United States v. Echols

574 F. App'x 350
Court of Appeals for the Fifth Circuit·Decided June 25, 2014·No. No. 13-20238·Published·Cited by 9 cases

Opinion

PER CURIAM: *

Appellant Ben Echols, a Houston gas-troenterologist, appeals from his conviction and sentence for conspiracy to commit health care fraud, in violation of 18 U.S.C. § 1349 (Count 1), and six counts of making false statements in connection with the delivery of or payments for health care benefits, items, or services (Counts 2-7), in violation of 18 U.S.C. § 1035. The jury found Echols defrauded Medicare by signing hundreds of plans of care (POCs) au[352] thorizing home health care for patients he had not seen or treated. The district court sentenced Echols to 63 months of imprisonment on Count 1 and to concurrent 60-month terms on Counts 2-7 and ordered him to pay $2,918,830.51 in restitution to Medicare. We AFFIRM the district court’s verdict and sentence.

FACTUAL BACKGROUND

A. Medicare Pays for Home Health Care Services Provided to Eligible Beneficiaries with Doctor Referrals

Medicare, a taxpayer-funded insurance program, pays claims submitted by home health care companies for skilled nursing services provided to eligible Medicare beneficiaries. To be eligible for home health care, a Medicare beneficiary must meet three requirements: (1) the patient must be homebound, (2) must be under a physician’s care, and (3) must require specialized skilled nursing. The requirement that a patient be under a physician’s care means that the physician must have seen and evaluated the patient.1 The referring physician — typically the patient’s primary care physician, surgeon, etc. — is responsible for making sure the patient meets the requirements for Medicare-funded home health care.

Once the home health care company receives a physician referral, it sends a registered nurse to assess the patient and complete a detailed evaluation, which is then used to generate a POC for the patient. The POC shows the patient’s name and other demographic information, diagnosis, medications, orders from the physician, and information about services that the home health care company will provide. The home health care company then sends the POC to the referring physician for his or her signature or review. The POC contains a certification by the referring physician that the patient is “confined to his/her home and needs intermittent skilled nursing care” or other services, and that “[t]he patient is under my care and I hereby authorize the services on this plan of care and will periodically review the plan.” The POC also warns that “[ajnyone who misrepresents, falsifies, or conceals essential information required for payment of federal funds may be subject to fine, imprisonment, or civil penalty under applicable federal laws.”

If the physician certifies the need for home health care, Medicare will pay for a 60-day period (or “episode” of care), with the option for 60-day extensions with the physician’s recertification. The home health care company submits to Medicare a claim for skilled nursing services that lists the physician’s name and Medicare provider number; the physician is not copied on these bills. Before submitting a claim to Medicare for a full episode of care, the home health care company must have in its files a POC signed by the physician, and should keep the POC on file in event of an audit.

B. Echols Authorized Home Health Care for Patients He Had Not Seen or Treated

Dr. Ben Echols served as medical director of two home health care agencies, [353] Family Home Healthcare (Family) and Houston Compassionate Care (Compassionate). Rather than receiving physician referrals, Family and Compassionate recruited Medicare beneficiaries by asking if they were interested in home health care services. Both companies then asked the patients’ primary care doctors to sign the POCs. If the physicians refused, employees took the POCs and other forms to Echols for his signature. Echols signed the forms without asking questions, requesting the patients’ files, or making any changes — even though many of the Compassionate forms listed other doctors’ names and National Provider Identifier (NPI) numbers. Doctors listed on the claims signed by Echols testified that they had not authorized home health care.

Family and Compassionate paid Echols $1,500 and $700 per month, respectively, in his capacity as medical director. Family and Compassionate employees typically brought Echols checks or cash as payment when they brought the forms for his signature. In all, Family and Compassionate paid Echols more than $100,000.

C. The Defense Case

In his defense, Echols testified that he acted in good faith and wrongly trusted that what Family, Compassionate, and their employees asked him to do was legal. Echols conceded that, while he did sign POCs for Compassionate patients that he had not seen, he did so only when Compassionate vouched that the patient’s primary physician had given verbal orders for home health care, the patient had been discharged, and attempts to contact the patient’s primary care doctor had failed. He further testified that the policies of Compassionate, subject to regulation by Medicare and the State, allowed him as medical director to sign POCs when the treating physician could not be reached to sign the form, and he believed that his actions were appropriate to bring Compassionate into regulatory compliance. His longstanding relationship with Compassionate owner Vainita Turner (who once worked as Echols’s nurse) increased his trust in Compassionate’s representations. Regarding Family, Echols believed that Family staff only brought him POCs to sign for patients for whom he or his nurse practitioner, Tonia Jackson, had orally ordered health care.

Echols further introduced evidence (including the testimony of his ophthalmologist) that his failing eyesight made it difficult for him to read the health care forms, and thus increased his reliance on Family, Compassionate, and their employees to accurately prepare the forms. He also maintains “it was common in his practice for him to trust others to prepare accurate forms.”

Finally, Echols emphasized that, while he was paid for his services as medical director, his salary was fixed and unrelated to the number of POCs signed. Instead, he maintains that the payment was compensation for all of his duties as medical director, though he admitted at trial that the Compassionate medical director job description does not mention seeing patients, signing POCs, or signing physicians’ orders.

D. Disposition

The jury convicted Echols of conspiracy to commit health care fraud, in violation of 18 U.S.C. § 1349 (Count 1), and six counts of making false statements in connection with the delivery of or payments for health care benefits, items, or services (Counts 2-7), in violation of 18 U.S.C. § 1035.

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United States v. Echols, 574 F. App'x 350 (5th Cir. 2014).

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