Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Appellate Division
In the Case of:
Eric Kranz, M.D.,
Petitioner,
- v. -
The Inspector General.
DATE: December 19, 1991
Docket No. C-325
Decision No. 1286
FINAL DECISION ON REVIEW OF
ADMINISTRATIVE LAW JUDGE
DECISION
The Inspector General (I.G.) requested review by the Appellate Panel of
an
August 1, 1991 decision by Administrative Law Judge (ALJ) Steven
T.
Kessel. See Eric Kranz, M.D., DAB CR148 (1991) (hereafter,
ALJ
Decision). There, the ALJ affirmed the I.G.'s authority to impose
and
direct an exclusion against the Petitioner under section
1128(b)(4)(A)
of the Social Security Act (Act). However, the ALJ found
that the
indefinite exclusion proposed by the I.G. was excessive.
Consequently,
the ALJ modified the length of the exclusion to one year.
Based on the following analysis, we uphold the ALJ Decision in
its
entirety.
Background
On September 24, 1990 the I.G. notified the Petitioner that he was
being
excluded from participation in Medicare and State health care
programs
1/ because his license to practice medicine in West Virginia had
been
revoked. The I.G. indicated that the exclusion would remain in
effect
until the Petitioner obtained a valid license to practice medicine
in
West Virginia.
The I.G.'s action was a permissive exclusion under section 1128(b) of
the
Act. The specific statutory authority relied on by the I.G.
provides
--
The Secretary may exclude the following individuals
and entities
from participation in any program under
title XVIII [Medicare] and
may direct 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health care has been revoked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 Petitioner timely requested a hearing before an ALJ.
The ALJ Decision, reducing the Petitioner's exclusion to one year,
was
based on the following findings of fact and conclusions of law
(FFCLs):
2/
1. Petitioner is a physician.
2. Petitioner is licensed to practice medicine in the District
of
Columbia and in Pennsylvania.
3. Petitioner presently practices medicine in Pennsylvania.
4. Petitioner was licensed to practice medicine in West Virginia.
5. On March 18, 1988, the West Virginia Board of Medicine
revoked
Petitioner's license to practice medicine in West Virginia.
6. In revoking Petitioner's license to practice medicine in
West
Virginia, the West Virginia Board of Medicine found that Petitioner
had
engaged in unprofessional conduct.
7. The West Virginia Board of Medicine found that
Petitioner's
unprofessional conduct included falsely representing in a June
29, 1987,
West Virginia physician's license renewal application that he had
not
been denied a license to practice medicine during the previous
two
years, when in fact Petitioner should have known as of June 23,
1987,
that the State of Ohio had denied his application for a license
to
practice medicine.
8. The West Virginia Board of Medicine additionally found
that
Petitioner's unprofessional conduct included committing an unsavory
and
insulting repugnant criminal act in a hospital setting upon a
hospital
employee.
9. On June 19, 1987, the State Medical Board of Ohio (Ohio
Medical
Board) denied Petitioner's application for a license to
practice
medicine in Ohio.
10. The West Virginia Board of Medicine also found that
Petitioner's
unprofessional conduct included the reasons enumerated in the
Order of
the Ohio Medical Board denying his license.
11. The Ohio Medical Board's reasons for denying Petitioner's
license
application included findings that Petitioner: (1) offered to
sell
compilations of questions and answers from the 1978 FLEX and
Medical
Council of Canada examinations to persons planning to take
these
examinations in 1979; and (2) falsely stated in his license
application
that he was a licentiate of the Medical Council of Canada.
12. The Ohio Medical Board also found that Petitioner had
intentionally
failed to disclose in his application for an Ohio license to
practice
medicine that previously he had been denied licenses to
practice
medicine in Oklahoma and Pennsylvania.
13. The West Virginia Board of Medicine revoked Petitioner's license
to
practice medicine in West Virginia for reasons related to
Petitioner's
professional performance.
14. The Secretary of the Department of Health and Human
Services
(Secretary) delegated to the I.G. the authority to determine,
impose,
and direct exclusions pursuant to section 1128 of the Act.
15. On September 24, 1990 the I.G. excluded Petitioner
from
participating in the Medicare program and directed that he be
excluded
from participating in Medicaid.
16. The I.G. had authority to exclude Petitioner pursuant to
section
1128(b)(4)(A) of the Act.
17. The remedial purpose of section 1128 of the Act is to assure
that
federally-funded health care programs and their beneficiaries
and
recipients are protected from individuals and entities who
have
demonstrated by their conduct that they are untrustworthy.
18. The I.G. excluded Petitioner from participating in Medicare
and
directed that he be excluded from participating in Medicaid until
he
obtains a license to practice medicine in West Virginia.
19. In revoking Petitioner's license to practice medicine in
West
Virginia, the West Virginia Board of Medicine did not state a date
when
Petitioner would be entitled to have his license restored.
20. Although Petitioner's explanation for his false answer on
his
application for renewal of his West Virginia license to
practice
medicine regarding the denial of his license in Ohio is not
controverted
by the record, he failed to recognize that he had a duty in good
faith
to promptly inform West Virginia licensing authorities that the
Ohio
Medical Board had denied his license application when he became aware
of
this action.
21. Petitioner's failure to inform the West Virginia
licensing
authorities that the Ohio Medical Board had denied his license when
he
first became aware of this action is evidence of a lack
of
trustworthiness.
.22. Petitioner's explanation that he was not aware that his
license
application in Ohio had been denied at the time that he applied
for
renewal of his West Virginia license is self-serving.
23. Although Petitioner's explanation for his false representation
that
he was a licentiate in Canada on his Ohio license application is
not
controverted by the record, he failed to recognize that he had a duty
in
good faith to ascertain the meaning of the word "licentiate"
before
answering the question on the application.
24. Petitioner's answer to a question on his Ohio license
application
in a light most favorable to him without first confirming the
meaning of
the question is evidence of a lack of trustworthiness.
25. Petitioner's explanation that he did not understand the
questions
on the Ohio license application and mistakenly stated that he was
a
licentiate in Canada as a consequence of his misunderstanding
is
self-serving.
26. Petitioner's testimony that his sale of FLEX questions to
1979
candidates for that examination was solely motivated by a desire to
help
fellow medical residents to prepare for the examination is
self-serving
and strains credulity.
27. Given that twelve years has elapsed since Petitioner
sold
compilations of questions from FLEX and the Medical Council of
Canada
examinations, the I.G. has failed to prove that Petitioner is
presently
untrustworthy based on this incident.
28. The criminal act identified by the West Virginia Board of
Medicine
in its decision to revoke Petitioner's license to practice medicine
in
West Virginia consisted of Petitioner's 1986 nolo contendere plea to
a
misdemeanor charge of battery.
29. Petitioner's plea was the consequence of a criminal complaint
filed
against him by a coworker at a West Virginia hospital.
30. Petitioner was initially charged with sexual abuse in the
first
degree, a felony under West Virginia law.
31. Petitioner and the coworker who filed the criminal
complaint
against him were personal acquaintances who had maintained a
social
relationship.
32. Petitioner's nolo contendere plea did not amount to an admission
of
unlawful sexual contact with a coworker.
33. The I.G. did not prove from Petitioner's admitted battery against
a
coworker that Petitioner posed a threat to the welfare or safety
of
beneficiaries or recipients of federally-funded health care programs.
34. There is no evidence that Petitioner has engaged in
fraudulent
conduct against a health insurer or a federally-funded health
care
program.
35. There is no evidence that Petitioner has ever engaged in
conduct
which is harmful to program recipients or beneficiaries.
36. The indefinite exclusion which the I.G. imposed and
directed
against Petitioner does not serve the remedial purpose of section
1128
of the Act and is excessive.
37. The remedial purpose of section 1128 will be met in this case by
a
one-year exclusion from participation in Medicare and Medicaid.
ALJ Decision at 2-6.
The I.G.'s Exceptions
The I.G. raised six exceptions specifically challenging two FFCLs (32
and
37) and objecting to the weight which the ALJ gave to specific
evidence in
the record. The I.G. alleged: 3/
1. The purposes of the exclusion statute are not met by a
one-year
exclusion.
2. The ALJ erred in affording little weight to the findings of
State
medical licensing authorities.
3. The Petitioner's nolo contendere plea should have been considered
an
admission of the acts charged.
4. The testimony of the Petitioner's witness on the alleged
sexual
abuse should have been discounted.
5. The evidence showed that the Oklahoma Board of Medical
Examiners
denied the Petitioner a license in 1983.
6. The ALJ should not have been persuaded respecting an
appropriate
period of exclusion by the disciplinary action taken by
Pennsylvania and
the District of Columbia.
Since the I.G. did not take exception to the specific FFCLs other
than
FFCLs 32 and 37, we affirm and adopt the unchallenged FFCLs without
any
discussion.
Analysis
1. The statutory purposes are met by a one-year exclusion.
The I.G. excepted to FFCL 37, asserting that the ALJ's imposition of
a
one-year exclusion was inconsistent with his findings that
the
Petitioner was untrustworthy concerning the practice of medicine
and
that the Petitioner had not shown remorse or accepted responsibility
for
his actions. The I.G. discussed evidence which it said showed
a
continued pattern of dishonesty by the Petitioner. According to
the
I.G., a one-year exclusion was not sufficient under the circumstances
to
meet the purpose of an exclusion by assuring the
Petitioner's
trustworthiness. The I.G. argued that, contrary to what
the ALJ had
said, the ALJ had "second-guessed" the I.G.'s exclusion
decision. I.G.
Br. at 10-13.
We first note that the I.G. misunderstood the ALJ's statements
concerning
"second-guessing." The ALJ stated that his "purpose in
hearing and
deciding whether an exclusion is reasonable is not to
second-guess the I.G.'s
exclusion determination. It is to decide
whether the determination was
extreme or excessive." ALJ Decision at
11, citing 48 Fed. Reg. 3744
(Jan. 27, 1983). The ALJ did not mean by
this that he should not
second-guess the I.G. by reaching a decision
different from that reached by
the I.G. on what is a reasonable length
of an exclusion. To the
contrary, the ALJ meant that he may properly
reach a different result.
The ALJ correctly pointed out that his review authority is established
by
statute. An exclusion hearing is a de novo review. See
section
205(b) of the Act. As the ALJ noted, the "purpose of the
hearing is not
to .determine how accurately the I.G. applied the law to the
facts
before him, but whether, based on all relevant evidence, the
exclusion
comports with legislative intent." ALJ Decision at 11.
As this Board
has previously held, the ALJ may consider all evidence on
the
reasonableness of an exclusion including that which may not have
been
available to the I.G. when the decision to exclude was made. See
Joel
Davids, DAB 1283 (1991) at 7; Vincent Baratta, M.D., DAB 1172 (1990)
at
11.
The regulation at 42 C.F.R. 1001.125(b) sets out factors to be
considered
in establishing the length of an exclusion for
program-related crimes; while
these factors do not directly apply to
permissive exclusions such as
licensure revocations, some ALJs have used
them as general guidance.
See Baratta at 11, n.7. As the ALJ
indicated, application of these
factors requires that a balance be
struck between the seriousness and program
impact of the offense and any
existing factors which may demonstrate
trustworthiness. ALJ Decision at
11. 4/
The I.G.'s arguments are based primarily on differences in the weight
the
I.G. would give to the evidence presented and the inferences the
I.G. would
draw from that evidence. As we discuss below, we reject the
I.G.'s
arguments that the ALJ erred in the weight given to specific
evidence.
We also conclude that the inferences which the I.G. would
have us draw from
certain evidence the I.G. presented are not necessary
inferences; the ALJ
could reasonably decline to draw such inferences
given the evidence in the
record as a whole.
Moreover, the I.G.'s arguments ignore factors which the ALJ
properly
considered: the lack of harm to the programs and the
remoteness of the
events of unprofessional conduct. The ALJ found that
there was no
evidence that the Petitioner had engaged in fraudulent conduct
against a
health insurer or a federally-funded health care program or that
the
Petitioner had ever engaged in conduct which is harmful to
program
recipients or beneficiaries. See FFCLs 34 and 35. The
I.G. did not
take exception to these findings, but argued that potential harm
was
sufficient. We agree with the I.G. that proof of actual harm is
not
required. The nature of the conduct and the degree of potential
for
harm are relevant, however.
The most serious finding against the Petitioner related to his sale
of
examination questions. While this arguably could have led to
some
jeopardy to program recipients or beneficiaries if it resulted in
an
incompetent practitioner obtaining a license, such potential harm
is
purely speculative. In any event, the fact that this
misconduct
occurred in 1978 certainly diminishes its importance here, as the
ALJ
found. The ALJ also noted that none of the episodes of
unprofessional
conduct alleged by the I.G. occurred later than 1987.
(While the I.G.
alleged later episodes of misrepresentation by the
Petitioner, this was
based on the I.G.'s view of certain facts, rather than
on the ALJ's
findings.)
Given the amount of time which had already elapsed since the
conduct
itself, the question could properly be viewed as what exclusion
period
was reasonably necessary in order to assure that the Petitioner
fully
appreciated the seriousness of his unprofessional conduct and would
not
engage in such conduct again. The ALJ properly determined that
an
indefinite exclusion would be excessive under the circumstances
here.
Like an action debarring a contractor from receiving any
federal
contracts, an exclusion is generally to be a time-limited
remedy. The
absence of a rational relationship between the indefinite
period of
exclusion the I.G. proposed here and the remedial purpose of the
Act is
all the more apparent when one considers that this period might
exceed
the five-year period mandated for a person convicted of
a
program-related crime under section 1128(a). See section
1128(c)(3)(B)
of the Act.
Given the ALJ's findings, the ALJ could have reasonably determined
that,
on top of the actions of the various licensure boards, a
one-year
federal exclusion would be sufficient to impress upon the Petitioner
the
importance of not engaging in unprofessional conduct and to overcome
any
lack of remorse and any failure to accept responsibility for
his
actions. The ALJ could also reasonably have determined that more
time
would be excessive, given the nature of the misconduct and the amount
of
time which had already elapsed during which no additional misconduct
had
been found.
We conclude that the ALJ did not err in determining that a
one-year
exclusion serves the remedial purpose of the Act. Accordingly,
we
affirm and adopt FFCL 37.
2. The ALJ did not err in the weight he
afforded the findings of
State medical licensing authorities.
The I.G. argued that the limited weight which the ALJ gave to the
findings
of the various state licensing authorities which had suspended
the
Petitioner's medical license effectively forced the I.G. to retry
its case
before the ALJ in order to determine the appropriateness of
the
exclusion. The I.G. argued that regulation of what constitutes
minimum
professional standards has historically been relegated to
states,
typically through boards comprised of medical practitioners.
Specifically, the I.G. asserted that the ALJ erred because, although
he
gave credence to the findings of the West Virginia Board of
Medical
Examiners for purposes of determining that the I.G. could exclude
the
Petitioner, he "apparently . . . [gave] little weight to . . .
[the]
findings and conclusions supporting the West Virginia decision."
I.G.
Br. at 13-14. The I.G. reasoned that the ALJ's logic posed a
dilemma
since the I.G. could exclude based on the actions of a state
licensing
authority but could not, "consistent with the ALJ's view, give
any
weight to the findings of the licensing authorities in determining
an
appropriate period of exclusion." I.G. Reply Br. at 5.
The I.G. argued that this was contrary to Congressional intent in
section
1128(b)(4) because it would establish "a rule that would
allow
inconsequential periods of exclusion unless the I.G. is prepared
to
expend enormous resources retrying what has already been tried by
a
state licensing authority." I.G. Br. at 14. The I.G. also
argued that
requiring the I.G. to prove the findings recited in state
documents as
the ALJ did is inconsistent with Board interpretation of
Congressional
intent. The I.G. cited the decision in John W. Foderick,
M.D., DAB 1125
(1990) at 10, which held that an ALJ "need not examine the
fairness or
propriety of the process which led to the actions of the state
boards."
5/
.At the outset, we note that the I.G.'s argument about deferring to
the
professional expertise of a licensing board conflicts to a
certain
extent with the I.G.'s later assertion that the ALJ gave too much
weight
to the findings of the Pennsylvania and District of Columbia
Boards
(which were more favorable to the Petitioner). See analysis at
section
6 below. Moreover, the I.G. again ignores the permissive nature
of an
exclusion under section 1128(b)(4) of the Act. Congress did not
require
that any exclusion be imposed based on the action of a licensing
board,
much less that the period of exclusion be coterminous with
licensure
revocation. 6/ Thus, a one-year period should not be
considered to be
"inconsequential."
Essentially, it is the I.G. which seeks to establish a blanket rule.
The
I.G. said that it bases a licensure exclusion on the decision of the
State
board which independently considers alleged misconduct, rather
than on
derivative actions of other boards. (In this case, however, the
I.G.
acknowledged that it chose the West Virginia Board's decision due
to the
happenstance that the State was within the region of the I.G.'s
office
considering the matter.) While it is reasonable to give primary
weight
to the decision of that board which gave the most careful
consideration to
the facts, there are some problems with simply adopting
the reasoning and
remedy chosen by the first board taking action.
First, that may not be the
most thoroughly considered decision. As the
I.G. recognized, a
practitioner may not have an incentive to litigate a
matter thoroughly in one
state if the practitioner plans on moving to
another state and obtaining a
license there. While it might be
beneficial to establish such an
incentive, the I.G. cannot reasonably
impose retroactively a rule assuming
full litigation before the first
board to consider a matter and automatically
adopting that board's
determination as establishing the appropriate period
for federal
exclusion. For whatever reason, the Petitioner chose not to
testify
before the West Virginia Board, but did testify before the ALJ, as
did
other witnesses who had not testified before the West Virginia
Board.
This was the primary reason the ALJ gave for according less weight
to
that Board's decision than he might otherwise have accorded it.
ALJ
Decision at 16, n.9.
The ALJ here did not require the I.G. to prove the findings of the
West
Virginia Board in determining whether section 1128(b)(4)
applied.
Rather, the ALJ considered evidence about the circumstances of
the
misconduct, relevant to evaluating the seriousness of the
Petitioner's
acts and the Petitioner's trustworthiness in general.
Thus, the ALJ
Decision is not inconsistent with the statement in Foderick
cited by the
I.G. That statement was referring to an issue concerning
State
licensure board proceedings which the petitioner had raised in
arguing
that the ALJ should have held a hearing in order to determine
whether
section 1128(b)(4) applied. 7/ While the Board did uphold as
reasonable
in that case an exclusion lasting until the petitioner reobtained
his
license from the State to which he had surrendered it, the
circumstances
were different from the circumstances here. In Foderick,
the questions
raised before the State board went directly to the petitioner's
physical
and mental competence to treat patients, and the petitioner had
agreed
that any attempt on his part to obtain a license from another
state
would reopen the disciplinary proceedings in the State to which he
had
surrendered his license.
Finally, the I.G.'s approach fails to recognize that the principle
behind
deferring to the professional expertise of a licensing board
cannot be
blindly applied to one board's decision when different boards
have evaluated
the same allegations differently. As the subsequent
actions by
Pennsylvania and the District of Columbia show, there is a
clear divergence
of professional opinion as to the seriousness of the
acts underlying the
Petitioner's suspension in West Virginia.
Consequently, we conclude that the ALJ did not err in determining
the
weight to afford to the actions of the various state
licensing
authorities.
3. The Petitioner's nolo contendere plea was
not an admission of
the act that served as the basis of the charge against
him.
A nolo contendere plea is a plea entered by leave of the court to
a
criminal complaint or indictment through which a defendant does
not
admit or deny charges, though a fine or sentence may result.
See
Black's Law Dictionary 1048 (6th ed. 1991).
The Act establishes both mandatory and permissive exclusions
for
individuals and entities convicted under a variety of
circumstances.
See, e.g., section 1128(a)(1) and (2); and section 1128(b)(1)
- (3).
Section 1128(i)(3) of the Act defines "conviction" to include
an
accepted nolo contendere plea. A nolo contendere plea to
a
program-related offense described in section 1128(a) would mandate
a
minimum exclusion of five years. See section 1128(c)(3)(B) of the
Act.
In the permissive context, there is no such mandatory minimum
for
exclusions based on a conviction. Further, the Petitioner was
not
excluded due to a "conviction." Rather, his exclusion was based on
the
revocation of his license. See section 1128(b)(4)(A) of the
Act. One
of the factors which led to that revocation was his nolo
contendere plea
to misdemeanor battery charges in West Virginia. The
ALJ found that the
Petitioner's nolo contendere plea did not amount to an
admission of
unlawful sexual contact with a coworker. See FFCL
32. The I.G. took
exception to that FFCL.
In the context of mandatory exclusions, the Board has examined
the
legislative history leading to the inclusion of nolo contendere,
and
other, pleas within the statutory definition of the term
"conviction."
See Betsy Chua, M.D. and Betsy Chua, M.D., S.C., DAB 1204
(1990); and
Carlos E. Zamora, M.D., DAB 1104 (1989). The Board has
found that
Congress intended to exclude not only individuals convicted of
criminal
wrongdoing by a judge or jury, but also those who plead nolo
contendere.
Congress was concerned that parties entering pleas to
program-related
criminal charges could escape exclusion and thus continue to
pose a
threat to Medicare or Medicaid. The statute treats a plea of
nolo
contendere to criminal charges as a conviction in
particular
circumstances because the need to protect the programs in
those
circumstances outweighs any unfairness that might result. See
Chua at
9-10; Zamora at 5-6.
The I.G.'s position that a nolo contendere plea is an admission of
the
acts charged is unsupported by either the Act or the accepted meaning
of
the term. The I.G. ignored the distinction between the substance of
a
nolo contendere plea and the purpose such a plea serves in terms
of
potential liability for an exclusion. By definition, a
defendant
pleading nolo contendere neither admits nor denies charges but is
still
subject to a possible criminal sanction. The Act merely equates
the
plea with a conviction for certain limited purposes. The amendment
to
section 1128(i)(3) of the Act, which placed a nolo contendere
plea
within the statutory definition of "conviction," was not a
national
policy initiative redefining the substance of the plea.
Moreover, even under the Act, a plea is not considered an admission of
all
allegations originally made by a complainant. Rather, it is treated
as
a conviction of the offense or offenses to which the defendant pled.
See
Bruce Lindberg, D.C., DAB 1280 (1991) at 7. The ALJ noted that
the
Petitioner admitted here to an unlawful contact with the
complaining
coworker, and thus effectively admitted to the misdemeanor
battery
charge to which he had pled. The Petitioner did not, however,
admit to
the offense of sexual abuse as the coworker had alleged it. 8/
Consequently, we conclude that the ALJ did not err in finding that
the
Petitioner's nolo contendere plea did not amount to an admission
of
unlawful sexual contact with a coworker. Accordingly, we affirm
and
adopt FFCL 32.
4. The ALJ did not err in failing to discount testimony by
the
Petitioner's witness.
The Petitioner presented a witness before the ALJ for the purpose
of
demonstrating that the coworker's charges relative to the
Petitioner's
sexual conduct were not truthful. The I.G. characterized
this
individual as a .surprise witness and asserted that its case had
been
hampered because it had been unable to counter with live testimony
of
its own. 9/
There are a number of reasons to conclude that the ALJ did not give
undue
weight to the testimony of the Petitioner's witness. At the
hearing,
the I.G. objected to this testimony on the same grounds raised
here.
However, the I.G. withdrew that objection when the ALJ indicated
that the
scope of the testimony would be limited to the contents of the
earlier
affidavit by the witness. Hearing Transcript (Tr.) at 15-17.
(The I.G.
had not objected to the admission of the affidavit. Tr. at
16.)
The in-person testimony was not allowed to stray in any
substantive respect
from the contents of the affidavit, and the witness
was subjected to
cross-examination by the I.G. Tr. 113-115.
We think that the I.G. should have anticipated that it may have had
a
stronger case if it had presented in-person testimony from the
coworker
who made the allegations, even if it did not expect the Petitioner
to
produce his witness. Her affidavit was in the record, and
the
Petitioner was identified as a witness and could have been expected
to
testify on this matter. Moreover, counsel for the I.G. withdrew
her
general objection in light of the limitations placed on the witness
by
the ALJ. The one substantive objection raised by the I.G. during
the
testimony resulted in a withdrawal of the question without an
answer.
Also, the I.G. had an opportunity to cross-examine the witness.
Thus,
even if the ALJ gave more weight to the testimony by the
Petitioner's
witness than he would have given to her affidavit, the I.G.
cannot
fairly complain at this point.
In any event, it is not clear how much the degree of weight the ALJ
may
have given this witness's testimony affected his findings. The
ALJ
merely noted that, in important respects, the testimony corroborated
the
Petitioner's testimony regarding the allegedly felonious sexual
contact
with a coworker. The ALJ could have said the same thing about
the
affidavit of the witness. Finally, even if the ALJ had discounted
her
testimony as the I.G. proposed, the ALJ may still reasonably
have
determined that the I.G. did not submit sufficient evidence to
prove
that the Petitioner engaged in an act of sexual abuse as alleged by
the
coworker, since the ALJ was not provided the opportunity to judge
the
demeanor or credibility of the coworker and the coworker had
herself
admitted in the preliminary hearing in court that she had a
social
relationship with the Petitioner. See ALJ Decision at 15-16.
Thus, we conclude that the ALJ did not err by failing to discount
the
testimony of the Petitioner's witness.
5. The ALJ did not improperly fail to consider
the 1983 action by
the Oklahoma Board of Medical Examiners.
The ALJ recognized that the Petitioner had experienced difficulties with
a
1983 license application in Oklahoma. The ALJ noted:
It is unclear from the record whether Oklahoma, in
fact,
denied Petitioner's 1983 application.
There is evidence to
suggest that Petitioner was
granted a license in Oklahoma. .
. . However,
I cannot determine whether this license
approval
relates to the same application which the Ohio
authorities found to have been denied.
ALJ Decision at 18, n.12.
The I.G. characterized this statement as a "conclusion" by the ALJ
and
took exception to it, asserting that it was not supported by
substantial
evidence. I.G. Br. at 18; I.G. Reply Br. at 9.
In spite of the I.G.'s characterization, this is not an
enumerated
conclusion upon which the ALJ Decision is based. In fact, it
is found
in a footnote to the text, not in an enumerated FFCL. See ALJ
Decision
at 3, FFCL 12. Moreover, we do not think the ALJ was obliged
to make a
finding regarding the 1983 action by Oklahoma since it at most
could
serve as cumulative evidence that some licensing boards considered
the
Petitioner's conduct to be more serious than others did. In any
event,
our own review of the exhibits cited by the ALJ, the Petitioner, and
the
I.G. confirm that the evidence on this point could reasonably
be
considered confusing. See I.G. Exhibits (Exs.) 2, 10 and 12;
Petitioner
Ex. 2.
Thus, we find no merit to the I.G.'s allegation that the ALJ reached
a
conclusion on the 1983 Oklahoma action that was not supported
by
substantial evidence.
6. The ALJ did not err in the weight he gave
the disciplinary
actions taken by Pennsylvania and the District of
Columbia.
The I.G. argued that the ALJ erred by giving undue weight to
the
disciplinary proceedings by Pennsylvania and the District of
Columbia.
Both these proceedings took place after the West Virginia action
and
resulted in a reprimand and fine for the Petitioner, rather than
a
denial or revocation of a license. Essentially, the I.G. asserted
that
these proceedings were no more than negotiated settlements. The
I.G.
argued that vital pieces of information, such as the Petitioner's
1983
license revocation in Oklahoma, and the permanent revocation of his
Ohio
license, were "negotiated away" in both proceedings. Consequently,
the
I.G. contended that the ALJ erred in interpreting the Pennsylvania
and
District of Columbia proceedings in a light favorable to the
Petitioner.
I.G. Br. at 18-19; I.G. Reply Br. 9-10.
The actions by the Pennsylvania and District of Columbia Boards
were
clearly more favorable to the Petitioner than those of other
boards.
The divergent opinions of various licensing authorities regarding
the
Petitioner's fitness to practice medicine may in part have
been
attributable to the degree of remoteness in time of the
underlying
events considered or to other factors such as the particular
State's
need for physicians. But, in determining that an indefinite
exclusion
was excessive, the ALJ properly considered the fact that
two
professional boards had determined that relatively light sanctions
were
appropriate. This clearly affects the degree of deference which
the ALJ
should give to the other boards based on their professional
expertise.
Moreover, the ALJ did not regard the Pennsylvania and District of
Columbia
determinations as conclusive, but only as a factor to be
considered. As
the ALJ noted, these Boards had the same basic record
before them that was
presented to the ALJ. Further, while the I.G.
asserted that certain
facts had been "negotiated away," that assertion
is based on the I.G.'s view
of what are the material facts and what
weight to give them.
Therefore, we conclude that the ALJ did not err by interpreting
these
Boards' actions as favorable to the Petitioner, nor by giving too
much
weight to these Boards' determinations on an appropriate
sanction.
.Conclusion
Based on the above analysis, we affirm and adopt the FFCLs relied on
by
the ALJ in reaching his decision. We sustain the ALJ Decision
imposing
a one-year exclusion on the Petitioner.
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
Act
to cover several federally-financed programs including Medicaid. We
use
the term "Medicaid" to refer to all State health care programs
from
which the Petitioner was excluded.
2. Citations to the record before the ALJ have been omitted from
this
statement of the FFCLs.
3. The I.G.'s Reply Brief stated these exceptions in a more
concise
fashion than its opening brief. Therefore, we state the
exceptions as
set out in the Reply Brief.
4. The ALJ noted that the I.G.'s Post-Hearing Brief had suggested
a
three-year exclusion as an alternative to an indefinite period.
ALJ
Decision at 12, n.8. Thus, the I.G. itself may have had second
thoughts
regarding the reasonableness of its original position.
5. The I.G. also cited two other decisions, which are not decisions
of
an Appellate Panel, but are ALJ decisions: Myron R. Wilson, Jr.,
M.D.,
DAB CR146 (1991) and Leonard P. Harman, D.O., DAB CR72
(1990). Nothing
in these decisions is inconsistent with what the ALJ
did here.
6. The I.G. has proposed regulations, which would make the
minimum
period of exclusion coterminous with the license suspension where
that
is the basis for an exclusion. See Walter J. Mikolinski, Jr., DAB
1156
(1990) at 20.
7. The ALJ recognized the Foderick principle in his decision.
ALJ
Decision at 8-9. He noted, however, that the correctness of
West
Virginia's findings may be relevant to determining whether the length
of
an exclusion imposed by the I.G. is extreme or exclusive. ALJ
Decision
at 9, n.6. Contrary to what the I.G. argued, the ALJ did not
state that
the findings of the West Virginia Board were irrelevant, nor treat
them
as such. He simply gave them less weight since they were not based
on
all the evidence he had before him.
8. The ALJ examined the transcript of the preliminary hearing on
the
allegation, as well as evidence which had not been presented at
that
hearing. The ALJ did not find sufficient evidence to show that
the
Petitioner actually perpetrated the act of sexual abuse as alleged
by
the coworker (even though he did not find the Petitioner's
explanation
of these events entirely credible.) See ALJ Decision at
15-17. The
importance of this to the ALJ was that he could therefore
not draw an
inference regarding the Petitioner's trustworthiness similar
to
inferences which had been drawn in other ALJ decisions.
9. The I.G. also noted that this witness should be
considered
prejudiced because she was the mother of the Petitioner's daughter
as
well as his friend and patient. I.G. Br. at 17, n.5. This question
goes
to the credibility of the witness -- a matter on which we give
great
weight to the ALJ's