The revocation of Medicare billing privileges can significantly affect providers and often results in a snowball effect, where the revoked provider is scrutinized by private employers and privilege-granting institutions. Revoked providers can lose facility privileges, employment, and have their participation agreements terminated by commercial payors.
In healthcare administrative law, revocation is like a jury rendering a “nuclear verdict” or a verdict viewed by some as disproportionate and excessively high. While nuclear verdicts receive much press, Medicare revocations (and suspensions and exclusions) are rarely discussed, although Medicare can revoke the billing privileges of a provider for over twenty enumerated reasons. 42 C.F.R. § 424.535. Some reasons are serious, such as felony convictions and patient harm. Other reasons may appear administrative and minor, such as not updating addresses or not responding to medical record requests. (Note: providers often do not respond to medical record requests because their addresses are outdated, and they do not receive the requests.)
Medicare revocation can create a dire situation for providers, professionally and financially. To make matters worse, revocation often includes a re-enrollment bar. In other words, a provider is prohibited from reenrolling in Medicare for a set number of years (usually 1 to 10 years per violation). Some providers commit serious crimes attempting to skirt the revocation restrictions. According to the U.S. Department of Justice, Dr. Kenneth Mitchell is one such provider.
On September 16, 2022, the DOJ announced the conviction of Dr. Mitchell for his role in a $1.8 million scheme to defraud Medicare. According to the DOJ (citing court documents and evidence), Medicare revoked Dr. Mitchell in 2015. Dr. Mitchell then convinced his then-partner to enroll in Medicare and open a new clinic. Dr. Mitchell worked at the clinic and continued to bill Medicare for services he rendered, but he billed for those services exclusively under the name of his partner. Once law enforcement began investigating, Dr. Mitchell submitted false statements to Medicare under his partner’s name to undermine the investigation.
According to the DOJ, Dr. Mitchell was convicted of one count of conspiracy to commit health care fraud and wire fraud (up to 20 years in prison), three counts of health care fraud (up to 10 years in prison), one count of falsification of records in a federal investigation (up to 20 years in prison), and one count of identity theft (up to two years in prison, to be served consecutive to any other sentence). The DOJ’s press release does not discuss whether Dr. Mitchell’s partner was involved in the scheme or knew that Dr. Mitchell was submitting claims using his/her credentials.
Dr. Mitchell is scheduled to be sentenced on January 26, 2023. The federal district judge will determine Dr. Mitchell’s sentence after considering the federal sentencing guidelines and other factors.
The attorneys at Chilivis Grubman represent clients of all types and sizes in connection with white-collar criminal investigations and health care fraud investigations. If you need assistance with such a matter, please contact us today.