medically indicated and necessary,” and that he did not “personally furnish” the services, nor was Santos under his “personal direction” when Santos carried out critical parts of certain procedures. The Court addresses Relators’ contentions as to each of these clauses separately. (1) “Medically indicated and necessary to the health of this patient” Relators’ evidence in support of their assertion that medical procedures performed in part by Santos were not “medically indicated and necessary to the health of [the] patient” comes in the form of expert testimony. Dr. James E. Alexander, Jr., provided as sworn statement that “Medical procedures performed by persons not qualified or properly trained are considered not medically reasonable or necessary,” and that “[government payors consider any claim submitted for services not reasonable and necessary to be invalid.” (Dkt. No. 182-72, ¶¶ 33-35). He also provides a sworn statement that claims submittéd by Fulp and MMC for total knee replacements, as well as all claims submitted by Fulp and MMC for procedures for which hospital records reflect that Fulp is in two operating rooms simultaneously, are' invalid because the services provided were not “medically reasonable or necessary” as defined by Medicare laws and regulations. Id., ¶¶ 42, 43. The Court considers Dr. .Alexancler’s statements are an axiom: the performance of surgeries by an untrained, unsupervised, under-qualified scrub technician is neither “medically reasonable” nor “medically necessary” under these • circumstances. No further discussion on this issue is. merited. (2) “Personally furnished by me or my employee under my personal direction” Fulp and Santos argue that, regardless of the propriety of Fulp’s delegation of surgical duties to Santos, the services were at the very least conducted under his “personal direction” as certified on the CMS-1500. In making their argument, Fulp and Santos characterize the issue as one of the degree to which Fulp delegated specific duties and the closeness with which he supervised Santos; they assert in essence that no degree of delegation nor sloppy supervision would make the certification that services were “personally furnished by me or my employee under my personal direction” untrue. The Court disagrees. The Court has been provided with only limited guidance about what constitutes “personal direction.” But see Peterson v. Richardson, 370 F.Supp. 1259, 1266 (N.D. Tex. 1973) (finding that testimony from nursing home employees that they did not know that signing physician was medical director of the - nursing home, and that they were not given directions from him nor instructed to consult with him on patient care, showed that claims submitted were not for services rendered under the personal direction of a physician and were false); The Inspector Gen., DAB CR40 (1989) (H.H.S. Aug. 22, 1989) (Decision and Order), 1989 WL 509533, at *10 (finding that, for the purpose a certification on an HCFA 1500 form nearly identical to the one at issue, “the definition of personal direction or supervision requires the physician’s physical presence during the provision of the items or services”). Persuasive to the Court in interpreting the term is the Texas Occupational Code’s statutory provision that “[t]he practice of a surgical assistant is limited to surgical assisting performed under the direct supervision of a physician who delegated the acts.” Tex. Occ. Code § 206.251(a). “Direct supervision” in .this context is defined as “supervision by a delegating physician who is physically present and who personally directs delegated acts and remains immediately available to personally respond to any emergency until the patient is released from the operating room.” Id. at § 206.001. Additionally, Relators provide expert testimony from Dr. Alexander that by signing the CMS-1500 certification at issue, “government healthcare, payors understand that the provider represents he performed the critical portions of the billed-for services and that he actually directed his employee at all times during the billed-for procedures.” (Dkt No. 182-72, ¶ 15). Considering all- of these, as well as the plain meaning of the term, the Court considers that “personal direction,” at minimum, requires the actual physical presence of the physician personally directing the delegated acts during the provision of the billed-for services. See The Inspector Gen., 1989 WL 509533, at *10; Black’s Law Dictionary 557, 1325 (10th ed. 2014) (defining “personal” as “of or affecting a person” and “direction” as “an act of guidance,” or “an order; an instruction on how to proceed”). It is without question that a physician is not capable of personally directing delegated acts and being immediately available to personally respond to emergencies if the physician is not physically present -with the surgical assistant. Relators present evidence that, for 389 procedures for which Fulp billed a government payor, MMC’s OR Logs show that Fulp was in another operating room at the same time that the procedure was ongoing. (Dkt. No. 182-71, ¶ 14, Attach B). Relators argue that, because he was in another operating room during these instances, Fulp could not have personally directed a person performing the billed-for procedure. Fulp argues that these OR Logs do not support a finding that Fulp was out of the room while somebody else performed critical parts of the surgery, because such overlaps in procedures reflected in OR Logs are usually due to a surgeon leaving the room while ancillary work — such as anesthesia or the closure of a surgical wound — occurs. (Dkt. No. 190-1, ¶¶ 10, 12). He argues that evidence,, of overlapping surgeries in OR Logs is more plausibly explained by this harmless practice and that, as such, it does not support a finding that Santos performed, certain billed-for services without Fulp’s personal direction. The Court disagrees. While the Court considers that this evidence is not by itself absolute proof that Santos or another scrub technician performed the billed-for services'without Fulp being in the room, the,evidence does not stand alone. Relators provide evidence indicating that Fulp had a pattern and practice of allowing Santos to conduct critical aspects of surgeries while Santos was out of the room. In addition to the video evidence previously discussed, Relators present a sworn statement from an MMC surgical technician that she witnessed Santos and Martinez putting an implant in a patient while Fulp was not in the room and that it “became common knowledge among nurses in the operating room that Dr. Fulp had Alex Santos conduct critical parts of his surgeries.” (Dkt. No. 182-79, ¶¶ 3-5). Combined with this and other evidence indicating that Fulp had a pattern and practice of allowing Santos to carry out critical parts of surgeries — including total knee replacements — while'Fulp was out'of the room, the evidence of 389 billed-for procedures in which Fulp was listed as being in another operating room at the same time the surgery was ongoing, reasonably supports an inference that, during those surgeries, Fulp'allowed Santos or another scrub technician to provide billed-for services that were not under his “personal direction.” Because the Court considers that Rela-tors have presented evidence to allow a reasonable jury to conclude that Fulp allowed Santos/Martinez to perform services while he was not under Fulp’s “personal direction,” it finds that the evidence presented supports a finding that for at least 389 billed-for procedures Fulp’s CMS-1500 forms contained “an incorrect description of goods or services” so as to make his claims factually false. See Bennett, 747 F.Supp.2d at 765. ii. Claims made by MMC The Parties agree that, as a hospital, MMC submits claims to government healthcare payors under Medicare Part A on a form called the CMS-1450, or its electronic equivalent. (Dkt. No. 182-37). The form contains a representation that “the billing information as- shown on the face hereof is true, accurate, and complete” and “[t]hat the submitter did not knowingly or recklessly disregard or misrepresent or conceal material facts.” Id. The form contains spaces for the hospital to provide the National Provider Identifier (“NPI”) of the “Attending,” “Operating,” and any “Other” Providers. Id. Relators argue that MMC submitted factually false claims by naming Fulp as a provider when he did not actually perform the billed-for procedures. The MMC Defendants argue that MMC did not submit any factually false claims because they only bill government payors for services rendered as hospitals, and because they correctly indicated Fulp as the “Operating Provider” on those forms. The Court addresses each of these contentions in turn. (1) Claims submitted as hospitals The MMC Defendants argue that MMC did not submit factually false claims because they only bill for services provided as hospitals, “such as providing a room and meals, offering nursing care, allowing use of the operating room and other facilities, and supplying medical equipment used in the course of care,” not for the services billed for by Fulp as a physician. (Dkt. No. 172, p. 19). The Court does not find this argument persuasive. As described above, the Form requires the biller to certify that “the billing information as shown on the face hereof is true, accurate, and complete” and that “the submitter did not knowingly or recklessly disregard or misrepresent or conceal material facts.” (Dkt. 182-37). This certification does not specify that the information only need be complete with respect to the services that the hospital bills for; it requires the hospital to ensure that all billing information is true, accurate and complete and that the biller not conceal material facts. Included in the billing information is the NPI of the Attending Provider and the Operating Provider. Surely the MMC Defendants would concede that had they intentionally provided the NPI of a physician who did not exist, or of a physician who was not the Attending Provider or the Operating Provider, that this would amount to a false claim. Such a falsity would certainly make a claim an incorrect description of goods and services. See, e.g. United States ex rel. Riley, 355 F.3d at 370; Peterson, 370 F.Supp. at 1266. Accordingly, the Court rejects the MMC Defendants’ argument that they could not, as a matter of law, have presented facially false claims because they only billed for services provided as a hospital, and moves on to whether Relators have provided evidence that MMC submitted forms with false billing information. (¾) Naming Fulp as the “Operating Provider” The MMC Defendants argue that their claims are not factually false because the CMS-1450 only requires the hospital to list which doctor is the “Operating Provider,” and does not contain the same certifications as the CM-1500. (Dkt. 172, p. 12). According to the Medicare Claims Processing Manual, the “Operating Provider” item requires the hospital to provide the name and NPI of the “individual with the primary responsibility for performing the surgical procedure(s).” Centers for Medicare & Medicaid Services, Medicare Claims Processing Manual, Pub. No. 100-04, [Chapter 25 — Completing and Processing the Form CMS-1450 Data Set [hereinafter CMS No. 100-04, Ch. 24], FL 77 (Rev. 3435, 2015). Unlike the CMS-1500 Form used by physicians, the CMS-1450 does not certify that the services were rendered personally or under the personal direction of the named physician. (Dkt. No. 182-37). Thus, the MMC Defendants argue, even viewing all Relators’ evidence in the light most favorable to them, naming Fulp as the “Operating Physician” is not an incorrect description. The MMC Defendants argue that, even if Fulp allowed Santos or any other surgical assistant to perform critical parts of procedures, Fulp still maintained “primary responsibility” for those procedures because he was “ultimately accountable for a course of conduct,” thereby making the claim factually accurate. (Dkt. 172, p. 10-11) (citing Webster’s New Int’l Dictionary 2124 (2d ed. 1941)). They argue that, accepting Relators’ allegations as true, Fulp “was the licensed surgeon designated for each case,” “was present for part of every procedure,” “performed part of each procedure,” “was the surgeon with principal oversight for each procedure,” and “would have been subject to accountability at law for any complications” arising out of each procedure and that, therefore, he remained the person with “primary responsibility” over it for purposes of the claim. Id., at 11. Given the plain meaning of the word “responsibility,” the Court considers that only the last two factors — Fulp’s oversight and accountability for the procedures — are relevant. However, the Court does not consider that, viewing the evidence in the light most favorable to the Relators, Fulp would have been “subject to accountability at law for any complications,” as the MMC Defendants assert. The Court finds Texas law regarding physician delegation to be persuasive in determining whether Fulp necessarily had “primary responsibility” over the surgeries or, as is here alleged,- he completely abdicated responsibility. The Texas Occupational Code provides that “[a] physician may delegate to a qualified and properly trained person acting under the physician’s supervision any medical act that a reasonable and prudent physician would find within the scope- of sound medical judgment to delegate,” and, in doing so, “[t]he delegating physician remains responsible for the medical acts of the person performing the delegated medical acts.” Tex. Occ. Code § 157.001(a)-(b). However, while the Occupational Code explicitly states that the Texas Medical Board “shall promote a physician’s exercise of professional judgment to decide which medical acts may be safely delegated by not adopting rules containing, except as absolutely necessary, global prohibitions or restrictions on the delegation of medical acts,” in the case of surgical assistants, the Medical Board has adopted such a restriction. Id. at § 157.006. Texas law' -states that “[t]he practice of surgical assisting is limited to surgical assisting performed under the direct supervision of a physician who delegates the acts.” 22 Tex. Admin. Code § 184.12. It goes on to specify that: Supervision shall be continuous, and shall require that the delegating physician be physically present and immediately available in the operating room to personally respond to any emergency until the patient is released from the operating room and care has been transferred to another physician. Telecommunication is insufficient for supervision purposes. Id., at § 184.13. Additionally, “[i]t is the obligation of each team of physician(s) and surgical assistant(s) to ensure that,” among other things, “the surgical assistant’s, scope of practice is identified,” and “delegation of-medical tasks is appropriate to the surgical assistant’s level of competence.” Id. That is, both Fulp and Santos— not Fulp alone — were responsible for ensuring that Santos did not conduct surgical tasks outside of Fulp’s presence. When Fulp walked out of the operating room to start his next surgery or take a nap, as the Relator’s summary judgment-evidence indicates, Fulp .abdicated his responsibility, leaving his scrub techs unsupervised and with the responsibilities of. performing, commencing and/or completing the surgeries he had scheduled. See (Dkt. No. 182-77, ¶¶ 14-15). Considering .Texas law regarding physician delegation, the Court considers that— at least for those surgeries which Fulp allowed Santos/Martinez to conduct portions of surgeries while Fulp was not in the operating room, as well as surgeries in which Fulp was present but his supervision of Santos/Martinez was- not “continuous,” his delegation to Santos/Martinez was outside of their scope of practice. See 22 Tex. Admin. Code § 184.13. Furthermore, because Fulp and MMC maintain that Fulp had no reason to believe that Santos/Martinez lacked the competency to perform the surgical tasks that Fulp delegated to him, the Court considers that, under Texas law, Fulp would not be liable for any of Santos’s acts during those surgeries. See id., at § 157.060. Even if the provision regarding physician liability for delegated acts of physician assistants and registered nurses does not apply in Santos’s case, the Court considers that it was the responsibility of Fulp and Santos — not Fulp alone — to ensure that Santos was operating within the scope of his position 'during the procedure. See id, at 184.13. Accordingly, the Court cannot find as a matter of law that Fulp Was “the individual with the primary responsibility for performing the surgical procedure(s).” CMS No. 100-04, Ch. 24, FL 77. It is a non sequitur to suggest that Fulp was primarily responsible for, inter alia, inserting a screw, or stitching up a patient while he was in another operating room commencing another surgery or in the physicians’ lounge napping. When Fulp was not in the OR, he abdicated his responsibility for performing all surgical procedures and Santos/Martinez assumed those responsibilities. While the Defendants may .characterize this as a proper delegation of responsibilities, the Court disagrees for the reasons stated infra. (3) All other Factual Assertions on the CMS-1450 Finally, the Court- sees it unfit to grant summary judgment on this issue because MMC has not satisfied its initial burden of demonstrating that it is entitled to summary judgment on Relators’ assertions that it submitted factually false claims. Specifically, MMC has not demonstrated the absence of a genuine issue of material fact as to how MMC -identified Fulp when billing for the procedures at issue. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Fed. R. Civ. P. 56(a), (c). As indicated by the Parties at the April 4 Status Conference, the MMC Defendants have not provided Relators with the actual claim information submitted to government payors during- the period at issue, but instead identified a set of procedures as those billed to a government payor. That is, MMC has identified which procedures resulted in claims, but has not identified the factual assertions it made in any of those claims. Although the Court finds that Fulp was not necessarily the “Operating Provider” for each of the- procedures covered in the Second Amended Complaint as a matter of law, this finding is only based on the MMC Defendants’ unsubstantiated assertion that MMC only named Fulp as the Operating Provider on all relevant CMS-1450 Forms. MMC does not provide any evidence that Fulp was listed, as the “Operating Provider” on all — or even any — of the claims at issue. It further does not provide any evidence as to which provide er — if any — was listed as the “Attending Provider,” defined as “the individual who has overall responsibility for the patient’s medical care and treatment reported in this claim/encounter,” or any “Other Provider,” which could include a “Referring Provider” (“The provider who sends the patient to another provider for services”), a “Rendering Provider,” (“The health care professional who delivers or completes a particular medical service or non-surgical procedure.”), and any “Other Operating Physician” (“An individual performing a secondary surgical procedure or assisting the Operating Physician”). CMS No. 100-04, Ch. 24, FL 77. Indeed, the only basis by which the Court could presume that the only portion of the CMS-1450 Form relevant .to the underlying procedure for all of the claims in the covered time period is MMC’s own unsubstantiated assertion. Because the Court considers that, for example, naming Fulp or failing to name Santos as one of the “Other Providers” may render a claim factually false, it finds that MMC has not demonstrated that it is entitled to summary judgment as to the factual falsity of any of the assertions it made on the CMS-1450 — not just the assertion that Fulp was the “Operating Physician.” b. Legal Falsity Relators also allege that Defendants submitted legally false claims. So-called “legally false” claims may arise .in two ways. The first occurs when a party submits a claim to the government and, in doing so, affirmatively certifies compliance with a statute, regulation, or contract requirement that is a material condition of payment. United States ex rel. Bennett v. Medtronic, 747 F.Supp.2d 745, 765-66 (S.D. Tex. 2010). The second is when a party submits a claim to the government and fails to disclose a violation of relevant statutes, regulations, or contract requirements that are material conditions of payment. Universal Health Servs., Inc. v. United States, — U.S. —, 136 S.Ct. 1989, 1993, 195 L.Ed.2d 348 (2016). Under this second theory, the so-called “implied certification theory,” the payment request itself is treated as an implied certification of compliance with all relevant statutes, regulations, and contract requirements that are material conditions of payment, and any failure to disclose a violation is treated as a misrepresentation that renders the claim “false or fraudulent” under the FCA. Id. While Defendants argue that “the Fifth Circuit has never recognized the implied certification theory,” (Dkt. 172, p. 17), binding precedeht from the Supreme Court has found FCA liability under this theory at least when two conditions are satisfied": first, the claim does not merely request payment, but also makes specific representations about the goods or' services provided; and second, the defendant’s failure to disclose noncompliance with material statutory, regulatory, or contractual requirements makes those representations “misleading half-truths.” Universal Health Servs., Inc., 136 S.Ct. at 2001. i. False Certifications Identified by Relators In support of their claim, Relators argue that MMC and Fulp falsely certified compliance with health care laws and regulations in three different ways: (i) in CMS Provider Agreements filed annually by MMC,, (ii) in Annual Cost Reports filed by Fulp and MMC, an'd (iii) in the EDI Enrollment Forms MMC and Fulp signed to enroll as providers,. To enroll as Medicare providers, MMC and Fulp were required to sign a Provider Agreement. (Dkt. Nos. 182-40; 182-70). The CMS Provider Agreement contains a number of certifications, one of which reads as-follows: I agree to abide by the Medicare laws, regulations and program instructions that apply to this supplier ... I understand that payment of a claim by Medicare is conditioned upon the claim and the underlying transaction complying with such laws, regulations, and program instructions (including, but not limited to, the Federal anti-kickback statute and the Stark law), and on the supplier’s compliance with all applicable conditions of participation in Medicare. (Dkt No. 182-70, p. 2). Medicare rules also require that MMC file an annual cost report, which MMC did for each relevant year, from 2009 through 2013. (Dkt. No. 182-38). The cost reports contain a certification that states: “I ... certify that I am familiar with the laws and regulations regarding the provision of health care services, and that the services identified in this cost report were provided in compliance with such laws and regulations.” Id. Finally, the Parties agree that Fulp and MMC submitted EDI Enrollment Forms in order to be able to submit claims electronically using a third party known as a Medicare Administrative Contractor, or Mac. Centers for Medicare & Medicaid Services, Medicare Claims Processing Manual, Pub. No. 100-04, Chapter 24—General Edi and Edi Support Requirements, Electronic Claims, and Mandatory Electronic Filing of Medicare Claims, § 30.2 (Rev. 3404, 2015); see also, id. at § 10.4 (Rev. 3346, 2015) (Defining MAC). The MAC Enrollment from must include at least 15 specific certifications with which the provider must agree, including “[t]hat the CMS-assigned unique identifier number (submitter identifier) or NPI constitutes the provider’s legal electronic signature and constitutes an assurance by the provider that services were performed as billed.” Id., at § 30.2 (Rev. 3404, 2015). The provider’s signatory must also certify that she has “been appointed an authorized individual to whom the provider has granted the legal authority to enroll it in the Medicare Program ... and to commit the provider to abide by the laws, regulations and the program instructions of Medicare.” Id., at § 30.4 (Rev. 3404, 2015). ii. Conditions of payment vs. conditions of participation The MMC Defendants argue that none of the certifications listed above give rise to FCA liability because none of them explicitly provides that it is a Medicare condition of payment. They argue that these certifications constitute a “classic example of a general promise to follow all the laws,” which, if it gives rise to FCA liability, “would transform every last Medicare rule into a lurking pit of treble-damages FCA liability.” (Dkt. No. 172, p. 25) (emphasis in original). In order to avoid such a result, Defendants urge, the Court should follow a line of cases reading the aforementioned certifications as predicating payment on compliance only with the Stark Law and AKS, and not with any other laws or provisions. Defendants’ arguments on this point fall short because they rely on a line of reasoning that conflicts with Fifth Circuit and Supreme Court precedents. In contending that the certifications at issue do not give rise to conditions of participation, Defendants rely heavily on two cases: United States ex rel. Wall v. Vista Hospice Care, Inc. and United States ex rel. Parikh v. Citizens Medical Center. In Wall, the relators alleged that the defendant-hospice submitted legally false claims when they failed to comply with certain conditions of Medicare participation. U.S. ex rel. Wall v. Vista Hospice Care, Inc., 778 F.Supp.2d 709, 717 (N.D. Tex. 2011). Namely, the relators claimed that the hospice did not consistently provide physical therapy, occupational therapy, and speech-language pathology services as required by Medicare regulations. Id. at 720. They additionally claimed that the hospice did not hold mandatory meetings or follow .certain other administrative requirements. Id. at 721. The relators argued that, by signing the CMS Provider Agreement, which — like the one at issue in this case — contained a certification that “payment of a claim by Medicare is conditioned ... on the provider’s compliance with all applicable conditions of participation in Medicare,” the hospice provider agreed to just that: that payment is conditioned on compliance with the applicable conditions' of participation. Id. However, the Court in Wall rejected this plain meaning of the Provider Agreement. It reasoned that: if merely signing this form converts a condition of participation into a condition of payment, then every hospice provider not fully complying with all conditions of participation may be held liable under the FCA, thus undermining the distinction between conditions of payment and participation, as well as Medicare’s internal administrative structure to deal with violations of conditions of participation. To so hold would burden federal courts with what should be administrative determinations of whether medical services were performed in compliance with Medicare statutes and regulations governing participation. Courts are not the place where such issues are to first be resolved. Therefore, although the [CMS Provider Agreement] purports to condition payment on compliance with “all applicable conditions of participation,” this Court does not read that form as mandating an extension of FCA liability to every statement certifying compliance with any Medicare statute or regulation relating to conditions of participation. Id. at 721. Similarly, in U.S. ex rel. Parikh v. Citizens Med Ctr., the relators argued that the defendant-hospital submitted false claims when they conditioned physician privileges at the hospital on economic criteria, such as by number of referrals, when they were required by Medicare rules to “ensure the criteria for selection [of medical staff] are individual character, competence, training, experience, and judgment” as per the certification agreement. U.S. ex rel. Parikh v. Citizens Med. Ctr., 977 F.Supp.2d 654, 676 (S.D. Tex. 2013) aff'd sub nom. U.S. ex rel. Parikh v. Brown, 587 Fed.Appx. 123 (5th Cir. 2014). In reviewing whether the same Provider Agreement “converts the conditions of participation into conditions of payment that can invoke FCA liability,” the court cited the logic in Wall, finding “Wall’s concern that Relators’ argument would convert all conditions of participation into conditions of payment to be well-placed.” Id., at 676-77. The court further found that: [accepting Relators-’ argument would allow FCA liability to attach any time a condition "of participation is violated (even if, as in this case, the condition is a vague guideline requiring the defendant to “ensure” that medical staff are selected by various merit-based criteria) and could drastically expand the role of the courts in policing regulations in an area traditionally governed by administrative agencies. Id., at 677. It dismissed the relators’ FCA allegations based on “Medicare’s conditions of participation” without further discussion. Id. While the MMC Defendants cite many more cases following the logic in Wall and Parikh, the Court need not discuss them here. The same basic logic controls in all of Defendants’ cited cases: that courts should not read the CMS Provider Agreement “as mandating an extension of FCA liability to every statement certifying compliance with any Medicare statute or regulation relating to conditions of participation.” See Wall, 778 F.Supp.2d at 720. The MMC Defendants cite this reasoning for the certifications found in the EDI Enrollment Form and Annual Cost Reports. Defendants argue that, because Wall and Parikh found that certifying compliance with all Medicare rules and regulations did not create FCA liability for the violation of any and all Medicare rules and regulations, such certifications do not create FCA liability for the violation of any Medicare rules and regulations. Such a contention ignores the plain meaning of the certifications and the reasoning in Wall and is contrary to controlling precedent in this Circuit and the Supreme Court. As explained above, the CMS Provider Agreement certification contains three specific parts: (1) the applicant agrees to abide by Medicare laws, regulations, and program instructions; (2) the applicant understands that payment by Medicare is conditioned on complying with the aforementioned rules as well as the AKS and Stark Law, and (3) the applicant understands that payment by Medicare is also conditioned on compliance with applicable conditions of participation. The Court in Wall held that it “does not read that form as mandating an extension of FCA liability to- every statement certifying compliance with any Medicare statute or regulation relating to conditions of participation.” U.S. ex rel. Wall, 778 F.Supp.2d at 721. In doing so, it went on to say that “the Court does not’ foreclose the possibility that falsely certifying that certain services were performed may violate a condition of payment under Medicare,” and .allowed -the relators to re-plead their complaint to “satisfy the materiality requirement of an FCA allegation by pleading what specific services are conditions of payment that were not met,” Id. That is, Wall supports the contention that general agreements to adhere to Medicare rules do not expose a claimant to FCA liability for every , violation of Medicare rules, but does not foreclose liability for certain violations of Medicare rules that are material to the government’s decision to pay. Reading Wall to allow liability for material violations of Medicare rules and regulations comports with precedent set by the Fifth Circuit and the Supreme Court. Long before Wall, the Fifth Circuit held without qualification in United States ex rel. Thompson v. Columbia/HCA Healthcare Corp. that “where the government has conditioned payment of a claim upon a claimant’s certification of compliance with, for example, a statute or. regulation,, a claimant submits, a false or fraudulent claim when he or she falsely certifies compliance with that statute or regulation.” 125 F.3d 899, 902 (5th Cir. 1997). In the CMS Provider agreement, the.government explicitly conditioned payment of a claim upon MMC’s and Fulp’s compliance with (1) Medicare laws, regulations, and program instructions, (2) the AKS and Stark Law, and (3) all applicable conditions of participation. Thus, insofar as MMC and Fulp violated any of these in the underlying transaction, they submitted - a false claim. Furthermore, in rejecting Defendants’ reading of Wall and Parikh, the Court relies on the Supreme Court’s explicit rejection of lower courts’ over-reliance on the phrases “condition of payment” and “condition of participation” as used in Medicare certifications. In Universal Health Services, Inc. v. United States ex rel. Escobar, the Court found that “False Claims Act liability for failing to disclose violations of legal requirements does not turn on whether those requirements were expressly designated as conditions of payment.” — U.S. —, 136 S.Ct. 1989, 1996, 195 L.Ed.2d 348 (2016). Likewise, “even where a requirement is expressly designated a condition of payment, not every violation of such a requirement gives rise to liability.” Id. The most important inquiry, then, is “not what label the Government attaches to a requirement, but whether the defendant knowingly violated a requirement that the defendant knows is material to the Government’s payment decision.” Id. Whether a provision is labeled a condition of payment or a condition of participation is relevant to, but not dispositive of, the materiality inquiry. Id. Nor is the concern laid out in Wall and Parikh — and repeated here by Defendants — that finding a “false or fraudulent claim” when any Medicare condition of participation is violated will “burden federal courts with what should be administrative determinations of whether medical services were performed in compliance with Medicare statutes and regulations governing participation” a valid one. See Wall, 778 F.Supp.2d at 721. This, too, was addressed by the Court, in Universal Health. In rejecting the provider’s argument that “False Claims Act liability should be limited to undisclosed violations of expressly designated conditions of payment to provide defendants with fair notice and to cabin liability,” the Court found that “nothing in the text of the [FCA] supports” such a proposed restriction, and that “policy arguments cannot supersede the clear statutory text,” but that, at any rate, the concern over rampant liability for violations of obscure Medicare regulations was allayed by the Act’s materiality requirement. 136 S.Ct. at 2001-02. “[Ijnstead of adopting a circumscribed view of what it means for a claim to be false or fraudulent,” the Court found that “concerns about fair notice and open-ended liability can be effectively addressed through strict enforcement of the Act’s materiality and scienter requirements.” Id. (internal citations omitted). Indeed, although the