     Case: 09-40749     Document: 00511214066          Page: 1    Date Filed: 08/25/2010




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                  FILED
                                                                           August 25, 2010

                                       No. 09-40749                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff - Appellee
v.

SAM SMITH HILL, III,

                                                   Defendant - Appellant




                    Appeal from the United States District Court
                         for the Southern District of Texas
                                 No. 2:08-CR-172-1


Before KING, HIGGINBOTHAM, and GARZA, Circuit Judges.
PER CURIAM:*
        Following a jury trial, Sam Smith Hill, III (“Dr. Hill”) was convicted of
Medicaid fraud involving the improper billing of his assistants’ work as his own.
Hill challenges the sufficiency of the evidence proving that he improperly billed
Medicaid and that he intended to commit fraud. He also argues that the district
court abused its discretion in denying his petition for a writ of error coram nobis.
For the following reasons, we AFFIRM.



        *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
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                                        I
      Dr. Hill is a psychologist who founded a children’s behavior clinic to
provide mental health services for underprivileged children in the Corpus
Christi area. He enrolled as a provider in the Texas Medicaid program, a federal
health care benefit program, in 1996.
      The Medicaid system works by reimbursing medical providers for
approved services that they provide to Medicaid patients. In order for providers
to receive reimbursement, they submit “superbills” to Medicaid that include
Current Procedural Terminology (“CPT”) codes for the medical services provided.
Prior to 2006, a single CPT code, 96100, existed for all “psychological testing,”
which included “both face-to-face time administering tests to the patient and
time interpreting these test results and preparing the report.” In 2006, CPT
code 96100 was discarded and replaced with code 96101 for psychological testing
performed by psychologists, and 96102 for testing performed by Licensed
Psychological Associates (“LPAs”) and other non-psychologists. During the time
period relevant to Dr. Hill’s indictment, the Texas Medicaid Providers Manual
stated that the work of LPAs could not be reimbursed by Medicaid or billed
under a psychologist’s provider identifier.
      In 2008, Dr. Hill was charged with nineteen counts of health care fraud
spanning from 2001 to 2008. Specifically, the indictment charged Dr. Hill with
submitting fraudulent bills listing CPT codes for psychological testing performed
by a psychologist when the testing had actually been performed by LPAs. A jury
found Dr. Hill guilty on six of those counts, all involving Medicaid bills from
2008, and acquitted on the remaining counts. Dr. Hill was sentenced to five
years’ probation and six months’ house arrest. He was also ordered to pay
Medicaid $48,739.82 in restitution, fined $40,000, and assessed a special penalty
of $600.



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                                        II
      Dr. Hill argues that the Government failed to present sufficient evidence
to prove that he had improperly charged Medicaid for his LPAs’ work as though
it were his own, or that he intentionally defrauded Medicaid. In reviewing the
sufficiency of the evidence to support a conviction, we view the evidence and the
inferences that may be drawn from it in the light most favorable to the verdict
and determine whether a reasonable jury could have found the essential
elements beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319
(1979); United States v. Martinez, 151 F.3d 384, 388 (5th Cir. 1998).
      During the relevant time, Medicaid regulations permitted psychologists
to bill Medicaid only for services they provided. Although psychologists were
entitled to reimbursement for testing they had performed themselves (including
administration, interpretation, and reporting), they could not be reimbursed for
work performed by their technicians.         Dr. Hill     readily admits that his
technicians administered all psychodiagnostic testing on his behalf. Dr. Hill
argues, however, that the hours billed to Medicaid represent time he personally
spent interpreting and reporting on the results of these tests, and not the time
the LPAs spent administering the tests.
      There is sufficient evidence from which the jury could conclude that the
billing included the LPAs’ time. First, the timing of the superbills greatly
undermines Dr. Hill’s theory that he only billed for his time in interpreting the
results before meeting with the patients. That is, the bills were submitted right
after the testing occurred, and several weeks before Dr. Hill reviewed the results
in anticipation of his meeting with the patients to discuss the results. Two of Dr.
Hill’s LPAs testified that after administering tests, they immediately gave
superbills showing which tests had been administered to a clerk at the front
desk prior to any interpretation by or consultation with Dr. Hill. Dr. Hill’s
billing agent testified that she sent the information from these superbills to

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Medicaid, making compensation claims under Dr. Hill’s CPT code on the basis
of the “predetermined” number of hours each test took. It is difficult to
understand how the billing could be predetermined if it were for Dr. Hill’s
interpretation of the results, which could take any number of hours, rather than
the actual testing, which required a set amount of time. Given this evidence, the
jury was not unreasonable in concluding that Dr. Hill billed for the LPAs’ time.
      Dr. Hill also argues that the Government did not present sufficient
evidence to prove that he intentionally defrauded Medicaid. In order to prove
health care fraud under 18 U.S.C. § 1347, the Government must prove that a
defendant “knowingly and wilfully executes, or attempts to execute a scheme or
artifice” to defraud a health care benefit program))that is, the law requires a
finding of specific intent. United States v. Hickman, 331 F.3d 439, 443–45 (5th
Cir. 2003).
      The Government’s primary evidence of specific intent came from the
testimony of Agent Daniel Sanchez, an investigator for the Office of the Attorney
General, Medicaid Fraud Control Unit; and FBI Special Agent Andrew Walton,
both of whom interviewed Dr. Hill. Agent Sanchez testified that Dr. Hill told the
agents that he knew he was violating Medicaid billing rules, but that the rules
were “wrong and immoral.” Agent Sanchez also testified that Dr. Hill stated
that he would continue to violate Medicaid’s billing rules unless prosecuted, at
which point he “would stand by his decision and accept whatever consequence
came his way.” Agent Walton testified that Dr. Hill said that he knew he was
in violation of the rules and knew that his practice of billing for testing services
of his assistants was prohibited by Medicaid rules. According to Agent Walton,
Dr. Hill believed he was not being compensated for his time and that the
Medicaid rules were “immoral.” This testimony was sufficient for a reasonable
jury to conclude that Dr. Hill acted with the requisite specific intent to defraud
Medicaid.

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                                           III
       Dr. Hill argues that the district court abused its discretion in denying his
petition for a writ of error coram nobis. In reviewing a district court’s denial of
a petition for a writ of error coram nobis, “we review factual findings for clear
error, questions of law de novo, and the district court’s ultimate decision to deny
the writ for abuse of discretion.” Santos-Sanchez v. United States, 548 F.3d 327,
330 (5th Cir. 2008).
       A writ of error coram nobis “is an extraordinary remedy available to a
petitioner no longer in custody” used “to correct errors ‘of the most fundamental
nature.’” United States v. Esogbue, 357 F.3d 532, 534–35 (quoting United States
v. Morgan, 346 U.S. 502, 512 (1954)). For an error to be of sufficient magnitude
to justify a writ of error coram nobis, the appellant must prove that the errors
“result[ed] in a complete miscarriage of justice.” Jiminez v. Trominski, 91 F.3d
767, 768 (5th Cir. 1996).
       In 2009, after Dr. Hill’s indictment and conviction, the Texas Medicaid
Providers Manual was changed to allow partial reimbursement for the work of
LPAs under certain circumstances. Dr. Hill argues that changes in the law that
allow psychologists to charge Medicaid for the work of LPAs subsequent to his
conviction undermine the validity of his conviction and justify a writ of error
coram nobis. However, the cases he cites in support of his petition involve laws
that were later declared unconstitutional,1 or a determination that the
defendant’s conduct was not criminal under the statute forming the basis for the
prosecution.2 Here, the changes in Medicaid rules reflect a policy decision by


      1
         See United States v. Travers, 514 F.2d 1171, 1176–77 (2d Cir. 1974) (statute
subsequently declared unconstitutional); United States v. Summa, 362 F. Supp. 1177, 1179–80
(D. Conn. 1972) (same); United States v. Houssein, 326 F. Supp. 1194, 1199 (D. Md. 1971)
(same); Angelini v. United States, 322 F. Supp. 698, 699 (N.D. Ill. 1970) (same).
       2
        See United States v. Marcello, 876 F.2d 1147, 1154 (5th Cir. 1989) (conduct
subsequently held not to be criminal under the statute used to prosecute the defendant);

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Medicaid rather than a judicial finding of unconstitutionality; therefore, those
authorities are inapposite. Moreover, Dr. Hill’s actions would still have been
illegal under Medicaid’s new billing regulations.             The change to the Texas
Medicaid program stated that an LPA’s work, done under the supervision of a
psychologist, can only be billed at 70% of the psychologist’s payment rate, not the
full amount that Dr. Hill was charging for his LPAs’ work. Dr. Hill has failed
to show that his case presents a complete miscarriage of justice sufficient to
meet the high burden required for the issuance of a writ of error coram nobis.
Accordingly, the district court’s denial of Dr. Hill’s petition was not an abuse of
discretion.
                                            IV
       For the foregoing reasons, we AFFIRM.




United States v. Travers, 514 F.2d 1171, 1175 (2d Cir. 1974) (same); United States v. Sawyer,
74 F. Supp. 2d 88, 105–06 (D. Mass. 1999) (same).

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