Borrego Sun - Since 1949

Why is the Borrego Sun still writing about Borrego Health and its legal issues? Some readers may have lost interest, feel it doesn’t impact them and gone on with their lives. Others feel the Sun is beating a dead horse and should be supporting the local clinic in this difficult time. Maybe, that’s just what the criminals and attorneys count on. These cases do seem to drag on for years. In the case of medical fraud, it’s an average of four to five years. That’s too long for the media or public to pay attention, even if they should.

The alleged crimes affect the finances of the organization; therefore, Borrego Community Health Foundation’s (BCHF) ability to provide the necessary funding and staffing needed by the local clinic to provide the promised and required services. The recovery and future of the Borrego Springs clinic is inextricably bound to the future and finances of Borrego Health, which is currently under legal siege by former employees from the former CEO, Mikia Wallis, to contract dentist, Husam Aldairi, not to mention, the Department of Justice.

There’s also some truth to the argument that had not the Borrego Sun relentlessly pursued BCHF with locals picking up the call for an investigation, there might never have been an FBI/DOJ raid. This is not meant as gratuitous, self-congratulation, but, rather, a sad comment on how greed drives humans to exploit other humans, and the failure of the state and federal governments to protect taxpayer funds: revenue used to provide the necessary medical services many Americans cannot afford. Given that one of the largest federal agencies, the Human Services and Resources Agency (HSRA), and its sub-divisions responsible for regulating government health insurance programs, overlooked all the red flags indicating something was amiss at BCHF, it behooves the public to be weary and warned.

For 10 years, Borrego Health’s illegal activities and tax returns were ignored. Meanwhile, HSRA reported, “Borrego Health is the largest and fastest growing FQHC Health Center in the nation.” Then, there were the state regulators overseeing Medi-Cal (Medicaid) and Denti-Cal. From the Attorney General’s office down the chain of responsibility, they were negligent in meeting their self-proclaimed “strict regulatory oversight.”

Other journalists covering health care fraud, including a Pulitzer Prize winner, and Dr. Michael Davis, an investigative reporter, who writes about dental fraud; and is an expert trial witness in dental malfeasance cases, claim the public needs to understand two things:

First, the public may never know the truth or guilt of all the conspiring parties, and the most justice served will be a settlement with a financial slap on the wrist for the perpetrators. A financial punishment that doesn’t come near matching the hundreds of millions stolen from tax payers and health care services for the needy. Rarely, does anyone go to jail, and without a trial, the facts remain hidden and the guilty protected.

And secondly, the Borrego Health case is the biggest FQHC Health Center fraud in California, maybe, the nation, which means, according to the experts, “There had to be regulators in government that were compliant and benefitting.” This is almost as shocking as the initial revelations of wrongdoing by Borrego Health Officers and Trustees.

Take the Husam Aldairi civil lawsuit against BCHF, filed October 29, 2021, in the Superior Court of the State of California, County of San Diego, Central Division. Aldairi is claiming “Breach of Contract,” and that Borrego Health owes him money for services rendered. The case is about two contracts, signed by former, deceased, CEO Bruce Hebets. Aldairi is asking for reimbursement for financial damages.

The case, Husam E. Aldairi, an individual; and Husam Aldairi, a California corporation, v. Borrego Community Health Foundation, a California nonprofit corporation DBA Borrego Health, and Does, 1-50, would be funny, if not for the fact, so many innocent people have been hurt. The irony is that Aldairi, and others used Borrego Health to rip off government insurance in the millions. Aldairi and his corporation were responsible for $8 million in the last, official Borrego Health IRS-990 filing.

Every year, since the first contract in 2016, Aldairi’s income grew by about $2 million. It also appears, he had help from Borrego Health, as well as, the state’s Dental Board. How far that help or corruption climbed up the chain of state’s Department of Health Care Services (DHCS), or if it did, as fraud experts like Davis suggest, is a good question. According to the last IRS filing, Borrego Health had five dentists making millions, including Aldairi, and 200 other private contractors earning $100,000 or less. He claims he wasn’t paid for services rendered. Given the record of money he made off of Borrego Health, that’s one for the books.

According to the Aldairi Civil Lawsuit: “The First Contract, signed May, 2016, between BCHF and Aldairi was to provide specified dental services, at agreed upon rates for participating patients of Borrego Health, from an office located at 6175 El Cajon, Blvd., San Diego. The agreement was subsequently extended for one-year periods from 2016 to 2020 when the payments abruptly ended.

“There was no purported termination of the agreement, and BCHF failed to make all payments due to Aldairi, therefore breaching its contract.” According to the lawsuit, Aldairi is entitled to payment for the dental services (and a little more) he provided under the First Agreement, in an amount to be determined in the trial.

The Second Action was the same, only the dates of the contract and office differed. According to the court filing, on or about May, 2018, BCHF and Aldairi Inc., entered into an agreement to provide services for Borrego Health dental patients at 40/30 Dental 2, located at 1166 East Main St., El Cajon, Calif. As with the other agreement, it had been extended through 2020 when his payments stopped coming.

“First cause of action was a breach of contract, as BCHF unilaterally decided to withhold payments to the Plaintiffs that were due under the dental agreements without any contractual basis.” And because of this the “good” dentist “suffered damages in an amount, not yet ascertained, but at a minimum of $25,000, plus interest at the legal rate of 10% per annum, and to be proven at the time of the trial.”

Now that’s a lot to unpack, considering at the date the lawsuit was filed October 29, 2021, both BCHF and Aldairi, along with Premier Health Management, BCHF’s secret dental management company, had offices raided by the FBI and California Department of Justice (DOJ) the year prior. The raids were part of an investigation initiated by the FBI, because it had reason to believe criminal activities, including fraud, had been committed by the trio. Also, during this period, the DHCS, reacting to the raids, withheld Medi-Cal payments from BCHF for dental services, making it difficult for Borrego Health to pay any dentists, following the October 2020 raid.

Shouldn’t the Sun be saying, “alleged fraud?” Not when the cross complaint by Borrego Health provides facts that Aldairi was stealing from them, and the public, as part of their defense for not paying him after 2020. Here’s what Borrego Health states about Aldairi in the lawsuit: “Aldairi violated his agreements by: Failing to disclose an ongoing California Dental Board investigation of Aldairi’s license; falsifying patient appointment schedules; providing insufficient documentation for patient health records; falsifying medical records; performing services not required; providing substandard services, including unnecessary treatment to healthy teeth; providing excessive services; generating inaccurate billing records, including billing for services not rendered; upcoding; inappropriately splitting services; and billing for services rendered by another provider or providers not enrolled in Medi-Cal.”

Thus, causing Borrego Health “economic harm.”

So why isn’t their defense that they terminated him in 2020 after the raid? Because they didn’t. Begging the question, why didn’t the Trustees stop all relations with Aldairi after possible fraud became a public issue? One reason is, perhaps, they already knew what he and others were doing, and certain Borrego Health officials were conspiring with him.

In the court document, Borrego Health claims that Aldairi failed audits conducted in September 2020. However, according to their own accounts, BCHF graciously gave him a second chance to clean up his act through training. This was a month before the FBI/DOJ raids, and six months after the Borrego Sun was asking BCHF Trustees to come clean or to investigate.

Was the 2020 audit the first serious regulatory look into Aldairi’s practice? If so, Borrego Health officials were very negligent in meeting their FQHC requirements.

Why did it take four years, and hammering by a newspaper, for BCHF to undertake an investigation of Aldairi? The list of violations justifying Borrego’s non-payments to Aldairi are pretty sophisticated and in-depth. Are they the result of the Foundation’s findings, or recent legwork, by the firm hired to defend against the Aldairi civil suit for Breach of Contract? Is this new or old information? If there is new information, Borrego Health should be charged with malfeasance. If it’s old information, Borrego Health Trustees conspired to hide fraudulent activities.

For example, in 2019, Dan Anderson, then chairman of the Board of Trustees, ordered his own handpicked attorneys to investigate Borrego officials, due to questions of illegal activities. The attorneys recommended, “Firing all Borrego Health officers as being complicit in violations of federal and state regulations, and the IRS, along with potentially criminal activity.” That report was leaked to the Sun. However, Anderson and the Board did not act on the warnings from their own attorneys.

Then, there’s the fact that in 2018, two years before the FBI raid, Borrego Health’s Dental Officer, Dr. Timothy Martinez, was advised of illegal activities in Aldairi’s office by a dentist working for Aldairi. She not only witnessed violations, but documented them. When Dr. Maura Tuso attempted to follow up with Martinez’s promise to take care of things, he discontinued all communication. However, she did bring her evidence of his knowing about the illegalities to state officials, including the state Dental Board, by way of a recorded phone conversation between herself and Martinez.

Also, of note, Aldairi’s income spikes and contracts coincide with BCHF’s undisclosed (to the Federal government and to some Trustees) very lucrative dental management contract with Premier Healthcare Management, owned by Hebets’ business partner, Daryl Priest. As Board Chairman, Anderson consistently denied Trustees access to the Premier contracts.

So why did both parties leave Premier Healthcare out of the lawsuit? Since in all probability, the private corporation was supposed to be managing Aldairi’s contracts? Maybe it was the first time Borrego realized Premier Healthcare wasn’t monitoring, or capable of regulating the private contracts, like Aldairi’s? Would introducing Premier Healthcare pose disclosure and discovery problems for Borrego Health? Maybe self-incrimination? In fact, the issue of self-incrimination and the right to plead the Fifth Amendment comes in the form of a second Cross Amendment to the Aldairi complaint, filed by Borrego Health, October 29, 2021. This is one year after the FBI raid.

In the second counter suit, Borrego Health attorneys requested the Judge to “Stay Aldairi’s civil suit until the criminal investigation is concluded, or the statutes of limitation for potential criminal statutes have run out (2025), or Borrego Trustees and Officers are granted immunity with respect to potential criminal liability.”

Borrego Health was granted the “Stay” of all discovery, by Superior Court Judge Kenneth J. Medel, December 17, 2021. The issue was that Borrego Health Trustees and Officers might have to plead the 5th so as not to incriminate themselves during discovery and trial, potentially adding more fodder to the criminal investigation. It seems, Trustees are at risk as official representatives of Borrego Health. “They are volunteers,” stated the attorneys, “Who have other things to do; have individual legal representation; and with the ongoing criminal investigation, it’s just too much time; duplication; and inefficient use of court resources to take on the Aldairi case at this time.”

Plus, the discovery for the Aldairi suit has the risk of the defendants being forced to perjure or incriminate themselves.

The attorneys argued, “If the defendants, Borrego Health, plead the 5th, which is their legal right, then they can’t provide evidence countering the Aldairi charges. If they don’t, they run the risk of self-incrimination in the criminal case.”

The Judge agreed, and granted the Stay with conditions: “The parties shall update the court every six months, regarding the status of the criminal investigation. Such status reports shall be filed with the court and accompanied by necessary documentation informing the court whether the investigation has concluded or there has been a grant of immunity.”

Key Points: Many experts in large cases of dental fraud such as Dr. Davis, believe that it took more than Borrego Health Officers and Trustees looking the other way, or scheming to steal public funds. He claims, in his experience, “the duplicity and malfeasance go higher up the command chain into the offices of government regulators.”

One obvious player was the California Dental Board, which was responsible for granting Aldairi a California Dental License, despite his notoriously malicious legal record that followed him from his Chicago practice. The example, a Chicago court rejected Aldairi’s bankruptcy filing to avoid paying a settlement in a sexual harassment case. The judge called the case, “bogus.” The Dental board either didn’t care about the former legal challenges to his license, or was paid not to care, according to Davis. “Because records of wrong doing follow a dentist when moving to another state and filing for a license. They could not have known of his past,” Davis claims. “And, if the Dental Board didn’t check Aldairi’s record before granting him a California Dental License, they should be sued for malfeasance.” Borrego Health’s Dental Officer, also would have known of Aldairi’s previous court records. One reason Martinez would have been aware is because he has chaired the state’s Dental Hygiene Board for three terms.

A sister to the Dental Board, the two boards share reports, meetings; and, as all colleagues do, talk out of class. It wouldn’t be out of the question for Dr. Martinez to run interference for Aldairi, or other Borrego Health issues with the Dental Board. This would include influencing the revocation of the whistleblower, Dr. Tuso’s license.

Three months after her call to Martinez, advising him of Dr. Aldairi’s illegal activities in 2018, Dr. Tuso was called to a hearing by the Dental Board to rescind her dental license. At the hearing, the one witness appearing in passionate support of pulling Dr. Tuso’s license was none other than Aldairi’s wife.

Who filed a complaint strong enough to warrant canceling Dr. Tuso’s Dental license? That remains a secret known only to Karen Fischer, former executive director of the Dental Board and, most likely, Dr. Timothy Martinez Also unknown is who contacted Aldairi’s wife, prepared to say that Dr. Tuso was “unstable and even a psycho?” Despite testimony to her credibility by respected dentists, Dr. Tuso lost her license, “Due to mental instability” and was ordered to report to the courts to have her mental condition reviewed, before she could appeal. She did. The court OK’d her, and after four years, she still has not been able to schedule an appeal or hearing to return her license.

Contrast that with the gentle slap on the wrist Aldairi received from the Dental Board. On May 21, 2020, the executive officer of the Dental Board of California, the same Karen Fischer, issued an Accusation against Husam E. Aldairi, alleging that he, dating back to December 2016, “committed gross negligence, repeated acts of professional negligence and failed to properly document patient treatment, surgical procedures, diagnosis and clinical findings.”

The Accusation sought to revoke or suspend Aldairi’s dental license to practice in California. However, on May 25, 2021, a year later, the Dental Board and Aldairi agreed to a Stipulated and Disciplinary Order, in which Aldairi “voluntarily, knowingly, and intelligently, waived and gave up his legal rights, including a right to a hearing on the charges and allegation.” Under the Order, Aldairi’s dental license to practice in California was revoked, but the revocation was stayed on June 24 2021, pending a two-year probationary period.

So, the whistleblower loses her license and the criminal gets probation. Somehow that doesn’t jell. It would appear the Dental Board decided to cover its ass in 2020 after the FBI raid; but wasn’t willing to pull Aldairi’s license, even with his past record from Chicago and the Board’s own accusations of negligence, which was literally the tip of the proverbial illegal iceberg. The question, once again is why?

This puts some of the resulting consequences on the state’s own shoulders, and that includes the state inspectors and general counsel assigned to the Department of Health Care Services (DHCS), which oversees the Dental Board. And, which is now the primary agency involved in corrective actions imposed on Borrego Health, resulting from a deal made for lifting the suspension of dental payments.

The case of Borrego Health’s apparent illegal and conspiratorial relations with the Dental Board, engineered by Dr. Martinez, as shown in the case of Husam Aldairi, are good reasons the BCHF Board of Trustees may want to plead the Fifth. There are plenty of other reasons and violations of the law and regulations to cause legal concerns that consume Borrego Health’s time, and budget.

Hopefully, in between lawsuits, the Board of Trustees have time to take care of business at the clinics for which they are responsible. And, maybe, some of the people, flying below the radar, like Dr. Alfredo Ratniewski, Daryl Priest, and the Hebets family that pocketed the most money will also be held accountable.

Meanwhile, the American health system remains ripe for raiding by unscrupulous people; and the public is left wondering where’s the health care they were promised.