UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
DEBRA MAUL
115 Causeway Boulevard`
Belleair Beach, FL 33786
STATE OF FLORIDA,
COMMONWEALTH OF
MASSACHUSETTS and the
STATE OF TEXAS
Bring this action on behalf
of the United States of America
c/o A. Brian Albritton
United States Attorney
Middle District of Florida
400 N. Tampa Street, Room 320
Tampa, Florida 33602
and
c/o
Attorney General of the United
States Department of Justice
Washington, D.C. 20530
Plaintiff,
vs.
AMERITOX, LLC and
STERLING CAPITAL
PARTNERS
Defendants.
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CIVIL ACTION NO.
08:07-cv-00953-t-26eaj
FILED UNDER SEAL
SECOND AMENDED COMPLAINT
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This is an action by qui tam Relator, Debra Maul, State of Florida, Commonwealth of
Massachusetts and State of Texas, in the name of the United States Government, to recover
penalties and damages arising from the Defendants, AMERITOX, LLC's and STERLING
CAPITAL PARTNERS' unlawful and fraudulent use, practices and constructive termination of
Relator, Debra Maul as detailed herein.
These unlawful and fraudulent practices have
economically harmed the United States Government and are prohibited under the federal False
Claims Act.
PARTIES
1.
Relator, DEBRA MAUL, is a permanent resident and citizen of the United States
of America. Relator brings this civil action for violations of 31 U.S.C. § 3729(a)(7) for herself
and for the United States Government pursuant to 31 U.S.C. § 3730(b)(1).
2.
The STATE OF FLORIDA is a Plaintiff in this matter based upon their
administration of Medicaid reimbursement associated with the fraud articulated herein.
3.
The COMMONWEALTH OF MASSACHUSETTS is a Plaintiff in this matter
based upon their administration of Medicaid reimbursement associated with the fraud articulated
herein.
4.
The STATE OF TEXAS is a Plaintiff in this matter based upon their
administration of Medicaid reimbursement associated with the fraud articulated herein.
5.
Defendant, AMERITOX, LLC, is a Texas corporation with its principal place of
business in Midland, Texas. Sales Representatives work out of their homes and report to
Midland, Texas.
6.
Defendant, STERLING CAPITAL PARTNERS, is an Illinois corporation with
offices in Illinois and Maryland. STERLING CAPITAL PARTNERS is an investment firm that
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controls the interests in small to middle-market private companies through equity investments.
STERLING CAPITAL PARTNERS has placed employees and decision making capacities at
AMERITOX, LLC. Further, STERLING CAPITAL PARTNERS is a significant equity owner
of AMERITOX, LLC.
JURISDICTION AND VENUE
7.
This action arises under the False Claims Act, 31 U.S.C. § 3729 et seq.
8.
Jurisdiction over this action is conferred on this Court by 31 U.S.C. § 3732(a) and
28 U.S.C. § 1331 in that this action arises under the laws of the United States.
9.
Venue is proper in the United States District Court for the Middle District of
Florida, Tampa Division, pursuant to 28 U.S.C. § 1391(b) and (c) and 31 U.S.C. § 3732(a)
because the Defendants, AMERITOX, LLC and STERLING CAPITAL PARTNERS, transact
business in this District and the facts forming the basis for the Complaint occurred in this
District.
PRELIMINARY STATEMENT
10.
Relator, DEBRA MAUL, was an employee of AMERITOX, LLC and most
recently held the position of Senior Sales Representative.
Ms. Maul was employed with
AMERITOX, LLC from approximately March, 2005 until her constructive termination on
May 17, 2006.
11.
Defendant, AMERITOX, LLC, is a facility that provides urine drug testing to
physicians who prescribe narcotics.
Many of the patients treated carry medical insurance
provided by the United States Government — Medicare and Medicaid. AMERITOX, LLC
markets its products by sending sales representatives to physician’s offices and encouraging
physicians to refer patients to AMERITOX, LLC for testing. For example, physicians who treat
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customers taking opioids would refer their patients to AMERITOX, LLC to test the patients
urine to ensure: (1) the patient is taking the prescribe drug consistent with the dosage; (2) the
patient is not abusing the drug or other drugs; (3) the patient is not taking another drug that could
interfere with the effectiveness of the prescribed opioid; and (4) the patient is not diverting the
drug.
12.
Under the terms and conditions of the Medicare and Medicaid contracts,
AMERITOX, LLC was responsible for ensuring that it properly billed Medicare and Medicaid
for goods and services provided to patients under strict guidelines and fee schedules.
13.
AMERITOX, LLC provided physicians with benefits and accoutrements and
orchestrated billing, promotional and marketing policies which constituted improper
compensation in exchange for the utilization of AMERITOX, LLC's services in violation of antikickback prohibitions.
14.
RX Guardian is a patented urine test that measures how much of a prescription
drug a patient is taking. Standard urine tests show a level of a drug present in a patient's urine,
but are unable to relate the amount of drug present in a patient's urine to the dose of drug the
patient is taking. RX Guardian is not FDA approved and is actively promoted by AMERITOX,
LLC.
15.
AMERITOX, LLC sends all urine screens automatically to a GC/MS
confirmation test, without physician request. This results in unnecessary testing and attendant
overtesting and overbilling. In addition, AMERITOX, LLC requires all physicians to choose a
testing panel and then tests all patients on the same panel, which could result in overbilling.
AMERITOX, LLC misbranded its RX Guardian technology by representing to physicians that
their RX Guardian was FDA approved and by not disclosing to physicians that the RX Guardian
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was not FDA approved or CLIA approved, which could result in physicians overtesting and
overbilling.
16.
AMERITOX, LLC had/has violated the Anti-Kickback Statute through several
practices:
A.
AMERITOX, LLC paid bribes and kickbacks to physicians through
various benefits such as expensive meals and lunches. For example, AMERITOX, LLC sales
representatives hosted lunch-and-learns that were sham events.
AMERITOX, LLC sales
representatives brought luxurious meals to doctors’ offices for lunch-and-learns that in fact had
no educational component.
B.
AMERITOX, LLC ran a speakers program that paid speakers to speak
about its product to other physicians who might test patient’s urine. The speakers program was
used as a means to pressure doctors to refer patients to AMERITOX, LLC for medically
unnecessary testing.
C.
AMERITOX, LLC paid specimen processors to go to physicians’ offices
to collect specimens from patients who were referred to AMERITOX, LLC. These specimen
processors were paid by AMERITOX, LLC and were nothing more than a benefit to physicians
to induce referrals. AMERITOX, LLC did not charge the physicians for the benefit of having a
specimen processor come to their office to collect specimens.
Moreover, the specimen
processors provided other benefits to physicians such as filing paper work and cleaning the
office.
17.
To receive payment, directly or indirectly from the United States Government for
supplying goods and medical services pursuant to the above, Defendants, AMERITOX, LLC
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and/or STERLING CAPITAL PARTNERS prepared billing invoices that overcharged for
medical procedures performed.
18.
Based upon the false billing practices, misbranding and false claims described
above, Defendants, AMERITOX, LLC and STERLING CAPITAL PARTNERS obtained
payment directly or indirectly from the United States Government for its services.
19.
The State of Florida, State of Texas and Commonwealth of Massachusetts have
reimbursed Defendants, AMERITOX, LLC and STERLING CAPITAL PARTNERS, under their
Medicaid programs and these reimbursements are based upon fraudulent billing practices of the
Defendants, AMERITOX, LLC and STERLING CAPITAL PARTNERS, in violation of the
federal False Claims Act, as well as state law prohibiting such fraud.
20.
Relator, DEBRA MAUL, took immediate steps with her employer to address the
serious problems raised by the actions of AMERITOX, LLC and/or STERLING CAPITAL
PARTNERS of using the laboratory service, RX Guardian.
21.
On May 31, 2006, Relator, DEBRA MAUL, was constructively terminated from
her employment.
COUNT I
FALSE CLAIMS ACT VIOLATION
22.
The allegations of the preceding paragraphs are realleged as if fully set forth
23.
Defendants, AMERITOX, LLC and STERLING CAPITAL PARTNERS, by and
herein.
through its officers, agents and employees, knowingly presented or caused to be presented to an
officer or employee of the United States Government, false or fraudulent claims for payment and
approval, by paying kickbacks and bribes to physicians through various means.
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24.
Defendants, AMERITOX, LLC and/or STERLING CAPITAL PARTNERS, by
and through its officers, agents and employees, knowingly made, used or cause to be made or
used, false records or statements, to get false or fraudulent claims paid or approved, by paying
kickbacks and bribes to physicians through various means..
25.
Based upon the false claims described above, Defendants, AMERITOX, LLC
and/or STERLING CAPITAL PARTNERS, directly or indirectly obtain payment from the
United States Government for its services it provides to patients covered under Medicare and
Medicaid.
26.
Defendants, AMERITOX, LLC and/or STERLING CAPITAL PARTNERS, by
and through its officers, agents and employees, have authorized the actions of its various
officers, agents and employees to take the actions set forth above.
27.
The United States Government has sustained damages because of the acts of the
Defendants, AMERITOX, LLC and/or STERLING CAPITAL PARTNERS, as a result of the
Defendants' violation of the False Claims Act, 31 U.S.C. § 3729.
28.
The actions described above occurred during the time period in which
AMERITOX, LLC and/or STERLING CAPITAL PARTNERS were contractors or
subcontractors with the United States Government pursuant to various contracts, including, but
not limited to, the time period which Relator, DEBRA MAUL, was employed by the Defendants,
AMERITOX, LLC and STERLING CAPITAL PARTNERS.
29.
As set forth in the preceding paragraphs, Defendants, AMERITOX, LLC and
STERLING CAPITAL PARTNERS, have knowingly violated 31 U.S.C. § 3729 and has thereby
damaged the United States Government, the States of Florida and Texas and the Commonwealth
of Massachusetts by its actions in an amount to be determined at trial.
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COUNT II
30.
The allegations in the preceding paragraphs are realleged as if fully set forth
31.
Relator, DEBRA MAUL, was constructively terminated by Defendants,
below.
AMERITOX, LLC and STERLING CAPITAL PARTNERS, by and through its officers, agents
and employees, because of lawful acts done by her in furtherance of an action under the False
Claims Act, including her opposition to illegal practices and participation in the investigation of
an action under the False Claims Act.
32.
Defendants' actions set forth above is in violation of 31 U.S.C. § 3730(h) and
damaged Relator in an amount to be determined at trial.
33.
WHEREFORE, Relator, on behalf of herself and the United States Government,
prays:
(a)
That this Court order the Defendants, AMERITOX, LLC and STERLING
CAPITAL PARTNERS, cease and desist from violating 31 U.S.C. § 3729;
(b)
That Relator be awarded all relief necessary to make her whole, including
but not limited to, two times her back pay, interest on the back pay, and
compensation for all special damages sustained, including attorneys' fees
and costs.
(c)
That this Court enter judgment against Defendants in an amount equal to
three times the amount of damages the United States Government has
sustained because of its action, plus a civil penalty of $5,000 to $10,000
for each action in violation of 31 U.S.C. § 3729, and the costs of this
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action, with interest, including the costs of the United States Government
for its expenses related to this action;
(d)
That Relator be awarded all costs incurred, including reasonable attorneys’
fees;
(e)
That in the event the United States Government continues to proceed with
this action, Relator be awarded an amount for bringing this action in the
amount of at least 15 percent but not more than 25 percent of the proceeds
of the action or settlement of the claim;
(f)
That in the event of the United States Government does not proceed with
this action, Relator be awarded an amount that the court decides is
reasonable for collecting the civil penalty and damages, which shall not be
less than 25 percent nor more than 30 percent of the proceeds of the action
or settlement;
(g)
That a trial by jury be held on all issues;
(h)
That the United States Government and Relator receive any other relief,
both at law and at equity, to which they may reasonably appear entitled.
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Dated: October 14, 2009
Respectfully submitted,
By
DAVID J. LINESCH
Florida Bar No. 0376078
The Linesch Firm
700 Bee Pond Road
Palm Harbor, FL 34683
Voice: (727) 786-0000
Facsimile: (727) 786-0974
Email: laborlaw@lineschfirm.com
Attorney for Relator
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing has been mailed, postage prepaid, U.S. Mail,
this 14th day of October, 2009 to:
A. Brian Albritton
U.S. Attorney
400 N. Tampa Street, Room 329
Tampa, FL 33602
Office of the Attorney General
U.S. Department of Justice
950 Pennsylvania Avenue, N.W.
Washington, D.C. 20530-0001
DAVID J. LINESCH
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