On October 22, 2021, the U.S. Department of Justice (“DOJ”) announced a settlement agreement with two pain management physicians relating to medically unnecessary urine drug testing. 

According to the government, the settlement stems from a False Claim Act (“FCA”) lawsuit filed under the qui tam provisions of the FCA.  The FCA prohibits any person from knowingly presenting, or causing to be presented, a false or fraudulent claim for payment to the federal government.  And under the qui tam provisions of the FCA, whistleblowers (also known as relators) may bring cases on behalf of the government, who may takeover, or intervene, in the case.   

In this case, the government alleged that Dr. Brannon Frank and Dr. Robert Wills, part owners of Robert P. Wills, M.D., P.A., d/b/a Austin Pain Associates, ordered and billed federal and state health care programs for medically unnecessary urine drug tests without individualized assessments of patient need.  The government highlighted Austin Pain Associates’ in-house laboratory.  According to the settlement agreement, the government alleges that Dr. Frank and Dr. Wills knew the in-house laboratory was testing urine samples for too many metabolites.  The government also alleges that the providers knew that Austin Pain Associates would not have survived without the income generated from the in-house laboratory.  

As part of the settlement agreement, Dr. Frank will pay to the United States and Texas approximately $1.8m.  Dr. Wills will pay approximately $2.1m.  The FCA is a uniquely strong enforcement tool, in part, due to its qui tam provisions.  Under the FCA’s qui tam provisions, relators are granted financial incentives and procedural mechanisms to bring FCA cases on behalf of the government.  Whistleblowers are entitled to 15% to 30% of the money the government recovers, based on several factors.  In this case, the relators will receive approximately $305,000 from the federal government and Texas for claims brought against Dr. Frank and approximately $357,000 for claims brought against Dr. Wills.    

The qui tam action was filed in the United States District Court for the Western District of Texas and is captioned United States and the State of Texas ex rel. Nuessner and Hoffman v. Austin Pain Associates, LLC, et al., 5:16-CV-1125-FB.

The attorneys at Chilivis Grubman represent both companies and individuals in connection with government investigations, both criminal and civil, and in False Claims Act litigation.  If you have any questions related to such matters, please contact us today.