United States v. Daneshvar

Decision Date29 April 2019
Docket NumberNo. 18-1101,18-1101
Citation925 F.3d 766
Parties UNITED STATES of America, Plaintiff-Appellee, v. Gerald DANESHVAR, Defendant-Appellant.
CourtU.S. Court of Appeals — Sixth Circuit

ON BRIEF: Elizabeth L. Jacobs, Steven F. Fishman, Detroit, Michigan, for Appellant. Andrew Goetz, UNITED STATES ATTORNEY'S OFFICE, Detroit, Michigan, for Appellee.

Before: SILER, COOK, and BUSH, Circuit Judges.

JOHN K. BUSH, Circuit Judge.

In the old days, every doctor made house calls to treat patients. In more recent days, Dr. Gerald Daneshvar made house calls as part of a conspiracy to commit Medicare fraud.

Daneshvar’s conspiracy lasted from 2012 to approximately 2013, during his time at a company called Mobile Doctors. Ultimately, Daneshvar was charged with one count of a conspiracy to commit healthcare fraud and two counts of healthcare fraud. A jury convicted Daneshvar on the conspiracy count but found him not guilty of the other two counts. Daneshvar was sentenced to 24 months in prison. This appeal followed.

The record demonstrates that Daneshvar’s trial was fair and that none of the district court’s rulings during that proceeding should be reversed. Furthermore, we find no reversible error with his sentencing. We therefore AFFIRM .

I. BACKGROUND
A. Medicare

Medicare is a taxpayer-funded healthcare benefit program for persons who are 65 and older and for those under 65 with disabilities. Typically, a Medicare beneficiary visits a doctor’s office and Medicare reimburses the doctor for the provided service. Medicare also pays for doctors’ home visits in certain circumstances; however, house calls cost Medicare more money than treatment in a doctor’s office. Thus, to qualify for a home visit, a patient must be homebound, which occurs if the patient has a condition because of an illness or injury that restricts the patient’s ability to leave his or her place of residence without the aid of a supportive device (e.g., cane, wheelchair, etc.). Also, the homebound patient actually must need the physician’s services.

Given the voluminous number of beneficiaries and doctors, Medicare does not review each home healthcare claim. Instead, Medicare relies upon doctors to accurately and honestly bill the services they provide.

B. Mobile Doctors

In 2003, Dike Ajiri, a non-medical professional, opened Mobile Doctors, headquartered in Chicago. It eventually expanded into seven states, including Michigan, and offered physician services to homebound Medicare beneficiaries. It hired doctors who agreed to assign their Medicare billing rights to the company.

After a home visit, each doctor would fill out a routing slip describing the patient’s diagnoses using Medicare codes and certifying that a qualified home visit had occurred. The original of the routing slip stayed with the patient file, while the carbon copy went to Mobile Doctors, which sought payment from Medicare. Upon receipt of payment, Mobile Doctors would then pay the physician-employee a percentage of what the company received from billing Medicare.

The problem with this business model was that a large portion of Mobile Doctors’s patients, in fact, did not qualify as being homebound. For instance, one doctor saw a supposedly homebound patient return home carrying groceries. Another patient rescheduled her appointment because she was bowling. Nevertheless, Mobile Doctors’s physicians were undeterred in characterizing such patients as homebound. In some instances, the doctors went even further: they signed certifications for additional unneeded treatment from companies that provided at-home nursing or physical therapy services—companies that had referred the patients to Mobile Doctors.

For many patients, whether legitimately homebound or not, Mobile Doctors exaggerated the services they needed. For example, Mobile Doctors scheduled each patient for a home visit every 30 days, regardless of whether it was necessary. At most, only half of these patients needed the prescribed medical care.

Mobile Doctors also engaged in upcoding, a fraudulent practice in which a healthcare provider submits a Medicare code for a more serious and more expensive diagnosis or procedure than the provider actually diagnosed or performed. Typically, at each home visit, a doctor met with a patient for 15 minutes at a minimum. Then, the doctor filled out the routing slip and, regardless of how healthy the patient was, the doctor usually selected only the two most expensive Medicare reimbursement codes for home healthcare. These top two codes are supposed to be rare because Medicare limits them to complex visits lasting around an hour and requiring extensive examination and treatment. But, Mobile Doctors utilized these codes for almost every doctor’s visit, even visits as short as 10 minutes, which involved no tests or other assessments.

In order to justify the higher-reimbursement codes, Mobile Doctors instructed their physicians to list at least three diagnoses in the patient file; if the doctors did not list enough, then a staff member added more to meet the three-diagnoses minimum. Typical diagnoses used to pad the claims were conditions that are common to persons over 50 years old: degenerative joint disease

, degenerative disk disease, high blood pressure, chronic pain, arthritis, and vitamin D deficiency.

Mobile Doctors only paid their physicians if they checked at least one of the top two billing codes on their routing slips. If the doctor billed for the higher of the top two codes, the doctor was paid more. And each doctor knew which codes paid the most. Every two weeks, physicians received a pay chart detailing the pay for all doctors at the company. The pay chart detailed the number of patients the physician visited per code, and how much Mobile Doctors paid for that particular code.

Mobile Doctors also encouraged their physicians to order diagnostic tests at specific intervals and required baseline laboratory tests either once or twice per year, whether the patients needed the tests or not. This testing was authorized by a "standing order" that Mobile Doctors required its physicians to sign even though Medicare prohibits testing ordered pursuant to standing orders. But Mobile Doctors thought otherwise: A doctor received bonuses from Mobile Doctors based, in part, on how many tests were authorized under that doctor’s name pursuant to the standing order.

C. Daneshvar’s Involvement with Mobile Doctors

In September 2012, Dr. Gerald Daneshvar1 joined Mobile Doctors as a physician in its Michigan office. He enrolled with Medicare, signed over his Medicare billing privileges to Mobile Doctors, and certified that he would abide by the rules set forth by Medicare and would not submit false claims.

Daneshvar then began conducting home visits. In return, for submitting his routing slips, he received payment from Mobile Doctors along with a pay chart detailing the pay for each physician per patient visit and Medicare code. But, Daneshvar later confessed that approximately 30 percent of his patients that he certified as homebound were, in fact, not so. And, according to one medical assistant, Robin Johnson, the fraud was even worse: Johnson testified that as many as half of Daneshvar’s patients were not homebound.

In fact, every time medical assistant Danielle Mangan went with Daneshvar for home visits, there would be at least one patient who was not even at home when they arrived for the visit. Medical assistant Shannon Guyton had similar experiences with Daneshvar. She testified that many of the patients could drive or leave their homes without assistance. One of Daneshvar’s patients also testified that she would regularly leave her house for daily activities such as going to the store. Another patient cancelled her appointment because "[s]he was getting ready to leave," and yet another was not home because he was "out with his friend." (Trial Tr. Vol. 3, R. 110, Page ID # 951, 988–89.) Once, when medical assistant India Brimberry was conducting home visits with Daneshvar, she saw a patient pull up in his car with bags, returning from a store. Another patient, Kevin Barrett, biked regularly and played in his church band. Barrett was honest: he told Daneshvar that he was not homebound. But such honesty did not carry over to Daneshvar’s Medicare certifications.

In the patient charts, Daneshvar would pre-sign forms documenting the face-to-face encounter, because Medicare rules state that a physician needs to make an in-person visit. Then, the clinical coordinator would fill out the diagnoses based on the routing slip or the exam notes within the chart. The forms stated, "I certify that based on my findings the following services are medically necessary home health services. Check all that apply." (Trial Tr. Vol. 2, R. 109, Page ID # 798.) The form continued, "Further, I certify that my clinical findings support that the patient is homebound (i.e., absences from home require considerable and taxing effort and are for medical reasons or religion services or infrequently or of short duration ... for other reasons ...)." (Id. at Page ID # 799.)

Daneshvar not only fraudulently presented patients’ homebound status, but he also referred his patients to home healthcare agencies for other unneeded services. Daneshvar once admitted to medical assistant Guyton that one of his patients "didn’t need the [medical] service, they weren’t homebound." (Trial Tr. Vol. 2, R. 109, Page ID # 930.) But, that isolated instance of candor was not indicative of Daneshvar’s practice generally.

As it turned out, Daneshvar would conduct the most home visits of any doctor employed by Mobile Doctors. During his employment, he saw almost 4,000 patients, which worked out to be around 20 patients per day. In order to handle such a large volume, according to several medical assistants, Daneshvar evaluated the patient in approximately 10 to 15 minutes, shorter in duration than evaluations by other physicians employed by Mobile Doctors. And Daneshvar scheduled...

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