US v. Janati

Filing 920070801

Opinion

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 05-4255

UNITED STATES OF AMERICA, Plaintiff - Appellee, versus ABDORASOOL JANATI; FOROUZANDEH JANATI, Defendants - Appellants.

Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Claude M. Hilton, Senior District Judge. (CR-03-433)

Argued:

March 13, 2007

Decided:

August 1, 2007

Before NIEMEYER, MICHAEL, and TRAXLER, Circuit Judges.

Affirmed by unpublished per curiam opinion.

ARGUED: Stuart Alexander Sears, ZWERLING, LEIBIG & MOSELEY, P.C., Alexandria, Virginia; Matthew William Greene, SMITH & GREENE, P.L.L.C., Fairfax, Virginia, for Appellants. David Benjamin Joyce, Special Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee. ON BRIEF: John K. Zwerling, ZWERLING, LEIBIG & MOSELEY, P.C., Alexandria, Virginia, for Appellant Forouzandeh Janati. Paul J. McNulty, United States Attorney, Steve A. Linick, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Dr. Abdorasool Janati and his wife, Mrs. Forouzandeh Janati, were convicted of one count of conspiracy to defraud the United States, in violation of 18 U.S.C. § 371, and 61 substantive counts of health care fraud, in violation of 18 U.S.C. § 1347. challenge both their convictions and sentences. We affirm. They

I For over ten years, Dr. Janati and his wife, Mrs. Janati, ran the Neurological Institute of Northern Virginia. Dr. Janati was

a neurologist, and the Neurological Institute was his practice. Mrs. Janati was the office manager. Between 1996 and 2003, the Janatis defrauded Medicare and private insurance companies, overbilling them in three ways. First, in billing insurers for nerve conduction tests, they inflated the number of tests actually performed. Second, they

billed insurers for brain wave studies that were never conducted. Third, they "upcoded" office visits, meaning that when they billed insurers, they represented that an office visit was more involved or complex than it actually was, justifying a higher billing rate. The Janatis submitted bills to insurers, coding the work performed in accordance with the Physicians' Current Procedural Terminology (CPT) manual. The CPT manual lists standardized codes which correlate to procedures and services performed by

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physicians.

The CPT manual has five codes for office visits,

which are at issue in this case, ranging from Code 99211 to Code 99215, in increasing order of complexity and comprehensiveness. Code 99211, the lowest level for such visits, is used when "the presenting problem(s) are minimal. Typically, 5 minutes are spent performing or supervising these services." Code 99215, the

highest level for office visits, applies to visits that have at least two of the following three components: (1) "a comprehensive history"; (2) "a comprehensive examination"; and (3) "medical decision making of high complexity." are usually of moderate to high The "presenting problem(s)" severity, and physicians

"typically spend 40 minutes face-to-face with the patient and/or family." At trial, the evidence showed that the Janatis billed

virtually all office visits using the highest code, Code 99215, without regard to the seriousness of the patient's problem or the complexity of the visit. The government's expert on medical

billing codes examined 471 office visits, including the visits which were the subject of the indictment, and determined that every one of the office visits was billed using Code 99215. When

asked if the use of that billing code was justified for any of the office visits, the expert replied, "Not a one." While the Janatis correctly pointed out that selecting the proper billing code for a given visit required some judgment, the

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government's expert reiterated that the visits that she examined were "[n]ot even close" to being properly classified at the Code 99215 level. Additionally, the government presented evidence that Mrs. Janati had removed all billing codes below the Code 99214 level from the standard billing form used in the office. Former

employees testified that the Janatis instructed them to bill all follow-up visits under Code 99215, even though representatives of Medicare and other insurance plans had warned them that this was improper. Following conviction, the government offered another expert on medical billing to support the forfeiture order. He testified

by affidavit that of 364 billing records reviewed, 358 had been billed using Code 99215 (six records were missing), and that each of the records reviewed involved an inappropriate upcoding. At sentencing, the government and Dr. Janati (but not Mrs. Janati) stipulated to the appropriate sentencing factors for calculating the offense level under U.S.S.G. § 2B1.1 (offenses involving fraud or deceit). To the base offense level of 6, they

agreed to add 14 levels, based on a calculation of the insurers' economic losses from the fraud of between $400,000 and $1 million. See U.S.S.G. § 2B1.1(b)(1)(H). adding overpayments made by The calculation resulted from insurers ($136,110 for nerve

conduction tests that were never performed and $37,583 for brain wave tests that were never performed) to losses caused by

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overbilling for office visits (estimated by statistical sampling to be $359,468.58). While the calculation resulted in a figure

greater than $530,000, Dr. Janati and the government stipulated to the somewhat smaller figure of $445,598.66. In addition, they

agreed that the number of victim insurers was between 10 and 50, resulting in another the final 2-level offense increase. level was Thus, 22, under the the

stipulation,

although

government remained free to argue for an additional 2-level enhancement for abuse of a position of trust. In sentencing Dr. Janati, the district court found that "the loss and role in the offense that was agreed to by the parties here [was] properly the assessed." sentenced Declining Dr. Janati any to additional 41 months'

enhancement,

court

imprisonment, the bottom of a Guidelines range.

The court also

entered, by consent of Dr. Janati and the government, an order of restitution, requiring payment to the victim insurers of

$445,598.66 (the same as the stipulated economic losses). In sentencing the Mrs. Janati, court who represented the same herself at

sentencing,

district

imposed

sentence.

Incorporating the findings that the court made with respect to Dr. Janati, the district court found Mrs. Janati's "Guideline factors to be properly assessed at a range of 41 to 51 months as well." The court also entered a restitution order making Mrs. Janati

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jointly and severally liable for the restitution required of Dr. Janati.

II First, the Janatis contend that their convictions for

upcoding should be overturned, because the standards for choosing one billing code over another were "fatally vague," in violation of the Fifth Amendment's Due Process Clause. They reason that the fraud alleged in the "upcoding" counts was based on the standards of the CPT manual, which are too "vague and ambiguous" to "provide adequate guidance and/or notice upon which a criminal conviction could validly exist." While the Janatis focus on potential ambiguities in various terms of the CPT manual, the fact remains that they were charged with violating the health care fraud statute, 18 U.S.C. § 1347, not the CPT manual. The vagueness inquiry rests on whether the

challenged law provides sufficient notice for people to conform their conduct to the law and to prevent arbitrary or

discriminatory enforcement.

See Hill v. Colorado, 530 U.S. 703,

732 (2000); Kolender v. Lawson, 461 U.S. 352, 357 (1983) (noting due process requires that "a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement"). The CPT

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manual simply does not contain mandates backed by legal sanctions, such that officials must enforce them or that people need

sufficient notice of them so as to avoid penalties. Any vagueness in the CPT manual itself cannot be the basis for a due process challenge to the fraud violations in this case. The Janatis were convicted under the health care fraud statute, 18 U.S.C. § 1347, which punishes one who knowingly and willfully executes . . . a scheme or artifice . . . to obtain, by means of false pretenses, representations, or promises, any of the money or property owned by, or under the custody or control of, any health care benefit program, in connection with the delivery or payment for health care benefits. This provision is not overly vague. criminal liability attaches to It gives ample notice that who knowingly give a

those

representation that could be shown to be objectively false about services performed for the purpose of obtaining money. These

specific, particular elements more than satisfy the demands of due process. It is therefore unsurprising that courts have uniformly

rejected vagueness challenges to the parallel mail, bank, and securities fraud statutes, see 18 U.S.C. §§ 1341-48. See, e.g.,

United States v. Welch, 327 F.3d 1081, 1109 n.29 (10th Cir. 2003); United States v. Szur, 289 F.3d 200, 209 n.5 (2d Cir. 2002). The Janatis' contention that the CPT manual supports a vagueness claim would merit more serious consideration if the government failed to prove scienter, thereby undermining the legal basis for their convictions. The health care fraud statute -7-

requires a specific intent to defraud, see 18 U.S.C. § 1347, and the indictment charged that the Janatis knowingly misrepresented that Dr. Janati had performed services that qualified for billing at the Code 99215 level. Any opacity of the CPT manual would have

to be so great that one could not know the proper code and therefore could not knowingly record an improper code. But then,

the Janatis' vagueness challenge would be no more than a challenge to the sufficiency of the evidence of their mental states. The evidence overwhelmingly demonstrates, however, that the Janatis knowingly used improper CPT codes if for no other reason than the fact that they altered their forms to eliminate even the option of billing at a level lower than Code 99214. In addition,

before 1996, the Janatis billed the majority of their services at the Code 99213 level, which demonstrates their knowledge of the proper codes. After 1996, they billed every visit at the highest

level, showing a lack of any good faith concern with how to bill at the proper level. The government's expert testified at trial

that none of the charged visits came "even close" to warranting the Code 99215 billing level. the Janatis continued to Finally, there was evidence that bill falsely even after being

specifically warned by Medicare officials and other insurers that their billing was improper. The evidence that the government

presented was thus incompatible with the Janatis' claim that the

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CPT manual was too vague to understand, and we therefore reject the vagueness challenge.

III Mrs. Janati contends that, in sentencing her, the district court failed to make findings on the record relating to the sentencing factors of economic loss and the number of victims, claiming that she was improperly saddled with the stipulation entered into by her husband and the government. her contention is without merit. The We conclude that figure, while

loss

stipulated to by her husband, was actually based on the scrupulous calculation by government experts and was agreed to be the actual loss by the presentence report. Moreover, the district court made an independent finding of the loss figure, stating, "I find the Guideline factors in this case to be properly assessed [with respect to Dr. Janati's sentence] at a range of 41 to 51 months. I find that the loss and role in the offense that was agreed to by the parties here to be properly assessed." that independent "I finding find the into Mrs. He then incorporated Janati's to Guidelines be properly

calculation:

Guideline

factors

assessed at a range of 41 to 51 months as well."

Because Mrs.

Janati's participation in the conspiracy gave no basis for a different calculation and she provided no information suggesting the calculation was wrong, the district court was undoubtedly

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correct, and certainly did not commit clear error. This procedure satisfied the district court's obligation to make factual

determinations on the record.

See United States v. Bolden, 325

F.3d 471, 497 (4th Cir. 2003) (permitting district court to resolve disputed issues of fact simply by making findings on the record or adopting findings contained in the record).

IV Mrs. Janati similarly contends that the amount of

restitution was improperly ordered by the district court based on her husband's stipulation. For the reasons discussed in Part III, the district court did not clearly err in assessing the

restitution amount, which was simply the actual loss determined by the government, probation office, and district court. She also

contends that the probation officer and the district court failed to comply with the procedural requirements for entering her restitution order. See 18 U.S.C. §§ 3663A, 3664. But she has

presented no evidence of such a failure, and we therefore find this argument without merit.

V Both of the Janatis contend that their sentences of 41 months' imprisonment plus three years' supervised release are unreasonable. They claim that reason required the district court

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to impose a lower, variance sentence in light of their commitment to medicine; the destruction of their medical practice; Dr. Janati's age and health problems; their responsibilities to their adult children; and Dr. Janati's continuing to treat patients after their insurers stopped reimbursing him. We disagree. First, we observe that the sentences fell at

the bottom of the Guidelines range. Second, any sentence within the Guidelines enjoys a presumption of reasonableness. See United States v. Green, 436 F.3d 449, 457 (4th Cir. 2006); see also Rita v. United States, ___ S. Ct. ___ (June 21, 2007) (approving this court's presumption of reasonableness for a sentence within the Guidelines). Third, the reasons advanced by the Janatis for a

variance sentence are actually discouraged in most instances. See U.S.S.G. § 5H1.1 (age); U.S.S.G. § 5H1.2 (education and vocational skills); U.S.S.G. § 5H1.5 (employment record); U.S.S.G. § 5H1.6 (family ties and responsibilities); U.S.S.G. § 5H1.11 (prior good works). To the extent that the Guidelines already take them into

account, consideration of such factors would tend to undermine the sentencing goals of fairness and uniformity. The reasonableness of these sentences is bolstered by the fact the Janatis benefited from several decisions that the An

district court made in calculating the Guidelines range.

argument could have been made that the loss amounts upon which the offense levels rested should have been substantially higher.

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Similarly,

the

number

of

victims

defrauded

may

have

been

substantially greater than 50, which would have triggered a further two-point enhancement. In addition, Dr. Janati could have received a 2-level enhancement for abuse of a position of trust, and Mrs. Janati could have received a 2-level enhancement for obstruction of justice, as the presentence report recommended. Finally, both could have received enhancements for aggravated roles in the offense. In relation to the provisions of the

Sentencing Guidelines, the Janatis received relatively lenient sentences. Given the far-reaching nature of the Janatis' fraudulent scheme, involving many victims and large sums of money over many years, the sentences appear to fulfill the purposes of sentencing. See United States v. Shortt, 485 F.3d 243, 249 (4th Cir. 2007) ("A sentence that does not serve the announced purposes of §

3553(a)(2) is unreasonable").

They "reflect the seriousness of

the offense, [] promote respect for the law, and [] provide just punishment for the offense," 18 U.S.C. § 3553(a)(2)(A), as well as "afford adequate deterrence to criminal conduct," id. §

3553(a)(2)(B).

VI Finally, we reject the Janatis' argument that the district court failed to provide an adequate explanation of the basis for

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their sentences. (4th Cir. 2007)

See United States v. Johnson, 445 F.3d 339, 345 (noting that the district court need not

"robotically tick through § 3553(a)'s every subsection"); see also United States v. Eura, 440 F.3d 625, 632 (4th Cir. 2006). * * *

The Janatis' convictions and sentences are AFFIRMED.

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