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United States v. Ahmed

United States District Court, E.D. New York

July 25, 2017

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

          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.

         BACKGROUND[1]

         Defendant is a skilled general surgeon who enjoyed admitting privileges at nine hospitals[2]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 for reimbursement, 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 payment policy 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 additional medical 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 of Dr. 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 billed for these patients. For example, the first witness in the case, Vitina Varrone, testified about her seven-day stay at Franklin Hospital where she was diagnosed for colitis, a gastrointestinal issue. (Tr. at 75.) Ms. Varrone testified that, because she was certain she had no issues whatsoever with the skin on her spine, legs or feet, she was surprised to see her Medicare billing statement list a total of 22 Indictment Procedures on those areas of her body during her week-long hospital stay. (Tr. at 66-73; See GX. 77N.)

         A series of other witnesses followed Ms. Varrone, all of whom testified similarly about hospital stays that did not involve any wound treatment whatsoever or involved treatment of a different nature than that billed by Defendant. One of these witnesses was Patsy Rollins, a licensed practical nurse who testified about the final days of Alfreda Brewster's life at Mercy Medical Center in January 2013. (Tr. at 1127-28.) Ms. Rollins, who was Ms. Brewster's daughter and was with her during her hospital stay, testified that the only surgery performed on her mother was conducted in order to insert a catheter into her vein so she could receive chemotherapy drugs. (Tr. at 1128, 1130-35.) Ms. Rollins testified that her mother had a small decubitus ulcer on her sacral area and general itchiness on her skin but that she never had surgery for any wound or skin issues. (Tr. at 1135.) Despite this, Defendant billed Medicare for 83 Indictment Procedures over the final two and a half weeks of Ms. Brewster's life. (See GX 77D.)

         In addition to the first-hand accounts of the patients and their caretakers, Dr. Ross further supported the government's case by explaining, patient by patient, his conclusion that the medical files did not support Defendant's billing with respect to the Indictment Procedures. Besides noting that the patients' medical files lacked documentation to support the surgeries Defendant billed for, Dr. Ross also explained the impossibility of performing surgeries at the rate Defendant had billed. In perhaps the most blatant example, Defendant billed Medicare for over 600 Indictment Procedures on an 88 year-old woman named Mary White over the final 10 months of her life. (See GX 77P.) Dr. Ross found no documentation to support any of these surgeries and testified that not only had he himself never conducted that much surgery on a single patient, but the number of surgeries billed to Medicare for Ms. White is nearly double the number of surgeries the average surgeon would perform in total, on many different patients, in a year. (Tr. at 508-10.)

         Setting aside the sheer volume of the surgeries Defendant billed for, Dr. Ross also testified that many of the surgeries billed to Medicare were actually impossible to have performed due to the circumstances of individual patients. Of particular note, Dr. Ross told the jury about his review of the medical files of two patients who had died before the surgeries purportedly were performed. One of these patients was Robert McGurk, for whom Defendant billed Medicare for over 400 surgeries over the final five months of his life. Dr. Ross testified that Defendant billed for six surgeries on each of the final seven days he was alive, explaining that Mr. McGurk was dead at the time when the final six surgeries purportedly took place. (Tr. at 490.) Dr. Ross further opined that the surgeries on the days just prior to Mr. McGurk's death also could not possibly have been performed as Mr. McGurk's was dying and would not have benefited from any additional wound treatment. (Tr. at 490-92.) Similarly, Dr. Ross told the jury that Defendant's Medicare billing for Ms. White included six surgeries that purportedly occurred over a week following the day she died. (Tr. at 508-09.)

         Dr. Ross also highlighted two patients for whom Defendant billed Medicare for surgeries purportedly performed to the patients' legs, but the patients had no legs. (Tr. at 414; 534-37.) On one of these patients, Bertha Desire, a patient who had lost her legs following bilateral above-the-knee amputations, Defendant billed for two surgeries, one on each leg, on 13 separate dates over the course of a two-month period. (Tr. at 534-37; GX 77G.) Overall, Defendant billed Medicare for over 170 surgeries on Ms. Desire over the course of a year. (GX 77G.)

         2. Peer Comparison and Spike Data

         In order to bolster the inference created by the testimony of the Featured Patients that it was not possible for a single physician to perform so many surgeries, the government also presented: (i) “peer comparison” data that showed how Defendant's billing compared with other physicians across the country for the same procedures; and (ii) “spike data” to show how Defendant's billing of the Indictment Procedures changed over time.[4] The peer comparison data revealed that Defendant led the country in billing for the Indictment Procedures by shocking margins. Specifically, the analysis showed that Defendant was the highest biller in the entire country for 9 of the 11 Indictment Procedures, and was ranked second and third in the country for the other two Indictment Procedures. (GX 85A; See Tr. at 1043-1108.)

         The charts introduced into evidence by the government demonstrated that Defendant not only led the nation in billing for these nine procedures, but, in several cases, he did so by astounding margins. (GX 88A.) For example, Dr. Ross testified that CPT code 22015-which is the code for drainage of “deep abscess (subfascial)” of the lower spine-was associated with a difficult procedure requiring an incision deep enough to reach the spinal column. (Tr. at 398-99.) Dr. Ross explained that the procedure was sufficiently complex such that he, as a general surgeon, would not even perform this surgery himself, but would require the presence of an orthopedic surgeon or neurosurgeon. (Id.) Nevertheless, the peer comparison chart showed that Defendant billed for 3, 577 of these procedures over the two-year period covered by the Indictment. The next highest biller in the country submitted claims for only 49 procedures-73 times fewer than Defendant. (GX 88A.) Similarly, as to CPT code 27030, the code associated with a deep incision into the hip joint-another procedure Dr. Ross testified he would not attempt as a general surgeon (Tr. at 526-27)-Defendant billed for 1, 033 surgeries (GX 88A); the next highest biller in the country billed for only 67-15 times fewer than Defendant (Id.). All told, Defendant submitted more than three times as many claims as the next highest biller in the country for 8 of the 11 Indictment Procedures. (Id.)

         The spike data showed the changes in Defendant's billing practices between April 2007 and the end of 2013. (Tr. at 1067-69; GX 74B.) The chart revealed that both the total number of patients Defendant billed and the number of claims submitted remained relatively steady through the end of 2010. (GX 74B; See p. 42 n.19, infra (showing screenshot of GX 74B).) However, starting in 2011, the number of Indictment Procedure claims Defendant submitted spiked drastically, ultimately topping out at 1, 339 Indictment Procedures billed in January 2013. (Id.; See Tr. at 1069.) In that month, Defendant billed an average of 45 surgeries per day. (Tr. at 1069.)

         3. Modifier 78 Analysis

          At trial, the government also introduced evidence to show that Defendant's scheme to defraud Medicare included using Modifier 78 to ensure he would receive payment for claims that ordinarily would be subject to a global period. In other words, the government alleged that, because all but one of the Indictment Procedures has a global period of either 90 days or 10 days (See GX 34), Defendant used Modifier 78 to bill the same patient multiple times during the global period for the initial surgery.

         The government supported its theory with the testimony of Joseph Giambalvo, a Special Agent with the HHS Office of the Inspector General, Office of Investigations. (Tr. at 1625.) Agent Giambalvo, who was assigned by the Department to investigate Defendant's Medicare billing practices, explained to the jury the process through which he confirmed Defendant's fraudulent use of Modifier 78 in his billing of the Indictment Procedures. (Tr. at 1777-87.) Agent Giambalvo testified that he first assessed GX 77, which is a spreadsheet containing all of Defendant's Medicare claims from 2010 to 2013. (Tr. at 1776.) This spreadsheet corresponds to a 900 page document (GX 86) that constitutes a compilation of every remittance report Defendant received from National Government Services, the government's Medicare billing contractor. The remittance reports list every procedure for which Medicare paid Defendant (identified by patient name and CPT code) and the amount of each payment. (Id.) Each report is identified by a unique “Check/EFT”[5] number. (GX 86.)

         Agent Giambalvo testified that his analysis of the Modifier 78 claims (the “Modifier 78 Analysis”) began by selecting a sample of these remittance reports for a closer review. (Tr. at 1778-79.) Specifically, Agent Giambalvo assessed every remittance statement dated between July 15, 2013 and August 21, 2013, which consisted of 29 separate remittance statements covering 6, 935 claims.[6] (Tr. at 1778-87; GX 655A.) The agent then filtered these remittance statements for only the Indictment Procedures, leaving 6, 597 claims, and filtered further for only those entries where Dr. Ahmed used Modifier 78, leaving a total of 6, 188. (Tr. at 1778-87; GX 655A.) For each claim, Agent Giambalvo consulted the operating room logs from the hospital at which Defendant purportedly performed each procedure to see if Defendant, in fact, was present in the operating room for the procedure billed. (Tr. at 1778-87; GX 655A.) Based on his review, Agent Giambalvo concluded that operating room logs existed for only 67 (1%) of the 6, 188 procedures. (GX 655A.)

         To further support Agent Giambalvo's conclusion that Modifier 78 was used by Defendant to receive payment for surgeries that actually were not performed, the government presented evidence about Defendant's billing practices to show his direct involvement in the fraudulent use of the modifier. For example, the government introduced documents titled “Patient Registration Records, ” known as “face sheets, ” on which Defendant handwrote billing codes and dates for the procedures that were to be billed. (See Tr. at 850-51.) At trial, the government presented the testimony of Syed Rehan Ahmed (“Rehan Ahmed”), Defendant's brother, who was in charge of Defendant's Medicare billing during the Indictment Period. (Tr. at 850-55.) Rehan Ahmed explained how Defendant used the face sheets, testifying that Defendant would mail Rehan Ahmed several face sheets at a time and that each document would contain, in Defendant's handwriting, the CPT codes that were to be billed to Medicare. (Tr. at 855-58.) Rehan Ahmed confirmed that neither he nor his staff would ever change these notations on their own. (Tr. at 857-58.)

         Over the course of the trial, the government introduced into evidence several of these face sheets showing Defendant's request to bill Medicare for different Indictment Procedures, using Modifier 78, on multiple consecutive days. (See, e.g. GX 304.6; GX 399.22; See also, Tr. at 850-66.) In addition, Rehan Ahmed testified that, when Medicare rejected and sent back claims that Defendant had submitted without Modifier 78, Defendant instructed him to resubmit the claim with the modifier in order to avoid the global period rules. For example, on one explanation of benefits form shown to Rehan Ahmed, he confirmed that Defendant had circled certain CPT codes and included a handwritten note requesting that Rehan Ahmed and his team “resubmit with modifier 78.” (Tr. at 881-83.) This resolved the issue and the claim was paid. (Id.)

         C. Money Laundering

         To support the two money laundering counts, the government presented evidence of Defendant's financial transactions made after he received notice of the government's investigation in September 2013. The government introduced this evidence through Agent Giambalvo and Joseph Cincotta, a Contractor/Forfeiture Investigator with the Federal Bureau of Investigation (“FBI”). Prior to working in his current role, Mr. Cincotta had been a special agent with the FBI for 34 years. (Tr. at 2005.)

         Agent Giambalvo provided a timeline of his investigation, including the timing of the financial transactions that the government used as the basis for the money laundering counts. Agent Giambalvo explained that the government first interviewed Defendant on September 3, 2013, during the initial stages of its investigation. (Tr. at 1627.)

         The government called Mr. Cincotta later in the trial to testify about his analysis of Defendant's financial transactions. Through Mr. Cincotta's testimony, the government initially demonstrated that the remittance reports that made up GX 86 corresponded to deposits made into Defendant's bank account. (Tr. at 2004-13; GX 43.) Mr. Cincotta then set forth the transactions Defendant made during the week after his September 3 interview with Agent Giambalvo. In sum, the bank records reviewed by Mr. Cincotta revealed that Defendant made multiple $1 million transfers out of a TD Bank account, held in the name of Syed Imran Ahmed (the “TD Bank 5668 Account”), in which all funds received from Medicare had been direct-deposited. (Tr. at 2013-25.) The first $1 million transfer, which relates to Count Six of the Indictment, was drawn on the TD Bank 5668 Account on September 7, 2013, when Defendant wrote a check to himself and deposited it into a JP Morgan Chase account, held in the name of Syed Imran Ahmed (the “JPMC 8506 Account”), which Defendant had opened earlier that same day. (Tr. at 2013-15.) The second $1 million transfer, which relates to Count Five of the Indictment, was made on September 9, 2013, via an international wire transfer from the TD Bank 5668 Account to a Dubai Islamic Bank account that Defendant held in Pakistan. (Tr. at 2015-19.)[7]

         In addition to the two $1 million transfers that were the subject of Counts Five and Six of the Indictment, the government also introduced evidence of a third $1 million transfer that was not charged in the Indictment. (Tr. at 2019-21.) This transfer also was made on September 9, 2013, via an international wire transfer from the TD Bank 5668 Account to the Dubai Islamic Bank account that Defendant held in Pakistan. (Id.)

         Mr. Cincotta testified that he also reviewed, and made a chart of, Defendant's history of international wire transfers (GX 75). The chart showed that, of the 18 international wire transfers Defendant made from January 25, 2011 through September 8, 2013, all were for small amounts no greater than $35, 780.85, and the vast majority were for $10, 000 or less. (Tr. at 2022-25; GX 75.) The small amounts of these transactions stands in stark contrast to the two $1 million international transfers Defendant made on September 9, 2013. (See GX 75.)

         D. The Jury Verdict and Forfeiture Hearing

          On July 28, 2016, the jury returned a unanimous verdict of guilty on all six counts. (Dkt. Entry No. 180.) Following the jury's verdict, Defendant indicated he was willing to waive his right to have a jury decide the issue of criminal forfeiture and, instead, requested that the Court decide the forfeiture amount at sentencing. (Tr. at 2487-88.) On August 1, 2016, the Court held a hearing on the forfeiture issue during which the government presented testimony from Mr. Cincotta and Agent Giambalvo. (See Forfeiture Hearing Transcript (“Forfeiture Tr.”), Dkt. Entry No. 199.) The sum and substance of this testimony is set forth in the Government's Motion. (See Gov't. Mot.)

         During the forfeiture hearing and in its briefing, the government argued that the Court should order Defendant to forfeit $7, 570, 442.19, which is the total amount calculated for the three classes of Medicare claims that Defendant fraudulently submitted. “Class I” claims are those representing Indictment Procedures billed, but not performed on, the 16 Featured Patients. (Gov't. Mot. at 16-22, 24.) The government argues that every one of these claims is fraudulent because either: (i) Defendant did not conduct any procedures whatsoever on these patients, or (ii) even if Defendant did conduct some procedures related to wound treatment, those billed were “upcharged” such that Defendant received more money than that to which he was entitled. (Id.) The government seeks $898, 923.40 for the Class I Claims. (Id. at 24.)

         The “Class II” claims are those contained on the remittance statements reviewed by Agent Giambalvo as part of the Modifier 78 Analysis discussed at Background § B.3., pp. 10-12, supra, which were deemed fraudulent because no operating room log existed for them. (Gov't. Mot. at 24-25.) As noted above, Agent Giambalvo found that 99% of the claims on the remittance statements he reviewed were fraudulent. (Id. at 22-23.) To calculate the Class II total, the government added the value of these claims and subtracted all claims already included in the Class I total. (Id. at 24-25.) The government seeks $2, 191, 120.70 for the Class II Claims. (Id. at 25.)

         The “Class III” claims are an extrapolation of the Modifier 78 Analysis to claims on other remittance statements that Agent Giambalvo did not review. (Gov't. Mot. at 25-26.) To arrive at the Class III total, the government added up the claims from all other remittance statements not reviewed as a part of the Modifier 78 Analysis. (Id. at 25.) The government then filtered these remittance statements for only the Indictment Procedures, and filtered further for only those entries where Defendant used Modifier 78, just as Agent Giambalvo had done in his analysis. (Id. at 25-26.) The government then subtracted 1% of the total, which represents an estimate of the Modifier 78 claims for which an operating room log may exist. (Id.) The resulting amount, and that which the government seeks for the Class III Claims, is $4, 480, 398.09. (Id. at 26.) While the government decided not to expend the resources to determine the exact number of legitimate procedures for which an operating room log exists, the government argues that the prevailing case law permits the Court to “make reasonable extrapolations from evidence established by a preponderance of the evidence at the sentencing proceeding.” (Id. at 8 (quoting United States v. Treacy, 639 F.3d 32, 48 (2d Cir. 2011).)

         At the forfeiture hearing, the government also presented evidence that funds seized from the following bank accounts are traceable to Defendant's ...


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