United States District Court, S.D. West Virginia, Charleston Division
MEMORANDUM OPINION AND ORDER
R. GOODWIN, JUDGE.
Antoine Skaff used the privilege of a dental license to
engage in thousands of individual acts of fraud charged by
the United States as one fraudulent scheme. This case began
in 2015 when an unnamed individual filed a complaint with the
United States Drug Enforcement Agency (“DEA”)
reporting that a high volume of patients were only briefly
visiting Dr. Skaff's dental office. In late 2015, the DEA
referred the investigation to the West Virginia Board of
Dental Examiners. During the investigation, the West Virginia
Board of Dentistry received credible information that Dr.
Skaff was improperly billing Medicaid based on an audit by
Scion Dental, a provider network and administrator of the
Medicaid dental benefits for the Managed Care Organizations
(“MCOs”) under contract with West Virginia
Medicaid. The West Virginia Board of Dentistry continued
investigating Dr. Skaff based on this information. On July
20, 2017, Dr. Skaff entered into a Consent Decree and Order
with the West Virginia Board of Dentistry, agreeing to a
reprimand for his inappropriate opioid-prescribing practices
and his fraudulent billing practices, and to a suspension of
his license to practice dentistry, among other conditions.
charges before me are the result of further investigation of
Dr. Skaff, jointly conducted by the United States Department
of Health and Human Services/Office of the Inspector General,
the DEA, the West Virginia Medicaid Fraud Control Unit, and
the West Virginia Department of Health and Human Resources
Bureau of Medical Services (on behalf of West Virginia
Medicaid). This further investigation revealed that by August
31, 2016, Dr. Skaff had been engaged in an extensive
fraudulent billing scheme for at least five and a half years.
Dr. Skaff executed this scheme in two different ways. First,
he engaged in “upcoding.” Second, he engaged in
“double billing.” Between these two schemes, Dr.
Skaff executed at least 7, 836 individual acts of criminal
fraud against Medicaid.
17, 2017, the United States Attorney filed a single-count
information against Dr. Skaff for health care fraud, in
violation of 18 U.S.C. § 1347. Information [ECF No. 1].
On August 21, 2017, Dr. Skaff pleaded guilty to the
information. Written Plea of Guilty [ECF No. 9]. At the
December 7, 2017 sentencing hearing, I sentenced Dr. Skaff to
sixty (60) months' imprisonment followed by three (3)
years' supervised release. I articulate my reasons for
imposing this sentence below.
The Advisory Guideline Range
imposing sentence, a district court “must treat the
[United States Sentencing] Guidelines
[(“Guidelines”)] as the starting point and the
initial benchmark.” Kimbrough v. United
States, 552 U.S. 85, 108 (2007) (internal quotation
marks omitted). Then, it must consider the sentencing factors
set forth in 18 U.S.C. § 3553(a). I will begin by
calculating the advisory Guideline range in this case.
Skaff pleaded guilty to violating 18 U.S.C. § 1347.
Since violations of that statute carry a statutory maximum
penalty of ten (10) years' imprisonment, section
2B1.1(a)(2) of the Guidelines provides for a base offense
level of 6.
specific offense characteristics call for upward adjustments
to Dr. Skaff's offense level. First, section 3B1.3 of the
Guidelines mandates a two-level increase if the defendant
“abused a position of public or private trust, or used
a special skill, in a manner that significantly facilitated
the commission or concealment of the offense.” The
Fourth Circuit recognizes that medical providers, such as Dr.
Skaff, are in a position of trust due to their relationship
to Medicaid and its MCOs. United States v. Bolden,
325 F.3d 471, 505 (4th Cir. 2003). The parties agree that
this enhancement applies. Plea Agreement 5 [ECF No. 10].
Therefore, I FIND that the section 3B1.3
enhancement applies, raising the offense level to 8.
section 3C1.1 of the Guidelines mandates a two-level increase
if the defendant “willfully obstructed or impeded, or
attempted to obstruct or impede, the administration of
justice with respect to the investigation, prosecution, or
sentencing of the instant offense of conviction and . . . the
obstructive conduct related to . . . the defendant's
offense of conviction and any relevant conduct.” Dr.
Skaff altered patient charts in an attempt to conceal his
double billing scheme from Scion Dental, which performed the
audit of Dr. Skaff's Medicaid billings. Plea Agreement,
Ex. B at 5. On account of that behavior, the parties agree
that this enhancement applies. Plea Agreement 5. Neither
party objects to the application of this enhancement in the
presentence report. Therefore, I FIND that
the section 3C1.1 enhancement applies, raising the offense
level to 10.
section 2B1.1 of the Guidelines requires an enhancement based
on the amount of “loss” caused by the
defendant's fraudulent conduct. For the purposes of
section 2B1.1, loss is defined as the greater of actual loss
or intended loss. U.S. Sentencing Guidelines Manual §
2B1.1 cmt. n.3(A) (U.S. Sentencing Comm'n 2016)
[hereinafter “U.S.S.G.”]. Actual loss means
“the reasonably foreseeable pecuniary harm that
resulted from the offense.” U.S.S.G. § 2B1.1 cmt.
n.3(A)(i). Intended loss means “the pecuniary harm that
the defendant purposely sought to inflict” and includes
“intended pecuniary harm that would have been
impossible or unlikely to occur.” U.S.S.G. § 2B1.1
In a case in which the defendant is convicted of a Federal
health care offense involving a Government health care
program, the aggregate dollar amount of fraudulent bills
submitted to the Government health care program shall
constitute prima face evidence of the amount of the intended
loss, i.e., is evidence sufficient to establish the
amount of the intended loss, if not rebutted.
U.S.S.G. § 2B1.1 cmt. n.3(F)(viii). Finally, loss is
reduced by “the fair market value of . . . the services
rendered, by the defendant . . ., to the victim before the
offense was detected.” U.S.S.G. § 2B1.1 cmt.
n.3(E)(i); see United States v. Miller, 316 F.3d
495, 499 (4th Cir. 2003) (“[W]hen determining losses
for sentencing purposes, a court must subtract the amount of
money or benefits to which a defendant is legitimately
entitled from the amount fraudulently claimed.”).
case, Dr. Skaff fraudulently billed Medicaid a total
of $1, 443, 570 and was fraudulently paid by
Medicaid a total of $1, 391, 207. Dr. Skaff was legitimately
entitled to $656, 130 for the services he actually rendered.
This results in an intended loss of $787, 440 and an actual
loss of $735, 077. See Miller, 316 F.3d at 504-05
(acknowledging “the common inference that the amount
billed is the amount that is intended to be paid” and
rejecting the defendant's argument that intended loss
should be based on the amount paid, not the amount billed). I
FIND that the loss caused by the
defendant's conduct for purposes of calculating specific
offense characteristics to be $787, 440. Under section
2B1.1(b)(1)(H), loss of more than $550, 000 but less than $1,
500, 000 mandates a fourteen-level enhancement. Therefore,
Dr. Skaff's offense level rises to 24.
3E1.1(a) of the Guidelines mandates a two-level decrease if a
defendant “clearly demonstrates acceptance of
responsibility for his offense.” However,
“[c]onduct resulting in an enhancement under [section]
3C1.1 (Obstructing or Impeding the Administration of Justice)
ordinarily indicates that the defendant has not accepted
responsibility for his criminal conduct. There may, however,
be extraordinary cases in which adjustments under both
[sections] 3C1.1 and 3E1.1 may apply.”
U.S.S.G. § 3E1.1 cmt. n.4. (emphasis added). In the
Fourth Circuit, “the question of whether a defendant
who obstructed justice is entitled to an
acceptance-of-responsibility reduction [is] a largely factual
matter to be determined by the district court.”
United States v. Knight, 606 F.3d 171, 176 (4th Cir.
Dr. Skaff's obstruction was relatively simple: during the
investigation, he retroactively altered patients' charts
in an attempt to hide his double billings from Scion Dental.
There is a stipulation of facts wherein Dr. Skaff admits to
sentencing hearing, the government stated that Dr. Skaff
pleaded guilty to his offense of health care fraud only a
month after the execution of a federal search warrant of his
dental office. The government noted that this guilty plea
resolved the criminal investigation of Dr. Skaff's
fraudulent billing practices much more quickly than the
average health care fraud case. The defendant also argued
that he entered into a substantial civil settlement with the
government and promptly paid a sum of $2, 205, 231. This sum
provides full restitution to West Virginia Medicaid for its
loss and double that amount to the United States as
punishment. Therefore, I FIND that this case
presents extraordinary circumstances for granting acceptance
of responsibility. I grant the two-level reduction for
acceptance of responsibility. At the sentencing hearing, the
government moved for the additional one-level reduction under
section 3E1.1(b), which I granted.
Dr. Skaff's total offense level is 21. Dr. Skaff has no
criminal history, establishing a Criminal History Category of
I. Given a total offense level of 21 and a Criminal History
Category of I, the advisory Guidelines range is as follows: a
term of imprisonment of thirty-seven (37) to forty-six (46)
months; a term of supervised release up to three (3) years; a
fine of $15, 000 to $1, 470, 154 (twice the pecuniary loss
resulting from the defendant's conduct); restitution; and
a $100 special assessment.
Statement of Reasons
has identified four “purposes” of sentencing:
just punishment, deterrence, incapacitation, and
rehabilitation. 18 U.S.C. § 3553(a)(2). To achieve these
ends, § 3553(a) requires sentencing courts to consider
not only the advisory Guideline range, but also the facts of
the specific case through the lens of seven factors. 18
U.S.C. §§ 3553(a)(1)-(7).
The Nature and Circumstances of the Offense
Dr. Skaff's criminal behavior in this case as
the offense is legally correct but misleading. In
actuality, Dr. Skaff's habitual criminal behavior
encompassed at least 7, 836 individual and
deliberate acts of fraudulent billing to Medicaid over the
course of more than five and a half years. To put this number
in perspective, consider that between January 1, 2011 and
August 31, 2016, there were a total of 2, 068 days, including
weekends and holidays. This means that on average, assuming
Dr. Skaff worked every day of the year, he was billing
Medicaid for nearly four fraudulent transactions per
day, for at least five and a half years. Moreover, each
of Dr. Skaff's individual criminal exploits were
contrived-i.e., not the spontaneous or natural consequence of
a prior misdeed.
the sheer volume of criminal acts that Dr. Skaff committed,
the nature of each fraudulent transaction is blameworthy. Dr.
Skaff had two distinct schemes for defrauding Medicaid. The
majority of his fraudulent billings (7, 490 of 7, 836) were
upcodings on tooth extractions. For this part of the scheme,
when Dr. Skaff performed a simple tooth extraction on a
patient, he represented in his claim to Medicaid that he
performed a complex tooth extraction, usually an impacted
tooth extraction. Medicaid pays more for impacted tooth
extractions because they are more involved than simple
extractions. Based on Medicaid's reimbursement rates, on
each of these occasions, Dr. Skaff received between $92 and
$105 more than he deserved for the extraction actually
performed. The remaining 346 fraudulent claims constituted
double billing. In those claims, by altering the location
and/or date of service, Dr. ...