United States v. Moss
| Decision Date | 12 April 2022 |
| Docket Number | 19-14548, No. 19-14565 |
| Citation | 30 F.4th 1271 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Douglas MOSS, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Douglas Moss, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Michelle Lee Schieber, U.S. Attorney Service - Middle District of Georgia, U.S. Attorney's Office, Macon, GA, Finnuala K. Tessier, U.S. Department of Justice, Criminal Division, Appellate Section, Washington, DC, for Plaintiff-Appellee.
Edward T.M. Garland, John Aspinwall Garland, Garland Samuel & Loeb, PC, Atlanta, GA, Randy Scott Chartash, Chartash Law, LLC, Atlanta, GA, for Defendant-Appellant.
Before William Pryor, Chief Judge, Luck, and Ed Carnes, Circuit Judges.
Medicare and Medicaid combined spend $1,500,000,000,000 a year, which is more than one-third of the total health expenditures in this country.1 Like other government health care programs, these two work on the honor system. Trust and more trust. Both programs take a pay first, ask questions later (if ever) approach. Which leads to crime and more crime, both sooner and later.
A trust-based system is only as good as the people who are trusted. Douglas Moss is one of those who was trusted but not trustworthy.2 As a physician, he fraudulently billed Medicare and Medicaid for millions of dollars for visits to nursing home patients that he never made. Someone else with a lower billing rate made some of those visits, and others never took place.
For his fraudulent conduct, Moss was convicted of conspiracy and substantive health care fraud, sentenced to 97 months imprisonment, ordered to pay restitution of about 2.2 million dollars, and ordered to forfeit around 2.5 million dollars. He appeals, challenging the convictions, sentence, restitution amount, and forfeiture amount, which is nearly every component of the judgment against him. And he loses on every component of his appeal.
To explain Moss' crimes (what he did, not why he did it which is obvious) we will begin with how Medicare and Medicaid determine how much health care providers will be paid. Then we will turn to how Moss arranged his billing practices to defraud the programs.
Medicare and Medicaid are federally funded health care programs. To make things simpler, from this point forward we will focus on Medicare (which suffered the brunt of his fraud) with the understanding that what is said about it applies to Medicaid as well, except where noted.
Medicare pays "claims," which are requests by a health care provider to be "reimbursed" (paid) for services provided to Medicare recipients. A claim contains a variety of information, including where the medical service was provided, the dollar amount being billed to Medicare, and an identification number for the health care provider. It also contains a code for the procedure or service performed.
Those codes are called the "CPT codes," which stands for Current Procedural Terminology codes. CPT codes are a national uniform coding structure created for use in billing and overseen by the American Medical Association. They are used by all health insurance companies and by Medicare and Medicaid. A code represents at least two things: the procedure or service performed and the level of complexity involved in it. One type of procedure or service can have more than one CPT code because the same procedure may, in some cases, be more complex than in others. Generally, for any given category of procedure, the more complex the performance, the higher the number used for its code. In turn, a higher CPT code generally gets a higher reimbursement amount from Medicare.
Most of the fraud in this case involves claims for visits to nursing homes, so we will use that area of care to illustrate how CPT codes work. When a patient enters a nursing home, a health care provider's first visit with that patient is categorized as "initial nursing facility care," which corresponds to a particular set of three CPT codes. The highest of those three is 99306. According to a CPT manual issued by the AMA, a 99306 coded visit "requires these 3 key components: [a] comprehensive history; [a] comprehensive examination; and [m]edical decision making of high complexity." Giving that code to a visit also means that the problem requiring admission to the nursing home is usually one of "high severity," and that the health care provider's visit typically takes 45 minutes.
For later visits to nursing home patients, which are categorized as "subsequent nursing facility care," there are four codes: 99307, 99308, 99309, and 99310. For 99309, the CPT manual states that it requires two of the following three "key components": a detailed interval history, a detailed examination, and medical decision making of moderate complexity. The manual also states that for a 99309 coded visit: "[u]sually, the patient has developed a significant complication or a significant new problem" and "[t]ypically, 25 minutes are spent at the bedside and on the patient's facility floor or unit." As for code 99310, the first two "key components" must be "comprehensive" instead of just "detailed" and the third must involve "[m]edical decision making of high complexity" instead of just "moderate complexity." The manual states that "[t]he patient may be unstable or may have developed a significant new problem requiring immediate physician attention," and that the visit typically takes 35 minutes.
For Medicare to pay a claim (or "reimburse" it), several requirements must be met. The service must be provided to a real patient who is properly enrolled as a Medicare beneficiary; it must be provided by a health care provider properly licensed and "enrolled" as a Medicare provider; it must be a service covered by Medicare; and it must be properly documented and billed. The service also must be reasonable and medically necessary. Health care providers sign a "certification statement" agreeing that they will comply with all of those requirements and will not submit false claims.
When Medicare reimburses a claim, the amount that it pays is based on a predetermined fee schedule that it sets. A health care provider is free to submit a claim for a dollar amount that exceeds the amount in the fee schedule, but Medicare will not pay more than the schedule amount. It is common practice for physicians to submit claims exceeding the amount in the fee schedule, even though they know they won't get reimbursed the excess amount.
An important fact that determines how much Medicare pays the provider is whether the service was performed by a physician or a non-physician. In the nursing home setting, Medicare requires a distinction between non-physicians, or "mid-level practitioners" as they are called, and physicians. Physician's assistants and nurse practitioners must bill at a rate that is only 85% of the physician's rate.
And to properly bill Medicare at the physician's rate for services provided in a nursing home setting, the physician must be the one in the patient's room directly providing the service to the patient. When an assistant performs the service, the claim submitted to Medicare must disclose that fact.
Moss was the medical director and attending physician at four nursing homes. He recruited Shawn Tywon to be his physician's assistant and, as it turned out, his co-conspirator. Moss had Tywon help with the nursing home patients, and he trained Tywon how to conduct visits with those patients.
Between January 2012 and January 2015 Moss billed 31,714 claims to Medicare for nursing home visits; 477 were coded as 99306, the highest code for "initial nursing facility care." And 25,468 were coded as 99309, and 5,769 as 99310, which are the two highest codes for "subsequent nursing facility care." In that three-year period, Moss billed $6,701,163.00 for those claims, and Medicare reimbursed him $2,171,098.85. As for Medicaid, during that same three-year period, Moss billed 17,336 claims for those same codes, and Medicaid paid him $336,524.84. Nearly all of those claims were submitted to Medicare as though Moss had personally performed the services.
Those numbers suggest a staggering amount of work, a seemingly impossible amount of it. And, as it turned out, that amount of work was impossible. The claims Moss submitted would have required him to see more than 50 patients a day for 293 of the days in the three-year conspiracy period, and even more than 100 a day on some days and more than 150 a day on other days. Not only that, but based on how long the CPT manual suggested those visits should take, Moss was sometimes billing Medicare for services that added up to more than 24 hours a day. He did that on 275 days. And on some days he billed for services that would have taken him more than 70 hours on that day. The services Moss billed on one stellar day would have required him to put in nearly 100 hours in that one 24-hour period. People sometimes wish there were more hours in a day, but Moss alone miraculously stretched some of his days to far more than 24 hours.
Of course, Moss' miracle was non-miraculous, old-fashioned fraud. He obtained money to which he was not entitled by making statements that weren't true, or failing to disclose what was true. One way he crammed into some days more services than any day could hold is by claiming he had performed services that others actually had done. He did that so he could bill those services at the higher physician rate when payment should have been calculated at the lower rate due the non-physician who had actually performed the services. Typically, that non-physician was Tywon, who was his physician's assistant, or it was a different employee who was a nurse practitioner. Moss specifically directed that those services be billed in his name at his higher rate even though he knew that because those services were performed by non-physicians they could...
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United States v. Moss
...petition, insofar as it requests panel rehearing, is granted to the extent that we vacate our earlier opinion, United States v. Moss , 30 F.4th 1271 (11th Cir. 2022), and issue this one in its place.The petition for rehearing en banc remains pending. In light of the issuance of this revised......