Whistleblower Law Blog : Whistleblower Lawyer & Attorney : LaBovick Law Firm, Florida : Federal False Claims Act, Qui Tam

Healthcare facilities can’t bring False Claims Act lawsuits to enforce ceiling-price contracts between drug manufacturers and the Secretary of Health and Human Services, according to the United States Supreme Court in Astra USA v. Santa Clara County, No. 09-1273.

This was a huge win to the pharmaceutical industry and a major blow to health care facilities, since the ruling overturned an earlier  lower court decision in favor of the healthcare facilities.

The clinics involved in the Astra USA v. Santa Clara County case were from California. According to their case, brought under the California False Claims Act.  In a legal maneuvering, the pharmaceutical manufacturers had the case moved to federal court.

The heart of the legal issue is whether drug makers, were at fault in over charging Medicare and Medicaid more than the pre-determined caps for drugs that serve 340B entities medical facilities serving the poor.

The eight pharmaceutical manufacturers in the case included subsidiaries of Astra Zeneca, Sanofi-Aventis SA, Bayer AG, Takeda Pharmaceutical, Bristol Myers Squibb, Merck, Pfizer and GlaxoSmithKine.

Justice Ruth Bader Ginsburg, stated in her opinion that drug-pricing enforcement was solely the responsibility of the U.S. Department of Health and Human Services. "Recognizing the county's right to proceed in court could spawn a multitude of dispersed and uncoordinated lawsuits," Ginsburg said in a 10-page opinion. She said the risk of conflicting court rulings "would be substantial.

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Update on SENATE BILL - SB 5458

Recently, the Senate Committee on Health & Long Term Care met to discuss SB 5458. Several groups raised arguments for and against SB 5458.

Bill Sponsors included: Senators Keiser, Pflug, Kline, Becker, Conway, Pridemore, Rockefeller and Parlette.

A few PRO and CON Arguments for Senate Bill SB 5458 include the following:

Staff Summary of Public Testimony: PRO: This bill meets the growing need of the state to fight Medicaid fraud. It will address provider fraud. The bill will bring in money to the state and could bring in more if the False Claims Act qualifies for the federal rebate. It gives the AG the tools to fight Medicaid theft.

The longer statute of limitations will save the cases the AG already has. It will enable the AG to hire staff to fight Medicaid fraud and bring back recoveries to the state. DSHS does have an effective integrity program and a new fraud and abuse detection system. We are concerned about the rising costs of healthcare. Reducing waste and fraud will help to control costs.

CON: The bill will deter physician participation in the Medicaid program. Audit activities are already in existence and federal and state agencies already have activities to recover inappropriate payments. Instead of receiving more money, Washington will get less money  due to the qui tam plaintiff.

This will increase costs due to increased litigation. Seventy-five percent of qui tam cases are for non-meritorious claims. We support Medicaid auditor funding and the AG having the appropriate amount of resources to defend against fraud. The bill contains a bounty hunter provision. Regarding innocent parties, damages should go both ways.
 

Click on the following link to read the SB Report for SB 5458

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I hope you all had a fun but safe holiday season. December is a great month. It's that time of the year when I dust off my It's A Wonderful Life DVD and get back in the mind set that we, as a society, are here to work with each other and make our community better. Then, of course, January comes in and I'm back at work and knee deep in the problems of American life.

Today I'm at The Global Business Forum 2011 being held in Miami. It's a national medical conference held at my school (Its all about the "U" baby!) discussing important aspects of health care in America. I enjoyed meeting Donna Shalala who is the President of the University of Miami and is also the former United States Secretary of Health and Human Services. She was amazing well versed on the state of financial developments within the medical community.

The key Panel Discussion piquing my interest is titled Health Care Fraud's Ground Zero: South Florida! This is of course both sad for those of us that live in South Florida. The corporations that put corporate greed first and willfully commit fraud against the government and taxpayers deserve to be punished and fined for wrongdoings. 

Currently, health care is represents only 15% of our Gross Domestic Product. With the new Obama Health Care System in place that percentage is going to sky rocket! Whether you love or hate the new Health Care Laws, as a political fact (and I am not fond of letting the government do anything other than National Defense), I do not believe the Congress has the strength to overturn the system.

In the next 15 years health care costs and services are going to grow to become 20-25% of our entire GDP! That means the baby boomers turning 65 (when they get the right to Medicare) will drive the Fraud Boomers into a feeding frenzy.

Truth be told: I love Its A Wonderful Life. I would give up the entire Qui Tam practice if the fraud would go away. There are so many great and honest people in the World but the bad guys get so much press it seems they are not the exception but the rule. One wish for the next 10 years is that the courageous whistleblowing heroes are not vilified in the press after reporting the fraud against their employer.

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In an effort to resolve a qui tam claim regarding submitting false claims to Medicaid for Nitroglycerin Sustained Release (SR) capsules, Novartis Unit, Eon Labs Inc. agreed to pay the U.S. $3.5 million. The U.S. Department of Justice (DOJ) indicated that the settlement “resolves allegations against Eon in a multi-defendant whistleblower action,” case titled United States ex rel. Conrad v. Eon Labs, Inc., et al.

The U.S. Food and Drug Administration concluded in April 1999 that Nitroglycerin SR was “no longer legally eligible for reimbursement” by Medicaid and other government-run health care programs. According to the DOJ, Eon Labs, Inc., allegedly submitted false quarterly reports that included Nitroglycerin SR to the government from April 1999 through September 2008.

U.S. Attorney for the District of Massachusetts, Carmen M. Ortiz, stated the following:

"This is the first False Claims Act agreement with a drug company that sought to charge the government for less than effective drugs, and it shows that the Department of Justice will pursue those who market such drugs and expect the government to pay for them."

Under the False Claims Act, private persons are able to file a whistleblower and qui tam lawsuit on behalf of the U.S. government. If the claim is resolved successfully, the whistleblower may be entitled to receive a share of the settlement. According to the DOJ, the whistleblower involved in this claim will receive approximately $525,000.

Click on the following link to read more on the Eon Labs False Claims Act Settlement, Department of Justice and The Wallstreet Journal.

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This week on January 28,  the Department of Healthand Human Services and the Department of Justice held an invitation only  Summit on Health Card Fraud. Key Speakers included Secretary Kathleen Sebelius and U.S. Department of Justice Attorney General Eric Holder.

The summit was an unprecedented event on health care fraud where law enforcement and the private and public sectors come together as a part of the Obama Administration’s coordinated effort to fight health care fraud. The seminar covered such topics as 

•  Use of technology to prevent and detect health care fraud and improper payments.
• Role of states in preventing health care fraud.
• Development of effective prevention policies and methods for insurers, providers and beneficiaries.
• Effective law enforcement strategies.
• Measuring health care fraud, assessing recoveries and determining resource needs. 

Highlights from some of the key speakers include the following:

Secretary Kathleen Sebelius gave a moving introduction of the significance of the summit. She reinforced the Obama Administration's stance on "zero tolerance" for criminals who cheat  taxpayers, endanger patients, and jeopardize the future of  Medicare. A few highlights from her speach include the following remarks:

"Today, the President has asked us to put these criminals on notic. The problem of health care fraud is bigger than either government, law enforcement or the private industry can handle alone. We will need all of us working together to solve it. In the fight to prevent, find, catch, and prosecute these crooks, we want every good idea we can get.

Health care fraud is a national problem. It affects federal programs like Medicare, state programs like Medicaid, and private insurance companies. We’re all part of a health care system that has been undergoing rapid growth.

Between 1970 and today, America’s annual health care spending has gone from $75 million to over $2.5 billion. That has produced significant benefits for patients. But it’s also created a much bigger target for criminals. And a much bigger challenge for investigators. The difference between catching fraud then and now is the difference between trying to find a penny in a bathtub and trying to find a penny in a swimming pool."

Attorney General Eric Holder stated in his opening remarks that the HHS-DOJ Healthcaree Fraud summit marks a critical step forward in the work being done by HEAT, our Health Care Fraud Prevention and Enforcement Action Team that was established last May. He gave several insightful comments after addressing the fact that we have a serious problem on our hands with healthcare fraud. If the agencies, concerned advocuates and citizens work together, combined forces, more progress will be made.

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FORBA Holdings LLC, a dental management company, settled a qui tam claim for allegedly performing medically unnecessary dental services on children. FORBA  Holdings LLC provides administrative services to  "Small Smiles Center, a nationwide operation of 69 dental centers. The settlement calls for FORBA to pay $24 million, plus interest to the United States and participating states, for suspected medically unnecessary dental services for children on Medicaid insurance. In addition, FORBA will implement several new remedial measures, designed to prevent this type of conduct in the future.

Three whistleblowers are credited for the government’s investigation into these allegations. The whistleblowers filed lawsuits under the qui tam, or whistleblower, provisions of the False Claims Act, which permit private citizens to sue on behalf of the United States and share in any recovery. The whistleblowers will receive payments over $2.4 million from the federal share of the settlement.

According to the Department of Justice, FORBA allegedly falsely submitted claims for dental services performed on low-income children. Many of these services performed did not meet professionally recognized standards of care or were not medically necessary.  Tony West, “Assistant Attorney General for the Civil Division of the Department of Justice stated the following:

 "We have zero tolerance for those who break the law to exploit needy children. Illegal conduct like this endangers a child’s well-being, distorts the judgments of health care professionals, and puts corporate profits ahead of patient safety."

To resolve the allegations against it, FORBA will pay $24 million, plus interest. The federal share of the civil settlement is $14,285,645, and the Medicaid share for 21 states is $9,714,355.25.  This settlement sends a clear message that the government will not tolerate fraud. U.S. Attorney for the Western District of Virgini,  Timothy J. Heaphy, is correct in the following statement:

"FORBA put greed and profits before the well-being of children. It endangered the health and safety of innocent children and defrauded the taxpayer of millions of dollars.  Today’s settlement addresses these egregious acts and sends a clear message that Medicaid fraud will be expeditiously addressed by this Department."

The False Claims Act is a powerful tool that has helped the government recover approximately $2.2 billion since January 2009 in cases involving fraud against federal health care programs and over $3 billion in False Claims Act total cases overall.

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The year is starting off on the right tone with qui tam settlements for Medicare fraud. The Minnesota case  United States ex rel. Steven Radjenovich v. Stanley Gallagher, et al., Case No.: 04-4538 (D. Minn.) was settled for $846,461 today. 

According to the Department of Justice, Wheaton Community Hospital knowingly made false claims to Medicare for unreasonable and unnecessary hospital admissions. These false claims were made from 1998 to 2004. The hospital billed Medicare for acute patient care that was not medically necessary.

Tony West, Assistant Attorney General for the Justice Department’s Civil Division stated the following:

 "Hospitals and doctors have a responsibility to provide patients with reasonable and necessary care. When they neglect those obligations, patients and taxpayers suffer."

The whistleblower in this case will be awarded $203,150, as his share of the settlement with Wheaton Community Hospital. In a qui tam case, the whistleblower's reward or relator's award can be anywhere from 15% to 30%, depending upon the level of the government's involvement in the case.

If you are a whistleblower and have pertinent information on Medicare, Medicaid fraud or any other false claims act violations from a company, protect your rights and contact a qualified qui tam attorney to discuss how to protect your rights.

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Everyone knows there is no place like New York and New York City. However, this does not mean that New York and NYC can defraud the government.  The Department of Justice announced today that a settlement was reached by New York and NYC to pay a record sum in the amount of $540 million to settle allegations for knowingly submitting, or causing to be submitted, false claims for reimbursement for school-based health care services, primarily speech therapy and transportation, provided to Medicaid eligible children from 1990 to 2001. Unfortunately, you did not misread this information that New York state workers, knowingly submitted false charges to the Medicaid program. This is appalling information.

According to the News Release from the Department of Justice:

The government’s allegations arose from two lawsuits filed under the qui tam or whistleblower provisions of the False Claims Act, which allow private persons, known as “relators,” to file actions on behalf of the United States and share in any recovery. The relator in these cases, a speech therapist who provided services to preschool children in upstate New York, alleged that New York State and its school districts submitted false claims for speech services that did not qualify for Medicaid reimbursement. The relator will receive $10 million from the settlement.

This is such a travesty since New York is a state that took such much pride in coming out with a state False Claims Act to go after those defrauding the government.  How unsettling to see that their own workers were committing such fraudulent acts to get funds their state did not deserve. Shame, Shame, Shame on you New York. We are grateful to the speech therapist that came forward to bring such light against this fraud.  We can't stress it enough, if you are aware of your company defrauding the government and have proof, find out the necessary steps to  report the fraud. There is a whistleblowers reward to those that help uncover the fraud.  It is not easy and we can attest that many who try to go it alone don't always get the reward they deserve. Seek out legal counsel, find out your rights and discuss the facts with legal counsel that you trust. In some cases, such as this one, there is great reward.  Thankfully in this instance, New York did the right thing and settled the case for $540 million and the relator/whistleblower will receive $10 million for their valiant efforts.

To learn more on the New York False Claims settlement of $540 million, click on the following links:

Department of Justice
Dow Jones

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Today, a qui tam suit that was brought against Kindred Healthcare, Inc. was settled for just over $1.3 million.  United States Attorney Russ Dedrick announced today that Kindred Healthcare, Inc. and its successor PharMerica Healthcare Pharmacy, LLC, have agreed to settle claims that Kindred violated state and federal laws regarding over-billing TennCare and the Medicaid program for pharmaceuticals.

The healthcare corporation provides medications to patients in group homes and long-term care facilities throughout Tennessee. It was alleged that between 2003 through 2006, Kindred overbilled for a higher number of drugs than were actually administered. There were instances where the overbilling occured multiple times the proper amount. 

Thanks to the valiant efforts of a former billing clerk employee of Kindred, this qui tam lawsuit was filed on behalf of the the United States and Tennessee under the qui tam provisions of the Tennessee Medicaid False Claims Act and the federal False Claims Act.. The whistleblower/ relator in this case will be rewarded over $200,000 for her role in filing the complaint and assisting with the investigation.

As mentioned previously on the Whistleblower Law Blog:

In a qui tam suit,  the whistleblower also known as a "relator" may be entitled to
15-30% of the government's total recovery, which includes damages for the false bills, tripled, plus civil penalties of from $5,000 to $10,000 per false claim. However, it is important to mention, that the relator/whistleblower must have complied with the statutory requirements to be eligible for the whistleblower reward.

To learn more on the Kindred settlement, read the DOJ release reqarding the qui tam settlement for Kindred Health.

To learn more on qui tam and the federal false claims act, visit our qui tam section on the LaBovick website.

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The Illinois based Walgreen's Pharmacy has agreed to settle a qui tam case for $35 Million that involves drug switching of the following drugs: Ranitidine (or Zantac), which inhibits stomach acid production; Fluoxetine (or Prozac), an antidepressant; and Eldepryl, known generically as selegiline, which is used with other medications to treat the symptoms of Parkinson's disease. Reports showed that  Walgreens fraudulently increased reimbursement from Medicaid by switching the form of the drug dispensed to Medicaid patients while providing no additional medical benefit to patients.

According to the U.S. Department of Justice, the case was initially filed in 2003, by Whistleblower and licensed pharmacist Bernard Listiza. The Whistleblower should receive approximately $5 million of the total $35 Million qui tam settlement and the federal government will receive approximately $18.6 million of the settlement. The remaining $16.4 million will be shared by over 40 states and Puerto Rico, due to separate settlement agreements.

A breakdown of the shares of the Walgreen's settlement by state includes: Florida receives $9.8 million, Illinois, $1.25 million, Georgia $401,000, Indiana $289,000, Ohio $161,000, New Jersey $1.25 million and Pennsylvania $9,000.

Click here to read more on this Whistleblower Medicaid fraud case from the Chicago Tribune.

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In a remarkable turn of events, America's self proclaimed largest pharmacy, CVS Caremark, has agreed to settle Medicaid fraud allegations for $36.7 million. According to information obtained from a whistleblower and extensive research, the company allegedly switched the tablet version of the drug  Ranitidine (generic Zantac) to a more expensive capsule version. According to the Justice Department, CVS Caremark allegedly made the drug switch from 2000 to 2006 to increase reimbursements from Medicaid.

The whistleblower, Bernard Listiza, a licensed pharmacist, will be rewarded $4,309,330 for his efforts in bringing this medicaid fraud to light.  As previously mentioned previously on the Whistleblower Law Blog, a whistleblower can receive a reward of 15 percent to 25 percent of what the government recovers,  if the government joins the qui tam case and if the government declines to join the qui tam lawsuit, the whistleblower can receive a reward of 25 percent to 30 percent of what the government recovers.

We can only hope that these large awards will begin to serve as deterrents for companies such as CVS Caremark to engage in Medicaid fraud. Thanks to the diligence of U.S. Attorneys such as U.S. Attorney Patrick Fitzgerald, the government is pursuing corporations and individuals charged with fraud against the government. In a recent statement, U.S. Attorney, Patrick Fitzgerald, said, “These penalties, coupled with the willingness of insiders to report fraud, should deter such misconduct, but when it doesn’t, the result in this case and others serves notice that we will aggressively pursue all available legal remedies.” 

The Whistleblower Law Blog salutes the brave whistleblowers who come forward and the diligent men and women prosecuting fraud on behalf of the government.  Sometimes, it may take years and many obstacles to overcome, but it is all worthwhile when a whistle blower's testimony can help the government recoup dollars and treble damages from Corporations and individuals that are found defrauding the government.

Click here to read more from the Department of Justice.

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South Carolina Regional Hospital, Tuomey Regional Medical Center, is accused of Medicare and Medicaid  fraud in a qui tam lawsuit, brought by the U.S. Attorney's Office in South Carolina.  According to a recent article on State.com, the suit involves the Regional Hospital overcharging Medicare for surgeries and “bribing” doctors with “kickbacks” for their business. The case is being handled by U.S. Attorney Norman Acker. The lawsuit alleges that the Toumey Regional Medical Center created a billing scheme from January 2005 to September 2007, in which "it submitted and caused others to submit false and fraudulent claims for payment to Medicare and Medicaid ...”

Judge Matthew Perry ruled yesterday that the Justice Department-backed lawsuit against the South Carolina Regional Hospital can proceed and crucial evidence against the Hospital can be admitted into the f the case. The lawyers for the hospital had been trying to get the case dismissed.

Orthopedic Surgeon, Michael Drakeford, initial qui tam lawsuit  was filed under seal in federal court in Columbia in October 2005. The federal government investigated Drakeford’s claims and before taking over as lead plaintiff in the case. 

Time will tell how much of the behind-the-scenes, big-profits world of doctors and hospitals in the billion-dollar S.C. health care industry will be revealed. The hospital is expected to answer the allegations by March 28.

The case could be worth millions of dollars to the government if the South Carolina Hospital is found guilty of fraudulently over billing the government or if they decide to settle and no admit any guilt or wrong doing. 

Charles Miller, a Department of Justice spokesman is quoted as saying, "The government intervenes only if a case has merit. The department gets involved in less than 25 percent of qui tam actions filed each year. In qui tam cases, the government nearly always gets a settlement or wins in a jury trial."


Click here to read more on this case from the State.com

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HealthSouth Corporation agrees to pay $14.2 million to settle allegations that the company submitted false claims to the government and paid illegal kickbacks to physicians who referred patients for care in some of its hospitals, outpatient rehabilitation clinics, and ambulatory surgery centers, according to reports from the Justice Department. 

HealthSouth, the nation’s largest provider of inpatient rehabilitation services, was also one of the largest providers of outpatient rehabilitation services, ambulatory surgery services, and diagnostic imaging services until it sold those lines of business earlier this year.

The settlement was due to the joint efforts of the U.S. Attorney for the Northern District of Alabama, the U.S. Attorney’s Office for the Central District of California, the Civil Division of the Department of Justice, the Department of Health and Human Services, Office of Inspector General, and the FBI.

U.S. Attorney for the Central District of California, “Thomas P. O’Brien, gave a powerful statement in response to the settlement and kickbacks “We will not be fooled when healthcare providers attempt to disguise kickbacks as cleverly crafted business arrangements. Medicare providers seeking federal funds must play by the rules. Providing sweet deals to physician groups to insure a steady stream of referrals runs afoul of those rules and will not be tolerated.”

HealthSouth Corporation stock closed yesterday at $21.48. Click here to find out more from Health South.

To read more from the Department of Justice, Click here.

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"How Qui tam helps fight Medicaid Fraud" - an article written by Brian F. LaBovick, Esq. was recently published  by Thomson West in the Volume 13, Issue 5 /November 2007 edition of the Andrews Litigation Reporter on Health Care Fraud.

Click Here to read the article "How Qui tam helps fight Medicaid Fraud".

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The Medicare Strike force has helped complete another successful qui tam case for Medicare fraud.  According to Assistant Attorney General Alice S. Fisher of the Criminal Division and U.S. Attorney R. Alexander Acosta of the Southern District of Florida, Rodolfo Aenlle, owner of Direct Nursing Assistance Inc. was recently convicted by a federal jury in Miami for Medicare fraud. 

Allegedly, Direct Nursing Assistance, Inc. submitted claims to Medicare for $1 million. Aenlle had prescription pads printed, and forged the names and signatures of physicians. For his part in this Medicare scheme, Aenlle faces a maximum of 40 years in prison. His sentencing is scheduled for Dec. 13, 2007. 

U.S. District Judge Donald Middlebrooks presided over the case and the case was prosecuted by Deputy Chief Kirk Ogrosky from the Fraud Section of the Criminal Division and Assistant U.S. Attorney Ryan K. Stumphauzer of the Southern District of Florida.

Click here to read more from the Department of Justice.

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Bristol-Myers Squibb Company (BMS) and its wholly owned subsidiary, Apothecon, Inc., have agreed to pay over $515 million to settle a qui tam fraud suit and other civil allegations involving their drug marketing and pricing practices, According to United States Attorney Michael J. Sullivan.

This was a collaboration of seven qui tam actions brought under the False Claims Act. Those actions include the following cases:  United States ex rel. Richardson v. Bristol Myers Squibb, Civil Action No. 06-11821-NG (D. Mass.); United States ex rel. Piacentile v. Bristol-Myers Squibb Co., Civil Action No. 05-10196-MLW (D. Mass.); United States ex rel. Forden v. Bristol-Myers Squibb Co., Civil Action No. 04-11216 -RGS (D. Mass.); United States ex rel. Cokus v. Bristol Myers Squibb, Civil Action No. 01-11627-RGS (D. Mass.); United States ex rel. Barlow v. Bristol-Myers Squibb, Civil Action No. 04-11540-MLW (D. Mass.); United States ex rel. Ven-A-Care of the Florida Keys, et al. v. Apothecon, et al., Civil Action No. 00-10698-MEL (D. Mass.); and United States ex rel. Ven-A-Care of the Florida Keys, Inc. v. Bristol Myers Squibb Co., Civil Action No. 95-1354 (S.D. Fla.).

The settlement was by no means the effort of one person, but the joint efforts of several offices and individuals including: the Boston offices of the Office of Inspector General for the Department of Health and Human Services, the Federal Bureau of Investigation, and the Food and Drug Administration's Office of Criminal Investigations, along with Department of Justice Trial Attorney Andy Mao of the Fraud Section of the Civil Division, District of Massachusetts Assistant U.S. Attorneys Gregg Shapiro and Susan Poswistilo, and Southern District of Florida Assistant U.S. Attorney Mark Lavine.

The National Association of Medicaid Fraud Control Units participated in the negotiation of the settlement, and the Corporate Integrity Agreement was negotiated by Mary Riordan of the Office of Inspector General at the Department of Health and Human Services.

Cheers to everyone involved in making this huge settlement possible. And not to forget the brave whistleblowers who risked a lot to come forward.  They will share $50 million of the settlement for their bravery and participation. A relator can receive anywhere from 15 percent to 30 percent in a successful qui tam claim depending upon the government's involvement.

Click here to read more about this Bristol Myers Squibb Settlement from the DOJ and Bristol Myers Squibb.

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New York Attorney General Andrew M. Cuomo and New York City Mayor Michael Bloomberg joined forces this week in the fight against Medicaid fraud. Yesterday they filed a joint lawsuit against Merck for the drug Vioxx. Their suit claims Vioxx misrepresented the dangers the drug posed to its users. The lawsuit seeks damages and civil penalties in addition to restitution for tens of millions of taxpayer dollars wrongfully spent on Vioxx prescriptions, and marks the first time the State and City have brought a joint action to fight Medicaid fraud.

Attorney General Cuomo issued strong words in a statement on the case  "Merck's irresponsible and duplicitous conduct endangered the health of New Yorkers and wasted our tax dollars. As alleged in the complaint, even as evidence was piling up showing just how dangerous this drug was, Merck put profits above all else and put thousands at risk by continuing to push Vioxx inappropriately on doctors and patients.We will hold accountable those who put our families at risk, and we will fight back when New Yorkers are harmed and fleeced.”

According to Ed Silverman of the Pharmalot Blog, did a great job covering this story. He brings out in his recent post that this the lawsuit comes just five months after the newly appointed Jim Sheehan came aboard as New York State’s Medicaid Inspector General. Jim Sheehan is former Assistant Attorney General in Philadelphia. We owe him tremendous gratitude for his efforts in the Medco case. A company that was once owned by Merck.

This is the only the beginning. New York has jumped out first in using their new State False Claims Act to help prosecute this alleged fraud against the residents of New York.  Companies across the U.S. should be on notice that they will be prosecuted by more states for any State False Claims Act violation.  There are about 22 states with a Sate False Claims Act on their books.  Florida recently modified the the Florida False Claims Act to be in line with the Deficit Reduction Act and to receive additional funds.

Stay tuned for more news on this case with New York and the makers of Vioxx, Drug giant, Merck.  They probably will settle to get this case closed and behind them as quick as possible, before more start cropping up. This probably will not be the last Vioxx case we will hear about. 

On a side note: Merck stock closed at $50.57 an increase of $1.10 from previous trading. I guess the Shareholders are confident that Merck can handle this new law suit.

It makes me think of the two baseball teams Boston and the Yankees. Boston took the Boys of Summer for granted and did not protect their lead.  The Yankees appear to be closing in on the narrow lead Boston has over them.  One word to the wise, never take New York and New Yorkers  for granted.  

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Earlier this week, the qui tam case of  United States ex. rel.Louanne Boothe v. Sun Healthcare Group, Inc., No. 06-2156 (10th Circuit August 7, 2007) was remanded by the United States Court of Appeals, Tenth Circuit.

This case involves allegations by former finance and accounting employee, Louanne Boothe against Sun Healthcare Group, a U.S. Healthcare provider, claiming that Sun Healthcare Group over-billed the United States in ten distinct ways. The complaint includes allegations of the following: 1)  Sun over-billed the government by abusing the Section 1010 exception in the years 2000-2002;  2) Sun defrauded Medicare by disregarding Medicare’s prudent-buyer guidelines and overcharged for therapy management services for  $2.6 million; 3) overstated its temporary nursing staff’s labor hours in 2001 and 2002 by $500,000; 4) overcharged Medicare by $240,000 in 2002 for pharmacy charges  5) improperly billed Medicare in 2001 for $200,000 worth of stolen medical supplies; 6) overcharged Medicare by $540,000 in 2000-02 by funneling costs between Denver Mediplex and an outpatient clinic; 7) filed Medicare reimbursements for $3.6 million worth of mortgage interests payment; 8) released patients earlier than its prior practice from Ballard Rehabilitation Hospital to inflate its Medicare revenue by $2 million; 9) manipulated patient discharges to impose improper costs on Medicare of $500,000; and 10) signed without the knowledge or consent of its patients admission forms for three years ending January 2003 to receive from Medicare $9 million in reimbursements for accident and injury treatments when liability potentially rested with third parties.

These allegations seem pretty specific, however, the primary issue at hand is whether the allegations are “based upon” information already in the public domain or whether Ms. Louanne Boothe is an “original source” of the information.

The district court held that it lacked subject matter jurisdiction under 31 U.S.C.§ 3730(e)(4) of the False Claims Act, 31 U.S.C. § 3729-33, to hear the case.

According to the Tenth Circuit, the district's assessment was accurate that it lacked jurisdiction in three of the claims Ms. Boothe presented. However, jurisdictional analysis of each of Ms. Boothe’s
remaining seven claims of fraud is necessary. Therefore, the United States Court of Appeals Tenth Circuit remanded the cases for further proceedings. The Court included the following language "Three bad apples does not necessarily warrant discarding the barrel". Interesting choice in words.

It is also important to note that Sun Healthcare Group tried to use the following arguments against Ms. Boothe: (1) Ms. Boothe waived her right to pursue a qui tam complaint in a severance agreement she executed upon her departure from Sun; (2) Sun’s intervening bankruptcy, from which it emerged in 2002, discharged Sun’s obligations to satisfy the claims in Ms. Boothe’s qui
tam complaint; and (3) Ms. Boothe failed to plead her qui tam complaint with sufficient particularity.

Citing lack of jurisdiction, the district court declined to address these arguments for dismissal and the Tenth Circuit did not address them either. It will be interesting to see if they come up again as this saga continues.

Let's all hope that Sun Healthcare Group is operating with the integrity and honesty that they are known for in the healthcare community rather than the over-billing of Medicaid and Medicare as was alleged in the qui tam suit of Luanne Boothe. The company has been around since 1993 and is continuously growing, serving more sick and terminally ill patients, and doing lots of business with the government. In the year, 2006, they took in $1.116 Billion in revenue according to their quarterly reports. Currently they operate 216 skilled nursing, long-term care and assisted living and mental health facilities in 25 states with approximately 23,520 operating beds according to their self published reports. The company closed out the second quarter at $446.7 million, up 73 percent compared to $258.5 million second quarter 2006. The stock price closed on the Nasdaq Friday at $15.30 per share.

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Arkansas Neurosurgeon, "Patrick Chan was described as " a very energetic, hard working, loyal and moral" surgeon, by a Colleague in a letter of recommendation to the Arkansas medical review board.  The Doctor had a successful medical career, earning a top income and running a successful surgical practice. Unfortunately, everything did not remain so rosy and bright for the doctor. Patrick Chan awaits trial in August for allegedly taking kickbacks from medical suppliers and for allegedly submitting false claims to Medicare and Medicaid.

The whistleblower, in this qui tam case, is John Thomas, a former employee of Nu Med Technologies, that sold medical instruments and devices used in spinal surgery.

No one is immune to being charged with a qui tam false claims lawsuit, if they are breaking the law. The government will prosecute small or large companies that fraudulently submit bills to the government. Regardless of the size, fraud, even on a small scale, cost taxpayers money. As former Federal Prosecutor, Brian LaBovick mentioned in a previous post, on the Whistleblower Law Blog , the false claims act does not discriminate against prosecuting small fish (small companies) when they break the law.

If you have knowledge of fraud against the government, contact an experienced qui tam attorney to discuss your claim. It is essential that you take the necessary steps in protecting your relator's share of the government's recovery, which can be 15 – 30% of the government’s total recovery along with additional civil penalties. Since false claims act cases are often complex, it can take several years to settle or to litigate. Whistleblowers often hire an experienced attorney to help in submitting a qui tam claim. LaBovick and LaBovick are former federal prosecutors experienced in prosecuting cases on behalf of the government.

The Whistleblower Law Blog is presented as a service of the Private Law Firm, LaBovick & LaBovick, Civil Justice Prosecutors. LaBovick & LaBovick is a Plaintiff's firm that represents whistleblowers across the United States in qui tam (False Claims Act) litigation; including Federal and State False Claims Act Cases. They offer free confidential consultations to whistleblowers that need to discuss sensitive matters, including those involving current or a former employers.

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"Helping the Government serve the People" is the tagline of Virginia based Maximus, Inc., latest corporate citizen entangled in a Medicaid fraud scam. Unfortunately, this company needs a new tagline. The DOJ announced today that Maximus has agreed to pay $30.5 Million to settle qui tam lawsuit. The company admitted to their part in submitting fraudulent Medicaid claims for children who may not have received foster care services. Last September, at the end of their fiscal year the company reported earning $700 million in revenue and predicted a rosy forecast for 2007. Today the Maximus stock closed at $42.05, only down a slight 5% from earlier trading.  I wonder, how they will project next year's forecast, in wake of this scandal.  It is a scandal, because the good name of this organization has been tarnished due to a few "greedy" and "unscrupulous" workers. 

Thanks to the brave whistleblower, Benjamin Turner, a former division manager at Maximus, the acts and deeds of the corporate wrongdoers, did not go unpunished. In recognition for his efforts, Mr. Turner will receive $4.93 million as a result of filing a qui tam or whistleblower lawsuit under the provisions of the False Claims Act. There are times when a whistleblower gets compensated for his brave actions. And there are times when the whistleblower gets nothing, even after going to the Supreme Court, as in the case of Rockwell v. United States, as mentioned here previously on the Whistleblower Law Blog. Take a look at the Whistleblower statistics reported by the US DOJ, from 1986 - 2006. There were over 5,500 whistleblower cases filed.  As John Mack, blogger for Pharma Blogoshere points out, that comes to about  $326,341 per whistleblower if they all shared the approx. $1.79 billion equally. This is not enough to retire on, but it is not a bad start for a new life after standing up for what is right and turning in an employer for defrauding the government.

According to the US DOJ Press Release, Assistant Attorney General for the Civil Division, Peter D. Keisler said " The Maximus settlement demonstrates the Justice Department’s strong commitment to vigorously pursuing those companies that defraud the Medicaid program.

Let's hope more brave whistleblowers step forward and turn in corporations for qui tam or false claims act violations. If you are a whistleblower, with vital confidential information on your company, fraudulently billing the government, contact an attorney that handles qui tam litigation. You need to protect your rights, and your "relator's" share of what the government recovers from the qui tam claim. The Lawyers of LaBovick & LaBovick are former Federal Prosecutors that know how to prosecute qui tam claims on behalf of the government. Call today for a confidential free consultation.

Click here to read more on Maximus from Forbes and Associated Press and the US Department of Justice.

The Whistleblower Law Blog is presented as a service of the Private Law Firm, LaBovick & LaBovick, P.A., Civil Justice Prosecutors. LaBovick & LaBovick is a Plaintiff's firm that represents whistleblowers in Florida and throughout the United States in qui tam (False Claims Act) litigation

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Fernando and Ileana Fonts, owners and operators of Free Line Medical Equipment in Miami, were arrested and charged with organized fraud for falsely billing the Florida Medicaid program more than $1 million. 

“Our Medicaid program exists to ensure that our citizens receive the medical care they need,” said Florida Attorney General Bill McCollum. “When individuals attempt to steal those funds, other people in genuine need are victimized.”

The Agency for Health Care Administration tipped off the Medicaid Fraud Control Unit, with information that the Fonts were failing to perform their services, by either not delivering equipment or delivering faulty equipment while billing Medicaid for fully functional equipment. This is a serious issue because not only were the Fonts stealing from the government, but they were also putting the lives of the patients with severe breathing problems in danger.

If Fernando and Ileana Fonts are prosecuted for Florida False Claims Act (qui tam) violations, they could be face substantial penalties. According to the new Florida False Claims Act violators face civil penalties for making false or fraudulent claims, written or electronically, to the government for the purpose of getting a false or fraudulent claim paid. The penalties can be up to $11,000 per claim and triple the amount of damages the government agency sustains. The new Florida False Claims Act was approved and signed into law in June 2007 by Governor Charlie Crist.

Click Here to read more from the Attorney General's Office on this case.

The Whistleblower Law Blog is presented as a service of the Private Law Firm, LaBovick & LaBovick, P.A., Civil Justice Prosecutors. LaBovick & LaBovick, P.A. is a Plaintiff's firm that represents whistleblowers in Florida and throughout the nation in qui tam (False Claims Act) litigation.

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