Federal prosecutors received the green light to retry Philip Esformes on pending healthcare fraud charges after US Supreme Court Justice Clarence Thomas rejected an emergency appeal from the assisted living community and nursing home owner on Tuesday.
Esformes had sought to stay a decision from the 11th US Circuit Court of Appeals affirming his 2019 conviction. In the filing, attorneys argued that the Supreme Court should intervene to stay the appellate court’s ruling to prevent the government “rush to retry Mr Esformes on the hung counts — notwithstanding its acknowledged misconduct and the president’s grant of clemency.”
Thomas denied emergency relief without comment, opting not to refer the case to the full court for consideration, according to Courthouse News Service.
Esformes was found guilty on 20 fraud charges in 2019, including conspiracy to defraud the United States, money laundering, paying and receiving kickbacks, bribery, wire fraud and obstruction of justice. The federal government had called the $1.3 billion healthcare fraud case “the largest healthcare fraud scheme charged by the US Justice Department.”
The federal government had announced its intent to retry Esformes after a jury did not reach a verdict on six counts in his 2019 trial. His attorneys argued in a March 31 application to the Supreme Court that a retrial would threaten Esformes’ “already declining health and will prove wholly unnecessary” if the judgment was reversed and the indictment dismissed.
Esformes’ 20-year prison sentence was commuted in December 2020 by former President Donald Trump, but the clemency left intact the remaining parts of his sentence, including three years of supervised release and the payment of $5.5 million in restitution, and the forfeiture of $38.7 million “equal in value to the property traceable to the property involves in [Esformes’] money laundering offenses.”
In 2021, Esformes appealed the financial penalties stemming from his convocation, but on Jan. 6, a panel of judges on the 11th Circuit Court of Appeals upheld his criminal conviction. The panel further ruled that a district court judge had not improperly used his discretion when he excluded from the case the materials covered by attorney-client privilege rather than dismissing the case entirely.
His attorneys have appealed that Jan. 6 decision, asking for a full court rehearing, citing prosecutorial misconduct as the basis for the appeal.
A case history
Esformes first was charged in 2016. The federal government, in part, alleged that he would move skilled nursing residents to his assisted living facilities when they were at or near the end of Medicare’s 100-day post-hospital benefit period for skilled nursing. “After the required 60-day waiting period between consecutive admissions to an [sic] SNF, a physician or physician assistant would readmit the beneficiary to the hospital, re-initiating the cycle,” according to a federal motion in 2016.
Meanwhile, the government alleged, Esformes provided access to assisted living residents “for any healthcare provider willing to pay a kickback” — including pharmacies, home health agencies, physician groups, therapy companies, partial hospitalization programs, laboratories and diagnostic companies — even though many of the services for which they were paid were not medically necessary or were never provided.
Read McKnight’s Senior Living’s coverage of the Esformes case.
