SUBJECT:

Manuel Roque Carranto,

Petitioner,

The Inspector General.

DECISION

I sustain the determination of the Inspector General (I.G.) to exclude Manuel Roque Carranto (Petitioner) from participation in Medicare, Medicaid, and all federal health care programs, as defined in section 1128B(f) of the Social Security Act (Act), at a minimum until Petitioner's license to provide health care in the State of California is reinstated. I base my decision on evidence that proves Petitioner lost his licence to practice medicine as a physician in the State of California for reasons based on professional competence, professional performance, or financial integrity within the meaning of section 1128(b)(4)(A) of the Act. Moreover, having concluded that the I.G. is authorized to exclude Petitioner based on the loss of his medical license, I am required by statute to sustain the I.G.'s determination that Petitioner remain excluded until his license is reinstated by the State of California.

I. Background

By letter dated April 29, 2005, the I.G. notified Petitioner that he was being excluded from participation in Medicare, Medicaid, and all federal health care programs pursuant to section 1128(b)(4) of the Act, 42 U.S.C. � 1320a-7(b)(4). The letter informed Petitioner that his exclusion would remain in effect until he is reinstated and after he has regained his license as a physician and surgeon in California. Petitioner timely filed a request for a hearing. ⁽¹⁾ Although a prehearing telephone conference was scheduled in this case, Petitioner did not provide a telephone number where he could be reached. Petitioner responded to the ensuing Order to Show Cause issued on July 21, 2005. Given Petitioner's difficulties in participating in a telephone conference due to his lack of telephone service, his medical problems, and his lack of legal counsel, I agreed to dispense with a telephone conference in this case. See Order of September 19, 2005. Thereafter, pursuant to the briefing schedule I established, the I.G., on November 17, 2005, submitted The Inspector General's Motion for Summary Affirmance and The Inspector General's Brief in Support of Motion for Summary Affirmance. The I.G. attached four proposed exhibits (I.G. Ex. 1- 4) to his brief. Petitioner submitted letters on August 30, 2005 and November 14, 2005. He submitted no proposed exhibits. The I.G. had until January 3, 2006, to request leave to file a reply but chose not to. Thereafter, the record was closed. I admit the I.G.'s proposed exhibits into the record without objection.

II. Issue

The legal issue before me is whether the I.G. has a basis for excluding Petitioner from participating in Medicare, Medicaid, and all other federal health care programs pursuant to section 1128(b)(4) of the Act.

Pursuant to section 1128(b)(4) of the Act, the I.G. may exclude an 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 or the right to apply for or renew 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.

Pursuant to section 1128(c)(3)(E) of the Act, the length of an exclusion under section 1128(b)(4) -

shall not be less than the period during which the individual's or entity's license to provide health care is revoked, suspended, or surrendered, or the individual or entity is excluded or suspended from a Federal or State health care program.

IV. Analysis

I make the following findings of fact and conclusions of law. My findings and conclusions are set forth as numbered headings in bold type. My analysis in reaching each finding and conclusion is set out in the paragraphs which follow each numbered finding.

1. Summary judgment is appropriate in this case.

Summary disposition is appropriate where either: there are no disputed issues of material fact and the only questions that must be decided involve application of law to the undisputed facts; or, the moving party must prevail as a matter of law even if all disputed facts are resolved in favor of the party against whom the motion is made. A party opposing summary disposition must allege facts which, if true, would refute the facts relied upon by the moving party. See, e.g., Fed. R. Civ. P. 56. After considering the submitted arguments and evidence, I find that summary judgment is appropriate, and no hearing is necessary in this case for a full and fair disposition. This is because there are no relevant material facts in dispute.

2. Petitioner's license to practice health care as a physician and surgeon was revoked by a State licensing authority.

On February 3, 2003, Petitioner was interviewed by a representative of the Medical Board of California. He agreed to voluntarily undergo a mental examination. Thereafter, a psychiatrist performed an evaluation of Petitioner on February 12, 2003, and concluded that Petitioner suffered from Paranoid Schizophrenia affecting his judgment, behavior and thinking, and representing a danger to patients. I.G. Ex. 1, at 4. On April 21, 2003, the Medical Board of California filed an 'accusation' against Petitioner before the Division of Medical Quality alleging that Petitioner was subject to disciplinary action under section 822 of the California Business and Professions Code on the basis that Petitioner's ability to practice medicine safely was impaired as a result of Petitioner's mental illness and requesting that Petitioner's physician's and surgeon's certificate be revoked or suspended.

I.G. Ex. 1. The Medical Board of California (Medical Board) is a State licensing authority with jurisdiction to grant and revoke certificates to practice as a physician and surgeon in the State of California. Cal. Bus. & Prof. Code �� 2050, 2220.5.

On October 3, 2003, a hearing was held before an administrative law judge (ALJ) in the State of California's Office of Administrative Hearings (OAH). The OAH ALJ issued an Order on October 8, 2003, concluding that Petitioner was unable to practice medicine safely due to his mental condition and that permitting Petitioner to engage in the unrestricted practice of medicine would endanger the public health, safety, and welfare. I.G. Ex. 2, at 6-7. In lieu of a complete license suspension, the OAH ALJ imposed several restrictions on Petitioner's license. Petitioner was required to: (1) undergo a psychiatric evaluation; (2) undergo medical treatment and medication management if medically indicated; (3) use a practice monitor; and (4) be prohibited from engaging in solo medical practice. Id. at 8-9. On February 3, 2004, another hearing was held which Petitioner did not attend even though he had received appropriate notice. I.G. Ex. 3, at 1. Petitioner had not complied with the requirements previously imposed on his license. From this fact, the evaluating psychiatrist concluded that Petitioner could not safely practice medicine even in a group setting. Id. at 7. The OAH ALJ decided that "[t]he public interest cannot be adequately protected with anything less than an outright revocation of [Petitioner's] physician's and surgeon's certificate." Id. at 11.

3. Petitioner's loss of his license to provide health care as a physician and surgeon was for reasons bearing on Petitioner's professional competence under section 1128(b)(4) of the Act.

Petitioner lost his license because an evaluating psychiatrist determined that Petitioner suffered from mental illness to an extent that he could not safely practice medicine. I.G. Ex. 3. Petitioner conceded during his psychiatric evaluation his anxiety and indecision about medical diagnoses and medical actions when he was confronted with medical emergencies. He also described an inability to deal with a busy medical practice and an inability to handle anxious and demanding patients. Petitioner further described becoming anxious, indecisive, and withdrawing from work as well as being suspicious of others' motives. The psychiatrist expressed her opinion, as a result of the evaluation, that Petitioner's schizophrenia was long standing and ego-systonic in that Petitioner did not see himself as having a problem. I.G. Ex. 2, at 6. It is clear from reading the records from Petitioner's license revocation proceedings that his license was revoked because the Medical Board was concerned about his professional competence. I.G. Exs. 1- 4.

In prior cases at the Board, appellate panels of the Board and other ALJs have held that a license revocation based on a finding of impairment due to mental illness constitutes a loss of license for reasons bearing on professional competence under section 1128(b)(4) of the Act. Jerry D. Harrison, DAB No. 1365 (1992); Michael Pigott Koger, M.D., DAB CR705 (2000); Jagdish Mangla, M.D., DAB CR470 (1997); Michael A. Fuentes, M.D., DAB CR382 (1995); Michael D. Tempel, DAB CR266 (1993).

4. The I.G. properly excluded Petitioner until his medical license is reinstated by the Medical Board of California.

Section 1128(c)(3)(E) of the Act requires that an individual excluded pursuant to section 1128(b)(4) remain excluded for no less than the period during which the individual's license is revoked, suspended, or surrendered. See 42 C.F.R. � 1001.501(b)(1); Tracey Gates, DAB No. 1768, at 9 (2001). In the present case, the I.G. has excluded Petitioner until he regains his license to practice medicine in California. This is the minimum period of exclusion prescribed by law. Congress has concluded that the loss of a license to practice a health care profession under circumstances described in section 1128(b)(4) is evidence of untrustworthiness and, thus, grounds for exclusion to protect federal health care programs and their beneficiaries. Congress has determined that the licensing authority taking action against an individual's license is in the best position to determine whether or not the reasons for the disciplinary action have been remediated. Accordingly, I must conclude that the term of the exclusion is proper.

5. Petitioner has presented no evidence or arguments that persuasively rebut the I.G.'s basis for exclusion.

In his letter dated November 14, 2005, Petitioner argues that the Medical Board's decision revoking his license is not based on accurate information. Petitioner also claims that the Medical Board's procedures violated his constitutional rights under the Fifth, Sixth, and Fourteenth Amendments. Because exclusions under section 1128(b)(4) of the Act are derivative, I cannot repeat the hearing provided by the Medical Board of California in Petitioner's case and re-evaluate the evidence presented during the hearing. 42 C.F.R. � 1001.2007(d). Additionally, I have no authority to decide constitutional questions. Keith Michael Everman, D.C., DAB No. 1880 (2003).

Petitioner also argues that he should be reimbursed for the professional services he provided to Medicare recipients prior to the revocation of his medical license. One important reason why Petitioner's argument must fail is that I have no authority to order Medicare to pay claims due to equitable considerations. Nonetheless, I also note that Petitioner provided no evidence that he has submitted bills to Medicare for payment that he wants reimbursed. Moreover, the evidence renders it questionable whether Petitioner had a Medicare provider number. I.G. Ex. 2, at 5. If he did not, he must look to his prior employer for any reimbursements to which he feels entitled.

V. Conclusion

For the reasons stated, I conclude that the I.G. was authorized to exclude Petitioner because his license to practice medicine was revoked by the Medical Board of California for reasons of professional competence within the meaning of section 1128(b)(4)(A) of the Act. Because Petitioner was properly excluded pursuant to section 1128(b)(4)(A), his exclusion must remain in effect until the Medical Board of California again grants him a license to practice medicine.

Anne E. Blair

Administrative Law Judge

1. Although Petitioner's request for hearing is dated March 5, 2005, his request was received by the Departmental Appeals Board (Board), Civil Remedies Division (CRD) on May 9, 2005, and was accepted as timely filed.