United States v. Adebimpe, ___ F.3d ___, No. 14-303, 2016 WL 1696866 (9th Cir. Apr. 28, 2016).
Patrick Sogbein and his wife, Adebola Adebimpe, owned separate medical equipment supply companies. Under Medicare, a physician may prescribe a mobility device and send an order to a supply company, which recommends specific equipment after assessing the patient’s home. If the physician agrees with the recommendation, the patient receives the device and the supplier seeks reimbursement from Medicare. Sogbein and Adebimpe paid doctors to prescribe power wheelchairs without anyone assessing patients’ need for them. A jury convicted them of conspiring to commit healthcare fraud and other charges. The district court imposed enhanced sentences under § 3B1.3 of the federal Sentencing Guidelines, which applies to defendants who abuse a position of “public or private trust,” a phrase defined under the Guidelines as “professional or managerial discretion (i.e., substantial discretionary judgment that is ordinarily given considerable deference).” Sogbein and Adebimpe appealed their sentences, arguing that the abuse-of-trust enhancement was inapplicable.
A divided panel of the Ninth Circuit affirmed. The majority held that Sogbein and Adebimpe exercised managerial discretion because equipment suppliers must determine that equipment is medically appropriate for a patient, and that the equipment is compatible with the patient’s home. Although a physician ultimately approves the equipment, the supplier must still justify the medical necessity for the equipment—a professional obligation separate from the physician’s obligation. Defendants’ Medicare submissions included a code certifying they had performed the requisite assessments. Sogbein also exercised discretion by instructing co-conspirators to assist him by prescribing power wheelchairs without regard for medical need. Finally, the majority held that defendants’ submission of reimbursement claims through a third party, Noridian, did not remove the suppliers from a position of trust. The majority cautioned that the sentencing enhancement would not apply to those who merely report to Medicare, like ordinary taxpayers.
Judge Paez dissented, contending that a supplier’s tasks are ministerial, not discretionary, because a doctor must order and ultimately approve a specific device. The dissent argued that a supplier simply verifies decisions made by a doctor, and that the certifying code input by suppliers is mandatory (not discretionary) to receive Medicare reimbursement. The dissent also questioned the majority’s claim that Sogbein exercised discretion by asking physicians to write power wheelchair prescriptions, noting that this conduct should not enhance his sentence because it was simply the fraudulent conduct for which he was convicted.
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