This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2016).
STATE OF MINNESOTA IN COURT OF APPEALS A16-0264
State of Minnesota, Respondent,
vs.
Tetee Saryee d/b/a Zion Home Care, Inc., Appellant.
Filed January 3, 2017 Affirmed Rodenberg, Judge
Hennepin County District Court File No. 27-CR-15-10750
Lori Swanson, Attorney General, Nicholas B. Wanka, Assistant Attorney General, St. Paul, Minnesota; and
Michael O. Freeman, Hennepin County Attorney, Minneapolis, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Richard Schmitz, Assistant Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Halbrooks, Presiding Judge; Rodenberg, Judge; and
Kirk, Judge. UNPUBLISHED OPINION
RODENBERG, Judge
Appellant Tetee Saryee, d/b/a Zion Home Care, Inc.,1 appeals from her conviction
of four counts of aiding and abetting theft by false representation. On appeal, she argues
that she made no false representation and that the district court abused its discretion in
determining the amount of restitution ordered. We affirm.
FACTS
Tetee Saryee formed Zion Health Care, Inc. (Zion) in 2008 to provide personal-
care-assistant (PCA) services to patients. Zion served some Medicaid-eligible clients, and
billed the Minnesota Department of Human Services (DHS) for reimbursement.
To become eligible to receive reimbursement from DHS, appellant was required to
attend a three-day training, where she learned about reporting and service requirements.
During that training, appellant was informed that DHS requires all PCAs to be supervised
by a qualified professional (QP).2 Zion enrolled with DHS as a PCA Choice Provider and
became eligible to receive reimbursements from DHS for providing PCA services.
As part of its enrollment application to DHS, Zion reported the name of the QP it
had on staff. In 2009, Zion’s original QP left, and it hired a new QP. Zion notified DHS
1 Saryee was charged because she was Zion’s sole shareholder and was the sole person on the corporate bank account. The charging documents state her affiliation with Zion, but she was charged and convicted as an individual. 2 A QP is typically a registered nurse, while PCAs require less training.
2 about the staffing change, as required. However, when the second QP left Zion sometime
in early 2010, Zion did not hire a new QP and did not notify DHS of this change.
Zion began serving clients in early 2011, approximately one year after its second
QP left its employ.3 From February 2011 through November 2012, Zion billed DHS
$240,904.124 for PCA services. By statute, and in order to be reimbursable, PCA services
are required to be supervised by a QP. Minn. Stat. § 256B.0625, subd. 19c (2010). Zion
did not have a QP on staff during that time. At trial to a jury before the district court,
appellant claimed that Zion borrowed QPs from other PCA companies during the relevant
time period and that services for which it billed DHS were supervised, as required by law.
The jury rejected that claim and found appellant guilty of aiding and abetting theft by false
representation.
The state requested that appellant’s sentence include restitution. At sentencing, the
district court ordered that appellant repay all of the money Zion received from DHS, minus
amounts paid by Zion to its employees. The court calculated this amount to be $119,617
and ordered as a part of appellant’s sentence that she make restitution in that amount to
DHS over a ten-year period.
3 It appears from the record that Zion had no clients for the first several years of its corporate existence. 4 The record is inconsistent about how much Zion charged DHS. Appellant claims the amount billed to have been $263,431.87, a witness for the state testified that it was “around $260,000,” and exhibits introduced by the state at trial show the amount was $240,904.12. The exact amount appellant charged to DHS does not affect the outcome of this appeal, and we therefore do not resolve the question of the precise amount billed.
3 On appeal, and for the first time, appellant argues that she did not commit aiding
and abetting theft by false representation because she only requested reimbursement for
hours that Zion’s PCAs worked and never requested reimbursement for QP supervision.
Appellant also argues that the district court abused its discretion in calculating the amount
of restitution ordered.
DECISION
I. Statutory definition of “false representation”
Appellant argues she did not commit theft by false representation when she
submitted a claim for PCA services that were provided without QP supervision because
she did not falsely describe the services she provided. See Minn. Stat. § 609.52, subd.
2(a)(3)(iii) (2010)5 (defining theft by false representation). Specifically, appellant argues
that, when she submitted reimbursement for “PCA services,” she did not state or imply that
the services were supervised by a QP. The state argues that appellant’s use of that term
did imply that the services were supervised by a QP.
Appellant frames her argument as a sufficiency-of-the-evidence challenge. Where,
as here, a sufficiency-of-the-evidence claim involves a question of whether the defendant’s
conduct meets the statutory definition of an offense, we are presented with a question of
5 The four convictions stemmed from payments made by DHS to Zion from March 2011 until November 2012. The final conviction stemmed from payments made from May 2012 until November 2012. Because the period of behavior began under the 2010 versions of Minn. Stat. § 609.52, subd. 2(a)(3)(iii) and Minn. Stat. § 256B.0625, subd. 19c, and because the relevant portions were unaltered in the 2012 versions of the statutes, we cite to the 2010 versions.
4 statutory interpretation that we review de novo. State v. Hayes, 826 N.W.2d 799, 803
(Minn. 2013).
A person commits theft by false representation when that person:
(3) obtains for the actor or another the possession . . . [of] property . . . by intentionally deceiving the third person with a false representation which is known to be false, made with intent to defraud, and which does defraud the person to whom it is made. “False representation” includes without limitation: ...
(iii) the preparation or filing of a claim for reimbursement . . . for medical care provided to a recipient of medical assistance under chapter 256B, which intentionally and falsely states the costs of or actual services provided by a vendor of medical care.
Minn. Stat. § 609.52, subd. 2(a)(3)(iii) (emphasis added). Chapter 256B relates to
“Medical Assistance for Needy Persons,” and includes sections regulating PCAs. Minn.
Stat. §§ 256B.01-.84 (2010). Chapter 256B describes reimbursable PCA services as
services “provided in accordance with a plan, and supervised by a qualified professional.”
Minn. Stat. § 256B.0625, subd. 19c.
Appellant requested reimbursement from DHS for PCA services. PCA services are
regulated in part by Chapter 256B, which describes reimbursable PCA services as certain
services supervised by a QP. Id. The state introduced evidence at trial that DHS trainings
for PCA providers clearly inform attendees that PCAs must be supervised by QPs. In this
context, it is clear from the record that both DHS and appellant knew that PCA services
Free access — add to your briefcase to read the full text and ask questions with AI
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2016).
STATE OF MINNESOTA IN COURT OF APPEALS A16-0264
State of Minnesota, Respondent,
vs.
Tetee Saryee d/b/a Zion Home Care, Inc., Appellant.
Filed January 3, 2017 Affirmed Rodenberg, Judge
Hennepin County District Court File No. 27-CR-15-10750
Lori Swanson, Attorney General, Nicholas B. Wanka, Assistant Attorney General, St. Paul, Minnesota; and
Michael O. Freeman, Hennepin County Attorney, Minneapolis, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Richard Schmitz, Assistant Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Halbrooks, Presiding Judge; Rodenberg, Judge; and
Kirk, Judge. UNPUBLISHED OPINION
RODENBERG, Judge
Appellant Tetee Saryee, d/b/a Zion Home Care, Inc.,1 appeals from her conviction
of four counts of aiding and abetting theft by false representation. On appeal, she argues
that she made no false representation and that the district court abused its discretion in
determining the amount of restitution ordered. We affirm.
FACTS
Tetee Saryee formed Zion Health Care, Inc. (Zion) in 2008 to provide personal-
care-assistant (PCA) services to patients. Zion served some Medicaid-eligible clients, and
billed the Minnesota Department of Human Services (DHS) for reimbursement.
To become eligible to receive reimbursement from DHS, appellant was required to
attend a three-day training, where she learned about reporting and service requirements.
During that training, appellant was informed that DHS requires all PCAs to be supervised
by a qualified professional (QP).2 Zion enrolled with DHS as a PCA Choice Provider and
became eligible to receive reimbursements from DHS for providing PCA services.
As part of its enrollment application to DHS, Zion reported the name of the QP it
had on staff. In 2009, Zion’s original QP left, and it hired a new QP. Zion notified DHS
1 Saryee was charged because she was Zion’s sole shareholder and was the sole person on the corporate bank account. The charging documents state her affiliation with Zion, but she was charged and convicted as an individual. 2 A QP is typically a registered nurse, while PCAs require less training.
2 about the staffing change, as required. However, when the second QP left Zion sometime
in early 2010, Zion did not hire a new QP and did not notify DHS of this change.
Zion began serving clients in early 2011, approximately one year after its second
QP left its employ.3 From February 2011 through November 2012, Zion billed DHS
$240,904.124 for PCA services. By statute, and in order to be reimbursable, PCA services
are required to be supervised by a QP. Minn. Stat. § 256B.0625, subd. 19c (2010). Zion
did not have a QP on staff during that time. At trial to a jury before the district court,
appellant claimed that Zion borrowed QPs from other PCA companies during the relevant
time period and that services for which it billed DHS were supervised, as required by law.
The jury rejected that claim and found appellant guilty of aiding and abetting theft by false
representation.
The state requested that appellant’s sentence include restitution. At sentencing, the
district court ordered that appellant repay all of the money Zion received from DHS, minus
amounts paid by Zion to its employees. The court calculated this amount to be $119,617
and ordered as a part of appellant’s sentence that she make restitution in that amount to
DHS over a ten-year period.
3 It appears from the record that Zion had no clients for the first several years of its corporate existence. 4 The record is inconsistent about how much Zion charged DHS. Appellant claims the amount billed to have been $263,431.87, a witness for the state testified that it was “around $260,000,” and exhibits introduced by the state at trial show the amount was $240,904.12. The exact amount appellant charged to DHS does not affect the outcome of this appeal, and we therefore do not resolve the question of the precise amount billed.
3 On appeal, and for the first time, appellant argues that she did not commit aiding
and abetting theft by false representation because she only requested reimbursement for
hours that Zion’s PCAs worked and never requested reimbursement for QP supervision.
Appellant also argues that the district court abused its discretion in calculating the amount
of restitution ordered.
DECISION
I. Statutory definition of “false representation”
Appellant argues she did not commit theft by false representation when she
submitted a claim for PCA services that were provided without QP supervision because
she did not falsely describe the services she provided. See Minn. Stat. § 609.52, subd.
2(a)(3)(iii) (2010)5 (defining theft by false representation). Specifically, appellant argues
that, when she submitted reimbursement for “PCA services,” she did not state or imply that
the services were supervised by a QP. The state argues that appellant’s use of that term
did imply that the services were supervised by a QP.
Appellant frames her argument as a sufficiency-of-the-evidence challenge. Where,
as here, a sufficiency-of-the-evidence claim involves a question of whether the defendant’s
conduct meets the statutory definition of an offense, we are presented with a question of
5 The four convictions stemmed from payments made by DHS to Zion from March 2011 until November 2012. The final conviction stemmed from payments made from May 2012 until November 2012. Because the period of behavior began under the 2010 versions of Minn. Stat. § 609.52, subd. 2(a)(3)(iii) and Minn. Stat. § 256B.0625, subd. 19c, and because the relevant portions were unaltered in the 2012 versions of the statutes, we cite to the 2010 versions.
4 statutory interpretation that we review de novo. State v. Hayes, 826 N.W.2d 799, 803
(Minn. 2013).
A person commits theft by false representation when that person:
(3) obtains for the actor or another the possession . . . [of] property . . . by intentionally deceiving the third person with a false representation which is known to be false, made with intent to defraud, and which does defraud the person to whom it is made. “False representation” includes without limitation: ...
(iii) the preparation or filing of a claim for reimbursement . . . for medical care provided to a recipient of medical assistance under chapter 256B, which intentionally and falsely states the costs of or actual services provided by a vendor of medical care.
Minn. Stat. § 609.52, subd. 2(a)(3)(iii) (emphasis added). Chapter 256B relates to
“Medical Assistance for Needy Persons,” and includes sections regulating PCAs. Minn.
Stat. §§ 256B.01-.84 (2010). Chapter 256B describes reimbursable PCA services as
services “provided in accordance with a plan, and supervised by a qualified professional.”
Minn. Stat. § 256B.0625, subd. 19c.
Appellant requested reimbursement from DHS for PCA services. PCA services are
regulated in part by Chapter 256B, which describes reimbursable PCA services as certain
services supervised by a QP. Id. The state introduced evidence at trial that DHS trainings
for PCA providers clearly inform attendees that PCAs must be supervised by QPs. In this
context, it is clear from the record that both DHS and appellant knew that PCA services
was a term used to describe certain services supervised by QPs. Appellant points to nothing
in the record on appeal suggesting otherwise. By statute, PCA services must be supervised
5 by a QP in order to be reimbursable by DHS. Id. In claiming reimbursement for PCA
services, Zion represented that the services were QP supervised. The jury found, and the
record supports, an intentional misrepresentation which resulted in DHS paying
reimbursement amounts not properly due.
Appellant attempts on appeal to minimize the importance of QP supervision of
PCAs, claiming that it is but one of the myriad regulations that PCA providers must follow.
However, the fact that QP supervision is required by the statute regulating PCAs, a
requirement that is reemphasized in trainings, shows that QP supervision is a central
component of properly reimbursable PCA services. Moreover, appellant’s position at trial
was that Zion had borrowed QP supervision from other companies, not that QP supervision
was not a necessary component of every PCA-reimbursement claim. The evidence of
record is sufficient to support appellant’s conviction of aiding and abetting theft by false
II. Calculation of restitution
Appellant identifies three claimed errors by the district court in calculating the
amount of restitution. First, appellant argues that she should only be required to pay
restitution on Zion’s profits, and that the district court erred by not subtracting Zion’s
overhead (taxes, rent, etc.) in computing restitution. Second, appellant argues that DHS
did not suffer any losses because Zion only billed DHS for the hours PCAs worked, and
not for any hours worked by QPs, and DHS therefore reimbursed Zion only for services
actually rendered. Finally, appellant argues that the district court should have made
findings of fact to establish DHS’s economic losses.
6 The state replies with two arguments. First, it argues that appellant forfeited her
right to challenge the restitution order by not bringing a claim within 30 days, as required
by statute. Second, it argues that the district court’s restitution order was supported by
evidence presented at trial.
We review a district court’s award of restitution for abuse of discretion. State v.
Andersen, 871 N.W.2d 910, 913 (Minn. 2015).
A. 30-day time limit for challenging restitution
Minn. Stat. § 611A.045 states:
An offender may challenge restitution, but must do so by requesting a hearing within 30 days of receiving written notification of the amount of restitution requested, or within 30 days of sentencing, whichever is later. The hearing request must be made in writing and filed with the court administrator. A defendant may not challenge restitution after the 30-day time period has passed.
Minn. Stat. § 611A.045, subd. 3(b) (2014).
In the past, we have declined “to create an exception that would permit an offender
to circumvent his own failure to comply with mandatory procedural requirements” under
Minn. Stat. § 611A.045. State v. Thole, 614 N.W.2d 231, 236 (Minn. App. 2000).
Here, the state requested restitution on November 10, 2015 and served appellant’s
attorney with the request on November 16. The district court ordered restitution on
November 19, 2015. Appellant did not request a hearing and, even now, has not requested
a hearing. She does not claim that the district court lacked the legal authority to make a
restitution award. State v. Gaiovnik, 794 N.W.2d 643, 647 (Minn. 2011) (holding that
noncompliance with section 611A.045 at the district court does not preclude appellate
7 challenges to the district court’s authority to award restitution). Appellant has not properly
challenged restitution.
B. Calculating amount of restitution
Even if we were to address appellant’s challenges to restitution on their merits, her
arguments would fail. “The primary purpose of restitution is to restore crime victims to
the same financial position they were in before the crime.” State v. Johnson, 851 N.W.2d
60, 65 (Minn. 2014) (quotation omitted). Minnesota law requires that the district court
“grant or deny restitution or partial restitution and . . . state on the record its reasons for its
decision on restitution if information relating to restitution has been presented.” Minn.
Stat. § 611A.04, subd. 1(c) (2014). “The district court has broad discretion concerning
matters of restitution as long as a sufficient factual basis underlies its decision regarding
the ordered restitution.” Anderson v. State, 794 N.W.2d 137, 139 (Minn. App. 2011),
review denied (Minn. Apr. 27, 2011).
Appellant’s first argument that the court should have calculated restitution based on
Zion’s net profits finds no support in law. Restitution is intended to restore crime victims.
Johnson, 851 N.W.2d at 65. That a criminal enterprise was expensive to run says nothing
about restitution properly owed to a victim of the enterprise.
Second, appellant argues that DHS did not suffer any loss because Zion did not bill
DHS for anything it did not do. As discussed above, Zion did not provide PCA services as
those services are defined and understood, and appellant aided and abetted Zion’s receipt
of money DHS should not have paid. Aided by appellant, Zion did not provide any
reimbursable services to DHS. All money paid to Zion was therefore part of the theft by
8 false representation. The district court did reduce appellant’s restitution obligation by
amounts paid out-of-pocket by Zion to the individual PCAs. It was not required to reduce
that obligation any further.
Finally, appellant argues that the district court did not state the reasons for its
decision on the record. But the basis for the district court’s restitution order is clear. At
trial, the state introduced evidence of the overpayments, and included that same evidence
in its request for restitution. That evidence shows that the state overpaid appellant by at
least $119,617.18. We see no abuse of the district court’s discretion in the restitution
component of appellant’s sentence.
Affirmed.