In 2001, Enron was ranked #7 on the Fortune 500. In 2022, Anthem is ranked #23. At its peak, Enron was worth about $70 billion, its shares trading for about $90 each. All that came crashing down, when the company admitted that it had misstated its income and that its equity value was a couple of billion dollars less than its balance sheet said. As the details of the accounting frauds emerged, Enron went into free fall. Andrew Fastow, former CFO was fired, and the company’s stock price dropped drastically. The company has become a symbol of corporate fraud, Jeff Skilling is now known as an American convicted criminal who is best known for being the former CEO of the Enron Corporation. Bethany Lee McLean, the journalist that broke the story known for her writing on the Enron scandal and the 2008 financial crisis. In the Anthem case, it wasn’t a journalist that broke the story, it was a local pastor, Dr. Gerald Kiner, Ph.D. According to Dr. Kiner’s lawsuit, his company and likely many other companies have been the victim of false allegations by Anthem “ software tool” claiming that Dr. Kiner’s company- the Shalom House of Memphis owed them $140,000 in “overpayments.” Dr. Kiner’s lawsuit says this was all done for the purposes of “unjust enrichment.” Dr. Kiner’s company the Shalom House of Memphis which was only one of two licensed psycho-social rehabilitation centers in West Tennessee was shut down due to Anthem’s apparently concocted “ software tool”. According to the lawsuit. Anthem had three million dollars in overpayments non-collected on the books in 2020. That’s fraud. Below is the full complaint against Anthem.
IN THE CIRCUIT COURT OF TENNESSEE FOR THE
THIRTEENTH JUDICIAL DISTRICT AT MEMPHIS, SHELBY COUNTY __________________________________________________________________
Gerald Kiner, All About You Home
Healthcare and Shalom House of
Amerigroup an Anthem Company, David Emiren, and DOES 1-99
NO. ___________________ JURY DEMANDED
COMES NOW the Plaintiff, Gerald Kiner, representing All About Home Healthcare and Shalom House of Memphis and complains of Amerigroup and Anthem Company, Investigator David Emiren, and DOES 1-99 Defendants, and for these causes of action would show as follows:
1. Plaintiff, at all relevant times, was a registered business in Shelby County, Tennessee.
2. Defendant is a National Corporation operating in Memphis TN, Shelby County.
3. All issues raised occurred in Shelby County, Tennessee. 4. Venue is proper under T.C.A. 20-4-104.
4. Although this Complaint uses headings, they are intended to assist the reader only. This Complaint incorporates all Facts and allegations as if restated verbatim, for every heading, and the Complaint is to be read in whole, with all parts inclusive of one another.
5. Daughters Of Zion All Women’s Bible College Operates / Operated Two Distinct Dbas with Two Distinct NPI Numbers. One Is a Psa Personal Agency Dba All About You Home Healthcare and The Second Is a Psycho-Social Rehabilitation Facility Dba the Shalom House of Memphis. Gerald Kiner is the Chief Officer of both non-profits.
6. All About You Home Healthcare is/was a contractor with Amerigroup to provide distinct personal support services to their clients.
7. Shalom House of Memphis provides/provided mental health-related educational services.
8. On August 24, 2020, the State of Tennessee’s Heath Department Conducted a full compliance investigation of Shalom House of Memphis and found zero deficiencies.
9. On August 24, 2020, the State of Tennessee’s Heath Department Conducted a full compliance investigation of All About You Home Healthcare and found zero deficiencies.
10. In June of 2017, a Provider Relations representative of Anthem/Amerigroup reviewed all activities relevant to their Provider Contract with both entities.
11. In December of 2017 Anthem established a contractual relationship with Alliant Health Solutions to assist in validating provider compliance with applicable reimbursement policies and identify instances of incorrect billing for behavioral health services. It is not clear at this juncture if what role was played by and if Alliant is culpable for the allegations in this complaint.
12. In December of 2018, Alliant requested supporting Documents for review from Shalom House of Memphis, and information was quickly provided within the timeframe allotted. These documents included comprehensive assessments and treatment plans, and nothing was requested afterwards.
13. In May of 2015, Amerigroup Tennessee, Inc. d/b/a Amerigroup Community Care, a Tennessee corporation executed a new agreement with All About You Healthcare and Shalom House of Memphis providing no explanation of what Governing authority permitted them to do so.
14. On January 14, 2021, both Shalom House of Memphis and All About You Home Healthcare collectively received an absurd letter which was seemingly based on an investigation made by the Anthem Corporate Headquarters. The letter alleged that via a “software tool,” that Amerigroup found both companies had been overpayments to the tune of $141,398.00 and had to be repaid. The letter relied on no law or policy or clause in the provider’s contract. It just demanded a repayment.
15. The overpayments were explained as merely incorrectly coded services. The policy of Amerigroup was to issue a corrective action (in this instance, it would be to change the code).
16. The alleged overpayments were not even distinguished by the company correctly. Clients of one of the providing organizations were attributed to the others. In short, this was an incompetent investigation that clearly had ill intent. Neither provider was informed that there would be an investigation, otherwise, these improprieties would have been revealed in advance.
17. Provider staff research found that Mr. Emiren’s (The Anthem Headquartered Investigator) investigation had major errors such as the blunder of misidentifying Plaintiff’s All About You Home Healthcare clients in his audit referencing them as if they were The Shalom House of Memphis clients.
18. Instead of using the Shalom House of Memphis NPI #. Mr. Emiren erroneously used All About You Home Healthcare NPI#.
19. Mr. Emiren, the Corporate Investigator communicated with Plaintiff’s local Amerigroup provider rep to stop paying All About You Home Healthcare due to his claims that the Shalom House of Memphis failed this audit.
20. No opportunity for dispute or corrective action other than repayment was offered.
21. Plaintiff informed Amerigroup auditor if they owed $141,398.00, they would be guilty of Medicare fraud. Plaintiff requested that if guilty of fraud, the Investigator should report them criminal fraud which is mandatory under the Affordable Care Act amongst other Governing regulations.
22. The Anthem Corporate Investigator did NOT report us for Medicare Fraud as there would be an opportunity to challenge the fraudulent audit’s findings.
23. Amerigroup uses Overpayment receivables in their annual report to stockholders. In 2020 alone, they reported three million in outstanding overpayments over 90 days.
24. As a proximate result of the demand for repayment for services that both companies had already provided, Shalom House of Memphis was forced to cease Operations as it relied on ongoing payment from its clients to survive.
25. Due to the pandemic- the Shalom House of Memphis was paid a total of $41,394.26 from Amerigroup in 2020 which accounted for 100% of our Shalom House of Memphis 2020 income. The alleged “overpayments” were over three times that amount.
26. In November of 2021, Anthem via Investigator Emiren was informed that All About You Home Healthcare was owed monies and was officially unrelated to Shalom House of Memphis. Anthem/Amerigroup ignored this.
27. On January 20, 202, Provider, Shalom House of Memphis vehemently disputed the overpayment in writing with Anthem’s Investigator Emiren.
28. An overpayment as defined by Amerigroup in accordance with s. 409.913, F.S., includes any amount that is not authorized to be paid by the Medicaid program whether paid as a result of inaccurate or improper cost reporting, improper claiming, unacceptable practices, fraud, abuse, or mistake. None of the above qualify as Amerigroup/Anthem trained the Plaintiff Provider’s and they followed directions appropriately.
29. Anthem through its Investigator Mr. Emiren consciously pursued a course of conduct knowing that it created a substantial risk of significant harm to Shalom House of Memphis and All About You Home Healthcare.
BREACH OF CONTRACT
30. Anthem violated its own Contract with Provider Licensee Daughters of Zion All Women’s Bible College, All About You Home Healthcare, and Shalom House of Memphis. When it demanded an un-owed payment and took no interest in pursuing the validity of its claims when the Provider disputed the overpayment.
31. In Tennessee, in order to prevail on a Breach of Contract Claim, Plaintiff must prove that The Contract Existed; that Defendant failed to perform their obligations; and that the Plaintiff suffered damages.
32. The Plaintiff has provided a Contract and amendments to that contract executed by Anthem/Amerigroup multiple times, most recently in 2017. 34. Amerigroup failed to perform their obligations when they failed to follow Article II of their Agreement and the Program Contract by making available to Provider a copy of the Amerigroup Member handbook through the Amerigroup website or upon request and furnishing Provider with notice of denied authorizations.
33. Amerigroup failed to perform their contractual obligations when it failed section 3.3 Compliance with Program Contract. “Nothing in this Agreement shall be construed to terminate or reduce the legal responsibility of Amerigroup to TennCare to ensure that all activities under the Program Contract are carried out. Amerigroup shall afford Provider access to training and information offered by Amerigroup to enable Provider to fulfill its responsibilities under the Program Contract. Anthem/Amerigroup’s representatives gave both providers a clean bill of health and offered no suggestions for improvement which naturally would be construed by the provider as doing everything correctly.
34. Amerigroup failed to perform their contractual obligations when it failed section 4.2 Claims Submission. Provider understands that payment of a claim by Amerigroup or TennCare is conditioned upon the claim and the underlying transaction complying with Medicaid laws, regulations, and program instructions (including, but not limited to, the Federal anti-kickback statute, the Stark law and federal requirements on disclosure, debarment and exclusion screening), and is conditioned on Provider’s compliance with all applicable conditions of participation in Medicaid. Provider understands and agrees that each claim submitted by Provider to Amerigroup or TennCare constitutes a certification that Provider has complied with all applicable Medicaid laws, regulations, and program instructions (including, but not limited to, the Federal anti-kickback statute and the Stark law), In connection with such claims and the services provided under this Agreement. Under all of these laws, Amerigroup was obligated to investigate their claims of fraud against Plaintiff. They did not because they simply wanted to be able to report the receivable on their Balance Sheet and subsequent annual report.
35. Amerigroup failed to perform their contractual obligations when it failed section 4.4 Right of Recoupment and Offset. “Amerigroup shall be entitled to offset and recoup an amount equal to any overpayments or improper payments made by Amerigroup to Provider against any payments due and payable by Amerigroup to Provider under this Agreement in conformance with applicable law.” Numerous violations of the Affordable Care Act were violated as well as other Statutes, therefore applicable law was not followed. Upon determination that any recoupment, improper payment, or overpayment Is due from Provider to Amerigroup, Amerigroup shall first give Provider notice of recoupment and request reimbursement via check for such an overpayment. Amerigroup/Anthem refused to provide proof of any overpayment. Further, they twisted the data to make simple improper coding which is easily corrected and should be done via the Companies own corrective action procedure. Instead, they offered no opportunity for corrective action on what the Plaintiff will proof was 100% legitimate billing and not an overpayment. “If reimbursement is not received within forty-five (45) days following the date of such notice, Amerigroup shall be entitled to offset such overpayment against other amounts due and payable by Amerigroup to Provider in accordance with applicable law.” Again, the Affordable Care Act and TennCare both require that Medicare fraud (which if this were true, it would be considered such) be reported as criminal activity. Provider shall comply with the Affordable Care Act and Tenncare policy and procedures, including but not limited to, reporting overpayments and when it is applicable, returning overpayments to Amerigroup within sixty (60) days from the date the overpayment is identified. Any reassignment of payment must be made in accordance with 42 CFR 447 .10 and all tax-reporting entities must execute a billing agent or alternative payee assignment agreement in order to assign Tenncare funds/payments. Billing agents and alternative payees are subject to monthly federal exclusion and debarment screenings while the assignment is ongoing. Direct and indirect payments to out of country individuals or entities are prohibited. None of these procedural requirements were followed.
36. Compliance with Regulatory Requirements. Amerigroup and Provider shall each comply with all applicable Regulatory Requirements related to this Agreement. The failure of this Agreement to expressly reference a Regulatory Requirement applicable to either party in connection with their duties and responsibilities hereunder shall in no way limit such party’s obligation to comply with such Regulatory Requirement. Without limiting the foregoing, this Agreement incorporates by reference all applicable federal law and state laws, TennCare rules and regulations, consent decrees and court orders, including, without limitation, all applicable requirements of 42 C.F.R. Part 434, 42 CF.R. Section 438.6 and 42 C.F.R. Part 455 as they pertain to the subject matter of this Agreement. While Provider Agencies operated by Plaintiff complied fully with all applicable laws, Amerigroup/Anthem failed to follow numerous guidelines set by multiple Agencies and Statutes surrounding their belief that their contracted provider was defrauding the system. However, as we will discuss later in this complaint, the provider did this specifically to defraud their stockholders which they could not have any if the Plaintiff’s alleged fraud was actually reported.
37. The Defendants obligation to report fraud is laid out very clearly by Tennessee Law: 2010 Tennessee Code Title 56 – Insurance Chapter 53 – Insurance Fraud 56-53-111 – Regulatory requirements. Pertinent Parts:
(A) Prevent, detect, and investigate all forms of insurance fraud, including fraud involving the insurer’s employees or agents; fraud resulting from misrepresentations in the application, renewal, or rating of insurance policies; claims fraud; and security of the insurer’s data processing systems.
(B) Educate appropriate employees on fraud detection and the insurer’s anti-fraud plan;
(C) Provide for the hiring of or contracting for fraud investigators.
(D) Report insurance fraud to appropriate law enforcement and regulatory authorities in the investigation and prosecution of insurance fraud; and
End pertinent part of code
38. To the extent that Defendant is contending that Plaintiff’s billing was flawed, Defendant either directly, vicariously, or both, had a contractual duty to thoroughly investigate Plaintiff’s work and procedures, yet they claimed to have used a “software tool” and offer no interactive opportunity with the Plaintiff to ensure harm was not done to the Plaintiff’s reputation through false implications of wrongdoing.
39. If Amerigroup/Anthem is asserting that the Plaintiff made billing errors, such errors were due to Amerigroup/Anthem’s poor training. Both of Plaintiff Provider Companies Shalom House of Memphis, and All About You Home Healthcare followed protocols with such excellence that on-site human representatives gave them the highest ratings. This is compared to an alleged “software tool” that Plaintiff and finders of fact will be expected to believe is incapable of error. However, Defendant has provided no evidence that such a tool actually even exists.
40. Defendant breached their duty when it failed to allow Plaintiff to demonstrate that there was no impropriety and insisted on receiving payment instead for overpayments equal to several times over their total revenue which is absurd on its face. Defendant’s conduct was outrageous and egregious especially considering both of Plaintiff’s companies had previously been investigated and evaluated favorably by appropriate authoritative bodies.
41. Defendant caused Plaintiff to lose the ability to operate their business by withholding payments under false pretenses. Ultimately Plaintiff was forced to cease operations altogether at a time which should have been a significant growth period for this Provider’s specialty.
42. Defendant failed to take any action to mitigate the concerns expressed in multiple pieces of correspondence by Plaintiff’s official representatives.
43. Both Plaintiff Providers were required under Contract to provide services: “A Provider may not refuse to provide preventative or Medically Necessary Covered Services to a Covered Person under this Agreement for nonmedical reasons.” The burden on the Providers was extremely high and in exchange, they had a reasonable expectation of payment.
INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
44. Defendant failed to even respond to Plaintiff’s profoundly serious concerns, which was beyond reprehensible has this was during a Pandemic when the economy was already suffering. Any reasonable person/company would respond to the concerns made by the Plaintiff that the Defendant had simply gotten the facts wrong. However, Defendant/s simply chose to ignore Plaintiff’s concerns and continue to send a stressful demand for payment.
45. Defendant was made aware of Plaintiff’s emotional distress almost immediately as Plaintiff’s representative contacted Defendant immediately after the overpayment notice was received. The Plaintiff immediately sent out what could only be described as a despondent email to the Company’s Representative which read in part:
Receiving your letter was a terrible way to begin 2021.
Your letter has ended our business. Amerigroup was the only MCO we provided services for and now due to your letter the Shalom House of Memphis will no longer bill or provide
services. Additionally, we humbly and respectfully disagree
with the letter claiming overpayment. We have provided
services for every date billed …
The letter went on pleading for assistance for another full page and Amerigroup/Anthem were unresponsive.
46. Defendant did not include all the proper and relevant information in its alleged investigation (via a “software tool”), in order to protect the image of Defendant Amerigroup/Anthem and allowed Plaintiff’s business to dissolve to cover up the fact that it was the Defendant who acted inappropriately.
47. Defendant falsely alleged that Plaintiff received overpayments without providing substantive backup when in reality, the only thing that Plaintiff did was serve clients and follow the training protocols as provided. When challenged, Defendant provided no further support and simply continued to demand payment of over three times their total revenue for the Provider charged. Clearly, it is impossible to be overpaid more than the total revenue of the business.
48. Amerigroup/Anthem knowingly accused the Plaintiff of receiving these overpayments and discontinuing further payments knowing that this would give them a substantial dollar figure that they could then report to their accounting department as a receivable ultimately artificially inflating the company’s worth to their stockholders.
49. Defendant made false representations, or misleading representations in its investigative report, in order to achieve its goal of obtaining “free money” to report to its stockholders.
50. Defendant then refused to allow Plaintiff to participate in any appeal process, as outlined in his contract with Defendant because it had no desire to work things out with the Plaintiff. The Plaintiff represented “small potatoes” compared to amounts that it could report to stockholders as outstanding. in order to hide the truth, the Defendant acted improperly and unprofessionally and against the interest of its own mission to serve the healthcare needs of Tennesseans.
According to the Medicare Financial Management Manual Chapter 3 – “Overpayments” (Rev. 335, 01-31-20)
Aggregate overpayments to providers (overpayments arising in other than individual cases) may occur by:
a) A pattern of furnishing and billing for excessive or noncovered services (see Program Integrity Manual).
b) Inclusion of non-allowable or excessive costs in the provider’s cost report.
c) Excessive interim payments made to the provider.
d) Failure to repay accelerated payments.
e) Failure to file cost reports (Chapter 3, §30); or
f) Determination of amounts due upon filing the cost report, during desk review, final settlement and reopening of the cost report.
It should be noted that the Amerigroup/Anthem Investigator did not credibly find any of the above to be the case, yet fraudulently created his own definitions of an overpayment for the purposes of creating a large receivables debt for the companies’ books.
BREACH OF THE IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING 53. Under Tennessee law, passive non-cooperation, as well as active non cooperation, may constitute breach of the duty of good faith and fair dealing. Here, we have an extraordinarily complex contract between Plaintiff and the Defendant. The Plaintiff is merrily going along acting in what they believe is good faith. After all, they have been trained by the authorities in correctly working within the contract’s parameters. These contracts are governed by so many different laws including Federal, State, Insurance, Medical, and even general City Ordinances all that must be abided to successfully fulfill the contractual obligation. That is why the Provider relied heavily on the training they received from Amerigroup/Anthem and their Representatives who led them to believe they were succeeding.
51. The duty of good faith and fair dealing requires parties to a contract to conduct themselves fairly and responsibly. Amerigroup/Anthem’s actions were out of left field when they sent out a letter indicating that Plaintiff Provider not only owed almost $200,000.00 in what they described in overpayments, they also demanded this in a finite and unreasonable amount of time given that there was no advanced warning at all.
52. Under Tennessee law, a party to a contract has a duty to disclose to the other party any material fact affecting the essence of the subject matter of the contract, unless ordinary diligence would have revealed the undisclosed fact. The Plaintiff’s could not have possibly known that the Defendant’s were about to use a tool that would destroy their livelihoods. This would definitely qualify as a material fact that should have been shared.
53. The Defendants Amerigroup/Anthem informed the Plaintiff that they had received overpayments and offered up a description of what were the alleged overpayments, and they were nothing akin to such. Firstly, they were allocated to the wrong Provider and second, they were generally the simple matter of a code needing to be changed that was provided by Amerigroup/Anthem’s Trainers as the correct one to choose. Amerigroup/Anthem’s own policy under Contract was to offer an opportunity for corrective action which in this case would be simple administrative correction.
54. There was no fraud as the Anthem investigator seemed to imply based on nothing more than a “Software tool.” The clients (patients) were real, the services were real, and the amounts were accurate. Amerigroup/Anthem
made no attempt to collaborate with the Provider which would have represented an act of good faith.
55. Under Tennessee law, parties have a duty of good faith and fair dealing not only in executing the transaction contemplated by the contract, but also in fulfilling the preconditions and contingencies set forth in the contract. There was no attempt at this on the part of the Defendants.
56. The purpose of this implied covenant is: “(1) to honor the reasonable expectations of the contracting parties and (2) to protect the rights of the parties to receive the benefits of the agreement into which they entered.” Here, the Defendants clearly had no interest in honoring their contract as the Insurance Climate had changed and they had other plans, nor did they honor the rights of the Provider with whom they entered the contract.
57. Defendant made false representations against the Plaintiff knowing that the Plaintiff had not committed fraud, malfeasance, or even accidental overbilling of its clients. It took no proactive steps to ascertain whether or not any of these issues existed. On the contrary, they looked the other way because their false and unsupported allegations allowed them to show a great bottom line in marketing materials such as their annual report.
58. Defendant knew this was false, but by hiding behind the concept of a “software tool,” they alleviated the need for any explanation as they could blame it on a computer.
59. Defendant should have contacted authorities with a criminal complaint for insurance/Medicare fraud as this would have represented a significant amount of money and a criminal pattern on behalf of the Plaintiff. Of course, they did not do so as this was a significant amount of money and if reported as fraudulently obtained, Anthem/Amerigroup would not have been able to include it in their bottom line which increased their perceived worth in the marketplace.
60. The fact that Shalom House of Memphis was forced to go out of business because of the actions of Defendant was inconsequential to Defendant yet devastating to the Plaintiff. The loss of an insignificant Provider was meaningless to the bottom line of Amerigroup/Anthem, especially when compared to nearly a $200,000.00 entry in their receivables.
61. Plaintiff has suffered the loss of his Business at a time where it was positioned to have a major growth spurt, however his efforts were thwarted by the Defendant’s unconscionable actions in making false allegations violating the trust of the public taxpayers.
62. Plaintiff performed these actions in such a manner to cause great distress to Plaintiff, his family, and his employees as well as clients/patients. Much of this is irreversible.
63. Plaintiff will not be able to reestablish this same opportunity as it has already been embarked upon by a former associate who had no choice but to move on to other opportunities as those for Plaintiff were stagnated.
64. Compensatory Damages to PSA (Personal Support Agency) All About You Home Healthcare for unpaid claims $47,930.28
65. $30,081,664.00 in compensatory damages for ending Shalom House of Memphis (current value as projected by economic expert).
66. $750,000.00 for Emotional stress for pain and suffering. 70. $100,000,000.00 in punitive damages.
PRAYER FOR RELIEF
Pursuant to Tennessee Rules of Civil Procedure, Plaintiff demands that all issues of fact in this case be tried by a jury.
WHEREFORE, the Plaintiff prays for judgment against Defendants, as follows:
l. For damages to be determined by the jury, in an amount exceeding that stated above and adequate to compensate Plaintiff for all the injuries and damage sustained.
2. For all general and special damages caused by the alleged conduct of Defendants.
3. For the costs of litigating this case.
4. For punitive damages as stated above to punish Defendants for their egregious conduct and to deter Defendants and others from
repeating such atrocities; and
5. For all other relief to which Plaintiff is entitled by Tennessee law. By:
Gerald Kiner, In Pro per