Deeper Than the Headlines: Savvy Patient Blows the Whistle

When we hear of doctors, hospitals and other healthcare providers settling False Claims Act allegations with the government, we frequently learn that the accusations were first raised by a current or former employee or another healthcare provider such as a physician. But, it doesn’t seem as common to hear of a patient blowing the whistle and being successful in obtaining a portion of the settlement dollars.

But one patient of a Florida Otolaryngologist (ENT) has done just that. Granted, the patient also happened to be a healthcare executive with years of experience in finance. Services that were personally provided to him by the physician's office triggered his lawsuit.

The ENT physician, Dr. Paul Tartell, recently settled the allegations with the government and has agreed to pay $750,000 in addition to an Integrity Agreement with the HHS-OIG according to the settlement agreement. The patient/whistleblower will receive $135,000. The complaint, filed in the Southern District of Florida (United States ex rel. Duay v. Paul B. Tartell, M.D. et al., No. 14-23954-Civ), even used some Medicare data to claim unnecessary and improperly billed services, which the patient and his private commercial insurance received, applied to the physician’s Medicare patients as well (even though this particular patient did not state he was a Medicare patient himself).

According to the whistleblower’s complaint, the physician was billing for nasal endoscopies with debridement when the procedure that was actually performed was a diagnostic endoscopy. The CPT codes in questions were 31237 and 31237-50. The “-50” is the bilateral modifier, signifying the procedure was performed bilaterally and by appending this modifier the reimbursement is increased.

Debridement is the removal of unhealthy tissue and, when performed, warrants use of the debridement code. If a diagnostic endoscopy alone was performed without actual debridement then a different (lower reimbursed) code, CPT 31231, should be reported.

The complaint stated the patient and his private insurance were billed the debridement code, 31237, four separate times when a debridement was not actually performed. It described the medical record as stating “Bilateral endoscopically debrided mucous and debris” was performed. However, the patient claims this was a routine diagnostic nasal endoscopy (CPT 31231) by a physician assistant, not a debridement (31237-50) and that the physician assistant did not pull mucus or debris from his nose, nor did the physician assistant perform the procedure bilaterally through both nostrils, but only on the right nostril.

The patient claims he raised these concerns with different office personnel about these bills. In one circumstance, he said he told a different Physician's Assistant in the office of the improper claim and the Physician’s Assistant said other patients had expressed similar concerns, but Dr. Tartell had explained to him that the billing for such procedures (CPT 31237) was correct.

The allegations extended to Medicare patients based, in part, on the claim that if the patient’s private insurer was being billed inappropriately, then Medicare probably was as well. He utilized physician payment data that Medicare had published to determine that for 2012 this physician collected more reimbursements than any other physician in the nation from Medicare billings of CPT 31237.

He included this analysis in his complaint:

In fact, he performed the following additional data analysis that showed billing patterns for other services as well:

Such data analytics are typically performed by the government themselves. There may be no reason to believe the government did not also do their own analysis as well, but it is pretty unique for a patient to perform such an analysis from CMS data and include it in their whistleblower complaint. Some might even call it savvy.

The settlement agreement states that it “is neither an admission of liability by Tartell nor a concession by the United States and Relator that their claims are not well founded.” This is not uncommon when settling such allegations. And certainly, there are other sides to this story and other perspectives that were considered. The purpose of this writing though is simply to point out that in addition to the “traditional” whistleblower of an employee or physician that many compliance programs try to provide reporting avenues for, it might also be wise to consider including patients in awareness efforts of a compliance program hotline, for example.

Needless to say, if a savvy patient can run these kind of data analytics, it might be wise for compliance professionals and officers to also keep an eye on the data. Some of this data is publicly available and can be viewed here.