Feds Join Whistleblower Lawsuit Filed by Wisconsin Pharmacist

Jennifer Denk, a Wisconsin pharmacist, was shocked to learn that dangerous Schedule II narcotics and other medications were being dispensed under her name without a doctor’s prescription. When she discovered what was going on, she complained to her bosses at PharMerica, a large national company providing pharmaceutical products and services throughout the United States. PharMerica holds contracts to provide medications to Medicare and Medicaid funded patients at long-term care facilities. PharMerica management ignored Denk’s requests for proof that physicians were prescribing the drugs.

assorted-capsules-and-tablets-1028441-mDenk alerted federal authorities to what was going on and an investigation was undertaken. As part of the investigation, agents with the Drug Enforcement Administration (DEA) inspected PharMerica’s plant in Pewaukee, Wisconsin. These agents subpoenaed PharMerica’s company records in order to evaluate her claims. Naturally, because Denk’s Qui Tam complaint was sealed, her employer had no idea that she was the source of the information about these false claims for medications.

PharMerica directed Denk to withhold information from the federal authorities. Denk, who, as a federal whistleblower, is known as the “Relator,” was directed to selectively provide the DEA with only those records that were consistent with government regulations. She was directed to withhold other documents despite there being a court order – a subpoena — issued for the records. Again, Denk reported this misconduct to PharMerica’s Human Resources Department explaining that the request made by her supervisor was a felony requiring her to give false information to a federal law enforcement agency. Human Resources personnel sided with Denk’s supervisor directing her to lie to protect the company.  She refused to comply and was fired a short time later.

The case summarized above began in 2009, one year after Denk was hired to work as a pharmacist for PharMerica. She learned of the fraud after being with the company for only a few months, but obtained documentation to prove her claims. Denk’s lawsuit was recently unsealed by the Justice Department, after the federal government agreed to intervene and join her as the Plaintiff in her lawsuit. Before the case was unsealed, all information regarding the case was confidential and only Denk, the federal District Court and the government lawyers knew about the case. The lawsuit described the fraud in detail and concludes that the fraudulent practice of providing medications without physician written prescriptions was a standard practice of PharMerica not only in Wisconsin but throughout the country.

The lawsuit accuses PharMerica of several different false billing practices. These fraudulent claims are described as billing Medicare: (1) for drugs supplied to deceased patients; (2) billing for one high cost medication but providing a less costly medicine; (3) billing more than one time for the same medication delivery; and (4) failing to credit government health care programs when prescriptions were returned. The lawsuit also claims that PharMerica increased the cost to tax payers who fund Medicaid and Medicare by purchasing from drug manufacturers who provided rebates to PharMerica. This improper practice benefitted PharMerica while cheating the government programs.

The lawsuit also states that PharMerica allowed nursing homes—not patients’ doctors—to hand out dangerous prescription narcotics from “kit boxes” without keeping government mandated records. The staff at nursing homes would also fax requests to PharMerica for prescription refills of drugs such as OxyContin without a doctor’s prescription. PharMerica filled these requests contrary to Medicare and Medicare guidelines, laws, and best practices.

PharMerica has a history of violations known to the government as early as 2000. If the government is successful in prosecuting this lawsuit, PharMerica may be ordered to pay tens of millions of dollars to the government. Because Jennifer Denk provided crucial information to the government, she will receive between 15 and 25 percent of any recovery or judgment that the government obtains against PharMerica. In addition, because Jennifer Denk was fired because of her doing the right thing and whistle blowing, she may be entitled to an award of back pay and other damages in addition to what she receives from the government claims.

Like most Relators who blow the whistle on illegal practices, Denk isn’t really motivated by the money. In a newspaper interview Denk said that her professional ethics and concern for patients motivated her to blow the whistle. “I took an oath when I graduated from pharmacy school,” said Denk in a statement. “I felt I had no choice but to follow my oath.”

We salute Denk’s willingness to do the right thing. We are committed to assisting people with knowledge of false claims and false documents submitted to the government for payment. We are here to help you every step of the way.