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Two Defense Contractors to Pay $8 Million to Settle False Claims Act Allegations

Tennessee-based Kilgore Flares Company and New York-based ESM Group have agreed to pay a total of $8 million to resolve allegations that they violated the False Claims Act by selling or conspiring to sell defective infrared flares to the U.S. Army and that ESM knowingly evaded antidumping duties.

The United States alleged that from July 2003 through May 2005 ESM knowingly misrepresented the content of ultrafine magnesium powder imported from China in order to avoid paying antidumping duties owed on the imported powder.  At the time, ultrafine magnesium powder from China was subject to a 305 percent antidumping duty.  The government also alleged that from March 2005 through August 2006 Kilgore used the illegally imported Chinese magnesium powder purchased from ESM in the countermeasure flares it sold to the U.S Army.  Using the illegally imported powder violated multiple provisions of Kilgore’s contracts with the Army, namely that the contract prohibited use of magnesium powder from foreign countries (except Canada) and that the Chinese magnesium powder did not meet the engineering specifications required by the contracts.  To resolve these allegations, Kilgore and ESM agreed to pay $6 million and $2 million, respectively.

Prior to these civil settlements, five former ESM employees and agents, including ESM’s former president Charles Wright and father and son pair Gregory and Justin Magness, pleaded guilty to criminal charges related to the antidumping duty evasion scheme.  In total, the criminal defendants were ordered to pay over $14 million in restitution.

The settlement with ESM resolved a lawsuit filed under the qui tam provisions of the False Claims Act by Reade Manufacturing Company, a domestic manufacturer of magnesium powder.  The qui tam provisions permit private parties to sue, on behalf of the United States, those who falsely claim government funds or avoid paying funds owed to the government .  The False Claims Act also allows the whistleblower to receive a portion of any funds recovered through the lawsuit.  In this case, Reade Manufacturing received $400,000 from the settlement with ESM.

“The Department of Justice is committed to ensuring that contractors do not cut corners in manufacturing critical items sold to the U.S. military,” said Principal Deputy Assistant Attorney General Benjamin C. Mizer, head of the Justice Department’s Civil Division.  “These settlements also show that the department will aggressively pursue those who avoid paying duties to gain an unfair business advantage over competitors who abide by the rules.”

“The components of U.S. military equipment are held to rigorous standards to ensure our military superiority and the safety of our warfighters,” said Special Agent in Charge James Spero of Homeland Security Investigations (HSI) Buffalo. “When short cuts are taken, lives are put at risk. This settlement ensures that the companies involved are held responsible for their actions and further emphasizes HSI’s commitment to ensuring that the sale and distribution of products used by our military is done with integrity.”

To report fraud contact Frohsin & Barger.

Read the full DOJ press release here.

 

Respironics to Pay $34.8 Million for Allegedly Causing False Claims to Medicare, Medicaid and Tricare

Medical equipment manufacturer Respironics Inc. will pay the government $34.8 million for allegedly providing kickbacks – in the form of free call center services – to durable medical equipment (DME) suppliers in exchange for their buying Respironics sleep apnea masks.

The Anti-Kickback Statute prohibits the making of knowing and willful payments to induce the referral of services or other items that are paid for by a federal healthcare program. Claims submitted to these federal programs – which include Medicare, Medicaid, and TRICARE – in violation of the Anti-Kickback Statute are also false claims under the False Claims Act (FCA).

Respironics allegedly provided DME companies with free call center services to meet their patients’ resupply needs as long those patients were using Respironics-manufactured masks. According to the Department of Justice (DOJ) lawsuit, DME companies providing their patients with a competitor’s masks had to pay a monthly fee. The government alleged that the Pennsylvania-based company provided the call center kickbacks from April 2012 until November 2015.

The lawsuit was originally brought by whistleblower Dr. Gibran Ameer under the qui tam provisions of the FCA. The FCA permits private citizens with knowledge of fraud against the government to bring a lawsuit on behalf of the United States and share in any recovery. Under the DOJ settlement, Dr. Ameer, who has worked for different DME companies, will receive $5.38 million out of the federal share of the recovery.

“Medical equipment manufacturers that boost profits by providing kickbacks to suppliers will be held accountable for their improper conduct,” said Special Agent in Charge Derrick L. Jackson of the Department of Health and Human Services, Office of Inspector General (HHS-OIG).  “We will continue to investigate such business arrangements, which threaten the integrity of federal healthcare programs.”

Read the full DOJ press release.

To report healthcare fraud, contact Frohsin & Barger.

Louisiana Jury Convicts 2 in Medicare Home Health Fraud Scheme

A federal jury in New Orleans convicted the owner of a Louisiana home health care company and a doctor for their roles in a $34 million Medicare home health care fraud scheme.  Elaine Davis, the owner of Christian Home Health Care Inc. and Dr. Pramela Ganji, both of New Orleans were each convicted of one count of conspiracy to commit health care fraud and one count of health care fraud on Thursday, March 17.  Dr. Godwin Ogbuokiri, another doctor indicted in scheme,  was acquitted on all charges.

According to a Department of Justice press release, evidence introduced at trial showed that Davis and Ganji caused Christian Home Health Care to bill Medicare for home health care services that were not needed and/or were not provided.  To accomplish this fraudulent scheme, Davis paid employees to recruit new home health patients from communities in Southeast Louisiana, primarily around New Orleans and Hammond, Louisiana.  The company then sent the new patients’ Medicare information to doctors, including Dr. Ganji, to falsely certify that the patients qualified to receive home health care services.  The evidence introduced at trial showed that Dr. Ganji often never examined these patients to assess their eligibility for home health services.  The false certifications allowed Christian Home Health Care to fraudulently bill Medicare for home health services and to conceal that the services were unnecessary.  This scheme was in effect from 2007 to June 2015, when the defendants were indicted.  Throughout this time period, Christian Home Health Care submitted more than $34.4 million in claims to Medicare. A large number of these claims were fraudulent because the patients did not actually qualify to receive home health care.  Due to the concealment of this fraud, Medicare paid Christian Home Health Care approximately $29.6 million for these claims.

This case is an example of criminal prosecution of health care fraud.  However, health care fraud, including home health fraud can also be prosecuted in civil court through the qui tam provisions of the False Claims Act.   To read more about the conditions necessary for a patient to be qualified for Medicare home health services, visit the Home Health page.

To report healthcare fraud contact Frohsin & Barger.

United States Settles $34.7 Million False Claims Act Allegations Against 21st Century Oncology

The nation’s largest physician-led integrated cancer care provider, 21st Century Oncology Inc., and its subsidiary, South Florida Radiation Oncology LLC, have agreed to settle allegations that they performed and billed for procedures that were not medically necessary.

The lawsuit involved medical procedures that measure the exit dose of radiation from a patients after they undergo radiation treatment, a procedure known as the Gamma function. The United States alleged that 21st Century Oncology knowingly and improperly billed for these procedures when they were not medically appropriate, including having physicians or physicists perform them in spite of their not being properly trained to interpret and utilize the results. The government also alleged that defendants billed for the procedure when no Gamma result was available due to imaging equipment technical failures.

Whistleblower Joseph Ting, a former physicist at South Florida Radiation Oncology, originally filed the lawsuit under the qui tam or whistleblower provisions of the False Claims Act (FCA). Under FCA provisions, a private party, known as a relator, can file an action on behalf of the United States and receive a portion of the recovery – more than $7 million in Ting’s case.

Since 2009, the United States Justice Department (DOJ) has recovered over $27.4 billion through FCA cases, more than $17.4 billion of which has involved health care fraud allegations.

Read the full DOJ press release.

To report Health Care Fraud, please contact Frohsin & Barger.

DOJ settles with Recovery Home Care for $1.1 million over False Claims Act violation claims

Recovery Home Care (RHC) agrees to $1.1 million settlement for allegedly paying illegal kickbacks to doctors to refer Medicare patients for RHC services. Whistleblower receives $198,000 of recovered funds.

From 2009 to 2012, Mark T. Conklin, former owner of the West Palm Beach, FL company, allegedly paid dozens of physicians to review patient charts and refer them to RHC, regardless of need of and eligibility for RHC services. According to the lawsuit, these physicians spent minimal to no time reviewing the charts and received thousands of dollars in kickbacks every month.

The settlement partially resolves lawsuit allegations made by whistleblower Gregory Simony, a former RHC employee.  The False Claims Act (FCA) permits private individuals to sue on behalf of the government for false claims and share a portion of any recovery. Mr. Simony will receive $198,000 of the recovered funds.

The settlement resulted from a coordinated effort by the Department of Justice’s Civil Division’s Commercial Litigation Branch, the US Attorney’s Office for the Middle District of Florida, and HHS-OIG.

“We will continue to identify, investigate and, where appropriate, sue individuals and corporations that misuse funds meant to provide critical medical services for beneficiaries of federal health care programs,” said Acting Assistant Attorney General Benjamin C. Mizer of the Justice Department’s Civil Division.

Read the full DOJ press release.

To report Health Care Fraud, please contact Frohsin & Barger.

 

Ask Your Doctor if This Ad is Right for You

“As the volume and spending on health care ads skyrocket, health economists and doctors are raising concerns about the trend, which they say increases prices and encourages patients to seek out more expensive and, often, inappropriate treatment.”
Reports The New York Times:
  • Health care ads “tend to drive patients to the latest expensive treatments and patented drugs” when, frequently, equally effective generic drugs are available at a fraction of the cost.
  • In spite of Food and Drug Administration medical advertising rules aimed at ensuring the provision of accurate and balanced information, “clever marketing departments have danced around” those rules, most of which were set in the 1980s and 1990s, before the health care advertising industry took off.
  • While drug ads are at least regulated by the F.D.A., hospital ads are not.

Frohsin & Barger Client Settles $3 Million FCA Import Duties Case

The Department of Justice issued a press release yesterday announcing that it has settled a False Claims Act suit originally brought by a whistleblower represented by Frohsin & Barger.   The settlement resolved allegations that the defendants, which included four importer companies and their owners, engaged in a scheme to evade antidumping duties on imports of small-diameter graphite electrodes from China.   The defendant companies, Ameri-Source International Inc., Ameri-Source Specialty Products Inc., Ameri-Source Holdings Inc. and SMC Machining LLC are all based in Pennsylvania.  The whistleblower and Frohsin & Barger client, Graphite Electrode Sales Inc., originally brought the allegations under the qui tam provisions of the False Claims Act. Under the qui tam provisions the whistleblower is entitled to receive a share of any funds recovered.  Graphite Electrode Sales Inc. will receive approximately $480,000 of the $3,000,000 settlement.

The United States collects import duties that protect U.S. manufacturers from unfair international competition by leveling the playing field for domestic products.  Antidumping duties, the specific import duties at issue in this case, protect domestic manufacturers from foreign companies “dumping” products on U.S. markets at prices below cost.  Imports of small diameter graphite electrodes from China have been subject to an antidumping duty of approximately 160% since 2008.  Small diameter graphite electrodes are defined as having a diameter of less than 16 inches and are used as fuel in electric arc and ladle furnaces, often used in steel manufacturing.  There are no antidumping duties on larger diameter graphite electrodes.

The settlement resolved claims that revolved around the defendants’ alleged evasion of antidumping duties on 15 shipments of Chinese small-diameter graphite electrodes from December 2009 to March 2012.  The Department of Justice and Frohsin & Barger contended that Ameri-Source International misclassified the size of the electrodes in order to avoid paying the 160% antidumping duties. The United States also alleged that the owners of the defendant companies, Ajay Goel and Thomas Diener, caused and conspired in the misrepresentation which resulted in the evasion of duties.

In addition to the civil False Claims Act case, Ameri-Source International also pleaded guilty to two counts of smuggling goods into the United States.  In this guilty plea, Ameri-Source International admitted that on April 27, 2011 and June 9, 2011, the company falsely declared imported cargo from China as being graphite rods greater than 16 inches in diameter, when in fact the graphite rods were less than 16 inches in diameter and thus subject to the antidumping duties.  In U.S. District Court in the Western District of Pennsylvania, Chief Judge Joy Flowers Conti sentenced Ameri-Source International to pay a $250,000 criminal fine within 10 days and applied the $3 million False Claims Act payment to the United States’ loss of antidumping duties of $2,137,420.

Principal Deputy Assistant Attorney General Benjamin C. Mizer, head of the Justice Department’s Civil Division, commented on the settlement stating: “The nation’s customs laws are designed to protect domestic manufacturers from foreign products that enter the country at below-market prices due to unfair practices abroad.  This settlement shows that the Department of Justice is committed to pursuing claims against anyone involved in a scheme to seek an unfair advantage in U.S. markets by evading duties on imported goods, including the individuals who run the companies and knowingly participate in such schemes.”  David J. Hickton, U.S. Attorney for the Western District of Pennsylvania also commented, stating: “We are committed to protecting U.S. jobs and industries from those who seek an unfair advantage in the U.S. marketplace.”

United States manufacturers and importers should be afforded the protection guaranteed under fair trade and antidumping laws.  In order to provide this protection, the United States and Frohsin & Barger are working diligently to investigate and prosecute those who evade antidumping duties.  Frohsin & Barger is honored to have been able to assist the United States in this case and thank the individuals and agencies involved, including U.S. Customs and Border Protection, U.S. Immigration and Customs Enforcement, U.S. Department of Commerce and the U.S. Department of Justice.

The lawsuit is captioned United States ex rel. Graphite Electrode Sales, Inc. v. Ameri-Source Holdings, Inc., et al., Case No. 13-cv-0474 (W.D. Pa.).

To report International Trade and Customs Fraud, please contact Frohsin & Barger.

Pfizer Agrees to Pay $784.6 Million to Settle False Claims Act Case

Pharmaceutical company Pfizer announced on February 16, 2016 that it reached an agreement in principle to pay $784.6 million to settle allegations that its Wyeth unit overcharged Medicaid for the heartburn drug Protonix.  The settlement is the result of a False Claims Act suit filed by the Department of Justice against Wyeth in 2009.  The suit alleged that between 2001 and 2006 Wyeth did not provide state Medicaid programs the same price discounts for Protonix that it provided to non-government customers.  This practice was alleged to be illegal because Medicaid is entitled to the lowest price on prescription drugs and drug makers are required to pay rebates to Medicaid of any discounts offered to other purchasers.   Pfizer acquired Wyeth in January 2009.

The allegations were originally brought by whistleblowers in two qui tam lawsuits.  Then, in 2009, the Department of Justice and 16 states joined and consolidated the qui tam actions.  The case was scheduled to begin trial March 7 in federal court in Boston.  The proposed $784.6 million settlement is subject to negotiation of a final agreement and court approval.

To report healthcare fraud, please contact Frohsin & Barger.

Stericycle, Inc. $28.5 Million Multistate Settlement Approved

On February 1, 2016, the allocation of a $28.5 million qui tam False Claims Act settlement involving Stericycle Inc, a medical waste disposal company, was approved. Stericycle previously agreed, in October 2015, to pay $26,750,000 to settle claims that the company illegally imposed price increases on its government customers.  The recent approval finalized the disbursement of the settlement among the qui tam relator, the United States, 14 states and Washington D.C.   The relator, a former government customer-relations specialist for Stericycle, will receive nearly  $5.7 million as her portion of the recovery and the relator’s counsel will receive $1,750,000 for attorney’s fees and costs as provided under the False Claims Act.

The case was originally filed in 2008 and alleged that Stericycle was illegally imposing 18% price increases, annually and even more frequently on federal and state government customers with long-term fixed price contracts that either did not permit price increases or permitted price increases only to address increases in the company’s costs. It was also alleged that the price increases bore no relation to the company’s costs.  The total amount of overcharges, between 2004 and 2008, were determined to be $11.76 million.  However, the total settlement amount of $28.5 million demonstrates the significance of the False Claims Act’s treble damages and attorney’s fees provisions.

To report healthcare fraud, please contact Frohsin & Barger.

 

Florida Urologist to Pay $1,050,000 to Settle False Claims Act Lawsuit

Dr. David Spellberg, a Fort Myers, Florida urologist has agreed to pay $1,050,000 to resolve allegations that he ordered unnecessary medical tests.  Dr. Spellberg, formerly of Naples Urology Associates, was also involved in a recent settlement stemming from allegations that Dr. Spellberg and other doctors ordered unnecessary cancer tests while working for 21st Century Oncology.  In December 2015, 21st Century Oncology, an international cancer treatment company, and Naples Urology Associates settled claims against the companies for $19.75 million.  The recent $1,050,000 settlement, announced January 29, 2016, resolved claims against Dr. Spellberg personally.

Both settlements stem from allegations originally brought under the qui tam provisions of the False Claims Act by a former medical assistant that worked under Dr. Spellberg.  The qui tam whistleblower will receive $3.2 million from the December corporate settlement and $200,000 of Dr. Spellberg’s recent settlement.

According to court documents, the allegations revolved around Dr. Spellberg’s practice of ordering of fluorescence in situ hybridization tests, commonly known as FISH tests.  The qui tam complaint alleged that the expensive FISH tests should only be utilized on rare occasions, however, Dr. Spellberg ordered the FISH tests for the majority of his patients, particularly Medicare patients.  The complaint also alleged that 21st Century Oncology knew of this practice and incentivized Dr. Spellberg with bonuses based on the number of tests he ordered.

A. Lee Bentley, III, the U.S. Attorney for the Middle District of Florida commented in a statement: “False claims such as these impact the solvency of our public healthcare programs and erode the confidence of those being serviced by that care.”

To report healthcare fraud, please contact Frohsin & Barger.

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