A three-judge panel of the Kentucky Court of Appeals has reversed the conviction of a former Somerset doctor found guilty of taking part in a scheme to defraud Medicaid through false bills.
The attorney representing Ezekiel O. Akande filed an emergency motion to have him released from custody based on the decision.
Akande, 59, operated a clinic called the Somerset Regional Pain Center, which provided patients with pain medication but also offered counseling to stop people from using tobacco.
Akande allegedly billed Medicaid for more time than he actually spent counseling patients about smoking, and also billed for counseling patients who didn’t smoke.
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Akande billed Medicaid $10,228 between 2012 and 2016 for providing anti-smoking counseling.
A jury in Pulaski County convicted him in March 2017 on one charge of illegally taking money from Medicaid and one charge of devising a scheme to defraud the taxpayer-funded insurance program.
Circuit Judge David Tapp sentenced Akande to five years in prison.
The Court of Appeals said the evidence showed Akande’s bills to Medicaid for anti-smoking counseling were incorrect.
Akande said he put the correct amount of time he spent with patients in his notes, but the billing service charged Medicaid for more time.
He argued the discrepancies were caused by a computer glitch at the billing service he used, and that he did not review the bills before they were submitted to Medicaid, according to the Court of Appeals.
Akande argued prosecutors did not prove he had any intent to defraud Medicaid.
The Court of Appeals panel agreed, saying there was no evidence to show Akande intentionally told the billing service to submit incorrect claims, or even that he knew it was happening.
The court released the decision Friday.
Kent Wicker, who represents Akande, said the state can’t re-try the doctor on the charges because of the ruling that prosecutors did not submit sufficient evidence.
Wicker filed a motion Friday to have Akande released from jail.
Akande faces separate charges in federal court of improperly distributing pain medication; operating a place for the purpose of illegally distributing drugs; conspiring to defraud Medicare and Medicaid; and taking part in financial transactions involving money he obtained through illegal acts.
The indictment charges that Akande submitted bills for services and tests that were not medically necessary.
The most serious charges have a maximum sentence of 20 years in prison.
In addition, the government is seeking a judgment in that case of $1.9 million – the amount Akande allegedly grossed through illegal activity between 2012 and 2016.
He has pleaded not guilty and is scheduled for trial in April.