According to official court documents, between the years of 2006 and 2010, Baylor allegedly double-billed Medicare, the government’s social healthcare insurance program, for numerous radiation-related treatments. Baylor is also accused of fraudulently billing Medicare for procedures with higher reimbursement rates, when, in fact, they actually performed services that called for a lower reimbursement rate.
The Original Qui Tam Lawsuit
The allegations of fraud against Baylor originally stemmed from a qui tam, or whistleblower, suit that was filed in 2010. The whistleblowers in this case are Dr. Brian Berger, a radiation oncologist, and Janice Delp, a radiation therapist. While Dr. Berger is no longer working at Baylor, Janice Delp remains employed by the hospital.
According to the whistleblower’s complaint, both Berger and Delp claim they personally witnessed fraudulent and improper activity within the Baylor hospital. Examples cited in the complaint range from payment of illegal kickbacks to fraudulent billing of individual services that were supposed to be billed within a bundle of services. While each allegation is crucial to a False Claims Act lawsuit, the whistleblowers compliant placed a spotlight on the lack of required supervision during dangerous radiation treatments.
According to the whistleblowers, a high number of cancer patients underwent dangerous radiosurgical procedures while being treated at Baylor. The Baylor Radiosurgery Center routinely performed both Gama Knife and CyberKnife procedures, which are forms of highly advanced and technical stereotactic radiosurgery. Due to the complex nature of these treatments and the risks involved, these procedures are regulated by the Nuclear Regulation Commission (NRC) and the Centers for Medicare and Medicaid Services (CMS). Under NRC and CMS guidelines, in order to be reimbursed by Medicare, a supervising physician is required to be present throughout the entire radiation administration process. Both whistleblowers claimed that Baylor not only allowed radiation treatments to be performed without physician supervision, but actually encouraged it.
Both Berger and Delp claimed that the hospital’s administration encouraged radiation oncologists to perform other duties and procedures around the hospital while their patients were undergoing dangerous radiation therapy. Seeking reimbursement for unsupervised radiosurgical procedures, Baylor fraudulently billed Medicare for the services. According to Berger and Delp, Baylor consistently put profit before patient safety for the sake of making more money.
After learning of the numerous False Claims Act violations at Baylor, both whistleblowers claim to have voiced their concerns repeatedly to hospital administration staff. Particularly troubled by the lack of physician supervision during hazardous stereotactic radiosurgery procedures, both whistleblowers spoke with Baylor manager, Joel Allison. When that conversation was ignored, they took their concerns to Baylor Healthcare System President and Chief Executive Officer, John McWhorter. Berger and Delp claimed they were once again brushed aside. In fact, before consulting with a False Claims Act attorney and filing an official compliant, Berger and Delp not only spoke with Allison and McWhorter; they spoke with the President of Baylor University Medical Center, the Senior Vice-President of Baylor Healthcare System and the Vice-President of Administration at Baylor University Medical Center. Berger and Delp claimed their concerns for patient safety were immediately swept under the rug after each conversation. It was this blatant disregard for the lives of their patients that the two decided to take legal action.
Additional False Claims Act Violations
Also included within the 80-page whistleblower complaint are allegations of additional False Claims Act violations. These violations include:
- Submitting false claims to Civilian Health and Medical Program of the Uniformed Services (Tricare) and the Federal Employees Health Benefit Program for radiation procedures
- Paying illegal kickbacks to Texas Oncology P.A in exchange for patient referrals
- Creating bogus Cyber Knife treatment plans in order to fraudulently bill for additional planning codes
- Billing for procedures without providing any supporting documentation in the medical record
According to the DOJ, it is unclear if any patients were harmed as a result of the alleged False Claims Act violations committed by Baylor.
“Physicians who participate in Medicare must bill for their services accurately and honestly,” said Stuart F. Delery, Principal Deputy Assistant Attorney General for the Justice Department’s Civil Division. “The Department of Justice is committed to ensuring that federal health care funds are spent appropriately.”