Did Someone Call a Doctor? Court Upholds Conviction and Sentence for Fraudulent Medicare House Call Conspiracy.

Medicare reimburses doctors for house calls only under limited circumstances.  Specifically, it reimburses them only where the where the patient is "home bound" as defined under federal regulations.  

In United States v. Daneshvar, the Government secured an indictment charging Daneshvar with, among other things, participating in an elaborate conspiracy with other physicians -- through a company named Mobile Doctors -- to commit health care fraud by providing services to patients who were not, in fact, home bound and in "upcoding" many of their services in order to receive greater Medicare reimbursements to which they were not entitled. After lengthy deliberations, the jury ultimately found him guilty of the conspiracy charge but acquitted him of two counts of Medicare fraud.

Daneshvar raised numerous objections during his trial and sentencing, and he raised numerous issues on appeal.  The Court responded in kind with a lengthy opinion affirming his conviction and sentence.

The Court's opinion addresses each of Daneshvar's issues in great detail.  Several issues are, however, particularly interesting and worthy of discussion here.  In particular, Daneshvar claimed the District Court erred in excluding an e-mail chain he sought to introduce between Mobile Doctors employees in order to establish he was ignorant of the fraud occurring at the company.  The Court disagreed, however, holding that, while the e-mail was relevant under FRE 401, it was not admissible under the business records exception to the hearsay rule, FRE 803(6), simply because it was a communication between Mobile Doctors employees.  Additionally, the Court held the District Court did not abuse its discretion in finding that the e-mail chain was not admissible under the residual hearsay exception, FRE 807, because Daneshvar was able to present more probative evidence during the trial through testimony of other physicians that they were ignorant of Mobile Doctors' billing practises.

Daneshvar also raised a new, and particularly novel, argument on appeal that the District Court should have admitted the e-mail as a statement by his co-conspirators pursuant to FRE 801(d)(2)(E).  In other words, he argued the District Court should have permitted him to introduce his co-conspirators statements on his own behalf, instead of against him.  Unfortunately for Daneshvar, however, the Court disagreed and held the rule did not apply since it only permitted the introduction of co-conspirator statements against another conspirator, not in their favor.

During trial, Daneshvar also sought to introduce "reverse rule 404(b) evidence" by eliciting testimony that, after leaving Mobile Doctors, he began scrutinizing his bills to ensure they were accurate.  This evidence, he argued, was relevant as to his lack of intent to commit health care fraud.  The District Court, however, sustained the United States' objection and excluded the evidence as irrelevant.  On appeal, the Court held that since the evidence only spoke to Daneshvar's  actions after he left Mobile Doctors, it was neither relevant to his intent to engage in the scheme under FRE 401 nor a prior good act pursuant to FRE 404(b). 

The Court's opinion makes clear that Daneshvar's attorneys thoroughly litigated his defense, both during trial and after.  Although he was ultimately unsuccessful in his appeal, Daneshvar's attorneys provide a good example of diligent advocacy for their clients.