Federal Court Nixes Appeal of Physician Convicted of Participating in Urine Drug Test Billing Scam

Before the pandemic began, fraudulent utilization and false billing of medically unnecessary urine drug screening had climbed to the top of the agenda for federal enforcement. (See National Lab Report, May 13, 2019, page 1). One of the many providers to feel the fury was the Florida physician/medical director of a pair of sober home clinics who in February 2019 was convicted for his role in a massive fraud scheme involving billings for millions of dollars of unnecessary urine drug tests on recovering addicts. The Jury Conviction He was just a patsy in the 20-member conspiracy, the physician had claimed. But after an 8-day trial, the Florida federal jury found him guilty of conspiracy to commit health care fraud and distribute controlled substances, as well as seven counts of unlawfully dispensing controlled substances. As a result, the physician was sentenced to 11 years in prison and ordered to pay $1 million in restitution. The owner of the clinics who served as ringleader of the scheme is also serving a 27-year sentence after being convicted of multiple charges. The Failed Appeal The physician appealed, claiming that the jury didn’t have enough evidence to convict. But now the U.S. Court of Appeals for the 11^th Circuit has ruled that there was more than enough evidence to support the verdict and sentence and tossed the appeal. The physician played a central role in the scam, reasoned the Court. It wasn’t just that he ordered all of those medically unnecessary drug tests but also the way he ordered them that made him guilty. Examples:

• For one lab, he issued a standing order authorizing as medically necessary two to three scheduled and up to two random tests on a single patient per week; and
• For the second lab, he pre-signed blank requisition forms for drug tests leaving the patient information blank so that others could enter it later.

In each case, staff photocopied the documents and used them to maximum advantage, often ordering tests and providing their own urine samples for patients who didn’t show up for appointments [U.S. v. Abovyan, 2021 U.S. App. LEXIS 5030, 988 F.3d 1288, 28 Fla. L. Weekly Fed. C 2452]. Takeaway It’s hard to understand the defense’s legal strategy without knowing all of the details of the case. But the severity of the sentence in Abovyan is a pretty good reminder of why the vast majority of false claims cases are settled rather than taken to trial. Of course, it’s easy to second-guess, especially when representing defendants who firmly believe—and perhaps accurately so—that they haven’t done anything wrong.