United States v. Little
| Docket Number | 21-11225,21-11228 |
| Decision Date | 03 November 2023 |
| Parties | United States of America, Plaintiff-Appellee, v. Tammie L. Little; Laila N. Hirjee, Medical Doctor, Defendants-Appellants, United States of America, Plaintiff-Appellee, v. Mark E. Gibbs, Medical Doctor, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Appeals from the United States District Court for the Northern District of Texas USDC Nos. 3:17-CR-103-12 3:17-CR-103-5 and 3:17-CR-103-6
Before RICHMAN, Chief Judge, and STEWART and DOUGLAS, Circuit Judges.
Three codefendants appeal their various convictions stemming from a multi-million-dollar healthcare conspiracy that involved fraudulent certification and recertification of patients as terminally ill and eligible for hospice care. Finding no reversible error, we affirm.
Defendants challenge the sufficiency of the evidence to support their convictions. Our sufficiency review is highly deferential to the jury's verdict, and "[a]s a result, the recounting of the evidence that follows is in the light most favorable to the jury's verdict."[1]
Novus was a hospice provider located in Dallas, Texas, and cofounded by Bradley Harris (Harris) and Amy Harris (Amy Harris) in 2012. Harris oversaw Novus's operations. Drs Mark E. Gibbs and Laila N. Hirjee were medical directors for Novus. Tammie L. Little was a registered nurse (RN). Melanie Murphey was an administrator who had no medical training.
Under applicable regulations, hospice is a service for the "terminally ill" that provides palliative care rather than curative care. "Terminally ill" means "that the individual has a medical prognosis that his or her life expectancy is 6 months or less if the illness runs its normal course."[2]Hospice care is among the benefits covered by Medicare. Medicare pays hospice providers' claims automatically in order to expedite reimbursement. A web of statutes and regulations governs whether Medicare will pay for hospice services. For a hospice claim to be eligible for Medicare reimbursement, a medical director must have enrolled the patient after "certify[ing] in writing . that the individual is terminally ill . . . based on the physician's or medical director's clinical judgment regarding the normal course of the individual's illness."[3] The medical director can rely on the records and recommendation of the patient's attending physician to certify a patient as terminally ill and admit him or her to hospice. A patient can be recertified after their first 90 days on hospice without a face-to-face visit. If a patient is still alive after 180 days, Medicare requires that a face-to-face visit accompany the medical director's recertification for hospice. A face-to-face visit is also required for every following recertification which must occur no more than 60 days after the previous one.
Novus exploited Medicare's reimburse-first-verify-later system. Because Medicare pays a flat rate per day for patients who are receiving hospice care regardless of the amount of care provided or the resulting costs to the hospice, it can be profitable to have low-acuity patients who are designated as hospice patients for long periods of time. Novus's business model was to target patients who had a medical diagnosis that would qualify them for hospice but who were not "imminently dying." Staff at Novus would market to these desirable types of patients, and, if those patients agreed to receive hospice services from Novus, the staff would then use presigned physician's orders to enroll patients.
As discussed above, Medicare has certain requirements for recertifying patients for hospice. Relevant here, the medical director's 180-day recertification must be accompanied by a form attesting to the medical director's face-to-face visit with the patient and a physician's narrative explaining "why the clinical findings of that face-to-face encounter support a life expectancy of six months or less." At Novus, the medical directors used nurses' notes to fill out the narrative section of the face-to-face forms, and Harris told them what dates to put on the forms. Face-to-face visits by the directors did not occur.
Ultimately, Novus's business model had inherent limitations. Medicare imposes an aggregate cap on the amount of money it will pay a hospice in a year. When Medicare has paid a hospice provider more than its cap allows, it claws back the excess payments. Novus exceeded its cap in 2012 and 2013, and, by its calculations, it had exceeded its cap by millions in mid-2014. To avoid liability for the excess payments, Novus needed to increase the number of patients who were hospice patients for a short time. Bluntly, Novus needed patients who would die quickly or who could be discharged before the end of their first 90-day benefits period.
To meet these needs, Harris entered into an agreement with Ali Rizvi, the owner of Express Medical. Rizvi provided Little with login credentials to Express Medical's electronic records database. Little and Harris used Express Medical's database to look for patients who had been diagnosed with a disease that would qualify them for hospice care. Little or Amy Harris would then contact those patients and try to enroll them with Novus.
In 2015, the Centers for Medicare and Medicaid Services (CMS) suspended payments to Novus because of "credible allegations of fraud." Harris, Amy Harris, and Dr. Gibbs responded by transferring some of Novus's patients to another hospice company, Dependable. Dr. Gibbs served as Dependable's medical director until CMS suspended payments to Dependable.
A grand jury indicted Harris, Amy Harris, Rizvi, Murphey, Dr. Gibbs, Dr. Hirjee, Little, and others for conspiracy to commit healthcare fraud and other crimes. Little and Drs. Hirjee and Gibbs proceeded to trial. Harris and Murphey, among others who had been indicted, pled guilty and testified at trial.
The jury found each defendant guilty of the allegations in Count One, conspiracy to commit healthcare fraud. The jury also found: (1) Dr. Gibbs guilty of Counts Five and Six, substantive healthcare fraud, but acquitted him on a third count, and guilty of Count Fifteen, conspiracy to obstruct an administrative proceeding; (2) Dr. Hirjee guilty of Counts Eight, Nine, and Ten, substantive healthcare fraud, and guilty of Count Fourteen, unlawful distribution of a controlled substance; and (3) Little guilty of Counts Two, Three, and Four, substantive healthcare fraud. The district court sentenced Dr. Gibbs to 156 months of imprisonment; Dr. Hirjee to 120 months; Little to 33 months. The district court ordered Dr. Gibbs to pay $27,978,903 in restitution jointly and severally with other coconspirators; and Little to pay $366,493.12 jointly and severally with other coconspirators. The defendants timely appealed.
We first address challenges to the sufficiency of the evidence-first to the conspiracy counts, then to the substantive healthcare fraud counts, and finally to the defendant-specific counts of distribution of a controlled substance and conspiracy to obstruct justice. We then address issues relating to the conduct of trial, including the jury instructions given on two counts, the denial of a motion for a new trial, and the admission of evidence. Finally, we address challenges to restitution and sentencing.
We review sufficiency of the evidence challenges de novo, but we remain "highly deferential to the verdict."[4] "[T]he relevant question is whether after viewing the evidence 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."[5] "The evidence is viewed in the light most favorable to the verdict, accepting all credibility choices and reasonable inferences made by the trier of fact which tend to support the verdict,"[6] and we resolve any conflict in the evidence "in favor of the jury's verdict."[7] "We will not second guess the jury in its choice of which witnesses to believe."[8] We begin by addressing the sufficiency of the evidence as to the conspiracy to commit healthcare fraud counts; then the substantive healthcare fraud counts; then the distribution of a controlled substance count for Dr. Hirjee; and last the conspiracy to obstruct justice count for Dr. Gibbs.
"A person commits health care fraud by 'knowingly and willfully execut[ing] a scheme to defraud a government health care program like Medicare.'"[9] "A person is guilty of conspiring to commit health care fraud when he knowingly agrees to execute the fraud scheme with the intent to further its unlawful purpose."[10] To prove a conspiracy to commit healthcare fraud, the Government must show that: (1) two or more people made an agreement to commit healthcare fraud; (2) the defendant knew of the unlawful purpose of the agreement; and (3) the defendant joined in the agreement with the intent to further the unlawful purpose.[11] We first address Dr. Gibbs's arguments, then Dr. Hirjee's, and last, Little's.
Dr Gibbs argues that the Government failed to establish that he "agreed to commit healthcare fraud." He provides two theories.
First Dr. Gibbs contends that the Government did not present evidence proving he "knowingly participated in a scheme where he knew patients were certified for hospice when they were not hospice appropriate or that patients were kept in hospice when that was no longer appropriate." This argument misconstrues the theory of fraud underlying these charges. The fraud is the false certification of patients as terminally ill to enroll them as hospice patients and the false recertification to keep them as receiving hospice care. Those certifications and recertifications are false because Dr. Gibbs did not know...
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