UNDER SEAL, Plaintiffs, vs. UNDER SEAL 7 Defendants. Case 1.3 SF P581 of 42 Page|D 65 wx gun It IN THE UNITED STATES DISTRICT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION Case N0.: 3-10 CV 0487 FIRST AMENDED COMPLAINT FOR VIOLATIONS OF FALSE CLAIMS ACTS 31 U.S.C. 3729, et seq. AND Tex. Hum. Res. Code 36.001 et seq JURY TRIAL DEMANDED LODGED UNDER SEAL PURSUANT TO 31 U.S.C. 3730(b)(2) and (3) Case 3:1 O--cv--OO487--|bDocument 10 Filed 09/01/10 Pi2 of 42 Page|D 66 IN THE UNITED STATES COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION UNITED STATES of AMERICA and the STATE OF TEXAS, ex rel. JOHN DOE, Plaintiffs, VS. DALLAS COUNTY, TEXAS, THE DALLAS COUNTY HOSPITAL DISTRICT DBA PARKLAND HEALTH AND HOSPITAL SYSTEMS, KAREN KOWALSKE, M.D., SAMUEL BIERNER, M.D., VINCENT GABRIEL, M.D. ANNE HUDAK, M.D., and SUSAN KNAPTON, M.D., Defendants. Case No.: 3-10 CV 0487 FIRST AMENDED COMPLAINT FOR VIOLATIONS OF FALSE CLAIMS ACTS 31 U.S.C. 3729, et seqTex. Hum. Res. Code 36.001 er I Seq I JURY TRIAL DEMANDED I I I I I LODGED UNDER SEAL TO 31 U.S.C. 3730(b)(2) and (3) Respectfully submitted, m$ Donald R. Warren (Lead Counsel --pro hac vice) Warren - Benson Law Group 7825 Fay Suite 200 La Jolla, CA 92037 Telephone: (85 8) 456-1900 acSirn'1e: (858) 454-5878 (Bar. 00787569) (Local Counsel) Law Offices of Gregory P. Gorman 1349 Empire Central Dr., Ste. 600 Dallas, Tx 75247-4042 Telephone: (214) 905-3739 Facsimile: (214)905-3799 greg@g0rmanlaw.corn Attorneys for Qui Tam Plaintiff Case 10 Filed of 42 Page|D 67 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION UNITED STATES of AMERICA ex rel. Case No.: JOHN DOE, FIRST AMENDED COMPLAINT FOR Plaintiffs, VIOLATIONS OF FALSE CLAIMS ACTS 31 U.S.C. 3729, et seq. AND VS- Tex. Hum. Res. Code 36.001 er seq DALLAS COUNTY, TEXAS, THE DALLAS COUNTY HOSPITAL DISTRICT DBA PARKLAND HEALTH AND HOSPITAL JURY TRIAL DEMANDED SYSTEMS, KAREN KOWALSKE, M.D., SAMUEL BIERNER, M.D., VINCENT GABRIEL, and SUSAN LODGED UNDER SEAL PURSUANT TO 31 U.S.C. Defendants. 3730(b)(2) and (3) COMES NOW QUI AM RELATOR--PLAINTIFF Lien Kyri, suing for himself (as John Doe) and for the United States of America, pursuant to 31 U.S.C. 3730 et seq, and the State of Texas pursuant to Tex. Hum. Res. Code 36.001 et seq, and alleges as follows: 1. This action is based upon the defendants' submitting and causing the submission of false claims to Medicare, Medicaid and other federally funded healthcare programs by 1) causing the submission of thousands of claims for false "consultations" that were not reimbursable because they were never requested by the patients' primary care physician; 2) causing the submission of thousands of claims under the name of teaching physicians at a teaching hospital when, in reality, only residents were involved without the necessary teaching physician presence, and the claims were therefore unreimbursable as physician services; 3) causing the submission of thousands of false claims with upcoded and inflated levels of evaluation and management FIRST AMENDED AMENDED COMPLAINT FOR VIOLATIONS OF FALSE CLAIMS ACTS PAGE I Case 10 Filed 09/01/10 Pfi4 of 42 Page|D 68 billing codes; 4) submitting, and causing the submission of, false claims for improper Inpatient Rehabilitation Facility stays for patients that did not meet Medicare and Medicaid coverage requirements; and 5) submitting, and causing the submission of, false Cost Reports that included the above false claims. 1. JURISDICTION 2. Jurisdiction over the federal claims asserted herein is based upon federal subject matter pursuant to 31 U.S.C. 3729 et seq. 3. Jurisdiction over the state claims asserted herein is based upon 31 U.S.C. 3732(b) and supplemental jurisdiction pursuant to 28 U.S.C. 1367. 4. The Court may exercise personal jurisdiction over the defendants pursuant to 31 U.S.C. 3732(a). II. VENUE 5. Venue is proper in the Northern District of Texas, under 31 U.S.C. 3732 and 28 U.S.C. l391(b) and because the defendants transact business in this District and because the defendants committed acts within this district that violated 31 U.S.C. 3729. PARTIES 6. Qui tam plaintiff Dr. Lien Kyri (suing as "John Doe") is a physician who performed a three year medical residency in the Physical Medicine and Rehabilitation residency program at Parkland Memorial Hospital from 2005 through 2008, following his graduation from the University of California at Irvine School of Medicine and completion of a medical internship from the University of California San Francisco, Fresno. As such, Dr. Kyri was involved with Park1and's patients through the following Physical Medicine and Rehabilitation Department resident consultation rotations: Trauma, Neurosurgery, Medicinel Geriatrics, Surgery/Neurology, FIRST AMENDED AMENDED COMPLAINT FOR VIOLATIONS OF FALSE CLAIMS ACTS PAGE 2 Case 3:1 O--cv--OO487--|bDocument 10 Filed 09/01/10 P6 5 of 42 Page|D 69 Spinal Cord Injury, Burns and Doctor rotations. Doctor is a coverage rotation (with other responsibilities in the Physical Medicine and Rehabilitation gym) that cross covers consultations for residents who are on vacation. While in the residency program, Dr. Kyri began immediately to verbally question some of the Defendants' improper billing practices as alleged herein, only to suffer swift retaliation at the hands of Parkland's management. Despite this, Dr. Kyri successfully graduated from the Parkland Hospital residency program on June 30, 2008. Dr. Kyri is a United States citizen and a resident of the State of California, and is in the process of seeking his medical license in California. 7. The United States of America, through its agencies, including, Centers for Medicare and Medicaid Services, and its Veterans Administration, among others, has provided funds for the false claims at issue herein. 8. The State Texas, through its participation in the Medicaid program, has provided funds for the false claims at issue herein. 9. Dallas County is a county within the Northern District of Texas, and operates a teaching hospital through its component, Dallas County Hospital District. 10. Dallas County Hospital District dba Parkland Health and Hospital Systems operates Parkland Memorial Hospital, which is a teaching hospital engaged in an approved Graduate Medical Education residency program in medicine. As such, Parkland Health and Hospital Systems receives direct GME payments by Medicare for the services performed by medical residents. As a result, the services performed by those residents cannot be separately billed under the Medicare Physician Fee Schedule unless a teaching physician is physically present during the critical or key portions of the service. 42 C.F.R. 415.170, 172; Medicare Claims Processing Manual, Chapter 12, Section 100 - Teaching Physician Services. In that event, FIRST AMENDED AMENDED COMPLAINT FOR VIOLATIONS OF FALSE CLAIMS ACTS PAGE 3 Case 10 Filed Pie 6 of 42 Page|D 70 then the services of the teaching physician physically present during the critical or key portions of the service can be billed. 1. Dr. Karen Kowalske is the Chair of Dallas County Hospital District's (dba Parkland's) Physical Medicine and Rehabilitation Department and Medical Director of Dallas County Hospital District's Inpatient Rehabilitation Units at the facility known as Parkland Health and Hospitals Systems 8E (PHHS 8B). In past years Dr. Kowalske has also been Parkland's Lead Physician in its outpatient Bum Clinic Consult Service ("Bum Clinic"). In her capacity as Dallas County Hospital District's Department Chair, Lead Physician of its Burn Clinic, and Medical Director of its Inpatient Rehabilitation Units at its 8E facility, Dr. Kowalske directed Dallas County Hospital District employees, including its resident physicians and fellows and clerical staff, to create false supporting documentation on Dallas County Hospital District medical forms, so that the false supporting documentation would be used to cause the submission of the false claims discussed herein. Dr. Kowalske resides in the Northern District of Texas. 12. Dr. Samuel Bierner was the Lead Physician, Medical Director and Chief of Service for Dallas County Hospital District's (dba Park1and's) Physical Medicine and Rehabilitation Department and Multispine Clinic in at least 2006 through 2010. In his capacity as Dallas County Hospital District's Lead Physician, Medical Director and Chief of Service for its Department and Multispine Clinic, Dr. Bierner directed Dallas County Hospital District employees, including its resident physicians and fellows and clerical staff, to create false supporting documentation on Dallas County Hospital District medical forms, so that the false supporting documentation would be used to cause the submission of the false claims discussed herein. Dr. Bierner resides in the Northem District of Texas. FIRST AMENDED AMENDED COMPLAINT FOR VIOLATIONS OF FALSE CLAIMS ACTS PAGE 4 Case 10 Filed 09/01/10 7 of 42 Page|D 71 13. Dr. Vincent Gabriel is the Lead Physician and Supervisor for Dallas County Hospital District's (dba Parkland's) inpatient Burn Unit and outpatient Burn Clinic. In his capacity as Dallas County Hospital District's Lead Physician and Supervisor of its inpatient Burn Unit Consult Service and outpatient Burn Clinic, Dr. Gabriel directed Dallas County Hospital District employees, including its resident physicians and fellows and clerical staff, to create false supporting documentation on Dallas County Hospital District medical forms, so that the false supporting documentation would be used to cause the submission of the false claims discussed herein. Dr. Gabriel resides in the Northern District of Texas. 14. Dr. Anne Hudak was the Medical Director and Chief of Service of Dallas County Hospital District's (dba Parl>to--face time with the I - 20 minutes at the bedside and on the patient patient's hospital floor or unit FIRST AMENDED AMENDED COMPLAINT FOR VIOLATIONS OF FALSE CLAIMS ACTS PAGE 26 Case 3:1 10 Filed Pa829 of 42 Page|D 93 66. Initial Consultation Level 2 - "expanded problem" examination and "straight forward" decision making (30 minutes for outpatient; 40 minutes for inpatient): Initial Outpatient Consultation Initial Inpatient Consultation Level 2 (CPT 99242): expanded problem focused history; - chief complaint -- brief history of the present illness -- problem pertinent review of systems - expanded problem focused examination: limited examination of the affected body area or organ system and any other or related body area(s) or system(s) - straightforward medical decision making: - minimal number of diagnoses or management options -- minimal or noamount and/or complexity of data to be reviewed - minimal risk of significant complications, morbidity, and/or mortality - presenting problem(s) are of low severity - 30 minutes face-to-face time with the patient Level 2 (CPT 99252): - an expanded problem focused history; -- chief complaint -- brief history of the present illness -- problem pertinent review of systems expanded problem focused examination: limited examination of the affected body area or organ system and any other or related body are-a(s) or system(s) - straightforward medical decision making: - minimal number of diagnoses or management options -- minimal or no amount and/or complexity of data to be reviewed - minimalrisk of significant complications, morbidity, and/or mortality - presenting problem(s) are of low severity - 40 minutes at the bedside and on the patient's hospital floor or unit FIRST AMENDED AMENDED COMPLAINT FOR VIOLATIONS OF FALSE CLAIMS ACTS PAGE 27 Case 3:1 O--cv-00487-Dgocument 10 Filed P5630 of 42 Page|D 94 67. Initial Consultation Level "detailed" examination with "low complexity" (40 minutes for outpatient; 55 minutes for inpatient): Initial Outpatient Consultation Initial Inpatient Consultation Level 3 (CPT 99243): - a detailed history chief complaint extended history of the present illness an extended review of systems pertinent history of family and/or social - detailed examination: extended examination of the affected body area or organ system and any other or related body area(s) or system(s) - low complexity medical decision making: - limited number of diagnoses or management options -, limited amount and/or complexity of data to be reviewed - low risk of significant complications, morbidity, and/or mortality - presenting problem(s) are of moderate severity - 40 minutes face-to--face time with the patient Level 3 (CPT 99253): a detailed history chief complaint extended history of the present illness an extended review of systems pertinent history of family and/or social - detailed examination: extended examination of the affected body area or organ system and any other or related body area(s) or system(s) - low complexity medical decision making: - limited number of diagnoses or management options - limited amount and/or complexity of data to be reviewed - low risk of significant complications, morbidity, and/ or mortality presenting problem(s) are of moderate severity - 55 minutes at the bedside and on the patient's hospital floor or unit FIRST AMENDED AMENDED COMPLAINT FOR VIOLATIONS OF FALSE CLAIMS ACTS PAGE 28 Case 10 Filed Pi31 of 42 Page|D 95 68. Initial Consultation Level 4 - "comprehensive" examination with "moderate complexity" (60 minutes for outpatient; 80 minutes for inpatient): Initial Outpatient Consultation Initial Inpatient Consultation Level 4 (CPT 99244): a comprehensive history; chief complaint extended history of the present illness a complete review of systems . complete history of family and/or social - a comprehensive examination; general rnulti-system examination OR complete examination of a single organ system and other or related body area(s) or system(s) 7 -A moderate complexity medical decision making: - multiple number of diagnoses or management options - moderate amount and/or complexity of data to be reviewed - moderate risk of significant complications, morbidity, and/or mortality - presenting problem(s) are of moderate severity; - 60 minutes face-to-face time with the patient. Level 4 (CPT 99254): - a comprehensive history; chief complaint extended history of the present illness a complete review of systems complete history of family and/or social - a comprehensive examination; general multi-system examination OR complete examination of a single organ system and other or related body area(s) or system(s) moderate complexity medical decision making: - multiple number of diagnoses or management options -- moderate amount and/or complexity of data to be reviewed - moderate risk of significant complications, morbidity, and/or mortality - presenting problern(s) are of moderate severity; 80 minutes at the bedside and on the patient's hospital floor or unit FIRST AMENDED AMENDED COMPLAINT FOR VIOLATIONS OF FALSE CLAIMS ACTS PAGE 29 Case 3:1 10 Filed Pi32 of 42 Page|D 96 69. Initial Consultation Level 5 - "comprehensive" examination with "high complexity" (80 minutes for outpatient; 10 minutes for inpatient): Initial Outpatient Consultation Initial Inpatient Consultation Level 5 (CPT 99245): - a comprehensive history; - chief complaint -- extended history of the present illness - a complete review of systems - complete history of family and/or social - a comprehensive examination; general rnulti-system examination OR complete examination of a single organ system and other . or related body area(s) or system(s) high complexity medical decision making: - extensive number of diagnoses or management options - extensive amount and/or complexity of data to be reviewed - high risk of significant complications, morbidity, and/or mortality presenting problem(s) are of moderate to high severity; - 80 minutes face-to-face time with the patient. Level 5 (CPT 99255): - a comprehensive history; - chief complaint -- extended history of the present illness a complete review of systems complete history of family and/or social - a comprehensive examination; general multi--system examination OR complete examination of a single organ system and other or related body area(s) or system(s) - high complexity medical decision making: - extensive number of diagnoses or management options - extensive amount and/or complexity of data to be reviewed - high risk of significant complications, morbidity, and/or mortality - presenting p.roblem(s) are of moderate to high severity; - 110 minutes at the bedside and on the patient's hospital floor or unit FIRST AMENDED AMENDED COMPLAINT FOR VIOLATIONS OF FALSE CLAIMS ACTS PAGE 30 Case 3:1 O--cv--OO487-Deocument 10 Filed Pa633 of 42 Page|D 97 70. Follow Up Inpatient Consultation/Care Level 1 -- "problem focused" examination (10 minutes through 2005; 20 minutes beginning 2006): "Follow Up Inpatient Consultation Codes Through 2005 "Subsequent Hospital Care" Codes Beginning 2006 Level 1 (CPT 99261): - problem focused interval history - problem focused examination: limited examination of the affected body area or organ system straightforward or low complexity medical decision making - patient is stable, recovering or improving - 10 minutes at the bedside and on the pati'ent's hospital floor or unit Level I (CPT 99231): - problem focused interval history problem focused examination: limited examination of the affected body area or organ system straightforward or low complexity medical decision making - patient is stable, recovering or improving - 15 minutes at the bedside and on the -I -- .patient's hospital floor or unit 71 .i Follow Up Inpatient Consultation/Care Level 2 - "expanded problem" examination (20 minutes through 2005; 25 minutes beginning 2006): allow Up Inpatient Consultation Codes Through 2005 "Subsequent Hospital Care" Codes Beginning 2006 Level 2 (CPT 99262): - expanded problem focused interval history - expanded problem focused examination: limited examination of the affected body area or organ system and any other or related body area(s) or system(s) - moderate complexity decision making - patient is responding inadequately to therapy or has developed a minor complication - 20 minutes at the bedside and on the patient's hospital floor or unit Level 2 (CPT 99232): - expanded problem focused interval history expanded problem focused examination: limited examination of the affected body area or organ system and any other related body area(s) or system(s) I - moderate complexity decision making - patient is responding inadequately to therapy or has developed a minor complication - 25 minutes at the bedside and on the patient's hospital floor or unit FIRST AMENDED AMENDED COMPLAINT FOR VIOLATIONS OF FALSE CLAIMS ACTS PAGE31 Case 3:1 O--cv--OO487-Deocument 10 Filed Pa'34 of 42 Page|D 98 72. Follow Up Inpatient ConsultatiorflCare Level 3 -- "detailed" examination with "low complexity" (30 minutes through 2005; 35 minutes beginning 2006): "Follow Up Inpatient Consultation Codes Through 2005 "SubsequentHospital Care" Codes Beginning 2006 Level 3 (CPT 99263): - detailed interval history - detailed examination: extended examination of the affected body area or organ system and any other or related body area(s) or system(s) - high complexity medical decision making patient is unstable or has developed a . significant complication or a significant new problem - 30 minutes at the bedside and on the .patient's hospital floor or unit Level 3 (CPT 99233): - detailed interval history - detailed examination: extended examination of the affected body area or organ system and any other or related body area(s) or system(s) - high complexity medical decision making - patient is unstable or has developed a significant complication or a significant new problem 35 minutes at the bedside and on the patient's hospital floor or unit ii i A ii FIRST AMENDED AMENDED COMPLAINT FOR VIOLATIONS OF FALSE CLAIMS ACTS PAGE 32 . Case 3:1 O--cv--OO487-Daocument 10 Filed Pa835 of 42 Page|D 99 73. Follow Up Outpatient Consultations Levels 1 -- 2: "Follow Up Outpatient Consultation Codes Level 1 "Follow Up Outpatient Consultation Codes Level 2 Level 1 (CPT 99212): - problem focused history problem focused examination: limited examination of the affected body area or organ system - straightforward medical decision making self limited or minor presenting problems - 10 minutes face-to-face time with the patient Level 2 (CPT 99213): expanded problem focused history - expanded problem focused examination: limited examination of the affected body area or organ system and any other or related body area(s) or system(s) - low complexity decision making - low to moderate presenting problems - 15 minutes face-to-face time with the patient 74. Follow Up Outpatient Consultations Levels 3 -- 4: - "Follow Up Outpatient Consultation Codes Level 3 "Follow Up Outpatient Consultation Codes Level 4 Level 3 (CPT 99214): detailed history - detailed examination: extended examination of the affected body area or organ system and any other or related body area(s) or system(s) - moderate complexity medical decision making - moderate to high severity presenting problems - 25 minutes face-to-face time with the patient Level 4 (CPT 99215): comprehensive history - a comprehensive examination; general multi-system examination OR complete examination of a single organ system and other or related body area(s) or system(s) - high complexity medical decision making - moderate to high severity presenting problems - 40 minutes face-to-face time with the patient I FIRST AMENDED AMENDED COMPLAINT FOR VIOLATIONS OF FALSE CLAIMS ACTS PAGE 33 0 Case 3:10--cv--00487-Daocument 10 Filed 09/01/10 Pa%36 of 42 Page|D 100 75. For the purposes of these CPT billing definitions, the following body systems are recognized: I Constitutional (fever, weight loss, etc.) I Eyes I Ears, nose, mouth, throat I Cardiovascular I Respiratory I Gastrointestinal I Genitourinary I Musculoskeletal I Integumentary (skin and/or breast) I Neurolgical I I Endocrine I Hematologic/ I Allergic/immunologic Centers for Medicare and Medicaid Services (CMS) "Evaluation Management Services Guide"; Current Procedural Terminology (Standard Edition) 2008, Instructions for Selecting a Level of Service. 76. As outlined above, the more expanded the examination is, from a problem focused, to an expanded problem focused, to a detailed examination, to a comprehensive examination, the higher the CPT billing codes are that should be used. In most cases for the Physical Medicine and Rehabilitation department at Parkland, residents can only do a problem-focused initial consultation, due to a very large number of consults to complete and a shortage of time in which to FIRST AMENDED AMENDED COMPLAINT FOR VIOLATIONS OF FALSE CLAIMS ACTS PAGE 34 9 Case 3:10-cv-00487-D ocument 10 Filed Pai37 of 42 Page|D 101 complete them. This is understood and directed by Parkland's department in its document "Physical Medicine Rehabilitation Goals and Objectives" for its residency program: "Inpatient Rehabilitation Obiectives Patient Care -- The resident will be expected to.' Perform a rehabilitation medicine focused admission history and physical examination." 4: "Gym Doctor Service, Medicine Geriatrics Consult Service, Neurological Surgery Consult Service, Surgery/Neurologv Consult Service. Trauma Consult Service Objectives Patient Care - The resident will be expected Perform a rehabilitation medicine focused admission history and physical examination." Goals and Objective(emphasis added). However, the attending teaching faculty preceptors at Parkland instruct residents to mark expanded problem, detailed or even comprehensive initial history and physical examinations on the encounter (billing) forms, in addition to marking that the teaching physician was present for 'the critical or key areas of - the examination. 77. g4_) Billng, and causing false billings for improper Inpatient Rehabilitation Facilitv stays for patients that did not meet Medicare and Medicaid coveragg requirements. One result of the Defendants' pervasive ongoing scheme to perform "blind" consultations and capture new patients for the department physicians is that oftentimes, the department would find patients in Parkland whose primary physician team had made the medical determination that they should be discharged to nursing homes, long-term acute care facilities, or discharge to home or family, and would alter those established disposition plans by instead referring patients for preferential transfer to their physicians at the PHHS 8 East FIRST AMENDED AMENDED COMPLAINT FOR VIOLATIONS OF FALSE CLAIMS ACTS PAGE 3 5 Case 3:10--cv--00487-D ocument10 Filed 09/01/10 Pa%38 of 42 Page|D 102 IRF and the Zale--Lipshy Hospital. Both of these facilities are Inpatient Rehabilitation Facilities 78. To meet the medical necessity requirement for coverage in an IRF, the patient must have completed his/her inpatient treatment, and due to the complexity of their rehabilitation needs, must require, tolerate and be reasonably expected to benefit from 3 hours of therapy per day in an inpatient setting from an interdisciplinary team approach to the delivery of rehabilitation care. 79. The IRF benefit is not to be used for patients who do not require intensive rehabilitation. Federal and State health care benefits are available for such patients in a less- intensive setting. be used as an alternative to completion of the full course of treatment in the referring hospital. 80. Similarly, a patient who has not. yet completed the full course of treatment in the referring hospital is expected to remain in the referring hospital with appropriate rehabilitatitve treatment provided, until such time as the patient has completed the full course of treatment. Patients must be able to fully participate in and benefit from the intensive rehabilitation therapy program provided in IRFS in order to be transferred to an IRF. IRF admissions for patients who are still completing their course of treatment in the referring hospital and who, therefore, are not able to participate in and benefit from the intensive rehabilitation therapy services provided in IRFS are not considered reasonable and necessary. 81. However, at the urging of self-serving consult recommendations, busy and overworked primary care physicians are often mislead to divert established disposition plans prematurely, prior to the completion of the patients' acute care treatment, including appropriate rehabilitative treatment. This is done so to that the transfer of patients to PHHS 8 East and to the FIRST AMENDED AMENDED COMPLAINT FOR. VIOLATIONS OF FALSE CLAIMS ACTS PAGE 3 6 Case 3:10--cv--00487-D ocument10 Filed 09/01/10 Pa%39 of 42 Page|D 103 Zale--Lipshy Hospital based IRFS is guaranteed and the patients are not ultimately lost by the department to their originally intended disposition plans. 82. In order to intervene and alter the primary physician team's established patient dispositions, the department deceives both the patient and the primary physician team under the false guise that a primary care team member had originally requested to consult/assist in good faith in the patient's disposition planning and continuing care. use of this guise suggests that implicitly understood primary care teams would not knowingly have gone along with these disposition changes in good faith had they realized the rogue nature of the department's underlying actions and intentions. 83. Misrepresentation of information by to primary care physicians compromises the good faith decision making powers of the primary care physicians regarding what is medically necessary in the treatment of their patients. In order to best serve a patient's health interests and well being and meet the criteria of medical necessity for any medical intervention, a patient's primary care physicians are in the most advantageous and objective position to determine the medical necessity of any medically related decision that affects their patients' treatments and outcomes. That is only realized if a primary care physician is able to make informed and impartial decisions based on the completeness, reliability, and truthfulness of all information the physician is provided. 84. Filing and causing the filing of false Cost Reports that included costs for the above false claims. To the extent the Defendants falsely billed the above non-covered services and activities to Medicare, Medicaid and other govemment insured healthcare programs, the related annual and periodic cost reports which served as the basis for the rates of reimbursement by these programs for services rendered by the Defendants were falsely inflated. FIRST AMENDED AMENDED COMPLAINT FOR VIOLATIONS OF FALSE CLAIMS ACTS PAGE 3 7 Case 3:10--cv--00487-D ocument10 Filed 09/01/10 Pa%40 of 42 Page|D 104 85. Upon information and belief, the Defendants regularly submitted, or caused to be submitted, Hospital Cost Reports to Medicare and Medicaid that were false because they failed to disclose that the Defendants had received reimbursement for non--covered services, and they falsely certified that they had been prepared in accordance with applicable instructions. 86. By submitting false Hospital Cost Reports, the Defendant Dallas County Hospital District dba Parkland Health and Hospital Systems also evaded its legal obligation to reimburse money to Medicare and Medicaid, and violated the Federal and Texas False Claims Acts. VI. COUNT (For Violation of 31 U.S.C. 3729(a)(1) and and 3729(a)(1)(A) and (Against all Defendants) 87. Qua" tam plaintiffs hereby reallege and incorporate herein by this reference paragraphs 1 through 86, inclusive, hereinabove, as though fullyiset forth at length. 88. Through their conduct, Defendants have knowingly submitted, or caused to be submitted, false claims for payment, as set forth above, in violation of former statute 31 U.S.C. 3729(a)(1) and current statute 31 U.S.C. 3729(a)(l)(A). Additionally, Defendants have knowingly used, and caused to be used, false records or statements to get false or fraudulent claims paid by the United States, in violation of former statute 3.1 U.S.C. 37 29(a)(2) and current statute 31 U.S.C. 3729(a)(1)(B). As a result of such knowing wrongful conduct the Defendants have caused payments to be made from United States Treasury in the millions of dollars. VI. COUNT TWO (For Violation of 31 U.S.C. 3729(a)(7) and 3729(a)(1)(G) (Against Defendants Dallas County, Texas, the Dallas County Hospital District dba Parkland Health and Hospital Systems) 89. Qui tam plaintiffs hereby reallege and incorporate herein by this reference paragraphs 1 through 86, inclusive, hereinabove, as though fully set forth at length. FIRST AMENDED AMENDED COMPLAINT FOR VIOLATIONS OF FALSE CLAIMS ACTS PAGE 3 8 Case 3:10-cv-00487-D ocument 10 Filed Pa%41 of 42 Page|D 105 90. Through their conduct, Defendants have violated and continue to violate former statute 31 U.S.C. 3729(a)(7) and current statute S1 U.S.C. 3729(a)(l)(G) by evading their legal obligation to reimburse money to Medicare and Medicaid. VII. COUNT THREE (For Violation of Tex. Hum. Res. Code 36.001 et seq.) (Against all Defendants) 91. Qua' tampplaintiffs hereby realleges and incorporate herein by this reference paragraphs 1 through 86, inclusive, hereinabove, as though fully set forth at length. 92. Defendants' knowing misconduct as described above is in violation of Tex. Hum. Res. Code 36.001 et seq, and has caused damage to the State of Texas in the millions of dollars. WHEREFORE, qua' tam plaintiff pray for relief as follows: 1. . Full restitution to the United States and the State Texas of all money damages sustained by each, respectively; 2. For three times the dollar amount proven to have been wrongfully paid by or withheld from the United States and the State of Texas of all money damages sustained by. each; 3. For maximum civil penalties for all false records, statements, certifications and claims submitted to the United States and the State of Texas, respectively; 4. For costs of suit, reasonable attorneys fees and the maximum relator share; and 5. For such other and further relief as the Court deems just and proper. .. Donald R. Warren (pro hac vice) FIRST AMENDED AMENDED COMPLAINT FOR VIOLATIONS OF FALSE CLAIMS ACTS PAGE 3 9 Case 3:10-cv-00487-D ocument 10 Filed Pa%42 of 42 Page|D 106 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing has been furnished to the following via first class mail on August 31, 2010: Sean McKenna, AUSA Honorable Greg Abbott 1100 Commerce Street Texas Attorney General Dallas, Texas 75252-1699 300 15"' St Austin, TX 78701 Donald R. Warren FIRST AM ENDED AMENDED COMPLAINT FOR VIOLATIONS OF FALSE CLAIMS ACTS PAGE 40