UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF FLORIDA
AND
THE SOUTHERN DISTRICT OF FLORIDA
AND
THE NORTHERN DISTRICT OF GEORGIA
UNITED STATES OF AMERICA, )
)
v. )
) Case No. Cr. ________
XXXXXXXX HOME HEALTH CARE, INC. )
d/b/a XXXXXX XXXXXXXX QUALITY CARE )
)
Defendant. )
PLEA AGREEMENT
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The Defendant, XXXXXXXX HOME HEALTH CARE, INC. and its parent,
Olsten Corporation, have engaged in plea discussions with the United States
pursuant to Rule 11 (e)(1)(c) of the Federal Rules of Criminal Procedure and
agree as follows:
1. XXXXXXXX HOME HEALTH CARE, INC., is a Missouri corporation,
which in January, 1996 merged with Xxxxxxxx Services, Inc. (XXXXXXXX). XXXXXXXX,
d/b/a Olsten Health Management and Xxxxxx Xxxxxxxx Quality Care, is a
wholly-owned subsidiary of Olsten Corporation ("Olsten") of Melville, New York.
Olsten and its subsidiaries own, operate, manage and provide staffing services
for home health agencies in several states. At all times material to this Plea
Agreement, Defendant XXXXXXXX engaged in the business of providing management
services for home health care agencies.
2. Upon execution of this Plea Agreement, the United States will
file criminal Informations in the United States District Court for the Middle
District of Florida, the United States District Court for the Southern District
of Florida, and the United States District Court for the Northern District of
Georgia. Defendant will waive venue and its Indictment rights and plead guilty
to the crimes specified in these Informations as follows:
a. In the Middle District of Florida, the Defendant will plead
guilty to one count of Mail Fraud in violation of 18 U.S.C. xx.xx. 1341 and 2.
b. In the Southern District of Florida, the Defendant will plead
guilty to one count of Conspiracy in violation of 18 U.S.C. ss. 371.
c. In the Northern District of Georgia, the Defendant will plead
guilty to one count of offering kickbacks in violation of 42 U.S.C. ss.1320-7b.
3. Pursuant to 18 U.S.C. ss. 3571(d), the maximum sentence to be
imposed by the Courts for each Count in the Informations is a fine of the
greater of twice the gross pecuniary gain, or twice the gross pecuniary loss,
from the offenses charged.
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4. If acceptable to the Courts, Defendant and the United States
will waive the presentence investigation and report pursuant to Rule 32 (c)(1)
of the Federal Rules of Criminal Procedure and ask that Defendant be sentenced
at the time the guilty plea is entered.
5. Subject to the Courts' approvals of this Plea Agreement,
Defendant will pay a criminal fine of $3,360,000 and a Special Assessment of
$400, pursuant to 18 U.S.C. ss. 3013, in the Middle District of Florida, a
criminal fine of $3,360,000 and a Special Assessment of $400, pursuant to 18
U.S.C. ss. 3013, in the Southern District of Florida, and a criminal fine of
$3,360,000 and a Special Assessment of $400, pursuant to 18 U.S.C. ss. 3013, in
the Northern District of Georgia.
6. The United States and Defendant agree that restitution shall
not be imposed as any part of Defendant's criminal sentences. In its
determination not to seek restitution, the United States has taken into
consideration the restitution paid pursuant to the agreement entered into
between the United States, Defendant and Olsten settling civil and
administrative claims and remedies (the "Civil and Administrative Settlement").
7. The total amount of the fines, assessments, and settlement in
Paragraphs 5 and 6 above shall be paid in full within five business days after
entry of final judgment by the Courts.
8. This Plea Agreement is entered into in conjunction with a
corresponding Civil and Administrative Settlement between Olsten and the United
States. If the Civil and Administrative Settlement is not executed by date of
acceptance of the Plea Agreement by the district courts, the United States and
Defendant may withdraw from this Plea Agreement.
9. Defendant and its parent, Olsten, agree to cooperate fully and
completely with the United States in any criminal, civil and/or administrative
investigations and proceedings of any present and former officers, directors,
employees and agents, and of any parties with whom it had or has a business or
professional relationship, including but not limited to vendors, contractors,
partners, joint venturers, physicians, and referral sources, in connection with
the ownership, operation, and management of home health care agencies ("Relevant
Lines of Business") . The extent and nature of that cooperation is more fully
described in Paragraph 10 below.
10. Defendant and its parent, Olsten, agree that such full and
complete cooperation shall include but not be limited to:
a. Defendant and Xxxxxx will provide complete production of all
non-privileged information relating to the Relevant Lines of Business,
including: books, papers, documents and other objects in Defendant's and
Xxxxxx'x custody and control; reports of financial and other audits; and
documents reflecting severance or termination agreements with former employees.
Whenever such data are retained in computerized format, Defendant and Olsten
shall provide access to such data and assistance in operating the computers as
is necessary to produce the data requested. Defendant and Xxxxxx will make all
reasonable efforts to facilitate access to, and encourage the cooperation of,
their agents and accountants in producing information as reasonably requested by
the United States.
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b. Defendant and Xxxxxx will provide testimony and any other
information deemed necessary by the United States or a court to identify or
establish the original location, authenticity, or other evidentiary foundation
for any documents and to authenticate such documents in any criminal, civil and
administrative investigations and proceedings in which the United States is
involved.
c. Defendant and Xxxxxx will not assert any claim of privilege,
including attorney-client privilege or attorney-work product privilege, with
respect to any documents or testimony requested by the United States to
establish the original location, authenticity or evidentiary foundation for
documents referred to in subparagraph 10(a) above.
d. Defendant and Xxxxxx will provide testimony and/or other
information orally by competent corporate representatives as requested by the
United States, to include sworn testimony before federal grand juries or in
federal trials, as well as oral briefings to federal government representatives.
e. Defendant and Xxxxxx will take reasonable steps to facilitate
access to, and encourage the cooperation of, individual current and former
employees from whom testimony or information is sought in their individual
capacities. Defendant and Xxxxxx agree to advise in writing its current
employees, and former employees who inform Defendant that they have been
contacted by the United States, that the individual's cooperation is in the best
interests of Xxxxxx. Cooperation provided pursuant to this subparagraph will
include identification of witnesses who, to Defendant's and Xxxxxx'x knowledge,
may have material information related to the matters covered by the
Informations.
f. Defendant and Xxxxxx will provide oral briefings to law
enforcement authorities regarding the results of all relevant internal
investigations.
g. Defendant and Xxxxxx will retain all material records of its
Relevant Lines of Business in their original form for five years from the date
of execution of this Agreement. Before the expiration of the five-year period
described above and before disposing of any records covered by this
subparagraph, Defendant will consult with the United States Department of
Justice concerning the continuing need for preserving such records.
h. If Defendant and/or Olsten sells or otherwise divests any part
of its Relevant Lines of Business within five years from the date of this Plea
Agreement, and if such transaction could impair the access of Defendant, Olsten
or the government to the information described in this paragraph, Defendant
and/or Olsten will include in any contract for the sale of any such business an
obligation on the part of the purchaser which comports with the requirements of
this Plea Agreement as to the retention and production of records, and the
production of information and testimony.
i. Defendant and Xxxxxx agree that the cooperation described in
this paragraph will be ongoing, and will continue as to any investigation
conducted by the Department of Justice, the Federal Bureau of Investigation, The
Department of Health and Human Services, The Defense Criminal Investigative
Service, the United States Postal Inspection Service and the state Medicaid
Fraud Control Units commenced within five years of the date of execution of this
Plea Agreement.
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11. Defendant agrees to disclose to the Criminal Division, Fraud
Section of the Department of Justice any evidence of misconduct that management
has grounds, after appropriate inquiry, to believe may constitute a violation of
federal law or regulation regarding the activities, past and present, of any
employees, officers, directors, agents, consultants, partners, joint venturers,
or other persons associated with Defendant, its parent corporation, its
predecessors, successors, or direct and indirect subsidiaries of which
Defendant, its parent corporation, and/or direct or indirect subsidiaries of
which Defendant and/or its parent corporation becomes aware. Defendant shall
establish and/or maintain existing procedures by which Defendant's officers,
employees or agents, including those persons responsible for administering its
compliance and hotline programs, as well as its internal or external auditors,
and senior management personnel shall report all such allegations to a
Compliance Officer. These disclosures to the United States Attorneys offices
shall be made within 60 days of that date on which Defendant and/or Xxxxxx
becomes aware of such misconduct.
12. If the Courts accept this Plea Agreement, and Defendant and
Xxxxxx comply with this Agreement, including the cooperation described in
Paragraphs 9 and 10, the United States agrees not to prosecute Defendant and
Olsten, its previous or current parent corporations, its predecessors,
successors, or direct or indirect subsidiaries or entities in which they have or
had any ownership interest, for other possible criminal offenses arising from or
relating to the matters covered by the Informations (Relevant Offenses).
13. The promises not to prosecute referred to in Paragraph 12 do
not extend to any individual, including any current or former officer, director,
employee or agent of the Defendant or Xxxxxx.
14. Defendant and Xxxxxx agree that any failure to provide full and
complete cooperation as described in Paragraphs 9 and 10 above will be a breach
of this Plea Agreement and will empower the United States to seek to set aside
the Plea Agreement and to pursue all possible violations against the Defendant.
However, Defendant and Xxxxxx shall be entitled to receive reasonable notice in
writing from the United States to Defendant's and Xxxxxx'x General Counsel of
the specific circumstances constituting an alleged failure to provide the
cooperation required by this Plea Agreement and shall have 30 days from receipt
of such written notice, unless the United States determines that less time is
necessary, to cure any such failure before the United States initiates any
action to set aside this Plea Agreement. In the event this Plea Agreement is set
aside pursuant to this Paragraph and a prosecution is initiated, the
admissibility of certain statements made by Defendant and Xxxxxx shall be
governed by Paragraph 24 below.
15. Defendant and Xxxxxx agree that this Plea Agreement shall not
prevent, preclude or prejudice the United States from proceeding in the future
with investigations and prosecutions of any federal criminal violations which
may be committed after the date of execution of this Agreement by Defendant,
Xxxxxx, or by any of their officers, directors, employees and/or agents.
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16. This Plea Agreement is binding on the United States Department
of Justice, including all the offices of United States Attorneys. This Plea
Agreement does not bind the Internal Revenue Service of the United States
Department of Treasury or Defendant or Olsten with respect to any civil or
criminal liability, if any, of Defendant, or its previous or current parent
corporation, for federal income or other taxes. The provisions of this Plea
Agreement do not preclude the United States from prosecuting Defendant and/or
Olsten for any violations of 18 U.S.C. Section 1501 et seq., 18 U.S.C. Section 4
or any Title 26 and Title 18 offense in connection with the enforcement of
federal revenue laws, including but not limited to conspiracies to commit such
offenses and conspiracies to defraud the United States by impeding, impairing,
obstructing and defeating the lawful function of the United States Treasury and
the Internal Revenue Service in the ascertainment, computation, assessment or
collection of revenue.
17. Defendant agrees that all costs (as defined in the Federal
Acquisition Regulations ("FAR") ss. 31.205-47 and in Titles XVIII and XIX of the
Social Security Act, 42 U.S.C. xx.xx. 1395 et. seq. and xx.xx. 1396 et. seq.,
and the regulations promulgated thereunder) incurred by or on behalf of
Defendant and/or Olsten, in connection with (1) the government's investigations,
and Defendant's and/or Xxxxxx'x investigations and defense, of the matters
covered by this Agreement; (2) the negotiation of this Plea Agreement; (3) any
corrective action undertaken by Defendant and Olsten pursuant to this Plea
Agreement; and (4) the payments made to the United States pursuant to this Plea
Agreement, shall be unallowable costs for government contract accounting and for
Medicare, Medicaid, CHAMPUS and FEHBP reimbursement purposes.
18. Defendant and Xxxxxx have taken and agree to take the following
remedial actions:
x. Xxxxxx has established an employee hotline by which its
officers and employees can report any facts or circumstances which the officer
or employee believes may constitute misconduct which may violate federal law;
and
b. Upon acceptance of this Plea Agreement by the Courts and
execution of the Civil and Administrative Settlement Agreement, Defendant and
Olsten agree to adopt and apply the Corporate Integrity Agreement, which is
incorporated in the Civil and Administrative Settlement, to all of the health
care facilities and lines of business located in the United States that they own
or operate.
19. Defendant and Xxxxxx agree that they will, within 120 days of
acceptance of this Plea Agreement, reaffirm, in writing, corporate procedures
and policies which shall prohibit their corporate directors, officers, employees
and agents from engaging in the practices described in the Informations and in
the Civil and Administrative Settlement.
20. Defendant and Olsten shall, within 90 days of acceptance of
this Plea Agreement, file with the Department of Justice signed certifications
from each of their corporate officers and all other officers and employees
principally responsible for negotiating contracts with potential referral
sources, all personnel responsible for approving such activities, and all
directors, managers and supervisors of employees responsible for preparing or
submitting xxxxxxxx to government agencies or private payors, acknowledging that
each has received and read a copy of this Plea Agreement, the Informations, and
the Civil and Administrative Settlement.
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21. Defendant and Olsten shall, within 120 days of acceptance of
this Plea Agreement, conduct instructional meetings for all personnel described
in Paragraph 20 above, at which meetings outside legal counsel, ethics officers
and auditors shall thoroughly explain and review these criminal and civil
proceedings and the corporate procedures and policies described in Paragraph 18
above.
22. Defendant and Xxxxxx agree that neither of them will file for
voluntary bankruptcy protection within 90 days after making the payments
described in Paragraphs 5 and 6 above.
23. If this Plea Agreement or any material provision thereof,
including the sentences agreed-upon in Paragraphs 5, 6 and 7 above, is rejected
by any district court, the parties shall be released from their obligations
under this Plea Agreement and it shall be null and void. It is further agreed
that, in this event, Defendant may withdraw any of its plea of guilty if such a
plea has been entered, and that the United States may move to dismiss the
Informations without prejudice. The Defendant will have no objection to such
dismissal, nor any objection, on the basis of such dismissal or on the basis of
the voiding of this Plea Agreement, to the continuation of the investigation or
the return of any indictment. It is further agreed, that if this Plea Agreement
is rejected, the admissibility against Defendant or Xxxxxx of any statements
made by Defendant or Olsten or their representatives during the course of and in
furtherance of the plea discussions will be determined under Rule 11(e)(6) of
the Federal Rules of Criminal Procedure and Rule 410 of the Federal Rules of
Evidence, and the terms of all agreements previously entered between Olsten and
the United States. Defendant acknowledges that all leads derived from such
statements may be used against Defendant or Xxxxxx in any subsequent proceeding.
24. If Defendant fails to comply with any material provision of
this Plea Agreement and a district court either sets aside this Plea Agreement
or declares this Plea Agreement null and void, the Defendant and Xxxxxx will be
subject to prosecution for the criminal violations alleged in the Informations
and/or any other violations for which prosecution would otherwise be barred by
Paragraph 12 ("Relevant Offenses"). In any such prosecution, the admissibility
against Defendant of any statements made by legal representatives of Defendant
or Olsten in connection with the negotiation of this Plea Agreement, or pursuant
to its terms will be determined under Rule 11(e)(6) of the Federal Rules of
Criminal Procedure, Rule 410 of the Federal Rules of Evidence, and the terms of
all agreements previously entered between Defendant and/or Olsten and the United
States. All leads derived from such statements may be used against the
Defendant. Statements made by other employees of Defendant or Xxxxxx whose
testimony is provided pursuant to Paragraph 10 above shall be admissible
notwithstanding Rule 11 and Rule 410.
25. In the event this Plea Agreement is set aside for any reason,
Defendant shall be entitled to the return of payments made to the United States
under this Plea Agreement as set forth in Paragraphs 5 and 6 above.
26. Defendant and Xxxxxx agree that all criminal statutes of
limitations for the Relevant Offenses shall be tolled from September 1, 1998,
until the date on which the Courts accept or reject this Plea Agreement. In
addition, in the event that this Plea Agreement is set aside pursuant to
Paragraph 24 above, Defendant and Xxxxxx agree that the statutes of limitations
for the Relevant Offenses further shall be tolled from the time of acceptance of
this Plea Agreement until the date on which the Plea Agreement may be set aside.
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27. Defendant and Olsten waive and will not assert any defenses
they may have, based in whole or in part on the Double Jeopardy Clause of the
Fifth Amendment, or under the Excessive Fines Clause of the Eight Amendment, to
criminal prosecutions in which this Plea Agreement has been entered, or to any
prosecutions, or civil or administrative proceeding pursuant to the terms of
this Plea Agreement, or of the Civil and Administrative Settlement. Nothing in
this agreement waives any rights that Defendant may have under the Double
Jeopardy or Excessive Fines Clause to any subsequent prosecution, civil or
administrative proceeding, that relates to the Relevant Offenses.
28. Defendant is pleading guilty because it is guilty of the crimes
charged in the Informations.
29. The Defendant is aware that Title 18, United States Code,
Section 3742 affords Defendant the right to appeal the sentence imposed in this
case. Acknowledging this, in exchange for the undertakings made by the United
States in this Plea Agreement, Defendant hereby waives all rights conferred by
Title 18, United States Code, Section 3742 to appeal any sentence imposed,
including any restitution order, or to appeal the manner in which the sentence
was imposed, unless the sentence exceeds the maximum permitted by statute or is
the result of any upward departure from the guideline range the court
establishes at sentencing. Defendant further understands that nothing in this
Plea Agreement shall affect the government's right and/or duty to appeal as set
forth in Title 18, United States Code, Section 3742(b). However, if the United
States appeals Defendant's sentence pursuant to Section 3742(b), Defendant shall
be released from the above waiver of appellate rights. Defendant understands
that, although Defendant will be sentenced in conformity with the Sentencing
Guidelines, by this agreement, Defendant waives the right to appeal the sentence
on the basis that the sentence is the result of an incorrect application of the
Sentencing Guidelines.
30. Defendant agrees that a person who is a senior executive
officer of both Defendant and Xxxxxx will appear to enter the guilty plea and
for the imposition of sentence. Defendant and Xxxxxx also expressly agree that
they will not, and will instruct their representatives not to, make any public
statements or representations which are in any way contrary to the Defendant's
admission of guilt in this Plea Agreement.
31. This is the entire Plea Agreement between the United States and
Defendant. Except as provided in the Civil and Administrative Settlement,
particularly as the Settlement relates to the ability of Defendant, Olsten, and
its related entities, to participate in federally-funded programs, no other
promises, representations or inducements have been made to the Defendant or its
attorneys and none will be made unless in writing and signed by all parties.
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AGREED AND ACCEPTED:
XXXXXXXX HOME HEALTH CARE, INC.
/s/ Xxxxxxx X. Xxxxxxxxxxx
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XXXXXXX X. XXXXXXXXXXX
EXECUTIVE VICE PRESIDENT AND GENERAL COUNSEL,
OLSTEN CORPORATION
EXECUTIVE VICE PRESIDENT
XXXXXXXX HOME HEALTH CARE, INC.
/s/ Xxxxxx X. Xxxxxx, Esquire
------------------------------
XXXXXX X. XXXXXX, ESQUlRE
XXXXXXX XXXXXX & XXXXX, PC
/s/ Xxxxxxx X. Xxxxxxx, Esquire
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XXXXXXX X. XXXXXXX, ESQUIRE
XXXX XXXXXXXX & XXXXXX XXX
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Respectfully Submitted,
XXXXXX X. XXXXX
UNITED STATES ATTORNEY
/s/ Xxxxx X. Xxxxxxxx
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XXXXX X. XXXXXXXX
Assistant United States Attorney
Florida Bar No. 797529
XXXXXXX X. XXXXXX
UNITED STATES ATTORNEY
/s/ Xxxxxx X. Xxxx
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XXXXXX X. XXXX
Assistant United States Attorney
XXXXXXX X. XXXXX, XX.
UNITED STATES ATTORNEY
/s/ Xxxxxxx X. Xxxxxxxx
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XXXXXXX X. XXXXXXXX
Assistant United States Attorney
Georgia Bar No. 727890
/s/ Xxxxx X. Xxxxxxxx
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XXXXX X. XXXXXXXX
Assistant United States Attorney
Georgia Bar No. 121760
XXXXXX X. XXXXXXXX
CHIEF, FRAUD SECTION
Criminal Division
U.S. Department of Justice
/s/ Xxx Arbor
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XXX ARBOR
Senior Litigation Counsel
