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United States v. Bergman

United States Court of Appeals, Eleventh Circuit

March 24, 2017

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
ROGER BERGMAN, RODOLFO SANTAYA, Defendants-Appellants.

         Appeals from the United States District Court for the Southern District of Florida D.C. Docket No. 1:14-cr-20052-JEM-2

          Before HULL, MARTIN and EBEL, [*] Circuit Judges.

          HULL, Circuit Judge:

         Defendant 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.

         Following 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.

         I. FACTUAL BACKGROUND

         Because the defendants challenge the sufficiency of the evidence supporting their convictions, we outline the trial evidence in the light most favorable to the government.

         A. Partial Hospitalization Programs

         Marianella 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 problems.

         Community 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.

         B. ATC's Operations

         Valera 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.

         In 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.

         ATC did 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.

         Typically, 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 stay.

         C. ATC's Billing of Medicare

         ATC 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.

         Generally, 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.

         During 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 abusers.

         Medicare 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.

         ATC 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.

         D. Bergman's Role

         ATC 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 notes.

         Bergman 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.

         At any 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.

         On some 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.

         ATC 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.

         Gonzalez 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 dictated.

         Based on Bergman's paperwork, ATC billed Medicare for approximately $38 million for which Medicare paid ATC a little over $18 million.

         E. Bergman's Testimony

         Neither 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.

         According 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 Homestead offices.

         Bergman 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.

         Bergman 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.

         On rare 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 note.

         Between 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.

         Bergman 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.

         Before 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.

         Bergman 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.

         Bergman 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.

         F. Bergman's Departure from ATC

         Bergman and Valera also tell contradictory stories about why Bergman no longer worked at ATC by September 2008.

         Valera 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?
A. Correct
. . . .
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.

         Valera thus gave Bergman an opportunity to resign, instead of being fired, and he did so.

         Bergman's 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.

         Bergman 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.

         Bergman 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 it.

         Valera 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.

         G. ATC's Patient Recruitment

         In 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.

         ATC 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.

         ATC 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.

         From 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 her.

         Acevedo 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.

         Each of 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.[1] 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 the recruiter.

         ATC 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.

         H. Jimenez's Recruitment of Patients

         Although 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.

         To 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 the patient.

         I. ...


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