Qui Tam Action Involving Kickbacks for Antipsychotic Drugs
Omnicare, Inc. calls itself, “the nation’s leading provider of pharmaceutical care for the elderly.” In the past three years it has settled two major Medicaid fraud cases brought by pharmacist-whistleblower Bernard Lisitza, who after reporting improper practices had been fired by Omnicare. Qui tam attorneys, Michael I. Behn and Linda Wyetzner of Behn & Wyetzner, Chartered, in Chicago, represent Mr. Lisitza.
In November 2009 Omnicare paid $98 million to settle charges that the pharmacy committed Medicaid fraud through several kickback schemes, including Lisitza’s allegation that pharmaceutical manufacturer Johnson & Johnson (“J&J”) paid Omnicare to increase sales of J&J’s Risperdal® anti-psychotic. (District of Massachusetts, No. 07-10026-RGS). The payments allegedly induced Omnicare pharmacies to switch patients from other anti-psychotic medications to Risperdal®.
The 2009 settlement resolved Lisitza’s allegations that J&J made quarterly rebate payments on Omnicare’s purchases of Risperdal® under rebate agreements both entities executed in April 1997 and March 2000. The agreements conditioned rebate payment upon Omnicare’s engaging in an “active intervention program” to convince physicians to prescribe Risperdal® and requiring that all competitive anti-psychotic products be “Prior Authorized for Risperdal® failure,” according to the complaint. The government alleged that Omnicare failed to disclose to physicians that such intervention activities were a condition of it receiving such rebate payments.
In November 2006 Omnicare paid $49.5 million to settle Medicaid fraud charges that it illegally switched the drugs of senior citizens in nursing homes and other facilities. The charges primarily involved generic forms of the popular drugs Zantac® and Prozac®. Lisitza was the pharmacist-whistleblower in that case, too.