United States District Court, N.D. Illinois, Eastern Division
For Nixon Encinares, Defendant: Patrick W. Blegen, LEAD ATTORNEY, Blegen & Garvey, Chicago, IL.
For Maria Buendia, Defendant: Mariah E Moran, Stetler, Duffy & Rotert, Ltd., Chicago, IL.
For Farzana Begum, Defendant: Daniel T. Hartnett, LEAD ATTORNEY, Leigh D. Roadman, Martin, Brown, Sullivan, Roadman & Hartnett, Ltd., Chicago, IL.
For Fauzia Lodhi, Defendant: Robert A. Loeb, LEAD ATTORNEY, Attorney at Law, Chicago, IL.
For Kamal Patel, Defendant: Scott R. Lassar, LEAD ATTORNEY, David Gavin Jorgensen, Patrick Edward Croke, Sidley Austin LLP, Chicago, IL.
For Elsa Montallana, Defendant: Damon Matthew Cheronis, LEAD ATTORNEY, Law Offices of Damon M. Cheronis, Chicago, IL.
For Georgina Colon, Defendant: Linda M. Perry, LEAD ATTORNEY, Law Office of Linda M. Perry, Chicago, IL.
For David Troncoso, Defendant: Paul Camarena, LEAD ATTORNEY, North & Sedgwick L.L.C., Chicago, IL.
For Tonya Snowden, Defendant: Lewis Myers, Jr., LEAD ATTORNEY, The Law Offices of Lewis Myers Jr., Chicago, IL.
For USA, Plaintiff: Joseph H Thompson, LEAD ATTORNEY, AUSA, Renai Scherri Rodney, United States Attorney's Office (NDIL), Chicago, IL; Pretrial Services, Probation Department.
MEMORANDUM OPINION AND ORDER
Robert M. Dow, Jr., United States District Judge.
Defendant Dr. Kamal Patel was charged with six counts of violating the " Anti-Kickback Statute," 42 U.S.C. § 1320a-7b(b)(1)(A), and one count of conspiracy to violate the Anti-Kickback Statute, 18 U.S.C. § 371, in connection with his acceptance of payments from a home health care company. Defendant voluntarily waived his right to a jury trial, , and proceeded to a bench trial, which began on June 10, 2013. At the close of the Government's evidence on June 11, 2013, Defendant moved for judgment of acquittal on all counts pursuant to Federal Rule of Criminal Procedure 29(a). . Defendant contended that the Government failed to prove that he had " referred" patients to the home health care company within the meaning of the Anti-Kickback Statute. See . The Court took Defendant's motion under advisement, (Tr. 387, June 11, 2013), set a briefing schedule , and proceeded with the remainder of the trial The Court grants both parties' motions for leave to file oversized briefs. , .
After carefully considering all of the parties' submissions (including supplemental briefing on an Eleventh Circuit case that was decided after trial), ; [121-1]; [122-1]; ; ; ; , the evidence adduced at trial, and the parties' stipulations , the Court makes the following findings of fact and conclusions of law pursuant to Fed. R. Crim. P. 23(c). To the extent, if any, that findings of fact, as stated, may be considered conclusions of law, they should be deemed conclusions of law. Similarly, to the extent that matters expressed as conclusions of law may be considered findings of fact, they should be deemed findings of fact.
In the end, the Court concludes that the Government established beyond a reasonable doubt that Defendant knowingly and willfully " referred" patients to a home health care provider in exchange for remuneration
and conspired with others to do so. Accordingly, the Court finds Defendant guilty of the charges in the indictment and denies Defendant's motion for judgment of acquittal . This matter is set for status on March 14, 2014 at 10:00 a.m.
I. Findings of Fact
Home health care companies deliver health care services to homebound patients at their residences. (Tr. 20, 41, June 10, 2013). There are approximately 700 home health care companies in Cook County, Illinois. (Tr. 20, June 10, 2013; Tr. 308, June 11, 2013). Of those, approximately 10-20 regularly provide home health care to Defendant's patients. (Tr. 399, June 11, 2013). Grand Home Health Care (" Grand" ) falls into both of those categories. (Tr. 20-21, 40-41, June 10, 2013; Tr. 307, 399, June 11, 2013). At all relevant times, Grand was owned and operated bye Nixon Encinares and Maria Buendia. (Tr. 22, 41, 224-25, June 10, 2013). Approximately 95% of Grand's patients are Medicare beneficiaries. (Tr. 47, 236, June 10, 2013). The parties have stipulated that Medicare is a federal health care program as defined by Title 42, United States Code, Section 1320a-7b(f). (Tr. 20, June 10, 2013).
Grand experienced a significant decline in business in 2002 or 2003 when some of its partners left to form a competing home health care company, Romyst, and took 80% of Grand's patients with them. (Tr. 61, 241-42, June 10, 2013; Tr. 482, June 12, 2013). After the schism, Grand's remaining principals, Encinares and Buendia, amped up their efforts to market Grand's services. (Tr. 62, June 10, 2013). Encinares and Buendia visited numerous doctors, including Defendant, to introduce themselves and attempt to drum up business for Grand. (Tr. 62-64, 243-44, June 10, 2013; Tr. 482, June 12, 2013). Grand's first visit to Defendant proved unsuccessful; none of his patients came to Grand in the ensuing month or so. (Tr. 64-65, 245, June 10, 2013). Grand's similar efforts to solicit business from other doctors and hospitals also were largely unavailing. (Tr. 243, June 10, 2013).
At some point in 2003 or 2004, struggling Grand began offering to pay doctors and other health care providers for Medicare patients. (Tr. 53, June 10, 2013). Defendant, an internal medicine specialist who treats approximately 20 elderly patients per day and prescribes home health care services to about 10 patients per month, was among the physicians that Encinares and Buendia propositioned in this regard. (Tr. 63-64, 171, 245-46, June 10, 2013; Tr. 393, 399, 460, June 11, 2013; Tr. 476-77, 479-80, 484, 491, 505, June 12, 2013). Encinares expressly proposed paying Defendant for " referrals." (Tr. 65-66, June 10, 2013; Tr. 493, 532, 534, June 12, 2013). Defendant testified that he did not say anything in response to the proposal and " didn't agree with" Encinares. (Tr. 492, 497, June 12, 2013). Government cooperators Encinares and Buendia testified that Defendant said something like, " okay," or " yeah." (Tr. 64, 66, 247 June 10, 2013). After Encinares and Buendia
offered to pay Defendant on a per-patient basis during their second meeting with him in 2004 or 2005, Grand began providing home health care services to about 2-4 of Defendant's patients per month. (Tr. 66, 185, 245-47, 250, June 10, 2013; Tr. 301-02, June 11, 2013; Tr. 484, 498, June 12, 2013). This amounted to less than five percent of Defendant's patients, (Tr. 486, June 12, 2013); the majority of them continued to use other providers, primarily Northwest Community Hospital, for home health care services. (Tr. 481-82, June 12, 2013).
To qualify for Medicare-paid home health care services, a patient must be homebound and have a medical condition or constellation of medical conditions that requires skilled nursing care or therapeutic services. (Tr. 47-48, June 10, 2013; Tr. 479, 504, 516, June 12, 2013). A doctor or nursing facility makes the initial determination that a patient needs home health care services. (Tr. 52, June 10, 2013). Once that determination is made, the patient or his or her caregiver must select a home health care company to furnish the necessary services. (Tr. 409, 411, June 11, 2013). When home health care patients are released from hospitals or rehabilitation centers, staff at those facilities sometimes discuss with the patients which home health care provider will best meet their needs. (Tr. 38, 142, June 10, 2013; Tr. 480, June 12, 2013). Patients who previously have received home health care services often reselect their previous provider. (Tr. 39, June 10, 2013; Tr. 402, June 11, 2013; Tr. 481, June 12, 2013). Defendant did not personally discuss with patients or their family members which home health care providers they should use, either as an initial matter or as part of recertification. (Tr. 406, 412, 415, 418, 429, 431, 441, 454, June 11, 2013; Tr. 481, 485, 487, June 12, 2013). Defendant's patients discussed home health care companies with his medical assistant, Jeanette Sungvoom. (Tr. 501, June 12, 2013). Defendant did not tell Sungvoom which home health care provider that patients should use. (Tr. 407, 412, 418, 485, June 11, 2013), even after Grand began paying him. (Tr. 487, June 12, 2013). Sungvoom gave patients, including June Osgood, an array of 10-20 brochures for various home health care companies and let the patients select which company they wanted to use. (Tr. 409-11, 416-17, 434, 437, 440, 446, 453, June 11, 2013). The brochures were provided to Defendant's office by the home health care companies they featured. (Tr. 409, June 11, 2013).
To initiate the provision of home health care for first-time recipients or recipients whose previous periods of usage had long expired, Sungvoom, acting under Defendant's authorization, would call or fax the selected home health care company (including Grand) with the name of the patient, his or her diagnosis, and his or her Medicare number. (Tr. 66, 189-90, June 10, 2013; Tr. 411, 413, 435, 443, June 11, 2013). The fax cover pages from Defendant's office bore the subject line " new referral," (Tr. 135-36, June 10, 2013; Tr. 424, June 11, 2013; Tr. 518, June 2 Govt Ex. A), and the faxes themselves contained prescriptions for home health care signed by Defendant or by Sungvoom with his
authorization. (Tr. 137-38, 211-12, June 10, 2013; Tr. 421, 425, 447, 463, June 11, 2013; Tr. 520, June 12, 2013; Govt. Exs. B, C, D). Sometimes, these initial communications would come directly from the hospital or other facility at which Defendant's patient was located. For instance, on July 29, 2009, Northwest Community Hospital, a hospital with which Defendant was affiliated, faxed to Grand a " New Referral" for patient Marie Corso, who had used Grand in the past. (Tr. 145, 213, June 10, 2013; Tr. 303-04, 455, 461, June 11, 2013; Def. Ex. 1). Sometimes the " Referral Form" completed by Grand after it received a phone call from one of these facilities would list as the " source" of the patient a " nursing home," as for Defendant's patients Marie Corso and Josephine Zaccaria, (Tr. 145, 149-50, 153-54, 157, 160-61, June 10, 2013; Def. Ex. 2, 5, 9), or a " hospital," as for Defendant's patients Olimpia Dato and Jill West. (Tr. 146-48, June 10, 2013; Def. Ex. 3, 4). Regardless of where the patient came from, however, Defendant's authorization was required to effectuate the initial admission to Grand. (Tr. 38, 189, 190-91, 204, June 10, 2013).
After Grand received one of these phone calls or faxes, it would send one of its nurses to assess the patient and complete an " OASIS" form documenting the assessment. (Tr. 165, 202-03, June 10, 2013; Tr. 314, June 11, 2013). The nurse or someone else at Grand would then complete a " Form 485," a standardized Medicare form that certifies that home care is medically necessary and outlines a patient's diagnosis, medications, treatment plans, and goals. (Tr. 24-25, 67, 167, June 10, 2013; Tr. 299, 315, June 11, 2013; Tr. 506, June 12, 2013). Grand devised the proposed treatment plans contained on the Form 485, but it would have to get the treatment plans approved by and the Form 485 signed within 30 days by a doctor -- the patient's primary physician -- before it could bill Medicare for any services rendered. (Tr. 48-49, 165, 202-03, 214, 235, June 10, 2013; Tr. 315, 462, June 11, 2013; Tr. 488, 502-03, June 12, 2013). Grand could (and did) provide the proposed services before the Form 485 was signed -- it is not unusual for two to four weeks to elapse between the OASIS assessment and the signing of the Form -- but if the primary physician did not ultimately approve the Form 485 Grand could not bill Medicare for the services rendered. (Tr. 48-49, 166, 214, 235, June 10, 2013; Tr. 488, 502-03, June 12, 2013). Defendant's signature on each Grand-prepared Form 485 expressly certified or recertified that " the patient is confined to his/her home and needs intermittent skilled nursing care, physical therapy and/or speech therapy or continues to need occupational therapy," and that he has " authorized the services on this plan of care and will periodically review the plan." (Tr. 506-07, June 12, 2013; Govt Ex. April 5, 2011 Documents). However, nothing on the Form 485 indicated whether the signing physician personally discussed with the patient whether he or she should seek services from a particular home health care company. (Tr. 38, June 10, 2013; Govt Ex. April 5, 2011 Documents).
Encinares met with Defendant on a monthly basis to have him sign Form 485s and give him money. (Tr. 67, June 10, 2013; Tr. 502, 541-42, 544, June 12, 2013). Encinares and Defendant were the ...