Wednesday, December 16, 2015

Why Do So Many Health Care Fraud Cases Go To Trial? Poor Plea Offers and Aggressive Prosecution. Case Example - California Ambulance Company Owner, Operator and Employees Sentenced to Prison for Medicare Fraud

In June 2013, I wrote an article about a nonemergency ambulance company whose owner, operator and managers were charged in federal court in Los Angeles. Here is an update.

After two years, the case went to trial on August 18, 2015, and after a ten day jury trial, four of the defendants were convicted of one count of conspiracy to commit health care fraud and five counts of health care fraud. One defendant was found not guilty. One of my colleagues represented the person who was found not guilty. Sentencing happened last week.

What were the sentences like in this case? One of the sentences for the owner was long (102 months - 9 1/2 years) and the other sentences were two years and three years. It would be interesting to know whether the plea offers would have provided a sentence significantly lower than that for the employees. It is now more favorable for defendants with little evidence against them to go to trial so the jury and the judge can evaluate the evidence rather than relying on the government's claims to probation during sentencing. 

Query: Why are these cases going to trial? First, the plea agreements being offered by the U.S. Attorney's Office are not very favorable. The sentences are potentially high with little benefit of plea agreements especially where some of the individuals are employees who are not highly educated as was the case with at least two of the defendants. The acquitted defendant had little day to day business contact or evidence against him but was forced to go to trial or plea to a prison term. Even employees who were not highly paid are being required to agree to restitution to the entire amount.

Second, by charging a conspiracy, the evidence against the defendants can come in against all of them which makes the cases more difficult to defend. Clients have a hard time understanding how conspiracy allegations work in getting in evidence at trial against them. Third, these cases involve Medicare regulations which impose criminal liability for not following these rules and regulations. Government prosecutors are seeking to hold employees of companies responsible as well as owners.

Finally, the heatlh care fraud offers give no opportunity for probation unless there is significant cooperation which is at the discretion of the U.S. Attorney's Office. While health care fraud is serious, the cases are having to go to trial due to the government's harsh position requiring significant prison time for first time offenders who were low-level employees who may be "managers" in name just because the businesses are small. In this case, there was one defendant who cooperated and testified at trial and he will be sentenced at a later date.

Cooperation is not easy given that if defendants do not acknolwedge their knowledge and that of the codefendants in a manner that makes sense to the U.S. Attorney's Office, they can be accused of lying and lose their ability to obtain a downward departure in their sentencing. Further, if the statements given by the cooperating defendants are proven not accurate later, that poses complications and for uneducated defendants who are questioned by agents and prosecutors who are not fully prepared on the facts, all kinds of issues can arise. Defense attorneys have to think seriously about whether their client is capable of cooperation under the facts of the case. 

The specifics of sentencing is as follows. Sentencing was held on December 7, 2015 before Judge Otero who sentenced as follows:
(1) Yaroslav Proshak, aka Steven Proshak, 47, was sentenced to serve 108 months in prison;
(2) Emilia Zverev, 58, was sentenced to serve 36 months in prison; and
(3) Sharetta Michelle Wallace, 37, was sentenced to serve 24 months in prison.

In addition to their prison terms, Judge Otero ordered Ms. Zverev and Ms. Wallace to pay restitution jointly and severally with Mr. Proshak in the amount of $804,755.  

It was alleged that Ms. Zverev and Ms. Wallace worked for ProMed Medical Transportation, an ambulance transportation company owned and operated by Mr. Proshak in the greater Los Angeles area that provided non-emergency services to Medicare beneficiaries, many of whom were dialysis patients.  

Ms. Zverev was the billing manager and Ms. Wallace supervised the ProMed EMTs. They were not owners or operators and were not high paid. Nevertheless, they were held responsible. In years past, employees such as these would be treated as cooperating witnesses and not defendants. Now they are being charged and held jointly responsible for all the restitution even when they went along with their employer.

The evidence at trial showed that between May 2008 and October 2010, ProMed billed Medicare for ambulance transportation services for individuals that did not need such services and this is based on Medicare regulations. The government alleged that one of more of the defendants instructed ProMed EMTs to conceal the patients’ true medical conditions by altering paperwork and creating fraudulent documents to justify the services.  ProMed submitted at least $1.5 million in claims to Medicare for alleged medically unnecessary transportation services; and Medicare paid at least $804,755 on those claims. Restitution was determined to be the entire amount of billing.  

These cases are difficult and it is unfortunate to see first time offenders who are low level employees go to prison for two to three years. Federal juries are now based on drivers' licenses and we may see greater diversity in federal jury pools which may encourage defense attorneys to take more cases to trial in these types of cases where the plea agreements are not reasonable and the exposure is high without cooperation. Each case is different and fraud cases with documentation, government regulation pose unique difficulties for people who are charged.

Posted by Tracy Green, Esq.


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