Department of Health and Human Services DEPARTMENTAL APPEALS BOARD Civil Remedies Division |
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IN THE CASE OF | |
Rodolfo Byrne, M.D., |
DATE: July 25, 2001 |
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The
Inspector General
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Docket No.C-00-516 Decision No. CR800 |
DECISION | |
DECISION I sustain the determination of the Inspector General's
(I.G.) to exclude Rodolfo Byrne, M.D., Petitioner, from participation
in the Medicare, Medicaid, and all federal and State health care programs
(Medicare and Medicaid programs), until Petitioner's eligibility to participate
in the New York State Medical Assistance program (State Medicaid program)
is reinstated. I base my decision upon evidence that proves that the I.G.
excluded Petitioner from the Medicare and Medicaid programs because he
was excluded, suspended, or otherwise sanctioned by the New York State
Department of Social Services (DSS), the State regulatory agency responsible
for the State Medicaid program, for reasons bearing on his professional
competence, professional performance, or financial integrity. Additionally,
I find that, when the I.G. imposes an exclusion concurrent with a remedy
imposed by any State Medicaid program regulatory authority, there is no
issue of reasonableness and law mandates such an exclusion. I. BACKGROUND On March 31, 2000, the I.G. notified Petitioner that he
was being excluded from participation in the Medicare and Medicaid programs.
The I.G. explained that Petitioner's exclusion was authorized under section
1128(b)(5) of the Social Security Act (Act) because "[he has] been excluded,
suspended or otherwise sanctioned by the New York State Department of
Social Services, a Federal or State health care program, for reasons bearing
on [his] professional competence, professional performance, or financial
integrity." Additionally, the I.G. advised Petitioner that his exclusion
would "remain in effect until [he has] been reinstated to the health care
program that originally took the action against [him]." On May 22, 2000, Petitioner requested a hearing and the
case was assigned to me for decision. The parties agreed that the case
could be decided based on their written submissions and that an in-person
hearing was not necessary. The parties have each submitted written briefs
and proposed exhibits. The I.G. filed his brief (I.G. Br.) in support of the
exclusion accompanied by four proposed exhibits (I.G. Exs. 1 - Ex. 4).
Petitioner submitted a response brief (P. Br.) and no exhibits. In the
absence of an objection, I am admitting I.G. Exs. 1 - 4 into evidence.
On April 26, 2001, the parties jointly filed a stipulation relating to
the stay of the Petitioner's underlying exclusion from the State Medicaid
program that I will label and admit into evidence as ALJ Ex. 1. I base
my decision in this case on these exhibits, the applicable law, and the
arguments of the parties. II. APPLICABLE LAW Pursuant to section 1128(b)(5) of the Act, the I.G. may
exclude -
Pursuant to section 1128(c)(3)(E) of the Act, under subsection
1128(b)(5), "the period of the exclusion shall not be less than the period
during which . . . the individual or the entity is excluded or suspended
from a Federal or State health care program." Before 1996, the Act provided
no criteria for establishing the length of exclusions for individuals
or entities excluded pursuant to section 1128(b)(5). Under 1996 amendments
to the Act [section 212 of the Health Insurance Portability and Accountability
Act of 1996 (Pub. L. 104-191)],
no issue of reasonableness exists where the exclusion imposed by the I.G.
is concurrent with the time that the individual or the entity is excluded
or suspended from a federal or State health care program. A concurrent
exclusion, as in Petitioner's case, is the minimum required by law. III. FINDINGS OF FACT AND CONCLUSIONS
OF LAW 1. At all times relevant to this case, Petitioner was
a physician providing medical services to eligible Medicaid patients in
the State of New York. I.G. Ex. 3 at 3. 2. Petitioner's exclusion from the State Medicaid program
by DSS was based on an audit of 19 medical records of Petitioner's patients
from September 1994 through August 1995. I.G. Ex. 2 at 2. 3. The audit found limited documentation of patient histories
and physical examinations, a failure to document the patients' progress
or response to treatment, an excessive ordering of medications without
documented medical necessity, and billing for services not supported by
documentation in the medical records. Id. 4. On February 6, 1997, DSS notified Petitioner that it
had determined to exclude him from the State Medicaid program for two
years. Id. 5. DSS also notified Petitioner that this exclusion would
deny him payment under the State Medicaid program for any care, services
or supplies furnished from the effective date of the exclusion until his
reinstatement into the program. Id. 6. In response to DSS's notice of exclusion, Petitioner
requested a hearing before an administrative law judge of the New York
State Bureau of Adjudication (Adjudication Bureau). I.G. Ex. 3 at 3. 7. Petitioner requested and obtained a stay of his exclusion
pending the decision of the Adjudication Bureau. ALJ Ex. 1. 8. On February 8, 1999, the Adjudication Bureau issued
a decision affirming Petitioner's two-year exclusion from the State Medicaid
program. I.G. Ex. 3 at 25. 9. Petitioner's two-year exclusion from the State Medicaid
program became effective on February 8, 1999. ALJ Ex. 1.
10. The totality of the circumstances outlined by the
I.G. and as found by the Adjudication Bureau is sufficient to conclude
that Petitioner was excluded from participation in the State Medicaid
program for reasons bearing on his professional competence, professional
performance, or financial integrity. I.G. Ex. 1; I.G. Ex. 2 at 2; I.G.
Ex. 3 at 8. 11. Petitioner's exclusion from participation in the State
Medicaid program is an exclusion or suspension as those terms are used
in section 1128(b)(5)(B) of the Act. 12. The State Medicaid program is a State health care
program within the meaning of sections 1128(h) and 1128(b)(5)(B) of the
Act. 13. Pursuant to section 1128(b)(5)(B) of the Act, the
Secretary [of the Department of Health and Human Services] may exclude
from participation in any Medicare and Medicaid program any individual
or entity which has been suspended or excluded from a State health care
program. 14. The Secretary has delegated the duty to impose and
direct exclusions to the I.G. pursuant to section 1128 of the Act. 48
Fed. Reg. 21,662 (1983). 15. On March 31, 2000, the I.G. advised Petitioner that
he was being indefinitely excluded from participation in the Medicare
and Medicaid programs pursuant to section 1128(b)(5) of the Act for reasons
bearing on his professional competence, professional performance or financial
integrity. I.G. Ex. 1. 16. Petitioner is excluded from the Medicare and Medicaid
programs until he has been reinstated to the State health care program
that originally took the action against him. I.G. Ex. 1. 17. An exclusion imposed pursuant to section 1128(b)(5)
of the Act will not be for a period of time less than the period during
which the individual or entity is excluded or suspended from a federal
or State health care program. 42 C.F.R. � 1001.601(b)(1). 18. The I.G. has no discretion to impose an exclusion
against Petitioner that is shorter than the period during which Petitioner's
license to provide health care is revoked, suspended or surrendered. Act,
section 1128(c)(3)(E). IV. PETITIONER'S CONTENTIONS Petitioner does not dispute that he was excluded from
the State Medicaid program, or that the state's exclusion is within the
scope of section 1128(b)(5) of the Act. He asserts that the I.G.'s exclusion
is discretionary. P. Br. at 1. Indeed, the Secretary's authority under
section 1128(b) of the Act is styled as "Permissive Exclusion." Petitioner
also contends that the length of the exclusion is not reasonable because
his readmission into the State Medicaid program is contingent on his participation
in the Medicare and Medicaid programs and that his readmission into the
Medicare and Medicaid programs is contingent on his participation in the
State Medicaid program. Thus, Petitioner argues that he is in a "catch-22"
situation from which there is no way back into the State Medicaid program
or the Medicare and Medicaid programs. P. Br. at 2. Petitioner further
requests that his term of indefinite exclusion be modified to reduce it
to a term-certain of two years. Id. V. DISCUSSION
Petitioner does not dispute the I.G.'s claim that his
exclusion from the State program was for reasons bearing on his professional
performance, professional competence or financial integrity. (P. Br. at
1). I find that upon review of the totality of the circumstances shown
in the record, the I.G. has established that Petitioner's exclusion from
the State Medicaid program was revoked for reasons bearing on his professional
competence, professional performance or financial integrity I.G. Exs.
2, 3. An examination of the events associated with Petitioner's exclusion
by DSS underscores this conclusion. On February 6, 1997, DSS sent Petitioner
a notice (DSS Notice) in which it determined that Petitioner had violated
certain provisions of the State regulations of the State Medicaid Program.
I.G. Ex. 2 at 1. After a peer review of 19 medical records of Petitioner's
Medicaid patients, DSS determined that there was: limited documentation
of patient histories and physical examinations, failure to document the
patient's progress or response to treatment, excessive ordering of medications
without documented medical necessity, and billing for services not supported
by documentation in the medical records. Id. at 2.
Petitioner appealed the determination by DSS. The case was tried de novo with live testimony before the Adjudication Bureau. On February 8, 1999, the Adjudication Bureau affirmed the DSS decision. The Adjudication Bureau found inter alia that "care for most of these [19] patients appeared to be poor at best and [from] potentially to actually dangerous in others." I.G. Ex. 3 at 4. The Adjudication Bureau pointed out that "[Petitioner's] participation in the Medicaid program is contractual . . . [A] provider of Medicaid Services has no vested right to continued participation . . . [S]uch participation is a privilege . . . [Petitioner has] abused this privilege." I.G. Ex. 3 at 25.
Petitioner, disputes the I.G.'s authority to exclude Petitioner
for an indeterminate time instead of his suggested time certain of two
years. P. Br. at 2. However, the Act at section 1128(c)(3)(E), requires
that if an individual is excluded pursuant to section 1128(b)(5), the
duration of that exclusion cannot be for less than the period during which
the individual or the entity is excluded or suspended from the federal
or State health care program. Thus, section 1128(c)(3)(E) of the Act mandates
that the length of the exclusion must be coterminous with the term of
the revocation or suspension of the individual's participation in the
State program. Since Petitioner was excluded from participation in the
State program for two years, the Act requires that his period of exclusion
cannot be less than the period during which Petitioner's exclusion from
the State Medicaid program is in effect. Petitioner must be readmitted
to the State Medicaid program before he can be considered for reinstatement
as a participant in the Medicare and Medicaid programs. Petitioner complains that he is trapped in a "catch-22" situation. Petitioner has not shown that the avenues of reinstatement offered by the State and the I.G. combine in some manner to make the term of the his exclusion unreasonable. First, his exclusion from the State Medicaid program has a limited time duration of two years, after which Petitioner may request reinstatement under the procedures set forth in his notice of exclusion from the State Medicaid program. I.G. Ex. 2 at 3. Second, the I.G.'s notice of exclusion informs Petitioner, "If, at the end of the period assessed to you by the [State Medicaid program], you are denied reinstatement [in the State Medicaid program] based solely on the fact that you remain excluded by [the I.G.], then the [I.G.] will consider a request for reinstatement. I.G. Ex. 1 at 1.
I do not have the authority to modify a mandatory term
of exclusion. It is clear that administrative law judges are limited in
the types of claims that they may adjudicate. See 42 C.F.R. � 1005.4(c)(1)
and (5). Administrative law judges have no statutory or regulatory authority
to find invalid or refuse to follow federal statutes or regulations. VI. CONCLUSION I conclude that the I.G. was authorized to exclude Petitioner pursuant to section 1128(b)(5) of the Act. I conclude also that the term of exclusion imposed by the I.G. is mandated by section 1128(c)(3)(E) of the Act. |
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JUDGE | |
Jose A. Anglada Administrative Law Judge
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