Russell R. Roby, M.D., Excluded
from Federal Healthcare Programs

Stephen Barrett, M.D.


In 2013, Russell Roby, M.D., was charged with billing Medicare and TRICARE for unapproved hormone therapy treatments, medically unnecessary services, services not rendered, and overutilization of procedures. The complaint (shown below) details what happened. The case was settled with an consent judgment under which Roby was ordered to pay $1,318,392 and excluded from participating in federal healthcare programs for 20 years. Roby has been repeatedly disciplined by state licensng boards.


UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION

UNITED STATES OF AMERICA

Plaintiff,

v.

THE ROBY INSTITUTE,
TEXAN ALLERGY CLINIC,
and RUSSELL ROBY, M.D.

Defendants.

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CIVIL ACTION NO. 1:13-CV-545-LY

COMPLAINT

Now comes the United States of America on behalf of the Office of Inspector General ("OIG-HHS") of the Department of Health and Human Services ("HHS") and TRICARE and for its complaint, alleges as follows:

PARTIES

1. HHS provides health care services benefits to the elderly under the Medicare program.

2. TRICARE provides health care service benefits to Department of Defense personnel and their families.

3. Dr. Russell Roby is an individual residing at 4231 Westlake Dr. #B-1, Austin, Texas 78746, who did business as "The Roby Institute" and "The Texan Allergy Clinic," (Roby). At all relevant times, Roby was an authorized provider of Medicare and TRICARE services.

JURISDICTION AND VENUE

4. Jurisdiction over this action is conferred on the Court by 31 U.S.C. ยง 3732(a) and 28 U.S.C. § 1345.

5. Venue is proper in the Western District of Texas under 28 U.S.C. § 1391(b) and 31 U.S.C. § 3732(a) because Defendant resides in this District and the conduct which gave rise to this complaint occurred within this District.

STATEMENT OF THE CASE

6. This action seeks damages and civil money penalties under the False Claims Act, 31 U.S.C. § 3729 et seq., based upon false claims and false statements that Defendant Roby made and/or caused to be made in connection with the presentation of false and/or fraudulent claims to Medicare and TRICARE for payment. Alternatively, this action seeks damages for common law fraud, payment by mistake of fact, breach of contract, and unjust enrichment against Defendant Roby.

7. Dr. Roby knowingly submitted to federal healthcare programs claims for payment of unapproved and ineligible allergy services and therapies. Between January 1, 2006 and August 3, 2011, Defendant Roby submitted such claims to TRICARE. Between January 1, 2006 and December 31, 2007, he submitted such claims to Medicare. Roby submitted his claims for reimbursement to the TRICARE and Medicare programs under three Current Procedural Terminology (CPT) codes-95004, 95165, and 99214.

FACTUAL BACKGROUND

8. Roby is an allergist in Austin, Texas; he has done business as The Roby Institute and Texan Allergy Clinic.

9. In 2009, TRICARE referred a matter based on an audit conducted by Wisconsin Physicians Services, the claims processor for the TRICARE For Life (TFL) program. TFL provides insurance coverage to beneficiaries who are also eligible for Medicare; under TFL, Medicare generally pays first and TRICARE pays any remaining out-of-pocket medical expenses. The TFL audit found that Roby: (1) misrepresented his services and diagnoses for allergy services; (2) overutilized procedures; (3) billed for unapproved hormone treatments; and (4) billed for services that were not medically necessary. The loss to TFL was found to be about $17,000.00.

10. In 2010, TRICARE referred a second case against Roby. The second case arose out of an audit by Humana Military Healthcare Service, TRICARE's managed care contractor for the southern region. The Humana audit found that Roby: (1) billed for services he had not rendered; (2) misrepresented his services; (3) misrepresented the provider who rendered treatment; and (4) billed for unauthorized hormone treatments. The loss to TRICARE was calculated at approximately $121,000.00.

11. Subsequent investigation determined that Roby, who was known for his infomercials and internet advertising promising relief from allergies through alternative therapies, was a proponent of so-called sublingual hormone treatments—allergy drops administered under the tongue. The alternative therapies that Roby employed and billed to TRICARE and Medicare—in particular, oral allergy drops—were not FDA approved and were not eligible for reimbursement by TRICARE or Medicare. Roby knew, deliberately ignored, or recklessly disregarded that his alternative therapies were not authorized for payment, but nevertheless billed TRICARE and Medicare for his services under CPT codes 95004, 95165, and 99214. The Texas Medical Board disciplined Roby on more than one occasion, including as recently as June 3, 2011, for failing to disclose that his under-the-tongue hormone treatments are not FDA approved. The CPT codes under which Roby billed TRICARE and Medicare are general in nature, and did not reveal the specific nature of the procedure Roby had performed. Thus, TRICARE and Medicare paid Roby for his services, unaware that he billed for unapproved and ineligible therapies. Had either program known that Roby had improperly billed for such therapies, they would not have paid his claims.

12. An independent review of Medicare claims, found that the loss to Medicare was $521,508.16.

COUNT 1 - FALSE CLAIMS ACT, 31 U.S.C. § 3729(a)(l)

13. The United States realleges and incorporates by reference the allegations contained in paragraphs 1 through 12 of this Complaint.

14. This is a claim for treble damages and forfeitures under the False Claims Act, 31 U.S.C. § 3729 et seq. as amended.

15. For the purpose of obtaining the payment from TRICARE, Medicare or their contract carriers, Defendant Roby knowingly, with deliberate ignorance and/or reckless disregard made or used false records or statements regarding the services performed in violation of 31 U.S.C. § 3729(1).

16. TRICARE, Medicare and their contract claims carriers, unaware of the foregoing circumstances and conduct of Defendant, made payments upon these false records or statements, which resulted in the United States being damaged in a substantial amount of approximately $659,196.19.

COUNT TWO - UNJUST ENRICHMENT

17. The United States realleges and incorporates by reference the allegations contained Roby Complaint in paragraphs 1 through 12 of this Complaint.

18. As a result of the conduct described above, Roby caused to be paid and were paid federal funds under the TRICARE and Medicare Programs to which they were not entitled.

19. In consequence of the acts set forth above, Defendant has been unjustly enriched at the expense of the United States under circumstances directing that in equity and good conscious, the money should be returned to the United States.

COUNT THREE - PAYMENT BY MISTAKE OF FACT

20. The United States realleges and incorporates by reference the allegations contained in paragraphs 1 through 12 of this Complaint.

21. As a result of the conduct described above, Defendant Roby was paid federal funds under the TRICARE and Medicare Programs that were not properly payable.

22. At the time such payments were made, TRICARE and Medicare and their contract claims carriers were unaware of the Defendant Roby's wrongful conduct. Had TRICARE and Medicaid and their contract claims carriers known that Defendant Roby was not entitled to receive payment, they would not have approved payment of TRICARE and Medicare funds. All such payments were made to Defendant Roby by mistake of fact.

23. As a consequence of the actions set forth above, the United States is entitled to recover those funds which were paid to Defendant Roby by mistake of fact.

COUNT FOUR - COMMON LAW FRAUD

24. The United States realleges and incorporates by reference the allegations contained in paragraphs 1 through 12 of this Complaint.

25. As a result of the conduct described above, Defendants Roby was paid federal funds under the TRICARE and Medicare Programs that were not properly payable.

26. By means of the acts described above, Defendant Roby defrauded the United States Government by causing false or fraudulent claims to be paid. The United States, unaware of the falsity of the records, statements or claims made by Defendant Roby, and in reliance on the accuracy thereof, paid Defendant Roby for claims that would not have otherwise been allowed.

27. By reason of these payments, the United States has been damaged and continues to be damaged in a substantial amount.

CONCLUSION

WHEREFORE, Plaintiff prays that upon trial and final hearing that the Court grant judgment for the United States against Defendant Roby as follows:

  1. For civil penalties for each false claim, pursuant to 31 U.S.C. § 3729(a);
  2. For three times the amount of actual damages proved pursuant to 31 U.S.C. § 3729(a);
  3. For direct and consequential actual damages and exemplary damages for common law fraud;
  4. For damages proved for unjust enrichment;
  5. For damages proved for payments made under mistake of fact;
  6. For costs incurred by the United States in prosecuting this action;
  7. Pre-judgment and post-judgment interest at the rates permitted by law; and
  8. For such other and further relief as may be appropriate and authorized by law.

Respectfully submitted,

ROBERT PITMAN
UNITED STATES ATTORNEY

By:

____________________________
MITCHELL . WEIDENBACH

Assistant United States Attorney
601 N.W. Loop 410, Suite 600
San Antonio, Texas 78216
Telephone (210) 384-7360
Facsimile (210).384-7312
E-mail mitch.weidenbach@usdoj.gov
Texas Bar No. 21076600

This article was posted on January 18, 2017.

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