in the united states district court -...

Case: 1:14-cr-00447-JRA Doc #: 1 Filed: 12/17/14 1 of 55. PageID #: 1

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

UNITED ST A TES OF AMERICA,

Plaintiff,

v.

PHYSICIANS SURGICAL GROUP, LLC, CHRISTOPHER LIV A, EDWARD LIV A, CAROLYN VIA, aka CAROYLN LIV A, MARK FRITZ, JOHN NICKELS, JOHN FORTUNA, and ANTHONY SIMONE,

Defendants ..

The Grand Jury charges:

) INDICTMENT ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

1: 14CR4471 Title 18, Sections 1343, 1347, 1349, 1956, United States Code

JUDGE ,l\DAMS

I. GENERAL ALLEGATIONS

At all times material to this Indictment, except where otherwise noted:

A. Defendants, Businesses, and Bank Accounts

I. Defendant PHYSICIANS SURGICAL GROUP, LLC (hereinafter "PSG") was a

Florida Limited Liability Company (hereinafter "LLC") with its principal place of business at 40

SE 5th Street, Suite 406, Boca Raton, Florida. PSG was formed in 2006, and was primarily a

billing company for medical services. PSG was owned by CHRISTOPHER LIV A (hereinafter,


"CHRIS LIV A"), EDWARD LIVA (hereinafter, "ED LIV A"), and CAROLYN VIA aka

CAROLYN LIV A (hereinafter, "CAROL VIA").

2. 7431 Surgical Group (hereinafter "7431," and together with PSG, the "PSG

Entities") was a Florida LLC with its principal place of business at 40 SE 5th Street, Suite 406,

Boca Raton, Florida. 7431 was formed in 2008 and was in the business of providing payroll and

billing services. 7431 was voluntarily dissolved on August ], 2012. 7431 was owned by

CAROL VIA.

3. Liva Associates was a Florida LLC with its principal place of business at 6418 La

Costa Drive, Apt 101, Boca Raton, Florida 33433. Liva Associates was formed in 2007. Liva

Associates was owned by CHRIS LIVA and others known and unknown to the Grand Jury.

4. Physician's Marketing & Management was a Florida LLC with its principal place

of business at 40 SE 5th Street, Suite 406, Boca Raton, Florida. It was owned by CAROL VIA.

5. Shaker Heights Surgical Center (hereinafter "SHSC") was an Ohio corporation

with its principal place of business at 3235 Lee Road, Shaker Heights, Ohio. SHSC was formed

on or about December 19, 2007, and operated an ambulatory surgical center licensed by the State

of Ohio. SHSC was owned by CHRIS LIV A, ED LIV A, CAROL VIA, John K., David N.,

Arthur H., and Michael A.

6. Anesthesia Company of America (hereinafter "ACA") was a Florida LLC with its

principal place of business at 201 Montgomery A venue, Sarasota, Florida. ACA was formed in

2007 and was in the business of providing billing services related to medical procedures

involving anesthesia. ACA was owned by Carl. N. ACA employed JOHN NICKELS to serve

as the anesthesiologist at SHSC.

7. ECSC III (hereinafter "ECSC," and together with ACA, the "ACA Entities") was

a Florida LLC with its principal place of business at 20 I Montgomery Street, Sarasota, Florida

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34243. ECSC was formed in 2008. According to its articles of incorporation, ECSC's managing

members were Carl N., Bradley W., and E&C Consultants of Boca Raton. ACA, ED LIVA, and

CHRIS LIV A formed ECSC, which was defined as "Edward Chris Spine Care." Ownership in

ECSC was split between ACA, ED LIV A, and CHRIS LIV A.

8. E&C Consultants of Boca Raton (hereinafter "E&C") was a Florida LLC with its

principal place of business at 280 Royal Palm Way, Boca Raton, Florida 33431. E&C was

formed in 2008. According to its articles of incorporation, E&C's managing members were

CHRIS LIV A and CAROL VIA.

9. Defendant CHRIS LIVA was a resident of Boca Raton, Florida.

10. Defendant ED LIV A was a resident of Boca Raton, Florida.

11. Defendant CAROL VIA (together with CHRIS LIV A and ED LIV A, the

"LIV AS") was a resident of Boca Raton, Florida.

12. The LIV AS were de facto, if not actual, owners of SHSC and PSG during some or

all of the period PSG and SHSC submitted claims for manipulation under anesthesia ("MUA'')

procedures to the Insurers (described below) arid received the bulk of distributions of profits

from PSG for the MUA procedures.

13. Defendant MARK FRITZ (hereinafter "FRITZ") was a resident of Coral Springs,

Florida, and was the manager and Chief Financial Officer of PSG.

14. Defendant JOHN NICKELS (hereinafter "NICKELS") was a licensed medical

doctor and anesthesiologist in the State of Ohio and a resident of Ohio.

15. Defendant JOHN FORTUNA (hereinafter "FORTUNA") was a licensed

chiropractor in the State of Ohio and a resident of Avon, Ohio.

16. Defendant ANTHONY SIMONE (hereinafter "SIMONE"), was a licensed

chiropractor in the State of Ohio and a resident of Cleveland, Ohio.

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17. On or about July 8, 2008, CAROL VIA opened and caused to be opened bank

account number x8947 at Northern Trust in the name of Physician's Marketing & Management.

CAROL VIA was listed on the signature card for this account.

18. On or about October 21, 2008, CAROL VIA and CHRIS LIVA opened and

caused to be opened bank account number x2853 at Northern Trust in the business name of

E&C. CAROL VIA and CHRIS LIV A were listed on the signature card for this account.

19. On or about June 24, 2008, Arthur H. and CHRIS LIV A opened and caused to be

opened bank account number x2735 at Northern Trust in the business name of SHSC. Arthur H.

and CHRIS LIV A were listed on the signature card for this account. On or about March 30,

2009, CAROL VIA was also added as an account signer for bank account number x2735.

20. On or about August 16, 2007, CAROL VIA opened and caused to be opened bank

account number x9303 at Northern Trust in the name of CAROL VIA. CAROL VIA was listed

on the signature card for this account.

21. On or about August 11, 2006, CAROL VIA opened and caused to be opened bank

account number x8936 at Northern Trust in the name of CAROL VIA. CAROL VIA was listed

on the signature card for this account.

22. On or about September 13, 2007, CHRIS LIVA opened and caused to be opened

bank account number x9046 at Northern Trust in the business name of Liva Associates. CHRIS

LIV A was listed on the signature card for this account.

B. Private Insurers

23. Medical Mutual of Ohio (hereinafter "MM") was an Ohio corporation with its

principal place of business in Cleveland, Ohio. MM provided health care benefits and insurance

to its subscribers under individual and group health insurance plans, and provided this insurance

under a variety of coverage options set forth in the benefit plans.

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24. Anthem Blue Cross and Blue Shield ("Anthem") provided health care benefits

and insurance to its subscribers under individual and group health insurance plans, and provided

this insurance under a variety of coverage options set forth in the benefit plans.

25. United Healthcare ("United") provided health care benefits and insurance to its

subscribers under individual and group health insurance plans, and provided this insurance under

a variety of coverage options set forth in the benefit plans.

26. Aetna provided health care benefits and insurance to its subscribers under

individual and group health insurance plans, and provided this insurance under a variety of

coverage options set forth in the benefit plans.

27. MM, Anthem, United, and Aetna (collectively, the "Insurers") were health care

benefit programs under Title 18, United States Code, Section 24(b ).

C. Reasonable and Necessary Services

28. The Insurers prohibited payment for items and services that were not reasonable

and necessary to diagnose and treat an illness or injury. The Insurers required providers to

certify that services were medically necessary. In the area of chiropractic care, diagnosis, and

treatment, a chiropractor and the hospital where the chiropractor performed procedures, could

submit claims for reimbursement to the Insurers, but they were required by law to accurately

report the medical condition underlying the claim and only claims that were medically necessary

were entitled to reimbursement.

D. Manipulation Under Anesthesia

29. Manipulation under anesthesia was a medical procedure allegedly used to treat

spinal dysfunction and to restore freedom of movement to extremity joints, such as knees and

shoulders. The purported medical rationale for MUA was that fibrotic adhesions (i.e., scar

tissues) could form in and around the spine, shoulder, or other extremities, which hindered

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natural range of motion and caused pain. MU A supposedly broke up these fibrotic tissues

through the sudden manipulation of the affected areas, which theoretically increased joint

function and reduced pain.

30. Because these adjustments could be extremely painful, patients were put under

conscious sedation, known as twilight anesthesia, often through IV administration of the drug

propofol, for the entire MUA procedure.

31. MUA was recognized as a surgical procedure by the American Medical

Association (the "AMA") and was designated as such in the AMA's Current Procedural

Terminology manual. MUA was an aggressive form of therapy and was typically reserved for

patients who had failed conservative chiropractic care.

32. There were serious risks of complications associated with MUA, including

internal bleeding, unintended tearing of other soft tissue structures, detachment of ligaments and

tendons, bone fractures, dislocation of joints, herniation of spinal discs, and spinal cord or neural

decompression with resulting paralysis. There were also inherent risks associated with

undergoing general anesthesia, namely, aspiration, changes in blood pressure or heart rate, heart

attack, stroke, or even death.

E. MUA Billing and Codes

33. Due to these risks, including the risks of anesthesia, MUA was not performed in

an office setting but rather was typically performed in an outpatient surgical facility, commonly

known as an ambulatory surgical center ("ASC"). Consequently, an MUA procedure typically

generated three sets of claims to the insurance company: (I) a claim for professional fees; (2) a

claim for facility fees submitted by the surgical facility to cover its costs, including supplies

associated with the MU A and maintaining a sterile surgical and recovery room; and (3) a claim

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for anesthesia services, which covered the anesthesiologist's professional services and the

anesthesia supplies.

34. The AMA assigned five digit codes to medical procedures performed by health

care professionals. The Current Procedural Terminology ("CPT") codes were a listing of

descriptive terms for reporting medical services and procedures, providing a uniform language to

describe medical, surgical, and diagnostic services. CPT codes provided reliable nationwide

communication among physicians, patients, and insurers. All claims to insurers were submitted

using CPI codes. The procedures and services represented by the codes were health care

benefits, items, and services within the meaning of 18 U.S.C. 24(b). They included codes for

office visits, diagnostic testing and evaluation, and other services, based on complexity, severity,

and the average time required to perform each service. Health care providers and health care

benefit programs were required to use CPT codes to describe and evaluate the services for which

they claimed and to decide whether to issue or deny payment. Each health care benefit program

established a fee reimbursement for each procedure or service described by a CPT code.

35. Health care facilities submitted a revenue code along with the CPT code when

billing for services. Revenue codes were similar to CPT codes in that they represented a certain

procedure or service.

36. Health care providers typically used a standard health insurance claim form, or its

electronic equivalent, referred to as a CMS-1500 (formerly, HCFA-1500) when submitting

claims to insurers. The CMS-1500 required providers to accurately describe the services

provided to members using a specific CPI code. Health care facilities claimed reimbursement

from insurance carriers on a UB-92 or UB-04 form. On these forms, the provider identified itself

by Provider Identification Number ("PIN"), identified the beneficiary who received the services,

described the illness or injury that made the services medically necessary, identified the services

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by revenue code and CPT code, and verified the truth of the claim to the carrier for payment. In

response to each claim, the insurance carrier issued payment or denial accompanied by an

Explanation of Medical Benefits (the "EOB").

37. Insurance carriers relied on the representations contained on the claim forms

submitted and paid claims based on those representations. Insurers relied upon providers to

honestly and accurately describe the services rendered for which payment was sought and the

actual charge to the member for providing such service.

3 8. SHSC and PSG were non-contracted and non-participating providers for the

Insurers. As a result, the Insurers reimbursed beneficiaries who obtained services from non-

participating providers based on formulas specified in their benefit plans. Beneficiaries who

chose to see non-participating providers remained responsible for charges above the amount the

Insurers paid. Beneficiaries who chose to see non-participating providers typically faced higher

out-of-pocket expenses.

39. The Insurers required patients who received services or supplies from SHSC and

PSG to satisfy all deductible and co-insurance requirements for out-of-network benefits. A non-

participating provider could seek reimbursement directly from the Insurers if an individual

participant assigned to the provider his or her right to payment on the claim. In that case, the

non-participating provider submitted a health service claim form to the Insurers. The Insurers

had no way to monitor whether a provider actually collected the required patient responsibility

amounts from the member. As such, the Insurers relied on the honesty and integrity of the

providers to collect those amounts. A provider's failure to properly reduce the submitted charges

or to collect the deductible, co-insurance, or similar amount before submitting a claim was a

misrepresentation of the charge.

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40. The billing codes associated with the MUA procedure consisted of procedure

codes and diagnosis codes.

41. The MUA procedure codes consisted of the following:

a. 23700. Manipulation under anesthesia, shoulder joint. In this procedure,

the provider manipulated a patient's shoulder joint with the patient under anesthesia. The

provider made no incision. When the patient was appropriately prepped, the provider evaluated

the patient and then passively moved or stretched the shoulder joint in the direction of the

restricted range of motion. The manipulation consisted of passive movement and stretching of

the shoulder joint with an aim to break up the fibrous and scar tissue to relieve pain and improve

range of motion.

b. 27194. Closed treatment of pelvic ring fracture, dislocation, diastasis or

subluxation, with manipulation, requiring more than local anesthesia. The pelvic ring was a ring

of bones that connected the tnmk to the legs, also known as the pelvic girdle. Diastasis was the

abnormal separation of body parts held together by the muscles. Subluxation was the partial

dislocation of a joint. Treatment included manipulation, or adjustment, of the fractured bone.

The provider manually adjusted the bones by exerting a pushing or pulling force on the area to

bring the pelvis back to normal alignment. After the MUA, the provider may perform an X-ray

examination of the pelvic bone to confirm the reduction of the fracture or dislocation.

c. 27275. Manipulation, hip joint, requiring general anesthesia. In this

procedure, the provider performed manipulation of the hip joint under anesthesia. Manipulation

consisted of passive movement and stretching of the hip joint with an aim to break up the fibrous

and scar tissue to relieve pain and improve range of motion. The provider used general

anesthesia to reduce pain, spasm, and reflex muscle guarding. The provider was able to break

the joint adhesions and soft tissue adhesions, resulting in improved range of motion of the joint.

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d. 22505. Manipulation of spine requiring anesthesia, any region. The

provider manipulated the spine under general anesthesia to treat spinal dysfunction and to

alleviate acute and chronic neck and back pain. The provider made no incision. When the

patient was appropriately prepped and anesthetized, the provider manipulated the spine in the

area of discomfort. When the provider performed a manipulation of the spine, it encompassed

the manipulation performed on the spine, pelvis, and hips.

42. The diagnosis codes, also referred to as the ICD-9 codes, consisted of the

following:

a. 726. Adhesive capsulitis or frozen shoulder. This was a condition

characterized by pain and significant loss of both active range of motion and passive range of

motion of the shoulder.

b. 726.5. Enthesopathy of hip region, e.g., Bursitis of hip Gluteal tendinitis,

Iliac crest spur, Psoas tendinitis, Trochanteric tendinitis. Enthesopathies were disorders of

peripheral ligamentous or muscular attachments.

c. 728.85. Spasm of muscle.

d. 729.1. Unspecified Myalgia and myositis, e.g., muscle ache, muscle

inflammation not specific to any region.

F. Insurer MUA Policies

43. Anthem had a medical policy regarding MU As. MUA was considered medically

necessary for only adhesive capsulitis (frozen shoulder) and in the treatment of vertebral fracture,

complete dislocation of the spine, or acute traumatic incomplete dislocation (subluxation) of the

spine. It was investigational and not medically necessary for all other diagnoses. MUA of any

other joint was not medically necessary except for the knee.

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44. MM considered MUA (CPT Codes 22505, 23700, 24300, 25259, 26340, 27570

and 27860) medically necessary and eligible for reimbursement provided that at least one of the

following medical criteria was met:

Reduction of acute traumatic cervical facet dislocation; or

Shoulder joint adhesive capsulitis (i.e., frozen shoulder) refractory to standard, conventional medical management, including pharmacologic therapy (with or without articular or bursa injections) and physical therapy; or

Arthrofibrosis of the knee following trauma or knee surgery (e.g., total knee replacement, anterior cruciate ligament repair); or

Chronic extremity contracture(s) refractory to standard, conventional medical management, including failure of, intolerance to or unable to undergo physical therapy including a range of motion exercise program;

and at least one of the following clinical conditions, as indicated by ICD-9 diagnosis code, was

present: 718.41, 718.42, 718.43, 718.44, 718.46, 718.47, 718.51, 718.56, 722.0, 723.3, 726.0,

726.60, or 839.

45. United had a medical policy regarding MUAs. CPT code 22505 (spinal

manipulation) was never considered to be proven to be effective treatment and therefore was not

a covered service. CPT code 23 700 (shoulder manipulation) was considered to be proven to be

effective treatment and therefore a covered service only for a diagnosis of adhesive capsulitis

(otherwise known as frozen shoulder). If that diagnosis was not present, the shoulder

manipulation was not a covered service. CPT code 27194 (pelvic manipulation, requiring more

than local anesthesia) was considered to be effective treatment and therefore a covered service

only for a diagnosis of acute traumatic fracture, dislocation, diastasis or subluxation. If those

diagnoses were not present, the pelvic manipulation was not a covered service.

46. Aetna had a medical policy regarding MUAs. CPT code 22505 (spinal

manipulation) .was never considered to be proven to be effective treatment and therefore was not

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a covered service. CPT code 23700 (shoulder manipulation) was considered to be proven to be

effective treatment and therefore a covered service only for a diagnosis of adhesive capsulitis.

Aetna did not provide coverage for CPT codes 27194 or 27275.

II. FACTUAL ALLEGATIONS

4 7. ED LIV A and CHRIS LIV A formed PSG in Florida and hired MARK FRITZ to

handle, among other things, the billing for the professional and facility fees for MUA procedures

performed at SHSC. FRITZ was the manager and Chief Financial Officer of PSG, ran the day to

day operations, and was involved in providing the guidelines for company procedures. FRITZ

was responsible for PSG' s accounting and bookkeeping.

48. To recruit and identify chiropractors to steer patients to SHSC for MUA

procedures, CHRIS LIV A partnered with John K., a chiropractor from Northern Ohio, who

owned several chiropractic practices and knew many chiropractors in the area.

49. CHRIS LIV A recruited an osteopathic physician, Joseph M., to serve as the

"attending" surgeon for the MUA procedure. CHRIS LIV A and MARK FRITZ needed an

osteopathic physician, a "D.O.," such as Joseph M., to perform the MU As at SHSC because they

wanted to conceal the use of chiropractors, which would cause the Insurers to scrutinize the

claims. Joseph M. was paid on a flat-fee basis of$1,500 per day. After Joseph M. stopped

performing MU As, SHSC hired Ben 0., M.D., to perform MU As.

50. CHRIS LIV A recruited NICKELS to participate in the scheme by purportedly

serving as a "second assist" in the MUA. PSG submitted claims to the Insurers representing that

NICKELS was the "co-attending" surgeon for the MUA procedures. CHRIS LIVA paid

NICKELS on a flat-fee basis of$1,000 per day, even though NICKELS had a contract with ACA

to provide only the anesthesia services during an MUA. At no time did NICKELS actually assist

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in the MUA procedure itself. And at no time was it ever contemplated that NICKELS would

actually assist in the MUA procedure -that was the silent role of the referring chiropractor.

A. Marketing to and Training of Chiropractors

51. Beginning in or around 2008, CHRIS LIV A and others known and unknown to

the Grand Jury began marketing SHSC and the MUA procedure to chiropractors in Northern

Ohio. The marketing meetings typically occurred at restaurants in downtown Cleveland or the

Youngstown area. Attendees were invited through a mailing list of chiropractors in the Northern

Ohio area.

52. At or around the time of the marketing meetings, CHRIS LIVA and others known

and unknown to the Grand Jury entered into oral agreements with chiropractors under which, in

exchange for referring their patients to SHSC for MUA, the chiropractors would receive a flat

fee of approximately $4,000 for each patient they referred for a three-day session of MU A

procedures. Although the majority of chiropractors were paid $4,000 per patient, there were

times when a chiropractor was paid $2,000 for a patient receiving something less than the full

MU A. FRITZ, ED LIV A, and CHRIS LIV A determined the amount the referring chiropractors

were paid.

53. The flat fee was a fixed amount and did not vary based on the degree of

involvement by the chiropractor in the MUA procedure. These flat-fee referral agreements

induced the chiropractors to refer their patients to SHSC. Although the referring chiropractors

would ostensibly assist in performing the actual MUA procedures, these payments were not

designed to reimburse the referring chiropractors for services they rendered. Instead, the

payments were made to induce referrals of the chiropractors' patients to enable the PSG Entities,

SHSC, the ACA Entities to submit inflated charges for professional fees, facility fees, and

anesthesia for the MUA procedures. Indeed, a fee of $4,000 for assisting in a brief procedure

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lasting only a few minutes over three days was significantly more than a chiropractor could ever

receive for three chiropractic office visits by a single patient.

54. Before referring a patient to SHSC for the MUA procedure, the chiropractor was

required to participate in an MUA "certification course." The certification purported to apply the

following national chiropractic standards as set forth by the National Association ofMUA

Physicians ("NAMUAP") to determine whether the person was an appropriate candidate for the

MUA procedure:

a. The patient had responded sub-optimally to conservative chiropractic

treatment, often with medical co-management, and continued to experience intractable pain or

biomechanical dysfunction.

b. The patient received sufficient care prior to recommending MUA, usually

lasting a minimum period of four to six weeks, but exceptions could apply depending on the

patient's individual needs. Manipulation procedures had been used in a clinical setting during

this period prior to recommending MUA.

c. The patient's level of reproduced pain interfered with activities of daily

living or caused disability and the diagnosed conditions fell within the recognized categories of

conditions responsive to MUA.

d. The patient's treatment of choice was manipulation of the spine or other

articulation, however, the patient's pain threshold, injury mechanism, chronicity of the problem,

or the fibrous tissue adhesions present, inhibited the effectiveness of conservative manipulation.

55. In contrast to the guidelines purported to apply to chiropractors, the following

osteopathic guidelines, which applied to D.O.s like Joseph M., provided that the MUA could be

appropriate in cases ofrestrictions and abnormalities of function, including recurrent muscle

spasm, range of motion restrictions, persistent pain secondary to injury, and repetitive motion

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trauma. The osteopathic guidelines also provided that MUA was an alternative approach after

the patient's failure to significantly improve with conservative treatment, including but not

limited to, osteopathic manipulative treatment ("OMT"), physical therapy, and medication. In

general, MUA was limited to patients who had somatic dysfunction, which:

a. failed to respond to conservative treatment in the office or hospital that

had included the use of OMT, physical therapy, and medication;

b. was so severe that muscle relaxant medication, anti-inflammatory

medication, or analgesic medications were of little benefit; or

c. resulted in biomechanical impairment which could be alleviated with the

use of the procedure.

56. Failure may be defined as a lack of significant response in 3-6 weeks in the acute

phase, 6-12 weeks in the post-acute phase, and greater than 12 weeks in the chronic phase. In

the chronic pain patient, these criteria may be met at the initial evaluation by an osteopathic

physician.

57. Under the osteopathic guidelines, MUA was usually a single dose procedure. As

with other OMT procedures, patients occasionally reported post-treatment reactions. The

reaction could last 24-48 hours and included musde soreness usually relieved by rest, warm

bath, and mild anti-inflammatory or analgesic medication. In some cases, a follow-up MUA

could be indicated after a three week interval. If a follow-up MUA was indicated with less than

a three week interval, a second opinion was recommended. After a second or follow-up MUA,

any additional MUA considerations should be with the consensus of appropriate consultants.

58. One MUA certification course was offered by Robert G. through his company,

Cornerstone Professional Education, Inc., ("Cornerstone"), which was sponsored primarily by,

and targeted to, chiropractors. Cornerstone marketed and taught MUA certification courses

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around the country. Robert G.'s MUA course involved a didactic lecture component, typically

held at a hotel conference room, with observation and proctorship components that were held at a

local ASC. Participants in the course could obtain their certification only after they performed

actual MUA procedures on at least one live patient, which the course participant was required to

provide.

59. While Robert G. taught his MUA course in several locations, in the fall of2008,

Robert G. taught at least one course in Cleveland, Ohio, and used SHSC's facility for the

observation and proctorship components. Participants at the course received template language

for use in documenting the clinical justification for MUA in their own chiropractic treatment

records, sample "letters of medical necessity," and template operative reports for the actual

MUA procedure.

60. CHRIS LIV A and others known and unknown to the' Grand Jury told the referring

chiropractors that PSG would handle all of the billing for the procedures. Neither PSG nor

SHSC provided copies of the MUA operative reports or other procedure records to the referring

chiropractors so that they could bill insurers for performing the MUA procedures, either as a co-

attending provider, otherwise known as a "second assist," or otherwise.

61. CHRIS LIV A and others known and unknown to the Grand Jury explained t? the

referring chiropractors that they would only receive their payment after the Insurers paid the

professional fees for the MUA procedures, which could often take several weeks or months.

PSG paid the chiropractors their referral fees by checks sent through the mail, which were issued

by one of the PSG Entities and typically signed by CHRIS LIV A or CAROL VIA.

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B. Inducements to Patients

62. PSG advised referring chiropractors that patients did not have to pay anything for

the procedure. In turn, the referring chiropractors, including SIMONE and FORTUNA,

informed their patients that they would not have to pay for the MUA. FRITZ instructed SHSC

employees not to take any money from the patients.

63. SHSC paid for the patients' hotel lodging during the three-day MUA procedure as

well as the patients' transportation to and from the hotel.

C. Insurance Verification for MUA Candidates

64. Employees at SHSC and PSG processed several documents to verify the existence

of insurance coverage from the Insurers before they scheduled patients for the MUA procedure.

a. SHSC MUA Patient Registration Form. The chiropractors were

instructed to execute and fax to PSG an SHSC "MUA Patient Registration Form." The top part

of this form, which was to be completed by the referring chiropractor's office, requested

information regarding the patient's insurance, including the insurance ID number, group number,

phone number, address, and name. The bottom part of this form was to be completed by PSG

upon receipt from the chiropractor. The form sought from the insurer the patient's deductible

and, among other things, which MUA CPT codes the insurer covered. Written on the form were

the numbers 22505, 27194, 23700, and 27275. The PSG employee then circled which codes

were covered by the insurer. In most cases, the insurer would cover only 27194, 23700, and

27275. CPT code 22505 was virtually never covered without pre-certification, and therefore,

virtually never circled.

b. Comprehensive Medical History. Another form the referring

chiropractor was instructed to fax to PSG before the MUA could be scheduled was the SHSC

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"Comprehensive Medical History" form. This form was typically completed by the patient. It

did not request the chiropractor's diagnosis.

c. Insurance Company Payment Policy. Because the MUA procedure at

SHSC was almost always out-of-network for the patients, the patients' insurer routinely sent the

payment on the claims submitted by the PSG Entities and the ACA Entities to the patient

directly. To ensure payment, the co-conspirators required the patients to sign the Insurance

Company Payment Policy form (the "Payment Form"). The Payment Form provided that the

patient "affirm[ ed] and attest[ ed] that I am in no way entitled to this reimbursement for medical

procedures, and I understand that this money is intended to pay [SHSC, PSG, and others]. ...

[I]n the event I receive a check or checks from the responsible insurance company as payment

for my procedure(s) or the insured's procedure(s), I will immediately or within forty eight hours

contact the appropriate party (Doctor or Surgical Center) about the check and return these funds

to the appropriate party(ies). I understand that I am ultimately responsible for all medical bills if

my insurance company fails to pay, and I will assist PSG or any entity with the collection of any

funds."

d. Referring Chiropractors' notes (referred to as "SOAP notes"). PSG

purported to require approximately six to eight weeks of patient care notes from the patient's

doctor before approving the patient for MUA. PSG also purported to require notes pertaining to

any follow-up care provided by the doctor after the MUA was performed. PSG purportedly

instructed the referring chiropractors to email or fax their SOAP notes to PSG before the MUA.

FRITZ instructed employees at PSG with no medical background to complete pre-approvals

based on medical necessity.

65. FRITZ made interstate wire calls from Florida to Ohio to convince the referring

chiropractors to add additional codes to their diagnoses in order to obtain insurance coverage.

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66. To secure payment for the MUA procedures, PSG employees placed telephone

calls to the Insurers using referral forms, supplied by the chiropractors, which listed the patients'

name, contact information, and insurance information. PSG's billing staff, which worked from

the PSG billing office in Boca Raton under the supervision of PSG employee MARK FRITZ,

used the forms to call the Insurers to inquire whether the patients had coverage for certain CPT

codes. For example, PSG's billing staff would indicate on these forms whether CPT code 22505

(spinal MUA) was covered, and if not, notate that the procedure should not be billed. These

worksheets were thus a critical component of the scheme, as they enabled Defendants to bill only

procedure codes that were unlikely to trigger further review, and thus conceal the scheme's

existence.

67. If the patient's insurance company did not provide coverage for MUA, PSG and

SHSC instructed Referring Chiropractors to "continue care as indicated." PSG and SHSC did

not permit MU As in the absence of insurance coverage, so Referring Chiropractors did not even

discuss the benefits of MU A with patients who might be interested in paying for the procedure

with their own money. The scheme focused on obtaining insurance money, not on providing a

medical benefit to patients.

D. Performance of the MUA Procedure

68. After PSG verified the patient's insurance coverage for the MUA, the patient was

scheduled for the three-day MUA procedure at SHSC, typically on a Thursday, Friday, and

Saturday. SHSC scheduled the patients on each day in 15-minute increments and could see up to

25 patients in one day.

69. CHRIS LIV A, FRITZ, and others known and unknown to the Grand Jury were

sometimes at SHSC on days when the MUA was being performed. On the first morning of the

MUA, typically Thursday morning, all of the chiropractors were gathered in the doctors' lounge

19


at SHSC. There, CHRIS LIV A and others known and unknown to the Grand Jury distributed a

document referred to as the MUA Fee Routing Slip to the chiropractors. The MUA Fee Routing

Slip (hereinafter, the "Fee Routing Slip") was executed by the referring chiropractor at SHSC on

the first day of the patient's MUA. The Fee Routing Slip required the chiropractor to provide the

patient's name, the chiropractor's name, and the date. The Fee Routing Slip also listed a series

of CPT codes, under which were diagnosis codes, descriptions, and boxes for the chiropractor to

check. The chiropractors were supposed to sign their names to the Fee Routing Slips after they

were executed. An SHSC employee faxed a copy of the Fee Routing Slip to PSG.

70. CHRIS LIV A and others known and unknown to the Grand Jury at times rushed

the chiropractors into completing the Fee Routing Slips and instructed the chiropractors to

diagnose "pelvic ring fracture."

71. Before receiving anesthesia, Joseph M. interviewed each patient in the company

of the referring chiropractor, though Joseph M. did not ask specific questions about prior care.

During the interview, Joseph M. executed the following forms:

a. The MUA Routing Slip (hereinafter, the "Routing Slip"). The Routing

Slip required Joseph M. to list the patient's name, date, doctor (always himself), and "assistant,"

who he designated as the referring chiropractor. For "Day I" of the MUA, the Routing Slip

required Joseph M. to ask the patient about the pain level on a scale of I to 10. The Routing Slip

also required Joseph M. to circle on the form the patient's complaint in the categories of cervical

spine, thoracic spine, and lumbar spine only. The second page of the Routing Slip contained

sections for "Day 2" and "Day 3" of the MUA and required Joseph M. to again ask about the

patient's pain level on a scale of I to I 0 and the status of the patient's pain and range of motion.

Upon receipt, SHSC Administrator Leslie S. faxed the Routing Slip to Tess D. at PSG.

20


b. The Optimization Letter. Joseph M. also executed a one sentence

document that the patient "has been evaluated by me preoperatively, I have reviewed the

patient's medical and social history, and the patient is optimized for the planned manipulation

under anesthesia." This letter was solely an evaluation of whether the patient could safely be

anesthetized.

c. The SHSC Patient History and Physical Form (hereinafter, the "History

Form"). The History Form listed the patient's name and the procedure that patient was to

receive. While there was some variety among the patients' History Forms, namely the patient's

medications and allergies, certain sections of the History Form were pre-completed for every

patient. Namely, the procedure for every patient was pre-completed as being "Manipulation

under anesthesia" and the "history of present illness" for every patient, regardless of actual

patient complaints, was "[p ]atient complaining of pain to neck, shoulders, arms, back, hips and

legs." The History Form was already part of the patients' charts before the MUA procedures.

72. Regardless of the patients' complaints or treatment history, the MUA procedure at

SHSC was the same for virtually every single patient: a full, spinal MUA, including the spine,

pelvis, and hips; the procedure also typically included manipulation of both shoulders.

73. After Joseph M. interviewed the patient, an anesthesiologist, typically NICKELS,

or a nurse anesthetist, Linda P., administered the anesthesia to the patient. Each day of the MUA

generated several operating room documents, including the following:

a. The SHSC Operating Room Record (hereinafter, the "Op Notes"). The

Op Notes indicated the length of time the patient was in the operating room, which for patients

receiving the MUA at SHSC was approximately ten minutes or less. The Op Notes listed the

"MD/DO," the chiropractor, the anesthesiologist and the CRNA (almost always NICKELS and

Linda P., respectively). The Op Notes described the procedures as "Manipulation under

21


Anesthesia" only, without further detail. The Op Notes also required a "Pre Op Diagnosis" and a

"Post Op Diagnosis," which evolved over time and in almost every case was completed with the

phrase, "chronic pain."

b. The MUA Flowsheet (hereinafter, the "Flowsheet"). The Flowsheet

provided information such as medications, monitors, and vital signs, but also had a section for

"Preop Notes." Occasionally, the "Preop Notes" section would indicate that the patient received

a "full spinal MU A."

74. The procedure itself consisted of the D.O., Joseph M., performing the full, spinal

MUA while the referring chiropractor assisted. The procedure included manipulating the

patient's shoulders, for instance, regardless of whether the patient complained of shoulder pain.

The whole procedure, including anesthesia and the manipulation, typically took less than 10

minutes.

75. After the MUA was completed and the anesthesia had worn off, the patient was

interviewed, discharged from SHSC, and transported by SHSC to the hotel. In most instances,

the patient was not evaluated by the referring chiropractor. In almost every instance, the

identical procedure was repeated on the second and third days.

E. Insurance Billing

76. The next step in the scheme was for PSG to submit claim forms to the Insurers

that would maximize the probability of payment and minimize the detection of their fraud. PSG

billed the lnsurers for MUA procedures performed at SHSC on approximately 400 patients. As

discussed above, at least the vast majority of these procedures were in fact performed by the

referring chiropractors and the osteopathic physician, Joseph M.

77. To maximize the probability of payment and minimize detection of their fraud,

Defendants compartmentalized the operational and billing functions: the MUA procedures were

22


performed at SHSC in the Northern District of Ohio, and the billing was performed at PSG, in

Boca Raton, Florida.

78. After the MUA procedures, SHSC transmitted via interstate wire from the

Northern District of Ohio to PSG in Florida several documents to further document the file.

Among the documents sent to PSG were the Fee Routing Slips, the Routing Slips, and the Op

Notes. With this information, FRITZ directed the staff at PSG to create the Operation Reports

(hereinafter, the "Op Reports"), which were faxed or emailed back to SHSC. The Op Reports

were created from templates using the Routing Slips that purported to document what happened

in the operating room. PSG sometimes sent the Op Reports to the Insurers as well as back to

SHSC for entry into the patients' files.

79. Part of the Op Reports' template that virtually never changed from patient to

patient was the "Procedures Performed" section and the "Pre-op Diagnosis Section." Virtually

every patient's Op Report stated the following:

"PROCEDURES PERFORMED:

1. Manipulation under pelvis requiring more than local anesthesia, RIGHT & LEFT

2. Manipulation under anesthesia, shoulder joint, RIGHT & LEFT

3. Manipulation of the spine requiring anesthesia, CERVICAL, THORACIC, & LUMBAR regions.

PRE-OP DIAGNOSIS:

I. Myalgia and Myositis; cervical, thoracic, lumbar, bilateral shoulder/peri-scapular musculature, pelvic girdle musculature, and bilateral hip regions (!CD( 729.1)

2. Spasm of muscle/muscle hypertonicity; cervical thoracic, lumbar, bilateral shoulder/peri-scapular musculature, pelvic girdle musculature, and bilateral pelvic regions (ICD-9 728.85)

3. Adhesive capsulitis of shoulder (ICD-9 726.0)."

23


80. The Op Reports contained the D.0.'s name, Joseph M., at the end, providing that

Joseph M. "dictated" the Op Report but did not read it, when in truth and in fact, Joseph M. did

not dictate the report and never made the diagnoses contained in the Op Report. A separate Op

Report was generated for each day the patient received the MUA procedure.

81. FRITZ, CHRIS LIV A, and ED LIV A were responsible for determining what

ailment to list in the patients' notes. When PSG employees questioned this practice, they were

told to mind their own business.

82. As PSG papered its file, as was customary at all relevant times in this Indictment,

PSG used either the electronic equivalent of a standard CMS-1500 (formerly HFCA-1500) health

insurance claim form (hereinafter, the "Claim Forms") that required providers to accurately

describe the services provided to members using a specific Current Procedural Terminology code

(a "CPT Code") or an electronic UB-04 or UB-92 form that required the use of revenue codes for

certain facility services.

83. To fraudulently induce the Insurers to provide reimbursement for MU As that

were not covered (such as spinal MUA), PSG submitted Claim Forms using CPT or revenue

codes that masked and concealed the spinal MUA services actually provided. For example, PSG

used codes that described such procedures as "Treatment of Pelvic Ring Fracture or

Subluxation," "Manipulation of Hip Joint," and "Fixation of Shoulder" to submit claims for what

were, in reality, spinal MUA procedures.

84. For virtually every patient who received the MUA at SHSC, PSG described the

patients' diagnosis on the Claim Forms as being the following: 728.85 for muscle spasms, 726.0

for adhesive capsulitis, and 729. l for myalgia and myositis.

24


85. For virtually every patient, PSG billed the Insurers for manipulation of the

shoulder under anesthesia using the CPT code 23700, and they did so bilaterally (i.e., both right

and left shoulders). PSG also included CPT codes for 27194, and if the Insurer would pay it,

22505.

86. On the Claim Forms for professional services, PSG submitted two forms: one

Claim Form for the primary doctor performing the MUA and a second Claim Form for the

secondary doctor performing the MUA. PSG listed Joseph M., the D.O., as the primary doctor.

PSG listed NICKELS, an M.D., on the Claim Forms as the secondary doctor, when they then

well knew that NICKELS, the anesthesiologist, administered the anesthesia and did not perform

the MUA. At no time did PSG list on the Claim Forms any of the Referring Chiropractors;

virtually all Claim Forms instead falsely listed Joseph M. as the "Referring Physician."

Defendants then well knew that including only the D.O. and the M.D. on the Claim Forms, and

concealing the Referring Chiropractors' roles on the Claim Forms, would maximize the

probability of payment and minimize detection of the fraud.

87. The Claim Forms were mailed to or filed electronically with the Insurers.

88. The electronic UB-04 or UB-92 forms for the SHSC facility services were

similarly billed using Joseph M.'s name and NPI number only.

89. PSG's bills for the MUA ranged from the tens of thousands to more than one

hundred thousand dollars.

90. The ACA Entities billed the insurers for the anesthesia component of the MUA

procedure. In turn, the ACA Entities split the proceeds from the MUA procedures performed at

SHSC with ED LIVA, CHRIS LIVA, and CAROL VIA through payment to one or more of their

entities, including ECSC and E&C.

25


91. Insurance claims checks were sent directly to the patients because SHSC was out-

of-network for virtually all the patients' policies. The patients were instructed to endorse the

checks and send them to PSG or to their referring chiropractor. PSG took the money from the

patient's insurance company, and FRITZ wrote off the rest of the payment to make the patient

balance zero.

92. 7431 paid the referring chiropractors only if PSG was paid by the Insurers.

Likewise, PSG paid SHSC only if the Insurers paid PSG. FRITZ and ED LIV A determined the

amount the referring chiropractors were paid. CAROL VIA and CHRIS LIVA signed the checks

to the chiropractors and were the account holders on all of the PSG bank accounts used in

furtherance of the scheme.

F. Appeals of Denied Claims

93. If the Insurer denied the claim, then PSG called the insurers to convince them to

pay. If that did not work, PSG wrote appeal letters, which sometimes included documentation

regarding treatment of the patients. In connection with this process, PSG called the patients to

urge them to contact their insurance company, which PSG employees believed would enhance

the chance that the Insurers would pay.

94. If the Insurers finally refused payment, FRITZ caused PSG employees to contact

the patients and told them to pay and contact their insurance provider, despite assurances to the

contrary before the MUA procedures. PSG employees brought collections problems to FRITZ.

95. The ACA Entities also pursued appeals of denied claims for anesthesia related

billings.

26


III. STATUTORY VIOLATIONS

COUNT! (Conspiracy to Commit Wire Fraud, 18 U.S.C. 1343 and Health Care Fraud, 18 U.S.C. 1347,

in violation of 18 U.S.C. 1349)

The Grand Jury charges:

96. The Grand Jury realleges and incorporates b)! reference the allegations set forth in

paragraphs 1 through 95 of the Indictment as if fully set forth herein.

97. From in or around December 2007, and continuing until at least approximately

September 2010, the exact dates being unknown to the Grand Jury, in the Northern District of

Ohio, Eastern Division, and elsewhere, Defendants PSG, CHRISTOPHER LIV A, EDWARD

LIV A, MARK FRITZ, JOHN NICKELS, JOHN FORTUNA, and ANTHONY SIMONE did

knowingly and intentionally combine, conspire, confederate and agree with each other, and with

others both known and unknown to the Grand Jury, to commit federal offenses, to wit:

a. To knowingly and willfully execute and attempt to execute a scheme and

artifice to defraud a health care benefit program, and to obtain, by means of false and fraudulent

pretenses, representations and promises, money owned by, and under the custody and control of,

a health care benefit program, namely, the Insurers, in connection with the delivery of or

payment for health care benefits, items and services, in violation of Title 18, United States Code,

Section 134 7 (Health Care Fraud); and

b. To devise and intend to devise a scheme and artifice to defraud the

Insurers, and to obtain money from the Insurers by means of false and fraudulent pretenses,

representations and promises, and for the purpose of executing such scheme and artifice, to

transmit and cause the transmission by means of wire communications in interstate commerce

any writing, sign, signal, and picture, in violation of Title 18, United States Code, Section 1343

(Wire Fraud).

27


OBJECTS OF THE CONSPIRACY

98. The objects of the conspiracy were to unlawfully (1) induce patients to receive the

MUA procedure at SHSC; (2) defraud the Insurers; (3) obtain payments on claims to which the

conspirators knew they were not entitled; and ( 4) enrich the conspirators.

MANNER AND MEANS OF THE CONSPIRACY

99. To attain the objects of the conspiracy, Defendants employed the following

manner and means:

a. It was a part of the conspiracy that persons known and unknown to the

Grand Jury contacted the Insurers prior to the MUA procedures to inquire about what MUA

codes were covered services under the patients' insurance and then billed only those codes even

when non-covered manipulations were performed.

b. It was a part of the conspiracy that persons known and unknown to the

Grand Jury disregarded the actual diagnoses and procedure codes provided by some Referring

Chiropractors on the MUA Fee Routing Slips or otherwise and instead submitted claims for

adhesive capsulitis and pelvic ring fracture or subluxation.

c. It was a part of the conspiracy that persons known and unknown to the

Grand Jury used false diagnoses and procedure codes in, among other things, Claim Forms and

to populate patient files with false Op Reports.

d. It was a part of the conspiracy that persons known and unknown to the

Grand Jury submitted false claims and other records to reflect that the patients were diagnosed

by a D.O. and M.D. with conditions warranting MUA when, in fact, the D.O. and M.D. never

made such diagnoses.

e. It was a part of the conspiracy that persons known and unknown to the

Grand Jury falsely represented on professional and facility claim forms that the MUA procedures

28


were performed by a D.O. and an M.D., when, in truth and in fact, the procedures were actually

performed by a D.O. and the Referring Chiropractor.

f. It was a part of the conspiracy that persons known and unknown to the

Grand Jury falsely represented on professional claim forms that Joseph M. was the Referring

Physician, when, in truth and in fact, the Referring Chiropractor was the Referring Physician.

g. It was a part of the conspiracy that the D.O. failed to apply recognized

osteopathic guidelines when performing MUA procedures.

h. It was a part of the conspiracy that persons known and unknown to the

Grand Jury attempted to obtain reimbursement for spinal MUA services by falsely representing

that other procedure codes were performed.

I. It was a part of the conspiracy that the ACA Entities and persons known

and unknown to the Grand Jury attempted to collect on claims for anesthesia services for

medically urmecessary MU As.

j. It was a part of the conspiracy that persons known and unknown to the

Grand Jury routinely waived the patients' required co-payments, deductibles, and other forms of

patient responsibility payments to induce the patients to undergo the MUA procedures.

k. It was a part of the conspiracy that persons known and unknown to the

Grand Jury failed to disclose to the Insurers that patients received incentives to increase the

number ofMUA procedures at SHSC, including payment of travel and lodging expenses and

waiver of co-payments, deductibles and other forms of patient responsibility.

I. It was a part of the conspiracy that persons known and unknown to the

Grand Jury appealed the denial of MUA claims by making interstate phone calls and submitting

interstate wire faxes to the Insurers.

29

I


m. It was a part of the conspiracy that persons known and unknown to the

Grand Jury appealed the denial ofMUA claims by mailing appeal letters to the Insurers.

n. It was part of the conspiracy that PSG, CHRIS LIVA, FRITZ, and others

known and unknown to the Grand Jury marketed the profitability ofMUA procedures to JOHN

FORTUNA, ANTHONY SIMONE .and other chiropractors known and unknown to the Grand

Jury by offering up to $4,000 for the referral of patients for MUA procedures that would require

only approximately 10 minutes of the Referring Chiropractor's time for three consecutive days,

which was significantly more than a chiropractor could ever receive for three chiropractic office

visits by a single patient.

o. It was part of the conspiracy that as a result of the inducements offered by

PSG, CHRIS LIV A, FRITZ, and others known and unknown to the Grand Jury, JOHN

FORTUNA, ANTHONY SIMONE, and other chiropractors known and unknown to the Grand

Jury recommended to their patients that they undergo MUA procedures that were not medically

necessary.

p. It was part of the conspiracy that JOHN FORTUNA, ANTHONY

SIMONE, and other chiropractors known and unknown to the Grand Jury assured their patients

that they would not have to pay anything for the MUA procedure.

q. It was part of the conspiracy that PSG, CHRIS LIVA, FRITZ, and others

known and unknown to the Grand Jury agreed not to collect any payment from patients to induce

them to undergo the MUA procedure.

r. It was part of the conspiracy that PSG, CHRIS LIVA, FRITZ, and others

known and unknown to the Grand Jury sometimes paid for the patients' travel and lodging

expenses to induce them to undergo the MUA procedure.

30


s. It was part of the conspiracy that JOHN FORTUNA, ANTHONY

SIMONE, and other chiropractors known and unknown to the Grand Jury failed to disclose to

their patients that they received $4,000 for referring the patient for each three-day MUA

procedure.

t. It was part of the conspiracy that as a result of the inducements offered by

PSG, CHRIS LIVA, FRITZ, and others known and unknown to the Grand Jury, JOHN


Jury falsely diagnosed their patients as suffering from medical conditions they did not have in

order to obtain insurance coverage of the MUA procedure, which was crucial to later obtaining

compensation from the PSG entities.

u. It was part of the conspiracy that as a result of the inducements offered by

PSG, CHRIS LIV A, FRITZ, and others known and unknown to the Grand Jury, JOHN


Jury arranged for and performed medically unnecessary MUA procedures on their patients.

v. It was part of the conspiracy that JOHN FORTUNA, ANTHONY

SIMONE, and other chiropractors known and unknown to the Grand Jury sought and received

compensation from the PSG entities for the medically unnecessary MUA procedures they

performed on their patients.

ACTS IN FURTHERANCE OF THE CONSPIRACY

100. In furtherance of the conspiracy and to effect its unlawful object, Defendants

committed, and caused to be committed, the following acts in furtherance of the conspiracy in

the Northern District of Ohio, and elsewhere:

31


a. In the sunnner of2008, FRITZ informed patient Carol W. that it was

appropriate to bill MM for an MUA with a pelvic ring fracture or subluxation diagnosis even

though Carol W. did not have any problems with her pelvic ring.

b. In the summer of2008, patient Carol W. discussed PSG's billing of an

MUA with a pelvic ring fracture or subluxation diagnosis with CHRIS LIV A, and he told her

that she did not know what she was talking about and that she better not make any trouble.

c. In the summer of 2008, patient Carol W. discussed PSG' s billing of an

MUA with a pelvic ring fracture of subluxation diagnosis with CHRIS LIVA, and ED LIV A

stated that he would pay to have someone kill Carol W.

d. On or about February 20, 2009, FORTUNA identified patient John M. as a

candidate for MUA.

e. On or about March 11, 2009, FORTUNA wrote a letter of medical

necessity for patient John M. that included false diagnoses relating to the shoulders and pelvis.

f. On or about May 7, 2010, Defendants transmitted, and caused to be

transmitted, a wire communication from PSG in Boca Raton, Florida to MM, a CMS-1500 for

patient John M., billing CPT codes 27194, 23700 RT, and 23700 LT, listing diagnosis codes

728.85 and 726.0 for services performed by NICKELS on or about March 12, 2009.

g. On or about May 7, 2010, Defendants transmitted, and caused to be




h. On or about May 7, 2010, Defendants transmitted, and caused to be


32


patient John M., billing CPT codes 27194, 23 700 RT, and 23 700 LT, listing diagnosis codes


1. On or about February 16, 2009, SIMONE identified patient Jerome P. as a

candidate for MUA.

J. On or about March 2, 2009, SIMONE falsely diagnosed patient Jerome P.

with pelvic ring subluxation.

k. On or about March 11, 2009, SIMONE wrote a letter of medical necessity

for patient Jerome P. that included false diagnoses relating to the shoulders and pelvis.

l. On or about May 7, 2010, Defendants transmitted, and caused to be


patient Jerome P., billing CPT codes 27194, 23700 RT, and 23700 LT, listing diagnosis codes


m. On or about May 7, 2010, Defendants transmitted, and caused to be




n. On or about May 7, 2010, Defendants transmitted, and caused to be




o. On or about October 10, 2008, PSG caused the U.S. Postal Service to send

by certified mail to MM a CMS-1500 for patient Michelle B-1, billing CPT codes 27194 RT,

27194 LT, 27275 RT, 27275 LT, 23700 RT, and 23700 LT, listing diagnosis codes 728.85,

726.5, and 726.0 for services performed by Joseph M. at SHSC on or about July 24, 2008.

33


p. On or about October 10, 2008, PSG caused the U.S. Postal Service to send

by certified mail to MM a CMS-1500 for patient Michelle B-1, billing CPI codes 27194 RT,



q. On or about October 10, 2008, PSG caused the U.S. Postal Service to send

by certified mail to MM a CMS-1500 for patient Michelle B-1, billing CPI codes 27194 RT,



r. On or about December 31, 2008, Defendants transmitted, and caused to be

transmitted, a wire communication from PSG in Boca Raton, Florida to MM for patient Jennifer

T., billing CPT codes 27194 RT, 27194 LT, 23700 RT, and 23700 LT, listing diagnosis codes of

728.85 and 726.0 for services performed by Joseph M. at SHSC on or about December 18, 2008.

s. On or about December 31, 2008, Defendants transmitted, and caused to be


T., billing CPT codes 27194 RT, 27194 LT, 23700 RT, and 23700 LT, listing diagnosis codes of


t. On or about December 31, 2008, Defendants transmitted, and caused to be


T., billing CPTcodes 27194 RT, 27194 LT, 23700 RT, and 23700 LT, listing diagnosis codes of


u. On or about April 29, 2009, Defendants transmitted, and caused to be


patient Hadley C., billing CPTcodes 27194, 23700 RT, 23700 LT, and 22505, and listing

34


diagnosis codes 728.85, 726.0, and 729.1 for services performed by NICKELS on or about April

23, 2009.

v. On or about April 29, 2009, Defendants transmitted, and caused to be


patient Hadley C., billing CPT codes 27194, 23700 RT, 23700 LT, and 22505, and listing

diagnosis codes 728.85, 726.0, and 729. l for services performed by NICKELS on or about April

24, 2009.

w. On or about April 29, 2009, Defendants transmitted, and caused to be

transmitted, a wire communication from PSG in Boca Raton, Florida to MM, a CMS- I 500 for

patient Hadley C., billing CPT codes 27194, 23 700 RT, 23 700 LT, and 22505, and listing

diagnosis codes 728.85, 726.0, and 729.1 for services performed by NICKELS on or about April

25, 2009.

x. On or about June 26, 2009, the ACA Entities caused the U.S. Postal

Service to send by regular mail to MM, a CMS-1500 for patient Hadley C., billing for anesthesia

services performed by NICKELS beginning on or about April 23, 2009.

y. On or about December 8, 2009, the ACA Entities caused the U.S. Postal

Service to send by regular mail to MM, appeal documents in connection with patient Hadley C.,

billing for anesthesia services performed by NICKELS beginning on or about April 23, 2009.

z. On or about January 9, 2010, the ACA Entities caused the U.S. Postal

Service to send by regular mail to MM, appeal documents in connection with patient Hadley C.,

billing for anesthesia services performed by NICKELS beginning on or about April 23, 2009.

aa. On or about January 21, 2009, Defendants transmitted, and caused to be


patient Karline L., billing CPT codes 27194 RT, 27194 LT, 23700 RT, and 23700 LT, and listing

35


diagnosis codes 728.85 and 726.0 for services performed by Joseph M. on or about January 15,

2009.

bb. On or about January 21, 2009, Defendants transmitted, and caused to be




2009.

cc. On or about January 21, 2009, Defendants transmitted, and caused to be




2009.

dd. On or about February 23, 2009, Defendants transmitted, and caused to be


patient Norman E., billing CPT codes 27194 62 RT, 27194 62 LT, 23700 62 RT, and 23700 62

LT, and listing diagnosis codes 728.85 and 726.0 for services performed at SHSC by NICKELS

on or about February 12, 2009.

ee. On or about February 23, 2009, Defendants transmitted,.and caused to be


patient Norman E., billing CPT codes 27194 62 RT, 27194 62 LT, 23700 62 RT, and 23700 62



ff. On or about February 23, 2009, Defendants transmitted, and caused to be


36


patient Norman E., billing CPTcodes 27194 62 RT, 27194 62 LT, 23700 62 RT, and 23700 62



gg. On or about March 13, 2009, Defendants transmitted, and caused to be

transmitted, a wire communication from PSG in Boca Raton, Florida to Aetna in El Paso, Texas,

a CMS-1500 for patient Robert P., billing CPT codes 27194 62 RT, 27194 62 LT, 23700 62 RT,

and 23700 62 LT, and listing diagnosis codes of728.85 and 726.0 for services performed by

NICKELS at SHSC on or about February 26, 2009.

hh. On or about July 9, 2009, PSG caused the U.S. Postal Service to send by

certified mail to United in Atlanta, Georgia, medical documents for patient Pamela H. for

services performed at SHSC by Joseph M. on or about May 28, 2009, through May 30, 2009.

11. On or about November 12, 2009, PSG caused the U.S. Postal Service to

send by certified mail to Salt Lake City, Utah, medical documents for Pamela K. for services

performed by Joseph M. at SHSC on or about January 15, 2009, through on or about January 17,

2009.

JJ. On or about October 6, 2008, PSG caused the U.S. Postal Service to send

by certified mail to Anthem, a CMS-1500 for patient Darrell E., billing CPT codes 27194 RT,

27194 LT, 23700 RT, and 23700 LT, and listing diagnosis codes 728.85 and 726.0 for services

performed by Joseph M. at SHSC on or about September 25, 2008.

kk. On or about October 6, 2008, PSG caused the U.S. Postal Service to send




37


II. On or about October 6, 2008, PSG caused the U.S. Postal Service to send




mm. On or about November 12, 2008, PSG caused the U.S. Postal Service to

send by certified mail to Anthem, a CMS-1500 for patient Denise H., billing CPT codes 27194

RT, 27194 LT, 23700 RT, and 23700 LT, and listing diagnosis codes 728.85 and 726.0 for

services performed by Joseph M. at SHSC on or about November 6, 2008.

nn. On or about November 12, 2008, PSG caused the U.S. Postal Service to




oo. On or about November 12, 2008, PSG caused the U.S. Postal Service to




pp. On or about October 3, 2008, PSG caused the U.S. Postal Service to send

by certified mail to Anthem, a CMS-1500 for patient Michelle B-2, billing CPT codes 27194 RT,

27194 LT, 23700 RT, and 23700 LT, and listing diagnosis codes of728.85 and 726.0 for

services performed by Joseph M. at SHSC on or about September 25, 2008.

qq. On or about October 3, 2008, PSG caused the U.S. Postal Service to send




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rr. On or about October 3, 2008, PSG caused the U.S. Postal Service to send




ss. On or about June 4, 2009, NICKELS transmitted, and caused to be

transmitted, a wire communication, an email to CHRIS LIV A, demanding payment for "second

assist fees" in the approximate amount of $18,000.

tt. On or about September 7, 2009, NICKELS transmitted, and caused to be

transmitted, a wire communication, an email to CHRIS LIV A, demanding payment for "second

assist fees" in the approximate amount of$15,000.

uu. On or about August 9, 2010, NICKELS caused the U.S. Postal Service to

send by mail a letter to CHRIS LIV A, negotiating the terms of a position at SHSC as Medical

Director and demanding payment in the approximate amount of$19,000.

LOSSES ATTRIBUTABLE TO THE CONSPIRACY

101. From in or around July 2008, to approximately September 2010, the co-

conspirators caused the submission of approximately $20 million in false and fraudulent claims

to the Insurers.

102. From in or around July 2008, to approximately September 2010, the co-

conspirators caused the Insurers ~o pay through mailed checks and wire transfers approximately

$3 million as the result of the submission of false and fraudulent claims.

All in violation of Title 18, United States Code, Section 1349.

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COUNT2 (Wire Fraud- 18 U.S.C. 1343)

The Grand Jury further charges:

103. The Grand Jury realleges and incorporates by reference the allegations set forth in

paragraphs 1 through 95 and the factual allegations contained in paragraph 99 of the Indictment

as if fully set forth herein.

104. From in or around December 2007 through at least approximately September

2010, in the Northern District of Ohio, Eastern Division, and elsewhere, Defendants PSG,

CHRISTOPHER LIV A, EDWARD LIVA, MARK FRITZ, JOHN NICKELS, JOHN

FORTUNA, and ANTHONY SIMONE, devised and intended to devise a scheme and artifice to

defraud the Insurers, and attempting to do so, and for obtaining money and property by means of

false and fraudulent pretenses, representations, and promises. On or about May 7, 2010, in the

Northern District of Ohio, Eastern Division, and elsewhere, for the purpose of executing the

above-described scheme and artifice, Defendants transmitted, and caused to be transmitted, by

means of wire communication in interstate commerce any writing, sign, signal and picture, to

wit, a CMS-1500 for patient John M., billing CPT codes 27194, 23700 RT, and 23700 LT, listing

diagnosis codes 728.85 and 726.0 for services performed by NICKELS on or about March 12,

2009, from PSG in Boca Raton, Florida, to Medical Mutual in Cleveland, Ohio.


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COUNT3 (Health Care Fraud- 18 U.S.C. 1347)


105. The Grand Jury realleges and incorporates by reference the allegations set forth in

paragraphs! through 95 and the factual allegations contained in paragraph 99 of the Indictment

as if fully set forth herein.

I 06. From in or around July 2008, through at least approximately September 2010, in

the Northern District of Ohio, Eastern Division, and elsewhere, Defendants PSG,

CHRISTOPHER LIV A, EDWARD LIVA, MARK FRITZ, JOHN NICKELS, JOHN

FORTUNA, and ANTHONY SIMONE knowingly and willfully executed, and attempted to

execute, a scheme and artifice to defraud the Insurers' health care benefit programs, and to

obtain, by means of false and fraudulent pretenses, representations and promises described

herein, money and property owned by, and under the custody and control of, the Insurers' health

care benefit programs, in connection with the delivery of and payment for health care benefits,

items and services, in violation of Title 18, United States Code, Section 1347. On or about May

7, 2010, in the Northern District of Ohio and elsewhere, Defendants, having knowingly and

willfully executed and attempted to execute the scheme and artifice to defraud the Insurers, and

to obtain money from the Insurers, by means of the false and fraudulent pretenses,

representations and promises described above, did execute and attempt to execute the scheme by

transmitting, and causing to be transmitted from PSG to Medical Mutual, a CMS-1500 for




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COUNT4 (Conspiracy to Commit Money Laundering- 18 U.S.C. l 956(h))


107. The Grand Jury realleges and incorporates by reference the factual allegations set

forth in paragraphs 1 through 95 and the factual allegations contained in paragraph 99 of the

Indictment as if fully set forth herein.

108. From in or around December 2007, and continuing until at least approximately

September 20 I 0, the exact dates being unknown to the Grand Jury, in the Northern District of

Ohio, Eastern Division, and elsewhere, Defendants CHRISTOPHER LIV A, EDWARD LIV A,

CAROLYN VIA, MARK FRITZ, JOHN NICKELS, JOHN FORTUNA, ANTHONY SIMONE,

and others both known and unknown to the Grand Jury, did knowingly and intentionally

combine, conspire, confederate and agree together and with diverse other persons both known

and unknown to the Grand Jury to knowingly and intentionally conduct and attempt to conduct a

series of financial transactions affecting interstate commerce, which transactions involved the

proceeds from a specified unlawful activity; that is, violations of Title 18, United States Code,

Sections 1343 (Wire Fraud) and 1347 (Health Care Fraud), knowing that the transactions

involved the proceeds of some form of unlawful activity, and knowing that they were engaging

in a monetary transaction in criminally derived property of a value greater thiill $10,000 derived

from said unlawful activity, in violation of Title 18, United States Code, Section 1957.

ACTS IN FURTHERANCE OF THE CONSPIRACY

A. Diamond Purchase

109. On or about December I 0, 2008, CAROL VIA and CHRIS LIV A deposited and

caused to be deposited check 1016 in the amount of$100,000.00 in the business name ofECSC

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Anesthesia Services, LLC, into the Northern Trust account number x2853 in the business name

of E&C.

110. On or about December 12, 2008, CAROL VIA and CHRIS LIV A deposited and

caused to be deposited check I 004 in the amount of $33,000.00, drawn on Northern Trust

account number x2853 in the business name of E&C, into the Northern Trust account number

x8947 in the name of Physician's Marketing & Management.

111. On or about January 9, 2009, CAROL VIA and CHRIS LIVA deposited and

caused to be deposited check 1023 in the amount of$100,000.00 from ECSC Anesthesia

Services, LLC, into the Northern Trust account number x2853 in the business name of E&C.

112. On or about January 10, 2009, CHRIS LIVA, CAROL VIA and ED LIVA issued

and caused to be issued check 1007 in the amount of $33,000.00, drawn on Northern Trust

account number x2853 in the business name of E&C, payable to "ECJ" (known as East Coast

Jewelers) to purchase 4.18 karat diamond stud earrings for CAROL VIA and ED LIVA.

113. On or about January 29, 2009, CAROL VIA and ED LIV A issued and caused to

be issued check 1469 in the amount of$30,000.00, drawn on Northern Trust account number

x8947 in the name of Physician's Marketing & Management, payable to ECJ to purchase 4.18

karat diamond stud earrings for CAROL VIA and ED LIV A.

B. CHRIS LIV A's Residence Purchase

114. On or about October 23, 2008, CAROL VIA and CHRIS LIV A deposited and

caused to be deposited check 1093 in the amount of$12,500.00, drawn on Northern Trust

account number x2735 in the business name of SHSC, into the Northern Trust account number

x9303 in the name of CAROL VIA.

115. On or about November 4, 2008, CAROL VIA and CHRIS LIV A deposited and


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account number x2735 in the business name of SHSC, into the Northern Trust account number

x9303 in the name of CAROL VIA.

116. On or about August 31, 2009, CAROL VIA and CHRIS LIV A wire transferred

and caused to be wire transferred the amount of$250,000.00, from the Northern Trust account

number x9303 in the name of CAROL VIA, to Shore to Shore Title Inc., which purchased

CHRIS LIV A's real property located at 863 Enfield Street, Boca Raton, Florida, deeded in the

name CHRIS LIV A.

C. CAROL VIA's Residence Purchase

117. On or about April 16, 2009, CAROL VIA and CHRIS LIVA deposited and

caused to be deposited check 1049 in the amount of$60,000.00, from ECSC Anesthesia Services

LLC, into Northern Trust account number x2853 in the business name of E&C.

118. On or about April 16, 2009, CAROL VIA and CHRIS LIV A deposited and

caused to be deposited check I 072 in the amount of $40,000.00, from ECSC, into Northern Trust

account number x2853 in the business name of E&C.

119. On or about April 17, 2009, CAROL VIA and CHRIS LIV A deposited and

caused to be deposited check I 073 in the amount of $12,500.00, from ECSC, into Northern Trust

account number x2853 in the business name of E&C.



account number x2853 in the business name of E&C, into Northern Trust account number x8936

in the name of CAROL VIA.



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account number x2853 in

in the united states district court -...

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