McALLEN — An Edinburg-based doctor who confessed to participating in a kickback scheme was sentenced to four years probation on Monday.
Eugene Scott Mackie, an ears, nose and throat doctor, will be on probation for four years and will have to pay $70,000 in restitution to Medicaid as per his sentence, which was handed down by U.S. District Judge Ricardo H. Hinojosa.
Mackie pleaded guilty in September 2018 to a count of conspiring to violate the Anti-Kickback Statute, confessing to participating in a kickback scheme with home health agencies.
From January 2011 to August 2013, Mackie referred patients to home health agencies that were owned by a co-conspirator, according to the criminal information.
In exchange for those referrals, Mackie was given access to patients at adult day care facilities. He ordered hearing aids for some of those patients that were billed to Medicaid for profit.
From those hearing aid prescriptions, Mackie received a gross amount of more than $170,000 from Medicaid. The gross amount that Medicare and Medicaid paid to Mackie and the home health agencies was $3.7 million.
For his sentencing, though, federal prosecutors agreed with the defense that the judge should only take the $61,000 that Mackie made in net profit from those prescriptions.
Andrew Swartz, an attorney for the government, explained that prosecutors could not determine how much of the $3.7 million was improper because some of those patients legitimately needed the hearing aids and because witnesses reported that the home health agency forged Mackie’s signature.
So prosecutors say there were two schemes — one in which Mackie received bribes to which he pleaded guilty and another in which a home health agency forged his signature.
“There is not sufficient evidence in this case to discern what amount of the $3.7 Million payout was based on the kickback scheme, for which Defendant Mackie is accountable, and what amount derives from the separate forgery scheme,” read the brief filed by government prosecutors.
Because the actual amount of “improper benefit” could not be reasonably calculated, the government concluded that sentencing should be based on the bribe amount which was $61,000.
The judge, however, vehemently disagreed.
Hinojosa questioned why Mackie shouldn’t be held accountable for the amount of money the home health agencies received since he was working with them and enabled them to receive those payments.
“Let’s not pretend that they could’ve done this without his help,” Hinojosa said.
He also noted it was the people of the United States who were the victims in this case and asked why it should not be the $3.7 million it lost that should be taken into consideration.
After Swartz reiterated the arguments expressed in their brief, Hinojosa moved forward with the government’s recommendation.
Mackie apologized for any wrongdoing he had committed in the situation and said nothing like this would ever happen again.
His attorney, Carlos M. Yzaguirre, said he’d known Mackie since childhood. He described Mackie as a good man who had made a mistake and said he was remorseful.
Hinojosa asserted Mackie was only remorseful because he had gotten caught but, nevertheless, hoped he could put the situation behind him.
He advised him to work on rectifying his reputation, reminding Mackie he could have served prison time had the government prosecutors recommended something different.
