U.S.A v. Anderson

• Decision Date: 19 May 2010
• Docket Number: No. 08-6152.,08-6152.
• Citation: 605 F.3d 404
• Parties: UNITED STATES of America, Plaintiff-Appellee,v.Billie Faye ANDERSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

605 F.3d 404

UNITED STATES of America, Plaintiff-Appellee,v.Billie Faye ANDERSON, Defendant-Appellant.

No. 08-6152.

United States Court of Appeals, Sixth Circuit.

Argued: April 29, 2010.

Decided and Filed: May 19, 2010.

COPYRIGHT MATERIAL OMITTED

ARGUED: Dan R. Smith, Law Office, Johnson City, Tennessee, for Appellant. Debra A. Breneman, Assistant United States Attorney, Knoxville, Tennessee, for Appellee. ON BRIEF: Dan R. Smith, Law Office, Johnson City, Tennessee, for Appellant. Debra A. Breneman, Assistant United States Attorney, Knoxville, Tennessee, for Appellee.

Before: MOORE and GILMAN, Circuit Judges; RUSSELL, Chief District Judge.^*

OPINION

RONALD LEE GILMAN, Circuit Judge.

Billie Anderson was indicted on one count of Medicaid fraud. After the government presented its case in chief, Anderson moved to dismiss the indictment as duplicitous and, alternatively, requested specific jury instructions to cure the alleged duplicity. The district court denied the motion and refused to charge the jury with the requested instructions. After the jury found Anderson guilty, the court sentenced her to 24 months of imprisonment. She then filed a post-trial motion to dismiss the indictment, alleging that it failed to state an offense, but this motion was also denied by the court. Anderson now appeals the denial of both motions. For the reasons set forth below, we AFFIRM the judgment of the district court.

I. BACKGROUND

A. Factual background

The government's charge revolved around the absence of a medical director at Anderson HealthCare, Inc. (AHC), a long-term healthcare facility located in Gray, Tennessee, between March 2002 and January 2003. Anderson was accused of fraudulently concealing this absence, thereby allowing AHC to continue receiving Medicaid payments to which it was not entitled.

AHC participated in Medicaid, a state-administered program through which healthcare providers are reimbursed with federal funds for providing certain services to the indigent. TennCare, a division of the Tennessee Department of Health, is responsible for processing eligible claims for services provided by healthcare facilities in Tennessee and paying reimbursements with a combination of state and federal funds.

A facility's ongoing participation in Medicaid is conditioned on its compliance with various federal, state, and local regulations, 42 C.F.R. § 483.75(b), including the requirement that a long-term healthcare facility “designate a physician to serve as medical director,” 42 C.F.R. § 483.75(i)(1). A medical director is responsible for coordinating medical care within the facility and implementing resident-care policies. Id. § 483.75(i)(2).

At all relevant times, Billie Anderson was an owner and the administrator of AHC. In these positions, Anderson hired and fired AHC employees, made all of the financial decisions, and was responsible for paying the medical director.

Glenna Taylor, a registered nurse who worked at AHC from 1981 until either 2001 or 2002, testified that for the entire time she was employed there, the facility had a medical director. For the last 10 years of Taylor's employment, Dr. Daniel David served in that position. Dr. David was a faculty member at East Tennessee State University (ETSU), and the ETSU physicians group had a contract with AHC, providing that Dr. David would be the facility's medical director. But on January 15, 2002, ETSU sent a letter to Anderson stating that its physicians group intended to terminate the contract with AHC effective March 15, 2002.

In September 2002, the Tennessee Department of Health conducted its annual survey of AHC. Annual surveys are designed to determine a facility's compliance with federal and state regulations regarding patient care. During the survey, an employee at AHC was given a Disclosure of Ownership and Control Interest Statement Form, which was signed by Anderson and given to the state team by the end of the survey. One of the questions on the form asked: “Has there been a change in Administrator, Director of Nursing or Medical Director within the last year?” The form was checked “No” in response to this question and was dated September 19, 2002. Above the signature line was a bolded statement warning that the making of a false statement on the form could result in prosecution under federal or state laws, and that “knowingly and willfully failing to fully and accurately disclose the information requested may result in denial of a request to participate or[,] where the entity already participates, a termination of its agreement or contract with the state agency or the Secretary [of Health and Human Services].”

AHC's September 2002 survey revealed numerous “immediate jeopardies,” meaning that there were serious and immediate threats to the residents' safety and health. The Tennessee Department of Health therefore conducted an extended survey, also in September 2002, to follow-up on the immediate jeopardies. As part of this more detailed survey, the Department prepared a list of items it would need from AHC, including the medical director's license to practice medicine, the medical-director contract, and all other contracts that the facility had in place. The survey team was initially told that the medical director was Dr. David, but later was told that Dr. Frank Johnson was the medical director. On September 19, 2002, AHC could not produce the medical license for either physician. One day later, however, AHC faxed the survey team a copy of Dr. Johnson's license.

Rebecca Riddle became the office manager at AHC in either December 2001 or January 2002. She recalled overhearing a heated conversation between Anderson and Dr. David in January 2002 about the doctor's resignation. Riddle testified that Anderson thus knew that Dr. David was leaving as the medical director. Sometime later, Riddle typed up a proposed medical-director contract for Dr. Johnson, which she then sent to him. Riddle was aware that Dr. Johnson had turned down the contract because he sent the contract back in the mail unsigned and “with a sticky note on it.” She further testified that Anderson did not hire anyone else as medial director after Dr. Johnson turned down the job, and that AHC did not have a medical director during the September 2002 surveys.

Riddle told Anderson during the extended survey that the Tennessee Department of Health wanted to see the medical-director contract. Anderson, according to Riddle, said “[t]hey'll close me down” when Riddle pointed out that the facility did not have a medical director. This prompted Anderson to have Riddle retrieve Dr. Johnson's contract that he had sent back unsigned, to say “[l]et's try this,” and to give Riddle the unexecuted contract for the latter to hand the survey team. When a member of the survey team told another AHC staff member that the team needed a signed version, Anderson took the contract back, signed it herself on behalf of AHC, and told Riddle to sign Dr. Johnson's name, which Riddle did. Dr. Johnson had not authorized Riddle to sign for him, and Riddle eventually told state investigators in February of 2003 about this incident.

Following the extended survey, TennCare notified Anderson that, based on the deficiencies found during the surveys, it would recommend that her Medicaid provider agreement be terminated. Because AHC had furnished a medical license and a signed medical-director contract for Dr. Johnson, it was not cited for the absence of a medical director. Anderson subsequently submitted a plan of correction, which specifically mentioned the involvement of the medical director in implementing changes. She was thereafter notified that as of October 25, 2002, AHC was in compliance with the relevant regulations, so its contract would not be terminated.

In response to the extended survey, Anderson hired nursing consultant Debra Verna in late fall or early winter 2002 to help keep AHC in compliance with federal and state regulations. Verna met Dr. Johnson while working at AHC and said she understood that he was the medical director. Dr. Johnson immediately stated that he was not the medical director, that Verna needed to inform Anderson of that, and that he had not signed any contract. When Verna informed Anderson the next day about this conversation, Anderson stated that she did not know why Dr. Johnson would say that, causing Verna to suggest that Anderson follow up with him. After Verna stopped working at AHC in approximately January 2003, she filed an anonymous complaint with the Tennessee Department of Health regarding the facility's lack of a medical director.

Dr. Robert Chapman Lee entered into a written contract with AHC on January 8, 2003 to become its medical director, and he began his employment on that date. Because “there were things going on that [he] didn't feel comfortable with,” however, Dr. Lee sent Anderson a certified letter on February 1, 2003 notifying her that he was resigning as the medical director.

In response to complaints about AHC, the Tennessee Department of Health began an investigation in February 2003 to determine whether there was a medical director at the facility. The Board of Nursing Home Administrators suspended Anderson's administrator's license in March 2003 because it found that “from on or around March 16, 2002 to on or around January 7, 2003, [Anderson] operated Anderson HealthCare, Inc. without a medical director.” Before this investigation, neither federal nor state officials knew that AHC was without a medical director during the period of time in question. At trial, the prosecution presented proof that TennCare had paid AHC over $1 million as a result of reimbursement claims filed and signed by Anderson each month from July 2002 through January 2003.

B. Procedural history

Anderson was originally indicted in June 2007 on eight counts of Medicaid fraud. In August 2007, the government moved to dismiss all but one count. The remaining count, brought pursuant to 42 U.S.C. §...