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Description: Sherman, Texas private private lawyers represented Defendants accused of defrauding the United States of America, which sued Defendants on a False Claims Act under 31 U.S.C. 3729.

Laboratory executives and employees at True Health Diagnostics LLC (THD) and Boston Heart Diagnostics Corporation (BHD) allegedly conspired with small Texas hospitals, including Rockdale Hospital dba Little River Healthcare (LRH), to pay doctors to induce referrals to the hospitals for laboratory testing, which was then performed by BHD or THD. The complaint alleges that the hospitals paid a portion of their laboratory profits to recruiters, who in turn kicked back those funds to the referring doctors. The recruiters allegedly set up companies known as management service organizations (MSOs) to make payments to referring doctors that were disguised as investment returns but were actually based on, and offered in exchange for, the doctors’ referrals. As alleged in the complaint, BHD and THD executives and sales force employees leveraged the MSO kickbacks to doctors to increase referrals and, in turn, their bonuses and commissions. The complaint alleges that laboratory tests resulting from this referral scheme were billed to various federal health care programs, and that the claims not only were tainted by improper inducements but, in many cases, also involved tests that were not reasonable and necessary. In addition, the complaint alleges that, to increase reimbursement, LRH falsely billed the laboratory tests as hospital outpatient services.

“The Department of Justice is committed to holding accountable individuals and entities who commit and profit from healthcare fraud,” said Principal Deputy Assistant Attorney General Brian M. Boynton, head of the Justice Department’s Civil Division. “We will continue to pursue those who enter into unlawful financial arrangements that waste taxpayer dollars, improperly influence healthcare providers’ medical judgments and subject patients to unnecessary testing or other services.”

The Anti-Kickback Statute prohibits offering, paying, soliciting or receiving remuneration to induce referrals of items or services covered by Medicare, Medicaid and other federally funded programs. The Stark Law forbids a hospital or laboratory from billing Medicare for certain services referred by physicians that have a financial relationship with the hospital or laboratory. The Anti-Kickback Statute and the Stark Law seek to ensure that medical providers’ judgments are not compromised by improper financial incentives and are instead based on the best interests of their patients.

The United States’ complaint also alleges that various THD employees, including THD’s CEO, participated in schemes to pay other forms of kickbacks, including: (a) processing and handling fees to draw site companies; (b) monthly fees to a top-referring doctor, disguising the payments as consulting fees for participating in THD’s advisory board, even though no such board actually existed at THD; and (c) waiving patient copayments and deductibles meant to ensure that patients share in, and have an interest in controlling, the amounts billed to federal healthcare programs. These kickbacks allegedly were paid to induce referrals to Medicare, Medicaid and TRICARE for laboratory testing, including laboratory tests that were not reasonable and necessary.

The United States’ complaint names the following defendants:

Christopher Grottenthaler, of Frisco, Texas, THD’s founder and former CEO
Susan Hertzberg, of New York, BHD’s former CEO
Jeffrey “Boomer” Cornwell, of McKinney, Texas, THD’s former Vice President of Sales for the Southwestern Region
Stephen Kash, of Beaumont, Texas, THD’s former Director of Strategic Accounts and MSO recruiter
Courtney Love, of Dallas, Texas, former THD Account executive
Matthew Theiler, of Mars, Pennsylvania, BHD’s former Vice President of Sales
William Todd Hickman, of Lumberton, Texas, owner and operator of defendants Ascend Professional Management Inc., Ascend Professional Consulting Inc., and BenefitPro Consulting LLC
Laura Howard, of McKinney, Texas, former BHD Area Sales Manager and MSO recruiter
Christopher Gonzales, of McKinney, Texas, MSO recruiter
Jeffrey Madison, of Georgetown, Texas, LRH’s former CEO
Peggy Borgfeld, of Lexington, Texas, LRH’s former Chief Financial Officer and Chief Operations Officer
Stanley Jones, of San Antonio, Texas, MSO recruiter and co-owner and operator of defendant LGRB Management Services LLC (LGRB)
Jeffrey Parnell, of Dallas, Texas, MSO recruiter and co-owner and operator of LGRB
Thomas Gray Hardaway, of San Antonio, Texas, MSO recruiter and co-owner and operator of LGRB
Ruben Marioni, of Spring, Texas, MSO recruiter and co-owner and operator of defendant Next Level Healthcare Consultants LLC (Next Level)
Jordan Perkins, of Conroe, Texas, MSO recruiter and co-owner and operator of Next Level
Ginny Jacobs, of Magnolia, Texas, MSO recruiter and co-owner and operator of defendants S&G Staffing LLC (S&G) and Jacobs Marketing Inc. (Jacobs Marketing)
Scott Jacobs, of Magnolia, Texas, MSO recruiter and co-owner and operator of S&G and Jacobs Marketing

“Paying kickbacks to physicians distorts the medical decision-making process, corrupts our healthcare system and increases the cost of healthcare funded by the taxpayer,” said U.S. Attorney Brit Featherston for the Eastern District of Texas. “Laboratories, marketers and physicians cannot immunize their conduct by attempting to disguise the kickbacks as some sort of investment arrangement. Our office is committed to looking through the disguise and putting an end to any arrangement where the purpose is to improperly influence medical decision making through the payment of kickbacks.”

“When health care providers boost their profits through kickback schemes, they risk compromising the integrity of federal health care programs while increasing health care costs for everyone,” said Special Agent in Charge Miranda L. Bennett of the U.S. Department of Health and Human Services Office of Inspector General. “Working with our law enforcement partners, our agency is committed to thoroughly investigating such allegations of fraud.”

“Today’s outcome is a testament to the dedication and determination of the Department of Defense Office of Inspector General (DoD IG), Defense Criminal Investigative Service (DCIS) and our law enforcement partners to safeguard our military’s healthcare system, known as TRICARE,” said Special Agent in Charge Michael C. Mentavlos of the DCIS Southwest Field Office. “DCIS will continue to coordinate closely with the Department of Justice to hold accountable those that attempt to take advantage of the TRICARE program, defrauding the taxpayer and undermining mission readiness.”

The United States filed its complaint in a lawsuit originally filed under the qui tam or whistleblower provisions of the False Claims Act by STF LLC, whose members are Dr. Felice Gersh M.D. and Chris Riedel. Under the act, a private party can file an action on behalf of the United States and receive a portion of the recovery. The act permits the United States to intervene in such lawsuits and add claims and defendants, as it has done here. The qui tam case is captioned United States ex rel. STF, LLC v. Christopher Grottenthaler, et al. If a defendant is found liable for violating the act, the United States may recover three times the amount of its losses plus applicable penalties.

The United States’ pursuit of this lawsuit illustrates the government’s emphasis on combating healthcare fraud. One of the most powerful tools in this effort is the False Claims Act. Tips and complaints from all sources about potential fraud, waste, abuse and mismanagement can be reported to the Department of Health and Human Services, at 800‑HHS‑TIPS (800-447-8477).

This case is being handled by the Civil Division’s Commercial Litigation Branch, Fraud Section and the U.S. Attorney’s Office for the Eastern District of Texas. Investigative support is being provided by the Department of Health and Human Services’ Office of Inspector General and the Defense Criminal Investigative Service. As a result of its efforts, the United States has already recovered more than $30 million relating to conduct involving BHD, THD and LRH, including False Claims Act settlements with 25 physicians, two healthcare executives and a laboratory company.

This case is being handled by Civil Division Senior Trial Counsel Christopher Terranova, Trial Attorney Gavin Thole and Assistant U.S. Attorneys James Gillingham, Adrian Garcia and Betty Young for the Eastern District of Texas.
The payments were made to look like returns on investments by the doctors.

The False Claims Act under 31 U.S.C. 3729 provides:

(a) Liability for Certain Acts.—

(1) In general.—Subject to paragraph (2), any person who—

(A) knowingly presents, or causes to be presented, a false or fraudulent claim for payment or approval;

(B) knowingly makes, uses, or causes to be made or used, a false record or statement material to a false or fraudulent claim;

(C) conspires to commit a violation of subparagraph (A), (B), (D), (E), (F), or (G);

(D) has possession, custody, or control of property or money used, or to be used, by the Government and knowingly delivers, or causes to be delivered, less than all of that money or property;

(E) is authorized to make or deliver a document certifying receipt of property used, or to be used, by the Government and, intending to defraud the Government, makes or delivers the receipt without completely knowing that the information on the receipt is true;

(F) knowingly buys, or receives as a pledge of an obligation or debt, public property from an officer or employee of the Government, or a member of the Armed Forces, who lawfully may not sell or pledge property; or

(G) knowingly makes, uses, or causes to be made or used, a false record or statement material to an obligation to pay or transmit money or property to the Government, or knowingly conceals or knowingly and improperly avoids or decreases an obligation to pay or transmit money or property to the Government,

is liable to the United States Government for a civil penalty of not less than $5,000 and not more than $10,000, as adjusted by the Federal Civil Penalties Inflation Adjustment Act of 1990 (28 U.S.C. 2461 note; Public Law 104–410 1), plus 3 times the amount of damages which the Government sustains because of the act of that person.

(2) Reduced damages.—If the court finds that—

(A) the person committing the violation of this subsection furnished officials of the United States responsible for investigating false claims violations with all information known to such person about the violation within 30 days after the date on which the defendant first obtained the information;

(B) such person fully cooperated with any Government investigation of such violation; and

(C) at the time such person furnished the United States with the information about the violation, no criminal prosecution, civil action, or administrative action had commenced under this title with respect to such violation, and the person did not have actual knowledge of the existence of an investigation into such violation,

the court may assess not less than 2 times the amount of damages which the Government sustains because of the act of that person.

(3) Costs of civil actions.—A person violating this subsection shall also be liable to the United States Government for the costs of a civil action brought to recover any such penalty or damages.

(b) Definitions.—For purposes of this section—

(1) the terms “knowing” and “knowingly”—

(A) mean that a person, with respect to information—

(i) has actual knowledge of the information;

(ii) acts in deliberate ignorance of the truth or falsity of the information; or

(iii) acts in reckless disregard of the truth or falsity of the information; and

(B) require no proof of specific intent to defraud;

(2) the term “claim”—

(A) means any request or demand, whether under a contract or otherwise, for money or property and whether or not the United States has title to the money or property, that—

(i) is presented to an officer, employee, or agent of the United States; or

(ii) is made to a contractor, grantee, or other recipient, if the money or property is to be spent or used on the Government's behalf or to advance a Government program or interest, and if the United States Government—

(I) provides or has provided any portion of the money or property requested or demanded; or

(II) will reimburse such contractor, grantee, or other recipient for any portion of the money or property which is requested or demanded; and

(B) does not include requests or demands for money or property that the Government has paid to an individual as compensation for Federal employment or as an income subsidy with no restrictions on that individual's use of the money or property;

(3) the term “obligation” means an established duty, whether or not fixed, arising from an express or implied contractual, grantor-grantee, or licensor-licensee relationship, from a fee-based or similar relationship, from statute or regulation, or from the retention of any overpayment; and

(4) the term “material” means having a natural tendency to influence, or be capable of influencing, the payment or receipt of money or property.

(c) Exemption From Disclosure.—Any information furnished pursuant to subsection (a)(2) shall be exempt from disclosure under section 552 of title 5.

(d) Exclusion.—This section does not apply to claims, records, or statements made under the Internal Revenue Code of 1986.

Thirteen defendants were accused of

Outcome: The claims in the complaint are allegations only, and there has been no determination of liability.

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