believe it is to be taken from the record are insufficient to prove the doctor has a comma to do either one much less with the intent of fraud medicaid or starting first with the up coding issue the government brought to trial fourteen witnesses eight of them were investigators and search warrant custodians and an expert witness six were lay witnesses and of those six there was only one whose testimony could even have provided a link between dr resnick khan mile and runner park holmes billing fraud and that one witness was murdered parker holmes biller in the early years glenda lydia edgar sat around and meetings and talked about billing fraud or cooked up an affair is scheme to submit bad billings to medicare inside instead what she said was that they were going to submit the extra clothes because they were educating patients and that they were going to submit the highest codes because they felt their bills equaled out to those services she felt the codes equal those services and one of the new record about those meetings and what your what the meeting was just a formal meeting for discussion of whatever their nature were to be presented to the people who were at this room she didn't describe in great detail what the meetings were there is some conditions in the record that at the meetings people would bring patient charts and they would talk about their care of patients but beyond that her only testimony was that people were eating lunch and people were talking and people were coming in and out and at that doctor as a comma might have been a three of these meetings and then there's this business about mirna park on an ad for santiago talked about billing as loosely as that was and of course and she said that there are discussions about billing in this is at eleven o three eleven zero seven of the record were merely that they were going to educate patients and that they felt their visits equaled the highest codes so you have mere presence and you have an insufficient basis on which to hold that there was a discussion of overarching an internal plot more evidence than that i mean was it three hundred fifty thousand dollars went to his bank account he money went to a foreign country where he was building a house thirty or forty factors a day would come so doctor as a common was the medical director for twelve and then i think a bit of thirteen so at five thousand dollars a month he was earning an income from this place for serving as medical director then on top of that doctor is a conman was performing services for medicare beneficiar was being paid for his physician services to those medicare beneficiaries so that accounts for the three hundred fifty thousand dollars he made an income from this organization i don't know the government was never able to tie a trial whether this money to nigeria was actually for dr as a con my for some other purpose it was just sort of mentioned that money went to nigeria but there's no indication that that was in some way connected to dr as a comma except he's from nigeria that health care providers in the signing of the four eighty five that the other the health care providers had a given the face to face visits on but the testimony in the record is not that he was not actually supervising those indeed i am supervising other practitioners dr eaton d and then ages stapleton from the h h s both described what it means to supervise and said supervising means a review of charts and availability to speak with providers when they need you to speak with them at our additional care and he was supposed to be physically present and he was not that's the problem the government in kuwait is a face to face a visit for home health a certification purposes with a need for the physician to have a face to face contact with the patient that's not what the medicare regulation is that's not what the medicare regulation was and so dr reza kahn was present or lack of care act the the regulation changed in such a way that a physician certification had to be accompanied by a face to face documented form that face to face form didn't have to be filled out by and that visit didn't have to be conducted by a physician it could be filled out by on the visit conducted by a nurse practitioner a physician's assistant a certified nurse midwife a clinical nurse specialist so whether doctor is a comma conducted those face to face  sits after the law changed or not is irrelevant he could sign the certification premised upon the visits conducted by other people i want to make sure that i think didn't he have to spend something like seventy five minutes with a patient sorry a seventy five minute visit with a patient whether dr resnick comma knew that or whether dr resnick on my view that bills were being submitted for that code when those visits weren't necessarily waiting to seventy five minutes is another issue and there's no evidence in this record there's no testimony at trial the doctor is a comma knew that code was submitted the doctor was a comma knew what that code meant and the doctor is a comma wasn't in fact well of the belief that his visits equaled the codes that were being submitted for his services for example the law he's presumed to know the law yes but coding is a is another issue entirely in the testimony at trial is that he didn't know anything about coding that for his whole medical career he had out had other people do the coding and billing for him because they were the experts on coding and billing issues and he was not and the issue here is not lax practices or negligent billing gone she tells us that that's not enough that's not can amount to an intent to defect in law and when you look at the circumstantial evidence for example on one day that he he billed eighty hours of time for a twenty where period and that was there were other instances where during a twenty four hour period he would his her she's real that way beyond that well that's that's the problem your honor is the way you just articulated it is correct his services in because bills were being submitted fraudulent only in his name and he having never participated in any discussion of nefarious billing activities and not being someone who knew about what this billing meant couldn't have looked at a bank statement and said you  herself and her coconspirators all of whom pled guilty i don't know what you know sort of income they may be but in a thirty eight million dollars medicare fraud scheme this man gets a salary of three hundred fifty thousand dollars have to presume a lot of other people made a whole lot more money than that he did by virtue of his salary i want to make sure in these last few minutes that i have an opportunity to turn to sensing unless the court has additional questions on the and the other issues for calculating loss and imposing doctorow's economists sentence that sentence was not supported by the law that sentence was not supported by a factual record and that sentence was not supported by this court's precedent the issue  legally is that the government came in with this theory that every single one of these dollars paid on every single one of these claims was all per se fraudulent because of what the government called the backwards referral process in other words because because referrals for home health care generated with home health agencies somehow that rendered them suspect and even fraudulent but the problem is at trial at sentencing in its brief before this court the government has never shown never articulated why one way or there is no medicare regulation that says you may not have a home health referral generate with a home health agency and in fact the court nine months ago in recognized that's not a legal requirement the statement in gone she is usually although not a legal requirement a patient primary care physician refers her for home health services so the whole theory of why all of this was fraud because of backwards referrals is a is a theory that is incorrect on the factual basis the agent who testified at sentencing had done no more than a rather minimal effort to try the proper fraud amounts what he had done was interview out of four thousand two hundred medicare beneficiaries twenty he interviewed twenty said yes or he interviewed twenty that's all and then he looked at the patient records and he said well i'm just going to extrapolate that all of the claims are fraud because i don't see in the patient records that the codes are supported so he takes these sweeping presumptions on the basis of a very limited factual investigation and says i'm going to call it all fraud this was agent stapleton who testified at sentencing is an h h s agent and i would point out to the court that he's neither an expert nor a doctor nor a bill or anyone with any medical training or is a church pressure it's the department of health and human services and of course they do specialize in investigating medicare cases among others does make him an expert in how to bill and how to code and how to read charts and how to know what services patients are truly eligible for but to have looked at merely a fraction of those charts and then determined well i guess the charts don't support the claims they all must be fraud is an insufficient factual investigation under this court's precedent is whalen mehmood and emo to determine that these are fraud amounts to properly belong  defendant's trold or worse in coordination with that the district courts finding of pervasive fraud as a means to extricate itself from the problem of an insufficient factual record was also iranians one doesn't get to just wave a wand over a lot of claims and say well it all looks pervasive to me and therefore we're just going to excuse the government from bearing its burden a pervasive fraud finding has to be made legitimate from the fraudulent claims is impossible it's not reasonably practicable and that wasn't done here i mean private are involved here four thousand two hundred beneficiaries have any of that it would you say this court would especially when you know that the claims that the files themselves are insufficient talking to more than twenty beneficiaries looking at certifications would be more than adequate we know that he allowed other people to use his provider number we know that more hours revealed than there were hours in the day routinely we there's a lot of evidence that there was pervasive fraud seems to me i've seen them at a time may answer your evidence that there was proviso wrong well there's a lot of evidence that there was a lot of money at stake a lot of claims it stayed medicare paid a lot of money on those but that doesn't necessarily make it pervasive because this court's pervasive fraud precedent says you call it pervasive under these circumstances when it's just not possible to separate the things that were just were not possible in the record but there's no indication that it wouldn't have been possible or even practical to figure out what really belonged in dr is economists corner versus what really didn't and it starts with talking to the beneficiaries we know the beneficiaries that he treated there's an exhibit trial that actually lays out which beneficiaries he saw if he's alleged to have signed these certifications look at them take a look at them and see whether he actually signed them the agent never did that they just waved a wand over it all and called it pervasive a massive conspiracy to defraud medicare and this fraud happened in two ways first are the bills submitted by a u s physicians a physician home visit company us physicians build medicare for thousands of visits that were purportedly but not actually performed by a doctor as in comma that were medically unnecessary and that were far shorter fifteen to twenty minutes than would justify the submitted billing codes representing sixty to ninety minute visits richard shot one of the nurse one of the physicians assistants who actually performed the visit said that he thought at first that he was visiting patients to serve as in the as a kind of primary care physician but quickly realize that in fact the only purpose of these visits was to sign home health certifications so that the home health agencies who were referring the patients to us physicians could then go out and bill medicare for unnecessary home health services that's the second part of the fraud doctor as comma denies any knowledge of the scheme or any intent to further it but the evidence says otherwise three separate witnesses testified the doctor as in common knew that u s physicians was billing for visits he did not perform he admitted as much to  investigator for health integrity and medicare contractor what did he actually he did method that he knew that u s physicians was billing for visits that he did not perform he admitted that to denson burkhead he also stated that the visits he did perform employee testified that he was present at meetings where to park on said that we are going to be billing at the highest the extended billing codes she also testified as the meetings we were just talking about earlier with her friend on the other  me a little bit unclear as to their purpose and what his role was at these meetings it is the evidence as to his purpose at the meetings is not entirely clear but glenda lidia was clear in her testimony that he was present at them and that nurse practitioners talked about the visits they were going to be performing and that mirna park and said we're billing at the highest billing code but the court need not rest on that evidence alone that doesn't make a knowing code improper where is the evidence that he knew that the highest billing code was not jim well first of all he testified that when he visited that he spent a lot less time than that in addition if he had if you review the patient files and there were patient files submitted a trial including for the six absent of counts it's fairly clear from those patient files that the patients did not need a home physician visits at all and the evidence also in addition to the fact that the visits were shorter than they purported to be the records also had to show that a home physician visit was necessary medicare does not pay for doctors to visit in the home unless the patient is unable to get to the doctor's office and the patient files indicated that some of these patients for example had visited their doctor's office the week before or had a visit scheduled for a couple of weeks later and some of the counts count two patients yes the notes and her patient file said that she's quote doing all right and voice is no problem for a patient the patient in count three her note said that it was a well check and she had no history of illness and had recently gotten medicine from her primary care physician count for had no symptoms had quote just smoked and was working out count five had no acute symptoms count six no kids symptom scheduled to see her primary care physician only eight days later counts seven no acute symptoms doing well and visit a doctor the day before the patient files made clear that these patients not only did not need a ninety minute or a seventy five minute home visit but needed no home visit at all  also kept track of payments to the nurse practitioners i want of the documents found in his house was a check register with payments to gabrielle to bore who was the nurse practitioner on count four five six and seven this is a pages fourteen ninety nine what is how does that show that you knew there was anything improper about payments to her it's not that the payments to her were improper it shows that he knows that in a day that she  making visits to the patients and that us physicians is getting bill is billing for visits that she proportionally performed but were in fact being performed by a nurse practitioner now there is a lot of discussion about the face to face certification and whether or not you could rely a doctor could rely on a visit by a nurse practitioner and while it is true that medicare paster regulations saying that for home health certification which remember is the second part of the fraud that for home health certifications a doctor could certify home health for a patient based on the face to face visit for a nurse practitioner the record is also clear that you cannot bill a physician a home visit based on a and that's at ten seventy four of the record age and stable ten testified to this a nurse practitioner can bill under a doctor's number for work done in an office under the doctor's supervision but  approach to the billing the right way to certify the is something else entirely to know that whether the defendant was aware of that and so for basically what i'm hearing in this presentation is pretty good reasons to believe that what the  fraud that was going on was indeed grown but i don't see where much of what you're saying is really tying the doctor's knowledge to that well this court has looked to a number of factors to determine whether or not a judge a jury c detect intent to defraud including the defendant's position in the organization has profit from the fraud and the existence of highly unusual billing practices as the billing practices u s physicians billed ninety nine percent of it patients at extended billing codes often billed for more than twenty four hours of visits in a day and doctor as a comment referred ninety seven percent of his patients for home health services he played a leading role in us physicians he wasn't simply the medical director he was an owner and chairman of the board he was entitled to a share of the profits as well as a per patient visit and he was a cosigner on the bank accounts and he didn't fact profit from the fraud being paid over three hundred fifty thousand dollars over the course of the conspiracy from doing little more than signing patient forms without reviewing files i'd also note that there's a testimony that he in fact signed the form for eighty five without reviewing patient files and determining whether or not the home health services were medically necessary ransom attendee testified that he took over that job from dr as an comma and that he signed stacks of paperwork he said as thick as a binder he would just bring it home and sign sign sign and loretta borland who is a employee of dr as and commas at his pulmonary practice said that they would get at the palminteri practice they would get twenty to thirty faxes a day including home health paperwork for patients of u s physicians and that she saw doctor as an comma sign stacks of paperwork without ever looking at patient files and from that evidence and the jury could reasonably infer that doctor as an com knew that the patients did not in fact need home health services and in fact if he had either he didn't look at the files at all in which case he was did not care he was certifying without regard to whether or not they needed the home health services or if he had in fact looked at the files which i would in court encourage the court to do to look at the patient files submitted that were at pages eleven three five four to twelve one seven six of the record those files make abundantly clear that these patients did not need home health services and his name is in fact all over those the patient files richard shot and gabriel were born both testified for accounts two through seven that they were the people who actually performed the visit that doctor as in hama was their supervising physician but that he never spoke to them or rarely spoke to them about patients richard shut testified the very first time that he to discharge patients from home health services she was told not to do that she was told by marina park on but i think a jury could reasonably infer from that because doctor as in  supervising physician and the person responsible for certifying the patients for home health care services and in fact the one who cording to medicare was supposedly doing these home visits i also i have been remiss in not noting the thousands and thousands and thousands of pages of medicare remittance notices that were found and doctor as a camas home they were highlighted they had notes on them they showed the up coded and that they showed the billing codes that were being submitted she not only tracked the payments the bills to medicare through these medicare remittances she also tracked payments by patient he had one documents that showed medicare part b summaries for several years that's up page twelve eight o two a twelve eight twenty of the record highlighted with handwritten notes on it including a reference to the patient at issue in counts s so and for sufficiency of the evidence the question is only whether reasonable jury viewing the light in in fact viewing the evidence in the light most favorable to the jury's verdict whether a rational jury  could determine that he had an intent to defraud medicare and on this record given the testimony of the witnesses who stated that he knew medicare was billing under his medicare provider number for services that he wasn't payments of three hundred fifty thousand dollars to him during this time during this time really all he was doing was signing paperwork without actually determining whether or not the patients were eligible for home health care services and he was billing medicare for that time that was an additional part of the fraud medicare wasn't just billed for visits that he purportedly performed but did not but was also billed for time that he purportedly spent reviewing the patient's files and then determine creating what is called the plan of care which is necessary for home health services and then actually overseeing that plan of care and the nurse practitioner and physician that assistant who testified said that he didn't do that  how much money went to him in what increment of what period of time to him personally the government was able to track three hundred fifty thousand dollars that went to him how much you know what denominations and how frequently over how many years it was over approximately a three and a half year period and i i think if i recall correctly is about five thousand dollars twice a month there are a number of other payments he wasn't just he was paid from a number of different companies  and he was paid in them in a number of different ways amongst payments is is the he was paid for a mercedes there were payments to an individual who had sold or purchased a mercedes there were some cash payments there were payments from primary angel and essence home health which were the two other home health agencies that were affiliated with mirna park on there were payments directly from u s physicians that part of the three hundred fifty thousand betis that's correct and there is a where did all the money where did the thirty eight million you got most so the thirty eight million was seven million dollars so it was thirty eight million dollars was the last amount at sentencing that included both the intended loss for us physicians and the actual loss for the home health agencies restitution was at thirty four million that a certain amount of it went to pay the nurse practitioners who did the visits and then when some of the money went to the other coconspirators the remaining money the twenty five million or thereabouts went to the home health agencies that referred their patients to dr as and hop to doctor as a comma and us physicians so he was the court attributed that loss to him at sentencing because he was the certifying physician for all of those unnecessary home health services and i just like to know as to sentencing the defendant claims that the government basically did almost no investigation to determine the pervasiveness of this fraud but i don't think that accurately reflects either the trial record or the record at sentencing  the case agent testified at sentencing that he reviewed over a thousand patient files all the patient files that they were able to obtain and he said that they those files did not support any of the home health services he said that the patients were not getting any benefit from the home health services and it appeared as though often the home health services had never been provided he said notes he looked at the notes from the actual home health visits and they were copied or brain a sample that is sufficient for calling the entire scheme a fraud or you can count on the other side was unwilling to give us the number is there anything in the case of the gives us a way of deciding must be the court has not indicated any kind of percentage or absolute numbers and of course a percentage would make it the greater the fraud the more difficult burden for the government i think here there's no question that the government medicare burden and that the government reviewed all thousand of the patient files that it was actually able to obtain and then interview twenty of those beneficiaries that is  i think as uncomment would ask that the government have written interviewed a thousand patients which is of course the question is whether that is reasonably practicable and that is not reasonably practicable that also note that this is presumption of pervasive fraud the defendant kind of course come back and provide evidence that in fact the fraud was not previous this for example by taking a random sampling of patients and looking at that missing actually this random  sampling of patients shows that there was only fraud for a small percentage of them or even by showing that some number of patients actually needed the services that they were provided with any indication that more than twenty patients would talk to but only the twenty because the presentation by the government and what concerns me is maybe talk to forty and the other twenty didn't make a very good may good support for the case that was meant to be booked so as evidence that the and patients who were interviewed were all the only ones who were interviewed by the government and the agent was asked how many witnesses are how many patients he interviewed and he said twenty i don't think he was asked did you interview anybody else but i think the implication from that is that those were the twenty patients that he interviewed nash ensured that something like this that there wouldn't be two mirrors serendipity some patients who need home health care and i would not know what that percentage is but unless the evidence is what it is you can proceed that's correct your honor and but that agent also testified that he reviewed a thousand patient files and that reviewing those thousand patient files he said that the patients did not in fact need home health services or physician home visits i also think this court can take comfort of a bit of that i'm sorry i did thousand did not need home care from reviewing the patient files because the patient files the conditions of the patients in the files indicate that they did not need home health services and no donna large testified at trial and she only reviewed ten files but she said that they were the quote worst records she'd ever seen she said if she were very generous one or two files might be payable at the lowest level of an office visit but not a single one supported a the the government found to be etc to patients as i think at sentencing the defendant introduced some evidence from an expert but the courts are not credit that evidence and the defendant has not raised that argument is that that presumption never should have arisen in the first place and the fact that ninety seven percent of the doctor as uncommon as patients were referred for home health services and that the patient files the thousand patient files that the agent was able to review indicated to him that the patients did not meet home health services it was sufficient to establish the base of miss of the fraud i see i am out of time if the court has home visits there is no evidence in the record that he this company at all and there was no evidence in the record that he shared the profits of the company whatsoever in response to judge alex question  governments exhibit one twenty four which was introduced at trial and i can't read the record cite because it's covered by the exhibits to the government's exhibit one twenty four shows that there was three hundred fifty four thousand dollars paid to  pervasive fraud pervasive last night he does have the burden that if the evidence was ninety seven percent of all his patients were for preferred for home health care did he say that's incorrect or or that every single one of those patients qualify for home health i mean did he give you challenge that if he did not know what he did was to challenge the last findings on the basis that there just wasn't a sufficient  basis for putting all thirty eight million dollars of this in his corner as intended laws and thirty four million is actual loss but he never came forward with any particular evidence one way or the other he did this was in a  motion for a guideline departure a variance from the guidelines he did submit an expert report that talked about his care of thirty four patients but so that's the extent of his and his submissions on that topic  to i said i was going to jump around a little bit and i apologize but i i want to make sure that i also talk about what it was that dr was economist said to the investigator is on the sufficiency issue about knowing that bills were being submitted under his name this is what he said this at fourteen twenty two of the record did he understand the bills were being submitted under his name was the question the answer to a degree to a degree and the agent investigator burkhead went on to say that the degree to which he understood that was that he had other people making visits in his name other people making visits for him i apologize because he was supervising them he did not ever tell investigator birkhead that he knew what that there were all of these claims that were being submitted in his name that he had nothing to do with to a degree that other people were making visits for him that he was of certifications that came in over the faxes that is not her testimony and you'll find this in the record act thirteen eighty four this is what she said sometimes he would sign some documents that came in over the facts that's sometimes he would sign some when asked what documents were faxed and she actually identified them as durable medical equipment requests not home health certifications it was only  pressed by the prosecutor or their home l certifications in the faxes oh yes and sometimes he would sign some of the faxed documents she also testified and this is important the doctor has a comet people work home with them every night and she helped him load boxes of paperwork into his vehicle some doctor has a condom was clearly when you look at the record in the patients clearly don't qualify for home health care what if you use reviewing those records can't the jury infer that you knew they didn't qualify well the problem is the petion files in and of themselves are not going to be the answer to whether the patients qualify for home health it's it's undisputed in this was donna largest testimony that the patient files are a little less than ideal so the issue is was doctor as a comma himself in contact with these patients in contact with the providers knowing what these patients needed in  would have seen eyeball to eyeball whether they needed home health how sick they were so relying on these insufficient records that mirna parklane was keeping isn't really going to be the answer on that i see that amount of time again