Fort Myers Urologist Agrees To Pay More Than $1 Million

Fort Myers, FL – United States Attorney A. Lee Bentley, III announces that David Spellberg, M.D., has agreed to pay $1,050,000 to the government to resolve allegations that he violated the False Claims Act by causing claims to be submitted to federal health care programs for laboratory tests that were not medically necessary. 

During the relevant time period, Spellberg was a board certified urologist practicing as part of Naples Urology Associates, which was a division of 21^st Century Oncology, LLC. 21^st Century is a nationwide provider of integrated cancer care services that is headquartered in Fort Myers. As part of its business, 21^st Century employs and affiliates with physicians in specialty fields such as radiation oncology, medical oncology, and urology. 

The settlement announced today resolves allegations that Spellberg submitted claims to Medicare and Tricare for fluorescence in situ hybridization, or “FISH,” tests that were not medically necessary.  FISH tests are laboratory tests performed on urine that can detect genetic abnormalities associated with bladder cancer.  Medicare does not consider a FISH test reasonable or necessary unless it’s used to monitor for tumor reoccurrence in a patient previously diagnosed with bladder cancer or unless, after performing a full urologic workup, the physician has reason to suspect that a patient with hematuria (i.e., blood in the urine) may have bladder cancer.

In January 2010, Spellberg became an employee of 21^st Century and began referring all of the FISH testing ordered by him to a laboratory owned and operated by 21^st Century. He was paid bonuses by the company based, in part, on the number of FISH tests he referred to the 21^st Century laboratory.  

The allegations that Spellberg was ordering unnecessary FISH tests were originally brought in a lawsuit filed by a whistleblower under the qui tam provisions of the False Claims Act, which allow private parties to bring suit on behalf of the government and to share in any recovery.  The whistleblower, a former medical assistant who worked directly for Dr. Spellberg, will receive $199,500 as her share of this recovery. This amount is in addition to a $3.2 million share she will receive as the result of the $19.75 million settlement previously reached with 21^st Century Oncology.

“We intend to hold those accountable who intentionally use fraudulent practices to make a profit at others’ expense,” said U.S. Attorney A. Lee Bentley, III. “False claims such as these impact the solvency of our public healthcare programs and erode the confidence of those being serviced by that care.”

"This settlement demonstrates the commitment of the Defense Criminal Investigative Service (DCIS) and its law enforcement partners to protect the integrity of the U.S. military health care program (TRICARE) against fraudulent claims submitted by both corporate and individual medical services providers," said Special Agent in Charge John F. Khin, Southeast Field Office.

The investigation was handled by Trial Attorney Arthur Di Dio from the Civil Division’s Commercial Litigation Branch and Assistant U.S. Attorney Kyle S. Cohen from the Fort Myers Division of the U.S. Attorney’s Office for the Middle District of Florida, with assistance from DCIS, FBI, and the Department of Health and Human Services Office of Inspector General. 

This settlement illustrates the government’s emphasis on combating health care fraud and marks another achievement for the Health Care Fraud Prevention and Enforcement Action Team (HEAT) initiative, which was announced in May 2009 by the Attorney General and the Secretary of Health and Human Services.  The partnership between the two departments has focused efforts to reduce and prevent Medicare and Medicaid financial fraud through enhanced cooperation.  One of the most powerful tools in this effort is the False Claims Act.  Since January 2009, the Justice Department has recovered a total of more than $26.7 billion through False Claims Act cases, with more than $16.8 billion of that amount recovered in cases involving fraud against federal health care programs.  

The claims resolved by the settlement are allegations only, and there has been no determination of liability. 

The lawsuit is captioned United States, State of Florida, ex rel. Mariela Barnes v. Dr. David Spellberg, 21st Century Oncology and Naples Urology Associates, Civil Action No. 2:13-cv-228-FtM-38DNF (M.D. Fla.).