Government’s Opposition to Christopher Garnto’s Second Motion to Modify Supplemental Condition of Pretrial Release Concerning Employment in “Health Care Field” — United States v. Garnto (Dkt. 179, S.D. Fla.)

Summary

The government's opposition to Christopher Garnto's second motion to modify a supplemental condition of pretrial release concerning employment in the health care field, filed April 5, 2021 in United States v. Christopher Garnto, Case No. 21-60020-CR-DIMITROULEAS/SNOW, in the U.S. District Court for the Southern District of Florida. The government opposes the motion (D.E. 165), which seeks permission for Garnto to return to work in health care. It states that, as alleged in the Indictment and Complaint, Garnto was the key patient recruiter for Compass Detox and WAR, and recites the allegations about patient recruiting and insurance billing. A footnote states that the government does not intend to oppose a separate motion to sell property (D.E. 175). The opposition is signed by Senior Litigation Counsel James V. Hayes.

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Case 0:21-cr-60020-WPD Document 179 Entered on FLSD Docket 04/05/2021 Page 1 of 12




                               UNITED STATES DISTRICT COURT
                               SOUTHERN DISTRICT OF FLORIDA

                          Case No. 21-60020-CR-DIMITROULEAS/SNOW

   UNITED STATES OF AMERICA

   vs.

   CHRISTOPHER GARNTO,

                     Defendant.
   ___________________________________/

   GOVERNMENT’S OPPOSITION TO CHRISTOPHER GARNTO’S SECOND MOTION
       TO MODIFY SUPPLEMENTAL CONDITION OF PRETRIAL RELEASE
           CONCERNING EMPLOYMENT IN “HEALTH CARE FIELD”

          The United States of America, through counsel, hereby opposes defendant Christopher

   Garnto’s (“Garnto”) Second Motion to Modify Supplemental Condition of Pretrial Release

   Concerning Employment in “Health Care Field” [D.E. 165] (“Motion”).1 Garnto seeks permission

   to return to work in the very industry in which, for the last three years, he allegedly took advantage

   of patients with serious addictions, as well as private insurance plans, to make money for himself.

   As alleged in the Indictment and Complaint, Garnto was the key patient recruiter for Compass

   Detox and WAR. Garnto ensured that Compass Detox and WAR had a steady stream of patients

   for which to bill private insurance companies. He did this, in part, by directing other patient

   recruiters to help known drug addicts get high on illegal drugs or alcohol so that they would appear

   qualified to attend detox, the most expensive level of care offered by Compass Detox. Once

   admitted to Compass Detox, the defendants, including Garnto, engaged in a wide-ranging and

   varied health care and wire fraud scheme described at length in the Complaint and Indictment. For




   1
         Garnto also filed a motion to permit him to sell certain property [D.E. 175] and the
   Government does not intent to oppose that motion.
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   example, patients often would be over-medicated to the point of sedation, including through the

   overuse of controlled substances and a concoction known as a “comfort drink,” which was a bluish-

   green liquid mixture of sedative medications about the size of a shot of alcohol. The Government

   presented evidence at the preliminary hearing, which is also available in discovery, that Garnto,

   who is not a medical professional, directed medical personnel to give patients additional

   medication when they requested it. In addition, Garnto paid patients, helped arrange their flights

   from all over the country to South Florida, and paid patient recruiters in order to ensure that patients

   would enroll in and remain at Compass Detox, all of which are kickbacks prohibited by the

   Eliminating Kickbacks in Recovery Act (“EKRA”). These kickbacks enabled the subsequent

   fraudulent billing. Furthermore, Garnto owned a laboratory to which Compass Detox sent urine

   samples for medically unnecessary urinalysis testing that was billed to private insurers, often for

   thousands of dollars per test. In exchange for these referrals, Garnto’s lab paid co-defendant

   Jonathan Markovich, an owner of Compass Detox, over $200,000 in kickbacks.

          None of Garnto’s arguments in favor of modifying the employment restriction so that he

   can return to work in the substance abuse treatment industry are availing. First, Garnto’s proposed

   revisions to the restrictions on how he may be compensated for work in the health care field are

   inconsistent with EKRA. Garnto is charged with an EKRA conspiracy and several substantive

   EKRA kickback counts. In the context of substance abuse treatment and laboratory services

   covered by private insurance plans, EKRA criminalizes payment arrangements based on the

   volume of patient referrals. Yet, with no explanation, Garnto asks the Court to remove the current

   restriction precluding him from being compensated based on the “volume of customers he refers,”

   and, in its place, substitute a narrower restriction precluding compensation based on the “volume




                                                      2

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   or value of any monies reimbursed” by an insurer. EKRA is not so narrow. The compensation

   restriction should, at minimum, be as restrictive as the key criminal statute in this area.

          Furthermore, Garnto’s other revisions to the employment restriction are likewise

   untenable. As it stands, the employment restriction was already modified to permit certain

   employment in the health care field. [D.E. 123.] Contrary to Garnto’s assertions that the restriction

   is “Draconian” (Mot. at 1), the employment restriction is common in health care fraud cases and,

   because of the prior modification agreed by the parties, is even more reasonable as applied to

   Garnto.2 Even the doctors in this case (Dr. Santeiro and Dr. Lieberman), both of whom went to

   school for many years to develop a specialized skill and obtain their licenses, have agreed not to

   treat substance abuse patients. [D.E. 37, 79.] To get around this, Garnto simply asserts that the

   only way he can earn a living is if he returns to the substance abuse treatment field. But he says

   nothing about what he has tried to do to find work since he was terminated from his position at

   Tobias & Associates, or whether he has even attempted to find work in another field. To be clear,

   the Government takes no issue with Garnto working as a website developer generally while he is

   awaiting trial, just as the Government takes no issue with certain other defendants practicing law.

   But just as the lawyer defendants cannot become general counsel for a substance abuse treatment

   center while under their current employment restriction, Garnto cannot become a website

   developer or marketer for a substance abuse treatment provider.

          Finally, Garnto represents that he will follow the law while employed for a substance abuse

   treatment center, and the Government hopes he will, but the Court should take reasonable




   2
           Garnto’s trial will begin in roughly four months. The current employment restriction, as
   modified by Judge Hunt with the parties’ agreement, is even more reasonable when viewed in light
   of the prompt trial date set by the Court at Garnto’s request. Garnto should seek employment
   outside the substance abuse industry while awaiting trial for the next four months. It is that simple.
                                                     3

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   precautions to ensure that patients and private health plans are not put at further risk while Garnto

   is released pending trial. That is the point of bond conditions. The conduct alleged against Garnto

   was egregious and put patients at substantial risk of bodily harm. Private insurers were billed

   nearly $112 million for services purportedly provided by Compass Detox, WAR, and related

   providers, in part due to Garnto’s alleged conduct. Garnto’s representation that he will follow the

   law if allowed to return to the substance abuse treatment field should be scrutinized in light of

   these allegations and reasonable restrictions should remain in place to ensure no further violations

   or harm to patients and victims.

                                      FACTUAL BACKGROUND

          A. The Charges Against Garnto

          The Indictment charges Garnto with conspiracy to commit health care fraud and wire fraud

   (Count 1), substantive health care fraud (Counts 2-9), conspiracy to violate EKRA (Count 10), and

   substantive EKRA kickbacks (Counts 15-21). [D.E. 110.] While the Indictment alleges the

   manner and means through which Garnto and his co-defendants carried out the conspiracies, as

   well as particular examples of alleged fraudulent billings and alleged kickbacks, the criminal

   Complaint [D.E.1] contains even more specific allegations concerning Garnto. In particular, some

   of the allegations against Garnto detailed in the Complaint include:

             Multiple witnesses described Garnto as the lead patient recruiter and indicated that
              other patient recruiters, including co-defendant Mario Kustura, worked under Garnto.
              Multiple patients described being paid by Garnto, through Kustura or other patient
              recruiters.

             Patient 1 was paid to attend Compass Detox by co-defendant Mario Kustura, who
              obtained the money from Garnto. Patient 1 overdosed (and survived) on heroin
              provided by Kustura.

             Kustura arranged for Patient 2 and another patient to fly from California to South
              Florida to attend treatment at Compass Detox. Co-defendant D. Markovich paid for
              the flights and Garnto arranged the ride-share to the airport in California. Kustura sent

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              the patients, a known addict, money so that they could buy alcohol before coming to
              Compass Detox.

             Garnto and D. Markovich arranged flights for Patient 5 from New York to Florida to
              attend Compass Detox. Garnto also told Patient 5 and another Compass Detox patient
              that they had to have “dirty” urine before they could come back to Compass Detox, and
              Garnto provided the money to accomplish this.

             Patient 20 and another patient were instructed by Garnto that they could not return to
              Compass Detox for treatment if they were “clean.” Garnto would send someone to
              pick them up and purchase heroin or alcohol for them to get high before returning to
              Compass Detox.

             Confidential Witness 1, a former nursing employee of Compass Detox, indicated that
              Garnto would direct Dr. Lieberman to order nursing staff to give patients additional
              medication.

             Confidential Witness 4, a former Compass Detox employee, indicated that Garnto and
              D. Markovich—neither of whom are medical professionals—decided how long
              patients would stay at Compass Detox, and that this was based on the quality of a
              patient’s insurance.

             Garnto, among other defendants, endorsed the practice of patient recycling whereby
              patients who relapsed at WAR (an outpatient center that provided lower levels of care)
              would end up back at Compass Detox (an inpatient center that provided higher and
              more expensive levels of care).

             Cooperating Defendant 1 stated that Garnto told Cooperating Defendant 1, who owned
              a lab, that other labs offered to pay Compass Detox in exchange for urinalysis referrals.
              As alleged in the Complaint, Garnto’s lab paid co-defendant Jonathan Markovich
              approximately $217,907.

             The Complaint summarizes the preliminary opinion of the Government’s medical
              expert regarding excessive and medically unnecessary urinalysis testing at Compass
              Detox and WAR, which was referred to outside laboratories (including Garnto’s lab).
              In addition, the Complaint provides an example where patient files and billing records
              demonstrate that an expensive urinalysis billed by Garnto’s lab was medically
              unnecessary.

          B. The Employment Restriction

          Garnto made his initial appearance on September 28, 2020 before Judge Hunt, who

   imposed as a condition of bond a restriction from working in the health care or addiction treatment



                                                    5

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   fields. [D.E. 22.] Subsequently, the parties agreed to a modification of this restriction so that

   Garnto could work as a customer service representative for a company that assists individuals in

   signing up for health insurance plans. [D.E. 123.] Specifically, the parties agreed, and Judge Hunt

   adopted, the following modified employment restriction:

          Mr. Garnto is restricted from working in the health care field, except that he may
          work for a call center that connects customers to potential health care insurance
          plans to the extent that Mr. Garnto is not (a) compensated based on the volume of
          customers he refers to such health care insurance plans; (b) directly or indirectly
          involved in the submission, processing or adjudication of claims for services that
          may be reimbursable under a federal, state, or private health care plan; or (c)
          involved in the marketing of any specific health care provider or any specific health
          care service, good, or medication.

          Notably, these modifications still preclude Garnto from directly working in the health care

   field, particularly for any substance abuse treatment center, and from being paid based on the

   volume of patients he refers. Now, Garnto proposes two further modifications: (1) to work directly

   for unidentified substance abuse treatment centers as a website designer and marketer; and (2) to

   delete the restriction on compensation based on referrals (so long as he is not compensated based

   on the amount reimbursed by insurance). As described below, EKRA prohibits certain volume-

   based compensation arrangements, including certain per-patient or per-referral compensation.

   While Garnto does not detail how he is to be compensated or why he proposes this change, his

   proposed narrowing of the compensation restriction is simply inconsistent with EKRA.

          C. EKRA

          EKRA was enacted in October 2018 and prohibits kickback arrangements with respect to

   services covered by a health care benefit program, including private health insurance plans such

   as those at issue in this case. Title 18, United States Code, Section 220 provides:

          Except as provided in subsection (b), whoever, with respect to services covered by
          a health care benefit program, in or affecting interstate or foreign commerce,
          knowingly and willfully-

                                                    6

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          (1) solicits or receives any remuneration (including any kickback, bribe, or rebate)
              directly or indirectly, overtly or covertly, in cash or in kind, in return for
              referring a patient or patronage to a recovery home, clinical treatment facility,
              or laboratory; or

          (2) pays or offers any remuneration (including any kickback, bribe, or rebate)
              directly or indirectly, overtly or covertly, in cash or in kind-

              (A) to induce a referral of an individual to a recovery home, clinical treatment
                  facility or laboratory; or
              (B) in exchange for an individual using the service of that recovery home,
                  clinical treatment facility, or laboratory.

                                            ARGUMENT

   I.     GARNTO’S   PROPOSED    REVISIONS   TO   THE                            COMPENSATION
          RESTRICTION ARE INCONSISTENT WITH EKRA.

          Garnto proposes to revise the compensation restriction so that it no longer prohibits

   compensation based on the volume of customers he refers, but only prohibits compensation based

   on the value of insurance reimbursements. Mot. at 2. Charitably put, this revision is half-baked.

   Garnto provides no explanation for why any revisions to the compensation restriction would be

   necessary so that he can work as a website developer. This requested change is even more

   befuddling considering Garnto’s statement that he will not be compensated based on the volume

   of customers referred. See Mot. at 4. Thus, it is unclear why this change is even being proposed.

   Without further explanation, the Government is constrained to oppose this proposed revision as

   inconsistent with EKRA, which expressly precludes payments for volume-based referral

   arrangements in the context of substance abuse treatment services covered by private insurance

   plans. See 18 U.S.C. § 220.




                                                   7

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   II.    GARNTO’S REVISIONS TO THE EMPLOYMENT RESTRICTION
          NEEDLESSLY PUT PATIENTS AND PRIVATE INSURERS AT RISK OF
          FURTHER HARM.

          Garnto also proposes that the employment restrictions be modified to allow him to “market,

   develop, or manage websites on behalf of health care organizations,” including substance abuse

   treatment centers. Mot. at 2, 5.3 Garnto offers three primary arguments in support of his requested

   modifications, each of which should be rejected.        First, he argues that the restrictions are

   “Draconian,” particularly when compared to restrictions on his co-defendants who are attorneys

   and doctors. Second, he argues that he has worked in the substance abuse treatment industry his

   entire life, implying that he cannot work in any other industry. Third, he argues that he is required

   to follow the law, so that alone suffices to ensure he will conform his behavior going forward.

   Garnto’s arguments in support of this modification are unavailing and his proposed modifications

   would needlessly put patients at further risk of harm and private insurers at further risk of loss.

   None of these arguments justify further modifying the employment restrictions set by Judge Hunt.

          As an initial matter, a restriction from working in the health care field is common in health

   care fraud cases where defendants are released on bond pending trial. This is particularly true in

   addiction treatment fraud cases, where the potential for patient harm is especially acute. See, e.g.,

   United States v. Ligotti, 20-mj-08265, [D.E. 17] (S.D. Fla. Aug. 3, 2020) (Judge Brannon imposed

   restriction on medical director from working in addiction field); United States v. Sanford, 19-cr-

   20583, [D.E. 20, 23] (S.D. Fla. Sept. 17, 2019) (Judge McAliley imposed restriction from working



   3
          Garnto states that he already developed the websites, but does not state when he did so or
   at whose direction. See Mot. at 5 (noting that Garnto “can provide Pre-Trial Services with the
   names of any of the health care providers whose sites he has developed”) (emphasis added). The
   Government has no information indicating that Garnto developed the websites while subject to the
   bond conditions entered by Judge Hunt, but notes that doing so could be a violation of his current
   bond conditions.


                                                    8

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   in health care field on alleged patient broker for addiction treatment center and owner of addiction

   treatment center); United States v. Dublynn, 19-cr-20583, [D.E. 42, 53] (S.D. Fla. Sept. 27, 2019)

   (Judge Goodman and Judge McAliley imposed restriction from working in health care field on

   alleged operator of addiction treatment center); United States v. Hernandez, 20-mj-03663, [D.E.

   9] (S.D. Fla. Sept. 29, 2020) (Judge Goodman imposed restriction from working in addiction

   treatment field on alleged medical director of addiction treatment center); United States v. Curran,

   18-80124, [D.E. 37] (S.D. Fla. July 2, 2018) (Judge Reinhart imposed restriction on working in

   health care or health care billing on alleged marketer and employee of addiction treatment center).4

          Garnto’s argument that such a restriction is overly “Draconian” is simply contrary to the

   common practices and experiences of numerous other defendants in this district, many of whom

   are simply accused of fraudulent billing and not, as Garnto is, conduct that inherently jeopardizes

   patient safety, and the ability of persons facing drug addiction to recover. In this regard, the cases

   Garnto cites in support of his request to work directly for one or more substance abuse treatment

   centers are inapposite.5 Here, Garnto is alleged not only to have enabled fraudulent billing, but



   4
            Even in other types of health care fraud matters, courts in this district have imposed similar
   restrictions from working in the health care field. See, e.g., United States v. Garipoli, 19-cr-80196,
   D.E. 14 (S.D. Fla. Oct. 4, 2019) (Judge Reinhart imposed restriction from working in health care
   industry on owner of telemedicine company that allegedly sold doctors’ orders for medically
   unnecessary cancer genetic testing in exchange for kickbacks to laboratories, who billed
   Medicare); United States v. Patel, 19-80181, D.E. 14 (S.D. Fla. Sept. 30, 2019) (Judge
   Matthewman imposed restriction from working in health care field on laboratory owner that
   allegedly bought doctors’ orders for medically unnecessary cancer genetic testing in exchange for
   kickbacks from marketers and fraudulently billed Medicare).
   5
           For example, in United States v. Mayrelis Lopez, 17-cr-20810-CMA (S.D. Fla.),
   Information, D.E. 1, there was no allegation of patient harm. To the contrary, the defendant
   pharmacy owner allegedly paid kickbacks to beneficiaries in order to use their Medicare number
   to bill for medications that were never dispensed. The defendant there was charged by
   Information, pled guilty, and cooperated with the Government. In any event, the defendant was
   allowed to work at an assisted living facility, while her charges pertained to a completely different
   medical field (a pharmacy). In United States v. Thomas Sahs, 18-cr-20710-CMA (S.D. Fla.),
                                                     9

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   also to have directed patient recruiters to provide illicit drugs or alcohol to known addicts to ensure

   that they would appear eligible for expensive detox services. As someone who has himself

   struggled with addiction (Mot. at 5), Garnto knew perhaps better than anyone how dangerous this

   practice was, yet allegedly did it anyway.

          Garnto next attempts to argue that the employment restriction is even more unfair to him

   than it is to his co-defendants. There is no defendant in this case who is permitted to work in the

   substance abuse treatment field pending trial, period. Contrary to Garnto’s strained analogy, while

   the lawyer defendants can continue to practice real estate law, they cannot become general counsel

   to a substance abuse treatment center. Likewise, while the doctor defendants may practice

   medicine, they may not provide addiction treatment. And unlike the doctors, who went to school

   for many years and have secured specialized licenses to practice medicine, Garnto makes no

   representation of his licensing or specialized education or experience in web design. Garnto is

   free to work as a web designer, but he cannot work directly for a health care provider, especially

   a substance abuse treatment center.

          This raises an even more fundamental problem with Garnto’s request. Garnto implies that

   the only way he can earn a living is by working in the substance abuse industry. Yet he is silent

   about whether he has even attempted to find work as a web designer for other types of businesses,

   much less work in a completely different field, such as the service industry or another customer

   service position besides Tobias & Associates. In any event, his trial is merely four months away.




   Sentencing Memo, D.E. 378, the defendant (who also cooperated and pled guilty) worked for a
   medical device sales company with which Mr. Feldman represented there were no associations to
   “state, private, or federal health care programs.” Garnto cannot make the same representation here
   with respect to his proposed employment.
                                                     10

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   However challenging Garnto finds this employment restriction, it will be moot one way or another

   in four months.

          Garnto’s final argument in support of his proposed modifications to the employment

   condition is that he will not violate the law because that could result in revocation of his bond.

   (Mot. at 5.) Of course Garnto is required to follow the law, just as everyone else is and just as he

   was for the three years that the grand jury alleges he conspired to commit health care fraud and

   several other crimes. The Government has presented probable cause—in a Complaint signed by

   Judge Hunt, at a preliminary hearing presided over by Judge Valle, and to a grand jury which

   returned an Indictment—that Garnto engaged in numerous violations of law. While Garnto is

   released, the Court should take reasonable precautions to ensure that patients seeking recovery are

   not put at further risk of harm by Garnto and that private insurance plans are not put at further risk

   of loss.6 Restricting Garnto from working in the health care field, combined with the other

   conditions of bond, is the least restrictive condition that will reasonably assure the “safety of any




   6
           In addition, as a practical matter, it is well-known that patients are often shuffled from
   treatment center to treatment center in South Florida. In fact, the Indictment alleges that
   conspirators, including Garnto, participated in the recycling of patients both within Compass
   Detox and WAR, but also with outside treatment facilities. See Indictment, Count 1, Manner and
   Means, ¶ 17. Evidence pertaining to this allegation is available in the discovery produced by the
   Government and is subject to the Protective Order. It is difficult to imagine a scenario where
   Garnto works for a substance abuse treatment center in South Florida and does not come into
   contact with, or learn information about, individuals who were once patients of Compass Detox or
   WAR. Garnto does not even contemplate this risk, nor discuss how this should be dealt with,
   particularly in light of the no-contact order prohibiting contact with Compass Detox or WAR
   patients. Furthermore, the Government is engaged in investigations of other treatment centers in
   South Florida. Some of these investigations remain covert. Needless to say, Garnto should not be
   associated with treatment centers that are under investigation for conduct similar to that in which
   Garnto previously engaged. Under Garnto’s proposal, however, short of disclosing his
   employment to Pre-Trial Services (which he would be required to do anyway), Garnto offers no
   discussion of how the Government can ensure that Garnto does not become affiliated with
   treatment centers under investigation.


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   other person and the community,” i.e., substance abuse patients and private insurers. 18 U.S.C.

   § 3142(c)(1)(B).

                                          CONCLUSION

          For the foregoing reasons, Garnto’s Motion should be denied.

   Dated: April 5, 2021                               Respectfully submitted,

                                                      JUAN ANTONIO GONZALEZ
                                                      ACTING UNITED STATES ATTORNEY
                                                      SOUTHERN DISTRICT OF FLORIDA

                                                      DANIEL KAHN, ACTING CHIEF
                                                      CRIMINAL DIVISION, FRAUD SECTION
                                                      U.S. DEPARTMENT OF JUSTICE

                                               By:    /s/ James V. Hayes____________________
                                                       JAMES V. HAYES (FL Bar #A5501717)
                                                       Senior Litigation Counsel
                                                       JAMIE DE BOER (FL Bar #A5502601)
                                                       Trial Attorney
                                                       United States Department of Justice,
                                                       Criminal Division, Fraud Section
                                                       1400 New York Avenue, N.W.
                                                       Washington, D.C. 20005
                                                       Telephone: (202) 774-4276
                                                       James.Hayes@usdoj.gov
                                                       Jamie.deBoer@usdoj.gov




                                  CERTIFICATE OF SERVICE

          I HEREBY CERTIFY that on April 5, 2021, I electronically filed the foregoing document
   with the Clerk of the Court using CM/ECF.

                                              /s/ James V. Hayes




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