The Solomon Story Continued: The OIG’s Decision to Flaunt its Authority Rather than Its Judgment

Yesterday marked yet another peculiar move by the OIG in the Solomon saga. Following on the heels of its decision to potentially exclude Howard Solomon from federal healthcare programs, the OIG released on its website the “OIG Fact Sheet on Forest Laboratories, Inc., and the Inspector General's Exclusion Authorities.” The fact sheet focused on its authority for excluding Forest’s CEO. Noticeably absent from the release, however, was an explanation as to why the OIG specifically chose to exclude Solomon and not other executives who have gone before him, especially those who may have been more personally engaged in egregious activities. The release provided two unsatisfying responses to my query. First, we have the authority to do so. Second, we released the “Guidance for Implementing Permissive Exclusion Authority Under Section 1128(b)(15) of the Social Security Act” in October stating we were going to exclude officers and managing employees based solely on their position within the company. The first response is perhaps a necessary retort to those who contest the OIG’s authority. While this truth may justify its actions, it does not explain the choice. Just because the OIG has the authority to exclude, it doesn’t mean it is an appropriate remedy to exercise it in all circumstances. The second response and the dearth of detail about Solomon’s personal knowledge and/or actions related to the misconduct demonstrate that Solomon was chosen because the OIG is going to implement its October guidance ruthlessly. Solomon was no worse than other executives, and in many respects probably better, but he is an executive of a company criminally indicted after the October guidance was issued. Using the Solomon case, the OIG is making its position known. An executive may be excluded from federal healthcare programs, regardless of their exact knowledge and intent if they are in control when a company commits criminal misconduct and the factors in the October OIG Guidance lean in favor of exclusion. It does not matter that the personal exclusion was never discussed during the lengthy investigation of the company. It does not matter that the OIG has entered into a settlement agreement with the company and the company has not been excluded from federal programs. This stance, however, begs the following question, particularly in the Forest situation: Why would you exclude an executive, who was never found guilty of criminal misconduct, from federal healthcare programs for crimes committed by a company, when the company itself can continue to do business with federal healthcare programs?