South Florida

Psychologist cleared of Medicare fraud denied bid for $150,000 in U.S. damages for prison time

South Florida therapist Vanja Abreu at her Miami lawyer’s office in 2017.
South Florida therapist Vanja Abreu at her Miami lawyer’s office in 2017. Miami Herald File

A South Florida psychologist who was imprisoned for 1,029 days for Medicare fraud before her conviction was overturned cannot qualify for a damage claim against the U.S. government because she has not proven her actual innocence, a federal judge in Miami has ruled.

Falling short of that high legal standard, Vanja Abreu, 55, is not eligible to collect $150,000 from the government for her time at a Tallahassee federal prison, the judge found this week.

In her decision, U.S. District Judge Patricia Seitz concluded that while a federal appeals court ruled in 2015 that there was “insufficient evidence” to convict the Pembroke Pines therapist, “nowhere ... does the court go so far as to find the defendant actually innocent of the crime.”

“While there was insufficient evidence to support [her] conviction, there is still room for the possibility that [Abreu] committed the crime,” Seitz wrote in the 12-page ruling.

“[The] defendant has not offered any evidence of actual innocence and relies solely on the Eleventh Circuit [Court of Appeals’] opinion discussing the insufficiency of the evidence used to convict her,” Seitz wrote. “Even if a crime has not been proved beyond a reasonable doubt, it remains possible that [Abreu] committed the crime.”

Abreu was convicted at a Miami federal trial in June 2012 and sentenced to nine years for her role in a conspiracy to commit healthcare fraud that implicated dozens of employees and associates of a Miami-based chain of mental health clinics, American Therapeutic. But the federal appeals court in Atlanta freed her by throwing out the conviction in August 2015, concluding “there is no direct evidence that Dr. Abreu actually knew of or joined in the conspiracy.”

Abreu’s team of lawyers, who are working pro bono on her damage claim, plan to challenge Seitz’s ruling before the same federal appeals court. Abreu’s attorneys asked Seitz, who oversaw her trial, to issue a certificate of innocence so she could qualify under U.S. law for a claim of $150,000 to redress her punishment. Since the 1940s, when the Unjust Conviction and Imprisonment Statute was adopted by Congress, there have been only 18 reported court decisions on petitions for innocence certificates.

Vanja Abreu’s Miami attorney, Daniel Fridman Roberto Koltun Miami Herald File

“We were very disappointed in the [judge’s] decision denying Dr. Abreu’s petition for compensation, which would have helped her continue to put her life back together after the horrible ordeal she and her family endured,” said Abreu’s attorney, Daniel Fridman, with the law firm White & Case in Miami.

“The decision adds to the tragedy of the three years Dr. Abreu spent separated from her husband and children while she was wrongfully imprisoned for a crime the court of appeals clearly stated that she did not commit,” Fridman said Thursday. “We are confident that the court of appeals will agree that she is the precise person that the Unjust Conviction and Imprisonment Statute was enacted to help.”

Abreu, who was licensed as a mental health counselor and clinical psychologist by the state of Florida, was hired as a program director for one of American Therapeutic’s chain of six clinics in 2005. She so impressed her bosses, CEO Marianella Valera and chain owner Lawrence Duran, that they made her the program director of the Miami clinic. She eventually was promoted to corporate director of quality assurance for the chain. Throughout her tenure, she made between $65,000 and $80,000 a year.

In October 2010, Valera, Duran and a few others in their executive circle were charged with conspiring to fleece $205 million from the taxpayer-funded Medicare by paying kickbacks to patient recruiters and filing false claims for purported therapy treatments. Over an eight-year period, Medicare paid $83 million to American Therapeutic for services that were not necessary or provided to patients, many of whom lived in halfway houses and received kickbacks.

Abreu, who was not charged in the first roundup of suspects, told the Miami Herald in an interview last year that she had always believed American Therapeutic did everything by the book and that most of the mentally ill patients came from hospitals and court referrals.

In response to her petition seeking damages, Justice Department lawyers treated Abreu as if she were still standing trial on the original conspiracy charge. In court papers, prosecutors said the federal appeals court “did not hold that Dr. Abreu was innocent of the crime charged in the indictment or wrongfully prosecuted, but rather that the government had failed to meet its burden of proof at trial.”

The prosecutors highlighted that American Therapeutic’s convicted former president and CEO, Valera, testified at Abreu’s trial that she altered patient files and medical notes to make it look like the chain’s therapy sessions were necessary and provided to Medicare patients. For Valera’s testimony against Abreu and other defendants, the executive’s initial 35-year sentence was reduced to 12 1/2 years.

Fridman, a former federal prosecutor in Miami, said the Justice Department continues to distort the record of Abreu’s 2012 trial after the appeals court completely cleared it up three years later.

“Conspiracy was the only charge in the indictment against her,” Fridman said in a court filing with colleagues Dylan Fay and Stephanie Silk. “The Eleventh Circuit did not write that the evidence for this charge was merely insufficient — it wrote that the evidence did not exist at all.”