The Department of Justice (DOJ) announced last month that Omnicare Inc., the nation’s largest nursing home pharmacy, has agreed to pay more than $28 million to resolve kickback allegations. The complaint alleged that Omnicare solicited and received kickbacks from Abbott in exchange for recommending that physicians prescribe an anti-epileptic drug, manufactured by Abbott, to nursing home residents. It appears that Omnicare signed agreements giving it larger rebates from Abbott based on how much Depakote it prescribed to patients. This conduct violated the False Claims Act (FCA) and the Anti-Kickback Statute (AKS).
The AKS prohibits paying kickbacks to induce referrals for services that are paid by Federal health care programs. In Lance Gould’s book, Whistleblowers: A Brief History & A Guide to Getting Started, he explains:
The AKS arose out of Congressional concern that payoffs to those who can influence health care decisions corrupt professional health care decision-making. These actions could result in Federal funds being diverted to pay for goods and services that are medically unnecessary, of poor quality, or even harmful to a vulnerable patient population.
The agreement made between Abbott and Omnicare put an already vulnerable population at an even greater risk. Concerning this case, Principal Deputy Assistant Attorney General Benjamin C. Mizer stated, “Every day, elderly nursing home residents suffering from dementia rely on the independent judgement of our nation’s healthcare professionals for their personal care and their medical treatment. Kickbacks to entities making drug recommendations compromise their independence and undermine their role in protecting nursing home residents from the use of unnecessary drugs.”
One way Omnicare was disguising its kickbacks was through its “Re*View” program. The complaint alleged that Re*View was a program designed to solicit kickbacks from pharmaceutical manufacturers in exchange for Omnicare’s use of the manufacturer’s drugs on nursing home patients. In internal documents, Omnicare referred to Re*View as its “one extra script per patient” program. As a result of these kickbacks, the government intervened in the FCA suit, and Omnicare agreed to settle by paying $20.3 million to the United States and $7.8 million to the states participating in the lawsuit.
The lawsuits were filed under the qui tam provision of the FCA, which provides an avenue for ordinary citizens to blow the whistle on fraud and file suit on behalf of the United States. The qui tam provision includes incentives for individuals to step forward and blow the whistle. These whistleblowers, also known as relators, are entitled to protection against retaliation and 15 to 30 percent of the monies recovered by the government. The two whistleblowers in this particular case will split $3 million for their assistance in the case.
Are you aware of fraud being committed against the federal government, or a state government? If so, the FCA can protect and reward you for doing the right thing by reporting the fraud. If you have any questions about whether you qualify as a whistleblower, contact Andrew Brashier, a lawyer on the Whistleblower litigation team at Beasley Allen, for a free and confidential evaluation of your claim at Andrew.Brashier@beasleyallen.com. You can also contact Beasley Allen for a free copy of Lance Gould’s book, Whistleblowers: A Brief History & A Guide to Getting Started.
Sources: Law360.com, U.S. Department of Justice
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