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A probation sentence for a doctor convicted of Medicare fraud was rejected as too low

In U.S.v. Kuhlman, the defendant was a doctor of chiropractic medicine who owned and operated clinics in the Atlanta area. For five years he submitted $2,944,883 in fraudulent billings to Medicare for fictitious medical services. He did this by submitting HCFA forms to insurance companies indicating that medical procedures were performed by doctors in his clinic though the procedures were never provided. His sentencing guidelines range was 57 to 71 months imprisonment. As part of the plea agreement, the government recommended a variance sentence of 36 months. A few days prior to sentencing, the defendant paid the entire restitution amount of $2,944,883 in full, which impressed the sentencing judge enough to comment that Kuhlman was the first defendant the judge could recall who made such a large restitution payment prior to sentencing. The district court decided to continue the sentencing hearing for six months to allow the defendant extra time to pay off his fine and have the defendant perform public service. The district court expressed a desire to see how the defendant would handle the postponement time before sentencing, believing it would provide a more complete picture of the defendant. The defendant did not disappoint the judge. He logged 391 hours of community service, an average of two hours per day. He visited various medical nursing and chiropractic schools to give presentations on Medicare fraud. He provided 18 days of free chiropractic services at homeless shelters across Atlanta and painted a gym at an elementary school. At the second sentencing hearing the sentencing court imposed a sentence of probation, citing his community service work during the continuance, his restitution, and the rising cost of incarceration. The sentence was a downward variance of 20 levels.

The 11th Circuit found the sentence was substantively unreasonable because “he stole $3 million and did not receive so much as a slap on the wrist-it was more like a soft pat.” The time served sentence from a downward variance from 57 months failed to achieve an important goal of sentencing in a white collar crime prosecution, the need for general deterrence. The court gave its reason why deterrence was so important in health care fraud cases. It explained that insurance companies rely on the honesty and the integrity of medical practitioners in billing for their services. For that reason, deterrence is an important factor in the “sentencing calculus” because health care fraud is so rampant that the government lacks the resources to reach it all. The court found that one of the government’s primary objectives in obtaining a conviction in a health fraud prosecution is to send a message. While the court did not imply that probation could never be an option in a white-collar fraud case, in view of the totality of the circumstances, the nature of the offense and the extent of the variance, it was an unreasonable sentence here. Though the district court cited several §3553(a) factors at the sentencing hearing, the sentence did not reflect the seriousness of the crime, it did not promote respect for the law, provide just punishment or adequately deter other similarly inclined health care providers. Furthermore, 11th Circuit made a point of stating that the sentencing guidelines do not give a special sentencing discount for economic or social status as sentences given to the defendant are unavailable to defendants of lesser means.

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Please read my previous entries for the month of March, including this one from March 31st:Challenge to the use of a Florida state court prior conviction to enhance sentence fails

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