In United States v. Ashokkumar R. Babaria, ___F.3d ___, No. 14-2694 (3d Cir. 12/31/14), Dr. Babaria pled guilty to 42 U.S.C. §1320a-7b(b)(2)(A) for making kickbacks to physicians in order to obtain referrals to his business for the purpose of performing medical diagnostic testing on patients whose bills were paid by Medicare and Medicaid. He received the kickbacks while at the same time certifying, on behalf of the lab doing the testing, that there were none. The government’s payments for services that resulted in kickbacks exceeded two million dollars. Despite the illegal activity, medical records were not falsified, the government was not billed for testing that did not occur, and patient care was not compromised.
At sentencing, Dr. Babaria objected to a two-level adjustment for abuse of a position of trust pursuant to USSG §3B1.3, and a four-level adjustment for aggravating role pursuant to USSG §3B1.1(a), resulting in a recommended Guidelines range of 70-87 months’ imprisonment . The statutory maximum capped the guidelines range at 60 months imprisonment, and the District Court, applying both adjustments, imposed a sentence of 46 months’ incarceration, a $25,000 fine, and reimbursement of all government fees paid as a result of patients whose doctors received kickbacks.
On appeal, Dr. Babaria argued that it was error to apply the §3B1.3 adjustment because he neither occupied nor abused a position of trust. The Court, after reviewing the Comments to 3B1.3, restated prior case law describing three factors that determine whether a position of trust exists: “(1) whether the position allows the defendant to commit a difficult-to-detect wrong; (2) the degree of authority to which the position vests in defendant vis-à-vis the object of the wrongful act; and (3) whether there has been reliance on the integrity of the person occupying the position.” Using these criteria, the Court concluded Dr. Babaria held a position of trust, as in his position he certified compliance with anti-kickback rules, yet concealed the kickbacks. He held a position that both allowed him to commit wrongs and allowed him to make those wrongs harder to detect. He was not subject to any supervision over his actions with respect to the business and its relations with the government. His position in the organization was a significant factor in his ability to commit the crime.
The Court cautioned that Dr. Babaria’s medical license was not the determinative factor in applying 3B1.3. His actions in his minimally supervised position led to application of the enhancement, not his medical license. While the District Court considered his medical license when applying the enhancement, the license was not the sole determinant.
The Court summarily dismissed Dr. Barbaria’s other arguments and allowed his sentence to stand.
Image from The New Yorker.