United States v. Rakhit

United States of America, Plaintiff, v. Ashis Rakhit, et al., Defendants

Case No. 1:18cr33

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO

September 15, 2020

JUDGE PAMELA A. BARKER

MEMORANDUM OPINION AND ORDER

Currently pending are the Motions of the Plaintiff United States to (1) Compel Defendants' Compliance with Fed. R. Crim. P. 16(b) (Doc. No. 103); (2) Enforce Administrative Subpoenas against Defendants (Doc. No. 104); and (3) Enforce Administrative Subpoenas against Ohio Cardiology Associates, Inc. and Ashis K. Rakhit, M.D., Inc. (Doc. No. 110.) Also pending is the Motion of Defendants Ashis Rakhit and Jayati Gupta Rakhit for a Protective Order. (Doc. No. 106.) Briefs in Oppositions were filed in June and July 2020, followed by Reply Briefs. (Doc. Nos. 105, 108, 109, 116, 117, 118.)

For the following reasons, Plaintiff's Motion to Compel Compliance with Rule 16(b) (Doc. No. 103) is GRANTED IN PART and DENIED IN PART, as set forth herein. Defendants' Motion for Protective Order (Doc. No. 106) is GRANTED, and Plaintiff's Motion to Enforce Administrative Subpoenas against the Defendants (Doc. Nos. 104) is DENIED. Lastly, Plaintiff's Motion to Enforce Administrative Subpoenas against Ohio Cardiology Associates, Inc. and Ashis K. Rakhit, M.D., Inc. (Doc. No. 110) is GRANTED.

I. Background

Defendants Ashis Rakhit ("Dr. Rakhit") and Jayati Gupta Rakhit ("Dr. Gupta") are husband and wife medical doctors who specialize in cardiovascular disease and internal medicine. (Doc. No. 46 at ¶ 1.) In the mid-1990s, Dr. Rakhit formed Ashis K. Rakhit, M.D., Inc., and Dr. Gupta formed Ohio Cardiology Associates, Inc. (Id. at ¶ 2.) Collectively, Defendants had four practice locations, in Cleveland, Strongsville, and Parma, Ohio. (Id. at ¶ 3.)

On January 17, 2018, Defendants were indicted on multiple counts of (1) conspiracy to commit health care fraud in violation of 18 U.S.C. § 1349 (Count 1); (2) health care fraud in violation of 18 U.S.C. § 1347 and 2 (Counts 2 through 12); (3) false statements relating to health care matters in violation of 18 U.S.C. § 1035 and 2 (Counts 13 through 18); and (4) distribution of controlled substances in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C), and (b)(2) (Counts 19 through 24). (Doc. No. 1.) The Indictment charged that, from January 2011 to the present, Defendants illegally distributed prescription-controlled substances to customers located in the Northern District of Ohio, including prescriptions for oxycodone, tramadol, and alprazolam. (Id. at ¶ 23.) It further charged that, during this same time period, Defendants committed health care fraud by submitting billings to Medicare and Medicaid for services that were not medically necessary, or by using inflated or "upcoded" codes that reflected services more costly than those which were actually performed. (Id. at ¶¶ 35.) Lastly, Defendants were charged with knowingly making materially false and fraudulent statements in connection with claims for reimbursement, including false diagnoses for certain patients. (Id. at ¶ 44.)

On January 23, 2018, law enforcement agents executed search warrants at the Defendants' practice locations. (Doc. No. 104 at p. 2.) On that same date, the Government served administrative subpoenas duces tecum on (1) Dr. Rakhit, (2) Dr. Gupta, (3) Ashis K. Rakhit, M.D., Inc.; and (4)Ohio Cardiology Associates, Inc. (Doc. No. 104-1.) These subpoenas were issued pursuant to 18 U.S.C. § 3486 and, among other things, required the recipients to preserve and produce medical and billing records relating to 265 patients, listed in Attachment B to the subpoenas. (Doc. No. 104-2 at PageID# 2040.) Specifically, Specifications 11 and 12 to the subpoenas provide as follows:

For the Subpoena Period, provide the following:

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11. All documents that relate to any amount charged by or amount reimbursed to [the subpoena recipient] for any procedure, treatment or related service provided to the beneficiaries listed in Attachment B, including, but not limited to, superbills, claims, remittance notices, explanation of benefits, and other documents that relate to the description of the procedure, service, or treatment, and to any codes and units of service billed. Please include all correspondence with these patients.

12. The complete medical records for the beneficiaries listed in Attachment B, including, but not limited to: (a) orders, (b) facility and/or clinical records, (c) treatment plans, (d) SOAP notes, (e) history and physical examinations, (f) physician progress notes, (g) nursing notes, (h) any staff notes relating to cardiology and/or internal medicine, (i) daily treatment notes, (j) flow sheets, (k) equipment supply/order sheets, (l) labs and diagnostic test results, (m) nuclear stress tests results, including the nuclear camera file, (n) all catheterization films in digital or other format.

(Id.)

On March 27, 2018, the United States served another set of administrative subpoenas pursuant to 18 U.S.C. § 3486, again on (1) Dr. Rakhit, (2) Dr. Gupta, (3) Ashis K. Rakhit, M.D., Inc.; and (4) Ohio Cardiology Associates, Inc. (Doc. No. 104-3.) These Subpoenas sought the same material as the January 2018 subpoenas but with respect to 32 additional patients. (Id.) The United States indicates that each of these subpoenas were served on counsel for the named Defendants. (Doc. No. 104 at p. 4.)

On April 10, 2018, counsel for the United States emailed defense counsel for an update regarding Defendants' production in response to the subpoenas. (Doc. No. 104-4.) In that email,counsel for the Government stated that "[a] lot of what we requested was seized during the execution of the search warrant, but we believe that nine of the patient files listed in the subpoenas were not located during the search and we would like the files produced or a written response explaining why they are not being produced." (Id.) Then-defense counsel William Beyer responded that same day with an email confirming a conversation between the parties regarding this issue. (Doc. No. 104-5 at PageID# 2088.) Therein, Mr. Beyer stated that "we will look for the patient files for the 9 individuals. (Id.) However, Mr. Beyer also requested that "the government will provide us with case law that supports its position that post indictment administrative subpoenas must be complied with." (Id.) In response, the United States identified the Sixth Circuit's decision in United States v. Phibbs, 999 F.2d 1053 (6th Cir. 1993) as support for its use of post-indictment administrative subpoenas. (Doc. No. 104-5 at PageID# 2087.) Counsel for the Government asked defense counsel to "please let us know if we will need to move under 18 U.S.C. § 3486(c) to enforce the subpoenas." (Id.)

On April 25, 2018, defense counsel Richard Blake produced responsive documents on behalf of both Defendants, as well as on behalf of Ashis Rakhit, M.D., Inc. and Ohio Cardiology Associates, Inc. (hereinafter referred to as the "Corporate Entities"). (Doc. No. 104-6.) According to the U.S., this production included the Defendants' files for six of the nine missing patients. (Doc. No. 104-7.)

Thereafter, on May 3, 2018, the United States served additional administrative subpoenas pursuant to 18 U.S.C. § 3486, on both Defendants and the Corporate Entities. (Doc. No. 104-8.) These Subpoenas sought the same material as the January and March 2018 subpoenas but with respect to one additional patient, who will be identified as M.Y. (Id.) The United States avers that each of these subpoenas were served on counsel for the named Defendants. (Doc. No. 104 at p. 5.)

Meanwhile, Dr. Rakhit invoked Fed. R. Crim. R. 16 and demanded discovery from the United States. (Doc. No. 19.) The United States complied on March 28, 2018 and followed up with a number of supplemental discovery disclosures throughout 2018. (Doc. No. 103 at p. 3.) Additionally, in September 2018, the United States produced the expert report of professional coder Sonda Kunzi regarding seven bills submitted for four patients. (Id. at p. 12.) Several months later, in November 2018, the United States produced the expert report of cardiologist Robert Biederman, M.D., regarding cardiac testing of four patients. (Id.)

On January 16, 2019, the grand jury returned a Superseding Indictment against Dr. Rakhit and Dr. Gupta, which added numerous charges of health care fraud and unlawful distribution of controlled substances. (Doc. No. 46.)

The United States made supplemental discovery disclosures to Defendants in February, June and November 2019. (Doc. No. 103 at p. 3.) Additionally, the United States produced (1) two additional expert reports from Ms. Kunzi in February 2019; and (3) three updated and/or additional expert reports from Dr. Biederman in February, May, and August 2019. (Id. at pp. 12-13.) The United States also disclosed expert reports from cardiologist Ian Gilchrist, M.D., in February, April, and August 2019, as well as an expert report from pain management physician Milton Landers, M.D., regarding controlled substance prescriptions in June 2019. (Id.)

On December 17, 2019, the United States served an administrative subpoena on Defendants and Ohio Cardiology Associates, Inc., pursuant to 18 U.S.C. § 3486. (Doc. No. 104-9.) This subpoena sought the production of "all patient medical records" from January 24, 2018 through the present for thirteen (13) specific patients. (Id.) According to the United States, this subpoena was served on counsel for Defendants. (Doc. No. 104 at p. 5.)

On January 29, 2020, defense counsel Steven Bradley produced responsive documents for two of the thirteen patients identified in the December 2019 subpoena. (Doc. No. 104-10.)

The following month, Defendants produced the expert reports of (1) Jacqueline Bloink, M.B.A. (Doc. No. 103-6); (2) cardiologist Bruce Charash, M.D. (Doc. No. 103-5); (3) family physician William Miser, M.D. (Doc. No. 103-8); and (4) cardiologist Jonathan Marmur, M.D. (Doc. No. 103-10). In...