### In the



# United States Court of Appeals

For the Seventh Circuit

No. 17

‐ 2005

U NITED S TATES OF A MERICA

, Plaintiff

‐ Appellee

,

v.

C HARLES D E H AAN

, Defendant

‐ Appellant.

Appeal from the United States District Court for the

Northern District of Illinois, Western Division.

No. 14 CR 50005

— Frederick J. Kapala

, Judge.

A RGUED F EBRUARY 14, 2018

— D ECIDED J ULY 25, 2018

Before E ASTERBROOK and R OVNER

, Circuit Judges, and

G RIESBACH

, District Judge

. *

R OVNER

, Circuit Judge. Dr. Charles DeHaan appeals the

sentence he received for engaging in a scheme to defraud

* The Honorable William C. Griesbach, Chief Judge of the United States

District Court for the Eastern District of Wisconsin, sitting by designation.2 No. 17

‐ 2005

Medicare in violation of 18 U.S.C. § 1347. In estimating the loss

attributable to DeHaan’s conduct, the district court found that

he was responsible for fraudulently certifying the eligibility of

least 305 individuals for home health care services, resulting in

wrongful billings to Medicare of nearly $2.8 million. DeHaan

contends that the court’s finding that he fraudulently certified

305 individuals is tainted by a legal error as to what was

required to properly certify a patient as eligible for home care.

He also argues that the loss figure for these individuals was

inflated, as the government did not prove that the individuals

in question in fact were not eligible for the services billed.

Finally, because he believes that this loss amount was errone

‐

ous, DeHaan contends that the court also erred in requiring

him to pay restitution in the same amount. Finding no error in

the district court’s conservative loss

‐ estimation methodology,

we affirm.

I.

During the five

‐ year time period relevant to this case,

DeHaan was a licensed family

‐ practice physician working in

the Chicago and Rockford metropolitan areas of Illinois. He

was president of Housecall Physicians Group of Rockford,

S.C., was affiliated with other similar agencies providing

medical services to homebound patients, and served as

medical director of a number of home health agencies, assisted

living facilities, and hospices. He was enrolled as a provider

with Medicare and as such had a unique national provider

number pursuant to which he would bill Medicare for services

he provided to Medicare beneficiaries.No. 17

‐ 2005 3

Among the services for which Medicare will reimburse

qualified beneficiaries are home health services. In order to

qualify for such services, an individual must be effectively

confined to the home and must be certified as such by a

physician.

DeHaan knew that Medicare authorized payment for

physician house calls and other home health services only if

those services were actually provided and were medically

necessary due to a patient’s disease, infirmity, or impairment.

DeHaan also knew that Medicare did not authorize payment

for services and treatment that were not actually provided or

for which the patient did not meet the criteria necessary to

justify the claimed service or treatment.

Beginning in January 2009 and continuing into January

2014, DeHaan participated in a scheme to defraud Medicare

with the aim of obtaining monetary reimbursement from the

Medicare program by means of materially false and fraudulent

representations. The misrepresentations fell into two primary

categories.

First, DeHaan would bill Medicare at the highest levels for

services to homebound patients that were ostensibly time

‐ consuming and/or complex, when in fact he had either

conducted a routine, non

‐ complex visit with the patient

(perhaps lasting no more than a few minutes), or he had not

seen (or served) the patient at all on the occasion for which he

was billing. We shall refer to this as the overbilling aspect of

the scheme.

Second, at the behest of home health agencies, DeHaan

certified as homebound patients whom he either knew did not4 No. 17

‐ 2005

meet Medicare’s criteria for home care or as to whom he lacked

meaningful knowledge as to their health status. We shall refer

to this as the fraudulent certification component of the scheme.

Apropos of that aspect of the scheme, DeHaan at least twice

acknowledged to one of the investigating agents that he had

certified as homebound patients who did not, in fact, meet

Medicare’s criteria for being homebound. He added that the

home health agencies would tell him what services their clients

needed (and wanted, in many cases), and, in DeHaan’s words,

“I certify.” R. 150 at 222. DeHaan questioned whether some of

the patients truly qualified as homebound, but he told the

agent that he could always find a reason why they needed

home health services. “I will have some issues with this,” he

told the agent, R. 150 at 224, seemingly recognizing that some

number of his certifications were of dubious legitimacy.

Medicare will authorize payment for health

services—which include such things as intermittent skilled

nursing, physical therapy, speech therapy, and occupational

therapy—provided that three criteria are satisfied. First, the

beneficiary must in fact be homebound, meaning that his

ability to leave the home is restricted due to illness or disabil

‐ ity. Second, the beneficiary must be under the care of a

physician who has created a specific plan of care for him.

Third, the beneficiary’s physician must complete and sign a

Medicare Form 485 setting forth, among other things, the

beneficiary’s diagnosis, functional limitations, medications,

and plan of care, along with a certification that the beneficiary

is homebound, is under the physician’s care, and is in need of

home health services. See 42 U.S.C. § 1395n(a)(2)(A); 42 C.F.R.

§ 424.22(a); United States v. Echols

, 574 F. App’x 350, 352 (5thNo. 17

‐ 2005 5

Cir. 2014) (non

‐ precedential decision); R. 93 at 5–6. Periodi

‐ cally, a physician will need to re

‐ certify the beneficiary as

homebound in order to preserve the beneficiary’s eligibility for

home health services. 42 C.F.R. § 424.22(b). The certifying

physician will bill Medicare for the certification or re

‐ certifica

‐

tion. Certification, of course, paves the way for home health

agencies to provide services to the beneficiary and to bill

Medicare for those services.

DeHaan elected to plead guilty to two counts of a 23

‐ count

superseding indictment. Although DeHaan denied certain

aspects of the scheme to defraud as the government had

framed it, he did admit to engaging in each of the two catego

‐

ries of misrepresentations that we have discussed: overbilling

and fraudulent certifications. As it happens, the two counts of

the indictment to which DeHaan pleaded guilty both involved

overbilling as we have described it. Count 9 alleged that

DeHaan had sought reimbursement for an in

‐ home visit to a

beneficiary, “SJ,” whom DeHaan had actually not seen on the

occasion in question. And Count 21 alleged that DeHaan had

sought reimbursement for an in

‐ home visit to a beneficiary,

“CH,” who had died some six weeks prior to the date of the

fictitious visit.

The parties were unable to reach an agreement as to the loss

resulting from DeHaan’s criminal conduct, and the probation

officer did not propose a loss amount in the pre

‐ sentence

report. The district court took evidence on the loss amount

over the course of two days, after which the parties filed post

‐ hearing briefs setting forth their widely

‐ divergent views as to

the appropriate loss amount.6 No. 17

‐ 2005

Judge Kapala entered his findings as to the loss in a written

order. After observing that “it is not possible to determine with

precision the actual amount of loss in this case,” R. 134 at 1, he

endeavored to make a reasonable estimate of the loss. See

U.S.S.G. § 2B1.1 cmt. n.3(c) (Nov. 2015). 1 The judge rejected

DeHaan’s argument that the loss amount should be limited to

the $828.42 billed in connection with the Medicare beneficiaries

identified in the two counts of the superseding indictment to

which DeHaan had pleaded guilty. He also rejected the

government’s threshold position that the entirety of the billings

attributable to DeHaan over the life of the scheme should be

presumed fraudulent and that the burden should be shifted to

DeHaan to prove otherwise. See United States v. Hebron

, 684

F.3d 554, 563 (5th Cir. 2012). But the judge was satisfied that

the evidence presented by the government enabled him to

make a reasonable estimate of the loss resulting from

DeHaan’s conduct.

As to the overbilling aspect of the scheme, the judge went

on to find that DeHaan’s conduct had resulted in a loss of

$478,520.29. That figure is not at issue in this appeal; DeHaan

accepts it as accurate.

With respect to the loss associated with DeHaan’s

fraudulent certification of “homebound” patients—which

DeHaan does dispute on appeal—the district court endorsed

the government’s view that one could reasonably estimate this

component of the loss by tallying the number of Medicare

1 DeHaan’s sentencing range was calculated using the 2015 version of the

Sentencing Guidelines, and consequently all of our citations are to that

version of the Guidelines and the Guidelines Manual.No. 17

‐ 2005 7

beneficiaries certified by DeHaan as homebound who

appeared not to be under his care. Government Exhibit 94A

listed 471 patients certified by DeHaan as to whom there was

no record of any in

‐ home visit by DeHaan with those

individuals. Exhibit 94B reduced that total to 411 by excluding

patients who were certified by DeHaan but for whom there

was never any subsequent billing by home health agencies.

Exhibit 94C reduced the total further to 305 by eliminating

patients who had additional certifications by someone other

than DeHaan. Because the physician completing a Form 485

certification must have under his care the Medicare beneficiary

he is certifying as homebound, and because there was no

evidence of any billing by DeHaan as to these beneficiaries

(other than for the certification or re

‐ certification itself), Judge

Kapala concluded it was reasonable to infer that the

certifications as to these beneficiaries were fraudulent, and it

was also reasonable to infer that the home healthcare billings

associated with these patients, totaling $2,787,054.58 were part

of the loss resulting from DeHaan’s fraud. R. 134 at 10.

The judge acknowledged DeHaan’s “brief[ ]” contention

that a beneficiary could be certified as homebound based on a

face

‐ to

‐ face encounter conducted by a medical professional

other than the certifying physician himself. R. 134 at 10 n.10.

It is not clear to the court how this is relevant,

... [as it] does not change the fact that the

defendant certified that the patients listed in

Exhibit 94C were under his care

... , even

though there is no record of him providing any

medical care to those patients. Accordingly, this

undeveloped argument does not persuade the8 No. 17

‐ 2005

court that the government’s loss calculation on

this issue is incorrect, or that the government is

somehow “attempting to pile on.”

R. 134 at 10 n.10 (quoting defendant’s post

‐ hearing brief

regarding sentencing enhancements, R. 119 at 22).

Coupled with the overbilling figure, the total loss

attributable to DeHaan’s conduct amounted to $3,265,574.87,

which the court found to be a fair and reasonable estimate of

the loss. R. 134 at 10. That loss amount triggered a 16

‐ level

enhancement pursuant to section 2B1.1(b)(1)(I) for losses

exceeding $1.5 million, along with another two

‐ level

enhancement pursuant to section 2B1.1(b)(7) because the loss

to Medicare exceeded $1 million. R. 134 at 10.

The court subsequently ordered DeHaan to serve a within

‐

Guidelines sentence of 108 months in prison. It also ordered

him to pay restitution in the amount of $2,787,054.58, which

was the loss figure associated with his fraudulent homebound

certifications. 2

2 The judge declined, in passing sentence, to take into account allegations

that DeHaan had sexually assaulted and abused a number of his patients

during the time frame of the scheme to defraud Medicare (and in many

instances, on the same occasions that he fraudulently billed Medicare for

services he did not provide to those patients). The judge noted that there

were criminal charges pending in state court based on those allegations

(with more substantial potential penalties), and he believed it appropriate

to sentence DeHaan based on the fraud alone and leave it to the state court,

in the event of a conviction on the other charges, to determine the

appropriate penalty. R. 149 at 43–45. The judge did provide that the prison

term he ordered DeHaan to serve in this case was to run consecutively with

(continued...)No. 17

‐ 2005 9

II.

DeHaan’s appeal focuses on the district court’s estimate of

the loss attributable to the fraudulent certification aspect of the

scheme. He makes three principal arguments: (1) The district

court committed legal error when it concluded that DeHaan’s

certifications of the 305 Medicare beneficiaries identified in

Exhibit 94C as homebound were fraudulent in the absence of

evidence that he had ever made a home visit to these patients,

when the law did not require DeHaan himself to meet with the

patient as a condition of certifying him or her as homebound;

(2) the court committed a second legal error in adopting as the

loss figure the total billings associated with these fraudulent

certifications, without proof that none of these 305 patients was

in fact homebound and thus qualified for home health benefits;

(3) for the same reasons the estimate of the loss resulting from

the fraudulent certifications was erroneous, the court

committed plain error when it required DeHaan to make

restitution to Medicare in this amount. 3

DeHaan’s first argument assumes that the district court

treated as fraudulent the certifications of the 305 individuals

set forth in Exhibit 94C because there was no evidence that

DeHaan met with these individuals face to face before

2 (...continued)

any sentence that might later be imposed in state court for any charges

related to DeHaan’s alleged sexual misconduct. R. 149 at 45–46.

3 There is no dispute that although neither of the counts to which DeHaan

pleaded guilty involved fraudulent certification, that aspect of the scheme

nonetheless constitutes relevant conduct for sentencing purposes. See

U.S.S.G. § 1B1.3.10 No. 17

‐ 2005

certifying them as homebound. DeHaan does not dispute that

he certified certain individuals as homebound without first

meeting them in person, but he points out that the face

‐ to

‐ face

requirement for certification was first adopted with the

passage of the Affordable Care Act in 2010, and did not take

effect until January 1, 2011, a full two years into his criminal

scheme. See Patient Protection and Affordable Care Act, Pub.

L. No. 111

‐ 148, § 6407, 124 Stat. 119, 769–70 (Mar. 23, 2010); 42

U.S.C. § 1395f; CMS Manual System, Pub. 100–02, Transmittal

139 (Feb. 16, 2011) (“Clarifications for Home Health Face

‐ to

‐

Face Encounter Provisions”) (amending § 30.5 of Medicare

Benefits Policy Manual), available a t

www.cms.gov /Regula tions

‐ and

‐ Guidance/Guidance/Transmittals/downloads/R1398BP.pdf

(visited July 17, 2018). Even then, the face

‐ to

‐ face meeting

could be conducted by a non

‐ physician practitioner, such as a

nurse practitioner or physician’s assistant, working in

collaboration with or under the supervision of the certifying

physician rather than the physician himself. Affordable Care

Act § 10605, 124 Stat. at 1006; 42 U.S.C. §§ 1395f(a)(2)(C),

1395n(a)(2)(A). DeHaan notes testimony below that “at various

times relevant to the scheme,” he did have nurse practitioners

working with him. DeHaan Br. 26. So the lack of a face

‐ to

‐ face

meeting between DeHaan and any of the 305 individuals listed

in Exhibit 94C did not by itself establish that the certifications

were fraudulent, as he may have relied on a face

‐ to

‐ face

encounter with one of these nurse practitioners in certifying

these individuals as homebound.

But DeHaan is mistaken to think that the court

characterized these certifications as fraudulent based on theNo. 17

‐ 2005 11

lack of face

‐ to

‐ face meetings with the individuals listed.

Certainly it is true that both the government’s counsel and

some of its witnesses made statements which could be

understood as asserting that DeHaan was required to have a

face

‐ to

‐ face meeting with a patient before certifying that

patient as homebound. R. 158 at 173, 183, 223. But it is not at all

apparent that the district judge ever labored under the

misimpression that DeHaan was required to meet in person

with a patient before he certified that individual as

homebound. The judge appeared to challenge that very notion

when the government advanced it. R. 158 at 182–83. More to

the point, in concluding that the certifications of the

individuals in Exhibit 94C were fraudulent, the judge relied

not on the lack of face

‐ to

‐ face encounters, but on the absence

of evidence that these patients were under DeHaan’s care. R.

134 at 10 n.10. Indeed, in his order, Judge Kapala expressly

acknowledged DeHaan’s argument that the required face

‐ to

‐

face meeting could be performed by someone other than the

certifying physician, but he dismissed the relevance of this

argument given his conclusion that the patients set forth in

Exhibit 94C were not under DeHaan’s care. R. 134 at 10 n.10. So

the notion that the district court relied on the lack of a face

‐ to

‐

face meeting between DeHaan and the patients prior to

certification is a non

‐ starter.

More relevant is DeHaan’s secondary contention that the

patients in question could have been under DeHaan’s care

without him necessarily providing services directly to the

patients and billing Medicare for those services. Certainly it is

true that a physician may supervise the care of a patient but

rely on someone like a nurse practitioner or another non

‐12 No. 17

‐ 2005

physician professional from a home health agency to provide

care to the patient. Because a non

‐ physician professional will

typically have his or her own Medicare provider number, that

individual’s services will be billed under that number rather

than the number of the supervising physician. Moreover, the

2014 Medicare Benefits Policy Manual in effect at the

conclusion of the scheme indicated that there was no

requirement that the physician himself see the homebound

patient at any particular time or with any particular frequency:

The patient must be under the care of a

physician who is qualified to sign the physician

certification and plan of care in accordance with

42 C.F.R. § 424.22.

A patient is expected to be under the care of the

physician who signs the plan of care and the

physician certification. It is expected, but not

required for coverage, that the physician who

signs the plan of care will see the patient, but

there is no specified interval of time within

which the patient must be seen.

Medicare Benefits Policy Manual, Ch. 7 § 10 (2014), available at

doczz.net/doc/6541500/medicare

‐ benefit

‐ policy

‐ manual

‐ chapter

‐ 7

‐‐‐ home health

‐ se... (visited July 17, 2018). So in

theory, DeHaan might have been supervising the care of a

particular patient without seeing that patient or billing

Medicare for direct services to that patient at any particular

time or interval of time. Thus, in DeHaan’s view, the lack of

such billings by him does not by itself suggest fraud in the

Form 485 certifications, just as his lack of a face

‐ to

‐ face meetingNo. 17

‐ 2005 13

in connection with the certification does not necessarily mean

the certification was fraudulent.

But we agree with the district court that the lack of billings

by DeHaan as to any of the patients set forth in Exhibit 94C

does support the reasonable inference that the certifications of

these patients as homebound were fraudulent. Given that a

homebound patient must be under the certifying physician’s

care, one would naturally expect that the physician will, at one

point or another, bill Medicare for some visit or service apart

from the certification itself. Whatever the 2014 Medicare

Benefits Policy Manual may or may not have required of the

certifying physician in this respect, it did not suggest that the

physician would routinely be so detached from the patient’s

care that he would never see the patient or provide a service for

which he would bill Medicare directly. Indeed, in view of the

government’s case as to the overbilling aspect of the scheme,

which included testimony from multiple patients recounting

DeHaan’s practice of making brief visits to their residences for

perfunctory inquiries as to their status and needs (sometimes

not venturing beyond their doorways in the course of the

visit)—and for which he would later bill Medicare for

hundreds if not thousands of dollars for examinations and

services he did not perform—it is all the more noteworthy that

DeHaan forsook the opportunity to bill the government for

services to any of the beneficiaries identified in Exhibit 94C.

The lack of any apparent followup by DeHaan with these

beneficiaries once certified for home care readily supports the

inference that DeHaan did not, in fact, have the patients

identified in Exhibit 94C under his care. Having in mind that

the district court’s task was to make a reasonable estimate of14 No. 17

‐ 2005

the loss rather than to assess it with precision, we are satisfied

that its reliance upon Exhibit 94C was both acceptable and

proper. For this purpose, the government was not required to

rule out every theoretical possibility that a given patient listed

in that exhibit could have been under DeHaan’s care without

the doctor himself having seen and/or provided a billable

service to that patient at some point during the life of the

scheme. The lack of any billing for a visit or service by DeHaan

reasonably suggests fraud, and the court was within its rights

to base its loss estimate on that inference.

That the government bore the burden of proof as to the loss,

e.g.

, United States v. Williams

, 892 F.3d 242, 250 (7th Cir. 2018),

does not counsel differently. The government satisfied that

burden by supplying the court with evidence which, as we

have just explained, established a reasonable estimate of the

loss. Its approach to the loss attributable to DeHaan’s

fraudulent certifications was, if anything, “conservative,” as

Judge Kapala described it. R. 134 at 9. As the perpetrator of the

scheme, DeHaan had the means to present the court with a

different view of the scope of his fraud, if he wished, or to

demonstrate that the government’s evidence or methodology

was in some way unreliable. See United States v. Durham

, 766

F.3d 672, 686 (7th Cir. 2014) (once government has presented

explicit proof of loss, it is defendant’s obligation to present

evidence to counter that showing) (citing United States v.

Gordon

, 495 F.3d 427, 432 (7th Cir. 2007)). Judge Kapala gave

DeHaan every chance to do just that. DeHaan did not avail

himself of that opportunity.

In short, we reject the notion that the district court

committed legal error in relying on the lack of direct billings byNo. 17

‐ 2005 15

DeHaan to infer that the patients identified in Exhibit 94C were

not, in fact, under his care, as required by the relevant statutes

and regulations.

DeHaan next argues that the district court improperly

calculated the monetary loss to Medicare resulting from the

fraudulent certification of these 305 patients. As we noted

earlier, the district court found that Medicare paid roughly $2.8

million to home health agencies under Medicare Part A for

services rendered pursuant to DeHaan’s certification that these

patients were homebound. R. 134 at 10. DeHaan contends that

he can only be held to account for the loss that was

proximately caused by his conduct, and for two reasons he

believes it was error for the court to treat the total amount paid

by Medicare for services to these patients as the relevant loss

amount.

First, he notes that the home health agencies had an

independent duty to bill Medicare only for such services as

were reasonably necessary. The government declined to treat

the home health agencies as co

‐ schemers with DeHaan, such

that any fraud on his part was attributable to the agencies who

proceeded to bill Medicare for services to the patients he

certified, or vice

‐ versa. Thus, as DeHaan sees things, if the

agencies concluded that a given patient warranted home health

services, then the bills they submitted to and were paid by

Medicare were not fraudulent. And if the agencies were

knowingly billing Medicare for services that were unnecessary,

then that was an independent fraud in which DeHaan was not

implicated. Either way, in his view, “[a]gency independence is

an intervening act breaking the causal chain between DeHaan’s16 No. 17

‐ 2005

certifications and any agency bills—fraudulent or not.”

DeHaan Br. 37.

Second, and relatedly, DeHaan argues that Medicare only

suffered a loss to the extent that any of these patients in fact

could not qualify as homebound and thus should not have

received the services for which Medicare was billed. In his

view, absent proof that none of the 305 patients was actually

eligible for home health services, it was error for the court to

treat the entire amount paid by Medicare for services to these

patients as a loss.

Neither of these arguments was made below, so our review

is for plain error only. Fed. R. Crim. P. 52(b); see also

, e.g.

, United States v. Carson

, 870 F.3d 584, 593 (7th Cir. 2017), cert.

denied

, 138 S. Ct. 2011 (2018). We are satisfied that the district

court committed no obvious error in treating the amounts paid

by Medicare as the loss amount for which DeHaan should be

held responsible. See Puckett v. United States

, 556 U.S. 129, 135,

129 S. Ct. 1423, 1429 (2009) (to meet plain error standard error

must be clear or obvious) (citing United States v. Olano

, 507 U.S.

725, 734, 113 S. Ct. 1770, 1777 (1993)).

First, although the home health agencies had their own

obligations to Medicare, their independent role in ascertaining

what services a patient genuinely required and in billing

Medicare for those services in no way mitigated or limited

DeHaan’s culpability for the resulting loss to Medicare. The

certifying physician plays the role of gatekeeper in ascertaining

whether a patient is homebound and qualifies for home health

services; Medicare relies on the independent and honest

professional judgment of the certifying physician for thatNo. 17

‐ 2005 17

purpose. See United States v. Patel

, 778 F.3d 607, 617 (7th Cir.

2015). DeHaan certified as homebound hundreds of patients

either knowing that they did not qualify as homebound under

Medicare’s criteria or without knowing at all whether they so

qualified. In doing so, he breached his duty to Medicare and

opened the door for the agencies to bill Medicare for millions

of dollars worth of services. See id. He knew this is what the

agencies would do—after all, in at least some instances, he

certified the patients as homebound at the agencies’ behest. He

may be held to account for the foreseeable consequences of the

scheme. See U.S.S.G. § 2B1.1, comment. (n.3(A)(i)) (“‘Actual

loss’ means the reasonably foreseeable pecuniary harm that

resulted from the offense.”).

Second, it is not plain that this is the sort of case in which

the loss amount should be reduced by the value of services

provided to patients who, although fraudulently certified as

homebound by DeHaan, in fact were homebound and thus

could have been properly certified. The fraud at issue in this

appeal does not involve overbilling for services that were

otherwise legitimate. Cf. United States v. Mahmood

, 820 F.3d 177,

193–94 (5th Cir.), cert. denied

, 137 S. Ct. 122 (2016) (defendant

entitled to credit for value of legitimate hospital services that

only became tainted by fraud after the fact, when defendant

had billing codes altered to result in overcharges); United States

v. Vivit

, 214 F.3d 908, 915–18 (7th Cir. 2000) (where fraud

involved overstatement of care provided to patients, and

evidence indicated that some services provided were medically

necessary, district court appropriately credited defendant for

value of those services in loss calculation). Medicare requires

a patient to be certified as a precondition to receiving home18 No. 17

‐ 2005

health services. Absent a proper certification, a patient is not

eligible for such services as far as Medicare is concerned,

whether he is actually homebound or not. Thus, any patients

whom DeHaan fraudulently certified as homebound without

actually knowing anything about their status were, from

Medicare’s point of view, ineligible for home health services,

in the same way that a patient who has not yet been evaluated

and certified as homebound by a physician is ineligible. In this

way, one may see the entire amount paid by Medicare for

services to these patients as a loss even if, in theory, some

number of these patients were in fact homebound and could

therefore have qualified for home services had they been

certified as homebound in good faith by an honest physician.

Cf. United States v. Jones

, 664 F.3d 966, 984 (5th Cir. 2011)

(noting that from Medicare and Medicaid’s perspective,

medical services provided by unlicensed therapists were of no

value; it was thus appropriate to treat entire amount paid by

Medicare and Medicaid for those services as loss); United States

v. Triana

, 468 F.3d 308, 320–23 (6th Cir. 2006) (where defendant

was barred by prior conviction from participating in Medicare

program, full amount paid by Medicare to his firms was

properly treated as loss, even if billings were for legitimate

services provided to Medicare

‐ eligible patients by licensed

professionals). 4

4 In his reply brief, DeHaan argues that we should remand for clarification

of whether the loss calculation was based on the amounts the agencies

billed to Medicare or were paid by Medicare. DeHaan Reply Br. 20–21. If

the former, he believes the appropriate course is to limit the loss to the

$478,520.29 the court attributed to the overbilling aspect of DeHaan’s fraud,

(continued...)No. 17

‐ 2005 19

Finally, we may quickly dispatch DeHaan’s contention that

the district court committed plain error in ordering him to pay

restitution in the amount of $2,787,054.58—equal to the loss

amount attributed to the wrongful certification component of

his fraud. This challenge largely amounts to a rehash of the

challenges DeHaan made to the loss amount and which we

have already rejected. We need add only that the restitution

order does not, in our view, effectuate joint and several liability

for the actions of the home health agencies who billed

Medicare for the services provided to the patients whom

DeHaan fraudulently certified as homebound. As we have

already discussed, regardless of whether the agencies

themselves engaged in independent wrongdoing when they

billed Medicare for these services, the billings were the direct

and foreseeable result of DeHaan’s fraud as the gatekeeper in

certifying the patients; without his certification, the agencies

could not have billed Medicare and Medicare would not have

compensated the agencies for the services they provided. The

Medicare payments are a reasonable approximation of the loss

resulting from DeHaan’s own criminal conduct, and as such it

was entirely appropriate for the district court to order DeHaan

to make restitution for that loss.

4 (...continued)

“because it is the only proven loss amount.” DeHaan Reply Br. 21. Not only

was this argument not made below, it was not raised until the reply brief.

We therefore deem the argument waived. See

, e.g.

, United States v. Waldrip

,

859 F.3d 446, 450 n.2 (7th Cir. 2017).20 No. 17

‐ 2005

III.

Finding no error in the district court’s calculation of the loss

owing to DeHaan’s wrongful certification of patients as

homebound or its order that DeHaan make restitution to

Medicare for that loss, we AFFIRM the sentence.