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West Virginia Hospital Enters into a $50 Million Settlement to Resolve Allegations over Excessive Compensation Paid to Referring Physicians

On September 9, 2020, the Department of Justice (DOJ) announced a $50 million settlement with Wheeling Hospital, Inc. of West Virginia to resolve False Claims Act allegations that Wheeling Hospital violated the Anti-Kickback Statute (AKS) and Stark Law.  Broadly speaking, the AKS and Stark Law require that physicians’ compensation be based on fair market value and not determined in a manner that takes into account the volume or value of their referrals.

The settlement resolved False Claims Act allegations that were triggered by a qui tam lawsuit brought by a former vice president of Wheeling Hospital who oversaw hospital operations and physician engagements.  According to the relator's complaint, Wheeling Hospital, under its former management, paid several physicians annual compensation in excess of a million dollars based on the volume or value of their referrals.  Wheeling Hospital allegedly paid salaries to obstetricians and gynecologists, radiation oncologists, cardiologists, and pain management physicians that were twice the median salary and substantially more than the 90th percentile according to MGMA surveys. 

The complaint repeatedly references an internal memo that reported that Wheeling Hospital’s physician practices were operating at a loss due to physicians’ excessive salaries, but that the hospital should keep the physicians’ salaries in place so as not to endanger downstream revenue (i.e., referrals) generated by the physicians.  

Interestedly, in March 2019, Wheeling filed a countersuit against the relator, alleging breach of fiduciary duty and process.  According the hospital's complaint, the relator served as a fiduciary of the hospital, but never raised any concerns about potential Stark Law and AKS violations until after his position was terminated.  Wheeling Hospital dropped its countersuit in June 2019.

The DOJ did not require Wheeling Hospital, which is now under new management, to enter into a Corporate Integrity Agreement.  The relator will receive $10 million as his statutory share of the settlement proceeds.

This case illustrates DOJ’s continued vigorous enforcement under the False Claims Act of alleged violations of the AKS and Stark Law against acute care hospitals.  It is also a reminder of the risk created by even a small number of allegedly improper compensation relationships with physicians, especially when DOJ proceeds under the strict liability Stark Law.

©1994-2020 Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. All Rights Reserved.National Law Review, Volume X, Number 260

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About this Author

Laurence J. Freedman, Litigation Attorney, Mintz, Enforcement Defense Law
Member

Larry has a deep understanding of what drives government enforcement actions, and how to defend against them, in the health care and life sciences industries. As a trial lawyer and then official in the Civil Fraud Section of the U.S. Department of Justice, he litigated and supervised hundreds of False Claims Act and qui tam cases nationally. In his litigation practice, Larry has successfully represented hospitals and health care systems, laboratories, pharmaceutical and device manufacturers, and health care executives against fraud and abuse allegations and investigations brought by...

202-434-7372
Rachel Yount Healthcare Attorney Mintz Levin
Associate

Rachel focuses her practice on health care industry transactions.  

Prior to joining Mintz, Rachel was a health care associate in the Washington, DC office of an Am Law 200 law firm, where she represented long-term care clients in complex multistate transactions; helped health systems structure financial arrangements with referral sources; advised pharmaceutical manufacturers and pharmacy benefit managers on state laws affecting drug pricing transparency; and counseled clients on compliance with the Anti-Kickback Statute, Stark Law, False Claims Act, Medicare billing and reimbursement regulations, beneficiary inducement prohibitions, civil monetary penalties, and the Health Insurance Portability and Accountability Act (HIPAA). Rachel also represented providers under investigation by the Department of Justice (DOJ), assisted providers with designing and implementing effective compliance programs, and provided representation in significant reimbursement and coverage disputes.
 
Earlier Rachel was a compliance attorney with Sentara Healthcare, a health care system with 12 acute care hospitals and more than 300 sites of care in Virginia and North Carolina. Focusing on the physician contracting process, Rachel developed strategic solutions to operational problems and provided legal support for compliance issues across the system.

Rachel also worked as a legal fellow at Bon Secours Richmond Health System, where she focused on risk management and regulatory compliance. 

An active member of the American Bar Association’s Health Law Section, Rachel assisted in drafting several revisions to the group’s reference guide, Health Care Fraud and Abuse: Practical Perspectives, and organized and moderated a panel of senior government attorneys for an ABA networking event. She is frequently invited to speak on health care compliance and other health law matters.  

202.434.7427