the next case is one hundred and sixty one thousand and forty six united states versus janice troisi good morning your honors may it please the court the sole issue on this appeal is whether the evidence at janice troisi's bench trial was sufficient to support her conviction for healthcare fraud conspiracy and ten substantive counts of healthcare fraud more specifically did the government prove beyond a reasonable doubt that she possessed the requisite mens rea meaning that she acted willfully with a bad purpose that is to say with knowledge that her conduct was unlawful and with a specific intent to defraud the parties seem to agree that that's the requisite legal standard as set forth in this court's recent decision in aguila from two thousand and fifteen although the recorded twenty eight j letter filed by the government last week may cast some doubt on that front in any event this case involves there are several facts in this case which distinguish it from many other healthcare fraud cases first in this case the patients actually did receive services services which may well have benefited them and second miss troisi was a salaried employee not an owner and other than so she had no financial stake in the receipt of revenues or the company's business plan other than to keep her job now the government points to really three bodies of evidence in supporting its case on mens rea first they point to miss troisi's hiring training and management practices that is to say she hired nurses right out of nursing school she trained them allegedly inadequately and she was an aggressive tough boss and the evidence certainly supported all of those allegations none of them i submit satisfied in any way shape or form the government's burden of proof on mens rea hiring nurses out of nursing school this is not i submit the most desirable nursing job in the world these nurses were being paid they were having to go to people's homes they were being paid on a per patient basis if her training wasn't as good as it should've been that's not a crime and she was no doubt a very tough boss judge woodlock described her as a lady marine drill sergeant that does not mean she had a criminal state of mind second the government point and the government asserts that she was familiar with this body of applicable regulations an therefore that she knew exactly what the requirements were and she knew that the requirements were not being complied with and i submit that is simply not supported by the evidence what about the what about the striking fact this is the documentary evidence the striking fact that we're talking about a very large number of recipients of these home health care services that the care plan seemed almost to be borrowed they just seem to be rather than individualized as you might expect if someone was really examining the needs of an individual patients they just seem to be the same plan over and over and over again and surely she was responsible for filling out these plans and signing off on them isn't that rather a striking fact well it is and and if she had a good faith belief that these patients needed services the same services over and over well that they needed that hundreds of individuals needed the same type of care that they needed skilled home nursing services so there's no doubt that she facilitated paperwork to make sure that they continue to be eligible for those services and that these services would fit within and would be reimbursable but that may have been sloppy it may have been misfeasance there should've been more individualized attention and those forms should've been filled out on a more individualized basis but that doesn't prove that she knew that what she was doing wasn't lawful and that she had a specific intent to defraud these regulations are not simple there's a ninety three page chapter in the medicare benefits manual that's in evidence and the crux of the standard that is that it would be that we're taking a considerable and taxing effort for the patient to leave the home i mean this is not crystal clear standard there is plenty of in play in those journals particularly when you're dealing with a population of people who are elderly or have a whole variety of infirmities there is nothing in her resume that suggests she had any expertise in this area at all she had never worked for a home health care agency before and so their assertion that she understood the stuff backwards and forwards and knew darn well that what she was doing was unlawful simply is not supported by the facts they claimed that she what about her instruction of the nurses to put aside their own observations and conclusions about the status of the patient whether this was home care whether they were in need of skilled nursing services and always fill out the form in the same way and then when a nurse did not comply with those instructions she went in using the same color of ink and made corrections to the forms in order to qualify these patients for medicare reimbursement isn't that a bit of a smoking gun it certainly was i think an important arrow in the government's quiver at trial she clearly as somebody who had been a nurse for decades essentially trusted her instincts about what these patients needed over the instincts of these novice nurses and she was and she basically with the novice nurses on all of these occasions no your honor she personally where she no no your honor she did not and and having made a apparently some blanket determination that this population of patients needed these kinds of services she made sure the paperwork fit the bill and she did that and the evidence is certainly clear and overwhelming that she did that so one thing that troubled me about the case was what her motive was to do all of that and the government says well she actually is not the job that she's promoted to director of nursing shortly after she's hired and i assume she did get some pay raises she was not a direct beneficiary but from your point of view is it that she had no incentive whatsoever to participate in this fraud she just didn't want to rock the boat well your honor i mean she had it it was a job it was a decently paying job so in that sense i suppose that would provide her with an incentive to go along with what she was expected to do and that was to make sure the paperwork in fact supported the continuation of these services she was promoted to director of clinical services i think i'm sorry that it's not just a continuation there are new patients you're right you're right being added every week you're right yes the initiation of services and then the continuation of services once they were originally presented i certainly can see that your honor she was originally hired i believe in october of two thousand and ten and was promoted to director of clinical services two months later and there's not a lot of evidence of what she was doing during those two months the bulk of the evidence was after she had taken that job i believe that the evidence was the predecessor in that position left around that time so and was there evidence that the predecessor had not similarly instructed the nurses that this was something new she brought with her the evidence at trial focused on what happened after ms troisi was there i don't recall a lot of testimony about what had happened with her predecessor although there certainly was testimony from dr wilking that the same course of conduct had been going on for a number of years but wasn't there some if you could call it guilty stated blind evidence in this case in the sense that shortly after she and dr wilking became aware of this investigation she made some statement to you and came to show how she was vulnerable because of the large numbers of forms she had filled out in the same way there was testimony that she showed on the statement suggesting that she she knew she was in trouble well yes your honor after the fbi basically raided the business she did express concern that since she had a role in doing all this paperwork that she could be in trouble so i don't think that that is sufficient to demonstrate that while she was doing it that she knew that she was violating the law but once the fbi came in of course she was concerned who wouldn't have been i thank the court good morning kelly lawrence for the united states just briefly to address the twenty eight j letter that was raised by defense counsel the government simply submitted that to clarify its position i believe we do agree on the standard of review as set forth in this court's decision in aguila just wanted to clarify that we weren't advocating a specific intent standard like the ones set forth in roxof v cheak which the statute itself prohibits as i read the the defendant's brief and as i hear him today speak about the evidence to support the conviction i don't hear any disagreement about the actions that the defendant took in terms of training the nurses altering the oasis patient assessment forms filling out and signing the plans of care the form 485's or that maintaining a separate file of correspondence with treating physicians who had asked to services to stop that evidence is in the record and the government believes fully supports the defendant's conviction but there was more and as to her consciousness of guilt and as to the systemic and sort of thorough scheme to defraud and her role in it the actions the defendant took went beyond just doing her job the hiring of recent nursing school graduates it may be because they that's an easy way to get nurses into this type of business it also served a different purpose and as reflected in the nurse's testimony the defendant bullied and manipulated them in a way that she couldn't perhaps do with a more experienced nurse who had knowledge of home health care and medicare regulations this allowed the defendant to maintain control over the nurses and their visits in a way that furthered the fraud she when they questioned her judgment about correcting the form she just told them to do it when they asked to stop seeing a patient who refused to be seen or who was never home she said keep going and if they didn't keep going she threatened and then did take a patient away which caused them to lose income so this wasn't just an happenstance that perhaps recent nursing school grads would enter this business what was her incentive to do all of this her incentive although it has to be inferred from the evidence it suggests that she wanted to be director of nursing and she did it and she was a very aggressive person by all accounts through the testimony of the various witnesses at trial and she may have been an ambitious person who wanted to be a leader and a director of clinical nursing she did receive slight pay raises but no evidence of this lining her pocket the government agrees with the defendant that there wasn't evidence of that at trial the defendant also did have years is the evidence clear she started all of these practices in the two months before she got her promotion it is not clear and the court district court restricted testimony about the prior nursing directors activities sharon richardson in order to keep the jury focused on these two defendants and what they had done so there isn't evidence about what had happened before it seems from the way it was presented that it couldn't have been that she continued practices that she didn't necessarily create them however she brought to bear her own personality and her own style and she did fully embrace the role in terms of controlling these nurses and and telling them to go out and keep doing the visits i would also note she she did admit that she was responsible for and the nurses confirmed this filling out the plans of care which were identical for all the patients regardless of their specific medical conditions or needs and she recertified those patients as well moreover i think that one of the more damning aspects of the testimony that was given at trial is that when nurses primary care physicians and even patients ask for those services to stop she refused and when the primary care physicians contacted her and said i didn't authorize this why are you seeing my patients please stop the services she just simply ignored them she argued sometimes and disputed that they weren't needed but she also ignored them and when the face to face requirement went into effect she would simply send out the fax asking the doctors to confirm the services were necessary and that the facetoface encounter had occurred and if the doctors refused she signed the form and had dr wilkings sign the form too and submitted the papers to medicare in the government's view this shows ample knowledge and intent to defraud beyond simply just doing her job did i understand you to say earlier in your argument that when the attending doctor for the elderly patient said don't provide these services he doesn't meet or protested the then she kept those letters separately in a separate file that's evidence of consciousness of guilt and the government's view that is evidence of consciousness of guilt and as an evidentiary was it in the record the evidence is in the record yes that's when the search warrant was executed they found a file of correspondence in her office correspondence in her office the district court i just to be clear the district court noted in rendering the verdict at the bench trial that he viewed that evidence could go either way he didn't rely on it specifically in favor of the government but it was something that is in the record and the government argued demonstrated her knowledge and intent to defraud and what i hear the defendant arguing today is simply asking the court to draw different inferences from the evidence which is essentially uncontested here that her actions with respect to her role dna demonstrated fraud and this is quite well known as the standard for sufficiency reviewers to draw the inferences in favor of the government and when the court does that the government submits that there's no doubt that she was guilty of these crimes ms lawrence it's just i've heard from the case your office has prosecuted healthcare fraud for a very long time is it still a priority of your office and why do we keep seeing so many of these cases i would say i believe it is a priority of the office i can't give you a ranking of the different priorities but it is still very much part of of the prosecution and our investigations and i'm not sure i understand the kind of case it's a priority because so much this activity is taking place despite years of prosecution i believe it continues to be a priority for the federal government and the department of justice which makes it a priority for our office as well if you'd like additional information i can seek it from in the office thank you thank you