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Whistleblower Lawsuit
By Colin Ross and David Stout | July 5, 2022 1:58 pm

The Department of Justice is investigating allegations that a national pain medication monitoring company defrauded taxpayers through fraudulent billing practices.

In a little-noticed lawsuit filed in federal court in Massachusetts in 2009, a whistleblower alleged that Millennium Laboratories of San Diego engaged in a conspiracy to defraud government health programs, including Medicare and Medicaid. The suit claims that Millennium encouraged thousands of doctors and health care providers to bill for drug testing services that they didn’t provide, or which should have been billed at a lower rate. Fourteen states and the District of Columbia are also looking into the suit’s allegations.

Millennium conducts urinary drug tests of patients who have been prescribed opioids or other prescription pain medication. The tests help doctors measure whether the patients are receiving adequate medication. They are also a tool to fight prescription drug abuse, by helping doctors identify patients who may be selling their medication for profit.

The federal government hasn’t formally joined the whistleblower lawsuit - a step that would greatly enhance the suit’s prospects — but the Justice Department wrote in a court document that it continues to probe. “The Government’s investigation will continue,” the filing by the Massachusetts United States Attorney’s office said. A civil summons was served on Millennium by the court on June 14.

Millennium Vice President of Marketing Renee Bryan said that the company would respond in a court of law and would not comment further on ongoing litigation.

The 60-page complaint was filed by a whistleblower named Robert Cunningham, who died last year. Cunningham is described in court filings as an attorney who “spent a portion of his time acting as the compliance officer for a laboratory in Massachusetts which competed with Millennium.” The lawsuit continues to be pursued by the law firm that represented Cunningham, Boston-based Gargiulo/Rudnick LLP, on behalf of Cunningham’s estate.

The lawsuit was unsealed in February after the government failed to meet a deadline set by a judge last August for deciding whether to formally join the lawsuit, or “intervene.” Whistleblower lawsuits under the False Claims Act are routinely sealed at first, to give the government time to decide whether it should join the lawsuit and attempt to recover damages on behalf of taxpayers.

The civil lawsuit alleges that Millennium Laboratories, founded in 2007, has been conducting “a cleverly thought out scheme” that brings Millennium big profits and fills doctors’ wallets, making physicians essentially complicit in fraudulent urine-testing and medical billing. The lawsuit claims Millennium encouraged physicians to bill the government for multiple tests, even when only one had been performed.

For example, the lawsuit alleges that Millennium told doctors if they billed 20 tests a day their practice could earn $2.3 million a year.

In 2010, the Departments of Justice and Health and Human Services jointly recovered $2.5 billion through False Claims Act cases targeting health care fraud. The National Health Care Anti-Fraud Association estimates that as much as $68 billion of all heath care spending, or roughly 3 percent of the total, is lost to fraud annually.

The complaint filed in federal court in Massachusetts claims that Millennium was encouraging fraudulent billing as early as 2007, the year the company was founded. It further alleges that Millennium intended to increase revenue for doctors, and thus attract more doctors to its network, growing Millennium’s revenues and market share.

The allegations do not only target Millennium, but also the thousands of physicians and facilities in the company’s network who the lawsuit alleges “knew or should have known” about the fraud.

A whistleblower is entitled to between 15 and 25 percent of any money recovered with the assistance of the government. If the government concludes a lawsuit is not likely to be successful and declines to join it, a whistleblower can still pursue the case on his own.

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