United States v. Merigrace Orillo , 733 F.3d 241 ( 2013 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 12-3128
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MERIGRACE ORILLO,
Defendant-Appellant.
Appeal from the United States District Court for the
Northern District of Illinois, Western Division.
No. 11 CR 50012 — Frederick J. Kapala, Judge.
ARGUED FEBRUARY 26, 2013 — DECIDED OCTOBER 23, 2013
Before EASTERBROOK, ROVNER, and WILLIAMS, Circuit Judges.
ROVNER, Circuit Judge. On April 20, 2012, Merigrace Orillo
pled guilty in a written plea agreement to one count of
healthcare fraud pursuant to 18 U.S.C. §§ 1347 and 2, and one
count of paying kickbacks to physicians for patient referrals
under a federal health care program in violation of 42 U.S.C.
§ 1320a-7b and 18 U.S.C. § 2. She was sentenced to 20 months’
imprisonment. The district court determined that the loss
amount for the healthcare fraud count was $744,481 and
2 No. 12-3128
ordered her to pay that amount in restitution. On appeal, Orillo
challenges the loss calculation that led to that sentence and
restitution determination, and asserts that she has not waived
a challenge to the sentence on the kickback count.
Orillo, her husband, and a third person co-owned a
business known as Chalice Health Services, Inc. (“Chalice”),
which was a home health care provider. Orillo and her
husband, a doctor, managed Chalice and supervised its daily
operations. Chalice provided nurses, nurse aides, physical
therapists, and occupational therapists to care for patients in
the patients’ homes. Beginning in October 2004, Chalice was an
enrolled provider with Medicare and could seek reimburse-
ment of home health care through that program. Medicare
restricted payments for home health care to those services that
were medically necessary, which included only services
required because of disease, disability, infirmity or impair-
ment, to a homebound person. Prior to submitting a claim, the
home health care provider, such as the treating nurse, with
Chalice was required to complete a Comprehensive Adult
Nursing Assessment with Outcome and Assessment Informa-
tion Set (“OASIS”) form on the patient. The OASIS form was
utilized to establish whether the patient was homebound, the
severity of the patient’s symptoms, and the reimbursement rate
for Chalice. If a patient required services beyond a 60-day
period, the Medicare program required Chalice to submit a
Recertification/Follow-Up Assessment form (“Recertification”)
completed by that home health care provider to determine the
patient’s continued eligibility for such services.
Once the home care provider completed those forms,
Chalice was required to enter that information into a software
No. 12-3128 3
program that would determine the rate of reimbursement that
Medicare would provide. By manipulating the information on
those forms, Chalice could therefore impact the amount
provided by Medicare. Orillo supervised the submission of
those claims to Medicare, requiring that all forms be sent to her
office and personally reviewing the OASIS and Recertification
forms. In the plea agreement, she admitted that she falsified
those forms by altering the codes and information on the forms
that had been completed by the Chalice nurses to make the
patient’s condition appear worse and the health care needs
greater than the actuality. Those alterations caused the Medi-
care software program to generate different reimbursement
rates, which increased the reimbursement amounts paid to
Chalice—a sequence also known as upcoding. Orillo acknowl-
edged in the plea agreement that she made those alterations in
two ways—by marking the changes on the forms submitted by
the Chalice nurses, often forging their initials next to the
alterations, and by replacing entire pages with falsified pages
manufactured by Orillo herself. Orillo also admitted that she
aided her husband in paying kickbacks to a Chicago doctor in
return for referrals of Medicare patients.
As to the healthcare fraud count, Orillo conceded that the
loss to Medicare caused by her health care fraud scheme
exceeded $400,000, and agreed to the entry of a $500,000
forfeiture judgment. The amount of restitution was left to the
district court’s determination. Orillo now appeals the calcula-
tion of loss and the restitution amount as to that healthcare
fraud count.
The district court adopted the amount of $744,481 deter-
mined by the Probation Officer in the Pre-Sentence Investiga-
4 No. 12-3128
tion Report. That amount was determined after an extensive
statistical analysis undertaken by Eric Vasiloff of Trust Solu-
tions, LLC, which was a government contractor charged with
auditing Chalice’s medical records to determine the loss to the
Medicare program. Brian Cody, a registered nurse assigned to
medical review for Trust Solutions, conducted a review of a
random sample of the medical records for claims submitted by
Chalice between January 1, 2007 and March 31, 2010. He
reviewed records for 177 episodes of care delivered by Chalice
to homebound Medicare patients out of 3,400 total episodes
attributable to Chalice during that time period. Cody testified
that he examined the records to determine whether the items
on the OASIS forms were consistent with supporting docu-
mentation such as the plan of care, nurse’s notes, or therapy
notes. Where the OASIS items were internally inconsistent or
where they were inconsistent with that supporting documenta-
tion, Cody would determine what OASIS items were properly
supported by those records and input the correct information.
He then generated the correct Medicare codes and the corre-
sponding reimbursement rates using those proper OASIS
items. As a result of that analysis, Cody uncovered overpay-
ments totaling $47,444 for those 177 episodes of care. He found
no evidence of underpayments in that sample. In the spread-
sheet that he compiled in his review, Cody separated the
overpayments into two categories: those related to OASIS
items on which alterations had been written, and those
attributable to OASIS items in which no alterations were
apparent but which were nevertheless inconsistent with the
underlying documentation.
No. 12-3128 5
At the outset, it is important to note what Orillo does not
challenge in this appeal. She does not contest the reliability of
the extrapolation based on established statistical methods, nor
the random sample used. She does not contend that Cody
improperly determined when the coding was inaccurate in
determining overpayments, nor does she challenge the amount
of overpayments that were found. In fact, she raises no
challenge at all to the determination as to the amount of
overpayments. Her sole argument is that the court erred in
attributing all of the overpayments to criminal conduct, and
that in assessing the loss and restitution amounts, the court
should have relied only on overpayments relating to visibly
altered items and not on any overpayments related to items not
visibly altered. Orillo asserts that the government produced no
evidence tying her criminal conduct with the overpayments
that resulted from forms in which there were no apparent
alterations. According to Orillo, a certain amount of overpay-
ment is natural and expected as an everyday occurrence as a
result of human error, such as error in entering the data. She
contends that those errors are not related to any fraudulent
scheme, and thus the overpayments resulting from them
should not be part of either the loss calculation or the restitu-
tion award.
A loss determination must be based on the conduct of
conviction and relevant conduct that is criminal or unlawful,
and the government must demonstrate by a preponderance of
the evidence that the loss amount is attributable to that
criminal or unlawful conduct. United States v. Littrice, 666 F.3d
1053, 1060 (7th Cir. 2012). That standard requires only that the
fact-finder believe that the existence of a fact is more probable
6 No. 12-3128
than its non-existence, and for the purposes of determining the
loss amount, a reasonable estimate is sufficient. Id. We review
the district court’s finding of loss amount for clear error, and
will reverse only if “‘based on the entire record, we are left
with the definite and firm conviction that a mistake has been
committed.’” Id., quoting United States v. Severson, 569 F.3d 683,
689 (7th Cir. 2009). In other words, in order to reverse for clear
error we would need to find that the “district court’s calcula-
tion was not only inaccurate but outside the realm of permissi-
ble computations.” Id., quoting United States v. Al-Shahin, 474
F.3d 941, 950 (7th Cir. 2007). The standards applicable to
restitution awards are slightly different. The amount of
restitution is limited to the actual losses caused by the specific
conduct underlying the offense, and, like the loss amount, the
government must establish that by a preponderance of the
evidence. United States v. Kennedy, 726 F.3d 968 (7th Cir. 2013).
We review the district court’s determination of the restitution
amount for abuse of discretion, viewing the evidence in the
light most favorable to the government. Id.; United States v.
Robers, 698 F.3d 937, 941 (7th Cir. 2012).
Orillo challenges both the loss and restitution amounts, but
her argument is focused almost entirely on the loss amount,
with restitution mentioned only a handful of times. Although
the restitution analysis differs from that of the loss amount, in
this case Orillo raises one challenge applicable equally to both
determinations, and therefore we address them together. See
United States v. Ali, 619 F.3d 713, 720 (7th Cir. 2010) (analyzing
challenges to the loss calculation, forfeiture order, and restitu-
tion award together because the challenges to the three were
the same).
No. 12-3128 7
Orillo does not challenge the calculation of the overpay-
ment amounts; she solely challenges the application of one
category of overpayment to that loss and restitution determina-
tion. Orillo contends that only overpayments related to visible
alterations of OASIS entries should be used in determining the
loss amount and the restitution award. Of the 177 claims
identified by Cody, 24 files involved overpayments totally
unrelated to altered items, generating overpayments of
$8,542.73 out of the total overpayment amount of $47,444. In
addition, Orillo points out that in a group of medical files
involving 61 episodes of care in which both altered and
unaltered items resulted in overpayments, in 16 of those files
altered and non-altered OASIS items that triggered overpay-
ments appear together on the same page. The 61 files which
contained both types of unsupported entries generated $30,995
of the $47,444 overpayment. Orillo contends that the court, in
calculating the loss and restitution amount, should have
limited itself to only overpayments related to visible alter-
ations, and should not have considered any overpayments
related to OASIS entries that were unsupported but not visibly
altered. As to those overpayments associated with OASIS
entries lacking visible alterations, Orillo asserts that there is no
reason to attribute it to wrongdoing as opposed to routine
human error.
In support of that contention, Orillo points to Cody’s
statement that he did not attempt to determine fraud, but was
limited to determining only whether the OASIS entries were
supported by the documentation. Orillo stated that she had
expected Cody to determine instances of upcoding, and that
his statement that he did not attempt to determine fraud was
8 No. 12-3128
inconsistent with that and an indication that the overpayments
did not equate with fraudulent conduct.
There are numerous problems with that argument. First, it
is of no import that Cody testified that he was not attempting
to determine whether the entries indicated fraud. Cody
testified that he determined whether the OASIS assessment
included claims inconsistent with the record, and provided a
listing of those instances and the resulting overpayments. That
is evidence of upcoding, which is precisely what Orillo
acknowledges that Cody was entrusted to unearth. Cody’s
testimony was introduced merely to determine the extent to
which the supporting medical documentation was inconsistent
with the OASIS entries, and the impact those inconsistencies
had on the Medicare payments received by Chalice, not to
reach a legal conclusion as to the import of that evidence. The
government properly did not ask Cody to draw any conclu-
sions as to whether the errors constituted fraud, which is a
legal determination.
As noted, Orillo does not contest Cody’s qualifications to
make the OASIS assessments, nor does she dispute the validity
of Cody’s conclusions as to which OASIS entries were sup-
ported in the record and which were contradicted by it. She
argues, however, that because Cody failed to testify that the
overpayments resulted from fraud, the court could not rely on
the overpayments themselves as evidence of criminal conduct
in determining the loss and restitution amounts. She argues
that the court should have limited its loss and restitution
calculations to overpayments that resulted from visible
alterations on the OASIS forms.
No. 12-3128 9
That argument rests on the flawed premise that the only
evidence tying the overpayments to Orillo’s criminal conduct
was the testimony by Cody and the visible alterations. Orillo’s
own plea agreement provided evidence explicitly linking the
overpayments to her conduct. Orillo admitted in her plea that
she altered the OASIS and Recertification forms to make the
patients’ conditions appear worse and the health care needs
greater than the actuality, thus resulting in overpayments.
Significantly, she further admitted that she made those
alterations in two ways—by marking the changes on the forms
submitted by the Chalice nurses, and by replacing entire pages
with falsified pages manufactured by Orillo herself, which
would therefore not necessarily contain alterations visible to a
reviewer. Orillo’s contention that the court should be limited
to considering only visible alterations ignores the second part
of that admission, which is that she manufactured overpay-
ments by falsifying entire pages. Orillo even recognizes that
problem at one point, asserting that the government has no
evidence linking the overpayments from OASIS items not
visibly altered to her conduct other than her own admission that
she substituted pages in some OASIS forms. A defendant’s
own admission is, of course, evidence enough of the matter
admitted. Orillo admitted that the scheme involved not only
OASIS forms that contained visible alterations but also
included forms on which the changes would not be visible
because the entire form was fabricated. That provided an
adequate basis to link the overpayments to her conduct even
where those overpayments related to OASIS forms on which
no alterations were visible.
10 No. 12-3128
Orillo attempts to escape that consequence, however, by
arguing that for some forms, overpayments were attributable
to both altered parts of the OASIS forms, and to other items on
those OASIS forms that were not visibly altered. She asserts
that documents containing both altered and unaltered entries
inconsistent with the underlying records should not be
considered. The existence of both types of unsupported entries
on one document is not, however, inconsistent with the scheme
alleged. The claim was that Orillo altered OASIS entries to
obtain a desired payment from Medicare. Therefore, even if
substituting pages, Orillo would have had a reason to further
make alterations if the amounts resulting from those initial
entry changes were not sufficient to achieve the desired
overpayment.
Orillo relies on United States v. Schroeder, 536 F.3d 746 (7th
Cir. 2008), to argue that the unaltered entries cannot be
considered because the district court is required to establish
that an erroneous payment is attributable to the defendant’s
fraud and not to mistake or fraud by others. In Schroeder, the
defendant pled guilty to tax preparer fraud, and the district
court in calculating the loss attributable to the defendant
included all tax returns by Schroeder’s clients in which the
clients could not justify the deductions on the forms. Id. at 749-
50. Although we remanded the case for reconsideration of the
loss amount, that determination was based upon problems
with the court’s sentencing hearing as a whole and its alloca-
tion of the burden of proof, rather than a rejection of that
method of loss calculation. As we explained in United States v.
Littrice, 666 F.3d 1053, 1062 (7th Cir. 2012), the sentencing in
Schroeder was “flawed from the outset” because the district
No. 12-3128 11
court announced its loss finding at the start of the sentencing
hearing before the defendant had an opportunity to present
evidence and repeatedly confused the government’s burden of
proof with the determination of the evidence’s admissibility.
Schroeder, 536 F.3d at 752. The case was remanded on that basis
rather than on a determination that the approach to determin-
ing the loss amount was fatally defective. In fact, Littrice
upheld a loss determination in a tax preparer fraud case that
similarly relied on the improper deductions in the tax forms
submitted. In Littrice, we noted that under the clearly errone-
ous standard of review, a district court’s calculation must be
upheld unless the defendant shows that it was not only
inaccurate but outside the realm of permissible computations.
666 F.3d at 1060. The government in Littrice demonstrated a
pattern of submitting tax returns containing false deductions
for business and educational expenses and charitable deduc-
tions. We held that the district court did not err in attributing
the underpayments to the defendant in all cases in which the
taxpayer failed to contest the audit. Id. at 1061. Although
Littrice argued, as had Schroeder, that some of those errors on
the tax forms could have been the result of mistake or fraud by
the taxpayer rather than the defendant, that did not prevent the
district court from including those amounts in the loss calcula-
tion. We emphasized in Littrice that the defendant had been
provided an opportunity to analyze the government’s evi-
dence, and that Littrice failed to meet his burden to draw the
facts of the PSR sufficiently into question, presenting only
“unlikely” and “implausible” justifications to the district court
to explain the large quantity of materially false returns. Id. at
1062-63.
12 No. 12-3128
This case presents a similar scenario. The government has
identified a pattern of a large quantity of improper OASIS
coding to achieve overpayments, and Orillo has acknowledged
that she reviewed all OASIS forms and altered the forms to
obtain overpayments. The district court has based its loss
calculation on those payments to Chalice that were not
supported by the medical records and therefore not reflective
of the care provided. Unlike Littrice and Schroeder in which the
taxpayers had an independent incentive to inflate the numbers,
Orillo cannot even argue that other persons may have been
attempting to defraud the government; she argues only that
the overpayments could have been attributable to mistakes.
She has not singled out any claims or records to illustrate the
possible mistake, instead relying on speculation. As in Littrice,
that is insufficient to call into question the calculations by the
district court. See also United States v. Austin, 54 F.3d 394, 402
(7th Cir. 1995)(rejecting factually unsupported speculation in
a challenge to the loss amount). In fact, the speculation that the
overpayments were the result of human error is belied by the
numbers.
The numbers found by Cody are themselves strong
evidence connecting the overpayments on all forms to Orillo’s
fraudulent conduct, and thus support the district court’s
conclusion that those amounts had been established by a
preponderance of the evidence. Orillo’s sole claim was that the
overpayments not attributed to visible alterations could have
resulted from human error. The absence of any such “human
errors” that resulted in underpayments, however, is a rather
strong indication that the errors were intentional rather than
random and accidental. In the sample of 177 episodes of care,
No. 12-3128 13
Cody found $47,444 in overpayments related to the unsup-
ported entries, and $0 in underpayments. Those errors are
skewed entirely in Chalice’s favor, with no errors at all that
resulted in a loss to Chalice. The skewness of that error rate
would itself be a basis to deduce intentional wrongdoing,
particularly given Orillo’s failure to identify any evidence that
a different distribution of errors is the norm in this situation. In
short, there is no reason at all to expect inadvertent human
error to result in a monetary benefit to Chalice without
exception, and correspondingly, the evidence that the entries
solely benefitted Chalice and never shortchanged it indicates
that the errors were intentional rather than inadvertent.
Orillo’s all-or-nothing argument fails in light of those numbers,
because there is absolutely no reason to believe that errors of
that magnitude are attributable to human error. And of course,
she has admitted that at least some of those errors were part of
her fraudulent scheme, in her admission that she substituted
whole pages on OASIS forms. The conclusion that the overpay-
ments were related to the fraud, not to human error, is ren-
dered even more likely when considering Orillo’s admission
that she caused all OASIS and Recertification forms to be
forwarded to her and that she “personally reviewed” those
forms. That further provides a basis for the court to determine,
by a preponderance of the evidence, that the overpayments
were attributable to Orillo’s conduct and a basis to determine
the loss and restitution amount. Finally, the court limited the
danger of overcounting by using the most conservative
estimate of the loss in making its ruling. Of the figures deter-
mined by Trust Solutions, the district court used the lower
limit on the range of possible loss amounts that generated a
14 No. 12-3128
95% confidence level, which was the most conservative
estimate of loss reached in the Trust Solutions analysis.
In conclusion, Orillo’s sole argument that the loss and
restitution amount should be limited to only those stemming
from visible alterations is without any support, and would
ignore criminal conduct which she admitted in the plea
agreement. As that is the only contention raised by Orillo with
respect to the loss and restitution determination, her argument
is without merit.
The only other argument raised by Orillo is the curious
contention that she did not waive the right to contest the
appropriate sentence for her Count II conviction. Orillo does
not, however, actually raise any challenge to the sentence on
that count before this court on appeal. Nor did she raise any
challenge to that sentence determination in the district court.
In fact, the offense level of Count II first is mentioned in the
district court’s order on Orillo’s motion for release pending
appeal. The government, in arguing that there was no substan-
tial probability that Orillo would obtain a reduction in prison
time as a result of the appeal, argued that even if Orillo
succeeded in her challenge to Count I, Orillo would not
achieve a reduced sentence because of the adjusted offense
level for Count II. The district court noted that Orillo had not
advanced any argument challenging that calculation, and in a
footnote stated that the issue would likely be considered
waived by this court if presented on appeal because Orillo had
specifically identified the issue in the district court and had
chosen not to address it. Orillo has still not raised any chal-
lenge to the calculation of the adjusted offense level for Count
II before this court. There is, in short, no issue raised for which
No. 12-3128 15
we must determine whether waiver applies. Accordingly, there
is nothing more for this court to address.
The decision of the district court is AFFIRMED.