U.S. v. Garrison

Decision Date22 January 1998
Docket NumberNo. 95-9361,95-9361
CourtU.S. Court of Appeals — Eleventh Circuit
PartiesMedicare & Medicaid Guide P 46,038 UNITED STATES of America, Plaintiff-Appellee, v. Jeanette G. GARRISON, Defendant-Appellant.

David E. Hudson, Hull, Towill, Norman & Barrett, Augusta, GA, Craig A. Gillen, Atlanta, GA, for Defendant-Appellant.

Vicki S. Marani, U.S. Dept. of Justice, Crim. Div., Appellate Section, Washington, DC, for Plaintiff-Appellee.

Appeal from the United States District Court for the Southern District of Georgia.

Before HATCHETT, Chief Judge, BIRCH, Circuit Judge, and CLARK, Senior Circuit Judge.

BIRCH, Circuit Judge:

In this Medicare fraud appeal, we determine whether the owner and chief executive officer of a home healthcare provider properly was accorded a two-level enhancement in her sentence under U.S.S.G. § 3B1.3 for abusing a position of public trust by submitting falsified Medicare claims to a fiscal intermediary. The district court also imposed a two-level enhancement for an aggravating role in the offense under U.S.S.G. § 3B1.1(c) and departed upward in calculating the fine. Because the two-level enhancement for abuse of a position of public trust was improper, we vacate the sentence and remand for resentencing.

I. BACKGROUND

From 1976 to 1995, defendant-appellant, Jeanette G. Garrison, an experienced businesswoman and registered nurse, was the owner, chief executive officer, and manager of Healthmaster Home Health Care, Inc. ("Healthmaster"), 1 which provided home nursing care for patients with illnesses and disabilities. Based in Augusta, Georgia, Healthmaster operated in five states with twenty-two divisions, 125 separate locations, and 2,500 to 3,000 employees. 2 The Medicare program of the United States Department of Health and Human Services 3 reimbursed ninety to ninety-three percent of Healthmaster's costs for eligible individuals; the Medicaid program of the Georgia Department of Medical Assistance and private insurers reimbursed the balance of the expenses. To obtain reimbursement from Medicare, Healthmaster submitted reports documenting its costs to Aetna Life and Casualty Insurance Company ("Aetna"), which served as the fiscal intermediary for the Department of Health and Human Services, Health Care Financing Administration. 4 The fiscal intermediary is charged with the responsibility of ensuring that Medicare payments are made to healthcare providers only for covered services; it may reject or adjust claims. 5 Garrison's conduct that supported her plea agreement and guilty plea showed that she directed the submission of cost reports by Healthmaster for nonallowable expenses, totaling an intended loss of approximately $1,200,000.

The first category of nonallowable expenses was political contributions. Garrison instructed Healthmaster employee and attorney, Noel Ingram, to contact Healthmaster employees to solicit contributions for specific political candidates of Garrison's choice. Ingram collected the political contributions from Healthmaster employees and gave them to Garrison, who dispensed the money to the political candidates. The employees who made political contributions were reimbursed subsequently through Healthmaster's payroll. These payroll expenditures then were submitted by Healthmaster to Aetna and falsely identified as employee bonuses to qualify for reimbursement under Medicare. The reimbursements by Medicare to Healthmaster more than tripled over a four-year period: $25,200 in 1989, $42,262.92 in 1990, $44,700 in 1991, and $83,864.47 in 1992. The total amount of improper reimbursements by Medicare for political contributions during this four-year period was $195,991.39. In February, 1993, Garrison directed Healthmaster employee Mike Haddle, the cost report expert, to make cost report adjustments for the improper amounts claimed. An adjustment of $66,443 was made on the next cost report for the improper claims for political contributions. While the actual loss suffered by Medicare for improper political contributions was $129,548.77, the intended loss to Medicare was $195,991.39.

The second category of impermissible costs that Healthmaster submitted to Aetna and for which it received Medicare reimbursement was shared services. On cost reports submitted to Aetna, Garrison directed that Healthmaster employees, whose salaries were reimbursed by Medicare, be shown as fulltime Healthmaster employees, although they performed work for her other companies, primarily Master Health Plan, Inc. ("Master Health Plan"), a health maintenance organization, the costs of which were not reimbursable by Medicare. 6 Garrison instructed that Healthmaster bill Medicare for these shared service employees' salaries without deducting the non-Medicare work that they performed for her other companies. Additionally, she had cost reports filed that falsely represented her non-Healthmaster employees to be Healthmaster employees. As a result of both of both of these misrepresentations, Medicare improperly reimbursed Healthmaster $770,814.71 between 1989 and 1993. In February, 1993, Garrison instructed Haddle to make a cost report adjustment of $300,000 to compensate for the employees who spent a portion of their time working at Garrison's other companies, where salaries were not reimbursable by Medicare. The actual loss suffered by Medicare under Garrison's shared services scheme was $470,814.71, but the intended loss was $770,814.71.

The third category of nonallowable expenses that were reimbursed by Medicare was miscellaneous personal costs. Healthmaster received Medicare reimbursement for such expenditures as golfing trips to Pebble Beach, California, for a lobbyist and political figures; a trip by Garrison, her daughter, and Healthmaster employees to the 1992 Democratic Party National Convention; the partial purchase price of $30,000 for a travel agency, Morris Travel, bought by Garrison and disguised on cost reports as employee "training," complete with supporting sign-in sheets placed in Healthmaster files to deceive auditors; a honeymoon cruise for a Healthmaster employee; a trip to the 1991 World Series in Minnesota; approximately $19,000 for alcohol served at Healthmaster Christmas parties between 1989 and 1993; approximately $22,000 for alcohol and food for Healthmaster's Georgia Dome suite between 1992 and 1994; a 1986 Mercedes Benz owned by Healthmaster that was traded for a 1993 Mercedes for Garrison's son; and five pleasure trips to New York City, Las Vegas, and Nashville taken by Healthmaster employees, for which brochures, falsely indicating a business purpose for these trips, were produced and placed in Healthmaster files to deceive auditors. From 1989 to 1993, Healthmaster submitted to Medicare as reimbursable expenses various miscellaneous personal costs that amounted to $225,633.73.

Garrison was charged in a 133-count indictment with five codefendants: Healthmaster, Master Health Plan, Dennis J. Kelly, David W. Suba, and Managed Risk Services, Inc. 7 Represented by counsel, Garrison entered into a plea agreement with the government in which she acknowledged that she willfully had submitted fraudulent cost reports for Medicare reimbursement. Under the terms of the plea agreement, Garrison agreed to plead guilty to the first ten counts of the indictment, 8 to sell Healthmaster to an independent party, to pay $11,500,000 in restitution, 9 to forgo challenging a ten-year exclusion from participation as a healthcare provider in the Medicare program, and to cooperate with law enforcement by giving complete, truthful information and testimony in the investigation and prosecution of criminal activities of which she had knowledge.

In exchange, the government agreed to dismiss the remaining counts against Garrison, 10 to dismiss the indictment as to Healthmaster and Master Health Plan, to forgo in the Southern District of Georgia further prosecution of Garrison "or any entity in which she has majority ownership, directly or through trusts, or through trusts for her children, for any criminal act or omission occurring prior to the date of the Indictment that is currently known to the government," R1-331-5, to recommend a three-level reduction in offense level for acceptance of responsibility under U.S.S.G. § 3E1.1, to take no position on upward adjustments for aggravating role in the offense under U.S.S.G. § 3B1.1 and for abuse of a position of trust under U.S.S.G. § 3B1.3, and to forgo recommending a fine, provided that there was complete restitution of $11,500,000. Except for seeking a two-level enhancement for more than minimal planning under U.S.S.G. § 2F1.1(b)(2)(A) and a loss determination of approximately $1,630,000 11 under U.S.S.G. § 2F1.1, the government agreed to make no recommendation regarding the sentence. While the government agreed to file a motion for downward departure pursuant to U.S.S.G. § 5K1.1 for substantial assistance to authorities, provided Garrison fulfilled all of her obligations under her plea agreement, she understood and agreed that the decision to depart downward was within the sentencing court's discretion. Garrison stated that she entered into the plea agreement voluntarily without coercion or promises other than those in the agreement that resulted from negotiations with the government and her attorneys with her "authorization, knowledge and consent." R1-331-13.

At the plea proceeding, Garrison reaffirmed her understanding of the charges against her, the penalties that she confronted, and the terms of her plea agreement. She acknowledged that the plea agreement did not bind the district court and that she could receive the maximum sentence on the counts to which she pled guilty. The district judge accepted Garrison's guilty plea after determining that she "is fully competent, fully aware of everything that is taking place here," that there "is an ample factual basis for the plea," and that "it is voluntary and made...

To continue reading

Request your trial
82 cases
  • Baldwin v. Johnson
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • September 1, 1998
    ...as a result the transcripts) as a crutch for postponing review, or obtaining further review, of his claims. See United States v. Garrison, 133 F.3d 831, 846 n. 28 (11th Cir.1998) (stating that it is the parties' responsibility "to ensure that the record on appeal is complete for our review ......
  • U.S. v. Mills
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • April 10, 1998
    ...enhancement under § 3B1.3 is not appropriate unless the victim of the breach itself conferred the trust. United States v. Garrison, 133 F.3d 831, 844-46 (11th Cir.1998). And a Medicare-funded care provider, as a matter of law, does not occupy a position of trust vis-a-vis Medicare. Id. at 8......
  • United States v. Bikundi
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • June 11, 2019
    ...which held that a fiscal intermediary made the defendant’s relationship with Medicare "too attenuated" for the abuse-of-trust enhancement. 133 F.3d 831, 842 (11th Cir. 1998). Because this argument is made for the first time on appeal, we review for plain error. See Brown , 892 F.3d at 397. ......
  • U.S. v. Williams
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • May 16, 2008
    ...that justifies the § 3B1.3 upward adjustment by assessing the defendant's relationship to the victim of the crime. United States v. Garrison, 133 F.3d 831, 837 (11th Cir.1998). Therefore, the abuse-of-trust adjustment "`applies only where the defendant has abused discretionary authority ent......
  • Request a trial to view additional results
11 books & journal articles
  • Health care fraud.
    • United States
    • American Criminal Law Review Vol. 47 No. 2, March 2010
    • March 22, 2010
    ...clinic's billing service to use incorrect Provider Identification Number (PIN) on the Medicare billing form); United States v. Garrison, 133 F.3d 831, 853 (11th Cir. 1998) (affirming enhanced sentence of owner and CEO of home health care provider for aggravating role as organizer and leader......
  • Health care fraud.
    • United States
    • American Criminal Law Review Vol. 45 No. 2, March 2008
    • March 22, 2008
    ...clinic's billing service to use incorrect Provider Identification Number (PIN) on the Medicare billing form); United States v. Garrison, 133 F.3d 831, 853 (11th Cir. 1998) (affirming enhanced sentence of owner and CEO of home health care provider for aggravating role as organizer and leader......
  • Health care fraud.
    • United States
    • American Criminal Law Review Vol. 42 No. 2, March 2005
    • March 22, 2005
    ...clinic's billing service to use incorrect Provider Identification Number (PIN) on the Medicare billing form); United States v. Garrison, 133 F.3d 831,853 (11th Cir. 1998) (holding owner and CEO of home health care provider liable for aggravating role as organizer and leader in Medicare frau......
  • Federal Sentencing Guidelines - Rosemary T. Cakmis
    • United States
    • Mercer University School of Law Mercer Law Reviews No. 55-4, June 2004
    • Invalid date
    ...Manual Sec. 3B1.3 (2002). 434. 349 F.3d 1320 (11th Cir. 2003). 435. Id. at 1324. 436. Id. 437. Id. (quoting United States v. Garrison, 133 F.3d 831, 837-38 (11th Cir. 1998)). 438. Id. 439. Id. 440. Id. at 1325-26. 441. Id. at 1325. 442. Id. 443. Id. at 1326. 444. Poirier is discussed furthe......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT