Jury determines CARD Clinic submitted false asbestos claims

A seven-person jury found last week that non-profit clinic Center for Asbestos Related Disease is guilty of submitting hundreds of false asbestos claims.

The decision was made on the evening of Wednesday, June 28, after jurors began deliberating at about 12:30 p.m.

Railroad giant BNSF brought the suit on behalf of the United States government against CARD under the False Claims Act. The jury determined that damages to the federal government are $1,081,265.

CARD Executive Director Tracy McNew said the clinic intends to appeal the case.

In the trial, attorneys for CARD argued the clinic signed people up for Social Security and Medicare benefits by diagnosing Asbestos Related Diseases under the clinic's interpretation of the Affordable Care Act. Benefits included early access to Medicare and enrollment in the Medicare Pilot Program – a program that helps disabled individuals pay for everyday tasks, such as snow removal.

Lawyers for BNSF alleged CARD knowingly misinterpreted the law, which resulted in hundreds of people enrolled in these programs who should not have qualified.

When CARD submitted these patients to the Social Security Administration, it approved them. The jury has now found this practice fraudulent.

"Fraud is, by its very nature, self-concealing, but the truth slowly came out," said Adam Duerk, who represented the railroad.

"The impact on Libby citizens who developed an asbestos-related disease due to W.R. Grace's mining operations is a tragedy. Due to the actions of the CARD Clinic, millions of dollars of taxpayer money were lost and resources were diverted from those who legitimately needed it," BNSF wrote in an email to The Western News. "The focus of this trial was on CARD's treatment of the hundreds of people who are not sick. It's a sad chapter in this saga that this trial was necessary to restore the focus on those who are truly impacted and who should continue to have access to the benefits and care they deserve."

The jury found CARD knowingly made or presented false claims 337 times, with 91 violations occurring after Nov. 2015. The damages were determined based on benefits paid by the federal government in response to false claims filed by CARD. For pursuing the case, the BNSF could receive 15% to 25% of the money acquired by by the government.

Dr. Black and the CARD clinic have certified more than 3,400 people with asbestos-related diseases, according to court documents. Duerk pointed out that Black even diagnosed himself, which put him at odds with a local radiologist who later found Black negative for ARD. Black said his pain disappeared, but Duerk countered that his benefits did not go away.

Expert witnesses testified that some individuals who received benefits were fraudulently labeled as sick and suffered from unnecessary narcotic prescriptions.

Dr. Steven Thomas, who has worked as a pain management expert, was paid $30,000 by BNSF to review CARD medical reports and another $8,000 for his travel to Missoula.

Thomas did not review every patient, but he noted there were violations of prescription practices, such as rubber-stamped – electronically signed – prescriptions for opioids by Dr. Black. Dr. Black, who is a pediatrician by specialty, has also served as the Lincoln County Health Officer. He has previously said the ailments caused by the type of asbestos found in Libby are difficult to detect and can be missed by outside radiologists.

Thomas also testified that Black prescribed "too much too fast" and the opioids were not medically necessary. He went as far as saying 95% of the prescriptions were not medically necessary.

Another witness, Dr. Steven Becker, disagreed with some articles published by Dr. Black related to pleural thickening, which Becker claims is short-lived. He accused Black of coming up with a novel form of the disease, not accepted in mainstream science, and said even Black could provide no concrete description.

Becker said he did not know the CARD Clinic was over-reading signs of disease or giving unnecessary medications – which, in his opinion, was unethical.

Eric Heins, a forensic accountant from Boston, Massachusetts, looked into CARD's records and found 1,099 cases with no outside diagnosis besides those made by CARD. In these cases, CARD found reason to think there was an ARD, but outside readers who reviewed the record disagreed.

Heins also looked at who had received Social Security and Medicare benefits before eligibility but were not diagnosed with ARD. He estimated the cost to the government at $10,695 per patient.

But CARD attorney Tim Bechtold said Libby is unique.

"The Montana congressional delegation told people in Libby how to make it simpler for people to get benefits," Bechtold said. "Removing two outside reads and making it so CARD reads count. The Act is essentially written for the CARD Clinic. A lot of people in Libby are sick and dying from an asbestos-related disease," Bechtold said.

"It's like breaking your ribs; it hurts that bad," witness Jason Clark said of his asbestos-related pain.

Enrolled in the pilot program, which pays for outdoor maintenance, lawn care and snow removal, Clark testified he was not diagnosed with an ARD. Clark had been on a fentanyl prescription since 2009 and Black had written a letter supporting his disability status because of abnormalities in his pleura.

CARD argued asbestos-related diseases take time to manifest in patients and Dr. Black has been able to spot symptoms in the pleura when others could not because of his 20 years of insight regarding the progression of lung damage.

Clark testified his family home was contaminated with asbestos and family members had died due to ARD or been diagnosed with Asbestosis.

"The whole house was, is, full of vermiculite," he said.

Dr. Arthur Frank, a health and environmental health professor, defended the work at CARD and said it was a basic public health approach for an at-risk population.

Frank said Libby suffered from widespread contamination and people have historically developed many diseases. The pleural changes in question were unique to Libby, where winchite and richterite mingle with asbestos. Frank said these minerals could cause minimal changes to the pleura on an X-ray with remarkable breathing changes.

The confusion regarding who qualifies for government benefit programs occurred when switching from the Flash program, which ran from 2008 to 2010, to the Affordable Care Act's regulations, Black said. The CARD clinic had hoped to streamline the process of diagnoses for patients and worked with the Montana Congressional Delegation on it.

After communicating with lawmakers, CARD saw the wording they had asked for printed in the Affordable Care Act, and CARD interpreted their actions as falling within the act's framework. However, Duerk noted there is no evidence CARD ever checked their practices with the Social Security Administration.

CARD also maintained they had been transparent about their interpretation of the law, as it published its diagnostic practices in annual reports.

As for the future of patient claims which have been found fraudulent, that will be decided by the federal government, Bechtold said.

"I think the CARD clinic stands by its practices and mission to serve the Libby community and others impacted by asbestos exposure," Bechtold said.