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From Health Law Daily, October 14, 2013

Court refuses to limit evidence of “other bad acts” in criminal fraud trial

By Michelle L. Oxman, JD, LLM

In a criminal prosecution for Medicare fraud, the court denied some of the relief requested and reserved ruling on the rest of the defendants’ motions in limine, to exclude evidence of transactions and incidents that were not included in the indictment (United States v English, October 9, 2013, Roberts, V). Evidence of these “other bad acts” was offered not to establish the defendants’ bad character, but to show their knowledge of the fraudulent nature of the bills, plan, intent, or the absence of mistake, or other background evidence.

The fraudulent scheme. The charges of health care fraud and conspiracy alleged that: (1) Glenn English incorporated New Century Adult Day Program Services, Inc. and held it out as a provider of counseling and psychotherapy services; (2) English and Richard Hogan recruited Medicare beneficiaries off the street by promising them prescription medication that they wanted; (3) codefendant Donald Berry wrote and signed false documentation of psychotherapy services that never occurred and were not needed; (4) all codefendants paid and received kickbacks in exchange for Medicare beneficiary numbers; (5) directed employees to create false medical records; and (6) billed for therapy and counseling services that were not needed or were never provided.

The disputed evidence. The government proposed to present the testimony of witnesses that they met with English to discuss the fraud at New Century, specifically, that it did not have enough professionals to serve its patient population. The court refused to exclude this testimony because it concerned the current charges. The testimony of other witnesses was proffered to testify that English had directed them to create false medical records several years earlier at a different business as well as at New Century. The court ruled that this testimony was admissible as background evidence to establish the relationship between the witnesses and the defendants.

The government also proposed to present evidence that one of the businesses that participated in the fraudulent scheme with English and the others billed Medicare for the same services furnished on the same day as New Century. The court reserved ruling on this evidence but noted that the government must establish that the services billed were furnished to the same patients or by the same professionals.

The case number is 2:12-cr-20269-VAR-LJM.

Attorneys: Douglas R. Mullkoff (Kessler & Mullkoff) for Glenn English. Benjamin Singer, United States Department of Justice, for United States of America.

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