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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF GEORGIA

CIVIL DIVISION

:

UNITED STATES OF AMERICA, :

:

:

Plaintiff, :

: CIVIL ACTION

vs. :

:: NO.

ROBERT M. RITCHEA, M.D., :

:

:

Defendant. :

:

COMPLAINT

The United States of America alleges as follows:

NATURE OF ACTION

1. This is an action to recover treble damages and civil penalties under

the False Claims Act, 31 U.S.C. 3729-3733, and to recover all available

damages, restitution, and other monetary relief under the common law theories of

unjust enrichment, payment by mistake, and recoupment.

2. From 2004 through 2008, Defendant knowingly made, or caused to

be made, false claims for Medicare payments and submitted, or caused to be

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submitted, those false claims to the United States under the Medicare program.

Those false claims relate to Defendants administration of a pain treatment

protocol.

3. The claims at issue in this case are false because Defendant allowed

an unlicensed medical assistant to administer injections that are required to be

administered by a physician; assigned treatment codes improperly in order to

increase the amount of Medicare reimbursement he received; prescribed and

administered the pain treatment protocol in situations where it was not medically

necessary; and billed Medicare for procedures that were not reimbursable by

Medicare.

4. Defendant knowingly made, used, or caused to be made or used, false

records or statements material to false or fraudulent claims paid or approved by the

United States under the Medicare program. On each false claim submitted,

Defendant certified that the services reflected in the false claims were performed

as billed.

5. Due to Defendants submission of false claims to Medicare, and false

statements associated with those false claims, Defendant received payments from

the United States in excess of his entitlement.


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JURISDICTION

6. This Court has subject matter jurisdiction over this action pursuant to

28 U.S.C. 1331 and 1345.

7. The Court has supplemental jurisdiction to entertain the common law

causes of action under 28 U.S.C. 1367(a).

8. The Court may exercise personal jurisdiction over Defendant under

31 U.S.C. 3732(a) because Defendant transacted business in this District during

the relevant time frame.

VENUE

9. Venue is proper in this District under 31 U.S.C. 3732(a) and 28

U.S.C. 1391(b). Defendant transacted business in this District during the

relevant time frame and part of the events giving rise to the present claims

occurred in this District.

PARTIES

10. The United States of America brings this action on behalf of the

Department of Health and Human Services (HHS) and its component the Centers

for Medicare & Medicaid Services (CMS).


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11. Defendant Robert M. Ritchea is a physician licensed to practice in

Alabama and Georgia and is a Medicare provider. Defendant has a medical

practice in Phenix City, Alabama.

STATUTORY AND REGULATORY FRAMEWORK

False Claims Act

12. The False Claims Act imposes penalties and damages on any person

who knowingly presents, or causes to be presented, a false or fraudulent claim for

payment or approval or knowingly makes, uses, or causes to be made or used, a

false record or statement material to a false or fraudulent claim. 31 U.S.C.

3729(a)(1)(A), (B).

Medicare

13. Medicare is a federally funded program that provides health insurance

to people who are sixty-five years and older and people with qualifying

disabilities. 42 U.S.C. 426-426a, 1395o.

14. The United States administers the Medicare Program through HHS

and its component agency CMS.

15. One part of Medicare, known as Part B, covers physician and

outpatient services for eligible patients. 42 U.S.C. 1395(k)(a)(2).


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16. During the times relevant to this action, Defendant was a Medicare

provider. This means that Defendant, as a condition of participation in and

payment under the Medicare program, agreed to abide by Medicare laws,

regulations, and program instructions and that he would not knowingly submit

false claims for payment.

Medicare Reimbursement Claims

17. Medicare Part B is funded by insurance premiums paid by enrolled

Medicare beneficiaries and contributions from the federal treasury. 42 U.S.C.

1395j. Eligible individuals who are sixty-five or older, or disabled, may enroll

in Medicare Part B to obtain benefits in return for payments of monthly premiums

as established by HHS. 42 U.S.C. 1395j, o. However, payments under

Medicare Part B are often made directly to service providers, such as physicians,

rather than to the patient/beneficiary. This occurs when the provider accepts

assignment of the right to payment from the patient/beneficiary. 42 U.S.C.

1395u(b), (h). In that case, the provider bills the Medicare Program directly.

18. The United States provides reimbursement for Medicare claims from

the Medicare Trust Fund through CMS. To assist in the administration of the

Medicare Part B Program, CMS contracts with carriers. 42 U.S.C. 1395u.


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Carriers are responsible for processing the payment of Medicare Part B claims to

providers on behalf of CMS. At all times relevant to this action, CMS

administered the Medicare Part B program in Alabama and Georgia through

Cahaba Government Benefit Administrators, LLC.

19. In order to bill Medicare Part B, a provider must submit an electronic

or hard-copy claim form called a CMS 1500 form to the carrier. When the CMS

1500 is submitted, the provider certifies that the services for which payment is

sought were medically indicated and necessary for the health of the patient.

Providers wishing to submit the CMS 1500 electronically must first submit a

provider enrollment form.

20. Prior to submitting reimbursement claims electronically to the Part B

contractor, providers must agree that they will submit claims that are accurate,

complete, and truthful. Providers also must agree that the provider identification

number submitted on each reimbursement claim constitutes the providers

electronic signature and an assurance that the services were performed as billed.

21. Defendant submitted all relevant reimbursement claims electronically

to Cahaba.


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22. For a CMS 1500 claim to be paid by the Medicare Part B Program,

the claims must identify each service rendered to the patient/beneficiary by the

provider by a corresponding code for such services listed in the American Medical

Association (AMA) publication called the Current Procedural Terminology (CPT)

Manual. The CPT is a systematic listing of codes for procedures and services

performed by or at the direction of the physician. Each procedure or service is

identified by a five digit numeric CPT code. Medicare establishes a fee

reimbursement under Part B for each procedure described by a CPT code.

23. During all relevant times, Cahaba paid claims submitted for medical

reimbursement by Alabama Medicare providers, including claims submitted by

Defendant.

24. Cahaba made payments on those claims that appeared to be eligible

for reimbursement under the Medicare Part B Program.

25. Cahaba issued payments to Defendant on his claims from its Atlanta,

Georgia, office.

Medicare Reimbursement Requirements

26. Medicare statutes, regulations, and rules contain requirements

regarding whether coverage will be provided for medical services performed.


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Personal Performance of Injections

27. Medicare will not reimburse a practitioner for services provided by a

medical assistant if that assistant is not permitted to provide those services under

state law.

28. The Alabama Board of Medical Examiners does not permit a medical

assistant to perform joint injections.

Upcoding

29. Medicare will not reimburse a practitioner for upcoded procedures.

Upcoding occurs when a practitioner uses a CPT code that provides a higher

reimbursement rate than the CPT code that actually reflects the services provided

to the patient.

30. The AMA publication that lists and describes the CPT codes instructs

providers to select a CPT code that accurately identifies the service performed.

31. Additionally, when a physician electronically submits a claim for

reimbursement to Medicare, the physician certifies that the services reflected in

that claim (identified by CPT code) were performed as billed.


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Medical Necessity

32. Medicare will not reimburse a practitioner for services that are not

medically necessary. 42 U.S.C. 1395y(a)(1)(A).

ALLEGATIONS

33. From 2004 through 2008, Defendant received reimbursement from

Medicare for administering a pain treatment protocol that Defendant licensed from

Outcome Medical Licensing, LLC (OML).

34. OML is a company that develops treatment protocols for chronic

pain. Its principal place of business is in Fayetteville, Georgia.

35. After developing a pain treatment protocol, OML marketed its

protocol to physicians and entered into licensing agreements with physicians who

wanted to use the protocol in their practice.

36. On March 1, 2004, Defendant and OML entered into a Licensing

Agreement in which OML granted Defendant the right to use an OML pain

treatment protocol that consisted of injections of a local anesthetic, hydromassage,

and electrical stimulation.

37. Defendant paid OML a fee to use the protocol in his practice and to

lease equipment to use in administering the pain protocol.


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38. The materials Defendant received from OML regarding the protocol

included CPT codes to use when seeking reimbursement from Medicare for

administering the protocol.

39. The CPT codes listed in OMLs materials characterized the injections

as nerve blocks, which have five-digit CPT codes that begin with 644.

40. Defendant began prescribing and administering OMLs pain

treatment protocol in his Phenix City, Alabama, practice in or about March 2004.

Performance of Injections

41. From March 2004 through at least the end of November 2005,

Defendant allowed an unlicensed medical assistant to administer the injections

associated with the protocol.

42. Defendant did not inform Medicare that the unlicensed medical

assistant administered the injections. Instead, the claims submitted by Defendant

to Medicare stated that Defendant administered the injections.

43. During this same time period, radiographic imaging with guidance

was not used to place the needle when administering these injections. This was

required by Medicare for the majority of the types of injections administered as

part of OMLs pain treatment protocol.


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44. Defendant sought and received reimbursement from Medicare for

these injections using CPT codes 64410, 64412, 64420, 64445, 64470, 64472,

64475, 64476, 64479, 64480, 64483, and 64484.

Upcoding

45. From 2004 through 2008, the injections performed in Defendants

medical practice as part of OMLs pain treatment protocol that Defendant

characterized as nerve blocks were not nerve blocks, but rather, a type of

injection with a lower Medicare reimbursement rate. A nerve block is an injection

into the nerve root in the facet joint of the vertebra, while the OML protocol

consisted of muscle injections. A nerve block requires inserting a needle into

deeper tissues than the OML procedure.

46. Defendant sought and received reimbursement from Medicare for

these injections using the nerve block CPT codes 64410, 64412, 64420, 64445,

64470, 64472, 64475, 64476, 64479, 64480, 64483, and 64484.

Medical Necessity

47. From 2004 through 2008, Defendant prescribed and administered

OMLs pain treatment protocol in situations where it was not medically necessary,


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for example, by administering the protocol to patients diagnosed with

fibromyalgia.

48. Defendant sought and received reimbursement from Medicare for the

injections that were part of OMLs pain treatment protocol using CPT codes

64410, 64412, 64420, 64445, 64470, 64472, 64475, 64476, 64479, 64480, 64483,

and 64484.

Other Non-Reimbursable Services


hydromassage that was part of OMLs pain treatment protocol using CPT codes

97110, 97112, and 97140. Although Medicare will reimburse for some aspects of

hydrotherapy, it involves total immersion of the body or body part requiring

treatment into a water tank or bath. Defendant used hydromassage, which is

achieved by positioning the patient on a water massage table. The water massage

table includes a vinyl sheath containing water jets that, when activated, perform a

massage action. Hydromassage is not hydrotherapy and is not reimbursable by

Medicare.


electrical stimulation that was part of OMLs pain treatment protocol using CPT


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codes 97016 and 97032. Electrical stimulation therapy can be reimbursed by

Medicare when utilized in conjunction with other physical therapy services such

as therapeutic exercises. It is not covered as physical therapy when it is the sole

modality being utilized. Defendant did not employ a physical therapist, nor were

other therapy services provided in conjunction with his electrical stimulation

claims.

Investigations by State Medical Boards

51. The Alabama State Board of Medical Examiners and the Georgia

Composite State Board of Medical Examiners investigated Defendants use of

OMLs pain treatment protocol.

52. On January 30, 2008, Defendant entered into a Stipulation and

Consent Order with the Alabama State Board of Medical Examiners in Case

No. 07-025.

53. In the Stipulation and Consent Order, Defendant admitted that,

beginning in 2001 and continuing through at least 2006, he prescribed a pain

treatment protocol that was not medically necessary and a medical assistant, with

his knowledge and approval, administered the injections that were part of the

protocol.


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54. Specifically, Defendant admitted that he over prescrib[ed] and over

utiliz[ed], without medical justification the pain treatment protocol. Defendant

also admitted that he [u]s[ed] an assistant to administer the injections instead of

doing so himself.

55. On February 5, 2009, Defendant entered into a Public Consent Order

with the Georgia Composite State Board of Medical Examiners in Docket

No. 20090044.

56. The Georgia Public Consent Order is based on the same facts as the

Alabama Stipulation and Consent Order. Defendant again admitted that he

overprescrib[ed] and overutliz[ed], without medical justification, a pain

treatment protocol and that he us[ed] an assistant to administer th[e] injections

[that were part of the pain protocol] instead of doing so himself.

SPECIFIC FALSE CLAIMS AND STATEMENTS

57. As set forth above, between 2004 and 2008, Defendant knowingly

submitted, or caused to be submitted, false claims for payment to the Medicare

program in violation of 31 U.S.C. 3729.

58. The claims were false because Defendant sought reimbursement for

(1) injections that were administered by an unlicensed medical assistant;


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(2) upcoded injections; (3) administration of a medically unnecessary pain

treatment protocol; and (4) procedures that were not reimbursable by Medicare.

59. The false claims for which Defendant received reimbursement are

listed in Exhibit A. Exhibit A provides the claim number, date of service, total

amount paid by Medicare to Defendant on each claim, and amount paid by

Medicare to Defendant for each CPT code on each claim. Each of the claims

listed in Exhibit A is for services provided in Defendants Phenix City, Alabama,

office.

60. The electronic claims Defendant submitted to Medicare for

reimbursement contained the material false statement that the services were

performed as billed.

61. Based on Defendants false claims and statements, the Medicare

program paid the claims listed in Exhibit A.

62. As a result, Defendant received substantial overpayments from the

United States, and the United States incurred damages due to these payments.


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COUNTS

COUNT I

False Claims Act, 31 U.S.C. 3729(a)(1)(A)

63. Plaintiff incorporates by reference the allegations made in Paragraphs

1 through 62 of this Complaint.

64. Through the acts described above, Defendant knowingly presented, or

caused to be presented, false or fraudulent claims for payment or approval to the

United States under the Medicare program in violation of 31 U.S.C.

3729(a)(1)(A). The false or fraudulent claims are listed in Exhibit A.

65. Due to the presentation of false or fraudulent claims, the United

States reimbursed Defendant for services that it otherwise would not have.

66. By reason of Defendants false or fraudulent claims, the United States

suffered damages and therefore is entitled to treble damages under the False

Claims Act, to be determined at trial, plus a civil penalty for each violation.

COUNT II

False Claims Act, 31 U.S.C. 3729(a)(1)(B)




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68. Defendant knowingly made, used, or caused to be made or used, false

records or statements material to false or fraudulent claims paid or approved by the

United States under the Medicare program in violation of 31 U.S.C.

3729(a)(1)(B).

69. Due to Defendants use of false records or statements, the United

States reimbursed Defendant for services that it otherwise would not have.

70. By reason of Defendants false records or statements, the United

States suffered damages and therefore is entitled to treble damages under the False

Claims Act, to be determined at trial, plus a civil penalty for each violation.

COUNT III

Unjust Enrichment



72. The United States paid Defendant under the Medicare program for

claims that had been submitted for services that were not properly payable.

73. By causing the United States to pay reimbursement for such falsely

billed services, and by the receipt of these dollars, Defendant was unjustly


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enriched to the detriment of the United States in an amount to be determined at

trial.

COUNT IV

Payment by Mistake



75. The false claims that Defendant submitted to the United States were

paid based on mistaken or erroneous understandings of material fact.

76. The United States, acting in reasonable reliance on the accuracy and

truthfulness of the information contained in the claims, paid Defendant money to

which he was not entitled. Defendant is thus liable to account and pay these

amounts to the United States in an amount to be determined at trial.

COUNT V

Common Law Recoupment



78. The payments made by the United States to Defendant as a result of

the false claims were payments unlawfully paid contrary to statute or regulation.


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79. The United States paid Defendant money to which he was not

entitled, and Defendant is thus liable under the common law of recoupment to

account and return such amounts to the United States in an amount to be

determined at trial.

PRAYER FOR RELIEF

Wherefore, the United States demands judgement be entered in its favor and

against Defendant as follows:

A. On Counts I and II, for violations of the False Claims Act, in an

amount equal to three times the amount of damages the United States has

sustained as a result of Defendants actions, as well as civil penalties as allowed

by law, together with such further relief as may be just and proper.

B. On Counts III, IV, and V, for unjust enrichment, payment by mistake,

and common law recoupment, for the damages sustained, amounts by which

Defendant was unjustly enriched, or amounts that Defendant retained illegally,

plus interest, costs, and expenses, and such further relief as may be just and

proper.


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JURY DEMAND

Pursuant to Rule 38 of the Federal Rules of Civil Procedure, Plaintiff United

States hereby demands trial by jury.

Dated: August 2, 2010

Respectfully submitted,

SALLY QUILLIAN YATES

UNITED STATES ATTORNEY

/s/ Christopher J. Huber

CHRISTOPHER J. HUBER

ASSISTANT U.S. ATTORNEY

Georgia Bar No. 545627

600 Richard B. Russell Federal Bldg.

75 Spring Street, S.W.

Atlanta, Georgia 30303

Telephone: (404) 581-6292

Facsimile: (404) 581-6181Email: [email protected]

LENA AMANTI*

ASSISTANT U.S. ATTORNEY

600 Richard B. Russell Federal Bldg.

75 Spring Street, S.W.

Atlanta, Georgia 30303

Telephone: (404)581-6225

Facsimile: (404) 581-6163Email: [email protected]

*Admitted to practice pursuant to L.R. 83.1(A)(3).

Counsel for United States of America


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