United States v. Merigrace Orillo
2013 U.S. App. LEXIS 21577
| 7th Cir. | 2013Background
- Orillo pled guilty to healthcare fraud under 18 U.S.C. §1347 and paybacks to physicians under 42 U.S.C. §1320a-7b; sentenced to 20 months.
- Chalice Health Services, owned/operated by Orillo and her husband, submitted home health care claims to Medicare.
- Orillo supervised claim submissions and admitted altering OASIS and Recertification forms to upcode reimbursement.
- She admitted marking changes and substituting entire pages; also admitted aiding kickbacks to a doctor for referrals.
- Trust Solutions analyzed records; 177 episodes reviewed; $47,444 in overpayments found; no underpayments; conservative loss estimate used.
- Court must determine loss and restitution by preponderance and review for clear error; waiver issue regarding Count II sentence addressed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is loss accurately attributable to the defendant's conduct? | Orillo argues only visible alterations should be used. | Orillo contends unaltered items reflect error, not fraud. | No; loss attributable to concerted fraudulent scheme; includes altered and substituted pages. |
| Should restitution be limited to visually altered items? | Orillo asserts only visible alterations should count for loss and restitution. | Orillo argues lack of visible alteration breaks causal link. | No; plea admission and overall fraudulent conduct link all overpayments to defendant. |
| Is the district court's method supported by precedent for loss calculation? | Littrice-style reasoning supports attribution to criminal conduct. | Schroeder/Littrice distinctions cautioned re misattribution of errors. | Yes; court can attribute broad overpayments to defendant given concerted fraud and evidence. |
| Was Count II sentence challenge waived? | Orillo claims potential reduction but did not raise properly on appeal. | Government argued waiver; district court noted potential waiver. | Waiver issue not reached; no challenge raised on appeal; affirmed without addressing waiver. |
Key Cases Cited
- United States v. Littrice, 666 F.3d 1053 (7th Cir. 2012) (preponderance standard; reasonable estimate acceptable for loss)
- United States v. Schroeder, 536 F.3d 746 (7th Cir. 2008) (loss based on improper deductions; remand not for fatally defective method)
- United States v. Kennedy, 726 F.3d 968 (7th Cir. 2013) (restitution limited to actual losses caused by the conduct)
- United States v. Robers, 698 F.3d 937 (7th Cir. 2012) (abuse of discretion standard in restitution determinations)
- United States v. Austin, 54 F.3d 394 (7th Cir. 1995) (rejecting speculative explanations in loss calculations)