## Facts

- Dr. A. Alvin Greber, an osteopathic physician and cardiologist, was president of Cardio-Med, Inc., which provided diagnostic cardiac services, including Holter monitoring.
- Cardio-Med billed Medicare for Holter-monitor services and, after receiving Medicare payments, paid a portion to referring physicians.
- The government’s evidence described the payments as approximately 40% of the Medicare payment, capped at $65 per patient.
- The government alleged these payments constituted unlawful remuneration to induce referrals under the Medicare anti-kickback statute.
- Greber was also charged with submitting Medicare claim forms stating Holter monitors were operated “for eight hours or more” when they were used for less time, despite Medicare requiring at least eight hours for reimbursement.
- Additional charges alleged Cardio-Med billed Medicare for medically unnecessary monitoring and used the mails to execute the billing scheme.

## Issues

1. Whether payments to referring physicians violate the Medicare anti-kickback statute when they are partly compensation for services but also intended to induce future referrals.
2. Whether materiality is an element of 18 U.S.C. § 1001 and, if so, whether materiality is decided by the judge or the jury.
3. Whether the district court committed reversible error in evidentiary rulings and in declining to conduct a hearing concerning an alleged witness remark to jurors.

## Decision

- The Third Circuit affirmed Greber’s convictions, including anti-kickback, false statement, and mail fraud counts.
- The court held the anti-kickback statute is violated if one purpose of the payment is to induce future referrals, even if another purpose is to pay for professional services.
- The court held materiality is an essential element of a § 1001 offense and is a question of law for the trial judge.
- The court rejected challenges to trial management, including the claim that a hearing was required regarding an alleged remark to jurors, finding no showing of impropriety or prejudice.

## Legal Principles

- Under the federal Medicare anti-kickback statute, a payment violates the statute if one purpose is to induce Medicare-reimbursable referrals, even when the payment also compensates for legitimate services.
- “Remuneration” in the anti-kickback statute is construed broadly to reach payments that can corrupt medical decision-making through financial incentives.
- For 18 U.S.C. § 1001, materiality is an element requiring that the false statement have a natural tendency to influence, or be capable of influencing, a federal agency decision.
- In this circuit’s approach at the time, § 1001 materiality is decided by the court as a matter of law rather than submitted to the jury.

## Conclusion

The court upheld convictions arising from a Medicare billing and referral-fee scheme, concluding that mixed-motive payments are criminal kickbacks when inducing referrals is even one purpose, and that § 1001 prosecutions require materiality determined by the trial judge.


United States v. Greber, 760 F.2d 68 (3d Cir. 1985)