                         This opinion will be unpublished and
                         may not be cited except as provided by
                         Minn. Stat. § 480A.08, subd. 3 (2016).

                              STATE OF MINNESOTA
                              IN COURT OF APPEALS
                                    A16-0264

                                  State of Minnesota,
                                     Respondent,

                                          vs.

                       Tetee Saryee d/b/a Zion Home Care, Inc.,
                                      Appellant.

                                Filed January 3, 2017
                                      Affirmed
                                 Rodenberg, Judge

                            Hennepin County District Court
                              File No. 27-CR-15-10750

Lori Swanson, Attorney General, Nicholas B. Wanka, Assistant Attorney General, St. Paul,
Minnesota; and

Michael O. Freeman, Hennepin County Attorney, Minneapolis, Minnesota (for
respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Richard Schmitz, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

      Considered and decided by Halbrooks, Presiding Judge; Rodenberg, Judge; and

Kirk, Judge.
                           UNPUBLISHED OPINION

RODENBERG, Judge

         Appellant Tetee Saryee, d/b/a Zion Home Care, Inc.,1 appeals from her conviction

of four counts of aiding and abetting theft by false representation. On appeal, she argues

that she made no false representation and that the district court abused its discretion in

determining the amount of restitution ordered. We affirm.

                                            FACTS

         Tetee Saryee formed Zion Health Care, Inc. (Zion) in 2008 to provide personal-

care-assistant (PCA) services to patients. Zion served some Medicaid-eligible clients, and

billed the Minnesota Department of Human Services (DHS) for reimbursement.

         To become eligible to receive reimbursement from DHS, appellant was required to

attend a three-day training, where she learned about reporting and service requirements.

During that training, appellant was informed that DHS requires all PCAs to be supervised

by a qualified professional (QP).2 Zion enrolled with DHS as a PCA Choice Provider and

became eligible to receive reimbursements from DHS for providing PCA services.

         As part of its enrollment application to DHS, Zion reported the name of the QP it

had on staff. In 2009, Zion’s original QP left, and it hired a new QP. Zion notified DHS




1
  Saryee was charged because she was Zion’s sole shareholder and was the sole person on
the corporate bank account. The charging documents state her affiliation with Zion, but
she was charged and convicted as an individual.
2
    A QP is typically a registered nurse, while PCAs require less training.

                                               2
about the staffing change, as required. However, when the second QP left Zion sometime

in early 2010, Zion did not hire a new QP and did not notify DHS of this change.

       Zion began serving clients in early 2011, approximately one year after its second

QP left its employ.3 From February 2011 through November 2012, Zion billed DHS

$240,904.124 for PCA services. By statute, and in order to be reimbursable, PCA services

are required to be supervised by a QP. Minn. Stat. § 256B.0625, subd. 19c (2010). Zion

did not have a QP on staff during that time. At trial to a jury before the district court,

appellant claimed that Zion borrowed QPs from other PCA companies during the relevant

time period and that services for which it billed DHS were supervised, as required by law.

The jury rejected that claim and found appellant guilty of aiding and abetting theft by false

representation.

       The state requested that appellant’s sentence include restitution. At sentencing, the

district court ordered that appellant repay all of the money Zion received from DHS, minus

amounts paid by Zion to its employees. The court calculated this amount to be $119,617

and ordered as a part of appellant’s sentence that she make restitution in that amount to

DHS over a ten-year period.




3
  It appears from the record that Zion had no clients for the first several years of its
corporate existence.
4
 The record is inconsistent about how much Zion charged DHS. Appellant claims the
amount billed to have been $263,431.87, a witness for the state testified that it was “around
$260,000,” and exhibits introduced by the state at trial show the amount was $240,904.12.
The exact amount appellant charged to DHS does not affect the outcome of this appeal,
and we therefore do not resolve the question of the precise amount billed.

                                             3
       On appeal, and for the first time, appellant argues that she did not commit aiding

and abetting theft by false representation because she only requested reimbursement for

hours that Zion’s PCAs worked and never requested reimbursement for QP supervision.

Appellant also argues that the district court abused its discretion in calculating the amount

of restitution ordered.

                                     DECISION

I.     Statutory definition of “false representation”

       Appellant argues she did not commit theft by false representation when she

submitted a claim for PCA services that were provided without QP supervision because

she did not falsely describe the services she provided. See Minn. Stat. § 609.52, subd.

2(a)(3)(iii) (2010)5 (defining theft by false representation). Specifically, appellant argues

that, when she submitted reimbursement for “PCA services,” she did not state or imply that

the services were supervised by a QP. The state argues that appellant’s use of that term

did imply that the services were supervised by a QP.

       Appellant frames her argument as a sufficiency-of-the-evidence challenge. Where,

as here, a sufficiency-of-the-evidence claim involves a question of whether the defendant’s

conduct meets the statutory definition of an offense, we are presented with a question of




5
  The four convictions stemmed from payments made by DHS to Zion from March 2011
until November 2012. The final conviction stemmed from payments made from May 2012
until November 2012. Because the period of behavior began under the 2010 versions of
Minn. Stat. § 609.52, subd. 2(a)(3)(iii) and Minn. Stat. § 256B.0625, subd. 19c, and
because the relevant portions were unaltered in the 2012 versions of the statutes, we cite to
the 2010 versions.

                                             4
statutory interpretation that we review de novo. State v. Hayes, 826 N.W.2d 799, 803

(Minn. 2013).

      A person commits theft by false representation when that person:

             (3) obtains for the actor or another the possession . . . [of]
             property . . . by intentionally deceiving the third person with a
             false representation which is known to be false, made with
             intent to defraud, and which does defraud the person to whom
             it is made. “False representation” includes without limitation:
             ...

             (iii) the preparation or filing of a claim for reimbursement . . .
             for medical care provided to a recipient of medical assistance
             under chapter 256B, which intentionally and falsely states the
             costs of or actual services provided by a vendor of medical
             care.

Minn. Stat. § 609.52, subd. 2(a)(3)(iii) (emphasis added).        Chapter 256B relates to

“Medical Assistance for Needy Persons,” and includes sections regulating PCAs. Minn.

Stat. §§ 256B.01-.84 (2010). Chapter 256B describes reimbursable PCA services as

services “provided in accordance with a plan, and supervised by a qualified professional.”

Minn. Stat. § 256B.0625, subd. 19c.

      Appellant requested reimbursement from DHS for PCA services. PCA services are

regulated in part by Chapter 256B, which describes reimbursable PCA services as certain

services supervised by a QP. Id. The state introduced evidence at trial that DHS trainings

for PCA providers clearly inform attendees that PCAs must be supervised by QPs. In this

context, it is clear from the record that both DHS and appellant knew that PCA services

was a term used to describe certain services supervised by QPs. Appellant points to nothing

in the record on appeal suggesting otherwise. By statute, PCA services must be supervised



                                             5
by a QP in order to be reimbursable by DHS. Id. In claiming reimbursement for PCA

services, Zion represented that the services were QP supervised. The jury found, and the

record supports, an intentional misrepresentation which resulted in DHS paying

reimbursement amounts not properly due.

       Appellant attempts on appeal to minimize the importance of QP supervision of

PCAs, claiming that it is but one of the myriad regulations that PCA providers must follow.

However, the fact that QP supervision is required by the statute regulating PCAs, a

requirement that is reemphasized in trainings, shows that QP supervision is a central

component of properly reimbursable PCA services. Moreover, appellant’s position at trial

was that Zion had borrowed QP supervision from other companies, not that QP supervision

was not a necessary component of every PCA-reimbursement claim. The evidence of

record is sufficient to support appellant’s conviction of aiding and abetting theft by false

representation.

II.    Calculation of restitution

       Appellant identifies three claimed errors by the district court in calculating the

amount of restitution. First, appellant argues that she should only be required to pay

restitution on Zion’s profits, and that the district court erred by not subtracting Zion’s

overhead (taxes, rent, etc.) in computing restitution. Second, appellant argues that DHS

did not suffer any losses because Zion only billed DHS for the hours PCAs worked, and

not for any hours worked by QPs, and DHS therefore reimbursed Zion only for services

actually rendered. Finally, appellant argues that the district court should have made

findings of fact to establish DHS’s economic losses.


                                             6
       The state replies with two arguments. First, it argues that appellant forfeited her

right to challenge the restitution order by not bringing a claim within 30 days, as required

by statute. Second, it argues that the district court’s restitution order was supported by

evidence presented at trial.

       We review a district court’s award of restitution for abuse of discretion. State v.

Andersen, 871 N.W.2d 910, 913 (Minn. 2015).

       A.     30-day time limit for challenging restitution

       Minn. Stat. § 611A.045 states:

              An offender may challenge restitution, but must do so by
              requesting a hearing within 30 days of receiving written
              notification of the amount of restitution requested, or within 30
              days of sentencing, whichever is later. The hearing request
              must be made in writing and filed with the court administrator.
              A defendant may not challenge restitution after the 30-day time
              period has passed.

Minn. Stat. § 611A.045, subd. 3(b) (2014).

       In the past, we have declined “to create an exception that would permit an offender

to circumvent his own failure to comply with mandatory procedural requirements” under

Minn. Stat. § 611A.045. State v. Thole, 614 N.W.2d 231, 236 (Minn. App. 2000).

       Here, the state requested restitution on November 10, 2015 and served appellant’s

attorney with the request on November 16. The district court ordered restitution on

November 19, 2015. Appellant did not request a hearing and, even now, has not requested

a hearing. She does not claim that the district court lacked the legal authority to make a

restitution award. State v. Gaiovnik, 794 N.W.2d 643, 647 (Minn. 2011) (holding that

noncompliance with section 611A.045 at the district court does not preclude appellate


                                             7
challenges to the district court’s authority to award restitution). Appellant has not properly

challenged restitution.

       B.      Calculating amount of restitution

       Even if we were to address appellant’s challenges to restitution on their merits, her

arguments would fail. “The primary purpose of restitution is to restore crime victims to

the same financial position they were in before the crime.” State v. Johnson, 851 N.W.2d

60, 65 (Minn. 2014) (quotation omitted). Minnesota law requires that the district court

“grant or deny restitution or partial restitution and . . . state on the record its reasons for its

decision on restitution if information relating to restitution has been presented.” Minn.

Stat. § 611A.04, subd. 1(c) (2014). “The district court has broad discretion concerning

matters of restitution as long as a sufficient factual basis underlies its decision regarding

the ordered restitution.” Anderson v. State, 794 N.W.2d 137, 139 (Minn. App. 2011),

review denied (Minn. Apr. 27, 2011).

       Appellant’s first argument that the court should have calculated restitution based on

Zion’s net profits finds no support in law. Restitution is intended to restore crime victims.

Johnson, 851 N.W.2d at 65. That a criminal enterprise was expensive to run says nothing

about restitution properly owed to a victim of the enterprise.

       Second, appellant argues that DHS did not suffer any loss because Zion did not bill

DHS for anything it did not do. As discussed above, Zion did not provide PCA services as

those services are defined and understood, and appellant aided and abetted Zion’s receipt

of money DHS should not have paid. Aided by appellant, Zion did not provide any

reimbursable services to DHS. All money paid to Zion was therefore part of the theft by


                                                8
false representation. The district court did reduce appellant’s restitution obligation by

amounts paid out-of-pocket by Zion to the individual PCAs. It was not required to reduce

that obligation any further.

       Finally, appellant argues that the district court did not state the reasons for its

decision on the record. But the basis for the district court’s restitution order is clear. At

trial, the state introduced evidence of the overpayments, and included that same evidence

in its request for restitution. That evidence shows that the state overpaid appellant by at

least $119,617.18. We see no abuse of the district court’s discretion in the restitution

component of appellant’s sentence.

       Affirmed.




                                             9
