United States v. Patel
| Citation | 778 F.3d 607 |
| Decision Date | 10 February 2015 |
| Docket Number | No. 14–2607.,14–2607. |
| Parties | UNITED STATES of America, Plaintiff–Appellee, v. Kamal PATEL, Defendant–Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (7th Circuit) |
OPINION TEXT STARTS HERE
Joseph H. Thompson, Attorney, Office of the United States Attorney, Chicago, IL, for Plaintiff–Appellee.
Scott R. Lassar, Attorney, David G. Jorgensen, Attorney, Sidley Austin LLP, Chicago, IL, for Defendant–Appellant.
Before FLAUM, EASTERBROOK, and KANNE, Circuit Judges.
Dr. Kamal Patel is a Chicago-area physician who commonly prescribes home health care services for his patients. After federal investigators learned that Patel had been receiving undisclosed payments from Grand Home Health Care (“Grand”), a home care provider used by some of his patients, Patel was charged with six counts of violating—and one count of conspiring to violate—42 U.S.C. § 1320a–7b, otherwise known as the Anti–Kickback Statute. In relevant part, the Statute makes it illegal to “knowingly and willfully solicit[ ] or receive[ ] any remuneration (including any kickback, bribe, or rebate) ... in return for referring an individual to a person for the furnishing” of health care services paid for, in whole or in part, by a federal health care program. Id. § 1320a–7b(b)(1)(A).
During his bench trial, at the close of the government's evidence, Patel moved for a judgment of acquittal, arguing that he had not “referred” any patients to Grand because there was no evidence that he steered or directed his patients to Grand; rather, the patients independently chose Grand as their provider after Patel prescribed home health care. The district court rejected Patel's argument, holding that, even if a patient had initially chosen Grand, Patel “referred” the patient to Grand when he certified or recertified that the patient needed care, that the care would be provided by Grand, and that Grand could be reimbursed by Medicare for services provided. This certification and recertification occurred each time Patel signed a standardized Medicare form, Form 485, for one of his patients.
On appeal, Patel argues that the district court erred by holding that the certification and recertification, via Form 485, of patients for treatment constitutes a “referral” under the Anti–Kickback Statute. He also argues that even if those certifications were referrals, there was insufficient evidence to conclude that Patel was paid “in return for” certifications, as required by the statute. We affirm.
Patel is an internal medicine specialist who treats approximately twenty elderly patients per day and prescribes home health care services to about ten patients per month. One of the approximately 10–20 home health care providers used by Patel's patients is Grand, a Chicago-based company. Around 95% of Grand's patients are Medicare beneficiaries; Medicare, the parties have stipulated, is a federal health care program as defined in the Anti–Kickback Statute. In 2002 or 2003, Grand experienced a significant decline in business when some of its partners left to form a competing company, taking most of Grand's patients with them. Prior to that time, Grand had received patients from Patel, but this ceased following the partners' departure. To counteract this downturn, Grand's owners, Nixon Encinares and Maria Buendia, initially tried introducing themselves to numerous doctors in the area, including Patel, in an effort to attract business. After this approach proved unsuccessful, the Grand owners begin offering to pay doctors for referrals of Medicare patients.
Encinares approached Patel, specifically offering to pay him for “referrals.” According to Patel, he did not say anything in response to the proposal and “didn't agree with” Encinares. Buendia and Encinares, on the other hand, testified that Patel said something to the extent of “okay” or “yeah” in response to their offer.1 During a second meeting with Patel, Encinares and Buendia offered to pay Patel for referrals on a per-patient basis. After making this offer, Grand began providing home health care services to about 2–4 of Patel's patients per month; a majority of Patel's patients continued to use other providers.
To qualify for Medicare-reimbursed home health care services, a patient must be homebound and suffer from a medical condition or constellation of medical conditions that requires skilled nursing care or therapeutic services. A doctor or nursing facility must initially determine that a patient needs these services. Once this determination is made, the patient or his caregiver must select a provider to furnish the necessary services. Often, a treating physician or nurse will discuss the merits of particular providers with patients. Patients who have previously received home health care services often reselect their previous provider. After a provider is selected, the patient or his doctor contacts the provider and supplies important information, including the patient's name, his diagnosis, and his Medicare number. The provider then assesses the patient's condition and needs, and formulates a treatment plan. To be reimbursed by Medicare for the treatment, the provider must complete and submit to Medicare a Form 485 for each patient; Form 485 is a standardized Medicare form that certifies that home care is medically necessary and outlines a patient's diagnosis, medications, treatment plans, and goals. After filling out this information, providers must procure the signature of the patient's primary care physician on each Form 485 before the provider can bill Medicare. A signed recertification form is necessary for home care that lasts longer than the initial 60–day certification period. Home health care providers can—and often do—treat patients prior to receiving a signed Form 485, but they cannot be reimbursed by Medicare until the Form has been signed. By signing a Form 485, a physician certifies that “the patient is confined to his/her home and needs intermittent skilled nursing care, physical therapy and/or speech therapy or continues to need occupational therapy,” and that the physician has “authorized the services on this plan of care and will periodically review the plan.”
Both before and after Grand began offering Patel kickbacks, Patel used the following process when prescribing home health care for a patient. First, Patel made the initial determination that the patient required home health care services. This initial decision is not at issue in this case—it is undisputed that all of Patel's patients who were treated by Grand needed home health care. After this initial determination was made, a provider needed to be chosen. Patel did not personally discuss the selection of providers with patients or their family members, either as an initial matter or as part of recertification. Rather, his patients discussed home health care options with Patel's medical assistant, Jeanette Sungvoom. Patel did not tell Sungvoom which provider to recommend. Sungvoom gave patients an array of 10–20 brochures from various providers. The brochures were given to Patel's office by the providers, but it is unclear whether Sungvoom and Patel included every brochure that they were offered. One of the brochures provided by Sungvoom was Grand's, but the government does not contend that it was included in the array because Grand had offered Patel kickbacks. Each patient independentlychose a provider from those in the array. After a provider was selected, Sungvoom called or faxed the provider with the name of the patient, his diagnosis, and his Medicare number. The fax cover pages from Patel's office bore the subject line “new referral” and the body of the faxes contained prescriptions for home health care signed by Patel or by Sungvoom, with Patel's authorization.
If the patient selected Grand as his home health care provider, Grand would then send one of its nurses to assess the patient and complete an “OASIS” form to document the assessment. Grand would devise a treatment plan and fill out most of a Form 485 for that patient. Grand often began providing the proposed services before Patel signed the Form 485. Encinares met with Patel on a monthly basis to have him sign Form 485s. During these meetings, Encinares paid Patel cash. The amount of cash was equivalent to $400 for each signed Form 485 representing a new admission to Grand and $300 for each signed recertification. The district court found that Patel would have signed the Form 485s for each of these patients even if they had not selected Grand. It noted, however, that on at least one occasion Patel indicated over the phone that he was not ready to sign the forms for patients who selected Grand until Encinares was able to bring cash along with the forms. In her office, Buendia kept handwritten notebooks keeping track of Patel's patients being treated by Grand, as well as Grand's payments to Patel. Buendia and Encinares would refer to these notebooks each month to determine how much money Patel was due. The notebooks contain entries reflecting multiple payments of over $1,000 to “Dr. Patel” or “Dr. P.” In addition to normal cash payments, Patel was also at times compensated by Grand in the form of incremental loan forgiveness for an $8,000 loan Patel previously received from Grand.
The government began investigating Grand for health care fraud in the spring of 2011. Encinares and Buendia quickly agreed to cooperate in the government's investigation of others taking part in their scheme by recording telephone calls and meetings with those individuals. Encinares recorded several phone conversations and three meetings with Patel, which Encinares testified were typical of their prior meetings. During these interactions, Patel frequently sounded nervous. In their recorded meetings, Patel signed Form 485s and Encinares gave Patel cash. During one recorded phone call, on May 10, 2011, Patel said, “I was wondering if we could meet for...
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