USA v. Sam Hill, III

Filing

USA v. Sam Hill, III

Doc. 0

Case: 09-40749

Document: 00511214066

Page: 1

Date Filed: 08/25/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
August 25, 2010 N o . 09-40749 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA, P la in t iff - Appellee v. S A M SMITH HILL, III, D e fe n d a n t - Appellant

A p p e a l from the United States District Court fo r the Southern District of Texas N o . 2:08-CR-172-1

B e fo r e KING, HIGGINBOTHAM, and GARZA, Circuit Judges. P E R CURIAM:* F o llo w in g a jury trial, Sam Smith Hill, III ("Dr. Hill") was convicted of M e d ic a id fraud involving the improper billing of his assistants' work as his own. Hill challenges the sufficiency of the evidence proving that he improperly billed M e d ic a id and that he intended to commit fraud. He also argues that the district c o u r t abused its discretion in denying his petition for a writ of error coram nobis. For the following reasons, we AFFIRM.

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

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Case: 09-40749

Document: 00511214066

Page: 2

Date Filed: 08/25/2010

No. 09-40749 I D r . Hill is a psychologist who founded a children's behavior clinic to p r o v id e mental health services for underprivileged children in the Corpus C h r is t i area. He enrolled as a provider in the Texas Medicaid program, a federal h e a lt h care benefit program, in 1996. The Medicaid system works by reimbursing medical providers for a p p r o v e d services that they provide to Medicaid patients. In order for providers t o receive reimbursement, they submit "superbills" to Medicaid that include C u rren t Procedural Terminology ("CPT") codes for the medical services provided. Prior to 2006, a single CPT code, 96100, existed for all "psychological testing," w h ic h included "both face-to-face time administering tests to the patient and t im e interpreting these test results and preparing the report." In 2006, CPT c o d e 96100 was discarded and replaced with code 96101 for psychological testing p e r fo r m e d by psychologists, and 96102 for testing performed by Licensed P s y c h o lo g ic a l Associates ("LPAs") and other non-psychologists. During the time p e r io d relevant to Dr. Hill's indictment, the Texas Medicaid Providers Manual s t a t e d that the work of LPAs could not be reimbursed by Medicaid or billed u n d e r a psychologist's provider identifier. In 2008, Dr. Hill was charged with nineteen counts of health care fraud s p a n n in g from 2001 to 2008. Specifically, the indictment charged Dr. Hill with s u b m it t in g fraudulent bills listing CPT codes for psychological testing performed b y a psychologist when the testing had actually been performed by LPAs. A jury fo u n d Dr. Hill guilty on six of those counts, all involving Medicaid bills from 2 0 0 8 , and acquitted on the remaining counts. Dr. Hill was sentenced to five y e a r s ' probation and six months' house arrest. He was also ordered to pay M e d ic a id $48,739.82 in restitution, fined $40,000, and assessed a special penalty o f $600.

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Document: 00511214066

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Date Filed: 08/25/2010

No. 09-40749 II D r . Hill argues that the Government failed to present sufficient evidence t o prove that he had improperly charged Medicaid for his LPAs' work as though it were his own, or that he intentionally defrauded Medicaid. In reviewing the s u ffic ie n c y of the evidence to support a conviction, we view the evidence and the in fe r e n c e s that may be drawn from it in the light most favorable to the verdict a n d determine whether a reasonable jury could have found the essential e le m e n t s beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1 9 7 9 ); United States v. Martinez, 151 F.3d 384, 388 (5th Cir. 1998). During the relevant time, Medicaid regulations permitted psychologists t o bill Medicaid only for services they provided. Although psychologists were e n tit le d to reimbursement for testing they had performed themselves (including a d m in is t r a t io n , interpretation, and reporting), they could not be reimbursed for w o r k performed by their technicians. Dr. Hill readily admits that his

t e c h n ic ia n s administered all psychodiagnostic testing on his behalf. Dr. Hill a r g u e s , however, that the hours billed to Medicaid represent time he personally s p e n t interpreting and reporting on the results of these tests, and not the time t h e LPAs spent administering the tests. T h e r e is sufficient evidence from which the jury could conclude that the b illin g included the LPAs' time. First, the timing of the superbills greatly u n d e r m in e s Dr. Hill's theory that he only billed for his time in interpreting the r e s u lt s before meeting with the patients. That is, the bills were submitted right a ft e r the testing occurred, and several weeks before Dr. Hill reviewed the results in anticipation of his meeting with the patients to discuss the results. Two of Dr. H ill's LPAs testified that after administering tests, they immediately gave s u p e r b ills showing which tests had been administered to a clerk at the front d e s k prior to any interpretation by or consultation with Dr. Hill. Dr. Hill's b i l l i n g agent testified that she sent the information from these superbills to 3

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Date Filed: 08/25/2010

No. 09-40749 M e d ic a id , making compensation claims under Dr. Hill's CPT code on the basis o f the "predetermined" number of hours each test took. It is difficult to u n d e r s t a n d how the billing could be predetermined if it were for Dr. Hill's in t e r p r e t a t io n of the results, which could take any number of hours, rather than t h e actual testing, which required a set amount of time. Given this evidence, the ju r y was not unreasonable in concluding that Dr. Hill billed for the LPAs' time. D r . Hill also argues that the Government did not present sufficient e v id e n c e to prove that he intentionally defrauded Medicaid. In order to prove h e a lt h care fraud under 18 U.S.C. § 1347, the Government must prove that a d e fe n d a n t "knowingly and wilfully executes, or attempts to execute a scheme or a r t ific e " to defraud a health care benefit program))that is, the law requires a fin d in g of specific intent. United States v. Hickman, 331 F.3d 439, 443­45 (5th C ir . 2003). T h e Government's primary evidence of specific intent came from the t e s t im o n y of Agent Daniel Sanchez, an investigator for the Office of the Attorney G e n e r a l, Medicaid Fraud Control Unit; and FBI Special Agent Andrew Walton, b o th of whom interviewed Dr. Hill. Agent Sanchez testified that Dr. Hill told the a g e n t s that he knew he was violating Medicaid billing rules, but that the rules w e r e "wrong and immoral." Agent Sanchez also testified that Dr. Hill stated t h a t he would continue to violate Medicaid's billing rules unless prosecuted, at w h ic h point he "would stand by his decision and accept whatever consequence c a m e his way." Agent Walton testified that Dr. Hill said that he knew he was in violation of the rules and knew that his practice of billing for testing services o f his assistants was prohibited by Medicaid rules. According to Agent Walton, D r . Hill believed he was not being compensated for his time and that the M e d ic a id rules were "immoral." This testimony was sufficient for a reasonable ju r y to conclude that Dr. Hill acted with the requisite specific intent to defraud M e d ic a id . 4

Case: 09-40749

Document: 00511214066

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Date Filed: 08/25/2010

No. 09-40749 III D r . Hill argues that the district court abused its discretion in denying his p e t it io n for a writ of error coram nobis. In reviewing a district court's denial of a petition for a writ of error coram nobis, "we review factual findings for clear e r r o r , questions of law de novo, and the district court's ultimate decision to deny t h e writ for abuse of discretion." Santos-Sanchez v. United States, 548 F.3d 327, 3 3 0 (5th Cir. 2008). A writ of error coram nobis "is an extraordinary remedy available to a p e t it io n e r no longer in custody" used "to correct errors `of the most fundamental n a t u r e .'" United States v. Esogbue, 357 F.3d 532, 534­35 (quoting United States v . Morgan, 346 U.S. 502, 512 (1954)). For an error to be of sufficient magnitude t o justify a writ of error coram nobis, the appellant must prove that the errors " r e s u lt [e d ] in a complete miscarriage of justice." Jiminez v. Trominski, 91 F.3d 7 6 7 , 768 (5th Cir. 1996). I n 2009, after Dr. Hill's indictment and conviction, the Texas Medicaid P r o v id e r s Manual was changed to allow partial reimbursement for the work of L P A s under certain circumstances. Dr. Hill argues that changes in the law that a llo w psychologists to charge Medicaid for the work of LPAs subsequent to his c o n v ic t io n undermine the validity of his conviction and justify a writ of error c o r a m nobis. However, the cases he cites in support of his petition involve laws t h a t were later declared unconstitutional,1 or a determination that the d e fe n d a n t 's conduct was not criminal under the statute forming the basis for the p r o s e c u t io n .2 Here, the changes in Medicaid rules reflect a policy decision by

See United States v. Travers, 514 F.2d 1171, 1176­77 (2d Cir. 1974) (statute subsequently declared unconstitutional); United States v. Summa, 362 F. Supp. 1177, 1179­80 (D. Conn. 1972) (same); United States v. Houssein, 326 F. Supp. 1194, 1199 (D. Md. 1971) (same); Angelini v. United States, 322 F. Supp. 698, 699 (N.D. Ill. 1970) (same). See United States v. Marcello, 876 F.2d 1147, 1154 (5th Cir. 1989) (conduct subsequently held not to be criminal under the statute used to prosecute the defendant);
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No. 09-40749 M e d ic a id rather than a judicial finding of unconstitutionality; therefore, those a u t h o r it ie s are inapposite. Moreover, Dr. Hill's actions would still have been ille g a l under Medicaid's new billing regulations. The change to the Texas

M e d ic a id program stated that an LPA's work, done under the supervision of a p s y c h o lo g is t , can only be billed at 70% of the psychologist's payment rate, not the fu l l amount that Dr. Hill was charging for his LPAs' work. Dr. Hill has failed t o show that his case presents a complete miscarriage of justice sufficient to m e e t the high burden required for the issuance of a writ of error coram nobis. Accordingly, the district court's denial of Dr. Hill's petition was not an abuse of d is c r e t io n . IV F o r the foregoing reasons, we AFFIRM.

United States v. Travers, 514 F.2d 1171, 1175 (2d Cir. 1974) (same); United States v. Sawyer, 74 F. Supp. 2d 88, 105­06 (D. Mass. 1999) (same).

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