From the Chicago Tribune:

Hospice Owner Seeks Light Sentence For $9M Medicare Fraud

By  John Kennedy

Law360, New York (February 14, 2017, 6:06 PM EST) — The former owner of a hospice care center who pled guilty to involvement in a $9 million Medicare fraud scheme asked an Illinois federal judge Monday for the lightest allowable sentence, presumably much less than the 10 years the government wants him to spend behind bars.

Seth Gillman, a lawyer and one of the founders of now-bankrupt Passages Hospice LLC, did not specify how long his impending sentence should be, only saying that it should be “the shortest term of imprisonment permissible under the law.”

In support of his effort to shave years off the time he could spend in prison, he objected to two aspects of the government’s recommended sentence, described his good deeds, and noted how he has lost his business, his friends and his family as a result of his crime.

“Gillman now comes before this court extraordinarily humble and contrite. He is deeply ashamed and angered with himself for succumbing to criminal conduct,” his sentencing memorandum said. “With exception to certain decisions and transgressions that have landed him before this court, Gillman has committed his life to helping his family, friends and others in need, illustrating his genuine sense of compassion and generosity.”

The government, meanwhile, pushed for 10 years, pointing to Gillman’s role in overseeing a four-year-long fraud scheme in which Medicare was charged millions of dollars for unnecessary nurse visits and for care that patients ultimately didn’t receive — a scam he continued even as multiple members of his staff tried to change the practices.

Over the life of the scheme, Medicare paid Passages about $26.5 million for “basically nothing” because little, if any, of it went to patient care, prosecutors said.

“Unlike some defendants that come before this court and others, this defendant clearly could have had a good career and living without engaging in criminal activity, and he made a deliberate choice based on greed to put all of that at risk by defrauding Medicare,” the government said. “He chose to do this because he thought he could get away with it, and a serious sentence is necessary to punish him adequately.”

Law enforcement searched Passages’ offices in January 2012, and Gillman  was indicted in May 2014 along with three other Passages employees. He  pled guilty in February 2016.

Gillman had numerous opportunities during the life of the scheme to make things right, but “nothing changed, and the scheme went on,” the government said.

His actions included firing a nursing director who raised multiple concerns soon after the plot began in 2008, actively changing patient files in 2009, and asking a co-defendant in 2010 if an employee in the Chicago region was a “cancer” after that worker questioned how staff could be a “family” if they were swamped with work, unable to voice concerns without feeling threatened and pressured to keep a certain amount of people on “general inpatient” services — a higher level of care that pulled in higher reimbursements — the government said.

Gillman will be the first sentenced as a result of the scheme, so the court should consider his role as head of Passages, the length of the scheme, and the need to set a solid standard on which to base subsequent sentences, the government said. It has recommended 60 and 40 months for two other defendants.

Gillman did not deny the seriousness of his offense, but objected to two aspects of the government’s recommendation that increased his sentence. Both sides agree that the scheme caused $9 million in losses — which the defendants should be required to pay back — but Gillman said that his sentence shouldn’t be lengthened as a result of it being a federal health care offense or because he allegedly abused a position of trust.

Although he agreed to follow Medicare’s rules, the government would have needed to establish a relationship that’s beyond ordinary for him to have abused its trust, he said. As for the federal health care offense enhancement, the scheme was three months from ending before this enhancement went into effect, so it shouldn’t apply, Gillman said.

With his objections, the government’s recommended sentence would drop from 120 months to between 70 and 87 months. But the Probation Department, a neutral third party, has recommended that a 36-month sentence would be sufficient, Gillman said, adding that he isn’t suggesting this is an appropriate length, but that the court should consider this fact.

Gillman also said that Passages provided hundreds of elderly patients extra care and assistance that nursing homes didn’t provide, even while he, through Passages, “unjustly lined his pockets by submitting false claims.”

“Despite his illegal conduct, the fact that hundreds of elderly patients received far better care than they qualified for should not be overlooked,” his sentencing memorandum said. “The true nature of this specific offense is that Gillman improperly profited off the Passages patients who received extensive end-of-life care that, under Medicare guidelines, they were not qualified to receive.”

Also on Monday, the government filed a short sentencing memorandum for Passages itself, which pled guilty in February 2016. Although a large fine would ordinarily be warranted, the bankrupt company isn’t likely to be able to pay such a penalty, so no fine should be imposed, the government said, recommending two years of probation.

Gillman is represented by Blaire C. Dalton of Dalton Law LLC and by Edward M. Genson and Vadim A. Glozman of Edward M. Genson & Associates.

The government is represented by U.S. Attorney Zachary T. Fardon and Assistant U.S. Attorneys Stephen Chahn Lee, Abigail Peluso and James P. Durkin.

The case is USA v. Gillman, et al., case number 1:14-cr-00033, in the U.S. District Court for the Northern District of Illinois.

–Additional reporting by Diana Novak Jones. Editing by Philip Shea.