United States v. Ahmed

UNITED STATES OF AMERICA, v. SYED IMRAN AHMED, Defendant.

14-cr-277 (DLI)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

July 25, 2017

OPINION AND ORDER

DORA L. IRIZARRY, Chief Judge:

On July 28, 2016, Syed Imran Ahmed, M.D. ("Defendant") was convicted after a jury trial of one count of health care fraud (Count One), three counts of making false statements in connection with the delivery of or payment for health care benefits, items, or services (Counts Two, Three and Four), and two counts of money laundering (Counts Five and Six). Following Defendant's conviction, this Court held a one-day evidentiary hearing on the government's proposed order of forfeiture of specific assets pursuant to 18 U.S.C. §§ 982(a)(1), (7), and the parties subsequently briefed their respective positions on the appropriateness of forfeiture. (See Gov't. Mot. for Forfeiture of Property and Forfeiture Money J. ("Government's Motion" or "Gov't. Mot."), Dkt. Entry No. 203; Def. Opp. to Gov't. Mot. ("Def. Opp."), Dkt Entry No. 206; Reply in Further Supp. of Gov't. Mot. ("Gov't. Reply"), Dkt. Entry No. 208.)

By motion dated September 9, 2016, Defendant moved for a judgment of acquittal on the money laundering counts, Counts Five and Six, pursuant to Rule 29 of the Federal Rules of Criminal Procedure, or in the alternative, a new trial on those counts pursuant to Rule 33. (Def. Mot. for J. of Acquittal or New Trial ("Defendant's Motion" or "Def. Mot."), Dkt. Entry No. 204; See Reply in Further Supp. of Def. Mot., Dkt. Entry No. 209.) In a footnote, Defendant also renewed the Rule 29 applications he made at trial following the close of the government's and Defendant's cases in chief as to Counts One through Four. (Def. Mot. at 12 n.2.) The government opposes Defendant's Motion. (Gov't. Opp. to Def. Mot. ("Gov't. Opp."), Dkt. Entry No. 207.)

For the reasons set forth below, Defendant's Motion is denied in its entirety and the Government's Motion is granted, in part. The Court finds the Defendant is liable for and must forfeit at least $3,090,044.10, which represents the entire amount sought by the government for the Class I and Class II Claims. The Court will determine the additional amount Defendant must forfeit, if any, at the time of sentencing. As set forth below, Discussion § II.C.2.c, pp. 38-43, infra, the parties' sentencing submissions shall address the concerns raised by the Court regarding the government's calculation of the Class III forfeiture amount. A sentencing scheduling order will issue separately.

BACKGROUND¹

Defendant is a skilled general surgeon who enjoyed admitting privileges at nine hospitals² in Brooklyn, New York and Long Island, New York. (See Trial Transcript ("Tr."), Dkt. Entry Nos. 190-98 at 1628.) The conduct at issue in this case relates to Defendant's practice of fraudulently billing Medicare for procedures purportedly performed at these hospitals that he did not actually perform.

A. Medicare

Medicare, a federal health care program for individuals aged 65 or older, reimburses doctors for the cost of providing medical services to program beneficiaries. To apply forreimbursement, doctors submit claims that include certain information about the beneficiary and the services rendered. Medicare operates as a "trust-based system" (Tr. at 113), meaning that Medicare does not verify that procedures were actually performed by, for example, cross-referencing claims with medical records, but rather it relies on the representations of the medical professionals that each claim submitted was performed as billed.

Each medical service provided by a doctor is identified by a billing code known as a Current Procedural Terminology ("CPT") code. (See Government Exhibits ("GX") 98, 101.) CPT codes are established by the American Medical Association and made available to the medical community in publications that list and define each code. (See Id.) At trial, the bulk of the evidence presented by the government focused on Defendant's billing with respect to 11 CPT codes related to wound debridement and incision-and-drainage abscesses (the "Indictment Procedures") that Defendant billed to 16 patients (the "Featured Patients") over the period covered by the Indictment.³ (See GX 649; See also Indictment, Dkt. Entry No. 22, at ¶ 8.)

With respect to surgeries, Medicare reimburses doctors for the "global surgical package," which includes, not only each surgery itself, but any medical care incidental to the surgery, such as pre- and post-operative visits, pain management, and dressing changes that are needed within a prescribed time period of the surgery. Most incidental medical services are considered part of the global surgical package, if performed during a specified length of time called the "global period." (See GX 34 (listing the global period for the Indictment Procedures).) Rather than reimburse doctors for each of these medical services separately, Medicare makes one lump sum payment for the entire global surgical package. However, Medicare makes an exception to this single paymentpolicy for unplanned trips to the operating room that may be necessary due to, among other things, complications from the initial surgery. Such surgeries are individually reimbursable, even if they occur during the global period. In order to indicate that a given procedure was performed during an unplanned trip to the operating room, doctors submit claims with a "modifier" code "78". The AMA CPT books introduced at trial define Modifier 78 as follows:

Unplanned return to the operating/procedure room by the same physician or other qualified health care professional following initial procedure for a related procedure during the postoperative period:

It may be necessary to indicate that another procedure was performed during the postoperative period of the initial procedure (unplanned procedure following initial procedure). When this procedure is related to the first and requires the use of an operating/procedure room, it may be reported by adding modifier -78 to the related procedure (for repeat procedures, see modifier -76).

(GX 98 at 569; GX 101 at 79.)

Documentation that is available on the United States Department of Health and Human Services' ("HHS") website explains Medicare billing concepts to the medical community, including information regarding Modifier 78. One such resource that the government introduced at trial, called a "Global Surgery Fact Sheet," explains the meaning of "operating room" for purposes of this return trip procedure:

Treatment for post-operative complications requiring a return trip to the Operating Room (OR). An OR, for this purpose, is defined as a place of service specifically equipped and staffed for the sole purpose of performing procedures. The term includes a cardiac catheterization suite, a laser suite, and an endoscopy suite. It does not include a patient's room, a minor treatment room, a recovery room, or an intensive care unit (unless the patient's condition was so critical there would be insufficient time for transportation to an OR).

(GX 32, at 3, Global Surgery Fact Sheet ("Global Surgery Fact Sheet,") available at http://www.cms.gov/Outreach-and-Education/Medicare-Learning-Network-MLN/MLNProducts/downloads/GloballSurgery-ICN907166.pdf.) This fact sheet also sets forth "[w]hat services are included in the global surgery payment," which includes "all additionalmedical or surgical services required of the surgeon during the post-operative period of the surgery because of complications, which do not require additional trips to the operating room." (Id.)

At trial, the government elicited testimony to demonstrate how Modifier 78 works in practice, using CPT Code 21501 as an example. (Tr. at 156.) Code 21501, which is the code for "Incision and drainage, deep abscess or hematoma, soft tissues of neck or thorax," has a 90-day global period. (GX 34.) This means that, for a given procedure, any "intraoperative services that are considered to be usual and necessary" occurring the day before, the day of, or within 90 days after the procedure must be billed as a single claim using CPT code 21501. (GX 101 at 319-20 (describing the "global surgical package").) If, however, the patient requires a second procedure during the 90-day window, the doctor may submit a second claim for CPT code 21501 and append the Modifier 78 to signify that the second procedure was an "[u]nplanned return trip to the operating/procedure room" that is separate from the procedure corresponding to the first claim submitted. The doctor then would be entitled to receive payment for each of the two claims.

B. Defendant's Scheme to Defraud Medicare

At trial, the government presented overwhelming evidence that Defendant defrauded Medicare by submitting claims for procedures that were not performed as billed or were not performed at all. To prove Defendant's fraudulent scheme, the government presented three main categories of evidence, which the Court will summarize in turn.

1. The Featured Patients

The evidence presented by the government centered on the 16 Featured Patients, nine of whom either testified at trial themselves or, for some elderly or deceased patients, a family member or friend with knowledge of their hospital stays testified in their place. For the remaining seven patients, the government introduced the patients' medical records and presented the testimony ofDr. Frank Ross, M.D., a general surgeon and an associate professor of surgery at the New York University Hospital School of Medicine, who was accepted by the Court as an expert in wound care and general surgery. (Tr. at 346, 359.)

The unrebutted evidence introduced at trial showed that Defendant billed over two thousand surgeries for the 16 Featured Patients during what, for many, were brief hospital stays. Credible testimony from the patients, or other individuals with knowledge, supported the government's contention that Defendant did not perform any of the Indictment Procedures he...