United States v. Barnes, No. 18-31074

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Writing for the Court: PRISCILLA R. OWEN, Chief Judge
• Citation: 979 F.3d 283
• Decision Date: 28 October 2020
• Docket Number: No. 18-31074
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Shelton BARNES; Michael Jones; Henry Evans ; Paula Jones; Gregory Molden, M.D., Defendants–Appellants.

979 F.3d 283

UNITED STATES of America, Plaintiff–Appellee,
v.
Shelton BARNES; Michael Jones; Henry Evans ; Paula Jones; Gregory Molden, M.D., Defendants–Appellants.

No. 18-31074

United States Court of Appeals, Fifth Circuit.

FILED October 28, 2020

Diane Hollenshead Copes, Esq., Kevin G. Boitmann, Jeffrey Ryan McLaren, Assistant U.S. Attorneys, U.S. Attorney's Office, Eastern District of Louisiana, New Orleans, LA, for Plaintiff–Appellee.

Edward Joseph Castaing, Jr., Esq., Crull, Castaing & Lilly, New Orleans, LA, for Defendant–Appellant Shelton Barnes.

Robert Charles Jenkins, Jr., Esq., Robert C. Jenkins & Associates, New Orleans, LA, for Defendant–Appellant Michael Jones.

Vincent James Booth, Counsel, Booth & Booth, A.P.L.C., Herbert V. Larson, Jr., New Orleans, LA, for Defendant–Appellant Henry Evans.

Elizabeth Kay Stepp, Oberheiden Law Group, P.L.L.C., Dallas, TX, Richard T. Simmons, Jr., Attorney, Hailey, McNamara, Hall, Larmann & Papale, L.L.P., Metairie, LA, for Defendant–Appellant Paula Jones.

William Todd Hughey, Esq., Hughey Law Firm, Marshall, TX, Harold Paul Moore, Harold P. Moore, Attorney at Law, Mandeville, LA, for Defendant–Appellant Gregory Molden, M.D.

Before OWEN, Chief Judge, and HAYNES and COSTA, Circuit Judges.

PRISCILLA R. OWEN, Chief Judge:

Shelton Barnes, Michael Jones, Henry Evans, Paula Jones, and Gregory Molden were convicted of offenses related to Medicare fraud. We affirm.

I

Dr. Shelton Barnes, Dr. Michael Jones, Dr. Henry Evans, Paula Jones, and Dr. Gregory Molden were each previously employed by Abide Home Care Services, Inc., a home health agency owned by Lisa Crinel. Barnes, Michael Jones, Evans, and Molden served as "house doctors." In that role, the physicians referred patients to Abide for home health care services. Paula Jones, Michael Jones's wife, was one of Abide's billers. As a biller, Jones would process Medicare filings. She would use the Kinnser billing system (Kinnser) to ensure that all appropriate documentation existed for each bill. As part of Abide's business model, it would "provide home health services to qualified patients and then bill Medicare accordingly."

979 F.3d 293

Medicare reimburses providers for home health care services if a particular patient is (1) eligible for Medicare and (2) meets certain requirements. Those requirements include, inter alia , that the patient is " ‘homebound,’ under a certifying doctor's care, and in need of skilled services."¹ Certifying a patient for home health care begins with an initial referral, which typically originates with the patient's primary care physician.² Next, "a nurse goes to the patient's home to assess if [he or] she is homebound, completing an Outcome and Assessment Information Set [ (OASIS) ]."³ From the OASIS assessment, the nurse develops a plan of care on a form known as a "485" for the prescribing physician's review. Only a physician can approve a 485 plan. Physicians are expected to review the forms to ensure they are accurate. These forms, as well as a face-to-face addendum certifying that the nurse met with the patient, are then routed to Medicare.⁴ This process permits payment for one 60-day episode. Patients can then be recertified for subsequent episodes.

Medicare determines how much will be paid for each episode based, in part, on the patient's diagnosis. Each diagnosis has a corresponding code derived from the International Statistical Classification of Diseases and Related Health Problems 9th Revision (an ICD-9 code). Reimbursements are higher for some diagnoses than others. So-called "case-mix diagnoses" such as rheumatoid arthritis, cerebral lipidosis, and low vision, receive higher payments than other, comparatively simpler diagnoses. As a result, false or erroneous entries on the OASIS form can ultimately result in higher Medicare reimbursements.

The government came to suspect that Abide was committing health care fraud. Specifically, the government alleged that "Abide billed Medicare based on plans of care that doctors authorized for medically unnecessary home health services." According to the government, several patients who had received home health care from Abide did not, in fact, need such services. Each physician had "approved [case-mix] diagnoses to patients on ... 485s that were medically unsupported." Paula Jones had also participated in the scheme. Through Kinnser, Abide employees were able to predict how much Medicare would reimburse for a particular episode of home health care. If the episode did not meet Abide's "break-even point," Jones would send "the files back to the case managers to see if they could get the score up." These and other actions "fraudulently inflated Medicare's reimbursement to Abide."

Relatedly, the government also came to suspect that Abide was "pay[ing] doctors, directly or indirectly, for referring patients." The government alleged that Crinel (the owner of Abide) had paid the physicians for patient referrals. Some of these payments were "disguised as compensation for services performed as [medical directors]" for Abide. The government also alleged that Paula Jones's salary, which had doubled during her time working for Abide, was based on her husband's referrals. This conduct, the government alleged, constituted a violation of 42 U.S.C. §§ 1320a-7b(b)(1), (b)(2) —the anti-kickback statute.

Barnes, Michael Jones, Evans, Paula Jones, and Molden were each charged with conspiracy to commit health care fraud

979 F.3d 294

and conspiracy to violate the anti-kickback statute. Each physician was also charged with several counts of substantive health care fraud. Finally, Barnes was charged with obstructing a federal audit in violation of 18 U.S.C. §§ 2 and 1516. According to the government, upon learning he was under audit, Barnes falsified documents to justify his fraudulent certifications.

At trial, Crinel, Wilneisha Jakes (Crinel's daughter and an Abide employee), Rhonda Maberry (an assistant manager at Abide), and Eleshia Williams (Barnes's biller) testified for the government. Dr. Lutz also testified for the government. He evaluated the medical records of several of Abide's patients and opined as to whether home health care was medically necessary. The defendants presented several witnesses; Evans also testified in his own defense. The jury convicted Barnes, Michael Jones, Paula Jones, and Molden of conspiracy to commit health care fraud and conspiracy to violate the anti-kickback statute. Barnes, Evans, Michael Jones, and Molden were each found guilty of several counts of substantive health care fraud. The jury also convicted Barnes of obstructing a federal audit. Thereafter, each was sentenced to a term of imprisonment. This appeal followed.

II

We first consider the issues raised by Shelton Barnes.

A

Barnes challenges the sufficiency of the evidence supporting each of his convictions. "[P]reserved sufficiency-of-the-evidence challenges" are reviewed de novo.⁵ Under that standard, "we review[ ] the record to determine whether, considering the evidence and all reasonable inferences in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt."⁶

1

Barnes was convicted on both counts of conspiracy identified in the indictment. Count 1 alleged that he conspired to commit healthcare fraud, in violation of 18 U.S.C. §§ 1347 and 1349. Section 1347 punishes "[w]hoever knowingly and willfully executes, or attempts to execute, a scheme or artifice ... to defraud any health care benefit program ... in connection with the delivery of or payment for health care benefits, items, or services."⁷ To convict on Count 1, the government was required to prove: "(1) two or more persons made an agreement to commit health care fraud; (2) the defendant knew the unlawful purpose of the agreement; and (3) the defendant joined in the agreement willfully, that is, with the intent to further the unlawful purpose."⁸

Count 2 alleged that Barnes conspired with others to "knowingly and willfully solicit and receive ... kickbacks and

979 F.3d 295

bribes ... in return for referring individuals for" Medicare services in violation of 42 U.S.C. §§ 1320a-7b(b)(1), (b)(2), and 18 U.S.C. § 371. As summarized in United States v. Gibson , the anti-kickback statute "criminalizes the payment of any funds or benefits designed to encourage an individual to refer another party to a Medicare provider for services to be paid for by the Medicare program."⁹ To convict on Count 2, the government was required to establish: "(1) an agreement between two or more persons to pursue [the] unlawful objective; (2) the defendant's knowledge of the unlawful objective and voluntary agreement to join the conspiracy; and (3) an overt act by one or more of the members of the conspiracy in furtherance of the objective of the conspiracy."¹⁰

The sine qua non of a conspiracy is an agreement.¹¹ We have previously recognized that "[a]greements need not be spoken or formal."¹² "[T]he [g]overnment can use evidence of the...