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On August 26, 2024, the United States Attorney’s Office for the District of Montana filed a False Claims Act (FCA) complaint against a Montana oncologist, alleging that the oncologist’s busy schedule led to excessive claims that violated the FCA. The complaint is unusual in that its chief theory is the amount of time the oncologist spent with patients, relative to what the Justice Department claims is the standard practice of other oncologists. In that respect, the complaint is a warning sign to busy physicians across the country.

This blog post begins by explaining how this Montana oncologist found himself on the Justice Department’s radar—a self-disclosure by the health system that previously employed the oncologist—before discussing what the Justice Department is alleging against the oncologist, as well as what other physicians should learn from this lawsuit.

A Health System’s Self-Disclosure

In recent years, the Justice Department has gone to great lengths to encourage putative wrongdoers to come forward with reportable events. St. Peters Health, a Montana health system, responded to that encouragement by reporting what it believed to be upcoding caused by one of its former oncologists, Dr. Thomas Weiner.

St. Peters Health’s self-disclosure pointed the finger at Dr. Weiner, claiming that he caused St. Peters to submit upcoded evaluation and management codes. In addition, St. Peters self-disclosed Stark Law violations on the theory that Dr. Weiner’s excessive codes, combined with his relative value unit (RVU)-based compensation model, caused St. Peters to pay Dr. Weiner more than fair market value and an amount that was improperly tied to referrals.

In return for the self-disclosure, St. Peters Health gained a favorable settlement with the Justice Department, which was announced on August 27, 2024. St. Peters Health agreed to pay $10.8 million to the government for its self-disclosed conduct, but the multiplier (1.08x) was among the best for FCA settlements.

Typically, health systems value self-disclosures because it buys them closure—the ability to move on from a stressful compliance shortcoming and back to helping patients. But St. Peters Health instead will find itself exercising resources consistent with its cooperation provision of its settlement, because the day before the settlement, the Justice Department sued Dr. Weiner in federal court, alleging extensive violations of the FCA.

FCA Complaint for Excessive Patients

The Justice Department’s lead argument against Dr. Weiner is that he saw too many patients— more patients than oncologists ought to see, they say. The FCA complaint alleges that Dr. Weiner double- and triple-booked patients for 15-minute blocks of time, and that Dr. Weiner would see 50-70 patients each day.

According to the Justice Department, packing his calendar with office visits as he did meant that Dr. Weiner “on average only spent between four to seven minutes for each office visit.” A consequence of that math, the complaint says, is that “[t]his left very little time for Weiner to review patients’ medical history, diagnose illnesses and prepare treatment, and to create proper notations in the patients’ medical charts.”

This is a problem, according to the Justice Department, because “[m]ost medical oncologists see approximately 15 patients or less in a day.” By contrast, the complaint alleges that “Weiner spent most of his day talking to patients and left little time to create proper medical records, review those records, or stay up-to-date on proper oncology treatment.”

Then the government’s FCA complaint ascribes motive to Dr. Weiner’s actions: “Weiner wanted this schedule because it maximized his income. Weiner was paid a nominal annual salary by St. Peter’s Health; the majority of Weiner’s compensation came from a percentage of his relative value units (RVUs) billed by the hospital. That is, the more Weiner could direct St. Peter’s Health to bill, the more Weiner was paid.”

Like all FCA complaints, Dr. Weiner is at risk of owing the government three times the amount of false claims he caused, plus substantial penalties for each false claim he is found to have caused to be submitted.

What Can Healthcare Providers Learn from DOJ’s Case?

FCA theories premised on number of patients, relative to peers, is an aggressive theory. The Justice Department often finds targeted examples of claims that fall short of some subregulatory guidance for some reason, but it rarely paints with a broad brush in the way the complaint against Dr. Weiner does. After all, evaluation and management claims are not timecodes; they are complexity-based codes. And the Justice Department has seen recent pushback in using evaluation and management codes as a premise to federal action.

Nevertheless, the lesson of Dr. Weiner’s FCA lawsuit is that healthcare providers should be alert to the optics of treating a large volume of patients, particularly vis-à-vis other similarly situated practices. Jurors are likely to think that cancer patients should receive more than four to seven minutes worth of their oncologist’s time. And with the Justice Department receiving increasingly sophisticated analysis of Medicare data, outliers are operating with more enforcement risk than ever before. One key is that healthcare providers must ensure that they are charting encounters in a way that reflects complexity, because proof of complexity ought to trump encounter-time calculations when it comes to evaluation and management codes.

That said, Dr. Weiner’s FCA suit is not likely to signal the beginning of a trend of suing busy physicians. The Justice Department is indeed interested in overutilization in general, but few complaints are premised on calendars. If you or your organization are interested in how healthcare claims could lead to enforcement risk, contact your Husch Blackwell healthcare attorney today.

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Photo of Jonathan Porter Jonathan Porter

Jonathan uses his years of experience as a federal prosecutor to guide clients through the challenges associated with government investigations and regulatory compliance.

Jonathan brings to clients a thorough working knowledge of how the U.S. government targets and pursues criminal and civil investigations,

Jonathan uses his years of experience as a federal prosecutor to guide clients through the challenges associated with government investigations and regulatory compliance.

Jonathan brings to clients a thorough working knowledge of how the U.S. government targets and pursues criminal and civil investigations, particularly those involving the healthcare industry. He is a former Assistant U.S. Attorney for the Southern District of Georgia, and in that capacity, he brought charges against numerous individuals and companies under federal law, including criminal charges of health care fraud, wire fraud, and violation of the Anti-Kickback Statute, and civil complaints alleging violations of the False Claims Act.

At the Department of Justice, Jonathan was a key member of multiple international health care fraud takedowns, in which Jonathan charged dozens of doctors, nurses, and other licensed medical professionals, along with marketers and health care executives for alleged participation in healthcare fraud schemes involving billions of dollars in false billings. In total, these charges resulted in more than 30 guilty pleas plus a conviction in the nation’s first trial of a medical professional charged as part of Operation Brace Yourself, which Jonathan first-chaired. Jonathan also was active in dozens of civil investigations brought under the False Claims Act. Jonathan resolved tens of millions of dollars in civil settlements and judgments for False Claims Act violations.

Jonathan also advises clients on a range of regulatory issues, along with the development and implementation of corporate compliance programs. He uses his unique perspective as a former AUSA, providing a prosecutor’s eye for detail in helping clients understand how DOJ and other agencies view compliance, particularly in light of the changing standards for compliance as outlined in the DOJ’s Evaluation of Corporate Compliance Programs (ECCP) and implemented in the Department’s white-collar crime enforcement initiative.