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State v. Simmons

Court of Appeals of Ohio, Tenth District

April 11, 2017

State of Ohio, Plaintiff-Appellee,
Kimberly K. Simmons, Defendant-Appellant.

         APPEAL from the Franklin County Court of Common Pleas No. 14CR-3193

         On brief:

          Michael DeWine, Attorney General, Jonathan L. Metzler, and Anil Patel, for appellee.


          Argued: Jonathan L. Metzler.

         On brief:

          Yeura R. Venters, Public Defender, and John W. Keeling, for appellant.


          John W. Keeling.


          BROWN, J.

         {¶ 1} Defendant-appellant, Kimberly K. Simmons, appeals from a judgment of the Franklin County Court of Common Pleas finding her guilty of one count of theft by deception, a misdemeanor of the first degree. Because plaintiff-appellee, State of Ohio, filed the indictment within the applicable statute of limitations period, but the trial court awarded restitution for acts the jury did not find defendant guilty of committing, we affirm in part and reverse in part.

         {¶ 2} On June 17, 2014, the state indicted defendant on one count of theft by deception, a felony of the fourth degree. The indictment alleged that from January 8, 2010 to February 26, 2014, as part of a course of criminal conduct, defendant knowingly obtained or exerted control over property or services belonging to the Ohio Department of Medicaid ("ODM"), with a value of $7, 500 or more and less than $150, 000. The events giving rise to the indictment occurred while defendant was employed by ODM as an independent Medicaid provider.

         {¶ 3} ODM provides medical services to Ohio residents who qualify for Medicaid. For individuals "who meet a certain medical need or a certain diagnosis, " and might "otherwise be in a facility, " ODM can provide funding so the individual can remain in their home. (Tr. Vol. II at 8, 120.) "An independent Medicaid provider" is an individual who has a contract "with the State of Ohio to provide * * * Medicaid services in someone's home." (Tr. Vol. II at 8.) Defendant is a licensed practical nurse, and has been an independent Medicaid provider since 1998. Defendant bills ODM for services she provides to Medicaid recipients by submitting claims to ODM for payment. Defendant's Ohio Medicaid Provider Agreement obligated her to "submit claims only for services actually performed." (State's exhibit 1.)

         {¶ 4} ODM receives claims for payment either from the "provider directly or through what is called a trading partner that would transmit the claims stated to the Department." (Tr. Vol. II at 28.) Defendant utilized the trading partner Rhino Bill, LLC. All of the claims submitted by a provider in a given week would be reflected in a document called "[a] remittance advice statement." (Tr. Vol. II at 29.)

         {¶ 5} Defendant began providing in-home nursing services to Medicaid recipient Brandon Jennings 15 years ago when Brandon was 7 years old. Brandon suffers from cerebral palsy; he is non-weight bearing, non-verbal, and must be fed through a feeding tube. Brandon also suffers from a seizure disorder. Brandon lives at home with his mother, Kelly Sibert, stepfather, Brian Sibert, and his sister.

         {¶ 6} The Mideast Ohio Regional Council ("MEORC") provides case management services for ODM. MEORC began providing case management services for ODM in 2013. Prior to 2013, Carestar, an agency within the Ohio Department of Job and Family Services, administered these services. Kelly Wells, a supervisor at MEORC, explained that in order to determine the amount of services a Medicaid recipient needed, a "case manager [would] do an assessment to determine what the needs of the person are depending on where they live and some of the natural supports they had." (Tr. Vol. II at 96.) Based on that assessment, the case manager would create a plan of care for the Medicaid recipient.

         {¶ 7} State's exhibit 5A was the "all-service plan from Carestar that [MEORC] adopted as the individualized service plan" for Brandon. (Tr. Vol. II at 96.) Brandon's all-service plan demonstrates that he was to receive "skilled nursing, " so that his primary caregiver, his mother, could "maintain employment and attend her health care needs." (State's exhibit 5A.) Brandon had two nurses, defendant and another nurse named Teresa Hardesty.

         {¶ 8} The plan authorized Brandon to receive 72 hours of skilled nursing care per week, consisting of "1 shift of 12 hours for 6 days per week, generally Monday through Saturday 8AM-8PM or 9AM-9PM." (State's exhibit 5A.) Defendant and Hardesty would each work three of the six shifts per week. The plan specified that the nurses were to administer Brandon's G-tube feedings, administer his medications, administer Diastat as needed for seizures, administer oxygen as needed, provide suctioning orally and nasally as needed, administer aerosol treatments as needed, maintain intake/output as ordered, and assist Brandon with his daily living needs.

         {¶ 9} Wells explained the nurses could alter their hours, working for example from 6:30 a.m. to 6:30 p.m., and could alter the days they worked, so long as they didn't "go over the total number of bases and said hours for the month." If the nurses were going to go over the base amount of hours, they had to "contact the case manager." (Tr. Vol. II at 101.)

         {¶ 10} Nedra Davis, a special agent in the healthcare fraud section of the Ohio attorney general's office, was the lead investigator on the case against defendant. Davis explained that the attorney general's office began its investigation of defendant in 2008, when a former agent of the section, Joe Joseph, went to the Sibert home to interview Kelly Sibert. Joseph noticed that defendant was not present at the home when he was there, although she was scheduled to work at the time. Joseph ordered a video surveillance of the home. The video surveillance ran continuously from April 16 to May 3, 2010. (Tr. Vol. IV at 18-20.)

         {¶ 11} Thereafter, Davis took over the investigation. On September 20, 2012, Davis and Special Agent Erin Brantley conducted a physical surveillance of the residence. The agents arrived at 7:30 a.m. and saw defendant's husband's pick-up truck parked at the residence. The agents ended the surveillance at 5:30 p.m., however, due to "safety concerns" in the neighborhood. (Tr. Vol. III at 11.) Because the agents never saw defendant enter or leave the residence that day, they "didn't make any assumptions as to whether [defendant] was in the home or not." (Tr. Vol. IV at 81.) Davis ordered another video surveillance of the home, which occurred from November 16 through 29, 2012. However, Davis concluded that the 2012 video was not of "good quality, " so she "didn't use it" in her case against defendant. (Tr. Vol. III at 113.)

         {¶ 12} Davis reviewed the 2010 surveillance video around "the beginning of 2014, " and submitted her summary of the video on May 28, 2014. (Tr. Vol. IV at 77.) Davis stated that, from her review of the 2010 video, she was able to identify two days where defendant billed ODM for hours she did not work. On February 19, 2014, Brantley and Special Agent George Costner went to defendant's home to interview her. The interview was recorded, and the state played the recording of the interview during trial.

         {¶ 13} The agents told defendant during the interview that they had been monitoring both her and the Medicaid recipient's home, and they knew "the hours being billed are not being worked." Brantley told defendant, "there are two people, there's a good person and a bad person, " and while the good person would be honest and say "yea, I billed for services I didn't provide, " the bad person would deny it. (State's exhibit 8.)

         {¶ 14} Defendant explained that over the years she started to feel she was "kind of like on salary." Brantley asked defendant if she ever billed for services she did not provide, and defendant replied, "for a 12 hour shift, maybe I wasn't there the whole 12 hours." Brantley asked defendant how many hours per shift she would actually work, and defendant responded "at least 8, and some days longer." Brantley told defendant she had watched the home, and she saw defendant work for one hour, maybe three to four hours, but never over seven hours. The agents pressed defendant to state on average how many hours per shift she worked. Brantley suggested ...

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