I. Excluded Podiatrist Commits Health Care Fraud
A Michigan podiatrist who was excluded from participation in the Federal health care programs for a period of 25 years allegedly entered into a health care fraud scheme with another Michigan doctor to perform podiatric services at his clinic. The excluded podiatrist, whose license was also revoked, practiced podiatry at the clinic and occasionally presented himself to patients as the non-excluded doctor. The physicians billed the government and private insurance for the services as if the non-excluded doctor performed the podiatric services.
The Michigan Attorney General filed multiple charges against the excluded provider. These charges included: one count of Racketeering, a 20-year felony carrying up to a $100,000 fine; one count of Unauthorized Practice of a Health Profession, a 4-year felony with up to a $5,000 fine; thirteen counts of Health Care Fraud, a 4-year felony carrying up to a $50,000 fine; and five counts of Medicaid Fraud, a 4-year felony with up to a $50,000 fine. Charges were also filed against the non-excluded provider, which included: one count of Racketeering; thirteen counts of Health Care Fraud; and five counts of Medicaid Fraud. The charges against the non-excluded provider carried the same felony consequences and fines.
The facts released by the Michigan Attorney General do not indicate whether the non-excluded provider “knew” that the podiatrist’s license had been revoked or that he was excluded from participation in the Federal health care programs. Whether he had affirmative knowledge, however, is irrelevant under the “knew or should have known” standard.
II. Non-Excluded Provider “Should Have Known” of Partner’s Exclusion
The non-excluded provider, under the 2013 OIG Exclusion Guidance, should have checked the OIG-LEIE prior to entering into the arrangement with the excluded provider and monthly thereafter. In addition, the Michigan Medicaid Provider Manual recommends that providers check the Michigan excluded provider list in addition to the websites of other sanctioning bodies “to avoid accepting orders, prescriptions or referrals . . . from these sanctioned providers.” Furthermore, private insurance companies, like BlueCross Complete of Michigan, mandate that their providers screen against the LEIE and GSA-SAM prior to hiring and continue to screen at least monthly.
With regard to the OIG and Michigan state requirements, any attempt by the non-excluded provider to invoke a defense that he was unaware of the podiatrist’s excluded status will likely fail. The provider had an obligation to check the LEIE, GSA-SAM, and Michigan excluded provider list, among others. Therefore, the non-excluded provider should have known of the podiatrist’s exclusion status, even if he did not in fact know.
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Ashley Hudson, Associate Attorney at Liles Parker, LLP and former Chief Operating Officer for Exclusion Screening, LLC, is the author of this article. Exclusion Screening, LLC reviews Federal and State exclusion screening requirements regularly to help ensure that its clients’ employees and contractors are properly screened. Contact Exclusion Screening, LLC for a free consultation at 1-800-294-0952 or online.
 Medicaid Provider Manual, Michigan Dep’t of Comm. Health, 15 (Oct. 1, 2014).
 BlueCross Complete Provider Manual, BlueCross Complete of Michigan, 37 (2014).