Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
In the Case of:
Bernardo G. Bilang, M.D.,
Petitioner,
- v. -
The Inspector General.
Docket No. C-298
DATE: July 12, 1991
DECISION
On July 10, 1990, the Inspector General (I.G.) notified
Petitioner that he was being excluded from participa-
tion in the Medicare and State health care programs. 1/
The I.G. told Petitioner that he was being excluded
because he had surrendered his license to practice
medicine in the State of Florida while a formal
disciplinary hearing was pending before the Florida
Department of Professional Regulation, Board of
Medicine (Florida Board of Medicine). The I.G. cited
section 1128(b)(4)(B) of the Social Security Act (Act)
as authority for his decision to exclude Petitioner.
He advised Petitioner that the exclusion would remain
in effect until Petitioner obtained a valid license to
practice medicine in Florida.
Petitioner timely requested a hearing, and the case was
assigned to me for a hearing and decision. I scheduled
an in-person evidentiary hearing. Shortly before the
date of the scheduled hearing, the parties advised me
that they had agreed that the case should be heard and
decided based on documentary exhibits and arguments to
be submitted by the parties. The parties subsequently
filed a Joint Stipulation of Facts and Joint Exhibits
1 - 19. Petitioner additionally filed Petitioner's
Exhibits 1 - 8. By letter dated April 22, 1991, I
admitted into evidence the Joint Exhibits and
Petitioner's Exhibits and established a schedule for
the parties to file proposed findings of facts and
conclusions of law and supporting briefs. The parties
then filed briefs.
I have considered the evidence, the parties' arguments,
and the applicable laws and regulations. I conclude
that the I.G. was authorized to impose and direct an
exclusion against Petitioner pursuant to section
1128(b)(4)(B) of the Act. However, I find that neither
the indefinite exclusion originally imposed by the I.G.
nor the three-year exclusion which the I.G. proposed in
his brief as a modification of the term of the
exclusion is reasonable. I modify the exclusion to a
one-year exclusion.
ISSUES
The issues in this case are whether:
1. the I.G. had authority to exclude Petitioner
pursuant to section 1128(b)(4)(B) of the Act; and
2. the three-year exclusion which the I.G.
requests that I impose would be reasonable.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. Petitioner is a physician who was licensed to
practice medicine in Florida, until he relinquished his
license in October 1989. Stip. 1; J. Ex. 6/43; 7/45-
46. 2/
2. Petitioner is presently licensed to practice
medicine in Kansas. See J. Ex. 18/78.
3. On November 4, 1987, an administrative complaint
was filed against Petitioner before the Florida Board
of Medicine. Stip. 2; J. Ex. 1/1-4.
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.
J. Ex. 1/2-3. 3/
5. On April 25, 1989, a hearing officer designated by
the Florida Board of Medicine held an administrative
hearing concerning the charges against Petitioner.
J. Ex. 4/14.
6. On July 11, 1989, the hearing officer issued a
recommended decision in Petitioner's case. J. Ex.
4/14-33.
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. J. Ex.
4/31-32.
8. The hearing officer concluded that the evidence
before him did not sustain a charge that Petitioner had
committed gross and repeated malpractice. J. Ex. 4/32.
9. The hearing officer made findings of fact to
support his conclusion that Petitioner had violated
Florida law concerning the practice of medicine.
J. Ex. 4/16-29.
10. The hearing officer recommended to the Florida
Board of Medicine that Petitioner's Florida license to
practice medicine be suspended for two years. Stip.
10; J. Ex. 4/33.
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. Stip. 11;
J. Ex. 5/36-41.
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.
Stip. 11; J. Ex. 5/40-41.
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. Stip. 11; J. Ex. 5/40-41.
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 administra-
tive proceedings before the Florida Board of Medicine.
Stip. 12; J. Ex. 6/42-44.
15. On October 11, 1989, the Florida Board of Medicine
accepted the agreement with Petitioner. Stip. 13; J.
Ex. 7/45-46.
16. On January 17, 1989, Petitioner applied for a
license to practice medicine in Kansas. Stip. 7; J.
Ex. 16/66-74.
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. J. Ex. 17/75-77; 18/78.
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. J. Ex. 17/75-
76.
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. Stip. 17; J. Ex. 14/63-64.
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. J. Ex.
14/63.
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. See
Findings 1-20.
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.
ANALYSIS
Petitioner is a physician who was licensed to practice
medicine in Florida. In November 1987, a disciplinary
proceeding was brought against Petitioner before the
Florida Board of Medicine. Petitioner was charged with
gross malpractice and with misconduct concerning his
preparation of medical treatment records. A hearing
was held before a hearing examiner designated by the
Florida Board of Medicine. In April 1989, the hearing
examiner issued a recommended decision in which he
found that Petitioner had violated Florida law
concerning medical record-keeping and had knowingly
filed a false treatment report. He also concluded that
Petitioner had failed to provide medical care in accord
with accepted medical standards. The hearing examiner
found that the charge of gross malpractice was not
sustained by the evidence. He recommended that
Petitioner's license be suspended for a period of two
years.
The attorney prosecuting the administrative case
against Petitioner moved that the Florida Board of
Medicine adopt a more stringent remedy than that
recommended by the hearing examiner. However, the
Florida Board of Medicine never made a final decision
in the case, either as to the merits or remedy.
Petitioner entered into an agreement with the Florida
Board of Medicine to dispose of the charges against
him by permanently resigning his license to practice
medicine in Florida. As an element of that agreement,
Petitioner promised never to reapply for a license to
practice medicine in Florida. This agreement was
accepted by the Florida Board of Medicine in October
1989.
In January, 1989, Petitioner applied for a license to
practice medicine in Kansas. In his application for
a license, Petitioner disclosed the then-pending
disciplinary proceeding in Florida. He provided the
Kansas Board of Healing Arts with his version of the
facts of the episode which led to the disciplinary
proceeding. J. Ex. 16/72-73. He also disclosed a
previous disciplinary proceeding in Florida which
resulted in his license being placed in a probationary
status. J. Ex. 16/74. 4/ There is no evidence that
Petitioner subsequently provided the Kansas Board of
Healing Arts with a copy of the Florida hearing
examiner's recommended decision. 5/
In June 1989, Petitioner and the Kansas Board of
Healing Arts entered into an agreement. Petitioner was
granted a permanent license to practice medicine in
Kansas. However, his license was simultaneously placed
in a probationary status. The terms of the probation
included the requirement that Petitioner submit his
treatment records for review by two physicians designa-
ted by the Kansas Board of Healing Arts, that he
cooperate with any requests for disclosure of his
records to investigators, and that he submit monthly
reports concerning his prescription of controlled
substances. The agreement provided that Petitioner
could apply to terminate the probation after one year.
J. Ex. 17/77. There is no evidence that Petitioner has
applied for termination of probation.
The I.G. excluded Petitioner based on his surrender
of his license to practice medicine in Florida. The
exclusion was made coterminous with the Florida license
revocation. As a practical consequence, the effect of
the exclusion was to permanently exclude Petitioner
from participating in Medicare and Medicaid, inasmuch
as Petitioner had agreed never to seek reinstatement
of his Florida license. The I.G. now requests that I
modify the exclusion to a term of three years.
1. The I.G. had authority to exclude Petitioner
pursuant to section 1128(b)(4)(B) of the Act.
An administrative hearing concerning an exclusion
imposed and directed pursuant to section 1128 subsumes
two issues. The first issue is whether the I.G. had
authority to impose and direct an exclusion under one
of the subsections of section 1128. The second issue
is whether the term of the exclusion imposed and
directed by the I.G. is reasonable. See 42 C.F.R.
1001.128(a).
The I.G. had authority to exclude Petitioner. That
authority emanated from Petitioner's resignation of
his Florida license to practice medicine under
circumstances described in section 1128(b)(4)(B) of the
Act. Section 1128(b)(4)(B) authorizes the Secretary
(or his delegate, the I.G.) to exclude an individual or
entity who:
surrendered . . . a license [to provide
health care] while a formal disciplinary
hearing was pending before . . . [any state
licensing authority] and the proceeding
concerned the individual's or entity's
professional competence, professional
performance, or financial integrity.
Petitioner surrendered his license to provide health
care to the Florida Board of Medicine, Florida's
licensing authority for physicians, while a formal
disciplinary hearing concerning Petitioner's license
was pending before that agency. The proceeding
concerned Petitioner's professional competence or
performance.
Although the terms "professional competence" and
"professional performance" are not defined in section
1128(b)(4)(B), the plain meaning of these terms
encompasses the ability or willingness of a provider to
practice a licensed service with reasonable skill and
safety, consistent with the requirements of state law
and regulations. See Richard L. Pflepsen, D.C., DAB
Civ. Rem. C-345 (1991). Here, the essence of the
charges against Petitioner was that Petitioner either
willfully or negligently failed to provide care of a
quality which met minimum standards of care and
knowingly prepared treatment records in a manner which
violated state law. I find that these allegations
squarely fall within the plain meaning of the terms
"professional competence" and "professional
performance." Therefore, the actions concerning
Petitioner's license in Florida met the criteria for
exclusion established by section 1128(b)(4)(B).
2. A three-year exclusion would not be
reasonable.
Section 1128 is a civil remedies statute. The remedial
purpose of section 1128 is to enable the Secretary to
protect federally-funded health care programs and their
beneficiaries and recipients from individuals and
entities who have proven by their misconduct that they
are untrustworthy. Exclusions are intended to protect
against future misconduct by providers.
Federally-funded health care programs are no more
obligated to deal with dishonest or untrustworthy
providers than any purchaser of goods or services would
be obligated to deal with a dishonest or untrustworthy
supplier. The exclusion remedy allows the Secretary
to suspend his contractual relationship with those
providers of items or services who are dishonest or
untrustworthy. The remedy enables the Secretary to
assure that federally-funded health care programs will
not continue to be harmed by dishonest or untrustworthy
providers of items or services. The exclusion remedy
is closely analogous to the civil remedy of termination
or suspension of a contract to forestall future damages
from a continuing breach of that contract.
Exclusion may have the ancillary benefit of deterring
providers of items or services from engaging in the
same or similar misconduct as that engaged in by
excluded providers. However, the primary purpose of
an exclusion is the remedial purpose of protecting the
trust funds and beneficiaries and recipients of those
funds. Deterrence cannot be a primary purpose for
imposing an exclusion. Where deterrence becomes the
primary purpose, section 1128 no longer accomplishes
the civil remedies objectives intended by Congress.
Punishment, rather than remedy, becomes the end.
[A] civil sanction that cannot fairly be
said solely to serve a remedial purpose, but
rather can be explained only as also serving
either retributive or deterrent purposes, is
punishment, as we have come to understand
the term.
United States v. Halper, 490 U.S. 435, 448 (1989).
Therefore, in determining the reasonableness of an
exclusion, the primary consideration must be the degree
to which the exclusion serves the law's remedial
objective of protecting program recipients and bene-
ficiaries from untrustworthy providers. An exclusion
is not excessive if it does reasonably serve these
objectives.
The hearing in an exclusion case is, by law, de novo.
Act, section 205(b). Evidence which is relevant to the
reasonableness of the length of an exclusion will be
admitted in a hearing on an exclusion whether or not
that evidence was available to the I.G. at the time the
I.G. made his exclusion determination. Evidence which
relates to a petitioner's trustworthiness or the
remedial objectives of the exclusion law is admissible
at an exclusion hearing even if that evidence is of
conduct other than that which establishes statutory
authority to exclude a petitioner. 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. Because of the de novo nature
of the hearing, my duty is to objectively determine the
reasonableness of the exclusion by considering what the
I.G. determined to impose in light of the statutory
purpose and the evidence which the parties offer and I
admit. The I.G.'s thought processes in arriving at his
exclusion determination are not relevant to my
assessment of the reasonableness of the exclusion.
Furthermore, my purpose in hearing and deciding the
issue of whether an exclusion is reasonable is not to
second-guess the I.G.'s exclusion determination so much
as it is to decide whether the determination was
extreme or excessive. 48 Fed. Reg. 3744 (Jan. 27,
1983). Should I determine that an exclusion is extreme
or excessive, I have authority to modify the exclusion,
based on the law and the evidence. Social Security
Act, section 205(b).
The Secretary has adopted regulations to be applied in
exclusion cases. The regulations specifically apply
to exclusion cases for "program-related" offenses
(convictions for criminal offenses relating to Medicare
or Medicaid). The regulations express the Secretary's
policy for evaluating cases where the I.G. has
discretion in determining the length of an exclusion.
The regulations require the I.G. to consider factors
related to the seriousness and program impact of the
offense and to balance those factors against any
factors that may exist demonstrating trustworthiness.
42 C.F.R. 1001.125(b)(1) - (7). In evaluating the
reasonableness of an exclusion, I consider as
guidelines the regulatory factors contained in
42 C.F.R. 1001.125(b).
I conclude that the I.G. has failed to show a
meaningful remedial basis for the three-year exclusion
which he requested that I impose. I conclude that a
three-year exclusion would be excessive given the
evidence of record. 6/
The evidence concerning Petitioner's practice largely
consists of the Florida hearing examiner's report of
Petitioner's disciplinary hearing. For the reasons
which I discuss below, I find that report does not
support a conclusion that a lengthy exclusion is needed
in this case. Nor have the parties offered meaningful
evidence concerning Petitioner's practice of medicine
subsequent to his Florida hearing. While Petitioner
may have seen and treated many patients in Florida and
in Kansas, no evidence is of record concerning his
competence or performance with respect to those
patients.
The I.G. argues that I should conclude that a three-
year exclusion is reasonable based on the Florida
hearing examiner's findings of misconduct. The hearing
examiner's report depicts conduct by Petitioner which,
if true, would suggest that Petitioner is not a
trustworthy provider of care. The hearing examiner
concluded that Petitioner failed to properly diagnose
and treat a life-threatening medical condition
affecting a hospitalized patient under his care and
attempted to cover up his deficiencies after the fact
by preparing and filing a misleading treatment record,
in violation of Florida law. J. Ex. 4. Had the
evidence which led to these conclusions been before me,
and had I been able to resolve the parties' conflicting
allegations concerning this evidence favorably to the
I.G., I might have agreed with the I.G. that a three-
year exclusion was reasonably necessary.
However, I have seen none of the evidence considered
by the hearing examiner, inasmuch as the record of the
disciplinary hearing was not offered as evidence by
either party. The hearing examiner's findings were
never adopted by the Florida Board of Medicine. These
findings are not a final action of the Florida agency.
Furthermore, the findings and conclusions of the
hearing examiner are disputed by Petitioner. See
Petitioner's letter to me, received May 31, 1991;
P. Ex. 3. Petitioner argues that the hearing examiner
misconstrued the evidence in the state administrative
case. There is therefore a dispute as to the veracity
and accuracy of the hearing examiner's report. I
cannot resolve this dispute in favor of the I.G.
without reviewing the evidence as to the conduct which
underlay the state misconduct charges and the hearing
examiner's decision.
Furthermore, it is apparent from the report itself
that the hearing examiner had to resolve conflicting
evidence in order to reach his findings. The fact that
there were inconsistencies in the evidence leads me to
conclude that I cannot reject out-of-hand Petitioner's
assertions that the report is materially incorrect.
Given the fact that the report was not accepted by the
Florida Medical Board, and given further the dispute
between the parties as to its accuracy and probative
value, I cannot conclude that the report alone
justifies the imposition of a lengthy exclusion. 7/
A party is not collaterally estopped on the issue of
trustworthiness from asserting that a state agency
report is inaccurate or misleading. See Christino
Enriquez, M.D., DAB Civ. Rem. C-277 at 11-12 (1991).
Where a party has called into question the accuracy of
such evidence, my duty to independently decide whether
an exclusion is reasonable may preclude me from simply
relying on reports or decisions of state agencies. 8/
Neither section 1128 nor section 205 of the Act suggest
that I must discharge my duty as an independent fact-
finder by accepting on its face the report or decision
of a state agency. Indeed, one reason for Congress
enacting section 1128 was its concern that state
licensing authorities were not adequately protecting
federally-funded programs and their beneficiaries and
recipients from untrustworthy providers. See S. Rep.
No. 109, 100th Cong., 1st Sess. 3, reprinted in 1987
U.S. Code Cong. & Admin. News 682, 684, 688. 9/
That is not to say that there are never circumstances
where I may draw inferences as to a petitioner's
trustworthiness from the conclusions contained in state
agency reports. A petitioner might not contest the
accuracy of the report or dispute the implications of
its findings. For example, in the Pflepsen case, the
petitioner never asserted that the allegations which
formed the basis for state disciplinary charges against
him were untrue. Moreover, there may be circumstances
surrounding a report which so buttress the conclusions
made by the fact-finder as to enhance significantly its
probative value. For example, I would be much more
inclined to accord substantial weight to the hearing
examiner's report in this case had it been accepted by
the Florida Board of Medicine after that agency had
considered and decided Petitioner's objections.
However, even in that circumstance I would have
permitted Petitioner to offer evidence, assuming he
desired to do so, to show that the report or the
state agency's findings did not prove that he was
untrustworthy. See Enriquez, supra.
Although I cannot conclude from the evidence
before me that the three-year exclusion urged by the
I.G. is reasonable, I can conclude that an exclusion
is warranted. I find that an exclusion of one year is
justified by the evidence, and I modify the exclusion
accordingly.
Congress concluded that, ordinarily, an exclusion was
justified where providers resigned their licenses to
practice health care to avoid the imposition against
them of adverse findings and sanctions by state
licensing authorities. The legislative history of
section 1128(b)(4)(B) suggests congressional recogni-
tion of the probability that providers who resign their
licenses to provide health care in the face of
disciplinary charges ordinarily do so in order to avoid
the stigma of an adverse finding. See S. Rep. No. 109,
100th Cong., 1st Sess. 3, reprinted in 1987 U.S. Code
Cong. & Admin. News, 682, 688. This 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.
Petitioner argues that, in this case, no inference of
culpability ought to attach to his resignation of his
Florida license. He claims that he was the victim of
a vendetta by his peers, who resented Petitioner's
participation in a Health Maintenance Organization
(HMO).
I am not persuaded by Petitioner's argument. There
is no evidence that the misconduct charges against
Petitioner were levied by his peers. However, even
assuming that to be the case, and assuming further
that those who brought charges against Petitioner
were motivated by personal animosity resulting from
Petitioner's HMO participation, the fact remains that
an impartial hearing examiner did make adverse findings
concerning Petitioner's practice methods and ethics.
Thus, what motivated Petitioner to resign his license
was not the animosity of his peers, but the possibility
that the Florida Board of Medicine would take adverse
action against Petitioner based on the hearing
examiner's report.
Had the hearing examiner's report been accepted by the
Florida Board of Medicine, it appears probable that
Petitioner's license to practice medicine in Florida
would have been suspended. The misconduct charges
against Petitioner constituted the second alleged
episode of misconduct by him within a two-year period
(the previous case was resolved with a stipulation in
which Petitioner consented to a one-year term of
probation). Both the hearing examiner and the attorney
who prosecuted the case recommended that Petitioner's
license be suspended. I infer from these facts that,
whatever can be said about the weight to be accorded
the hearing examiner's report, Petitioner certainly
recognized that adverse findings by the Florida Board
of Medicine were likely and that a suspension of his
license was a likely remedy. His resignation of his
license to avoid the stigma of an imposed remedy is
evidence of some degree of culpability. Under the
circumstances, an exclusion is justified. I am not
persuaded, however, that a three-year exclusion is
justified, especially considering that the hearing
examiner only recommended a two-year suspension of
Petitioner's license to the Florida Board of Medicine.
I would note that even had the two-year suspension
been accepted by the Florida Board of Medicine, that
suspension would have been completed on or about the
completion of this one-year exclusion as I have
modified it in this case.
I am persuaded that, in this case, a one-year
exclusion is reasonable. Petitioner's license to
practice medicine in Kansas was granted conditioned
on Petitioner being subject to close supervision by
his peers and the Kansas Board of Healing Arts. I
find it unlikely, given this degree of supervision,
that Petitioner would commit in Kansas the kind of
misconduct he was alleged to have perpetrated in
Florida. 10/
CONCLUSION
Based on the law and the evidence, I conclude that the
I.G. was authorized to impose and direct an exclusion
against Petitioner from participating in Medicare and
Medicaid. I conclude that the exclusion imposed and
directed against Petitioner, or a modification of that
exclusion to a term of three years, is not reasonable.
I conclude that a one-year exclusion is reasonable.
________________________
Steven T. Kessel
Administrative Law Judge
1. "State health care program" is defined by
section 1128(h) of the Social Security Act to cover
three
types of federally-financed health care programs,
including Medicaid. I use the term "Medicaid"
hereafter to represent all State health care programs
from which Petitioner was excluded.
2.
The parties' Joint exhibits were submitted to
me in a bound folder entitled "Document Appendix." The
individual Joint Exhibits are separately numbered, and
each page of the "Document Appendix" is sequentially
numbered. In citing to a Joint Exhibit, I cite to the
exhibit as "J. Ex. (number)/(page)" with the number
reference being to the exhibit number, and the page
reference being to the page as it is numbered in the
"Document Appendix." The pages of Petitioner's
Exhibits are mostly unnumbered. However, each of
Petitioner's Exhibits is a short document. I cite to
Petitioner's exhibits as "P. Ex. (number)." In citing
to the parties' Stipulations, I cite to them as "Stip.
(number)" with the numeric designation being to the
numbered paragraph of the stipulation.
3.
The administrative complaint was twice amended.
However, the allegations of unlawful or wrongful
conduct were not amended.
4.
That case involved allegations that Petitioner
had unlawfully prescribed a legend drug to a patient
and had unlawfully failed to keep proper medical
records of his treatment of that patient. J. Ex. 8/48-
50. In September 1987, Petitioner entered into a
consent agreement with the Florida Board of Medicine in
which he agreed to a one-year term of probation. J.
Ex. 9/52-56. Petitioner completed his probation in
November 1988. J. Ex. 11/59.
5.
Nor is there evidence that Petitioner advised
the Kansas Board of Healing Arts of the final
disposition of his Florida disciplinary proceeding. I
note, however, that proceeding was concluded in October
1989, after Petitioner had been granted a license to
practice medicine in Kansas.
6.
The I.G. recognizes that, in light of the facts
of this case, a permanent exclusion would not be
reasonable. See I.G.'s Brief at 9. In order for a
permanent exclusion to be reasonable, the evidence
would have to establish that there is little or no
likelihood that Petitioner would ever become
trustworthy.
7.
My analysis of the hearing examiner's report is
confined to its probative value. There is no issue as
to the admissibility of the hearing examiner's report.
I admitted the report into evidence. The document is a
hearsay statement which is relevant to the issue of the
Petitioner's trustworthiness. I routinely admit
hearsay statements in lieu of testimony in hearings
brought under section 1128. Arguably, the report would
also have been admissible in a federal court proceeding
as an excepted public record under the Federal Rules of
Evidence. See Federal Rules of Evidence, Rule 803(8).
8.
Petitioner did not simply assert that the
report was inaccurate. Had he done so, without
offering evidence to suggest that the report might be
inaccurate, I might have been persuaded to overrule his
objections. However, Petitioner has offered evidence
that the hearing examiner's conclusions were not
correct. For example, Petitioner has asserted that his
after-the-fact preparation of medical records comports
with accepted medical standards. See P. Ex. 3. This
squarely contradicts the hearing examiner's findings.
See J. Ex. 4/31-32. I am not capable of resolving
these conflicting assertions absent the record of
Petitioner's Florida disciplinary hearing.
9.
By contrast, I am bound by the final action of
a state agency in deciding whether the I.G. has
authority to exclude a petitioner. Enriquez, supra;
Pflepsen, supra.
10.
On July 10, 1991 Petitioner contacted Ms.
Winerman of my office to advise her that the decision
in this case should be sent to an address in Florida.
Petitioner indicated that he was no longer practicing
at his previous address in Meade, Kansas.