DJO and Empi: “Assumptive Selling” to TRICARE Beneficiaries

In the DJO Empi TENS TRICARE settlement, DJO Global Inc. agreed to pay $7.62 million to resolve False Claims Act allegations that its subsidiary Empi Inc. billed TRICARE for excessive, unnecessary electrodes that beneficiaries did not need or use. The government described a sales technique called “assumptive selling”: representatives acted as though a beneficiary had already expressed a need for supplies, then persuaded the beneficiary to order them. For someone who knows the sales conversations and the quantities that followed, the case starts well before the bill.

The Department of Justice announced the settlement on January 23, 2018. DJO was a medical device company headquartered in Vista, California. Empi, based in Shoreview, Minnesota, had stopped operating in December 2015. The subsidiary was gone, but its parent still faced the bill for its alleged conduct.

What “Assumptive Selling” Meant at Empi

Empi’s alleged sales method put the customer’s need into the conversation before the customer had established it. The Justice Department described the technique:

The alleged conduct ran from 2010 through 2015. The government described a particularly steep increase in the number of beneficiaries receiving unnecessary quantities during 2014 and 2015.

The government’s account connects the representative’s approach to the order, the unnecessary electrodes and the claim to TRICARE.

Why the Electrode Order Mattered

Empi’s settlement concerned electrodes supplied for transcutaneous electrical nerve stimulation. The quantity of supplies was central to the allegation: beneficiaries allegedly received more than they needed or used.

The equipment and its supplies occupy different places in the durable medical equipment business. A device establishes the customer relationship, while replacement supplies can keep generating orders. That recurring business makes the patient’s continuing need important at each supply order, even after the equipment is already in the home.

TRICARE Was the Payer Behind the Empi Claims

TRICARE, the federal health care program serving military members and their families, was the payer in the Empi settlement. The Justice Department credited the Defense Health Agency and the Department of Defense Office of Inspector General with analyzing the conduct. In the government’s account, the program meant to provide military families with medical care instead faced bills for supplies they did not need.

The Civil Frauds Unit of the U.S. Attorney’s Office for the District of Minnesota handled the matter with other federal offices. The announcement also identified the Defense Criminal Investigative Service as an enforcement partner.

A later Electrostim Medical Services settlement, announced in September 2024, involved allegations of excessive and medically unnecessary supplies for TENS and related devices across Medicare and TRICARE. That case examined the difference between Medicare’s bundled monthly supply code and TRICARE’s itemized billing.

Electrostim adds a separate question to the supply-order problem: how the payer’s billing method treats the quantity supplied. Empi’s account puts the emphasis earlier, on the sales contact that persuaded a beneficiary to accept excess electrodes.

What Evidence Is Needed for Reporting Fraud?

For an excessive-supply case, we examine the connection between what the beneficiary needed, what the sales representative said, what quantity was ordered and what the supplier billed. Someone who worked on the calls may explain a part of that chain that the claim itself never shows.

For someone inside a supply business, the relevant knowledge may sit in sales, order processing, customer service or billing. Our whistleblower experts build the case with you around what those employees know about the orders and claims. A sales employee may know how need was presented, while an order or billing employee may know the quantities attached to that account. The case becomes concrete when those accounts can be connected to the supplies billed to the government.

A whistleblower case under the False Claims Act can pay 15% to 30% of what the government recovers.

You Know How the Order Was Sold

If the supplies on the bill bear little resemblance to what the patient asked for, talk with our whistleblower experts about the sales process you saw. We build your case around the conversation, the order and the government payment, bring in healthcare whistleblower lawyers who know supply-billing cases, and stay with you throughout the case.