McHugh v. Tawfik et al

Middle District of Florida, flmd-8:2016-cv-01126

COMPLAINT against Citrus Diabetes Treatment Center, LLC, Eihab H. Tawfik, Eihab Tawfik with Jury Demand (Filing fee $ 400 receipt number TPA36555) filed by Colleen McHugh.

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í 8 Pageld 1 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION UNITED STATE OF AMERICA and THE STATE OF FLORIDA, ex rel. COLLEEN MCHUGH, Plaintiffs, Case No. 8:16 cul126733AE EIHAB TAWFIK, M.D., EIHAB H. TAWFIK, M.D., P.A., and CITRUS DIABETES TREATMENT CENTER, FILED IN CAMERA AND UNDER SEAL LLC, Defendants. JURY TRIAL DEMANDED COMPLAINT On behalf of the United States of America, the State of Florida and herself, Relator Colleen McHugh ("Relator") files this qui tam complaint against Eihab Tawfik M.D ("Dr. Tawfik"), Eihab H. Tawfik, M.D., P.A., and Citrus Diabetes Treatment Center, LLC, d/b/a Christ Medical Center ("CMC") (collectively "Defendants"), and alleges as follows: INTRODUCTION 1. This is a civil action to recover damages and penalties on behalf of the United States of America arising from false and fraudulent records, statements, or claims, or any combination thereof, made, used, caused to be used or presented by the Defendants, their agents, employees, or any SU $400 TRA-36555 8 PageID 2 combination thereof, in violation of the Federal False Claims Act ("FCA"), 31 U.S.C. § 3729 et seq. and the Florida False Claims Act ("Florida FCA"), Fla. Stat. $$ 68.081-68.092. 2. The FCA and the Florida FCA allow an individual known as the relator, or whistleblower, to file an action on behalf of the government for violations of the FCA and/or Florida FCA and receive a portion of any recovery as an award to the qui tam plaintiff. 31 U.S.C. § 3730; Fla. Stat. $$ 68.083-084. Under the FCA and Florida FCA the Complaint must be filed under seal (without service on the defendants) to enable the government to conduct its own investigation without the defendants' knowledge and to allow the government an opportunity to intervene in the action. 3. Defendants submitted or caused to be submitted false claims and false statements that were material to payments made to Defendants by the Medicare and Florida Medicaid programs. It is estimated that the fraud perpetrated by the Defendants has cost the United States and the state of Florida millions of dollars for healthcare claims that were unnecessary and not eligible for reimbursement. Defendants' violations of the FCA and Florida FCA began prior to January 1, 2012 and are ongoing. JURISDICTION AND VENUE 8 PageID 11 38. Defendants customarily encouraged and incentivized the over prescription of in-house services by tracking and rewarding employees based upon the tests and other healthcare services and items ordered by the employees. 39. During a meeting of the CMC radiology department on March 31, 2015, Dr. Tawfik instructed employees to "get all patients in for testing." These tests include MRIs, CT scans, and nuclear tests. Dr. Tawfik also instructed the staff to call pain management patients, reschedule their appointments, and tell them they needed to come in for testing before their pain management appointments. 40. During a July 16, 2013 meeting, at which Dr. Tawfik and other CMC employees were present, the meeting minutes indicate that "diagnosis problems especially come into play with the tests. Many times there are no (diagnosis) codes on the notes to support the test being done and the paperwork has to be given to Paula to address." The meeting minutes also indicate that CMC billed $23,000 for radiology, but there is a "big problem" with the diagnoses because "[notes of prior visits do not support the need for the test and no order accompanying same is giving (diagnoses) to file the claim." 41. Relator, who worked at CMC, was also a patient at CMC. During the course of her employment, and through her experience as a patient, she Case 8:16-CV-01126-VMCSAEP Document 1 Filed 05/06/16page 12 of 28 PageID 12 has observed Dr. Tawfik knowingly engaging in a practice of over prescribing ancillary healthcare services provided by CMC. 42. Relator estimates that over 2/3 (66.67%) of the medical tests ordered by Defendants and billed to Medicare were not medically necessary and based upon fabricated patient records and diagnoses. A summary of the claims that Defendants submitted to and paid by Medicare are for fiscal years 2012 and 2013 are attached here to as Exbibit A. B. Intentional Destruction of Patient Records 43. In June 2015, Dr. Tawfik instructed an employee of CMC to destroy CMC patient records from 2013 through the present that were being kept at a storage united located Kings Bay Self Storage, 7957 W Gulf to Lake Highway, Crystal River, Florida. 44. On information and belief, Dr. Tawfik knowingly ordered these patient records destroyed in order to conceal and retain payments from Medicare and Florida Medicaid that he knew were improperly paid to Dr. Tawfik and CMC. C. Submitting Charges on Different Practitioners' NPI Numbers to Avoid Credentialing Requirements 45. Dr. Tawfik routinely submitted and instructed his employees to submit charges for healthcare services to Medicare and Medicaid under a different healthcare practitioner's NPI because the provider that performed or 8 PageID 13 supervised the service was not credentialed with the beneficiaries' insurer or healthcare plan. 46. On or around May 15, 2013, a CMC employee sent an email to Dr. Tawfik confirming Dr. Tawfik's instructions that for commercial insurance, CMC would indicate that Dr. Tawfik was the provider who actually saw the patient or performed the service. For Medicare, CMC employees were instructed to bill all charges under physicians who are credentialed with Medicare (at the time it was only Dr. Tawfik) regardless of which physician actually saw the patient. The email specifically noted that the other physicians at CMC were not credentialed with Medicare or Medicaid. Dr. Tawfik replied that this was "correct." 47. On or around June 10, 2013, Dr. Tawfik sent an email to his billing staff to submit Medicare and Medicaid claims for services performed by a Dr. Hoffman, who was not credential under Medicare or Medicaid, under Dr. Tawfik's NPI. Even though CMC employees indicated that this would be improper, Dr. Tawfik instructed his staff to "[s]ubmit, if denied it is a write off." 48. On or around February 14, 2014, a billing supervisor for CMC sent an email stating that even though former CMC physician "Dr. M. Ali" had not worked at CMC since July 2013, Dr. Tawfik's instructions to CMC staff Case 8:16-CV-01126-VY AEP Document 1 Filed 05/06/16-page 14 of 28 PageID 14 were to continue billing under Dr. Ali. The email expressed concern that Dr. Ali may be working elsewhere. D. Examples of False Claims 49. In August 2013, CMC billed Medicaid for patient G.B. CMC improperly used diagnosis codes 780.4 (dizziness and giddiness) and 388.31 (subjective tinnitus) to justify charges for nine different tests that were billed to Medicaid, resulting in false claims for approximately $1,271.00 in reimbursement. Handwritten notes by CMC's billers indicate that the "wrong" diagnosis codes were documented for these tests, so the biller had to bill for balance testing instead of a "Vasocor" test. 50. In September 2013, CMC personnel created a special studies sheet for Medicare patient P.S. CMC used an internally developed billing sheet titled "special studies" to prescribe and track tests given to patients. The special studies document lists approximately 30 medical tests and procedures that CMC instructed its employees to routinely prescribe and bill to Medicare and Medicaid. This document indicates that the patient had received "Dexa Scan" and "Vasocor" tests on September 6, 2013; imaging tests including a Carotid Doppler, Renal Ultrasound, Abdominal Ultrasound, Venous Ultrasound, Aortic Ultrasound, Thyroid Ultrasound, and Arterial Duplex-Lower Extremity on September 12, 2013. For the patient's next appointment, the sheet indicated that the patient should receive "AFT" and 14 8 Pageld 15 "EP" tests (blood tests), as well as balance testing and a two part sleep study. Claims for these tests, which CMC routinely provided without evidence of medical necessity, were submitted to Medicare for reimbursement by CMC. 51. In or around April 2013, CMC administered unnecessary tests to Medicaid patient R.R. CMC submitted a claim to Florida Medicaid for Carotid Ultrasound, procedure code 93880, in the amount of $590.00. CMC's own internal notes indicate that there was no diagnosis or documentation to support the medical necessity of this test. COUNT I: PRESENTMENT OF CLAIMS IN VIOLATION OF THE FEDERAL FALSE CLAIMS ACT (31 U.S.C. $ 3729(a)(1)(A)) 52. Relator re-alleges and incorporates by reference the allegations contained in paragraphs 1 through 51 as if fully stated in this Count. 53. This is a claim for treble damages and civil penalties under the False Claims Act, 31 U.S.C. $ 3729(a)(1)(A). 54. By virtue of the acts described above, Defendants knowingly presented or caused to be presented to the United States Government false or fraudulent claims. 55. Such claims were false or fraudulent because the Defendants falsely submitted, or caused to be submitted, claims for Medicare and Medicaid reimbursement that were medically unnecessary and based upon patient records that were knowingly false. Case 8:16-CV-01126-VM AEP Document 1 Filed 05/06/16 Page 16 of 28 Pageld 16 56. By knowingly, willfully or recklessly presenting, or causing other to present, false claims for payment to the United States, Defendants have defrauded the United States in contravention of the False Claims Act, 31 U.S.C. § 3729(a)(1)(A), to the damage of the treasury of the United States of America, by causing the United States to pay out money that it was not obligated to pay. In carrying out these wrongful acts, Defendant has engaged in a protracted course and pattern of fraudulent conduct that was material to the United States' decision to pay these false claims. 57. As a direct and proximate result of Defendants' fraudulent and/or illegal actions and pattern of fraudulent conduct, the United States has paid directly or indirectly thousands of false claims that it would not otherwise have paid. 58. Damages to the United States include, but are not limited to, three times the full value of all such fraudulent claims. 59. Each and every such fraudulent claim is also subject to a civil fine under the False Claims Act of five thousand five hundred to eleven thousand dollars ($5,500 - $11,000). COUNT II: FALSE STATEMENTS IN VIOLATION OF THE FEDERAL FALSE CLAIMS ACT (31 U.S.C. $ 3729(a)(1)(B)) 60. Relator re-alleges and incorporates by reference the allegations contained in paragraphs 1 through 51 as if fully stated in this Count. 16 8 Pageld 17 61. This is a claim for treble damages and civil penalties under the False Claims Act, 31 U.S.C. & 3729(a)(1)(B). 62. By virtue of the acts described above, Defendants made, used, and caused to be made and used, false records and statements that were material and caused or contributed to improper payments of federal funding to Defendants. 63. The United States, unaware of the falsity of the records, statements, and certifications paid for claims that would otherwise not have been allowed. 64. By knowingly, willfully or recklessly making, or causing others to make, false statements and certifications material to the United States' decision to pay on false claims, Defendants have defrauded the United States in contravention of the False Claims Act, 31 U.S.C. § 3729(a)(1)(B), to the damage of the treasury of the United States of America, by causing the United States to pay out money that it was not obligated to pay. In carrying out these wrongful acts, Defendants have engaged in a protracted course and pattern of fraudulent conduct that was material to the United States' decision to pay these false claims. 65. As a direct and proximate result of Defendants' fraudulent and/or illegal actions and pattern of fraudulent conduct, the United States has paid directly or indirectly false claims that it would not otherwise have paid. 17 Case 8:16-CV-01126-VMQAEP Document 1 Filed 05/06/16Rage 18 of 28 PageID 18 66. Damages to the United States include, but are not limited to, three times the full value of all such fraudulent claims. 67. Each and every such fraudulent claim is also subject to a civil fine under the False Claims Act of five thousand five hundred to eleven thousand dollars ($5,500 - $11,000). COUNT III: RETENTION OF OVERPAYMENTS IN VIOLATION OF THE FEDERAL FALSE CLAIMS ACT (31 U.S.C. $ 3729(a)(1)(G)) 68. Relator re-alleges and incorporates by reference the allegations contained in paragraphs 1 through 51 as if fully stated in this Count. 69. This is a claim for treble damages and civil penalties under the False Claims Act, 31 U.S.C. $ 3729(a)(1)(G). 70. By virtue of the acts described above, Defendants have knowingly concealed and/or knowingly and improperly avoided an obligation to transmit money to the federal government. 71. Once known, even if the improper payments were not fixed or clearly defined, Defendants had an obligation under Section 1128J(d) of the Social Security Act to remit or report such Federal funds to the Government within sixty days =. Defendants have not reported or returned the improper payments described herein. 72. By knowingly concealing and/or knowingly and improperly avoiding its obligation to transmit money recovered to the federal government, Defendants have defrauded the United States in contravention 18 Case 8:16-CV-01126-VM/CAEP Document 1 Filed 05/06/16 Page 19 of 28 PageID 19 of the False Claims Act, 31 U.S.C. § 3729(a)(1)(G), to the damage of the treasury of the United States of America, by causing the United States to be deprived of funds that rightfully belong to the government. 73. As a direct and proximate result of Defendants' fraudulent and/or illegal actions and fraudulent conduct, the United States has been deprived of funds to which it is lawfully entitled and which were improperly paid to Defendants. 74. Damages to the United States include, but are not limited to, three times the full value of all such fraudulent claims. 75. Each and every such fraudulent claim is also subject to a civil fine under the False Claims Act of five-thousand five hundred to eleven-thousand dollars ($5,500 - $11,000). COUNT IV: PRESENTMENT OF CLAIMS IN VIOLATION OF THE FLORIDA FALSE CLAIMS ACT (Fla. Stat. $ 68.082(2)(a)) 76. Relator re-alleges and incorporates by reference the allegations contained in paragraphs 1 through 51 as if fully stated in this Count. 77. By virtue of the acts described above, Defendants knowingly presented or caused to be presented to the Florida Medicaid Program false or fraudulent claims. 78. Such claims were false or fraudulent because the Defendants falsely submitted, or caused to be submitted, claims for Medicaid 19 8 Pageld 20 reimbursement that were medically unnecessary and based upon patient records that were knowingly false. 79. By knowingly, willfully, or recklessly presenting, or causing others to present, false claims for payment to the Florida Medicaid Program, Defendants have defrauded the state of Florida, causing it to make payments to Defendants that were not eligible for reimbursement. 80. As a direct and proximate result of Defendants' fraudulent and/or illegal actions and pattern of fraudulent conduct, Florida has paid directly or indirectly thousands of false claims that it would not otherwise have paid. 81. Damages to the Florida include, but are not limited to, three times the full value of all such fraudulent claims. 82. Each and every such fraudulent claim is also subject to a civil fine under the Florida False Claims Act of five thousand five hundred to eleven thousand dollars ($5,500 - $11,000). COUNT V: FALSE STATEMENTS IN VIOLATION OF THE FLORIDA FALSE CLAIMS ACT (Fla. Stat. § 68.082(2)(b)) 83. Relator re-alleges and incorporates by reference the allegations contained in paragraphs 1 through 51 as if fully stated in this Count. 84. By virtue of the acts described above, Defendants made, used, and caused to be made and used, false records and statements that were 20 Case 8:16-cv-01126-VM AEP Document 1 Filed 05/06/16 Page 21 of 28 PageID 21 material and caused or contributed to improper payments by the Florida Medicaid Program to Defendants. 85. The United States, unaware of the falsity of the records, statements, and certifications paid for claims that would otherwise not have been allowed. 86. By knowingly, willfully or recklessly making, or causing others to make, false statements and certifications material to the Florida Medicaid Program, Defendants have defrauded the state of Florida, causing it to make payments to Defendants that were not eligible for reimbursement. 87. As a direct and proximate result of Defendants' fraudulent and/or illegal actions and pattern of fraudulent conduct, Florida has paid directly or indirectly false claims that it would not otherwise have paid. 88. Damages to the Florida include, but are not limited to, three times the full value of all such fraudulent claims. 89. Each and every such fraudulent claim is also subject to a civil fine under the Florida False Claims Act of five thousand five hundred to eleven thousand dollars ($5,500 - $11,000). COUNT VI: RETENTION OF OVERPAYMENTS IN VIOLATION OF THE FLORIDA FALSE CLAIMS ACT (Fla. Stat. $ 68.082(2)(g)) 90. Relators re-allege and incorporate by reference the allegations contained in all previous paragraphs as if fully stated in this Count. 91. By virtue of the acts described above, Defendants have 8 PageID 22 knowingly concealed and/or knowingly and improperly avoided an obligation to transmit money to the Florida. Specifically, Defendants knew or should have known that they received payments from Florida Medicaid for claims that were not eligible for reimbursement. 92. Once known, even if the improper payments were not fixed or clearly defined, Defendants had an obligation to remit or report such funds to the Florida Medicaid Program within sixty (60) days. Defendants have not reported or returned the improper payments described herein. 93. Defendants further instructed their employees to destroy patient and business records in order to conceal the falsity of the improper payments Defendants received from the Florida Medicaid Program. 94. By knowingly concealing and/or knowingly and improperly avoiding its obligation to transmit money to the Florida, Defendants have illegally deprived Florida of funds to which the state was lawfully entitled and which were improperly paid to Defendants. 95. Damages to the Florida include, but are not limited to, three times the full value of all such fraudulent claims. 96. Each and every such fraudulent claim is also subject to a civil fine under the Florida False Claims Act of five-thousand five hundred to eleven-thousand dollars ($5,500 - $11,000). 8 PageID 23 WHEREFORE, Relator requests that judgment be entered against Defendants, ordering that: a. Defendants cease and desist from violating the FCA and Florida False Claims Act; b. Defendants pay not less than $5,500 and not more than $11,000 for each violation of the FCA and Florida FCA, plus three times the amount of damages the United States and state of Florida has sustained because of Defendants' actions; c. Relator is awarded the maximum amounts allowed pursuant to 31 U.S.C. § 3730(d) and Fla. Stat. $ 68.085; d. Relator is awarded all costs of this action, including attorneys' fees and costs pursuant to 31 U.S.C. § 3730(d) and Fla. Stat. $ 68.085; e. Defendants are enjoined from concealing, removing, encumbering, or disposing of assets which may be required to pay the civil monetary penalties imposed by the Court; f. Defendants disgorge all sums by which they have been enriched unjustly by their wrongful conduct; g. The United States, the state of Florida, and Relator recover such other relief as the Court deems just and proper. 23 8 PageID 24 JURY DEMAND A trial by jury is hereby demanded. Dated: May 6, 2016. By: Ano WAGNER MCLAUGHLIN, P.A. Jason K. Whittemore jason@wagnerlaw.com 601 Bayshore Blvd., Suite 910 Tampa, FL 33606 Phone: (813) 225-4000 Fax: (813) 225-4010 Florida Bar No. 0037256 LEVY KONIGSBERG, LLP Alan J. Konigsberg akonigsberg@levylaw.com (seeking admission pro hac vice) Brendan E. Little blittle@levylaw.com (seeking admission pro hac vice) 800 Third Ave., 11th Floor New York, NY 10022 Phone: (212) 605-6200 Fax: (212) 605-6290 Attorneys for the Relator 24 8 PageID 25 Exhibit 1 - Eihab Tawfik, M.D. Medicare Claims 2012 Procedure Code 99214 95004 HCPCS Description Established patient office visit (25 minutes) Injection of allergenic extracts into skin for immediate reaction analysis No. of Claims Avg. Payment 2210 $79.03 25332 $5.10 Total Payment $174,665.95 $129,150.36 17004 95904 Destruction of multiple skin growths Needle measurement and recording of nerve sensory (feel) function 731 1964 $133.18 $43.73 $97,358.15 $85,891.79 95903 1214 $58.39 $70,882.81 95922 637 $81.21 $51,729.63 637 95921 95810 93306 Needle measurement, rate, and recording of nerve motor (movement) function, with F-wave study Testing of autonomic (sympathetic) nervous system function at least 5 minutes of tilt Testing of autonomic (sympathetic) nervous system function Sleep monitoring of patient in sleep lab Ultrasound examination of heart including color-depicted blood flow rate, direction, and valve function Glaucoma testing of eye fluid pressure Established patient office or other outpatient visit, typically 15 minutes 65 $65.85 $503.81 $164.06 $41,948.12 $32,747.34 $32,318.98 197 637 92140 99213 $47.56 $55.28 $30,293.70 $28,858.12 522 78452 74 $386.64 $28,611.06 93978 93925 93880 Nuclear medicine study of vessels of heart using drugs or exercise multiple studies Ultrasound scan of vena cava or groin graft or vessel blood flow Ultrasound study of arteries and arterial grafts of legs Ultrasound scanning of head and neck vessel blood flow (outside the brain) New patient office or other outpatient visit, typically 45 minutes 194 200 186 $143.20 $137.78 $139.18 $27,780.71 $27,555.45 $25,887.01 99204 212 $121.42 $25,740.85 95250 93970 184 147 $118.98 $143.08 $21,892.39 $21.033.10 39 95811 76700 76770 92546 180 183 Ambulatory continuous glucose (sugar) monitoring Ultrasound scan of veins of arms or legs including assessment of compression and functional maneuvers Sleep monitoring of patient in sleep lab Ultrasound of abdomen Ultrasound behind abdominal cavity Assessment and recording of abnormal eye movement with patient in a rotating chair Ultrasound of head and neck Technetium tc-99m sestamibi, diagnostic, per study dose Measurement and graphic recording of the amount and speed of breathed air, before and following medication administration $533.07 $104.72 $101.95 $77.81 $20,789.83 $18,849.72 $18,657.73 $15,795.96 203 140 76536 A9500 94060 82 159 $94.92 $92.30 $44.50 $13,288.38 $7,568.78 $7,075.66 99212 Established patient office or other outpatient visit, typically 10 minutes 211 $32.15 $6,783.64 95934 111 $55.41 $6,151.05 92543 $15.07 $6,089.03 92542 Measurement and recording of nerve conduction patterns of lower leg muscles Assessment and recording of balance system during irrigation of both ears Observation and recording from multiple positions of abnormal eye movements Thallium tl-201 thallous chloride, diagnostic, per millicurie Exercise or drug-induced heart and blood vessel stress test with EKG monitoring, physician supervision, interpretation, and report 187 $28.21 $5,275.00 201.2 A9505 93015 $26.10 $69.01 $5,251.48 $5,106.67 74 99354 93040 69 450 $73.88 $10.43 $5,097.92 $4,691.86 Prolonged office or other outpatient service first hour Tracing of electrical activity of heart using 1-3 leads with interpretation and report Destruction of skin growth Use of vertical electrodes during eye or balance evaluation Assessment and recording of abnormal eye movement while tracking moving object 17000 92547 92545 73 961 $62.30 $4.56 $21.88 $4,547.96 $4,380.12 $4,069.02 186 8 Pageld 26 99203 New patient office or other outpatient visit, typically 30 minutes 45 $85.83 $3,862.49 94729 95251 95 116 $40.54 $33.14 $3,851.55 $3,844.01 11100 93923 94727 99223 97032 Measurement of lung diffusing capacity Ambulatory continuous glucose (sugar) including interpretation and report Biopsy of single growth of skin, tissue, or mouth Ultrasound study of arteries of legs with functional maneuvers Determination of lung volumes using gas dilution or washout Initial hospital inpatient care, typically 70 minutes per day Application of electrical stimulation to 1 or more areas, each 15 minutes $76.63 $126.13 $32.20 $159.28 $12.16 $3,831.72 $3,405.51 $3,091.56 $3,026.32 $2,845.04 19 234 99215 Established patient office or other outpatient, visit typically 40 minutes $112.40 $2,810.00 92541 20152 Observation and recording of abnormal eye movement Injection, adenosine for diagnostic use, 30 mg (not to be used to report any adenosine phosphate compounds; instead use a9270) $29.23 $87.10 $2,747.78 $2,700.24 94200 127 $18.94 $2,405.29 Measurement of largest amount of air breathed in an out of lungs over one minute Bone density measurement spine or hips using dedicated X-ray machine 77080 39 $61.02 $2,379.76 99239 17003 96372 Hospital discharge day management, more than 30 minutes Destruction of multiple skin growths Injection into tissue or muscle for therapy, diagnosis, or prevention 407 100 $83.27 $5.69 $18.87 $2,331.56 $2,316.57 $1,887.15 99211 Established patient office or other outpatient visit, typically 5 minutes 107 $13.32 $1,425.18 94640 91 $13.50 $1,228.14 Respiratory inhaled pressure or nonpressure treatment to relieve airway obstruction or for sputum specimen Routine electrocardiogram (EKG) with tracing using at least 12 leads 93005 107 $8.22 $879.21 116 85610 94250 Blood test, clotting time Single measurement of remaining air or lung capacity after exhalation $5.48 $20.98 $635.58 $461.56 22 144 36415 83036 11040 81002 Insertion of needle into vein for collection of blood sample Hemoglobin A1C level Injection, methylprednisolone acetate, 80 mg Urinalysis, manual test $3.00 $13.75 $5.23 $3.62 $432.00 $247.50 $68.04 $54.30 2013 Procedure Code 99214 HCPCS Description Established patient office or other outpatient, visit typically 25 minutes No. of Claims Avg. Payment 3446 $79.88 Total Payment $275,263.38 95872 892 $158.39 $141,287.06 Needle measurement and recording electrical activity of muscles including jitter blocking and/or fiber density using single electrode 95004 Injection of allergenic extracts into skin for immediate reaction analysis 24075 $5.32 $128.092.02 99354 95922 1508 740 $76.65 $83.30 $115,583.97 $61,638.98 Prolonged office or other outpatient service first hour Testing of autonomic (sympathetic) nervous system function at least 5 minutes of tilt Testing of autonomic (sympathetic) nervous system function Nerve transmission studies, 11-12 studies New patient office or other outpatient visit, typically 45 minutes 95921 95912 99204 739 250 372 $70.33 $203.44 $119.17 $51,975.76 $50,860.92 $44,331.58 99213 Established patient office or other outpatient visit, typically 15 minutes 746 $53.23 $39,706.02 92140 93924 95250 Glaucoma testing of eye fluid pressure Ultrasound study of arteries of legs at rest and exercise Ambulatory continuous glucose (sugar) monitoring 702 233 $49.86 $138.97 $125.30 $35,002.79 $32,381.09 $30,572.71 244 Case 8:16-CV-01126-VIACAEP Document 1 Filed 05/06/16 Rage 27 of 28 PageID 27 93880 209 $139.88 $29,235.68 95810 17004 92546 59 212 334 $492.74 $133.04 $81.65 $29,071.55 $28,204.42 $27,272.28 Ultrasound scanning of head and neck vessel blood flow (outside the brain) Sleep monitoring of patient (6 years or older) in sleep lab Destruction of multiple skin growths Assessment and recording of abnormal eye movement with patient in a rotating chair Ultrasound of abdomen Ultrasound study of arteries of legs with functional maneuvers Ultrasound scan of vena cava or groin graft or vessel blood flow Established patient office or other outpatient visit, typically 10 minutes 247 232 76700 93923 93978 99212 $105.73 $111.87 $143.46 $33.28 $26,115.38 $25,954.01 $21,518.37 $21,498.63 150 646 93970 141 $146.17 $20,609.73 Ultrasound scan of veins of arms or legs including assessment of compression and functional maneuvers Application of electrical stimulation to 1 or more areas, each 15 minutes 97032 1636 $12.37 $20,239.95 130 93925 95913 95811 Ultrasound study of arteries and arterial grafts of legs Nerve transmission studies, 13 or more studies Sleep monitoring of patient (6 years or older) in sleep lab with continued pressured respiratory assistance by mask or breathing tube $148.71 $235.92 $520.30 $19,332.83 $19,109.47 $18,730.93 93306 134 $138.61 $18,573.29 76770 76536 93922 96372 Ultrasound examination of heart including color-depicted blood flow rate, direction, and valve function Ultrasound behind abdominal cavity Ultrasound of head and neck Ultrasound study of arteries of legs Injection into tissue or muscle for therapy, diagnosis, or prevention 173 182 232 $103.59 $95.81 $71.85 $19.61 $17,920.83 $17,438.00 $16,668.32 $13,606.30 694 152 17000 78452 $63.99 $383.90 $9,726.86 $9,597.50 25 33 72148 73721 92543 53 676 $288.07 $173.84 $12.81 $9,506.19 $9,213.35 $8,656.70 Destruction of skin growth Nuclear medicine study of vessels of heart using drugs or exercise multiple studies MRI scan of lower spinal canal MRI scan of leg joint Assessment and recording of balance system during irrigation of both ears Use of vertical electrodes during eye or balance evaluation Ambulatory continuous glucose (sugar) including interpretation and report Technetium tc-99m sestamibi, diagnostic, per study dose Observation and recording from multiple positions of abnormal eye movements Bone density measurement spine or hips using dedicated X-ray machine 92547 95251 1650 216 $5.07 $33.75 $8,362.91 $7,290.90 A9500 92542 75 328 $92.39 $21.01 $6,929.61 $6,890.74 77080 137 $48.38 $6,627.68 95910 71020 40 239 20 328 $143.27 $23.40 $278.51 $16.53 $5,730.80 $5,592.66 $5,570.27 $5,423.32 72141 92545 187 73630 J2785 72110 92541 17003 73221 72052 99211 Nerve transmission studies, 7-8 studies X-ray of chest, 2 views, front and side MRI scan of upper spinal canal Assessment and recording of abnormal eye movement while tracking moving object X-ray of foot, minimum of 3 views Injection, regaderoson, 0.1 mg X-ray of lower and sacral spine, minimum of 4 views Observation and recording of abnormal eye movement Destruction of multiple skin growths MRI scan of arm joint arm joint X-ray of upper spine, 6 or more views Established patient office or other outpatient visit, typically 5 minutes 110 100 164 709 $25.24 $39.59 $38.95 $23.66 $5.39 $191.23 $47.74 $15.51 $4,720.35 $4,354.54 $3,894.68 $3,880.32 $3,824.37 $3,442.11 $3,293.99 $3,289.12 62311 $161.58 $3,070.06 Injection of diagnostic or therapeutic substances into upper or middle spine Established patient office or other outpatient, visit typically 40 minutes 99215 $105.00 $3,045.04 94729 Measurement of lung diffusing capacity 61 $42.42 $2,587.90 8 PageID 28 93015 $61.10 $2,321.98 Exercise or drug-induced heart and blood vessel stress test with EKG monitoring, physician supervision, interpretation, and report 71250 76942 $153.19 $153.93 $2,297.87 $2,155.00 CT scan chest Ultrasonic guidance imaging supervision and interpretation for insertion of needle Determination of lung volumes using gas dilution or washout CT scan leg New patient office or other outpatient visit, typically 60 minutes 94727 73700 99205 $33.78 $118.02 $151.33 $2,060.45 $2,006.38 $1,967.26 94060 $49.50 $1,880.98 Measurement and graphic recording of the amount and speed of breathed air, before and following medication administration 11721 70220 77012 $35.86 $30.45 $99.37 $1,864.84 $1,735.44 $1,689.29 73520 A9585 76856 94200 Removal of tissue from 6 or more finger or toe nails X-ray of paranasal sinus, complete, minimum of 3 views Radiological supervision and interpretation of CT guidance for needle Insertion X-ray of hip minimum 2 views Injection, gadobutrol, 0.1 ml Ultrasound of pelvis Measurement of largest amount of air breathed in an out of lungs over one minute X-ray of hip 2 or more views Needle biopsy of thyroid X-ray of shoulder, minimum of 2 views Imaging of abdomen Single measurement of remaining air or lung capacity after exhalation $33.16 $0.32 $97.52 $20.01 $1,658.04 $1,642.90 $1,365.28 $1,260.44 73510 60100 73030 74010 94250 $30.45 $85.86 $25.06 $29.92 $20.56 $1,217.91 $1,202.03 $1,177.86 $1,166.98 $1,151.22 97001 72170 73610 99203 Physical therapy evaluation X-ray of pelvis, 1 or 2 views X-ray of ankle, minimum of 3 views New patient office or other outpatient visit, typically 30 minutes $51.93 $23.02 $26.81 $72.35 $986.69 $966.71 $964.99 $940.50 36415 94010 $2.95 $27.86 $880.74 $808.08 99967 $0.14 $689.85 73130 72070 73110 11056 94640 Insertion of needle into vein for collection of blood sample Measurement and graphic recording of total and timed exhaled alr capacity Low osmolar contrast material, 300-399 mg/ml iodine concentration, per ml X-ray of hand, minimum of 3 views X-ray of middle spine, 3 views X-ray of wrist, minimum of 3 views Removal of 2 to 4 thickened skin growths Respiratory inhaled pressure or nonpressure treatment to relieve airway obstruction or for sputum specimen X-ray of both knees, standing, front to back view Routine electrocardiogram (EKG) with tracing using at least 12 leads $26.02 $26.85 $30.15 $46.42 $14.93 $676.52 $671.30 $663.30 $557.07 $552.36 73565 93005 $29.24 $7.78 $526.26 $497.96 94620 85610 73562 99406 Pulmonary exercise testing Blood test, clotting time X-ray of knee, 3 views Smoking and tobacco use intermediate counseling, greater than 3 minutes up to 10 minutes Injection, triamcinolone acetonide, not otherwise specified, 10 mg $44.55 $5.31 $30.32 $10.96 $490.05 $488.22 $454.78 $383.69 J3301 $1.38 $265.44 J1040 81002 G0436 Injection, methylprednisolone acetate, 80 mg Urinalysis, manual test Smoking and tobacco cessation counseling visit for the asymptomatic patient; intermediate, greater than 3 minutes, up to 10 minutes $4.33 $3.45 $4.28 $86.51 $75.97 $55.65 8 Pageld 3 4. This Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331 and 1345 and 31 U.S.C. § 3732(a). The underlying facts which support this Court's jurisdiction are set forth below in greater detail. 5. This Court has jurisdiction over the Relator's state law claims pursuant to 28 U.S.C. § 1367 and 31 U.S.C. § 3732(b). 6. Venue is proper in this district pursuant to 31 U.S.C. $ 3732(a) because Defendants are residents of this District and Defendants committed violations of 31 U.S.C. § 3729 in this District. DEFENDANTS 7. Defendant Eihab Tawfik, M.D., is a physician licensed to practice medicine in the states of Florida and Pennsylvania. Dr. Tawfik is the founder and principal owner of CMC. Dr. Tawfik's National Provider Identifier ("NPI") is 1609802792. 8. Defendant Eihab H. Tawfik, M.D., P.A. is a Florida corporation with its primary place of business located in Crystal River, Florida. Eihab H. Tawfik, M.D., P.A. is owned by Dr. Tawfik and does business as CMC. 9. Defendant Citrus Diabetes Treatment Center, LLC is a Florida limited liability company with its primary place of business in Crystal River, Florida 10. Defendants Eihab Tawif, M.D., Eihab H. Tawfik, M.D., P.A., and Citrus Diabetes Treatment Center, LLC all conduct business under the name 8 Pageld 4 casc. CMC. CMC is a multi-specialty medical facility that offers internal medicine, family practice, urgent care, podiatry, diagnostic imaging, and ophthalmology and cardiology services. CMC bills itself as a diabetes treatment center and also operates specialty programs that treat weight loss, sleeping disorders, and pain management. Notably, CMC provides a full range of diagnostic imaging and laboratory testing services. 11. Defendants Eihab Tawif, M.D., Eihab H. Tawfik, M.D., P.A., and Citrus Diabetes Treatment Center, LLC are collectively referred to herein as "CMC". 12. CMC operates at four locations in Florida. Its primary location is 765 W. Gulf to Lake Hwy, Crystal River, Florida and branch or satellite facilities are located at 3027 Landover Blvd., Spring Hill, Florida, 34471; 411 W. New England Ave., Winter Park, Florida, 32790; and 300 SE 17th St., Suite 1000, Ocala, Florida, 32371. RELATOR 13. The Relator, Colleen McHugh was formerly employed by Defendants as an administrative and marketing assistant. 14. As defined in 31 U.S.C. § 3730(e)(4)(B), Relator qualifies as the "original source" of the allegations made herein. Specifically, the violations alleged herein are based upon Relator's personal knowledge, expertise in the medical industry, and non-public information obtained by Relator during the 8 Pageld 5 course of her employment. Relator provided the information that forms the basis of the allegations made herein to the federal government prior to the filing of this Complaint and prior to any public disclosure of the violations alleged herein. THE GOVERNMENT PROGRAMS A. The Medicare Program 15. The Medicare Program was established by Congress in 1965 pursuant to Title XVIII of the Social Security Act. The Medicare Program provides health insurance for Americans that are 65 years of age and older, people under age 65 with certain disabilities, and people of all ages with end-stage renal disease. 16. The Medicare program is administered by the Centers for Medicare and Medicaid Services ("CMS"), a federal agency overseen by the United States Department of Health and Human Services. 17. Medicare is comprised of Parts A, B, C, and D. Specifically, Part B is medical insurance that covers and authorizes payment of federal funds for medically necessary health services, including outpatient hospital care, physician services, preventative care, laboratory, mental health care, certain home health care, and radiology ambulatory services. 42 U.S.C. § 1395k; 42 C.F.R $ 410.10. B. The Florida Medicaid Program 8 PageID 6 18. Medicaid is a joint federal-state program created in 1965 that provides health care benefits for certain groups, primarily the poor and disabled. The amount paid by the federal government is known as the Federal Medical Assistance Percentage ("FMAP") and is based on the state's per capita income compared to the national average. 42 U.S.C $ 1396d(b). 19. The Florida Medicaid program is administered by the Florida Agency for Health Care Administration (AHCA). C. Medical Necessity 20. Section 1862(a)(1)(A) of the Social Security Act states that no payment may be made (under the Medicare title for services] that are "not reasonable and necessary for the diagnosis or treatment of illness or injury or to improve the functioning of a malformed body member." 21. Generally, Medicare coverage is available for services that are considered to be reasonable and necessary under $1862(a)(1)(A) of the Social Security Act. Medicare does not cover services that are considered investigational or have no proven clinical benefit. 22. The guidelines for the integrity of the Florida Medicaid program are further outlined in § 409.913 Fla. Stat. (2015). Medical necessity and overpayment are specifically noted as follows: (d) "Medical necessity" or "medically necessary" means any goods or services necessary to palliate the effects of a terminal condition, or to prevent, diagnose, correct, cure, alleviate, or preclude deterioration of a condition that threatens life, causes 8 Pageld 7 pain or suffering, or results in illness or infirmity, which goods or services are provided in accordance with generally accepted standards of medical practice. For purposes of determining Medicaid reimbursement, the agency is the final arbiter of medical necessity. Determinations of medical necessity must be made by a licensed physician employed by or under contract with the agency and must be based upon information available at the time the goods or services are provided. (e) "Overpayment" includes any amount that is not authorized to be paid by the Medicaid program whether paid as a result of inaccurate or improper cost reporting, improper claiming, unacceptable practices, fraud, abuse, or mistake. $ 409.913 (d) and (e) Fla. Stat (2015). F. Medical Documentation 23. Medical providers that participate in the Medicare and Florida Medicaid programs have a duty to document and bill for those medical services in a truthful, timely, efficient, and accurate manner. 24. Defendants also have an obligation to maintain records to support the claims they submitted to Medicare and Florida Medicaid. 25. The Medicare or Florida Medicaid claims submitted by Defendants were accompanied by an express or implied certification that the transaction was in full compliance of federal or state statutes, regulations, or program rules. The Defendants, who are experienced health care providers, knew that submitting false and/or complete claims would not be eligible for reimbursement by Medicare or Florida Medicaid. DEFENDANTS MISCONDUCT 8 PageID 8 26. Defendants, at the direction of Dr. Tawfik, implemented a scheme to order unnecessary medical tests for patients at CMC. Dr. Tawfik instructed his employees at CMC to falsify patient records to indicate that patients had symptoms and complaints that did not exist. 27. Many of the tests and procedures, such as diagnostic imaging procedures, ultrasounds, and vascular studies, were performed on equipment purchased or leased by Defendants and billed under Defendants' NPI numbers as in-office procedures. 28. Dr. Tawfik employed approximately ten unlicensed medical assistants to perform several types of tests on patients. To generate more income and encourage unnecessary testing, Dr. Tawfik created a bonus or bounty system that paid weekly bonuses to the medical assistants who ordered and conducted the most tests. The medical assistants and other employees were instructed to fabricate patients' symptoms in order to justify the excessive and unnecessary tests. 29. As a result of Defendants' fraudulent conduct, Dr. Tawfik became the second highest paid Medicare internal medicine provider in the state of Florida in 2013. He ranks in the top 10% for average services provided to and paid per Medicare patient in the state of Florida yet he only has 846 Medicare patients. Defendant Dr. Tawfik was reimbursed 630% ($1952 versus $309) more per patient in 2012 than the state average for his specialty and he bills 8 Pageld 9 over ten times more (67.6 versus 6.2) services per patient than the state average. 30. The reimbursement Dr. Tawfik received from Medicare Part B during the 2012 and 2013 fiscal years is attached as Exhibit A. Of note, Dr. Tawfik ordered ultrasound examinations, nerve conduction studies, allergy testing, and balance testing on almost all of his patients. No other Medicare provider in the state of Florida ordered this frequency of testing. A. Dr. Tawfik Instructed His Staff to Fabricate Patient Symptoms To Justify Unnecessary Medical Tests 31. Defendants instructed their employees, primarily medical assistants, to create patient records that indicated a recurring list of symptoms that were not present. 32. Defendants required the medical assistants to document the tests that each employee ordered on a form created by Defendants. Defendants required their employees to submit this testing form at the end of each day. Defendants held a weekly meeting where Dr. Tawfik would review the testing volume ordered by the medical assistants. The medical assistants that ordered at least $300 in tests for their patients in a two week period were paid a bonus by Defendants that was equal to approximately $.50 per test ordered. 33. In order to ensure that the claims submitted to Medicare and Medicaid for reimbursement were paid, Defendants further instructed the 8 PageID 10 medical assistants to list diagnosis codes on patients' records that were not supported by the patients' complaints or condition. These diagnosis codes included abnormality of gait (ICD 781.2) and diabetic neuropathy (ICD 356.9). 34. Defendants specifically targeted Medicare and Medicaid patients because they knew that these programs would cover the tests so long as specific diagnosis codes were submitted with the testing claims. 35. Even though several employees of Defendants raised concerns that the claims they were submitting were not eligible for payment, Dr. Tawfik instructed the employees to submit the claims anyway and then resubmit the claims that were initially denied for payment as new claims. 36. Medical assistants were specifically instructed not to fabricate diagnoses and order unnecessary tests for certain private insurance or managed care plan patients, for example patients who are beneficiaries of the Freedom/Optimum Insurance Network, because it was known that these insurance plans would not pay for or audit the unnecessary testing claims. 37. Defendants further instructed the medical assistants to order unnecessary Durable Medical Equipment ("DME"), including back braces and wrist braces. Defendants paid their employees approximately $30 per paycheck for ordering these items, most of which were billed to Medicare or Florida Medicaid.