J-A04007-22
2022 PA Super 99
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
PATRICIA FARKAS :
:
Appellant : No. 2070 EDA 2020
Appeal from the Judgment of Sentence Entered October 7, 2020
In the Court of Common Pleas of Northampton County Criminal Division
at No(s): CP-48-CR-0001997-2019
BEFORE: LAZARUS, J., NICHOLS, J., and McLAUGHLIN, J.
OPINION BY LAZARUS, J.: FILED MAY 27, 2022
Patricia Farkas appeals from the judgment of sentence, imposed in the
Court of Common Pleas of Northampton County, after she was convicted of
Medicaid Fraud—Submission of False Information (F-3),1 and sentenced to 4-
23 months’ imprisonment, a probationary term of 37 months, and restitution
in the amount of $14,513.71. After careful review, we affirm.
In November 2015, Farkas, a licensed practical nurse (LPN), worked for
Medicaid, in a “participant[-]directed services” program (Program), as an in-
home caregiver for her elderly father, Walter Farkas (Walter/participant).
Walter suffers from early-onset Alzheimer’s and requires 24-hour-a-day
supervision. The Program allows family members to be compensated for
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1 62 P.S. § 1407(a)(1). Farkas was also charged with Medicaid Fraud—
Misrepresented Services (Count II), id. at § 1407(a)(7), and Theft by
Deception—False Impression (Count III), 18 Pa.C.S.A. § 3922(a)(1). She was
acquitted of these two offenses.
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providing care within a patient’s home, rather than having the patient be cared
for at an institutional facility.
Farkas, as a direct-care worker (DCW), was employed by and supervised
by Services Access Management (SAM), an agency that coordinates care
services for elderly, infirm adults in the community. In accordance with an
Individual Service Plan (Plan), which set forth specific goals tailored to
Walter’s needs, Farkas was originally authorized to work up to 12 hours a day,
for an 84-hour2 work week.3 Farkas’ boyfriend, John Murray, was designated
as a “common law employer” (CLE)—a person who oversaw, approved and
submitted Farkas’ timesheets.4 In addition to taking care of Walker, Farkas
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2 The remaining 12 hours of daily care were provided by other family members
who were not compensated.
3 Soon after she started working for the Program, a service coordinator
supervisor advised Farkas that her weekly hours should be decreased (initially
to 70 and then later recommended 56) to prevent “burnout,” and that another
DCW should be registered to cover the remaining weekly hours. When Farkas
failed to reduce her weekly hours, Farkas was no longer approved to work
with a participant directed services program, but was offered only agency
model services, where her hours are monitored by an agency. In December
2017, Comforting Home Care (CHC), a non-medical personal care agency,
employed Farkas as Walter’s caregiver. N.T. Jury Trial, 9/1/20, at 136-38.
Farkas’ signed employment agreement with CHC specifically required her to
use the client’s telephone to “clock in/clock out [u]pon [her] arrival and
departure at the client’s home. Commonwealth’s Exhibit 11, at [3]. This
record represented Farkas’ “official time sheet[,] which [was] used to create
[her] payroll.” Id. See also N.T. Jury Trial, 9/1/20, at 146-47. Farkas
worked for CHC from December 1, 2017 to September 14, 2018. Id. at 150.
4 An individual who approves a Program worker’s time sheets is known as a
CLE. N.T. Jury Trial, 8/31/20, at 89. Although it was intimated at trial that
Dawn Mulvihill replaced Murray as Farkas’ CLE in June of 2017, Mulvihill
(Footnote Continued Next Page)
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also worked at other non-Medicaid healthcare facilities, a practice that was
not prohibited by the Program.
Special Agent Ryan King (Agent King) of the Medicaid Fraud Control
Section of the Pennsylvania Office of the Attorney General investigated
allegations that Farkas was “submitting more hours than what was authorized
for her, and[,] on two occasions during home visits with [SAM,] she was not
present [at Walters’ home,] yet billed as though those services were
provided.” N.T. Jury Trial, 9/1/20, at 177. Farkas’ time sheets reflected that
she worked her 12-hour daily shifts for Walter from 7:00 a.m. until 7:00 p.m.
Agent King compiled Farkas’ records from the other employers she worked
for; those records showed that Farkas was collecting income for other jobs
during the same 7:00 a.m. to 7:00 p.m. period that she allegedly was caring
for Walter. Thus, Agent Ryan presumed that Farkas was double billing by
submitting timesheets to the Program and being compensated by Medicaid for
hours when she was working elsewhere.
Farkas was charged with Medicaid Fraud—Submission of False
Information (Count I), Medicaid Fraud—Misrepresented Services (Count II),
and Theft by Deception—False Impression (Count III). A three-day jury trial
was held from August 31 through September 2, 2020. Teresa Reeser (Public
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testified that she never cared for Walter or acted as a CLE for Farkas. Id.,
9/1/20, at 117-20.
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Partnerships’ (PPL)5 employee),6 Emily Laurent (SAM employee), Dawn
Mulvihill (Farkas family friend), Margaret Skibinski (COO and Director of
Nursing for Comforting Home Care), Agent King, John Murray, and Farkas
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5 PPL provided financial management services to Walter. After PPL receives a
direct-care worker’s timesheet, it directly bills Medicaid for the amount it pays
to the direct-care worker as well as the employer costs, which would include
FICA, Social Security matching, federal unemployment, state unemployment,
and workers’ compensation. N.T. Jury Trial, 8/31/20, at 80.
6 At trial, Teresa Reeser testified that as a direct-care worker (DCW), Farkas
could create her own template for a weekly time sheet. Reeser testified that
when the DCW fills out the time sheet, she “needs to ensure that the . . . in[-
]and[-]out time accurately represents the time for service is provided on those
dates.” N.T. Jury Trial, 8/31/20, at 71. Specifically, Reeser testified that the
DCW must “confirm[] the accuracy of the time sheet [and] submit[] the time
sheet to the common law employer for approval [and then t]he common law
employer must log into the [PPL web] portal, review the time sheet, verify
that those were the dates and times and hours that services were provided[,]
and then approve the time sheet.” Id. at 72. “Once the common law
employer approves the time sheet, it gets submitted into [the] PPL system for
processing.” Id. While the system automatically populates the total number
of weekly hours a DCW has worked, the total number is based on the in and
out times that the DCW has specifically input on her time sheet. Id. at 73.
Finally, before the system will permit a DCW to submit her timesheet, she has
to check a box that says her “time entry accurately represents the allotted
hours and approved rate of pay from the most recent individual budget.
Misuse of the funds provided by Medicaid for services is considered Medicaid
fraud.” Id. at 74.
Resser also testified that, as a DCW, Farkas was required to enter her own
“in” time and “out” time and that the times must accurately represent the
hours during which she was providing the services for Walter. N.T. Jury Trial,
8/31/20, at 66-67, 70. Finally, Resser testified that even using a template
provided by the billing portal, a DCW would still have to accurately designate
her exact hours worked, id. at 70, as the “in and out times” are not
prepopulated, but are directly input by the DCW. Id.
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testified at trial.7 After the jury retired, the judge received a written request
to have “all exhibits of evidence” sent back with the jury during deliberations.
N.T. Jury Trial, 9/2/20, at 155. The trial judge granted the jury’s request and
permitted all 21 of the Commonwealth’s exhibits admitted at trial to go back
with the jury. Id. at 165-66. Farkas, however, objected to Commonwealth
Exhibits 19-21 being sent back with the jury, arguing that they were akin to
expert reports. See id. at 158-66. The jury ultimately convicted Farkas of
Count I and acquitted her of Counts II & III.
On October 7, 2020, Farkas was sentenced to 4-23 months’
imprisonment,8 a probationary term of 37 months, and restitution in the
amount of $14,513.71. The court calculated the restitution9 owed by adding
up the total amount Farkas was paid by Medicaid for overlapping hours—hours
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7 Two character witnesses, Glenda Gerena and Peggy Jean McGuire Kuhns,
testified at trial with regard to Farkas’ reputation as an honest individual.
8 The crime, graded as a third-degree felony, had an offense gravity score
(OGS) of five and a prior record score (PRS) of zero. According to the
Sentencing Guideline matrix, a standard-range sentence for such an offense
is R[estorative] S[antions]-nine months. As a third-degree felony, the
statutory maximum sentence would be seven years in prison and a fine of
$15,000. Although not stated, we note that there may be collateral
consequences to this conviction which will implicate her ability for future
employment. Those are not part of the record and we do not consider them
here.
9 This is not a case where the jury was left to determine the amount of
restitution that was owed, despite evidence that Farkas worked many hours
for Walter, but just not necessarily daily between 7 AM to 7 PM. The jury
apparently either rendered a compromise verdict, acquitting her of two of the
three charges, or determined that Farkas’ testimony was not credible.
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when Farkas was not actually providing care for Walter under the Program,
but was billing for those times.10 Farkas was
At sentencing the trial court noted the following:
According to the [presentence investigation report], it indicates
that the Commonwealth is seeking restitution in the amount of
$14,513.71, and is seeking that money be paid[—]they have
actually made a request, and that was noted and provided to you
before trial that they were seeking under the [s]tatute, the
Medicaid Fraud Statute, notice of intent to seek treble damages,
which is meaning not to just . . . order you to pay back the
[$]14,500[,] but three times that amount as a penalty. So that’s
what they’re requesting at this time. I will note that for the
record.
…
I’m not going to fine you in this case, but I am going to order
restitution in the full amount of $14,513.71. I am not going to
treble those damages. I’m not going to multiply those damages
in any fashion. I will keep it basic. It’s a sizable amount of money
to begin with, and you’re going to need to get that paid back within
the period of time provided for here.
You will also be ordered to pay with that the statutory interest that
would be accumulated under the section regarding the amount
and the time that it takes for you to pay that back. I am going to
order that you pay costs and fees in the sentence of this case as
well. And I will make [you] eligible for work release.
N.T. Sentencing, 10/7/20, at 22-23.
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10 Although unexplained, on at least one occasion Farkas reportedly
documented and was paid for working more than 24 hours in a given day.
See N.T. Jury Trial, 9/1/20, at 211 (reporting for 24-hour day, Farkas’ time
sheet showed she worked total of 30 hours and 14 minutes).
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Farkas filed a timely notice of appeal and court-ordered Pa.R.A.P.
1925(b) concise statement of errors complained of on appeal. She presents
the following issues for our review:
(1) Did the trial court commit reversible error by allowing the
Commonwealth’s expert report to be shared with the jury
during their deliberations?
(2) Did the trial court impose an illegal sentence where the
amount of restitution ordered was neither a direct result of
[Farkas’] criminal conduct, nor was it supported by the
record evidence?
Appellant’s Brief, at 4 (unnecessary capitalization omitted).
In her first issue on appeal, Farkas contends that the trial court abused
its discretion in permitting the Commonwealth’s Exhibit 19 (spreadsheet
compiling hours Farkas reported at each job in stated time period), Exhibit 20
(displaying ten detailed examples of overlapping work hours and showing
reproduced time sheets from non-Medicaid employers alongside Medicaid
work hours Farkas reported), and Exhibit 21 (compiling instances where
Farkas purportedly worked more than 24 hours in one day) to be sent back
with the jury during deliberations. She argues that it was reversible error to
allow the jury to receive the exhibits because they essentially amounted to a
summation of the Commonwealth’s expert’s opinions and, thus, the material
unduly influenced the jury. We disagree.
The determination as to whether an exhibit should be permitted to go
out with the jury during deliberations “is within the sound discretion of the
trial judge, and such decision will not be overturned absent an abuse of
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discretion.” Commonwealth Parker, 104 A.3d 17, 25 (Pa. Super. 2014)
(citations omitted). Pennsylvania Rule of Criminal Procedure 646 provides, in
relevant part, that “[u]pon retiring[,] the jury may take with it such exhibits
as the trial judge deems proper.” Pa.R.Crim.P. 646(A).
Here, the Commonwealth’s three exhibits (19-21) contained no expert
opinion; they merely collected the same facts (number of hours worked and
overlapping hours) included in the Commonwealth’s other exhibits. Moreover,
even if the exhibits had contained expert opinions, expert reports are not
specifically precluded from jury deliberations under Rule 646. See
Pa.R.Crim.P. 646(C) (rule specifically prohibits jury to have transcript of trial
testimony, copy of defendant’s written or recorded confession, copy of
information or indictment, and written jury instructions), but see id. at (B)
(jury may have written copies of portion of judge’s charge on elements of
offenses, lesser included offenses, and any defense upon which jury has been
instructed). Because the three Commonwealth exhibits facilitated the jury’s
synthetization of pertinent information necessary to arrive at a verdict on the
issue of Medicaid fraud, we do not find that the trial court abused its discretion
by permitting the exhibits to go to the jury during deliberations.
Parker,
supra.
In his second issue, Farkas asserts that the trial court’s restitution
sentence is illegal because the Commonwealth did not prove a “loss” directly
caused by the alleged “false information” Farkas provided to Medicaid.
Specifically, Farkas argues that because the jury acquitted her of Count II
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(misrepresented Medicaid services) and Count III (theft by deception), see
supra at n.1, the jury did not believe that the Commonwealth suffered any
attendant loss. Accordingly, she asserts that because the “false information”
was not causally connected to the Commonwealth’s “property,” restitution
should not have been ordered as part of her sentence.
To support her restitution argument, Farkas cites to case law that
discusses restitution imposed as part of a direct sentence under 18 Pa.C.S.A.
§ 1106(a) of the Crimes Code.11 See Harriott, supra (compiling caselaw
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11 Section 1106 provides:
§ 1106. Restitution for injuries to person or property.
(a) General rule. — Upon conviction for any crime wherein
property has been stolen, converted or otherwise unlawfully
obtained, or its value substantially decreased as a direct
result of the crime, or wherein the victim suffered personal
injury directly resulting from the crime, the offender shall
be sentenced to make restitution in addition to the
punishment prescribed therefor.
18 Pa.C.S.A. § 1106(a). “With regard to appeals stemming from the
imposition of restitution as a condition of the judgment of sentence under
section 1106, restitution may be imposed only for those crimes to property or
person where the victim suffered a loss that flows from the conduct that forms
the basis of the crime for which the defendant is held criminally accountable.”
Commonwealth v. Dohner, 725 A.2d 822, 824 (Pa. Super. 1999) (internal
citations and quotations omitted). Moreover,
[i]n computing the amount of restitution, the court shall consider
the extent of injury suffered by the victim and such other matters
as it deems appropriate. Because restitution is a sentence, the
amount ordered must be supported by the record; it may not be
speculative or excessive. The amount of a restitution order is
(Footnote Continued Next Page)
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discussing section 1106’s statutory language “directly resulting from the
crime” requires causal connection between crime and loss). Instantly, Farkas
was convicted of the following offense under the Public Welfare Code:12
§ 1407. Provider prohibited acts, criminal penalties and
civil remedies
(a) It shall be unlawful for any person to:
(1) Knowingly or intentionally present for allowance or
payment any false or fraudulent claim or cost report for
furnishing services or merchandise under medical
assistance, or to knowingly present for allowance or payment
any claim or cost report for medically unnecessary services or
merchandise under medical assistance, or to knowingly submit
false information, for the purpose of obtaining greater
compensation than that to which he is legally entitled for
furnishing services or merchandise under medical assistance,[13]
or to knowingly submit false information for the purpose of
obtaining authorization for furnishing services or merchandise
under medical assistance.
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limited by the loss or damages sustained as a direct result of
defendant’s criminal conduct and by the amount supported by the
record.
Id. “Due to the language ‘directly resulting from the crime,’ restitution is
proper only if there is a direct causal connection between the crime and the
loss.” Commonwealth v. Harriott, 919 A.2d 234, 238 (Pa. Super. 2007).
“The sentencing court applies a ‘but for’ test in imposing restitution; damages
which occur as a direct result of the crimes are those which would not have
occurred but for the defendant’s criminal conduct.” Commonwealth v.
Wright,
722 A.2d 157, 159 (Pa. Super. 1998).
12 See Title 62, Chapter 1, Article XIV (Fraud and Abuse Control), §§ 1401-
1418.
13 Initially, Farkas was authorized to work an 84-hour work week. Because
Farkas’ weekly submitted hours did not exceed 84 hours, she arguably did not
purport to obtain greater compensation than that to which she was legally
entitled.
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62 P.S. § 1407(a)(1) (emphasis added). “The penalties for violating the
provisions of the Medicaid Fraud and Abuse Control Statute are set forth at 62
P.S. § 1407(b)(1).” Commonwealth v. Lurie, 569 A.2d 329, 332 (Pa.
1990).14 Subsection 1407(b)(1) provides:
[(b)](1) A person who violates any provision of subsection (a),
excepting subsection (a)(11), is guilty of a felony of the third
degree for each such violation with a maximum penalty of fifteen
thousand dollars ($15,000) and seven years[’] imprisonment. A
violation of subsection (a) shall be deemed to continue so long as
the course of conduct or the defendant’s complicity therein
continues; the offense is committed when the course of conduct
or complicity of the defendant therein is terminated in accordance
with the provisions of 42 Pa.C.S. § 5552(d) (relating to other
offenses). Whenever any person has been previously convicted
in any state or Federal court of conduct that would constitute a
violation of subsection (a), a subsequent allegation, indictment or
information under subsection (a) shall be classified as a felony of
the second degree with a maximum penalty of twenty-five
thousand dollars ($25,000) and ten years[’] imprisonment.
62 P.S. § 1407(b)(1). In addition to the penalties provided under subsection
(b),
the trial court shall order any person convicted under
subsection [1407](a):
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14 In Lurie, our Supreme Court stated that:
The purpose of the Medicaid Fraud and Abuse Control Act is “to
eliminate fraudulent, abusive[,] and deceptive conduct and
practices that may occur.” Introductory paragraph of Act 1980,
July 10, P.L. 493, No. 105. In speaking of “fraudulent, abusive
and deceptive” conduct, the legislature most certainly is referring
to willful conduct as opposed to recklessness or negligence.
Id. at 331. Thus, if Farkas’ conduct were proven to be reckless and/or
negligent, it would not rise to the level of intent necessary to prove fraud. Id.
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(i) to repay the amount of the excess benefits or
payments plus interest on that amount at the
maximum legal rate from the date payment was made
by the Commonwealth to the date repayment is made
to the Commonwealth[.]
Id. at § 1407(b)(2)(i) (emphasis added). Thus, it is mandatory under section
1407(b)(2)(i) to order a defendant, convicted under section 1407(a), to repay
any excess payments he or she has fraudulently acquired, plus interest on
that amount, to the Commonwealth.
In Commonwealth v. Coleman, 905 A.2d 1003 (Pa. Super. 2006), a
defendant, convicted of Medicaid Fraud and related charges, claimed on
appeal that the trial court had imposed an illegal sentence of restitution
because neither the Department of Public Welfare nor the Attorney General
were “victims” as defined in section 1106 of the Crimes Code. Our Court
concluded that the defendant’s argument was “misplaced, as there exists
independent statutory authority to require the payment of restitution to the
Department of Public Welfare.” See 62 P.S. § 1407(b)(2)(ii).
Just as in Coleman, Farkas’ argument is misplaced. As the trial court
notes, the restitution Farkas was ordered to pay is “specifically authorized for
any conviction arising from the Medicaid Fraud statute.” Trial Court Opinion,
4/20/21, at 3. We agree and, thus, find her argument meritless. See Lurie,
supra.15
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15 This case presents a real conundrum. On the one hand, testimony indicates
that Walter was well taken care of by family and friends and was not left to
(Footnote Continued Next Page)
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Order affirmed.16
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/27/2022
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the vagaries of care that might or might not have been as good in a facility.
Although, admittedly, Farkas sometimes left Walter alone at home. See N.T.
Jury Trial, 9/2/20, at 89-90 (Farkas admitting “on certain occasions” Walter
had to be left alone when she had to work other overnight jobs), but see id.
at 8-9, 12 (Farkas testifying Walter was never left alone). On the other hand,
this case provides a clear example of how easily fraud can occur in this setting
and the dangers of not reporting accurately actual hours worked as required
by the statute. Due to our resolution of the issues on appeal, we will not opine
on whether the Commonwealth was harmed to the extent restitution was
claimed. It is best left to our Legislature to determine the risks v. benefits of
home health care and how to best implement it.
16 To the extent that Farkas’s claim can be interpreted as a sufficiency of the
evidence argument (lacking requisite intent to commit Medicaid Fraud), we
would find this claim waived. Farkas’ counsel acknowledged at oral argument
that he did not raise, and, thus, preserve a sufficiency claim on appeal.
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