NURSING CARE COMPANY TO PAY $38 MILLION TO SETTLE FALSE CLAIMS ACT ALLEGATIONS

FROM:  U.S. JUSTICE DEPARTMENT

Friday, October 10, 2014

Extendicare Health Services Inc. Agrees to Pay $38 Million to Settle False Claims Act Allegations Relating to the Provision of Substandard Nursing Care and Medically Unnecessary Rehabilitation Therapy

Extendicare Health Services Inc. (Extendicare) and its subsidiary Progressive Step Corporation (ProStep) have agreed to pay $38 million to the United States and eight states to resolve allegations that Extendicare billed Medicare and Medicaid for materially substandard nursing services that were so deficient that they were effectively worthless and billed Medicare for medically unreasonable and unnecessary rehabilitation therapy services, the Justice Department and the U.S. Department of Health and Human Services Office of Inspector General (HHS-OIG) jointly announced today.  This resolution is the largest failure of care settlement with a chain-wide skilled nursing facility in the department’s history.

As part of this settlement, Extendicare has also been required to enter into a five year chain-wide Corporate Integrity Agreement with HHS-OIG.  Extendicare is a Delaware corporation that, through its subsidiaries, operates 146 skilled nursing facilities in 11 states.  ProStep provides physical, speech, and occupational rehabilitation services.

“Our seniors rely on the Medicare and Medicaid programs to provide them with quality care, ensuring that they are treated with dignity and respect when they are most vulnerable,” said Acting Associate Attorney General Stuart F. Delery.  “It is critically important that we confront nursing home operators who put their own economic gain ahead of the needs of their residents.  Operators who bill Medicare and Medicaid while failing to provide essential services or bill for services so grossly substandard as to be effectively worthless will be pursued for false claims.”

This settlement resolves allegations that between 2007 and 2013, in 33 of its skilled nursing homes in eight states, Extendicare billed Medicare and Medicaid for materially substandard skilled nursing services and failed to provide care to its residents that met federal and state standards of care and regulatory requirements.  The government alleges, for example, that Extendicare failed to have a sufficient number of skilled nurses to adequately care for its skilled nursing residents; failed to provide adequate catheter care to some of the residents and failed to follow the appropriate protocols to prevent pressure ulcers or falls.  The eight states involved in this component of the settlement are Indiana, Kentucky, Michigan, Minnesota, Ohio, Pennsylvania, Washington and Wisconsin.  

“The continued viability of Medicare depends, in large part, on the honesty and integrity of the program participants,” said Acting Assistant Attorney General Joyce R. Branda for the Civil Division.  “Health care providers must make decisions regarding the level of services to be provided based solely on their patients’ clinical needs, and not corporate financial targets.”  

“This investigation and settlement highlights the importance of leveraging the joint resources and expertise of the states and federal government,” said Ohio Attorney General Mike DeWine.  “Working together allowed us to focus our efforts nationally on protecting the most vulnerable in our population who rely on quality care in our nursing homes.”

Additionally, this settlement resolves allegations that between 2007 and 2013, in 33 of its skilled nursing homes, Extendicare provided medically unreasonable and unnecessary rehabilitation therapy services to its Medicare Part A beneficiaries, particularly during the patients’ assessment reference periods, so that it could bill Medicare for those patients at the highest per diem rate possible.  

As a result of today’s settlement, the federal government will receive $32.3 million and the eight state Medicaid programs will receive $5.7 million.  The Medicaid program is funded jointly by the federal and state governments.

“The United States remains committed to demanding the highest quality of care for nursing home and skilled facility residents,” said U.S. Attorney Carter M. Stewart for the Southern District of Ohio.  “We are proud of our efforts to work cooperatively with our partners at the Ohio Attorney General’s Medicaid Fraud Control Unit, as well as with other U.S. Attorney’s offices across the country.  We will remain vigilant in our efforts to combat healthcare fraud, especially when it impacts the most vulnerable in our society, including seniors and others requiring significant long term care.”

“Nursing home residents should not be subject to unreasonable or unnecessary rehabilitation therapy that is dictated by a company’s profits rather than patient needs,” said U.S. Attorney Zane David Memeger for the Eastern District of Pennsylvania.  “It is critical to the integrity of a system that benefits millions of Americans that we do as much as possible to hold accountable those who commit fraudulent acts.  The Eastern District of Pennsylvania will continue its efforts to prevent Medicare fraud and protect government beneficiaries.”

In addition, as part of this resolution, Extendicare and ProStep are required to enter into a five year chain-wide Corporate Integrity Agreement.  It is a priority of the OIG to investigate and pursue cases involving abuse or grossly deficient care of Medicare or Medicaid beneficiaries and to recommend improvements to the systems intended to promote quality of care.  To protect the Federal healthcare programs and its beneficiaries, OIG required Extendicare to agree to a Corporate Integrity Agreement under which Extendicare must have a comprehensive compliance program with systems to address the quality of resident care.  Extendicare’s compliance program must include, among other things, corporate-level committees to address compliance and quality, including a committee to assess staffing, and an internal audit program to assess the quality of care provided to its residents.  Extendicare must retain an independent monitor, selected by the OIG, who will regularly visit Extendicare’s facilities and report to the OIG.  In addition, an independent review organization will perform annual reviews of Extendicare’s claims to Medicare.

“This case demonstrates that the government will aggressively pursue allegations of abuse and grossly deficient care,” said Inspector General Daniel R. Levinson of the U.S. Department of Health and Human Services.  “Our five-year corporate integrity agreement with Extendicare requires a government-selected quality of care monitor be retained by Extendicare, and additional rigorous provisions designed to ensure Extendicare provides appropriate staffing and monitors the quality of care provided to its residents.”

Under the False Claims Act, private citizens, known as relators, can bring suit on behalf of the United States and share in any recovery.  Two relators brought separate cases against Extendicare.  Relator Tracy Lovvron will receive more than $1.8 million as her share of the recovery in the RUGS upcoding case, and Relator Donald Gallick will receive more than $250,000 as his share of the recovery in the Ohio worthless services case.

This settlement illustrates the government’s emphasis on combating health care fraud and marks another achievement for the Health Care Fraud Prevention and Enforcement Action Team (HEAT) initiative, which was announced in May 2009 by the Attorney General and the Secretary of Health and Human Services.  The partnership between the two departments has focused efforts to reduce and prevent Medicare and Medicaid financial fraud through enhanced cooperation.  One of the most powerful tools in this effort is the False Claims Act.  Since January 2009, the Justice Department has recovered a total of more than $22.5 billion through False Claims Act cases, with more than $14.3 billion of that amount recovered in cases involving fraud against federal health care programs.

The settlement was the result of a coordinated federal and state effort by the Civil Division, the U.S. Attorney’s Office for the Eastern District of Pennsylvania, the U.S. Attorney’s Office for the Southern District of Ohio, HHS-OIG and the Attorneys General for the states of Indiana, Kentucky, Michigan, Minnesota, Ohio, Pennsylvania, Washington and Wisconsin.  This investigation was also supported by the department’s Elder Justice Initiative, which coordinates the department’s activities combating elder abuse, neglect and financial exploitation, especially as they impact beneficiaries of Medicare, Medicaid and other federal health care programs.

The two qui tam cases are docketed as United States ex rel. Lovvorn v. EHSI, et. al. C.A. 10-1580 (E.D. Pa) and United States ex rel. Gallick et al., v. EHSI et al., C.A. 2:13cv-092 (S.D. Ohio).  The claims resolved by the settlement are allegations only; there has been no determination of liability.

NATION'S LARGES ACUTE CARE HOSPITAL OPERATOR TO PAY $98.15 MILLION TO SETTLE FALSE CLAIM ACT ALLEGATIONS

FROM:  U.S. JUSTICE DEPARTMENT 

Monday, August 4, 2014

Community Health Systems Inc. to Pay $98.15 Million to Resolve False Claims Act Allegations

The Justice Department announced today that Community Health Systems Inc. (CHS), the nation’s largest operator of acute care hospitals, has agreed to pay $98.15 million to resolve multiple lawsuits alleging that the company knowingly billed government health care programs for inpatient services that should have been billed as outpatient or observation services.  The settlement also resolves allegations that one of the company’s affiliated hospitals, Laredo Medical Center (LMC), improperly billed the Medicare program for certain inpatient procedures and for services rendered to patients referred in violation of the Physician Self-Referral Law, commonly known as the Stark Law.  CHS is based in Franklin, Tennessee, and has 206 affiliated hospitals in 29 states.

“Charging the government for higher cost inpatient services that patients do not need wastes the country’s health care resources,” said Assistant Attorney General Stuart F. Delery for the Justice Department’s Civil Division.  “In addition, providing physicians with financial incentives to refer patients compromises medical judgment and risks depriving patients of the most appropriate health care available.  This department will continue its work to stop this type of abuse of the nation’s health care resources and to ensure patients receive the most appropriate care.”

The United States alleged that from 2005 through 2010, CHS engaged in a deliberate corporate-driven scheme to increase inpatient admissions of Medicare, Medicaid and the Department of Defense’s (DOD) TRICARE program beneficiaries over the age of 65 who originally presented to the emergency departments at 119 CHS hospitals.  The government further alleged that the inpatient admission of these beneficiaries was not medically necessary, and that the care needed by, and provided to, these beneficiaries should have been provided in a less costly outpatient or observation setting.  CHS agreed to pay $89.15 million to resolve these allegations.  The settlement does not include hospitals that CHS acquired from Health Management Associates (HMA) in January 2014.

In addition, the government alleged that from 2005 through 2010, one of CHS’s affiliated hospitals, LMC in Laredo, Texas, presented false claims to the Medicare program for certain cardiac and hemodialysis procedures performed on a higher cost inpatient basis that should have been performed on a lower cost outpatient basis.  The government also alleged that from 2007 through 2012, LMC improperly billed Medicare for services referred to LMC by a physician who was offered a medical directorship at LMC, in violation of the Stark Law.  The Stark Law prohibits a hospital from submitting claims for patient referrals made by a physician with whom the hospital has an improper financial relationship, and is intended to ensure that a physician’s medical judgment is not compromised by improper financial incentives, and is instead based on the best interests of the patient.  CHS agreed to pay $9 million to resolve the allegations involving LMC.

“This is the largest False Claims Act settlement in this district and it reaffirms this office’s commitment to investigate and pursue health care fraud that compromises the integrity of our health care system,” said U.S. Attorney David Rivera for the Middle District of Tennessee.  “This office is committed to ensuring that all companies billing government healthcare programs are responsible corporate citizens and that hospital providers do not engage in schemes to increase medically unnecessary in-patient admissions of government healthcare program beneficiaries in order to increase profits.”

“This settlement demonstrates our commitment to working with our law enforcement partners and with the Department of Justice to protect the integrity of our nation’s health care system,” said U.S. Attorney Kenneth Magidson of the Southern District of Texas.  “Put simply, these types of fraudulent practices will not be tolerated and the investigation and resolution of such claims will continue to be a high priority of this office.”

“Health care providers should make treatment decisions based on patients’ medical needs, not profit margins,” said U.S. Attorney Anne M. Tompkins for the Western District of North Carolina.  “We will not allow this type of misconduct to compromise the integrity of our health care system.”

As part of today’s agreement, CHS entered into a Corporate Integrity Agreement with the U.S. Department of Health and Human Services - Office of Inspector General (HHS-OIG), requiring the company to engage in significant compliance efforts over the next five years.  Under the agreement, CHS is required to retain independent review organizations to review the accuracy of the company’s claims for inpatient services furnished to federal health care program beneficiaries.

“In an effort to ensure the company’s fraudulent past is not its future, CHS agreed to a rigorous multi-year Corporate Integrity Agreement requiring that the company commit to compliance with the law,” said Inspector General Daniel R. Levinson, of the U.S. Department of Health and Human Services.  “The dedicated work of OIG’s investigators, auditors, and attorneys, in concert with our law enforcement partners, has again resulted in the recovery of taxpayer dollars and better protection against fraud in the future.”

The settlement resolves lawsuits filed by several whistleblowers under the qui tam provisions of the False Claims Act, which permit private parties to file suit on behalf of the government and obtain a portion of the government’s recovery.  Those relators are Kathleen Bryant, former Director of Health Information Management at CHS’s Heritage Medical Center in Shelbyville, Tennessee; Rachel Bryant, former nurse at CHS’s Dyersburg Hospital in Dyersburg, Tennessee; Bryan Carnithan, former Emergency Medical Services Coordinator at CHS’ Heartland Hospital in Marion, Illinois; Amy Cook-Reska, former coder for CHS’ LMC in Laredo; Sheree Cook, former nurse at CHS’s Heritage Medical Center in Shelbyville; James Doghramji, former internal medicine and emergency room physician at CHS’s Chestnut Hill Hospital in Philadelphia; Thomas Mason, former emergency room physician at Lake Norman Regional Medical Center in Mooresville, North Carolina; Scott Plantz, former emergency room physician at CHS’s Longview Regional Medical Center in Longview, Texas; and Nancy Reuille, former nurse and Supervisor of Case Management at CHS’s Lutheran Hospital in Fort Wayne, Indiana.  The relators’ share of the settlement has not yet been determined.

This settlement illustrates the government’s emphasis on combating health care fraud and marks another achievement for the Health Care Fraud Prevention and Enforcement Action Team (HEAT) initiative, which was announced in May 2009 by Attorney General Eric Holder and the Secretary of Health and Human Services.  The partnership between the two departments has focused efforts to reduce and prevent Medicare and Medicaid financial fraud through enhanced cooperation.  One of the most powerful tools in this effort is the False Claims Act.  Since January 2009, the Justice Department has recovered a total of more than $20.2 billion through False Claims Act cases, with more than $14 billion of that amount recovered in cases involving fraud against federal health care programs.
         
This settlement was the result of a coordinated effort by the U.S. Attorney’s Offices for the Middle District of Tennessee, Southern District of Texas, Northern and Southern Districts of Illinois, Northern District of Indiana and Western District of North Carolina; the Civil Division’s Commercial Litigation Branch; HHS-OIG; DOD’s Defense Health Agency - Program Integrity Office and the FBI.

The lawsuits are captioned United States ex rel. Bryant v. Community Health Systems, Inc., et al., Case No. 10-2695 (S.D. Tex.);  United States ex rel. Carnithan v. Community Health Systems, Inc., et al., Case No. 11-cv-312 (S.D. Ill.);  United States ex rel. Cook-Reska v. Community Health Systems, Inc., et al., Case No. 4:09-cv01565 (S.D. Tex.);  United States ex rel. James Doghramji; Sheree Cook; and Rachel Bryant v. Community Health Systems Inc., et al., Case No. 3-11-cv-00442 (M.D. Tenn.);  United States ex rel. Mason v. Community Health Systems, Inc., et al., Case No. 3:12-cv-817 (W.D.N.C.);  United States ex rel. Plantz v. Community Health Systems, Inc., et al., Case No. 10C-0959 (N.D. Ill.);  United States ex rel. Reuille v. Community Health Systems Professional Services Corporation, et al., Case No. 1:09-cv-007RL (N.D. Ind.).  The claims resolved by this agreement are allegations only and there has been no determination of liability.

CONSTRUCTION COMPANY PAYS TO SETTLE ALLEGE FALSE CLAIMS IN PROGRAM FOR SMALL, DISADVANTAGED BUSINESS

FROM:  U.S. JUSTICE DEPARTMENT 
Friday, March 21, 2014
Utah Construction Company to Pay Government to Settle Alleged False Claims in Connection with Program for Small and Disadvantaged Businesses

Okland Construction Co. Inc. has agreed to pay the government $928,000 to resolve allegations that it made false statements and submitted false claims under the Small Business Administration’s (SBA) Section 8(a) Program for Small and Disadvantaged Businesses, the Justice Department announced today.

“The purpose of the 8(a) Program is to assist small and disadvantaged businesses to compete in the American economy,” said Assistant Attorney General for the Justice Department’s Civil Division Stuart F. Delery.   “The Justice Department is committed to making sure that those who participate in 8(a) contracts do so honestly and fairly.”

Okland Construction, a large construction company, entered into a mentor-protégé agreement with Saiz Construction Co., a participant in the 8(a) Program.   The mentor-protégé program allows a large business mentor to form an SBA-approved joint venture with a small business protégé to jointly bid on and perform 8(a) contracts, which are contracts awarded by federal agencies that are set aside solely for small businesses.   Without a qualifying joint venture, the mentor and protégé cannot jointly bid on 8(a) contracts, and the mentor cannot perform the primary functions of the contract.

The government alleged that Okland Construction did not form a qualifying joint venture with Saiz Construction and thus was not eligible to jointly bid on or perform the primary functions of eight 8(a) contracts with Saiz Construction.   Nevertheless, Okland Construction allegedly prepared the bids for the 8(a) contracts and its employees served as project managers, submitted invoices and performed payroll and other accounting functions.   Furthermore, Okland Construction allegedly concealed its extensive involvement in performing the 8(a) contracts by misrepresenting to the government that its employees were employees of Saiz Construction.

The government also alleged that Okland Construction’s relationship with Saiz Construction violated the terms of an SBA set-aside contract awarded to Saiz Construction that required Saiz Construction to perform at least 15 percent of the labor on the contract minus the cost of materials.

“Large businesses must not be allowed to fraudulently obtain access to contracts set aside for small businesses,” said SBA Inspector General Peggy E. Gustafson.   “The SBA mentor-protégé program enhances the capability of 8(a) participants to compete more successfully for federal contracts through a relationship with another successful business; however, this program must not be used as a vehicle to improperly benefit large, non-disadvantaged companies.”

“SBA’s contracting programs, including the 8(a) Business Development Program, provide small businesses with the opportunity to grow and create jobs,” said SBA General Counsel Sara D. Lipscomb.   “But SBA has no tolerance for waste, fraud or abuse in any government contracting program and is committed to working with our federal partners to ensure the benefits of these programs flow to the intended recipients.”

The civil settlement resolves a lawsuit filed by Saiz Construction and its owner Abel Saiz under the whistleblower provision of the False Claims Act, which permits private parties, known as relators, to file suit on behalf of the government for false claims and to share in any recovery.   The relators filed the lawsuit after Saiz Construction terminated its mentor-protégé agreement with Okland Construction.   Saiz Construction and Saiz will receive a total of $148,480.

This settlement with Okland Construction was the result of a coordinated effort among the Department of Justice’s Civil Division, the U.S. Attorney’s Office for the District of Utah, the SBA Office of Inspector General, the SBA Office of General Counsel, the Department of the Air Force and the Army Corps of Engineers.

The civil lawsuit was filed in the District of Utah and is captioned United States ex rel. Saiz Construction Co. Inc. and Abel Saiz v. Okland Construction Co. Inc., No. 2:11-cv-00362 (D. Utah).   The claims resolved by this settlement are allegations only, and there has been no determination of liability.

U.S. GOVERNMENT INTERVENES IN PHYSICIAN SERVICES OVERBILLING LAWSUIT

FROM:  U.S. JUSTICE DEPARTMENT 
Monday, December 9, 2013
Government Intervenes in False Claims Lawsuit Against Ipc the Hospitalist Co. Inc. Alleging Overbilling of Physician Services

The government has intervened in a lawsuit against IPC The Hospitalist Co. Inc., and its subsidiaries (IPC), alleging that IPC submitted false claims to federal health care programs, the Justice Department announced today.  IPC, based in North Hollywood, Calif., is one of the largest providers of hospitalist services in the United States, employing physicians and other health care providers who work in more than 1,300 facilities in 28 states.  Hospitalists are physicians who work only in hospitals and other long-term care facilities, overseeing and coordinating inpatient care from admission to discharge.

The lawsuit alleges that IPC physicians sought payment for higher and more expensive levels of medical service than were actually performed – a practice commonly referred to as “upcoding.”  Specifically, the lawsuit alleges that IPC encouraged its physicians to bill at the highest levels regardless of the level of service provided, trained physicians to use higher level codes and encouraged physicians with lower billing levels to “catch up” to their peers.

“We continue to be vigilant in our enforcement efforts to ensure that health care programs funded by the taxpayers pay only for appropriate costs,” said Assistant Attorney General for the Justice Department’s Civil Division Stuart F. Delery.

The lawsuit was filed by Dr. Bijan Oughatiyan, a former IPC physician, under the qui tam, or whistleblower, provisions of the False Claims Act, which permit private parties to sue for false claims on behalf of the government and to share in any recovery.  The Act also allows the government to intervene or take over the lawsuit, as it has done in this case, and to recover three times its damages plus civil penalties.  The government has asked the U.S. District Court in Chicago for 120 days to file its own complaint stating its allegations.

This intervention illustrates the government’s emphasis on combating health care fraud and marks another achievement for the Health Care Fraud Prevention and Enforcement Action Team (HEAT) initiative, which was announced in May 2009 by Attorney General Eric Holder and Health and Human Services Secretary Kathleen Sebelius.  The partnership between the two departments has focused efforts to reduce and prevent Medicare and Medicaid financial fraud through enhanced cooperation.  One of the most powerful tools in this effort is the False Claims Act.  Since January 2009, the Justice Department has recovered a total of more than $17 billion through False Claims Act cases, with more than $12.2 billion of that amount recovered in cases involving fraud against federal health care programs.

The case was investigated by the Commercial Litigation Branch, Civil Division, U.S. Department of Justice and the U.S. Attorney’s Office for the Northern District of Illinois, with assistance from the Department of Health and Human Services Office of Inspector General.

The case is captioned United States ex rel. Oughatiyan v. IPC The Hospitalist Company Inc., et al., Civ. No. 09 C 5418 (N.D. Ill.).  The claims asserted against IPC are allegations only; there has been no determination of liability.

CONSUMER VICTIMS OF DVD VENDING MACHINE BUSINESS FRAUD RECEIVE $950,000

FROM:  FEDERAL TRADE COMMISSION 
FTC Returns Additional $950,000 to Consumer Victims in DVD Vending Scam

The Federal Trade Commission is mailing 426 refund checks totaling more than $950,000 to consumers who were victimized by a scam that promoted video rental machines as a business opportunity.  This mailing, combined with checks previously mailed by the FTC, will increase the total funds returned to consumers by the FTC in this matter to nearly $4 million.
The additional funds are a result of the FTC’s court victory in a collection action against the estate of the tenth and final defendant, Anthony Andreoni.  The FTC is continuing to liquidate assets awarded in this case so that additional funds may be returned to injured consumers in the future.

The FTC alleged in its case against American Entertainment Distributors, Inc., that the defendants – five companies and five individuals – deceived consumers into paying $28,000 to $37,500 apiece for video rental vending machines by telling them they could expect to earn between $60,000 and $80,000 a year, or recoup their initial investment in six to 14 months.  In fact, according to the FTC, the defendants had no reasonable basis for their claims and all investors lost money.

The refund amounts will vary depending on the amount lost by each consumer; over 400 refund checks will be for more than $1,000.  The checks will be mailed by an administrator working for the FTC on August 30, 2013, and must be cashed on or before October 29, 2013.  Consumers who have questions, or who have not yet filed a claim with the FTC and wish to do so, should call the Redress Administrator, Gilardi & Co. LLC, toll free, at 1-866-271-9147.

Remember:  The FTC never requires consumers to pay money or provide information before redress checks can be cashed.  Consumers should carefully evaluate claims about business opportunities.

TWO COMPANIES TO PAY $61 MILLION FOR NOT PROVIDING DISCOUNTS TO GOVERNMENT

FROM:  U.S. JUSTICE DEPARTMENT 
Wednesday, August 28, 2013

RPM International Inc. and Tremco Inc. Pay Nearly $61 Million for Failing to Provide Government Discounts Provided to Others
Companies Allegedly Submitted False Claims Under Defectively-priced Roofing Contracts

Ohio-based RPM International Inc. and its subsidiary, Tremco Inc., have paid $60.9 million to resolve allegations that Tremco filed false claims in connection with two multiple award schedule (MAS) contracts with the General Services Administration (GSA) for roofing supplies and services, the Justice Department announced today.  Tremco failed to provide the government with price discounts provided to non-federal government customers.   Tremco also allegedly marketed expensive materials to government purchasers without disclosing the availability of the same materials at lower cost that were manufactured and sold by the company.   Tremco is a manufacturer of construction products and services and is a subsidiary of the RPM Building Solutions Group.

“Companies that knowingly skirt the rules for securing government business undermine the integrity of the procurement process and create an unfair advantage against companies that are playing by the rules,” said Stuart F. Delery, Assistant Attorney General for the Justice Department’s Civil Division.   “We are committed to ensuring a level playing field and protecting taxpayer dollars.”

Allegedly, from January 2002 to March 2011, Tremco knowingly violated its contractual obligations to provide GSA with current, accurate and complete information about its commercial sales practices, to report changes in discounts to comparable commercial customers and to pass those discounts on to government customers.  As a result, the government allegedly paid more than it should have for Tremco’s services and products.   In addition, Tremco allegedly improperly marketed generic products as a superior line of the same product and used a defective adhesive formula in its roofing systems.

The GSA MAS program provides government purchasers with a streamlined process for procurement of commonly used commercial goods and services.  To be awarded a MAS contract, and thereby gain access to the broad government marketplace and ease of administration that comes from selling to hundreds of government purchasers under one contract, contractors must agree to disclose commercial pricing policies and practices.

GSA Inspector General Brian Miller said, “GSA OIG auditors and investigators worked diligently to make sure the taxpayers got the benefit of required price reductions, and received a fair price for the products and services purchased with taxpayer funds.”

“These companies are paying the price for trying to cheat the American taxpayer out of a fair deal,” said Ronald C. Machen Jr., U.S. Attorney for the District of Columbia.   “We thank this whistleblower for coming forward to reveal this wrongdoing.   Other contractors who are considering bilking the government should take heed:  false and fraudulent claims on the U.S. Treasury will not be tolerated.”

The settlement resolves a qui tam, or whistleblower, lawsuit filed on behalf of the government by former Tremco vice president Gregory Rudolph, who will receive more than $10.9 million as his share of the recovery in the case.  Under the whistleblower provisions of the False Claims Act, private citizens can bring lawsuits on behalf of the government and share in any recovery.   Rudolph’s lawsuit also includes allegations on behalf of several states under their false claims statutes.   The settlement with the federal government does not resolve the state actions.

This settlement was the result of a coordinated effort by the Commercial Litigation Branch of the Justice Department’s Civil Division, the U.S. Attorney’s Office for the District of Columbia and GSA’s Office of Inspector General to investigate the allegations and resolve the case.   The claims settled by this agreement are allegations only, and there has been no determination of liability.

FTC TARGETS MARKETERS WHO DECEIVE SMALL BUSINESSES INTO BUYING CREDIT/DEBIT CARD PROCESSING SERVICES & EQUIPMENT

FROM:  FEDERAL TRADE COMMISSION 

FTC Charges Marketers with Deceiving Small Businesses into Buying Credit/Debit Card Processing Services and Equipment

The Federal Trade Commission has charged an operation that sells credit and debit card payment processing services to small businesses with violating federal law.  The defendants allegedly made false and unsubstantiated claims and failed to disclose material facts to storefront businesses and sole proprietorships before they applied for services and equipment to process credit and debit card payments.  The FTC seeks to halt the allegedly illegal practices and return money to victims.

The defendants are Merchant Services Direct LLC (MSD), also doing business as Sphyra Inc.; Boost Commerce Inc.; Generation Y Investments LLC; Kyle Lawson Dove; and Shane Patrick Hurley.  The Washington State Attorney General’s Office has simultaneously filed an action against these defendants in the Superior Court for Spokane County, Washington.

According to the FTC’s complaint, as an “independent sales organization” (ISO), MSD sells to small local businesses the ability to accept credit and debit card payments.   The businesses pay fees whenever their customers pay with a credit or debit card.

As alleged in the complaint, MSD sales agents typically call small businesses and lead them to believe they are associated with the businesses’ current card processor, Visa or MasterCard, or their bank.  The sales agents allegedly promise substantial savings on credit and debit card processing.  They specify a much lower rate than the businesses currently pay, and quote one fee, a fixed per-transaction cost, without mentioning all the other fees the businesses will have to pay.  Merchants who ask if there are other fees allegedly are told there are none.

According to the FTC’s complaint, MSD agents also dupe customers into leasing new card processing terminals for two to four years, falsely claiming their current “swipe” terminals are outdated or incompatible with its services.  Sometimes they even claim the terminals are free.  Agents persuade merchants to sign fine-print, binding contracts on the spot by telling them the documents are merely applications – a ruse made easier, according to the FTC, by the fact that the contracts are labeled “applications.”  Merchants are often falsely told they can cancel any time.  Many victims discover their new lease obligation only after being billed, still owing the balance of their previous lease, which can be thousands of dollars.

Defendants also tout on various versions of their website “Guaranteed Lowest Rates,” claiming merchants could “save 30%” with “whole sale [sic] processing” or have “anywhere from 20% to 30% savings when switching to” MSD.  In fact, according to the FTC, there are no wholesale rates, as third parties process card payments, not MSD.   As alleged in the complaint, those who call MSD’s customer service department reach employees who either do not help them or say they will waive fees or provide refunds but don’t.  Customers who were promised they could cancel the “applications” they signed with no penalty are charged substantial cancellation fees, according to the FTC’s complaint.  Generally, only in response to complaints filed with the Better Business Bureau and state attorneys general have the defendants refunded money or waived fees.

The Commission vote authorizing the staff to file the complaint was 4-0.  The complaint was filed in the U.S. District Court for the Eastern District of Washington.  In addition to filing the lawsuit, the FTC has sought a court order immediately halting the unlawful practices along with an order freezing the defendants’ assets and appointing a receiver over the corporate defendants.

The FTC acknowledges the assistance of the Washington State Attorney General’s Office and the Better Business Bureau of Eastern Washington, North Idaho, and Montana.

NOTE:  The Commission files a complaint when it has “reason to believe” that the law has been or is being violated and it appears to the Commission that a proceeding is in the public interest.  The case will be decided by the court.

LONG-TERM ACUTE CARE HOSPITAL RESOLVES FALSE CLAIMS ALLEGATIONS

FROM:  U.S. DEPARTMENT OF JUSTICE 
Friday, July 26, 2013

Dubuis Health System and Southern Crescent Hospital for Specialty Care, Inc. to Pay U.S. $8 Million to Resolve False Claims Act Allegations
Dubuis Health System and Southern Crescent Hospital for Specialty Care, Inc. (Southern Crescent) have agreed to pay the United States $8,000,000 to settle allegations that they submitted false claims to Medicare, the Justice Department announced today.  Dubuis Health System manages long-term acute care hospitals in multiple states, including Southern Crescent.  Southern Crescent is a long-term acute care hospital located in Riverdale, GA and is part of the CHRISTUS Health System.

Long term acute care hospitals are similar to typical acute care hospitals except that they are certified to focus on patients with more complex medical needs who, on average, remain in the hospital more than 25 days.  Long term acute care hospitals receive a higher rate of Medicare reimbursement than do typical acute care hospitals.  This settlement resolves allegations that between 2003 and 2009, Dubuis Health System and Southern Crescent knowingly kept patients hospitalized beyond the time considered to be medically necessary, to increase their Medicare reimbursement and to maintain Southern Crescent’s classification as a long-term acute care facility.

"Billing Medicare for patient care that is not necessary or appropriate contributes to the soaring costs of health care.  This settlement demonstrates the Department of Justice’s commitment to protect public funds and guard against abuse of the Medicare system,” said Stuart F. Delery, the Acting Assistant Attorney General of the Justice Department’s Civil Division.

“Hospitals that violate the public trust by keeping patients hospitalized beyond what is medically necessary will not be tolerated.  Our office will continue to bring cases that enforce our health care laws,” said Kenneth Magidson, United States Attorney for the Southern District of Texas.

This matter was initiated by the filing of a whistleblower complaint under the False Claims Act (FCA).  Under the FCA, private citizens can bring suit for false claims on behalf of the United States and receive a share of the recovery obtained by the Government.  The whistleblower in this matter, Darlene Tucker, was a former administrator at Southern Crescent.  As a result of this settlement, Ms. Tucker will receive $2,160,000 of the United States’ recovery.

This resolution is part of the government’s emphasis on combating health care fraud and another step for the Health Care Fraud Prevention and Enforcement Action Team (HEAT) initiative, which was announced by Attorney General Eric Holder and Kathleen Sebelius, Secretary of the Department of Health and Human Services in May 2009. The partnership between the two departments has focused efforts to reduce and prevent Medicare and Medicaid financial fraud through enhanced cooperation. One of the most powerful tools in that effort is the False Claims Act, which the Justice Department has used to recover more than $10.7 billion since January 2009 in cases involving fraud against federal health care programs. The Justice Department’s total recoveries in False Claims Act cases since January 2009 are over $14.7 billion.

The case was jointly handled by the U.S. Attorney’s Office for the Southern District of Texas, the Justice Department’s Civil Division, and the Office of the Inspector General of the Department of Health and Human Services.  The claims resolved by this settlement are allegations only, and there has been no determination of liability.

DEFENDANTS TO PAY OVER $3.6 MILLION TO SETTLE COMMODITY FUTURES CONTRACT FRAUD CHARGES

FROM: U.S. COMMODITY FUTURES TRADING COMMISSION

April 15, 2013

Federal Court in California Orders National Equity Holdings, Inc. and Its Principal, Robert J. Cannone, to Pay over $3.6 Million to Settle Fraud Charges in CFTC Action

Washington, DC - The U.S. Commodity Futures Trading Commission (CFTC) today announced that it obtained a federal court Order against Defendants National Equity Holdings, Inc. (National Equity) and its Principal, Robert J. Cannone, both of Orange County, California, requiring them to pay restitution to defrauded customers in accordance with restitution set in a related criminal action at $1,059,096 (U.S. v. Cannone, SACR 11-263). The Consent Order of Permanent Injunction also imposes civil monetary penalties of $2.8 million on National Equity and $800,000 on Cannone. The Order also imposes permanent trading and registration bans against the Defendants and prohibits them from violating the anti-fraud provisions of the Commodity Exchange Act (CEA), as charged.

The Order, entered on April 11, 2013, by the Honorable James Selna of the U.S. District Court for the Central District of California, stems from a CFTC Complaint filed on November 8, 2011, charging National Equity, Cannone, Francis Franco, and Thomas B. Breen with fraudulent solicitation, misappropriation, and registration violations.

The Order finds that between June 2009 to April 2010, Cannone, by and through National Equity, fraudulently solicited and accepted over $1.4 million to trade commodity futures contracts through a pool. In their solicitations, Cannone, by and through National Equity, (1) falsely claimed to have a successful and experienced trader (Franco) for the pool, (2) misrepresented the likelihood of profits and the risks associated with trading commodity futures, (3) failed to disclose that they were not properly registered with the CFTC to operate a pool, and (4) failed to disclose their intended uses of pool participant funds.

The Order further finds that Cannone and National Equity traded only a portion of the pool participant funds in proprietary accounts and sustained overall and significant losses. Cannone misappropriated the majority of the pool participant funds to make so-called returns to participants in monthly payments that Cannone, through National Equity, claimed were the profitable proceeds of their trading, the Order finds. Cannone also misappropriated pool participant funds for personal use, according to the Order.

Cannone and National Equity concealed their fraud and trading losses from the pool participants by issuing false account statements reflecting profits, the Order finds. A year after commencing their fraudulent scheme, their trading losses and misappropriation had depleted pool participant funds, but at meetings with several pool participants, the Defendants made promises and sometimes gave written guarantees to return the funds invested, according to the Order.

The Order also finds that National Equity failed to register with the CFTC as a Commodity Pool Operator and Cannone failed to register as an Associated Person of National Equity, as required.

The CFTC’s litigation continues against the remaining Defendant Breen. On July 12, 2012, the court entered a permanent injunction Order against Defendant Franco, barring him from further violations of the CEA, as charged, and from engaging in certain commodity-related activities, including trading for others and registration; however, the litigation continues to determine the appropriate amount of a civil monetary penalty to be imposed and the whether a personal trading ban should be imposed on Franco.

In related criminal actions, Cannone, as well as Breen and Franco, pled guilty to criminal violations of the CEA, as amended. Cannone was sentenced to 27 months in federal prison and ordered to pay the $1,059,096 million in restitution jointly with Breen and Franco.

The CFTC thanks the Federal Bureau of Investigation (Orange County Office) and the U.S. Attorney’s Office for the Central District of California (Santa Ana Office) for their assistance.

CFTC Division of Enforcement staff members responsible for this case are Michelle S. Bougas, Heather Johnson, James H. Holl, III, Gretchen L. Lowe, and Vincent McGonagle.

U.S. SUES KBR FOR FALSE CLAIMS ON CONTRACTS TO HOUSE TROOPS IN IRAQ

FROM: U.S. DEPARTMENT OF JUSTICE

Monday, November 19, 2012

United States Sues Houston-based KBR and Kuwaiti Subcontractor for False Claims on Contracts to House American Troops in Iraq

The government’s complaint arises from the Bed Down Mission, a push to replace the tents used to house soldiers during the early days of the war with trailers, also called living containers. KBR performed many of the services required under LOGCAP III, including the Bed Down Mission, through foreign and domestic subcontractors. According to the complaint, KBR awarded a subcontract to First Kuwaiti on Oct. 16, 2003, to supply, transport and install 2,252 living containers at Camp Anaconda in Iraq for about $80 million. The government alleges that First Kuwaiti was required to complete delivery and installation of the trailers at Camp Anaconda by Dec. 15, 2003. The government further alleges that in July 2004, First Kuwaiti presented two claims to KBR contending that government-caused delays in providing military escorts for convoys into Iraq entitled the company to an increase in the contract price to cover its increased costs. According to the complaint, KBR agreed to pay First Kuwaiti an additional $48.8 million and passed that cost on to the United States.

The government’s complaint alleges that First Kuwaiti knowingly inflated its crane and truck costs, among other items, and misrepresented the cause of its delays. The complaint further alleges that KBR charged these costs to the United States knowing they were improper.

"We depend on companies like KBR to provide valuable noncombat services to our military such as housing and feeding our troops," said Stuart F. Delery, Principal Deputy Assistant Attorney General for the Civil Division of the Department of Justice. "We will en sure that contractors live up to their promises, and are not permitted to profit at the expense of the taxpayers at home who are supporting our men and women in uniform."

"When dealing with the government, just like dealing with anyone else, it’s important to give an honest account," said Jim Lewis, U.S. Attorney for the Central District of Illinois. "The facts alleged in the complaint indicate that KBR and First Kuwaiti did not provide an honest accounting."

The United States is suing KBR and First Kuwaiti under the False Claims Act. The act holds persons responsible for presenting, or causing to be presented, claims for gov ernment money or property they know are false. The statute entitles the government to recover three times its damages, plus a $5,500 to $11,000 civil penalty for each false claim.

The United States is also suing KBR under the antifraud section of the Contract Disputes Act and for breach of contract. The Contract Disputes Act establishes liability for contractors who certify that they are entitled to money under a contract, if any part of their claim is unsupported due to a misrepresentation of fact or fraud. Under the Contract Disputes Act, the government may recover the false and unsupported part of the claim, plus its costs of review.

This matter was investigated by the Commercial Litigation Branch of the Justice Department’s Civil Division; the U.S. Attorney’s Office for the Central District of Illinois; and the Defense Contract Audit Agency, the Defense Criminal Investigative Service, and the Defense Contract Management Agency of the Department of Defense. The claims asserted against KBR and First Kuwaiti in the United States’ complaint are allegations only and there has been no determination of liability.

The lawsuit was filed in the Central District of Illinois and is captioned United States v. Kellogg, Brown & Root Services, Inc., et al.

The United States has filed a civil complaint against Kellogg, Brown & Root Services Inc. (KBR) and First Kuwaiti Trading Company for submitting inflated claims for the delivery and installation of trailers to house troops in Iraq, the Justice Department announced today. KBR is headquartered in Houston. First Kuwaiti, a KBR subcontractor, is based in Kuwait.

KBR is the Army’s primary contractor for logistical support in Iraq. On Dec. 14, 2001, t he Army awarded KBR the LOGCAP III contract, the third generation of contracts under the Army’s Logistics Civil Augmentation Program (LOGCAP) since the program’s inception in the 1980s. LOGCAP III required KBR to provide logistical support in the military theater whenever and wherever it was needed. Support included services such as transportation, dining services, facilities management, maintenance and living accommodations for United States and coalition forces. LOGCAP III was originally awarded to Brown and Root Services, a division of KBR. The United States has paid KBR tens of billions of dollars for logistical support services since awarding the contract.

OHIO CONSTRUCTION COMPANY SETTLES ALLEGED FALSE CLAIMS ACT VIOLATIONS

FROM:  U.S. JUSTICE DEPARTMENT
Monday, April 23, 2012
Ohio Construction Firm Agrees to Pay $500,000 to Resolve False Claims Act Allegations Firm Allegedly Submitted False Claims Related to Use of Disadvantaged Business Entities

Anthony Allega Cement Contractor Inc., a Cleveland construction firm, has agreed to pay the United States $500,000 to resolve allegations that it knowingly submitted false claims related to a federally-funded construction project, the Justice Department announced today.  The United States alleged that Allega submitted false claims that made it appear that the company was in compliance with the U.S. Department of Transportation’s (DOT) Disadvantaged Business Enterprise (DBE) program, as required in order to obtain and maintain Allega’s contract with the government.  The DBE program provides opportunities to businesses owned by minorities and women, as well as socially and economically disadvantaged individuals, to participate in federally-funded construction and design projects.
         
Allega was the prime contractor on a project to construct and pave a new runway at Cleveland’s Hopkins International Airport between 2001 and 2006.  To obtain and maintain its contract, Allega was required to comply with DOT DBE regulations and to accurately report DBE participation on the project. The United States alleged that Allega claimed that materials and services for the project were provided by a company known as Chem-Ty Environmental, when in fact Chem-Ty was merely a “pass-through” entity used to make it appear as if a DBE had performed the work.
         
“The Disadvantaged Business Enterprises program helps businesses owned by minorities and women work on federal construction projects,” said Stuart F. Delery, Acting Assistant Attorney General for the Justice Department’s Civil Division. “Those who falsely claim credits under the program in order to obtain federal funds take advantage both of the taxpayers and the businesses that the program is designed to assist.”

The government’s claims were based upon an investigation conducted by the Justice Department’s Civil Division, the U.S. Attorney’s Office for the Northern District of Ohio, DOT’s Office of Inspector General (OIG) and the Federal Aviation Administration.

 “When businesses misrepresent those working with them to obtain government contracts, they violate the law and economically harm subcontractors who already face numerous disadvantages in the workplace,” added Steven M. Dettelbach, U.S. Attorney for the Northern District of Ohio. “This resolution helps to correct that injustice in this instance.”      

 “Preventing and detecting DBE fraud are priorities for the Secretary of Transportation and the USDOT-OIG,” said Michelle McVicker, OIG regional Special Agent in Charge. “Prime contractors and subcontractors are cautioned not to engage in fraudulent DBE activity and are encouraged to report any suspected DBE fraud to the USDOT-OIG. Our agents will continue to work with the Secretary of Transportation, the Federal Aviation Administrator, and our law enforcement and prosecutorial colleagues to expose and shut down DBE fraud schemes throughout Ohio and the United States.”

The claims settled by this agreement are allegations only, and there has been no determination of liability.

The Justice Department’s total recoveries in False Claims Act cases since January 2009 have topped $9.2 billion.