Motion in Limine to Exclude Government’s Summary Exhibits — United States v. Ron Elfenbein, Crim. No. JKB-22-146 (Dkt. 37, D. Md.)

Summary

Counsel for Ron Elfenbein filed this motion in limine on June 26, 2023 in United States v. Ron Elfenbein, Crim. No. JKB-22-146 (D. Md.), asking the court to exclude 26 of the 35 summary exhibits the government planned to present through expert Stephen Quindoza and summary witness Marylee Robinson. The superseding indictment alleges that Elfenbein, Medical Director of the urgent care business Drs ERgent Care, defrauded health care benefit programs by seeking reimbursement for office visits that were medically unnecessary and did not occur as represented. The motion argues that the exhibits use inaccurate definitions of the key billing codes, mix allegedly fraudulent claims with claims not alleged to be fraudulent, and present “Amounts billed” whose prejudice outweighs their value. It also seeks to exclude an exhibit summarizing Elfenbein’s tax returns.

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
(Northern Division)

UNITED STATES OF AMERICA

v. Crim. No. JKB-22-146

RON ELFENBEIN,

Defendant.

MOTION IN LIMINE TO EXCLUDE
GOVERNMENT’S SUMMARY EXHIBITS

June 26, 2023 Martin S. Himeles, Jr. (Bar No. 03430)
Baltimore, MD Gregg L. Bernstein (Bar No. 01340)
Samantha A. Miller (Bar No. 21374)
ZUCKERMAN SPAEDER LLP
100 East Pratt Street - Suite 2440
Baltimore, MD 21202-1031
Tel. No: (410) 332-0444
Fax No: (410) 659-0436
mhimeles@zuckerman.com
gbernstein@zuckerman.com
samiller@zuckerman.com

Counsel for Defendant Ron Elfenbein
TABLE OF CONTENTS

MOTION IN LIMINE TO EXCLUDE GOVERNMENT’S SUMMARY EXHIBITS ...................1

BACKGROUND .............................................................................................................................1

ARGUMENT ...................................................................................................................................2

I. The government’s summary exhibits include inaccurate definitions of the key billing codes
and a misleading analysis that is based on the inaccurate code definitions. ......................... 4

a. Summary exhibits that include inaccurate E/M code descriptions must be excluded. 4

b. A summary exhibit that assumes Dr. Elfenbein and his providers coded based on
time illustrates the problems that will be caused if the government is permitted to
use inaccurate code descriptions, and it too must be excluded. ................................ 11

II. Summary exhibits aggregating allegedly fraudulent claims with those not alleged to be
fraudulent should be excluded. ........................................................................................... 14

III. “Amounts billed” have far greater prejudicial effect than probative value and should not
be presented to the jury. ...................................................................................................... 19

IV. The Exhibit summarizing Dr. Elfenbein’s tax returns should be excluded. ....................... 23

CONCLUSION ..............................................................................................................................25

CERTIFICATE OF SERVICE ......................................................................................................27

i
MOTION IN LIMINE TO EXCLUDE
GOVERNMENT’S SUMMARY EXHIBITS

Defendant Ron Elfenbein respectfully submits this motion in limine to exclude 26 of the

35 summary exhibits that the government plans to present through two witnesses: Stephen

Quindoza (expert witness) and Marylee Robinson (summary witness).

BACKGROUND

The superseding indictment’s central allegation is that Dr. Elfenbein, through Drs ERgent

Care (“DEC”), the urgent care business of which he was the Medical Director, defrauded health

care benefit programs by seeking reimbursement for Evaluation and Management services—i.e.,

office visits—that were medically unnecessary and did not occur as represented. Superseding

Indictment (ECF No. 29) ¶ 30 (Sup. Ind.). Specifically, the government contends that, from March

2020 through February 2022, Dr. Elfenbein required that providers at his urgent care locations

“bundle” COVID-19 tests with office visits coded as Evaluation and Management services

described as involving “moderate or high levels of medical decision making,” id. ¶ 25–27, 30(e),

which were medically unnecessary and did not involve the moderate or high levels of medical

decision described by the submitted billing codes. Id. ¶ 30.

The government intends to present 35 summary exhibits to the jury through Stephen

Quindoza, the government’s expert witness, and Marylee Robinson, whom the government

characterizes as a summary witness. Ms. Robinson’s exhibits summarize data for all claims

submitted by DEC to all payers, including the government programs and commercial insurers

identified in the superseding indictment; Mr. Quindoza’s exhibits summarize Medicare claims.

Aside from the risk of confusing the jury by “summarizing” data in 35 different ways, some of the

government’s summaries include, or are based on, demonstrably inaccurate descriptions of the

Current Procedural Terminology (“CPT”) codes used in medical billing, and others will mislead

1
and confuse the jury in other ways, all prejudicial to Dr. Elfenbein. Because any probative value

of these inaccurate and misleading summary exhibits is far outweighed by the danger of confusing

the issues, misleading the jury, and unfairly prejudicing Dr. Elfenbein, they must be excluded

under Rule 403 of the Federal Rules of Evidence.1

ARGUMENT

The use of summary exhibits at trial is governed by Federal Rule of Evidence 1006. The

rule allows for the admission of charts “as a surrogate for underlying voluminous records that

would otherwise be admissible into evidence.” United States v. Janati, 374 F.3d 263, 272 (4th Cir.

2004). “To comply with this Rule, . . . a chart summarizing evidence must be an accurate

compilation of the voluminous records sought to be summarized.” Id. (emphasis in original).

As with all evidence, a summary exhibit is not admissible “if its probative value is

substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing

the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative

evidence.” Fed. R. Evid. 403. “[U]nder Rule 403, relevant evidence is inadmissible ‘when there is

a genuine risk that the emotions of a jury will be excited to irrational behavior, and . . . this risk is

disproportionate to the probative value of the offered evidence.” United States v. Martinez, No.

19-4818, 2021 WL 4240378, at *1 (4th Cir. Sept. 17, 2021) (quoting PBM Prods., LLC v. Mead

Johnson & Co., 639 F.3d 111, 124 (4th Cir. 2011)). In weighing possible prejudice, courts should

consider that “[t]he dangers inherent in using a summary witness in a federal criminal prosecution

to support the government’s case-in-chief are plain and are only exacerbated in circumstances . . .

1
To assist the Court in keeping track of the substantial number of summary exhibits and the
multiple grounds on which Dr. Elfenbein objects to them—including objections to some exhibits
on more than one ground—attached as an Addendum is a list of the summary exhibits and the
grounds for their exclusion.

2
where the witness was also testifying in the role of an expert.” United States v. Johnson, 54 F.3d

1150, 1162 (4th Cir. 1995). A summary chart is “misleading,” and thus inadmissible under the

Rule, when it has “the airs of comprehensiveness,” but in fact serves the “hidden” purpose of

“further[ing] the proponent’s theory of the case.” See City of Huntington v. AmerisourceBergen

Drug Corp., Civil Action No. 3:17-01362, 2021 WL 2907893, at *5 (S.D.W. Va. July 9, 2021)

(citing United States v. Oloyede, 933 F.3d 302, 310–11 (4th Cir. 2019)).

The government characterizes the exhibits sponsored by Mr. Quindoza and Ms. Robinson

as “summary exhibits,” and that is what they purport to be: they are “summar[ies] [offered] to

prove the content of voluminous writings . . . that cannot be conveniently examined in court.” Fed.

R. Evid. 1006. They are not “charts and summaries” offered under Rule 611(a) “to facilitate the

presentation and comprehension of evidence already in the record.” Janati, 374 F.3d at 273. But

if they were offered under Rule 611(a)—which would require printing and sending to the jury the

underlying spreadsheets containing tens of thousands of rows of data that are too voluminous to

print and have so many columns that they would be illegible if they were printed—they would be

objectionable for the same reasons. Exhibits may be shown to the jury under Rule 611(a) only

when they are “helpful to the jury” and “serve[] to aid the jury in ascertaining the truth.” Johnson,

54 F.3d at 1158, 1160; see also BP Expl. & Prod. Inc. v. Cashman Equip. Corp., No. H-13-3046,

2016 WL 1387907, at *5 (S.D. Tex. Apr. 8, 2016) (“Federal courts have great discretion in

deciding whether a demonstrative aid will be helpful or will cause confusion or prejudice.”

(emphasis added)). Rule 611(a) exhibits also must satisfy Federal Rule of Evidence 403. Id. at

1159. “A chart [or exhibit] which for any reason presents an unfair [or inaccurate] picture can be

a potent weapon for harm, and permitting the jury to consider it is error.” Mgmt. Sys. Assocs., Inc.

3
v. McDonnell Douglas Corp., 762 F.2d 1161, 1168 (4th Cir. 1985) (quoting United States v.

Conlin, 551 F.2d 534, 538 (2d Cir.1977)) (alterations in original).

Of course, if evidence is not relevant in the first instance, the court need not engage in the

Rule 403 balancing exercise. United States v. Ausby, 436 F. Supp. 3d 134, 156 (D.D.C. 2019)

(excluding evidence that “has no independent probative value and is simply irrelevant”).

For the reasons explained below, many of these exhibits should be excluded in whole or in

part either as irrelevant or under Rule 403 because they are inaccurate, misleading, and

inflammatory.

I. The government’s summary exhibits include inaccurate definitions of the key billing
codes and a misleading analysis that is based on the inaccurate code definitions.

a. Summary exhibits that include inaccurate E/M code descriptions
must be excluded.

Central to this case is whether Dr. Elfenbein knowingly and with intent to defraud caused

the submission of claims for Evaluation and Management (“E/M”) services alongside COVID-19

tests, when the E/M claims were not supported by the services provided by the DEC providers

who saw the patients. The starting point in determining the accuracy of the claims is the definition

of each of the E/M codes at issue—yet eight of the government’s summary exhibits include

definitions that are either wholly inaccurate or so abbreviated as to be misleading. The common

problem in the exhibits’ code descriptions is their emphasis on the time a provider spends during

an office visit. The code descriptions in the exhibits have been rewritten to suggest that use of each

E/M code requires that the provider spent a specified amount of time with the patient, when in fact

the codes may be used without regard to the duration of a visit.

Federal health care programs and commercial insurers require that claims for medical

services be submitted with “CPT” codes—codes maintained by the CPT Editorial Panel and

4
published by the American Medical Association (“AMA”) in its CPT manual.2 At the heart of this

case are the CPT codes used to bill for E/M services provided during office visits. In 2020, the

CPT Manual established five levels of E/M codes for office visits. A code was assigned to each

level, and separate codes applied to office visits with new patients—codes 99201-99205—and

with established visits (99211-99215). To select the appropriate level code, the CPT Manual

instructed that E/M coding descriptions “recognize seven components, six of which are used in

defining the levels of E/M services.” See Ex. A at 6 (2020 CPT Manual excerpt). The six

components were: (1) history; (2) examination; (3) medical decision making; (4) counseling; (5)

coordination of care; and (6) nature of presenting problem. Id. The first three components were

identified as the “key” components for selecting the E/M level, and the next three were

“contributory factors”—although two of the contributory factors, counseling and coordination of

care, were “not required . . . [to] be provided at every patient encounter.” Id. The Manual made

clear that time could not be used to select the E/M level, with one exception. For “visits that consist

predominantly of counseling or coordination of care,” id. at 9, the seventh component—time—

was determinative of the E/M level, id. at 10. Even when time did dictate the E/M level, however,

the 2020 CPT Manual cautioned that “the specific times expressed in the visit code descriptors are

averages and, therefore, represent a range of times that may be higher or lower depending on the

actual clinical circumstances.” Id. at 7.

2
Pursuant to the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”),
Congress required the Secretary of Health and Human Services (HHS) to select code sets for data
elements in health care claims to enable the electronic exchange of health information. See 42
U.S.C. § 1320d-2(c)(1). The Secretary selected the CPT code set and the Health Care Financing
Administration Common Procedure Coding System (“HCPCS”) for health care services. 45 C.F.R.
§§ 162.1002(a)(4) & (c). The codes for the E/M services at issue in this case are CPT codes.

5
For example, the 2020 description for an evaluation of a new patient coded at 99204

included three key components: (1) a comprehensive history; (2) a comprehensive examination;

and (3) medical decision making of moderate complexity. See Ex. A at 12. The description of

99204 included only the “typical” face-to-face time with patients, not a required time. Id. at 12

(“Typically, 45 minutes are spent face-to-face with the patient and/or family.”). More importantly

for the circumstances here, the CPT Manual clearly states that time was not to be considered at all

in selecting the level of E/M services except when “counseling and/or coordination of care

dominate[d] (more than 50%) of the encounter,” id. at 10. If counseling and coordination of care

do not dominate an encounter—as is true in a typical encounter and the patient visits at issue here—

the other factors are determinative. The Manual plainly states, under the heading “Select the

Appropriate Level of E/M Services Based on the Following,” that for visits with new patients, id.

at 10 ¶ 1, and established patients, id. at 10 ¶ 2, the level is determined based on the history,

examination, and medical decision making. Only when counseling and coordination of care

dominate an encounter is time “the key or controlling factor to qualify for a particular level of E/M

Services.”3

The AMA completely revamped the E/M code descriptions and guidance effective January

1, 2021, in the 2021 edition of the CPT Manual.4 The 2021 Manual not only included revised E/M

code descriptions, but it changed the guidance regarding selection of code levels. The Manual

allowed providers—for the first time—to select codes based either on medical decision making or

3
These general rules apply to selection of the level of both new and established patient encounters.
The definition of each level of new patient (99201–99205) and established patient (99211–99215)
encounter includes a “typical” duration. See id. at 11–13.
4
Although the indictment alleges that the scheme to defraud lasted from March, 2020 to
February, 2022, each of the five counts alleges that the scheme was executed by the submission
of a claim in 2021.

6
on time for any visit, without regard to whether it was dominated by counseling and/or

coordination of care. See Ex. B at 7 (2021 CPT Manual excerpt). Critically, though, the Manual

never required that providers select codes based on time. Rather, coding based on time was

permitted as an alternative to coding based on medical decision making, at the provider’s

discretion. See Ex. B at 14 (“Select the appropriate level of E/M services based on the following:

1. The level of the [medical decision making] as defined for each service, or 2. The total time for

E/M services performed on the date of the encounter.”) (emphasis added). For example, code

99204 is described in the 2021 Manual as follows:

Office or other outpatient visit for the evaluation and management
of a new patient, which requires a medically appropriate history
and/or examination and moderate level of medical decision making.

When using time for code selection, 45–59 minutes of total time is
spent on the date of encounter.

Id. at 19 (emphasis added). In other words, in 2021, an encounter coded 99204 should last 45–59

minutes only if the provider chooses to code based on time. The description of each of the other

E/M codes includes the same formulation. Id. at 18–20.

Four of Ms. Robinson’s proposed summary exhibits include inaccurate and misleading

E/M code descriptions. On exhibits titled “Drs ERgent Care Office Visit Procedure Codes (Billed)

March 1, 2020–February 28, 2022” (GX124); “Drs ERgent Care Procedure Codes Billed for

Greater than $1M March 1, 2020–February 28, 2022” (GX129); “Counts 4 and 5,” (GX133); and

“Claim Detail for Select Beneficiaries For Date of Service 4/19/2021 and 4/22/2021,” (GX134),

Ms. Robinson includes the following shortened and misleading code descriptions:

 99204: “New patient office or other outpatient visit, 45-59 minutes.” See Exs. GX124,
GX129, GX133, GX134.

 99214: “Established patient office or other outpatient visit, 30-39 minutes.” Id.

7
 99213: “Established patient office or other outpatient visit, 20-29 minutes.” See Exs.

GX124, GX129.

 99212: “Established patient office or other outpatient visit, 10-19 minutes.” Id.

 99205: “New patient office or other outpatient visit, 60-74 minutes.” Id.

 99203: “New patient office or other outpatient visit, 30-44 minutes.” See Ex. GX124.

 99215: “Established patient office or other outpatient visit, 40-54 minutes.” Id.

 99202: “New patient office or other outpatient visit, total time 15-29 minutes.” Id.

None of these are accurate summaries of either the 2020 or the 2021 E/M codes. As an

initial matter, the time ranges that Ms. Robinson includes in the demonstratives do not appear at

all in the 2020 CPT manual and are thus irrelevant to any claims submitted that year. For example,

a 2020 visit coded 99214 based on time—which was only permissible if counseling and/or

coordination dominated—need not last “30-39 minutes,” as Ms. Robinson’s exhibits suggest. See

GX124, GX129. The only time guideline provided in the 2020 Manual is the “typical[] . . . face-

to-face” time of 25 minutes. See Ex. A at 13. Accordingly, it is simply wrong to assert that the

listed time ranges are included in the code descriptions for the entire two-year period for which

the exhibits purport to summarize data.

Nor do Ms. Robinson’s descriptions accurately reflect the 2021 E/M code guidelines. As

explained above, time dictates the appropriate code only when a provider chooses to code based

on time. Ms. Robinson’s descriptions suggest, for example, that an office visit with an established

patient lasting less than 30 minutes can never be coded at 99214. Not so. Under the 2021 E/M code

descriptions, a provider may code at 99214 (or any other E/M level), without regard to time, when

she conducts an office visit with an established patient that involves “a medically appropriate

history and/or examination and moderate level of medical decision making.” See Ex. B at 19. So

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long as the visit satisfies those requirements, regardless of how long it took, a provider may

appropriately code it as 99214. Ms. Robinson’s truncated descriptions, which reflect only one of a

provider’s two choices about how to code, are thus misleading at best.5

Four of Mr. Quindoza’s proposed summary exhibits include similar errors. Like Ms.

Robinson, he describes various E/M codes using only the time ranges provided in the 2021 CPT

manual. For example, on four of his exhibits, Mr. Quindoza inaccurately describes code 99204 as

“New patient office visit; 45-59 minutes.” See Exs. GX102 (“Medicare Claims Data Summary Drs

Ergent Care”); GX104 (“Medicare Claims Data Summary Drs Ergent Care Location: Earleigh

Heights Volunteer Fire Co”); GX105 (“Medicare Claims Data Summary Drs Ergent Care

Location: FCMCG BWI”); GX106 (“Medicare Claims Data Summary Drs Ergent Care Location:

Odenton Volunteer Fire Department”). Use of these exhibits at trial would leave the jury with the

misimpression that an office visit with a new patient must last 45–59 minutes for a provider to

appropriately code it as 99204 when in fact, a provider could bill a shorter visit as a 99204 if it

involved “a medically appropriate history and/or examination and moderate level of medical

decision making.” See Ex. B at 19.

Indeed, one of Mr. Quindoza’s exhibits lists separately the first three counts, for which

Medicare was the payer, with the inaccurate code descriptions, an especially misleading suggestion

that the claims singled out as those counts of the indictment were false if the visits did not take 45-

59 minutes. See GX102. One of Ms. Robinson’s exhibits similarly lists the remaining two counts,

5
Ms. Robinson’s summary exhibits list “R6388_Medicare.xlsx” as the source for the procedure
code descriptions. See GX124, GX129. This is an Excel file containing three spreadsheets with
Medicare claims data that the government produced in discovery. The source of the code
descriptions is not specified in the spreadsheet, but whatever the source, the three spreadsheets
contain as many as 160 columns and tens of thousands of rows. The use of shortened code
descriptions to fit them in a single column of such a spreadsheet is no justification for their use in
summary exhibits that will mislead the jury.

9
for which CareFirst was the payer, with inaccurate code descriptions that suggest the claims in

those two counts were false if the visits did not take the specified amount of time. See GX133.

Taken together, these two exhibits would mislead the jury concerning all five counts of the

indictment.

Using similar code descriptions—noting that the patient is either “new” or “established,”

followed by a time range—Mr. Quindoza also inaccurately describes codes 99203, 99205, 99213,

99214. See GX104 (inaccurate descriptions of codes 99204, 99205, 99212, and 99214); GX105

(inaccurate descriptions of codes 99203, 99204, 99205, 99213, and 99214).

These misleading descriptions are no small matter. The government will question witnesses

concerning the duration of patient encounters at DEC, as it has done in countless witness

interviews, according to interview memoranda produced in discovery. Such questioning, coupled

with exhibits that incorrectly suggest that the definitions of the applicable CPT codes required that

the encounters lasted specified durations, can only mislead the jury to believe that, for example, a

2021 claim that used the code 99204 for a patient encounter that lasted less than 45 minutes was

false. In fact, the CPT Manual makes clear that use of that code is entirely appropriate for a shorter

visit if there is “a medically appropriate history and/or examination and moderate level of medical

decision making.”

The government is aware of the correct code descriptions and the 2021 changes in the

descriptions. The superseding indictment quotes the descriptions from both 2020 and 2021 for

codes 99204 and 99214. See ¶¶ 26-27. Mr. Quindoza includes longer code descriptions that are

not misleading in one exhibit, which lists Medicare’s reimbursement amount for each code. See

GX118. One non-misleading exhibit, however, cannot cure eight other misleading ones. GX118

10
demonstrates how easily the government could have included the complete and accurate code

descriptions, had it so chosen.

Summary exhibits that present inaccurate information should be excluded, see Janati, 374

F.3d at 272, as should those based on “incorrect premises” or “faulty assumptions,” see Mgmt. Sys.

Assocs., Inc., 762 F.2d at 1176. Accordingly, four of Mr. Quindoza’s exhibits and four of Ms.

Robinson’s exhibits should be excluded based on their inaccurate and misleading E/M code

descriptions. See Addendum.

b. A summary exhibit that assumes Dr. Elfenbein and his providers coded
based on time illustrates the problems that will be caused if the government
is permitted to use inaccurate code descriptions, and it too must be excluded.

The misleading effect of the government’s inaccurate code descriptions is laid bare in Ms.

Robinson’s proposed summary exhibit titled, “Rendering Providers Billed Total Office Visits

Exceeding 24 Hours in a Day,” which must be excluded as misleading and prejudicial. See GX123.

This demonstrative purports to show the number of times Dr. Elfenbein and other providers

submitted claims for office visits occurring on a single day that would have cumulatively taken

longer than 24 hours. Ms. Robinson includes the following examples:

GX123.

11
Of course, 16 days of office visits cannot be completed in 24 hours, and the clear

implication from this exhibit is that most of those claims must have been fraudulent. Ms.

Robinson’s calculations, however, rest on a false premise: that each time Dr. Elfenbein and the

other providers selected an E/M code for an encounter, they represented that the visit took a

specific amount of time. Put differently, the exhibit would be accurate only if the providers were

required to code every office visit based on time.

Ms. Robinson’s sources—three large datasets—provide no support for this incorrect

premise. See GX123 (“Source Files: Drs ERgent Care AR report 2020.csv, Drs ERgent Care AR

report 21.csv, Drs ERgent Care AR report 22.csv”).6 These datasets contain no indication of the

length of the visit, nor do they reveal what coding approach the provider used. Indeed, in small

print at the bottom of the demonstrative, Ms. Robinson notes that “[t]he lower end of the time

ranges were used for each procedure code and connected to the relevant procedure code

description for the service date.” See GX123 (emphasis added). As discussed above, however, in

2020, the duration of an office visit could not be used in selecting the E/M code unless counseling

and/or coordination of care dominated, and in 2021, time determined the E/M code only when the

provider chose to code based on time.7 Moreover, the 2020 CPT manual did not include “time

ranges,” only one “average” time, yet Ms. Robinson’s footnote suggests that she used the 2021

time ranges for 2020 claims. In any event, it is clear that Ms. Robinson assigned each office visit

6
These massive datasets, produced by the government in discovery, include certain data for claims
with dates of service from January 2020 through December 2022.
7
It is also worth noting that the 2020 and 2021 CPT manuals included different definitions of how
to calculate “time” for purposes of coding, in those situations where time was relevant. In 2020,
only “face-to-face” time with the patient and/or family counted. See Ex. A at 8. In 2021, however,
non-face-to-face time, such as time spent “documenting clinical information in the electronic or
other health record, counts as well. See Ex. B at 8.

12
a duration based on the false premise that every visit was coded based on time, and then created

an exhibit illustrating the absurdity of her own premise.

The summary exhibit is grossly misleading. It asserts that—based on E/M code alone—

one can infer the duration of an office visit, even though in 2020 it would have been improper to

code based on time in most cases, and in 2021 it was entirely up to the provider whether to code

based on time or medical decision making. The exhibit title leaves no doubt that the government

intends to argue that on 835 separate occasions, “Rendering Providers Billed Total Office Visits

Exceeding 24 Hours in a Day.” That is flatly inconsistent with the CPT Manual’s code definitions

and guidance. A summary exhibit based on “incorrect premises” and “erroneous assumptions”—

especially ones that go to the “heart” of the issues in the case—must be excluded. See Mgmt. Sys.

Assocs., Inc., 762 F.2d at 1176.

Indeed, the potential for prejudice here is especially clear. The exhibit is intended to be

impactful, and if the government were permitted to show it to the jury, it would be. The exhibit

sets up a straw man argument that the claims can only be accurate if there are 384 hours in a day.

But the exhibit’s premise, that the E/M codes are false unless the visits took the amount of time

that would be applicable if the providers chose to code them based on time—in every instance—

is a fiction—and no revision can make the exhibit accurate. Nothing in the claims suggests, let

alone establishes, that the visits took any particular amount of time. The government cannot

attempt to meet its burden of proof by using Ms. Robinson to present a misleading theory of Dr.

Elfenbein’s guilt based on a false premise masquerading as a “summary”—of hundreds of

thousands of cells of data that are far too voluminous for the jury to evaluate independently. An

exhibit this prejudicial and misleading cannot be shown to the jury.

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II. Summary exhibits aggregating allegedly fraudulent claims with those not alleged to
be fraudulent should be excluded.

The government seeks to introduce several summary exhibits that present aggregate

information about all claims submitted from March 2020 through February 2022, regardless of

their nature. This case concerns allegedly fraudulent claims related to COVID-19. During the

relevant period, however, DEC continued to see patients for reasons wholly unrelated to COVID-

19. The government does not allege fraud with respect to those services. Indeed, the superseding

indictment does not even allege that all COVID-19-related claims were fraudulent. It alleges only

that claims for E/M services in conjunction with COVID-19 tests were fraudulent—and not that it

was improper to submit any claim for E/M services, but only that the wrong E/M code level was

selected for billing. See Sup. Ind. ¶¶ 30–31. There is no allegation that claims for the tests

themselves, for example, were fraudulent. Aggregate numbers that include all claims—both those

the government alleges were fraudulent and those concerning which the government makes no

such allegation—have little, if any, probative value in a case involving only a subset of all the

claims submitted, but they risk confusing the issues and misleading the jury about the universe of

claims alleged to have been part of the scheme. Such a misleading approach would prejudice Dr.

Elfenbein by inflating the number of claims and the dollar amounts that appear to be within the

scope of the alleged fraud.

Several of Ms. Robinson’s summary exhibits and one of Mr. Quindoza’s present such

overinclusive information. The first of Ms. Robinson’s problematic exhibits is “Drs ERgent Care

Claims Submitted March 1, 2020 to February 28, 2022.” See Ex. GX119. Ms. Robinson’s sources,

cited at the bottom of the slide, are the same three datasets employed in most of her other summary

exhibits. See id. (“Source Files: Drs ERgent Care AR report 2020.csv, Drs ERgent Care AR report

21.csv, Drs ERgent Care AR report 22.csv”). These datasets include all claims submitted during

14
the relevant period, not just those the government alleges were fraudulent. The aggregate figures

on the demonstrative are thus inflated and represent significantly more than is at issue in this case.

Indeed, the Superseding Indictment alleges that DEC was paid approximately $10 million on the

allegedly fraudulent claims, see Sup. Ind. ¶ 30(i); Ms. Robinson’s exhibit displays in large font the

“Paid Amount” as $24,009,610, see GX119. The summary serves no permissible purpose; rather,

it presents to the jury totals of more than $78 million billed and $24 million paid for claims but

obscures the fact that most of these claims are not alleged to have been fraudulent. Its effect can

only be to confuse and inflame jurors by presenting large numbers that have no relevance.8

This summary exhibit also presents cumulative information. See Fed. R. Evid. 403.

Another of Ms. Robinson’s exhibits, titled “Drs ERgent Care Procedure Codes Billed for Greater

than $1M March 1, 2020 to February 28, 2022,” contains the same aggregate figures, see GX129,

but in a contextualized and less prejudicial manner. GX129, unlike, GX119, separates out the total

claims by procedure code, making it clear which claims are at issue and which claims are not.

Compare GX119 with GX129.

8
Moreover, the way in which Ms. Robinson’s summary exhibits were presented to the defense
suggests that it will be the first exhibit shown to the jury during Ms. Robinson’s testimony. The
government initially provided the defense with a single PDF, with this as the first page, and on
June 23, 2023 provided its numbered trial exhibits, with GX119 numbered as Ms. Robinson’s first
exhibit.

15
GX119

GX129

Where the government has already separated the relevant claims from the irrelevant ones

and plans to present that information to the jury,9 there is no need for the government to present a

separate exhibit emphasizing an inflated and misleading universe of claims.

Ms. Robinson repeats her aggregation error, to misleading and confusing effect, in two

other summary exhibits. Relying on the same overinclusive datasets, Ms. Robinson sorts claims

by payer type, see GX120, and ranks the “top” providers by billed amount, see GX130. These

exhibits, however, do not control for irrelevant claims, despite the government’s ability to do so.

See, e.g., GX129 (separating claims at issue from claims not at issue). It is more confusing and

9
Dr. Elfenbein objects to GX129 on the separate grounds that it includes “billed amount[s],” see
Part III infra, and because it includes inaccurate E/M code descriptions, see Part I.a. supra. Dr.
Elfenbein does not object to this exhibit on aggregation grounds. See Addendum.

16
misleading than helpful, for example, to present the jury with aggregate figures showing $29

million billed to and $9.5 million paid by commercial insurers when only a subset is alleged to

have been fraudulent. See GX120. The same is true for an exhibit ranking “top providers” based

on an inflated universe of claims. See GX130.

Using a different, but similarly overinclusive dataset comprised of all Medicare claims,

Mr. Quindoza also seeks to present a summary exhibit ranking the “top” providers under the

heading “Top 15 Rendering Providers.” See GX115. This exhibit, too, risks confusing the jury

about the universe of allegedly fraudulent claims, as it suggests that all Medicare claims during

the relevant period are at issue.

Relatedly, another of Ms. Robinson’s summary exhibits aggregates data about claims that

the government does not allege were fraudulent and presents them in a misleading and prejudicial

manner. An exhibit titled, “Drs ERgent Care Office Visits Billed with a COVID Test Same Day

March 1, 2020 to February 28, 2022,” has two components: “Level 4 Office Visit Bundles” at the

top, and “Additional Visit Codes (Within 2-4 Days of Level 4 Bundle)” at the bottom. See GX128.

The top part of this exhibit, concerning “Level 4 Office Visit Bundles,” aggregates the amounts

billed for tests and the amounts billed for office visits (E/M codes) that occurred on the same day

as the tests. It creates the appearance that more than $50 million was billed and more than $15

million was paid for office visits, when in fact those amounts include claims for tests as well as

E/M visits. The government does not, of course, allege that DEC should not have billed for

COVID-19 tests. But the title of the exhibit, “Office Visits Billed with a COVID Test Same Day,”

misleadingly suggests that the data concern office visits that were selected because the patient was

tested on the same day—not that the amounts billed and paid for the tests were included in the

17
totals. And even if the title were changed, the exhibit would remain misleading unless it separated

the amount billed for tests and for E/M visits.10

Moreover, the bottom part of the slide, listing amounts billed and paid for “additional visit

codes,” further inflates the amounts that the slide suggests were fraudulent. In small print at the

bottom of the exhibit, Ms. Robinson notes that “[t]he following procedure codes were included as

additional visit codes: 99212, 99213, 99358, 99423, and 99441.” Id. These E/M codes, however,

do not represent office visits of the type alleged to be fraudulent in this case. See Sup. Ind. ¶ 30(i)

(alleging that Dr. Elfenbein submitted fraudulent claims “for moderate complexity E/M Services

in conjunction with COVID-19 tests”). None of the listed additional visit codes represents office

visits of “moderate complexity,” as defined by the CPT Manuals. See Ex. A at 12–13, 33, 39–40;

Ex. B at 19, 41, 49–51. The government has not charged that claims submitted under these

“additional visit codes” were fraudulent. Ms. Robinson’s display of these irrelevant claims

alongside the “Level 4 Office Visit Bundles”—which are the central claims in this case—

misleadingly suggests that the additional office visit codes were fraudulent. See GX128. Under the

government’s own description of the alleged scheme, however, there is no such connection. Sup.

Ind. ¶¶ 30–31. See United States v. Crinel, Criminal Action No. 15-61, 2017 WL 490635, at *8

(E.D. La. Feb. 7, 2017) (excluding summary exhibit that drew unfair comparison between two sets

of data).

As a whole, GX128 is confusing, misleading, and prejudicial. It aggregates relevant and

irrelevant claims and assigns false significance to claims not alleged to be fraudulent. The top part

of the exhibit invites the jury to draw the inaccurate conclusion that DEC billed more than $50

million for Level 4 office visits alone, when in fact that total includes amounts billed for tests, and

10
Another of Ms. Robinson’s exhibits, GX132, suffers from the same deficiency. See Addendum.

18
the bottom part suggests that the “Additional Visit Codes” were also fraudulent. Far from a

“summary,” the exhibit invites unnecessary and unfair inferences. It should be excluded.

III. “Amounts billed” have far greater prejudicial effect than probative value and
should not be presented to the jury.

Many of Ms. Robinson and Mr. Quindoza’s summary exhibits include a column for the

aggregate “billed amount” for all or a subset of claims. The billed amount, however, is not the

amount DEC was paid on the claims, or expected to be paid. All, or almost all, of the claims at

issue were submitted to payers that reimbursed based on their own fee schedules that set

reimbursement rates in advance. The “sticker price” of a service thus has little meaning to either

the provider or the payer, even it if is listed on a claim for reimbursement. The actual amount that

a provider expects to receive, and the payer expects to pay, is the amount on the payer’s fee

schedule for each CPT code, which for these claims is the “paid” or “allowed” amount—i.e., the

amount that the payer agreed, in advance, to reimburse. See, e.g., GX118 (listing E/M codes

alongside their allowed amounts).

For example, Medicare Part B, HRSA (a federal program that reimbursed providers for

COVID-19-related services provided to uninsured patients), and CareFirst, which collectively

received the majority of DEC claims during the relevant period, reimbursed providers based on

fee schedules. See 42 U.S.C.A. § 1395w-4 (Medicare); Ex. C at p. 4 (2016 CareFirst Participation

Agreement). Medicare’s predetermined reimbursement rates are published annually. See 42

U.S.C.A. § 1395w-4(b); 42 U.S.C.A. § 1395l(a); see also Fee Schedules-General Information,

Centers for Medicare & Medicaid Services, https://www.cms.gov/medicare/medicare-fee-for-

service-payment/feeschedulegeninfo (last visited Jun. 26, 2023) (“This comprehensive listing of

fee maximums is used to reimburse a physician and/or other providers on a fee-for-service basis.”).

Regardless of what is listed on the claim, Medicare will never reimburse at a higher rate than what

19
is published on its fee schedule. See 42 U.S.C.A. § 1395w-4(a). During the relevant period, HRSA

followed the Medicare fee schedule. See Ex. D at 5 (Terms and Conditions for Participation in the

HRSA COVID-19 Claims Reimbursement). CareFirst publishes its reimbursement rates on its own

fee schedule. See Ex. C (2016 CareFirst Participation Agreement) at p. 4.11 The amount listed on

the fee schedule is the “maximum fee allowed.” Id.; see also Provider Portal User’s Guide-Fee

Schedule, CareFirst https://provider.carefirst.com/providers/pop-up/provider-portal-users-guide-

fee-schedules.page (last visited Jun. 26, 2023). Any charge higher than the allowable amount is

irrelevant to the payer.

Rather, the substantial difference between the amounts billed and the amounts paid are a

feature of the way health care is paid for in this country. The universal practice among government

health care programs and commercial health insurers is to reimburse the lesser of the amount

charged and the amount allowed, based on each payer’s fee schedule. See, e.g., See 42 U.S.C.A. §

1395w-4(a). Health care providers cannot change their “sticker prices” depending on a patient’s

insurer—that would raise both practical and legal concerns. Cf. United States ex rel. Schutte v.

SuperValu Inc., 143 S. Ct. 1391, 1398 (2023) (pharmacy discount program that impacted the

“usual and customary” price charged to patients gave rise to False Claims Act claims). As a result,

providers typically list prices high enough to ensure that they will be paid the full amount on each

insurer’s fee schedule. A Johns Hopkins study of amounts charged by more than 400,000

physicians found that median physician charges were 2.5 times higher than the amount paid by

Medicare. See Ex. E (“Variation in the Ratio of Physician Charges to Medicare Payments by

11
“Payment for Complying Physician Services will be made on a fee-for-services basis at the
lesser of the Physician’s usual and customary charge or the maximum fee allowed by Corporation
for such services, less Member copayments, if any. The Fee Schedule may be altered from time to
time, but in any event, not more often than every six (6) months.”

20
Specialty & Region,” JAMA (Jan. 17, 2017, Vol. 317, Number 3)); see also Ex. F (L. Adler, et al.,

“Provider Charges Relative to Medicare rates, 2017-2017,” USC-Brookings Schaeffer on Health

Policy, Dec. 5, 2019). An insurer does not pay any more if the charge is ten times its allowable

charge than if the charge equals the allowable—something that every provider understands.

But individuals who do not work in healthcare do not understand the way providers are

paid for their services. Widely reported cases of surprise bills from out-of-network providers that

burden patients have understandably alarmed the public. See, e.g., Ex. G (H. Meyer, “A surprise-

billing loophole? Her pregnancy led to a six-figure hospital bill,” NPR.org, Feb. 28, 2023); Ex. H

(S. Fiorini, “The High Cost of U.S. Healthcare is on Voters’ Minds,” Gallup, Oct. 20, 2022). To

be sure, in rare circumstances—for claims submitted by out-of-network providers to commercial

payers—the difference between the allowed amount and the billed amount may be charged to a

patient. Importantly, though, none of those circumstances impacted patients seeking COVID-

related services at DEC. See Ex. I (Press Release: Attorney General Frosh Warns Providers

Against Billing Patients for COVID-19 Testing [and related office visits]).12

Presenting the jury with the higher, irrelevant billed amounts risks not only confusing the

issues, but unfairly prejudicing Dr. Elfenbein. The jury may naturally assume that the billed

amount reflects what DEC attempted to recoup from the payers, which is not accurate. Dispelling

12
In March 2020, Congress passed the Families First Coronavirus Repose Act (FFCRA), which
prohibited providers from imposing cost sharing for COVID-19 testing and related office visits.
See FFCRA §§ 6001, 6002, 6003, 6006 (Pub. L. No. 116-127, Mar. 18, 2020); see also Ex. J
(AMA, “Issue brief: Balance billing for COVID-19 testing and care - federal and state
restrictions”). Uninsured patients, who are typically at the highest risk of receiving a balance bill,
were not impacted at all, as the HRSA Uninsured program specifically prohibited balance billing.
See Ex. D at 5 (Terms and Conditions for Participation in the HRSA COVID-19 Claims
Reimbursement). Moreover, even outside of the COVID-19 context, providers like DEC that
participate in Medicare and accept assignment agree to accept the Medicare fee as payment in full
and are therefore prohibited from balance billing. See Ex. K (“Does your provider accept Medicare
as full payment?” Medicare.gov).

21
this misimpression would require testimony and evidence on the intricacies of cost sharing, which

is confusing and—at best—of marginal relevance. Cf. United States v. Cooper, 286 F. Supp. 2d

1283, 1290 (D. Kan. 2003) (“[T]he potential for jury confusion is enhanced when [issues extrinsic

to the allegedly fraudulent scheme] are added to an already overflowing pot of wide-ranging

allegations of Medicare fraud and business improprieties and of the arguably complex issues

involving Medicare billing and related rules and regulations.”); United States ex rel. Bahnsen v.

Bos. Scientific Neuromodulation Corp., Civil Action No. 11-1210, 2017 WL 6402633, at *4

(D.N.J. Dec. 15, 2017) (excluding “tangentially relevant” evidence that could lead the jury to draw

a “reasonabl[e] (though improper[]) ”conclusion about the interplay of Medicare requirements and

FDA approval).

Even worse, the jury may conclude that the difference between the “billed” and “paid”

amounts was borne by patients. As explained above, this did not happen. And even if it had, Dr.

Elfenbein is charged with defrauding health care benefit programs—i.e., the payers. The most

these payers could have been defrauded on any given claim was the allowed amount. Any marginal

probative value in showing the jury what may have been charged to patients—or, in this case, was

not charged to patients—is vastly outweighed by the potential for inflaming the jury. See Virginia

Vermiculite, Ltd. v. W.R. Grace & Co.-Conn., No. CIV.A. 3:95CV00015, 2000 WL 1456338, at

*2 (W.D. Va. Aug. 14, 2000) (excluding exhibits on asbestos contamination because “[h]ealth

hazards are not at issue in this case, and using the evidence in this manner only would serve to

inflame the passions of the jury, and to confuse the issues”).

The government is well aware of the relevant amounts—the allowed or paid amounts.

Indeed, all but four proposed summary exhibits that include the aggregate billed amounts for large

22
groups of claims also includes the paid amount.13 The only conceivable reason for the government

to want the jury to see the aggregate billed amounts for all claims or a large subset of claims as

well is to inflame the jury with the highest dollar amounts possible. It would be unnecessary and

prejudicial for the government to show the jury the higher aggregate billed amounts, as they have

no bearing on the actual amounts obtained—or even sought—though allegedly fraudulent means.

Accordingly, 10 of Ms. Robinson’s summary exhibits, see GX119, GX120, GX122, GX124,

GX127, GX128, GX129, GX130, GX131, GX132, and 11 of Mr. Quindoza’s, see GX101, GX103,

GX104, GX105, GX106, GX110, GX111, GX112, GX113, GX114, GX115, cannot be shown to

the jury unless the billed amounts are deleted.

IV. The Exhibit summarizing Dr. Elfenbein’s tax returns should be excluded.

Through Ms. Robinson, the government seeks to introduce an exhibit that purports to

summarize Dr. Elfenbein’s tax returns. See Ex. GX135. This “summary,” which compares four

years of Dr. Elfenbein’s income, is inflammatory and of marginal relevance. See Fed. R. Evid.

403. The exhibit shows a rise in Dr. Elfenbein’s income from 2019 to 2020, and a steep rise from

2020 to 2021. It is not contested in this case, however, that DEC—and thus Dr. Elfenbein—saw

increased profits during 2020 and 2021. Unsurprisingly, in a community reeling from a global

pandemic, the services of urgent care centers were in higher demand. The income produced by any

urgent care center that expanded its testing capacity, even opening new locations to fill the dire

public health need that the government was unable to meet, would have increased its profits, and

13
Two of Ms. Robinson’s proposed summary exhibits that aggregate large groups of claims
include only the billed amount. See Exs. GX127, GX132. Of those four, one, GX127, is a
companion to GX126, which presents the same information in the same form but uses the paid
rather than the billed amount. The difference between those two exhibits illustrates the prejudice
of using billed amounts. For level 4 office visits for which there was a COVID-19 test on the same
day, the alleged amount billed was roughly $52 million, see GX127, but the amount paid was only
$15 million.

23
the income of its owners would likewise have increased even if its billing practices were

unassailable.

In the context of this healthcare fraud prosecution, however, presenting the jury with these

rising income figures would be inflammatory. The jury may infer that Dr. Elfenbein’s increased

profits can be tied entirely to the alleged fraud. That is flatly untrue. The government does not

contend that all (or even most) of Dr. Elfenbein’s earnings during the relevant period were obtained

fraudulently. Suggesting otherwise to the jury is misleading and prejudicial. Cf. United States v.

Jackson-Randolph, 282 F.3d 369, 378 (6th Cir. 2002) (“The problem with a general rule of

permitting evidence of an affluent lifestyle to show ‘motive’ for committing a crime is that it

ignores the real possibility that the extreme or extravagant wealth or spending was made possible

by legitimate means and, if so, the introduction of such evidence would appeal solely to class

prejudice.”).

Moreover, absent relevant context, the comparison between Dr. Elfenbein’s pre-2020 and

2020-2021 income is neither fair nor useful. His pre-2020 business income, unlike his business

income in 2020-2021, was reduced by startup expenses for DEC. In addition, as the government

is aware, DEC merged with a larger urgent care company in early 2020. A comparison of Dr.

Elfenbein’s income in the two years before the merger and the two years after is thus a comparison

between apples and oranges. See Crinel, 2017 WL 490635, at *8 (chart comparing raw numbers

of provider referrals across “ostensibly” equal periods of time was inadmissible because referrals

did not start until partway through the earlier period, rendering the comparison misleading).

The summary of Dr. Elfenbein’s tax returns suffers from an additional problem. It is

presented as a bar chart that shows his total income from wages and his total “business and

partnership income.” It therefore includes income from his practice as an emergency medicine

24
physician, which surely has no relevance, and income from other entities engaged in real estate

and other businesses that were unrelated to DEC. But the exhibit aggregates all Dr. Elfenbein’s

business and partnership income, making it impossible to determine how much of his income was

from DEC.14

As with the government’s efforts to display “amounts billed” alongside or instead of the

actual amounts paid, the government’s efforts to inflame the jury with Dr. Elfenbein’s

decontextualized income figures should be rejected.

CONCLUSION

In total, 26 of the government’s 35 proposed summary exhibits must be excluded, or in

some cases substantially revised. See Addendum. Many exhibits emphasize the time element of

CPT coding in a way that is misleading in some cases and wholly incorrect in others. Other exhibits

are confusing and misleading as to the universe of relevant claims in this case. And more than half

of the exhibits use irrelevant and inflammatory “billed amounts” despite the government’s

knowledge of the actual amounts at issue.

The government’s exhibits are all the more problematic because they are presented as

summaries, and in the case of Mr. Quindoza’s exhibits, explicitly labeled as summaries. A Rule

1006 exhibit “must be an objectively accurate summarization of the underlying documents, not a

skewed selection of some of the documents to further the proponent’s theory of the case.” United

States v. Oloyede, 933 F.3d 302, 310–11 (4th Cir. 2019) (emphasis in original). Even under Rule

611(a), which allows for summaries that “facilitate the presentation and comprehension of

evidence already in the record,” id. at 311, most of Ms. Robinson and Mr. Quindoza’s exhibits do

14
The government produced this exhibit Friday afternoon, June 23. Defense counsel have had one
business day to review it, and we have not yet determined whether it is accurate, even taking it on
its own terms. Dr. Elfenbein therefore reserves the right to object to the exhibit on other grounds.

25
not pass muster. “The dangers inherent in using a summary witness in a federal criminal

prosecution to support the government’s case-in-chief are plain and are only exacerbated in

circumstances . . . where the witness [is] also testifying in the role of an expert.” United States v.

Johnson, 54 F.3d 1150, 1162 (4th Cir. 1995). For the reasons explained above, Dr. Elfenbein

respectfully requests that the summary exhibits listed in the Addendum be excluded in their current

form.

June 26, 2023 Respectfully submitted,
Baltimore, MD

/s/ Martin S. Himeles, Jr.
Martin S. Himeles, Jr. (Bar No. 03430)
Gregg L. Bernstein (Bar No. 01340)
Samantha A. Miller (Bar No. 21374)
ZUCKERMAN SPAEDER LLP
100 East Pratt Street - Suite 2440
Baltimore, MD 21202-1031
Tel. No: (410) 332-0444
Fax No: (410) 659-0436
mhimeles@zuckerman.com
gbernstein@zuckerman.com
samiller@zuckerman.com

Counsel for Defendant Ron Elfenbein

26
CERTIFICATE OF SERVICE

I certify that on this 26th day of June 2023, a copy of the foregoing was served via

electronic mail to:

Matthew Phelps
Assistant United States Attorney
Office of the U.S. Attorney
36 S. Charles Street – 4th Floor
Baltimore, MD 21201
Matthew.Phelps@usdoj.gov

D. Keith Closer, Trial Attorney
U.S. Department of Justice
1400 New York Avenue, N.W. – 8th Floor
Washington, D.C. 20005
keith.clouser@usdoj.gov

/s/ Martin S. Himeles, Jr.
Martin S. Himeles, Jr.

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