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United States v. Greber

United States Court of Appeals for the Third Circuit

February 25, 1985, Argued ; April 30, 1985, Decided

No. 84-1546


 [*69]  WEIS, Circuit Judge.

In this appeal, defendant argues that payments made to a physician for professional services in connection with tests performed by a laboratory cannot be the basis of medicare fraud. We do not agree and hold that if one purpose of the payment was to induce future referrals, the medicare statute has been violated. We also hold that the materiality of utterances charged to be within the false statement statute is an essential element of the crime to be decided by the trial judge as a matter of law. We find the district court's rulings consistent with our determinations and accordingly will affirm.

After a jury trial, defendant [**2]  was convicted on 20 of 23 counts in an indictment charging violations of the mail fraud, Medicare fraud, and false statement statutes. Post-trial motions were denied, and defendant has appealed.

Defendant is an osteopathic physician who is board certified in cardiology. In  [*70]  addition to hospital staff and teaching positions, he was the president of Cardio-Med, Inc., an organization which he formed. The company provides physicians with diagnostic services, one of which uses a Holter-monitor. This device, worn for approximately 24 hours, records the patient's cardiac activity on a tape. A computer operated by a cardiac technician scans the tape, and the data is later correlated with an activity diary the patient maintains while wearing the monitor.

Cardio-Med billed Medicare for the monitor service and, when payment was received, forwarded a portion to the referring physician. The government charged that the referral fee was 40 percent of the Medicare payment, not to exceed $65 per patient.

Based on Cardio-Med's billing practices, counts 18-23 of the indictment charged defendant with having tendered remuneration or kickbacks to the referring physicians in violation of [**3]  42 U.S.C. § 1395nn(b)(2)(B) (1982).

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760 F.2d 68 *; 1985 U.S. App. LEXIS 30534 **


Prior History:  [**1]   Appeal from the United States District Court for the Eastern District of Pennsylvania, (D.C. Criminal No. 83-00414).


Medicare, kickback, false statement, remuneration, counts, patients, monitor, induce, laboratories, essential element, eight hours, mail

Public Health & Welfare Law, Social Security, Medicare, General Overview, Criminal Law & Procedure, Bribery, Commercial Bribery, Elements, Crimes Against Persons, Coverage, Civil Procedure, Jury Trials, Jury Instructions, Providers, Reimbursement, Types of Providers, Physicians, Fraud Against the Government, False Statements