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From Health Law Daily, November 20, 2018

10-year exclusion proper for physician who defrauded Medicaid

By Sheila Lynch-Afryl, J.D., M.A.

A 10-year exclusion imposed against a doctor who was convicted of Medicaid fraud and theft was reasonable. The Inspector General properly concluded that the doctor posed a threat to program integrity because he conspired with others to defraud Medicaid and other insurers for more than two years, costing the programs substantial amounts of money, and no mitigating factors applied (Byadgi v. Inspector General, Docket No. C-17-1133, Decision No. CR5039, March 14, 2018).

The physician, who worked in a walk-in clinic in Pennsylvania, allowed medical assistants and office personnel who lacked proper training and credentials to provide services. He and his colleague then billed insurers, claiming they had provided the services. The physician was convicted of Medicaid fraud, theft by deception, and insurance fraud. Because his conviction of a criminal offense related to the delivery of an item or service under Medicare or a state health program, the Inspector General excluded him, pursuant to Soc. Sec. Act §1128(a)(1), from participating in the federal health care programs for 10 years.

The doctor conceded that the minimum period of exclusion was five years (see Soc. Sec. Act §1128(c)(3)(B); 42 C.F.R. §1001.102(a)) but argued that a 10-year exclusion was unreasonable. The Inspector General properly cited the following aggravating factors from 42 C.F.R. §1001.102(b) in imposing a 10-year exclusion:

  • Program financial loss: The physician was ordered to pay the Medicaid program and private insurers almost $100,000 in restitution.
  • Duration of crime: His criminal acts were committed over a period of more than two years.
  • Incarceration: He was sentenced to 9 to 23 months’ imprisonment.
  • Other adverse actions: The physician’s medical license was indefinitely suspended in Pennsylvania and he was excluded from participating in the New York Medicaid program.

The physician argued that he served his time, paid restitution, and complied with the court’s orders. The regulations, however, do not cite these as mitigating factors.

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