Source: United States Department of Justice Criminal Division
A federal jury convicted a Tennessee business owner yesterday for fraudulently billing federal health care programs approximately $35 million for medically unnecessary injections, which were administered over the course of approximately eight years to a population of opioid-dependent patients.
According to court documents and evidence presented at trial, Michael Kestner, 72, of Nashville, at various times owned, operated, and managed pain clinics in Tennessee, North Carolina, and Virginia, which were ultimately branded under the name Pain MD. The trial evidence proved that Kestner, who is not a physician, pressured nurse practitioners and physician assistants employed by clinics in the Pain MD network to provide multiple back injections to many, if not most, patients who came to Pain MD seeking opioid treatment. Witnesses testified that patients who refused to accept regular injections risked being turned away from Pain MD and suffering withdrawals from their opioid medication.
The evidence further demonstrated that the injections were uniformly billed as Tendon Origin Insertion injections (TOIs), even though almost none of these patients were diagnosed with pain in their tendons, and in many cases, it would have been medically impossible to administer TOIs with the equipment available to the practitioners. Nevertheless, Kestner relentlessly pressured the providers at his clinics to administer and bill for injections.
The evidence also demonstrated that, to keep billings up, Kestner sent regular emails ranking the practitioners’ “production” against one another, criticizing providers for “below average” performance, and otherwise making providers feel they would lose their jobs or let down their clinic staff if they did not perform an increasing number of injections. He ignored repeated notices — including a lawsuit — from insurance companies alerting him that his clinics were billing these injections improperly. Through these practices, Pain MD became Medicare’s single highest biller of TOI procedures in the country, outranking the next highest biller by approximately eightfold.
The jury convicted Kestner of one count of conspiracy to commit health care fraud and 12 counts of health care fraud. He is scheduled to be sentenced on Feb. 27, 2025, and faces a maximum penalty of 10 years in prison for each count. A federal district court judge will determine any sentence after considering the U.S. Sentencing Guidelines and other statutory factors.
Principal Deputy Assistant Attorney General Nicole M. Argentieri, head of the Justice Department’s Criminal Division; Special Agent in Charge Kelly J. Blackmon of the Department of Health and Human Services Office of Inspector General (HHS-OIG); Special Agent in Charge Darrin K. Jones of the Defense Criminal Investigative Service (DCIS) Southeast Field Office, Department of Defense Office of Inspector General; Special Agent in Charge Kim R. Lampkins of the Department of Veteran Affairs Office of Inspector General (VA-OIG) Mid-Atlantic Field Office; and Director David Rausch of the Tennessee Bureau of Investigation (TBI) made the announcement.
HHS-OIG, DCIS, VA-OIG, and TBI are investigating the case.
Assistant Chief James V. Hayes and Trial Attorney Victor Yanz, with the assistance of Assistant Chief Kate Payerle, all of the Criminal Division’s Fraud Section, are prosecuting the case.
The Fraud Section leads the Criminal Division’s efforts to combat health care fraud through the Health Care Fraud Strike Force Program. Since March 2007, this program, currently comprised of nine strike forces operating in 27 federal districts, has charged more than 5,400 defendants who collectively have billed federal health care programs and private insurers more than $27 billion. In addition, the Centers for Medicare & Medicaid Services, working in conjunction with HHS-OIG, are taking steps to hold providers accountable for their involvement in health care fraud schemes. More information can be found at www.justice.gov/criminal-fraud/health-care-fraud-unit.