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United States v. Ubanwa

United States District Court, N.D. Indiana, Hammond Division

November 15, 2019

UNITED STATES OF AMERICA
v.
BASIL UBANWA

          OPINION AND ORDER

          THERESA L. SPRINGMANN CHIEF JUDGE

         This matter is before the Court on the Defendant's Motion to Dismiss and Bar Evidence of Pre-Amendment Conduct [ECF No. 24], filed on September 13, 2019. For the reasons stated below, this Motion is DENIED WITHOUT PREJUDICE.

         BACKGROUND

         On October 17, 2018, the Grand Jury charged Defendant Basil Ubanwa, the operator of Northwest Ambulance Services, Inc., with (1) one count of conspiracy to commit health care fraud; (2) ten counts of health care fraud; and (3) one count of Medicaid health care fraud. See Indictment, ECF No. 1; 18 U.S.C. §§ 371, 1347.

         Regarding Count I, conspiracy to commit health care fraud, the Grand Jury found in pertinent part that the Defendant conspired “to seek reimbursement from Medicare on behalf of Northwest Ambulance for ambulance transports of dialysis patients who did not actually qualify for ambulance transportation by falsely representing the physical conditions and abilities of the dialysis patients transported.” Indictment, ¶ 15. The Grand Jury also found that, from 2011 through 2015, the Defendant and his co-conspirators directed Northwest Ambulance employees “to complete the medical assessment portion of Medical Necessity Certifications before sending the forms to the Medicare beneficiaries' physicians. On numerous occasions, physicians were asked only to sign the already completed certification forms but were not asked to make an independent determination of medical necessity for each certification.” Id. ¶ 17. The Grand Jury further found that, from 2011 through 2015, the Defendant and his co-conspirators “submitted Medical Necessity Certifications to physicians for Medicare beneficiaries they knew did not qualify for ambulance transportation to and from dialysis.” Id. ¶ 18. On September 13, 2019, the Defendant filed the instant Motion to Dismiss and Bar Evidence of Pre-Amendment Conduct. The motion is fully briefed and ripe for ruling.

         ANALYSIS

         The Defendant argues that his actions prior to January 1, 2013, were lawful under the then-existing legal framework because he had obtained written orders from the patients' physicians certifying that transportation by ambulance was necessary. Compare 42 C.F.R. § 410.40(d)(2) (eff. until Jan. 1, 2013) (“Medicare covers medically necessary nonemergency, scheduled, repetitive ambulance services if the ambulance provider . . . obtains a written order from the beneficiary's attending physician certifying that the medical necessity requirements of paragraph (d)(1) of this section are met.”), with 42 C.F.R. § 410.40(d)(2)(ii) (effective Jan. 1, 2013) (adding new language that “[t]he presence of the signed physician certification statement does not alone demonstrate that the ambulance transport was medically necessary.”).

         Based upon this statutory interpretation, the Defendant argues that (1) Count I of the Indictment should be dismissed to the extent that it alleges the existence of a conspiracy to commit healthcare fraud from 2011 until January 1, 2013, because he obtained certificates of medical necessity for each transported patient during that time period; and (2) the Government should be prohibited from presenting evidence regarding any alleged lack of medical necessity for such transports prior to January 1, 2013. In response, the Government argues that (1) possession of a certificate of medical necessity from a patient's physician is not sufficient in and of itself to establish medical necessity; (2) the veracity of the certificates of medical necessity is a question of fact for the jury; and (3) 42 C.F.R. § 410(d)(2)(ii), which became effective January 1, 2013, can be retroactively applied. The Court addresses these issues in turn.

         A. The Applicable Law

         A motion to dismiss is proper when an indictment fails to state an offense. Fed. R. Crim. P. 12(b)(3)(B)(v). However, “[a] motion to dismiss is not intended to be a ‘summary trial of the evidence.'” United States v. Yasak, 884 F.2d 996, 1001 (7th Cir. 1989) (quoting United States v. Winer, 323 F.Supp. 604, 605 (E.D. Pa. 1971)); see also United States v. Moore, 563 F.3d 583, 586 (7th Cir. 2009) (“Challenging an indictment is not a means of testing the strength or weakness of the government's case, or the sufficiency of the government's evidence.” (quoting United States v. Todd, 446 F.3d 1062, 1067 (10th Cir. 2006))). A motion to dismiss an indictment for failure to state an offense should be denied if there is a question of fact for the jury. Yasak, 884 F.2d at 1001 n. 3 (“A defense [pursuant to Federal Rule of Criminal Procedure 12(b)] generally is capable of determination before trial if it involves questions of law rather than fact. If the pretrial claim is substantially intertwined with the evidence concerning the alleged offense, the motion to dismiss falls within the province of the ultimate finder of fact.”); United States v. Torkington, 812 F.2d 1347, 1354 (11th Cir. 1987) (“Under Fed. R. Crim. P. 12(b) an indictment may be dismissed where there is an infirmity of law in the prosecution; a court may not dismiss an indictment, however, on a determination of facts that should have been developed at trial.”).

         It is a criminal offense to conspire to “defraud the United States, or any agency thereof in any manner or for any purpose.” 18 U.S.C. § 371; see United States v. Kelerchian, 937 F.3d 895, 905 (7th Cir. 2019). Furthermore, it is a criminal offense to knowingly and willfully execute, or attempt to execute, a scheme to defraud any health care benefit program. 18 U.S.C. § 1347(a); see United States v. Bek, 493 F.3d 790, 801 (7th Cir. 2007).

         “Under the Medicare Act, health care providers are entitled to reimbursement for the ‘reasonable cost' of medical services they provide to Medicare beneficiaries.” Abraham Lincoln Mem'l Hosp. v. Sebelius, 698 F.3d 536, 541 (7th Cir. 2012) (citing 42 U.S.C. § 1395f(b)(1); 42 C.F.R. § 413.9(a)). Medicare covers ambulance services so long as certain conditions are met. See 42 C.F.R. § 410.40(a). In pertinent part, nonemergency ambulance transportation is appropriate “if either: the beneficiary is bed-confined, and it is documented that the beneficiary's condition is such that other methods of transportation are contraindicated; or, if his or her medical condition, regardless of bed confinement, is such that transportation by ambulance is medically required.” 42 C.F.R. § 410.40(d)(1).

         Medicare also has a special rule for nonemergency, scheduled, repetitive ambulance services. 42 C.F.R. § 410.40(d)(2). Prior to January 1, 2013, this rule provided only as follows:

Medicare covers medically necessary nonemergency, scheduled, repetitive ambulance services if the ambulance provider or supplier, before furnishing the service to the beneficiary, obtains a written order from the beneficiary's attending physician certifying that the medical necessity requirements of paragraph (d)(1) of this section are met. The ...

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