US v. Galati

Filing

OPINION issued by Jeffrey R. Howard, Chief Appellate Judge; Sandra L. Lynch, Appellate Judge and Kermit V. Lipez, Appellate Judge. Published. [15-1322]

Case: 15-1322

Document: 00117122031

Page: 1

Date Filed: 02/24/2017

Entry ID: 6072016

United States Court of Appeals
For the First Circuit
No. 15-1322
UNITED STATES OF AMERICA,
Appellee,
v.
MICHAEL J. GALATIS,
Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Douglas P. Woodlock, U.S. District Judge]

Before
Howard, Chief Judge,
Lynch and Lipez, Circuit Judges.

Robert L. Sheketoff for appellant.
Kelly Begg Lawrence, Assistant United States Attorney, with
whom Carmen M. Ortiz, United States Attorney, was on brief, for
appellee.

February 24, 2017

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LYNCH, Circuit Judge.

Date Filed: 02/24/2017

Entry ID: 6072016

Michael Galatis was convicted by

a jury of conspiracy to commit healthcare fraud, in violation of
18 U.S.C. § 1349; healthcare fraud, in violation of 18 U.S.C.
§ 1347; and money laundering, in violation of 18 U.S.C. § 1957.
The fraudulent activity took place from about January 1, 2006 to
about October 2, 2012 and it involved billing Medicare for $27.6
million

in

false

claims,

about

$19.9

million

of

which

the

government paid out to Galatis' company, At Home VNA ("AHVNA").
Galatis appeals his convictions, arguing there was trial
error. He particularly argues that the district court committed
reversible error by (1) allowing Galatis' associate to testify
that the associate had pled guilty to one count of healthcare fraud
arising from the same scheme, without sua sponte giving a limiting
instruction;

(2)

permitting

certain

lay

and

expert

witness

testimony, which Galatis characterizes as concerning the meaning
of terms in the applicable Medicare regulations; and (3) denying
Galatis'

preferred

jury

instruction

as

to

the

meaning

of

a

particular certification requirement in the relevant Medicare
provisions.

We affirm the convictions.

There is no appeal from

the sentence.
I.
Home health services are eligible for coverage under
Medicare if the individual who is the beneficiary of the services
is (1) "confined to the home" (the "homebound" requirement);

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(2) "under the care of a physician who establishes the plan of
care"; (3) in need of at least one of a number of enumerated
"skilled services as certified by a physician"; (4) "under a plan
of

care"

as

specified

under

the

relevant

regulation;

and

(5) receiving services "furnished by, or under arrangements made
by, a participating [home health agency]."

42 C.F.R. § 409.42.

In order to prove a beneficiary's eligibility for Medicare payment
for home health services, providers must submit two forms to the
U.S. Department of Health and Human Services ("HHS").

The first

is a checklist known as an OASIS Form, a "voluminous document"
that "details the beneficiary's condition."
In the second document, a Form 485 Health Certification
and Plan of Care ("Form 485"), a physician certifies under pain of
"fine, imprisonment, or civil penalty under applicable Federal
laws," that the beneficiary meets the requirements for Medicare
coverage of home health services.

For any care starting on or

after April 1, 2011, the Form 485 also requires a physician to
certify

in

a

separate

encounter" has occurred.
meeting

between

a

addendum

that

a

"face-to-face

patient

This requires that there be an in-person

physician

or

a

qualified

non-physician

practitioner and the beneficiary, which must be "related to the
primary reason" for the beneficiary's home health services.
Michael Galatis set up and owned MJG Management, a home
health agency, which operated under the name At Home VNA.

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The

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prosecution

presented

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evidence

Date Filed: 02/24/2017

from

AHVNA

nurses

Entry ID: 6072016

and

AHVNA's

Medical Director that AHVNA had recruited individual patients by
sending nurses to host "wellness clinics" at assisted living
centers and public housing facilities, where the nurses provided
services like flu shots, and in doing so collected insurance
information and "convinc[ed residents] to sign on with [AHVNA]."
Nurses would also sometimes recruit patients door-to-door.

AHVNA

nurses testified that a patient's insurance coverage was the only
criterion they used to determine whether that person was eligible
to be signed up for AHVNA's services.

Specifically, nurses were

instructed to only sign up patients who were on Medicare.
These nurses also testified that Galatis and/or Janice
Troisi, his former colleague and codefendant,1 instructed the
nurses to fill out OASIS Forms inaccurately, telling the nurses
never to score a patient as a "zero" in the "activities of daily
living" category (a zero signifying full independence and no need
for home health services); never to check a box indicating that a
patient was "alert and oriented times three" (signifying that the
patient

was

extremely

alert

and

1

not

in

need

of

home

health

Troisi fell ill during trial and the district court
declared a mistrial as to her. She was later convicted after a
bench trial and sentenced to 36 months in prison, three years of
supervised release with special conditions, and a special
assessment of $1,100. We decide her appeal in a companion case,
United States v. Troisi, No. 16-1046, ___ F.3d ___ (1st Cir. Feb.
24, 2017), issued on the same date as this opinion.

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services); and to write their nurses' notes using words that made
the care provided appear like skilled nursing services, even when
it was not, and words that emphasized the patients' need for care.
The nurses testified that Galatis and/or Troisi would review the
OASIS Forms and nurses' notes at regular meetings and would force
nurses to "correct" materials that did not make a sufficiently
persuasive

case

for

the

patients'

eligibility

and

need

for

services.

Further, Galatis and Troisi would demand that nurses

continue visits to patients whom the nurses had recommended be
discharged, or would reassign those patients to new nurses as
patients in continuing need of AHVNA's services.
Dr.

Spencer

Wilking,

AHVNA's

Medical

Director,

responsible for signing the Form 485s submitted to HHS.

was
Dr.

Wilking testified that in the first year after he joined AHVNA,
around 2006, he conducted visits with patients before completing
these forms.

But beginning in 2007, as the business expanded, Dr.

Wilking began signing the forms without conducting the necessary
visits or any other review.

By 2011, Dr. Wilking was signing

approximately one hundred and fifty Form 485 certifications at
each weekly AHVNA staff meeting.
Starting

in

2007,

Dr.

Wilking

was

paid

a

monthly

consulting fee -- initially $2,500 per month, and then $3,500 per
month as AHVNA's patient population increased -- for his services
to AHVNA.

Dr. Wilking admitted that he knew he was engaging in

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misconduct and said he expressed concern about this to Galatis
"three or four times."

Dr. Wilking "chose to ignore" his own

concerns and continued to sign the Form 485 certifications "because
[he] was being paid quite a lot of money to do so."

He estimated

he had certified and re-certified thousands of AHVNA patients
between 2006 and 2012 (including the ten patients named in the
indictment), none of whom he had in fact seen or could guarantee
actually needed home health services.

Before Galatis' trial, Dr.

Wilking was separately indicted and pled guilty to one count of
Medicare fraud arising from his conduct at AHVNA.
Galatis and Troisi were indicted in September 2013.
Galatis was charged with conspiracy to commit healthcare fraud,
see 18 U.S.C. § 1349, eleven counts of healthcare fraud, see id.
§ 1347, and seven counts of money laundering, see id. § 1957.2

At

the end of a sixteen-day trial, the jury convicted Galatis on all
submitted counts.

The district court sentenced him to 92 months

in prison and three years of supervised release, and ordered him
to pay a $50,000 fine and $7,000,000 in restitution.

This appeal

from his convictions followed.
II.
Galatis does not dispute the sufficiency of the evidence
supporting his convictions, but does make three claims that the

2

The court eventually dismissed Count 9, one of the fraud
counts, on the government's motion.

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district court committed reversible error at trial.

Entry ID: 6072016

He argues

that the district court should have given sua sponte a limiting
instruction as to Dr. Wilking's testimony regarding Dr. Wilking's
guilty plea.

He argues that the court wrongly permitted testimony

interpreting

the

regulations.

And he argues that the district court erroneously

legal

meaning

of

the

applicable

Medicare

rejected his preferred jury charge regarding the face-to-face
encounter regulation.

None of these claims succeeds.

We address

each in turn.
A. Admission of Evidence of Dr. Wilking's Guilty Plea
Galatis argues that the district court erred by not
giving a limiting instruction after admitting evidence of Dr.
Wilking's guilty plea and that this purported error and questions
from the government permitted the jury impermissibly to use Dr.
Wilking's plea as substantive evidence of Galatis' guilt.
never

requested

that

the

district

court

give

limiting the use of Dr. Wilking's guilty plea.
claim is reviewable for at most plain error.

an

Galatis

instruction

Accordingly, his

See United States v.

Rodriguez, 759 F.3d 113, 121 (1st Cir. 2014).

Galatis must

demonstrate "(1) that an error occurred (2) which was clear or
obvious and which not only (3) affected the defendant's substantial
rights, but also (4) seriously impaired the fairness, integrity,
or public reputation of judicial proceedings."

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United States v.

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Duarte, 246 F.3d 56, 60 (1st Cir. 2001).

Entry ID: 6072016

Galatis cannot meet this

standard.
During his testimony, Dr. Wilking was asked by the
prosecutor, "Did anything happen to you as a result of your
involvement with At Home VNA?"

After the district court overruled

an objection from defense counsel, Dr. Wilking answered that he
had "pleaded guilty to a count of Medicare fraud," and, in response
to further questioning, said that he had entered into a plea
agreement.

The prosecution moved to admit a copy of Dr. Wilking's

plea agreement into evidence.

The district court initially stated

that it would not admit a copy of the plea agreement itself, but
after

defense

counsel

affirmatively

stated

that

he

had

"no

objection" to the document's admission, the court allowed the plea
agreement into evidence.
Dr. Wilking further testified that, pursuant to the plea
agreement, he had "agreed to tell the truth" in the hope of a
reduced sentence and that, if he did not testify truthfully, he
would "lose [the benefit of] the agreement and [] m[ight] be
subject to a charge of perjury."

He then testified, in response

to the prosecutor's question, "Can you describe in your own words
what it is that you did that resulted in your guilty plea?", about
his role in the Medicare-fraud scheme at AHVNA.
Then, when asked by the prosecutor about who else was
involved in the fraud, Dr. Wilking stated that Galatis and Troisi

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had participated in the fraud and that Galatis "was the director
. . . and the planner and the executor of the fraud."

Defense

counsel objected to this answer, citing a lack of foundation, and
the

court

overruled

the

objection,

stating

"[i]t

c[ould]

be

developed in testimony . . . and then on cross-examination."
Defense

counsel

cross-examined

Dr.

Wilking

about

his

plea

agreement and asked him whether he was testifying because of the
benefit he would receive from the government for cooperation.
The prosecutor argued in closing that "Dr. Wilking[]
pleaded guilty to health care fraud.

He's taken responsibility

for his part in this fraud scheme," and emphasized that while Dr.
Wilking had entered a plea agreement, that agreement was contingent
on truthful testimony.

The prosecutor also argued:

And Dr. Wilking testified, Yeah, I committed a fraud,
but he told you that he didn't do it alone. He told you
that Mike Galatis ran the show, that Janice Troisi pushed
the nurses to enroll those patients, and [that] he was
the one who signed those forms. Every one of them did
their part, a three-legged stool.
Defense counsel, referencing the plea agreement, argued in closing
that Dr. Wilking had testified against Galatis out of self-interest
and characterized Dr. Wilking as the "rotten apple" of AHVNA.

The

defense did not ask for instructions limiting the use of Dr.
Wilking's plea.
At oral argument on appeal, defense counsel maintained
that our opinions in United States v. Dworken, 855 F.2d 12 (1st

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Cir. 1988), and United States v. Foley, 783 F.3d 7 (1st Cir. 2015),
create a per se rule obliging the district court to give a limiting
instruction when a co-conspirator's guilty plea is admitted into
evidence.

The limiting instruction would have advised the jury

not to use Dr. Wilking's plea as evidence of Galatis' guilt.
The cases do not support Galatis' proposition.

Dworken

involved an improper closing argument, which we reviewed for
harmless error.

855 F.2d at 29–32.

We did not consider whether

limiting instructions, which were in fact given in that case, must
be given sua sponte.

Id.

In Foley, we found that the district

court had not abused its discretion by admitting, accompanied by
a

limiting

instruction,

testimony

from

an

associate

defendant regarding that associate's guilty plea.
18.

of

the

783 F.3d at 17–

Again, the case said nothing about requiring a district court

sua sponte to provide a limiting instruction.

The absence of a

limiting instruction here, then, was not error.
In

any

event,

Galatis

cannot

demonstrate

that

the

absence of a limiting instruction "affected [his] substantial
rights" and "seriously impaired the fairness, integrity, or public
reputation of judicial proceedings." See Duarte, 246 F.3d at 60.
Galatis

does

not

show

that

the

government

in

fact

used

Dr.

Wilking's guilty plea as substantive evidence of Galatis' guilt.
The two moments in the trial to which Galatis points do not bear
out his claim.

The first is when Dr. Wilking testified about

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Galatis and Troisi's involvement in the scheme.

Entry ID: 6072016

This was proper

testimony by one participant in the fraud about other participants.
The second was when the prosecutor referenced Dr. Wilking's guilty
plea

during

closing

arguments

and

said

responsibility for his part in this scheme."

"[h]e's

taken

This was an entirely

proper use of Dr. Wilking's admission of guilt to strengthen Dr.
Wilking's credibility and to blunt uses of the guilty plea by the
defense to attack his credibility.

See United States v. Torres-

Colón, 790 F.3d 26, 30 (1st Cir.), cert. denied, 136 S. Ct. 185
(2015).
Galatis has not demonstrated that the lack of a limiting
instruction made any difference to the outcome of the trial.
government presented overwhelming evidence against him.

The
This

evidence included testimony from AHVNA patients, AHVNA nurses, and
primary care providers that showed that AHVNA plainly had not met
the requirements for home health services under Medicare and that
Galatis and Troisi had falsified the necessary forms to make it
appear as if the patients were eligible.
Forms

and

Form

485s,

submitted

by

The jury reviewed OASIS

AHVNA

to

HHS,

that

made

assertions flatly contradicted by the testimony of AHVNA patients,
their nurses, and their primary care providers.

Dr. Wilking

testified that he had routinely certified at the weekly staff
meetings that patients were eligible under Medicare, even though
he had not actually met with or examined the patients, and that

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Galatis had known this.

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The lack of a limiting instruction as to

Dr. Wilking's guilty plea did not affect the jury's verdict.

See

Torres-Colón, 790 F.3d at 31–32 (finding no plain error when there
was "overwhelming evidence" to convict defendant).
B. Admission of Witness Testimony about Medicare Regulations and
Jury Charge
We

put

this

next

set

of

challenges

in

context.

Generally, it is up to the judge to instruct the jury on the
meaning of the law, including law set forth in statutes and
regulations.

See United States v. Prigmore, 243 F.3d 1, 17–18 &

n.2 (1st Cir. 2001); Nieves-Villanueva v. Soto-Rivera, 133 F.3d
92, 99 (1st Cir. 1997).

The trial court did so here in the final

instructions and limited the witness testimony.
the judge got it wrong.

Galatis claims

We will return to that topic after

addressing claims that the trial judge erred by allowing others,
in testimony, to address the law, which we review for abuse of
discretion, see United States v. Weekes, 611 F.3d 68, 70 (1st Cir.
2010).
1. Lay Witnesses
The judge allowed lay witnesses -- an AHNVA patient, two
primary care providers, and three AHVNA nurses -- to testify as to
their understandings of certain Medicare terms such as "skilled
nursing services" and "homebound" in describing what they had done

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and why.3

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The defense objected at trial, but the testimony was

perfectly permissible "lay experiential expertise . . . 'founded
on personal knowledge and susceptible to cross-examination,'"
United States v. Vega, 813 F.3d 386, 394 (1st Cir. 2016) (quoting
United States v. Ayala-Pizarro, 407 F.3d 25, 28 (1st Cir. 2005)),
which is admissible under Federal Rule of Evidence 7014 as "the
product of reasoning processes familiar to the average person in
everyday life," Vega, 813 F.3d at 394 (quoting United States v.
Garcia, 413 F.3d 201, 215 (2d Cir. 2005)).
The

challenged

lay

testimony

helped

the

jury

to

understand what AHVNA patients, nurses, and primary care providers
had observed and what they had been told to do.

It also was

relevant to refute Galatis' articulated defense at trial that he
was trying, in good faith, to comply with the regulations.

The

testimony never purported to tell the jury what the law meant.
See id. at 395 (distinguishing permissible lay witness testimony

3

For example, Nurse Julissa Batres-Barahona was asked by
the prosecutor, "And roughly how many of your patients do you think
needed skilled nursing services?", to which she responded, "I don't
think any of them did."
Nurse Lety Rodasologaistoa was asked,
"The patients you were seeing, were those patients homebound?", to
which she responded, "By what I know now, they weren't."
4

Rule 701 permits lay opinion testimony if it is
"(a) rationally based on the witness's perception; (b) helpful to
clearly understanding the witness's testimony or to determining a
fact in issue; and (c) not based on scientific, technical, or other
specialized knowledge within the scope of Rule 702 [which governs
expert testimony]." Fed. R. Evid. 701.

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from improper lay witness testimony in which witnesses "lend[ed]
the jury their knowledge of Medicare law to provide definitive
commentary on the matter").
the

AHVNA

nurses,

the

And during the testimony of one of

district

court,

in

overruling

defense

counsel's objection, explained to the jury that although the AHVNA
nurses' testimony illustrated their perception of the patients'
qualifications under the regulations, the legal significance of
the regulations would be explained by the court.

There was no

abuse of discretion in allowing the testimony.
2. Expert Witness
Galatis also objected to the testimony of an expert
witness, Stephanie Fox, a Medicare-fraud investigator.

He focuses

his attack on three passages in Fox's testimony: her assertion
that a physician signing a "plan of care" would normally have an
"intimate relationship with th[e] beneficiary"; her explanation of
what constitutes "skilled nursing services"; and her discussion of
the relationship between and hierarchy among the federal Social
Security Act, the Medicare regulations in the Code of Federal
Regulations, and the Medicare Policy Manual.
Fox's testimony was admissible under Federal Rule of
Evidence 702.5

The district court made clear during a pretrial

5

Rule 702 specifies that a witness may testify as an
expert if "(a) the expert's scientific, technical, or other
specialized knowledge will help the trier of fact to understand
the evidence or to determine a fact in issue; (b) the testimony is
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ruling that Fox could "introduce to the jury the regulatory regime
that is out there," but that she could not "opine about [the
relevant] provisions" or "be someone who comes in and says when
people do this [then it] is fraud."

Fox never transgressed these

proper limitations on her testimony.
Fox never purported to offer an interpretive gloss on
the legal meaning of the regulations.

Her explanation of "skilled

nursing services" hewed closely to the letter of the regulations
themselves.

Her

testimony

about

the

relationship

between

physicians and patients -- and about the hierarchy among the
statute, regulations, and policy manual -- was based on her
professional experience as a Medicare investigator, not on legal
expertise.

She never applied the regulations to the facts of the

case or suggested that any actions by AHVNA had violated the law.
Her testimony aided the jury in understanding the regulatory
framework

without

displacing

the

district

court's

role

in

instructing the jury as to that framework's legal significance.
C. Jury Charge
Since we have rejected Galatis' attacks on the admission
of lay and expert testimony, we leap over the claims that the
district court somehow compounded any such error in the jury

based on sufficient facts or data; (c) the testimony is the product
of reliable principles and methods; and (d) the expert has reliably
applied the principles and methods to the facts of the case." Fed.
R. Evid. 702.

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instructions and get to the heart of the matter.

Entry ID: 6072016

We also reject

the argument, as contradicted by the record, that the jury was not
told the witness testimony was not the law.
An important theory of the defense was that Galatis had
made a good-faith, though unsuccessful, attempt at compliance with
the Medicare provisions.

Specifically, the defense argued in its

closing statement that Galatis had attempted to satisfy the faceto-face

encounter

requirement

by

sending

"letters

physicians [who] might have seen the patient."6

to

other

Galatis now

challenges the district court's refusal to give his preferred
instruction on the face-to-face encounter requirement.

He cites

the principle that defendants are "entitled to have their intent
assessed in the light of the interpretation of the [relevant law]
that

is

most

congenial

to

their

case

theory

and

yet

also

objectively reasonable." Prigmore, 243 F.3d at 17. Galatis argues
that the instruction the district court chose to give violated
this principle by undermining his theory that he had not intended
to violate the regulation. Not so. As the district court properly

6

Defense counsel did assert during opening statements
that the face-to-face encounter regulation "called for that visit
to be conducted and [stated that it] can be conducted by the nurses
and other practitioners who are the eyes and ears of the
physician." But Galatis does not assert in his appellate brief
that his good-faith compliance theory relied on this aspect of the
regulations, nor does he suggest on appeal that he presented any
evidence that he attempted to comply with the regulations by having
qualified non-physicians perform face-to-face encounters.

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ruled, because Galatis presented no evidence to support this
theory, there was no error in the refusal to give his instruction.
During the charge conference, defense counsel asked that
the

court,

when

instructing

the

jury

on

the

"face-to-face

encounter" requirements of the relevant regulations, include all
the

types

of

personnel

qualified

to

perform

face-to-face

encounters, including qualified non-physician personnel.
C.F.R § 424.22(a)(1)(v)(A)(1)-(5).

See 42

The court refused, stating

that there was no evidence that any qualified non-physicians had
performed

face-to-face

encounters,

and

it

rejected

defense

counsel's suggestion that some AHVNA nurses could be qualified.
The next day, before the jury charge, defense counsel again
requested that the district court list all personnel qualified to
make a face-to-face encounter.

The district court again refused

and stated that it would not "charg[e] the jury about things that
[we]ren't relevant to the case."
In its charge, the court directed the jury to the
Medicare Policy Manual, which was in evidence, and noted that the
Manual "outlines in chapter and verse the various elements of what
you have to do to get entitlement to [] Medicare benefits."

The

court then gave a "short form" explanation of these requirements,
which included the following:
In addition, after April 1, 2011, the establishment of
a plan of care, as relevant to the evidence developed in
this case, must have been the result of a face-to-face

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encounter related to the primary reason for the home
health care services, between either the certifying
physician or a physician who has cared for the patient
in an acute or post-acute facility. The encounter must
have occurred within 90 days prior to the start of care
or within 30 days after the start of care. The encounter
must be documented by the certifying physician in a
distinct section of the Form 485 signed by the certifying
physician.
Defense counsel then again objected to the omission of qualified
non-physician personnel from the instruction on the face-to-face
encounter requirement, and the district court again denied the
objection.
We review de novo properly preserved claims of legal
error based on the district court's refusal to give a requested
instruction.

United States v. Figueroa-Lugo, 793 F.3d 179, 191

(1st Cir.), cert. denied, 136 S. Ct. 559 (2015).7
refused

requested

instructions

succeed

where

Challenges to
the

requested

instruction was "(1) substantively correct; (2) not substantially
covered

elsewhere

in

the

charge;

and

(3)

[related

to]

a

sufficiently important point that the failure to give it seriously
impaired the defendant's ability to present his or her defense."
Prigmore, 243 F.3d at 17.

7

The government argues that Galatis has forfeited or
waived this claim because he argued to the district court that his
preferred instruction was appropriate because AHVNA nurses were in
fact qualified non-physicians under the requirement, not because
he had made a good-faith effort at compliance by contacting other
physicians.
We need not decide this issue, because even if
properly preserved, the argument fails.

- 18 -

Case: 15-1322

Document: 00117122031

Galatis

cannot

Page: 19

meet

this

Date Filed: 02/24/2017

standard.

His

Entry ID: 6072016

good-faith

theory rested on his claim that he had attempted to contact other
physicians who might have seen AHVNA's patients.

He presented no

evidence that qualified non-physician personnel had performed
face-to-face encounters or that he had had a factual basis to
believe that to be the case.

See United States v. Lopez-Lopez,

282 F.3d 1, 18 (1st Cir. 2002) (explaining that a defendant's right
to a preferred instruction "extends only to those defenses for
which there is sufficient evidentiary support").
error in the district court's instruction.
III.
We affirm Galatis' convictions.

- 19 -

There was no