893 F.3d 1338 (11th Cir. 2018), 16-16984, United States v. Henderson

Docket Nº:16-16984
Citation:893 F.3d 1338
Opinion Judge:RIPPLE, Circuit Judge
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Cathedral HENDERSON, Defendant-Appellant.
Attorney:Brian T. Rafferty, James C. Stuchell, James D. Durham, R. Brian Tanner, Edward J. Tarver, U.S. Attorney’s Office, Savannah, GA, Lamont A. Belk, Tennessee Valley Authority, Office of the General Counsel, Knoxville, TN, Nancy Greenwood, Patricia Green Rhodes, U.S. Attorney’s Office, Augusta, GA, fo...
Judge Panel:Before ROSENBAUM, JILL PRYOR and RIPPLE, Circuit Judges.
Case Date:June 27, 2018
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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Page 1338

893 F.3d 1338 (11th Cir. 2018)

UNITED STATES of America, Plaintiff-Appellee,

v.

Cathedral HENDERSON, Defendant-Appellant.

No. 16-16984

United States Court of Appeals, Eleventh Circuit

June 27, 2018

Page 1339

[Copyrighted Material Omitted]

Page 1340

Appeal from the United States District Court for the Southern District of Georgia, D.C. Docket No. 1:15-cr-00072-JRH-BKE-1.

Brian T. Rafferty, James C. Stuchell, James D. Durham, R. Brian Tanner, Edward J. Tarver, U.S. Attorney’s Office, Savannah, GA, Lamont A. Belk, Tennessee Valley Authority, Office of the General Counsel, Knoxville, TN, Nancy Greenwood, Patricia Green Rhodes, U.S. Attorney’s Office, Augusta, GA, for Plaintiff-Appellee.

Mary Katherine Durant, Durant Law, LLC, Tucker, GA, Bruce Steven Harvey, Law Office of Bruce Harvey, Keith Bernard Johnson, Keith B. Johnson, LLC, Atlanta, GA, for Defendant-Appellant.

Before ROSENBAUM, JILL PRYOR and RIPPLE,[*] Circuit Judges.

OPINION

RIPPLE, Circuit Judge

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After a federal investigation into recordkeeping practices at a Department of Veterans Affairs ("VA") hospital, Cathedral Henderson was charged with fifty counts of making false statements in connection with the delivery of, or payment for, healthcare services, in violation of 18 U.S.C. § 1035; and with one count of knowingly and willfully making a materially false statement to a federal agent, in violation of 18 U.S.C. § 1001. A jury convicted Mr. Henderson on all counts, and the district court sentenced him to twenty-seven months’ imprisonment for each of the fifty-one counts, to be served concurrently. The district court also denied Mr. Henderson’s motions for judgment of acquittal and for a sentence reduction. Mr. Henderson now challenges the sufficiency of the evidence supporting his convictions and separately challenges his sentence. Because his convictions are supported by legally sufficient evidence and because the district court did not err in applying the Sentencing Guidelines, we affirm his convictions and his sentence.

I

BACKGROUND

A.

At all relevant times, Mr. Henderson was the Chief of the Fee Division at Charlie Norwood VA Medical Center, which is a VA hospital in Augusta, Georgia. For various reasons, a VA patient sometimes needs healthcare that the VA cannot provide through its own facilities. When a VA healthcare provider determines that a patient needs treatment outside of the VA system, that provider enters a "consult" in the Computerized Patient Record System ("CPRS"). CPRS forwards all consults to the Fee Division, which reviews the consults to verify that they are appropriate for outside care and that the VA will pay the non-VA healthcare provider for the services. After providing an "authorization for care," an employee in the Fee Division schedules the patient’s appointment with the non-VA provider.[1]

The Fee Division also is responsible for paying the non-VA provider after the outside services are performed. Before paying for the services, an employee in the Fee Division must verify that the VA patient actually received the scheduled services. A Fee Division employee can verify that the services were performed by reviewing the patient’s medical records for evidence of the services (such as test results, physician reports, or a signed consent form) or by speaking personally to the patient. The Fee Division employee "completes" the consult by paying the outside provider’s bill and by adding an explanatory note to the patient’s file in CPRS (such as the date that the outside services were rendered). Marking a consult as complete in CPRS triggers a notification to the VA provider who originally ordered the consult, allowing that provider to review the results and to make further decisions about patient care.

In 2012, it became clear that the consult system had not been operating as it

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should; there were 2.1 million open consults in CPRS. This backlog made it difficult for VA physicians to know the status of a consult and to determine how they should proceed with patient care. The VA therefore instructed its facilities to engage in a CPRS clean-up project to resolve as many of the open consults as possible. The clean-up project proceeded in multiple steps. First, the VA automatically closed all consults that had been open for five or more years and deleted all duplicate consults. Then, for consults that had been open between ninety days and five years, the VA engaged in a more thorough review process. First, it examined each record. For patients who had died or had missed several appointments, the VA discontinued the consults. For all others, the VA directed all facilities to review the patient records to determine whether the patient had received the consult services.

VA examiners employed several techniques to determine whether a patient had received the consult services. For instance, an examiner might find in the patient’s medical records a progress report from the outside healthcare provider. VA employees working on the clean-up project also could call a patient to determine whether the patient had received the outside services. Once the VA had verified that the patient had received the services, the examiner closed the consult in CPRS with an explanatory comment. If the VA could not verify completion of the services, the examiner would send the consult to the VA provider who initially ordered the consult for further follow-up.

Charlie Norwood VA Medical Center had 30,000 open consults to address in the mandated consult clean-up process. Maribeth Bredehoft, its Chief of Health Administration Services, supervised the process. She instructed employees at all levels of the VA to participate, including non-clinical personnel (such as billers or schedulers). Bredehoft prepared detailed training and instructions for employees working on the clean-up project. Specifically, she instructed all employees on the project to examine each patient’s medical records for documentary evidence that the services had been provided and to close each consult that had such documentation with an explanatory comment in CPRS. If the employee could not find such documentation or if it was not clear from the file whether the service had been provided, Bredehoft instructed that the employee should leave the consult open for further review.

Eventually, Bredehoft instructed Mr. Henderson to supervise his own subordinates in the clean-up project. Bredehoft did not include Mr. Henderson in the detailed training process that she provided for other employees participating in the clean-up. The Government presented evidence that, as Chief of the Fee Division, Mr. Henderson was familiar with the routine consult completion process and had supervised regularly Fee Division employees in the closing of consults after the outside bills were paid.

Bredehoft emailed Mr. Henderson and instructed him that there were "thousands of consults" in CPRS that "need action."2 She said that the consults "from the very beginning ... [were] to be completed when the claim was processed and doc[umentation] received and that was not done."3 Mr. Henderson responded that consults were "clinical" and that he did not believe his staff should be responsible for closing them.[4] Bredehoft responded that the consults were "past consults ... that were to be closed when the claim was processed for payment. That meant that

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the services were rendered, documentation along with claim received, bill processed ... that is the bottom line."5 Despite his protests to Bredehoft, Mr. Henderson eventually acquiesced in her request that he join the clean-up process.

As Chief of the Fee Division, Mr. Henderson oversaw two groups of employees: Fee Clerks and Revenue Clerks. Fee Clerks regularly closed consults as part of their job duties and were involved in the process of paying the bills from outside service providers. Revenue Clerks had different responsibilities related to the VA’s provision of medical services to employees of other federal agencies. Specifically, the Revenue Division managed the process of billing those federal agencies for that medical care. The Revenue employees therefore had no experience with the VA consult process because they did not close consults as part of their regular job duties and, prior to working on the clean-up project, had no access to CPRS. Mr. Henderson nevertheless delegated the consult clean-up project to four Revenue employees.

Mr. Henderson directed the Revenue employees to close consults opened from October 1, 2012, through September 30, 2013. He instructed them to close all of those consults with a comment in CPRS along the lines of "[s]ervices rendered or patient refused services."6 He did not instruct them to examine each patients medical records for evidence that the...

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