Nothing to See Here: Healthcare Fraudfeasors are Like Missing Links
(The Evidence of Nothing, Again: Medicare, Medicaid, and Missing Links)
Dr. James J. S. Johnson
Attorney General Ken Paxton today announced that [Austin’s] Hon. Catherine Mauzy of the 126th Judicial District Court of Travis County has ruled Dr. Richard Malouf of ASDC Holdings, LLC responsible for 1,842 unlawful acts under the Texas Medicaid Fraud Prevention Act. Dr. Malouf operated orthodontics clinics for many years in the Dallas area and billed tens of millions of dollars to Texas Medicaid. The Court found that Malouf fraudulently billed Medicaid for services that were actually provided by a different doctor, including over 100 billings he filed [for supposed service performed in America] while vacationing out of the country. … As a result of the court’s order, Dr. Malouf is liable to Texas for approximately $12 million, plus attorney and court fees.(1)
How is this ruling like an echo, of a prior report in Acts & Facts, more than a dozen years ago?
In 2008, in an article titled “The Evidence of Nothing”, this jurist reported on a similar situation, that was tried in (and appealed from) federal district court, but this controversy involved Medicare fraud—as opposed to the recent case, involving Medicaid fraud.(2)
This Medicare fraud case involved years of federal court proceedings, with one of the appeals being decided last year [i.e., 2007]. Part of the convicting evidence was nothing–literally nothing, when there should have been something. In the related cases of Okoro and Akpan … Victor Okoro, M.D., in concert with others, was accused of fraudulent Medicare billing practices, which conflicted with his “medical missionary” trips and a bogus charity called the Sisters of Grace.(2)
In the appellate proceeding’s affirmance of the fraud findings, the Fifth Circuit Court of Appeals commented on Dr. Okoro’s Medicare fraud:
Although some of the patients |in Texas| received physical therapy treatments and some were examined by Okoro, each patient signed blank sign-in sheets and blank patient forms. In addition, Okoro signed most of the forms himself, yet many of the patients testified that he had never examined them….Okoro signed patient documents that stated that he had treated those patients on specific dates and at specific times on which Okoro could not possibly have rendered services. For example, many of the dates on which Okoro alleged that he provided services were dates when he was in Nigeria.(3)
To prove that Dr. Okoro was absent from Texas, at times when he was billing the Medicare program for “services” never performed, his air travel records (including international air travel records) documented him departing and returning to Texas via airports.(2),(3)
Thus, the federal prosecutor used these records to show Okoro’s ingress to and egress from Texas, over the relevant timeframe of the Medicare billings.(2),(3)
Yet just as important, from a circumstantial evidence standpoint, was the government’s proof of “nothing” on other legally important dates. The federal government’s trial proof included official government records with absences of entries on the dates in question, showing that Dr. Okoro was not recorded as having re-entered the United States in time for him to have performed the medical services for which he billed Medicare.(2)
Some might object that this is an “argument from silence”, and it is.(4)
Yet the forensic force of this “silent” witness can support a sentence of felony jail time. But how can examples of “nothing” become admissible evidence at trial?
Federal Evidence Rule 803(10) provides this forensic proof option:
“Absence of Public Record or Entry. To prove the absence of a record, report, statement, or data compilation, in any form, or the nonoccurrence or nonexistence of a matter of which a record, report, statement, or data compilation, in any form, was regularly made and preserved by a public office or agency, evidence in the form of a certification in accordance with rule 902, if necessary, or testimony, that diligent search failed to disclose the record, report, statement, or data compilation, or entry.” |emphasis added|(4)
Evidence Rule 803(7) is similar, but it applies to admitting as trial evidence the fact that regularly recorded “business records” have a relevant “absence” of an entry, as well as where and when a documentary “nothing” is forensically important.(2)
So, how are these healthcare fraud cases, of “the evidence of nothing”—that prove “something”—relevant to creation science controversies, such as the notion that simians procreated humans via the mystical magic of “natural selection”, an animistic “process” that functions as materialism’s “creator”?
Consider the relevance of the Federal Evidence Rules that govern the adjudicatory admissibility of “nothing, when there should be something” to the evolutionists’ problem of “missing links.”
When examining the quixotic quest for missing links, it is like déjà vu–literally nothing, when there should have been something.
To use the logic of Rule 803(10), a diligent search for these so-called transitional form fossils over a period of 150 years has failed to disclose them. What kind of empirical evidence is that, regarding the origin of earth’s life forms? The years of diligent search indicate a glaring absence of molecules-to-man evolutionary phylogeny in the fossil record. In other words, the empirical data of earth’s fossils, if analyzed forensically, show that evolutionary phylogeny notions are just empty imaginings, refuted by the evidence of nothing.(2)
Geologist-paleontologist Dr. John Morris once summarized the importance of what the global fossil record contains, and (moreso) what it does not contain.
Evolutionists often speak of missing links. They say that the bridge between man and the apes is the “missing link,” the hypothetical ape-like ancestor of both. But there are supposed missing links all over the evolutionary tree. For instance, dogs and bears are thought to be evolutionary cousins, related to each other through a missing link. The same could be said for every other stop on the tree. All of the animal types are thought to have arisen by the transformation of some other animal type, and at each branching node is a missing link, and between the node and the modern form are many more. If you still don’t know what a missing link is, don’t worry. No one knows what a missing link is, because they are missing! We’ve never seen one.(5)
In other words, if the evolutionists were correct about their simian-to-human evolution theory, they should have found “missing links” by now—but they have not—and it’s been more than 160 years of hunting at taxpayer expense!(2),(5)
This argument from silence is an absence in the evidentiary record–a “nothing, where there should be something” if evolutionary theory were true. But evolutionary theory is not true, so the real world’s fossil record has been providing irrefutable evidence, by the absence of missing links, for a long, long time now.(2)
Now consider the outcome, in this part of the Travis County 126th District Court’s recent ruling, in the Malouf case.
The Court finds and IT IS ORDERED that Defendant Malouf is liable for 1,842 “unlawful acts”, as defined by the Texas Medicaid Fraud Prevention Act, …
[and] that the State of Texas have judgment against Defendant Malouf for the following civil remedies and penalties: $538,228.45, representing the amount of any payment provided under the Medicaid program as a result of unlawful acts, …
[plus] $9,210.000.00, representing the statutory minimum civil penalty for each unlawful act committed, … representing two times the amount of the payment received as a result of unlawful acts, …
[plus] the State has the right to recover [attorney] fees, expenses and costs reasonably incurred in obtaining the remedies outlined in this order.(6)
And to think that such a serious outcome was proven, in part, by “the evidence of nothing”—while Dr. Malouf was vacationing abroad.
No wonder evolutionists bristle–as the “science deniers” they are–when they are reminded that the so-called “missing links” are still missing.
[Photograph of author, below, in Bosque County Museum (Clifton, Texas), lecturing on Biblical creation-based providential history, while debunking evolutionary mythology]
- Ken Paxton (Attorney General of Texas). “Court Awards Millions for Texans in Medicaid Fraud Lawsuit”, press release posted at www.TexasAttorneyGeneral.gov (May 14, 2020) – accessed May 14, 2020.
- Johnson, James J. S. 2008. The Evidence of Nothing: The Silent Witness of Evolution’s Missing Links. Acts & Facts. 37(4):4-5, posted at https://www.icr.org/article/evidence-nothing . No one should think that their international travel records are “private” or undiscoverable. See Johnson, J. J. S. 2020. When Travel is Restricted, Be Honest and Trust God. ICR News (April 4, 2020), posted at https://www.icr.org/article/when-travel-is-restricted-be-honest-and-trust-god .
- Trial in federal district court began in September 2002. One appellate ruling was published as United States v. Akpan, 407 F.3d 360 (5th Cir. 2005), and a later appellate ruling appears at United States v. Okoro, 213 Fed. Appx. 348, 2007 WL 98804 (5th Cir. 2007) (non-precedent). Quotations are from United States v. Akpan, 407 F.3d at 364-365.
- Federal Evidence Rule 803(10). The Federal Rules of Evidence have been cloned, with only small modifications, by the 50 states. According to Rule 102, the Federal Rules of Evidence are supposed to be applied “to the end that the truth may be ascertained and proceedings justly determined.” This article focuses mainly on Evidence Rules 803(7) and 803(10), which respectively govern the admissibility as evidence of an absence of information that could have been (but was not) entered into a regular business record or an official government record.
- Morris, John D. 2006. What’s a Missing Link? Acts & Facts. 35(4), posted at https://www.icr.org/article/2709/ .
- Order Granting the State of Texas’ Motion for Partial Summary Judgment, in Cause No. D-1-GV-12-000863, State of Texas v. ASDC Holdings, LLC (ASDC), 126th District Court, Travis County, Texas (Hon. Catherine A. Mauzy, May 12, 2020), posted at https://www.texasattorneygeneral.gov/sites/default/files/images/admin/2020/Press/D-1-GV-12-000863%20Order%20on%20State%27s%20Motion%20for%20Partial%20Summary%20Judgment.pdf?utm_content=&utm_medium=email&utm_name=&utm_source=govdelivery&utm_term= .