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Law360 (May 19, 2020, 2:24 PM EDT ) A former hospital director serving a 15-month prison term for participating in a massive health care fraud scheme with Miami nursing home mogul Philip Esformes can finish her sentence at home given the risk COVID-19 poses to the 53-year-old's health, a Florida federal judge ruled Monday.
U.S. District Judge Robert N. Scola Jr. granted Odette Barcha's request for compassionate release from prison, saying COVID-19 puts her at risk of becoming seriously ill given that she suffers from lupus, a chronic disease causing the immune system to attack its own tissues. Barcha pled guilty in 2019 to conspiring to defraud the United States and paying and receiving health care kickbacks.
"Based on the increased risk of death posed by COVID-19 pandemic and Barcha's severe health conditions, the court finds that extraordinary and compelling reasons warrant Barcha's release," Judge Scola said, citing U.S. Attorney General William Barr's memorandum urging the release of particularly vulnerable inmates over 60 years old.
Barcha said in her request for release that she faces exceptionally high health risks from the coronavirus outbreak because of her lupus and a series of other medical conditions, like rheumatoid arthritis and diverticulitis.
"We are extremely concerned that when (and not if) COVID-19 spreads into FCI Aliceville it will be a death sentence for Ms. Barcha," her attorneys said.
Wardens at Aliceville, the federal correctional institution where Barcha is being held, also recommended release based on her health, Judge Scola said, adding that she doesn't pose a threat to the public.
According to a factual proffer filed when Barcha pled guilty on Jan. 23, she exploited her position as director of outreach programs at Larkin Community Hospital, paying kickbacks to physicians to refer patients to the hospital and to discharge patients from the hospital to assisted-living facilities and nursing homes owned or controlled by Esformes. The patients discharged to Esformes' facilities did not need or never received the medically unnecessary services, the proffer said.
In addition to her prison term, the court also ordered $704,516 in restitution and forfeiture, three years of supervised release, a ban on working in the health care industry and that she surrender to immigration officials for possible removal to her native Colombia at the end of her prison term.
In April, Judge Scola shut down Esformes' request to get out of prison due to his asthma, saying he isn't more vulnerable than other prisoners and that the status of the legal proceedings against him also makes release inappropriate. Esformes is appealing a 20-year sentence and awaiting possible retrial on several charges after jurors found him guilty last year on 20 counts of paying and receiving kickbacks, money laundering, bribery and obstruction of justice.
Barcha's request for release is one of several that courts have been fielding from notable detainees during the coronavirus pandemic, including Chinese real estate developer Ng Lap Seng, who was found guilty in 2017 of foreign bribery, conspiracy and money laundering, and former Mutual Benefits Corp. CEO Joel Steinger, currently serving a 20-year sentence for orchestrating an $837 million insurance investment scam.
A federal judge last week denied former drug company CEO Martin Shkreli's bid to be released for three months to help research a treatment for COVID-19.
Counsel and representatives for the parties did not respond to requests for comment.
The government is represented by Allan J. Medina, Elizabeth Young and James V. Hayes of the U.S. Department of Justice's Criminal Division, Fraud Section.
Barcha is represented by Samuel J. Rabin Jr. and Andrea Cristina Lopez of Rabin & Lopez PA.
The case is U.S. v. Esformes et al., case number 16-cr-20549, in the U.S. District Court for the Southern District of Florida.
--Additional reporting by Carolina Bolado and Nathan Hale. Editing by Marygrace Murphy.
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