Findlaw: US 3rd Circuit Court of Appeals Affirms Lower Court Ruling That NJ Medical Director and Radiologist Occupied Position of Trust, Which Provides for a Two-level Upward Adjustment in Offense Level We hold that Dr. Babaria occupied a position of trust vis-à-vis Medicare and Medicaid as the medical director and manager of Orange, an authorized provider. On behalf of Orange, he certified compliance with the anti-kickback statute2 , but nevertheless utilized his position as Oranges medical director and manager to supervise and conceal the payment of kickbacks, a difficult-to-detect offense. Our decision is consistent not only with Adam and Liss, but also with our precedent in United States v. Nathan, 188 F.3d 190 (3d Cir.1999), in which we held that the § 3B1.3 adjustment was properly applied to the president of a defense contracting company who made false certifications to the government and utilized his position as company president to supervise and conceal fraudulent activity. In Nathan, we held that the defendant occupied a position of trust because, “as president of the company, [he] was in a unique position to make decisions for the company and to decide how [it] would fill the government contracts,” and, because there was no one supervising his acts, “he held a position that allowed him to commit wrongs, and that permitted him to make those wrongs harder to detect” by directing subordinates to cover up the offense. Id. at 207. So too here, there was no one supervising Dr. Babarias position as the medical director and manager of Orange and no dispute that, in those positions, he was in a unique position to decide to pay illegal referral fees, payments he made and concealed over a period of several years. In summary, unlike a lower-level employee of a Medicare or Medicaid provider, Dr. Babaria was the authorizing official who certified Oranges compliance with the anti-kickback statute, and was not subject to any supervision over his actions with respect to the business and its relationship with the government programs. He was, without question, an “insider[ ]” who “abuse[d][his] position [ ],” not merely an individual who took advantage of an available opportunity. See Pardo, 25 F.3d at 1192. Indeed, Dr. Babarias position contributed in a “significant way to facilitating the commission or concealment of the offense,” see § 3B1.3 cmt. n. 1, because his level of authority and the lack of supervision over his actions enabled him to commit the offense and evade detection. - See more at: caselaw.findlaw/us-3rd-circuit/1688183.html?DCMP=NWL-pro_health#sthash.PWDbP3bm.dpuf
Posted on: Mon, 05 Jan 2015 17:45:39 +0000
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