ATLANTA (CN) — A former NFL player convicted of health care fraud and ordered to pay over $18 million in restitution for taking illegal kickbacks asked an 11th Circuit panel Friday to toss out his 22-year prison sentence.
Ex-Jacksonville Jaguars defensive back Monty Ray Grow was convicted in 2018 of engineering a conspiracy to defraud Tricare, a health insurance program for active and retired military personnel and their families, by recruiting patients to order unnecessary medications from a pharmacy that paid Grow and his accomplices millions of dollars in kickbacks.
According to a brief submitted by the government, Grow’s scheme led to 4,449 fraudulent Tricare claims and a total amount paid by the health care program of over $39 million between November 2014 and August 2015. Grow received $19 million from the pharmacy as commissions for the prescriptions filled by patients he referred.
Arguing via teleconference on Friday, Grow’s attorney told a panel of 11th Circuit judges that his client was just a marketer hired by the pharmacy to help sell expensive compounded medications to legitimate patients whose insurance would cover the prescriptions.
Attorney David Oscar Markus of Markus/Moss said the government failed to prove that Grow knew the prescriptions were not medically necessary.
According to court records, Grow recruited patients covered by Tricare to order compounded medications from Patient Care of America. Compounded medications are tailored to patients’ needs and made by mixing active pharmacological ingredients with base creams and wetting agents.
The former football player used telemedicine companies to prescribe the medications, paying them approximately $100 per telephone or video consultation.
Grow and his accomplices filled out prescription forms, faxed the forms to telemedicine companies for signing by a doctor, and then faxed them to the pharmacy.
According to the government’s brief, a pain cream prescription that costs the pharmacy about $700 to fill could be reimbursed by Tricare for $16,000 and net Grow and his recruiters over $7,000 in commissions.
Grow used some of his profits to pay patients for ordering the medications.
At trial, several patients admitted they did not need or use the prescriptions but ordered them anyway to make money.
Assistant U.S. Attorney Jonathan Colan argued Friday that Grow actively worked to ensure that as many patients as possible would order the most highly reimbursed medications and vitamins.
“Emails and testimony show his intent was to get prescriptions fixed specifically to get more reimbursements. His defense is that he’s relying on the good faith and judgment of the doctors but this shows he was the one controlling the prescriptions,” Colan said.
U.S. Circuit Judge Ed Carnes, a George H.W. Bush appointee, repeatedly pushed back on the government’s argument Friday, questioning the strength of evidence prosecutors say proves Grow knew the prescriptions were bogus.
“How does that show they weren’t medically necessary? He could be concerned about getting the prescriptions fixed or as many refills as possible even if they were medically necessary,” Carnes asked.
“He was telling doctors and recruiters to make sure everybody gets [the scar cream]. When you say everybody – there’s nothing in medicine that is for everybody,” Colan replied.
“Grow may have wanted everybody in the country to get a prescription through him. That doesn’t mean that he knew that some of the prescriptions that were obtained by these patients from doctors were not medically necessary,” Carnes responded.
In rebuttal, Markus argued that the doctors, not Grow, should be held responsible for the prescriptions.
“The fact that Grow always wanted the doctors to prescribe these meds, that may be true. I mean, all marketers and salespeople always want to sell. But in every single case it had to go through the doctor. So in every single case a doctor had to approve of the prescription and the doctor was free to change it, alter it or not give it,” Markus argued.
“We have real doctors issuing real prescriptions to real patients who got their medicine… Medical necessity was not an issue,” the attorney added.
Friday’s hearing was held via teleconference due to coronavirus-related court closures.