United States v. Popov

In health care fraud cases, the amount billed to an insurer shall constitute prima facie evidence of intended loss for sentencing purposes.

Defendants, Popov and Prakash owned an operated three medical clinics in Northern California. They were charged with and convicted of conspiracy to commit healthcare fraud and other counts of health care fraud for submitting fraudulent bills to Medicare for more than $5 million. Athough defendants never examined or met a patient, they visited the Los Angeles office on a weekly basis to sign patient charts, Medicare claim forms and blank Redetermination Request forms for Medicare. They argued that the district court should have calculated the intended loss based on the amounts actually paid by Medicare rather than relying on the amount billed; noting that the amount billed is not conclusive evidence of intended loss. The Ninth Circuit found that a burden-shifting framework is the best evaluation to use in calculating the intended loss and thus held that in health care fraud cases, the amount billed to an insurer shall constitute prima facie evidence of intended loss for sentencing purposes. Then, using the burden-shifting framework, if the evidence is not rebutted it shall constitute sufficient evidence to establish the intended loss by a preponderance of the evidence. Parties may also introduce additional evidence to support arguments that the amount billed overestimates or understates the defendant’s intent. Because there was evidence presented at trial that indicated that the defendants may have known that Medicare only pays a fixed amount their sentences were vacated and remanded for resentencing. VACATED AND REMANDED.