A potential problem area has been identified regarding the practice of plea bargaining as it relates to administrative sanctions available to the Health Care Financing Administration, United States Department of Health and Human Services (HHS), in Medicare-Medicaid fraud cases.

Specifically, provision 229 of Pub. L. No. 92-603, enacted on October 30, 1972, amended Sections 1862 and 1866(b) of the Social Security Act to enable the Secretary of HHS to deny payment under Title XVIII of the act upon determining that a provider or person has committed fraud or abuse against the Medicare program. Subsequent to such determinations, Section 1903(i)(2) of the act also prohibits Federal financial participation (FFP) for payments to these providers or persons in the Medicaid program. In addition, the legislation (Pub. L. No. 95-142, Medicare-Medicaid Anti-Fraud and Abuse Amendments) enacted on October 25, 1977, contains a provision (Section 7) that requires the Secretary of HHS to suspend program participation for a physician or individual practitioner convicted of a criminal offense involving the Medicare or Medicaid programs. Suspension from program participation is immediate and applicable to both programs. The Section 7 provision is incorporated in the Code of Federal Regulations at 42 C.F.R. § 405.315-2 for Title XVIII and at 42 C.F.R. § 450.85 for Title XIX.

Since the administrative sanction would generally be effectuated after any criminal proceedings, plea bargains that include commitments to forego or restrict administrative remedies, which the HHS may elect to pursue under the aforementioned provisions, should be rare and made only after obtaining prior explicit approval from the Criminal Division.

See JM 9-16.000 et seq. and 9-27.000 et seq. for additional guidance regarding plea agreements.

[updated January 2020] [cited in JM 9-16.040]