Bracker & Marcus’s parade of settlements continues with some long-awaited news out of the Eastern District of Pennsylvania. (And for those of you playing Steve Miller band bingo, that officially makes settlements out of Phoenix, Tacoma, Philadelphia, and Atlanta. Fingers crossed for L.A. by the end of the year!)
Genetic Testing Must Be Ordered by a Treating Physician to Qualify for Medicare
Nearly two years ago, we blogged about genetic testing scams being one of the priorities of the Department of Justice. Marketers, often without healthcare backgrounds, were setting up tables at grocery stores, farmer’s markets, churches, you name it and convincing passersby to swab their cheeks and be tested for a genetic predisposition for cancer. Medicare in particular paid billions of dollars for these tests, which were not considered medically necessary when the patients had no telltale signs of cancer and the results were not used for their treatment.
Today, we are pleased to announce our involvement in a $6 million settlement with one of those marketing companies, called Genexe. We filed our case back in July 2020, and our client was actually the fourth relator to bring these allegations; the first filed in August 2019. So it took nearly six years to resolve the claims.
According to the Government’s settlement, Genexe publicly described itself as “a one-stop shop” for genetic and pharmacogenetic profiling, and marketed itself as “involved in every aspect of the patient screening process, from the collection of samples to laboratory processing.”
We alleged that Genexe paid independent contractors—including a company that employed our client—to act as genetic screening technicians to recruit Medicare beneficiaries to sign-up for medically unnecessary genetic testing. In other words, our client was paid to sit at a table in a grocery store to swab customers, swabs that were then billed to Medicare, when those results were not necessary or used for the medical care of those customers.
Our Client Bravely Came Forward Even While Knowing She Probably Was Not the First Relator
When we filed our case in summer 2020, we suspected we were not the first to file. Our client had worked for the marketers for only a short time the summer before, but she suspected there was something wrong with its operations, and so she hung onto what she could from that time until she could find someone who would be interested in them.
When she took the job, she thought she was helping people. Certainly other senior citizens in her position would want to know if they were more likely to get cancer so that they could obtain screening or change their habits. It hadn’t occurred to her at the time that it could be engaging in fraud. Still, she felt that something was off about the operations.
Beginning that fall, claims that Genexe was engaging in Medicare fraud started to be reported in the news, including a CBS News report where the reporter went to Genexe’s offices. She started researching the company and found online complaints about them. She started to call False Claims Act attorneys, but she could not find anyone who would take her case.
The following summer, she moved to Atlanta. She packed up her documents, just in case, and started calling Atlanta attorneys. Luckily, she was referred to us, and a couple months later, we filed her case.
By that point, we advised her, it was a near certainty that someone else had come forward, and that under the False Claims Act’s first-to-file rule, only the first relator is entitled to a share of the recovery.
She was also scared. The marketers who recruited her had a lot of money and were frightening individuals. She understood that not only could she not be rewarded for filing a case, but she was potentially putting a target on her back.
But, like many of our clients, our whistleblower was not doing this for the money. She knew her documents would be valuable to an investigation, and she wanted to make sure Genexe was brought to justice, as did we.
Our Client was Awarded a 22% Relator’s Share of $1 Million for her Contributions
Sometimes the universe rewards good deeds. We and our client filed our case because we thought it would help the government, and probably another relator, recover millions of dollars.
Although our client was the fourth relator to bring a case against Genexe, she was the first with specific examples of Medicare beneficiaries who had been billed for medically unnecessary testing.
Often, and in this case, examples of actual false claims are necessary to win a False Claims Act case. It isn’t always enough to have all the details of the fraudulent scheme because you eventually have to show which claims were actually false. If a doctor is billing every single office visit at the highest level of complexity, that’s a pretty blatant scheme that should be reported. But if some of those visits are legitimately billed, the burden is on the government or the plaintiff to show which were not legitimately billed, which means having specific patient names and records to review for wrongful billing.
Such was the case here—it was obvious that Genexe had billed millions of dollars’ worth of genetic testing, but some of those tests may have been legitimate and so the government needed to find specific tests that were not. Our client provided this last piece of the puzzle.
Although we were not expecting it, the United States and the other relators recognized the value that our client brought and agreed that she should be properly rewarded. With her evidence, the government was able to recover an additional $1 million from the defendants, and so it attributed that amount to her for purposes of awarding her a 22% relator’s share.
Gratitude for a Collaborative Victory
We are forever grateful to the government attorneys and investigators who worked on this case, including Assistant U.S. Attorneys Mark Sherer, Charlene Fullmer, and Greg David from the Eastern District of Pennsylvania, and Assistant U.S. Attorney Lila Bateman from the District of Colorado.
We also thank and congratulate our colleagues representing the earlier-filed relators at Duane Morris and the Whistleblower Law Collaborative for their parts in achieving this outcome.