390 F.3d 168 (2nd Cir. 2004), 03-1546, United States v. Singh

Docket Nº:03-1546.
Citation:390 F.3d 168
Party Name:UNITED STATES of America, Appellee, v. Arvinder SINGH, Defendant-Appellant, Rosanna Cerone and Toni Coons, Defendants.
Case Date:November 23, 2004
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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390 F.3d 168 (2nd Cir. 2004)

UNITED STATES of America, Appellee,

v.

Arvinder SINGH, Defendant-Appellant,

Rosanna Cerone and Toni Coons, Defendants.

No. 03-1546.

United States Court of Appeals, Second Circuit

November 23, 2004

        Argued: May 21, 2004.

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        John L. Pollok, Hoffman & Pollok LLP, New York, N.Y. (Susan C. Wolfe and William A. Rome, on the brief) for Defendant-Appellant.

        David M. Grable, Assistant United States Attorney (Glenn T. Suddaby, United States Attorney, on the brief; Assistant United States Attorney Steven D. Clymer, Special Litigation Counsel Robert P. Storch, of counsel), for Appellee.

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        Before: MINER and POOLER, Circuit Judges, and GOLDBERG, Judge. [*]

        MINER, Circuit Judge.

        Defendant-appellant Arvinder Singh appeals from a judgment of conviction and sentence entered in the United States District Court for the Northern District of New York (Scullin, C.J.), following a jury trial. Singh was convicted of health care fraud, in violation of 18 U.S.C. § 1347; conspiracy to distribute and dispense controlled substances, in violation of 21 U.S.C. § 846; and causing and aiding and abetting the illegal distribution and dispensation of controlled substances, in violation of 21 U.S.C. § 841(a) (1) and 18 U.S.C. § 2. His sentence included a term of imprisonment of forty-six months, an order to pay restitution in the sum of $227,127.82, and forfeiture of his medical license.

        The judgment against Singh arises from the activities of the medical practice he conducted under the name of Diagnostic Interventional Pain Management & Rehabilitation Services, Inc. ("the Practice"). In this appeal, Singh challenges the denial of his motion to suppress evidence, the sufficiency of the evidence against him, certain jury instructions, and various aspects of his sentence.

        BACKGROUND

        A. Structure of the Practice

        Singh was a physician, licensed by the State of New York, who owned and operated the Practice during the 1996-1999 time period relevant to this appeal. The Practice was located on the first floor of Albany Memorial Hospital ("the Hospital") and specialized in the management of chronic pain. Although the Practice was headquartered at a suite in the Hospital, Singh spent a great deal of time elsewhere. He regularly traveled to Port Chester, New York and to Saratoga, New York to treat patients at those locations. He often was absent from the suite to treat patients at a pain clinic on the fourth floor of the Hospital and to perform surgery in the Hospital operating room. Singh also absented himself from time to time on vacations to distant places.

        During portions of the relevant time period, Singh employed two other physicians in the Practice. Dr. Edward Apicella was employed between July 1995 and November 1997, and Dr. Abraham Rivera was first employed in February 1998. During the November 1997-February 1998 period, there was no second physician in the Practice. Like Dr. Singh, Doctors Apicella and Rivera frequently were absent from the suite, performing surgeries and procedures at the Hospital and traveling to Kingston, New York; Troy, New York; and other New York State locations to treat patients.

        Singh also employed a number of non-physician medical personnel in the Practice. During part or all of the relevant time period, Margaret Peruzzi, Pamela Madej, and co-defendant Rosanna Cerone worked as nurses, and Robin Sacks worked as a physician's assistant, in the Practice suite. Madej became licensed as a nurse practitioner in June 1998. The clerical staff employed by the Practice included billing clerks, such as co-defendant Toni Coons, who generated claims forms that were submitted to various health care benefit programs for reimbursement of fees for services rendered by the Practice.

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        B. Drug Prescriptions at the Practice

        The nature of the Practice, i.e. pain management, required that many of the patients have new prescriptions for Schedule II Controlled Substances on a regular basis. Nurses are not authorized by law to write these prescriptions, which must be written in triplicate by licensed physicians only. Singh developed a scheme that enabled nurses to see patients alone, to issue prescriptions for Schedule II Controlled Substances, and to bill for such services. He and the other physicians would pre-sign the triplicate forms and provide them to non-physician personnel to use during patient visits. These employees, although not trained or legally authorized to do so, filled in all the required prescription information--drug type, dosage, and quantity--and provided the prescriptions to the patients.

        It appears that the physicians at the Practice, including Singh, signed entire books of triplicate prescription forms in blank without even knowing the identities of the patients to whom the prescriptions would be issued or the nature or dosage of the drug to be prescribed. Even when a physician was present in the suite, a nurse would fill in the prescription forms without any involvement on the part of the physician. Dr. Apicella testified that Singh instructed him to sign the triplicate form books so nurses would not bother Apicella when they saw patients. Indeed, Singh urged Nurse Cerone not to consult him before filling in the prescription forms, and she testified that she stopped talking to Singh about prescriptions after he told her: "[Y]ou know what to do so just do it."

        Data extracted from Singh's office records revealed that the nurses issued prescriptions for at least 76,000 tablets of Schedule II Controlled Substances when Singh was not present in the Practice suite. When Nurse Madej obtained her nurse practitioner's license in June of 1998, enabling her to begin prescribing Schedule II drugs, Singh told her she could then "really" do what she had been doing all along. Before that time, Singh had instructed her to keep the signed triplicate forms on her person and out of the sight of the patients. He also told nurse Peruzzi not to let patients see her use the pre-signed forms.

        C. Billing Methods at the Practice

        From at least June 1996 until at least July 1999, the nurses employed by Singh routinely saw established patients at the Practice during follow-up office visits and did so without a physician present. The visits typically involved patients returning to obtain new prescriptions or new supplies of medication. During these follow-up visits, the nurses evaluated the medical conditions of the patients based on information that the patients had provided orally and on written forms called "body sheets." On a typical visit, the patient sat across a desk from the nurse and discussed his or her physical condition. The nurses did not take vital signs or otherwise perform physical examinations during the visits.

        Singh apparently expected his nurses to treat patients alone and without supervision by a physician. The nurses had their own daily schedule of patients' appointments, both on days when there was, and on days there was not, a doctor in the suite. An internal office policy memo directed that nurses be scheduled to see fifteen patients on days when Singh was not in the suite. Singh also directed his billing personnel periodically to generate "productivity reports," which listed various dollar amounts of claims for reimbursements that nurses and doctors had generated through office visits during given time periods. Singh also generated "scorecards"

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that he used to keep track of the number of patients that the nurses and doctors were seeing on a weekly basis.

        Singh's scheme involved the submission of false claims for reimbursement for the nurses' visits. After a nurse had seen a patient at the Practice, she would complete a "superbill." The standard superbill was a preprinted form that permitted medical personnel to check off various standard codes to designate the medical services that purportedly had been rendered. The codes on the superbill were based on the American Medical Association ("AMA") Physician's Current Procedure Terminology ("CPT") Guidebook and are known as "CPT codes" or "procedure codes." After the nurses had completed the superbills, billing clerks at the Practice used the information on the bills, and specifically the CPT code indicated, to generate claim forms. These forms were submitted to health care benefit programs for reimbursement for the office visits.

        The particular CPT codes relevant to Singh's scheme were codes 99211 through 99215, a series that covers a physician's "evaluation and management" of an established patient during an office visit. Determination of the proper CPT code among those five depends on the complexity of the physician's decision-making, the comprehensiveness of both the physical examination and the patient history, the severity of the presenting medical problem, and the amount of face-to-face time that the physician spends with the patient and the patient's family.

        When a nurse treats a patient without a doctor's involvement on a particular visit, the only CPT code that a medical practice may appropriately submit for reimbursement is 99211, and then only if the nurse provides the service under a physician's supervision. The definitions of the codes themselves, as set forth in the CPT Guidebook (a copy of which Singh kept in his own billing office), state that 99211 is the only code that "may not require the presence of a [physician]." The Guidebook sets forth various examples of face-to-face...

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