U.S. v. Huckaby

• Decision Date: 06 January 1983
• Docket Number: No. 82-1650,82-1650
• Citation: 698 F.2d 915
• Parties: , 11 Fed. R. Evid. Serv. 1869 UNITED STATES of America, Appellee, v. Mabel HUCKABY, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 915

698 F.2d 915

1 Soc.Sec.Rep.Ser. 126, 11 Fed. R. Evid. Serv. 1869

UNITED STATES of America, Appellee, v. Mabel HUCKABY, Appellant.

No. 82-1650.

United States Court of Appeals Eighth Circuit.

Submitted Oct. 15, 1982.

Decided Dec. 13, 1982.

Rehearing and Rehearing En Banc Denied Jan. 6, 1983.

Samuel A. Perroni, Stanley D. Rauls, William R. Wilson, Jr., Little Rock, Ark., for appellant.

George W. Proctor, U.S. Atty., Robert J. Govar, Asst. U.S. Atty., Little Rock, Ark., for appellee.

Before HEANEY and ROSS, Circuit Judges, and HENLEY, Senior Circuit Judge.

HEANEY, Circuit Judge.

Mabel Huckaby appeals from her convictions on eight counts of violating the Medicaid Act by fraudulently obtaining a greater amount of Medicaid payments than she was due. We affirm.

The Federal Grand Jury for the Eastern District of Arkansas indicted defendant Mabel Huckaby on October 20, 1981. The indictment alleged ten counts of Medicaid fraud in violation of 42 U.S.C. Sec. 1396h(a)(3). ¹ Specifically, the indictment charged Huckaby with concealing and failing to disclose the actual level of care that Cumberland Lodge Nursing Home provided to ten Medicaid recipients for the purpose of fraudulently securing Medicaid payments in greater amount than was due. Huckaby pled not guilty at her arraignment, and a jury trial was held on March 9-16, 1982.

Under the Arkansas Medicaid Plan, providers of long term care services to Medicaid recipients (providers) are reimbursed for the reasonable cost of long term care services. The amount of the reimbursement depends upon the level of care the Medicaid recipient requires. Each provider regularly submits a form identified as Arkansas Social Services Evaluation of Need for Nursing Home Care Form SS-703 (703) to assist Arkansas Social Services in identifying the level of care each Medicaid patient needs. Based to a great degree on these forms, Arkansas Social Services classifies recipients as skilled care (class A), intermediate care (class B), or minimum care (class C). A provider receives the most money per patient per day for class A patients, and the least for class C patients. Arkansas Social Services reimburses the providers directly.

The Cumberland Lodge Nursing Home (Cumberland) was located in Little Rock, Arkansas, and was an authorized provider of long term care services. Appellant Huckaby owned an interest in and participated in the management and operation of Cumberland along with her husband Ray Huckaby.

The charges against Huckaby originate with ten 703 forms which Cumberland submitted to Arkansas Social Services in August, 1979. The purpose of the 703 form is to describe a patient's physical and mental condition. Patient condition determines level of care classification. The two-page form is divided into sections labeled "Diagnosis," "Status of Major Impairment," "Degree of Incapacity," "Plan of Care," "Nursing Home Services Required," "Nurses Comments," "Assessment of Social Needs," and "Prognosis." Three sections, "Degree of Incapacity," "Nursing Services Required," and "Status of Major Impairment," are completed by checking appropriate blanks. The remaining sections have blanks for making comments.

Elizabeth Johnson, Director of Nursing at Cumberland, filled out the forms in August, 1979. Johnson began working for Cumberland in November, 1978. At trial, she testified she and Huckaby had a number of disagreements about the correct way to fill out 703s starting in February, 1979. Johnson said Huckaby told her she was not showing enough intermediate and skilled care patients on the forms. On this occasion, Huckaby told Johnson to redo the forms four times. Johnson testified she filled out the forms the same way every time because, in her opinion, the forms properly reflected each patient's condition. The fourth and last time Johnson redid the forms she put them in an administrative office and left for the day. She took the following day off, but called the nursing home midway through the afternoon to check in. When she called, she discovered Huckaby had three employees redoing the 703s. Johnson went to the Social Services office the following Monday to examine the forms and found ten had been changed to reflect a greater degree of patient incapacity. Huckaby fired Johnson when she returned to Cumberland to tender her resignation.

The redone forms were delivered to Arkansas Social Services. Dr. Ray A. Brinkley, a private physician working with Arkansas Social Services, reclassified all the Medicaid recipients named in the forms from class "C" (minimum care) to class "B" (intermediate care) based on the information in the forms. As a result of this reclassification, Cumberland received an additional $2,788.76 over the next six months.

At the conclusion of the government's case, Huckaby moved for judgment of acquittal on all counts. The motion was denied in part and the court ² reserved ruling on the sufficiency of Counts VI and X. The court also denied a defense motion for a mistrial stemming from allegedly prejudicial testimony for a government rebuttal witness. The jury returned a guilty verdict on all ten counts. The court set aside the verdict as to Counts VI and X. The court sentenced Huckaby to a suspended one-year and one-day term of imprisonment on each count, the terms to run concurrently, and placed her on probation for a total of four years. In addition, the court fined Huckaby $8,000 ($1,000 for each count) and directed her to make restitution in the sum of $2,511.96. ³

Huckaby appeals her conviction. She challenges the sufficiency of the evidence used to convict her and the sufficiency of the indictment under which she was charged. She also argues the Medicaid fraud provision is unconstitutionally vague. Finally, she maintains the district court erred in not declaring a mistrial when the government elicited testimony concerning other crimes contrary to Fed.R.Evid. 404(b).

A. Sufficiency of the Evidence.

Huckaby argues the evidence was insufficient to establish that she violated 42 U.S.C. Sec. 1396h(a)(3) because the government did not prove: (1) the actual level of care Cumberland provided to the named Medicaid patients, and (2) that she knowingly concealed or failed to disclose this level of care with intent to defraud the government.

Huckaby's first argument assumes the government needed direct evidence of the actual care Cumberland patients received in order to prove the charges in the indictment. Because Cumberland could have provided more nursing care than patient condition necessitated, Huckaby maintains proof of actual care is crucial to the case.

For the most part, government witness testimony followed a set format. The witnesses compared the information on each patient contained in the 703s to their own knowledge about the patient's condition. ⁴ For example, all of the 703 forms represent that the named patient needs total help with grooming, including bathing, care of hair and dressing. Government witnesses testified these patients needed little or no help with these tasks. Similarly, all but one of the forms described the named patients as bedfast. The witnesses disagreed, characterizing these same patients as up and about and taking care of themselves. In Huckaby's view, this type of testimony does not prove the charges against her.

We disagree. The jury could reasonably infer Huckaby concealed or failed to disclose the actual level of care these Medicaid patients received from government witness testimony that she misrepresented these patients' needs on the 703 forms. In reviewing challenges to the sufficiency of the evidence, this Court views the evidence in the light most favorable to the verdict rendered and accepts all reasonable inferences from the evidence which support the verdict. United States v. Yancy, 688 F.2d 70, 71 (8th Cir.1982); United States v. Taylor, 599 F.2d 832, 837 (8th Cir.1979). We will not disturb the jury's logical conclusion that misrepresentation of one set of facts--patient condition--was intended to conceal another set of facts--actual level of care.

Moreover, the government introduced nursing notes kept on each named patient each day for the month before Cumberland submitted the 703s to Social Services. These nursing notes are regularly kept records of the care the nursing staff gives to all patients on the nursing shift. They provide direct evidence of the actual care the named patients received. There is a clear discrepancy between the care recorded in the nurse's notes and patient condition as represented in the 703s. ⁵

A careful review of the nurse's notes, witness testimony, and the 703 forms support the jury's conclusion that the 703 forms were used to conceal the actual level of care provided to the named Medicaid patients.

Huckaby also challenges the sufficiency of the evidence demonstrating her intent to defraud the government. In this case, as in many others, circumstantial evidence is the only available means of proving intent. The circumstances surrounding the changed forms evince Huckaby's intent to defraud.

From the start of her disagreements with Johnson over the correct way to fill out the 703 forms, Huckaby said she wanted more intermediate and skilled care patients. She put a red line through "incorrect" forms and marked where the checks should go. When Johnson adamantly refused to change the forms, Huckaby turned them over to other employees to be redone. These employees testified they knew Huckaby's aim was to upgrade patient classification. Huckaby told one employee that Arkansas Social Services put a grid over the check marks and classified patients based on the location of the marks in the grid. This employee was told to put as many checks as possible in the "total help" section. Huckaby told other employees to leave the "degree of incapacity" section blank so that she and another administrator could fill out this crucial section. Employees filling in the "nurse's...