Alabama A and M University Physician Interview Outline

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oevnaanw56

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Alabama A & M University

Description

In the role of a defense lawyer, prepare an interview outline of a physician who referred samples from Ameritox. Assume that the physician was a speaker for Ameritox, had specimen processors at his/her office, and sales representatives hosted lunch-and-learn events.

At the beginning of the outline, identify the facts you want to try to develop to help defend the company. Also, list the facts that the government might try to develop to prove that the company violated the AKS or FCA. Then draft questions that focus on developing the evidence necessary to assess whether the physician and/or Ameritox violated the Anti-Kickback Statute and False Claims Act.

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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. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) CIVIL ACTION NO. 08:07-cv-00953-t-26eaj FILED UNDER SEAL SECOND AMENDED COMPLAINT 1 DMSLIBRARY01\33084900.v1 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 2 DMSLIBRARY01\33084900.v1 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 3 DMSLIBRARY01\33084900.v1 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 4 DMSLIBRARY01\33084900.v1 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 5 DMSLIBRARY01\33084900.v1 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. 6 DMSLIBRARY01\33084900.v1 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. 7 DMSLIBRARY01\33084900.v1 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 8 DMSLIBRARY01\33084900.v1 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. 9 DMSLIBRARY01\33084900.v1 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 10 DMSLIBRARY01\33084900.v1
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Explanation & Answer

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1

Interview Outline of a Physician

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Interview Outline of a Physician
In this case, the violation of the False Claim Act and Anti-kickback Statute has very
consequential risks to Ameritox and the physicians. This is because of the severe penalties that
are imposed under these statutes. Besides the penalties, Ameritox, and physicians may suffer
reputational harm in the event they are found to be liable. In this regard, they should be given an
opportunity for defense. This is a constitutional right necessary for due process. The defendant
also has the right to legal representation and counsel. Interview of the defendants will help to
establish whether the said violations of the statute took place.
Facts
Facts Pursued by the Defense
Ameritox is a reputable medical testing facility in the United States. It is known for
providing the most reliable medical testing. Because of this reliability, the physicians refer their
patients to be tested at Ameritox. Physicians have the discretion to send their patients to the
medical facilities where they think that they would get the appropriate medical assistance. By
referring the patients to Ameritox, it is no...


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