Case: 16-31119 Document: 00514327885 Page: 1 Date Filed: 01/30/2018 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals No. 16-31119 Fifth Circuit FILED January 30, 2018 UNITED STATES OF AMERICA, Lyle W. Cayce Clerk Plaintiff - Appellee v. DOCTOR PRAMELA GANJI; ELAINE DAVIS, Defendants - Appellants Appeals from the United States District Court for the Eastern District of Louisiana Before STEWART, Chief Judge, and KING and JONES, Circuit Judges. CARL E. STEWART, Chief Judge: After an eight-day jury trial, Defendants, Dr. Pramela Ganji and Elaine Davis, were convicted of conspiracy to commit health care fraud, in violation of 18 U.S.C. § 1349, and health care fraud, in violation of 18 U.S.C. § 1347. Defendants now appeal their convictions and sentences. For the reasons that follow, we REVERSE and VACATE. I. BACKGROUND Christian Home Health Care (“Christian”) was a home health agency owned by Elaine Davis and her husband, Walter Davis, Sr. since 1989. Christian provided home health care services to patients in Southern Case: 16-31119 Document: 00514327885 Page: 2 Date Filed: 01/30/2018 No. 16-31119 Louisiana. Home health care services are those skilled nursing or therapy services provided to individuals who have difficulty leaving the home without assistance. These services are commonly provided to senior citizens. The process for receiving home health care services begins when a physician identifies a patient as an eligible candidate. Usually, although not a legal requirement, a patient’s primary care physician (“PCP”) refers her for home health services. Then a nurse goes to the patient’s home to assess if she is homebound, completing an Outcome and Assessment Information Set (“OASIS”). The nurse then develops a plan of care based on the OASIS and forwards that document to a physician for approval. This is typically the same physician who initiated the process. In 2011, Medicare implemented a face-to- face requirement to further ensure that medical professionals would not order home health care without ever seeing the patient. This required medical professionals to actually see the patient for the initial meeting, but “[t]he face- to-face patient encounter may occur through telehealth in person.” 1 Regulations allow for medical professionals who are not physicians to complete the face-to-face encounter, but the professionals have to be under the supervision of a physician. A medical professional certifies that they completed this encounter by completing a face-to-face addendum. The agency then sends the addendum with the Form 485 certification forms, which were used to certify patients for home health care to Medicare for reimbursement. If the professional determines the patient is homebound, the agency staff 1 42 C.F.R. 424.22(a)(v)(B). 2 Case: 16-31119 Document: 00514327885 Page: 3 Date Filed: 01/30/2018 No. 16-31119 immediately provides that care. 2 The staff member keeps the certifying doctor updated and notifies her if the patient’s needs change. 3 In order to provide these services, Christian employed an administrative team and medical professionals, including clinical supervisors, registered nurses, licensed practical nurses, home health aides, medical consultants, and medical directors. Medical directors ...
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