In the
United States Court of Appeals
For the Seventh Circuit
No. 17‐2005
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
CHARLES DEHAAN,
Defendant‐Appellant.
Appeal from the United States District Court for the
Northern District of Illinois, Western Division.
No. 14 CR 50005 — Frederick J. Kapala, Judge.
ARGUED FEBRUARY 14, 2018 — DECIDED JULY 25, 2018
Before EASTERBROOK and ROVNER, Circuit Judges, and
GRIESBACH, District Judge.*
ROVNER, Circuit Judge. Dr. Charles DeHaan appeals the
sentence he received for engaging in a scheme to defraud
*
The Honorable William C. Griesbach, Chief Judge of the United States
District Court for the Eastern District of Wisconsin, sitting by designation.
2 No. 17‐2005
Medicare in violation of 18 U.S.C. § 1347. In estimating the loss
attributable to DeHaan’s conduct, the district court found that
he was responsible for fraudulently certifying the eligibility of
least 305 individuals for home health care services, resulting in
wrongful billings to Medicare of nearly $2.8 million. DeHaan
contends that the court’s finding that he fraudulently certified
305 individuals is tainted by a legal error as to what was
required to properly certify a patient as eligible for home care.
He also argues that the loss figure for these individuals was
inflated, as the government did not prove that the individuals
in question in fact were not eligible for the services billed.
Finally, because he believes that this loss amount was errone‐
ous, DeHaan contends that the court also erred in requiring
him to pay restitution in the same amount. Finding no error in
the district court’s conservative loss‐estimation methodology,
we affirm.
I.
During the five‐year time period relevant to this case,
DeHaan was a licensed family‐practice physician working in
the Chicago and Rockford metropolitan areas of Illinois. He
was president of Housecall Physicians Group of Rockford,
S.C., was affiliated with other similar agencies providing
medical services to homebound patients, and served as
medical director of a number of home health agencies, assisted
living facilities, and hospices. He was enrolled as a provider
with Medicare and as such had a unique national provider
number pursuant to which he would bill Medicare for services
he provided to Medicare beneficiaries.
No. 17‐2005 3
Among the services for which Medicare will reimburse
qualified beneficiaries are home health services. In order to
qualify for such services, an individual must be effectively
confined to the home and must be certified as such by a
physician.
DeHaan knew that Medicare authorized payment for
physician house calls and other home health services only if
those services were actually provided and were medically
necessary due to a patient’s disease, infirmity, or impairment.
DeHaan also knew that Medicare did not authorize payment
for services and treatment that were not actually provided or
for which the patient did not meet the criteria necessary to
justify the claimed service or treatment.
Beginning in January 2009 and continuing into January
2014, DeHaan participated in a scheme to defraud Medicare
with the aim of obtaining monetary reimbursement from the
Medicare program by means of materially false and fraudulent
representations. The misrepresentations fell into two primary
categories.
First, DeHaan would bill Medicare at the highest levels for
services to homebound patients that were ostensibly time‐
consuming and/or complex, when in fact he had either
conducted a routine, non‐complex visit with the patient
(perhaps lasting no more than a few minutes), or he had not
seen (or served) the patient at all on the occasion for which he
was billing. We shall refer to this as the overbilling aspect of
the scheme.
Second, at the behest of home health agencies, DeHaan
certified as homebound patients whom he either knew did not
4 No. 17‐2005
meet Medicare’s criteria for home care or as to whom he lacked
meaningful knowledge as to their health status. We shall refer
to this as the fraudulent certification component of the scheme.
Apropos of that aspect of the scheme, DeHaan at least twice
acknowledged to one of the investigating agents that he had
certified as homebound patients who did not, in fact, meet
Medicare’s criteria for being homebound. He added that the
home health agencies would tell him what services their clients
needed (and wanted, in many cases), and, in DeHaan’s words,
“I certify.” R. 150 at 222. DeHaan questioned whether some of
the patients truly qualified as homebound, but he told the
agent that he could always find a reason why they needed
home health services. “I will have some issues with this,” he
told the agent, R. 150 at 224, seemingly recognizing that some
number of his certifications were of dubious legitimacy.
Medicare will authorize payment for health
services—which include such things as intermittent skilled
nursing, physical therapy, speech therapy, and occupational
therapy—provided that three criteria are satisfied. First, the
beneficiary must in fact be homebound, meaning that his
ability to leave the home is restricted due to illness or disabil‐
ity. Second, the beneficiary must be under the care of a
physician who has created a specific plan of care for him.
Third, the beneficiary’s physician must complete and sign a
Medicare Form 485 setting forth, among other things, the
beneficiary’s diagnosis, functional limitations, medications,
and plan of care, along with a certification that the beneficiary
is homebound, is under the physician’s care, and is in need of
home health services. See 42 U.S.C. § 1395n(a)(2)(A); 42 C.F.R.
§ 424.22(a); United States v. Echols, 574 F. App’x 350, 352 (5th
No. 17‐2005 5
Cir. 2014) (non‐precedential decision); R. 93 at 5–6. Periodi‐
cally, a physician will need to re‐certify the beneficiary as
homebound in order to preserve the beneficiary’s eligibility for
home health services. 42 C.F.R. § 424.22(b). The certifying
physician will bill Medicare for the certification or re‐certifica‐
tion. Certification, of course, paves the way for home health
agencies to provide services to the beneficiary and to bill
Medicare for those services.
DeHaan elected to plead guilty to two counts of a 23‐count
superseding indictment. Although DeHaan denied certain
aspects of the scheme to defraud as the government had
framed it, he did admit to engaging in each of the two catego‐
ries of misrepresentations that we have discussed: overbilling
and fraudulent certifications. As it happens, the two counts of
the indictment to which DeHaan pleaded guilty both involved
overbilling as we have described it. Count 9 alleged that
DeHaan had sought reimbursement for an in‐home visit to a
beneficiary, “SJ,” whom DeHaan had actually not seen on the
occasion in question. And Count 21 alleged that DeHaan had
sought reimbursement for an in‐home visit to a beneficiary,
“CH,” who had died some six weeks prior to the date of the
fictitious visit.
The parties were unable to reach an agreement as to the loss
resulting from DeHaan’s criminal conduct, and the probation
officer did not propose a loss amount in the pre‐sentence
report. The district court took evidence on the loss amount
over the course of two days, after which the parties filed post‐
hearing briefs setting forth their widely‐divergent views as to
the appropriate loss amount.
6 No. 17‐2005
Judge Kapala entered his findings as to the loss in a written
order. After observing that “it is not possible to determine with
precision the actual amount of loss in this case,” R. 134 at 1, he
endeavored to make a reasonable estimate of the loss. See
U.S.S.G. § 2B1.1 cmt. n.3(c) (Nov. 2015).1 The judge rejected
DeHaan’s argument that the loss amount should be limited to
the $828.42 billed in connection with the Medicare beneficiaries
identified in the two counts of the superseding indictment to
which DeHaan had pleaded guilty. He also rejected the
government’s threshold position that the entirety of the billings
attributable to DeHaan over the life of the scheme should be
presumed fraudulent and that the burden should be shifted to
DeHaan to prove otherwise. See United States v. Hebron, 684
F.3d 554, 563 (5th Cir. 2012). But the judge was satisfied that
the evidence presented by the government enabled him to
make a reasonable estimate of the loss resulting from
DeHaan’s conduct.
As to the overbilling aspect of the scheme, the judge went
on to find that DeHaan’s conduct had resulted in a loss of
$478,520.29. That figure is not at issue in this appeal; DeHaan
accepts it as accurate.
With respect to the loss associated with DeHaan’s
fraudulent certification of “homebound” patients—which
DeHaan does dispute on appeal—the district court endorsed
the government’s view that one could reasonably estimate this
component of the loss by tallying the number of Medicare
1
DeHaan’s sentencing range was calculated using the 2015 version of the
Sentencing Guidelines, and consequently all of our citations are to that
version of the Guidelines and the Guidelines Manual.
No. 17‐2005 7
beneficiaries certified by DeHaan as homebound who
appeared not to be under his care. Government Exhibit 94A
listed 471 patients certified by DeHaan as to whom there was
no record of any in‐home visit by DeHaan with those
individuals. Exhibit 94B reduced that total to 411 by excluding
patients who were certified by DeHaan but for whom there
was never any subsequent billing by home health agencies.
Exhibit 94C reduced the total further to 305 by eliminating
patients who had additional certifications by someone other
than DeHaan. Because the physician completing a Form 485
certification must have under his care the Medicare beneficiary
he is certifying as homebound, and because there was no
evidence of any billing by DeHaan as to these beneficiaries
(other than for the certification or re‐certification itself), Judge
Kapala concluded it was reasonable to infer that the
certifications as to these beneficiaries were fraudulent, and it
was also reasonable to infer that the home healthcare billings
associated with these patients, totaling $2,787,054.58 were part
of the loss resulting from DeHaan’s fraud. R. 134 at 10.
The judge acknowledged DeHaan’s “brief[ ]” contention
that a beneficiary could be certified as homebound based on a
face‐to‐face encounter conducted by a medical professional
other than the certifying physician himself. R. 134 at 10 n.10.
It is not clear to the court how this is relevant, …
[as it] does not change the fact that the
defendant certified that the patients listed in
Exhibit 94C were under his care … , even
though there is no record of him providing any
medical care to those patients. Accordingly, this
undeveloped argument does not persuade the
8 No. 17‐2005
court that the government’s loss calculation on
this issue is incorrect, or that the government is
somehow “attempting to pile on.”
R. 134 at 10 n.10 (quoting defendant’s post‐hearing brief
regarding sentencing enhancements, R. 119 at 22).
Coupled with the overbilling figure, the total loss
attributable to DeHaan’s conduct amounted to $3,265,574.87,
which the court found to be a fair and reasonable estimate of
the loss. R. 134 at 10. That loss amount triggered a 16‐level
enhancement pursuant to section 2B1.1(b)(1)(I) for losses
exceeding $1.5 million, along with another two‐level
enhancement pursuant to section 2B1.1(b)(7) because the loss
to Medicare exceeded $1 million. R. 134 at 10.
The court subsequently ordered DeHaan to serve a within‐
Guidelines sentence of 108 months in prison. It also ordered
him to pay restitution in the amount of $2,787,054.58, which
was the loss figure associated with his fraudulent homebound
certifications.2
2
The judge declined, in passing sentence, to take into account allegations
that DeHaan had sexually assaulted and abused a number of his patients
during the time frame of the scheme to defraud Medicare (and in many
instances, on the same occasions that he fraudulently billed Medicare for
services he did not provide to those patients). The judge noted that there
were criminal charges pending in state court based on those allegations
(with more substantial potential penalties), and he believed it appropriate
to sentence DeHaan based on the fraud alone and leave it to the state court,
in the event of a conviction on the other charges, to determine the
appropriate penalty. R. 149 at 43–45. The judge did provide that the prison
term he ordered DeHaan to serve in this case was to run consecutively with
(continued...)
No. 17‐2005 9
II.
DeHaan’s appeal focuses on the district court’s estimate of
the loss attributable to the fraudulent certification aspect of the
scheme. He makes three principal arguments: (1) The district
court committed legal error when it concluded that DeHaan’s
certifications of the 305 Medicare beneficiaries identified in
Exhibit 94C as homebound were fraudulent in the absence of
evidence that he had ever made a home visit to these patients,
when the law did not require DeHaan himself to meet with the
patient as a condition of certifying him or her as homebound;
(2) the court committed a second legal error in adopting as the
loss figure the total billings associated with these fraudulent
certifications, without proof that none of these 305 patients was
in fact homebound and thus qualified for home health benefits;
(3) for the same reasons the estimate of the loss resulting from
the fraudulent certifications was erroneous, the court
committed plain error when it required DeHaan to make
restitution to Medicare in this amount.3
DeHaan’s first argument assumes that the district court
treated as fraudulent the certifications of the 305 individuals
set forth in Exhibit 94C because there was no evidence that
DeHaan met with these individuals face to face before
2
(...continued)
any sentence that might later be imposed in state court for any charges
related to DeHaan’s alleged sexual misconduct. R. 149 at 45–46.
3
There is no dispute that although neither of the counts to which DeHaan
pleaded guilty involved fraudulent certification, that aspect of the scheme
nonetheless constitutes relevant conduct for sentencing purposes. See
U.S.S.G. § 1B1.3.
10 No. 17‐2005
certifying them as homebound. DeHaan does not dispute that
he certified certain individuals as homebound without first
meeting them in person, but he points out that the face‐to‐face
requirement for certification was first adopted with the
passage of the Affordable Care Act in 2010, and did not take
effect until January 1, 2011, a full two years into his criminal
scheme. See Patient Protection and Affordable Care Act, Pub.
L. No. 111‐148, § 6407, 124 Stat. 119, 769–70 (Mar. 23, 2010); 42
U.S.C. § 1395f; CMS Manual System, Pub. 100–02, Transmittal
139 (Feb. 16, 2011) (“Clarifications for Home Health Face‐to‐
Face Encounter Provisions”) (amending § 30.5 of Medicare
Benefits Policy Manual), available at
w w w. c m s . g o v / R e g u l a t i o n s ‐ a n d ‐
Guidance/Guidance/Transmittals/downloads/R1398BP.pdf
(visited July 17, 2018). Even then, the face‐to‐face meeting
could be conducted by a non‐physician practitioner, such as a
nurse practitioner or physician’s assistant, working in
collaboration with or under the supervision of the certifying
physician rather than the physician himself. Affordable Care
Act § 10605, 124 Stat. at 1006; 42 U.S.C. §§ 1395f(a)(2)(C),
1395n(a)(2)(A). DeHaan notes testimony below that “at various
times relevant to the scheme,” he did have nurse practitioners
working with him. DeHaan Br. 26. So the lack of a face‐to‐face
meeting between DeHaan and any of the 305 individuals listed
in Exhibit 94C did not by itself establish that the certifications
were fraudulent, as he may have relied on a face‐to‐face
encounter with one of these nurse practitioners in certifying
these individuals as homebound.
But DeHaan is mistaken to think that the court
characterized these certifications as fraudulent based on the
No. 17‐2005 11
lack of face‐to‐face meetings with the individuals listed.
Certainly it is true that both the government’s counsel and
some of its witnesses made statements which could be
understood as asserting that DeHaan was required to have a
face‐to‐face meeting with a patient before certifying that
patient as homebound. R. 158 at 173, 183, 223. But it is not at all
apparent that the district judge ever labored under the
misimpression that DeHaan was required to meet in person
with a patient before he certified that individual as
homebound. The judge appeared to challenge that very notion
when the government advanced it. R. 158 at 182–83. More to
the point, in concluding that the certifications of the
individuals in Exhibit 94C were fraudulent, the judge relied
not on the lack of face‐to‐face encounters, but on the absence
of evidence that these patients were under DeHaan’s care. R.
134 at 10 n.10. Indeed, in his order, Judge Kapala expressly
acknowledged DeHaan’s argument that the required face‐to‐
face meeting could be performed by someone other than the
certifying physician, but he dismissed the relevance of this
argument given his conclusion that the patients set forth in
Exhibit 94C were not under DeHaan’s care. R. 134 at 10 n.10. So
the notion that the district court relied on the lack of a face‐to‐
face meeting between DeHaan and the patients prior to
certification is a non‐starter.
More relevant is DeHaan’s secondary contention that the
patients in question could have been under DeHaan’s care
without him necessarily providing services directly to the
patients and billing Medicare for those services. Certainly it is
true that a physician may supervise the care of a patient but
rely on someone like a nurse practitioner or another non‐
12 No. 17‐2005
physician professional from a home health agency to provide
care to the patient. Because a non‐physician professional will
typically have his or her own Medicare provider number, that
individual’s services will be billed under that number rather
than the number of the supervising physician. Moreover, the
2014 Medicare Benefits Policy Manual in effect at the
conclusion of the scheme indicated that there was no
requirement that the physician himself see the homebound
patient at any particular time or with any particular frequency:
The patient must be under the care of a
physician who is qualified to sign the physician
certification and plan of care in accordance with
42 C.F.R. § 424.22.
A patient is expected to be under the care of the
physician who signs the plan of care and the
physician certification. It is expected, but not
required for coverage, that the physician who
signs the plan of care will see the patient, but
there is no specified interval of time within
which the patient must be seen.
Medicare Benefits Policy Manual, Ch. 7 § 10 (2014), available at
doczz.net/doc/6541500/medicare‐benefit‐policy‐manual‐
chapter‐7‐‐‐home health‐se… (visited July 17, 2018). So in
theory, DeHaan might have been supervising the care of a
particular patient without seeing that patient or billing
Medicare for direct services to that patient at any particular
time or interval of time. Thus, in DeHaan’s view, the lack of
such billings by him does not by itself suggest fraud in the
Form 485 certifications, just as his lack of a face‐to‐face meeting
No. 17‐2005 13
in connection with the certification does not necessarily mean
the certification was fraudulent.
But we agree with the district court that the lack of billings
by DeHaan as to any of the patients set forth in Exhibit 94C
does support the reasonable inference that the certifications of
these patients as homebound were fraudulent. Given that a
homebound patient must be under the certifying physician’s
care, one would naturally expect that the physician will, at one
point or another, bill Medicare for some visit or service apart
from the certification itself. Whatever the 2014 Medicare
Benefits Policy Manual may or may not have required of the
certifying physician in this respect, it did not suggest that the
physician would routinely be so detached from the patient’s
care that he would never see the patient or provide a service for
which he would bill Medicare directly. Indeed, in view of the
government’s case as to the overbilling aspect of the scheme,
which included testimony from multiple patients recounting
DeHaan’s practice of making brief visits to their residences for
perfunctory inquiries as to their status and needs (sometimes
not venturing beyond their doorways in the course of the
visit)—and for which he would later bill Medicare for
hundreds if not thousands of dollars for examinations and
services he did not perform—it is all the more noteworthy that
DeHaan forsook the opportunity to bill the government for
services to any of the beneficiaries identified in Exhibit 94C.
The lack of any apparent followup by DeHaan with these
beneficiaries once certified for home care readily supports the
inference that DeHaan did not, in fact, have the patients
identified in Exhibit 94C under his care. Having in mind that
the district court’s task was to make a reasonable estimate of
14 No. 17‐2005
the loss rather than to assess it with precision, we are satisfied
that its reliance upon Exhibit 94C was both acceptable and
proper. For this purpose, the government was not required to
rule out every theoretical possibility that a given patient listed
in that exhibit could have been under DeHaan’s care without
the doctor himself having seen and/or provided a billable
service to that patient at some point during the life of the
scheme. The lack of any billing for a visit or service by DeHaan
reasonably suggests fraud, and the court was within its rights
to base its loss estimate on that inference.
That the government bore the burden of proof as to the loss,
e.g., United States v. Williams, 892 F.3d 242, 250 (7th Cir. 2018),
does not counsel differently. The government satisfied that
burden by supplying the court with evidence which, as we
have just explained, established a reasonable estimate of the
loss. Its approach to the loss attributable to DeHaan’s
fraudulent certifications was, if anything, “conservative,” as
Judge Kapala described it. R. 134 at 9. As the perpetrator of the
scheme, DeHaan had the means to present the court with a
different view of the scope of his fraud, if he wished, or to
demonstrate that the government’s evidence or methodology
was in some way unreliable. See United States v. Durham, 766
F.3d 672, 686 (7th Cir. 2014) (once government has presented
explicit proof of loss, it is defendant’s obligation to present
evidence to counter that showing) (citing United States v.
Gordon, 495 F.3d 427, 432 (7th Cir. 2007)). Judge Kapala gave
DeHaan every chance to do just that. DeHaan did not avail
himself of that opportunity.
In short, we reject the notion that the district court
committed legal error in relying on the lack of direct billings by
No. 17‐2005 15
DeHaan to infer that the patients identified in Exhibit 94C were
not, in fact, under his care, as required by the relevant statutes
and regulations.
DeHaan next argues that the district court improperly
calculated the monetary loss to Medicare resulting from the
fraudulent certification of these 305 patients. As we noted
earlier, the district court found that Medicare paid roughly $2.8
million to home health agencies under Medicare Part A for
services rendered pursuant to DeHaan’s certification that these
patients were homebound. R. 134 at 10. DeHaan contends that
he can only be held to account for the loss that was
proximately caused by his conduct, and for two reasons he
believes it was error for the court to treat the total amount paid
by Medicare for services to these patients as the relevant loss
amount.
First, he notes that the home health agencies had an
independent duty to bill Medicare only for such services as
were reasonably necessary. The government declined to treat
the home health agencies as co‐schemers with DeHaan, such
that any fraud on his part was attributable to the agencies who
proceeded to bill Medicare for services to the patients he
certified, or vice‐versa. Thus, as DeHaan sees things, if the
agencies concluded that a given patient warranted home health
services, then the bills they submitted to and were paid by
Medicare were not fraudulent. And if the agencies were
knowingly billing Medicare for services that were unnecessary,
then that was an independent fraud in which DeHaan was not
implicated. Either way, in his view, “[a]gency independence is
an intervening act breaking the causal chain between DeHaan’s
16 No. 17‐2005
certifications and any agency bills—fraudulent or not.”
DeHaan Br. 37.
Second, and relatedly, DeHaan argues that Medicare only
suffered a loss to the extent that any of these patients in fact
could not qualify as homebound and thus should not have
received the services for which Medicare was billed. In his
view, absent proof that none of the 305 patients was actually
eligible for home health services, it was error for the court to
treat the entire amount paid by Medicare for services to these
patients as a loss.
Neither of these arguments was made below, so our review
is for plain error only. Fed. R. Crim. P. 52(b); see also, e.g.,
United States v. Carson, 870 F.3d 584, 593 (7th Cir. 2017), cert.
denied, 138 S. Ct. 2011 (2018). We are satisfied that the district
court committed no obvious error in treating the amounts paid
by Medicare as the loss amount for which DeHaan should be
held responsible. See Puckett v. United States, 556 U.S. 129, 135,
129 S. Ct. 1423, 1429 (2009) (to meet plain error standard error
must be clear or obvious) (citing United States v. Olano, 507 U.S.
725, 734, 113 S. Ct. 1770, 1777 (1993)).
First, although the home health agencies had their own
obligations to Medicare, their independent role in ascertaining
what services a patient genuinely required and in billing
Medicare for those services in no way mitigated or limited
DeHaan’s culpability for the resulting loss to Medicare. The
certifying physician plays the role of gatekeeper in ascertaining
whether a patient is homebound and qualifies for home health
services; Medicare relies on the independent and honest
professional judgment of the certifying physician for that
No. 17‐2005 17
purpose. See United States v. Patel, 778 F.3d 607, 617 (7th Cir.
2015). DeHaan certified as homebound hundreds of patients
either knowing that they did not qualify as homebound under
Medicare’s criteria or without knowing at all whether they so
qualified. In doing so, he breached his duty to Medicare and
opened the door for the agencies to bill Medicare for millions
of dollars worth of services. See id. He knew this is what the
agencies would do—after all, in at least some instances, he
certified the patients as homebound at the agencies’ behest. He
may be held to account for the foreseeable consequences of the
scheme. See U.S.S.G. § 2B1.1, comment. (n.3(A)(i)) (“‘Actual
loss’ means the reasonably foreseeable pecuniary harm that
resulted from the offense.”).
Second, it is not plain that this is the sort of case in which
the loss amount should be reduced by the value of services
provided to patients who, although fraudulently certified as
homebound by DeHaan, in fact were homebound and thus
could have been properly certified. The fraud at issue in this
appeal does not involve overbilling for services that were
otherwise legitimate. Cf. United States v. Mahmood, 820 F.3d 177,
193–94 (5th Cir.), cert. denied, 137 S. Ct. 122 (2016) (defendant
entitled to credit for value of legitimate hospital services that
only became tainted by fraud after the fact, when defendant
had billing codes altered to result in overcharges); United States
v. Vivit, 214 F.3d 908, 915–18 (7th Cir. 2000) (where fraud
involved overstatement of care provided to patients, and
evidence indicated that some services provided were medically
necessary, district court appropriately credited defendant for
value of those services in loss calculation). Medicare requires
a patient to be certified as a precondition to receiving home
18 No. 17‐2005
health services. Absent a proper certification, a patient is not
eligible for such services as far as Medicare is concerned,
whether he is actually homebound or not. Thus, any patients
whom DeHaan fraudulently certified as homebound without
actually knowing anything about their status were, from
Medicare’s point of view, ineligible for home health services,
in the same way that a patient who has not yet been evaluated
and certified as homebound by a physician is ineligible. In this
way, one may see the entire amount paid by Medicare for
services to these patients as a loss even if, in theory, some
number of these patients were in fact homebound and could
therefore have qualified for home services had they been
certified as homebound in good faith by an honest physician.
Cf. United States v. Jones, 664 F.3d 966, 984 (5th Cir. 2011)
(noting that from Medicare and Medicaid’s perspective,
medical services provided by unlicensed therapists were of no
value; it was thus appropriate to treat entire amount paid by
Medicare and Medicaid for those services as loss); United States
v. Triana, 468 F.3d 308, 320–23 (6th Cir. 2006) (where defendant
was barred by prior conviction from participating in Medicare
program, full amount paid by Medicare to his firms was
properly treated as loss, even if billings were for legitimate
services provided to Medicare‐eligible patients by licensed
professionals).4
4
In his reply brief, DeHaan argues that we should remand for clarification
of whether the loss calculation was based on the amounts the agencies
billed to Medicare or were paid by Medicare. DeHaan Reply Br. 20–21. If
the former, he believes the appropriate course is to limit the loss to the
$478,520.29 the court attributed to the overbilling aspect of DeHaan’s fraud,
(continued...)
No. 17‐2005 19
Finally, we may quickly dispatch DeHaan’s contention that
the district court committed plain error in ordering him to pay
restitution in the amount of $2,787,054.58—equal to the loss
amount attributed to the wrongful certification component of
his fraud. This challenge largely amounts to a rehash of the
challenges DeHaan made to the loss amount and which we
have already rejected. We need add only that the restitution
order does not, in our view, effectuate joint and several liability
for the actions of the home health agencies who billed
Medicare for the services provided to the patients whom
DeHaan fraudulently certified as homebound. As we have
already discussed, regardless of whether the agencies
themselves engaged in independent wrongdoing when they
billed Medicare for these services, the billings were the direct
and foreseeable result of DeHaan’s fraud as the gatekeeper in
certifying the patients; without his certification, the agencies
could not have billed Medicare and Medicare would not have
compensated the agencies for the services they provided. The
Medicare payments are a reasonable approximation of the loss
resulting from DeHaan’s own criminal conduct, and as such it
was entirely appropriate for the district court to order DeHaan
to make restitution for that loss.
4
(...continued)
“because it is the only proven loss amount.” DeHaan Reply Br. 21. Not only
was this argument not made below, it was not raised until the reply brief.
We therefore deem the argument waived. See, e.g., United States v. Waldrip,
859 F.3d 446, 450 n.2 (7th Cir. 2017).
20 No. 17‐2005
III.
Finding no error in the district court’s calculation of the loss
owing to DeHaan’s wrongful certification of patients as
homebound or its order that DeHaan make restitution to
Medicare for that loss, we AFFIRM the sentence.