THE COMMONWEALTH OF MASSACHUSETTS


Suffolk, ss. Division of Administrative Law Appeals

Board of Registration in Medicine,

Petitioner


v.
Docket No. RM-08-220
David Tamaren, M.D.,

Respondent

Appearance for Petitioner:

Alice Cole Oliff, Esq.

Board of Registration in Medicine
200 Harvard Mill Square, Suite 330
Wakefield, MA 01880

Appearance for Respondent:

David Tamaren, M.D.

34D Constitution Way
Marblehead, MA 01945

Administrative Magistrate

James P. Rooney

Summary of Decision

Board of Registration in Medicine is granted summary decision because doctor's federal conviction of conspiracy to commit mail fraud, wire fraud, and health care fraud calls into question his ability to practice medicine and warrants appropriate disciplinary action by the Board

RECOMMENDED DECISION

On April 2, 2008, the Board of Registration in Medicine issued a statement of allegations ordering David Tamaren, M.D., to show cause why he should not be disciplined because of his federal felony conviction of conspiracy to commit mail fraud, wire fraud, and health care fraud in violation of 18 U.S.C. § 371. Dr. Tamaren pled guilty to the conspiracy charge and admitted that he wrote after-the-fact prescriptions for tests that were never performed.

The Board referred the matter to the Division of Administrative Law Appeals for adjudication. I held a prehearing conference on April 30, 2008. The Board thereafter filed a motion for summary decision with seven exhibits, which I admit into evidence. Dr. Tamaren filed an opposition that contained numerous factual assertions along with legal argument. I ordered Dr. Tamaren to file an affidavit reciting his factual assertions, which he did. The Board filed a response to the affidavit.


Findings of Fact

The following facts are not in dispute:

1. David Tamaren was born on December 1, 1944. He graduated from Albert Einstein College of Medicine, Yeshiva University in 1974 and has been licensed to practice medicine in Massachusetts under registration number 424778 since March 24, 1978. Ex. 1.

2. Between 1998 and 2007, Dr. Tamaren had a personal injury practice in Lynn, Massachusetts. He evaluated persons who had been in car accidents, had fallen, or were seeking workmen's compensation. When he deemed it medically appropriate, he would order testing, including x-rays, MRI and CT scans, electromyograms (EMGs), which are invasive tests of muscle activity, and nerve conduction velocity tests (NCVs), which are similar, but non-invasive, tests of muscle activity. Exs. 2, 4, and 6.

3. Dr. Tamaren's law enforcement problems arose from incidents in 1999 and 2000, when he worked at clinics managed by Severin Yelaun, who is not a doctor. Yelaun asked him to write prescriptions for EMG tests that purportedly had already been performed. Dr. Tamaren did so. Exs. 4 and 6.

4. On January 20, 2005, a federal grand jury charged Dr. Tamaren, Yelaun, Igor Moseyez, who owned a clinic in Chelsea (Broadway Physical Therapy and Rehabilitation) and incorporated an entity that billed for EMG tests (Global Tech), and Dr. John Montoni, a chiropractor, with 42 counts of mail fraud in violation of 18 U.S.C. § 1341, wire fraud in violation of 18 U.S.C. § 1343, health care fraud in violation of 18 U.S.C. § 1347, and conspiracy in violation of 18 U.S.C. § 371. The first 41 counts concerned fraudulent insurance claims for tests purportedly performed on 20 patients. They charged Dr. Tamaren with signing prescriptions for EMGs, or both EMGs and NCVs, for 15 of these patients. Count 42 charged conspiracy to commit mail fraud, wire fraud, and health care fraud in connection with these same and additional incidents.
Ex. 4.

5. Dr. Tamaren agreed to plead guilty to conspiracy. Ex. 5. An agreed statement of facts signed by Dr. Tamaren describes in detail the effort by Yelaun and Moseyez to obtain insurance payment for EMG tests that were not performed. Because insurance payments would not have been forthcoming without a doctor's signature on prescriptions, Yelaun and Moseyez resorted to use of a doctor's signature stamp without her permission and later presented documents to Drs. Montoni and Tamaren to sign. Dr. Tamaren's role in these events is described as follows:
Some of the fraudulent EMG tests that were billed by Lynn Diagnostics [Yelaun's company] were prescribed by Dr. David Tamaren, an internest who worked at clinics run by Yelaun one or two days each week. Dr. Tamaren evaluated patients at these clinics and prescribed treatment, tests, and durable medical goods. Yevgeniya Gorovodsky, the Chelsea clinic office worker who did billing for Global Tech, would testify that at one point she told Yellaun and Moseyev that insurance companies would not pay for EMG tests unless the file contained a doctor's prescription for the test. When Dr. Tamaren was interviewed by the FBI about the case, he admitted that Yelaun sometimes asked him to write prescriptions for EMG tests that purportedly had already been done, and he complied, writing "EMG prescribed and done" on a prescription pad and signing it. Tamaren knew that the only reason Yelaun could want these after-the fact prescriptions was so that he could bill insurance companies for the EMG tests and support the claims with the illegitimate after-the-fact prescriptions.

Ex. 6.


6. In his plea agreement, Dr. Tamaren "expressly and unequivocally admits that he in fact knowingly and intentionally committed the crime charged in Count 42 of the indictment and is in fact guilty of that offense." He also waived his right to appeal. In signing the agreement, he acknowledged that he had read the document in its entirety and discussed it with his attorney. Ex. 5.

7. In return for his plea, the U.S. Attorney and he agreed that he should be sentenced to 36 months probation, during which time he would not practice medicine. He was also obliged to pay a $10,000 fine, restitution, and a mandatory special assessment of $100. Ex. 5. On January 12, 2007, he was judged guilty of conspiracy and sentenced in accordance with the agreement he had reached with the U.S. Attorney. The federal district court required that he pay $3,751.73 in restitution to two insurance companies, serve the first six months of probation in home detention, and perform 240 hours of community service. Ex. 7.

8. Thereafter, Dr. Tamaren voluntarily agreed not to practice medicine in the Commonwealth of Massachusetts. The terms of his agreement with the Board of Registration in Medicine provide that the agreement "will remain in effect until the Board of Registration in Medicine ... determines that the Agreement should be modified or terminated; or until the Board takes other action against my license to practice medicine; or until the Board takes final action on the above-referenced matter." The agreement was accepted by the Chairman of the Board on March 30, 2007 and ratified by the Board on April 4, 2007. Ex. 3.

Discussion


Dr. Tamaren has been convicted of conspiracy to commit mail fraud, wire fraud, and health care fraud in connection with after-the-fact prescriptions that were used to collect insurance reimbursements for EMG tests that were never performed. The conviction may serve as a basis for the Board of Registration in Medicine to discipline him for the commission of the crime itself, M.G.L. 112, § 5(h) and 243 CMR 1.03(5)(a)7; for practicing medicine fraudulently, M.G.L. c. 112, § 5(c) and 243 CMR 1.03(5)(a)(3); for committing misconduct in the practice of medicine, M.G.L. c. 112, § 5(h) and 243 CMR 1.03(5)(a)(18); and for engaging in conduct that has the capacity to deceive or defraud, M.G.L. c. 112, § 5(h) and 243 CMR 1.03(5)(a)(10). The criminal conviction also "reasonably calls into question his ability to practice medicine," M.G.L. c. 112, § 5(g), because "an intentional misdeed relating to third-party payors reflects adversely on a physician's fitness to practice medicine." Levy v. Board of Registration in Medicine, 378 Mass. 519, 527, 392 N.E.2d 1036, 1041 (1979). Doctors may also be disciplined for lack of good moral character and for conduct that undermines public confidence in the medical profession, Id. and Raymond v. Board of Registration in Medicine, 387 Mass. 709, 443 N.E.2d 391, 394-395 (1982), which a conviction of conspiracy to commit fraud would appear to entail. See Board of Registration in Medicine v. Goodman, RM-00-076 (DALA dec. 12/7/00; Board dec. 5/9/01)(doctor convicted of knowingly submitting false Medicaid claims).

Dr. Tamaren concedes the conviction (as he must) and acknowledges that it may serve as a basis for the Board to discipline him. In his affidavit, he sets forth facts that he asks the Board to consider in imposing discipline.

He states that the EMG prescriptions that later came to haunt him were for patients whom he had actually seen. He understood it to be accepted practice for physicians to approve, after the fact, tests ordered by non-physician staff. Hence, when Yelaun asked him to approve prescriptions for EMG tests for his patients and presented him with EMG reports that appeared genuine, and he thought the tests were medically necessary, he agreed to sign the after-the-fact prescriptions. He disclaims any knowledge that Yelaun was submitting insurance claims for tests that were not performed. He also states that he received no financial benefit for writing the prescriptions in question.

When the FBI approached Dr. Tamaren in 2002, he cooperated by providing all the information he could and even wore a miniature recording device. He is disturbed by the course his subsequent prosecution took. He objects that some of the grand jury testimony about him was false, particularly the testimony of a witness who stated that the doctor knew the EMGs were not performed, which he vehemently denies. He further objects to the behavior of the prosecutors assigned to the case, saying the initial chief prosecutor was a man criticized by Judge Mark Wolf for coercing a plea to murder that the defendant may not have committed, while a later prosecutor erroneously believed that writing after-the-fact prescriptions was "peculiar" and "improper," and hence considered that the doctor's actions had furthered the conspiracy.

Dr. Tamaren states that he then spent two years fighting the charges he thought either might be dropped because of his cooperation and his lack of knowledge that the prescriptions were for tests that were not performed or, alternatively, would be tried so that he could clear his name. After rejecting a number of plea offers, he decided to forgo his efforts to clear his name because the plea was for one count only and would not require him to serve any time in jail. Most importantly, for him, accepting the plea would spare his wife, who has dangerously high blood pressure and an arrhythmia, the pressure of a trial, which Dr. Tamaren feared would cause her to suffer a stroke if the verdict went against him.

Accepting Dr. Tamaren's affidavit as accurately stating his view of the matter, it does not state grounds upon which the Division of Administrative Law Appeals can grant relief. The Division's role is to decide whether the Board has demonstrated grounds for discipline. The criminal conviction suffices to do that. To the extent Dr. Tamaren wishes to seek relief from the criminal conviction, whatever remedies he may have lie elsewhere. If, instead, he wishes to relitigate the bases for his conviction, he may not do so here because the Board "is entitled to rely on the conviction and the physician has no right to insist that the Board reopen and reconsider the facts underlying the conviction." Board of Registration in Medicine v. Payne, RM-92-291 (Board dec. 12/16/92).

I note that Dr. Tamaren claims he pled guilty because the plea offered was satisfactory to him and because he wished to relieve stress on his wife. He entered this plea voluntarily. Forty years ago, the Supreme Court sought to forestall an innocent defendant from pleading guilty in order to avoid a harsher punishment after trial by requiring that a trial judge who accepts a plea have proof before him or her that the defendant was pleading guilty voluntarily to a crime that he in fact committed. See Boykin v. Alabama, 395 U.S. 238 (1969). In the course of the plea he took, Dr. Tamaren, after consulting with counsel, admitted to specific facts of the crime of conspiracy and he "expressly and unequivocally [admitted] that he in fact knowingly and intentionally committed the crime charged in Count 42 of the indictment and is in fact guilty of that offense." Ex. 5.

Although making a defendant expressly admit guilt before his plea is accepted does not guarantee that a defendant will plead guilty only if he is guilty, it makes it far less likely that a body later considering that conviction will be open to an argument that the conviction was for a crime that the defendant did not commit.
However, the Board may consider facts pertinent to the conviction to the extent they are relevant to its decision to impose discipline. Dr. Tamaren's major concern is that the Board hear his claim that he did not approve after-the-fact prescriptions for tests he knew were not performed. In reviewing the agreed statement of facts, Dr. Tamaren admitted only that he wrote after-the-fact prescriptions and that he knew Yelaun wanted these prescriptions so that he could bill insurance companies. Nowhere in the agreed statement of facts does Dr. Tameran admit that he knew the tests had not been performed.

The Board's motion for summary decision is allowed. Dr. Tamaren's conviction of conspiracy to commit mail fraud, wire fraud, and health care fraud calls into question his ability to practice medicine and warrants appropriate disciplinary action by the Board. I recommend that it impose sanctions against Dr. Tamaren for his conduct.

DIVISION OF ADMINISTRATIVE LAW APPEALS,


____________________________________________
James P. Rooney
Administrative Magistrate


Dated: August 18, 2009