Full opinion text
MEMORANDUM OPINION AND ORDER SCHENKIER, United States Magistrate Judge. On August 15, 2000, the Government filed this action alleging that the defendant, Krishnaswami Sriram (“Dr.Sriram”), fraudulently obtained at least $1,224,154.25 in Medicare payments. The Government asserted claims for civil penalties and treble damages under the False Claims Act, 31 U.S.C. § 3729 (Counts II and III), as well as damage claims under common law theories of mispayment by mistake of fact (Count IV), unjust enrichment (Count V), and fraud (Count VI). In addition, the complaint asserted a claim for injunctive relief under 18 U.S.C. § 1345, asking that the Court enjoin the alleged fraudulent activity by Dr. Sriram and freeze “assets that are the product of, or profit on the product of, his fraud” (Comply 47) (Count I). With the complaint, the Government filed an ex parte motion for temporary restraining order, preliminary injunction and other equitable relief. On August 16, 2000, the district judge issued a temporary restraining order barring Dr. Sriram from engaging in future fraudulent activity, and requiring him to maintain and not to dispose of certain documents and records. That order also froze various assets of Dr. Sriram, including four bank accounts and three pieces of real estate which had a collective value in excess of $4 million. By its terms, the initial temporary restraining order was due to expire on August 30, 2000. At the time of the entry of the temporary restraining order, the district judge also referred the matter to this Court for a hearing on the Government’s motion for preliminary injunction. Thereafter, as a result of a limited consent signed by all parties, the matter was reassigned to this Court pursuant to 28 U.S.C. § 636(c) and Local Rule 73.1 for final ruling on any requested extensions of the temporary restraining order and on the motion for preliminary injunction (doc. ## 7-9); since that time, the parties have generally consented to the jurisdiction of this Court for all purposes (doc. ## 33-35). By agreement of the parties, the temporary restraining order, with some modification, was extended five times: on August 23, 2000 (doc. # 10), September 13, 2000 (doc. # 11), October 12, 2000 (doc. # 12), November 30, 2000 (doc. # 15), and January 19, 2001 (doc. # 32). The temporary restraining order currently in effect is due to expire on February 14, 2001. During the several months that the restraining order has been in effect, several events of significance to this case have occurred. First, pursuant to agreement between the parties, the specific bank accounts and property subject to the restraining order have been narrowed to three: (1) a certificate of deposit with a value of some $3.3 million, held in Account Number 7000017538 (“Account 7538”) at the Lake Forest Bank & Trust; (2) real estate and improvements located at 611 Hunter Lane in Lake Forest, Illinois; and (3) real estate and improvements located at 715 East Falcon Drive in Arlington Heights, Illinois. Other accounts originally frozen have been released for Dr. Sri-ram’s use; in addition, there have been some withdrawals of money from Account 7538 for use by Dr. Sriram in paying legal fees and other expenses. Second, criminal charges have been filed against Dr. Sri-ram. On November 2, 2000, the Government filed a criminal complaint against Dr. Sriram and, on November 30, 2000, a grand jury returned an indictment against Dr. Sriram for ten violations of the mail fraud statute, 18 U.S.C. § 1341, and ten violations of the health care fraud statute, 18 U.S.C. § 1347. The indictment also asserts a claim under 18 U.S.C. § 982 for criminal forfeiture of certain assets, including Account 7538 and the two items of real estate and improvements that remain frozen under the current restraining order. Third, on December 15, 2000, the Government filed an amended complaint in this case which asserts the same causes of action as in the original complaint, but increases the claim of a loss to the Government from Dr. Sriram’s alleged fraud from $1.2 million to an amount no less than $1,651,527.05 (Am.Compl.fl 52). Presently pending before the Court are two motions. The Government has moved for a preliminary injunction (doc. # 1-2), seeking to continue (1) the prohibition against submitting false claims; (2) the requirement to preserve and not to dispose of certain documents and records; and (3) the freeze on Account 7538 and the Lake Forest and Arlington Heights real estate and improvements. The Government argues that under 28 U.S.C. § 1345, it is entitled to a preliminary injunction freezing assets sufficient to guarantee, as far as possible, that the Government will be able to collect on the civil judgment it believes it will obtain. The Government further argues that it is likely to prove at trial that Dr. Sriram fraudulently obtained at least $1.6 million in Medicare payments, and that under the False Claims Act, 31 U.S.C. § 3729, the Government will be entitled to an automatic tripling of that amount plus an additional sum of at least $5 million in civil penalties. For his part, Dr. Sriram, disputes that the Government is likely to prove that any fraud occurred, or that the amount of the alleged fraud is $1.6 million. Moreover, Dr. Sriram argues that under Section 1345 only the amount shown to be traceable to the alleged fraud may be frozen, and that Section 1345 does not authorize the Court to freeze assets to secure a trebled damage award or penalties that may be imposed. Thus, Dr. Sriram has moved to release assets that exceed any amount that the Government might demonstrate it is likely to show was fraudulently obtained; in the alternative, if the assets currently under the restraining order remain frozen, Dr. Sriram requests the release of sufficient funds to cover monthly living expenses and payments for defense costs. On January 16-18, 2001 the Court conducted an evidentiary hearing on the Government’s motion for preliminary injunction. At that hearing, the Government called nine witnesses: Kathy Barbour, an FBI agent; Katherine Huber, an IRS agent; Drs. Anshu Gupta, John Haebich, and Ameeruddin Syed, all of whom practiced medicine for Home Doctors, an entity established by Dr. Sriram; Peter Theiler, an investigator with Wisconsin Physicians Services (“WPS”), an entity involved in providing Medicare reimbursement to doctors; Dr. Stephen Boren, who reviews claims for WPS; Lisa Suarez, who was employed by Dr. Sriram at various times in 1998 and 1999; Dr. Sriram’s wife, Raji Sriram, whom the Government allege was involved in submitting billing claims for services allegedly provided to Medicare recipients; and Dr. Sriram himself. However, through the assertion of the spousal testimony privilege and her own Fifth Amendment privilege against self-incrimination, Ms. Sriram supplied no substantive testimony concerning either the billing practices of Dr. Sriram or their sources of income. In addition, the Government called Dr. Sriram, who declined to answer any substantive questions based on his assertion of the Fifth Amendment. Dr. Sriram called no witnesses to testify in his behalf at the hearing. The Court has received legal memoran-da from the parties on the Government’s motion for preliminary injunction, and on the defendant’s assertion that Section 1345 does not allow the freezing of assets based on treble damages and possible penalties under 31 U.S.C. § 3729. On January 18, 2000, the Court also heard oral argument from the attorneys. Based on the Court’s review of the evi-dentiary record and the applicable legal authorities, the Court finds that the Government has established an entitlement to a preliminary injunction under 18 U.S.C. § 1345 prohibiting Dr. Sriram from submitting false Medicare claims, requiring him to preserve and not to discard certain documents and records, and freezing certain of his assets. However, the Court further finds under Section 1345, the amount of assets that can be frozen is limited to the amount that the Government has established it is likely to prove were traceable to the alleged criminal Medicare fraud — $1,651,527.05. The Court finds that Section 1345 does not empower courts to increase the amounts frozen to secure the collectibility of treble damages or penalties. The Court sets forth below the findings of fact and conclusions of law that constitute the grounds for granting the Government’s request for preliminary injunction. To the extent that any finding of fact constitutes a conclusion of law, the Court hereby adopts it as such, and to the extent that any conclusion of law constitutes a finding of fact, the Court adopts it as such. See Miller v. Fenton, 474 U.S. 104, 113-14, 106 S.Ct. 445, 88 L.Ed.2d 405 (1985). I. A. The Parties. 1. Plaintiff, the United States, is suing on behalf of the Department of Health and Human Services (“HHS”), which administers the Medicare program. 2. Dr. Sriram is a domiciliary of the State of Illinois and resides at 611 Hunter Lane, Lake Forest, Illinois. Dr. Sriram is licensed to practice medicine, and at all times relevant to this action, Dr. Sriram has provided physician services to Medicare beneficiaries. B. Operation of the Medicare Program. 3. Medicare is a program administered by HHS that provides health insurance for persons aged 65 and older, certain younger people with disabilities, and people with end-stage renal disease. Medicare has two parts: Part A (Hospital Insurance) and Part B (Medical Insurance). Medicare Part A helps pay for hospitalization costs, services rendered by skilled nursing facilities, home health and hospice care. Medicare Part B helps pay for physician services, outpatient hospital care and other medical services such as physical and occupational therapy. 4. HHS has delegated the administration of the Medicare program to one of its agencies, the Health Care Financing Administration (“HCFA”). In Illinois, HCFA contracts with Wisconsin Physicians Service (“WPS”) to process Medicare Part B claims submitted for physicians’ services. 5. Physicians who provide medical services to Medicare recipients are eligible to receive payment for covered medical services under the provisions of Title XVIII of the 1965 Amendments to the federal Social Security Act. A physician may submit a “Standard Application For Medicare Part B Provider Number” and enroll as a provider in the Medicare program as either a solo practitioner or as a member of a group practice (Am.Compl^ 16). Those who become participating providers in the Medicare Program agree to abide by the rules, regulations, policies and procedures governing claims for payment, and to keep and allow access to records and information as required by Medicare. In order to receive Medicare funds, enrolled providers are required to abide by all the provisions of the Social Security Act and all applicable policies and procedures issued by HCFA. 6. All physicians, practitioners and suppliers who provide services or items to Medicare beneficiaries must have a Medicare provider number (“PIN number”) before their claims for payment can be processed (Am.ComplA 15). A PIN number is unique to the doctor to whom it is assigned; a PIN number cannot be reassigned to another doctor (Theiler Tr.121-22). 7. Once a physician receives a PIN number and begins providing services, the physician bills for those services by using Form HCFA-1500 (an example is set forth in GX 6). This standard form contains several “fields” in which a provider designates, among other information, the name and home address of the recipient of the Medicare services for whom payment is being claimed; the name and PIN number of the physician rendering the service; the dates on which a physician rendered the service for which the bill is being submitted to Medicare; and a code designating the type of service for which the physician is billing Medicare. Providing the correct patient address is important because when a claim for payment is made by the physician, the patient who allegedly received the medical services is sent an Explanation of Benefits (“EOB”). Patients who believe they did not receive the services claimed by the physician are invited to report this information by using a “hotline” number provided by the Medicare program. 8. The amount Medicare pays for a service rendered by a physician is based upon the code the physician identifies in the claim for payment. HCFA contracts with AdminaStar Federal to define national correct coding practices for payment of Medicare claims, using the American Medical Association (“AMA”) Physicians’ Current Procedural Terminology (“CPT”) system (GX 1). The CPT is a listing of descriptive terms and identifying codes for reporting medical services and procedures performed by physicians. CPT is the most widely accepted nomenclature for the reporting of physician procedures and services under government and private health insurance programs. 9. CPT codes 99201 through 99499 are used by a physician to report evaluation and management (“E/M”) services. In the CPT Manual, the E/M section is divided into broad categories such as office visits, hospital visits and consultations. The subcategories of E/M services are further classified into specific codes. According to the CPT Manual, this classification is important because the nature of physician work varies by type of service, place of service, and the patient’s status. 10. The CPT Manual states that a physician must perform the elements of patient service outlined in the description of a CPT in order to be entitled to claim payment under that code. Included in the description of most CPT codes is the level of severity of the patient’s presenting problems. Codes designated by numbers at the higher end of the scale provide greater monetary payment than codes designated by numbers at the lower end of the scale (e.g., a doctor making a home visit under a 99345 CPT code is paid more than a doctor making a home visit under a 99343 code). This is, in part, because the services described at the higher codes require more intense levels care by the physician (Boren Tr. 635). C. CPT Code Time Parameters. 11. Incorporated into many of the E/M CPT codes are time parameters established by the AMA. The “inclusion of time as an explicit factor beginning in CPT 1992 is done to assist physicians in selecting the most appropriate level of E/M services” (GX 1, at 4). The time parameters were established based on AMA “surveys of practicing physicians to obtain data on the amount of time and work associated with typical E/M services” (Id.). The AMA studies found that “intraservice time” (that is, time spent face to face with a patient, excluding time spent reviewing records and communicating with the patient or other professionals by telephone) “is predictive of the ‘work’ of E/M services” (Id.). The times listed reflect the amount of time typically necessary to provide the services described in each CPT code, as reported by the physician surveys. 12. Although there is no evidence of how (or if) those surveys were conducted in a manner designed to ensure the statistical accuracy of the times listed, the unre-butted testimony indicates that the CPT times are very close to the average or expected amount of time needed to provide the services designated in each code. For example, Dr. Stephen Boren, the Medical Director of WPS, testified that the CPT codes approximate the time needed to perform the services described by each code. Although Dr. Boren admitted that a particular service described by a particular code could take somewhat more or less time than the time listed in the code, he also stated that the CPT times would be “typical” time frames representing a “good average” (Boren Tr. 617-18, 631; see also Theiler Tr. 52). Moreover, Dr. Boren, who frequently deals with physicians in connection with their use of CPT codes, reports that no doctors have complained that the times listed in the codes are inaccurate, either at the high or the low end (Boren Tr. 627). 13. Dr. Boren testified that in choosing a code, a doctor focuses on the components of the service, not the time listed in the CPT code (Boren Tr. 620-27); see also Theiler Tr. 52, 119-20 (time is used by providers to help them choose codes, but it is not the key to selection of a code). Instead, a doctor chooses a CPT code based on the history, examination and decision making involved in the services provided to the patient (Boren Tr. 617). Nonetheless, the AMA specifically states that although time is not a descriptive component for the types of services provided, the ranges of time for each service listed in the CPT codes provide “a valid proxy for the total work done before, during, and after the visit” (GX 1, at 4). The AMA’s finding was supported at the hearing by Dr. Boren’s testimony. Dr. Boren stated that if a physician was repeatedly billing for the highest CPT code, Code No. 99345, which states 75 minutes as the typical amount of time a doctor would spend with a patient “face to face” in delivering the services identified in that code, then he would find it difficult to believe that this physician 'was repeatedly able to accomplish all of these elements of treatment in only 20 minutes of face-to-face time with patients (Boren Tr. 632). In other words, Dr. Boren testified that if a physician was consistently taking substantially less time than indicated by the applicable CPT code, then the physician probably was not doing all of the work necessary to justify the use of that code. 14.Defendant offered no evidence to rebut the AMA’s own description of the time required to provide services identified in the CPT codes, or the testimony by Dr. Boren and Mr. Theiler that those time parameters represent the time a doctor typically would spend delivering the services required to bill for payment under that code. The Court finds the Government’s evidence credible concerning the significance of the time parameters in reflecting the amount of time typically necessary to perform the services specified by a particular CPT code. D. Dr. Sriram’s Applications For PIN Numbers. 15. On November 11, 1995, Dr. Sriram submitted 50 standard applications for Medicare Part B PIN numbers, requesting approval to become a participating Medicare provider at 50 separate hospitals in Chicago and the surrounding area. In each of the applications, Dr. Sriram applied as a solo practitioner. On each application, Dr. Sriram stated that the check and remittance notice should be sent to him at 715 East Falcon Drive, Arlington Heights, Illinois 60005, a residence Dr. Sriram still owns. Dr. Sriram obtained at least 23 PIN numbers in this manner. 16. One of the 23 PIN numbers obtained was in connection with an application for a Medicare Part B PIN number which listed the individual/practice address of Edgewater Hospital, Suite C41, 5720 North Ashland Avenue, Chicago, Illinois. Dr. Sriram completed this application as a solo practitioner and specifically noted on his application, “SOLO-NOT JOINING A GROUP.” As a result of this application, Dr. Sriram was assigned Medicare PIN number 371772. 17. Another one of the 23 PIN numbers obtained in late 1995 was in connection with an application for a Medicare Part B PIN number which listed the individual/practice address of Edward Hospital, 801 South Washington Street, Naper-ville, Illinois. Dr. Sriram completed this application as a solo practitioner and specifically noted on his application, “SOLO-NOT JOINING A GROUP.” As a result of this application, Dr. Sriram was assigned Medicare PIN number 371774. 18. Dr. Sriram later submitted a request to terminate the other 21 PIN numbers obtained through the 1995 applications. That request was granted, and Dr. Sriram did not use those other 21 PIN numbers for Medicare billing. 19. On or around March 1, 1996, Dr. Sriram submitted an application for a Medicare Part B PIN number as part of the group practice Mobile Doctors Management, LLC, 15800 West McNichols, Detroit, Michigan. As a result of that application, Dr. Sriram was assigned Medicare PIN number 378425. Medicare payments under this PIN number were remitted to Mobile Doctors Management, LLC. 20. On or about January 2, 1998, Home Doctors, 5720 North Ashland Avenue, Suite C41, Chicago, Illinois submitted a Medicare health care provider enrollment application. In the application, Dr. Sriram is listed as the owner and contact person. The application requested that Medicare payments for Home Doctors be directed to 611 Hunter Lane, Lake Forest, Illinois, where Dr. Sriram resides. As a result of that application, Home Doctors was assigned Medicare PIN number 437220. Medicare payments under this PIN number were made to the Home Doctors group. In a letter dated March 12, 1998, Dr. Sriram submitted a written request to terminate his Medicare PIN number 378425, which he had used for his work with Mobile Doctors. 21. On or about January 2, 1998, a Medicare health care provider enrollment application for an individual group member was submitted by Dr. Sriram. In the application, Dr. Sriram identified himself as a member of Home Doctors. As a result of that application, Dr. Sriram was assigned Medicare PIN number L63960 to use for claiming payment for Medicare services he delivered under the auspices of Home Doctors. Medicare payments under this PIN number were made to Home Doctors, which is owned by Dr. Sriram. In addition, at various times Dr. Sriram obtained provider numbers for a number of additional physicians to provide services for Home Doctors: Ramesh Bhatia (PIN number L67633); James Caruso (PIN number L68431); Jalal Dahshe (PIN number L78923); Anshu Gupta (PIN number L69588); John Haebich (PIN number L64854); Inderjote Kathuria (PIN number L72294); Chung Song (PIN number L77555) and Ameeruddin Syed (PIN number L63961). The effective date of the Home Doctors’ PIN number for each of those physicians was January 2, 1998, except for Dr. Song, whose provider number became effective on October 1,1998. 22. The applications Dr. Sriram submitted for Medicare PIN numbers for Home Doctors as a group and for himself as a member of the group contain a section titled “Penalties for falsifying information on the Medicare Health Care Provider/Supplier Enrollment Application.” The applications also include a certification section in which Dr. Sriram indicated that he “understands that any omission, misrepresentation or falsification of any information contained in this application or contained in any communication supplying information to Medicare to complete or clarify this application may be punishable by criminal, civil, or other administrative actions.... ” (GX 19C: Medicare Health Care Provider Enrollment Application for Individual Group Member). E. Dr. Sriram’s Submission of Medicare Claims. 23. Dr. Sriram began to submit Medicare claims electronically to the Medicare Part B contractor in 1996. Since that time, Dr. Sriram has submitted claims to Medicare for physician services under his individual Medicare PIN numbers 371772 and 371774; L63960, his PIN number under Home Doctors; and L63961, L64854 and L69588, the PIN numbers of Drs. Gupta, Haebich and Syed. 24. To submit claims in an electronic medium, a provider must sign an Agreement of Physician/Supplier Regarding Automated Billing. In the Agreement, the provider acknowledges “that submission of a Medicare electronic medium claim is a claim for Medicare payment and that anyone who misrepresents or falsifies any record or other information essential to that claim, or that is required pursuant to this Agreement may, upon conviction, be subject to fine and imprisonment under Federal law” (see Am. Compl. ¶ 28). The evidence shows that Dr. Sriram did not use a professional billing service to submit Medicare claims (see, e.g., Suarez Tr. 151-52; 185); the claims made under Dr. Sriram’s PIN numbers or those of Drs. Gupta, Hae-bich and Syed were prepared and submitted by Dr. Sriram or under his direction. 25. Dr. Sriram has billed Medicare for at least $13,704,688.12 for services that he or doctors working for him allegedly have rendered between October 1995 and August 2000. It is undisputed that Medicare has paid Dr. Sriram at least $3,722,652.37 for those claimed services, under the following PIN numbers covering the following dates that the services allegedly were delivered to patients (Am Compl. ¶ 31): Provider No. Dates of Service Paid by Medicare 371772 10/11/95-01/06/00 $1,276,383.91 371774 11/28/95-10/22/99 $ 666,292.85 L63960 (Sriram/Home Doctors) 01/01/98-08/14/00 $1,160,862.84 L63961 (Syed/Home Doctors) 01/02/98-03/24/00 $ 235,104.97 L64854 (Haebich/Home Doctors) 01/02/98-04/21/00 $' 335,114.20 L69588 (Gupta/Home Doctors) 01/02/98-08/02/99 $ 48,893.60 26. The evidence further shows that during the period 1996 through 1999, Dr. Sriram received $3,755,943.95 in payments from Medicare, Medicaid and insurance or other services. Of that sum, $2,734,188.00 (72.8 percent) came from Medicare payments (GX 8F). For purposes of the hearing, the defense stipulated that it would not challenge the Government’s contention (if fraud were proven) that those funds came from Medicare payments (Hueber Tr. 223-24). There also is no dispute that Dr. Sriram possesses substantial assets: $3.3 million in Account 7538, the Arlington Heights and Lake Forest properties (free of any mortgages), and real estate in New York. 27. The Government offered credible evidence at the hearing of a number of serious irregularities in Dr. Sriram’s billing that the Court finds, both individually and taken together, make it likely that the Government will prove that a large number of fraudulent claims were submitted by Dr. Sriram, and that as a result he received a large amount of Medicare payments to which he was not entitled. We address that evidence in Sections F through L, below. F. Claims for More Than 10 Hours in a Day. 28. Using the time parameters set forth in the CPT codes, the Government offered sufficient credible evidence to show that Dr. Sriram received Medicare payments on 512 days on which he claimed he delivered more than 10 hours of face-to-face patient service. The Government also offered sufficient credible evidence to show that, in fact, Dr. Sriram did not perform that amount of work. 29.The Government used the following calculation — set out in GX 21 — to quantify the amount of money paid to Dr. Sriram which is attributable to claimed services in excess of 10 hours a day: a. The Government used a 10-hour day as the maximum number of service hours Dr. Sriram reasonably could provide, given travel time to and from his home and office to his patients’ residences for the home medical visits being made. Agent Barbour testified that the 10-hour threshold was chosen for this calculation based on a number of factors (Barbour Tr. 551-52), including among other things her interview with Dr. Sriram on August 17, 2000, regarding his activities during an average day, evidence uncovered during execution of the search warrant at his Lake Forest home on that date, and statements made by Dr. Sriram in his proffer in the criminal investigation (Barbour Tr. 528, 558-59). b. To calculate the length of Dr. Sri-ram’s work day, only those claims submitted under his individual PIN numbers 371774, 371772 and his Home Doctors PIN number, L63960, were used, since those submissions reflect work Dr. Sriram claimed to have performed. The Government added the number of hours listed in the CPT codes on all claims actually submitted — and paid — for each date that Dr. Sriram claimed to provide to Medicare service, to reach a number of hours that Dr. Sriram purportedly worked in a given day. c. In determining the number of hours claimed in a day in excess of ten, the Government did not include claims submitted to Medicaid and other third-party payers, or claims Dr. Sriram submitted under other PIN numbers for the same dates of service. The Government also eliminated from this calculation claims Dr. Sriram submitted to Medicare using Dr. Sriram’s provider number for Mobile Doctors (378425). d. Using this methodology, the Government determined that between October 1, 1996 and March 31, 2000, there were 512 days for which Dr. Sriram submitted claims (under PIN numbers 371772, 371774 and L63960) reflecting more than 10 hours of face-to-face patient service based on the CPT codes that he used to claim payments. After giving Dr. Sriram credit for in fact providing 10 hours of home patient Medicare service on each of these 512 days, the Government calculates, based on times listed in the CPT codes under which Dr. Sriram claimed payment, that he billed for 5821.74 hours past the 10th hour for these 512 days — or more than double the total number of hours the 10 hours assumption gave him for the 512 days (ie., 5120 hours) (GX 21). e. The Government then used a formula, unchallenged by Dr. Sriram at the hearing, to obtain an “hourly rate” for each hour billed by Dr. Sriram (ie., an average of the amounts billed for the various CPT codes that have various reimbursement rates). This hourly rate was obtained by taking the total amount Medicare paid for the timed CPT codes and dividing that number, for each date of service, by the total hours measured by the CPT codes used by Dr. Sriram for services claimed on that day (GX 21). f. That hourly rate was then multiplied by the number of hours in excess of 10 hours on a given day (as determined, again, by looking at the total CPT hours listed in the codes submitted as claims by Dr. Sriram for any given date of service) to arrive at a the dollar amount of the fraud on each of the 512 days for claims based as CPT codes with time parameters. For the 512 days in question, that resulted in a total calculation of $816,858.04 (GX 21). g. The Government then added to this the total the value of services claimed under CPT codes without any time parameters (since, by definition, those services also exceeded the 10-hour threshold). That resulted in a calculation of $394,736.44 (GX 21). h. Based on this calculation, the Government’s evidence is that of the $1,954,169.32 in Medicare payments received by Dr. Sriram on the 512 days for which the CPT codes show more than 10 hours of face-to-face patient care, $1,211,594.48 was attributable to fraudulent claims (GX 21). 30. The Court finds the Government’s calculations to be credible. For the reasons stated above (Findings 11-14) the Court finds that the evidence to date is sufficient to show that the use of the CPT time codes as a measure of time typically spent with a patient is reasonable. We also note that the unrebutted (albeit sketchy) evidence is that the time parameters in the CPT code have been used by HCFA in at least one other court proceeding to support a claim of fraudulent Medicare payments (Barbour Tr. 545 — 46). 31. Moreover, the Court finds the 10-hour threshold used by the Government for the number of hours of face-to-face patient care that Dr. Sriram could provide in home visits on a single day is supported not only by the undisclosed information in the proffer, but by other evidence as well: a. Agent Barbour testified that during their August 17, 2000 interview, Dr. Sriram told her that he did not see more than 20-25 patients in a single day (Barbour Tr. 440) and that he was always home by 3:00 p.m. because that is when the “gang bangers” came out (Barbour Tr. 417). When asked about these statements, Dr. Sriram declined to answer based on his Fifth Amendment privilege; from this invocation of the privilege, the Court exercises it discretion to draw an adverse inference. b. Those statements by Dr. Sriram are consistent with the testimony of Ms. Suarez. She testified that during the three time periods she worked for Dr. Sriram in 1998 and 1999, Dr. Sriram kept the following schedule: he would be home at 8:30 or 9:00 a.m. on a routine basis to receive her morning check-in call (Suarez Tr. 138), and he would be at home when she called in before leaving work at approximately 5:00 or 5:30 p.m. (Suarez Tr. 139). Ms. Suarez testified that she only saw Dr. Sri-ram once a week for about 15 minutes when he came into the office to do paperwork (Suarez Tr. 137). Ms. Suarez also testified that she was responsible for scheduling visits and maintaining the patient charts and, based on this knowledge, she knew that Dr. Sriram rarely made home visits to his patients and only did so when the patient specifically requested to be seen by Dr. Sriram (Suarez Tr. 140). c. The 10-hour day threshold also is consistent with the testimony of other physicians at Home Doctors concerning their own schedules. For example, Dr. Haebich testified that when he worked for Home Doctors between July and October 1998, he saw an average of 8-10 patients per day (but never more than 15 in one day); he tried to schedule each patient at half-hour intervals, assuming he would be off by 15-20 minutes for each patient; that some patients would cancel or not be at home; and there would be travel time between patients. He testified that his typical day of patient visits would start at around 6:00 a.m., and would conclude at around 3:00 or 4:00 p.m. (Haebich Tr. 15). Likewise, Dr. Syed testified that when he worked for Home Doctors between March 1998 and October 1999, he would spend no more than about seven hours in face-to-face patient contact, although he would spend significant time traveling from patient to patient and in going for scheduled visits where the patient turned out to be unavailable (Syed Tr. 251-52). d. The issue of travel time is significant. The evidence showed that the nature of care at issue in this action is home visits, and that Dr. Sriram’s staff rarely was able to coordinate the locations of the visits on a given day to minimize the travel time between patients (Suarez Tr. 133-34; Haebich Tr. 43-44; Syed Tr. 252). 32.For the foregoing reasons, the Court finds that the Government has offered sufficient credible evidence to show, at this stage, that claims by Dr. Sriram reflecting more than 10 hours each day of face-to-face patient care (based on CPT codes) likely were fraudulent. We note that the 10-hour threshold does not include Dr. Sriram’s significant travel time from patient-to-patient (especially in the winter to poor, underserved areas in South and West Chicago from Lake Forest); the time Dr. Sriram spent recruiting other doctors to see his patients; or the uncalcu-lated time that no one controverts Dr. Sriram spent billing for medical services (approximately $13 million worth from October 1995 through March 2000). 33. The Court has considered that this calculation using the 10-hour threshold reflects the third different damage theory sponsored by the Government. The Government’s initial theory alleged fraudulently obtained payments of $455,220.05 based on services allegedly billed but not rendered to patients at the Edgewater and Edwards hospitals under Dr. Sriram’s provider numbers 371772 and 371774 (DX 24, ¶¶ 42-45). Agent Barbour admitted on cross examination that her original understanding of Dr. Sriram’s use of the 371772 and 371774 provider numbers was that Dr. Sriram was billing for services specifically rendered at Edgewater and Edwards hospitals. However, that understanding proved to be wrong, as she now admits, because those numbers were assigned to Dr. Sriram to cover services provided in any hospitals in the counties where Edge-water (Cook County or 371772) and Edwards (Lake County or 371774) Hospital are located (Barbour Tr. 492-93; 495-96; see also Theiler Tr. 49, 104-05). The Government then shifted to a damage theory using a 16-hour threshold for patient service in a day (DX 27), which resulted in a calculation of $735,000 in allegedly fraudulent payments based on 295 days on which claims reflected more than 16 hours of service. 34. The defense argues that in light of these shifting positions, the Government’s current calculation based on a 10-hour threshold is not reliable or credible. The Court declines to reject the current calculation merely because it has been revised. It is not uncommon in civil litigation for theories of damages (or liability, for that matter) to change and evolve as the case progresses, as new information is obtained, and as the information in a party’s possession becomes better understood. For the reasons stated above, the 10-hour threshold finds sufficient support in the evidence, and the evidence shows that use of the CPT time parameters is reasonable. Moreover, the mathematical calculations made by the Government using those tools are unchallenged. The Court finds the calculations showing that Dr. Sriram received payments of $1,211,594.48 for claims of services in excess of 10 hours in a given day are supported by sufficient credible evidence. G. Dr. Sriram’s Billings for Drs. Gupta, Haebich and Syed. 35. As the Government’s exhibits point out with clarity, Dr. Sriram billed Medicare using the PIN numbers of Drs. Gupta, Haebich and Syed to bill for dates of service when they did not work for Dr. Sriram or for Home Doctors. As the payee for the group practice of Home Doctors, Dr. Sriram received substantial sums of money by Medicare for services that Dr. Sriram falsely claimed had been provided by these physicians (see, e.g. GX 7, 14, 15, 16A, 16B). 36. The evidence shows that Dr. Hae-bich worked for Home Doctors between July and October 1998. According to WPS records, on September 15, 1998-Dr. Hae-bich was issued PIN number L64854 for his work at Home Doctors. However, Dr. Sriram had Dr. Haebich’s PIN number backdated to be effective as of January 2, 1998 (Barbour Tr. 472). 37. Dr. Sriram was responsible for submitting claims to Medicare for the work performed by Dr. Haebich on behalf of Home Doctors. Dr. Haebich kept a journal which indicates that he worked for Home Doctors and Dr. Sriram on 59 days between July and October 1998. However, the claims paid by Medicare for services allegedly rendered by Dr. Haebich reflect claims submitted to Medicare for 491 dates of service beginning in January 1998 (six months before he started working for Home Doctors) and continuing until December 1999 (14 months after he left Home Doctors). Based upon the dates that Dr. Haebich actually worked, at least $277,679.65 were paid to Dr. Sriram for services claimed under Dr. Haebich’s PIN number, but which Dr. Haebich did not perform (GX 7). 38. Dr. Sriram also billed Medicare for services provided to patients under Dr. Syed’s PIN number for dates when Dr. Syed did not work for Home Doctors. Dr. Syed testified that he worked at Home Doctors between March 1998 and October 1999. On average, he worked 2-3 days per week, with about 10-12 weeks where he did not work at all, and several weeks toward the end of that period where he worked only once a week (Syed Tr. 244-45). The most patients that Dr. Syed saw in a single day was 13 or 14 (on one or two occasions) (Syed Tr. 251); he saw 12 patients on several other occasions (Syed Tr. 251), but on average, he saw 8-10 patients each day that he worked (Syed Tr. 251). 39. Dr. Syed was assigned provider number L63961 effective January 1, 1998. According to WPS records, the provider number was issued on July 21, 1998; again, this PIN number was backdated to January 1998 (Barbour Tr. 473). Dr. Sri-ram submitted claims using Dr. Syed’s PIN number for the period from January 1998 (two months before he started at Home Doctors) through March 2000 (five months after he left) (GX 16B). Dr. Syed never worked on Sundays or Mondays (on Mondays, he always worked at a clinic downtown, so he could not have worked for Home Doctors on that day) (Syed Tr. 245, 261). However, the evidence shows that Dr. Sriram billed for Dr. Syed’s services on various Sundays and Mondays throughout the March 1998 through October 1999 time period (GX 16B; Syed Tr. 254; 261). Dr. Syed also testified he never worked for Home Doctors on 17 consecutive days (Syed Tr. 254); but the evidence shows that Dr. Sriram submitted claims stating that Dr. Syed did so (see GX 16B). 40. According to Dr. Syed’s testimony (Syed Tr. 246, 252-53) and his contemporaneous 2-ecords (GX 16A), he rendered services for Home Doctors on 80-100 different dates. However, Dr. Sriram billed Medicare using Dr. Syed’s PIN number on 415 different dates, and received $235,104.97 (GX 7). Dr. Syed testified that he could not have worked 415 days for Home Doctors an 18-month period (March 1998 through October 1999), because he was a part-time “moonlighter” 'physician (Syed Tr. 244, 262). Based on the dates that Dr. Syed actually worked, at least $113,855.12 were paid to Dr. Sriram under Dr. Syed’s PIN number, but for services Dr. Syed did not render. 41. Finally, the testimony established that Dr. Gupta worked for Home Doctors only on a single day in February 1999, seeing four patients and receiving payment from Dr. Sriram of $160.00 (Gupta Tr. 324-25; GX 25). However, without her knowledge, Dr. Sriram thereafter obtained for her a Home Doctor PIN number L669588. According to WPS records, the PIN number was issued on June 10, 1999, but again, Dr. Sriram had it backdated to be effective as of January 2, 1998 (Barbour Tr. 473). Dr. Sriram submitted claims using Dr. Gupta’s PIN number on 220 different dates, and based on those claims Dr. Sriram was paid at least $48,893.60 (GX 7). Based upon the one day that Dr. Gupta actually worked, at least $48,397.80 was paid to Dr. Sriram under Dr. Gupta’s PIN number, but for services she did not render. 42. Moreover, the evidence shows that these three doctors could not have provided as much service as Dr. Sriram claimed, even if the bills Dr. Sriram submitted were simply mistaken as to dates of service. Dr. Sriram told Agent Barbour that his doctors only saw an average of 8-10 patients each day (Barbour Tr. 444-45). That statement is consistent with the contemporaneous logs kept by Drs. Haebich and Syed (GX 15, 16A), as well as the documentary evidence submitted by the Government (see GX 14 showing how much other doctors worked); GX 25 (showing how much other doctors got paid by Dr. Sriram for their services while employed at Home Doctors). 43. The testimony of the physicians provides further corroboration. Dr. Syed testified that only rarely did he see more than 8-10 patients in any one day (Syed Tr. 252-53). Dr. Haebich likewise testified that he would typically only see 8-10 patients, but no more than 15 in a single day (Haebich Tr. 12). It would have been necessary for those doctors to see far more patients in a typical day if they really had delivered all the patient care for which Dr. Sriram claimed payment using their PIN numbers. 44. The defense offered the theory that Dr. Sriram may have merely used the PIN numbers of Drs. Gupta, Haebich and Syed to bill for services provided by other doctors (who may or may not have had PIN numbers) who actually provided services to Home Doctors patients. In aid of this theory, the defense elicited testimony from Mr. Theiler that simple mistakes in Medicare billing are common and are not necessarily considered to be material or fraudulent, because they may be corrected once discovered (Theiler Tr. 64). However, the defense has offered no credible evidence to show that this is what happened; moreover, the evidence of payments Dr. Sriram made to his Home Doctors physicians contradicts this defense theory. 45. The evidence shows that in 1998 and 1999, Dr. Sriram paid all physicians associated with Home Doctors (not just Drs. Gupta, Haebich and Syed) a total of $66,184.21 (GX 25). The Government offered evidence to show that Dr. Sriram paid his doctors $35.00 to $40.00 for each patient visit (GX 25). Using the figure of $35.00 per visit (which is an assumption generous to Dr. Sriram, since it would increase the number of visits he paid for), the $66,184.21 in payments reflects visits to nearly 1,900 patients. However, Dr. Sriram submitted claims for Drs. Haebich, Syed and Gupta showing more than 1,100 days of service. If, as Drs. Haebich and Syed testified (and as Dr. Sriram told Agent Barbour), they saw 8-10 patients per day, 1,100 days of service would yield approximately 9,000 to 11,000 patient visits for which they would have been owed the $35.00 fee. That would have resulted in payments by Dr. Sriram to this physicians of some $300,000 to $400,000 — as compared to the $66,000 he actually paid them (GX 25). The Court finds that GX 25 contradicts the defense theory of mistaken billing, and further supports the Government case. 46. Finally, the Court finds no evidence to support the defense theory that Dr. Sriram might have named the wrong doctor in the claims he submitted due to a software glitch in his billing program. No evidence was offered as to how the billing software worked, or whether the “glitch” that the defense cites would have the effect of transposing one doctor’s name for another. For the foregoing reasons, the Court finds the Government has offered credible evidence sufficient to show a likelihood of proving fraudulent payments in the amount of $439,932.57 in connection with claims submitted under Drs. Gupta’s, Haebich’s and Syed’s PIN numbers for services they did not render. H. Claims Submitted on Dates When Dr. Sriram was Overseas. 47. The evidence also shows that Dr. Sriram submitted claims stating that he rendered care to patients each and every day for three consecutive years: 1997-1999 (Barbour Tr. 410, 420). The evidence also established that Dr. Sriram was out of the country in January to mid-February 1997, August 1999 and December 1999 (Barbour Tr. 419). Even assuming Dr. Sriram worked seven days a week, 365 days a year when he was in the United States, plainly it was impossible for Dr. Sriram to make home visits to patients in the United States when he was outside the country. 48. The defense suggests that Dr. Sri-ram had other doctors provide services to his patients, and that he later billed for those services using his own PIN number. In particular, the defense points to Dr. Sriram’s statement to Agent Barbour that he had Dr. Song visit patients for him while he was overseas in December 1999 (Barbour Tr. 520). The evidence shows that during the period April 1999 through June 2000, Dr. Song performed services for Home Doctors (GX 14), but Dr. Sriram never submitted a single claim using Dr. Song’s PIN number. There is no evidence to explain why, if Dr. Song provided services on behalf of Dr. Sriram while he was out of the country, Dr. Sriram did not simply submit the services provided by Dr. Song under Dr. Song’s PIN number as a group claim for Home Doctors (with Dr. Sriram as the payee). Nor is there any evidence showing that Dr. Song’s visits in fact were the ones for which Dr. Sriram billed while he was out of the country in December 1999. And, there is no explanation for Dr. Sriram’s billings while outside the United States earlier in 1999 and in 1997. Based on the evidence at this stage, the Court finds that Dr. Sriram’s submission of claims for dates he was outside the United States is credible evidence of fraud. I. Dr. Sriram’s Excessive Claims Regarding the Volume of His Patient Visits. 49.Agent Barbour testified that during an interview on August 17, 2000, Dr. Sri-ram told her that he never saw more than 20-25 patients in a single day (Barbour Tr. 440). When asked by the Government about his statement to Agent Barbour on this point, Dr. Sriram asserted his Fifth Amendment privilege against self-incrimination, an assertion from which we choose to draw an adverse inference. 50. Despite Dr. Sriram’s statements to Agent Barbour, Dr. Sriram frequently billed Medicare for services he allegedly provided to more than 25 patients in a single day. For example, GX 21 shows that Dr. Sriram claimed to see more than 25 patients on 898 different days. On some of those days, Dr. Sriram claimed to see more than 100 patients, with the most extreme example being found in GX 13, which shows that on November 12, 1997, Dr. Sriram claimed payment for services allegedly rendered to 187 patients on a single day. 51. There is also other evidence corroborating Dr. Sriram’s statement to Agent Barbour that he saw no more than 20-25 patients per day. Dr. Sriram told Agent Barbour that he was always home by 3:00 p.m. because that is when the “gang-bangers” would “come out” (Barbour Tr. 417). This is consistent with the testimony of Ms. Suarez, who worked as closely with Dr. Sriram as any of the wifi nesses present in court, which indicated that Dr. Sriram was generally home before 9:00 a.m. in the morning and by 5:00 p.m. at night. 52. Drs. Haebich and Syed each testified that they usually could only see 8-10 patients per day, given travel time between appointments (and the expected dead time caused by cancellation of appointments and other no-shows of scheduled patients). This testimony is consistent with Dr. Sriram’s statement to Agent Barbour that his doctors saw an average of 10 patients per day (Barbour Tr. 444-45). 53. And, Ms. Suarez confirmed that it was her practice (pursuant to Dr. Sriram’s request and the requests of the other home doctors) to schedule at most 20 patients per day. Moreover, according to Ms. Suarez, in late 1999, the number of patients who wanted to continue seeing physicians from Home Doctors began to decrease rapidly. Ms. Suarez testified that about 80 percent of the patients were lost during this time (ie., only 2 out of every 10 patients she called were making appointments) (Suarez Tr. 136), due to a number of complaints: including that, while patients liked Dr. Sriram, neither he nor his doctors visited them very often (Suarez Tr. 135; 37; 157). 54. In the face of this evidence, the defense has offered nothing to indicate to the Court that Dr. Sriram could legitimately claim to have seen more than 25 patients per day on each of the 398 days chronicled in GX 21; or more than 100 patients on some of those days; or 187 patients on November 12, 1997. The evidence of Dr. Sriram’s claims that he saw more than 25 patients on nearly 400 different dates is credible evidence of fraud. J. Billing For Services To Deceased Patients. 55. The Government has offered unre-butted evidence that Dr. Sriram billed for Medicare services he claimed to have provided to 32 different patients who died prior to the date the service allegedly was rendered (GX 17A; GX 22). When asked about these claims, Dr. Sriram asserted his Fifth Amendment privilege; we draw an adverse inference from that assertion. 56. The defense has pointed out that some of those claims were made under CPT Code 99375, which allows billing for services rendered during a 30-day period (GX 1, at 40). From this, the defense urges that even though a patient was deceased on the date of service cited in the claim, perhaps the claim was valid because the service was rendered within the 30-day period preceding that date of service during which the patient was still living. Even setting aside the lack of evidence to substantiate this argument, the argument fails: (a) many of the claims were submitted by Dr. Sriram using other CPT codes which do not have this 30-day “window,” and (b) a number of the claims using the 99375 code show a date of service more than 30 days after the patient died. The evidence of claims for services rendered to patients on dates after they already had passed away is credible evidence of fraud. K. Complaints of Billing For Services Not Rendered. 57. Agent Barbour testified regarding 19 instances of billing by Dr. Sriram for services that were not rendered by him, as reflected by patient complaints made using to the HCFA “hot line” (Barbour Tr. 413). According to those complaints, the patients received Explanation of Benefit Statements (“EOBs”) indicating that they had received medical services provided by Dr. Sriram on certain dates, but denied receiving such services (see, e.g., GX 17B). Moreover, this evidence was bolstered by evidence regarding similar complaints made by private companies that insure their employees (GX 10-12). Here, again, Dr. Sriram asserted his Fifth Amendment privilege when confronted with this testimony and evidence, and we draw the adverse inference from his silence. The un-rebutted evidence of billing for services not rendered is, at this stage, credible evidence of fraud. L. Listing Dr. Sriram’s Address as the Patient’s Address. 58. The Government has also provided the Court with credible evidence of numerous claims for which Dr. Sriram listed his own home address as the patient’s home address. GX 13 contains 187 claims submitted by Dr. Sriram for services allegedly rendered on November 12, 1997; nearly half of those claims (84) listed Dr. Sriram’s 611 Hunter Lane address as the patient’s home address. 59. The evidence disclosed a potential motive for Dr. Sriram to submit claims listing his address as the patient’s home address: the EOB is sent to the patient’s home address as listed by the doctor on the claim form. By listing the 611 Hunter Lane address as the patient’s home address, Dr. Sriram ensured that the EOBs would be delivered to Dr. Sriram, and not to the patient. As a result, patients would not be in a position to complain that they failed to receive the services for which Dr. Sriram billed — thereby hindering the detection of billing for services that were not rendered. 60. We draw an adverse inference from Dr. Sriram’s assertion of his Fifth Amendment when confronted with this evidence. The Court finds the evidence sufficient to show at this stage that Dr. Sriram intentionally placed incorrect patient home addresses on claim forms. M. Unnecessary Services. 61. The Government also attempted to show that Dr. Sriram engaged in the provision of unnecessary services as a way to fraudulently bill Medicare for excessive payments. The provision of “unnecessary services” is a different type of fraud than the billing of unprovided services: the former assumes services were delivered (albeit too many), while the latter is premised on payment being obtained for services never rendered. Although the Government offered significant evidence of billing for unprovided services, the same cannot be said for the Government’s proof on the excessive services theory. 62. The Government’s evidence of provision of unnecessary services came almost exclusively from Dr. Syed. Dr. Syed testified that Dr. Sriram told him to always do a Pulse Oximeter (“Pulse”) test on older patients (Syed Tr. 255). Although Dr. Syed said he did not agree that a Pulse test was always necessary, he agreed that the test was necessary 90 percent of the time (Syed Tr. 257-58). Dr. Syed also said that Dr. Sriram told him to always do blood tests and an echocardiogram, but he refused to do these tests (Syed Tr. 288-89). Finally, Dr. Syed testified that he was encouraged to give patients the dietary supplement “ENSURE,” which he declined to do (Syed Tr. 259-60). 63. Dr. Syed’s testimony regarding unnecessary services is not corroborated by the other evidence and testimony in the record; although Dr. Haebich testified, the Government did not question him on these matters. While the Government seems to imply that the ENSURE direction was part of a “kick back” scheme, it never offered proof to support that implication. Moreover, Dr. Syed admits he is not a cardiologist, and thus has no ability to challenge directions and diagnoses by Dr. Sriram, who is a cardiologist (Syed Tr. 270-71). And, Dr. Syed has a bias or motive to cast aspersions on Dr. Sriram’s credibility given Dr. Syed’s pay dispute with Dr. Sriram and the lawsuit Dr. Syed filed regarding that dispute (Syed Tr. 259, 263-66). 64. Given the lack of enough other evidence, the Court declines to draw an adverse inference against Dr. Sriram on these issues from the assertion of Dr. Sri-ram’s Fifth Amendment privilege. At this stage, the Court finds that the Government has not offered sufficient evidence to support a finding that Dr. Sriram billed for the delivery of excessive services. N. The Complexity of Medicare Billing. 65. The defense offers the theory that Dr. Sriram’s claims were not fraudulent but merely inaccurate, attributing the numerous irregularities to the complexity of the Medicare billing system and the fact that Dr. Sriram is, by his self-description, not a “professor of billing” (Barbour Tr. 446). There is no dispute that the use of CPT codes can be complex. The defense evidence also shows that the Medicare program does not require a physician to receive training or show proficiency in billing in order to get a PIN number and bill as a Medicare provider (Boren Tr. 630). However, the Court finds that this evidence is not sufficient to provide an innocent explanation for Dr. Sriram’s actions. 66. First, as to the complexity of the CPT codes, Dr. Sriram, unlike Mr. Theiler, did not have to deal with the entire array of CPT codes; he only used a handful of codes to bill for his services because he was a home doctor — at least for purposes of the present lawsuit — and Dr. Boren testified that the Medicare codes are not so complicated when that is the case. Dr. Boren further testified that many physicians, especially home doctors, do not really need extensive knowledge of the codes, since they use the same small number of CPT codes for their practice on a routine, consistent basis (Boren Tr. 633-34). Indeed, when he submitted claims for 187 patients allegedly treated on November 12, 1997, Dr. Sriram used the same CPT codes for all 187 (GX 13; Barbour Tr. 424). 67. Second, although Medicare does not require any billing training to obtain a PIN number to provide services, Dr. Sri-ram took training in Medicare billing in December 1998, before he started billing for Home Doctors in March 1999 (GX 4). Moreover, the evidence shows that Dr. Sriram was not candid with Agent Barbour on this point, as he said he had received no training in CPT code billing (Barbour Tr. 446). The Court draws an adverse inference from Dr. Sriram’s assertion of the Fifth Amendment when confronted with this statement. 68. Third, even apart from formal training, Dr. Sriram had access to materials issued by HCFA explaining how to do billing (E.g., GX 1 and 2). Dr. Boren pointed out that, although physicians are not trained in how to code a service they provide for billing purposes before they receive a PIN number, they do receive the Medicare Part B bulletin which notifies physicians of courses on billing (Boren Tr. 619-20). Although the CPT manual and the codes change from year to year, any changes, modifications or deletions to the codes are marked by a symbol in the book, cross-referencing to an appendix that lists the changes (Boren Tr. 618). And, Dr. Sriram told Agent Barbour that he had no CPT manual, but the search warrant, executed immediately after that statement was made, revealed a copy of the 1998 CPT code (Barbour Tr. 443). Again, the Court draws an adverse inference from Dr. Sriram’s assertion of the Fifth Amendment when confronted with this statement. 69. Fourth, if Dr. Sriram had not understood how to bill, even after his billing courses, he could have hired a professional to assist him. Agent Barbour testified that Dr. Sriram told her he had lost money by not using a billing service, but that he nonetheless had declined to use a billing service because he did not want to pay the fees charged by these services and because these services did not do rebilling (Barbour Tr. 440-41; see also Suarez Tr. 185). 70. The defense also tries to paint the picture of Dr. Sriram as an incredibly disorganized individual who was simply trying to practice medicine, his specialty, but was overwhelmed with work and paper, and who simply made some mistakes on the bills he submitted. The defense points to the docu