Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Appellate Division
In the Case of:
Olufemi Okonuren, M.D.,
Petitioner,
- v. -
The Inspector General.
DATE: March 31, 1992
Docket No. C-340
Decision No. 1319
FINAL DECISION ON REVIEW OF ADMINISTRATIVE LAW
JUDGE
DECISION
Olufemi Okonuren, M.D. (Petitioner) requested review of an August
23,
1991 decision of Administrative Law Judge (ALJ) Steven T.
Kessel
upholding the determination of the Inspector General (I.G.) to
exclude
Petitioner from participation in the Medicare and state health
care
programs until his reinstatement by the Mississippi Medicaid
program.
Olufemi Okonuren, M.D., DAB CR150 (1991) (ALJ Decision).
Petitioner's exclusion was based on section 1128(b)(5)(B) of the
Social
Security Act (Act), 42 U.S.C. . 1320a-7(b)(5)(B), which permits
the
exclusion of:
Any individual or entity which has been suspended or
excluded from
participation, or otherwise
sanctioned, under--
* * *
(B) a State health care program, for reasons bearing
on
the individual's or entity's professional
competence, professional
performance, or financial integrity.
On appeal, Petitioner argued that the ALJ erred in concluding
that
Petitioner was suspended for reasons bearing on
professional
performance; that the ALJ incorrectly considered evidence of a
1982
investigation; that there was no evidence to support the ALJ's
finding
that Petitioner committed improper acts over a lengthy period of
time;
that the ALJ's conclusion that Petitioner was untrustworthy was
not
supported by the evidence; and that the period of exclusion
was
excessive.
For the reasons discussed below, we uphold the ALJ Decision. In
doing
so, we affirm each of the ALJ's findings of fact and conclusions of
law.
Background
On November 30, 1990, the I.G. notified Petitioner that he was
being
excluded from participation in the Medicare and state health
care
programs 1/ as a result of his exclusion or suspension by the State
of
Mississippi Division of Medicaid (Mississippi Medicaid).
Petitioner
timely requested a hearing before the ALJ, which was held June 4,
1991.
In his decision, the ALJ made the following findings of fact
and
conclusions of law (FFCLs):
1. Petitioner is a physician who practiced medicine as a
general
practitioner in Mississippi from 1977 until December 1990.
2. Petitioner was a Medicaid provider in Mississippi from 1978
until
May 1, 1990.
3. In a letter to Petitioner of April 10, 1990, Mississippi
Medicaid
suspended Petitioner as a Medicaid provider for three years,
effective
May 1, 1990.
4. Mississippi Medicaid suspended Petitioner pursuant to
a
recommendation from the Mississippi Foundation for Medical Care,
Inc.
(MFMC) that Petitioner be suspended for three years and be required
to
make monetary restitution for unnecessary lab tests he performed.
5. MFMC is the Peer Review Organization (PRO) for the State
of
Mississippi. MFMC has a contract with the State of Mississippi
to
review services rendered by Medicaid providers in Mississippi, and
to
make recommendations concerning provider sanctions.
6. A MFMC review of Petitioner had found that Petitioner had:
1)
poorly documented his reasons for ordering laboratory work; 2)
ordered
unnecessary laboratory work; 3) performed inadequate and very
poor
quality EKG's [electrocardiograms]; 4) performed incomplete urine
tests;
5) maintained inadequate records from which to ascertain his
treatment
of his patients; and 6) demonstrated a risk to patients by
giving
"inappropriate diagnosis" of patients' illnesses, thereby placing
his
patients at risk.
7. Mississippi Medicaid is a State health care program within
the
meaning of sections 1128(h) and 1128(b)(5)(B) of the Act.
8. Petitioner was suspended from participation in a State health
care
program for reasons bearing on his professional performance.
9. Pursuant to section 1128(b)(5)(B) of the Act, the Secretary of
the
Department of Health and Human Services (Secretary) has authority
to
impose and direct an exclusion against Petitioner from participating
in
Medicare and Medicaid.
10. The Secretary delegated to the I.G. the duty to impose and
direct
exclusions pursuant to section 1128 of the Act. 48 Fed. Reg.
21662 (May
13, 1983).
11. On November 30, 1990, the I.G. excluded Petitioner
from
participation in the Medicare and Medicaid programs.
12. A remedial objective of section 1128(b)(5)(B) is to
protect
beneficiaries and program funds by excluding individuals or entities
who
have been found unfit to participate in a federally-funded State
health
care program. S. Rep. No. 109, 100th Cong. 1st Sess., reprinted
in 1987
U. S. Code Cong. & Admin. News 682, 689.
13. On October 8, 1982, Petitioner was informed that
Mississippi
Medicaid had investigated and found that: 1) Petitioner had
charged
Medicaid for services which did not have the results documented in
the
medical records; and 2) Petitioner charged Medicaid for
services
recipients denied receiving.
14. In settlement of the above-mentioned investigation,
Petitioner
agreed to: 1) make restitution to Mississippi Medicaid for
monies
received; 2) one year's probation; 3) maintenance of medical records
on
all Medicaid eligible patients; and 4) make the medical
records
available to Mississippi Medicaid representatives.
15. On November 20, 1986, Petitioner was informed by
Mississippi
Medicaid that a review of the medical necessity of services
rendered and
procedures performed by Mississippi Medicaid providers had found
that
Petitioner's pattern of practice with regard to laboratory
procedures
fell significantly outside of his peer group.
16. In 1986, Mississippi Medicaid medical consultants, using a
random
sample from Petitioner's paid claims, had reviewed
Petitioner's
laboratory procedures in conjunction with each patient's
diagnosis.
Their review indicated that, in many instances, the necessity of
the
specific laboratory procedures was questionable for the
specific
diagnosis.
17. Following this review, Mississippi Medicaid informed
Petitioner
that:
To reiterate our
policy, it is not the intention of
the
Medicaid Program
to pay for services performed on a routine
basis, but rather, to pay for
those procedures which are specifically,
medically indicated.
18. There is a pattern, established by specific treatment records
in
evidence, of Petitioner routinely ordering certain tests of
some
patients, specifically hemoglobins, hematocrits, urinalyses, and
blood
sugars, virtually every time those patients visited him.
19. There is nothing in the patient records that are in evidence
in
this case to show that Petitioner actually evaluated the tests that
he
ordered or that he systematically recorded the results of these tests
in
any way meaningful to the treatment of those patients.
20. There is no documented medical necessity for most of the
laboratory
tests ordered by Petitioner in these treatment records.
21. By claiming Medicaid reimbursement for those tests,
Petitioner
sought reimbursement for unauthorized and unnecessary items or
services.
22. Petitioner knew or should have known that the Mississippi
Medicaid
program did not authorize reimbursement for the tests ordered
by
Petitioner.
23. Petitioner should have known that the tests systematically
ordered
by him were not medically justified.
24. Petitioner's explanation for ordering the tests in question --
that
they were a form of preventive medicine for his impoverished
black
patients -- is not credible.
25. Over a lengthy period of time, Petitioner has
systematically
ordered unnecessary laboratory tests of Mississippi Medicaid
recipients
and persisted in claiming reimbursement for those tests in
violation of
Mississippi Medicaid payment criteria.
26. Petitioner's persistent ordering of unnecessary laboratory tests
of
Mississippi Medicaid recipients and his presentation of
reimbursement
claims for such unnecessary tests constitutes a deliberate
attempt by
Petitioner to obtain program funds to which he was not
entitled. Such
efforts, to the extent they may have succeeded, were a
waste of scarce
program funds.
27. Petitioner's assertion that his systematic ordering of
laboratory
tests of Mississippi Medicaid recipients and claiming
reimbursement from
Mississippi Medicaid for such tests was a legitimate
practice of
preventive medicine is not a defense to his acts, because
Petitioner
knew or should have known that Mississippi Medicaid had determined
that
such tests were not reimbursable.
28. Petitioner's pattern of ordering tests which were not
medically
justified and claiming reimbursement from Mississippi Medicaid for
those
tests when he knew or should have known that they were not
reimbursable
items or services establishes that Petitioner is not a
trustworthy
provider of care.
29. Petitioner's lack of trustworthiness is further established by
his
refusal to admit that his conduct was improper.
30. Given Petitioner's lack of trustworthiness, a substantial
exclusion
from participating in Medicare and Medicaid is reasonable.
31. An exclusion of Petitioner from Medicare and Medicaid until May
1,
1993 is neither extreme or excessive.
ALJ Decision at 2-6 (citations omitted).
Standard of Board review
The standard which the Board employs in reviewing a disputed issue of
fact
is whether the ALJ decision is supported by substantial evidence in
the
record. The standard of review regarding a disputed issue of law
is
whether the ALJ decision is erroneous. Carlos E. Zamora, M.D., DAB
1104
(1989); Lakshmi N. Murty Achalla, M.D., DAB 1231 (1991).
Analysis
We first address whether the I.G. was authorized to exclude
Petitioner
under section 1128(b)(5)(B) of the Act, and whether
Petitioner's
suspension from Mississippi Medicaid was for reasons bearing on
his
professional performance. Next, we address whether the period
of
exclusion imposed on Petitioner was excessive.
1. I.G.'s authority to exclude Petitioner
While not challenging specific FFCLs, Petitioner offered several
arguments
relating to the ALJ's finding that he was suspended from the
Mississippi
Medicaid program for reasons bearing on professional
performance.
Petitioner asserted that Mississippi Medicaid did not
suspend him for reasons
based on his professional performance, or find
that his appeal of the
suspension lacked merit. Rather, he maintained,
the appeal of his
suspension was rejected on the grounds that it was not
procedurally proper.
2/ Petitioner argued that the ALJ violated
Petitioner's due process rights by
not examining the fairness of the
State suspension.
The ALJ did not err in concluding that Petitioner could not
collaterally
attack the process whereby he was suspended from Mississippi
Medicaid.
The fairness of the State suspension is irrelevant in
determining
whether section 1128(b)(5)(B) applies. Under the language
of that
section, it is the fact of the State suspension which gives the I.G.
the
authority to exclude Petitioner. In related appeals under
section
1128(b)(4) of the Act, which permits exclusion of a practitioner
whose
state license to practice has been suspended by a state
licensing
authority for reasons bearing on professional competence,
professional
performance, or financial integrity, the Board has held that
petitioners
may not collaterally attack the state licensing actions
underlying the
exclusions. The statute clearly intended that the I.G.
was to rely on
the state actions, and did not intend that the I.G. examine
the fairness
or propriety of the process which led to the state action.
John W.
Foderick, M.D., DAB 1125 (1990). This analysis applies equally
to
exclusions brought under section 1128(b)(5)(B).
In an appeal involving suspension of a state license to practice, we
noted
that precluding collateral attacks on the actions of state
licensing
authorities did not infringe on constitutional rights, as
state proceedings
are subject to the due process and equal protection
clauses of the Fourteenth
Amendment. Leonard R. Friedman, M.D., DAB
1281, at 7 (1991), decision
on request to reopen, March 9, 1992. The
Petitioner here did not allege
that he was unable to attack his
suspension from Mississippi Medicaid on due
process grounds at the State
level. Where practitioners can directly
attack state proceedings at the
state level, constitutional rights are
adequately and more appropriately
protected by direct appeal from state
decisions. Allowing collateral
attacks would unnecessarily encumber the
exclusion process by granting
practitioners a remedy that duplicates a
pre-existing remedy. Friedman,
at 7-8.
2. Applicability of section 1128(b)(5)
The only question properly before us regarding Petitioner's
suspension
from Mississippi Medicaid is whether the ALJ erred in concluding
that it
was for reasons concerning Petitioner's professional
competence,
professional performance, or financial integrity, as required by
section
1128(b)(5) of the Act. Petitioner argued that Mississippi
Medicaid did
not suspend him for reasons based on his professional
performance; he
asserted that no such finding was made by the State
authorities, nor can
any such inference be made based upon the record.
He asserted that the
State action was based essentially on allegations of
overtesting of
patients as compared with the "average" family practitioner,
and that
this is an "overutilization" case which does not concern
his
professional performance. He argued that this comparison with
the
average family practitioner was inappropriate, as his practice
was
geared primarily towards impoverished black patients who are subject
to
a high incidence of hypertension and diabetes. Since these
patients
rarely seek medical attention, he asserted, it was appropriate
to
conduct routine diagnostic tests as part of his practice of
preventive
medicine.
The state authority is not required to use the words
"professional
competence, professional performance or financial integrity"
in
effecting the suspension in order for the I.G. to have authority
to
exclude an individual under section 1128(b)(5)(B) of the Act.
The
statute requires only that the state suspension be for reasons
bearing
on professional competence, performance, or financial
integrity. Thus,
the appropriate inquiry is what were the reasons for
the state action in
suspending Petitioner, and whether those reasons bear on
his
professional competence, professional performance, or
financial
integrity.
Our review of the record reveals substantial evidence supporting the
ALJ's
determination that Petitioner was suspended from Mississippi
Medicaid for
reasons bearing on his professional performance. The
action of
Mississippi Medicaid was based on a recommendation of the
Mississippi
Foundation for Medical Care, Inc., the State's Peer Review
Organization
(PRO). The "Initial Sanction Notice of Substantial
Violation in a
Substantial Number of Cases" sent to Petitioner from the
PRO and dated August
2, 1989, informed him that the PRO had concluded
that there was a reasonable
basis for determining that he had violated
his obligation under section
1156(a) of the Act to assure that the
services provided to Medicaid
beneficiaries were:
(1) provided economically and only when, and to the
extent they are
medically necessary; (2) of a
quality that meets professionally
recognized standards of health care; AND/OR
(3) supported by the
appropriate evidence of medical necessity and quality of
the services in
a form and fashion as may be required.
I.G. Hearing Exhibit (Ex.) 20. The same language was included in
the
second and final sanction notices of substantial violation in
a
substantial number of cases, dated October 27, 1989 and February
1,
1990, respectively. I.G. Hearing Exs. 15 and 2. As the ALJ
noted,
these determinations were based on charges that Petitioner
poorly
documented his laboratory work, ordered unnecessary laboratory
tests,
performed inadequate and incomplete testing, provided
incomplete
documentation regarding his treatment of Medicaid recipients,
and
inappropriately diagnosed his patients' conditions. ALJ Decision at
8.
All three notices contained references to 80 specific instances
of
treatment concerning 30 different patients, which the PRO concluded
were
in violation of the standard noted above; the final notice also
detailed
the history of the treatments received by each of the 30
patients. This
information was included with the PRO's recommendation
to the Director
of the Division of Medicaid for the State of Mississippi,
dated February
2, 1990, stating that it had concluded that Petitioner had
violated his
obligations in providing care to beneficiaries and recommending
a
three-year suspension from the Medicaid program. I.G. Hearing Ex.
3.
Additionally, at the hearing before the ALJ, the I.G. presented
the
testimony of a physician witness, a member of the PRO Board
of
Directors, who testified concerning the PRO's findings and the
specifics
of the treatment received by two of the patients whose records
were
reviewed by the PRO. He indicated that such tests were not
necessary
for the purpose claimed as justification by Petitioner,
routine
screening for the presence of hidden diseases. ALJ Decision at
13.
"Professional performance" must be interpreted in a way that
will
effectuate the exclusion's purpose of protecting the programs.
Here,
that purpose is served by protecting patients from potentially
invasive
tests that are not medically indicated and which unnecessarily
raise
program costs. That the charges may also relate to the concept
of
overutilization does not mean that they are not also
fairly
characterized as professional performance. Moreover, there were
other
findings in addition to those relating to overtesting which formed
the
basis for the State suspension, including poorly documented
laboratory
work, inadequate and incomplete testing, incomplete
documentation
regarding treatment, and inappropriate diagnoses.
Given the description of the violations and the supporting
documentation
concerning the treatment rendered by Petitioner that was
contained in
the PRO notices to him and in its recommendation to
Mississippi
Medicaid, as well as the testimony adduced at the hearing
regarding the
basis of the State action, the ALJ's finding that the action to
suspend
Petitioner from the State Medicaid program was for reasons bearing
on
his professional performance is well-supported. That the
resulting
suspension may have come about in part as a result of
Petitioner's
failure to timely answer the charges against him does not alter
the
underlying basis of the State's action.
Petitioner also argued that the action against him should have
been
brought under section 1156 of the Act, which he claimed is
the
appropriate provision for overutilization cases, and not under
section
1128(b)(5)(B) which applies to cases concerning
professional
performance. Petitioner asserted that under section 1156
of the Act he
would have been entitled to notification and education
procedures prior
to his exclusion, procedures which were not afforded him
under section
1128. He maintained that section 1128(b)(5) does not
contemplate
excluding a provider without an opportunity to correct its
methods and
procedures, since section 1128(b)(13) permits exclusion of
hospitals
only when they fail to comply with a plan of corrective
action.
Petitioner also quoted the wording in a title of a section of
what
Petitioner identified as the I.G.'s "OHFI manual" as evidence
that
section 1128 and section 1156 actions were to be processed
identically
and that he should have been provided the procedures described
in
section 1156.
We find no merit in Petitioner's contentions. Section 1156 of the
Act
applies only where a PRO, or other organization with a contract with
the
Secretary, recommends to him that a practitioner be suspended. That
is
not the case in this appeal. The action by the I.G. in
suspending
Petitioner was not based on any recommendation made to it by the
PRO,
the Mississippi Foundation for Medical Care, Inc. Rather, the
exclusion
is a derivative action based on the fact that Petitioner was
suspended
from a State health care program, Mississippi Medicaid, for
reasons
bearing on Petitioner's professional performance. This
derivative
action is explicitly permitted by the plain wording of
section
1128(b)(5)(B), which clearly gives the I.G. authority to exclude
a
provider so excluded from a State health care program. 3/
Petitioner's arguments that he should have been given the same process
as
a hospital provider would be given under section 1128(b)(13), and
that he was
entitled to corrective action under the OHFI manual are
raised for the first
time here and are not properly before us. An
argument raised for the
first time on appeal need not be considered if
it could have been raised
before the ALJ. In Re Zamora, DAB 1104, at 8
(1989); Charles W. Wheeler
and Joan K. Todd, DAB 1123, at 5, fn. 5
(1990). In any event, we would
find both arguments unavailing. Section
1128(b)(13) permits suspension
of a hospital which has taken certain
actions under section 1886(f)(2) of the
Act to circumvent Medicare
payment methodologies and has failed to complete a
corrective action
program. By its terms, it does not apply here. 4/
Additionally, section 1128(b)(13) is the only one of fourteen
subsections
in section 1128(b) that contains the corrective action
language cited by
Petitioner. Rather than conclude as Petitioner did
that the presence of
corrective action language in section 1128(b)(13)
evinces an intent that he
be afforded the same procedure as a suspended
hospital, it is more reasonable
to infer from the absence of such
language anywhere else in that section that
it was intended to apply
only to hospitals that fall within the ambit of
section 1886(f)(2).
Similarly, the OHFI manual provision, which by its terms
does not stand
for the proposition for which it is cited, 5/ must yield to
the plain
wording of the statute and the authority it vests in the
Secretary's
delegate, the I.G., to suspend Petitioner based on the State
action.
3. Length of the exclusion
Petitioner argued that his exclusion until May 1, 1993 was excessive
and
extreme and did not serve a remedial purpose as intended by the
statute,
nor comply with the provisions of 42 C.F.R. . 1001.114, applicable
to
section 1128 sanctions. He disputed the ALJ's findings and
conclusions
as to Petitioner's trustworthiness, including the finding
that
Petitioner committed improper acts over a lengthy period of time.
Prior to January 29, 1992, no final regulation applying specifically
to
permissive exclusions had been promulgated. In the absence of
final
regulations, the Board held that an ALJ could properly turn to
the
existing regulations governing mandatory exclusions for
program-related
crimes for general guidance in determining the length of a
permissive
exclusion. Baratta at 1, n. 7; Joyce Faye Hughey, DAB
1221, at 6, n. 5
(1991). Those regulations, at 42 C.F.R.
1001.125(b)(1-7), provide seven
factors to be considered in setting the
period of exclusion. They are:
(1) The number and nature of the program
violations and other
related offenses; (2) The
nature and extent of any adverse impact
the
violations have had on beneficiaries; (3) The amount of
the
damages incurred by the Medicare, Medicaid, and
the social services
programs; (4) Whether there are any mitigating
circumstances; (5) The
length of the sentence
imposed by the court; (6) Any other facts
bearing on the nature and seriousness of the program violations;
and
(7) The previous sanction record of the suspended party under
the
Medicare or Medicaid program.
Petitioner referred to the regulation at 42 C.F.R. . 1001.114
as
applicable for determining the length of an exclusion under section
1128
of the Act. That regulation relates to suspensions, exclusions,
and
terminations for fraud and abuse, whereas section 1001.125(b) relates
to
suspensions on the basis of a conviction for a program- related
offense.
Both call for consideration of essentially the same six factors;
the
only difference between the two provisions is section
1001.125(b)(5),
which requires that the length of the sentence imposed by a
court for
the program-related violation be considered as well. In this
case, our
review of the ALJ's findings and analysis confirm that he
considered
each of the relevant factors in determining that an exclusion
until May
1, 1993 was appropriate to effect the remedial aims of the
statute.
The ALJ specifically cited 42 C.F.R. . 1001.125(b)(1), (4), (6), and
(7)
in his FFCLs and in his analysis. His discussion also
reflects
consideration of the other three factors, although not
specifically
cited. The ALJ determined that Petitioner had in fact
committed the
conduct that served as the basis of the State suspension.
He found the
testimony of the I.G.'s physician witness and the record
particularly
persuasive in establishing a pattern of conduct by which
Petitioner
repeatedly and routinely ordered laboratory tests which were
not
indicated, which were repeated far more often than medically
reasonable,
for which Petitioner failed to provide the interpretation
necessary to
yield useful results, and for which no follow-up treatment was
pursued.
FFCLs 6, 18, 19, 20, 25. The evidence also showed some
instances where,
although laboratory test results came back as abnormal,
Petitioner did
not pursue the cause of the abnormality. FFCL 19, ALJ Decision
at 14.
The supporting documentation detailed 80 questioned treatments
involving
30 patients over a period of nearly a year. I.G. Hearing Exs.
2, 15,
20. Although Petitioner argued that his use of these tests
was
necessary for his practice of preventive medicine, he failed to
refute
successfully the testimony that the tests were of questionable
benefit
due to the lack of interpretation or follow up treatment. FFCLs
19, 24,
26, ALJ Decision at 12-14. Here, we conclude that the evidence
cited by
the ALJ in support of these findings constitutes substantial
evidence.
Petitioner's failure to acknowledge any culpability for any of the
cited
misconduct or to indicate that he would conduct his practice
any
differently also supports the ALJ's determination as to
Petitioner's
trustworthiness as a Medicaid provider. To the extent that
the ALJ's
determinations depended on Petitioner's credibility and that of
the
witness at the hearing, they were particularly within the realm
of
determinations best left to the ALJ. Resolving issues of credibility
is
the function of the ALJ, whose findings based on witness demeanor
and
credibility are entitled to particular weight since the Board lacks
the
opportunity to make observations of testimony. Hughey, supra; see
also
Myers v. Secretary of Health and Human Services, 893 F.2d 840, 846
(6th
Cir. 1990); Kopack v. NLRB, 668 F.2d 946, 953-55 (7th Cir. 1982),
cert.
denied, 456 U.S. 994; Butler-Johnson Corp. v. NLRB, 608 F.2d 1303,
1305
(9th Cir. 1979). During the hearing, the ALJ had the opportunity
to
observe the demeanor of Petitioner and the witness and to evaluate
their
credibility. In contrast, the Board's role as the forum for
the
administrative appeal of the ALJ Decision is a limited one.
Achalla,
supra.
Petitioner also argued that the ALJ incorrectly considered evidence of
a
1982 investigation by Mississippi Medicaid into claims that
Petitioner
had charged Medicaid for services which did not have the
results
documented, and which recipients denied receiving. That
investigation
concluded with Petitioner agreeing to pay restitution, to
maintain and
make available medical records, and to be placed on a year's
probation.
The ALJ cited it in support of his finding that Petitioner had a
history
of untrustworthy behavior as regards the Medicaid program.
Petitioner argued that he had not been put on notice that evidence of
the
1982 investigation would be considered. Although documents relating
to
the 1982 investigation were included in the I.G.'s list of exhibits
to be
used at the hearing, Petitioner asserted that it should have been
included in
the text of the I.G.'s notice letter, as due process
requires notice of all
charges to be used in arriving at the sanction.
He also asserted that the ALJ stated at the hearing that it would not
be
relevant to the proceeding, leading him not to present his side of
the
alleged incidents.
The transcript of the hearing indicates that although the ALJ
questioned
the probative value of the documents relating to the 1982
investigation,
as they contained no admission of prior misconduct by
Petitioner, he did
find that they were relevant to the issue of
trustworthiness.
Transcript at 23-27. Although they were not referenced
in the November
20, 1990 letter of exclusion from the I.G., there is no
indication that
they were relied on by the I.G. in selecting the period of
exclusion, as
that letter states only that the period of exclusion was
arrived at by
taking into consideration the fact that Mississippi Medicaid
suspended
him for three years. The Board has held that the statute, at
section
205(b) of the Act, provides for a de novo review by the ALJ.
Baratta.
In conducting this de novo review, the ALJ may consider information
and
evidence not considered or relied on by the I.G. in making
its
determination. Therefore, the ALJ was free to consider evidence of
the
1982 action even if not considered by the I.G.; regardless
of
Petitioner's acknowledgment of guilt, it still represents a
previous
sanction record relevant in assessing the length of an
exclusion.
Petitioner had notice prior to the hearing that the I.G. intended
to
submit evidence on the 1982 investigation but did not seek to rebut
that
evidence, even after it was admitted by the ALJ.
Even disregarding the 1982 sanction, however, we would find that the
ALJ
did not err in concluding that the exclusion until May 1, 1993 was
not
excessive in this case, in light of the evidence discussed above.
Finally, we note that the statute provides no limits to the length of
a
permissive exclusion. Additionally, under recently
published
regulations governing permissive exclusions but promulgated
subsequent
to Petitioner's appeal, three years would be the mandatory
minimum
period of exclusion in this case in the absence of specific
mitigating
circumstances, none of which apply here. 42 C.F.R. .
1001.601, 57 Fed.
Reg. 3298 (January 29, 1992). The three-year period
was adopted because
it is the standard period for debarment from federal
grants or
contracts. Thus, Petitioner did not receive the "harshest"
sanction, as
he alleged. Reply Brief at 10.
We thus conclude that the ALJ Decision sustaining Petitioner's
exclusion
and modifying it to be effective until he is eligible to apply
for
reinstatement to Mississippi Medicaid was supported by
substantial
evidence and not erroneous as a matter of law.
Conclusion
Based on the foregoing analysis, we affirm the ALJ Decision. We
affirm
and adopt each of the findings of fact and conclusions of law.
Donald F. Garrett
Theodore J. Roumel Public Health Service
Judith A. Ballard Presiding Panel Member
1. "State health care program" is defined by section 1128(h) of
the
Social Security Act to cover three types of federally-financed
health
care programs, including Medicaid.
2. Petitioner did not indicate to us why his appeal before
Mississippi
Medicaid was deemed to be procedurally improper; however, a
review of
the record before the ALJ shows that Petitioner was suspended after
he
and his counsel failed to timely exercise his right to appeal the
State
decision. I.G. Exs. 3, 5.
3. Even if this action had been brought under section 1156,
the
education procedures Petitioner claimed he was entitled to would
still
not apply. The provision in section 1156(b)(1) that a PRO may
recommend
action against a practitioner only after the practitioner has
been
given, if appropriate, "a reasonable opportunity to enter into
and
complete a corrective action plan (which may include
remedial
education). . . and has failed successfully to complete such plan"
was
added by Public Law 101-508, and applies to initial determinations
by
PROs made on or after November 5, 1990. Pub. L. 101-508,
.
4205(a)(1)(A). Here, the PRO's initial notice of its determinations
was
dated August 2, 1989. I.G. Hearing Ex. 20.
4. We also note that section 1128(b)(13) does not itself create a
right
to a corrective action program; that right is created by
section
1886(f)(2).
5. Petitioner claimed that since section 5035 of the manual is
entitled
"�BASIS FOR EXCLUSION UNDER SECTION 1862 [now 1128] OR SECTION
1156�"
(Petitioner's Reply at 8) there should be no distinction between
the
processing of sanctions under the two sections. However, he then
cited
another section of the manual which states that efforts to educate
a
physician are not necessary in section 1128 cases. Petitioner
argued,
unconvincingly, that this more specifically applicable provision of
the
manual should be