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. 

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