$05:Exclusion Case
Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
In the Case of:
Anthony Cerrone, D.M.D.,
Petitioner,
- v. -
The Inspector General.
Date: May 3, 1995
Docket No. C-95-009
Decision No. CR373
DECISION
On August 12, 1994, the Inspector General (I.G.) notified
Petitioner that he was being excluded from participating in the
following programs: Medicare, Medicaid, Maternal and Child Health
Services Block Grant and Block Grants to States for Social
Services. The I.G. advised Petitioner that she had determined that
the exclusion was authorized by section 1128(b)(4) of the Social
Security Act (Act). She informed Petitioner that the exclusion
specifically was based on Petitioner's surrender of his license to
provide health care in the State of New York while a formal
disciplinary proceeding was pending in that State relating to
Petitioner's professional competence, professional performance, or
financial integrity. Petitioner was told that he would not be
eligible to apply for reinstatement to the programs until he
obtained a valid license to provide health care in New York.
Petitioner requested a hearing. In his request, Petitioner did not
deny that he had surrendered his New York license to practice
dentistry during the pendency of formal disciplinary proceedings.
Petitioner asserted that the reasons he surrendered his license in
New York were expedience and convenience. He averred that the
reasons for his surrender did not involve his professional
competence, professional performance, or financial integrity.
However, Petitioner did not deny that the proceedings in New York
involved allegations concerning his professional competence,
professional performance, or financial integrity.
Petitioner averred also that, since 1987, he had been licensed to
practice dentistry in the State of Pennsylvania. Petitioner stated
that the Pennsylvania licensing authorities were fully aware of the
New York proceeding but had not placed any impediment, sanctions,
or restrictions on his license to practice dentistry in
Pennsylvania.
At a prehearing conference, Petitioner advised me that he desired
an in-person hearing. I concluded from Petitioner's request for a
hearing that there existed disputed issues of material fact in this
case. I scheduled an in-person hearing.
However, shortly before the scheduled hearing date, the I.G. moved
to cancel the hearing on the ground that there existed no issues
which involved disputed material facts. The I.G. asserted that,
contrary to Petitioner's previous assertion, the State of
Pennsylvania had expressed an intent to take action against
Petitioner's license to practice dentistry in Pennsylvania, based
on the outcome of the New York proceeding.
I postponed the in-person hearing in order to allow the I.G. the
opportunity to move for summary disposition of the case. I advised
the parties that I would reschedule the in-person hearing if I
decided that there existed disputed material facts which could not
be established without a hearing.
The I.G. moved for summary disposition. Petitioner opposed the
motion. I have carefully considered the facts alleged by the
parties, their arguments, and the law. I conclude that there exist
no disputed material facts in this case. I conclude also that the
I.G. had authority, pursuant to section 1128(b)(4)(B) of the Act,
to exclude Petitioner. Finally, I conclude that, under the
regulations which govern exclusions imposed under section
1128(b)(4) of the Act, the exclusion in this case must remain in
effect until Petitioner obtains a valid license to practice health
care in the State of New York. Therefore, I sustain the exclusion
imposed against Petitioner by the I.G.
I. Issues, findings of fact, and conclusions of law
There are two issues in this case. The first issue is whether the
I.G. had authority to exclude Petitioner under section 1128(b)(4)
of the Act. The second issue is whether the length of the
exclusion -- coterminous with the term of the surrender of
Petitioner's license to practice dentistry in New York -- is
reasonable.
In concluding that the I.G. had authority to exclude Petitioner and
that the length of the exclusion is reasonable, I make the
following findings of fact and conclusions of law. After each
finding or conclusion, I state the page or pages of this decision
at which I discuss the finding or conclusion in detail.
1. Petitioner surrendered his license to practice dentistry
in New York during the pendency of formal disciplinary proceedings
which concerned his professional competence or performance. Pages
5 - 8.
2. The I.G. was authorized to exclude Petitioner pursuant to
section 1128(b)(4)(B) of the Act. Pages 3 - 9.
3. Petitioner has not offered evidence to support his
contention that the State of Pennsylvania was fully informed of the
New York proceedings, but decided to take no action against
Petitioner's license to practice dentistry in Pennsylvania. Pages
8 - 9.
4. The exclusion which the I.G. imposed against Petitioner is
reasonable. Pages 3 - 9.
II. Analysis of the law and facts
A. Analysis of the law
The I.G. excluded Petitioner pursuant to section 1128(b)(4) of the
Act. This section authorizes the Secretary (or her delegate, the
I.G.) to 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.
The Secretary has published a regulation which governs the length
of exclusions which are imposed pursuant to section 1128(b)(4) of
the Act. 42 C.F.R. 1001.501. This regulation provides,
generally, that an exclusion imposed pursuant to section 1128(b)(4)
will be for the same length of time as the State revocation,
suspension, surrender or other loss of a license to provide health
care which is the basis for the exclusion. 42 C.F.R.
1001.501(b)(1). However, the regulation states an exception
permitting an exclusion to be for less than a coterminous period.
Under 42 C.F.R. 1001.501(c)(1), an exclusion may be for less
than a coterminous period if, prior to the date of the I.G.'s
notice of exclusion to the excluded individual or entity:
the licensing authority of a State (other than the one in
which the individual's or entity's license had been revoked,
suspended, surrendered or otherwise lost), being fully apprised of
all of the circumstances surrounding the prior action of the
licensing board of the first State, grants the individual or entity
a license or takes no significant adverse action as to a currently
held license, . . . .
Neither the Act nor the regulations which govern exclusions imposed
pursuant to section 1128 of the Act allocate the burden of
persuasion on the issues of whether an exclusion is authorized or
whether the length of an exclusion is reasonable. Instead, the
regulations which govern a hearing in an exclusion case under
section 1128 provide that the administrative law judge shall have
the authority to allocate the burden of persuasion as is
appropriate. 42 C.F.R. 1005.15(c).
Generally, administrative law judges allocate to the I.G. the
burden of proving both that an exclusion is authorized and that the
length of an exclusion is reasonable. However, the burden usually
shifts to a petitioner where a petitioner advocates an affirmative
exception to a general rule governing the length of an exclusion.
The guiding principle is that the party which is most likely to be
in possession of evidence which would establish a contested fact
bears the burden of persuasion as to that fact.
In this case, the I.G. has the burden of proving that an exclusion
is authorized under section 1128(b)(4) of the Act. Although the
I.G. has also the burden of proving the exclusion is reasonable,
that burden will be met in this case by proving that the authority
exists to exclude Petitioner. No additional evidence is required
here to establish a prima facie case that the coterminous exclusion
imposed by the I.G. is reasonable. This is because, assuming that
the I.G. proves she was authorized to exclude Petitioner, a
coterminous exclusion is presumed to be reasonable. 42 C.F.R.
1001.501(b)(1).
The existence of this presumption arguably imposes a lesser burden
on the I.G. in a case involving section 1128(b)(4) of the Act than
in a case involving other subsections of section 1128. In some
cases involving other subsections of section 1128 of the Act, the
I.G.'s burden of proving that an exclusion is reasonable might
consist of proving that the petitioner is so untrustworthy as to
necessitate the exclusion that has been imposed.
Petitioner has the burden of proving any affirmative argument he
offers to rebut the presumption of reasonableness contained in 42
C.F.R. 1001.501(b)(1). In this case, Petitioner's burden of
proof consists of establishing that, prior to the date of the
I.G.'s notice of exclusion, the State of Pennsylvania, being fully
apprised of the events that transpired in New York, decided not to
take action with respect to Petitioner's license to practice
dentistry in Pennsylvania. Imposing this burden on Petitioner is
reasonable, because Petitioner is the party most likely to be in
possession of evidence concerning the reaction of Pennsylvania
authorities to the events in New York. 1/
B. Analysis of the evidence
Summary disposition sustaining Petitioner's exclusion is
appropriate. There exists no reason for me to conduct an in-person
hearing. The undisputed material facts of this case establish that
the I.G. was authorized to exclude Petitioner for a period which is
coterminous with the term of his license surrender in New York.
Petitioner surrendered his license to practice dentistry in New
York during the pendency of formal disciplinary proceedings
concerning that license. These proceedings concerned Petitioner's
professional competence or performance.
Petitioner has not offered any evidence which would support the
contention, made in his hearing request, that, prior to the date of
the I.G.'s exclusion notice, the licensing authority in
Pennsylvania, being fully apprised of the circumstances surrounding
the surrender of Petitioner's license in New York, decided to take
no action with respect to Petitioner's Pennsylvania license to
practice dentistry. Indeed, evidence offered by the I.G. suggests
the opposite to be true.
The undisputed material facts of this case are as follows. On
November 30, 1992, the New York State Education Department, Office
of Professional Discipline, State Board for Dentistry (New York
licensing authority) issued a statement of charges against
Petitioner. I.G. Ex. 1. 2/ The statement of charges alleged five
specifications of professional misconduct, consisting of
negligence, incompetence, gross negligence, gross incompetence, and
unprofessional record keeping. I.G. Ex. 1 at 1 - 4. On December
3, 1993, Petitioner executed an application to surrender his New
York license to practice dentistry. I.G. Ex. 2. In this
application, Petitioner acknowledged the pendency of a formal
disciplinary proceeding concerning his license to practice
dentistry in New York. Id. at 1 - 2. He stated that he was
applying for permission to surrender his license on the ground that
he did not contest the charges pending against him in New York.
Id. On March 18, 1994, the New York licensing authority accepted
Petitioner's offer to surrender his license. I.G. Ex. 3.
Petitioner asserts that he surrendered his New York license for
reasons of expediency. He asserts also that his reasons for
surrendering that license did not constitute an acknowledgement by
him that the charges that were pending in New York were true.
Petitioner asserts further that the facts which underlie the
charges made against him in New York do not substantiate those
charges. Finally, Petitioner denies generally that the I.G. has
established facts which authorize the exclusion or which establish
the exclusion to be reasonable.
None of Petitioner's assertions refute the material facts alleged
by the I.G. What has not been contested by Petitioner is that:
(1) formal disciplinary proceedings were instituted in New York
concerning Petitioner's license to practice dentistry in that
State; (2) these proceedings concerned Petitioner's professional
competence and performance; and (3) Petitioner surrendered his
license during the pendency of these proceedings. Those
uncontested facts comprise the necessary elements of the I.G.'s
case, both as to the I.G.'s authority to exclude Petitioner and as
to the reasonableness of the exclusion.
Petitioner's general denial of the facts is only that. He has not
raised any facts which call into question the veracity of the
I.G.'s assertions.
I accept, for purposes of this decision, that Petitioner
surrendered his license for reasons of expediency. It is apparent
also from the exhibits produced by the I.G. that, in surrendering
his license, Petitioner did not admit that the charges made against
him in New York were true. See I.G. Ex. 2 - 3. However, under
section 1128(b)(4)(B), it is unnecessary for the I.G. to prove that
an individual or entity admits to the truth of the charges made in
a disciplinary proceeding, or that the charges are true, in order
to establish a basis for an exclusion. The I.G. is authorized to
exclude a party under section 1128(b)(4)(B) where the party
surrenders his or her license to provide health care during the
pendency of formal disciplinary proceedings that concern that
party's professional competence, professional performance, or
financial integrity.
Petitioner has not offered any facts to support his contention that
the State of Pennsylvania decided not to take action against his
license to practice dentistry in Pennsylvania, after being fully
apprised of the proceeding against Petitioner in New York. As I
hold above, Petitioner has the burden of persuasion on this issue.
His failure to allege material facts to support his contention is,
in and of itself, sufficient for me to conclude that there are no
material facts which Petitioner might prove. However, there exists
also evidence which suggests that Petitioner's contention is not
correct.
On June 6, 1994, the Chief Prosecutor of the Commonwealth of
Pennsylvania Bureau of Professional and Occupational Affairs
(Pennsylvania licensing authority) advised Petitioner that the
Pennsylvania licensing authority would take action concerning
Petitioner's Pennsylvania license, based on the New York charges,
should Petitioner return to practice dentistry in Pennsylvania.
I.G. Ex. 5. 3/
The date of this letter predates the I.G.'s August 12, 1994
exclusion notice to Petitioner. It refutes Petitioner's assertion
that, prior to the date of the I.G.'s exclusion notice, the State
of Pennsylvania, being fully apprised of the New York proceeding,
decided to take no action with respect to Petitioner's Pennsylvania
license.
On December 30, 1994, the Pennsylvania licensing authority sent
Petitioner notice that a formal disciplinary action had been filed
against him. I.G. Ex. 7. An accompanying order to show cause
asserts that, based on the charges made against Petitioner in New
York, Petitioner had violated Pennsylvania laws governing the
practice of dentistry. Id. at 2 - 5.
These exhibits establish that, contrary to Petitioner's assertion,
the Pennsylvania licensing authority expressed an intent to take
action concerning Petitioner's Pennsylvania license, based on the
New York charges. They rebut squarely Petitioner's argument that
the facts in this case would establish that an exception exists
under 42 C.F.R. 1001.501(c)(1) to the presumption contained in
42 C.F.R. 1001.501(b)(1) that the coterminous exclusion imposed
by the I.G. is reasonable.
III. Conclusion
I conclude that the undisputed material facts of this case
establish that the I.G. was authorized to exclude Petitioner under
section 1128(b)(4) of the Act, and that the exclusion imposed by
the I.G. is reasonable. Petitioner has not offered any evidence to
either rebut the facts asserted by the I.G. or to establish that
the exclusion is not reasonable. Therefore, I enter summary
disposition sustaining the I.G.'s exclusion determination.
________________________
Steven T. Kessel
Administrative Law Judge
1. Of course, Petitioner assumes this burden only if the I.G.
proves the elements of her case. Petitioner is not obligated to
allege or prove an affirmative basis for a less-than coterminous
exclusion unless the I.G. can prove that there is a basis for
imposing such an exclusion.
2. On three occasions, the I.G. offered exhibits to support her
positions in this case. On January 25, 1995, the I.G. submitted
exhibits, which she designated as I.G. Ex. 1 and 2, to support her
motion to cancel the in-person hearing. On January 27, 1995, the
I.G. submitted I.G. Ex. 1 - 7 as her prehearing exchange of
exhibits. On March 6, 1995, the I.G. submitted four exhibits,
which she designated I.G. Ex. 1 - 4, in connection with her motion
for summary disposition. Many of the exhibits in one or more of
the three submissions appear to be identical to exhibits offered by
the I.G. in her other submissions. Because of the obvious
confusion which results from submitting more than one set of
exhibits bearing the same exhibit numbers, I directed the I.G. to
advise me and Petitioner which of the exhibits she was relying on
to support her motion for summary disposition. By letter dated
April 18, 1995, the I.G. advised me and Petitioner that she
intended to rely on I.G. Ex. 1 - 7 which she had submitted as part
of her prehearing exchange. Petitioner has not objected to the
authenticity or contents of any of these exhibits, and I hereby
admit them into evidence. I do not admit the exhibits which the
I.G. submitted at other times.
I note, however, that in a motion for summary disposition, it is
not, strictly speaking, necessary to admit exhibits into evidence.
Indeed a party need not offer exhibits to support that party's
allegations of material fact, so long as those allegations are not
disputed.
3. On June 28, 1994, Petitioner responded to this notification.
I.G. Ex. 6. The fact that Petitioner responded indicates that he
was aware that the Pennsylvania licensing authority was
contemplating taking action with respect to his Pennsylvania
license. Id.