On Friday morning, psychiatrist Barry Kaplowitz was wearing a beige sweater to brace himself against the unusually cold weather and possibly the verdict that awaited him in a Miami federal courtroom on Medicare fraud charges.
Just after noon, following one week of deliberations, the jury convicted the Aventura doctor of lying about providing treatment for purported mental health patients that he never saw at Hollywood Pavilion, a psychiatric facility in Broward County.
But the dozen jurors also acquitted Kaplowitz, 54, of the main charge, conspiring to bilk the taxpayer-funded Medicare program, and of committing wire fraud. They also deadlocked on a pair of healthcare fraud charges.
U.S. District Judge Cecilia Altonaga ordered Kaplowitz, who had been free on bond before trial, to surrender to prison authorities immediately. After his defense attorney Joel Hirschhorn gave him a long hug, Kaplowitz shed his sweater, tie and belt before turning himself over to U.S. Marshals.
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Hirschhorn, a longtime criminal defense attorney, was dumbfounded and disappointed by the jury’s verdict. “They get it right most of the time, but you never know,” he said outside the courtroom. “It’s a strange verdict. But regardless of the evidence that the jury heard, Barry Kaplowitz is a decent man.”
Kaplowitz had worked part-time as the medical director of Hollywood Pavilion’s outpatient facility from 2008 to 2011 before his arrest last year. He now faces up to five years in prison at his sentencing on April 30.
Also on Friday, the same jury convicted former Hollywood Pavilion patient recruiter Tiffany Foster, 49, of Alabama, of conspiring to defraud Medicare by receiving kickbacks for referring patients to the psychiatric hospital. Foster, who last worked there a decade ago, faces up to up to 20 years on the fraud conviction and five years on the kickback offense at her sentencing on April 30. She also was ordered to surrender to prison authorities immediately.
A separate Miami federal jury convened in the same courtroom to hear charges of conspiracy, wire fraud and paying kickbacks in the parallel case of Melvin Hunter, who had worked as an inpatient admissions supervisor at Hollywood Pavilion during the past decade. The jury acquitted the 63-year-old Broward resident of all charges on Wednesday.
Hunter’s case was heard by a second jury because he testified in his own defense and potentially could have made incriminating statements about the other defendants, especially Foster. When he did testify, the other jury left the courtroom.
The latest trial followed the 2013 conviction of Hollywood Pavilion's chief executive officer, Karen Kallen-Zury of Lighthouse Point, who was found guilty along with three other employees of conspiring to bilk $67 million from Medicare by filing phony claims for mental health services from 2003 to 2012. Medicare was tricked into paying about $40 million to Hollywood Pavilion. Of those defendants, Kallen-Zury received the longest sentence: 25 years.
During the six-week trial, Justice Department lawyers sought to prove that Kaplowitz generated $6.5 million in false claims for Medicare patients who did not need psychiatric treatment, resulting in $3 million in tainted income for Hollywood Pavilion between 2008 and 2011. The psychiatrist was paid $1,250 a month over that period for showing up one day a week to sign charts and other paperwork to justify 2,800 false claims to Medicare, prosecutors said.
The prosecutors accused Kaplowitz of using his “robo” signature to sign off on thousands of bogus treatments to assist Hollywood Pavilion in stealing millions from Medicare. “It’s not just any kind of signing; it’s robo-signing,” prosecutor Andrew Warren told jurors.
“He’s an absentee doctor,” Warren declared during closing arguments last week, saying Kaplowitz did not see his patients after saying he would in treatment plans. “He rented out his medical degree. He sold his signature. Why? Simple, because Hollywood Pavilion needed it to bill Medicare.”
He said the notion that the psychiatrist could just sign off on treatment plans without actually seeing patients was “not only nonsensical” but “offensive.” He said in one instance, Kaplowitz was in Canada in 2011 when he was purportedly seeing a patient at Hollywood Pavilion
Hirschhorn argued that his client was unaware of the Hollywood-based psychiatric facility’s misuse of his signature.
“Evil, wicked people took advantage of this man's good name, good reputation, and efforts to provide good, honest services,” Hirschhorn countered during closing arguments. “Yeah. He signed lots of forms in blank, and he didn't date it with the date that he signed them. But did he do so with the intent to defraud?”
Hirschhorn answered his own question, saying: “There was absolutely no authorization for anyone to use Barry Kaplowitz's provider number” from Medicare. “If it was used, it was without his authorization.”
Warren said that Hunter, in charge of admitting patients at Hollywood Pavilion’s inpatient facility, “was the gatekeeper” who “admitted patients based on one thing, whether they had Medicare.”
He described Foster, based in Alabama, as the “matriarch of the HP patient brokers” at the psychiatric facility who received $500,000 in kickbacks for delivering patients.
But their defense attorneys strongly disagreed, saying they were not involved any Medicare fraud.
Hunter’s lawyer, Martin Feigenbaum, said his client had no authority to decide which patients could be admitted to Hollywood Pavilion and knew nothing about false Medicare billing or kickbacks paid to patient recruiters.
“He did his job,” Feigenbaum said, noting Hunter was paid about $50,000 annually over a six-year period. “He didn’t get any money” from the alleged scam.
Foster’s attorney, Marshall Dore Louis, said she was a businesswoman who had a marketing contract with Hollywood Pavilion to generate patients. He said that when Kallen-Zury, the onetime CEO, took over the reins of the family-run operation in 2005, Foster quit because she suspected something was not right.
“The evidence is overwhelming that she withdrew from this conspiracy” that September, Louis argued, to no avail.
A fourth defendant, Christopher Gabel, 62, of Davie, the former chief operating officer, pleaded guilty in November to conspiring to commit healthcare fraud and pay kickbacks to patient recruiters. Gabel, who is serving a six-year prison term, testified that Medicare beneficiaries — including drug addicts with disability status — were admitted regardless of whether they qualified for treatment or even saw a doctor.
The Hollywood Pavilion case was investigated by the FBI and Health and Human Services-Office of Inspector General.