United States v. Taylor

16 F. App'x 439
Procedural entryThis page is a short order in United States v. Taylor. Read the opinion of the Court — 9 F. App'x 465
Court of Appeals for the Sixth Circuit·Decided August 1, 2001·No. Nos. 00-3376, 00-3377·Published

Opinion

JONES, Circuit Judge.

On June 3, 1999, appellants-defendants Rosalyn Taylor (“Taylor”) and Mary Lu Myers (“Myers”) were charged in a thirty count indictment. Count one alleged that they conspired to make and use materially false writings and documents in connection with the delivery and payment of health care services in violation of 18 U.S.C. §§ 1101 and 1035. Counts two through thirty alleged that Taylor and Myers knowingly and willfully made materially false writings in a matter involving health care benefit programs in violation of 18 U.S.C. §§ 1035 and 2. Taylor and Myers entered into separate plea agreements [440]*440whereby they each pled guilty to count two of the indictment. They were sentenced to five months imprisonment, three years of supervised release (with a special condition that the first five months be on home confinement with electronic monitoring), and were ordered to pay restitution in the amount of $34, 034.00. On appeal, the defendants contend that the district court erred when it enhanced their sentences for causing a loss of more than $20,000 pursuant to United States Sentencing Guideline (“U.S.S.G.”) § 2Fl.l(b)(l) and held them jointly and severally hable to pay $34,034.00 in restitution. For the reasons stated below, we AFFIRM the defendants’ sentences.

I. Facts

Defendants Rosalyn Taylor and Mary Lu Myers were the co-administrators of the Morgan County Home Health Agency (“the Agency” or “MCHHA”), which provided nursing and hygienic services to home bound persons in Morgan County, Ohio. As co-administrators, Taylor and Myers jointly directed the daily activities of numerous nurses, home health aides and support staff who provided home health services to patients. They were also responsible for the billing of such services, hiring recommendations, and reporting the activities of the MCHHA to the Morgan County Commissioners, who operated the Agency.

Beginning on or about January 1, 1995, Taylor and Myers directed MCHHA employees to alter nursing notes and eliminate any reference to improvement of their patients’ condition in order to assure that these patients would remain eligible for Medicare and Medicaid. Taylor and Myers also directed employees to perform both skilled nursing and home health aide services in a single visit but to falsely document that they made two separate visits. This “double billing” was done in order to circumvent Medicare and Medicaid regulations that allow only one reimbursement per visit regardless of how many services are performed.

On June 3,1999, Taylor and Myers were charged in a thirty count indictment that alleged that they conspired to make and use materially false writings and documents in connection with the delivery of and payment of health care services in violation of 18 U .S.C. §§ 1001 and 1305, and that they knowingly and willfully made materially false writings in a matter involving health care benefit programs, in violation of 18 U.S.C. §§ 1035 and 2.

After initially pleading not guilty, Taylor and Myers entered into separate plea agreements in which they agreed to plead guilty to count two of the thirty count indictment. On October 4, 1999, the defendants pled guilty before the district court. The court stated that

The parties agree that pursuant to Sentencing Guideline Section 2Fl.l(b)(l), the relevant conduct attributable to them is more than 320,000.00 but less than $40,000.00. The parties understand that this is not binding on the court and that the final determination concerning the amount to be considered as relevant conduct rests with the court.

Def. Consol. Br. at 11.

Thereafter, Presentence Reports were prepared for both defendants and filed with the district court. The Presentence Reports found that the defendants’ fraudulent activity involved over 1,500 instances of fraudulent billing and caused Medicare and Medicaid to pay $34,034.00 for services that were not rendered or for which the agency was not eligible for reimbursement. The Presentence Reports recommended that the defendants’ base offense levels be enhanced by four points pursuant to U.S.S.G. § 2F1.1(b)(1)(E) for causing a loss in excess of $20,000.00. J.A. at 131, 170. The Reports also recommended that, pursuant to 18 U.S.C. § 33663(a), the de[441]*441fendants be ordered to pay restitution in the amount of $34,034.00.

At sentencing, the defendants argued for a downward departure on the grounds that the $34,034.00 loss figure overstated the seriousness of their offense.1 The defendants noted that the Presentence Report figure was based on a Medicaid loss of $2,574.00 and a Medicare loss of $31,460.00. Although the defendants did not contest the Medicaid loss, they claimed that the Medicare loss did not reflect the actual loss to Medicare.

According to the defendants, the Morgan County Home Health Agency was a not-for-profit governmental home health care agency operating through a Medicare intermediary. Each year, the Medicare intermediary established cost limits and a charge per service for each type of service offered by the Agency. When the Agency provided services, it billed Medicare and Medicare reimbursed the Agency according to a fixed cost per visit. The defendants claimed that since Morgan County is a poor county that does not have excess money to spend on home health care, the Home Health Agency was forced to rely almost entirely on Medicare and Medicaid reimbursements. They asserted that this arrangement presented a serious problem for the Home Health Agency. Given that the federal Medicare and Medicaid reimbursements did not arrive until long after the services were provided, the Agency was overwhelmed by day-to-day expenses including the salaries of its employees. The defendants explained that they fabricated health care visits and overbilled Medicare in order to generate the short-run cash flow needed to meet daily expenses.

However, the defendants argued that this fraudulent billing did not cause Medicare to suffer any long-term losses because Medicare funding is ultimately based on the Agency’s annual costs, rather than the number of visits that they billed.2 According to the defendants, the Agency filed an Actual Cost Report with Medicare at the end of every fiscal year. If the Agency’s annual costs were less than the amount that it had received from Medicare during that year, Morgan County would compensate Medicare for the overpayment.

Notwithstanding this argument, the district court found that the defendants admitted that they were responsible for over 1,500 instances of fraudulent billing and adopted the $34,034.00 figure recommended in the Presentence Reports. Accordingly, the district court enhanced the defendants’ offense levels by four points pursuant to U.S.S.G.

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United States v. Taylor, 16 F. App'x 439 (6th Cir. 2001).

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