FBI still investigating ambulance billing

Town provides letter to address more Open Meeting Law concerns.

Oak Bluffs officials say the FBI investigation into ambulance billing isn't done. — Rich Saltzberg

Oak Bluffs town administrator Deborah Potter says a federal investigation into the town’s prior ambulance billing isn’t over. In a Nov. 17 letter to The Times, Potter described the investigation as “ongoing.” That description came as part of response to an Open Meeting Law (OML) complaint lodged by The Times over the accuracy and sufficiency of executive session minutes. 

The Times filed an Open Meeting Law complaint against the select board on August 4 over Sept. 22, 2020 executive session minutes about the FBI probe into the town’s fire department. Among other things, those minutes revealed an attorney for the town, David Apfel, forecast an end to Uncle Sam’s investigation. Specifically, the original set of executive session minutes “cautiously predicted” that by January or February 2021, the probe would “probably” be over and criminal charges would be avoided. Apfel walked that prediction back in an Oct. 27 response to a public records appeal.

“That the investigation here may well have been dormant for some time does not mean it has concluded,” Apfel wrote. “Likewise, that undersigned counsel may have predicted an end to the investigation some time ago does not mean that counsel’s prediction was correct. Indeed, here there has been no confirmation that the investigation has concluded …” 

In response to The Times OML complaint, the board redrafted the Sept. 22, 2020, executive session minutes, and approved them on Sept. 13, 2022, in a 3–1-1 vote. Select board chair Ryan Ruley and select board members Jason Balboni and Gail Barmakian voted in favor. Select board member Brian Packish voted against, and select board member Emma Green-Beach abstained. That vote came after a vote in August failed. 

The redrafted minutes provided further clarity and insight; however, The Times still deemed the minutes deficient. In an agreed-upon solution to avoid review by the attorney general’s office, the town drafted a letter explaining omissions that occurred in the redrafted set of minutes. That is to say, the town explained why specific facts, figures, and language didn’t survive between the old set of minutes and the revamped set of minutes. The town didn’t agree that the omissions amounted to deficiencies or inaccuracies.

The town provided an explanation between the Sept. 22, 2020, minutes and the amended minutes. Those differences, according to the town’s explanation, can be readily reconciled as follows:

  1. The omission of “overbilling totals of $4,000 in 2014 and $7,300 in 2013”: In place of this statement, the amended Sept. 22, 2020, minutes accurately note that counsel “explained that the amount of the overbillings was very small.” By way of example, he noted that his office’s analysis had concluded that the highest possible amount of overbilling for 2014 based on everything they had seen was approximately $4,000 in 2014 and $7,300 in 2013. 
  2. The omission of “this would probably be over in a month or two, now it might be January or February”: In place of this statement, the amended Sept. 22, 2020, minutes accurately state that “Apfel indicated that but for COVID-19, the government’s investigation and decisionmaking would likely [not] happen before the end of the year, but because of COVID it might stretch into the new year … Apfel indicated that he was cautiously optimistic that it would wrap up in the early part of 2021.” Mr. Apfel may have also predicted that the wrap-up would occur specifically in either January or February of the then upcoming new year. Of course, as we have told you, Mr. Apfel’s cautious optimism was apparently misplaced. As far as we know, the government’s “decisionmaking” has not yet occurred, and the Investigation remains open. 
  3. The omission of “They claim that fraud was broader”: The amended Sept. 22, 2020, minutes accurately reflect Mr. Apfel’s explanation that the total amount of overbillings was “very small.” He also indicated that in his conversations with the government, it had been suggested that the investigators believed the overbillings may have been greater than the amounts indicated by Mr. Apfel’s investigation, but that they had not, in his view, provided or pointed to any evidence to substantiate that belief. 
  4. The omission of “they are looking for a mileage chart”: In connection with Mr. Apfel’s mention of the government’s suggestion that the overbillings may have been greater than his team’s analysis had indicated, he noted that the government had requested a mileage chart.” 

In addition to accuracy matters in the Sept. 22, 2020, minutes, The Times also pressed the town to explain itself for withholding minutes for two related executive sessions, and not disclosing their existence months ago when a request under OML was made for minutes focused on the fire department. Potter described the prior lack of production as an “innocent mistake.”

Potter wrote, “Those minutes were not produced along with the town’s production of other executive session minutes, and no mention was initially made of the nonproduction, because the person compiling the executive session minutes was not aware that these two additional executive sessions had occurred, and simply did not see minutes of those sessions or even learn about the sessions until recently.”

Potter further wrote the town won’t release the minutes of the other two executive sessions “regarding certain OBFD billing practices” because they are protected by attorney-client privilege, and because “as far as we know,” the federal investigation is still active. 

Potter said the Sept. 22, 2020, executive session minutes provided to The Times were given “inadvertently,” and the board didn’t try to claw them back because “by the time we realized our mistake,” The Times had already published an article on those minutes. 

“Rather than seek to have the Sept. 22, 2020, minutes returned, the select board amended the minutes to correct errors and address Open Meeting Law criticisms that [The Times] had raised.”