USA v. Roland Borrasi, 09-4088.

Roland Borrasi, a medical doctor, was convicted of Medicare fraud after he accepted a salary from a hospital in exchange for continually referring patients to the facility, a violation of 42 U.S.C. § 1320a-7b. In this appeal, Borrasi attacks both his conviction and his sentence.

Dr. Borrasi owned Integrated Health Centers, S.C. ("Integrated"), a corporate group of healthcare providers in Romeoville, Illinois. He worked primarily at nursing homes and hospitals.

Through this work, he became acquainted with Chief Executive Officer Wendy Mamoon, Director of Operations Mahmood Baig, and other officers and directors of Rock Creek Center, L.P., a licensed inpatient psychiatric hospital in Lemont, Illinois.

Reimbursements from the Medicare federal health care program constituted the vast majority of payments received by Rock Creek.

At some time between 1999 and 2002, Borrasi, Mamoon, Baig, and others conspired to pay bribes to Borrasi and other individuals at Integrated in exchange for an increasing stream of Medicare patient referrals.

In order to conceal these bribes, Borrasi and other Integrated employees were placed on the Rock Creek payroll, given false titles and faux job descriptions, and asked to submit false time sheets. Borrasi, for example, was named "Service Medical Director" and was allegedly required to be available at all times.

In December 2006, a grand jury returned an indictment against Borrasi, Mamoon, and Baig, charging them with one count of conspiracy to defraud the United States government, in violation of 18 U.S.C. § 371, and six counts each of Medicare-related bribery, in violation of 42 U.S.C. § 1320a-7b et seq. Baig pled guilty to all seven counts, but Mamoon and Borrasi proceeded to trial.

The jury returned verdicts of guilty on each count against Borrasi and Mamoon. The court sentenced Borrasi to seventy-two months' imprisonment and two years' supervised release.

Interpretation of 42 U.S.C. § 1320a-7b

Borrasi was charged, for example, with violating one statute designed to help combat health care fraud: "

[W]hoever knowingly and willfully solicits or receives any remuneration (including any kick-back, bribe, or rebate) . . . in return for referring an individual to a person for the furnishing or arranging for the furnishing of any item or service for which payment may be made in whole or in part under a Federal health care program . . . shall be guilty of a felony and upon conviction thereof, shall be fined not more than $25,000 or imprisoned for not more than five years, or both." 42 U.S.C. § 1320a-7b(b)(1).

The government theorized that Borrasi and the other Integrated physicians received payments—in the guise of salaries—from Rock Creek for their referrals of Medicare patients.

Borrasi points out, however, that the statute exempts some behavior from its coverage. It does not criminalize "any amount paid by an employer to an employee (who has a bona fide employment relationship with such employer) for employment in the provision of covered items or services." 42 U.S.C. § 1320a-7b(b)(3).

Seizing this language, Borrasi argues that the prosecution prejudicially misstated the law in its closing argument by suggesting that it did not matter if any portion of Rock Creek's payments to him or other Integrated physicians was pursuant to legitimate employment relationships because the statute was violated if any portion of the payments was for patient referrals.

He contends that the government's argument to the jury nullified his theory of defense and that the district court did not cure the misconduct by striking the argument and by giving an adequate curative instruction.

Borrasi urges us to adopt a "primary motivation" doctrine, under which the trier of fact would determine the defendants' intent in any given case and find them not guilty if the primary motivation behind the remuneration was to compensate for bona fide services provided. Under the primary motivation doctrine, the district court's instructions in this case would have been both inaccurate as to the law and inadequate to cure any prejudice from the government's statements during its closing arguments.

He contends that such a construction is necessary both to avoid the possibility of conviction based on innocent or de minimis conduct and also to give effect to the rule of lenity in the face of statutory ambiguity.

Persuasive authority weighs heavily against Borrasi's proposal. He relies on United States v. Bay State Ambulance and Hosp. Rental Serv., Inc., 874 F.2d 20 (1st Cir. 1989), where the First Circuit affirmed the appellants' convictions after "the district court instructed that the defendants could only be found guilty if the payments were made primarily as [referral] inducements." Id. at 30.

But contrary to his allegation, there does not appear to be a circuit split regarding the appropriate interpretation of § 1320a-7b(b). Each circuit to actually reach the issue has rejected the primary motivation theory Borrasi advocates.

We find the reasoning of the Third, Fifth, Ninth, and Tenth Circuits convincing, and we decline Borrasi's invitation to create a circuit split.

Nothing in the Medicare fraud statute implies that only the primary motivation of remuneration is to be considered in assessing Borrasi's conduct. We join our sister circuits in holding that if part of the payment compensated past referrals or induced future referrals, that portion of the payment violates 42 U.S.C. § 1320a-7b(b)(1).

Because at least part of the payments to Borrasi was "intended to induce" him to refer patients to Rock Creek, "the statute was violated, even if the payments were also intended to compensate for professional services." Greber, 760 F.2d at 72.

For the full opinions visit the 7th Circuit Court of Appeals Web Site

For more about Chicago Federal Criminal Defense Attorney Michael J. Petro, visit www.mjpetro.com

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