Petition for Writ of Certiorari — Henry Evans, Petitioner v. United States
Supreme Court briefJun 3, 2021
Ask Donna
What actually matters in this document.
Text
No. _________
================================================================================================================
In The
Supreme Court of the United States
---------------------------------♦--------------------------------HENRY M. EVANS, M.D.,
v.
Petitioner,
THE UNITED STATES OF AMERICA,
Respondent.
---------------------------------♦--------------------------------On Petition For A Writ Of Certiorari
To The United States Court Of Appeals
For The Fifth Circuit
---------------------------------♦--------------------------------PETITION FOR A WRIT OF CERTIORARI
---------------------------------♦--------------------------------HERBERT V. LARSON, JR.
Counsel of Record
KELLY P. MITCHELL
700 Camp Street
New Orleans, Louisiana 70130
(504) 528-9500
hvl@hvllaw.com
VINCENT J. BOOTH
Booth & Booth, A. P.L.C.
138 N. Cortez Street
New Orleans, Louisiana 70119
(504) 482-5292
Attorneys for
Henry M. Evans, M.D.
June 3, 2021
================================================================================================================
COCKLE LEGAL BRIEFS (800) 225-6964
WWW.COCKLELEGALBRIEFS.COM
i
QUESTIONS PRESENTED FOR REVIEW1
The administration of the Medicare and Medicare
programs is conducted through and governed by a
large body of regulations, rules, and policies issued by
CMS (the Center for Medicare & Medicaid Services),
pursuant to the rule-making authority granted to it by
Congress. In this Court, and every Circuit Court of
Appeal except the Fifth Circuit, these regulations,
rules and policies have been described as “controlling.”
At his criminal trial, Dr. Evans sought to show
that he had complied with the CMS definition of
“homebound,” and thus was not guilty of health care
fraud. However, the district court refused to instruct
the jury on the relevant regulations, while allowing a
Government expert to give testimony on “homebound
status” that was not based on the CMS regulations.
The Fifth Circuit affirmed Dr. Evans’s convictions,
holding that “to the extent that the Medicare
regulations provide guidance as to which patients
qualify as homebound, it is akin to a term of art.” The
Fifth Circuit further held that “the word [homebound]
has a meaning outside of these parameters,” and found
the admission of the expert’s testimony was not an
abuse of discretion. The Fifth Circuit’s opinion
presents these questions for review by this Court:
1.) Are the Medicare rules, regulations, and policies
“controlling” in a criminal prosecution under
18 U.S.C. § 1347; i.e. is evidence of compliance or
1
The caption of the case contains the names of all the parties to the
proceeding in the court whose judgment is sought to be reviewed.
ii
QUESTIONS PRESENTED FOR REVIEW
—Continued
non-compliance with the rules, regulations and
policies always relevant to a determination of
fraud?
2.) If the Medicare rules, regulations, and polices are
not “controlling,” but are “terms of art,” as the
Fifth Circuit opined, must these rules, regulations,
and policies nevertheless guide the “reliable
principles and methods” of any witness proffered
as an expert in eligibility for Medicare benefits?
iii
RELATED CASES
United States v. Jonathon Nora, 988 F.3d 823
(5th Cir. 2021), No. 18-31078. Judgment reversing
defendant’s judgment of conviction and sentence
entered on February 24, 2021.
iv
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES .................................
vi
PETITION FOR A WRIT OF CERTIORARI .......
1
OPINIONS BELOW.............................................
1
JURISDICTIONAL STATEMENT ......................
1
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED ...............................
2
STATEMENT OF THE CASE..............................
3
1.
Introduction ...............................................
3
2.
The trial of Dr. Evans ................................
5
3.
Dr. Evans’s appeal to the Fifth Circuit ..... 10
4.
The opinion of the Fifth Circuit ................ 11
ARGUMENT AND REASONS FOR GRANTING
THE WRIT ........................................................ 13
1.
The Fifth Circuit has decided an
important federal question in a way that
conflicts with the decisions of this Court,
and with the decisions of other United
States courts of appeals ............................. 13
2.
The Fifth Circuit has decided a second
important question of federal law which
has not been, but which should be decided
by this Court .............................................. 18
CONCLUSION ..................................................... 23
v
TABLE OF CONTENTS—Continued
Page
APPENDIX
United States Court of Appeals for the Fifth
Circuit, Opinion, dated Oct. 28, 2020 .............. App. 1
United States District Court, Eastern District of
Louisiana, Judgment, dated Sep. 28, 2018 .... App. 64
United States Court of Appeals for the Fifth
Circuit, Denial of Rehearing, dated Jan. 4,
2021 ................................................................ App. 78
vi
TABLE OF AUTHORITIES
Page
CASES
Ark. HHS v. Ahlborn,
547 U.S. 268 (2006) ................................................... i
Azar v. Allina Health Services,
___ U.S. ___, 139 S. Ct. 1804 (2019) .............. 3, 13, 17
Caring Hearts Pers. Home Servs. v. Burwell,
824 F.3d 968 (10th Cir. 2016) ........................ 7, 17, 18
Connally v. Gen. Constr. Co.,
269 U.S. 385 (1926) .................................................17
Daubert v. Merrill Dow Pharm., Inc.,
509 U.S. 579 (1993) ......................................... passim
General Elec. Co. v. Joiner,
522 U.S. 136 (1997) ......................................... passim
Kisor v. Wilkie,
___U.S. ___, 139 S. Ct. 2400 (2019) ...........................4
Kumho Tire Co. Ltd. v. Carmichael,
526 U.S. 137 (1999) ........................... 5, 11, 12, 20, 22
Siddiqi v. United States,
98 F.3d 1427 (2d Cir. 1996) .....................................16
United States v. Anderson,
980 F.3d 423 (5th Cir. 2020) ....................................21
United States v. Barnes, et al.,
979 F.3d 283 (5th Cir. 2020) ......................................1
United States v. Chhibber,
741 F.3d 852 (7th Cir. 2014) ....................................21
United States v. Laub,
385 U.S. 475 (1967) .................................................17
vii
TABLE OF AUTHORITIES—Continued
Page
United States v. Levin,
973 F.2d 463 (6th Cir. 1992) ....................................16
United States v. Martinez,
588 F.3d 301 (6th Cir. 2009) ....................................21
United States v. Memar,
906 F.3d 652 (7th Cir. 2018) ....................................22
United States v. Mitchell,
165 F. App’x 821 (11th Cir. 2006) ............................15
United States v. Whiteside,
285 F.3d 1345 (11th Cir. 2002) ................................16
Universal Health Servs. v.
United States ex rel. Escobar,
___ U.S. ___, 136 S. Ct. 1989 (2016) ........................14
CONSTITUTIONAL PROVISIONS
U.S. Const. amend. V ....................................................2
STATUTES
18 U.S.C. § 1347 .................................................. 3, 5, 21
31 U.S.C. § 3729(a)(1)(A) ............................................14
42 U.S.C. § 13210a-7b ...................................................4
RULES
Fed. R. Evid. 702 ..................................... 2, 5, 19, 20, 22
viii
TABLE OF AUTHORITIES—Continued
Page
REGULATIONS
Chapter 7 of the Medicare Benefit Policy Manual
(MBPM), Pub. L. No. 100-02, Ch. 7, § 30.1.1
(Rev. 233, February 24, 2017) ......................... passim
LEGISLATIVE MATERIALS
Pub. L. No. 104-191, 110 Stat. 1936 (1996) ..................3
OTHER AUTHORITIES
Annual Report of the Departments of Health and
Human Services and Justice, “Health Care
Fraud and Abuse Control Program, FY 2014,”
available at https://www.justice.gov/criminalfraud/file/1233021/download, (last visited May
24, 2021) ....................................................................3
1
PETITION FOR A WRIT OF CERTIORARI
Petitioner Henry M. Evans, M.D. respectfully
petitions this Honorable Court for a writ of certiorari
to review the judgment of the United States Court of
Appeals affirming Evans’s convictions.
---------------------------------♦---------------------------------
OPINIONS BELOW
The opinion of the United States Court of Appeals
for the Fifth Circuit affirming Evans’s convictions is
reported as United States v. Barnes, et al., 979 F.3d 283
(5th Cir. 2020). The opinion of the United States Court
of Appeals for the Fifth Circuit denying Evans’s
petition for rehearing en banc is not reported, but is
attached to this petition at App.78.
---------------------------------♦---------------------------------
JURISDICTIONAL STATEMENT
The district court had jurisdiction over these
proceedings pursuant to 18 U.S.C. § 3231. The Court of
Appeals for the Fifth Circuit had jurisdiction over
Evans’s appeal pursuant to 28 U.S.C. § 1291. Evans
timely petitioned the Court of Appeals for the Fifth
Circuit for a rehearing en banc, which was denied on
January 4, 2021. This petition for a writ of certiorari is
therefore timely, and this Honorable Court has
jurisdiction pursuant to 28 U.S.C. § 1254(1).
---------------------------------♦---------------------------------
2
CONSTITUTIONAL AND
STATUTORY PROVISIONS INVOLVED
The Fifth Amendment to the United States
Constitution provides in pertinent part:
No person shall . . . be deprived of life, liberty, or
property without due process of law. . . .
Federal Rule of Evidence 702 provides as follows:
Rule 702. Testimony by Expert Witnesses
A witness who is qualified as an expert by
knowledge, skill, experience, training, or education
may testify in the form of an opinion or otherwise
if:
(a) the expert’s scientific, technical, or other
specialized knowledge will help the trier
of fact to understand the evidence or to
determine a fact in issue;
(b) the testimony is based on sufficient facts
or data;
(c) the testimony is the product of reliable
principles and methods;
(d) the expert has reliably applied the principles and methods to the facts of the case.
---------------------------------♦---------------------------------
3
STATEMENT OF THE CASE
1.
Introduction
As this Court recently wrote, “[o]ne way or another,
Medicare touches the lives of nearly all Americans.”4
It is the second largest federal program, and spends
over $700 billion annually.5 Because such large
amounts of money inevitably invite fraud, the scope of
which is also substantial,6 the federal government
prosecutes health care fraud vigorously.7
One of the most important federal prosecutorial
tools is the federal “Health Care Fraud Statute,” 18
U.S.C. § 1347, first enacted in 1996 as part of the
Health Insurance Portability and Accountability Act of
1996 (“HIPAA”).8 Like the other federal “fraud”
statutes, i.e., the mail fraud statute, the wire fraud
statute, and the bank fraud statute, the Health Care
Fraud Statute does not define fraud. Instead, Congress
simply made it a federal crime “to defraud any health
care benefit program.” It was left to the federal courts
to fill in the definitional gaps in the legislation.
Azar v. Allina Health Services, ___ U.S. ___, 139 S. Ct.
1804, 1808 (2019).
5
Id.
6
See Annual Report of the Departments of Health and Human
Services and Justice, “Health Care Fraud and Abuse Control
Program, FY 2014,” available at https://www.justice.gov/
criminal-fraud/file/1233021/download (Last visited 05/24/2021).
7
Id.
8
Pub. L. No. 104-191, 110 Stat. 1936 (1996).
4
4
But the Health Care Fraud Statute was not born
into a complete vacuum, nor has it matured in one.
Rather, it lives alongside of the other criminal statutes
used to prosecute health care fraud, e.g., the “AntiKickback Statute,”9 and it coexists with almost countless Medicare regulations, rules, and policy statements.
Because these regulations, rules, and policies have the
force of law,10 district and appellate courts have
referred, and deferred11 to them when adjudicating
both civil and criminal health care fraud cases.
This judicial practice has been especially true in
criminal cases, in which almost every court that has
addressed the role of Medicare’s rules and regulations
has treated them as “controlling” in helping to
determine what is and is not fraudulent behavior in
the extremely complex and highly regulated realm of
health care. Courts have implicitly and explicitly
recognized both the practical, and the due process
implications of prosecuting someone who followed the
regulations promulgated by Medicare in good faith.
Until now. In a decision that can only be described
as unprecedented, in the fullest sense of the term, the
Fifth Circuit Court of Appeals has reduced Chapter 7
of the Medicare rules and regulations to a “term of art,”
while simultaneously disregarding the decisions of
42 U.S.C. § 13210a-7b.
See Kisor v. Wilkie, ___U.S. ___, 139 S. Ct. 2400 (2019), at
2415: “The regulation then just means what it means—and the
court must give it effect, as the court would any law.”
11
Id. at 2408.
9
10
5
this Court in Daubert v. Merrill Dow Pharm., Inc,12
General Elec. Co. v. Joiner,13 and Kumho Tire Co. Ltd.
v. Carmichael.14 In doing so, the Fifth Circuit has
decided important questions of federal law in a way
that conflicts with decisions of other courts of appeals,
and in a way that conflicts with decisions of this Court.
Full review by this Court is warranted, because it has
never addressed the question of whether the Medicare
regulations, rules and policies, are “controlling” in a
criminal prosecution. Review is also necessary because
there is a need for this Court to define the relationship
between those Medicare rules and regulations and the
“reliability” required of expert testimony admitted
pursuant to FRE 702.
2.
The trial of Dr. Evans
In March, 2015, the United States indicted Dr.
Henry Evans and 19 others for fraud related to home
health care. Evans was named as a defendant in two
conspiracy counts, and in eight substantive counts
alleging violations of the health care fraud statute (18
U.S.C. § 1347).
In its pre-trial memorandum, the Government
described its evidence of the alleged scheme, and its
theory of culpability as follows:
509 U.S. 579 (1993).
522 U.S. 136 (1997).
14
526 U.S. 137 (1999).
12
13
6
The Government has chosen certain beneficiaries as examples of how the defendants
executed the health care fraud scheme. These
examples are separate counts in the Indictment, and show how the defendants caused
Medicare to be billed for medically unnecessary episodes of home health services
(emphasis added).
The Government contended the episodes were not
medically necessary because the patients were not
actually “homebound.”
The entirety of the Government’s indictment was
built around that one factual premise. The Government contended all the defendant doctors, aided by
others, falsely certified patients as “homebound,” and
then referred those patients to Abide Home Care
Services, Inc. (Abide) for medically unnecessary
treatment, purely for financial gain. As a consequence,
the issue of whether the patients named in the indictment (and by inference others) were in fact “homebound” was at the center of the defendants’ 21-day
trial. Critically, also at the center were the Medicare
regulations regarding “home health care,” which were
intrinsic to the indictment. In fact, references to the
Medicare rules or regulations regarding home health
care can be found on every single page of the 49-page
indictment, except the signature page.
In all Medicare matters the term “homebound”
has a very specific meaning: the one set out in Chapter
7 of the Medicare Benefit Policy Manual (MBPM), Pub.
L. No. 100-02, Ch. 7, § 30.1.1 (Rev. 233, February 24,
7
2017). Judicially, the definition has been treated as
“controlling.” See Caring Hearts Pers. Home Servs. v.
Burwell, 824 F.3d 968, 977 (10th Cir. 2016) ((now)
Justice Gorsuch) (describing Chapter 7 of the MBPM’s
definition of “homebound” as a “controlling regulation”).
At the trial of Evans and five of his co-defendants,
the Government offered only a single expert witness on
the question of whether the eight patients specifically
listed in the indictment were in fact “homebound”: Dr.
Brobson Lutz, who was qualified (over the objection of
defense counsel) as “an expert in the area of internal
medicine and the medical necessity of home health
services.”
On direct examination, the Government questioned Lutz about each of the eight “illustrative”
patients in the indictment, using the terminology of
the Medicare regulations—e.g., “episode”; “recertification”; “considerable and taxing effort”; “medical
necessity.”
In every case, Lutz stated categorically that the
patient was not homebound for some, or all of the
episodes billed to Medicare. But at no time during his
direct testimony did Lutz, or the Government, ever
indicate that Lutz might not be relying upon the
Medicare definition of “homebound,” in giving his
expert opinion regarding the “homebound status” of
each patient.
However, cross-examination revealed that Lutz was
not employing the Medicare definition of “homebound”
8
in formulating his expert opinion. He had his own
definition:
A. (By Lutz) Well, they [ the regulations]
have a somewhat liberal definition of
homebound [sic], but the key to the whole
thing is, does the person need skilled nursing
visits at home or physical therapy, occupational therapy, do they need—do they need the
services.
***
(Lutz, continued) My definition—or my
thinking of homebound is when somebody has an illness where they literally
can’t get out of the house without doing
an ambulance or something, or where it
takes an army or a village or something
to get them out.
I think that the—Medicare definition
that you’re talking about in Chapter 7 is
liberal . . . * * *
Q. (By counsel for Evans) All right, I will ask
you again. During your testimony over the
last two days, you did not on one occasion refer
to a specific Medicare regulation when
determining whether or not the patient was
homebound, did you, Dr. Lutz.
A. (by Lutz) If I wasn’t asked to, I doubt if I
did.
This led to the following exchange, at a bench
conference during the cross-examination of Lutz by
counsel for Evans:
9
(Government Counsel): I didn’t ask him
anything about the regulations, I asked him
about—
(Counsel for Evans)
That’s right.
(Government Counsel) —in his job as an
internist, his experience with home health,
and based upon his looking at the records, did
they qualify for home health and the need
for skilled services.
(The Court) But he wouldn’t be able to
answer that without knowing something
about how you qualify for home health.
(Government Counsel)
experience. [sic].
That’s out of his
(The Court) But he can’t just have made
it up. He must know what the regulation[s] say—
(Government Counsel) Well, let’s ask him
if he’s ever read Chapter 7 before this.
[sic].
Ultimately, and perhaps inadvertently, the district
court concluded that Lutz was not an expert in the
relevant field of expertise: determining whether a
patient is “homebound” as defined by the MBPM:
(The Court) But he [Lutz] hasn’t testified—
all—he has said in his opinion as a doctor
making a decision about whether someone
needs home health care services, that that
would have an impact about whether they
needed it. Now whether that technically
10
under the Medicare regulations affects
the determination, I don’t think this
witness is qualified to testify about that.
(Counsel for Evans) Well, I think he should
be, Judge, if he’s going to come and give
opinions about whether or not people are not
homebound. * * *
Neither the other defendants, nor Evans offered any
expert testimony in the defense case regarding the
homebound status of any of the patients.
At the conclusion of trial all defendants specifically requested that the jury be instructed on the
relevant Medicare regulations and policies governing
home health care. The request was denied by the
district court. Following deliberations, the jury
convicted all defendants of one or more counts in the
indictment. Evans was acquitted of all the conspiracy
counts, and several of the substantive healthcare fraud
counts, but was convicted of substantive charges of
health care fraud with regard to two patients, for
billings totaling $6,626.
Thereafter, Evans was sentenced to 50 months
imprisonment, followed by supervised release, and
ordered to pay restitution of $1,262,043.
3.
Dr. Evans’s appeal to the Fifth Circuit
In his appeal to the Fifth Circuit, Evans argued
that the binding nature of the Medicare regulations
had to prevail over the opinions of the Government’s
11
lone expert. Because that expert was either ignorant
of, or simply disregarded those regulations, his testimony was “unreliable,” as the term has been defined by
this Court in Daubert v. Merrill Dow Pharm., Inc,15
General Elec. Co. v. Joiner,16 and Kumho Tire Co. Ltd.
v. Carmichael.17 Evans contended that Daubert’s
statement that expert testimony that rests solely on
“subjective belief or unsupported speculation” is not
reliable was a compelling basis for reversing the
district court.
Evans further argued that when the holding of
Daubert is coupled with other relevant caselaw
explicitly holding that an expert’s opinions in a
Medicare case are unreliable when they conflict with
the controlling Medicare regulations, there could be
no doubt that the testimony of the Government’s
expert was inadmissible. Because the totality of the
Government’s expert testimony on the “homebound”
status of the patients was based on one man’s opinion,
and that opinion was not based on regulations and
policies that are “controlling,” Evans asked that his
convictions be reversed.
4.
The opinion of the Fifth Circuit
The Fifth Circuit panel conceded that Lutz’s
expert testimony was not based on the relevant
Medicare regulations and policies (App.37). It also
509 U.S. 579 (1993).
522 U.S. 136 (1997).
17
526 U.S. 137 (1999).
15
16
12
acknowledged that the testimony “arguably may have
injected confusion at trial” (App.37) and that Lutz’s
expert “determinations as to the homebound status of
these patients [named in the indictment] could have,
at a minimum, confused the jury.” (App.38). But the
panel never reached the question of whether this made
Lutz’s testimony unreliable under Daubert, Joiner, and
Kumho Tire.
Instead, the panel found the Medicare rules,
regulations, and policies to be something much less
than “controlling,” even in a criminal Medicare fraud
case: “[t]o the extent that the Medicare regulations
provide guidance as to which patients qualify as
homebound, it is akin to a term of art.” (App.38).
Having reduced Chapter 7 of the Medicare Benefit
Policy Manual (MBPM), Pub. L. No. 100-02, Ch. 7,
§ 30.1.1 (Rev. 233, February 24, 2017) to a “term of art,”
the panel then found that it was not an abuse of
discretion for there to be two definitions of “homebound” at Evans’s trial. In the panel’s words: “Although
the record is not entirely clear, the district court
appears to have drawn a distinction between “the
medical necessity of home health services” and
whether the patient qualified for home health care
under Medicare.” (App.37). [Parenthetically, no such
distinction was ever articulated by the district judge,
nor was the jury ever instructed on this distinction—
or on any other aspect of the Medicare regulations
governing home health care.]
13
Although ultimately the panel was “troubled by
some aspects of Lutz’s testimony,” (App.38-39), it concluded that counsel’s effective cross-examination
“clearly demonstrated for the jury that Dr. Lutz’s
determinations were based on his own, more conservative view of which patients were in fact ‘homebound.’ ”
(App.39). Accordingly, the Fifth Circuit did not reverse
Evans’s convictions.
---------------------------------♦---------------------------------
ARGUMENT AND REASONS
FOR GRANTING THE WRIT
1.
The Fifth Circuit has decided an important
federal question in a way that conflicts with
the decisions of this Court, and with the
decisions of other United States courts of
appeals.
This Court recently recognized that Medicare’s
“rule[s], requirement[s], or other statement[s] of policy” shape the “substantive legal standar[s] governing
. . . the payment for services, or the eligibility . . . to
furnish or receive services or benefits under Medicare.”18 It should follow that when a doctor certifies a
patient as legally eligible for home health care benefits
under Medicare, the relevant rules, requirements, and
policies control whether that certification was false or
fraudulent.
Azar v. Allina Health Services, ___ U.S. ___, 139 S. Ct.
1804, 1809 (2019) (quoting 42 U.S.C. § 1395hh(a)(2)) (internal
marks omitted).
18
14
The Court demonstrated this point in Universal
Health Services v. United States ex rel. Escobar.19 In
addressing whether an “implied false certification”
constitutes a “false or fraudulent” claim in a civil
prosecution under the False Claims Act20 21 the Court
made clear that regulatory non-compliance is central
to whether the claim are false or fraudulent:
“When, as here, a defendant makes representations in submitting a claim but omits its
violations of statutory, regulatory, or
contractual requirements, those omissions
can be a basis for liability if they render the
defendant’s representations misleading with
respect to the goods or services provided.”22
The Court subsequently emphasized the importance of
regulatory non-compliance in determining the misstatement’s materiality: “a misrepresentation about
compliance with a statutory, regulatory, or contractual
requirement must be material to the Government’s
payment decision in order to be actionable under the
False Claims Act.”23
But while the rationales of these two decisions
seemingly indicate the health care rules and regulations control all allegations of federal health care
19
Universal Health Servs. v. United States ex rel. Escobar,
___ U.S. ___, 136 S. Ct. 1989 (2016).
20
31 U.S.C. § 3729(a)(1)(A)
21
Escobar, 136 S. Ct. at 1998-1999.
22
Id. at 1999 (emphasis added).
23
Id. at 2002.
15
fraud, the Court has never directly addressed the issue
in the context of a criminal prosecution. The Circuit
Courts of Appeals have, however, with divided results.
In United States v. Mitchell, the Eleventh Circuit
explained the centrality of Medicare’s rules and
regulations in prosecuting criminal health care fraud:
“in order to establish both that the [Medicare] claims
were deceptive and that [the defendant] acted with
scienter,” the Government must “introduce evidence of
what the Medicare laws and regulations permitted and
forbad.”24 The court further emphasized that “if the law
that makes a statement false is ambiguous and the
defendant’s statement was consistent with one
reasonable interpretation of the law, the government
must rule out the possibility that the defendant was
acting in reliance on that interpretation.”25
24
2006).
25
United States v. Mitchell, 165 F. App’x 821, 826 (11th Cir.
Id.
16
In accordance with these principles, the Second
Circuit,26 Sixth Circuit,27 and Eleventh Circuit,28 have
determined that a defendant does not defraud Medicare when their conduct does not clearly deviate from
the requirements or proscriptions established by the
Medicare rules and regulations.
The Fifth Circuit, however, breaks new ground
with this case by holding that Medicare’s regulatory
definition of “homebound” is something less than a
controlling legal standard when determining whether
a doctor defrauded Medicare by falsely certifying
patients as “homebound.” This holding cannot be
squared with the rules established by this Court and
opinions of the other Circuit Courts of Appeals.
Nor can it be reconciled with the basic principles
of fair notice and due process. By promulgating a specific definition of “homebound,” Medicare established
See Siddiqi v. United States, 98 F.3d 1427, 1439 (2d Cir.
1996) (finding that, as a legal matter, a defendant could not have
intentionally defrauded Medicare where the permissibility vel
non of the defendant’s billing under a certain code was “unclear”).
27
See United States v. Levin, 973 F.2d 463, 465-470 (6th Cir.
1992) (determining that “as a matter of law . . . the government
could not prove the required element of intent to support a
conviction of [Medicare fraud]” where the relevant Medicare
regulation had been “rendered ambiguous by numerous opinion
letters issued by the government”).
28
See United States v. Whiteside, 285 F.3d 1345, 1351-1353
(11th Cir. 2002) (holding that the Government failed to prove
the defendant defrauded Medicare where “the defendant’s
interpretation” of the pertinent “Medicare regulations . . . was not
unreasonable” and there existed “no Medicare regulation,
administrative ruling, or judicial decision” indicating otherwise).
26
17
the legal standard against which homebound certifications should be measured.29 Evans was entitled to rely
on this definition as an “authoritative assurance that
punishment [would] not attach” if his certifications
complied with this standard.30 And to allow Evans’s
certifications to be evaluated, not by Medicare’s own
standard, but by the Government witness’s own
standard—admittedly distinct from Medicare’s—
would be to render the boundaries of “fraud” in the
health care context “so vague that men of common
intelligence must necessarily guess at its meaning and
differ as to its application.”31
In Caring Hearts, Justice Gorsuch highlighted the
Constitutional issues at stake when the Government
ignores the controlling standards set forth in Medicare’s rules and regulations, while seeking to penalize
private citizens for failing to comply with the same:32
“This case has taken us to a strange world
where the government itself—the very
‘expert’ agency responsible for promulgating
the ‘law’ no less—seems unable to keep pace
with its own frenetic lawmaking. A world
Madison worried about long ago, a world in
which the laws are ‘so voluminous they cannot
be read’ and constitutional norms of due
See Allina Health Services, 139 S. Ct. at 1809.
See United States v. Laub, 385 U.S. 475, 487 (1967).
31
Connally v. Gen. Constr. Co., 269 U.S. 385, 391 (1926).
32
Notably, Justice Gorsuch was addressing CMS’s regulatory qualifications for being “homebound.” See Caring Hearts, 824
F.3d at 970.
29
30
18
process, fair notice, and even the separation of
powers seem very much at stake. But
whatever else one might say about our visit to
this place, one thing seems to us certain: an
agency decision that loses track of its
own controlling regulations and applies
the wrong rule in order to penalize
private citizens can never stand.”33
That the same would hold true in a criminal prosecution might have been assumed—until now. Review
by this Court is necessary to conclusively establish the
legal significance of these rules and regulations in
criminal health care fraud prosecutions.
2.
The Fifth Circuit has decided a second
important question of federal law which has
not been, but which should be decided by
this Court.
If the Fifth Circuit had treated Chapter 7 of the
Medicare Benefit Policy Manual (MBPM), Pub. L. No.
100-02, Ch. 7, § 30.1.1 (Rev. 233, February 24, 2017) as
“controlling,” this issue might not have arisen. But by
treating the contents of that chapter as a “term of art,”
i.e., by reducing its legal status, the Fifth Circuit
inadvertently highlighted the need for this Court to
speak authoritatively on the legal status of Medicare
regulations, rules, and policies, insofar as they inform
and form the basis of expert opinions. This need is
especially acute in criminal prosecutions.
33
Id. at 976 (emphasis added).
19
In Daubert v. Merrell Dow Pharmaceuticals, Inc.,34
the Court created a new, consistent set of standards for
determining when expert scientific testimony would be
admissible in a federal trial, standards that were
consistent with the Federal Rules of Evidence—
specifically FRE 702. One of those standards was a
requirement that “[p]roposed testimony . . . be supported by appropriate validation—i.e., “good grounds,”
based on what is known. In short, the requirement that
an expert’s testimony pertain to “scientific knowledge”
establishes a standard of evidentiary reliability.”35
Four years after Daubert, the Court granted
certiorari in General Elec. Co. v. Joiner36 “to determine
what standard an appellate court should apply in
reviewing a trial court’s decision to admit or exclude
expert testimony under Daubert v. Merrell Dow Pharmaceuticals, Inc.” The Court unanimously held that
the appropriate standard was “abuse of discretion.” In
his concurring opinion, Justice Breyer quoting
Daubert, emphasized the importance of the trial
judge’s “gatekeeper” role, and the need to ensure that
“any and all scientific testimony or evidence is not only
relevant, but reliable.”37
509 U.S. 579 (1993).
Daubert, 509 U.S. at 590 (footnote omitted).
36
522 U.S. 136 (1997).
37
General Elec. Co. v. Joiner, 522 U.S. 136, 520 (Breyer, J.,
concurring) (quoting Daubert v. Merrell Pharmaceuticals, Inc.,
509 U.S. 579, 589 (1993)).
34
35
20
Two years after General Elec. Co. v. Joiner, the
Court handed down its decision in Kumho Tire Co.,
Ltd. v. Carmichael.38 In Kumho Tire the Court extended the central holdings, and some of the analytical
factors of Daubert to non-scientific experts, such as
engineers. As with Daubert and Joiner, the Kumho Tire
court again emphasized that the touchstones for the
admissibility of any expert testimony are relevancy
and reliability. And Kumho Tire again stressed the
importance of the trial judge’s general “gatekeeping”
obligation; i.e., that he or she must exclude irrelevant
or unreliable expert testimony.
Since its opinions in Daubert, Joiner, and Kumho
Tire, this Court has not addressed any aspect of either
FRE 702, or the admissibility of expert testimony. But
the lower courts certainly have. As of this writing, the
lower courts, both state and federal, have cited these
three cases in excess of 50,000 times. Although it is
impossible to summarize a body of law that large, the
federal caselaw is consistent on several points: it is the
district judge who must function as a “gatekeeper,” i.e.,
it is the judge, not the jury, who must determine which
expert testimony is reliable, and therefore admissible,
and which is unreliable, and therefore inadmissible.
Moreover, consistent with the teachings of this Court,
Circuit Courts of Appeals have always held that the
admission of unreliable testimony is an error—one
which often results in a reversal of a conviction,
38
526 U.S. 137 (1999).
21
because of the evidentiary significance of expert
testimony.
But the question that has not been settled by those
courts is the role that federal regulations, rules, and
policies play in creating “reliable principles and
methods” upon which to base expert testimony. Nor has
it been answered by this Court—although the need for
guidance is critical, given the burgeoning number of
health care fraud prosecutions. A moment’s reflection
demonstrates why.
A typical indictment for health care fraud under
18 U.S.C. § 1347, like the one returned in this case, will
make numerous references to the Medicare regulations. And the indictment will allege that those
regulations and rules were not followed during the
scheme to defraud. Then, at trial, the Government’s
medical expert will reference those regulations and
rules in his or her expert testimony, and opine on the
question of whether the defendant(s) complied with
them. Assuming the Government’s expert finds noncompliance, the jury must then decide whether that
non-compliance was fraudulent.
This approach to prosecuting health care fraud is
the template for U.S. Attorneys around the United
States. See, e.g., United States v. Martinez;39 United
States v. Chhibber;40 United States v. Anderson;41and
United States v. Martinez, 588 F.3d 301 (6th Cir. 2009),
cert. den., 562 U.S. 1017 (2010).
40
United States v. Chhibber, 741 F.3d 852 (7th Cir. 2014).
41
United States v. Anderson, 980 F.3d 423 (5th Cir. 2020).
39
22
United States v. Memar.42 And rightfully so, because it
honors the Federal Rules of Evidence, and the
principles established by this Court in Daubert, Joiner,
and Kumho Tire.
That template was plainly ignored by the prosecutors in Dr. Evans’s case, and the district court did
nothing to deter or correct the prosecution’s mistakes.
But what is relevant for this Court is the Fifth Circuit’s
apparent disregard for the Federal Rules of Evidence,
and the caselaw of this Court. The testimony of the
Government’s “expert” was reliable only insofar as it
was a product of “reliable principles and methods”; it
was relevant only insofar as it made the “fact” of the
patients’ homebound status under the Medicare
regulations and rules more or less probable; and it was
admissible under FRE 702 only insofar as it helped the
jury “understand the evidence or determine a fact in
issue.”
But instead of acknowledging that the testimony
of Dr. Brobson Lutz failed all three of these requirements for admissibility, the Fifth Circuit downgraded
the legal status of the Medicare regulations and rules,
and seriously undermined the foundational requirements for expert testimony in a criminal prosecution
for health care fraud. While there is of course some
judicial reluctance to overturn a jury’s verdict in a
multi-defendant, multi-day trial, that reluctance
42
United States v. Memar, 906 F.3d 652 (7th Cir. 2018).
23
cannot be allowed to serve as an impetus for the
erosion of well-established principles of law.
---------------------------------♦---------------------------------
CONCLUSION
Wherefore this Court is respectfully urged to
grant this petition for a writ of certiorari to the United
States Court of Appeals for the Fifth Circuit.
Respectfully submitted,
HERBERT V. LARSON, JR.
Counsel of Record
KELLY P. MITCHELL
700 Camp Street
New Orleans, Louisiana 70130
(504) 528-9500
VINCENT J. BOOTH
Booth & Booth, A. P.L.C.
138 N. Cortez Street
New Orleans, Louisiana 70119
(504) 482-5292
Attorneys for
Henry M. Evans, M.D.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.