from the United States District Court for the Southern
District of Florida D.C. Docket No. 1:14-cr-20052-JEM-2
HULL, MARTIN and EBEL, [*] Circuit Judges.
Roger Bergman was a licensed physician's assistant
employed by American Therapeutic Corporation
("ATC"). In late 2003, Bergman joined ATC and
worked in ATC's Miami and Homestead clinics until late
August 2008. Defendant Rodolfo Santaya also worked for ATC
from February 2006 until the government closed ATC in October
2010. Santaya served as a patient recruiter.
a trial, a jury convicted defendant Bergman of (1) conspiracy
to commit health care and wire fraud and (2) conspiracy to
make false statements relating to health care matters. The
jury convicted defendant Santaya of (1) conspiracy to commit
health care and wire fraud, (2) conspiracy to pay and receive
bribes and kickbacks in connection with a federal health care
benefit program, and (3) receipt of bribes and kickbacks in
connection with a federal health care benefit program. Both
defendants appeal their convictions and sentences. After
thorough review of the briefs and the entire record, and with
the benefit of oral argument, we affirm.
the defendants challenge the sufficiency of the evidence
supporting their convictions, we outline the trial evidence
in the light most favorable to the government.
Partial Hospitalization Programs
Valera, a therapist, opened ATC on June 1, 2000. In December
2002, Valera started a Partial Hospitalization Program
("PHP") through ATC. A PHP serves as a bridge
between inpatient and outpatient care for patients with a
psychiatric condition severe enough to possibly require
hospitalization. A patient can be sent to a PHP either (1)
from outpatient treatment because their provider has concerns
about the patient but wants to keep them out of an inpatient
stay, or (2) from inpatient treatment when the patient is
improving but is not yet well enough to receive only routine
outpatient care. PHPs treat patients suffering from a wide
variety of mental illnesses, most commonly major depressive
disorder, schizophrenia, and bipolar disorder. PHP treatment
is inappropriate for those with impairments that would
restrict their ability to participate in the program, such as
those with memory and cognition impairment caused by
Alzheimer's disease or those with substance abuse
mental health centers ("CMHCs"), such as ATC,
administer PHPs, which offer intensive outpatient psychiatric
care including individual or group psychotherapy, counseling,
psychiatric diagnostic testing, and other mental health
services. Patients generally stay in a PHP for two to three
weeks and receive at least twenty hours of treatment per
week. Staff at a PHP includes psychiatrists as well various
other professionals, including nurses, nurse practitioners,
physician's assistants, occupational therapists, physical
therapists, and social workers.
founded and owned ATC, which developed into an extensive
Medicare scam. Valera gave her boyfriend, Larry Duran, the
task of overseeing the business and operations end of
ATC's PHPs. From 2003, when ATC received its first
provider number, to 2010, when the government shut down the
operation, ATC billed Medicare for approximately $200 million
in claims, and Medicare paid over $85 million back to ATC.
order to bill Medicare, ATC needed patients. ATC admitted
patients to its PHP who had Alzheimer's, dementia, and
substance abuse problems. ATC also admitted patients who were
essentially healthy but wanted to leave their assisted living
facilities, and ATC paid them to do so. The ATC patients with
issues such as Alzheimer's and dementia often were not
oriented to time or place, did not know where they were, and
would confuse staff with their relatives.
have some patients who needed psychiatric help and qualified
for the services ATC purported to provide. ATC, however, did
not provide the individualized treatment required by
Medicare. The doctors at ATC did not do much of anything and
rarely came in. When they did come, they signed notes and saw
patients but did not treat them. Mainly, the doctors just
signed the documentation that other staff prepared for them
in order to legitimize the treatment billed to Medicare. Some
days there was no doctor at the facility, even though
admissions occurred every day and a doctor ought to have been
present to admit a patient.
ATC treated patients for four to eight weeks, depending on
the maximum benefits that Medicare would pay. Valera, and not
the doctors, decided how long each patient would receive
treatment, and she told her medical directors to discharge
patients at six weeks to avoid scrutiny from Medicare. ATC
also recycled patients after a discharge, by readmitting them
when Medicare would pay their benefits again. ATC believed
patients needed to stay out of the PHP for ninety days
without any bills to Medicare before Medicare would pay for
further PHP services. After ninety days, either the referral
source would call ATC and bring the patient back, or ATC
would call the referral source in order to have the patient
brought back. These returns were not based on the medical
needs of the patients but on the ability to bill Medicare for
additional treatment. If a patient did not want to stay at
ATC, either ATC would persuade the patient to stay or ATC
would ask the referral source to persuade the patient to
ATC's Billing of Medicare
began paying for patient referrals and asked for only
Medicare patients because Medicare did not require
preauthorization and would pay claims within two weeks.
Because of the sheer volume of claims Medicare receives,
Medicare is unable to review every claim submitted. Indeed,
Medicare reviews less than one or two percent of the
submitted claims before paying them. As a result, Medicare
relies on providers to submit only legitimate and properly
documented claims. ATC targeted Medicare patients and
submitted false, exaggerated medical records to substantiate
the claims it billed to Medicare. Oftentimes, all the
necessary documents were not even completed when the claims
were submitted, and the documents were completed later in
case Medicare audited ATC.
Medicare's standards allow reimbursement only for PHP
treatment that is (1) provided to a legitimately enrolled
Medicare beneficiary, (2)furnished by a licensed provider
properly enrolled in the Medicare program, (3)actually
furnished, (4) medically necessary, and (5) appropriately
documented by the medical records. Medicare provides to CMHCs
a Local Coverage Determination ("LCD") document,
which contains guidelines to follow in order to bill properly
for PHP services.
the time relevant to this case, the LCD applicable to Florida
provided that Medicare would not pay for, among other things:
(1) treatments for patients who are psychiatrically stable,
(2) group therapy that is not individualized, and (3)
treatments to patients who cannot understand and participate
in the treatment. Medicare would not pay PHP claims for
patients who did not suffer from a mental disorder, nor for
the patients whose disorders were not acute or severe enough
to interfere with daily life activities. Medicare would not
pay PHP claims for patients who suffered from either advanced
Alzheimer's disease or dementia. Medicare also would not
pay PHP claims for patients who were active substance
requires four types of documents to substantiate claims: an
initial certification, a recertification (for services beyond
18 days), a treatment plan, and progress notes. The initial
certification must be completed by the patient's
attending physician and cannot be completed by a
physician's assistant. A treatment plan also must be
signed by the attending physician; a physician's
assistant cannot complete the treatment plan. The physician
must also be involved in establishing the treatment plan and
actively treating the patient. In order to submit proper
progress notes, a medical professional must see the patient,
provide the treatment, and write the progress note. Medicare
requires that the information contained in these documents be
true and be completed before the submission of a PHP claim.
generally did not comply with the LCD's guidelines. At
its peak, ATC had seven locations, all offering PHPs, staffed
by therapists, nurses, doctors, physician's assistants,
and administrators who all assisted with the fraud by
providing falsified documentation to make it appear to
Medicare that ATC provided adequate and medically necessary
treatment. ATC employees, including doctors and
physician's assistants, falsified doctor's notes,
initial psychiatric evaluations, discharges, intakes from
therapists, treatment plans, and daily progress notes. ATC
employees falsified, for example, patient history, onset of
qualified mental illness, the seriousness of a condition, the
fact the patient was recently under the treatment of a
psychiatrist, prescribed medication, and patient quotes.
hired Bergman as a physician's assistant for Dr. Roberto
Ayala, a licensed psychiatrist and medical director for
ATC's Homestead office. Dr. Ayala did not actually see
the patients and instead allowed Bergman to see the patients
and sign the documentation. Because Dr. Ayala was not around,
Valera would introduce Bergman to the patients as the doctor.
In his role, Bergman created, or dictated, initial
psychiatric evaluations, weekly physician's notes, and
discharge summaries, even though he was not a doctor. At the
beginning, Dr. Ayala would sign these notes that Bergman
created, but later on both Dr. Ayala and Bergman signed the
falsified notes for patients who were not impaired by an
acute psychiatric condition and for patients with mental
impairments such as dementia that would prevent them from
understanding and benefiting from a PHP. Bergman often wrote
notes for patients he never saw and for days he was not even
at the office. Instead, Bergman would sit in the medical
records room, get the patient's chart, and dictate notes
from the chart as if he had seen the patient. ATC submitted
Bergman's notes to Medicare for payment.
given time, the Homestead office had between 60 and 110
patients who needed to be seen each week. Bergman, however,
came into the office infrequently, maybe once a week, and
would only see a handful of patients for just a few minutes
before leaving. By 2008, Bergman was spending very little
time with the patients, only two or three hours, when he did
come to the office. Some weeks Bergman did not come to the
office at all. For the patients he did not see, Bergman would
dictate the charts as if he had seen the patient. He did this
from 2003 through 2008.
occasions, Bergman would dictate patient notes to bill for
patients who were not at ATC because they were already
discharged. Some patients actually needed treatment but never
received it. Bergman's notes were "cookie
cutter" and often very similar to one another.
also hired Dana Gonzalez to fabricate notes and other
paperwork for Bergman, who he was behind on the paperwork
needed to bill Medicare. When Gonzalez started, she had a
meeting with Valera and Bergman at which Valera stated that
Gonzalez would be helping Bergman catch up on the patient
notes and whatever else was not completed in the chart.
Valera trained Gonzalez to take Bergman's "cookie
cutter" notes and to individualize the notes by adding
made-up quotes from the patients to match the diagnosis.
Valera also trained Gonzalez on how to fill out the charts.
For two years, Gonzalez wrote approximately 200 notes per
week for Bergman using information she made up and not based
on any treatment provided to the patients. Gonzalez wrote the
notes from her apartment.
never discussed with Bergman or Dr. Ayala what she was
writing in the notes. Instead, Gonzalez would give Bergman a
stack of 200 completed notes for the week, which Bergman
would sign without reading. For the notes that Bergman
dictated, Gonzalez would go through them and individualize
them by adding statements from the patients, symptoms,
examples, medication changes, and their progress. Bergman
signed these notes as well. Unlike other ATC employees,
Bergman's pay was tied to the number of notes he
on Bergman's paperwork, ATC billed Medicare for
approximately $38 million for which Medicare paid ATC a
little over $18 million.
Bergman nor Santaya called any witnesses or introduced any
evidence at trial, except that Bergman testified in his own
defense. Bergman's version of his work for ATC is quite
different from what the government's witnesses recounted.
to Bergman, Dr. Leonardo Alonzo invited him to work at ATC.
Bergman worked at ATC as a physician's assistant from
2003 to late August 2008. At some point, possibly 2003, Dr.
Alonzo quit, and Dr. Ayala came to work at ATC. Around the
same time, Bergman started working at ATC's Homestead
office. During this time, ATC expanded both its Miami and
testified that the Homestead office had at most 30 or 40
patients in a week at its busiest. At both clinics together,
ATC had at most around 100 patients. Bergman said there were
only one or two weeks during the five years he worked at ATC
when he did not see patients. Bergman also said that the
patients can go two weeks without being seen.
further testified that he performed the initial psychiatric
evaluation of all his patients. Bergman said that a lot of
these patients were his patients from the hospital because he
got referrals from physicians he worked with outside of ATC.
Bergman claimed that on many occasions he would have seen a
patient at the hospital the day before the patient was
admitted to ATC's PHP. Bergman did his dictations in his
own office at ATC's Miami location, but at the Homestead
location he did not have his own office. Bergman would either
do his dictations in the space available at ATC's
Homestead office or do them at home using his notes from the
day. Bergman then called the dictation company and recorded
the notes, recording when the patient was seen, the
patient's chief complaint, the patient's mental
status, and the medication management. Bergman explained that
the dictations and resulting notes for different patients
were often similar, with the same statements being pasted in,
because the patients were on the same treatment plan, namely
PHP services five days a week.
occasions following Bergman's initial psychiatric
evaluation, Bergman would call Dr. Ayala to see a patient
when he was unsure what to do with the patient. After Dr.
Ayala visited, the patient would be admitted to the program.
The next time Bergman saw a patient, he would do a progress
Bergman's initial evaluation and first progress note,
however, the patient would be involved in the PHP treatment.
According to Bergman, the patient would see a social worker
and go to therapy groups. Some of these groups were for
substance abusers, including separate groups for those who
were also depressed, psychotic, or elderly. There were also
groups dedicated to medication management, cognitive
therapeutics, and Gestalt therapy. Bergman would refer
patients to a group and would change a patient's group if
the patient was not improving, but he was not involved in the
actual group therapy.
stated that he saw patients with depression, psychotic
patients, substance abusers with psychoses, substance abusers
with depression, and patients with signs of Alzheimer's,
among others. According to Bergman, patients with early
stages of dementia can become either agitated or depressed,
which is sometimes caused by their medication. Bergman
claimed that ATC did not have patients who had such severe
memory loss that they did not know what they were doing.
Bergman testified that he never admitted anyone whom he
thought had advanced dementia or Alzheimer's. Indeed,
Bergman said he brought up the issue of whether dementia
patients could benefit from a PHP with ATC's physicians
and was told that the patients could benefit at the beginning
while they still understood what was happening to them.
he left ATC, Bergman was doing fewer and fewer evaluations,
and ATC had hired another medical professional to do
evaluations at its Homestead office. ATC paid Bergman $30 for
evaluations and $15 for follow-ups. In 2007, ATC paid Bergman
a total of $91, 697. According to Bergman, $90, 000 was low
for physician's assistants, who normally make between
$130, 000 and $150, 000 each year. While working for ATC,
Bergman billed ATC, not Medicare, by giving ATC a list of the
patients he saw and for whom he dictated notes.
testified that people at ATC called him "Dr. Roger,
" but never Dr. Bergman, and that he never held himself
out as a physician or as Dr. Ayala. Bergman said he always
worked under Dr. Ayala's supervision and when Dr. Ayala
vacationed outside of the country, Dr. Ayala arranged for
another physician to cover.
further testified that he had never seen Dana Gonzalez in his
life and had no awareness of her prior to trial. Bergman
claimed that to his knowledge he signed only the notes he did
himself and there were no other notes. Bergman stated that,
at some point, Valera asked him to complete notes for old
files for patients who had left. Bergman refused Valera's
request because he had never seen the patients.
Bergman's Departure from ATC
and Valera also tell contradictory stories about why Bergman
no longer worked at ATC by September 2008.
testified that she and Duran (her boyfriend) "got
tired" of how behind Bergman was in his work and
"we let him go." According to Valera, Bergman was
"super behind" in his dictations and notes, and she
and other employees had to spend "hours and hours and
hours" fixing his documentation, downloading, and making
corrections. Valera testified as follows:
Q. And it was customary at your company to give employees
that you wanted to terminate an opportunity to resign before
they were fired?
. . . .
Q. And although isn't it true that you wanted him out,
you gave him an opportunity to resign and he did resign?
A. I didn't want to cause any damage to anybody. It's
better when you resign.
thus gave Bergman an opportunity to resign, instead of being
fired, and he did so.
story is quite different. He contends that he voluntarily
left ATC because it had inappropriate patients. Just prior to
leaving ATC, Bergman remembers going to the Miami office to
see patients, going to visit a group he had never seen
before, and finding a group of patients just staring into
space. Bergman was told not to worry about it because they
were not his patients. Indeed, there were other doctors
working at ATC who had their own groups of patients.
subsequently told Valera and Duran that he would not be
coming back. Bergman claimed that he had seen patients
inappropriate for a PHP on only one prior occasion when a
group of them came to the Homestead location. Bergman also
claimed that he made a big fuss about it until another ATC
employee told him those patients would not be brought back.
testified that he told Duran, while Valera was in the room,
that he would not be coming back to ATC. Duran asked him why,
and Bergman responded, "you know why." Bergman
stated that he then sent in a resignation letter. While the
letter itself is not in the record, Bergman testified that he
wrote and signed the resignation letter and his wife mailed
disputed Bergman's testimony about his departure. Valera
said that Bergman never raised any concerns that he was
leaving because of fraud at ATC. Valera testified that
Bergman falsified billing for five years, and never said he
would stop. Instead of firing him, Valera merely gave Bergman
the opportunity to resign first, which he did in August 2008.
ATC last paid Bergman via a September 5, 2008 check.
ATC's Patient Recruitment
contrast to Bergman's role in creating notes for billing,
Santaya's role was to recruit patients, which he did in
exchange for kickbacks. Legitimate PHPs typically attract
patients through referrals from outpatient providers, usually
psychiatrists, who know the patients fairly well and know the
warning signs for when a patient's condition is
worsening. None of ATC's referrals came from a
psychiatrist. Rather, ATC paid hundreds of other people for
those referrals, including Santaya.
paid outside patient recruiters, also called patient brokers,
for each patient sent to an ATC center. When ATC began paying
for patients, they asked the recruiters to provide only
Medicare patients. Some of the recruiters were owners of
assisted living facilities or halfway houses who sent their
residents to ATC. Other patient recruiters, like Santaya,
went into the community and recruited patients from
low-income housing, retirement homes, or apartments with
large numbers of disabled or elderly people. These patient
recruiters came from outside ATC, and ATC did not consider
them employees. Rather, ATC had a rule that its own employees
could not recruit patients.
paid its patient recruiters in cash and checks to avoid
creating a paper trail. Patient recruiters in turn paid cash
to some patients to get them to go to ATC. ATC paid its
recruiters at rates between $30 and $50 per patient per day.
ATC also paid a one-time $100 bonus to the patient recruiter
for each new patient.
2005 to 2010, ATC tasked Margarita Acevedo with ensuring that
ATC's centers remained full of patients. Acevedo did this
by marketing ATC to patients and negotiating deals with
patient brokers, like Santaya, to pay them money to send
patients to ATC. Acevedo handled all aspects of this kickback
scheme, including negotiating the deals, tracking the amounts
owed, delivering the payments, and finding people to assist
brought Sandra Jimenez into the company to handle the patient
recruiting duties for the Homestead office, including
marketing and paying recruiters. Acevedo previously knew
Jimenez through a mutual friend, and both are from Colombia.
Acevedo convinced Duran to meet with Jimenez at lunch to see
if he would hire her. Both Acevedo and Jimenez had an
intimate relationship with Duran while they all worked at ATC
and while Duran was dating Valera.
ATC's offices maintained a "Master Patient Log"
("MPL") in a spreadsheet to keep track of the
admission of the patients, their stays, and the amounts owed
to the patient recruiters. The operations coordinator at each
location did the intake and recorded the relevant patient
information in the spreadsheet, including the patient's
admission date, discharge date, first name, last name, and
record number, as well as the name of the person who referred
them. Acevedo and Jimenez used the MPL, along with the
Medicare billing, to calculate the amount owed to each
recruiter based on that recruiter's patients, the number
of days the patients attended, and the negotiated rate with
paid its patient recruiters hundreds of thousands of dollars
each month in cash, which it did to avoid any red flags or
paper trail. Duran, Acevedo, and Jimenez obtained the large
amounts of cash by cashing checks made out to fake employees
or shell companies. Some combination of Valera, Duran, and
Acevedo then would count the money and stuff it into
envelopes. Acevedo and Jimenez delivered the envelopes of
cash to the patient recruiters.
Jimenez's Recruitment of Patients
ATC did not allow its own employees to recruit patients,
Jimenez testified that she recruited some patients herself
under the table through three patient brokers. Jimenez had
deals with these patient recruiters where they would give her
the money for patients she recruited after ATC paid them.
Alternatively, Jimenez would take extra money out of the
envelopes after falsely increasing the number of days a
patient stayed at ATC.
carry out this scheme, Jimenez would falsely tell the ATC
office coordinator that a patient she had brought to ATC was
brought by one of the three patient recruiters with whom she
had arrangements. The office coordinator would then put that
patient recruiter's name into the MPL. Thus, the MPL
contained inaccurate information about the actual source of