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Convictions for massive federal Medicare fraud upheld


In United States v. Bergman the defendants were convicted following a jury trial of conspiracy to commit health care and wire fraud, paying bribes and kickbacks in connection with a federal health care benefit program. Bergman was sentenced to 180 months and the other defendant was sentenced to 150 months.

Bergman was a licensed physician’s assistant employed by American Therapeutic Corporation that operated a Partial Hospitalization Program (PHP). A PHP serves as a bridge between inpatient and outpatient care for patients with a psychiatric condition serious enough to possibly require hospitalization. A community mental health center such as ATC administers a PHP, which offer intensive outpatient psychiatric care including individual or group psychotherapy, counseling and other mental health services. Staff at a PHP includes psychiatrists as well as nurses, physician’s assistants, occupational therapists, physical therapists and social workers.

After ATC was founded it developed into an extensive Medicare scammed billed Medicare for approximately $200 million in claims. While ATC did have some patients who needed psychiatric help and qualified for service, most did not and ATC did not provide the individualized treatment required by Medicare. Doctors that came in generally did nothing.

In this case the defendants created fake medical records and recruited patients in exchange for kickbacks. ATC paid its patient recruiters hundreds of thousands of dollars each month in cash in order to avoid any red flags or paper trail. They even kept a log of kickbacks paid.

One issue raised by Bergman was that he withdrew from the conspiracy prior to the five-year statute of limitations. In this appeal he claimed that he established his withdrawal defense as a matter of law and that the district court should have granted his motion for judgment of acquittal on the basis of his withdrawal from the conspiracy and not submit the issue to the jury. While the court of appeals found that Bergman was entitled to the jury instruction for withdrawal from the conspiracy, he was not entitled to an acquittal as a matter of law. The issue of whether Bergman took affirmative steps to disavow or defeat the conspiratorial objectives by ceasing his work at ATC was a matter that was disputed by conflicting testimony and the withdrawal defense could not be resolved as a matter of law. The trial court did not err in letting the jury decide the withdrawal issue.

The Eleventh Circuit Court of Appeals rejected the codefendant’s challenge to the sufficiency of the evidence and found the evidence supported the federal conspiracy conviction to commit health care fraud. The court found ample evidence that he participated in the conspiracy by recruiting patients to ATC for money regardless of their medical needs for PHP services. Also, he only targeted patients who were Medicare beneficiaries and he coached his recruits to lie about suffering from symptoms.

The defendants also raised the issue of the trial court’s failure to strike the entire jury panel after once juror who had been the victim of credit card fraud four times was “berated” by the magistrate judge for expressing her view that she could not say for sure whether she could set aside her own prejudices despite being a victim of fraud. The defendants argued that the magistrate judge berating the juror precluded the rest of the jury paned from being truthful about their ability to be unbiased.   While the court found the magistrate’s questions had some imperfections, it was not an abuse of discretion to deny the strikes.



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