Bloomberg News Interviews Vezina Law Regarding Record Lab Settlement in Boston

Date: October 20, 2015

Millennium Health LLC agreed to pay $256 million to resolve claims that it misrepresented the need for procedures and offered gifts to doctors in exchange for referrals.

The biggest U.S. lab­testing company now plans to file for bankruptcy protection by Nov. 10, enabling it to turn over control of the business to its lenders, according to a person with knowledge of the matter.

The company has given the restructuring proposal to the holders of its $1.8 billion term loan and sent a copy to lawyers at the U.S. Department of Justice who are handling the settlement of the government’s case, said the person, who asked not to be named because the information isn’t public. Millennium will need to file its Chapter 11 petition with a bankruptcy court by Nov. 10, according to copies of resolved cases against the company that were unsealed Monday.

The payment will resolve allegations that Millennium violated the False Claims Act by having doctors order unnecessary urine, drug and genetic testing, according to a U.S. Department of Justice statement on Monday. The government accuses Millennium, a provider of urine­testing services to monitor prescription drug use and potential abuse, of misrepresenting to doctors the necessity of an

$1,800 genetic test for pain management patients.

“We will not tolerate practices such as the ordering of excessive, non­patient specific tests and the provision of inducements to physicians that lead to unnecessary costs being imposed upon our nation’s health care programs,” Benjamin C. Mizer, head of the Justice Department’s Civil Division, said in the statement.

The case against Millennium, which involved billing the Centers for Medicare & Medicaid Services, was filed last year by the U.S., 29 states and the District of Columbia and was unsealed Monday by a federal judge in Boston. Omni Healthcare Inc. also was named as a plaintiff in the case.

“Hopefully this is going to put a shot across the bow of everyone else in the industry to not mess around with Medicare or Medicaid because there’s a price to pay for that,” said attorney Marc Vezina of Vezina Law Group , which represented Omni.

Terry Fahn, a spokesman for San Diego­based Millennium at Sitrick & Co., declined to comment Monday. Marcia O’Carroll, a spokeswoman for TA Associates, the private­equity firm that partially controls Millennium, also declined to comment.

Millennium Chief Executive Officer Brock Hardaway said Friday that “while Millennium may debate some of the merits of the DOJ’s allegations, we respect the government’s role in health­care oversight and enforcement,” according to a company statement announcing the settlement. He said Millennium is “currently a very different organization than we were in the past.”

Millennium’s shareholders, including founder James Slattery and TA Associates, must guarantee an initial payment of $50 million toward the full settlement, according to the resolved cases unsealed by the court. They will guarantee pieces of the payment based on the proportion of equity in the company they own, the documents show.

TA Associates holds 45 percent of the company’s shares while Slattery has 55 percent in 14 trusts, some of which were set up for his family members, according to the documents.

If the company wants to file for Chapter 11, the settlement requires it to provide a copy of the bankruptcy plan to the Justice Department by Monday and file a petition by Nov. 10, according to the documents. Creditors must vote to accept what would be a pre­arranged bankruptcy plan by Nov. 8, according to the agreement. The accord calls for a bankruptcy judge to confirm Millennium’s bankruptcy plan by Dec. 21 and pay the government settlement by Dec. 30.

Millennium, which said Friday that it has been embroiled in the federal investigation for four years, has had its finances and future earnings shaken up by the probe. The company was negotiating to hand over ownership to its lenders at the same time the government was finalizing the investigation. Creditors had been fighting over how much to extract from the firm’s shareholders in order to agree to a restructuring, people with knowledge of the matter said earlier this month.

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