United States v. Ganji

• Decision Date: 30 January 2018
• Docket Number: No. 16-31119,16-31119
• Citation: 880 F.3d 760
• Parties: UNITED STATES of America, Plaintiff-Appellee v. Doctor Pramela GANJI; Elaine Davis, Defendants-Appellants
• Court: U.S. Court of Appeals — Fifth Circuit

880 F.3d 760

UNITED STATES of America, Plaintiff-Appellee

v.Doctor Pramela GANJI; Elaine Davis, Defendants-Appellants

No. 16-31119

United States Court of Appeals, Fifth Circuit.

FILED January 30, 2018

Amanda Brooke Harris, Ellen R. Meltzer, Esq., Special Counsel, John Alexander Romano, Esq., Trial Attorney, U.S. Department of Justice, Criminal Division, Appellate Section, Washington, DC, for Plaintiff–Appellee.

David Oscar Markus, Esq., Markus/Moss, P.L.L.C., Miami, FL, Herbert V. Larson, Jr., Sara A. Johnson, New Orleans, LA, for Defendants–Appellants.

Before STEWART, Chief Judge, and KING and JONES, Circuit Judges.

CARL E. STEWART, Chief Judge:

After an eight-day jury trial, Defendants, Dr. Pramela Ganji and Elaine Davis, were convicted of conspiracy to commit health care fraud, in violation of 18 U.S.C. § 1349, and health care fraud, in violation of 18 U.S.C. § 1347. Defendants now appeal their convictions and sentences. For the reasons that follow, we REVERSE and VACATE.

I. BACKGROUND

Christian Home Health Care ("Christian") was a home health agency owned by Elaine Davis and her husband, Walter Davis, Sr. since 1989. Christian provided home health care services to patients in Southern Louisiana. Home health care services are those skilled nursing or therapy services provided to individuals who have difficulty leaving the home without assistance. These services are commonly provided to senior citizens.

The process for receiving home health care services begins when a physician identifies a patient as an eligible candidate. Usually, although not a legal requirement, a patient’s primary care physician ("PCP") refers her for home health services. Then a nurse goes to the patient’s home to assess if she is homebound, completing an Outcome and Assessment Information Set ("OASIS"). The nurse then develops a plan of care based on the OASIS and forwards that document to a physician for approval. This is typically the same physician who initiated the process. In 2011, Medicare implemented a face-to-face requirement to further ensure that medical professionals would not order home health care without ever seeing the patient. This required medical professionals to actually see the patient for the initial meeting, but "[t]he face-to-face patient encounter may occur through telehealth in person."¹ Regulations allow for medical professionals who are not physicians to complete the face-to-face encounter, but the professionals have to be under the supervision of a physician. A medical professional certifies that they completed this encounter by completing a face-to-face addendum. The agency then sends the addendum with the Form 485 certification forms, which were used to certify patients for home health care to Medicare for reimbursement. If the professional determines the patient is homebound, the agency staff immediately provides that care.² The staff member keeps the certifying doctor updated and notifies her if the patient’s needs change.³

In order to provide these services, Christian employed an administrative team and medical professionals, including clinical supervisors, registered nurses, licensed practical nurses, home health aides, medical consultants, and medical directors. Medical directors were practicing physicians who contracted with Christian to provide services including nurse training, medical advice, and patient care. The directors also certified patients for home health care. Christian paid medical directors $1,000 per month in exchange for their services and throughout the years, it contracted with many physicians. In 2010, Christian hired Dr. Ganji as a medical director in the New Orleans area. Dr. Ganji was a physician who owned a private practice and had previously worked in nursing homes and with other home health care agencies. To assist her with her new and continuing duties, Dr. Ganji entered into a collaborative agreement with Nurses Per Diem, an organization of nurse practitioners, to provide home visits to homebound patients. Cynthia Kudji, the nurse practitioner with whom Dr. Ganji closely worked, performed many of the initial face-to-face encounters. In 2012, Christian opened an office fifty miles north, in Ponchatoula to better serve the Hammond area. It later hired Dr. Winston Murray, Louella Hendricks, Kim Robinson, Kimberley Celestine, and Betty Walls. Although Christian had fewer than twenty-five patients when the Davises bought the company out of bankruptcy, between 2007 and 2015, the years the conspiracy to commit health care fraud allegedly took place, Christian cared for 350–400 patients at any given time.

In 2007 the United States Justice Department established a Medicare fraud task force.⁴ Since then, more than 400 individuals have been prosecuted for defrauding the health care program of $1.3 billion. Notably, an individual who is a shadow in the current cast of characters was swept up in this crackdown: Mark Morad.⁵ Morad owned and operated a home health empire in Southern Louisiana that toppled when he was indicted and pled guilty to defrauding Medicare of millions of dollars. When that regime fell, other agencies scrambled to scavenge Morad’s patients and provide work for those former Morad employees who the Government had not publicly implicated in the conspiracy. Christian was one of these agencies.

The Government’s discovery of the alleged Christian scheme was rather peculiar. The FBI initiated an investigation after one of Christian’s patients, Simone Joseph, filed a complaint. Joseph was the plaintiff in an unrelated personal injury lawsuit, and that suit revealed that her medical history included false statements. She complained that co-defendant, Dr. Godwin Ogbuokiri, billed Medicare multiple times although she had only seen him once.

The subsequent investigation into Joseph’s claims uncovered a scheme where, according to the Government, Christian employees recruited Medicare beneficiaries in exchange for incentives, which ranged from $100 bonuses to trips to Las Vegas, Nevada. To receive the incentives, Christian employees had to recruit prospective patients who were both eligible for Medicare and immediately ready for Christian hospice or home health care services. If the PCP did not certify the patient or the patient did not have a PCP, Christian’s medical directors would do so. From January 2007 through January 2015, Christian submitted 14,891 claims for home health care and related services to Medicare. These claims were worth approximately $33,232,134, and Medicare paid around $28,265,071 on those claims.

The investigation resulted in an indictment charging:

• Davis, Dr. Ganji, and Dr. Ogbuokiri with conspiracy to commit health care fraud, in violation of 18 U.S.C. § 1349 (Count One);

• Davis and Dr. Ogbuokiri with health care fraud, in violation of 18 U.S.C. § 1347 for submitting fraudulent Medicare claims with regard to Simone Joseph (Count Two);

• Davis and Dr. Ogbuokiri with health care fraud, in violation of 18 U.S.C. § 1347 for submitting fraudulent Medicare claims with regard to Leon Pate (Count Three);

• Davis and Dr. Ganji with health care fraud, in violation of 18 U.S.C. § 1347 for submitting fraudulent Medicare claims with regard to Carolyn Stewart (Count Four); and

• Davis and Dr. Ganji with health care fraud, in violation of 18 U.S.C. § 1347 for submitting fraudulent Medicare claims with regard to Jean Wright (Count Five).

During the trial, the Government presented testimony from case investigators, former Christian nurses and doctors, Dr. Ogbuokiri’s patients, and Dr. Jan Cooper, Carolyn Stewart’s PCP. Much of the Government’s case hinged on the testimony of its cooperating witnesses, Dr. Murray, Louella Hendricks, and Kimberley Celestine, who admitted to fraudulently certifying patients for home health care. In the scheme, Hendricks and Celestine referred patients to Christian, taking the certification form to Dr. Murray for certification. Without extensive review of the patient’s record or thorough inquiry into their homebound status, Dr. Murray signed the documents. Christian nurses, usually those who certified the patient, would then perform services for individuals who were ineligible and Christian would receive Medicare payments.

The Government’s dependence on these witnesses is almost as peculiar as the scheme’s discovery. Notably, these individuals worked in the Hammond area, while Dr. Ganji and Davis worked sixty miles away in the New Orleans area. Additionally, Celestine and Hendricks worked together for Morad’s agencies before coming to Christian. Furthermore, Celestine and Hendricks’s working relationship with Dr. Murray predated their move to Christian. When the nurses left their former employer for Christian, they immediately took the patients they brought with them to Dr. Murray for certification. Unlike other salient cases involving conspiracy to commit health care fraud, here the Government presented eighteen witnesses, none of whom could provide direct evidence of their alleged co-conspirator’s actions because the witnesses never acted with the defendants to commit the specific charged conduct.

At the close of the Government’s case-in-chief, the parties all filed Rule 29 motions for judgment of acquittal and renewed the motions before deliberations. The district court denied these motions. Following the trial, the jury convicted Dr. Ganji and Davis of Count 1 (conspiracy to commit health care fraud) and Count 4 (health care fraud with regard to Stewart) and returned not-guilty verdicts on all of the remaining counts. Dr. Ogbuokiri, whose patient interaction initiated the investigation, was acquitted of all charges against him.

The district court sentenced Dr. Ganji to seventy-two months' imprisonment, to be followed by two years of supervised release, and ordered that she pay Medicare $5,048,518 in restitution. The court sentenced Davis to ninety-six months' imprisonment, to be followed by two years of supervised release, and ordered that she pay...