United States v. Raithatha

• Court: Court of Appeals for the Sixth Circuit
• Decided: May 19, 2004
• Docket: 02-6013
• Status: Published

Opinion

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 United States v. Raithatha No. 02-6013 ELECTRONIC CITATION: 2004 FED App. 0143P (6th Cir.) File Name: 04a0143p.06 David P. Grise, ASSISTANT UNITED STATES ATTORNEY, Lexington, Kentucky, for Appellee. ON BRIEF: Glenn V. Whitaker, Eric W. Richardson, UNITED STATES COURT OF APPEALS VORYS, SATER, SEYMOUR & PEASE, Cincinnati, Ohio, for Appellant. David P. Grise, Charles P. Wisdom, Jr., FOR THE SIXTH CIRCUIT ASSISTANT UNITED STATES ATTORNEYS, Lexington, _________________ Kentucky, for Appellee.

UNITED STATES OF AMERICA , X _________________ Plaintiff-Appellee, - - OPINION - No. 02-6013 _________________ v. - > FEIKENS, District Judge. , P. G. RAITHATHA, - I. INTRODUCTION Defendant-Appellant. - N Defendant, Dr. P.G. Raithatha, was convicted by a jury of Appeal from the United States District Court scheming to defraud private health insurance companies and for the Eastern District of Kentucky at London. Medicare/Medicaid, in violation of 18 U.S.C. §1347, and of No. 00-00041—Karl S. Forester, Chief District Judge. making false statements to the Department of Labor (DOL) and to the Immigration and Naturalization Service (INS), in Argued: January 29, 2004 violation of 18 U.S.C. §1001. Defendant was sentenced to 27 months of imprisonment. Defendant appeals his conviction Decided and Filed: May 19, 2004 and sentence.

Before: MERRITT and SUTTON, Circuit Judges; On appeal, defendant argues: (1) the jury’s conviction as FEIKENS, District Judge.* to all counts should be reversed because defendant alleges there is insufficient evidence to sustain his conviction, or _________________ alternatively, that defendant should be granted a new trial; and (2) the district court erred in attributing any loss figure to COUNSEL defendant as to Counts 1 through 20, and that therefore the district court’s loss calculations for sentencing purposes ARGUED: Glenn V. Whitaker, VORYS, SATER, should be reversed. SEYMOUR & PEASE, Cincinnati, Ohio, for Appellant.

* The Honorab le John Feikens, United States District Judge for the Eastern District of Michigan, sitting by designation.

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II. FACTUAL BACKGROUND performed more expensive services than were actually provided. A. Defendant’s Medical Practice In 1998, defendant helped recruit seven foreign physicians Defendant is a physician who owned and operated two for MAHC. Defendant recruited them under a program that clinics in 1997, the McKee Medical Center in McKee, allows foreign doctors to stay in the United States if they Kentucky, and the Richmond Medical Center in Richmond, secure employment in medically under-served areas. Under Kentucky. In 1997, defendant sold the clinics to Mountain this program, MAHC had to meet several requirements After Hours Clinic Corporation (“MAHC”). As part of the including submitting a Labor Condition Application (“LCA”) sale, defendant became an employee of MAHC and was to the DOL, and a Petition for Nonimmigrant Worker (an “I- issued one-sixth of the shares of stock in MAHC. By 1998, 129 form”) to the INS, setting forth information such as the MAHC owned four other clinics in Hazard, Nicholson, physician’s wage, for each physician hired. MAHC was London, and Somerset, Kentucky. required to pay each foreign doctor no less than the prevailing wage for the area – the average wage paid to physicians in the During 1997, when defendant owned the McKee and area for comparable work. Richmond clinics, the billing for both clinics was done at the McKee clinic. Tammy Spurlock, defendant’s office manager, The McKee clinic was designated a “rural health clinic” by testified that she, Beverly Lainhart, and Renee Hudson did Medicare. As a rural health clinic, the McKee clinic was billing work. Between January and December of 1998, all reimbursed a flat rate for each Medicare/Medicaid patient it billing for the six MAHC clinics was performed by an outside saw, regardless of the treatment rendered. The McKee clinic billing service, Office Management Services (“OMS”). In was required to submit to Medicare a yearly “cost report” – a April of 1999, OMS stopped providing billing services for summation of the costs incurred by the clinic in treating MAHC, and the McKee clinic began doing billing for all of patients. Once a clinic reached the maximum reimbursement the clinics. rate set by Medicare/Medicaid, additional expenses on the cost report were not reimbursed during that year. However, To bill its services, a medical clinic issues an invoice to the reported costs were used to calculate future patient’s insurer that contains a current procedure terminology Medicare/Medicaid reimbursement rates per patient. (Shreve, (“CPT”) code. The CPT code indicates to the insurer the Tr. 100.) level of service rendered by the clinic and the amount of reimbursement owed to the clinic. When a medical In May 1998, a cost report was prepared for the McKee practitioner sees a patient, the practitioner records a CPT code clinic for the period of October 1, 1996 through on an “encounter form” to record the services performed. The September 30, 1997, which included $50,393.53 of CPT codes for established patients range from the least defendant’s personal expenses. Defendant alleges that when expensive, 99211, to the most expensive, 99215. The CPT defendant operated as a sole proprietor of the Richmond and codes for new patients range from the least expensive, 99201, McKee clinics, prior to their purchase by MAHC, defendant to the most expensive, 99205. (Cost. Tr. 53.) One type of “often used business checks to pay personal expenses and “up-coding” scheme occurs where the CPT numbers are would, at the end of the year, separate the personal and changed on the encounter forms and/or billing sheets sent to business expenses in order to prepare the corporation’s tax the insurance companies so that it appears as if the clinic returns.” (Def. Br. 113.) Defendant contends that his No. 02-6013 United States v. Raithatha 5 6 United States v. Raithatha No. 02-6013

personal expenses were inadvertently included on the cost expenses unrelated to patient care. Included in those report. expenses was money which was actually spent to furnish and complete defendant’s home. (Indictment, 6-7.) B. Prosecution of Defendant Counts 6 through 13 charged defendant with submitting On July 24, 2000, a twenty-count indictment was filed false statements to the DOL, in violation of 18 U.S.C. §1001, against defendant. Counts 1 and 4 charged defendant with by submitting LCAs that misstated the salaries of seven defrauding private insurance companies in 1997 (Count 1) foreign physicians employed by MAHC. The indictment and 1998 and 1999 (Count 4), in violation of 18 U.S.C. charged defendant as “the person in charge of recruiting §1347. Counts 1 and 4 charged defendant with instructing physicians for the Corporation.” (Indictment, 12.) The billing staff to: (a) raise the CPT codes on invoices when the indictment alleged that the “forms falsely overstated the physician had reported a lower level of service; (b) submit salary to be paid to the physicians, in order to disguise the invoices to insurance companies for services performed by fact that the physicians were being paid less than the required other physicians, as if defendant had performed them; and amount.” (Indictment, 13.) (c) submit claims with a diagnosis listing an illness, when the patient did not have an illness. (Indictment, 2-3, 8-10.) Counts 14 through 20 charged defendant with submitting false statements to the INS, in violation of 18 U.S.C. §1001, Counts 2 and 5 charged defendant with scheming to by submitting I-129 forms that misstated the salaries of the defraud Medicare/Medicaid in 1997 (Count 2) and 1998 and seven foreign physicians identified in Counts 6 through 13. 1999 (Count 5), in violation of 18 U.S.C. §1347. (Indictment, (Indictment, 15-16.) 4-6, 10-12.) Counts 2 and 5 charged defendant with causing patients to present themselves for medically-unnecessary The defendant pleaded not guilty to all counts. visits by: (a) refusing to authorize refills on prescriptions and preventing employees from authorizing refills of Trial began on July 2, 2001, before Chief Judge Karl S. prescriptions; (b) making unannounced and unrequested home Forester. Defendant moved for a judgment of acquittal. The visits to patients; (c) approaching people on the street and district court denied the motion. On July 19, 2001, the jury ushering them into the clinic for unscheduled examinations; returned a guilty verdict as to all counts (Counts 1 through (d) examining people who had come into the clinic for non- 20). Defendant timely moved for a new trial. On medical reasons, such as to pay debts owed to defendant; September 12, 2001, the district court denied the motion for (e) ordering medical tests not related to patients’ conditions; a new trial. This appeal followed, both as to defendant’s (f) falsely representing that other physician employees had conviction and sentence as to all counts. specialties so that patients would be examined an additional time by a “specialist”; and (g) refusing to give test results C. Presentence Investigation Report (PSR) Loss until an additional appointment was kept. (Indictment, 4-6, Calculation 10-12.) The probation office determined that it would be difficult Count 3 charged defendant with defrauding to discern an actual loss figure for Counts 1 and 4, but that an Medicare/Medicaid, in violation of 18 U.S.C. §1347, by intended loss figure could be calculated “for the up-coding submitting a cost report for 1997 that included personal conduct which occurred in 1999.” Therefore, the PSR No. 02-6013 United States v. Raithatha 7 8 United States v. Raithatha No. 02-6013

calculated an intended loss figure of $206,461.43 for Counts Fifth, an average payment difference was computed for 1 and 4, based on evidence of defendant’s up-coding scheme. each of the above categories of possible CPT up-codes. For The PSR calculated an intended loss figure of $50,393.53 for example, the probation office determined that the average Count 3, equal to the amount of defendant’s personal payment difference between services coded 99211 and 99213 expenses which were included in the cost report submitted to was $28.24. (PSR, ¶50-54.) Sixth, the number of encounter Medicare/Medicaid. The probation office determined that an forms in each CPT category (determined in step 2) was intended loss amount for Counts 2 and 5, related to multiplied by the average payment difference for each defrauding Medicare/Medicaid, could not be quantified. category (determined in step 5) to calculate an intended loss Thus, the PSR recommended that a total intended loss figure figure for each category of CPT codes. For example, for CPT of $256,854.96 ($206,461.43 + $50,393.53) should be code 99211, the probation office calculated an intended loss attributed to defendant as to Counts 1 through 5. figure for 1999 of $35,221.10 by multiplying $28.45 (the average payment difference between 99211 and 99213) by The PSR arrived at the intended loss figure of $206,461.43 1,238 (the number of 99211 encounter forms for 1999 seized for Counts 1 and 4 through a complex series of ten steps. from the McKee Clinic). Seventh, the intended loss figures First, the probation office went through encounter forms for each CPT category were added together to come up with seized from the McKee Medical Center on November 17, a total intended loss figure for 1999 of $112,820.45. This 1999, and extracted all of the encounter forms from 1999 for figure represents the loss which would have occurred had patients with private insurance that were marked with 99211, each claim in each CPT category for 1999 been up-coded. 99212, 99201, and 99202 CPT codes. Second, the encounter (PSR, ¶55-56.) forms in each CPT code category were counted. Third, of the sixty-four private insurance companies billed by MAHC in Eighth, the probation office determined an intended loss 1999, a sample of ten insurance companies were contacted to figure for 1998 of $56,410.23, by backtracking from the determine their usual and customary charges for each CPT intended loss figure calculated for 1999. The probation office code. determined that defendant had “extensive control” over the billing of three of the six clinics in the MAHC system during Fourth, using the customary charges for each CPT code at 1998, when the billing for MAHC was conducted by OMS. each of the ten selected insurance companies, the probation (PSR, ¶57.) Therefore, the probation office calculated the office computed the payment difference that would have intended loss figure for 1998 by multiplying the intended loss resulted had each category of CPT codes been up-coded and figure for 1999 by 50%. billed at a higher CPT code. For example, the probation office calculated the payment difference between 99211 to Ninth, the probation office determined an intended loss 99213 to determine the amount of loss each of the ten figure for 1997 of $37,230.75. Since defendant operated only insurance companies would have suffered had encounter two clinics in 1997, the probation office calculated an forms marked with a 99211 been up-coded and billed under intended loss for 1997 by multiplying the intended loss figure a 99213 CPT code. The probation office determined the for 1999 by 33%. (PSR, ¶58.) Finally, the probation office payment differences between the following additional CPT added together its intended loss calculations for 1999, 1998, categories for each of the ten insurance companies: 99212 to and 1997 to arrive at a total loss calculation of $206,461.53 99213, 99201 to 99203, and 99202 to 99203. for Counts 1 and 4. (PSR, ¶59.) No. 02-6013 United States v. Raithatha 9 10 United States v. Raithatha No. 02-6013

For Counts 6 through 20, the probation office calculated an calculation of an intended loss of $206,461.43 for Counts 1 actual loss figure of $216,833.94. (PSR, ¶73.) This was and 4, and an intended loss of $50,393.53 for Count 3, for a based on the amount of pay the foreign physicians were total intended loss of $256,854.96 for Counts 1 through 5. entitled to but did not receive during their employment with MAHC. (PSR, ¶73.) For Counts 6 through 20, the probation With regards to Counts 6 through 20, the district court office calculated an intended loss of $523,670.00. This figure adopted the PSR’s actual loss calculation of $216,833.94, equals the difference between the wage reported to the United after determining that the intended loss calculation relating to States minus the contract amount, multiplied by the number Counts 6 through 20 was too speculative. (Sentencing, Tr. of years of the contract, for each foreign physician. This 77-80.) However, because the court determined that the intended loss amount represents the amount of money per conduct charged in Counts 6 through 20 fell outside the contract that MAHC stood to gain by illegally paying its heartland of cases that U.S.S.G. §2F1.1 (the applicable foreign physicians below the prevailing wage. The probation Sentencing Guideline) was designed to address, the court office used the intended loss calculation for Counts 6 through decided not to hold defendant accountable for the actual loss 20 ($523,670.00), because it was greater than the calculated caused by his alleged conduct in Counts 6 through 20. actual loss, and combined it with the intended loss calculation Accordingly, the district court determined that the total loss for Counts 1 through 5 ($256,854.96) to calculate a total attributable to defendant was $256,854.96 (the intended loss intended loss figure for Counts 1 through 20 of $780,524.96. calculated for Counts 1 through 5 minus the actual loss calculated for Counts 6 through 20). Based on this loss calculation, the probation office recommended a total offense level of 20. U.S.S.G §2F1.1 Applying U.S.S.G. §2F1.1, the district court determined calls for a base offense level of 6 for violations of 18 U.S.C. that the base offense level was 6, and added 4 points as §1347 and §1001. The PSR recommended a 10 level increase recommended in the PSR because the offense involved more because the intended loss totaled more than $500,000 but less than minimal planning and the violation of a private trust. than $800,000. U.S.S.G. §2F1.1(b)(1)(K). The PSR The district court added an 8 level increase because the recommended a 2 level increase because the offense included amount of loss it determined was attributable to defendant more than minimal planning, and an additional 2 level was above $200,000 and below $350,000. U.S.S.G. increase because the abuse of a private trust facilitated the §2F1.1(b)(1)(I). Thus, the district court assessed a total offense. Thus the PSR recommended a base offense level of offense level of 18, for which the applicable guideline range 6 plus a 14 level increase, for a total offense level of 20. was 27 to 33 months. (Sentencing Tr. 86.) The district court Based on the recommended total offense level of 20 and sentenced defendant to 27 months of imprisonment and two defendant’s criminal history category of I, the PSR years supervised release on each count to be served recommended a guideline range for imprisonment of 33 to 41 concurrently. (Sentencing Tr. 95.) Now defendant appeals months. both his conviction and sentence as to all counts.

D. Defendant’s Sentencing On August 2, 2002, the district court sentenced defendant to 27 months. The district court did not order restitution. (Sentencing, Tr., 37.) The district court adopted the PSR’s No. 02-6013 United States v. Raithatha 11 12 United States v. Raithatha No. 02-6013

III. ANALYSIS Defendant argues there is insufficient evidence to sustain his conviction for Counts 1 and 4, defrauding or attempting A. SUFFICIENCY OF EVIDENCE to defraud private health insurance companies. However, many staff members testified that defendant instructed them 1. Standard of Review to bill office visits covered by private insurance under CPT codes 99213 or 99203, regardless of the CPT code entered by When evaluating a claim of insufficient evidence, a the attending physician on the encounter form. The staff reviewing court must determine “whether, after viewing the members were aware that this “up-coding” scheme resulted in evidence in the light most favorable to the prosecution, any higher reimbursement from private insurance companies. rational trier of fact could have found the essential elements (Justice, Tr. 164.) After the FBI searched the McKee clinic of the crime beyond a reasonable doubt.” United States v. and defendant’s home and seized encounter forms, insurance Harris, 293 F.3d 970, 974 (6th Cir. 2002) (citing Jackson v. information, and records, staff members testified that the up- Virginia, 443 U.S. 307, 319 (1979)(emphasis in original)). A coding ceased. (Howard, Tr. 76-77.) defendant claiming insufficiency of evidence bears a “very heavy burden.” United States v. Vannerson, 786 F.2d 221, In addition, staff members testified that defendant routinely 225 (6th Cir. 1986). “[C]ircumstantial evidence alone can ordered tests unrelated to his patients’ conditions and sustain a guilty verdict.” United States v. Ellerbee, 73 F.3d supported the tests with false diagnoses. (Meadors, Tr. 5-10.) 105, 107 n.2 (6th Cir. 1996) (citation omitted). The evidence Zeren, a nurse practitioner working at the McKee clinic, need not remove every possible hypothesis except that of testified that after she performed sports physicals on children guilt. United States v. Williams, 195 F.3d 824, 826 (6th Cir. at local schools and found no indication of upper-respiratory 1999) (citations omitted). infections, defendant, who had not been present at the examinations, falsely diagnosed them as having upper 2. Health Care Fraud (Counts 1-5) – 18 U.S.C. respiratory infections. (Zeren, Tr. 45-51.) Taking this §1347 evidence in the light most favorable to the prosecution, a reasonable juror could have found defendant guilty of To convict a defendant of health care fraud under 18 U.S.C. defrauding or attempting to defraud private insurance §1347, the Government must demonstrate that the defendant: companies, as charged in Counts 1 and 4. (1) knowingly devised a scheme or artifice to defraud a health care benefit program in connection with the delivery of or Defendant argues there is insufficient evidence to sustain payment for health care benefits, items, or services; his conviction for Counts 2 and 5, defrauding (2) executed or attempted to execute this scheme or artifice to Medicare/Medicaid by causing patients to come into defraud; and (3) acted with intent to defraud. (Jury Instruction defendant’s clinics for medically unnecessary examinations No. 12, July 19, 2001.) The defendant must have intended, or treatments. However, physicians working for defendant through some deception, “to induce another to part with testified that defendant told them to bring Medicaid patients property or to surrender some legal right.” United States v. back for additional office visits, instead of giving them a Frost, 125 F.3d 346, 354 (6th Cir. 1997) (cited in United prescription with refills, so that Medicaid could be billed for States v. DeSantis, 134 F.3d 760, 764 (6th Cir. 1998)). additional visits. (Patel, Tr. 25-26.) Staff members testified that when business was slow, defendant solicited patients from the street and billed them as office visits. (Justice, Tr. No. 02-6013 United States v. Raithatha 13 14 United States v. Raithatha No. 02-6013

183.) Staff members testified that people would come into tendency to influence, or is capable of influencing, the federal the office for purposes unrelated to receiving medical care, agency.” Id. at 361 (citations omitted). such as paying debts to defendant, and “before they left, they were a patient,” and billed as a patient. (Amon, Tr. 114.) Defendant argues there is insufficient evidence to sustain Taking this evidence in the light most favorable to the his conviction for making false statements or causing false prosecution, a reasonable juror could have found defendant statements to be made to the DOL and the INS, regarding the guilty of defrauding or attempting to defraud salaries of seven foreign physicians employed by MAHC. Medicare/Medicaid, as charged in Counts 2 and 5. For each foreign physician hired, MAHC was required to file an LCA with the DOL and an I-129 form with the INS stating Defendant also argues there is insufficient evidence to the employee’s prevailing wage salary. The evidence sustain his conviction for Count 3, defrauding demonstrated that the submitted LCAs and I-129 forms Medicare/Medicaid by including personal expenses in a cost overstated the salary MAHC actually paid the foreign report submitted to Medicare/Medicaid for the McKee Clinic physicians. Defendant’s payroll manager testified that she in 1997. The cost report included expenses for defendant’s signed the LCAs and I-129 forms at defendant’s direction. personal residence totaling $50,393.53. Though defendant (Bowling, Tr. 13.) did not sign the report, he was given an opportunity to review it before it was submitted. (Lynn, Tr. 131-132.) When In addition, several foreign physicians testified to defendant purchased a TV and stereo system for his residence defendant’s role in making contracts with the physicians, after he instructed the salesman to issue the invoice to the McKee the forms had been submitted to the DOL and the INS, that Clinic, as if the items had been purchased by the clinic and reduced the physician’s salary from that stated on the not for defendant’s personal use. (Miller, Tr. 203; Ware, submitted forms. (Dani, Tr. 37-39.) One physician testified Tr.198.) Taking this evidence in the light most favorable to that defendant threatened her with visa problems when she the prosecution, a reasonable juror could have found that questioned having to sign an amendment to her original defendant intended to defraud Medicare/Medicaid by contract (for $110,000/year) which reduced her salary to including personal expenses on the cost report submitted to $70,000/year. (Ravisankar, Tr. 6-9.) Taking this evidence in Medicare/Medicaid. the light most favorable to the prosecution, a reasonable juror could have found that defendant was guilty of intentionally 3. Making False Statements (Counts 6-20) – causing false statements to be made to the DOL and INS. 18 U.S.C. §1001 Defendant argues that his conviction on Counts 7 and 15, In order to establish a violation of 18 U.S.C. §1001, the charging defendant with causing false statements to be made Government must demonstrate that: (1) the defendant made to the DOL and INS about one of the foreign physicians, a statement; (2) the statement is false or fraudulent; (3) the Dr. Patel, should be reversed. Defendant contends that the statement is material; (4) the defendant made the statement forms submitted by the government are forms which were knowingly and willfully; and (5) the statement pertained to an actually prepared and submitted for Dr. Divya Joshi, and not activity within the jurisdiction of a federal agency. United for Patel. With regard to defendant’s contention as to Counts States v. Logan, 250 F.3d 350, 361 (6th Cir. 2001) (citations 7 and 15, the record is abundantly clear that such false omitted). A statement is “material” if it “has the natural statements were made. Defendant’s contention that certain No. 02-6013 United States v. Raithatha 15 16 United States v. Raithatha No. 02-6013

forms referring to another physician were submitted clarified that “intended loss” means “the pecuniary harm that mistakenly for Patel is therefore harmless error. was intended to result from the offense” and “includes intended pecuniary harm that would have been impossible or B. AMOUNT OF LOSS ATTRIBUTED TO unlikely to occur.” §2B1.1, comment. n.3(A)(ii) (emphasis DEFENDANT FOR SENTENCING added).1 1. Standard of Review 2. Loss Calculation A court of appeals reviews de novo a sentencing court’s In this case, the only amounts of loss attributed to interpretation of the Sentencing Guidelines, but must uphold defendant, and thus at issue on appeal, are $206,461.43 for a sentencing court’s factual findings unless “clearly Counts 1 and 4 and $50,393.53 for Count 3. Defendant erroneous.” United States v. Ware, 282 F.3d 902, 907 (6th argues the loss calculation for Counts 1 and 4 adopted by the Cir. 2002). A factual finding is “clearly erroneous” when district court is based on speculation. Defendant argues that “the reviewing court on the entire evidence is left with the there is no evidence that he ordered “all” encounter forms to definite and firm conviction that a mistake has been be up-coded, that all of the encounter forms in the committed.” Id. (citing United States v. U.S. Gypsum Co., Government’s sample were not up-coded, and that there was 333 U.S. 364, 395 (1948)). never an order to up-code new patient forms or to up-code defendant’s encounter forms and that therefore neither of A sentencing court “need not determine the amount of loss these should have been included in the loss calculation. with precision.” United States v. Kohlbach, 38 F.3d 832, 835 Defendant argues the intended loss calculation as to Count 3 (6th Cir. 1994) (citations omitted). A sentencing court “need is clearly erroneous because it was allegedly impossible for only make a reasonable estimate, given the available him to inflict the amount of loss for which the district court information.” United States v. Guthrie, 144 F.3d 1006, 1011 held him accountable. (6th Cir. 1998). A defendant who challenges such a computation must carry the burden of demonstrating “that the Unlike the contentions of defendant as to evidence court’s evaluation of the loss was not only inexact but outside regarding his conviction, his contentions regarding Counts 1, the universe of acceptable computations.” United States v. 4, and 3 relate only to sentencing procedures. Defendant was Tardiff, 969 F.2d 1283, 1288 (1st Cir. 1992) (cited in found guilty of the charges in these counts and our inquiry Kohlbach, 38 F.3d at 841). goes only to the amount of loss for which defendant may be held accountable. For sentencing purposes, a defendant will be held accountable for the actual or intended loss to a victim, whichever is greater, or a combination thereof. United States v. Wade, 266 F.3d 574, 586 (6th Cir. 2001). See also U.S.S.G. §2F1.1, comment. n.7. “[S]o long as the intended 1 The 200 1 am endments consolidated the Guid elines for Theft, loss is supported by a preponderance of the evidence, the §2B1.1, Property Destruction, §2B1.3 and Fraud, §2F1.1, into one district court may use it in reaching the appropriate offense guideline, §2B 1.1 (Theft, Property Destruction, and Fraud). The revised level.” United States v. Logan, 250 F.3d 350, 371 (6th Cir. §2B 1.1 guideline, though not app licable at the time o f defendant’s 2001). In 2001, amendments to the Sentencing Guidelines sentencing, clarified the meaning o f “intende d loss” referred to in § 2F1 .1 and thus should be taken into co nsideration b y this Court. No. 02-6013 United States v. Raithatha 17 18 United States v. Raithatha No. 02-6013

As to the loss calculation regarding Counts 1 and 4, With regards to Count 3, defendant argues that no loss defendant contends there was no evidence that any order was should be attributed to him because he contends that it was given to up-code new patient CPT codes (the “9920-" series). impossible for him to have caused Medicare/Medicaid any The record shows otherwise: loss by including the $50,393.53 in personal expenses on the cost report because his clinic had already reached its Q. “Okay. Now, did he also give you orders to up-code maximum reimbursement rate. (Appellant, Br. 62.) a 99201 code to a higher-paying code?” However, loss can be attributed to a defendant based on a A. “We was [sic] told to up-code any office visit like finding of actual loss or intended loss, and a finding of that.” intended loss is not limited to those losses possible to inflict, or those gains possible for a defendant to achieve. U.S.S.G. Q. “Okay. All Right. So he told you to code a 99201 up to §2B1.1, comment. n.3(A)(ii). the highest level that you could do, 99203?” A. “Yes.” There was sufficient evidence to find that defendant intended to mislead Medicare/Medicaid as to the $50,393.53 (Lainhart, Tr. 40-41.) Defendant suggests that his encounter in personal expenses included on the cost report. It is unclear forms were erroneously included in the loss calculation. what difference defendant anticipated the inclusion of his However, the Government stated unequivocally at personal expenses would make in the amount defendant’s defendant’s sentencing hearing that “Dr. Raithatha’s forms clinic was reimbursed for 1997, or in future reimbursement were not counted in the encounter forms for the 1999 figures rates. However, where a defendant seeks to fraudulently pass that were given to the probation office.” (Grise, Sentencing, off an amount of personal expenses as legitimate patient- Tr. 74.) related expenses, as in the present case, logic dictates that a defendant be held accountable for intending to cause the In addition, the selection of the ten most frequently billed amount of loss about which he intentionally lied. Therefore, insurance companies to provide figures upon which to it was not clearly erroneous for the district court to hold compute average pay differences between CPT code defendant accountable for an intended loss of $50,393.53 as categories was reasonable. Furthermore, defendant’s to Count 3. argument that all of the encounter forms in the Government’s sample were not up-coded goes to actual loss, and therefore IV. CONCLUSION does not disturb the district court’s calculation of intended loss. Finally, the use of the 1999 intended loss amount to For the above reasons, the conviction and sentence of the calculate the lesser intended loss amounts for 1998 and 1997 district court is AFFIRMED. was reasonable. Therefore, it was not clearly erroneous for the district court to hold defendant accountable for an intended loss of $206,461.43 as to 1 and 4. Defendant has failed to demonstrate that the loss calculation as to Counts 1 and 4 was “outside the universe of acceptable computations.” Kohlbach, 38 F.3d at 841.