         [Cite as State v. Jacquillard, 2013-Ohio-4778.]

                           IN THE COURT OF APPEALS
                  FIRST APPELLATE DISTRICT OF OHIO
                            HAMILTON COUNTY, OHIO

STATE OF OHIO,                                     :       APPEAL NO. C-130021
                                                           TRIAL NO. B-0700868
        Plaintiff-Appellee,                        :
                                                              O P I N I O N.
  vs.                                              :

SEAN C. JACQUILLARD,                               :

    Defendant-Appellant.                           :

Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Sentences Vacated in Part and Cause Remanded for
                           Resentencing

Date of Judgment Entry on Appeal: October 30, 2013

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Rachel Lipman
Curan, Assistant Prosecuting Attorney, for Plaintiff-Appellee,

The Farrish Law Firm and Michaela M. Stagnaro, for Defendant-Appellant.

Please note: this case has been removed from the accelerated calendar.
                     OHIO FIRST DISTRICT COURT OF APPEALS

SYLVIA S. HENDON, Presiding Judge.

       {¶1}    Defendant-appellant Sean Jacquillard has appealed from the trial

court’s entry revoking his community control and imposing sentence. Because the

trial court failed to make the necessary findings before imposing consecutive

sentences, failed to properly inform Jacquillard of the potential consequences he

faced for a violation of his postrelease-control obligations, and failed to properly

consider whether Jacquillard was entitled to credit for time served while

incarcerated in Florida, we vacate in part the sentences imposed and remand this

cause for resentencing.

                                 Procedural History

       {¶2}   Jacquillard pled guilty to two counts of nonsupport of dependants,

pursuant to R.C. 2919.21, in September of 2007.           The trial court sentenced

Jacquillard to a five-year period of community control. The court further informed

Jacquillard that it would impose a sentence of 12 months’ incarceration for each

offense, to be served consecutively, if Jacquillard violated his community control.

       {¶3}   In April of 2010, Jacquillard was found guilty of violating his

community control. The trial court terminated Jacquillard’s community control and

imposed an aggregate sentence of 24 months’ imprisonment. But the court granted

Jacquillard a 90-day stay before the sentence took effect. Jacquillard absconded

during that period. In November of 2012, Jacquillard was arrested in Florida. After

Jacquillard was returned to Ohio, the trial court conducted another sentencing

hearing. It imposed a sentence of 12 months’ imprisonment for each offense, to be

served consecutively. And it granted Jacquillard jail-time credit for 28 days served

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                     OHIO FIRST DISTRICT COURT OF APPEALS

while he awaited sentencing. But the court declined to grant Jacquillard credit for

time served while incarcerated in Florida.

                                       Sentencing

       {¶4}   In his first assignment of error, Jacquillard argues that the trial court

erred in the imposition of sentence.

       {¶5}   He first contends that the trial court erred by sentencing him to a

period of incarceration, rather than extending his community control.             R.C.

2929.15(B)(1) provides that when an offender violates a provision of his or her

community control, the trial court may impose a longer period of community control

under the same sanctions, may order a more restrictive sanction of community

control, or may sentence the offender to a term of imprisonment. We find no error

in the trial court’s decision to incarcerate Jacquillard, rather than to continue his

community control. Jacquillard absconded from the court’s jurisdiction, and the

trial court had ample justification to find that Jacquillard was not amenable to

community control.

       {¶6}   Jacquillard next contends that the trial court erred by imposing

consecutive sentences without making the requisite findings under R.C. 2929.14.

Jacquillard is correct. Pursuant to R.C. 2929.14(C)(4), a trial court must make

various findings before imposing consecutive sentences. The court is not required to

use talismanic words when making these findings, but it must be clear from the

record that the court engaged in the required statutory analysis. State v. Alexander,

1st Dist. Hamilton Nos. C-110828 and C-110829, 2012-Ohio-3349, ¶ 16. Here, the

trial court failed to make the findings provided for in R.C. 2929.14(C)(4).

Consequently, we sustain in part Jacquillard’s assignment of error. We vacate the

                                              3
                     OHIO FIRST DISTRICT COURT OF APPEALS

trial court’s imposition of consecutive sentences and remand this cause for the court

to consider the relevant criteria before imposing sentence.

       {¶7}   Jacquillard further argues that the trial court erred by failing to

properly inform him regarding postrelease control. When imposing sentence, the

trial court informed Jacquillard that he would be subject to a three-year period of

postrelease control upon being released from prison. The trial court further told

Jacquillard that if he violated his postrelease control, he would be returned to prison

for anywhere from “zero to three years.” This latter information was not accurate.

       {¶8}   R.C. 2967.28(F) discusses the imposition of sentence for a postrelease-

control violation. It provides that the imposed period of incarceration for each

violation “shall not exceed nine months, and the maximum cumulative prison term

for all violations under this division shall not exceed one-half of the stated prison

term originally imposed upon the offender as part of this sentence.”              R.C.

2967.28(F)(3).   Although the trial court incorrectly informed Jacquillard at the

sentencing hearing regarding the length of time that may be imposed for a

postrelease-control violation, both the plea form signed by Jacquillard and the trial

court’s sentencing entry correctly reflect the statutory language.

       {¶9}   In State v. Brown, this court discussed what type of action by the trial

court constituted sufficient notification to a defendant regarding postrelease control.

State v. Brown, 1st Dist. Hamilton Nos. C-020162, C-020163, and C-020164, 2002-

Ohio-5983.    We held that postrelease-control notification requires some verbal

exchange between the trial court and the defendant, and that the court may not rely

solely on notification language contained in a sentencing entry, which is typically

never seen by the defendant.      Id. at ¶ 27.     We acknowledged that notification

                                               4
                     OHIO FIRST DISTRICT COURT OF APPEALS

language contained on a plea form, a form seen and signed by the defendant, would

be sufficient when coupled with a verbal dialogue between the court and the

defendant ensuring that the defendant understands the postrelease-control language

contained on the plea form and the potential consequences for a violation. Id. at ¶

29.

       {¶10} Following our review of the record, we find that the facts of this case

do not comply with the type of notification required by Brown. Although the plea

form signed by Jacquillard contained the correct language regarding postrelease

control, the court did not comply with the second part of the notification

requirement. While it attempted a verbal dialogue with Jacquillard, that dialogue

contained incorrect information about the potential length of imprisonment

Jacquillard faced for a violation of postrelease control. We cannot say that the

court’s verbal exchange ensured that Jacquillard understood the postrelease-control

language contained on the plea form.       When informing a defendant about the

consequences of a postrelease-control violation, a trial court is not required to read

the statutory language verbatim. But it must ensure that it correctly informs the

defendant about the required information.         We sustain in part Jacquillard’s

assignment of error, and remand this cause for the trial court to correctly inform

Jacquillard of his postrelease-control obligations and the consequences for violating

those obligations.

       {¶11} Jacquillard last contends in this assignment of error that the trial court

erred in failing to give him credit for time served while incarcerated in Florida and

awaiting extradition and transport to Ohio.

                                              5
                      OHIO FIRST DISTRICT COURT OF APPEALS

       {¶12} R.C. 2967.191 provides that a defendant’s prison term shall be reduced

“by the total number of days that the prisoner was confined for any reason arising

out of the offense for which the prisoner was convicted and sentenced, including

confinement in lieu of bail while awaiting trial.” The trial court granted Jacquillard

credit for time spent in the local jail prior to trial, but declined to grant him credit for

time incarcerated in Florida. In so concluding, the court stated that “[t]he statute

says I can give credit for the transportation if I want to, but I’m only required to give

credit back to the time he makes it back to my jurisdiction.” The court cited the

embarrassment and inconvenience that Jacquillard had caused the court as its

reason for denying credit for the time that Jacquillard was incarcerated in Florida.

       {¶13} The trial court’s statement was not an accurate reflection of the law.

R.C. 2967.191 requires that a defendant be given credit for any time that the

defendant was incarcerated related to the offense for which he was convicted and

sentenced. This includes time incarcerated in another jurisdiction while awaiting

extradition for that offense. State v. Painter, 11th Dist. Ashtabula No. 2009-A-0016,

2009-Ohio-4929, ¶ 28. The record in this case does not reflect the amount of days

that Jacquillard was incarcerated in Florida. Nor does it reflect whether the Florida

incarceration was related solely to the Ohio charges for nonsupport of defendants, or

whether Jacquillard had been arrested on independent charges. If Jacquillard’s

incarceration in Florida was precipitated by his arrest on the nation-wide capias

issued by the trial court, and no other charges were brought against him, then he is

entitled to credit for time served in that jurisdiction while awaiting extradition. We

hold that the trial court erred in denying Jacquillard credit for his time incarcerated

in Florida while awaiting extradition without determining the reason for that

                                                 6
                      OHIO FIRST DISTRICT COURT OF APPEALS

incarceration.    On remand, the trial court must determine the reason for

Jacquillard’s incarceration in Florida and the length of that incarceration, and it

must credit Jacquillard for that time if required by R.C. 2967.191.

       {¶14} The first assignment of error is sustained in part and overruled in part.

                                 Ineffective Assistance

       {¶15} In his second assignment of error, Jacquillard contends that his trial

counsel was ineffective for failing to object to the aforementioned sentencing issues.

To establish ineffective assistance, a defendant must demonstrate that his counsel’s

performance was deficient and that the defendant was prejudiced by that deficient

performance. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80

L.Ed.2d 674 (1984).

       {¶16} We do not find counsel’s performance to be ineffective. First, the

record clearly indicates that the court considered giving Jacquillard credit for the

time that he was incarcerated in Florida, but ultimately declined to do so. We cannot

find that counsel failed to bring this issue to the court’s attention.   Nor was counsel

ineffective for failing to have argued that the trial court failed to make the requisite

findings before imposing consecutive sentences. Counsel had no opportunity to raise

this argument during the sentencing hearing, because trial courts are not required to

make these findings on the record and may instead fill out a felony-sentencing

worksheet when imposing consecutive sentences. We last consider counsel’s failure

to object to the trial court’s incorrect instruction regarding postrelease control. We

cannot find counsel to have been ineffective on these grounds.

       {¶17} Jacquillard’s second assignment of error is overruled.

                                                7
                      OHIO FIRST DISTRICT COURT OF APPEALS

                                       Conclusion

       {¶18} Jacquillard’s first assignment of error contending that the trial court

erred in the imposition of sentence is overruled in part and sustained in part. The

trial court’s imposition of consecutive sentences is vacated. On remand, the trial

court must comply with R.C. 2929.14(C) and make any required findings before

imposing consecutive sentences. It must also correctly inform Jacquillard about his

postrelease-control obligations and the potential consequences for violating those

obligations. Last, the court must determine whether Jacquillard is entitled, under

R.C. 2967.191, to credit for any time incarcerated in Florida.

                                                                   Judgment accordingly.

HILDEBRANDT and CUNNINGHAM, JJ., concur.

Please note:
       The court has recorded its own entry on the date of the release of this opinion.

                                                 8


176 F.3d 473
Daniel Scalzov.Insalaco's Markets, United Food & Commercial Workers Union,
Local No. 72
NO. 98-7152
United States Court of Appeals,Third Circuit.
January 28, 1999

1
Appeal From:  M.D.Pa.

2
Affirmed.


696 F.Supp.2d 1190 (2010)
UNITED STATES of America, ex rel. Jennifer PUTNAM, Plaintiff,
v.
EASTERN IDAHO REGIONAL MEDICAL CENTER; Eastern Idaho Health Services, Inc.; the Board of Trustees of Madison Memorial Hospital, a/k/a, d/b/a Madison Memorial Hospital; Idaho Falls Recovery Center; Matthew Stevens; Michelle Dahlberg; Speech and Language Clinic, Inc.; Premier Therapy Associates, Inc., a/k/a Therapy Services, Inc., a/k/a Teton Speech Language Pathology, Inc.; HCA Inc., a/k/a HCAthe Healthcare Company; HCAManagement Services, L.P., HTI Hospital Holdings, Inc.; Health Trust, Inc.the Hospital Company and Does 1 through 50, Defendants.
No. CIV. 4:07-192 WBS.
United States District Court, D. Idaho.
March 10, 2010.
*1192 Amy S. Howe, U.S. Attorney's Office, Boise, ID, Leslie S. Guillon, Michael A. Hirst, Hirst & Chanler LLP, Sacramento, CA, for Plaintiff.
Steven W. Berenter, Thomas J. Mortell, Hawley Troxell Ennis and Hawley LLP, Boise, ID, Darren S. Robins, Larren Keith Covert, R. James Archibald, Ronald L. Swafford, Swafford Law Office, Andrew M. Wayment, Steven J. Wright, Wright Wright & Johnson, PLLC, Idaho Falls, ID, for Defendants.

MEMORANDUM AND ORDER RE: MOTIONS FOR PARTIAL SUMMARY JUDGMENT
WILLIAM B. SHUBB, District Judge.
This action under the False Claims Act, 31 U.S.C. §§ 3729-3733 ("FCA"), is based on several speech language pathologists' and Medicare and Medicaid providers' alleged practice of billing Medicare or Medicaid for speech language services performed by unlicensed aides or assistants. Now pending before the court are the United States' motion and defendants Matthew Stevens, Premier Therapy Associates, Inc., also known as Therapy Services, Inc. and Teton Speech Language Pathology, Inc., and Teton Services, Inc.'s ("defendants") cross-motion for partial summary judgment.

I. Factual and Procedural Background

Stevens is a certified speech language pathologist ("SLP") in Idaho and is the *1193 owner of Premier Therapy Associates, Inc., which was formerly known as Teton Services, Inc. (U.S.' Third Corrected Am. Compl. ¶ 14.) On January 14, 1997, defendants entered into a Speech Pathology Services Agreement ("SPS Agreement") with defendant Madison Memorial Hospital ("Madison").[1] (Howe Aff. Ex. A.) Pursuant to the SPS Agreement, defendants provided speech therapy for outpatients of Madison at two different facilities in Idaho. Many of defendants' patients qualified for Medicaid and, even though the existing regulations did not allow SLPs to become Medicaid providers, Madison was able to seek reimbursement from Medicaid for defendants' treatment of its outpatients. Idaho Admin. Code r. 16.03.09.738 (2007); (Howe Aff. Ex. B ("Kearl Dep.") at 28:24-29:1.)
Pursuant to the SPS Agreement, defendants invoiced Madison $20.00 for each fifteen-minute unit "expended in speech pathology services." (Howe Aff. Ex. A § 4.C.) As discussed in more detail below, defendants often had unlicensed aides or assistants[2] meet alone with a patient for part of the patient's appointment and invoiced that time to Madison as time "expended in speech pathology services." For example, defendants would schedule two patients for the same hour and have an SLP meet with one patient for the first thirty minutes while the SLP's aide or assistant met with the other patient, and then the SLP and aide or assistant would swap patients for the remaining thirty minutes. When defendants utilized aides or assistants in this fashion, they invoiced Madison for two hours of "speech pathology services" and did not indicate that an aide or assistant performed one hour of the services.
To submit their invoices to Madison, defendants' employees entered the number of fifteen-minute units the SLPs indicated were spent with a patient into a program known as "AS400,"[3] which Madison provided. (Id. Ex. Aa ("Strayer Dep.") at 15:17-22.) The invoiced units for each patient were then electronically transmitted to Madison at the end of each month so that Madison could pay defendants and determine the charges to bill Medicaid. (See id. at 15:25-16:5; Christensen Dep. 98:2-3; Howe Aff. Ex. J ("Berrett Aff.") ¶ 4.) In submitting their time, it is undisputed that defendants lumped time spent by aides or assistants with time spent by SLPs, thereby making it impossible for Madison, or even defendants' own employees, to differentiate between units attributable to SLPs and those attributable to aides or assistants. (Kearl Dep. 49:12-14; Christensen Dep. 151:12-16, 159:18-160, 165:2-13.) Based on defendants' invoices, Madison billed Medicaid for all of the services defendants provided to Medicaid patients, including the services that were not provided by an SLP.
*1194 Alleging that claims for services rendered by aides or assistants were not entitled to reimbursement under Medicaid and thus resulted in the submission of false claims to the government, Relator Jennifer Putnam initiated this qui tam action. Pursuant to § 3730(b)(4) of the FCA, the United States intervened on June 19, 2007 and filed the operative Corrected Third Amended Complaint nine months later. (Docket Nos. 111, 116.)
The United States now moves for summary adjudication on the issue of liability with respect to its § 3729(a)(1) and § 3729(a)(2) FCA causes of action for the fiscal years 2003 to 2007. Defendants then filed a cross-motion for partial summary judgment, requesting the court to find, as a matter of law, that Medicaid provides for billing of speech therapy services on a per session basis and that defendants are not responsible for the bills Madison submitted to Medicaid because defendants are not Medicaid providers.[4]

II. Discussion

Summary adjudication is proper "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); see also id. R. 56(a) ("A party claiming relief may move, with or without supporting affidavits, for summary judgment on all or part of the claim."). A material fact is one that could affect the outcome of the suit, and a genuine issue is one that could permit a reasonable jury to enter a verdict in the non-moving party's favor. Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The party moving for summary adjudication bears the initial burden of establishing the absence of a genuine issue of material fact and can satisfy this burden by presenting evidence that negates an essential element of the non-moving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Alternatively, the moving party can demonstrate that the non-moving party cannot produce evidence to support an essential element upon which it will bear the burden of proof at trial. Id.
Once the moving party meets its initial burden, the non-moving party "may not rely merely on allegations or denials in its own pleading," but must go beyond the pleadings and, "by affidavits or as otherwise provided in [Rule 56,] set out specific facts showing a genuine issue for trial." Fed.R.Civ.P. 56(e); Celotex Corp., 477 U.S. at 324, 106 S.Ct. 2548; Valandingham v. Bojorquez, 866 F.2d 1135, 1137 (9th Cir. 1989). In its inquiry, the court must view any inferences drawn from the underlying facts in the light most favorable to the nonmoving party, but may not engage in *1195 credibility determinations or weigh the evidence. Anderson, 477 U.S. at 255, 106 S.Ct. 2505; Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). When, as in this case, parties submit cross-motions for partial summary judgment, the court must "evaluate each motion separately, giving the nonmoving party in each instance the benefit of all reasonable inferences." ACLU of Nev. v. City of Las Vegas, 333 F.3d 1092, 1097 (9th Cir.2003), cert. denied, 540 U.S. 1110, 124 S.Ct. 1077, 157 L.Ed.2d 897 (2004); accord Fair Hous. Council v. Riverside Two, 249 F.3d 1132, 1136 (9th Cir.2001).

A. Fraud Enforcement Recovery Act of 2009

Before assessing whether the United States is entitled to summary adjudication on its causes of action under § 3729, the court must determine which version of § 3729 controls. In 2009, Congress passed the Fraud Enforcement Recovery Act of 2009 ("FERA") and amended both of the subsections of § 3729 that are at issue in the pending motions. In addition to the substantive changes discussed below, FERA also altered the subdivision of the statute, making what was § 3729(a)(1) become § 3729(a)(1)(A) and what was § 3729(a)(2) become § 3729(a)(1)(B). Because the court ultimately concludes that FERA's amendments do not govern the United States' FCA causes of actions, the court will refer and cite to the pre-FERA subsections in this Order.
With respect to § 3729(a)(1), FERA deleted the following underscored language: "Any person who knowingly presents, or causes to be presented, to an officer or employee of the United States Government or a member of the Armed Forces of the United States a false or fraudulent claim for payment or approval...." Pub. L. No. 111-21, § 4(a), 123 Stat. 1617 (2009). The amendments to § 3729(a)(1) apply only to conduct that occurred after FERA was enacted on May 20, 2009, id. § 4(f), and thus the pre-FERA version of § 3729(a)(1) governs the United States' cause of action under that subsection.
With respect to § 3729(a)(2), FERA amended the underscored provisions for liability from any person who "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" to 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." Id. § 4(a). When enacting FERA, Congress provided that the amendments to § 3729(a)(2) "shall take effect as if enacted on June 7, 2008, and apply to all claims under the [FCA] ... that are pending on or after that date." Id. § 4(f)(1) (emphasis added). In a cursory footnote, the United States contends that the post-FERA version of § 3729(a)(2) controls in this case because its FCA causes of actions (i.e., "claims") were pending on June 7, 2008. The court must therefore determine whether Congress intended "claims" to refer to claims made to the government and governed by the FCA or claims alleged by the government in an FCA lawsuit.
In relevant part, § 3729(b)(2) currently defines "claim" as "any request or demand, whether under a contract or otherwise, for money or property ... [that] is presented to an officer, employee, or agent of the United States...." Before FERA, § 3729(c) similarly defined "claim" as
any request or demand, whether under a contract or otherwise, for money or property which is made to a contractor, guarantee, or other recipient if the United States Government provides any portion of the money or property which is requested or demanded, or if the Government *1196 will reimburse such contractor, grantee, or other recipient for any portion of the money or property which is requested or demanded.
The preand post-FERA definitions of "claim" in § 3729 unequivocally encompass claims made to the government, not FCA claims or causes of action alleged by the government in an FCA action. The titles of § 3729 ("False Claims") and the Act to which it belongs ("False Claims Act") further underscore that "claims" is a term of art in FCA cases that refers to claims made to the government for money or property.
FERA and its legislative history also show that Congress used the term "claims" to refer to requests for money or property made to the government and "cases" to refer to civil FCA actions. For example, immediately following Congress's provision for retroactive application of the amendments to § 3729(a)(2) to claims pending on or after June 7, 2008, it provided for immediate application of a different FERA amendment to "cases pending." See Pub.L. No. 111-21, § f(2) ("[S]ection 3731(b) of title 31, as amended by subsection (b); section 3733, of title 31, as amended by subsection (c); and section 3732 of title 31, as amended by subsection (e); shall apply to cases pending on the date of enactment.") (emphasis added); see also, e.g., S.Rep. No. 111-10 (2009), reprinted in 2009 U.S.C.C.A.N. 430, 438 ("Following the decision in [United States ex. rel. Totten v. Bombardier Corp., 380 F.3d 488 (D.C.Cir.2004)] a number of courts have held that the FCA does not reach false claims that are (1) presented to Government grantees and contractors, and (2) paid with Government grant or contract funds. These cases are representative of the types of frauds the FCA was intended to reach when it was amended in 1986."). Congress's use of the words "claims" and "cases" when amending the FCA and providing for retroactive application of certain subsections therefore illustrates that it intended claims to encompass claims for money or property that are governed by the FCA, not cases brought to enforce it.
The only two other district courts that have addressed this issue have also rejected the United States' position that the amendments to § 3729(a)(2) apply to FCA cases pending on or after June 7, 2008. See United States ex rel. Sanders v. Allison Engine Co., Inc., 667 F.Supp.2d 747, 752-53 (S.D.Ohio 2009); United States v. Science Applications Intern. Corp., 653 F.Supp.2d 87, 107 (D.D.C.2009). As the Sanders court discussed at length, application of FERA's amendments to claims for money or property that were submitted to and paid by the government before the effective date of the amendments also raises serious ex post facto concerns. See Sanders, 667 F.Supp.2d at 758 (concluding that "retroactive application of the new FCA language to [claims submitted and paid before June 7, 2008] violates the Ex Post Facto Clause.").
Accordingly, because the claims for Medicaid reimbursement at issue in this case were neither pending on nor filed after June 7, 2008, the pre-FERA version of § 3729(a)(2) governs the United States' cause of action under that subsection.

B. Subsection 3729(a)(1)

Subsection 3729(a)(1) provides for FCA liability if a person "knowingly presents, or causes to be presented, to an officer or employee of the United States Government or a member of the Armed Forces of the United States a false or fraudulent claim for payment or approval." To establish a cause of action under § 3729(a)(1), "the government must prove three elements: (1) a `false or fraudulent' claim; (2) which was presented, or caused to be presented, by the defendant to the *1197 United States for payment or approval; (3) with knowledge that the claim was false." United States v. Mackby, 261 F.3d 821, 826 (9th Cir.2001). Although § 3729 did not expressly contain a materiality requirement before FERA added one in 2009, the Ninth Circuit and at least five other circuit courts previously held that the government must also prove that the false statement was material. United States v. Bourseau, 531 F.3d 1159, 1170-71 (9th Cir.2008).

1. False or Fraudulent Claim

"The FCA does not define false. Rather, courts decide whether a claim is false or fraudulent by determining whether a defendant's representations are accurate in light of applicable law." Id. at 1164-65. For example, a claim may be false "even if the services billed were actually provided, if the purported provider did not actually render or supervise the service." Mackby, 261 F.3d at 826. Courts have also "interpreted the FCA to cover claims for ... Medicare cost reports containing nonallowed or inflated costs." Bourseau, 531 F.3d at 1164-65 (citing United States v. Halper, 490 U.S. 435, 437, 109 S.Ct. 1892, 104 L.Ed.2d 487 (1989), overruled on other grounds by Hudson v. United States, 522 U.S. 93, 118 S.Ct. 488, 139 L.Ed.2d 450 (1997); United States ex rel. A+ Homecare, Inc. v. Medshares Mgmt. Group, Inc., 400 F.3d 428, 451 (6th Cir.2005); Shaw v. AAA Eng'g & Drafting, Inc., 213 F.3d 519, 530 (10th Cir. 2000)).
The Idaho Administrative Code ("IDAPA") governs reimbursement for services provided to Medicaid patients. Beginning on July 1, 1999 and continuing until July 1, 2006, the IDAPA defined "Speech/Language Pathology And Audiology Services" as "[d]iagnostic, screening, preventative, or corrective services provided by a speech pathologist or audiologist, for which a patient is referred by a physician or other practitioner of the healing arts within the scope of his or her practice under state law." Idaho Admin. Code r. 16.03.09.003.73 (July 1, 1999) (emphasis added). From July 1, 2006 to April 2, 2008, the definition remained substantially the same but added a licensing requirement for speech pathologists based on new state statutory requirements for licensing enacted in 2005. Id. r. 16.03.09.012.23, 16.03.10.013.34 (July 1, 2006); Idaho Code Ann. § 54-2903(15).[5] The Idaho Department of Health and Welfare's Rules and Minimum Standards for Hospitals in Idaho treat speech pathology as a "rehabilitation service" and provide that rehabilitation services "shall be provided in accordance with orders of practitioners who are authorized by the medical staff to order the services and shall be given by qualified therapists." Idaho Admin. Code r. 16.03.04.440.01 (emphasis added).
Defendants do not dispute that, at all times relevant to the pending motions, time spent by SLP aides or assistants was not covered by or entitled to reimbursement from Medicaid. In fact, defendants' expert witness, Health Care Compliance Officer Ned Hillyard, explained, "The Regulations... require that speech language evaluations and speech language treatment sessions be provided by a qualified and state licensed [SLP] in order for the Provider to be reimbursed for such services." (Howe Aff. Ex. N at Ex. A.) Accordingly, because Medicaid did not cover speech therapy provided by aides or assistants, a claim for reimbursement for such services *1198 would constitute a false or fraudulent claim under the FCA.
The undisputed evidence before the court establishes that defendants had aides or assistants meet with patients without an SLP and invoiced Madison for those units without distinguishing them from units of therapy administered by SLPs. (See, e.g., Kearl Dep. 26:7-13, 29:13-20, 42:4-44:19, 56:6-14, 74:13-18, 143:11-18; Christensen Dep. 88, 150:20-23, 152:3-22, 154; Howe Aff. Ex. G at 6; Howe Aff. Ex. I (Stiles Aff.) ¶¶ 5-7; see also Christensen Dep. 88:11-89:5 (testifying that, as Stevens's aide, she treated patients from 2002 until sometime in 2004 when Stevens was out of town and the units were invoiced to Madison).)[6] While it is therefore undisputed that defendants invoiced Madison for services rendered by aides or assistants, the parties dispute whether Madison billed Medicaidand thereby made false claims to the governmentfor those services.
Defendants claim that any non-SLP units were not billed to Medicaid because the duration of a speech therapy appointmentand thus the amount of time the SLP spends with a patientis irrelevant for purposes of Medicaid reimbursement. Assessing defendants' argument and determining whether Madison's bills to Medicaid included false claims for reimbursement of non-SLP time requires a basic understanding of the complicated Medicaid interim reimbursement and reconciliation processes.
Reimbursement for services rendered to Medicaid patients begins with the interim reimbursement a provider receives after it bills Medicaid for a service. The interim reimbursement is a pre-determined percentage of the total amount charged for the service that is calculated based on the provider's cost-to-charge ratio (i.e., the costs the provider expended providing services compared to the charges it billed Medicaid for those services) from the prior fiscal year. (Carey Dep. at 43:18-44:11.) For example, if a provider billed Medicaid $200.00 for a service, it might have received only $160.00 as an interim reimbursement from Medicaid. (Id. at 20:13-18, 25:14-24.)
At the end of the fiscal year, Medicaid then conducted a reconciliation process to determine whether the interim payments the provider received during the year were sufficient or in excess of the provider's costs for the services it provided. (Id. at 107:21-108:25); see generally Bourseau, 531 F.3d at 1162 (discussing the Medicare reimbursement process). Similar to a tax return, the reconciliation process required Madison to submit a cost report to Medicare that included all of its costs for the services it provided. (Carey Dep. 45:4-21, 60:15-61:6.) Based on the Medicare cost report, Medicaid settled the total reimbursement for the fiscal year by giving a second reimbursement to the provider if its costs exceeded its interim reimbursements or requiring the provider to reimburse Medicaid if its costs were less than its interim reimbursements. (Id. at 45:4-21, 60:9-24.)
In preparing its billings to receive its interim reimbursements, Madison was required to identify the services it provided *1199 according to the American Medical Association's Current Procedural Terminology ("CPT") Codes. Some CPT Codes provide a suggested duration of time for a service or require the provider to identify the duration of the service. However, the CPT Codes used for billing speech language therapy provide for billing on a per session basis without requiring the provider to meet a minimum amount or identify the duration of time for the appointment. (Covert Aff. Exs. A-F.)[7] Unlike the SPS Agreement's provision for invoicing based on fifteen-minute units, Medicaid provides for billing one speech therapy session regardless of whether the appointment lasted five minutes, forty-five minutes, or one hour. (Id.; Carey Dep. 35:15-19, 36:10-17.) Based on this per session billing system, defendants argue that Madison did not submit false claims to Medicaid because Medicaid entitled Madison to reimbursement for one session of speech therapy regardless of the amount of time an SLP spent with a patient.
While the CPT Codes may have allowed Madison to bill one session of therapy regardless of the duration of time the SLP spent with the patient, neither the CPT Codes nor Medicaid regulations established a flat rate for a speech therapy session. To the contrary, the amount of money Madison received during the interim reimbursement and reconciliation processes was directly affected by the amount of time the SLP spent with the patient. First, when preparing its billings to receive its interim reimbursements, Madison may have billed for one session of therapy regardless of duration, but the amount it billed for each session varied depending on the duration of the session. (Carey Dep. 49:8-11, 87:22-88:19; Howe Aff. Ex. J ("Berrett Aff.") ¶ 4.) Therefore, when defendants' invoice for an appointment included time for non-SLP services, Madison used that time to determine the amount it billed Medicaid for the session and thus received greater interim reimbursements than it would have if it did not include non-SLP time in calculating its charge for the session.
Second, and more importantly, Madison included all of the units defendants invoiced, including fees for services performed only by aides or assistants, on its annual cost reports during the reconciliation process. (Id. at 45:22-46:18, 59:2-60:8, 60:9-18, 65:15-66:4, 84:12-85:14, 106:3-7, 109:1-13; see Howe Aff. Ex. P ("Hexem Aff.") ¶ 5 (indicating that all of the payments Madison made to defendants between 2004 and 2007 "were included by Madison as reimbursable in the cost reports submitted to Medicare").) Madison's inclusion of payments made to defendants for services rendered by aides or assistants thus resulted in Madison receiving reimbursement for services that were not covered by Medicaid.
Consequently, the fact that Medicaid provided for billing on a per session basis did not prevent Madison from billing Medicaid for the services rendered by aides or assistants because the number of units defendants invoiced directly affected the interim reimbursements Madison sought and received and the costs it was reimbursed for during the reconciliation process. Accordingly, Madison's billings and cost reports included false claims because they sought reimbursement for speech therapy services that were rendered by aides or assistants.

*1200 2. Presentment

Under the second element, which addresses causation, § 3729(a) (1) requires that a person "presents, or causes to be presented" the false claim "to an officer or employee of the United States Government or a member of the Armed Forces of the United States." 31 U.S.C. § 3729(a)(1); Mackby, 261 F.3d at 827. Although the statute refers specifically to presentment of a claim to "an officer or employee of the United States Government," defendants do not dispute and district courts have almost unanimously held that presentment to the state agency responsible for administering the state's Medicaid program is sufficient because the funds used to pay the claims are predominantly federal. See United States ex rel. Ven-A-Care v. Actavis Mid Atl. LLC, 659 F.Supp.2d 262, 269 (D.Mass.2009) (citing five other district court cases that have "found that Medicaid claims are presented to the federal government" and recognizing a Northern District of Alabama case as the only case reaching the opposite conclusion, which the same judge later rejected); see also 31 U.S.C. § 3729(c) (defining "claim" to include "any request or demand... for money or property ... if the United States Government provides any portion of the money or property which is requested or demanded...."); Federal Medical Assistance Percentages or Federal Financial Participation in State Assistance Expenditures (FMAP), available at http://aspe.hhs.gov/health/fmap.htm (indicating that, during the fiscal years at issue in the pending motions, the federal government provided between 69.91 and 73.97 percent of the Idaho's Medicaid funds). The legislative history of § 3729(a)(1) also confirms that Congress intended the FCA to extend to fraudulent Medicaid claims. See, e.g., S.Rep. No. 99-345 (1986), reprinted in 1986 U.S.C.C.A.N. 5266, 5274 ("A false claim for reimbursement under the Medicare, Medicaid or similar program is actionable under the [FCA]....").
Not only can presentment of a false claim to the state agency responsible for administering Medicaid satisfy the presentment requirement, a defendant "need not be the one who actually submitted the claim forms in order to be liable." Mackby, 261 F.3d at 827. So long as the defendant caused the false claim to be presented to the government, the defendant cannot escape liability merely because the defendant did not submit the claim or have "`direct contractual relations with the government.'" Id. (quoting United States ex rel. Marcus v. Hess, 317 U.S. 537, 544-45, 63 S.Ct. 379, 87 L.Ed. 443 (1943)).
Here, defendants' invoices to Madison clearly caused Madison to present false claims to Medicaid. The SPS Agreement between defendants and Madison provided for defendants to submit invoices to Madison and for Madison to obtain reimbursement from Medicaid based on those invoices. With respect to "Billing," the SPS Agreement provides:
The Hospital shall provide the services of the business office including filing, billing, collecting and carrying accounts receivable. Contractor shall file with the business office of the Hospital daily charge sheets or records, setting forth the services performed and the fees determined pursuant to Section 4(A) of this Agreement. The Hospital will bill the patient and/or his insurance or other responsible party directly for the cost of the services performed. In billing for charges, the Hospital shall include one charge to the patient for speech pathology services rendered to the patient and shall not distinguish between the Hospital and the Contractor's fee.

(Howe Aff. Ex. A § 4.B (emphasis added).) The SPS Agreement further provides that defendants' "records must be sufficient to *1201 enable the Hospital to obtain payment for its services and facilities . . . . [and that t]he Contractor will assist the Hospital to comply with any and all governmental record-keeping and reporting requirements." (Id. § 3.G.) With respect to Medicaid, the SPS Agreement specifically states,
The Contractor will comply with those provisions of the law which affect reimbursement to the Hospital and will cooperate fully with the Hospital in Medicare and Medicaid audits and other reimbursement matters. The Contractor will not knowingly and intentionally do anything which will affect adversely such reimbursement or the Medicare/Medicaid provider status of the Hospital.
(Id. § 4.E.)
Consistent with the provisions of the SPS Agreement, Calvin Carey, Madison's Chief Financial Officer from January 1998 to October 2007, testified at his deposition that Madison "relied" on defendants to invoice the number of units of speech pathology services it provided to patients and that Madison "passed" the allowable costs to Medicaid. (Carey Dep. 14:15-18, 25:6-13, 26:17-18, 84:12-85:14.) Carey further explained that the charges Madison billed Medicaid and itemized on its cost reports were based on the number of units defendants identified in their invoices. (Id. at 49:8-11, 60:9-18.) Madison's current Chief Financial Officer, Gregory Hexem, also indicated that all of the payments Madison made to defendants for speech therapy services between 2004 and 2007 (totaling $4,428,423.00) "were included by Madison as reimbursable in the cost reports submitted to Medicare." (Hexem Aff. ¶ 5.)
Accordingly, because defendants' invoices to Madison were intended to be used and were in fact used by Madison to determine the reimbursements it requested and received from Medicaid, defendants caused false claims to be presented to the government.

3. Knowledge of Falsity

As defined by § 3729, "knowingly" means that "a person, with respect to information(1) has actual knowledge of the information; (2) acts in deliberate ignorance of the truth or falsity of the information; or (3) acts in reckless disregard of the truth or falsity of the information." 31 U.S.C. § 3729(b)(1)-(3).[8] Under this requirement, "no proof of specific intent to defraud is required." Id. § 3729(b).
The "knowingly" element of an FCA claim provides the requisite degree of scienter and carries forth Congress's intent that the FCA does not punish "`honest mistakes or incorrect claims submitted through mere negligence.'" United States ex rel. Hochman v. Nackman, 145 F.3d 1069, 1073 (9th Cir.1998) (quoting S.Rep. No. 99-345, at 7 (1986), reprinted in 1986 U.S.C.C.A.N. 5266, 5272). A defendant can avoid liability under § 3729(a)(1) if the defendant acted in reliance on "a good faith interpretation of a regulation . . . because the good faith nature of his or her action forecloses the possibility that the scienter requirement is met." United States ex rel. Oliver v. Parsons Co., 195 F.3d 457, 460 (9th Cir.1999); accord United States ex rel. Lockyer v. Haw. Pac. Health Group Plan for Employees of Haw. Pac., 343 Fed.Appx. 279, 281 (9th Cir.2009).
At the same time, however, the definition of "knowingly" reaches "`what has become known as the "ostrich" type situation where an individual has "buried his head in the sand" and failed to make simple inquiries which would alert him that *1202 false claims are being submitted.'" Bourseau, 531 F.3d at 1168 (quoting S.Rep. No. 99-345, at 21 (1986), reprinted in 1986 U.S.C.C.A.N. 5266, 5286). With § 3729, Congress thus "adopted `the concept that individuals and contractors receiving public funds have some duty to make a limited inquiry so as to be reasonably certain they are entitled to the money they seek.'" Id. "While the Committee intends that at least some inquiry be made, the inquiry need only be `reasonable and prudent under the circumstances.'" Id.; see also Heckler v. Cmty. Health Servs. of Crawford County, Inc., 467 U.S. 51, 63-64, 104 S.Ct. 2218, 81 L.Ed.2d 42 (1984) ("Protection of the public fisc requires that those who seek public funds act with scrupulous regard for the requirements of law. . . . As a participant in the Medicare program, respondent had a duty to familiarize itself with the legal requirements for cost reimbursement."); accord Bourseau, 531 F.3d at 1168; Mackby, 261 F.3d at 828.
In his brief affidavits, Stevens does not assert that he believed services rendered by aides or assistants were entitled to reimbursement from Medicaid between 2003 to 2007.[9] Defendants contend, however, that they believed the Medicaid regulations and billing codes provided for Madison to bill Medicaid for one session of therapy even if the SLP did not meet with the patient for the entire appointment. Based on this understanding, defendants claim that their inclusion of any time spent by aides or assistants in their invoices to Madison did not "knowingly" result in Madison's false claims to Medicaid because defendants believed Madison simply billed Medicaid for one session of therapy regardless of the amount of time the SLP did or did not spend with a patient. Although defendants' interpretation ultimately fails for the reasons discussed above, defendants can withstand summary judgment on the knowledge element of § 3729(a)(1) if a disputed issue of fact remains with respect to whether defendants had knowledge of, were deliberately ignorant to, or recklessly disregarded the fact that Madison was billing and receiving reimbursement from Medicaid for services rendered by defendants' aides or assistants.
The United States has submitted evidence that suggests defendants did not hold their mistaken beliefs in good faith because they were, at the very least, reckless with respect to their invoices to Madison. *1203 First, the United States submitted a hand-written note by Stevens that memorialized a conversation he had with Steve Brown, a "Program Manager for Medicaid," on July 12, 2007. Stevens's note states:
Asked for clarification on use of aides and/or assistants. Explained that we use assistants, but that we don't bill for their time. (We are contract agency and MMH bills for our time) I am present for a portion of all the therapy services. . . etc. Steve said we are using aids/assistants appropriately.
(Howe Aff. Ex. Q (emphasis added).) According to the United States, this note shows Stevens knew that services rendered by aides or assistants were not reimbursable under Medicaid, thus prompting him to intentionally misrepresent defendants' invoicing practices during the phone conversation. However, when all inferences are taken in favor of defendants, it would also be reasonable to infer from the note that Stevens's representation that defendants did not bill for time spent by aides or assistants was based on his belief that Madison was billing on a per session basis for services at a flat rate regardless of the duration of the appointment the SLP spent with the patient.
The United States also submitted "demand bills," which were patient-specific documents generated by the AS400 program on a monthly basis that identified all of the charges Madison had billed for a patient. (Carey Dep. 80:7-18, 103:9-104:17.) The discovery defendants produced in this case, (Howe Aff. ¶¶ 3-7), which included documents pertaining to patients Stevens treated, included copies of at least seventy-six monthly demand bills for services rendered between 2003 to 2007. (Howe Aff. Ex. D at 233287-233307 (patient file of Amy Campbell); id. Ex. E at XXXXXX-XXXXXX, 208094-208113 (patient file of Andrew Rushton); id. Ex. H at 00305 (patient Hyrum Whittaker), 00159 (patient Mikel Townsley); see Christensen Dep. 170, 173 (indicating that Whittaker and Townsley were Stevens's patients).)
The demand bills defendants produced list the duration of time billed for each visit; some of the demand bills indicate the duration of a visit by listing the quantity of fifteen-minute units and others list the total duration of each visit. For each appointment, the demand bills charge a price that corresponds with the duration of the visit. For example, a thirty-minute session was billed at $79.00, a forty-five-minute session was billed at $120.00, a sixty-minute session was billed at $160.00, and a session of six fifteen-minute units (one-and-a-half hours) was billed at $240.00. (Howe Aff. Ex. E at 208052-208054.) Significantly, the amount charged for each session has a direct correlation to the duration of the session, with Madison billing $39.50-$40.00 for every fifteen minutes in 2003, $40.00 for every fifteen minutes in 2004, and $40.00-$41.75 for every fifteen minutes in 2005. (Id. Ex. D at 233287-233307; id. Ex. E at XXXXXX-XXXXXX, 208094-208113; id. Ex. H at 00305, 00159.)
The demand bills also indicate deductions to the balances that are credited to "Allowance Medicaid" and "PMT Medicaid EDS." (Id. Ex. D at 233275-233307; id. Ex. E at XXXXXX-XXXXXX; id. Ex. H at 00305, 00159.) In all of the demand bills before the court, the deductions credited to "Allowance Medicaid" or "PMT Medicaid EDS" equal the exact amount of the charges on the particular demand bill, thus bringing the balance on each of the demand bills to zero based solely on allowances or payments attributed to Medicaid. (Id. Ex. D at 233287-233307; id. Ex. E at XXXXXX-XXXXXX, 208094-208113; id. Ex. H at 00305, 00159.)
*1204 Despite defendants' access to these demand bills, Stevens states in his affidavit that "[a]t no[] time did [Madison] inform or involve me or anyone at Premier Therapy Associates, Inc., Teton Speech Language, Inc., or Teton Speech Language Pathology Services of the billing system between [Madison] and Medicaid and Medicare." (Stevens Aff. ¶ 19.) In light of defendants' professed lack of knowledge about Madison's billings to Medicaid, the United States has failed to show that defendants saw or, more importantly, that they understood the demand bills.
First, the date noted at the top of each demand bill is August 8, 2007, which corresponds to the production of discovery in this case and suggests that none of the demand bills were printed until discovery commenced in this case. While it is thus undisputed that defendants had access to the demand bills via their computers, a jury could reasonably infer that defendants neither accessed nor viewed the demand bills at the times relevant to the dispute. Based on defendants' purported lack of knowledge about Madison's billing to Medicaid and the knowledge required to understand the demand bills, a jury could also reasonably find that the demand bills were insufficient to put defendants on notice that Madison was billing for services rendered by aides or assistants. Consequently, whether defendants viewed the demand bills and whether they acted knowingly, deliberately ignorant, or recklessly when they continued to invoice Madison for services rendered by aides or assistants despite the information in the demand bills raise disputed issues of fact that must be resolved at trial.
The United States also submitted Carey's deposition, in which he explained that, for at least a period of time, Madison sent Stevens daily emails that included a link to an attachment created by the AS400 program that showed the amount Madison billed Medicaid for each patient that day. (Carey Dep. 54:9-15, 79:6-15, 102:12-23.) Although Stevens had difficulty opening the link for a certain amount of time, Carey personally went to defendants' office and ensured that the link was working. (Id. at 54:16-56:7, 69:20-70:17.) It is unclear from Carey's testimony, however, whether those emails were sent at the times relevant to this dispute and whether the information was broken down by each visit like the demand bills. Carey's testimony is thus insufficient to establish, as a matter of law, that defendants knew or acted in deliberate ignorance or with a reckless disregard to the fact that Madison was billing Medicaid for time expended by aides or assistants.
Lastly, there is no evidence before the court suggesting that Stevens had knowledge about the complicated Medicaid reconciliation process or that Madison included the fees it paid to defendants for non-SLP services in its annual cost reports. In fact, Stevens states in his affidavit, "During the time period at issue in this case, I had no knowledge of [Madison's] cost report procedure, guidelines, or percentages. No one from Madison [] ever discussed the cost report or explained what it was or its purpose to me or anyone with Premier Inc." (Second Stevens Aff. ¶¶ 3-4.)
Accordingly, the United States has failed to establish the lack of a genuine issue of material fact with respect to whether defendants knew or acted in deliberate ignorance or with a reckless disregard to the fact that Madison was billing and receiving reimbursement from Medicaid for services rendered by defendants' aides or assistants.

4. Materiality

A false statement is material if "it has a natural tendency to influence, *1205 or [is] capable of influencing, the decision of the decisionmaking body to which it was addressed." Bourseau, 531 F.3d at 1171 (internal quotation marks omitted) (alteration in original). The natural tendency test "focuses on the potential effect of the false statement when it is made rather than on the false statement's actual effect after it is discovered." Id. Based on the court's prior discussion about how the number of units defendants invoiced directly affected the interim and final reimbursements Madison requested and received, defendants' invoices and the resulting billings to Medicaid clearly satisfy the FCA's materiality requirement.

C. Subsection 3729(a)(2)

Subsection 3729(a) (2) of the FCA provides for liability for "[a]ny person who 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 court's conclusions that Madison's requests for reimbursement for non-SLP services constituted "false or fraudulent" claims and that defendants' statements satisfy the materiality requirement apply equally to the United States' § 3729(a)(2) cause of action. Similarly, because the definition of "knowingly" for § 3729(a)(2) is the same as it is for § 3729(a)(1), the court's conclusion that a genuine issue of material fact remains on that element also applies to the United States' cause of action under § 3729(a)(2). See Wang v. FMC Corp., 975 F.2d 1412, 1420 (9th Cir.1992) ("The Act's scienter requirement is laid out in section 3729(b)."). Thus, the unique element of the United States' cause of action under § 3729(a)(2) is that the defendants must have caused a false record or statement to be made or used "to get a false or fraudulent claim paid or approved by the Government." 31 U.S.C. § 3729(a)(2); see also Allison Engine Co., Inc. v. United States ex rel. Sanders, 553 U.S. 662, 128 S.Ct. 2123, 2130 n. 2, 170 L.Ed.2d 1030 (2008) (explaining that the intent deriving from 3729(a)(2)'s "to get" language is distinct from the statute's "knowing" element).
In a recent decision, the Supreme Court held that the "to get" language in § 3729(a)(2) requires an FCA plaintiff to prove that the defendant "intended that the false record or statement be material to the Government's decision to pay or approve the false claim," which requires that the defendant had "the purpose of getting a false or fraudulent claim `paid or approved by the Government.'" Allison Engine Co., Inc., 128 S.Ct. at 2126, 2128 (emphasis added). The Court further explained that "getting a false or fraudulent claim `paid . . . by the Government' is not the same as getting a false or fraudulent claim paid using `government funds.' Under § 3729(a)(2), a defendant must intend that the Government itself pay the claim." Id. at 2128 (internal citation omitted).
Similar to the case at hand, Allison Engine Co. dealt with claims made by a subcontractor that were submitted to the prime contractor. The Court explained that a subcontractor's submission of a false statement to a private entity is insufficient unless the subcontractor intends for "the Government to rely on that false statement as a condition of payment." As an example, the Court suggested that the "to get" requirement could be satisfied if a subcontractor made a "a request or demand that was originally `made to' a contractor, grantee, or other recipient of federal funds and then forwarded to the Government." Id. at 2129 n. 1 (emphasis added). It would be insufficient, however, to show "merely that `[t]he false statement's use. . . result[ed] in obtaining or getting payment or approval of the claim.'" Id. at 2126 (alterations and omission in original).
*1206 Here, defendants neither submitted claims to Medicaid nor received payments from Medicaid. As discussed above, defendants' invoiceswhich indeed caused the submission of false claims to Medicaidwere submitted to and paid only by Madison. There is no evidence that the government ever received those invoices or was even aware they existed. Furthermore, the SPS Agreement did not contemplate that defendants' receipt of payment from Madison was dependent on Madison's receipt of reimbursement from Medicaid, nor did it provide for Madison to receive a reimbursement from defendants if Medicaid denied Madison's claims based on the services defendants provided. (Howe Aff. Ex. A ¶ 4.C; see also Carey Dep. 78:7-10 (answering affirmatively when asked, "So irrespective of what Medicaid finally compensated you, you paid him pursuant to that contract?").)
At most, it would be reasonable to infer that defendants may have wanted Medicaid to reimburse Madison in an amount equal to or exceeding the charges defendants invoiced because Medicaid's reimbursement at a lesser amount may have jeopardized defendants' continued relationship with Madison. Even if defendants harbored such an intent, the "direct link" between defendants' false statement and Medicaid's decision to reimburse Madison is too "attenuated" to establish liability. Allison Engine Co. Inc., 128 S.Ct. at 2130. Therefore, while it is clear that defendants intended Madison to rely on its false statements in their invoices, there is no evidence that defendants intended the government to receive, let alone rely on, their statements. See id. ("If a subcontractor or another defendant makes a false statement to a private entity and does not intend the Government to rely on that false statement as a condition of payment, the statement is not made with the purpose of inducing payment of a false claim `by the Government.'") (emphasis added).
Accordingly, even though defendants' statements in their invoices caused false claims to be submitted to the government, the United States has failed to establish that defendants made the statements with the intent that the government rely on and pay their invoices.

III. Conclusion

On its § 3729(a)(1) cause of action for fiscal years 2003 through 2007, the United States has proven the lack of a genuine issue of material fact with respect to the elements of a false or fraudulent claim and presentment, as well as the materiality requirement. A genuine issue remains for trial, however, with respect to whether defendants had "knowledge," as defined by § 3729(b)(1)-(3), of the false claims they caused Madison to submit to Medicaid. Therefore, the sole issue remaining for trial on the United States' § 3729(a)(1) cause of action is whether defendants had knowledge of, were deliberately ignorant to, or recklessly disregarded the fact that Madison was billing and receiving reimbursement from Medicaid for services rendered by defendants' aides or assistants.
On its cause of action under § 3729(a)(2) for fiscal years 2003 to 2007, the United States has also proven the lack of a genuine issue of material fact with respect to the false or fraudulent claim element and materiality requirement. The only two issues remaining for trial on its § 3729(a)(2) cause of action are thus whether defendants had "knowledge," as defined by § 3729(b)(1)-(3), of the false claims they caused Madison to submit to Medicaid and whether defendants caused a false statement to be made or used "to get a false or fraudulent claim paid or approved by the Government."
IT IS THEREFORE ORDERED that
(1) the United States' Motion for Leave to File Complete Legislative History to *1207 Supplement Defendants' Post-Hearing Filing be, and the same hereby is, GRANTED;
(2) the United States' motion for partial summary judgment on its causes of action under §§ 3729(a)(1) and (2) for fiscal years 2003 to 2007 be, and the same hereby is, DENIED; and
(3) defendants' cross-motion for partial summary judgment be, and the same hereby is, DENIED as moot.
Pursuant to the provisions of Rule 56(d) of the Federal Rules of Civil Procedure, the court determines that the elements of a false or fraudulent claim and presentment and the materiality requirement on the United States' cause of action under § 3729(a)(1) and the element of a false or fraudulent claim and the materiality requirement on its cause of action under § 3729(a)(2) for fiscal years 2003 to 2007 have been established and are not genuinely at issue.
NOTES
[1]  The Board of Trustees of Madison Memorial Hospital, also known as and doing business as Madison Memorial Hospital, is a defendant in this action but is not a party to the pending motions for summary adjudication.
[2]  Idaho law did not provide for the licensing of SLP aides or assistants until 2005. See Idaho Code Ann. § 54-2903(16)-(17). The parties agree that whether defendants' employees are considered aides or assistants or were licensed after 2005 is not material to the United States' FCA causes of action.
[3]  Defendants also used "REDOC" software to keep track of time spent with a patient. Although it appears the AS400 program, not the "REDOC" software, prepared the invoices submitted to Madison, it is not entirely clear from the witnesses' testimony which program actually created the invoices. (See, e.g., Howe Aff. Ex. F ("Christensen Dep.") at 96:8-98:5.) The precise program used is not material to the United States' FCA causes of action.
[4]  For the first time at oral argument, defendants indicated that they also requested summary adjudication with respect to the inapplicability of the Fraud Enforcement Recovery Act of 2009 to this case. Although the court must address whether that Act governs this case, defendants did not dispute the applicability of the Act in their memoranda in opposition to the United States' motion or in support of their own motion.

Defendants also argued at oral argument that Count II from the United States' Corrected Third Amended Complaint should be dismissed because it alleges only that defendants "submitted," not "caused to be submitted," false claims. Defendants' motion and supporting memoranda are silent as to any such request and do not attack the sufficiency of the allegations in the Corrected Third Amended Complaint. The court will therefore not address whether the United States sufficiently plead Count II, which alleges a claim under § 3729(a)(3).
[5]  The IDAPA was further amended on April 2, 2008 to provide that "[s]ervices provided by speech-language pathology assistants are considered unskilled services, and will be denied as not medically necessary if they are billed as speech-language pathology services." Idaho Admin. Code r. 16.03.09.732.02.
[6]  The parties dispute whether the SPS Agreement's provision for defendants to invoice Madison for "speech pathology services" encompassed services rendered by aides or assistants. (See Howe Ex. A §§ 2, 4.C (omitting a definition of "speech pathology services," but providing that uncapitalized terms "will have the ordinary meaning generally understood in the health care field").) Even if a genuine issue of fact about the interpretation of the SPS Agreement exists, the dispute is not material to defendants' potential liability under the FCA because the private agreement cannot alter the fact that Medicaid did not cover services rendered by aides or assistants.
[7]  Defendants provided the current CPT Codes, not the codes that were in effect between 2003 and 2007. Nonetheless, the United States has not suggested that the CPT Codes in effect during the years relevant to its pending motion were materially different or did not provide for the billing of speech therapy on a per session basis.
[8]  Although FERA renumbered the entirety of § 3729, including its definition of "knowingly" that is now in § 3729(b)(1)(A), it did not alter the definition.
[9]  Defendants have represented that, "At the time of entering into [the SPS Agreement] in 1997, time expended by assistants was billable to Medicaid pursuant to the guidelines." The excerpt from a prior version of the IDAPA that defendants provided to support this assertion references 1999 amendments, thus appears to have been in effect sometime after 1997. (See Defendants' Supplement (Docket No. 241).) In response to defendants' filing, the United States also filed a Motion for Leave to File Complete Legislative History to Supplement Defendants' Post-Hearing Filing, which the court will grant. In its motion, the United States represents that the version defendants filed is from 1999.

The excerpt defendants filed states, "Medicaid will only reimburse for services provided by qualified staff. . . . Speech/Audiological therapy evaluation and treatment[:] Must be provided by or under the direction of a speech pathologist or audiologist who possesses a certificate of clinical competence from the American Speech and Hearing Association;. . . ." (Id. at Idaho Admin. Code r. 16.03.09.05.l.) It also states that "[p]araprofessionals, such as aides or therapy technicians, may be used by the school to provide. . . speech therapy if they are under the supervision of the appropriate professional." (Id. at r. 16.03.09.06 (emphasis added).)
Even assuming defendants' representation about the content of the 1997 regulations is accurate, it is not relevant with respect to defendants' knowledge during the years relevant to the United States' pending motion because defendants do not assert that they continued to believe that time spent by aides or assistants was covered by Medicaid between 2003 and 2007.


                     NOTICE: NOT FOR OFFICIAL PUBLICATION.
 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
                 AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

                                    IN THE
             ARIZONA COURT OF APPEALS
                                DIVISION ONE

                       STATE OF ARIZONA, Appellee,

                                        v.

               EDWARD EUGENE BROWN, JR., Appellant.

                             No. 1 CA-CR 18-0455
                               FILED 7-18-2019

           Appeal from the Superior Court in Maricopa County
                      No. CR2016-126171-001 DT
            The Honorable David V. Seyer, Judge Pro Tempore

                                  AFFIRMED

                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Jennifer L. Holder
Counsel for Appellee

The Stavris Law Firm, PLLC, Scottsdale
By Christopher Stavris
Counsel for Appellant

                       MEMORANDUM DECISION

Judge Lawrence F. Winthrop delivered the decision of the Court, in which
Presiding Judge Paul J. McMurdie and Judge Jennifer M. Perkins joined.
                            STATE v. BROWN
                           Decision of the Court

W I N T H R O P, Judge:

¶1            Edward Eugene Brown, Jr. appeals his convictions and
sentences for two counts of aggravated driving while under the influence
of intoxicating liquor (“DUI”), arguing the trial court erred in denying his
motion for judgment of acquittal, see Ariz. R. Crim. P. (“Rule”) 20(a)(1),
because the State presented insufficient evidence to show he knew or
should have known his license was suspended at the time of the DUIs. For
the following reasons, we affirm.

                 FACTS AND PROCEDURAL HISTORY

¶2            We view the facts in the light most favorable to sustaining the
verdicts and resolve all reasonable inferences against Brown. See State v.
Kiper, 181 Ariz. 62, 64 (App. 1994).

¶3           On June 6, 2015, Buckeye Police Sergeant Larson observed
Brown’s Nissan Maxima traveling 75 miles per hour in a 65 mile-per-hour
zone on Interstate 10 and twice drift across the solid white shoulder line.
After conducting a traffic stop, Sergeant Larson asked Brown—the vehicle’s
only occupant—for his license, registration, and insurance.

¶4            While Brown searched for his paperwork, Sergeant Larson
noticed an open sixteen-pack of beer in the back seat, several cans of beer
on the vehicle’s floor, and a half-empty can of beer in the center console.
The officer could also smell the odor of alcoholic beverages emanating from
the vehicle. Brown was unable to find his registration or proof of insurance
and told the officer he had left his wallet with his license at home.

¶5             Brown’s speech was slurred, and his eyes were bloodshot and
watery. Sergeant Larson asked Brown to step out of his vehicle so the
officer could conduct field sobriety tests. As Brown exited the vehicle, he
used his left hand to support himself, then walked to the rear of the vehicle,
and leaned against the trunk. Brown complied with Sergeant Larson’s
request to step away from the vehicle, but he began swaying from side to
side and front to back when he did so. Brown then exhibited six out of six
cues for intoxication during a horizontal gaze nystagmus test and could not
perform additional field tests.

¶6            Sergeant Larson arrested Brown for DUI. In searching Brown
incident to that arrest, Sergeant Larson found Brown’s driver’s license in
one of his pockets. Sergeant Larson ran the license through his patrol car’s
computer, which showed the license as being valid. Brown later submitted

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to a blood alcohol test, which showed his blood alcohol concentration at the
time was .144.

¶7            The State charged Brown by information with driving or
actual physical control of a vehicle while his driver’s license or privilege to
drive was suspended and (1) while under the influence of intoxicating
liquor or drugs such that he was impaired to the slightest degree (Count 1),
and (2) with an alcohol concentration of 0.08 or more in his body within two
hours of the time of driving (Count 2), both class 4 felonies. See Ariz. Rev.
Stat. (“A.R.S.”) §§ 28-1381(A)(1), (2), -1383(A)(1). The State also alleged
Brown had two prior felony convictions.

¶8            At trial, Brown did not dispute he had been drinking and
driving and was under the influence of alcohol on June 6, 2015, but,
pointing to the fact that Sergeant Larson had run his license and concluded
it was valid, he disputed he knew or should have known his license was
suspended at the time. To prove Brown’s license was suspended and that
he knew or should have known it was, the State called a records custodian
from the Motor Vehicle Division (“MVD”) to testify and offered a redacted
version of Brown’s motor vehicle record, which was admitted into
evidence. The records custodian testified the redacted record contained
Brown’s identifying information as well as his driver’s license and
identification card history. She further testified that, on June 6, 2015,
Brown’s license was suspended.

¶9            The records custodian explained that, on December 29, 2013,
Brown had been personally served with a document (“Affidavit”) notifying
him that his license was suspended, effective fifteen days after that
service—on January 13, 2014—and “for not less than 90 consecutive days.”
The Affidavit contains the order of suspension; a section to be completed
and signed by the police officer, certifying that the officer served Brown
with the order of suspension; and a section signed by Brown, certifying that
he received the order of suspension and that the terms of the order and the
steps required to reinstate his license were explained to him. The custodian
further explained that, once a license is suspended, it remains suspended
until the driver goes to an MVD office to reinstate it after the suspension
period is over and pays any fees and satisfies any other court-mandated
requirements. In fact, the last line of the “Order of Suspension” box on the
Affidavit advised Brown that “[t]his suspension will not end until all
reinstatement requirements are met.” Although Brown became eligible to
apply for a restricted license on February 12, 2014, he did not do so, and
therefore no restricted license was ever issued to him. Moreover, Brown
took no action to satisfy the requirements or reinstate his license until

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March 10, 2016, so his license remained suspended on June 6, 2015—the
night he was arrested for his DUI. The records custodian also explained
that, even though a driver is required to surrender his or her license at the
time of suspension, the driver could still possess the suspended physical
license in some instances, such as if the driver—Brown, in this instance—
had claimed the license was lost.

¶10             The custodian also testified that because Brown was
personally served with two copies of the Affidavit notifying him of the
suspension, the MVD did not also send him notification by mail. Finally,
she testified the MVD records from which she based her testimony—
including a certified copy of Brown’s driving record—were “the most
accurate . . . reflection of the status of the defendant’s license” because the
MVD is “the sole proprietor or the holder of driving records.”

¶11           The State also called Detective Leon, who had personally
served Brown with the Affidavit that notified him of his license suspension
in December 2013. She identified Brown in court as the person upon whom
she served the Affidavit and stated that, at the time of service, she pulled
up Brown’s MVD photo and verified that was to whom she was speaking
because Brown could not provide her with his photo identification.
Because Brown claimed he did not have his license, she had marked it as
“lost” on the Affidavit. Detective Leon read the order of suspension aloud
and verbatim to Brown and had him sign it, indicating he agreed to the
suspension and understood what had been read to him, before giving him
two copies for his records. She explained that she typically asks drivers
whether they understand what she has read to them, and if they have any
questions, she answers them before the driver signs the Affidavit. She
further confirmed, “[T]here were no issues with the service of this
affidavit.”

¶12          After the State rested its case-in-chief, Brown moved for a
judgment of acquittal. See Ariz. R. Crim. P. 20. The trial court denied the
motion, finding the State had presented substantial evidence to support a
conviction on each count.

¶13          Brown then testified, claiming he did not know his license
was suspended until 2016. He further claimed he did not remember signing
the December 29, 2013 Affidavit that notified him of his suspension, but he
did not dispute he signed it. He also claimed he did not remember
receiving two copies of the Affidavit, but he agreed it was possible he did.
In response to a jury question, Brown stated, “On June 6th, 2015, I wasn’t

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served. It was 12-29-13.” When cross-examined about that answer, he
retracted and said he did not remember being served.

¶14           The jury convicted Brown as charged on both counts. Brown
admitted having two prior felony convictions—including one historical
prior felony conviction—and the trial court sentenced him as a Category
Two offender to concurrent, partially mitigated terms of 3.5 years’
imprisonment, with credit for thirty-five days of presentence incarceration.

¶15          We have jurisdiction over Brown’s timely appeal pursuant to
the Arizona Constitution, Article 6, Section 9, and A.R.S. §§ 12-120.21(A)(1),
13-4031, and 13-4033(A).

                                ANALYSIS

¶16          Brown argues the trial court erred in denying his motion for
judgment of acquittal based on insufficiency of the evidence. As at trial, he
does not dispute he had been drinking and driving, or his blood alcohol
concentration was more than .08 on June 6, 2015, but claims insufficient
evidence supports finding he knew or should have known his license was
suspended that evening.

       I.     Standard of Review and Applicable Law

¶17           We review de novo the sufficiency of the evidence supporting
a conviction and the trial court’s ruling on a motion for judgment of
acquittal. State v. West, 226 Ariz. 559, 562, ¶ 15 (2011). A motion for
judgment of acquittal should be granted only “if there is no substantial
evidence to support a conviction.” Ariz. R. Crim. P. 20(a)(1). “Substantial
evidence is that which reasonable persons could accept as sufficient to
support a guilty verdict beyond a reasonable doubt.” State v. Davolt, 207
Ariz. 191, 212, ¶ 87 (2004) (citing Rule 20).

¶18            In a Rule 20 motion, “the relevant question is whether, after
viewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.” West, 226 Ariz. at 562, ¶ 16 (citations omitted).
“To set aside a jury verdict for insufficient evidence it must clearly appear
that upon no hypothesis whatever is there sufficient evidence to support
the conclusion reached by the jury.” State v. Bustamante, 229 Ariz. 256, 258,
¶ 5 (App. 2012) (quoting State v. Arredondo, 155 Ariz. 314, 316 (1987)). “If
reasonable persons may fairly differ as to whether certain evidence
establishes a fact in issue, then such evidence must be considered as
substantial.” Davolt, 207 Ariz. at 212, ¶ 87 (citation omitted).

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¶19            In reviewing whether sufficient evidence exists, we consider
both direct and circumstantial evidence, West, 226 Ariz. at 562, ¶ 16,
recognizing that a conviction may rest solely on circumstantial evidence,
State v. Nash, 143 Ariz. 392, 404 (1985); accord State v. Bible, 175 Ariz. 549, 560
n.1 (1993); see also State v. Bearup, 221 Ariz. 163, 167, ¶ 16 (2009) (“Criminal
intent, being a state of mind, is shown by circumstantial evidence.” (quoting
State v. Routhier, 137 Ariz. 90, 99 (1983))). The State is not required “to
negate every conceivable hypothesis of innocence when guilt has been
established by circumstantial evidence.” Nash, 143 Ariz. at 404 (citation
omitted).

¶20            When the evidence supporting a verdict is challenged on
appeal, we do not reweigh the evidence, State v. Borquez, 232 Ariz. 484, 487,
¶ 9 (App. 2013); State v. Williams, 209 Ariz. 228, 231, ¶ 6 (App. 2004), or
determine the credibility of witnesses, Williams, 209 Ariz. at 231, ¶ 6; see also
State v. Soto-Fong, 187 Ariz. 186, 200 (1996) (“This court is not empowered
to impose its own determination as to the credibility of [witnesses] in
deciding a Rule 20 motion.”). Rather, we view the evidence in the light
most favorable to sustaining the verdict, see State v. Pena, 209 Ariz. 503, 505,
¶ 7 (App. 2005), and resolve all conflicts in the evidence against Brown, see
Bustamante, 229 Ariz. at 258, ¶ 5.

       II.     Substantial Evidence Supporting the Convictions

¶21            Under A.R.S. § 28-1381,

       A. It is unlawful for a person to drive or be in actual physical
       control of a vehicle in this state under any of the following
       circumstances:

       1. While under the influence of intoxicating liquor, any drug,
       a vapor releasing substance containing a toxic substance or
       any combination of liquor, drugs or vapor releasing
       substances if the person is impaired to the slightest degree.

       2. If the person has an alcohol concentration of 0.08 or more
       within two hours of driving or being in actual physical control
       of the vehicle and the alcohol concentration results from
       alcohol consumed either before or while driving or being in
       actual physical control of the vehicle.

¶22            Further, under A.R.S. § 28-1383,

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       A. A person is guilty of aggravated driving or actual physical
       control while under the influence of intoxicating liquor or
       drugs if the person does any of the following:

       1. Commits a violation of § 28-1381, § 28-1382 or this section
       while the person’s driver license or privilege to drive is
       suspended, canceled, revoked or refused or while a restriction
       is placed on the person’s driver license or privilege to drive as
       a result of violating § 28-1381 or [§] 28-1382 or under § 28-
       1385.

¶23            To convict a person of aggravated DUI based on a suspended
license, the State must establish the defendant knew or should have known
that his license and driving privileges were suspended. State v. Williams,
144 Ariz. 487, 489 (1985). Personal service of suspension by an officer may
constitute substantial evidence of notice. State v. Ekmanis, 180 Ariz. 429,
431-32 (App. 1994).

¶24             In this case, substantial evidence supports the jury’s finding
that Brown knew or should have known his license was suspended on the
night of his arrest. Relying on a certified copy of Brown’s driving record
from the MVD—the sole holder of driving records for the state—the records
custodian testified Brown’s driver’s license was suspended from January
13, 2014, until March 10, 2016—a period that included June 6, 2015.
Although Brown correctly argues the discrepancy with Sergeant Larson’s
search on his patrol car’s computer could not be explained with certainty
by any of the witnesses, his argument amounts to a request that we reweigh
the evidence, something we will not do. See Borquez, 232 Ariz. at 487, ¶ 9;
Williams, 209 Ariz. at 231, ¶ 6. The records custodian confirmed Brown’s
license could be suspended even though he retained physical possession of
it, see State v. Mitchell, 136 Ariz. 386, 388 (App. 1982), and the jury could
have reasonably inferred the reason he denied to Sergeant Larson that he
had his license with him was because he did not want the sergeant to
discover his suspension or confiscate the license.

¶25           Further, as the records custodian explained, on December 29,
2013, Brown was personally served with the Affidavit that stated his license
would remain suspended until he satisfied all requirements and went to an
MVD office to reinstate it. However, he took no such action until March
2016, and although the MVD sometimes mails notices to drivers, it does not
do so in cases—such as Brown’s—where the driver is personally served and
notified with an affidavit they are required to sign.

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¶26           Although Brown suggests Detective Leon might have
personally served the wrong person, Detective Leon verified she served
Brown on the night of service and identified him in court as the person she
served. She testified she read the order of suspension to him verbatim and
ensured he understood what she had read—including the notice that his
license would remain suspended for “not less than 90 consecutive days”
and until reinstatement—before having him sign it. She gave Brown two
copies of the Affidavit, which contained the information regarding his
suspension and reinstatement, and the trial court admitted into evidence
the redacted copy of Brown’s driving record and the signed Affidavit.
Brown did not deny he was served or the Affidavit bore his signature.

¶27           Thus, the State presented evidence that Brown was served a
notice of his suspension in December 2013, signed the notice
acknowledging such, and, despite the provision stating his license would
remain suspended until he took affirmative action to reinstate it, took no
action to reinstate it before June 6, 2015. Accordingly, the State presented
substantial evidence to establish Brown knew or should have known his
license was suspended at the time of his DUIs. Because substantial
evidence supports Brown’s convictions, the trial court did not err in
denying his motion for judgment of acquittal.

                               CONCLUSION

¶28          Brown’s convictions and sentences are affirmed.

                        AMY M. WOOD • Clerk of the Court
                        FILED: AA

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