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United States v. Greber - 760 F.2d 68 (3d Cir. 1985)

Rule:

The term "any remuneration" contained in 42 U.S.C.S. § 1395nn(b)(2) includes not only sums for which no actual service was performed but also those amounts for which some professional time was expended. "Remunerates" is defined as "to pay an equivalent for service." By including such items as kickbacks and bribes, the statute expands "remuneration" to cover situations where no service is performed. That a particular payment was a remuneration, which implies that a service is rendered, rather than a kickback, does not foreclose the possibility that a violation nevertheless could exist.

Facts:

Defendant A. Alvin Greber, an osteopathic physician who is board certified in cardiology, was convicted in federal district court after a jury trial on 20 of 23 counts in an indictment charging violations of mail fraud, Medicare fraud, and false statement statutes. The charges arose from the billing practices of a medical diagnostic services company that he formed, charges paid by Medicare for those services, and payments made by the company to physicians who referred patients to the company. Following his conviction, Gerber's post-trial motions were denied, and he appealed. On appeal, Gerber argued that payments made to a physician for professional services in connection with tests performed by the company could not be the basis of Medicare fraud.

Issue:

Did the fact that payment was given to physician for professional services preclude the possibility that Medicare fraud was committed?

Answer:

No.

Conclusion:

The appellate court affirmed the district court's judgment. The court ruled that the district court correctly instructed the jury as to the payment of fees by the company to a referring physician. Specifically, the court held that if the payments were intended to induce the physician to use the company's services, the statute was violated, even if the payments were also intended to compensate for the physician for professional services. The evidence was sufficient to sustain the jury's verdict.

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