Time ran out to charge Biloxi doctor and son in health care fraud case, records say
Time has run out for federal authorities to pursue criminal charges against a Biloxi doctor and his son over allegations of fraud involving Garden’s Pharmacy in Ocean Springs, according to records obtained by the Sun Herald.
In response, Judge John Gargiulo will allow a whistleblower lawsuit against Dr. Brian Tsang, and his son, Albert Tsang, to move forward.
Other defendants in the lawsuit are the now closed Garden’s Pharmacy and its pharmacist, the late Clark Levi.
The order came down in June a short time after Assistant U.S. Attorney Deidra Colson told a federal judge prosecutors are not going to pursue criminal charges in the Garden’s case involving the Tsangs because the statute of limitations to do so had expired.
The whistleblower lawsuit accuses the Ocean Springs pharmacy, through Levi, of filing fraudulent bills with Medicare and the military insurer, TRICARE, for expensive compound drugs covered under the insurance programs.
The suit alleges Gardens submitted fraudulent bills to federal insurers and sales agent, Albert Tsang, got paid sales commissions or “kickbacks” for allegedly referring his father, Dr. Brian Tsang, to the Ocean Springs pharmacy to fill the prescriptions for costly compound creams.
According to federal law, anyone who commits health care fraud is exempt from prosecution in certain cases if an indictment or charge document is not filed within five years of the alleged criminal act. The alleged crimes referenced in the whistleblower lawsuit date back to 2014.
When attorneys for Tsangs asked a judge to halt the civil proceedings in an earlier ruling, they said it was due to their clients being “subjects/targets of a parallel federal criminal investigation involving the same or identical issues” outlined in the lawsuit involving Gardens.
As a result of the lack of criminal prosecution in the case involving Garden’s Pharmacy and the Tsangs, the judge in June issued an order lifting the temporary halt in proceedings in the whistleblower lawsuit because prosecutors are not going to prosecute the case on criminal charges.
Allegations of criminal wrongdoing in fraud case
Former Garden’s pharmacy manager Robyn Turner filed the whistleblower federal lawsuit under seal in 2018, but she but died in 2019. Her estate is pursuing the case.
Clark Levi died in car accident and is not named as a defendant in the pending litigation.
The federal government has declined to intervene in the whistleblower lawsuit.
The lawsuit says Albert Tsang, of D’Iberville, worked as a “one person sales team” and his only client was his father, a pain-management doctor who runs PainStop Spine Clinic in Biloxi.
Turner suspected criminal wrongdoing shortly after she went to work at Garden’s in February 2013, then became pharmacy manager. She resigned in February 2014 over what she described as “questionable business practices.”
According to the lawsuit, Turner found that sale teams left prescription pads with doctors for the expensive compound creams that Medicare or TRICARE covered. The sale teams would later follow up with Levi to check on their commissions, she said.
Levi oversaw the commission payments and talked openly about them, the suit says, though he was “particularly secretive about his dealings with Albert Tsang.”
Levi later closed Garden’s Pharmacy and reopened at the iconic Lovelace Drugs on Washington Avenue. After Levi’s death, the property was put up for sale.
FBI agents raided Lovelace Drugs before Levi’s death
Turner filed her whistleblower lawsuit under seal in October 2018, giving the U.S. Justice Department time to decide if its civil division wanted to handle the case, as provided under the False Claims Act.
The allegations in Turner’s civil lawsuit are similar to those in criminal cases that resulted in the largest TRICARE fraud prosecution in Mississippi history. The sweeping investigation has resulted in convictions against doctors, pharmacists, nurse practitioners, a pharmacy owner, a pharmaceutical salesperson and others.
If Turner’s estate is successful in proving fraud against Gardens and the Tsangs, it would share in any recovery of TRICARE and Medicare funds, a feature of the whistleblower law.
This story was originally published June 23, 2021 at 10:30 AM.
