Monterey County Herald (California)

March 15, 2009 Sunday

Accused Soledad prison doctors were tracked

BYLINE: By VIRGINIA HENNESSEY Herald Salinas Bureau

SECTION: LOCAL

LENGTH: 1245 words

State investigators used GPS tracking devices, cell phone records and rental car receipts to determine if five doctors at Salinas Valley State Prison were falsifying their billing hours.
Grand jury transcripts, unsealed at The Herald’s request, indicate the state opened its investigation after another psychiatrist at the Soledad prison complained in a letter to one of his legislators.
With the prison’s cooperation, investigators began monitoring the doctors’ movements by collecting security videos and entry and exit logs that were not previously retained. Global-positioning devices were placed on the underside of three of the doctors’ cars. Others were tracked through cell phone and rental car records.
In November, the five doctors were named in a 31-count indictment charging them with grand theft by fraud, falsification of public records and filing false claims that allegedly bilked the state of $160,000 between March and October 2007.
The physicians and Dr. Charles Lee, the prison’s chief of medical services, also were charged with four counts of misappropriation of public funds and conspiracy. Lee is accused of knowingly signing falsified time sheets.
No fraud could be determined prior to March 2007 because the prison did not keep the security records, a procedure that has been changed.
According to the grand jury transcript, lead defendant Dr. David Hoban of Santa Cruz convinced fellow doctors Randy Sid of Pacific Grove, Pedro Eva of Soledad, Wade Exum of Las Vegas and Mark Herbst of Honolulu to bill for full, 10-hour days though they typically left the facility by 2p.m.
With the exception of Lee, all of the doctors were contracted by the state through physician registries to provide medical and psychiatric care at the prison.
They were hired after a federal judge placed the California Department of Corrections and Rehabilitation into receivership because of overcrowding and constitutionally inadequate health care. All except Sid are psychiatrists.
Unlike doctors employed by the state Department of Mental Health, who work on a per diem basis, the contract doctors are required to bill hourly for their services. To entice more doctors, the federal trustee increased their hourly rate from $150 to $250.
Hoban previously worked as a contract psychiatrist at the prison, but quit in 2004 when Lee told him he could not work on a per diem basis. Lee told investigators Hoban quit, saying, “If this is not going to work for you, it’s not going to work for me.”
Hoban returned three months later after rates were increased to $250, according to prosecutor Doug Matheson. In a meeting with other doctors, according to testimony, he proposed a “doctor-of-the-day” system, in which one doctor would remain on-site through the day, and the others could leave after they had seen their patients.
At least one doctor, Saowarut Kittimongcolporn, commonly known as Dr. Kitti, refused. Others adopted the practice, according to testimony.
Hoban and Lee also discussed the matter at a meeting, jurors were told. Lee told Deputy Inspector General Rusty Davis he was more concerned with the quality of the work than the hours.
“I expect you to do the work,” Lee told Hoban, according to Davis’ testimony. “I’m not going to check the second you come in and the second you go out.”
“How that was interpreted, I don’t know,” Lee told Davis, acknowledging that he was aware the doctors were not present for all the hours they billed.
“It has been abused,” Lee said. “Historically, the doctors cannot be found after 2p.m.”
Mike Lawrence and Andy Liu, defense attorneys for Lee and Herbst, respectively, informed Judge Larry Hayes on Thursday they intend to challenge the conspiracy charge in the case.
Liu said Friday he doesn’t think the grand jury heard sufficient evidence to indict on the charge, which requires there be an agreement between at least two of the parties. The per diem issue may have been discussed, he said, but “I don’t see that as an agreement.”
Without that charge, which adds nothing to a potential sentence, he said, prosecutors would have had to convene separate grand juries for each defendant.
Hayes scheduled arguments on the motion for June 12, at which time a trial date likely will be set.
According to testimony, all of the doctors received regular letters from their registries warning them that they could be charged with fraud if their billed hours did not match time sheets.
Hoban acknowledged receiving the letters, but said he preferred to work on a per diem basis because he is a “professional” and an independent contractor, so he is not “held to the same standard.”
According to the transcript, Hoban came in about 7a.m. and frequently left by 11a.m. He told Davis that he billed 10 hours per day with Lee’s knowledge. He did not explain why he then felt it necessary to allegedly falsify the exit logs.
According to testimony, Hoban and other doctors usually signed the entry log between 7 and 8a.m., but regularly left without signing the exit sheet. On numerous occasions, Davis said, video showed them returning to work a day or two later and flipping back to the previous page to enter a false exit time for the previous day they worked.
With permission from the Attorney General’s Office, Davis placed GPS devices under cars belonging to Hoban, 65; Sid, 42; and Eva, 43.
Matheson told the grand jury the practice is legal without a search warrant, as long as the device is battery operated and not hard-wired into the car’s electrical system, placed on the car’s exterior, and the vehicle is parked on public property.
What he found, Davis said, was that the doctors were miles away in Santa Cruz, Salinas and San Ardo when prison logs indicated they were at work.
Because Exum, 60, and Herbst, 48, flew to the state for their shifts, Davis could not use a GPS device. He said he tracked them through video at the prison and rental car records that showed them returning their cars at San Francisco and San Jose airports before they supposedly left the prison.
According to the testimony, Hoban overbilled the state by $60,445 during the seven-month period. Herbst allegedly overbilled by $44,963; Eva by $24,562; Sid by $16,800; and Exum by $13,570. Lee is not alleged to have profited from the scheme.
Lee told investigators he went along with the billing practices to keep doctors at the facility. The state was trying to prevent a federal takeover of the prisons and a court order to release prisoners.
In February, a special three-judge federal panel issued a tentative ruling that the state must reduce its prison population by as many as 57,000 inmates. The panel said prison overcrowding was at fault for the high rate of inmate deaths from suicides and lack of care. The state intends to appeal the ruling to the U.S. Supreme Court.
Asked by a grand juror in the local case if care improved at the Salinas Valley prison during the period the six doctors were there, Davis said that it had.
Matheson said that performance record did not excuse their actions.
“Even though they did their job (and) they were good doctors,” he said, “that’s not a defense to theft.”
Virginia Hennessey can be reached at 753-6751 or vhennessey@montereyherald.com
By the numbers
$160,000 The total amount of which the five doctors allegedly bilked the state.
10 The number of daily hours all five doctors billed the state for working.
6 to 7 The alleged number of hours most of the doctors actually worked.
$250 Amount the doctors were paid per hour.