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Law360 (August 6, 2020, 10:00 PM EDT) -- Prosecutors in Texas announced Thursday that a federal judge has temporarily halted allegedly fraudulent coronavirus testing being administered by a masseuse at her holistic health care facility.
U.S. District Judge David A. Ezra granted the government's motion for a temporary restraining order in the matter July 6, heading off the allegedly improper testing being offered at the New Braunfels, Texas-based Living Health Holistic Healing Center, which does business as Living Health New Braunfels.
In an Aug. 5 complaint naming the facility and its owner and operator, licensed massage therapist Leslie Tatum, the government claimed that since May, Tatum had flouted numerous city, state and federal requirements by misleadingly advertising $85 coronavirus tests she wasn't qualified to administer and didn't have the means to properly interpret.
"Defendants are engaging in and facilitating predatory mail and wire fraud schemes exploiting the current COVID-19 pandemic," the government said in its complaint.
According to the government, Tatum, a self-described practitioner of holistic medicine who has run the business since 1993, started offering the tests in May, representing on her company's websites and social media and in e-commerce emails that she could test for both active infections and antibodies, despite the fact she'd only purchased antibody tests.
Prosecutors alleged that in a video that she posted describing the tests, "defendant Tatum informs the public ... that she is a certified phlebotomist and 'it's totally right on,' implying she is a qualified medical professional performing administering tests and interpreting their results legitimately and accurately."
Phlebotomy, or drawing blood, is not something Texas licenses individuals for, the government said: "While individuals can pursue a certificate in phlebotomy, often, those performing phlebotomy do so in the course of their duties as a licensed healthcare practitioner, such as a nursing or medical assistant, nurse, or physician."
Instructions for the tests Tatum used indicate they are only supposed to be administered by "professionals," and that without clinical laboratory testing, a preliminary negative test result is only presumptive, the government said. Nonetheless, prosecutors claim, at least four patients described being tested at Living Health with the understanding that they were receiving a test for an active COVID-19 infection.
One of the patients, who is described in court documents as a mother of three caring for her elderly father, had coronavirus symptoms in early July at the time that Tatum purportedly tested her and declared her negative for the virus, the government said. But a day later, prosecutors claim, the woman was retested at an urgent care clinic — and tested positive for COVID-19.
A former employee of Living Health told federal investigators that New Braunfels city officials had contacted the business to tell Tatum she couldn't continue testing, and that Tatum told the employee that she would do the tests anyway. The former employee also said that in one week-and-a-half time span, of 20 patients Tatum tested, all 20 purportedly had negative test results.
Records show that four days before prosecutors filed the suit, federal investigators notified the public that they wanted to talk to those who had received a purported COVID-19 test at the facility.
"Authorities have reason to suspect the COVID-19 tests administered at the facility should not have been used to diagnose or rule out an active COVID-19 infection," and those who had been tested should get tested again, the Aug. 1 notice stated.
A hearing on the temporary restraining order is scheduled for Aug. 25.
Representatives for the U.S. Attorney's Office for the Western District of Texas did not immediately respond Thursday to a request for further comment beyond the announcement, and Living Health did not immediately respond to a request for comment.
The government is represented by Erin M. Van De Walle, Justin Chung and Michael C. Galdo of the U.S. Attorney's Office for the Western District of Texas.
Counsel information for Tatum and her company was not immediately available Thursday.
The case is U.S. v. Tatum et al., case number 5:20-cv-00907, in the U.S. District Court for the Western District of Texas.
--Editing by Breda Lund.
For a reprint of this article, please contact reprints@law360.com.
