A federal judge has rejected a motion for compassionate release filed by a 50-year-old Palmview man convicted of defrauding Medicare out of more than $800,000 — for a fourth time.
The reason?
Ivar Cantu already survived the coronavirus in the low security prison where he is serving a little more than 4 and a half years for conspiring to commit healthcare fraud and because he has not exhausted the administrative remedies available to him.
Cantu was convicted in a scheme where he fraudulently set up an account between a medical clinic where a co-conspirator was employed as a laboratory technician and the toxicology testing company where he worked as an account representative, according to a news release.
Cantu and his co-conspirators in 2015 misappropriated patient identities and urine specimens from the medical clinic and sent them to the toxicology testing company without patient or doctor consent in order to receive commissions and collection fees.
Cantu admitted to forging patient signatures, falsifying medical records and creating fictitious documents in a scheme where Medicare was billed $836,788 between May and December 2015.
In his latest motion for compassionate release, Cantu says the coronavirus has seriously infected and attacked his lungs and that he already suffers from Chronic Obstructive Pulmonary Disease, or COPD, and because he has type 2 diabetes.
“The movant, Mr. Cantu previously contracted COVID-19 and survived its effects (while at Bastrop), however, it left his lungs damaged and scared (sic) so that when he reineffected (sic) with the Delta variant (this year) it ravaged his respiratory system (and almost killed him),” Cantu wrote in his motion.
He says his respiratory system has disintegrated to the point that he struggles to breathe and that remedies from the medical staff to him are limited, according to his motion.
“Mr. Cantu does not believe that Beaumont Low, nor the BOP (with its implemented protection plan) can stop him from reinfecting or save his life when he reinfects,” he said in his motion. “In fact, he should not even be housed at this facility as already evedenced (sic) by him because he has already reinfected with the delta variant (which is killing him as we speak) … and is doing damage to his already weakened lungs.”
Cantu filed his motion on Dec. 20 and is asking for compassionate release because he does not believe prison authorities can properly treat him or save his life should he stop breathing.
On Wednesday, U.S. District Judge Micaela Alvarez denied his pro se motion, ruling she is unable to consider the motion because he has not exhausted his administrative remedies.
In her ruling, Alvarez says the court has repeatedly confronted his arguments for compassionate release.
“On December 18, 2020, Movant moved for compassionate release. The Court granted compassionate release,” the ruling stated. “The United States government promptly moved for reconsideration, revealing that Movant had not disclosed that he had already contracted COVID-19 and other factors that mitigated the compelling and extraordinary circumstances that were the grounds for the Court’s grant of compassionate release.”
Those other circumstances included that Cantu had not accepted responsibility for his crime, according to a previous ruling.
That ruling also stated that part of the reason for the denial is that because he had already survive the virus, he would be less likely to reinfect for several months — a point that the variant strains have changed.
The government’s motion for reconsideration is sealed.
“Upon reconsideration, the Court rescinded its grant of compassionate release,” the ruling stated.
Alvarez then again denied his request for consideration on March 26, 2021.
In the latest denial, Alvarez says Cantu should first exhaust his administrative remedies before the judge can consider or reconsider compassionate release.
“Moreover, the exhaustion requirement applies to new arguments or grounds for compassionate release developed after an earlier request for compassionate release,” the ruling stated.
The only exhibit included in Cantu’s latest motion is a Nov. 10, 2020, letter from the acting warden rejecting Cantu’s request for compassionate release.
“Movant could not have submitted, and his warden could not have considered, any reasons warranting compassionate release that developed in 2021 or 2022,” the ruling stated. “Nevertheless, the instant motion cites 2021 developments as grounds for compassionate release.”
Cantu is scheduled for release on July 11, 2023.
