On February 24, United States District Judge Carl J. Barbier denied Dr. Rodney Hesson’s
§2255 request to vacate his sentence in the high profile 2015 Medicare fraud case. The
§2255 appeal is based on the right to have adequate representation.
Mr. William Kent, Federal Criminal Appeal Lawyer from Florida, who has argued before the US Supreme Court, filed a response on behalf of Dr. Rodney Hesson, and his mother, Gertrude Parker, in the US District Court, Eastern District of Louisiana, on February 16.
Kent said that Hesson’s conduct could not be considered criminal because he made a “reasonable interpretation” of Medicare statutes. Kent demonstrated that charts produced by the government at the trial were false and highly misleading to the jury but were not challenged by the defense attorneys.
Judge Barbier found that the arguments did not matter, writing, “… the Court is convinced that no jury would find Defendant’s conduct complied with any reasonable interpretation of the statute. Further, Defendant merely speculates that there is a qualified expert that would have testified to the effect that his conduct was a reasonable interpretation of Medicare. Given the egregious conduct of Defendant, the Court has serious doubts as to whether such a qualified expert exists.”
In the appeal, Kent argued that the two main charts used by the government were inaccurate, but the defendants’ attorneys did not question or contradict these errors. “The Government throughout the trial implied that billing of units under Medicare code 96101 equated to face-to-face hours spent by the psychologist with the patient. This was false,” argued Kent.
Hesson, who is from Mississippi, and his mother, Ms. Parker, owned and operated two regional companies, and marketed to nursing homes in Louisiana, Mississippi, Alabama and Florida.
A respected member of the Louisiana psychology community and past member of the state psychology board, Dr. Beverly Stubblefield, had worked at the firm and was pulled into the legal problems. Unable to mount a defense she entered a plea agreement of guilty. Dr. John Teal, a Louisiana medical psychologist, was also charged and pleaded guilty.
In this latest response, Mr. Kent writes: “The law is well settled in this and other circuits, that in a criminal fraud case based on legally false statements, such as that charged in this indictment, the Government has the burden of proving beyond a reasonable doubt that the defendant’ s interpretation of the governing regulation was not simply wrong, but entirely unreasonable.”
It was incumbent on the defense, wrote Kent, to brief the Court on the Government’s burden to show that Hessen was unreasonable in his interpretation. “That was not done. Instead, the Government closed the case with no argument to the jury that Dr. Hesson’s and Parker’s interpretations of the governing regulations were unreasonable, simply that they were wrong.
“The Government throughout the trial implied that billing of units under Medicare code 96101 equated to face-to-face hours spent by the psychologist with the patient. This was false.” The the chart’s numbers and totals “… are meaningless and the implications that they conveyed to the jury significantly prejudiced Hesson and Parker when their attorneys failed to object to the chart or bring out its failings on cross-examination.”