Being Excluded from Participating Medicare and Medicaid is a Reality

November 24, 2016
Rachel V. Rose, JD, MBA
Rachel V. Rose, JD, MBA

Rachel V. Rose, JD, MBA, advises clients on compliance and transactions in healthcare, cybersecurity, corporate and securities law, while representing plaintiffs in False Claims Act and Dodd-Frank whistleblower cases. She also teaches bioethics at Baylor College of Medicine in Houston. Rachel can be reached through her website, www.rvrose.com.

A New Jersey physician's actions of submitting thousands of false claims to Medicare and Medicaid cost him more than a fine.

In November, Labib Biachi, a New Jersey-baed OB-GYN agreed to pay a $5.25 million fine and will be excluded for the next twenty years from participating in both the Medicare and Medicaid programs for submitting false claims. The allegations against the physician stemmed from pelvic floor therapy claims that were never provided or were fraudulent on the basis of being performed by unqualified staff or not meeting the medical necessity requirement. Additionally, any of these allegations could form the basis of a False Claims Act cause of action.

According to Gregory E. Demske, chief counsel to the HHS inspector general, "Twenty years is a substantial period of exclusion and is a clear signal to physicians that they face significant consequences, beyond monetary penalties, for taking advantage of federal health care programs and their beneficiaries." Hence, underscoring that these types of penalties are meant to have a deterrent effect on other physicians, so that they won't engage in similar behavior.

Excluding entities from participating in Medicare and Medicaid is not new. In February 2015, the Office of the Inspector General for the Department of Health and Human Services (OIG) issued an advisory opinion on the matter in relation to a particular practice, which had entered a criminal plea and civil False Claims Act settlement. In Advisory Opinion No. 15-02, which was specifically requested by the practice that had been previously precluded from participating in Medicare and Medicaid for 20 years. The Practice asked the OIG to opine if the effect of the exclusion from all federal healthcare programs and payment for services by a third party to them prior to the effective date of the exclusion " violat[ed] the terms of the arrangement and constitute grounds for the imposition of sanctions under the civil monetary penalty provision at section 1128(a)(1)(D) of the Social Security Act." 

The OIG concluded that under these particular facts, the advisory opinion, which only applies to the person requesting it, "the Proposed Arrangement would not constitute grounds for the imposition of administrative sanctions against you under the [Civil Monetary Penalty] CMP."

In sum, the takeaway for physicians is that there is much more at stake than a fine. Jail time, preclusion from participating in federal healthcare programs and, even, losing one's medical license, are all realities that physicians need to consider.