United States v. Moss

34 F.4th 1176

UNITED STATES of America, Plaintiff-Appellee,

v.Douglas MOSS, Defendant-Appellant.

United States of America, Plaintiff-Appellee,

v.Douglas Moss, Defendant-Appellant.

No. 19-14548

No. 19-14565

United States Court of Appeals, Eleventh Circuit.

Filed: May 20, 2022

Michelle Lee Schieber, U.S. Attorney Service - Middle District of Georgia, U.S. Attorney's Office, Macon, GA, Finnuala K. Tessier, U.S. Department of Justice, Criminal Division, Appellate Section, Washington, DC, for Plaintiff-Appellee.

Edward T.M. Garland, John Aspinwall Garland, Garland Samuel & Loeb, PC, Atlanta, GA, Randy Scott Chartash, Chartash Law, LLC, Atlanta, GA, for Defendant-Appellant.

Before William Pryor, Chief Judge, Luck, and Ed Carnes, Circuit Judges.

On Petition for Rehearing by the Panel

ED CARNES, Circuit Judge:

We issued an opinion in this appeal on April 12, 2022. The defendant-appellant, Douglas Moss, filed a petition for rehearing en banc, which we will consider as a petition for panel rehearing. See 11th Cir. R. 35, I.O.P. 2 ("A petition for rehearing en banc will also be treated as a petition for rehearing before the original panel."); Cadet v. Fla. Dep't of Corr. , 853 F.3d 1216, 1218 (11th Cir. 2017) ("At least until an order granting or denying the petition for rehearing en banc is issued, a panel retains authority to modify its decision and opinion.").

The petition, insofar as it requests panel rehearing, is granted to the extent that we vacate our earlier opinion, United States v. Moss , 30 F.4th 1271 (11th Cir. 2022), and issue this one in its place.

The petition for rehearing en banc remains pending. In light of the issuance of this revised panel opinion, Moss is granted 21 days to file a supplement to his petition for rehearing en banc, if he wishes to do so. See Fed. R. App. P. 40(a)(4)(C) ; Meders v. Warden, Ga. Diagnostic Prison , 911 F.3d 1335, 1337 (11th Cir. 2019). He is not required to file a supplement. If he does file one and the Court desires a response from the government, it will be requested.

This is our revised opinion:¹

Medicare and Medicaid combined spend $1,500,000,000,000 a year, which is more than one-third of the total health expenditures in this country.² Like other government health care programs, these two work on the honor system. Trust and more trust. Both programs take a pay first, ask questions later (if ever) approach. Which leads to crime and more crime, both sooner and later.

A trust-based system is only as good as the people who are trusted. Douglas Moss is one of those who was trusted but not trustworthy.³ As a physician, he fraudulently billed Medicare and Medicaid for millions of dollars for visits to nursing home patients that he never made. Someone else with a lower billing rate made some of those visits, and others never took place.

For his fraudulent conduct, Moss was convicted of conspiracy and substantive health care fraud, sentenced to 97 months imprisonment, ordered to pay restitution of about 2.2 million dollars, and ordered to forfeit around 2.5 million dollars. He appeals, challenging the convictions, sentence, restitution amount, and forfeiture amount, which is nearly every component of the judgment against him. And he loses on every component of his appeal.

I. FACTUAL BACKGROUND

To explain Moss’ crimes (what he did, not why he did it which is obvious) we will begin with how Medicare and Medicaid determine how much health care providers will be paid. Then we will turn to how Moss arranged his billing practices to defraud the programs.

A. Medicare and Medicaid

Medicare and Medicaid are federally funded health care programs. To make things simpler, from this point forward we will focus on Medicare (which suffered the brunt of his fraud) with the understanding that what is said about it applies to Medicaid as well, except where noted.

Medicare pays "claims," which are requests by a health care provider to be "reimbursed" (paid) for services provided to Medicare recipients. A claim contains a variety of information, including where the medical service was provided, the dollar amount being billed to Medicare, and an identification number for the health care provider. It also contains a code for the procedure or service performed.

Those codes are called the "CPT codes," which stands for Current Procedural Terminology codes. CPT codes are a national uniform coding structure created for use in billing and overseen by the American Medical Association. They are used by all health insurance companies and by Medicare and Medicaid. A code represents at least two things: the procedure or service performed and the level of complexity involved in it. One type of procedure or service can have more than one CPT code because the same procedure may, in some cases, be more complex than in others. Generally, for any given category of procedure, the more complex the performance, the higher the number used for its code. In turn, a higher CPT code generally gets a higher reimbursement amount from Medicare.

Most of the fraud in this case involves claims for visits to nursing homes, so we will use that area of care to illustrate how CPT codes work. When a patient enters a nursing home, a health care provider's first visit with that patient is categorized as "initial nursing facility care," which corresponds to a particular set of three CPT codes. The highest of those three is 99306. According to a CPT manual issued by the AMA, a 99306 coded visit "requires these 3 key components: [a] comprehensive history; [a] comprehensive examination; and [m]edical decision making of high complexity." Giving that code to a visit also means that the problem requiring admission to the nursing home is usually one of "high severity," and that the health care provider's visit typically takes 45 minutes.

For later visits to nursing home patients, which are categorized as "subsequent nursing facility care," there are four codes: 99307, 99308, 99309, and 99310. For 99309, the CPT manual states that it requires two of the following three "key components": a detailed interval history, a detailed examination, and medical decision making of moderate complexity. The manual also states that for a 99309 coded visit: "[u]sually, the patient has developed a significant complication or a significant new problem" and "[t]ypically, 25 minutes are spent at the bedside and on the patient's facility floor or unit." As for code 99310, the first two "key components" must be "comprehensive" instead of just "detailed" and the third must involve "[m]edical decision making of high complexity" instead of just "moderate complexity." The manual states that "[t]he patient may be unstable or may have developed a significant new problem requiring immediate physician attention," and that the visit typically takes 35 minutes.

For Medicare to pay a claim (or "reimburse" it), several requirements must be met. The service must be provided to a real patient who is properly enrolled as a Medicare beneficiary; it must be provided by a health care provider properly licensed and "enrolled" as a Medicare provider; it must be a service covered by Medicare; and it must be properly documented and billed. The service also must be reasonable and medically necessary. Health care providers sign a "certification statement" agreeing that they will comply with all of those requirements and will not submit false claims.

When Medicare reimburses a claim, the amount that it pays is based on a predetermined fee schedule that it sets. A health care provider is free to submit a claim for a dollar amount that exceeds the amount in the fee schedule, but Medicare will not pay more than the schedule amount. It is common practice for physicians to submit claims exceeding the amount in the fee schedule, even though they know they won't get reimbursed the excess amount.

An important fact that determines how much Medicare pays the provider is whether the service was performed by a physician or a non-physician. In the nursing home setting, Medicare requires a distinction between non-physicians, or "mid-level practitioners" as they are called, and physicians. Physician's assistants and nurse practitioners must bill at a rate that is only 85% of the physician's rate.

And to properly bill Medicare at the physician's rate for services provided in a nursing home setting, the physician must be the one in the patient's room directly providing the service to the patient. When an assistant performs the service, the claim submitted to Medicare must disclose that fact.

B. The Fraud Scheme

Moss was the medical director and attending physician at four nursing homes. He recruited Shawn Tywon to be his physician's assistant and, as it turned out, his co-conspirator. Moss had Tywon help with the nursing home patients, and he trained Tywon how to conduct visits with those patients.

Between January 2012 and January 2015 Moss billed 31,714 claims to Medicare for nursing home visits; 477 were coded as 99306, the highest code for "initial nursing facility care." And 25,468 were coded as 99309, and 5,769 as 99310, which are the two highest codes for "subsequent nursing facility care." In that three-year period, Moss billed $6,701,163.00 for those claims, and Medicare reimbursed him $2,171,098.85. As for Medicaid, during that same three-year period, Moss billed 17,336 claims for those same codes, and Medicaid paid him $336,524.84. Nearly all of those claims were submitted to Medicare as though Moss had personally performed the services.

Those numbers suggest a staggering amount of work, a seemingly impossible amount of it. And, as it turned out, that amount of work was impossible. The claims Moss submitted would have required him to see more than 50 patients a day for 293 of the days in the three-year conspiracy period, and even more than 100 a day on some days and more than 150 a day on other days. Not only that, but based on how long the CPT manual suggested those visits should take, Moss was sometimes billing...