People v. David Arnold and Heritage Nursing Home, Inc.

• Decision Date: 24 February 2005
• Docket Number: 15191.
• Citation: 2005 NY Slip Op 01392,790 N.Y.S.2d 291,15 A.D.3d 783
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. DAVID ARNOLD AND HERITAGE NURSING HOME, INC., Appellants.
• Court: New York Supreme Court — Appellate Division

15 A.D.3d 783

790 N.Y.S.2d 291

2005 NY Slip Op 01392

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. DAVID ARNOLD AND HERITAGE NURSING HOME, INC., Appellants.

15191.

Appellate Division of the Supreme Court of the State of New York, Third Department.

February 24, 2005.

Appeal from a judgment of the Supreme Court (Sirkin, J.), rendered March 25, 2004 in Albany County, convicting defendants following a nonjury trial of the crimes of grand larceny in the first degree and grand larceny in the second degree (three counts).

Peters, J.

In 1991, defendant David Arnold assumed administrative duties at defendant Heritage Nursing Home, Inc., located in Pennsylvania; he became its principal operator in 1995. At all relevant times, Heritage was a participant in both the New York and Pennsylvania Medicaid programs and was reimbursed through such programs for services provided to each state's residents who were Medicaid recipients residing within its facility. Under the New York program, Heritage's daily reimbursement rate was established through the use of Pennsylvania's Medicaid rate (hereinafter the home state rate), with add-ons for ancillary services which were not included in the home state's rate (see 18 NYCRR 527.1 [a] [2]).

In 1993, Arnold, on behalf of Heritage, submitted rate reports to New York setting forth the home state rate. He thereafter certified that Heritage was also going to provide physical, occupational and speech therapy services, as well as dental services, to New York Medicaid recipients but that the cost of such services was not included in the home state rate. Based upon these reports, New York calculated Heritage's daily rate and then included add-on payments for the specified ancillary services.

In 1998, the People advised defendants that it was reviewing services provided to New York Medicaid recipients by out-of-state providers. It requested that defendants make available for inspection all patient records dating back to January 1, 1992.¹ Following an investigation, defendants were each charged, by a four-count superior court information, with two counts of grand larceny in the first degree and two counts of grand larceny in the second degree. Count one alleged that between January 1, 1991 and December 31, 2000, defendants submitted numerous claims for services provided to New York Medicaid recipients which falsely certified that the amounts listed thereon were due when defendants were receiving duplicate reimbursement for certain ancillary services. Counts two and three alleged that between January 1, 1991 and December 31, 1997, defendants submitted numerous claims for occupational and speech therapy services and falsely certified that the entire amounts listed therein were due even though such services were not provided to New York Medicaid recipients. Finally, count four alleged that between January 1, 1991 and December 31, 2000, defendants submitted claims for dental services and falsely certified that the entire amounts listed thereon were due even though such services were not provided.

Following a nonjury trial, defendants were convicted of the crime of grand larceny in the first degree on the first count and the crime of grand larceny in the second degree on each of the remaining counts. Heritage was fined $10,000 on the first degree grand larceny count and given an unconditional discharge for the remaining counts. Arnold was sentenced to a term of imprisonment aggregating 3 to 12 years, and was ordered to pay restitution in the amount of $1 million. Defendants appeal and we affirm.

Contrary to defendants' contention, counts two and three of the indictment are not multiplicitous since "each count requires proof of an additional fact that the other does not" (People v Kindlon, 217 AD2d 793, 795 [1995], lv denied 86 NY2d 844 [1995]); count one required proof that defendants falsely certified to New York that Pennsylvania did not reimburse the costs of certain ancillary services whereas counts two and three required proof that defendants falsely certified that they were providing these services. Nor do we find counts two and three to be duplicitous of count one. Although counts two and three each charged defendants with submitting numerous claims for ancillary services, each count alleges a generalized scheme to unlawfully obtain reimbursement for a particular therapy service. "Where multiple acts constitute one scheme to commit grand larceny against a single victim . . . [and] each count allege[s] a separate scheme to commit grand larceny over a period of time" (id. at 795 [citation omitted]), the count is not duplicitous (see CPL 200.30 [1]).

We also find no merit to defendants' contention that the charges are time-barred under CPL 30.10. It is well settled that "grand larceny may be charged as a series of single larcenies governed by a common fraudulent scheme or plan even though the successive takings extended over a long period of time"² (People v Rosich, 170 AD2d 703, 703 [1991], lv denied 77 NY2d 1000 [1991]; see People v Cox, 286 NY 137, 142-143 [1941]).

Addressing the sufficiency of the evidence, we find a "valid line of reasoning and permissible inferences" (People v Bleakley, 69 NY2d 490, 495 [1987]) which rationally led Supreme Court, as the factfinder, to the conclusion that defendants intentionally undertook to obtain additional reimbursement for the costs of physical, occupational and speech therapy services, as well as dental services, by falsely certifying to New York that these costs were not included in the home state rate.³ Several witnesses, including a witness for the defense, testified that the applicable Pennsylvania regulations (see 55 Pa Code § 1181.212 [c] [16]) provided for reimbursement for these services during all relevant times. Testimony confirmed that Arnold was familiar with these regulations, understood the schedule for allowable costs and had utilized the provider manual and these regulations in other efforts at reimbursement. The evidence also showed that Arnold attended at least one educational seminar in his administrative capacity during which the Pennsylvania billing and reimbursement practices were explained. Defendants further submitted annual cost reports to New York identifying these services as Heritage's ancillary costs for the previous year⁴ while, at the same time, submitting rate reports to Pennsylvania seeking the same reimbursement. In the New York reports, Arnold certified that these services were not included in the home state rate but were services that defendants "will provide additionally under your proposed rate for New York . . . patients." Viewing this evidence in a light most favorable to the People (see People v Contes, 60 NY2d 620, 621 [1983]), a reasonable factfinder could find that defendants intentionally submitted false claims to New York (see People v McDonald, 88 NY2d 281, 287-288 [1996]).

We reach a similar conclusion regarding counts two through four. Sufficient evidence demonstrated that defendants made false representations of material fact to New York officials regarding the therapy services which they were allegedly providing to...