Wednesday, June 24, 2015

When Referrals and Marriage Don’t Mix: MD, Pharmacy Settle Case


Reprinted from REPORT ON MEDICARE COMPLIANCE, the nation's leading source of news and strategic information on Medicare compliance, Stark and other big-dollar issues of concern to health care compliance officers.

By Nina Youngstrom, Managing Editor

June 8, 2015 Volume 24 Issue 21

In a pure TRICARE case, a compounding pharmacy agreed to pay $3.775 million to settle false claims allegations that it billed for prescriptions written by a physician who is married to an executive at the pharmacy, the U.S. Attorney’s Office for the Middle District of Florida said June 1.

MediMix Specialty Pharmacy LLC in Jacksonville allegedly billed TRICARE for compounded drugs that were not reimbursable from Jan. 1, 2009, to Dec. 31, 2014, according to the settlement. The prescriptions were written by Ankit Desai, M.D., who is married to a MediMix senior vice president, the settlement said. The U.S. attorney’s office notes that Desai is a party to the settlement.

“The United States contends these prescriptions resulted in improper referrals and were not appropriately reimbursable,” the settlement says. Desai sent hundreds of prescriptions to the compounding pharmacy and was its top referring physician, the U.S. attorney’s office contends. Neither MediMix nor Desai admits liability in the settlement.

The allegations play like a violation of the Stark law, but Stark doesn’t apply to TRICARE. “Recognizing this problem, we asserted that the claims submitted by Dr. Desai were tainted by an improper financial arrangement that was designed to defraud TRICARE,” says Amy Filjones, a spokeswoman for the U.S. attorney’s office. “In support of this position, we relied on 32 CFR Sec. 199.9, which prescribes certain ‘administrative remedies for fraud, abuse and conflict of interest’” in TRICARE. The regulation defines “fraud” as “[a]rrangements by providers with employees, independent contractors, suppliers, or others which appear to be designed primarily to overcharge the [TRICARE program] through various means used to divert or conceal improper or unnecessary costs or profits.”

The conduct at the heart of the case came to the attention of the U.S. attorney’s office through mining of reimbursement data. In mining these data, “MediMix was identified as a top biller of compounding pain prescriptions,” a U.S. attorney press release notes.

TRICARE is another vehicle for false claims cases, and this settlement may spark more interest among whistleblowers, says attorney Alan Rumph, with Baker Donelson in Atlanta, Ga. They may be able to make arguments using the TRICARE regulations that they can’t with the Stark law, which has explicit exceptions, he says. For example, under Stark, an entity providing designated health services can have a financial relationship with the spouse of a referring physician as long as it’s not an investment interest and as long as the compensation relationship satisfies an exception (e.g., it’s fair-market value), Rumph says. In contrast, the TRICARE regulations are more open-ended.

“Section 199.9 is pretty broad and captures all kinds of provider fraud involving the TRICARE program,” notes Washington, D.C., attorney Donna Lee Yesner, with Morgan Lewis.

Read the press release at http://tinyurl.com/qxte2rs.

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