The attorney for Dr. Kishor Vora is seeking the federal civil suit against the Owensboro cardiologist to be dismissed.

The U.S. Attorney’s Office filed a civil lawsuit against Vora, who owns Owensboro Heart and Vascular and Owensboro Medical Practice, last year. The civil lawsuit alleges Vora “accepted illegal kickbacks from a laboratory, National Molecular Testing Corporation (NMTC) ... in exchange for sending Medicare-reimbursed orders for pharmacogenomics testing.” The lawsuit alleges the testing was unnecessary.

The complaint is civil, not criminal. If found liable, Vora would be responsible for paying damages to the government.

The federal complaint filed last year says Vora entered into an agreement with NMTC to refer 150 patients a year to the lab for pharmacogenomics testing, with Vora’s practice receiving $150 per patient referred. Pharmacogenomics is the study of how a person’s genes will impact the effectiveness of medication.

The complaint says 1,206 patients were referred for testing between May 1, 2011, and March 31, 2013. The complaint also alleges NMTC issued false certifications of medical necessity for the tests, and that Vora was paid $330,000 by MNTC. The government complaint says Medicare bases its payments on certifications of medical necessity.

The U.S. Attorney’s Office said the referrals amounted to more than $3 million in improper claims being made to Medicare by NMTC.

The government filed the suit under the Fraudulent Claims Act and the Anti-Kickback Statute. The government alleges Vora didn’t individually assess patients for testing and didn’t use the test results.

A previous motion to dismiss the suit was denied on most counts in September, and the government filed an amended complaint.

Vora is represented by Michael Merrick, of the Louisville firm of Kaplan, Johnson, Abate and Bird. In a second motion to dismiss the civil suit filed in December, Merrick argues that Vora was not required by law to make individual assessments of patients when referring them for testing, and was not required to use the test results as a condition for the tests being covered by Medicare.

“The only condition of payment ... is that tests must be ordered by the patient’s treating physician,” Merrick wrote in his motion.

“However, (regulations contain) no requirement that a physician ‘make individualized assessments of need,” Merrick wrote. “The Government appears to allege that this regulation amounts to a blanket prohibition against a physician signing a pre-printed test order form and directing the physician’s staff to test patients with certain medical criteria as defined by the physician.

“That legal theory is not supported by” regulations, Merrick wrote. The government’s argument “fails to allege how Dr. Vora violated a condition of payment,” he wrote.

The government response says the orders for testing did not meet Medicare’s criteria for being medically necessary.

“Within the Complaint, there are no less than eight representative examples of Dr. Vora causing the submission of claims for pharmacogenomics testing that failed to meet Medicare’s definition of medical necessity,” the government says in its response.

The judge has yet to rule on the new motion to dismiss.

James Mayse, 270-691-7303, jmayse@messenger-inquirer.com, Twitter: @JamesMayse

James Mayse, 270-691-7303, jmayse@messenger-inquirer.com, Twitter: @JamesMayse

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