We are pleased to announce that the government has intervened and settled claims brought by our client against Dr. Mark Malone and his Texas-based healthcare practice, Advanced Pain Care. The defendants will pay the United States and the State of Texas $13,625,000, plus interest, to settle allegations raised by our client and relators in four other lawsuits. The settlement is not an admission of liability by Dr. Malone or Advance Pain Care.
In recognition of the strong evidence they presented and their ongoing cooperation during a lengthy investigation, the relators will receive a 22% relator’s share of the government’s recovery.
Drug Testing is Big Business, Especially for Providers with their own Laboratories
Before there was PPP Fraud, there was just Pee Fraud. Drug testing, that is. Yellow Gold. Texas Tea.
Drug testing is often an appropriate clinical tool in the medical management of pain patients. By performing drug tests, medical practitioners can verify whether pain patients are compliant with taking the drugs they have been prescribed, and whether the patient may be taking other drugs, including illicit ones, that could interfere with treatment or pose addiction dangers.
The defendants settled two urine-related claims. First, the government alleged that they submitted claims for “presumptive” drug testing—the usual pee-in-a-cup test that costs and reimburses little—on the same date as a more detailed and expensive “definitive” drug test and before they received and reviewed the results of the cup test.
The presumptive test detects the presence or absence of drugs, but it does not quantify their amount. They are also called “point of care” tests or “qualitative” tests.
If a patient tests positive for illicit drugs, then a “definitive” test is performed, an immunoassay that provides more specific details about the results. These are also referred to as “quantitative” tests. The purpose of a definitive test is to confirm any positive results from the point-of-care test and to determine the concentration of the drug present.
The definitive test is far more expensive than the point-of-care test, which is why a positive presumptive test is required before the Government will pay for it. It also requires the provider to review the presumptive test results and order the definitive test as part of the patient’s care. Accordingly, there was no medical basis for performing both tests without the results of the presumptive test, and therefore, it was costly and wasteful to perform them on the same day.
The defendants were also alleged to have “unbundled” certain claims. Beginning around 2017, the VA began using codes that included testing for numerous drug analytes. Instead of billing these codes, the defendants allegedly billed multiple codes for each analyte, resulting in greater reimbursement.
We Filed our Lawsuit on the Eve of the Pandemic
Our client resigned from her role as Advanced Pain Care’s Director of Billing and Compliance in January 2020 because of her concerns that the company was committing fraud. She spent many years trying to address these and other issues while working for the practice. Finally, when it became clear that the practice had no intention of correcting its behavior, she resigned and filed this False Claims Act case.
Unfortunately for her, she gave her two weeks’ notice at the end of January 2020, just weeks before the start of the COVID pandemic, leaving her unable to find steady work for many years despite her stellar resume. She filed her lawsuit on February 26, 2020, just two weeks before the World Health Organization declared COVID-19 a pandemic. Soon thereafter, the world was shut down, and so, for the most part, was the investigation into her case.
She persevered through the pandemic and the lengthy investigation, finding what work she could in the healthcare industry. Eventually, she joined her husband to open up a restaurant – if you’re ever in Plugerville, Texas, make sure to stop in for lunch at TaterQue!
We could not be happier for her that this case is finally over and that it resulted in a sizeable award.
Medical Necessity Cases Can Be Difficult to Prove
The federal government spent ten years investigating and resolving the various claims against APC and Dr. Malone. We congratulate Assistant U.S. Attorney T.J. Parnham and his team for their dogged efforts.
It can be difficult to prove “medical necessity” as a theory of liability for False Claims Act cases because the providers often couch their actions as being “overly cautious” or “providing the highest level of care” for their patients. Although in this case, the defendants were allegedly still billing for the cheap test even when it was rendered irrelevant by the expensive test, so that would have been a difficult argument to make.
In a perfect world, there would be endless resources to give everyone the gold standard of care. But when healthcare funds are limited and funded by taxpayers, providers have an obligation to act responsibly and bill appropriately.
It takes experienced False Claims Act counsel to tell the difference between “the best care” and “medically unreasonable or unnecessary” care, and to fight those battles with defense counsel. We have successfully brought cases on this theory before. If you think that a provider is billing Medicare or Medicaid for unnecessary services, contact us for a free evaluation of your case.