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«UNITED STATES OF AMERICA CASE NUMBER: v. UNDER SEAL DIANA JOCELYN GUMILA CRIMINAL COMPLAINT I, the complainant in this case, state that the following ...»

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AO 91 (Rev. 11/11) Criminal Complaint AUSA Stephen Chahn Lee (312) 353-4127

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

UNITED STATES OF AMERICA

CASE NUMBER:

v. UNDER SEAL

DIANA JOCELYN GUMILA

CRIMINAL COMPLAINT

I, the complainant in this case, state that the following is true to the best of my knowledge and belief.

Beginning no later than 2011 and continuing until the present, at Schaumburg, in the

Northern District of Illinois, Eastern Division, and elsewhere, the defendant violated:

Code Section Offense Description Title 18, United States knowingly and willfully participating in a scheme to Code, Section 1347 defraud a health care benefit program, namely, Medicare, and to obtain, by means of false and fraudulent representations, money under the control of Medicare in connection with the delivery of or payment for health care services, and, in execution of the scheme, on or about July 24, 2013, did knowingly cause to be submitted a false claim, specifically, a claim that home health services provided to Patient ES qualified for payment because the patient was confined to the home

This criminal complaint is based upon these facts:

X Continued on the attached sheet.

FORREST JOHNSON

Special Agent, Federal Bureau of Investigation (FBI) Sworn to before me and signed in my presence.

Date: July 28, 2014 Judge’s signature City and state: Chicago, Illinois YOUNG B. KIM, U.S. Magistrate Judge Printed name and Title

NITED STATES DISTRICT COURT )

) ss

NORTHERN DISTRICT OF ILLINOIS )

AFFIDAVIT

I, Forrest Johnson, being duly sworn, state as follows:

I. BACKGROUNDOF AFFIANT

1. I am a Special Agent with the Federal Bureau of Investigation. I have been so employed since approximately June 2010.

2. As part of my duties as an FBI Special Agent, I investigate criminal violations relating to white collar crime, including health care fraud. Through my training and experience, I have become familiar with the methods by which individuals and entities conduct health care fraud and the tools used in the investigation of such violations, including consensual monitoring, surveillance, data analysis, and conducting interviews of witnesses, informants, and others who have knowledge of fraud perpetrated against Medicare. I have participated in the execution of multiple federal search warrants. Along with other federal agents, I am responsible for the investigation of DIANA JOCELYN GUMILA and others associated with Suburban Home Physicians d/b/a Doctor At Home.

II. BASIS AND PURPOSE OF AFFIDAVIT

3. This affidavit is submitted in part for the limited purpose of establishing probable cause to support a criminal complaint charging that beginning no later than 2011 and continuing until the present, DIANA JOCELYN GUMILA did knowingly and willfully participate in a scheme to defraud a health care benefit program, namely, Medicare, and to obtain, by means of false and fraudulent representations, money under the control of Medicare in connection with the

–  –  –

24, 2013, did knowingly cause to be submitted a false claim, specifically, a claim that home health services provided to Patient ES qualified for payment because the patient was confined to the home, in violation of Title 18, United States Code, Section 1347.

4. This affidavit is further submitted in part for the limited purpose of establishing probable cause to support applications for the issuance of warrants to search three locations, specifically, (1) the office of Suburban Home Physicians (doing business as Doctor At Home) located at 830 E. Higgins Road, Suites 112, 113A, and 113B, Schaumburg, Illinois, which I will refer to as the “Subject Company Premises,” (2) the office of Xpress Mobile Imaging located at 890 E. Higgins Road, Suite 148, Schaumburg, Illinois, which I will refer as the “Subject Xpress Premises, and (3) the residence of DIANA JOCELYN GUMILA located at 24 Clover Circle, Streamwood, Illinois, which I will refer to as the “Subject Residence,” each of which is further described in the following paragraphs and in the respective application’s Attachment A and which will collectively be referred to as the Subject Premises. As set forth below, there is probable cause to believe that in the Subject Premises there exists evidence of (1) violations of the federal health care fraud statute (Title 18, United States Code, Section 1347) in connection with a scheme to defraud a federal health care benefit program through the submission of false claims, including those for medically unnecessary services and (2) violations of federal statutes prohibiting false statements relating to health care matters (Title 18, United States Code, Section

1035) in connection with false statements relating to patients’ qualifications for medical services.





5. This affidavit is further submitted in part for the limited purpose of establishing probable cause to support an application for a warrant to seize certain funds which constitute or are derived from proceeds traceable to the receipt of violations of Title 18, United States Code, 2 Section 1347 and which are maintained in the financial accounts identified in an account at American Chartered Bank in the name of Suburban Home Physicians and ending with the digits 8410 (the “Subject Account”), which is described more fully in the respective application.

6. The statements in this affidavit are based on my personal knowledge, and on information I have received from other law enforcement personnel and from persons with knowledge regarding relevant facts. Because this affidavit is being submitted for the limited purposes set forth above, I have not included each and every fact known to me concerning this investigation.

III. SUMMARY OF INVESTIGATION

7. Law enforcement officials have interviewed seven former employees of Suburban Home Physicians (doing business as Doctor At Home), as well as a current employee who called

law enforcement in January 2014. These employees include the following:

–  –  –

8. Law enforcement officials have also reviewed emails that were provided by Physician D and also by Individual G. Physician D also provided additional materials to law enforcement.

9. Law enforcement officials have also reviewed an audio recording provided by Physician D of an October 2013 meeting in which GUMILA discussed the company’s practices with Physician D. As described below, in the meeting, Physician D said that several patients did not qualify for certain services, and GUMILA responded by telling Physician D that she was an “artist” who should “paint the picture” in a way that Medicare would accept.

10. Law enforcement officials have also reviewed and analyzed claims data that was downloaded from the Services Tracking, Analysis, and Reporting System database, which is maintained by the Centers for Medicare and Medicaid Services.

11. Law enforcement officials have also reviewed patient files that were provided to the government pursuant to subpoena as well as patient charts that were provided to the government by Physician D.

12. Agents also have interviewed several patients and physicians that patients identified as their primary-care physicians.

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13. Based on checks of criminal-history databases, none of the individuals who have been interviewed and whose statements are described below have any felony convictions or any convictions involving false statements or dishonesty. Several former employees, including Individual F, Individual G, and Individual H may have a financial interest in the government’s investigation. No promises have been made to any witnesses about criminal exposure.

IV. MEDICARE BACKGROUND INFORMATION

14. Medicare is a health care benefit program within the meaning of 18 U.S.C.

' 24(b). Medicare provides free or below-cost healthcare benefits to certain eligible beneficiaries, primarily persons sixty-five years of age or older. Individuals who receive Medicare benefits are often referred to as Medicare beneficiaries.

15. Medicare consists of four distinct parts, two of which are relevant here. Part A provides for home health care, and Part B provides supplementary medical insurance for physician services, outpatient services, and certain home health and preventive services.

16. Centers for Medicare and Medicaid Services, a federal agency within the United States Department of Health and Human Services, administers the Medicare program. CMS contracts with public and private organizations, usually health insurance carriers, to process Medicare claims and perform administrative functions. CMS currently contracts with National Government Services, Inc. to administer and pay Part B claims from the Medicare Trust Fund.

The Medicare Trust Fund is a reserve of monies provided by the federal government. NGS processes Medicare Part B claims submitted for physicians’ services for beneficiaries in multiple states including Illinois.

5

17. Enrolled providers of medical services to Medicare recipients are eligible for reimbursement for covered medical services. By becoming a participating provider in Medicare, enrolled providers agree to abide by the rules, regulations, policies, and procedures governing reimbursement, and to keep and allow access to records and information as required by Medicare.

18. Providers of health care services to Medicare beneficiaries seeking reimbursement under the program must submit a claim form, which is a CMS 1500, with certain information regarding the Medicare beneficiary, including the beneficiary’s name, health insurance claim number, date the service was rendered, location where the service was rendered, type of services provided, number of services rendered, the procedure code (described further below), a diagnosis code, charges for each service provided, and a certification that such services were personally rendered by that provider.

19. The American Medical Association has established certain codes to identify medical services and procedures performed by physicians, which are collectively known as the Current Procedural Terminology system. The CPT system provides a national correct coding practice for reporting services performed by physicians and for payment of Medicare claims.

CPT codes are widely used and accepted by health care providers and insurers, including Medicare and other health care benefit programs.

20. Medicare pays for home health services only if a Medicare patient qualifies for coverage of home health services and if the services are “reasonable and necessary,” according to the Medicare Benefit Policy Manual (Chapter 7, Section 20).

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21. Home health services are billed to Medicare in 60-day increments known as “episodes.” Each episode requires its own certification by the physician who has ordered nursing services. To certify a patient, a physician must sign a form entitled, “Home Health Certification and Plan of Care,” which is sometimes referred to as a “Form 485.” In signing a Form 485, a physician certifies or recertifies the following

–  –  –

22. To qualify for Medicare coverage of home health services, a patient must be, among other things, “confined to the home.” That term is defined in the Medicare Benefit Policy Manual (Chapter 7, Section 30).1

23. Prior to November 19, 2013, the Medicare Benefit Policy Manual defined a patient as being “confined to the home” if the patient had a “normal inability to leave home and, consequently, leaving home would require a considerable and taxing effort.”

24. As of November 19, 2013, the Medicare Benefit Policy Manual was revised so that a person is not to be considered confined to the home unless both of the following two

criteria are met:

–  –  –

25. To “illustrate the factors used to determine whether a homebound condition exists,” the Medicare Benefit Policy Manual both before and after November 19, 2013 gave the

following examples of patients who would be considered confined to the home:

–  –  –

26. According to the Medicare Benefit Policy Manual, “[t]he aged person who does not often travel from home because of feebleness and insecurity brought on by advanced age would not be considered confined to the home for purposes of receiving home health services” unless that person had a condition like one of those quoted in the paragraph above.

27. The Medicare Benefit Policy Manual recognizes that patients can leave their home and still be considered confined to the home, but only if the absences are “infrequent or for periods of relatively short duration,” or are “attributable to the need to receive health care treatment.” According to the Medicare Benefit Policy Manual, “[i]t is expected that in most instances, absences from the home that occur will be for the purpose of receiving health care 8 treatment,” though “occasional absences from the home for nonmedical purposes … would not necessitate a finding that the patient is not homebound if the absences are undertaken on an infrequent basis or are of relatively short duration and do not indicate that the patient has the capacity to obtain the health care provided outside rather than in the home.” B. Skilled Nursing Services That Are Reasonable and Necessary



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