U.S. v. Ricard

922 F.3d 639

UNITED STATES of America, Plaintiff - Appellee

v.Kim RICARD, Defendant - Appellant

No. 18-30047

United States Court of Appeals, Fifth Circuit.

FILED April 26, 2019

Jeremy Raymond Sanders, Trial Attorney, Joanna K. W. Bowman, Attorney Advisor, U.S. Department of Justice, Criminal Division Fraud Section, Washington, DC, for Plaintiff-Appellee.

Samantha Jean Kuhn, Assistant Federal Public Defender, Federal Public Defender's Office - EDLA, New Orleans, LA, for Defendant-Appellant.

Before JOLLY, DENNIS, and HIGGINSON, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

Kim Ricard was convicted by a jury of one count of conspiracy to pay and receive kickbacks for referring Medicare patients to a particular health care provider, three counts of receiving such kickbacks for such referrals, three counts of identity theft, and one count of making false statements to a federal agent. The district court sentenced Ricard to a fifty-one-month term of imprisonment as to each count, to be served concurrently, and ordered her to pay $ 1,958,000 in restitution to Medicare. On appeal, Ricard challenges her convictions and her sentence. We affirm Ricard’s convictions but vacate her sentence, reverse and vacate the restitution order, and remand for resentencing and dismissal of the restitution order.

I.

Kim Ricard was hired by Progressive Home Care in 2008. Progressive was a home health agency owned by Milton Diaz that primarily served Medicare patients. As a home health agency, Progressive provided nursing services to homebound patients who require continuing care after being discharged from a hospital. Medicare provides coverage for home health care when a physician certifies home care is necessary. Patients must then be given a list of home health agencies to choose from. Medicare requires that the patient, not the doctor, choose the home health agency. Once patients choose a particular agency to provide the home care services, they are discharged and receive such home health care for sixty days. That home health agency may recertify the patient for additional sixty-day treatment periods until home health care is no longer required. To bill for treatment, a home health agency provides Medicare with the patient’s information, including a Medicare Health Insurance Claim Number ("HIC number"), which is a unique number identifying the patient.

Ricard’s role at Progressive was to recruit and refer Medicare patients to Progressive for home care psychiatric treatment.

Instead of a traditional salary, Diaz paid Ricard $ 250 on each occasion that she referred a patient. He later increased that amount to $ 300 per patient after Ricard requested more money. Unlike other employees at Progressive, Ricard’s checks were always in round dollar amounts. The memo line on Ricard’s checks often referenced the number of new admissions or recertifications for which Ricard was being paid.¹ She was the highest paid employee at Progressive from 2008 through 2013, earning $ 331,389 during that period.

All of Ricard’s referrals to Progressive for home care came from the outpatient psychiatric program provided at Seaside Behavioral Center. It is not incidental that Ricard was in a romantic relationship with Joe Haynes, an administrative person at Seaside. Haynes instructed two psychiatrists employed by Seaside to refer patients to Progressive. Ricard and Haynes demanded that Diaz also pay Seaside’s psychiatrists in exchange for such referrals.

Ricard and Haynes told Diaz that if he stopped paying Ricard per patient referral she would stop referring Progressive patients and move Seaside’s patients, whom she had previously referred, to another home health provider. Haynes also threatened to transfer Seaside’s patients to other home health agencies if Ricard was not paid more per referral. On March 8, 2013, a Seaside psychiatrist ordered Progressive to "mass discharge all of her patients." According to a Progressive employee, "money issues" between Ricard and Diaz caused Ricard to stop referring patients to Progressive; none of the referred patients had complained to Progressive or asked to be discharged from Progressive’s care. On March 12, 2013, Haynes called Progressive three times demanding money owed to Ricard. Haynes and Ricard also called patients they had referred to Progressive and told them to refuse treatment from Progressive or else they would be kicked out of Seaside’s day program. Most of these patients ultimately refused treatment from Progressive and were accordingly discharged from Progressive’s care.

In late 2013, after leaving Progressive, Ricard was hired by Abide Home Services, another home health agency. When Ricard first met with Abide’s owner, Lisa Crinel, she asked to be paid per patient referral. Crinel told Ricard that Abide did not pay by referral; instead she would receive an annual salary of $ 50,000 plus a bonus if she referred over six patients per month. According to Crinel, Ricard was "a little shocked" by this payment structure and told Crinel that she was used to being paid up to $ 1,000 per patient. As at Progressive, the only work Ricard did at Abide was soliciting and referring patients. Unlike other marketers employed by Abide, Ricard did not attend orientation or weekly marketing meetings. She also did not go out into the field to market for Abide. Crinel and Ricard would exchange text messages about patient referrals. In one text message, Ricard wrote "I’m sending five face sheets. Let me know if their numbers are good." Crinel testified that "numbers" referred to patient’s HIC numbers. A number was "good" if the patient was not connected to another home health agency, allowing Abide to bill Medicare for that patient.

As when Ricard was with Progressive, all the patients she referred to Abide were from Seaside. Haynes, still at Seaside, continued his practice of calling Ricard’s employer to complain, "in a very stern manner," that Ricard should receive more money for referring patients. During Haynes’s last phone call with Abide, he yelled and swore at Crinel and threatened to tear up admitting forms that Abide used to bill Medicare because Ricard’s paycheck was less than he expected. Ricard ultimately transferred her recruited patients away from Abide.

In 2014, the Office of the Inspector General of the United States Department of Health and Human Services (OIG–HHS) received a tip from Progressive’s bank that Progressive was paying Ricard kickbacks. Special Agent Brian Reel reviewed Ricard’s checks and, based on the round number amounts and reference to the number of "admits" and "recerts" in the checks’ memo lines, believed Ricard was being paid kickbacks. Agent Reel proceeded to interview Diaz in May 2015. According to Agent Reel, Diaz became visibly nervous when asked about Ricard. Agent Reel also found red flags when examining Medicare data for Progressive. For instance, he discovered that Progressive and Seaside shared nearly fifty patient-beneficiaries, even though Progressive’s homebound patients should have been unable to travel to Seaside for outpatient treatment. Additionally, he found it significant that twenty patients referred from Seaside were discharged in February and March 2013. All twenty of those patients were referred by the two Seaside psychiatrists who were receiving kickbacks from Progressive.² Agent Reel also obtained a certification from the IRS that Ricard had failed to file federal income tax returns between 2008 and 2014. And Agent Reel discovered that Ricard had lied in a credit application, reporting her monthly income as $ 3,500 when, at the time, she was earning approximately $ 8,000 per month.

Accompanied by Special Agent Artie DeLaneuville, Agent Reel arranged a meeting with Ricard at a coffee shop on July 29, 2015. The interview was not recorded or transcribed. Instead, Agent Reel memorialized the interview in a written report. It is unclear when the report was prepared.³ The report was not admitted into evidence. According to Agent Reel’s testimony, he asked Ricard twice whether she was paid per patient referral at Progressive and she denied it each time, saying "there’s no way she was paid per patient referral at Progressive." Upon being asked about referral payments, Ricard became "nervous, agitated and jumpy." After her second denial, Agent Reel showed Ricard checks written to her by Progressive and drew her attention to the memo lines referencing referrals, admissions, or recertifications. After looking at the checks, Ricard told Agent Reel that she "had no idea about kickbacks and referrals at Progressive" and that she could not recall the financial agreement that she had with Diaz. She then asked Agent Reel how much he thought she was paid per referral.

He responded $ 250 per referral. Agent DeLaneuville then asked Ricard whether she was paid $ 250 per referral by Progressive. She did not respond.

II.

Ricard was indicted on one count of conspiracy to pay and receive health care kickbacks, in violation of 18 U.S.C. § 371 (Count One); three counts of receiving health care kickbacks, in violation of 42 U.S.C. § 1320a-7b(b)(1)(A) (Counts Two–Four); three counts of unlawful possession, transfer, or use of a means of identification, in violation of 18 U.S.C. § 1028(a)(7) (Counts Eight–Ten); and one count of making false statements, in violation of 18 U.S.C. § 1001 (Count Eleven).

Ricard’s indictment for conspiracy, kickbacks, and identity theft stemmed from her involvement with the alleged kickback scheme at Progressive. She was not charged with any acts relating to her work at Abide. Prior to trial, the government notified Ricard that it intended to introduce evidence that Ricard received kickbacks at Abide, arguing that it was intrinsic to the charged crimes or, alternatively, admissible pursuant to Federal Rule of Evidence 404(b).⁴ Ricard objected and moved to prohibit its use. The district court, however, overruled Ricard’s objection and held the evidence admissible under Rule 404(b...