Department of Health and Human Services DEPARTMENTAL APPEALS BOARD Civil Remedies Division |
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IN THE CASE OF | |
Ioan Cheregi, M.D., |
DATE: March 8, 2002 |
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The
Inspector General
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Docket No.C-01-505 Decision No. CR877 |
DECISION | |
DECISION I decide that the Inspector General (I.G.) is authorized,
pursuant to section 1128(b)(5) of the Social Security Act (Act), to exclude
Petitioner, Ioan Cherigi, M.D., from participating in Medicare and other
federally funded health care programs. The I.G. is authorized to exclude
Petitioner because Petitioner was terminated from participating in the
Illinois Medical Assistance Program (Illinois Medicaid) for reasons bearing
on his professional competence or professional performance. I also find
the length of Petitioner's exclusion - until he is reinstated to participate
in Illinois Medicaid - to be reasonable. I. Background and undisputed facts
On February 28, 2001, the I.G. notified Petitioner that
he was being excluded from participating in Medicare and other federally
funded health care programs. The I.G. informed Petitioner that she was
excluding him pursuant to section 1128(b)(5) of the Act based on Petitioner's
termination from participation in Illinois Medicaid. The I.G. advised
Petitioner that he would be excluded until he is reinstated to participate
in Illinois Medicaid. Petitioner requested a hearing and the case was assigned to me for a hearing and a decision. Neither party advised me that there was a need to present testimony in person. I established a schedule for the parties to submit briefs and exhibits. The I.G.'s submission included four proposed exhibits (I.G. Ex. 1 - I.G. Ex. 4). Petitioner's submission also included four proposed exhibits (P. Ex. 1 - P. Ex. 4). Neither party has filed objections to my admitting any of the proposed exhibits into evidence. Therefore, I receive into evidence I.G. Ex. 1 - I.G. Ex. 4 and P. Ex. 1 - P. Ex. 4.
The following facts are not disputed. Petitioner is a
physician who practices medicine in Illinois. On July 27, 1998, the Illinois
Department of Public Aid (Department of Public Aid) issued a statement
of allegations against Petitioner. It charged that Petitioner failed to
treat several of his patients appropriately. I.G. Ex. 2. It asserted that
Petitioner's alleged failures to treat his patients appropriately resulted
in the provision of medical goods or services to patients that were in
excess of their needs, were potentially harmful to them, and were of grossly
inferior quality. Id. at 2, 3, 4, 5, 6, 8, 9, 10, 11. Based on
these allegations the Department of Public Aid sought to terminate Petitioner's
participation in Illinois Medicaid. Id. at 12. Petitioner was given a hearing concerning these charges
before an Illinois State administrative law judge. The State administrative
law judge issued a report in which she recommended that Petitioner's participation
in Illinois Medicaid be terminated. I.G. Ex. 3. The report makes numerous
findings that Petitioner provided care to his patients that was potentially
harmful, of grossly inferior quality, and in excess of patients' needs.
Id. On July 14, 2000, the Director of the Department of Public
Aid (Director) notified Petitioner that she had reviewed the report of
the State administrative law judge along with exceptions to that report
submitted by Petitioner's attorney. I.G. Ex. 4. She advised Petitioner
that it was her conclusion that the recommendation to terminate his participation
in Illinois Medicaid was warranted. Id. The Director advised Petitioner
that she had adopted the State administrative law judge's recommended
decision as her final decision, meaning that Petitioner's eligibility
to participate in Illinois Medicaid was terminated. Id. She advised
Petitioner that her decision was the final and binding decision of the
Department of Public Aid. Id. Petitioner appealed this decision to Illinois State Court.
On March 2, 2001, the Circuit Court of Cook County, Illinois, Chancery
Division, decided Petitioner's appeal. The court affirmed in part and
reversed in part the Director's decision. P. Ex. 1. The court found that
there was sufficient evidence in the record of Petitioner's administrative
hearing to find that Petitioner's conduct resulted in the provision of
medical goods or services which were in excess of patients' needs or potentially
harmful to patients. Id. at 6. However, the court found also that
the Director's determination that Petitioner's conduct resulted in the
provision of medical goods or services which were of grossly inferior
quality was against the manifest weight of the evidence. Id. The
court concluded that, based on its review of the record that was generated
before the State administrative law judge, the sanction of termination
of Petitioner's participation in Illinois Medicaid did not appear to be
unreasonable. Id. at 8 - 9. Petitioner then appealed the Circuit Court's decision
to the First District Appellate Court of Illinois. P. Ex. 2. A cross-appeal
was filed by the Department of Public Aid. P. Ex. 3. These appeals are
pending. II. Issues, findings of fact and conclusions of law
The issues in this case are whether:
I make findings of fact and conclusions of law (Findings) to support my decision in this case. I set forth each Finding below as a separate heading. I discuss each Finding in detail.
Section 1128(b)(5)(B) of the Act provides, among other
things, that the Secretary of the United States Department of Health and
Human Services (or his delegate, the I.G.) may exclude any individual
who has been sanctioned under a State health care program:
This statutory basis for excluding Petitioner exists in
this case. Petitioner was sanctioned by a State health care program for
reasons bearing on his professional competence and professional performance. I take notice that Illinois Medicaid is a State health
care program. The termination of Petitioner's participation in Illinois
Medicaid is a "sanction" against Petitioner within the meaning of the
Act. The State administrative law judge findings that are the basis for
termination of Petitioner's participation in Illinois Medicaid and which
were sustained on appeal to the Circuit Court of Cook County, Illinois,
bear directly on Petitioner's professional competence and performance
as a physician. Petitioner was found to have provided goods and services
to patients that were in excess of those patients' needs or which were
potentially harmful to patients. Petitioner argues that it is premature to exclude him
because all of his appeals have not been exhausted. However, there is
no language, either in the Act or in implementing regulations at 42 C.F.R.
Part 1001, which requires the I.G. to defer imposing an exclusion pursuant
to section 1128(b)(5) until the excluded individual exhausts his or her
appeals of a State sanction determination. The I.G. is authorized to act
upon the imposition of a State sanction. I conclude, therefore, that the
I.G. is under no constraint here to defer imposing an exclusion against
Petitioner until Petitioner exhausts his appeals. Of course, if Petitioner
ultimately is successful in appealing the sanction that was imposed against
him, then the basis for his exclusion would disappear, and the exclusion
would be rescinded. Petitioner argues also that the I.G. abused her discretion
in determining to impose an exclusion against Petitioner before Petitioner
exhausted his appeals of the State sanction determination. As I have just
discussed, there is no provision of the Act or of implementing regulations
which requires the I.G. to wait until an excluded individual exhausts
his or her appeals before imposing an exclusion based on a State sanction
determination. In any event, pursuant to 42 C.F.R. � 1005.4(c)(2), I have
no authority to decide whether the I.G. abused her discretion in determining
to impose an exclusion under any of the sub-parts of section 1128(b) of
the Act, including section 1128(b)(5). Finally, Petitioner asserts that the I.G.'s exclusion
determination deprives him of his rights under the United States Constitution
because he has been stigmatized by the exclusion determination before
he has exhausted all of his appeals. I have no authority to address this
argument. As I discuss above, the I.G.'s exclusion determination in this
case is consistent with the authority conferred on the I.G. by section
1128(b)(5) of the Act and implementing regulations. Therefore, in order
to find that the I.G.'s actions taken pursuant to the authority conferred
by the Act and regulations are unconstitutional, I would necessarily have
to find that the authorizing section of the Act and implementing regulations
are unconstitutional and invalid. I am expressly prohibited from doing
so. 42 C.F.R. � 1005.4(c)(1). I note that the exclusion determination in this case merely reflects the action taken against Petitioner by a State agency. It is not, as Petitioner argues, an action taken prematurely against Petitioner by the I.G. The termination of Petitioner's participation in Illinois Medicaid was not held in abeyance, nor was it stayed, pending the disposition of his appeal of that action. Petitioner presently is terminated from participating in Illinois Medicaid. The I.G.'s determination to exclude Petitioner thus reflects Petitioner's present status. And I note that, in this case, the I.G.'s exclusion determination is coterminous with the State termination of Petitioner's participation in Illinois Medicaid. If Petitioner is reinstated to that program he is eligible for reinstatement to other federally funded health care programs.
The I.G. determined to exclude Petitioner until he is reinstated to participate in Illinois Medicaid. This exclusion is the minimum exclusion that the I.G. may impose pursuant to section 1128(b)(5) of the Act. 42 C.F.R. � 1001.601(b)(1). And, therefore, it is reasonable as a matter of law. |
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JUDGE | |
Steven T. Kessel Administrative Law Judge
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