I do remember when this happened, because I practice in this area of the law, but I had no idea Bain was involved, because Damon was owned by Corning at the time it was fined.
Damon's the 25th largest False Claims Act (31 U.S.C. §§ 3729–3733) settlement in history. At the time, the criminal penalty portion was the largest ever recovered in a health care fraud prosecution and the largest criminal fine ever in Massachusetts.
The $119 million represented $35.2 million as a criminal fine and $83.7 to resolve related civil liabilities for $25 million in fraudulent billing.
(By comparison, I settled a FCA/Stark/Medicare Anti-Kickback claim for a client a few years earlier for under $15 million for claims of many, many multiples of $25 million, but there wasn't blatant fraud involved.)
The settlement includes the treble damages - three dollars recovered by the government for every fraudulent dollar billed - under the FCA.
What did Damon Labs do? For one, when a physician ordered a common blood panels, Damon bundled three extra tests in the blood panels even though the physician did not request the extra tests. Then Damon billed Medicare for the panels, and charged separately for the three tests.
And Damon did more. From one of the appellate cases in the government's prosecution of Thurston:
he essence of the scheme charged was that Damon, through Thurston and others, bundled the ferritin blood test-previously ordered by doctors less than two percent of the time-into a panel of blood tests known as the LabScan, which was ordered thirty to forty percent of the time. When doctors or patients (instead of insurers) paid for the bundled LabScan, Damon provided the ferritin test for free, leading doctors to believe there was no extra charge for this test. Doctors were not told that, when Medicare paid for the bundled LabScan, Medicare was charged extra for the ferritin test. Indeed, both a letter and marketing materials indicated the added ferritin test was “free”; that is, that there was no charge beyond the standard LabScan charge.Those unnecessary ferritin tests were not free to Medicare.
Damon charged Medicare roughly $21 per ferritin test on top of the approximately $24 charged for the LabScan. Nor were doctors told that the ferritin test could be ordered separately; the test requisition form did not offer that option. The physicians, then, were induced to order and to certify as medically necessary a large number of ferritin tests that were not medically necessary.
Thurston was found guilty and for sentencing purposes was found to be "an organizer or leader of extensive criminal activiity" (a level-four enhancement). So he would be the organizer or leader of a fraud that the government said "involved literally millions of fraudulent claims" over a period of years - but wouldn't plead guilty as another defendant did because he would be shunned.
So: Mitt wasn't an officer or executive, he was a director, and only the executives were indicted and found guilty. However, the board would have seen increases in the number of tests ordered ("literally millions", per the goverment) and $25 million in revenues. Officers of the corporation would have explained these to the Board.
However the Board may have failed in its duty if there was no compliance plan and no compliance officer.
Mitt is lying when he says the company stopped the practice when he was on the board. According to the Office of Inspector General of the U.S. Department of Health and Human Services, "[t]he global settlement was reached with Corning, Inc., which earlier had purchased Damon and stopped the illegal billing."
Another thread said that COrning had just acquired the company and discovered the problem and turned it in to the authorities. So although they owned it they didn’t own it ;~)
Appreciate your post
Thanks for the great background information. My experience with fraudsters is that they are adept at masking anomalies in their story and that Boards can be fooled, especially when the news is good news.
Furthermore, in 2007, the Boston Globe (via the Deseret News) reported on Governor Romney's private equity career, including his involvement with a company that had its ethical challenge, Bain Capital's 1989 purchase of Damon Corp., a Needham medical testing firm that later pleaded guilty to defrauding the federal government of $25 million and paid a record $119 million fine.
Romney sat on Damon's board. During Romney's tenure, Damon executives submitted bills to the government for millions of unnecessary blood tests. Romney and other board members were never implicated.
More than a decade later, when Romney was in pursuit of the Massachusetts governorship, his Democratic opponent Shannon O'Brien accused him of lax oversight at Damon and failing to report the fraud.
Romney replied that he had helped uncover the illegal activity at Damon, asking the board's lawyers to investigate. As a result, he said, the board took 'corrective action' before selling the company in 1993 to Corning Inc.
But court records suggest that the Damon executives' scheme continued throughout Bain's ownership, and prosecutors credited Corning, not Romney, with cleaning up the situation. Bain, meanwhile, tripled its investment. (Emphasis mine.)
Romney personally reaped $473,000.
Thus, Governor Romney was on the board of a device company, albeit many years prior to when he became a presidential candidate. While he was on the board, the company allegedly committed unethical actions.