United States v. Palazzo

372 F. App'x 445
CourtCourt of Appeals for the Fifth Circuit
DecidedMarch 23, 2010
Docket09-30039
StatusUnpublished
Cited by4 cases

This text of 372 F. App'x 445 (United States v. Palazzo) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Palazzo, 372 F. App'x 445 (5th Cir. 2010).

Opinion

PER CURIAM: **

This appeal arises out of a jury conviction for Medicare fraud. Because the evi *446 dence was sufficient to support the verdict, the indictment was not duplicitous, and the district court did not err in admitting a demonstrative aid or in calculating the loss and forfeiture amounts, we AFFIRM.

BACKGROUND

Maria Carmen Palazzo (“Palazzo”) is a psychiatrist who, until 2005, operated a private psychiatric practice in New Orleans, working out of both an office on the seventh floor of the Gumbel Building and her home. From the Summer of 2000 until March 2005 Palazzo was also the medical director of the Touro Infirmary Partial Hospitalization Program (“PHP”), which was located on the eighth floor of the Gumbel Building. Evidence of the following facts was adduced at trial through the testimony of numerous employees of PHP, among other witnesses. PHP was a psychiatric unit that was designed to function as a bridge between inpatient and outpatient facilities. PHP employed social workers, therapists, and nurses, all of whom were paid by Touro. PHP operated Monday through Friday, from about 8:30 a.m. to 2:30 p.m. The patients were either eating breakfast or lunch, in group therapy, or taking smoke breaks at all times during that period. Many of the patients were transported to and from PHP by bus. In addition to her private practice and her role at PHP, Pa-lazzo, during the time period in question, conducted utilization review for Mississippi Medicaid claims, reported spending more than 50 percent of her time on her real estate business, served as an expert witness for a forensic referral service, contracted with other mental health centers to provide on-site care at those facilities, acquired a master’s degree in medical management, and conducted clinical drug trials.

On June 14, 2007, Palazzo was charged under a superseding indictment with 40 counts of violating 18 U.S.C. § 1347. 1 These charges can be grouped into three general means of executing the overall scheme of defrauding Medicare; we consider the evidence underlying these convictions according to this division.

In Counts 1-14, Palazzo was charged with billing Medicare for services that did not qualify for the codes with which she billed them. These counts cover instances in which Palazzo billed Medicare using a code for professional services classified as Evaluation and Management (“E & M”) services, which require face-to-face visits between a physician and a patient and require at the least that the patient be present when the services are performed. The Government produced evidence that Palazzo had her assistant bill Medicare every morning before any services were rendered. The census for the day was faxed to Palazzo’s office on the seventh floor every day and billing was prepared by 8:30 or 9:00 a.m. Palazzo herself visited PHP only about three times a week, staying only 10-20 minutes. When Palaz-zo did come she did not arrive at PHP until at or near the end of the patients’ day. During the time Palazzo was at PHP the patients were in group therapy or were leaving on the bus. Palazzo did not have a private room where an E & M visit could have been conducted, and only saw the patients while they were in group therapy with another therapist or when she boarded their bus briefly as it was leaving. Various witnesses testified that they never saw Palazzo conduct a single individual session with a single patient at PHP.

Counts 1-14 specifically cover occasions on which Palazzo billed Medicare for “E & M subsequent visit” codes 99232 and *447 99233. These types of visits require at least two of three components: a detailed history, a detailed examination, and medical decision-making of high complexity. The suggested Medicare guideline time factors for 99232 and 99233 visits are 25 and 35 minutes per patient, respectively. Consistent testimony from the witnesses established that none of the billings covered by Counts 1-14 were performed in the presence of patients, much less in direct interaction with them. Instead the billings were submitted for what Palazzo called “treatment teams,” which were meetings held after the patients left PHP at which the nurse, social workers, and PHP staff discussed patient progress and Palazzo typed notes on her computer which were later placed in patient charts. A Medicare expert presented by the Government testified at trial that such meetings could not be given an E & M code because there were no face-to-face meetings with patients as the codes require.

In Counts 15 and 17-27 2 , Palazzo was charged with billing for services performed by her physician’s assistant (“PA”), Natalie Prejean (“Prejean”), as if she had performed them herself. Prejean was licensed under state law to practice medicine under the supervision of a practicing physician, and Palazzo obtained a Medicare PIN for Prejean so that she could bill Medicare for Prejean’s services. However Palazzo billed Medicare under her own PIN for services that, the evidence showed, Prejean provided at PHP while Palazzo was not present. Medicare establishes different billing options for PA services depending on whether the facility in which the services are performed is an inpatient facility or a doctor’s office. PHP occupies a grey area between these two categories, but the evidence produced at trial proved that Palazzo did not bill Preje-an’s services properly whether PHP is considered an inpatient or outpatient facility.

Assuming PHP to be an impatient facility, Palazzo could have legally obtained reimbursement for Prejean’s PA services to patients in two ways: (1) through Pre-jean’s PIN, which provided reimbursement directly to Palazzo at 85 percent of the scheduled fee amount, or (2) as a service “incident” to Palazzo’s services, in which case Medicare would reimburse the hospital at 100 percent of the scheduled fee amount. Instead of using either of these proper avenues, however, Palazzo billed Medicare for Prejean’s services using Palazzo’s own Medicare PIN, thereby receiving 100 percent of the scheduled fee directly for services that Prejean had performed. During one week that Palazzo was overseas Prejean’s services were billed under her own Medicare PIN (producing a reimbursement of 85 percent of the scheduled fee amount), but this was the only time that any services were billed under Prejean’s PIN. If, on the other hand, PHP was considered an outpatient facility/doctor’s office, Palazzo could have billed Prejean’s services as “incident to” Palazzo’s services using Palazzo’s own Medicare PIN and received 100 percent of the scheduled fee, but only if she had direct personal supervision over Prejean while the services were provided. This form of supervision requires that the supervising physician be physically present in the office suite and immediately available to direct or assist the PA. It would not have been sufficient for Palazzo to be in her seventh floor office suite while Pre-jean was in the PHP on the eighth floor, much less not present in the building at all (as the Government’s evidence showed was usually the case).

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Bluebook (online)
372 F. App'x 445, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-palazzo-ca5-2010.