Articles Posted in US Court of Appeals for the Seventh Circuit

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Brown, the manager of a company that provided home physician visits, and Talaga, who handled the company’s billing, were convicted of conspiracy to commit health-care fraud, 18 U.S.C. 1349; six counts of health-care fraud, 18 U.S.C. 1347; and three counts of falsifying a matter or providing false statements, 18 U.S.C. 1035(a). The district court sentenced Mr. Brown to 87 months’ imprisonment, 34 months below the Guidelines’ range, stating that a significant sentence was warranted because of the duration of the scheme, the amount of the fraud, the need for general deterrence, and Brown’s failure to accept responsibility. Ms. Talaga was sentenced to 45 months. The Seventh Circuit affirmed, rejecting Brown’s argument that the court’s assumptions about the need for general deterrence were unfounded and constituted procedural error and Talaga’s arguments that the court calculated the amount of loss for which she was responsible by impermissibly including losses that occurred before she joined the conspiracy. The district court was under no obligation to accept or to comment further on Brown’s deterrence argument. Talaga, as a trained Medicare biller, knew that that the high-volume billings were fraudulent. View "United States v. Talaga" on Justia Law

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Gumila, the head of clinical operations for a company that provided home medical care to the elderly, was convicted of 21 counts of health-care fraud, 18 U.S.C. 1347 and three counts of making a false statement in a health-care matter, 18 U.S.C. 1035. There was testimony from more than 20 witnesses and documentary evidence establishing that Gumila regularly overruled physicians who wanted to discharge patients and instructed employees to bill services at unjustifiably high rates, to claim that patients were homebound even when they weren’t, and to order skilled-nursing services even if no doctor had ever examined the patient. The government estimated Medicare’s financial loss: approximately $2.375 million for unnecessary and upcoded home visits; $9.45 million for unnecessary skilled-nursing services that did not meet Medicare’s requirements; and $3.779 million for oversight services that did not qualify for payment or were never performed. The guidelines range was 151-188 months in prison. Gumila argued that the loss should be limited to payments for the eight patients specifically mentioned in the indictment ($14,449). The judge concluded that the government was not required to present specific evidence to prove the fraudulent nature of each individual transaction contributing to the total loss, determined that the loss estimate was reasonable, imposed a sentence of 72 months, and ordered Gumila to pay $15.6 million in restitution. The Seventh Circuit affirmed, upholding the loss calculation and the prison term as substantively unreasonable. View "United States v. Gumila" on Justia Law

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Gerstner, age 27, applied for disability insurance benefits and supplemental security income was denied. An administrative law judge found that she was severely impaired by anxiety, bipolar disorder, panic disorder, depression, and fibromyalgia but that these impairments were not disabling, and denied benefits. The Seventh Circuit vacated the denial as not supported by substantial evidence. The ALJ fixated on select portions of the treating psychiatrist’s treatment notes, inadequately analyzed his opinions, and overlooked the extent to which those opinions were consistent with the diagnoses and opinions of other medical sources who treated Gerstner. ALJs must consider psychologists’ and nurse practitioners’ opinions on the severity of a patient’s impairments. In discrediting Gerstner’s testimony, the ALJ overstated findings from three diagnostic tests and misunderstood the nature of her fibromyalgia pain. Fibromyalgia pain cannot be measured with objective tests aside from a trigger-point assessment. View "Gerstner v. Berryhill" on Justia Law

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Cullinan unsuccessfully sought Disability Insurance Benefits and Supplemental Security Income based on several impairments, most of which arose after she suffered a stroke: anxiety, depression, peripheral blindness in one eye, diabetes, obesity, and sleep apnea. An administrative law judge determined that although Cullinan has several impairments, she is not disabled. The Seventh Circuit vacated. The ALJ’s decision to discredit Cullinan’s testimony and that of her treating psychologist was unsupported by the record because the ALJ’s examples of Cullinan’s daily activities and social interactions did “not remotely describe a ‘very active’ lifestyle.” The ALJ did not adequately explain the conclusion that the doctor’s notes were inconsistent with his opinion and did not consider Cullinan’s daily extended naps and frequent debilitating headaches in determining her residual functional capacity. No evidence contradicted Cullinan’s testimony about those limitations. The vocational expert said that needing to take a two-hour nap every day would rule out all work. The ALJ has the burden to develop the record and assess whether symptoms are disabling. View "Cullinan v. Berryhill" on Justia Law

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In 2011, Cosenza sought disability benefits on behalf of her minor son. An ALJ determined that J.M.F. was not disabled. The Appeals Council denied her request for review. Cosenza argued that the ALJ improperly found that her son’s autism and Asperger’s syndrome were not “medically determinable” impairments. The district judge granted Cosenza summary judgment and remanded under 42 U.S.C. 405(g); 5), terminating the case in the district court. On remand, another ALJ conducted a hearing in March 2016. In June Cosenza filed a motion in the closed federal case to hold the Commissioner in contempt “for not following court-ordered remand.” In July the ALJ ruled against Cosenza. Cosenza did not wait for the decision to become final but moved for summary judgment in the closed federal case and filed a letter with the Appeals Council requesting review. The district court granted the agency’s motion to strike, reasoning that it had relinquished jurisdiction over Cosenza’s first case; as to most recent decision, the administrative appeals process had not finished so no final decision existed for judicial review. Cosenza had not shown that the Commissioner violated the court’s remand order. The Seventh Circuit affirmed. A district court lacks jurisdiction under the Social Security Act to review an ALJ’s unfavorable decision until the agency’s decision is final; the Appeals Council has not yet decided whether to review the ALJ’s decision. View "Cosenza v. Berryhill" on Justia Law

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Schloesser worked for 23 years as a dry curer in a meat‐processing factory, regularly lifting more than 70 pounds. After undergoing rotator cuff surgery on his left shoulder in 2001 and then a lactimectomy (disc removal in his lower back) in 2002, Schloesser left the factory in 2003. Until 2009, he was self‐employed in construction, until his persistent shoulder and lower back problems prevented him from being able to regularly lift more than 50 pounds as required by his work. In 2012, Schloesser applied for disability insurance benefits under 42 U.S.C. 416(i). The Social Security Administration initially denied his application but an Administrative Law Judge found him disabled and granted benefits in 2014. One month later, sua sponte, the SSA Appeals Council commenced review and reversed the ALJ’s favorable decision. The district court affirmed the Appeals Council’s decision as supported by substantial evidence. The Seventh Circuit affirmed, upholding findings that Schloesser did not suffer from severe impairments of cervical radiculopathy, major joint dysfunction, and history of left shoulder surgery and that his residual functional capacity did not include being off‐task up to 10% of the workday or needing unscheduled breaks. View "Schloesser v. Berryhill" on Justia Law

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Rosewood is a skilled nursing facility, 42 U.S.C. 1395i-3(a), participating in Medicare and Medicaid as a provider. The Secretary of Health and Human Services, which enforces the statutory and regulatory provisions governing nursing homes operating in the Medicare/Medicaid network, assessed a civil monetary penalty against Rosewood on the grounds that it had failed to protect a resident from abuse, failed to timely report or to investigate thoroughly allegations of abuse, and failed to implement its internal policies on abuse, neglect, and misappropriation of property. The Centers for Medicare and Medicaid Services (CMS) determined that these deficiencies placed residents in “immediate jeopardy.” An Administrative Law Judge and the Department Appeals Board affirmed the $6,050 per day penalty imposed by CMS. The Seventh Circuit affirmed. Substantial evidence supports the Agency’s findings. The court noted three specific examples of noncompliance and concluded that there was a systemic failure to implement Rosewood’s policies aimed at conforming to federal regulations View "Rosewood Care Center of Swansea v. Price" on Justia Law

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Hartgrove, a psychiatric hospital, is enrolled with the Illinois Department of Healthcare and Family Services to receive Medicaid reimbursement. Hartgrove agreed to comply with all federal and state laws and “to be fully liable for the truth, accuracy and completeness of all claims submitted.” Upon receipt of Medicaid reimbursements, Hartgrove is required to certify that the services identified in the billing information were actually provided. On 13 occasions in 2011, adolescent patients suffering from acute mental illness were placed in a group therapy room, rather than patient rooms, sleeping on roll-out beds until patient rooms were available. Hartgrove submitted Medicaid claims for inpatient care for those patients. Bellevue, a Hartgrove nursing counselor until 2014, voluntarily provided the information on which his allegations are based to federal and state authorities, then filed a qui tam action under the False Claims Act (FCA), 31 U.S.C. 3729, and the Illinois False Claims Act. Both declined to intervene. The district court dismissed and denied Bellevue’s motion to reconsider in light of the Supreme Court’s 2016 “Universal Health” holding that an implied false certification theory is a viable basis for FCA liability. The Seventh Circuit affirmed. Bellevue’s allegations fall within the FCA's public‐disclosure bar; the information was available in audit reports and letters. View "Bellevue v. Universal Health Services of Hartgrove, Inc." on Justia Law

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Plaintiffs purchased Illinois nursing homes and obtained new state licenses and federal Medicare provider numbers. Most of the residents in the 10 homes qualify for Medicaid assistance. The Illinois Department of Healthcare and Family Services (IDHFS) administers Medicaid funds under 42 U.S.C. 1396-1396w-5, reimbursing nursing homes for Medicaid-eligible expenses on a per diem basis. The rate must be calculated annually based on the facility's costs. When ownership of a home changes, state law requires IDHFS to calculate a new rate based on the new owner’s report of costs during at least the first six months of operation. The Medicaid Act requires states to use a public process, with notice and an opportunity to comment, in determining payment rates. The owners allege that IDHFS failed to: recalculate their reimbursement rates; provide an adequate notice-and-comment process; and comply with the state plan, costing them $12 million in unreimbursed costs. The Seventh Circuit affirmed denial of a motion to dismiss. Section 1396a(a)(13)(A) confers a right that is presumably enforceable under 42 U.S.C. 1983; it benefits the owners and is not so amorphous that its enforcement would strain judicial competence. While the Eleventh Amendment may bar some of the requested relief, if it appears that owners have been underpaid, that does not deprive the court of jurisdiction over the case as a whole. View "BT Bourbonnais Care, LLC v. Norwood" on Justia Law

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In 2009, Lanigan injured his back at his job and hurt his neck in a car accident; in 2011 he was diagnosed with diabetes. Since then his medical impairments have been complicated by mental illness. Lanigan applied for Supplemental Security Income and Disability Insurance Benefits in 2012 when he was 38 years old. At a hearing, the ALJ asked a vocational expert to assess whether competitive employment would be available to a person: capable of performing low-stress jobs constituting light work if those jobs involve only routine tasks; do not require more than occasional interaction with coworkers or the public; do not involve piece work or a rapid assembly line; is limited to occasional stooping, crouching, kneeling, or crawling; and can be off task up to 10% of the workday in addition to regularly scheduled breaks. The ALJ did not explain the source of the 10% figure. The ALJ found his impairments to be severe but not disabling and denied benefits. The Appeals Council denied review. The district court upheld the ALJ’s decision. The Seventh Circuit remanded for further proceedings because the ALJ misinformed a vocational expert about Lanigan’s residual functional capacity, thus undermining the expert’s testimony that Lanigan could engage in competitive employment. View "Lanigan v. Berryhill" on Justia Law