May 02, 2019

On April 25, a chain of 40 pain clinics in Virginia, Maryland, the District of Columbia, New Jersey, New York, and West Virginia treating 160,000 patients annually (2012 numbers) announced that they had agreed to pay $3.29 million to settle a federal whistleblower lawsuit filed by a former employee alleging that they defrauded Medicare, TRICARE, and the Federal Employees Health Benefits (FEHB) Program.

The pain treatment centers, Virginia-based Physical Medicine Associates, Ltd. (abbreviated to “Capitol Spine”), National Spine and Pain Centers, LLC (NSPC), and their parent company, are one of the largest non-surgical pain management clinic chains in the country.

The owner of the pain clinics, privately held Sentinel Capital Partners (which was alleged to be the key participant in the alleged schemes), owns 24 companies, including such well-known brands as TGI Fridays and the high-performance automotive brand Holley’s, as well as lesser-known companies, including one which blows up land mines for the safety of U.S. troops. It had total assets of $26 billion when the lawsuit was filed.

The defendants admitted no wrongdoing.

The lawsuit, United States of America ex rel. Michelle O’Connor v. National Spine and Pain Centers, LLC, et al., No. 3:15-cv-00551 (E.D. Va.), alleged a massive pattern of unlawful behaviors. The complaint is available here.

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The lawsuit was a “qui tam” complaint, in which a private citizen, the “relator,” sues on behalf of the federal government, under the federal False Claims Act and, if successful, entitles the whistleblower to receive 15% to 25% of any resulting fines or other. Sometimes, the government stands aside and lets the relator’s attorney pursue the case. In this case, the federal government took the lead role from the start, said the co-lead plaintiff’s attorney, Jeanne Markey of Cohen Milstein Sellers & Toll PLLC.

The whistleblower is Michelle O’Connor, a physician’s assistant who worked under supervision of Douglas W. Wisor, M.D., one of the 16 named defendants. She worked at two Virginia offices of Capitol Spine from 2010 to 2012, then for the combined company until June 3, 2013, when Wisor terminated her. Her lawsuit alleges that she was fired “for complaining about the unlawful practices.”

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Fifty percent of the patient base, the complaint says, were insured under federal-government programs. Based on the 2012 total of patient visits, that would approximate 80,000 federal claims per year from 2012 on.

According to the complaint: “These schemes are part of a business model that is reliant upon keeping patients on a continuous pain management treatment cycle: exhaust coverage of injections; provide orthopedic braces; perform procedures such as a spinal cord stimulation or radiofrequency ablation; prescribe opioids; recommence pain injections… In sum, National Spine's Board has created a corporate culture in which money trumps the provision of appropriate patient care.”

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Attorney Markey, who represents the whistleblower O’Connor, told OTW that the size of the settlement was not what had been anticipated. While the complaint described many claims, “ultimately, the settlement achieved focuses on a subset of defendants and allegations, and in particular…billing of physician assistants, the claims related to anti-kickback/Stark violations, and lastly claims that relate to unnecessary quantitative drug testing.”

“Even though the relator wanted to pursue the remaining defendants and numerous claims on her own, once the government reached a settlement with PMA and NSPC, the government stated that it would move to dismiss those defendants and claims in order to preserve the settlement it had reached with PMA and NSPC. Under those circumstances, and considering the defendants and the specific conduct covered by the settlement, the terms of the settlement reached with PMA and NSPC were fair and reasonable.”

The complete article can be accessed here.