Case 1:21-cv-24111-XXXX Document 1 Entered on FLSD Docket 11/22/2021 Page 1 of 13
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE SOUTHERN DISTRICT OF FLORIDA
`MIAMI DIVISION
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`Plaintiff,
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`UNITED STATES OF AMERICA,
`ex rel. ABC,
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`Defendants.
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`Case No.
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`FILED UNDER SEAL
`31 U.S.C. § 3730(b)(2)
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`COMPLAINT AND DEMAND FOR JURY TRIAL
`Claims Pursuant to the False Claims Act, 31 U.S.C. § 3730
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`[FILED IN CAMERA AND UNDER SEAL]
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`Case 1:21-cv-24111-XXXX Document 1 Entered on FLSD Docket 11/22/2021 Page 2 of 13
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE SOUTHERN DISTRICT OF FLORIDA
`MIAMI DIVISION
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`Plaintiff,
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`UNITED STATES OF AMERICA,
`Ex rel. MARK V. MORSCH,
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`v.
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`ROGER KHOURI and KEY BISCAYNE
`SURGERY CENTER, LLC,
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`Defendants.
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`Case No.
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`FILED UNDER SEAL
`31 U.S.C. § 3730(b)(2)
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`COMPLAINT AND DEMAND FOR JURY TRIAL
`Claims Pursuant to the False Claims Act, 31 U.S.C. sec. 3730, et seq.
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`The United States of America, by and through qui tam originating relator Mark V. Morsch
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`(“Relator”), hereby brings this action pursuant to the False Claims Act (“FCA”), as amended, 31
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`U.S.C. § 3729 et seq., by and through his attorney, Andres I. Beregovich, and hereby declares the
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`following to recover all damages, penalties, and other remedies available as established by the
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`FCA which were caused by Defendants’ repeated and deliberate submissions of false, fraudulent
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`and intentionally deceptive records, claims, statements and representations, issued and caused to
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`be made, used and relied upon by the United States Government and its Medicare program.
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`As will be set forth with greater specificity below, Roger Khouri (“Khouri”) rendered
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`surgical services to patients at Key Biscayne Surgery Center, LLC (“KBSC”) in violation of the
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`license issued by the State of Florida Agency for Health Care Administration to Key Biscayne
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`Surgery Center, LLC, as an ambulatory surgical center (“ASC”), and submitted falsified and
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`fraudulent billings and charges to Medicare in an effort to be reimbursed by Medicare for the
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`rendering of surgical services in violation of the ASC license issued to KBSC by the State of
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`Case 1:21-cv-24111-XXXX Document 1 Entered on FLSD Docket 11/22/2021 Page 3 of 13
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`Florida Agency for Health Care Administration. Khouri is the sole owner of KBSC. KBSC and
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`Khouri will be referred to collectively as Khouri, as he is the sole owner of KBSC. The Medicare
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`program has used government to remit payment to Khouri based upon his false and fraudulent
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`claim submissions for unlicensed surgery that would have not been paid but for Khouri’s false and
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`fraudulent claims. Stated another way, the United States Government would not have paid claims
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`to Khouri had it known that the claims submitted to Medicare by Khouri were for surgeries
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`performed in violation of the State of Florida Agency for Health Care Administration license
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`issued to Khouri to perform said surgeries.
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`1. Plaintiff is the United States of America.
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`2. Relator is an individual.
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`3. Khouri is a licensed medical doctor board-certified in plastic surgery. Khouri’s
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`National Identifier (NPI) is 1740232784. Khouri’s Florida license number is ME69615.
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`4. Upon information and belief, Khouri is the owner of the ambulatory surgical center
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`known as Key Biscayne Surgery Center, LLC (“KBSC”), licensed through the State of
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`Florida Agency for Health Care Administration under license number 1331 and located
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`at 580 Crandon Boulevard. Suite 301, Key Biscayne, Florida 33149.
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`5. KBSC was first licensed as an ambulatory surgical center by the State of Florida
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`Agency for Health Care Administration on or about January 21, 2010. KBSC was
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`licensed by the State of Florida to operate one operating room , zero procedure rooms,
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`and two recovery beds.
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`6. KBSC is believed to be wholly owned by Khouri and its NPI is 1477876696. Its
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`registered agent is Khouri and he may be served at 580 Crandon Boulevard, Suite 201,
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`Key Biscayne, Florida 33149.
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`Case 1:21-cv-24111-XXXX Document 1 Entered on FLSD Docket 11/22/2021 Page 4 of 13
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`7. Khouri has benefited from the pattern and practices stated below.
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`JURISDICTION AND VENUE
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`8. This Court has jurisdiction over the subject matter of this action pursuant to 28 U.S.C.
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`§ 1331 and 31 U.S.C. §3732, the latter of which specifically confers jurisdiction on this
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`Court for actions brought pursuant to 31 U.S.C. §§ 3729 and 3730. Relator establishes
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`subject matter jurisdiction under 31 U.S.C. § 3739(b).
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`9. This Court has personal jurisdiction over Khouri and is a proper venue pursuant to 28
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`U.S.C. § 1391(b) and 31 U.S.C. § 3732(a). Moreover, Khouri’s principal place of
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`business is in this District.
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`FEDERAL FALSE CLAIMS ACT
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`10. The False Claims Act, 31 U.S.C. §§ 3729-3733, provides, inter alia, that any person
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`who (1) “knowingly presents, or causes to be presented, a false and fraudulent claim
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`for payment or approval,” or (2) “knowingly makes, uses, or causes to be made or used,
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`a false record or statement material to a false or fraudulent claim,” is liable to the United
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`States of America for a civil monetary penalty plus treble damages. 31 U.S.C. §
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`3729(a)(1)(A)-(B).
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`11. The terms “knowing” and “knowingly” are defined to mean “that a person, with respect
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`to information (1) has actual knowledge of the information; (2) acts in deliberate
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`ignorance of the truth or falsity of the information; or (3) acts in reckless disregard of
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`the truth or falsity of the information.” 31 U.S.C. § 3729(b)(1)(A)(i)-(iii). Proof of
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`specific intent to defraud is not required. 31 U.S.C. § 3729(b)(1)(B).
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`12. The term “claim” means “any request or demand, whether under a contract or
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`otherwise, for money or property and whether or not the United States has title to the
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`money or property, that (1) is presented to an officer, employee, or agent of the United
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`States; or (2) is made to a contractor, grantee, or other recipient, if the money or
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`property is to be spent or used on the Government’s behalf or to advance a Government
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`program or interest, and if the United States Government (a) provides or has provided
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`any portion of the money or property requested or demanded; or (b) will reimburse
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`such contractor, grantee, or other recipient for any portion of the money or property
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`which is requested or demanded.” 31 U.S.C. § 3729 (b)(2)(A)(i)-(iii).
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`13. “[T]he term ‘material’ means having a natural tendency to influence, or be capable of
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`influencing, the payment or receipt of money or property.” 31 U.S.C. § 3729(b)(4).
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`14. Private citizens are allowed to bring actions on the government’s behalf. “(1) A person
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`may bring a civil action for a violation of section 3729 for the person and for the United
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`States Government. The action shall be brought in the name of “the Government.” 31
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`U.S.C.A. § 3730(b)(1).
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`15. Under 31 U.S.C. § 3730(e), there has been no statutory relevant public disclosure of
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`the allegations or transactions in this Complaint with respect to which “Relator” is not
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`an “original source,” and all material information relevant to this Complaint was
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`provided to the United States Government prior to filing this Complaint pursuant to 31
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`U.S.C.A. § 3730(e)(4)(B).
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`16. An “original source” means an individual who “either (i) prior to a public disclosure
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`under subsection (e)(4)(a), has voluntarily disclosed to the Government the information
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`on which the allegations or transactions in a Claim are based, or (2) who has knowledge
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`that is independent of and materially adds to the publicly disclosed allegations or
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`transactions, and who has voluntarily provided the information to the Government
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`before filing an action under this section.” 31 U.S.C. § 3730(e)(4)(B).
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`17. Relator is an original source as defined in 31 U.S.C. § 3730(e)(4)(B). Relator, prior to
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`a public disclosure under subsection (e)(4)(a), has voluntarily disclosed to the
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`Government the information upon which the allegations or transactions in this Claim
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`are based.
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`FACTUAL BACKGROUND
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`18. The Medicare program was enacted in 1965 and the Secretary of Health and Human
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`Services regulates the administration of the program through the Centers for Medicare
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`and Medicaid Services (“CMS”). 42 C.F.R. § 422.503(a).
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`19. To participate in the Medicare Program, providers enter into provider agreements with
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`the Secretary of the Health and Human Services. The provider agreement required the
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`provider to agree to conform to all applicable statutory and regulatory requirements for
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`reimbursement from Medicare, including the provisions of Section 1862 of the Social
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`Security Act and Title 42 of the Code of Federal Regulations. As part of that agreement,
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`the provider must sign the following certificate:
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`I agree to abide by the Medicare laws, regulations and program instructions that apply
`to [me]. The Medicare laws, regulations, and program instructions are available
`through the [Medicare] contractor. I understand that payment of a claim by Medicare
`is conditioned upon the claim and the underlying transaction complying with such laws,
`regulations, and program instructions (including, but not limited to, the Federal anti-
`kickback statute and the Stark law), and on the [provider’s] compliance with all
`applicable conditions of participation in Medicare.
`Form CMS-855A; Form CM S-8551.
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`20. Among the legal obligations of participating providers is the requirement not to make
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`false statements or misrepresentations of material facts concerning payment requests.
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`21. Medicare Part B claims are submitted on form CMS 1500 or its electronic equivalent.
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`22. When submitting claims, providers are certifying that the claims are accurate,
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`complete, and remitted for legally qualified procedures. As will be demonstrated
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`below, Khouri submitted Medicare charges for surgeries that were performed in
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`violation of the license granted to Khouri by the State of Florida Agency For Health
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`Care Administration.
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`23. Khouri established and began operating Key Biscayne Surgery Center, LLC as an
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`ambulatory surgical center in Key Biscayne, Miami-Dade County, Florida in 2010.
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`24. Ambulatory Surgical Centers (“ASC”) in the State of Florida are regulated under
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`Chapter 395, Florida Statutes.
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`25. Ambulatory Surgical Centers in the State of Florida are licensed as such by the Agency
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`for Health Care Administration (“AHCA”).
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`26. The process of licensing an Ambulatory Surgical Center includes the filing of an
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`application with the AHCA. In the application for licensure, the applicant must indicate
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`to the AHCA the number of beds sought to be licensed. These beds include a specific
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`number of operating rooms, procedure rooms, and recovery beds.
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`27. The application for licensure of the ASC is executed by the applicant under threat of
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`perjury.
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`28. On or about January 21, 2010, Khouri filed his initial application for licensure of KBSC
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`with the State of Florida Agency for Health Care Administration as an ambulatory
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`surgical center.
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`29. In his initial application, Khouri applied for licensure of his ASC for one operating
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`room and two recovery beds, although he had constructed a facility containing two
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`operating rooms.
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`30. KBSC was licensed as an ASC allowed to utilize one operating room, zero procedure
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`rooms and two recovery beds under its initial license issued on January 21, 2010.
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`31. After licensure, Khouri proceeded to operate KBSC utilizing or running two operating
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`rooms, up to three procedure rooms, and two recovery beds. Khouri and other surgeons
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`performed surgeries in the two operating rooms and the three procedure rooms.
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`32. Periodically, Khouri, or someone acting on his behalf or at his direction, submitted an
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`application for renewal of licensure of the ASC to the AHCA. Each and every
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`application is filed under threat of perjury and seeks licensure for one operating room,
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`zero procedure rooms, and two recovery beds.
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`33. Since 2010, Khouri has consistently and continually utilized and operated two
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`operating rooms and up to three procedure rooms to perform surgery on patients in
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`direct violation of the ASC license issued by the AHCA on January 21, 2010.
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`34. Beginning in 2010, and continuing through the present, Khouri has billed Medicare,
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`among other Government programs, for payment and reimbursement for these
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`unlicensed surgeries.
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`35. On information and belief, Khouri has performed thousands of unlicensed surgeries at
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`KBSC since opening in 2010 and continues to do so through the present date.
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`36. On information and belief, Khouri has billed the United States Government millions of
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`dollars in claims and received millions of dollars in reimbursement from the United
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`States Government for these unlicensed surgeries.
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`FIRST CLAIM FOR RELIEF
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`Violations of the False Claims Act – 31 U.S.C. § 3729(a)(1)(A) and (B)
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`37. Realtor incorporates by reference each of the preceding paragraphs of this Complaint.
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`38. This is a claim for treble damages and penalties under the FCA.
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`39. By virtue of the acts described above, Defendants knowingly presented or caused to be
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`presented false or fraudulent claims, records or other material for payment which
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`resulted in the payments of false claims by the Government to the Defendants. All such
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`false claims and acts are in violation of the FCA in general and specifically in violation
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`of 31 U.S.C. § 3729(a)(1)(A), as amended.
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`40. By virtue of the acts described above, the Defendants knowingly made, used or caused
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`to be made or used, false records and statements material to a false or fraudulent claim
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`which resulted in the payments of false claims by the United States Government to the
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`Defendants. All such false claims and acts are in violation of the FCA in general and
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`specifically in violation of 31 U.S.C. § 3729(a)(1)(B), as amended.
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`41. The acts described above induced the United States Government to pay or approve such
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`false or fraudulent claims.
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`42. Every such payment by the United States to the Defendants was a product of a false
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`claim and materially false statements made by Defendants.
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`43. In reliance on these false representations and claims, the United States Government, by
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`and through its intermediaries, paid claims submitted by Defendants that it otherwise
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`would not have paid had the government been aware that the Defendants were
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`performing surgical procedures in violation of the license issued by the State of Florida
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`to KBSC to operate as a licensed ambulatory surgical center.
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`44. KBSC was licensed by the AHCA to operate one operating room and two recovery
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`beds as a licensed ambulatory surgical center. KBSC was not licensed to operate any
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`procedure rooms. On information and belief, Defendants have, for a period of at least
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`ten years or more years, performed thousands of surgeries in two operating rooms and
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`three procedure rooms at KBSC in direct and knowing violation of the ASC license
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`issued by the AHCA. Defendants have billed the United States Government for these
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`unlicensed surgeries, when the Defendants knew that the surgeries were performed in
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`violation of the license and therefore illegal.
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`45. By reason of the Defendants actions, the United States has been damaged and continues
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`to be damaged in substantial amounts to be determined at trial.
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`46. Pursuant to the FCA, Defendants are liable to the United States for treble damages, and
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`a civil penalty of not less than $5,500 and not more than $11,000 for each of the false
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`or fraudulent claims herein, plus three (3) times the amount of damages which the
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`United States has sustained because of Defendants’ actions.
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`SECOND CLAIM FOR RELIEF
`False Claims Act: Reverse False Claims – 31 U.S.C. §
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`47. Relator incorporates by reference each of the preceding paragraphs of this Complaint.
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`48. Defendants knowingly made, used, or caused to be made or used, false records or
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`statements material to an obligation to pay or transmit money or property to the United
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`States.
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`49. Defendants knowingly concealed or improperly avoided or decreased an obligation to
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`pay or transmit money or property to the United States.
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`50. Defendants knowingly made, used, or caused to be made or used, false records or
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`statements to conceal, avoid or decrease an obligation to pay or transmit money or
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`property to the United States.
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`51. By virtue of the said false records, statements, or other acts of concealment, the United
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`States has incurred damages.
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`THIRD CLAIM FOR RELIEF
`Violations of 42 U.S.C. § 1320a-7k
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`52. Relator incorporates by reference each of the preceding paragraphs of this Complaint.
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`53. 42 U.S.C. § 1320a-7k is known as the Medicare and Medicaid program integrity
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`provisions in the Social Security Act. The statute requires a person who has received
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`an overpayment to report and return the overpayment to the Secretary, the state, an
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`intermediary, a carrier, or a contractor, as appropriate, at the correct address, and to
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`notify the Secretary of State, state, intermediary, carrier or contractor to whom the
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`overpayment was returned in writing of the reason for the overpayment. It requires that
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`an overpayment be reported and returned by the later of (A) the date which is 60 days
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`after the date on which the overpayment was identified; or (B) the date the
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`corresponding cost report is due, if applicable. 42 U.S.C. § 1320a-7k(d)(2). Section
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`1128J(d)(3) of the Act specifies that any overpayment retained by a person after the
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`deadline for reporting and returning an overpayment is an obligation (as defined in 31
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`U.S.C. 3729(b)(3))… for purposes of 31 U.S.C. 3729. 42 U.S.C. § 1320a-7k(d)(3).
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`54. Pursuant to 42 U.S.C. § 1320a-7k(4)(B), the term “overpayment” means any funds that
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`a person receives or retains under subchapter XVIII… to which the person, after
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`applicable reconciliation, is not entitled under such subchapter. The Defendants have
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`received funds pursuant to subchapter XVIII.
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`55. The Defendants knowingly submitted false and fraudulent claims that allowed them to
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`receive greater reimbursement than they were entitled to. The excess reimbursement
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`amounts are therefore “overpayments” that must have been returned. Pursuant to 42
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`U.S.C. § 1320a-7k, the Defendants’ retention of these funds constitute overpayments
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`that they were required to reimburse.
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`56. The Defendants constitute a “person” under 42 U.S.C. § 1320a-7k(d)(4)(C).
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`57. The Defendants have not reimbursed the United States the funds that they were
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`overpaid with.
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`58. The Defendants’ actions therefore create liability under both the False Claims Act.
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`Pursuant to the FCA, the Defendants are liable to the United States for a civil penalty
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`of not less than $5,500 and not more than $11,000 for each of the false or fraudulent
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`claims herein, plus three (3) times the amount of damages which the United States has
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`sustained because of the Defendants’ actions.
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`PRAYER FOR RELIEF
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`WHEREFORE, Plaintiff, the United States of America, through Relator, requests the Court
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`enter judgment against Defendants and provide the following relief:
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`A. That Defendants cease and desist from further violations of the False Claims Act, 31 U.S.C.
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`§ 3729 et seq., and the related Medicare program;
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`B. That the Court enter judgment against the Defendants in an amount equal to three times
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`the amount of damages suffered by the United States because of Defendants’ actions, plus
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`a penalty of not less than $5,500 and not more than $11,000 for each false claim or
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`certification;
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`C. That Relator be awarded the maximum amount allowed pursuant to section 3730(d) of the
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`False Claims Act;
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`D. That Relator be awarded all costs of this action, including attorney’s fees, costs and
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`expenses pursuant to 31 U.S.C. § 3730(d); and
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`E. That the United States and Relator be granted such further relief as the Court deems
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`equitable, just and proper.
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`JURY DEMAND
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`Pursuant to Rule 38 of the Federal Rules of Civil Procedure, a jury trial is demanded.
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`Respectfully submitted on this 22nd day of November, 2021.
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`/s/ Andres I. Beregovich
`___________________________________
`ANDRES I. BEREGOVICH, ESQUIRE
`Florida Bar No.: 0097812
`ORLANDO OFFICE
`The Beregovich Law Firm, P.A.
`210 N. Mills Avenue
`Orlando, FL 32801
`Telephone: (407) 809-9000
`Facsimile: (407) 809-9001
`MIAMI OFFICE BY APPT
`1581 Brickell Avenue
`Miami, FL 33129
`Service Email: eservice@beregovichlaw.com
`Secondary Email: info@beregovichlaw.com
`Attorney for Plaintiff Relator
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