USCA11 Case: 19-10676 Date Filed: 02/22/2021 Page: 1 of 51
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`[PUBLISH]
`
`IN THE UNITED STATES COURT OF APPEALS
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`FOR THE ELEVENTH CIRCUIT
`________________________
`
`No. 19-10676
`________________________
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`D.C. Docket No. 9:18-cr-80122-DMM-1
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`UNITED STATES OF AMERICA,
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`
`
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`versus
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`ARMAN ABOVYAN,
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`
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`Plaintiff-Appellee,
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`Defendant-Appellant.
`
`________________________
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`Appeal from the United States District Court
`for the Southern District of Florida
`________________________
`
`(February 22, 2021)
`
`Before WILLIAM PRYOR, Chief Judge, HULL and MARCUS, Circuit Judges.
`
`HULL, Circuit Judge:
`
`After a jury trial, Arman Abovyan appeals his convictions and sentences for
`
`
`
`
`[PUBLISH]
`
`IN THE UNITED STATES COURT OF APPEALS
`
`FOR THE ELEVENTH CIRCUIT
`________________________
`
`No. 19-10676
`________________________
`
`D.C. Docket No. 9:18-cr-80122-DMM-1
`
`
`
`
`
`
`
`UNITED STATES OF AMERICA,
`
`
`
`
`versus
`
`
`ARMAN ABOVYAN,
`
`
`
`Plaintiff-Appellee,
`
`Defendant-Appellant.
`
`________________________
`
`Appeal from the United States District Court
`for the Southern District of Florida
`________________________
`
`(February 22, 2021)
`
`Before WILLIAM PRYOR, Chief Judge, HULL and MARCUS, Circuit Judges.
`
`HULL, Circuit Judge:
`
`After a jury trial, Arman Abovyan appeals his convictions and sentences for
`
`
`
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`conspiring to commit healthcare fraud, conspiring to possess with intent to
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`dispense controlled substances, and seven counts of unlawfully dispensing a
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`controlled substance. On appeal, he argues that insufficient evidence supported his
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`convictions, the jury instructions were improper, and his sentences were
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`improperly calculated. After review, and with the benefit of oral argument, we
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`affirm Abovyan’s convictions and sentences.
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`I. FACTUAL BACKGROUND
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`This healthcare fraud conspiracy was orchestrated by Kenneth Chatman, a
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`convicted felon with no medical training. Chatman owned and operated two
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`substance-abuse treatment centers, Reflections Treatment Center (“Reflections”)
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`and Journey to Recovery (“Journey”), in South Florida.1 The Facilities offered
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`various levels of outpatient substance-abuse treatment for individuals suffering
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`from drug and alcohol addiction, some of whom resided at separate “sober homes”
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`and “halfway houses.”2
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`The defendant Arman Abovyan was a primary-care physician, board-
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`certified in internal medicine, with a private medical practice. Although Abovyan
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`1When we refer to Reflections and Journey collectively, we use the term “Facilities.” On
`paper, Chatman’s wife owned the Facilities because Chatman was a convicted felon. But in
`reality, Chatman was the true owner and operator.
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`2At trial, the terms “sober homes” and “halfway houses” were used for residences for
`patients attending outpatient drug treatment.
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`2
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`had no prior experience in substance-abuse medicine, Chatman recruited him to be
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`the medical director of the Facilities.
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`In July 2016, Abovyan became medical director of Reflections and of
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`Journey when it opened in October 2016. As medical director, Abovyan’s duties
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`included providing substance-abuse treatment, authorizing and ordering drug
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`testing, and prescribing drug-treatment medication. Abovyan’s employment
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`contract specified that he would work around 18.5 hours per week and be paid
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`$11,000 per month. In practice, Abovyan was present at the Facilities only about
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`nine hours per week or less. Abovyan remained the Facilities’ medical director
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`until federal authorities executed search warrants and shut them down in December
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`2016. Below, we describe the healthcare fraud scheme and Abovyan’s role in it.
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`A. The Healthcare Fraud Scheme
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`Chatman’s healthcare fraud scheme involved over 20 individuals.3 Chatman
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`paid kickbacks to the owners of sober homes and halfway houses in exchange for
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`them sending their patients to the Facilities for treatment and drug testing.
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`For example, Anthony Jackson testified that he met Chatman around August
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`3Before Abovyan’s trial, Chatman pled guilty to conspiring to commit healthcare fraud,
`conspiring to commit money laundering, and conspiring to commit sex trafficking and was
`sentenced to imprisonment terms of 120 months on the healthcare fraud conspiracy, 240 months
`on the money laundering conspiracy, and 330 months on the sex trafficking conspiracy, all to run
`concurrent.
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`3
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`2015, when Jackson owned a sober home.4 Most of Jackson’s residents had
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`insurance. Chatman paid Jackson to send his sober home residents to attend
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`Reflections for treatment and testing. Jackson later became program director at
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`Reflections.
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`Chatman required his employees at the Facilities to collect urine and saliva
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`from their patients three times per week and send them for drug testing to specific
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`toxicology labs, including Smart Lab and Ally Clinical Diagnostics (“Ally”). The
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`labs charged thousands of dollars per specimen tested, for which the labs billed the
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`Facilities’ patients’ insurance. In return, Chatman received kickbacks for sending
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`specimens to Smart Lab and Ally for testing.
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`For example, from the summer of 2016 until 2017, Bosco Vega was a sales
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`representative for Smart Lab. Its CEO was Hawkeye Wayne. Vega testified that
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`the more testing he procured for Smart Lab, the more he was paid in commissions
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`and the more kickbacks Chatman received. Vega had an arrangement with
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`Chatman and Wayne, whereby Vega gave Chatman half of his net commissions as
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`a kickback on all urine testing Reflections ordered from Smart Lab through Vega.5
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`During Vega’s time as a Smart Lab sales rep, he paid Chatman kickbacks of
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`4Before Abovyan’s trial, Jackson pled guilty to conspiring to commit healthcare fraud
`and was sentenced to 42 months’ imprisonment.
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`5Before Abovyan’s trial, Vega pled guilty to money laundering but had not been
`sentenced.
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`4
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`approximately $40,000 in cash. Vega also was paid between $10,000 and $20,000
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`per month to “oversee[]” the organization and transportation of samples to Smart
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`Lab.
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`Similarly, Stefan Gatt worked for Ally as a medical sales representative.
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`Gatt testified that, starting in February 2016, he paid Chatman kickbacks to use
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`Ally for saliva testing.6 Gatt was a partial owner of Journey with Chatman. Gatt
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`admitted that he oversaw the urine and saliva testing that both Smart Lab and Ally
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`provided for the Facilities’ patients.
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`B. Abovyan’s Role in Ordering Tests
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`To help Chatman submit as many specimens as possible to Smart Lab and
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`Ally, Abovyan ordered and authorized excessive lab drug testing that was
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`medically unnecessary. Abovyan’s predecessor at Reflections was Dr. Aron
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`Tendler. Chatman fired Dr. Tendler after he attempted to curtail the excessive and
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`medically unnecessary testing at Reflections. Chatman recruited Abovyan as
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`Tendler’s replacement.
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`When Abovyan started at Reflections, he wrote a letter adopting the testing
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`regime that Dr. Tendler had unsuccessfully tried to curtail. The July 15, 2016,
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`letter, typed on Reflections letterhead and signed by Abovyan, stated:
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`6Before Abovyan’s trial, Gatt pled guilty to conspiring to commit healthcare fraud and
`finished serving his 18 months’ sentence.
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`5
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`I am the new Medical Director for Reflections Treatment Center. Prior
`to my hire, [Dr. Tendler] left his post without reviewing and signing off
`on client charts. We have been unsuccessful in our attempts to reach
`him and rectify this situation.
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`As a result, I have reviewed the orders and progress notes. I agree with
`the factual and medical recommendations of the previous Medical
`Director.
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`Abovyan then wrote “standing orders” authorizing the testing of the
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`
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`Facilities’ patients’ urine at least two to three times weekly. For example, one of
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`these standing orders, titled “Urine Drug Test Protocol,” signed by Abovyan,
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`established that, for every patient, “Point of Care Cup testing will be used for rapid
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`detection and the specimen will be sent to a separate lab for Confirmation.”7
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`Abovyan’s standing order authorized a laboratory testing frequency of “2-3
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`Scheduled times per week and up to 2 random times per week” and stated that
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`Abovyan “confirm[ed] that the Urine Drug Screening & Confirmation tests
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`ordered by me are medically necessary for the diagnosis and treatment plan and
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`will be documented in patients[’] chart[s] as medically necessary.” Based on that
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`protocol, Abovyan signed consent forms authorizing Smart Lab “to perform the
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`toxicology testing for patient specimens from [the Facilities] based off of the
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`individual requisition forms.”
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`7There are different levels of urine testing. A “point of care” test is done in the office
`where the patient is getting care and involves an inexpensive cup and dipstick. Lab testing, also
`called “definitive or confirmatory testing,” is not done on-site, is expensive, and requires a
`doctor’s order.
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`6
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`Facilities employees then used these requisition forms to order the lab drug
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`tests for each individual specimen. The Facilities used different requisition forms
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`depending on the type of specimen (urine or saliva) because they used Smart Lab
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`for urine testing and Ally for saliva testing. The Smart Lab requisition forms had
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`the Smart Lab logo at the top, a space for patient information, diagnosis codes, and
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`a series of boxes to check to indicate which types of drugs the urine was to be
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`tested for. Because Abovyan established standing orders and consent forms for
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`Smart Lab testing, he did not sign each requisition form. Instead, Abovyan’s name
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`was listed as the “Ordering Provider” on each form.
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`Ally’s requisition forms were similar to Smart Lab’s, with an Ally logo at
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`the top, a space for patient information, and drug-test-request checkboxes. Instead
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`of establishing standing orders and consent forms like he did with Smart Lab,
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`Abovyan pre-signed Ally’s testing requisition forms, leaving the patient
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`information blank, but checking boxes for full comprehensive tests for all available
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`drugs.
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`Co-conspirator Gatt testified that Abovyan pre-signed Ally saliva testing
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`requisition forms so that Gatt and others could make copies of them. Abovyan
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`knew that they were photocopying his pre-signed requisition forms so that he “did
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`not have to continually sign off on each individual form.” Gatt testified that either
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`he or a staff member filled in the patient information and checked boxes for
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`7
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`various testing, and Abovyan knew about it because Gatt filled out one of the
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`sheets in front of Abovyan and Abovyan signed it.
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`These tests were not specialized to a named patient or a patient’s
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`background. Rather, Abovyan admitted that he established this testing protocol
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`because that was “what Kenneth Chatman . . . wanted.” Even if a patient were
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`addicted only to cocaine, Abovyan admitted they would “test for everything.” In
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`many instances, this meant that a lab tested specimens for over 100 substances,
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`including drugs that would not meaningfully inform treatment because they were
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`non-addictive or rarely abused. Each lab urine test costs between $1,000 and
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`$6,000.8
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`Patricia LaFrance, a Behavioral Health Technician, worked directly for
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`Chatman at Reflections from July 2015 until around October 2016 and at Journey
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`from October 2016 until the Facilities closed. LaFrance monitored patient
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`urinalysis. LaFrance collected a cup of urine from every patient three times per
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`week and performed a cup and dipstick test on every sample. Regardless of the
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`cup test results, LaFrance sent the urine to the lab for further testing using lab
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`requisition forms that Abovyan authorized in his standing orders. Another
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`employee trained LaFrance to fill out the Smart Lab requisition forms with the
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`8Most uninsured patients did not receive this expensive lab testing and were tested only
`once per month with an on-site cup/dipstick test that cost around $3.
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`8
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`patient’s information and to check the appropriate boxes so that the lab tested the
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`sample for a myriad of different drugs.
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`When a patient did not show up for testing, various staff provided their own
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`urine for lab analysis, at Chatman’s direction. LaFrance also collected saliva
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`samples and filled out Abovyan’s pre-signed Ally requisition forms, which she
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`gave to Gatt.
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`C. Abovyan’s Role in “Treatment”
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`The Facilities also made money by billing patients’ insurance for outpatient
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`“treatment.” The Facilities’ treatment services included therapy sessions, medical
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`checkups, and drug-treatment medication. In reality though, the patients received
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`no real medical treatment.
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`In addition to excessive drug testing orders, Abovyan prescribed Suboxone
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`to his patients, even though he was not licensed to do so. Suboxone is a controlled
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`substance that contains the Schedule III narcotic buprenorphine. The Drug
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`Addiction Treatment Act of 2000 requires physicians who are not addiction
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`specialists to take a training course and obtain a special license before they can
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`prescribe buprenorphine for addiction treatment, in light of the drug’s potential for
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`abuse and risk of side effects, including death. See 21 U.S.C. § 823(g).
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`After completing a specialized training course and registering, doctors apply
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`for a DEA certificate and receive an X Number, which allows them to lawfully
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`9
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`prescribe buprenorphine for addiction treatment. This special license, including
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`the X Number, is not needed when buprenorphine is prescribed to treat other
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`things, like pain. Until September 2016, Abovyan did not have an X Number.
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`To get around the X Number requirement between July and September,
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`2016, Abovyan indicated on the Facilities’ patients’ buprenorphine prescriptions a
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`diagnosis of “pain” or “withdrawal” (instead of drug addiction), even though
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`patients’ charts did not indicate that they were, in fact, experiencing pain or
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`withdrawal.
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`Although ordering drug tests and prescribing buprenorphine, Abovyan often
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`did so without actually examining patients, making assessments, or creating
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`individualized treatment plans. Then, Abovyan rarely showed or discussed the lab
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`drug test results with patients. Although Abovyan noted in many patient charts,
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`“[r]eviewed and will discuss at next patient encounter,” there was no such follow-
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`up. Even when patients tested positive for drug use, there was no evidence in
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`patients’ charts or elsewhere that Abovyan discussed this with patients or modified
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`treatment. In some instances, Abovyan noted that a patient was “doing well” or
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`“normal” or “clean for a while” even though the test results indicated otherwise.
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`Despite being the Facilities’ main doctor, Abovyan largely delegated his
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`treatment duties. He pre-signed prescription pads for his nurses to fill in the
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`patient name, drug, and diagnosis without his being present. Jackson testified that
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`10
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`he saw Abovyan’s nurse practitioners with blank prescription pads signed by
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`Abovyan. Abovyan also gave the nurses his log-in credentials to edit patients’
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`electronic medical records. When Abovyan did meet with the Facilities’ patients,
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`it typically was for only around five minutes. Reflections even stored medications
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`on site, and, if a patient was prescribed buprenorphine, Reflections would give the
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`patient the medication from storage instead of waiting until the prescription was
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`filled at the pharmacy.
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`D. Federal Investigation
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`When the Facilities were shut down in December 2016, the Federal Bureau
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`of Investigation (“FBI”) agents discovered Abovyan’s signature on stacks of Ally
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`testing requisition forms. The test forms had no patient names or information but
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`did have diagnosis codes completed on the forms and boxes pre-checked to request
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`full-panel lab testing.
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`Agents also searched the storage unit of Tina Barbuto, the clinical director of
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`Reflections and Abovyan’s codefendant. Agents found, inter alia, patient
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`documents, test results, and pill bottles containing controlled substances, including
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`Suboxone—which contains buprenorphine—that had been prescribed by Abovyan
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`to the Facilities’ patients. Jackson testified he saw Barbuto with blank prescription
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`pads signed by Abovyan. At Reflections, agents found a November 2016 letter
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`directed to Abovyan from an insurance company, which stated that, “[d]ue to
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`ongoing and serious investigations regarding member safety and potential
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`insurance fraud, we are temporarily suspending all approval of authorization for
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`treatment at Reflections Treatment Center and payment of claims for any treatment
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`at this facility.”
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`In April 2017, a UnitedHealthcare investigator interviewed Abovyan.
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`Abovyan said that working at Reflections “was easy money,” but also the “biggest
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`mistake of his life.” Abovyan admitted that he ordered the lab urine tests for
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`patients at Reflections to be conducted two to three times per week.
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`The FBI interviewed Abovyan in June 2017. Abovyan admitted that he: (1)
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`signed the standing lab orders; (2) ordered whatever lab tests that Chatman wanted
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`three times per week per patient9; (3) provided the nurse practitioners with pre-
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`signed, blank prescription pads; and (4) received additional payments for detox and
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`treatment services, and was paid $5,000 per month “so that Kenny Chatman could
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`use [Abovyan’s] medical license to bill insurance.”10
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`II. INDICTMENT & TRIAL
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`In 2018, a superseding indictment charged Abovyan and Tina Barbuto with:
`
`
`
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`9Abovyan told the FBI that he reviewed the lab test results for each patient and signed the
`electronic medical records indicating that he reviewed the results. However, at trial, patients and
`others testified that he did not review the test results with patients.
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`10In some months, the $5,000 appears to be over and above his $11,000 salary, as the
`record shows that he was paid $19,000 in October and $17,300 in December 2016. In November
`2016, he was paid $15,300.
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`12
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`conspiracy to commit healthcare fraud, in violation of 18 U.S.C. § 1349 (Count
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`One); conspiracy to possess with intent to distribute and dispense controlled
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`substances, including buprenorphine and others, in violation of 21 U.S.C. § 846
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`(Count Two); unlawful dispensing of a controlled substance, buprenorphine, to
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`specific patients (Counts Three through Nine), in violation of 21 U.S.C.
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`§ 841(a)(1) and 18 U.S.C. § 2; and possession with intent to distribute controlled
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`substances, in violation of § 841(a)(1) and § 2 (Count Ten). Codefendant Barbuto
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`pled guilty to conspiracy to commit healthcare fraud. Chatman and around 15
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`others were already charged in separate indictments for their roles in the healthcare
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`fraud scheme.
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`During Abovyan’s eight-day jury trial, the government presented over 20
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`witnesses and overwhelming evidence of the above healthcare fraud scheme at the
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`Facilities. Among the witnesses, the government called former employees of
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`Smart Lab, Ally, and the Facilities; nurse practitioners; an expert on addiction
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`medicine; former Reflections patients; Abovyan’s private practice manager; the
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`UnitedHealthcare investigator; and several FBI agents. Three witnesses, Jackson,
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`Vega, and Gatt, were already convicted for their roles in the scheme. The evidence
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`also included thousands of pages of patient records, supporting documents, and
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`photographs.
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`While the above evidence recounted Abovyan’s overall role in the scheme,
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`we now detail more testimony about Abovyan’s conduct.
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`A. Abovyan’s Two Nurse Practitioners
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`Andrea Buehler was a nurse practitioner who worked for Abovyan from
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`September 2016 until January 2018. Buehler did office work for Abovyan’s
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`private practice. Initially, Abovyan would have Buehler go to Reflections on
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`Mondays and Wednesdays for around three hours each day. Sometimes Abovyan
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`accompanied her, sometimes not. At first, Abovyan spent up to three hours with
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`her there each day, but he was there less as time went on. Later on, Buehler went
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`to Journey exclusively around twice per week; Abovyan accompanied Buehler to
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`Journey only once or twice.
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`For each patient at Reflections and later at Journey, Buehler discussed the
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`patient’s drug use, did a physical examination, and sometimes wrote prescriptions.
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`She never discussed drug test results with patients. Buehler wrote prescriptions for
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`buprenorphine on pre-signed prescription pads, and Abovyan instructed her to
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`write “drug dependence pain withdrawal” as the prescription diagnosis. She
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`accessed patients’ electronic medical records with Abovyan’s log-in credentials.
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`Lindsey Callaghan was a nurse practitioner who worked for Abovyan from
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`around June until October 2016. For Abovyan’s private practice patients,
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`Callaghan would see patients for routine physicals, sick visits, and medication
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`refills. Callaghan went to Reflections on Tuesday and Thursday mornings for
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`around four hours each day. She refilled patients’ medications and performed
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`quick physicals. Abovyan sometimes accompanied her to Reflections but did not
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`always stay the entire time. Callaghan wrote prescriptions on a pre-signed
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`prescription pad that Abovyan gave her. At Abovyan’s instruction, Callaghan
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`wrote “Drug dependence, withdrawal, pain” as the diagnosis on the prescriptions.
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`Generally, Callaghan did not review any drug test results. She also accessed
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`patients’ electronic medical records with Abovyan’s log-in credentials.
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`B. Patients’ Testimony
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`
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`Patient A.B. was an insured Reflections patient addicted to heroin. She
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`became a patient on August 31, 2016. A.B. stayed at a halfway house and attended
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`therapy at Reflections. She said that, during group therapy sessions at Reflections,
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`her fellow patients “were nodding out” and “obviously high.” A.B.’s fellow
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`patients and even the managers of her halfway house were using drugs. A.B.
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`witnessed Chatman give other patients “street drugs.” Although A.B. remained
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`drug-free at first, she became desperate and started using heroin again. When she
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`told Chatman that she was using heroin again, he said, “okay.” After that, A.B.
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`overdosed on heroin at the halfway house. Another patient overdosed and died at
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`the halfway house.
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`Reflections tested A.B.’s urine every day she attended Reflections. Yet
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`neither Abovyan nor the nurse practitioners ever talked to her about the results.
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`Even though A.B.’s urine tested positive for heroin, nothing about her treatment
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`changed. Reflections also tested A.B.’s saliva, and she never saw the results. A.B.
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`spoke to Abovyan only once for about 20 minutes during her initial visit. She
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`received her prescriptions, including Suboxone, from a nurse practitioner written
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`on pre-signed prescription pads. A.B. testified that the Suboxone “didn’t really
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`help” her, but she continued to take it because “[she] knew [she] could get high off
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`of it.”
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`Patient H.F. was another insured Reflections patient starting in July 2016.
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`She was prescribed Suboxone and subjected to rigorous blood, urine, saliva, and
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`allergy testing, despite not having allergies. Her urine was lab tested about four
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`times per week—a frequency that she felt “unnecessary to be able to catch
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`someone using.” H.F. never saw the results of any tests. Chatman made it difficult
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`for patients to leave treatment. When H.F. decided to leave, Chatman kept her
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`identification, phone, clothes, and medication under his control.
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`Patient J.B. was an insured patient at Reflections in 2016. J.B. saw Abovyan
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`once, and Abovyan did not spend much time with her. Abovyan prescribed her
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`three different anxiety medications. J.B. did not see Abovyan again, but she
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`continued receiving prescriptions with Abovyan’s signature on them. J.B. saw pre-
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`signed prescription pads bearing Abovyan’s signature on Chatman’s desk. J.B.
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`lived in a halfway house during her Reflections treatment and did not have to pay
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`rent. Her fellow Reflections patients in the halfway house were drinking and using
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`drugs, and, at one point, there were “needles everywhere.” One patient overdosed
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`in the house.
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`During his FBI interview, Abovyan explained his attitude about patients’
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`drug use after they left daily “treatment” at Reflections and returned to the halfway
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`houses: “whatever happens happens.”
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`C. Dr. Kelly Clark
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`
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`The government called Dr. Kelly Clark as an expert witness. Dr. Clark, a
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`board-certified physician in addiction medicine and psychiatry, is the President of
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`the American Society of Addiction Medicine. Dr. Clark spent 100 hours reviewing
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`patient files and other documents from the Facilities. She explained the legal
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`requirements and best practices for addiction treatment centers and their medical
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`duties, and how Abovyan failed to follow them. As to drug tests, Dr. Clark
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`testified that: (1) drug testing always should be tailored to the patient, especially
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`when ordering expensive confirmatory lab testing; (2) Abovyan improperly
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`ordered across-the-board lab testing for every patient multiple times per week,
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`every week; (3) a doctor “[a]bsolutely” should discuss the outcome of each test
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`with the patient, particularly if they fail; and (4) there was no documentation in the
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`charts that test results were ever discussed with the Facilities’ patients.
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`As to prescriptions, Dr. Clark explained that: (1) Florida law does not allow
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`17
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`USCA11 Case: 19-10676 Date Filed: 02/22/2021 Page: 18 of 51
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`nurse practitioners to practice medicine without the supervision of a physician; (2)
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`nurse practitioners may not write controlled substance prescriptions on a
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`prescription pad that the doctor already has signed; (3) it is never appropriate for a
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`doctor to sign blank prescriptions and give them to a staff member to fill in the
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`patient name and drug; and (4) a doctor should not share his own log-in
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`information for a patient’s medical record with others.
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`
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`As to buprenorphine, Abovyan improperly prescribed it without examining
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`the patient, having a doctor–patient relationship, or making an assessment and
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`individualized treatment plan. Dr. Clark testified that: (1) Abovyan signed
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`prescriptions for buprenorphine to treat “pain/withdrawal”; (2) there was no
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`documentation in the charts that the patients, in fact, had pain or withdrawal; and
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`(3) those prescriptions were written to treat opioid addiction—and not for a
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`withdrawal period, but as ongoing management.
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`
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`Dr. Clark also testified that: (1) the amounts billed for urine testing were
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`“outrageous”; (2) each lab test cost from over $1,000 to over $6,000 per urine
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`specimen; (3) testing was done two to three times per week, with no patient follow-
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`up; and (4) these tests thus were not used for treatment purposes.
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`Dr. Clark discussed the buprenorphine prescriptions charged in Counts
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`Three through Nine. The Reflections patient in Count Three was E.L., who had an
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`opioid and cocaine addiction. On July 12, Reflections sent E.L.’s urine sample to
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`18
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`USCA11 Case: 19-10676 Date Filed: 02/22/2021 Page: 19 of 51
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`Smart Lab for an “extraordinarily high” 100-panel drug test that included drugs not
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`ordinarily tested in the treatment or assessment of an addiction patient. On both
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`July 13 and July 15, E.L.’s urine was extensively tested again. E.L.’s saliva was
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`tested on July 14 and 28. Dr. Clark testified that “[t]here [was] no reason for doing
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`both” saliva and urine tests simultaneously.
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`On July 20, 2016, Abovyan prescribed E.L. Suboxone for “pain” and
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`“withdrawal,” even though E.L.’s chart had no indication that he was experiencing
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`pain or withdrawal or that Abovyan had seen him. Dr. Clark testified that the
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`Suboxone prescription “was not for a legitimate medical purpose.”
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`E.L.’s three July drug tests showed continued drug use. After E.L. stopped
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`coming to Reflections, Abovyan electronically signed all three July test results
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`without any patient discussion. Yet, Abovyan added the note, “Reviewed and will
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`discuss at next patient encounter.” There was no follow-up discussion. Dr. Clark
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`testified that the manner in which the urine testing was performed—ordering
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`additional tests before receiving the results of prior tests and not discussing those
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`results with E.L.—was “[n]ot for a legitimate medical purpose.” This same pattern
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`continued with the other patients.
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`Counts Four and Eight involved Reflections patient H.F., who had cocaine,
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`opioid, and alcohol addictions. H.F.’s urine was also tested by labs at an
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`“inappropriate” frequency: July 7, 8, 9, 11, 13, 15, 22, and 24. Although many
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`19
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`USCA11 Case: 19-10676 Date Filed: 02/22/2021 Page: 20 of 51
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`tests revealed continued drug abuse, Abovyan electronically signed them with his
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`standard notation, “Reviewed and will discuss at next patient encounter.” There
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`was no follow-up discussion.
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`On July 25, 2016, Abovyan prescribed H.F. Suboxone with a
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`“pain/withdrawal” diagnosis (Count Four) and, a month later, on August 29,
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`Abovyan again prescribed H.F. Suboxone for drug dependence, pain, and
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`withdrawal (Count Eight). Dr. Clark explained that, because H.F.’s actual
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`diagnosis was drug addiction, Abovyan could not have lawfully prescribed
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`Suboxone without an X Number, which he did not have.
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`Count Five involved Reflections patient A.C., who had an opioid addiction.
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`A.C.’s urine was tested on June 15, 17, 20, 22, 27, and 29, and July 1, 4, 6, 11, 13,
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`and 15, 2016. On July 27, Abovyan signed the results as “normal,” even though
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`results showed tampering and drug abuse. On August 4, Abovyan wrote a progress
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`note stating that A.C. was “clean for a while,” which plainly contradicted A.C.’s
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`failed drug tests that Abovyan had reviewed and signed days earlier. On July 25,
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`Abovyan prescribed A.C. Suboxone with a “pain/withdrawal” diagnosis. Again,
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`Dr. Clark concluded that this Suboxone prescription was illegitimate because
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`Abovyan falsely indicated that it was meant to treat “pain/withdrawal,” when it
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`was in fact treating drug addiction, and Abovyan did not yet have an X Number.
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`Count Six involved Reflections patient D.W., who had a cocaine and opioid
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`20
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`USCA11 Case: 19-10676 Date Filed: 02/22/2021 Page: 21 of 51
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`addiction. The results of D.W.’s urine test on July 15, 2016, indicated tampering,
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`yet Abovyan signed off on the results as “normal.” Abovyan’s progress notes
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`stated that D.W. was “doing well,” even though he repeatedly failed drug tests.
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`Although D.W. did not complain of pain, Abovyan prescribed Suboxone for
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`“withdrawal/pain” on July 27, 2016.
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`Count Seven involved Reflections patient C.D., who came for an opioid
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`addiction treatment from June until August 2016. C.D. provided urine specimens
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`multiple times per week for expensive lab testing. Dr. Clark testified that the
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`frequency of C.D.’s testing was “inappropriate” and lacked utility, that the money
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`billed was “amazing,” and that the results were never discussed with the patient.
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`Although C.D. did not complain of pain, Abovyan prescribed Suboxone for
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`“pain/withdrawal” on August 3, 2016. In reality, Abovyan was prescribing the
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`Suboxone for treatment of an opioid addiction, but he still did not have the
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`required X Number.
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`Count Nine involved Reflections patient A.B., who had no pain complaints.
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`On August 31, Abovyan, without an X Number, prescribed A.B. Suboxone for
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`drug dependence, withdrawal, and pain.
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`Dr. Clark explained that Abovyan pretextually prescribing Suboxone for
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`“pain/withdr
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