United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit

FILED June 15, 2022 No. 20-20645 Lyle W. Cayce Clerk United States of America,

Plaintiff—Appellee,

versus

Yolanda Hamilton, Medical Doctor,

Defendant—Appellant.

Appeal from the United States District Court for the Southern District of Texas USDC No. 4:17-CR-418-1

Before Higginson, Willett, and Ho, Circuit Judges. Stephen A. Higginson, Circuit Judge: A jury convicted Dr. Yolanda Hamilton of conspiracy to commit healthcare fraud, in violation of 18 U.S.C. § 1349; conspiracy to solicit and receive healthcare kickbacks, in violation of 18 U.S.C. § 371; and two counts of false statements relating to healthcare matters, in violation of 18 U.S.C. § 1035. On appeal, Dr. Hamilton challenges both her conviction and sentence. For the following reasons, we AFFIRM. Case: 20-20645 Document: 00516357991 Page: 2 Date Filed: 06/15/2022

No. 20-20645

I. Dr. Hamilton, a licensed physician, owned and operated HMS Health and Wellness Center in Houston, Texas and was the sole physician at her clinic. Around June 2012, Dr. Hamilton enrolled as a Medicare provider. In addition to providing primary care and gastroenterology services, Dr. Hamilton certified Medicare patients for home healthcare. The relevant background on Medicare processes related to home healthcare was helpfully summarized in United States v. Ganji, 880 F.3d 760 (5th Cir. 2018): Home health care services are those skilled nursing or therapy services provided to individuals who have difficulty leaving the home without assistance. . . . The process for receiving home health care services begins when a physician identifies a patient as an eligible candidate. . . . Then a nurse goes to the patient’s home to assess if she is homebound, completing an Outcome and Assessment Information Set (“OASIS”). The nurse then develops a plan of care based on the OASIS and forwards that document [known as Form 485] to a physician for approval. . . . In 2011, Medicare implemented a face-to-face requirement to further ensure that medical professionals would not order home health care without ever seeing the patient. This required medical professionals to actually see the patient for the initial meeting, but “[t]he face-to-face patient encounter may occur through telehealth in person.” [42 C.F.R. 424.22(a)(1)(v)(B).] Regulations allow for medical professionals who are not physicians to complete the face-to-face encounter, but the professionals have to be under the supervision of a physician. A medical professional certifies that they completed this encounter by completing a face-to-face addendum. The agency then sends the addendum with the Form 485 certification forms, which were used to certify patients for home health care to Medicare for reimbursement. If the professional determines

2 Case: 20-20645