Whether Medicare regulations are controlling in a criminal prosecution under 18 U.S.C. § 1347

QUESTIONS PRESENTED FOR REVIEW! The administration of the Medicare and Medicare programs is conducted through and governed by a large body of regulations, rules, and policies issued by CMS (the Center for Medicare & Medicaid Services), pursuant to the rule-making authority granted to it by Congress. In this Court, and every Circuit Court of Appeal except the Fifth Circuit, these regulations, rules and policies have been described as “controlling.” At his criminal trial, Dr. Evans sought to show that he had complied with the CMS definition of “homebound,” and thus was not guilty of health care fraud. However, the district court refused to instruct the jury on the relevant regulations, while allowing a Government expert to give testimony on “homebound status” that was not based on the CMS regulations. The Fifth Circuit affirmed Dr. Evans’s convictions, holding that “to the extent that the Medicare regulations provide guidance as to which patients qualify as homebound, it is akin to a term of art.” The Fifth Circuit further held that “the word [homebound] has a meaning outside of these parameters,” and found the admission of the expert’s testimony was not an abuse of discretion. The Fifth Circuit’s opinion presents these questions for review by this Court: 1.) Are the Medicare rules, regulations, and policies “controlling” in a criminal prosecution under 18 U.S.C. § 1347; i.e. is evidence of compliance or 1 The caption of the case contains the names of all the