$05:Exclusion Case
Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
In the Case of: )
)
Dr. John T. Renick, Petitioner,
- v. -
The Inspector General.
DATE: April 22, 1994
Docket No. C-93-091
Decision No. CR312
DECISION
On May 12, 1993, the Inspector General (I.G.) notified
Petitioner, John T. Renick, M.D., that he was excluded from
participating in Medicare and State health care programs for
three years. 1/ The I.G. told Petitioner that he was being
excluded under section 1128(b)(1) of the Social Security Act
(Act), based on Petitioner's conviction of a criminal offense
relating to fraud, theft, embezzlement, breach of fiduciary
responsibility, or other financial misconduct in connection with
delivery of health care items or services or with respect to any
act or omission in a program operated by or financed in whole or
in part by any federal, State, or local government agency.
Petitioner requested a hearing, and the case was assigned to me
for a hearing and decision. On December 3, 1993, I held a
hearing in Panama City, Florida. The parties submitted post-
hearing briefs, reply briefs, and proposed findings of fact and
conclusions of law.
I have carefully considered the evidence that I admitted at the
hearing, the parties' arguments, and the applicable law and
regulations. I conclude that the I.G. had authority to exclude
Petitioner under section 1128(b)(1) of the Act. 2/ I conclude
further that regulations require that I sustain the three-year
exclusion imposed and directed by the I.G. against Petitioner.
ISSUE
The issue in this case is whether regulations require that I
sustain the three-year exclusion which the I.G. imposed and
directed against Petitioner.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. Petitioner is a psychiatrist. Tr. at 38. 3/
2. Since September 1990, Petitioner has practiced psychiatry in
Panama City, Florida. Tr. at 38 - 39; I.G. Ex. 2.
3. Prior to practicing in Panama City, Florida, Petitioner
practiced psychiatry in Mobile, Alabama. I.G. Ex. 2 at 1.
4. On July 24, 1992, Petitioner was convicted in United States
District Court for the Southern District of Alabama of one count
of criminal conspiracy and nine counts of mail fraud. I.G. Ex. 1
at 1.
5. The criminal offenses of which Petitioner was convicted
involved fraudulent reimbursement claims made by Petitioner or at
his direction to health insurance carriers. I.G. Ex. 1 at 1;
I.G. Ex. 2 at 1 - 13.
6. Petitioner was convicted of criminal offenses relating to
fraud, theft, embezzlement, breach of fiduciary responsibility,
or other financial misconduct in connection with the delivery of
a health care item or service or with respect to acts or
omissions in programs operated by or financed in whole or in part
by any federal, State, or local government agency. Findings 4 -
5; Act, section 1128(b)(1); see Tr. at 8.
7. Petitioner concedes that he was convicted of criminal
offenses relating to fraud, theft, embezzlement, breach of
fiduciary responsibility, or other financial misconduct in
connection with the delivery of a health care item or service or
with respect to acts or omissions in programs operated by or
financed in whole or in part by any federal, State, or local
government agency. P. Br. at 2 and 3; Petitioner's request for
hearing.
8. Petitioner concedes that his conviction is program-related,
within the meaning of section 1128(b)(1). P. Br. at 2 and 3;
Finding 7.
9. The Secretary of the United States 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. 48 Fed. Reg. 21,662 (1983).
10. The I.G. had authority to impose and direct an exclusion
against Petitioner pursuant to section 1128(b)(1) of the Act.
Findings 4 - 9.
11. On May 12, 1993, the I.G. excluded Petitioner from
participating in Medicare and Medicaid for a period of three
years. I.G.'s May 12, 1993 letter to Petitioner.
12. Regulations published on January 29, 1992 establish criteria
to be employed by the I.G. in determining to impose and direct
exclusions pursuant to sections 1128(a) and (b) of the Act. 42
C.F.R. Part 1001 (1992).
13. The regulations published on January 29, 1992 include
criteria to be employed by the I.G. in determining to impose and
direct exclusions pursuant to section 1128(b)(1) of the Act. 42
C.F.R. 1001.201.
14. On January 22, 1993, the Secretary published a regulation
which directs that the criteria to be employed by the I.G. in
determining to impose and direct exclusions pursuant to sections
1128(a) and (b) of the Act are binding also upon administrative
law judges, appellate panels of the Departmental Appeals Board,
and federal courts in reviewing the imposition of exclusions by
the I.G. 42 C.F.R. 1001.1(b) (1993).
15. My adjudication of the length of the exclusion in this case
is governed by the criteria contained in 42 C.F.R. 1001.201.
16. An exclusion imposed pursuant to section 1128(b)(1) of the
Act must be for a period of three years, unless aggravating or
mitigating factors form a basis for lengthening or shortening the
period of exclusion. 42 C.F.R. 1001.201(b).
17. Aggravating factors which may form a basis for lengthening,
beyond three years, the term of an exclusion imposed and directed
by the I.G. pursuant to section 1128(b)(1) of the Act may consist
of any of the following:
a. the acts that resulted in the conviction of an offense,
within the meaning of section 1128(b)(1) or similar acts,
resulted in loss of $1500 or more to a government program or
to one or more other entities, or had a significant
financial impact on program beneficiaries or other
individuals;
b. the acts that resulted in the conviction of an offense,
within the meaning of section 1128(b)(1), or similar acts
were committed over a period of one year or more;
c. the acts that resulted in the conviction of an offense
within the meaning of section 1128(b)(1) or similar acts had
a significant adverse physical or mental impact on program
beneficiaries or other individuals;
d. the sentence imposed by the court for the offense upon
which the exclusion is based included incarceration; or
e. the excluded party has a prior criminal, civil, or
administrative sanction record.
42 C.F.R. 1001.201(b)(2)(i) - (v) (paraphrase).
18. Mitigating factors which may be a basis for decreasing, to
less than three years, the term of an exclusion imposed and
directed by the I.G. against an individual or entity pursuant to
section 1128(b)(1) of the Act are limited to the following:
a. The excluded party was convicted of three or fewer
misdemeanor offenses, and the entire amount of financial
loss to a government program or to other individuals or
entities due to the acts that resulted in the conviction and
similar acts is less than $1500;
b. The record in the criminal proceeding involving the
excluded party, including sentencing documents, demonstrates
that the court determined that the excluded party had a
mental, emotional, or physical condition, before or during
the commission of the offense for which that party was
convicted that reduced the party's culpability;
c. The excluded party's cooperation with federal or State
officials resulted in others being convicted or excluded
from Medicare or Medicaid, or the imposition of a civil
money penalty against others; or
d. Alternative sources of the type of health care items or
services furnished by the excluded party are not available.
42 C.F.R. 1001.201(b)(3)(i) - (iv) (paraphrase).
19. The I.G. has the burden of proving that aggravating factors
exist which justify increasing an exclusion imposed pursuant to
section 1128(b)(1) of the Act beyond the three-year standard
imposed by regulation. 42 C.F.R. 1001.201(b)(2)(i) - (v); 42
C.F.R. 1005.15(c).
20. The I.G. did not allege that any aggravating factors were
present in this case.
21. Petitioner has the burden of proving that mitigating factors
exist which justify decreasing, below the three-year standard
established by regulation, an exclusion imposed pursuant to
section 1128(b)(1) of the Act. 42 C.F.R. 1001.201(b)(3)(i) -
(iv); 42 C.F.R. 1005.15(c).
22. Petitioner alleged that, as a result of his exclusion,
alternative sources of the type of health care items or services
that he furnishes are not available. P. Br. at 3.
23. Petitioner did not allege or prove that he treats any
individuals who are Medicaid recipients. Tr. at 12 - 58.
24. Petitioner's areas of specialization include treatment of
posttraumatic stress disorders, eating disorders, multiple
personality disorders, and chronic pain conditions. Tr. at 41 -
43.
25. Petitioner did not allege nor did he prove that he treats
any Medicare beneficiaries who suffer from eating disorders. Tr.
at 12 - 58.
26. Petitioner did not allege nor did he prove that he treats
any Medicare beneficiaries who suffer from multiple personality
disorders. Tr. at 12 - 58.
27. Petitioner did not establish the number of Medicare
beneficiaries he treats who suffer from posttraumatic stress
disorders or chronic pain conditions. Tr. at 12 - 58.
28. One way for a petitioner to prove that alternative sources
of health care are not available is to establish the residences
of the Medicare beneficiaries and Medicaid recipients receiving
treatment from the petitioner, and then to show that the burden
to these beneficiaries and recipients of travelling to another
provider to receive analogous care would be so onerous as to
deprive the beneficiaries and recipients of reasonable access to
alternative sources of care. 42 C.F.R. 1001.201(b)(3)(iv).
29. Petitioner did not establish the residences of those
Medicare beneficiaries he treats who suffer from posttraumatic
stress disorders or chronic pain conditions. Tr. at 12 - 58.
30. Petitioner is authorized to prescribe the drug Clozaril
(described also in the record as "Clozapine"), which is used in
treating the primary manifestations of schizophrenia. Tr. at 44
- 45.
31. Petitioner did not establish the number of Medicare
beneficiaries to whom he prescribes Clozaril. Tr. at 12 - 58.
32. Petitioner did not establish the residences of those
Medicare beneficiaries to whom he prescribes Clozaril. Tr. at 12
- 58.
33. Petitioner did not prove that, as a consequence of his
exclusion, Medicare beneficiaries who need treatment for
posttraumatic stress disorders, chronic pain, or who receive
Clozaril for schizophrenia would be deprived of reasonable access
to alternative sources of care for their conditions.
34. Petitioner did not establish that, as a consequence of his
exclusion, Medicare beneficiaries or Medicaid recipients would be
deprived of access to hospital care for mental conditions
requiring hospitalization. Tr. at 12 - 58.
35. Petitioner did not prove that Medicare beneficiaries who he
treats for the conditions which he specializes in treating do not
have reasonable access to other psychiatrists who are qualified
to treat such conditions. Tr. at 12 - 58.
36. Petitioner did not establish that, as a consequence of his
exclusion, Medicare beneficiaries or Medicaid recipients would be
deprived of reasonable access to the type of medical care which
is provided by Petitioner. Findings 23 - 33.
37. Petitioner did not prove that, as a consequence of his
exclusion, alternative sources of the type of health care items
or services furnished by Petitioner are not available. Findings
34 - 36.
38. Petitioner did not prove the presence of any mitigating
factors under 42 C.F.R. 1001.201(b)(3)(i) - (iv). Finding 37.
39. Neither aggravating nor mitigating factors are present in
this case.
40. The three-year exclusion which the I.G. imposed and directed
against Petitioner is mandated by regulation.
RATIONALE
The only issue of material fact in this case is whether there
exist mitigating factors which might establish that the three-
year exclusion imposed and directed against Petitioner by the
I.G. is unreasonable. I find that Petitioner failed to prove by
a preponderance of the evidence that mitigating factors exist.
Therefore, I am required to sustain the three-year exclusion.
This is a case in which the I.G. excluded Petitioner pursuant to
section 1128(b)(1) of the Act. This section permits the
Secretary to exclude parties who are convicted of criminal
offenses relating to fraud, theft, embezzlement, breach of
fiduciary responsibility, or other financial misconduct committed
in connection with the delivery of a health care item or service
or with respect to any act or omission in a program operated by
or financed in whole or in part by any federal, State, or local
government agency.
The undisputed evidence in this case is that Petitioner was
convicted in United States District Court for the Southern
District of Alabama of one count of conspiracy and nine counts of
mail fraud based on fraudulent reimbursement claims for health
care items or services which Petitioner presented or caused to be
presented to health care insurers. Findings 4, 5. Petitioner
concedes that he was convicted of offenses within the meaning of
section 1128(b)(1). He does not question that the I.G. was
authorized to exclude him. Findings 6 - 8. He asserts, however,
that the length of the exclusion which the I.G. imposed and
directed against him is unreasonable.
Departmental Appeals Board appellate panels and administrative
law judges delegated to hear cases under section 1128 of the Act
have held consistently that section 1128 is a remedial statute.
Exclusions imposed pursuant to section 1128 have been found
reasonable only insofar as they are consistent with the Act's
remedial purpose, which is to protect program beneficiaries and
recipients from providers who are not trustworthy to provide
care. Robert M. Matesic, R.Ph., d/b/a Northway Pharmacy, DAB
1327, at 7 - 8 (1992). Prior to the publication of regulations
which were made expressly applicable to adjudications of the
length of exclusions, the trustworthiness standard was held to
permit excluded parties to offer a full explication of evidence
pertaining to their trustworthiness to provide care. That
evidence included evidence which related to:
the nature of the offense committed by the provider,
the circumstances surrounding the offense, whether and
when the provider sought help to correct the behavior
which led to the offense, how far the provider has come
toward rehabilitation, and any other factors relating
to the provider's character and trustworthiness.
Matesic, DAB 1327, at 12.
However, regulations published in 1992 and 1993 impose on
adjudicators a standard for evaluating the length of exclusions
which departs from the standard identified in Matesic. 42 C.F.R.
Part 1001; Jose Ramon Castro, M.D., DAB CR259 (1993). In the
case of most exclusions imposed under section 1128(b) of the Act,
the regulations establish benchmark exclusion periods which may
be increased only in the presence of aggravating factors or
decreased only in the presence of mitigating factors. Only those
factors which are identified by the regulations as aggravating or
mitigating may be considered as a basis for increasing or
decreasing the length of an exclusion imposed pursuant to one of
the subsections of section 1128. A factor identified under
Matesic as being relevant to the Act's remedial purpose is not
germane under these regulations, unless it is a mitigating or an
aggravating factor identified in the regulations. Castro, DAB
CR259, at 15; Joseph Weintraub, M.D., DAB CR303, at 17 - 18
(1994).
This case involves an exclusion imposed pursuant to section
1128(b)(1) of the Act. The section of the regulations governing
exclusions imposed pursuant to section 1128(b)(1) is 42 C.F.R.
1001.201.
1. Petitioner alleges the mitigating factor of no alternative
sources of health care.
The I.G. imposed an exclusion of three years, which is the
benchmark exclusion under 42 C.F.R. 1001.201 for exclusions
imposed pursuant to section 1128(b)(1) of the Act. The I.G. did
not identify any aggravating factors which would justify imposing
an exclusion in excess of three years.
Petitioner alleges the presence of a mitigating factor. He
asserts that alternative sources of the type of health care which
he provides are not available. This is a mitigating factor under
42 C.F.R. 1001.201(b)(3)(iv). If proven by Petitioner, it
could be a basis for reducing the length of the exclusion imposed
and directed against him by the I.G. 4/ Petitioner has not
alleged the presence of other mitigating factors.
2. Petitioner has the burden of proving the existence of a
mitigating factor by a preponderance of the evidence.
The regulations do not assign the burden of proving the presence
or absence of a mitigating factor. I held in Castro that the
petitioner in that case bore the burden of proving, by a
preponderance of the evidence, the mitigating factor alleged by
him, which was that alternative sources of the type of health
care he provided were not available. Castro, DAB CR259, at 16 -
17. Similarly, Administrative Law Judge Steinman held in
Weintraub that the petitioner in that case bore the burden of
proving, by a preponderance of the evidence, that alternative
sources of the type of health care he provided were not
available. Weintraub, DAB CR303, at 19 - 20.
Although the regulations do not assign the burden of proving the
presence or absence of a mitigating factor, the regulations
plainly describe mitigating factors as affirmative defenses to
the imposition of exclusions. This suggests strongly that the
burden of proving the presence of mitigating factors should fall
on the excluded provider. Furthermore, it makes no sense to
require the I.G. to prove a negative proposition, i.e., the
absence of a mitigating factor. Finally, administrative law
judges have the authority under the regulations to assign burdens
of proof in cases involving exclusions imposed pursuant to
section 1128 of the Act. 42 C.F.R. 1005.15(c). The
regulations provide further that, in all cases, the evidentiary
standard to be applied to decide whether a party has met a burden
of proof is preponderance of the evidence. 42 C.F.R.
1005.15(d).
The issue to be resolved here is whether Petitioner has proved
that alternative sources of health care will be unavailable as
substitutes for the items or services he would have provided but
for his exclusion. The burden of proving this issue rests
entirely on Petitioner. Absent a credible showing by Petitioner
that alternative sources of health care will be unavailable, the
I.G. has no burden to rebut Petitioner's evidence by proving that
alternative sources actually are available.
3. Petitioner must prove several predicate elements
in order to meet his burden of proof.
In proving that alternative sources of health care are not
available, Petitioner must prove certain predicate elements.
Ultimately, he must prove that alternative sources of care of the
type and quality which he provides are not reasonably available
to Medicare beneficiaries and Medicaid recipients.
The regulations do not define what is meant by the terms
"alternative sources" and "not available." Judge Steinman
addressed the meaning of these terms in Weintraub and in James H.
Holmes, M.D., DAB CR270 (1993). I find his analysis in these two
decisions to be persuasive. 5/
In Holmes and Weintraub, Judge Steinman found that, in the
absence of a definition, the terms "alternative sources" and "not
available" should be given their common and ordinary meaning. He
concluded that the term "alternative" meant "affording a choice
of two or more things, propositions, or courses of action,"
citing the Random House Dictionary of the English Language (2d
Ed. 1987). Holmes, DAB CR270, at 13; Weintraub, DAB CR303, at
20. Using this same source, Judge Steinman found that the term
"available" meant "suitable, or ready for use or service; at
hand." Id. Thus, in order to prove that alternative sources of
health care are not available, a petitioner must prove that
alternative sources (sources that can be chosen instead) of the
type of health care furnished by an excluded provider are not
available (suitable or ready for use or service). Id.
In order to qualify as an alternative source of health care, a
source of care must provide items or services that are equivalent
in quality to the type of items or services provided by the
excluded provider. The alternative source also must be able to
substitute for the items or services furnished by the excluded
provider without jeopardizing the health of the beneficiaries or
recipients of those items or services. Weintraub, DAB CR303, at
21; Holmes, DAB CR270, at 13. Furthermore, the alternative
source of health care also must be "available." This means,
consistent with the regulation and the comments that accompanied
its publication, that alternative sources of health care must be
reasonably available. Id.; 57 Fed. Reg. 3315 - 3316 (1992).
Therefore, to qualify as an alternative source of health care, a
source of care must be available in circumstances where Medicare
beneficiaries and Medicaid recipients are able reasonably to make
use of it. Thus, a source of health care will not qualify as an
alternative source under the regulations if it does not consist
of care of the type and quality which was furnished by the
excluded provider. Nor will it qualify if it is located in a
setting so remote from affected beneficiaries and recipients that
they are deprived of reasonable access to it.
However, it is of critical importance to understand that the I.G.
does not have the burden of proving that alternative sources of
care are reasonably available. In every instance where a
petitioner alleges that alternative sources of care are not
available, it is the petitioner who bears the burden of proof.
That means that the petitioner must show that there are not
sources of care which substitute for the care which he or she
provides which are reasonably available to Medicare beneficiaries
and Medicaid recipients. If a petitioner fails to make that
showing by a preponderance of the evidence, then the petitioner
has not established the presence of a mitigating circumstance
within the meaning of the regulations.
A petitioner bears the burden of establishing precisely what
items or services he or she provides that will be affected by the
exclusion. Furthermore, he or she must show what the impact of
the exclusion will be on Medicare beneficiaries and Medicaid
recipients. In this case, Petitioner could have met his burden
of proof by defining the patient population which has reasonable
access to the items or services he provides, and by proving that
other providers or practitioners are not available to provide the
items or services to this patient population.
A petitioner will fail to establish his or her burden if he or
she proves only that services of the type and quality that he or
she provides will be less available to Medicare beneficiaries and
Medicaid recipients by virtue of the petitioner's exclusion. By
definition, an exclusion of a provider or practitioner will
reduce the availability to beneficiaries and recipients of the
items or services that the petitioner provides. However, the
issue is not whether availability has been reduced, but whether,
by virtue of that reduction of availability, beneficiaries and
recipients have been denied reasonable access to care.
Furthermore, a petitioner will fail to establish his or her
burden if he or she proves only that beneficiaries and recipients
may be inconvenienced somewhat by virtue of his or her exclusion.
The test under the regulation is not whether beneficiaries and
recipients have been inconvenienced, but whether, by virtue of
the exclusion of a provider or practitioner, they may no longer
obtain care in a reasonably practicable manner.
4. Petitioner contends that alternative sources of
health care do not exist.
Petitioner contends that he is the only psychiatrist practicing
in the vicinity of Panama City, Florida, who specializes in the
treatment of posttraumatic stress disorders resulting from abuse
occurring during childhood, multiple personality disorders,
eating disorders, and chronic pain cases. Finding 24. He
argues, furthermore, that he is the only psychiatrist in Panama
City who is authorized to prescribe the drug Clozaril, which is
used in treating the primary manifestations of schizophrenia. He
contends that, by virtue of his exclusion, Medicare beneficiaries
who need treatment for the conditions he specializes in treating
will have to seek their treatment elsewhere. Moreover, according
to Petitioner, other psychiatrists in the Panama City area lack
the background and expertise that Petitioner has, or are
reluctant, unwilling, or unable to treat patients suffering from
the disorders that Petitioner specializes in treating.
Petitioner argues that psychiatrists who practice in other
communities besides Panama City are located too far away to
provide reasonable access to Medicare beneficiaries for the items
or services which Petitioner provides. According to Petitioner,
the nearest community of substantial size is Fort Walton Beach,
Florida, a town located approximately 60 miles from Panama City.
Other large communities which are relatively close to Panama City
are Pensacola, Florida, and Mobile, Alabama. There are
psychiatrists who practice in these communities. However, they
are located several hours from Panama City. Petitioner contends,
furthermore, that there is not much public transportation between
Panama City and other communities. Petitioner argues
additionally that patients suffering from chronic pain conditions
would not be able to withstand the rigors of the long drives to
Fort Walton Beach, Pensacola, or Mobile.
Thus, according to Petitioner, his exclusion means that
beneficiaries and recipients will be deprived of reasonable
access to items or services of the nature and quality provided by
Petitioner. He argues, therefore, that alternative sources of
the type of health care items or services he provides will not be
available to beneficiaries and recipients.
The evidence which Petitioner offered to support these
contentions consists of Petitioner's testimony and the testimony
of John F. Mason, M.D. Dr. Mason is a psychiatrist who has
practiced in the Panama City area since 1967. Tr. at 13. He
testified that there exist two hospitals in Panama City with
psychiatric beds; Rivendale Hospital, with 80 beds, and Bay
Medical Center with 22 beds. Tr. at 14. He identified also a
community mental health facility in Panama City, Life Management,
which functions as a community health center, providing services
primarily to the indigent population. Id.
Dr. Mason testified that he was familiar personally with
Petitioner. Tr. at 15. He contended that Petitioner had certain
areas of expertise that other psychiatrists in the Panama City
area lacked. Tr. at 18. These areas included treatment of
multiple personality disorders, chronic pain disorders, chronic
eating disorders, and posttraumatic stress disorders related to
ritualistic abuse. Tr. at 18 - 19. He estimated that from 25 to
50 percent of Petitioner's practice consisted of patients whom
other psychiatrists in Panama City either can't or won't treat.
Tr. at 19.
Dr. Mason contended that, as a consequence of Petitioner's
exclusion, it had become difficult to maintain a rotation of
psychiatrists at hospitals in Panama City who are available to
admit patients who need acute care. Tr. at 20 - 21. He did not
aver that Petitioner's exclusion had resulted in situations where
psychiatrists were unavailable to authorize hospitalization of
patients needing acute care.
Dr. Mason testified also concerning the treatment specialties of
other psychiatrists in the Panama City area and their willingness
to accept Medicare beneficiaries as patients. Tr. at 21 - 29.
He testified concerning the following psychiatrists: Dr. Daniel
Tucker, Dr. Rojani Pattel, Dr. Louis Zumarraga, Dr. Rudolfo
Nellas, Dr. Multaiya Darmarajah, Dr. F.E. Hebron, Dr. Ofelia
Borlongon, Dr. John Sapoznikoff, Dr. Teodora Reyes, Dr. Vijapura
Divan, and Dr. Ben Pimental. Dr. Mason testified also about a
Dr. Subareddy, in Cottondale, Florida, two psychiatrists in the
Fort Walton Beach area, Drs. Neumeyer and Calnaido, and a
psychiatrist in Marianna, Florida, Dr. Ralph Walker. Tr. at 29 -
32.
Dr. Mason asserted that Dr. Tucker's practice is confined
"predominately" to children and adolescents and that Dr. Tucker
was "really not available to the Medicare group." Tr. at 23. He
stated that Dr. Pattel is a child psychiatrist predominately, who
"treats a few adults." Tr. at 23 - 24. He testified that Dr.
Zumarraga did not have special training in the treatment of
posttraumatic stress disorders, nor did he have special training
in the area of chronic pain management. Tr. at 25. Furthermore,
according to Dr. Mason, it was his understanding that Dr.
Zumarraga planned to retire in the next year or so. Id. Dr.
Mason asserted that Dr. Nellas no longer practiced in the Panama
City area. Tr. at 26. He testified that Dr. Hebron works for
Life Management. He stated that he had no direct knowledge of
the types of patients that Dr. Hebron treated. Id. Dr. Mason
asserted that he did not know Dr. Borlongon, and that he was
unable to find a listing for Dr. Borlongon in the Panama City
telephone directory. Tr. at 27. He testified that Dr.
Sapoznikoff accepted Medicare beneficiaries as new patients. Tr.
at 27. However, he asserted that Dr. Sapoznikoff had a heavy
caseload and that his practice did not "specifically" involve the
areas of concentration in which Petitioner specialized. Tr. at
27 - 28. Dr. Mason testified that Dr. Divan accepted new
patients who are Medicare beneficiaries. Tr. at 28 - 29.
Dr. Mason testified that Dr. Subareddy no longer practiced in
Cottondale, a town which, according to Dr. Mason, is located 50
miles from Panama City. Tr. at 29. He testified that he did not
know either Dr. Neumeyer or Dr. Calnaido. Tr. at 30. He
asserted, however, that travel time to Fort Walton Beach was
about an hour and one-half, due to traffic, and that there was no
regular public transportation between Panama City and Fort Walton
Beach. Id. He asserted that it would be very difficult for
chronically ill or elderly patients to travel from Panama City to
Fort Walton Beach. Tr. at 31. Dr. Mason testified that Dr.
Walker suffered from metastatic cancer and would soon be unable
to treat patients. Tr. at 32.
Dr. Mason testified that travel time from Panama City to Mobile,
Alabama, was about three hours. Tr. at 32. He testified that
the State hospital in Chattahoochee, Florida, was not available
to hospitalize patients. Tr. at 32 - 33. He contended that
Harbor Oaks Hospital in Fort Walton Beach did not accept acute
care psychiatric patients. Tr. at 33. He testified that the
Humana Hospital in Fort Walton Beach provided services in a one
hundred mile radius, "just like we do." Tr. at 33. Finally, he
contended that a patient from Panama City and his or her family
would incur greater inconvenience by virtue of being hospitalized
in Fort Walton Beach than if that patient were hospitalized in
Panama City. Tr. at 33 - 34.
Petitioner testified that he has practiced psychiatry in the
Panama City area since September 1990. Tr. at 39. He asserted
that in his practice he sees between 700 and 900 individuals a
year. Tr. at 40. According to Petitioner, about 30 percent of
his patients are Medicare beneficiaries. Tr. at 41. He averred
that from five to seven percent of his patients are recipients of
some kind of federal funding other than Medicare. Id.
Petitioner did not testify that he sees patients who are Medicaid
recipients, nor did Petitioner offer other evidence to establish
that he treats Medicaid recipients. See Tr. at 40 - 41.
Petitioner averred that he has extensive experience in treating
patients who suffer from posttraumatic stress disorders. Tr. at
41 - 42. He contended that "most of my patients who are post-
traumatic stress disorder either from ritual abuse or from
childhood sexual and/or sadistic abuse end up being Medicare
patients because they're pretty disabled people." Tr. at 42.
However, Petitioner did not offer an estimate of the number of
patients he treated who suffer from posttraumatic stress
disorders and who are Medicare beneficiaries. See Tr. at 42.
Petitioner averred also that he has a large number of chronic
pain patients. Tr. at 43. According to Petitioner: "These
usually begin as Workman's Compensation patients, and then end up
usually after a very short period of time as Medicare patients."
Id. However, Petitioner offered no estimate of the number of
Medicare beneficiaries he treats who are chronic pain patients.
See Tr. at 43.
Petitioner testified that his specialties include the treatment
of eating disorders. Tr. at 43 - 44. He did not aver that any
patients of his who are Medicare beneficiaries suffer from eating
disorders. See Tr. at 43 - 44. He testified additionally that
he specialized in the treatment of multiple personality
disorders. Tr. at 44. However, he did not testify that he
treated patients who are Medicare beneficiaries who suffer from
multiple personality disorders. See Tr. at 44.
Petitioner testified that he is the only physician in the Panama
City area who is authorized to prescribe the drug Clozaril (also
referred to in Petitioner's testimony as "clozapine"). Tr. at
45. He asserted that Clozaril is the only "cure" for
schizophrenia. Id. Petitioner contended that, in order to be
authorized to prescribe Clozaril, a physician must be on a
registry of physicians who are authorized to prescribe the drug.
Tr. at 46. He testified that most people receiving Clozaril are
chronic schizophrenics who are receiving Medicare benefits or who
are Medicaid recipients. Tr. at 47. Petitioner did not testify
as to the number of his patients who received Clozaril who are
Medicare beneficiaries. See Tr. at 46 - 47. 6/
Petitioner testified concerning his knowledge of other
psychiatrists' areas of specialization and the patients they
treated. Tr. at 48 - 55. He testified that Dr. Tucker devotes
most of his time to his duties as medical director of Rivendale
Hospital. Tr. at 48. He contended that Dr. Tucker takes on few
new patients and that his area of specialization consisted of
child and adolescent psychiatry. Id. He asserted that Dr.
Pattel specializes also in child and adolescent psychiatry. Id.
Petitioner testified that, since his exclusion, Medicare
beneficiaries who were his patients who needed to be hospitalized
had been hospitalized under the authority of Dr. Mason, Dr.
Tucker, or Dr. Pattel. Tr. at 49.
Petitioner testified that he continued to maintain a relationship
with these patients as a primary therapist and that he would see
them without charging them a fee. Id. He testified that his
sentence mandated that he devote 750 hours to community service
and that, as a result, he had been providing free services. Tr.
at 49 - 50. Petitioner offered no estimate of the percentage of
the hours of non-compensated medical care he is providing that
are being provided on behalf of his patients who are Medicare
beneficiaries. See Tr. at 50. Petitioner did not testify as to
the number of Medicare beneficiaries who were patients of his who
had been hospitalized under the authority of Dr. Mason, Dr.
Tucker, or Dr. Pattel. See Tr. at 48 - 49.
Petitioner contended that he had attempted unsuccessfully to
refer his patients to other psychiatrists. Tr. at 49. According
to Petitioner: "Most of my patients the other psychiatrists
don't want." Id. Petitioner asserted that he did not know
whether his relationship with Drs. Tucker and Pattel would
continue on its present basis once he completed the community
service aspect of his sentence. Tr. at 50 - 51. Petitioner did
not indicate whether, upon completion of his community service,
his relationship with Dr. Mason would continue. See Tr. at 50 -
51.
Petitioner testified that Dr. Zumarraga planned to return to the
Philippines in the near future and to practice medicine there.
Tr. at 51. He stated that Dr. Nellas left the Panama City area
about a year ago. Id. He contended that Dr. Darmarajah stated
that he did not want to treat posttraumatic stress disorder and
eating disorder cases. Tr. at 52. Petitioner testified that Dr.
Sapoznikoff will actively take geriatric Medicare patients. Tr.
at 55. However, according to Petitioner, Dr. Sapoznikoff told
him that he did not want to take new Medicare patients because he
didn't get compensated for the work. Id.
Petitioner asserted that hospital facilities in Fort Walton Beach
did not offer a viable alternative to treatment facilities in
Panama City, because Fort Walton Beach was too far for patients
to travel. Tr. at 53. He asserted that Medicare patients were
either too old to travel there, or could not afford to travel
that distance. Tr. at 54. He averred that there presently
existed a waiting list at Life Management, the facility in Panama
City which treats Medicaid recipients. Id.
5. The I.G. offered exhibits to rebut Petitioner's contentions.
The I.G. called no witnesses. She offered exhibits which
consisted, essentially, of directories of practitioners and
providers in Panama City and other locations which accepted
Medicare or Medicaid. I.G. Ex. 3; I.G. Ex. 5. The exhibits
listed psychiatrists in Panama City, Fort Walton Beach, and
Pensacola, who accepted Medicare or Medicaid. The following
Panama City psychiatrists were listed as accepting Medicare: Dr.
Borlongon, Dr. Darmarajah, Dr. Hebron, Dr. Nellas, Dr.
Sapoznikoff, and Dr. Zumarraga. I.G. Ex. 5 at 4. The following
Pensacola psychiatrists were listed as accepting Medicare: Dr.
Frank Creel, Dr. Theodore Marshall, Dr. Jose Montes, and Dr.
Russell Packard. I.G. Ex. 5 at 6. The following Panama City
psychiatrists were listed as accepting Medicaid: Dr. Borlongon,
Dr. Darmarajah, Dr. Hebron, Dr. Nellas, Dr. Pimental, Dr.
Sapoznikoff, Dr. Vijapura, and Dr. Zumarraga. I.G. Ex. 3 at 7 -
8.
6. The evidence offered by Petitioner is unpersuasive, and is
insufficient to prove the absence of alternative sources of
health care.
I conclude that Petitioner has not met his burden of proving that
alternative sources of the type of health care he provides are
not reasonably available to Medicare beneficiaries and Medicaid
recipients. He has failed in three respects. First, he has not
shown the extent to which his unique services are utilized by
Medicare beneficiaries and Medicaid recipients. Second, he has
not shown that program beneficiaries, including his patients,
will be unable reasonably to obtain alternative sources of health
care. Finally, the proof which he offered was insubstantial, and
I do not accept key elements of it as credible.
There is no evidence to suggest that Medicaid recipients will be
affected by Petitioner's exclusion. Petitioner did not aver that
he accepted Medicaid recipients as patients. He is not listed in
any of the I.G.'s exhibits as a practitioner who is willing to
accept reimbursement from the Florida Medicaid program for
treating Medicaid recipients. I do not find that Petitioner
actually treats Medicaid recipients. Given that, there is no
proof that his exclusion will have any impact on Medicaid
recipients. 7/
The centerpiece of Petitioner's argument is that there are no
alternative sources of care reasonably available to Medicare
beneficiaries who suffer from the conditions which Petitioner
specializes in treating. These include posttraumatic stress
disorder patients, chronic pain patients, eating disorder
patients, and patients who receive Clozaril for schizophrenia. I
accept as true Petitioner's assertion that he treats
beneficiaries who suffer from posttraumatic stress disorders,
chronic pain, or who receive Clozaril for their schizophrenia.
Petitioner did not aver that he treats Medicare beneficiaries who
suffer from eating disorders and I do not conclude that he treats
beneficiaries who suffer from eating disorders. Nor did
Petitioner aver that he treats Medicare beneficiaries who suffer
from multiple personality disorders. I do not find that he
treats Medicare beneficiaries who suffer from multiple
personality disorders.
Petitioner offered no evidence as to the number of Medicare
beneficiaries he treats who suffer from the conditions he
specializes in treating. The fact that 30 percent of his
patients may be Medicare beneficiaries does not, in and of
itself, lead to the inference that a substantial number of these
patients suffer from posttraumatic stress disorders, chronic
pain, or schizophrenia treated by Clozaril. Therefore, it is not
possible to infer reasonably from the evidence offered by
Petitioner that there are a substantial number of Medicare
beneficiaries who might be affected adversely by his exclusion.
8/
Furthermore, Petitioner offered no evidence to establish the
location of the residences of the Medicare beneficiaries he
treats who suffer from the conditions he specializes in treating.
Evidence as to the distribution of the residences of the
beneficiaries who Petitioner treats potentially could have been
helpful in showing whether Petitioner's exclusion would affect
these beneficiaries adversely. Absent such evidence, I do not
find these beneficiaries are located so close to Petitioner's
office in Panama City as to render impracticable their travel to
some other community for psychiatric care. For example, the
evidence establishes that Fort Walton Beach is located about 60
miles from Panama City. There is nothing in the record to
establish whether the Medicare beneficiaries who might need to
obtain alternate care by virtue of Petitioner's exclusion live
relatively close to Panama City and relatively far from Fort
Walton Beach, live at some point between the two communities, or
live elsewhere. 9/
Indeed, there is evidence in the record to show that the
facilities in the communities of Panama City and Fort Walton
Beach which hospitalize psychiatric patients are organized to
accept patients on a regional, rather than a strictly local
basis. Dr. Mason testified that Humana Hospital in Fort Walton
Beach services "100 miles in every direction, just like we do."
Tr. at 33. From the context of Dr. Mason's testimony, I infer
that "we" means Rivendale Hospital in Panama City. That these
hospitals accept patients on a regional basis suggests that their
patient populations may not be concentrated in the communities of
Panama City and Fort Walton Beach, but may, in fact, be
dispersed.
Petitioner did not prove that the other psychiatrists in the
Panama City area who treat Medicare beneficiaries are incapable
of treating the conditions which Petitioner specializes in
treating. Essentially, Petitioner's evidence as to his
specialization is that he is more qualified than other local
psychiatrists to treat these conditions. He did not prove that
others could not treat these conditions. In fact, Petitioner's
own witness, Dr. Mason, admitted that psychiatrists besides
Petitioner were qualified to hospitalize patients who suffered
from the conditions Petitioner specialized in treating, who
needed hospitalization. Tr. at 35 - 36.
Finally, the evidence which Petitioner offered as to the
availability of other practitioners to provide care of the type
and quality which Petitioner provides is exceedingly weak, and in
my judgment, not credible. It consists exclusively of the
anecdotal, uncorroborated and not credible hearsay accounts of
Petitioner and Dr. Mason as to the areas of expertise of other
psychiatrists, and their willingness to treat patients who suffer
from the conditions that Petitioner specializes in treating.
Petitioner offered no direct evidence as to the specialization of
other psychiatrists or their willingness to treat Petitioner's
patients. He obtained no statements from other psychiatrists,
and called none of them (except Dr. Mason) as witnesses.
For example, Petitioner asserted that he was the only physician
in the Panama City area authorized to prescribe Clozaril who
actually prescribed it to patients without presenting any
evidence besides his unsubstantiated assertion to establish that
some special authorization was necessary as a prerequisite for
prescribing the drug. He offered no meaningful evidence as to
the criteria for obtaining authorization, or as to whether other
psychiatrists might qualify to obtain such authorization if, by
virtue of Petitioner's exclusion, they found it necessary to do
so. He did not suggest that other psychiatrists lacked the
training or expertise to administer Clozaril. And, as I find
above, he offered no evidence to show how many of his patients
were Medicare beneficiaries who actually received Clozaril.
The fact that I admit hearsay evidence in a hearing does not mean
that I find it to be persuasive. The reason that most rules of
evidence exclude hearsay is that the credibility of such evidence
is inherently suspect. See generally, Fed. R. Evid. 801 advisory
committee's note; Fed. R. Evid. 802 advisory committee's note;
McCormick on Evidence, 244 - 45, at 90 - 96 (4th ed. 1992).
Frequently, there is no way for the party against whom hearsay is
offered to attack the credibility of the evidence, because the
declarant is not available to be cross-examined. That was
certainly the case with the evidence that Petitioner and Dr.
Mason presented about other psychiatrists. I admit hearsay
routinely because it is appropriate for me to do so in the
somewhat informal context of an administrative hearing, as
opposed to the more rigid rules which govern jury trials. 42
C.F.R. 1005.17. But I evaluate such evidence critically, to
determine whether it is probative and reliable.
In this case, the anecdotal hearsay evidence which Petitioner and
Dr. Mason offered concerning the availability of other
psychiatrists was totally unsubstantiated and I find it to be not
credible. Moreover, I find the attributions which Petitioner and
Dr. Mason offered about other psychiatrists to be unreliable
because they are self-serving and unverifiable. In reaching my
conclusion about this testimony, I recognize that it consists of
the testimony of two witnesses. However, both witnesses'
testimony is similarly anecdotal and unreliable. Therefore, the
fact that Petitioner's testimony is supported by Dr. Mason's
testimony does not make it anymore credible or reliable.
Petitioner could have obtained statements from other
psychiatrists as to their areas of specialization and their
willingness to treat Petitioner's patients. Such statements
would have comprised direct evidence from these physicians rather
than statements attributed to them. And, although such
statements would be hearsay (unless the other psychiatrists
appeared personally to testify at the hearing) the I.G. would at
least have had notice about these statements and would have had
the opportunity to subpoena the declarants for cross-examination
or to otherwise impeach the statements. The fact that in this
case, Petitioner chose not to present the evidence so that it was
subject to cross-examination or verification calls into question
the validity of that evidence.
CONCLUSION
I conclude that Petitioner has not established the presence of
any factors which would mitigate the exclusion imposed against
him by the I.G. Therefore, I find that the three-year exclusion
imposed and directed against Petitioner by the I.G. is consistent
with the requirements of 42 C.F.R. 1001.201(b), and I sustain
it.
___________________________
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. Unless the
context indicates otherwise, I use the term "Medicaid" hereafter
to represent all State health care programs from which Petitioner
was excluded.
2.
Petitioner has admitted that he was convicted of a criminal
offense within the meaning of section 1128(b)(1) of the Act.
Transcript at 8. There is no dispute as to the I.G.'s authority
to exclude Petitioner under section 1128(b)(1).
3. The following citations are used in this Decision:
Petitioner's Brief . . . . . P. Br. at (page)
I.G.'s Brief. . . . . . . . . I.G. Br. at (page)
Petitioner's Reply Brief. . . P. R. Br. at (page)
I.G.'s Reply Brief . . . . . I.G. R. Br. at (page)
I.G.'s Exhibit . . . . . . . I.G. Ex. (number) at (page)
Transcript . . . . . . . . . Tr. at (page)
My Findings of Fact
and Conclusions of Law . . . Finding(s) (number)
4.
The presence of an aggravating factor in a case does not mean
that an exclusion in excess of the benchmark must be imposed or
that an exclusion in excess of the benchmark will be adjudicated
to be reasonable. Similarly, the presence of a mitigating factor
in a case does not mean that an exclusion of less than the
benchmark must be imposed or that an exclusion of less than the
benchmark will be adjudicated to be reasonable. The presence of
aggravating or mitigating factors in a particular case allows the
adjudicator to consider whether an exclusion of more or less than
the benchmark is reasonable. The presence of such factors does
not direct a finding that an exclusion of more or less than the
benchmark must be reasonable. The adjudicator must still decide
whether an exclusion of a particular length comports with the
remedial purpose of the Act, and with the regulations.
Weintraub, DAB CR303, at 39.
5.
In Holmes and Weintraub, Judge Steinman analyzed the mitigating
factor as it appears in 42 C.F.R. 1001.401(c)(3)(ii), the
section of the regulations which identifies that factor in
connection with exclusions imposed pursuant to section 1128(b)(3)
of the Act. However, the language regarding the mitigating
factor in that section is identical to the regulatory language
which is at issue here, appearing in 42 C.F.R.
1001.201(b)(3)(iv).
6.
As I noted above, Petitioner offered no evidence to show that
he treats Medicaid recipients.
7.
Petitioner's claim that from five to seven percent of his
practice involve individuals whose health care is financed by
federal programs other than Medicare is not sufficient for me to
conclude that any of these patients are Medicaid recipients.
Other than stating his estimate as to the percentage of his
practice which involved such patients, Petitioner offered no
testimony whatsoever about them. He made no argument that these
were Medicaid patients or that any of these patients would be
affected by his exclusion.
8.
Petitioner averred that he first began practicing in the Panama
City area in September 1990. He offered no evidence to show how
Medicare beneficiaries in the community who suffered from the
conditions which Petitioner contended he is uniquely qualified to
treat obtained treatment for their conditions prior to that date.
9. Petitioner's contention that his patients would be
affected adversely by his exclusion consisted essentially of his
uncorroborated allegations. He did not offer statements from any
of his patients which suggested that they would be affected
adversely. He offered no patient records or other office records
to establish who he treated and who might be affected adversely
by his exclusion.