Unsealed: Top administrator at Amos Cancer Center files federal court claim accusing the center of overbilling government insurers

chwilliams@ledger-enquirer.comJuly 13, 2013 

  • WHAT IS THE FALSE CLAIMS ACT?

    The False Claims Act is the government’s primary civil remedy to redress false claims for federal money or property, such as Medicare benefits, federal subsidies and loans and payments under contracts for goods and services. Amendments in 1986 strengthened the act and increased incentives for whistle-blowers to file lawsuits on behalf of the government, leading to more investigations and greater recoveries.

    WHAT IS A QUI TAM ACTION?

    In a qui tam action, a private party brings a suit on the government’s behalf. The government, not the private party, is considered the real plaintiff. If the government succeeds, the private party receives a share of the award. The federal False Claims Act authorizes qui tam actions against parties who have defrauded the federal government. If successful, a private party in a False Claims Act qui tam action may receive up to 30 percent of the government’s award.

    ARE QUI TAM ACTIONS COMMON?

    In fiscal year 2012, which ended Sept. 30, 2012, whistle-blowers filed 647 qui tam suits. Of the $4.9 billion the Justice Department recovered from settlements and judgments in civil cases involving fraud against the government, a record $3.3 billion was recovered in the whistle-blower suits.

    Sources: U.S. Department of Justice, Cornell University Law School

  • HOW IT UNFOLDED

    • July 2010: Dr. Thomas “Jack” Tidwell sells Tidwell Cancer Treatment Center to Columbus Regional Healthcare System for $10.5 million. Though not a Columbus Regional employee, Tidwell continues to practice at the center until his retirement in December 2012.

    • February 2011: Columbus Regional Healthcare Systems President and Chief Executive Officer Larry Sanders announces his retirement, effective Sept. 30, 2011.

    • Sept. 26, 2011: Richard Barker becomes administrative director of the John B. Amos Cancer Center.

    • Oct. 4, 2011: Barker meets with his then-boss, Kevin Sass, chief executive officer for Doctors Hospital. According to the lawsuit, Barker tells Sass about the alleged issues he uncovered with medical documentation of office visits, including that many of the medical oncologists’ patient encounter forms did not support the claims submitted on their behalf. According to the lawsuit, Sass agrees and admits that this was not the first time he has heard of this issue.

    • December 2011: Charles A. Stark, president and chief executive officer of Firelands Regional Health System in Sandusky, Ohio, is announced as the new president and CEO of Columbus Regional Healthcare System, effective February 2012.

    • May 18, 2012: Barker files a False Claims Act complaint or qui tam action against Columbus Regional Healthcare System, The Medical Center, the John B. Amos Cancer Center and Regional Oncology LLC. The complaint, filed in U.S. District Court, Middle District of Georgia, is placed under seal by Judge Clay Land and the defendants are not aware it exists.

    • Feb. 19, 2013: Sass leaves as senior executive officer of Doctors Hospital.

    • May 10: Barker amends his False Claims Act complaint against Columbus Regional Healthcare System, The Medical Center, the John B. Amos Cancer Center and Regional Oncology, LLC. The amended claim adds Tidwell and Columbus Radiation Oncology Treatment Center, formerly the Tidwell Cancer Center, as defendants.

    • May 28: Land issues an order to unseal Barker’s suit, but the complaint does not become public for almost three weeks.

    • June: Barker, who had worked as administrative director of the John B. Amos Cancer Center while the suit was under seal, is placed on administrative leave with pay, according to his attorney, Jamie Bennett.

  • ABOUT COLUMBUS REGIONAL

    Columbus Regional Healthcare System includes three hospitals – The Medical Center, Doctors Hospital and Hughston Hospital, all located in Columbus, Ga. The system also includes the John B. Amos Cancer Center, Columbus Regional Physician Group, MyCare Urgent Care Center with locations in Midtown and South Columbus, the Columbus Regional Wound Center, Columbus Regional Breast Care Center and community pharmacies. Columbus Regional has an agreement to manage and operate Spring Harbor, a retirement community off River Road.

    Source: Columbus Regional Healthcare System

The top administrator of the John B. Amos Cancer Center alleges in a federal whistle-blower lawsuit that the center and its physicians -- including well-respected Medical Director Andrew Pippas -- repeatedly and knowingly overbilled government insurers.

Richard Barker, the center's administrative director, filed the wide-ranging and detailed allegations under the Federal False Claims Act -- also known as a qui tam action -- in May 2012 in U.S. District Court, Middle District of Georgia.

The defendants in the case -- Columbus Regional Healthcare System, The Medical Center, the John B. Amos Cancer Center and Regional Oncology LLC, -- were notified last month, after Judge Clay Land unsealed the complaint.

Click here to read Richard Barker's amended claim

Click here to read Richard Barker's original claim

Click here to read the timeline of how this lawsuit unfolded

Click here to learn more about the False Claims Act

Prior to it being unsealed, an amended claim was filed, adding Dr. Thomas "Jack" Tidwell and the Columbus Radiation Oncology Treatment Center, formerly the Tidwell Cancer Treatment Center, as defendants. Columbus Regional purchased the Tidwell Cancer Treatment Center for $10.5 million in July 2010, and the suit alleges that Columbus Regional overpaid for the Tidwell Center, thus providing a kickback for Tidwell's patient referrals.

The 62-page suit also states that Pippas, facing a sharp drop in compensation after being told to change his coding practices, "enlisted the advocacy" of Aflac President and CEO Dan Amos. The center is named for Aflac founder and Amos' uncle, John Amos.

Amos told the Ledger-Enquirer he didn't know about the overbilling claims, and he made available to the newspaper an email he wrote to a former Columbus Regional board member in support of Pippas.

"He takes care of almost every person I know in Columbus who has or had cancer," Amos wrote in the email, sent on April 22. "He has a reputation of being one of the best oncologists in the country and Uncle John would have wanted him to be his doctor. I am sure, there will be an uproar like you have never seen in this community if Andy is run off due to lack of support of Columbus Regional."

According to the qui tam complaint, Barker is suing for the U.S. government and stands to be compensated up to 30 percent if the government recoups money or is awarded damages. The financial impact, if proven at trial, could reach more than $100 million, said Barker's attorney, Jamie Bennett of Ashcraft & Gerel based in Landover, Md.

Bennett said Barker would not be available to comment on the allegations.

"We want the focus to remain on the allegations in the complaint," she said. "They are strong and speak for themselves."

Columbus Regional President and Chief Executive Officer Charles A. Stark said his organization, which operates The Medical Center, the John B. Amos Cancer Center and Doctors Hospital among other local health-care providers, was still evaluating the potential liability and declined to speculate about the potential financial impact.

Taking it 'very seriously'

Stark assumed the helm of Columbus Regional in February 2012, about four months after Barker started his job at the John B. Amos Cancer Center. According to the suit, Barker began raising questions about billing and coding practices during his first week as administrative director. That same week, Larry Sanders, whom Stark would replace, retired after more than 30 years with Columbus Regional and The Medical Center, with more than 20 of them as CEO.

Mike Paulhus, an attorney with King & Spalding, an international law firm based in Atlanta, who was hired by Columbus Regional, declined to discuss the specifics of Barker's allegations.

"We don't comment on the merits of pending litigation for our clients," Paulhus said.

The defendants have until the end of July to file responses, including motions to dismiss the case. If Land does not dismiss the suit, then it will move through the federal courts much like any other civil matter.

Stark said Columbus Regional was taking the matter "very seriously." The Columbus Regional Board of Directors was notified of the lawsuit at a scheduled meeting last month.

"We operate our business every day with the expectation that we are in compliance with every standard every day," Stark said.

Barker has been employed as the top administrator of the John B. Amos Cancer Center since September 26, 2011. Before coming to Columbus, he was compliance officer for Cancer Care Partners in Mishawaka, Ind.

Barker has been on administrative leave from the John B. Amos Cancer Center since last month, his attorney said. Stark would only say Barker "is an active employee."

In 2008, Columbus Regional became the target of another Federal False Claims Act investigation. It was triggered when a medical physicist working under contract at The Medical Center filed a whistle-blower claim alleging the organization had billed the government for cancer therapies that were either not performed; performed in ways that endangered patient safety; or not properly documented.

Columbus Regional paid King & Spalding $734,708 to defend those allegations, according to Columbus Regional spokesman Frank Austin. The investigation ended in 2010, after the government declined to pursue the case.

With the current claim, the government has the option to join Barker in his suit but has not done so. Bennett said her client has decided to pursue it individually. If the federal government had joined the suit, Barker would have stood to receive 15 percent to 25 percent of recovered money and damages. Without the government participation, Barker stands to receive 25 percent to 30 percent.

"The government declines for a number of reasons," said Bennett, who spent 20 years as a assistant U.S. attorney in Maryland where she specialized in Federal False Claims Act cases. "Maybe the government feels we have the trial experience and financial resources to pursue this."

Sue McKinney, a spokesperson for the U.S. Attorney's office in the Middle District of Georgia, said last week that her office does not comment on pending litigation and declined to discuss Barker's suit or the government's reason for not intervening.

Coding and billing

The suit alleges that the John B. Amos Cancer Center has a long-standing practice of improper coding and billing and that its five physicians working for Regional Oncology LLC "systematically" overcharged Medicare, Medicaid, TRICARE/CHAMPUS and the Federal Employee Health Benefits Program and "reaped" potentially millions of dollars of unearned fees.

The physicians filed bills for office visits at levels that were not supported by the documentation in the medical record and filed bills for services that were included within the reimbursement for the administration of chemotherapy and thus were not separately billable, the suit claims.

Physicians at the John B. Amos Cancer Center are salaried the first three years they're on staff, according to the suit, and after that are paid by the number of "Revenue Value Units" they produce.

"Thus, there is a direct correlation between a medical oncologist's compensation and the billing code he or she chooses to seek reimbursement from third party payers," the suit claims.

In February 2012, Health Management Resources Audit Guard, an independent consultant, reviewed 40 medical charts, according to the suit. The results showed that Dr. Pippas up-coded his charts 68 percent of the time and never under-coded; that Dr. Wilbur Bassett Jr. up-coded his visits 63 percent of the time and also never under-coded; and that Dr. John Currie had a 40 percent error rate including five charts that were under-coded.

After the audit, Pippas and Bassett received code training, according to the suit, and were also notified when their code did not match the accompanying medical record. But instead of adjusting his selected code downward, the lawsuit claims, Pippas instead modified the existing medical record to justify the higher charges. This practice ended around October 2012 when Pippas was told that he would be unable to change the medical records to conform to the higher billing code he had selected, according to the suit.

Pippas declined to be interviewed for this story.

In the suit, Barker claims that Jeffrey Johnson, the John B. Amos Cancer Center chief financial officer, and Renee Archer, Columbus Regional compliance officer, told him that if the defendants intended to repay the overpayments identified by the Health Management Resources audit, it would be in small increments that would not raise any concerns with Medicare or other federal health benefit programs.

Barker claims he was informed that any amounts repaid would not begin to capture the amounts owed for "fear of drawing the attention of federal payors" and triggering an audit. As of May 10, no repayments of overpayments identified by Health Management Resources audit had been made, according to the suit.

Email from Amos

Barker alleges that in the fall of 2012 the center was changing its coding practices, which would have a direct impact on Pippas' compensation.

The coding is done on a 1 to 5 scale, with 5 being the most complicated procedures and cases, thus drawing the most reimbursement and requiring more of the doctor's time. For example, a code 2 involves problems that are "self-limiting or minor" and requires "a problem focused history, a problem focused examination or straightforward medical decision making."

In contrast, a code 5 involves problems of "moderate to high severity" and requires a detailed history and examination as well as "medical decision-making of high complexity."

A doctor typically spends about 10 minutes with a patient and family during a code 2 visit and 45 minutes in a code 5.

"Dr. Pippas was aware that the change in coding practice (to appropriately reflect the service actually rendered rather than the inflated code he assigned) would directly affect his compensation," the suit claims.

According to the suit, Pippas received $159.30 for code 5 visits. Dropping one notch would mean he'd get $99, two notches would mean $60.30, and dropping down to a code 2 would reduce the payment to $40.50.

"Dr. Pippas vociferously objected to this reduced compensation and sought a guarantee from JBACC management that his compensation would remain at the same level for at least six months after the coding changes were implemented," the suit claims.

According to the suit, Pippas enlisted the help of Aflac CEO Dan Amos, who along with his wife, Kathelen, are major financial supporters of the center. Kathelen Amos chairs an advisory committee at the center.

The suit alleges Pippas told Amos that his compensation was being curtailed by coding changes. Amos responded by telling Stark that if the hospital continued to curtail the amount Pippas could earn by correcting the bills submitted to insurers he would withhold his contribution to the center's planned building expansion project, according to the suit.

Amos, in an interview with the Ledger-Enquirer, said he had no knowledge of the coding issues and never talked to Stark. He said he did send an email to former Aflac executive and former Columbus Regional board member George Jeter, expressing concern that Pippas could leave the center over a contract dispute.

In the email, sent on April 22, 2013, and copied to Joey Loudermilk, Aflac executive vice president and general counsel and a Columbus Regional board member, Amos wrote that under Pippas' leadership the center was "well on its way to being one (of the) best Cancer Centers in the USA especially, for our size city."

"They are about to embark on a major capital campaign that Kathelen and I are willing to help," he continued, "however, for some reason the management\Board is giving Andy a hard time about his contract. Jacob Beal, Andy's attorney, told Kathelen at a party that he recommended to Andy that he consider leaving the John B. Amos Cancer Center due to the lack of support for him. I do not know what is going on but, Andy is the key to the success of the JBACC."

Amos acknowledged in the email that Pippas and his wife, Janet, had become friends of his family.

"I am not willing to make another financial commitment only to find out a year later that Andy is leaving due to the lack of commitment to him on the hospital's part," Amos wrote.

Stark said he was aware of the email, but he never talked to Amos about Pippas' compensation.

Stark said Columbus Regional is planning to announce a $20 million expansion of the cancer center and that Dan and Kathelen Amos have been asked to make a major contribution and help lead fundraising efforts.

Amos said Pippas has become the face of the Amos Cancer Center. "If the point person were to leave, I did not want to be involved in trying to raise the money," Amos told the Ledger-Enquirer. "It would have been a setback."

"My interest here is making sure the John B. Amos Cancer Center is the best place it can be to be treated for cancer," Amos said.

Purchase of Tidwell Center

The suit alleges that the $10.5 million Columbus Regional paid Tidwell for his cancer center in 2010 was an overpayment designed to secure referrals for Columbus Regional. The purchase was in violation of two federal laws -- The Stark Law and federal Anti-Kickback Statute -- according to the suit.

The Stark Law prohibits physician referrals of designated health services for Medicare and Medicaid patients if the physician has a financial relationship with that entity. The federal Anti-Kickback Statute prohibits the payment, in any form, whether direct or indirect, made in part or in whole to induce or reward the referral or generation of federal health care business.

Tidwell continued to work for the Tidwell Cancer Treatment Center until he retired in December. Though his staff was employed by Columbus Regional, Tidwell was not, according to the suit.

Tidwell's attorney, Travis C. Hargrove with Page, Scrantom, Sprouse, Tucker & Ford, P.C., declined to comment on Friday.

The purchase was made under former Columbus Regional President and CEO Larry Sanders.

"The purchase price did not reflect fair market value, but reflected the price CRHS believed it would have to pay to keep competitors out of the market for TCTC," according to the suit. "In fact, as the Defendants determined in December 2012 after Dr. Tidwell retired, the equipment they purchased was essentially worthless. The purpose of CRHS' purchase of TCTC was to secure referrals from TCTC to CRHS instead of to its competitors."

If any one purpose of such a relationship is to secure referrals, the Anti-Kickback Statute and Stark Law have been violated, the suit claims.

Stark, the Columbus Regional CEO, said it was his understanding that an independent third party evaluation firm was brought in to provide a fair market value opinion on the purchase price range on the Tidwell Center.

"Based on that opinion, an offer to purchase was made," Stark said.

The suit also alleges the equipment at Tidwell Cancer Treatment Center/Columbus Radiation Oncology Treatment Center is not capable of delivering Intensity-Modulated Radiation Therapy to the standard of care, making delivery of such service not reasonable or medically necessary. Alternatively, Intensity-Modulated Radiation Therapy was not delivered at all, making the billings for the service to federal health benefit programs factually false, according to the suit.

Moving forward

Late Friday afternoon, Stark sent out an email to Columbus Regional employees informing them of the lawsuit, saying it could take more than a year to resolve.

"Based on information from the Center for Medicare and Medicaid Services, an error rate of zero simply is not achievable in an organization the size and complexity of Columbus Regional," Stark told his employees. "Inaccurate billing is in part due to the voluminous regulations for Medicare and Medicaid reimbursements and in part due to differing professional opinions of the care rendered and how that is documented."

He said the focus of the suit was "on complex and very technical billing rules, not on matters related to quality of care. All sites of Columbus Regional Healthcare System, including the John B. Amos Cancer Center, provide outstanding care to patients."

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