Narinder Saini, M.D., DAB No. 1371 (1992)
Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Appellate Division
In the Case of:
Narinder Saini, M.D.,
Petitioner,
- v. -
The Inspector General.
DATE: November 23, 1992
Docket No. C-425
Decision No. 1371
FINAL DECISION ON REVIEW OF ADMINISTRATIVE LAW JUDGE
DECISION
Narinder Saini, M.D. (Petitioner) appealed a July 23, 1992 decision
by
Administrative Law Judge (ALJ) Steven T. Kessel. See Narinder
Saini,
M.D., DAB CR217 (1992) (ALJ Decision). The ALJ affirmed the
Inspector
General's (I.G.'s) determination to exclude Petitioner under
section
1128(b)(4) of the Social Security Act (Act). The period of
exclusion
was three years.
Based on the following analysis, we affirm the ALJ Decision.
Background
Petitioner was employed as a staff psychiatrist at Mendota Mental
Health
Institute (Mendota) in Madison, Wisconsin from February 24
through
September 26, 1986. From September 29, 1986 through August
1989,
Petitioner practiced psychiatry in various capacities in the State
of
Iowa. On January 29, 1990 he returned to Mendota as a
forensic
psychiatrist, the position he currently holds.
On August 7, 1990, the Board of Medical Examiners of the State of
Iowa
(Iowa Board) issued an order directing that Petitioner's license
to
practice medicine and surgery in Iowa be suspended indefinitely
for
reasons bearing on his professional competence or performance.
The
order was based on findings of fact and conclusions of law issued by
a
panel, comprised of three members.of the Iowa Board and
an
administrative law judge, which conducted an evidentiary hearing
in
Petitioner's case. Specifically, the Iowa Board found that --
o During his employment at the Mental Health Center of
North
Iowa, Petitioner had experienced a psychotic episode
which
affected his medical practice and compromised the care of
his
patients.
o Petitioner's practice of psychiatry had been harmful
or
detrimental to the public.
o Although Petitioner had received treatment for his
mental
condition, the possibility remained that Petitioner
could
experience another psychotic episode which would compromise
the
care of his patients.
o Based on his mental condition, Petitioner was unable
to
practice medicine with reasonable skill and safety.
On February 21, 1991, the State of Wisconsin Medical Examining
Board
(Wisconsin Board) issued a decision and order regarding
Petitioner's
license to practice medicine and surgery in Wisconsin.
Basing their
action, in part, on the decision and order by the Iowa Board,
the
Wisconsin Board found that --
o Petitioner suffered from a bipolar mental
disorder
(manic-depressive illness).
o Petitioner's illness was reasonably related to his ability
to
practice medicine and surgery.
o Petitioner's illness could be reasonably accommodated
by
placing appropriate conditions on his license to
practice
medicine and surgery in Wisconsin.
As the result of the Wisconsin Board's decision, Petitioner could
not
practice medicine or surgery as an unrestricted sole practitioner
in
Wisconsin. Petitioner was required to advise the Wisconsin Board
prior
to commencing the practice of medicine or surgery in the State and
to
identify an acceptable individual as his supervisor. He had to
remain
in treatment with his physician. Finally, every 90 days, his
physician
was required to report on Petitioner's treatment and progress to
the
Wisconsin Board. Petitioner's employment at Mendota satisfies
these
conditions. On March 6, 1992, the Wisconsin Board renewed its
order,
leaving the restrictions on Petitioner's license in place.
See
Petitioner Exhibit (Ex.) 25.
On April 18, 1991, the I.G. notified Petitioner that he would be
excluded
from participation in Medicare and State health care programs
(Medicaid)
until he obtained a valid license to practice.medicine in
Iowa. The
I.G. based Petitioner's exclusion on the action of the Iowa
Board. On
July 8, 1991, the I.G. informed Petitioner that his exclusion
was being
modified to a term of three years. The I.G.'s decision to
modify the
exclusion was based on the fact that Petitioner had obtained
a restricted
license to practice medicine in Wisconsin.
The I.G.'s action constituted a "permissive exclusion" under
section
1128(b) of the Act. As it pertains to this case, that section
provides
--
The Secretary may exclude the following individuals and
entities
from participation in any program under title XVIII
[Medicare]
and may direct that the following individuals and entities
be
excluded from participation in any State health care program:
* * *
(4) LICENSE REVOCATION OR SUSPENSION. -- Any individual
or
entity --
(A) whose license to provide health care has been revoked
or
suspended by any State licensing authority, or who
otherwise
lost such a license, for reasons bearing on the individual's
or
entity's professional competence, professional performance,
or
financial integrity, . . . .
The ALJ Decision upholding Petitioner's exclusion was based on
49
findings of fact and conclusions of law (FFCLs). Generally, the
ALJ
found that Petitioner was not responsible for his medical problems,
but
that those problems did render Petitioner less than fully trustworthy
to
provide care. While noting that Petitioner was not manifesting signs
of
the bipolar disorder which affected him in 1989, the ALJ
found
sufficient expert evidence in the record to conclude that
Petitioner's
disorder may recur and affect his judgment in a way which could
endanger
his patients. The ALJ also found that Petitioner suffered
diminished
mental functioning which affected his ability to engage in
tasks
requiring flexibility of thinking. Consequently, the ALJ
determined
that Petitioner's impairments and need for close supervision
evidenced a
lack of trustworthiness justifying his exclusion, and that
the
three-year exclusion proposed by the I.G. was not extreme or
excessive.
ALJ Decision at 20-21.
Petitioner had also argued that he was an individual with handicaps
under
the Rehabilitation Act of 1973, as amended, 29 U.S.C. . 794(a),
and that the
ALJ was required to modify the exclusion to accommodate his
handicap.
The ALJ found that he did not have the authority to modify an
exclusion to
limit the scope.of services to which it would apply.
Additionally, the ALJ
concluded that he lacked authority to modify an
exclusion on the basis of the
Rehabilitation Act. He noted that there
was nothing in the language or
history of section 1128 of the Act even
to suggest that Congress
intended that exclusions could be modified to
accommodate handicapping
conditions. ALJ Decision at 21-22.
Issues on appeal
Generally, Petitioner took exception to the ALJ's conclusion that
a
three-year exclusion was reasonable. Petitioner also excepted to
the
ALJ's failure to apply the Rehabilitation Act of 1973 as requested.
Analysis
The ALJ's principal FFCL, FFCL 49, provides --
49. The Act's remedial purpose will be accomplished by
excluding
Petitioner for three years.
ALJ Decision at 7. Petitioner took exception to FFCL 49 as well
as
several other FFCLs which support that ultimate determination.
Below,
we first consider Petitioner's exceptions to FFCLs 27, 31, 32 and
39,
which relate to the reasonableness of the length of the exclusion,
given
Petitioner's medical condition. We then address his exceptions to
FFCLs
47 and 48, which involve the Rehabilitation Act of 1973. We do
not
specifically discuss FFCL 49 since we address and reject
Petitioner's
exceptions to the underlying FFCLs.
I. A three-year exclusion is reasonable.
The FFCLs in contention here provide --
27. Petitioner's present cerebral impairments might affect his
ability
to make complicated decisions concerning the management of patients
in
the context of his present work as a psychiatrist. * *
*
31. A significant minority of individuals who suffer from
bipolar
affective disorders experience recurrences of symptoms,
despite
treatment, which can be disabling for a period of time.
32. There is no guarantee that Petitioner will not, at some
future
date, experience a relapse of his bipolar affective disorder.
* * *.39.
Petitioner is not trustworthy
to
provide care to patients outside of
the
setting of his current
employment at
Mendota Mental
Health Institute or a
setting with
an equivalent level of
supervision.
ALJ Decision at 5-6 (citations omitted).
Section 1128(b)(4) of the Act allows the Secretary to exclude a
provider
from participation in Medicare and Medicaid where a state licensing
body
has revoked or suspended the provider's license for reasons bearing
on
the provider's professional competence or performance. Petitioner
did
not dispute that his license to practice medicine and surgery in
Iowa
was suspended for reasons relating to his professional competence
or
performance. See ALJ Decision at 3 (FFCL 13) and 9.
In general, Petitioner maintained that a three-year exclusion
was
unreasonable. Petitioner indicated that he had experienced but a
single
psychotic episode more than three years ago. He argued that
the
restrictions placed on his practice in Wisconsin provided the
Department
of Health and Human Services with reasonable assurances that his
prior
problems will not recur and that he posed no threat to his
patients.
Petitioner noted that he was functioning normally within the
restricted
setting provided for him at Mendota. Further, he indicated
that even if
he did suffer a relapse it would be detected quickly in his
current work
environment. Petitioner also argued that the ALJ had
created an
impossible standard by requiring that, in order to avoid an
exclusion,
Petitioner guarantee that he would not have a relapse.
Rather,
Petitioner contended the proper test should have been whether there
were
reasonable assurances that his condition was responsive to
medication,
such as lithium. Petitioner asserted that the ALJ erred by
relying on
neuropsychological tests as proof that Petitioner was incapable
of
functioning as a psychiatrist. Finally, Petitioner contended
that a
one-year exclusion, which would permit him to petition for
reinstatement
as of May 18, 1992, would provide adequate protection to the
Medicare
and Medicaid programs. Petitioner Brief (Br.) at 9-13.
Petitioner's arguments do not persuade us that the ALJ Decision
was
wrong. There is no question that Petitioner suffers from a
serious
mental illness. The ALJ, after consideration of the evidence
concerning
Petitioner's history and present condition, reasonably concluded
that
Petitioner posed a risk to program recipients and beneficiaries as
a
result of this illness. The ALJ found (and Petitioner did not
deny)
that, despite treatment, a significant minority (30%) of
individuals
suffering from Petitioner's condition experience a recurrence
of
symptoms which may disable them for a period of time. See FFCL 31;
see
also ALJ Decision at 20. Additionally, the decision to
exclude
Petitioner was based on the findings of the licensing authorities
in
Iowa.and Wisconsin. Those authorities concluded that, for
reasons
related to his professional competence or performance, Petitioner
was
not sufficiently trustworthy to be allowed to engage in an
unrestricted
medical practice. See FFCLs 11-13, 16. As recently
as March 1992,
following review of Petitioner's case, the Wisconsin Board
renewed the
restrictions on his medical license. Petitioner Ex.
25. The findings
of these licensing authorities raise the presumption
that Petitioner is
untrustworthy. That presumption is the basis for his
exclusion which is
designed to protect recipients and beneficiaries in the
Medicare and
Medicaid programs.
Petitioner contended that he is currently functioning normally.
Thus,
he argued that the ALJ erred in upholding the exclusion based on
the
fact that Petitioner's symptoms might recur. Petitioner's
argument
ignores the purpose of section 1128(b)(4) of the Act. An
individual or
entity losing a license for reasons bearing on professional
competence
or performance is presumed to be untrustworthy and potentially
harmful
to program beneficiaries and recipients. Section 1128(b)(4)(A)
does not
require a finding of actual harm to a patient or recipient as
a
precondition to an exclusion. Rather, the essential element
is
revocation of a provider's license for reasons bearing on
professional
competence or performance. To read the Act as requiring a
showing of
actual harm would preclude exclusion of providers who pose a
threat to
beneficiaries or recipients. Leonard R. Friedman, M.D., DAB
1281 at
9-10 (1991) (Forensic psychiatrist excluded based on finding of
state
licensing authorities that he had engaged in sexual activity with
a
patient during an office visit. It was not necessary that
an
identifiable patient have actually suffered harm as the result of
the
offending conduct. Sexual activity alone had sufficient bearing
on
professional competence and performance to justify exclusion.); see
also
Eric Kranz, M.D., DAB 1286 at 8-9 (1991) (Proof of actual harm is
not
required. Rather, the nature of the questioned conduct and the
degree
of potential for harm are relevant considerations.). Exclusions
under
section 1128(b)(4) of the Act are remedial in nature and intended
to
protect beneficiaries and recipients from incompetent, inadequate,
and
inappropriate care. The major concerns accompanying imposition of
an
exclusion focus on the well-being of the programs, their recipients,
and
beneficiaries, not the excluded party. Behrooz Bassim, M.D., DAB
1333
at 9-10 (1992) (Physician's license revoked based on inappropriate
and
improper physical and/or sexual contact with patients.).
Protection of
program beneficiaries and recipients is the primary motivating
factor
underlying an exclusion. As we discuss below, an exclusion is
necessary
in this case to safeguard program beneficiaries and recipients.
Additionally, Petitioner misinterpreted FFCL 32. There the ALJ
stated
that there is no guarantee that Petitioner will not suffer a relapse
of
his bipolar affective disorder. The ALJ was not.requiring
that
Petitioner guarantee that he would not experience a relapse in order
to
avoid an exclusion. Rather, by this statement the ALJ recognized
that
there was a significant possibility of a relapse even among
individuals
who, like Petitioner, were responding to lithium treatment for
this
disorder. Even if, as Petitioner asserted, there is but a slight
risk
of recurrence of his psychotic episode, such a risk justifies
an
exclusion. This is especially true in light of the potential for
harm
to those seeking psychiatric care, who may be particularly
vulnerable
and unable to exercise the judgment necessary to protect
themselves.
See Jerry D. Harrison, D.D.S., DAB 1365 (1992). (Dentist
admitted to
sexual misconduct with several boys and lost his license in
Iowa.
Although Harrison ultimately received restricted licenses in two
other
states, he posed a risk justifying exclusion due to the
particular
vulnerability of his potential victims.)
Finally, contrary to Petitioner's arguments, we are not convinced that
the
ALJ erred in relying on neuropsychological tests to support his
determination
that Petitioner is incapable of functioning as a
psychiatrist. See ALJ
Decision at 5 (FFCL 27). Petitioner underwent
neuropsychological
testing at the Mayo Clinic in February 1990.
Petitioner was found to suffer
from a "degree of neurocognitive
impairment . . . sufficiently great to
impose very significant risks of
compromising competence in the practice of
medicine and psychiatry.
Given these findings . . . [Petitioner] would
qualify for total medical
disability." I.G. Ex. 22 at 2. A
psychologist, who participated in
Petitioner's testing, indicated that at the
minimum, Petitioner "would
require direct supervision of his psychiatric
practice . . . ." I.G.
Ex. 25 at 1. Subsequently, a January 1992
examination of Petitioner at
the University of Wisconsin found that his
"level of impairment . . . is
essentially the same (or in some instances
worse) than that shown . . .
at the Mayo Clinic." I.G. Ex. 31 at
3. The ALJ concluded that these
tests established that Petitioner is
suffering from diminished mental
functioning which affected his ability to
engage in tasks requiring
flexibility of thinking. See ALJ Decision at
5 (FFCLs 21-26).
Petitioner argued that the areas addressed by this testing are "not . .
.
much taxed by a psychiatrist." Petitioner Br. at 11.
Consequently,
they were not a true barometer of his ability to practice
psychiatry
safely and competently. Rather, he asserted that the
strongest evidence
of his competency is the fact that he is currently
practicing in a
satisfactory manner. 1/ Id. at 12..The evidence does
not support a
finding that Petitioner is capable of performing his duties
without
restriction. Rather, the only situation in which he can be
considered
trustworthy is if he continues to practice in the controlled
setting
offered by his current employment at Mendota or a similar
setting. As
the ALJ indicated, the fact that Petitioner requires close
supervision
to successfully practice medicine augments, rather than
diminishes, the
argument that Petitioner should be excluded. A
three-year exclusion is
necessary here to preclude the possibility, however
slight, that
Petitioner might attempt to seek Medicare or Medicaid
reimbursement
outside his current work environment in spite of the
restrictions placed
on his license in Wisconsin. ALJ Decision at
20-21.
There was substantial evidence to support the ALJ's findings on the
risk
Petitioner poses to recipients and beneficiaries of the Medicare
and
Medicaid programs. Accordingly, we affirm FFCLs 27, 31, 32, 39 and
49.
II. The ALJ correctly found that the Rehabilitation Act of 1973
does
not apply.
In the FFCLs to which Petitioner excepted here, the ALJ concluded --
47. I do not have authority to decide whether any exclusion imposed
and
directed by the I.G. must reasonably accommodate an excluded
party's
medical impairments.
48. I do not have authority to impose an exclusion which applies
to
some, but not to all, services for which Petitioner potentially
could
file Medicare or Medicaid reimbursement claims.
ALJ Decision at 7 (citations omitted).
Petitioner asserted that he was a handicapped individual within
the
meaning of the Rehabilitation Act of 1973. Thus, he reasoned,
the
Rehabilitation Act should be applied to modify his
exclusion..Although
Petitioner took exception to both FFCLs, he did not
challenge the ALJ's
legal conclusion that he lacks authority to modify
an exclusion in the
manner requested. The plain language of the
Medicare and Medicaid
Patient and Program Protection Act of 1987, Public Law
No. 100-93,
section 2 (MMPPA), which added the permissive exclusion
authority
contained in section 1128(b)(4) to the Act, provides that payment
must
be denied for "any" item or service and consistently uses the
singular
to describe the exclusion and the period of exclusion. This
indicates
that Congress intended that any exclusion imposed by the Secretary
would
apply to all items or services for which an excluded party
potentially
could file Medicare or Medicaid reimbursement claims. Thus,
the
Secretary (and his delegatees, the ALJ and this Board) do not
have
authority to tailor an exclusion to permit an excluded party to
claim
reimbursement for particularized items or services. Walter
J.
Mikolinski, Jr., DAB 1156 (1990). Petitioner's contention that
public
policy embodied in the Rehabilitation Act somehow required
the
Department of Health and Human Services to accede to his request
simply
does not overcome this statutory mandate.
Moreover, Petitioner did not identify anything in the MMPPA,
its
legislative history, or any case law that contradicts the
ALJ's
determination that "[t]here is nothing in . . . section 1128
which
states or suggests that Congress intended that exclusions be modified
to
accommodate handicapping conditions." ALJ Decision at 22.
Instead,
Petitioner asserted that reasonable accommodation in this case does
not
require a partial exclusion because of the legal restrictions
already
imposed on his medical license.
This contention does not provide the missing legal authority to
override
the plain language of the MMPPA, but simply assumes that the ALJ
must
conclude that Wisconsin's license restrictions provide
adequate
protection to program beneficiaries. We have already
determined above,
however, that the ALJ properly concluded, based on the
evidence before
him (including the license restrictions), that the I.G.'s
proposed
exclusion was reasonable because Petitioner would not be trustworthy
to
provide Medicare and Medicaid services for at least three
years.
Petitioner here has not seriously challenged the ALJ's
interpretations
of his legal authority, much less shown that they are
wrong.
Consequently, we affirm FFCLs 47 and 48..Conclusion
Based on the analysis above, we affirm and adopt FFCLs 27, 31, 32, 39
and
47-49 to which Petitioner excepted. Additionally, we affirm those
FFCLs
to which Petitioner did not take exception.
_________________________
Donald
F. Garrett
_________________________
Cecilia
Sparks Ford
_________________________
M.
Terry Johnson
Presiding Board Member
1. Among the evidence cited by Petitioner in support of his
position
was a document identified as his "Exhibit 23." Petitioner Br. at
12.
This document was Petitioner's 12-month performance evaluation
at
Mendota for the period ending February 27, 1992. See
Petitioner's
Amended List of Proposed Exhibits (March 5, 1992).
Although referred to
in the testimony of at least two witnesses, this
document was ultimately
excluded from evidence because it was not timely
submitted to the ALJ.
Hearing Transcript (Tr.) at 49, 92, 130-131.
Consequently, while the
substance of the document was entered in the record
through testimony
(See Tr. at 130-131), we cannot properly consider the
document itself as
support for Petitioner's position. However, as we
have noted,
Petitioner's ability to function satisfactorily in a
controlled
environment, such as Mendota, does not prove that he is
trustworthy as a
provider of services under Medicare or