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Commonwealth v. Biesecker

Superior Court of Pennsylvania

April 26, 2017


          Appeal from the Judgment of Sentence September 18, 2015 In the Court of Common Pleas of Berks County Criminal Division at No(s): CP-06-CR-0003502-2013



          BOWES, J.

         Angela Biesecker appeals from the judgment of sentence of five years probation imposed following her convictions for Medicaid fraud, theft by deception, and receipt of stolen property. We affirm.

         Appellant's adult son, E.B., who is deaf and autistic, qualified for government assistance through Medicaid.[1] A provision in the law, referred to at trial as an OBRA[2] waiver, permits funds that would otherwise go towards care at an institutional facility to be paid to caregivers who provide services at the client's residence or out in the community. The Commonwealth prosecuted Appellant for receiving funds that she was not entitled to under these programs.

         The record indicates that E.B. first applied for an OBRA waiver in June of 2007 from the Cerebral Palsy Association of Chester County (hereinafter "CPA"), a Medicaid support agency. Kimberly Sharpe, the supervisor of adult and community services at the CPA, testified that the chosen support agency coordinated caregiving services. Appellant, E.B., and Ms. Sharpe jointly prepared an individual service plan ("ISP"), which set forth specific goals tailored to E.B.'s needs. The major goal was community integration, which is designed to develop the client's skills "in order to live more independently in the community." N.T., 7/7-10/15, at 311. "[W]hat you're trying to do is improve quality of life, enable [participants] to go back out into the community and be able to adequately communicate and assimilate without being trapped [in a facility]." Id. at 464. Activities that qualified as community integration are correspondingly quite broad. Examples mentioned at trial included learning how to purchase ingredients and prepare a meal, balancing a checkbook, learning hygiene, using public transportation, ordering food, and enjoying recreational and leisure activities. Integration remained the primary goal for subsequent ISPs prepared for June 1, 2008 through June 30, 2009, and July 1, 2009 to June 30, 2010. Appellant was present for meetings regarding the ISPs. Id. at 318-19.

         ISPs were submitted to the Commonwealth's Department of Public Welfare for funding authorization. Id. at 461-62. Once approved, the support agency was permitted to bill the Commonwealth for the specified amounts each month. Id. at 523. The support agency did not actually provide the caregiving services, however. The participant chose from a list of approved agencies to provide the services listed in the ISP. Id. at 314. E.B.'s ISP specified that he was to receive services from two agencies: Caring Companions and The Arc of Chester County ("the Arc"). These agencies then billed the support agency as authorized by the ISP.

         The dispute in this case focused on the time period spanning July 1, 2009 to June 30, 2010, as the Commonwealth eventually learned that Caring Companions, which employed Appellant, and the Arc, which did not employ Appellant, billed CPA for services performed at the same times.

         Caring Companions employed Appellant as E.B.'s caregiver.[3] Appellant, like all employees who provided caregiving services, received an hourly salary. When hired, employees were instructed to list the start time and end time for the periods services were rendered, as that was the basis for billing. Id. at 114. Marisol Alvarez, the director of operations for Caring Companions, testified that all new employees received training, which included how to fill out timesheets. Id. at 113-14. Another employee, Sheri Willman, testified that employees were instructed to list the actual hours that services were provided. Thus, if a caregiver actually provided services from 9:00 a.m. to 12:00 p.m., the employee was not permitted to list 6:00 p.m. to 9:00 p.m. Id. at 168. Appellant's timesheets generally listed large blocks of time that lacked detail and progress notes. Ms. Alvarez stated that the company relied "on the honor system . . . since [she] was the mother of the client." Id. at 111.

         The Arc also provided services to E.B., commencing on or about July 1, 2009. Employees testified to the services they provided and authenticated timesheets detailing their care and progress notes from July of 2009 through July of 2010. Id. at 193-214; 238-48. These sessions were largely one-on-one and Appellant was not providing services at those times.

         In December of 2009, Ms. Sharpe reviewed timesheets from both agencies and realized that CPA was being double billed. Id. at 330. She sent letters to both agencies requesting confirmation that services were provided. Id. at 331-32. Ms. Sharpe also contacted the Department of Welfare. Id. at 335. In April of 2010, the number of authorized hours was reduced due to the double billing. Id. at 334. The Arc, which was previously authorized to provide services for thirty hours a week, was reduced to fifteen hours. Caring Companions, which was authorized to bill for forty hours a week, was reduced to twenty-five hours. Id. at 334, 1383 (Commonwealth's Exhibit 43).

         Agent Luis Gomez from the Medicaid Fraud Control unit testified at trial and explained that he compared timesheets submitted by Appellant to Caring Companions against timesheets submitted by the Arc for the time period spanning July 1, 2009 to June 30, 2010. Id. at 530. For these dates, Caring Companions billed 1, 843 total hours, 608.25 of which overlapped with hours billed by the Arc. Agent Gomez calculated that the Department of Public Welfare paid out $10, 926.80 for the 608.25 hours of overlap. The charges herein pertained only to the overlapping hours.

         The Commonwealth also introduced evidence regarding developments in E.B.'s care following the period of double billing. Sometime during the summer of 2010, Appellant contacted Cathy Stein, the owner of Provider of Co-Op Services, regarding care for E.B. Id. at 435. Ms. Stein hired Appellant's daughter to provide services to E.B. These services commenced July 1, 2010 and ended in September of 2011. Id. at 429, 454. The daughter submitted timesheets for these time periods claiming that she provided services to E.B. from 12:00 p.m. to 8:00 p.m. Id. However, she was employed as a medical assistant for a doctor's office during this same timeframe, and the manager for that office confirmed that the daughter worked 8:30 a.m. to 5:00 p.m. during the week from September of 2010 to May of 2011. Id. at 422-23. Thus, these services were not provided, at a minimum, during the hours of 12:00 p.m. to 5:00 p.m. The daughter was paid almost $28, 000 for these services, approximately $23, 000 of which was transferred to Appellant's bank account from August 25, 2010, through June 15, 2011. Id. at 526-28.

         Appellant testified in her defense. She stated that CPA refused to pay for communication support for E.B. and referred Appellant to Caring Companions, since that agency would hire family members as caregivers. Id. at 610-11. She stated that, with respect to training, Caring Companions simply told her that she was E.B.'s mother and knew what to do. Id. at 613. She agreed that she submitted timesheets that did not specifically list which community integration tasks she performed with E.B. However, she explained that Caring Companions neither trained nor required her to do so, and said it was not feasible for her to list all the activities in detail due to her dual role of mother and caregiver. She agreed that the Commonwealth was double billed but reiterated that she did not have a specific schedule and said she was instructed to spread the allocated hours over the course of the week. Id. at 654.

         The jury returned guilty verdicts at all three counts. Appellant timely appealed and presents the following issues for our review.

I. Was the evidence insufficient to prove beyond a reasonable doubt that the Defendant committed Medical Assistance Fraud, Theft By Deception and Receiving Stolen Property?
II. Did the Trial Court abuse its discretion in denying the Defense's Motion in Limine to exclude evidence of alleged medical assistance fraud purported by the Defendant's daughter subsequent to Defendant's alleged fraudulent activity?
III. Did the Court abuse its discretion in denying the Defendant's motion for a mistrial after the Attorney General questioned the Defendant regarding increased security required at a government office due to the Defendant's alleged behavior?
IV. Were the verdicts against the weight of the evidence?

Appellant's brief at 4.

         Appellant's first issue challenges the sufficiency of the evidence for all three convictions. Whether the evidence was sufficient to support the conviction presents a matter of law; our standard of review is de novo and our scope of review is plenary. Commonwealth v. Walls, 144 ...

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