Pill Mill Doctor’s Conviction Affirmed

HEALTH CARE FRAUD CONVICTION AFFIRMED

Barry Zalma

Oct 28, 2024

Transcript

ACTING AS A DR. FEEL GOOD IS A FEDERAL CRIME

According to the Sixth Circuit Dr. David Jankowski’s medical clinics relied on several unusual billing and prescription practices, many of which were illegal and Jankowski fraudulently billed Medicare for services he did not provide and prescribed controlled substances to patients whose conditions did not call for such treatment, with some patients unlawfully trafficking their prescribed drugs.

In United States Of America v. David Jankowski, M.D., No. 23-1404, United States Court of Appeals, Sixth Circuit (October 23, 2024) the Sixth Circuit disposed of the fraudsters claims on appeal.

FACTS

Following a trial, Jankowski was convicted of unlawful distribution of controlled substances, health care fraud, and conspiracy to commit the two offenses.

Jankowski was a licensed physician who specialized in pain management. He possessed a DEA license, which allowed him to prescribe and dispense controlled substances. Jankowski offered pain management services through two corporate entities. One operated a clinic equipped with an in-house pharmacy stocked with narcotics and other controlled substances. Another functioned as a home-based healthcare practice that sent providers to patients’ homes.

Jankowski was eligible to bill the federal Medicare program for these services. Together, his companies received $35.3 million in gross proceeds between 2011 and 2018. And over the course of about six years, Jankowski and his associates filled more than 3.4 million doses of Schedule II, III, and IV controlled substances.

THE CRIMES

The evidence at trial revealed Jankowski’s operations were rife with impropriety. Jankowski provided patients with unnecessary pain medication. His patients would later resell the pills, with one of Jankowski’s patients becoming “the biggest pill dealer” in the community. Besides seeing patients himself, Jankowski prepared pre-signed prescriptions so that unlicensed employees could prescribe controlled substances improperly in his absence.

Jankowski’s billed Medicare for services he did not provide.

Ultimately, 32 counts proceeded to trial. The FBI conducted its investigation into Jankowski partly through Henderson Butler, a confidential informant who posed as a patient at Jankowski’s clinic while equipped with recording devices. The evidence reflected many irregularities, including the fact that Jankowski did not always consult with Butler, the patient, even though the visits were billed under Jankowski’s name.

The jury convicted Jankowski of 30 out of 32 counts. The district court imposed forfeiture in the amount of $35 million and sentenced Jankowski to 240 months’ imprisonment, followed by three years of supervised release.

ISSUES

Jankowski raised many issues on appeal that the Sixth Circuit disposed of in order.

The Sixth Circuit noted that to prove that Jankowski committed health care fraud the government had to prove that he (1) created a scheme or artifice to defraud a health care program, (2) implemented the plan, and (3) acted with intent to defraud.

At trial, the government introduced sufficient evidence to convict Jankowski of conspiracy to commit healthcare fraud. The government provided evidence that Jankowski informed his billing company that he always directly supervised mid-level practitioners at his practice, allowing the company to bill under his name for a higher rate. The evidence also showed that Jankowski’s practice billed 221 claims to Medicare for services provided while Jankowski was out of state.

CONFRONTATION RIGHT

The statements-or lack thereof-made by Butler and the employees did not themselves violate the Clause.

FORFEITURE

The $35 million forfeiture order imposed on him was based on health care fraud subjected him to a forfeiture penalty of the “gross proceeds traceable to the commission of the offense,” whether “directly or indirectly.” 18 U.S.C. § 982(a)(7).

At trial, the government introduced evidence that Jankowski’s corporate entities brought in $35.3 million in revenue between 2010 and 2018. Jankowski’s fraud scheme centered on his illegal drug activities, all masquerading as legitimate medical services. The district court concluded that Jankowski’s medical practices were tantamount to “prescription mill[s].” From these findings, the $35.3 million figure represents both direct proceeds of Jankowski’s crimes, as well as indirect proceeds to maintain the fraudulent appearances.

At the very least, no plain error occurred.

ZALMA OPINION

The doctor and his lawyers who brought this appeal define “chutzpah” or unmitigated gall since he took in more than $35 million individually or through solely owned corporate entities. Not only did he bill for services he did not use, he was the supplier of illegal drugs to drug dealers. As a very bad man and a doctor who did not follow the Hippocratic oath to “first do no harm” and instead profited by doing harm. He will spend the next 250 moths in the federal gray bar hotel.