Phillip Esformes is asking an appellate court for a full court hearing on its Jan. 6 decision to uphold his conviction in a $1.3 billion healthcare fraud case that the federal government previously has called “the largest healthcare fraud scheme charged by the US Justice Department.”
Friday, attorneys for the assisted living community and skilled nursing facility owner filed for a rehearing by the full 11th US Circuit Court of Appeals, citing prosecutorial misconduct as the basis for the appeal. An appellate court panel of judges upheld Esformes’ criminal conviction, and the associated $44 million in penalties, earlier this month.
In the appeal of the Jan. 6 decision by a panel of judges from the appellate court, Esformes’ attorneys argue that “multiple unethical actions by the government” infringed on Esformes privileged communications with his attorneys at an “egregious level” and resulted in a coverup involving the improper seizure of “hundred of privileged documents” used by the government in its investigation.
The panel of judges previously considered those arguments before issuing their unanimous Jan. 6 decision, but “[t]his is no ordinary case,” the appeal reads, stating the “magnitude of the invasions, the advantages gained, the judicial crediting of prosecutors’ private interests” and ensuring the integrity of the judicial system warrant a rehearing by the full court of appeals.
Esformes’ 20-year prison sentence was commuted in December 2020 by outgoing President Donald Trump. The clemency left intact the remaining parts of his sentence, including three years of supervised release, the payment of $5.5 million in restitution and the forfeiture of $38.7 million.
Esformes appealed the financial penalties stemming from his conviction in January 2021. The Jan. 6 court ruling, however, keeps him liable for them.
A case history
Esformes was found guilty of 20 charges, including conspiracy to defraud the United States, money laundering, paying and receiving kickbacks, bribery, wire fraud and obstruction of justice in April 2019 after being charged in 2016.
The federal government, in part, alleged that Esformes 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.
The jury in 2019 did not reach a verdict on six other counts that Esformes faced, and the government has said that it intends to retry him on those counts.
Read McKnight’s Senior Living’s coverage of the Esformes case.
