Dark secrets in Dallas, part I: Nebraska Medicine's PM&R chairman and his hidden past of Medicare fraud in Texas

Dr. Samuel Bierner during his time at Parkland Hospital
and UT Southwestern when the feds, news media, and  
medical board were coming down on him and four other 
UTSW PM&R faculty members over charges of Medicare 
fraud and patient endangerment

In September of 2016, we uncovered a very big scandal brewing at Nebraska Medicine involving its recently appointed chairman of its fledgling Physical Medicine & Rehabilitation department (PM&R), Dr. Samuel Michael Bierner of Elkhorn, and his secretive, dark and enigmatic history, back at his old haunts at Parkland Memorial Hospital in Dallas, Texas.

Parkland is best known as the hospital where President John F. Kennedy was brought after he had been fatally shot in the head by a sniper's bullet on November 23, 1963 in Dealey Plaza in Dallas, Texas.

Kennedy died shortly after arriving at the hospital, and it is no secret that the Kennedy's top aides and Secret Service detail had a very violent tussle with Parkland's medical staff in the aftermath of the President's death over who had legal jurisdiction over performing an autopsy on the President's body. (See video below on Parkland the movie.)

From what we have learned since those articles about Dr. Bierner last September and October from our inside sources, what we've shown so far is only the tip of the iceberg on his deeply troubled past as a physician in Texas, which included an on-going investigation by the state's medical board.

What we already know is this: Just before coming to Omaha almost one year ago in March 2015 from Texas, Dr. Bierner, along with four other fellow UT Southwestern PM&R faculty members, were charged by the federal government of committing widespread Medicare fraud at Parkland Memorial Hospital.

Former UTSW PM&R chairwoman Karen Kowalske

was demoted from her chair position of the PM&R

department at UTSW in October 2012 after a federal

False Claims Act lawsuit was unsealed to the public

showing the federal government had join in on the

lawsuit as the plaintiff

By committing those acts, they apparently endangered the lives of that hospital's most vulnerable patients, critical care patients that mostly came directly from the hospital's intensive care units (ICUs.)

Normally, acute rehab units do not admit patients directly from the ICU as those patients are consider "not medically stable"; however, Parkland's 8-East wing, unlike rehab units elsewhere, not only did exactly that, but they aggressively trawled the ICU wards specifically looking for these less medically stable and vulnerable patients who would maximize their length of stays inside Parkland and UT Southwestern's inpatient rehab wards.

Dr. Bierner was reported to be so brazen in coercing his residents to aggressively bill Medicare on the hospital's behalf, on work that only resident trainees had done on patients, that he dishonestly mislead them to believe that, if they under-billed Medicare and Medicaid for medical services they provided as resident trainees, that could be considered Medicare fraud as much as over-billing Medicare would be, which simply is a falsehood with absolutely no basis in reality.

The fact that his department was forcing residents to bill Medicare and Medicaid for work solely done by residents, without any direct attending supervision, was a tip-off that something wasn't right about Parkland's PM&R department.

Resident trainees are not allowed, under any circumstances by the U.S. Centers for Medicare & Medicaid Services (CMS), to bill Medicare for any of the services they alone provide patients while in training. Those kinds of services must also be seen directly by attending physicians. (See resident billing forms on pages 3 and 4 below.)

What's most striking about UT Southwestern's billing forms is that there are two distinct billing forms for resident trainees and faculty members in the PM&R department. (See resident vs. faculty billing forms on pages 4 and 5 below in the Scribd documents.)

Newspaper headlines of billing fraud, patient abuse and
patient endangerment ran on the front pages multiples
times per week against Parkland and UTSW after the
Dallas Morning News found out about the Medicare
fraud lawsuits

We've never seen or heard of a resident trainee billing form for Medicare or Medicaid for physician services under Part B, as that is distinctly never allowed under CMS billing rules.

Only a teaching physician who supervises a resident may bill under his/her own Medicare account.

A resident's fixed yearly stipend or salary is paid for under Medicare, Part A, under hospital expenses; however, they are never allowed to bill for personal physician services under Part B of Medicare.

Thus, there should only be one faculty billing form for supervising services that teaching physicians provide while they are in same room as the trainee directly supervising the resident's work (i.e., this is called the "at elbow" rule of teaching physicians billing Medicare); however, a resident should never be involved in billing a patient as that is the teaching physician's sole responsibility to document as his/her direct involvement in the medical services provided to a patient under penalty of perjury.

According to the U.S. Attorneys Office, UT Southwestern's PM&R faculty members never directly supervised residents when the resident trainees saw patients at Parkland or UT Southwestern, and the PM&R teaching physicians could not provide any notes or documentation to prove they were with the residents at the time the trainees saw the patients in question, who were billed for personal physician services to Medicare under the attending physicians' names.

Former UTSW PM&R faculty member Vincent Gabriel

was terminated by UT Southwestern in August of 2010

for his part in the billing scandal at Parkland hospital and

has since left the country

Bierner, in particular, falsely told his residents that he did not have to see any of the patients they saw, despite the fact that he listed himself as the attending physician for these patients and billed them all under his own Medicare/Medicaid physician number for his own personal physician services.

Instead, he would often just review residents' notes, long after the patients were gone or the clinic had closed, to write some very sketchy notes, as an afterthought, vaguely documenting that he had "reviewed" the residents' assessments and plans to bill the patients in question, without ever indicating that he ever saw the patients at all.

Thus, this was not a difficult case for the U.S. Department of Justice to prove because the burden of proof in personally seeing the patients was on Parkland to prove through attending physician notes of the patient encounters, and all the notes in question indicated the attending physicians were never present with the patients at the time of the encounters.

The five individually named defendants in the federal Medicare fraud case (i.e., Samuel Bierner, Karen Kowalske, Vincent Gabriel, Anne Hudak, and Susan Knapton) were accused of committing fraud in order to artificially keep hospital bed census in the rehab units inside both Parkland and UT Southwestern's acute rehab facilities filled throughout the year, while they were also enriching their own pocketbooks with financial incentives to bill Medicare from this scheme, even if such questionable practices went against federal law and harmed patients.
   

Samuel Bierner's contract and UTSW billing forms by Michel Schwalbe

    
In fact, they did this despite the fact that their faculty contracts with UT Southwestern explicitly made them aware that it was their responsibility to comply with federal rules to bill Medicare, "[Y]our understanding that compliance with all federal and state laws, regulations and requirements for documentations by teaching physicians/practitioners for billing third party payers, is the responsibility of the physician/practitioner."

Former UTSW PM&R faculty member Anne 

Hudak was terminated by UT Southwestern 

in August of 2011 for her part in the billing 

scandal at Parkland hospital and at least two 

known unexpected patient deaths under her care

The Memoranda of Appointment for UT Southwestern faculty members, however, states an incentive for its faculty to encourage more billings: "Salary paid in excess of the base salary may rise and fall from year to year in recognition of...productivity over and above the basic requirements of a faculty member at this rank," giving UT Southwestern faculty members a clear financial incentive to bill third party payers, such as Medicare. (See Memoranda of Appointment above on page 1 and 2.)

According to the inside reports from the feds, many of these critically-ill patients were not even conscious, let alone ready to come off of bedrest, to be able to participate in any from of physical activities when they were unknowingly and inexplicably transferred to Parkland's 8-East wing to undergo acute inpatient rehab, instead of continuing to receive critical medical care for their very serious and often life-threatening injuries and illnesses inside Parkland ICUs.

We were told by several sources that Dr. Bierner explicitly admitted to his residents on several occasions that patients in Parkland 8-East acute rehab facilities were "sicker" than typical rehab patients in acute inpatient rehab; therefore, the hospital required residents to physically stay on-call overnight at the hospital to care for these patients' urgent medical needs.

Why that is seems to raise a big red flag since the medical standards for admitting patients into a acute rehab facility are dictated uniformly across the country by Medicare, and they explicitly state that patients admitted into acute inpatient rehab must first be medically stable.

Anne Hudak's wrongful death lawsuit and settlement by Michel Schwalbe

That statement from Bierner is most unusual, since virtually all rehab units across the country do not require residents to physically stay on the premises at the hospital to be on-call overnight, mainly because of the previous reason cited that patients admitted to rehab must be medically stable. Instead, PM&R residents on-call are usually required to be by their pagers, answering calls from home.

As a result, many of these "sicker" patients were later found to have suffered further serious harm after having intravenous lines (IV) and breathing tubes removed and IV antibiotics and other essential IV medications stopped as a result of being admitted to the lower level of care of the acute rehab unit, way before they were even deemed to be medically stable to participate in rehab.

Former UTSW PM&R faculty member Susan Knapton

was terminated by UT Southwestern in April of 2010

for her part in the billing scandal at Parkland hospital

When all these charges became public knowledge after the government's lawsuit was unsealed, Parkland quickly scrambled to settle the federal False Claims Act lawsuit out of court—one of as many as three Medicare fraud lawsuits brought before the U.S. Department of Justice, alleging billing fraud by Parkland and/or its affiliated medical school partner UT Southwestern—and they had to pay back all the money that Dr. Bierner and his co-conspirators had misappropriated and defrauded from tax payers to avoid any further serious legal actions from the U.S. Attorney General's Office and Department of Health & Human Services.

However, the settlement did not come before the U.S. Centers for Medicare & Medicaid Services (CMS) nearly permanently revoked all federal funding to the hospital, and the U.S. Health & Human Services Office of the Inspector General (HHS OIG) slapped the hospital with its harshest 5-year term of probation, known as a Quality of Care Corporate Integrity Agreement (QoC CIA), which now only two hospitals and only a handful of other dishonest nursing homes, rehab centers, and physician groups around the country are currently on.

This was on top of another 2-year terms of probation called a Systems Improvement Agreement (SIA) from U.S. HHS, which the hospital had to serve out consecutively with on-site independent safety monitors after failing a last-ditch do-or-die series of patient safety inspections from CMS.

UTSW PM&R Staff Terminations and Demotions by Michel Schwalbe

   
Two years before the harsh Quality of Care CIA was entered into, in 2011, Parkland also badly failed a series of patient safety inspections from CMS after the city's largest daily newspaper, the Dallas Morning News, began a scathing investigative series on patient safety and billing problems at Parkland and UT Southwestern.

Dr. Bierner's patient, Jose Manuel Calleros-Avilla, who suffered from severe
cognitive impairment from brain damage, eloped from Parkland Hospital even
after alarms went off just days before Parkland's critical do-or-die series of final
safety inspections from the U.S. Centers for Medicare & Medicaid Services

The scathing investigative series was apparently spawned by confidential news tips about the impending federal Medicare fraud cases that were then being reviewed by the Justice Department under seal.

Soon thereafter, government regulatory troubles at Parkland began to flood into the hospital, culminating in the hospital failing a last-ditch do-or-die series of safety inspections in the summer of 2011.

During the around-the-clock two-week federal safety survey, health inspectors found close to 500 safety deficiencies at the hospital, which easily disqualified the hospital in any further participation in receiving federal funding.

To this day, Parkland remains the largest hospital in U.S. history to have ever failed CMS's final do-or-die (or make-or-break) series of patient safety inspections, taking the dubious title away from Martin Luther King, Jr./Charles R. Drew Medical Center (AKA King/Drew) in South Central Los Angeles, California.

No hospital has ever come close to accumulating anywhere near Parkland's record of 499 areas cited for patient safety deficiencies or been fined anywhere close to $1 million in fines from the Texas Department of State Health Services (DSHS), which were both dubious records to achieve for any hospital.

The old site of Parkland Memorial Hospital on Harry Hines Blvd.

Those infamous distinctions also placed Parkland among the very worst of the worst hospitals ever in terms of patient safety in the U.S., because only a handful of hospitals ever even get to the point of having to undergo a final make-or-break survey with CMS.

The devastating results of the final make-or-break survey by CMS in the summer of 2011 were not helped by the fact that, just days before CMS inspectors arrived on site in July of 2011, one of Dr. Bierner's confused traumatic brain injury patients in Parkland's 8-East ARF, Jose Manuel Calleros-Avila, walked out of his padded isolation room and straight out of the hospital, getting lost for nearly 15 hours before being found by Dallas Police, after his elopement alarms sounded off inside the ward and went unchecked by Parkland's staff.

When the alarms went off at 8:45 p.m. on June 29, 2011, the nurses simply turned the patient alarms off and didn't bother checking to see if any of the patients were missing inside the ward.

Calleros-Avila had undergone emergency brain surgery with a portion of his skull removed, after his girlfriend ran him over with her car on May 16, 2011. He most definitely had traumatic brain damage and was in no condition to be on his own recognizance.

Parkland Hospital before the move into its new facilities across the street in 2015

He was dazed and confused since the surgery and was not of sound mind while in rehab under Dr. Bierner's care and had to wear a protective helmet to safeguard the area of his brain where they had removed portions of his skull.

He was also placed on an elopement alarms in case he wondered off anywhere, out of sight from hospital staff, which he had done in the past and demonstrated he would do again; however, Parkland did nothing to prevent this embarrassing situation from happening.

The lost brain surgery patient was not found until 15 hours laters, several miles from the hospital, but by then it was too late. The embarrassing news of Parkland losing a brain surgery patient went viral in news outlets nationwide, and CMS had no choice but to begin their survey on a very ominous note by having to investigate the very safety issue of Mr. Calleros-Avila's elopement from the hospital as their first item of business on the long around-the-clock two-week survey.

The final inspections were, therefore, a foregone conclusion at that point, thanks to Parkland's rehab ward. When the dust of the survey settled, Parkland had badly failed its final safety inspections, and inspectors found nearly 500 more patient safety deficiencies at the hospital to easily fail them from receiving further federal funding.

Dr. Bierner was also accused by several patients of ripping them in Parkland's
PM&R clinic after they claimed they were denied the full series of medical 
visco-supplementation injections of Synvisc and Hyalgan for arthritis of the knees

Dr. Bierner's faux pas at Parkland, however, don't end quite there with losing patients just before a most crucial safety inspection at the hospital, which ultimately got Parkland kicked out of the Medicare program for a brief period of time.

We have submitted several Freedom of Information Requests (FOIA) with the federal government to try to learn the extent of Dr. Bierner's direct involvement in Parkland's Medicare fraud scandals.

According to federal documents, Dr. Bierner has also been accused by several patients of short-changing them in Parkland's PM&R outpatient clinic, using improper and insufficient dosages of knee visco-supplementation injections to treat arthritis, generically called hyaluronic acid and sold under the brand names Hyalgan and Synvisc.

At the time, Parkland's spartan formulary did not include a higher-priced, one-time dose hyaluronic acid knee injection, called Synvisc-ONE, which only requires a one-time injection to the knee lasting several months. Instead, they carried the older and cheaper formulary versions of the arthritis gel injections, Hyalgan and Synvisc, which required at least three injections to the knee over a period spread out over three weeks.

Dr. Bierner, however, ordered his residents to only give one injection per patient, splitting a traditional series of three injections to one patient over three patients rather than applying the series of injections to just one patient as instructed, which saved money, but also ripped-off patients as PM&R clinic patients were kept in the dark about receiving the proper efficacious dosage of the series of arthritis injections.

Dr. Samuel Bierner during his time at Parkland Memorial Hospital and
UT Southwestern Medical Center in Dallas, with his lazy deviant right eye,
preached to medical students rotating into his department that PM&R stood
for 'Pleasure, Money & Relaxation'

When patients found out about the scam, they complained to Parkland; however, there was such a backlog of patients in Parkland's PM&R clinic by that time that they couldn't get in to get any additional injections over the recommended period of time for the full series of injections to be completed.

The unusually large backlog of patients in rehab was flagged by Parkland's own independent safety monitors, Alvarez & Marsal (who were installed as a term of probation after Parkland failed CMS's final do-or-die inspections), as a serious safety deficiency, which the hospital had to correct as another part of their terms of probation from their first federal probation, the Systems Improvement Agreement under CMS.

Apparently, part of the problem with the backlog of patients in Dr. Bierner's outpatient clinic was that Dr. Bierner would arrive at least an hour or two late to each and every clinic on Monday afternoons when the clinic was scheduled.

This situation created a second Medicare billing problem where residents were again billing Medicare under Part B for doctor visits, when Dr. Bierner wasn't even physically present in the clinic, under his Medicare account number to the hospital as the attending physician of record.

But this kind of billing to Medicare and Medicaid for work done solely by residents in complete absence of the attending physician, Dr. Bierner, didn't just occur at Parkland's PM&R clinic. It also occurred in Parkland's electrodiagnostic (EDx) clinic with Dr. Bierner.

Most of the physician notes from Parkland's EDx clinic (like sample patient A.G. which we highlight as an example) typically had no attending notes from Dr. Bierner (or any other attending physician for that matter), but were billed to Medicare or Medicaid nonetheless.

Medicare fraud was also taking place in Parkland's various PM&R clinics

But when Dr. Bierner did write an attending note on a patient in the EDx clinic, we were told he typically showed up after the clinic closed and after all the patients had already left the clinic, giving him only an opportunity to simply review resident notes and diagnostic results of tests done on the patients. (These are seen in note reviews for sample patients A.L., J.S., and O.V. in Parkland's EDx Clinic.)

Bierner typically only wrote that he "reviewed" the resident's notes and findings, giving absolutely no indication that he ever even physically saw the patient. This kind of note review of a resident's work for the explicit purpose of billing Medicare and Medicaid is considered to be an egregious form of Medicare fraud.

The attending physician has to at least physically see the patient and verify the resident's work to bill Medicare for his/her supervisory work. This is again what is referred to as the "at elbow" rule spelled out in the U.S. General Accounting Office's (GAO) Physicians at Teaching Hospitals audit report (PATH) in 1998. Really, that simple step is not that hard to do for any teaching physician. Most of the time, we were told that Dr. Bierner was not even in the building at the time the EDx clinic was occurring.

Reviewing just a resident's notes, findings, and diagnostic results after a clinic has closed and the patients are no longer at the clinic is clearly Medicare fraud in the eyes of the law, and the residents should never be the ones filling out the billing forms under any circumstances; however, that's exactly what happened at Parkland.

In addition to these billing discrepancies, Dr. Bierner often bragged to UT Southwestern medical students rotating onto his service that PM&R was the only academic medical discipline where teaching physicians could work less than 5 days a week and always had the leisure to leave the office by 5 p.m. on a daily basis. In essence, he was just "phoning it in" when it came to his most important duties and responsibilities as a doctor.

If that kind of professional admission of laziness was not off-putting enough, there was also other very shady incidents where Dr. Bierner accepted cash gifts from drug companies and vendors of the university—in essence what are considered to be bribes—against their established conflict-of-interest policies and possibly state laws, to pay for some very questionable social activities that had no academic value whatsoever.

Since this article is long enough as it is, we will go over that story in our next installment of the series on Dr. Bierner in the near future.

References:

• Nebraska Medicine—Nebraska Medicine Collaborates with Madonna Rehabilitation Hospitals
• Law360—Texas court says UT Southwestern doctors can't be sued (2/22/17)
• CBS DFW—Family Blames Parkland Hospital For Mother's Death (10/14/16) with video
• Medicine of Omaha—As Madonna Rehab Hospitals holds grand opening of its new Omaha campus, controversy still swirls around new UNMC PM&R chairman's troubled past in Texas (10/1/16)
• Madonna Rehab—Madonna's Ohama campus to begin serving patients (9/15/16)
• Medicine of Omaha—Exclusive: UNMC's new chairman of PM&R has a dark, troubled history of Medicare fraud, patient endangerment, and medical board investigations (9/6/16)
• CBS DFW—Parkland’s Budget Crunch: The Pocketbook Cost Of Texas Politics (7/6/16) with video
• Medicine of Omaha—Samuel Bierner named to head new physical medicine & rehabilitation program at UNMC (2/27/16)
• KDFW Fox 4—New Parkland Hospital in Dallas opens (8/19/15) with video
• Dallas Morning News—Federal scrutiny to follow Parkland hospital to new location (8/17/15)
• Dallas Morning News—Remedying quality-of-care problems could cost Dallas' Parkland hospital $9 million (8/6/13)
• DMN Watchdog blog—Texas Medical Board now investigating UTSW physicians linked to U.S. Justice Department settlement with hospital (6/5/13)
• Dallas Morning News—Parkland Memorial Hospital's $1.4 million settlement of whistleblower lawsuit is final (5/31/13)
• DMN Watchdog blog—Parkland Memorial Hospital faces another form of federal oversight—and Dallas County judge calls it a 'serious matter' (5/23/13)
• DMN Watchdog Blog—Setting the record straight on Parkland's therapy case backlog (12/7/12)
• DMN Watchdog Blog—Federal safety report shows patient backlog still plaguing Parkland hospital rehab unit (12/5/12)
• DMN Watchdog Blog—Patient-case backlog continues to plague Parkland rehab unit; read full report the hospital is keeping from the public here (12/5/12)
• DMN Watchdog blog—UT Southwestern doctor is lead individual defendent in Medicare fraud lawsuit, despite her bosses' public denials (11/1/12)
• Dallas Morning News—Doctor in whistleblower lawsuit is stepping down from UTSW supervisory post (10/25/12)
• DMN Watchdog blog—UTSW official at center of fraud investigation stepping down (10/25/12)
• Dallas Morning News—Parkland hit with largest fine in Texas history for patient safety violations (8/31/12)
• KXAS NBC 5—Parkland outlines fixes for CMS violations (8/19/12) with videos
• Dallas Morning News—Parkland hits with new Medicare-Medicaid fraud allegations (5/9/12)
• DMN Watchdog Blog—Medicare fraud lawsuit targets Parkland hospital, UT Southwestern doctors (5/8/12)
• KVTV CBS 11— Parkland Hospital agrees to safety reform measures (9/28/11) with video
• Dallas Morning News—Parkland agrees to federal oversight to avert funding cutoff (9/28/11)
• Dallas Morning News—Rare agreement puts independent monitors inside Parkland (9/24/11)
• KXAS NBC 5—Parkland to negotiate to keep Medicare (9/9/11) with videos
• KVTV CBS 11—Parkland prevents loss of Medicare funding (9/9/11) with video 
• Dallas Morning News—Parkland faces funding cutoff, but government offers compromise (9/9/11)
• Dallas Observer—Doc's Whistleblowing Results in Parkland, UT Southwestern Paying $1.4 Million to Feds (9/1/11)
• Dallas Morning News—UTSW must pay $1.4 million in settlement with federal, state officials (9/1/11)
• NY Daily News—Brain surgery patient who disappeared from hospital found half a day later (6/30/11)
• KXAS NBC 5—Missing Parkland Patient Found, OK (6/30/11)
• Dallas Morning News—Brain surgery patient who walked out of hospital is found, Parkland says (6/30/11)
• Dallas Morning News—Parkland knee surgery done by doctor in training leads to amputation, questions (11/13/10)
• Dallas Morning News Video—A surgery gone wrong. A life changed forever (11/13/10)
• Dallas Morning News—Parkland kept information from its auditors, feared federal subpoena (8/29/10)
• Dallas Morning News—Feds probe alleged fraud at UT Southwestern, Parkland (5/30/10)
• U.S. Health & Human Services Office of the Inspector General—Quality of Care Corporate Integrity Agreements
• U.S. General Accounting Office—Medicare: Concerns with Physicians at Teaching Hospitals (PATH) Audits, GAO/HEHS-98-174 (July 1998)