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United States v. Jafari

United States District Court, W.D. New York

May 14, 2015

UNITED STATES OF AMERICA,
v.
NINA JAFARI a/k/a Fatemeh Jafari, Defendant

For Nina Jafari, also known as Fatemeh Jafari, Defendant: Peter J. Pullano, LEAD ATTORNEY, Tully Rinckey PLLC, Rochester, NY.

For USA, Plaintiff: Michael DiGiacomo, Richard D. Kaufman, LEAD ATTORNEYS, Aaron J. Mango, U.S. Attorney's Office, Buffalo, NY.

DECISION & ORDER

ELIZABETH A. WOLFORD, United States District Judge.

INTRODUCTION

Defendant Nina Jafari (" Defendant" ), charged in a five count indictment with health care fraud in violation of 18 U.S.C. § 1347 (Dkt. 1), was convicted after a jury trial on September 29, 2014, of counts 1, 2, 3 and 5, and acquitted of the charges in count 4 (Dkt. 82). On February 18, 2015, Defendant was sentenced to a term of incarceration of 30 months (Dkt. 111 at 2), but having received the Government's most recent restitution figures less than 10 days prior to sentencing, the Court deferred its decision concerning restitution (Dkt. 109).

In many respects, the Government's restitution requests have been a moving target, ranging from less than $30,000 to over $200,000, with the most recent request seeking restitution in the amount of $138,842.78. The evolving nature of the Government's restitution requests can be attributed, at least in part, to the intrinsic fraudulent nature of Defendant's scheme, which without question has made it exceedingly difficult to measure the extent of Defendant's fraud.

After careful consideration, the Court determines that an appropriate award of restitution to be paid to the victim in this case, BlueCross BlueShield of Western New York (" BCBS" ), is $135,742.18 (one hundred thirty-five thousand, seven hundred forty-two dollars, and eighteen cents).

FACTUAL BACKGROUND

Defendant, practicing as a licensed clinical social worker, was charged on January 18, 2013, with five counts of health care fraud in violation of 18 U.S.C. § 1347.[1] The indictment alleged an overall scheme by Defendant to defraud BCBS during the time period of January 2006 through May 2009. (Dkt. 1 at ¶ 16). Each count in the indictment related to charges submitted by Defendant to BCBS with respect to a different family whom she claimed to have treated.[2]

In essence, the indictment alleged that Defendant billed BCBS using a Current Procedural Terminology (" CPT" ) code that resulted in inflated payments and payments for services that were never rendered. The code typically charged by Defendant was CPT code 90808, defined to be appropriate for individual psychotherapy of approximately 75 to 80 minutes face-to-face with the patient. According to the indictment, Defendant executed the fraudulent scheme in three different ways: (1) Defendant billed BCBS for individual psychotherapy sessions using CPT code 90808 when, in fact, Defendant met with the patient for less than 75 to 80 minutes; (2) Defendant met with multiple family members for group therapy sessions, but instead of billing CPT code 90847 for family psychotherapy, she charged each family member separately under CPT code 90808; and (3) Defendant billed BCBS for individual psychotherapy sessions using CPT code 90808, when no therapy sessions occurred. ( Id. at ¶ ¶ 17-19).

The case was tried before a jury commencing on September 22, 2014. Among other witnesses, the Government presented testimony from five members of the families who were the subject of the counts in the indictment, representatives of BCBS, and FBI Special Agent Thomas W. Provost (" Agent Provost" ). Voluminous documents were introduced into evidence reflecting charges submitted by Defendant to BCBS, including documents that contained forged signatures of Defendant's patients. (Tr.[3] 182, 270). The evidence at trial plainly demonstrated an elaborate scheme on Defendant's part to inflate her charges submitted to BCBS and to bill for services that were never rendered.

Agent Provost explained that BCBS reported Defendant to the FBI for purposes of an investigation after BCBS investigators were stymied in their efforts to review Defendant's records and conduct an audit. (Tr. 332; see Tr. 224-241, 243-246 (testimony concerning efforts by BCBS to review Defendant's records and conduct an audit)). Defendant had been identified by BCBS as an " outlier" because she stood out from the rest of her field in her billings using CPT code 90808. (Tr. 211). BCBS had looked at the data for December 1, 2007, through November 2008, and approximately 97.5% of Defendant's bills were charged under CPT code 90808. ( Id. ). Additionally, BCBS reviewed Defendant's billings for her patients during the time frame of January 1, 2006, through April 30, 2009, and of approximately 400 patients, there were only 10 patients for whom Defendant did not bill under CPT code 90808. (Tr. at 216).

As part of the investigation, a former patient of Defendant's, Jeanette Steger, agreed to audio record conversations with Defendant. The audio recordings, which were admitted into evidence, reflected efforts by Defendant to influence Ms. Steger's response to BCBS inquiries, including Defendant telling Ms. Steger that she should deny the existence of documents concerning her family's visits with Defendant and falsify documentation that BCBS asked Ms. Steger to complete.

The jury returned a verdict of guilty with respect to four of the five counts in the indictment. (Dkt. 82). The jury acquitted Defendant on count 4, charging Defendant with health care fraud from October 2006 through December 2008, by submitting fraudulent claim forms for approximately 117 individual psychotherapy sessions billed under CPT code 90808 related to the Ferrucci family. ( Id. ). The jury convicted Defendant of the remaining counts that charged as follows:

Count 1: from January 2009 through May 2009, Defendant submitted fraudulent claim forms for approximately 39 individual psychotherapy sessions billed under CPT code 90808 related to the Steger family;
Count 2: from July 2008 through February 2009, Defendant submitted fraudulent claim forms for approximately 56 individual psychotherapy sessions billed under CPT code 90808 related to the Sidoti family;
Count 3: from December 2005 through August 2008, Defendant submitted fraudulent claim forms for approximately 114 individual psychotherapy sessions billed under CPT ...

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