Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Appellate Division
In the Case of:
Bernardo G. Bilang, M.D.,
Petitioner,
- v. -
The Inspector General.
DATE: January 27, 1992
Docket No. C-298
Decision No. 1295
FINAL DECISION ON REVIEW OF ADMINISTRATIVE LAW JUDGE DECISION
The Inspector General (I.G.) requested review by an Appellate Panel of
the
July 12, 1991 decision by Administrative Law Judge (ALJ) Steven
T.
Kessel. See Bernardo G. Bilang, M.D., DAB CR141 (1991)
(hereafter, ALJ
Decision). There, the ALJ affirmed the I.G.'s authority
to impose and
direct an exclusion against Petitioner under section
1128(b)(4)(B) of
the Social Security Act (Act). However, the ALJ found
that neither the
indefinite exclusion originally imposed by the I.G. nor the
three-year
exclusion which the I.G. subsequently proposed were
reasonable.
Consequently, the ALJ modified the length of the exclusion to one
year.
Based on the following analysis, we uphold the ALJ Decision.
Background
On July 10, 1990 the I.G. notified Petitioner that he was being
excluded
from participation in Medicare and State.health care programs 1/
because
he had surrendered his license to practice medicine in Florida while
a
formal disciplinary proceeding against him was pending before
the
Florida Department of Professional Regulation, Board of
Medicine
(Florida Board of Medicine). The I.G. indicated that the
exclusion
would remain in effect until Petitioner obtained a valid license
to
practice medicine in Florida. However, before the ALJ, the
I.G.
modified its position and sought a three-year exclusion.
The I.G.'s action was a permissive exclusion under section 1128(b) of
the
Act. Specifically, section 1128(b) 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been revoked or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, or
(B) who surrendered such a license while a
formal disciplinary
proceeding was pending before
such an authority and the proceeding
concerned the individual's or entity's
professional competence,
professional performance, or financial
integrity.
Petitioner timely requested a hearing before an ALJ. 2/.The ALJ
Decision
was based on the following findings of fact and conclusions of
law
(FFCLs):
1. Petitioner is a Physician who was licensed to practice medicine
in
Florida, until he relinquished his license in October 1989. 3/
2. Petitioner is presently licensed to practice medicine in Kansas.
3. On November 4, 1987, an administrative complaint was filed
against
Petitioner before the Florida Board of Medicine.
4. Petitioner was charged with: violating Florida law by failing
to
keep written medical records justifying his course of treatment of
a
patient; intentionally making a false report; intentionally
or
negligently failing to file a report or record required by state
or
federal law; willfully impeding or obstructing, or inducing
another
person to willfully impede or obstruct, the filing of a report;
and
failing to practice medicine with the level of skill or care which
is
recognized by reasonably prudent physicians as being acceptable
under
similar conditions or circumstances.
5. On April 25, 1989, a hearing officer designated by the Florida
Board
of Medicine held an administrative hearing concerning the
charges
against Petitioner.
6. On July 11, 1989, the hearing officer issued a recommended
decision
in Petitioner's case.
7. The hearing officer concluded that Petitioner had: failed to
keep
adequate written records, required by Florida law, to justify his
course
of treatment of a patient; knowingly filed a false report, in
violation
of Florida law, concerning his treatment of that patient; and
failed to
conform with the acceptable medical standards of the community,
as
defined by Florida law, in his treatment of that patient..8.
The
hearing officer concluded that the evidence before him did not sustain
a
charge that Petitioner had committed gross and repeated malpractice.
9. The hearing officer made findings of fact to support his
conclusion
that Petitioner had violated Florida law concerning the practice
of
medicine.
10. The hearing officer recommended to the Florida Board of
Medicine
that Petitioner's Florida license to practice medicine be suspended
for
two years.
11. On July 31, 1989, the attorney who prosecuted the complaint
in
Petitioner's administrative proceeding moved to increase the penalty
to
be imposed against Petitioner by the Florida Board of Medicine.
12. The motion requested that the Florida Board of Medicine,
in
addition to suspending Petitioner's license to practice medicine
in
Florida for two years, require as a condition for reinstatement
that
Petitioner pass a standardized competency examination.
13. The motion also requested that the Florida Board of Medicine
place
Petitioner on five years' supervised probation, to begin
after
Petitioner completed the term of his license suspension.
14. On October 6, 1989, Petitioner agreed to permanently relinquish
his
license to practice medicine in Florida and never to seek
reinstatement
of that license, in exchange for termination of the
administrative
proceedings before the Florida Board of Medicine.
15. On October 11, 1989, the Florida Board of Medicine accepted
the
agreement with Petitioner.
16. On January 17, 1989, Petitioner applied for a license to
practice
medicine in Kansas.
17. On June 16, 1989, the Kansas State Board of Healing Arts
(Kansas
Board of Healing Arts) granted Petitioner a permanent license
to
practice medicine in Kansas subject to the terms and conditions of
a
stipulation entered into between Petitioner and the Kansas Board
of
Healing Arts.
18. The terms and conditions of the stipulation between Petitioner
and
the Kansas Board of Healing Arts included the requirements
that
Petitioner: arrange for the monitoring and review of his
patient
treatment records by designated physicians; file monthly a list
of
controlled .substances prescribed by him; and permit investigators
or
any other designee of the Kansas Board of Healing Arts to monitor
his
practice.
19. The I.G. offered no evidence to show that Petitioner has
violated
the terms of his stipulation with the Kansas Board of Healing Arts
or
has been charged with violations of laws or regulations governing
the
practice of medicine in Kansas.
20. Petitioner surrendered his license to provide health care
in
Florida while a formal disciplinary proceeding was pending before
the
Florida Board of Medicine concerning Petitioner's
professional
competence or professional performance. Findings 3-15.
21. The Secretary of the Department of Health and Human
Services
(Secretary) had authority to impose and direct an exclusion
against
Petitioner from participating in Medicare and Medicaid, pursuant
to
section 1128(b)(4)(B) of the Act. Social Security Act,
section
1128(b)(4)(B).
22. The Secretary delegated to the I.G. the authority to
determine,
impose, and direct exclusions pursuant to section 1128 of the
Act. 48
Fed. Reg. 21662 (May 13, 1983).
23. On July 10, 1990, the I.G. excluded Petitioner from
participating
in Medicare and directed that he be excluded from participating
in
Medicaid, pursuant to section 1128 of the Act, effective 20 days
from
the date of the letter.
24. The I.G. excluded Petitioner from participating in Medicare
and
directed that he be excluded from participating in Medicaid
until
Petitioner obtained a valid license to practice medicine in
Florida.
25. The effect of the exclusion imposed and directed against
Petitioner
by the I.G. is permanently to exclude him from participating in
Medicare
and Medicaid. Findings 14, 24.
26. The I.G. has requested that the exclusion imposed and
directed
against Petitioner be modified to a term of three years.
27. The remedial purpose of section 1128 of the Act is to protect
the
integrity of federally-funded health care programs and the welfare
of
beneficiaries and recipients of such programs from individuals
and
entities who have.been shown to be untrustworthy. Social Security
Act,
section 1128.
28. The I.G. has not shown that a three-year exclusion of
Petitioner
from participating in Medicare and Medicaid is reasonably
necessary to
satisfy the remedial purpose of section 1128 of the Act.
29. The remedial purpose of section 1128 of the Act will be
satisfied
in this case by modifying the exclusion imposed and directed
against
Petitioner to a term of one year.
ALJ Decision at 2-6.
The I.G.'s Exceptions
The I.G. took specific exception to FFCLs 28 and 29, in which the
ALJ
determined that a one-year, rather than a three-year, exclusion
would
reasonably satisfy the remedial purpose of section 1128 of the
Act.
Petitioner did not file a brief in response to the I.G.'s
exceptions.
Rather, Petitioner relied on his submissions to the ALJ.
See
Confirmation of Telephone Conversation (November 26, 1991).
The I.G. argued that the ALJ's conclusion that the I.G. had failed to
show
a meaningful basis for the proposed three-year exclusion was based
on two
erroneous determinations: (1) that, in the context of
considering the
reasonableness of the length of the exclusion, the ALJ
could properly allow
Petitioner to challenge the state administrative
action underlying the
exclusion; and (2) that the evidence did not
justify the imposition of a
lengthy exclusion. As we discuss below, we
conclude that the ALJ did
not err in reaching either of these
determinations. As we also explain
below, this does not mean that we
agree entirely with the ALJ's analytical
approach in considering the
hearing officer's report. We simply are not
persuaded by the I.G.'s
arguments that the I.G. has demonstrated a reasonable
basis for the
three-year exclusion or that the purposes of the Act cannot be
met by
the one-year exclusion the ALJ imposed.
Analysis
1. The ALJ Did Not Err in Permitting Petitioner to Challenge the
State
Action.
The I.G. argued that the decision in Christino Enriquez, M.D., DAB
CR119
(1991), on which the ALJ relied, "distinguished a challenge to the
IG's
authority to.exclude, where a petitioner could not deny that he
was
guilty of that [offense of] which he had been convicted, and
the
determination of the reasonableness of an exclusion, where a
petitioner
could offer evidence concerning his culpability." I.G. Brief
(Br.) at
4. The I.G. contended that the ALJ had erred in drawing
this
distinction. The I.G. argued that this distinction was not
supported by
the Act and its legislative history, nor by the standard of
review to be
applied in exclusion cases. The I.G. noted that section
1128(b)(4)(B)
was designed to prevent practitioners from avoiding exclusions
by
surrendering their licenses in the face of state proceedings
against
them. The I.G. argued that Congress intended a
presumption of
culpability to attach to a practitioner surrendering a license
as if
that person had been found guilty at the end of a contested
license
revocation proceeding, citing Myron W. Wilson, Jr., M.D., DAB
CR146
(1991). Further, the I.G. cited the decision of this Board in John
W.
Foderick, M.D., DAB 1125 (1990), to support its contention that
since
the Act required the I.G. to rely on state board actions and did
not
envision an examination of the propriety of the processes leading to
the
state action, the ALJ could not consider the propriety of the
underlying
process. I.G. Br. at 3-5.
The I.G. misstates the holding in Enriquez. That decision stated:
It is a settled principle that a petitioner cannot
challenge the
I.G.'s authority to exclude him by
denying that he is guilty of
that [offense of] which he has been convicted. .
. . The I.G.'s
authority to exclude a party under section 1128(a)(1)
arises by virtue
of that party's conviction of a criminal offense as
described in the
Act. A party's actual guilt or innocence is not a
relevant factor to be
considered in deciding whether the I.G. has authority
to impose or
direct an exclusion pursuant to section 1128(a)(1).
However, the issue of whether an exclusion is
reasonable [in
length] is separate from the issue of
whether the I.G. has
authority to impose and direct an exclusion. A
party may offer evidence
at an exclusion hearing concerning that party's
culpability for the
offense of which he or she was convicted. That
evidence relates to
trustworthiness and is therefore relevant. See 42
C.F.R.
1001.125(b)(4), (6).
Enriquez at 11-12 (citations and footnote omitted)..Contrary to what
the
I.G. argued, this sets out a reasonable distinction, which also
applies
in the context of a licensure surrender.
This distinction is not inconsistent with the Act. In drafting
section
1128(b)(4)(B) of the Act, Congress was concerned that individuals
not
evade an exclusion by the expedient of surrendering their
license.
Congress recognized the probability that providers who surrender
their
licenses to provide health care in the face of disciplinary
proceedings
ordinarily do so to avoid the stigma of an adverse finding.
See S. Rep.
No. 109, 100th Cong., 1st Sess. 2, reprinted in 1987 U.S.
Code Cong. &
Admin. News 682, 688. The scheme Congress established
in section 1128
permits the Secretary to conserve program resources by
relying where
possible on other federal or state court or administrative
findings.
However, Congress did not require imposition of an exclusion on
all
providers who surrendered their licenses, nor mandate any
particular
period of exclusion in such circumstances. This grant of
discretion to
the Secretary is inconsistent with the I.G.'s apparent position
that the
surrender of a license creates a presumption of culpability which
cannot
be rebutted for any purpose.
The ALJ correctly concluded that guilt or culpability is irrelevant
in
determining whether the I.G. has authority under section 1128(b)(4)
to
exclude an individual. Also, the fairness of the state process
is
irrelevant for this purpose. This lack of relevance is the
underpinning
of decisions in which the Board has determined that ALJs did not
err in
excluding evidence on the fairness of the state process offered as
a
basis for contesting the I.G.'s authority to impose an exclusion.
See
Leonard R. Friedman, M.D., DAB 1281 (1991); Andy E. Bailey, C.T.,
DAB
1131 (1990); and Foderick. 4/ .On the other hand, evidence
on
culpability is relevant in determining the length of an exclusion,
and,
therefore, the ALJ's distinction is supported by the standard of
review
established in the Act. As this Board stated in Eric Kranz,
M.D., DAB
1286 (1991):
The ALJ['s] . . . 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 the
legislative intent." . . . 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. . . .
Kranz at 7-8 (citations omitted).
If Congress had intended the state action to be determinative for
federal
purposes, Congress would not have made the exclusion permissive,
nor have
provided for de novo review.
2. The ALJ's Treatment of the Hearing Officer's Report Was Flawed.
While we do not fully agree with the I.G., we do consider the
ALJ's
analytical approach to examining the record before him to be flawed
in
some respects.
The ALJ said that he discounted the probative value of the
hearing
officer's report for the following reasons: (1) the ALJ did not
have
the record of the proceedings before the hearing officer; (2)
the
hearing officer's findings were never adopted by the Florida Board
of
Medicine and thus did not constitute a final action; (3)
Petitioner
disputed the veracity and accuracy of the hearing officer's
report; (4)
the hearing officer's report indicated that there was
conflicting
evidence presented. ALJ Decision at 12.
On the other hand, the ALJ supported his determination that a
one-year
exclusion was warranted by stating that the legislative history
of
section 1128(b)(4)(B) "amounts to a legislative finding that
an
inference of culpability ought to attach to those providers who
resign
their licenses in the face of state disciplinary actions." Id.
at
14..The I.G. argued that this treatment of the report was erroneous
and
inconsistent. See I.G. Br. at 5-7, citing ALJ Decision at 15.
In our view, the question of what weight to give the hearing
officer's
report depends on the issue being addressed. In determining
whether
Petitioner surrendered his license while a formal
disciplinary
proceeding was pending which concerned his "professional
competence,
professional performance, or financial integrity," the hearing
officer's
report is direct evidence on the issue of what the proceeding
concerned,
and should be given substantial weight.
In determining the length of an exclusion to be imposed, however,
the
hearing officer's report is not direct evidence of the
underlying
conduct of which Petitioner was accused. The hearing
officer's report
contains findings relevant to factors, such as the nature of
the conduct
concerned and the degree of culpability, which should be
considered in
determining the reasonableness of the length of the
exclusion. We
conclude that Petitioner's surrender of his license, in
the face of
these findings, gives rise to an inference that these findings
are
accurate. As the ALJ apparently recognized, not drawing such
an
inference would be inconsistent with congressional intent expressed
in
section 1128(b)(4)(B). Thus, the question the ALJ should have
addressed
was whether Petitioner had presented to the ALJ evidence sufficient
to
overcome the inference that the hearing officer's findings
were
accurate. Placing the burden on Petitioner to show the inaccuracy
of
the findings is consistent with the general principle that a
petitioner
has the burden of proving factors which would tend to reduce
the
exclusion period.
Petitioner's principal challenge to the hearing officer's report
consisted
of mere allegations that the report's findings were incorrect.
For example,
Petitioner argued that (contrary to what the hearing
officer found)
Petitioner's ordering "Comfort Measures Only" for the
patient in question
after her condition had deteriorated was consistent
with accepted medical
practice. Petitioner referred to studies
published in professional
journals which, he said, supported his
argument. However, he did not
provide copies of those reports to
substantiate his position. Such
unsupported assertions are not
sufficient to shift the burden to the.I.G. to
prove the accuracy of the
hearing officer's findings. 5/
If the hearing officer failed to consider evidence which was before
him,
Petitioner had the burden not only to point this out, but to submit
any
part of the state administrative record on which he was relying. To
the
extent that the ALJ charged the I.G. with the burden of producing
the
record, that was inappropriate under the circumstances here.
The mere fact that the hearing officer had conflicting expert
testimony
before him is not sufficient to undercut his findings, so long as
he
resolved those conflicts in a reasonable way. Moreover, the
hearing
officer's resolution of the conflicting testimony is entitled to
some
deference to the extent it depended on his observation of
those
witnesses. The hearing officer's resolution, in his recommended
order,
of the conflicting expert testimony appears reasonable. J. Ex.
4. More
than one expert testified against Petitioner. Further,
even the expert
offered by Petitioner testified that the "Comfort Measures
Only" order
entered by Petitioner did not meet minimally acceptable standards
in the
medical profession. If the hearing officer's discussion of
this
evidence ignored testimony favorable to Petitioner's position,
the
burden was on Petitioner to bring that testimony to the ALJ's
attention.
While Petitioner did cite some testimony before the hearing
officer,
that testimony addresses the question of whether resuscitative
efforts
would have benefitted the patient, not whether.Petitioner met
minimally
acceptable standards. Moreover, the hearing officer
considered this
testimony. 6/
The hearing officer's report, in addition to making findings,
also
contains a recommendation of a two-year suspension which reflects
his
evaluation of the seriousness of Petitioner's conduct and of what
the
consequences should be for state licensure purposes. In this
regard,
the ALJ properly did not give controlling weight to the
hearing
officer's opinion. Indeed, the I.G. did not treat the hearing
officer's
opinion as controlling, but proposed an exclusion period longer
than two
years. The permissive nature of an exclusion under section
1128(b)(4)
gives the Secretary discretion to impose an exclusion which
reflects an
opinion different from that reflected in a state licensure
action.
While the Secretary may choose to rely on the medical expertise of
a
state licensing authority, the Secretary is not required to do so.
We agree with the ALJ that an opinion on medical matters would have
more
weight if rendered by the Florida Board of Medicine than if
solely
issued by a hearing officer, even though the hearing officer
heard
expert testimony. Also, as we stated in Kranz, where there
are
conflicting evaluations by various state licensing authorities, this
may
affect the weight properly given to any one authority. Kranz at
17.
The weight given to any one authority may depend on a number of
factors,
including the nature of its decision, the information it had before
it,
and the extent to which the particular state was influenced
by
non-federal considerations such as its own need for physicians in
rural
areas.
In sum, where a hearing officer's report is issued pursuant to a
hearing
at which both parties had an opportunity to (and did) present
expert
testimony, and where a petitioner has surrendered his license
in
response to the report, the I.G. is entitled to rely on findings in
that
report relevant to the reasonableness of the length of the
exclusion
unless the petitioner submits evidence sufficient to overcome
the
inference that those findings are accurate. Mere assertions that
the
report is inaccurate or general allegations of bias are not
sufficient
to overcome the inference. On the other hand, an opinion in
such a
hearing officer's report on what the effect of the conduct found
ought
to be for licensure.purposes is not conclusive in determining
the
reasonableness of the length of an exclusion for federal purposes.
While we find the ALJ's analytical approach to the hearing
officer's
report to be flawed, this flaw did not lead to a clearly
erroneous
result here. The ALJ stated that he "discounted" the hearing
officer's
report, but set a period of exclusion which he noted would have
expired
at approximately the same time as the one-year exclusion the
ALJ
directed.
3. The ALJ Did Not Err in Concluding That a Three-Year Exclusion
Was
Extreme.
Arguing for a three-year exclusion, the I.G. noted that Petitioner
was
alleged to have failed to keep medical records justifying his course
of
treatment; to have filed a false medical report; and to have failed
to
practice medicine at a level of care recognized as reasonably
prudent.
The I.G. further contended that the serious nature of
Petitioner's
offense was underscored by the hearing officer's finding
that
Petitioner's treatment fell below the minimum standard of care.
The
I.G. argued that the nature of Petitioner's offenses evidenced
his
potential threat to Medicare and Medicaid beneficiaries. Moreover,
the
I.G. reiterated that Petitioner had surrendered his license after
a
motion by the Florida Department of Professional Regulation to
increase
the recommended penalty. I.G. Br. at 9-10.
The I.G. also challenged Petitioner's trustworthiness based on an
earlier
state action brought against the Petitioner. 7/ There,
Petitioner was
alleged to have failed to keep adequate records
justifying treatment; to have
violated Florida's drug dispensing law;
and to have engaged in gross or
repeated malpractice. Petitioner
entered into a settlement of that
action which, among other sanctions,
resulted in his being placed on
probation in November 1987. See J. Exs.
9 and 10. The I.G. noted
that in spite of these sanctions, Petitioner
stood accused of similar
offenses only a short time later. I.G. Br. at
11-12.
Additionally, the I.G. challenged the ALJ's reasoning that Petitioner
was
unlikely to repeat his past mistakes.since he was subject to peer
supervision
as a condition of being granted a medical license in Kansas.
Noting
Petitioner's history, the I.G. voiced skepticism that such
supervision would
protect patients in circumstances such as those at
issue here, where
Petitioner was giving telephone orders. The I.G. also
noted that
Kansas' need for rural physicians might reasonably be
expected to cause that
State to view Petitioner's history differently
from the I.G., whose concern
was with protecting federal programs and
their beneficiaries. Id. at
12-14.
Finally, the I.G. categorized Petitioner's evidence as consisting
of
character references, or being otherwise self-serving and
irrelevant.
Such evidence, the I.G. argued, would not justify a reduction of
the
length of exclusion. Id. at 14-15.
The I.G.'s arguments do not persuade us that the ALJ erred in
concluding
that a three-year exclusion was extreme, nor in concluding that
a
one-year exclusion would be sufficient to accomplish the purposes of
the
Act.
The I.G. relied on the substance of the hearing officer's report
as
showing the serious nature of the charges against Petitioner.
However,
as the ALJ noted, the hearing officer found that the charge of
gross
malpractice was not sustained by the evidence; instead, he found
a
failure to adhere to minimal acceptable standards of medical
practice.
Moreover, contrary to what the I.G. suggested, the hearing officer
did
not find that Petitioner should have gone into the hospital to
examine
the patient.
Also, the I.G. ignored the fact that the hearing officer recommended
that
Petitioner's license be suspended for a period of only two years
(which the
ALJ noted would have expired at approximately the same time
as the one-year
exclusion the ALJ directed). The I.G. cited the motion
by the Florida
Department of Professional Regulation to increase the
recommended
penalty. The I.G.'s reliance on that motion is
entirely
misplaced. Under the terms suggested in the motion, Petitioner
would
not have been suspended for any additional period of time.
Rather,
Petitioner would have been required to pass a test focusing on
his
clinical skills as a precondition to reinstatement of his license
and
would have been subject to a five-year probationary period
following
reinstatement. See J. Ex. 5. Moreover, the motion was
made by the
attorney who prosecuted the case before the hearing officer
and
therefore was not an impartial evaluation of what the penalty ought
to
be..The I.G. also cited the fact that Petitioner's license had
been
placed in probationary status in 1987 for conduct involving
drug
prescriptions for one of Petitioner's patients. However, the
hearing
officer was aware of that fact and considered it in his
recommended
order. Moreover, that conduct ended in 1986, over five
years before the
ALJ Decision, and was not similar enough to the conduct
found in the
hearing officer's report to constitute a pattern of conduct.
Finally, we note that the I.G.'s argument ignores the fact that a
key
element in the ALJ's analysis was that, in spite of the fact
that
Petitioner was being monitored in his practice in Kansas, there was
no
meaningful evidence of any problem subsequent to his Florida hearing
(a
period of over two years). As the I.G. argued, the conditions
placed
upon Petitioner's medical license in Kansas may not entirely
protect
from the type of conduct found in Florida; however, the fact that
no
further problem was found in spite of the monitoring occurring in
Kansas
is relevant in evaluating Petitioner's competence and, therefore,
his
trustworthiness in providing medical services.
Given these facts, we sustain the ALJ Decision modifying the term
of
exclusion imposed upon Petitioner.
Conclusion
Based on the analysis above, we affirm the ALJ Decision imposing
a
one-year exclusion on Petitioner. We affirm and adopt each of the
FFCLs
in that decision.
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
Petitioner was excluded.
2. The ALJ initially scheduled an in-person evidentiary
hearing.
However, the parties ultimately agreed to forego an in-person
hearing
and to present their arguments through written briefs and
documentary
evidence. See ALJ Decision at 1. Included among the
parties'
submissions to the ALJ was a joint appeal file. The ALJ cited
those
exhibits as "J. Ex. X." Id. at 2, n.2. We retain that
format here.
3. Citations to the record before the ALJ have been omitted from
this
statement of FFCLs.
4. For example, in Friedman, Petitioner contended that the
procedures
and standards used by two states in revoking his license
violated
constitutional and common law principles and therefore were not a
basis
for exclusion under section 1128(b)(4)(A) of the Act. The Board
held
that the basis for an exclusion under that section is the fact of
a
revocation by a state licensing authority for specified reasons,
and
that collateral attacks on the state process are therefore irrelevant
to
the issue of whether the I.G. had the authority to exclude
Petitioner
under that section. Id. at 9-11.
5. Petitioner also raised the possibility of bias against him in
the
Florida medical community. Principally, he alleged that the
Florida
charges against him were the result of a vendetta by his peers, based
on
his participation in a health maintenance organization. Petitioner
Br.
at 2 (unnumbered). The ALJ found no evidence that the
misconduct
charges against Petitioner were levied by his peers.
Further, the ALJ
noted that, even assuming there was some merit to
Petitioner's
arguments, an impartial hearing examiner had made an adverse
finding as
to Petitioner's method of practice and ethics. ALJ Decision
at 14-15.
Thus, Petitioner's allegation of bias does not discredit the
hearing
officer's findings.
6. The hearing officer's report noted that the patient's "chances
of
survival were very small." J. Ex. 4 at 20.
7. This action was brought against Petitioner in January 1987 based
on
conduct