from the Judgment of Sentence September 18, 2015 In the Court
of Common Pleas of Berks County Criminal Division at No(s):
BEFORE: BOWES, OLSON AND STABILE, JJ.
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
adult son, E.B., who is deaf and autistic, qualified for
government assistance through Medicaid. A provision in
the law, referred to at trial as an OBRA 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
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
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.
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.
Companions employed Appellant as E.B.'s
caregiver. 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.
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
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).
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.
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.
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.
jury returned guilty verdicts at all three counts. Appellant
timely appealed and presents the following issues for our
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
IV. Were the verdicts against the weight of the evidence?
Appellant's brief at 4.
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 ...