The opinion of the court was delivered by: Herndon, District Judge
This matter is before the Court on Defendants' Amended Motion to Declare 18 U.S.C. 1374; 18 U.S.C. 1341 and 2; 18 U.S.C. 982(a)(7); 18 U.S.C. 981(a)(1)(c); and 28 U.S.C. 2461 Unconstitutionally Vague as Applied to Defendants and to Dismiss the Indictment (Doc. 55). The issues, having been fully briefed by the parties, are now ripe for determination.
Defendant Ajit Trikha ("Trikha") is a psychiatrist practicing within the Southern District of Illinois (Doc. 28, ¶ 1). Trikha incorporated TRX Health Systems, P.C. ("TRX"), his co-defendant in this case, as an Illinois corporate entity on June 1, 2000 (Id. at ¶ 2). Trikha is the President, Secretary and Treasurer of TRX (Id.). Thereafter, on March 5, 2001, Trikha changed his provider payee information to "TRX Health Systems, P.C." (Doc. 28, ¶ 10). In a Superseding Indictment, issued on October 20, 2006 (Doc. 28), defendants Trikha and TRX (collectively "Defendants") were charged with two counts (Counts 1 and 2, Doc. 28, ¶¶ 16-17 and 18-19) of health care fraud in violation of 18 U.S.C. § 1347*fn1 and one count (Count 3, Doc. 28, ¶¶ 20-22) of mail fraud in violation of 18 U.S.C. §§ 1341 & 1342.*fn2
Lastly, Count 4 seeks forfeiture of Defendants' property, real and personal, to the Government "from gross proceeds traceable to the commission of said offenses" in the amounts of at least $2,430,768.93 and $10,911.15 (Id. at pp. 8-9).
Simply stated, Defendants have been charged with submitting false provider billing claims to both Medicare and Medicaid in order to collect payments they were not entitled to receive. Pursuant to the Superseding Indictment, both Medicare and Medicaid require provider billing claims to include Current Procedural Terminology ("CPT") codes to identify the service performed by the provider. These CPT codes are established by the American Medical Association (Doc. 28, ¶ 11).
The Government charges Defendants with falsely billing for the following services:
(1) CPT code 90807 - Individual psychotherapy, insight oriented, behavior modifying and/or supportive, in the office or outpatient facility, requires of approximately 45 to 50 minutes face-to-face with the patient; with medical evaluation and management services.
Regarding CPT code 90807, the Government charges Defendants for billing both Medicare and Medicaid for this code when Trikha "spent little or no time with the patient" and Defendants also billed for individual psychotherapy services during the time that Trikha was actually out of the country (Id. at ¶ 12).
(2) CPT code 90853 - Group psychotherapy (other than of a multiple-family group) by a physician, with continuing medical diagnostic evaluation and drug management when indicated.
The Medicare Carrier for Illinois, Wisconsin Physician Services, also requires that "the group size should be of a size that can be successfully led (i.e., maximum of 12 people)" when submitting a CPT code 90853 billing claim to Medicare. The Government states that Defendants regularly billed Medicare for CPT code 90853 "when the group size far exceeded 12 people" and Defendants also billed for group therapy services during the time that Trikha was actually out of the country (Id. at ¶ 13).
(3) CPT code 90862 - Pharmacologic management, including prescription, use, and review of medication with no more than minimal medical psychotherapy.
The Government, in regards to CPT code 90862, states that Defendants billed both Medicare and Medicaid for this code "without meeting with the patient, claiming an in-office visit when the patient was not present," and again, Defendants also billed for in-office pharmacologic services ...