DEPARTMENT OF HEALTH AND HUMAN SERVICES
Departmental Appeals Board
Civil Remedies Division
In the Case of:
Leonard R. Friedman M.D.,
Petitioner,
- v. -
The Inspector General.
DATE: April 10, 1991
Docket No. C-269
DECISION
Petitioner requested a hearing to contest a determination
by the Inspector General (I.G.) to exclude Petitioner
from participation in the Medicare program and certain
federally-assisted State health care programs. 1/
Petitioner was advised by the I.G. that he was being
excluded from participation in the Medicare and Medicaid
programs due to the revocation of his license to practice
medicine in the State of New York by the Office of
Professional Discipline of the State Education Department
of New York. The I.G. alleged that the exclusion was
authorized by section 1128(b)(4)(A) of the Social
Security Act (Act). The exclusion was to remain in
effect until Petitioner obtains a valid license to
practice medicine in the State of New York.
Petitioner timely requested a hearing, and the case was
assigned to Administrative Law Judge (ALJ) Charles E.
Stratton for a hearing and decision. Judge Stratton
conducted a prehearing conference by telephone. During
the telephone conference, the I.G. stated his intention
to move for summary disposition. Thereafter, the I.G.
filed a motion for summary disposition. Petitioner filed
a timely response in the form of a counter motion for
summary judgment. Petitioner requested oral argument on
the motion, and oral argument was scheduled. The case
was subsequently assigned to me to conduct any further
proceedings and for decision. I held oral argument in
Boston, Massachusetts, on March 22, 1991.
I have considered the arguments contained in both
parties' motion for summary disposition, the undisputed
material facts, and applicable law and regulations. I
conclude that the exclusion imposed and directed by the
I.G. is authorized by section 1128(b)(4)(A) of the Social
Security Act and is reasonable. I am, therefore,
deciding this case in favor of the I.G.
ISSUES
1. Whether Petitioner's license to provide health care
was revoked by any state licensing authority for reasons
bearing on his professional competence, professional
performance, or financial integrity, within the meaning
of section 1128(b)(4)(A) of the Act;
2. Whether section 1128(b)(4)(A) of the Act permits an
exclusion under the circumstances of this case; and
3. Whether the period of Petitioner's exclusion is
reasonable and appropriate.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. Petitioner is a physician specializing in forensic
psychiatry and held a valid license to practice medicine
in the State of Massachusetts prior to June 24, 1987 and
in the State of New York prior to November 29, 1989.
Inspector General's Exhibit 2/12. 2/
2. On or about June 24, 1987, the Massachusetts Board of
Registration in Medicine issued a Final Decision and
Order whereby Petitioner's license to practice medicine
in Massachusetts was revoked. The Board found that
Petitioner, a psychiatrist, engaged in sexual activity
with one of his patients, during one or more office
visits made by the patient. The Board concluded that
Petitioner committed "gross misconduct in the practice of
medicine". I.G. Ex. 4.
3. The Massachusetts Board of Registration in Medicine
concluded that Petitioner's conduct in engaging in sexual
activity with his patient during one or more office
visits demonstrated a lack of good moral character and
undermined public confidence in the integrity of the
medical profession. I.G. Ex. 4.
4. The Massachusetts Board of Registration in Medicine is
the duly authorized professional disciplinary agency of
that state. I.G. Ex. 2 and 4.
5. In November, 1989 the New York State Education
Department revoked Petitioner's license to practice
medicine. I.G. Ex. 2.
6. The New York State revocation was based on its
findings that:
[Petitioner] has been found guilty, after an
administrative hearing in the State of
Massachusetts, of improper professional
practice and professional misconduct by a duly
authorized professional disciplinary agency of
another state, which conduct would, if
committed in New York State, constitute
professional misconduct under New York
Education Law section 6509(9) in conjunction
with 8 NYCRR section 29.1(b)(5) and 8 NYCRR
section 29.4(a)(5)(i) -- conduct in the
practice of a profession which evidences moral
unfitness to practice the profession and which
conduct includes any physical contact of a
sexual nature between physician and patient --
as set forth in the statement of charges and
the record herein.
I.G. Ex.2.
7. The New York State Education Department is a state
licensing authority within the meaning of section
1128(b)(4)(A).
8. Physical conduct of a sexual nature between physician
and patient is a professional activity and is related to
Petitioner's professional competence and professional
performance. Findings 2-6.
9. Petitioner's license was revoked by the Massachusetts'
Board for reasons bearing on his professional competence
and professional performance. Findings 2-4.
10. Petitioner's license was revoked by the New York
State Department of Education for reasons bearing on his
professional competence and professional performance
within the meaning of section 1128(b)(4)(A) of the Act.
Findings 5-6.
11. By letter dated July 5, 1990, the I.G. notified
Petitioner that he would be excluded from the Medicare
and Medicaid programs until he obtained a valid license
to practice medicine in New York. I.G. Ex. 1.
12. The I.G. subsequently modified his position and gave
notice to Petitioner that he would be excluded from the
Medicare and Medicaid programs until he obtained a valid
license to practice medicine in either New York or
Massachusetts. I.G. Reply Br. p.4.
13. Section 1128(b)(4)(A) authorizes the Secretary of
Health and Human Services (and his delegate, the I.G.),
to impose and direct exclusions of individuals whose
license to provide health care has been revoked by any
State licensing authority for reasons bearing on
professional competence or professional performance.
42 U.S.C. 1320a-7(b)(4)(A).
14. The I.G. had authority to exclude Petitioner under
section 1128(b)(4)(A) of the Act.
15. The I.G.'s exclusion of Petitioner until he obtains a
valid license to practice medicine in either New York or
Massachusetts is reasonable.
ANALYSIS
1. The New York State Department of Education revoked
Petitioner's license to practice medicine in New York for
reasons bearing on Petitioner's professional competence
and professional performance.
It is undisputed that Petitioner's license to provide
health care in New York was revoked by the New York State
Department of Education and that this body is a State
licensing authority within the meaning of section
ll28(b)(4)(A) of the Act. There is also no dispute that
Petitioner's license revocation was based on Petitioner's
conduct while treating a patient in the State of
Massachusetts.
The misconduct in question involved that of a
psychiatrist engaging in sexual activity with a patient
while in the purported treatment of that patient. The
conduct was found to have violated the standards of
medical practice by the state licensing body in two
separate jurisdictions. Both the states of New York
and Massachusetts revoked Petitioner's license for
professional misconduct. Petitioner's conduct constituted
an abuse of his privileges as a physician.
I find that Petitioner's license was revoked for reasons
bearing on both his competence and his performance as a
physician.
2. The I.G. is authorized to exclude Petitioner by
section 1128(b)(4)(A) of the Act.
a. Arguments pertaining to the fairness of the
proceedings which led to the revocation by the
Massachusetts and New York state licensing
authorities are not relevant to the exclusion
proceeding.
Petitioner has presented numerous challenges to the
validity of the revocation action taken by the State of
New York. Considering all the arguments as a whole,
Petitioner seems to contend that the I.G. may not rely on
the decision by the New York licensing authority because
both that decision and the decision by the Massachusetts
licensing authority, upon which New York relied, are
legally flawed. Petitioner contends that he was denied
basic due process fairness, or was otherwise deprived of
his constitutional rights, by both bodies. However, as
the I.G. has noted, the issues raised by Petitioner in
his challenges to the actions of these two licensing
authorities are extraneous to this proceeding. Claims of
impropriety in state license revocation proceedings are
not relevant to deciding whether the I.G. acted properly
to impose and direct exclusions pursuant to section
1128(b)(4)(A). See John W. Foderick, M.D., DAB App. 1125
(1990); Andy E. Bailey, C.T., DAB App. 1131 (1990); and
Frank Waltz, M.D., DAB Civ. Rem. C-86 (1989). It was
held in those cases that the I.G.'s authority to impose
and direct exclusions pursuant to section 1128(b)(4)(A)
emanates from the actions taken by state licensing boards
and that the law did not intend that the Secretary
examine the fairness of the process which led to the
state boards' decisions. I agree. An exclusion may not
be used by Petitioner to mount a collateral attack on the
state boards' decisions. If Petitioner thinks that there
are serious flaws in either or both decisions, he should
challenge them in the proper forum. 3/
b. Section 1128(b)(4)(A) is not being applied
retroactively by the I.G. in this case.
Petitioner further argues that the I.G. was not
authorized to exclude his participation in the Medicare
and Medicaid programs under section 1128(b)(4)(A) because
the conduct which formed the basis for the revocation of
his license in Massachusetts and New York occurred prior
to the effective date of the statute. I have taken this
argument to mean that the I.G. has unlawfully given
retroactive effect to section 1128(b)(4)(A). The I.G.
states that he based exclusion on the fact of revocation
of license by the State of New York, which revocation
occurred in November 1989, well after the effective date
of the statute; therefore, there is no retroactive
application.
I find no merit to Petitioner's contention and hold that
the exclusion based on section 1128(b)(4)(A) is
appropriate in this case.
Section 1128(b)(4)(A) of the Act, which was enacted on
August 18, 1987 but which became effective September 1,
1987, provides that the Secretary (or his delegate, the
I.G.) may exclude from participation in the Medicare and
Medicaid programs:
Any individual or entity whose license to
provide health care has been revoked or
suspended by any State licensing authority,
. . . for reasons bearing on the individual's .
. . professional competence, professional
performance, or financial integrity. (Emphasis
added).
I have already determined that Petitioner's license was
revoked by a state licensing authority (New York) for
reasons bearing on his professional performance and
competence, within the meaning of section 1128(b)(4)(A)
of the Act.
The language of subsection 1128(b)(4)(A) is without
qualifying terms or conditions. Furthermore, as
demonstrated by the legislative history, Congress
intended to protect Medicare and Medicaid patients from
physicians whose license had been revoked by any state
licensing authority. Moreover, in providing the
Secretary with discretion to exclude based on revocation
by any state licensing authority occurring immediately or
shortly after enactment (September 1, 1987), Congress had
to know that the underlying reason for the revocation
would likely be conduct which had occurred prior to the
effective date. Thus, by logical inference, Congress
intended the 1987 amendments to apply even in those cases
where the misconduct or other act which led to revocation
occurred prior to August 18, 1987.
The preceding interpretation of the language of section
1128(b)(4)(A) is supported by the recent decision of The
United States District Court for the Northern District of
New York. In the case of William A. Baker, M.D. v. Louis
Sullivan, Secretary, _F. Supp._, U. S. Dist. Lexis 15492
(N.D.N.Y., Nov. 1990), District Court Judge Neal P.
McCurn reviewed the legislative history of section
1128(b)(4)(B). 4/ That case involved Petitioner's
alleged surrender of his license in December 1987 after
investigation of his alleged professional misconduct
which had occurred in 1982. The I.G. had excluded the
petitioner on the grounds that he had "surrendered" his
license while a formal disciplinary proceeding concerning
his professional competence was pending before a state
licensing authority. The petitioner contended that the
I.G. was giving retroactive application to section
1128(b)(4)(B) because the conduct in question had
occurred in l982. Judge McCurn wrote that the
legislative history showed that the amendments to 42
U.S.C. section 1320a-7 were intended not to apply to
"administrative proceedings" which were commenced before
the effective date of the amendments. He held that since
the Secretary excluded the petitioner based on the
alleged surrender of his license on December 31, 1987,
after the effective date, the amendments were clearly not
being retroactively applied to the petitioner in that
case.
Since Petitioner's license was revoked by New York in
November 1989, after the September 1, 1987 effective
date of the statute, I conclude that there has been no
retroactive application of section 1128(b)(4)(A) to the
facts in this case and hold that the I.G. had authority
to exclude Petitioner from participation in the Medicare
and Medicaid programs.
3. An exclusion until Petitioner obtains a license to
practice medicine either in the State of New York or the
State of Massachusetts is a reasonable exclusion in this
case.
The I.G.'s notice to Petitioner stated that his exclusion
would remain in effect until he obtained a valid license
to practice medicine in New York. I.G. Ex. 1. In his
Brief, Petitioner requested, should the I.G.'s authority
to exclude be upheld, that the exclusion be terminated
upon his obtaining a license to practice medicine in
either Massachusetts or New York. P. Br. p.41. The I.G.
has since agreed to that position. In his Reply brief,
(at p. 4) the I.G. stated that ". . . since the New York
Board's revocation action relied upon the Massachusetts
Board's actions the issuance of a valid license to
practice medicine in either state would make [Petitioner]
eligible to apply for reinstatement into the Medicare
program".
Thus, the parties are in agreement that it is reasonable
that Petitioner's exclusion remain in effect until he
obtains a valid license to practice medicine in either
Massachusetts or New York. On the basis of the evidence
before me, I conclude that the exclusion imposed by the
I.G. is reasonable.
CONCLUSION
Based on the undisputed material facts and the law, I
conclude that the I.G.'s determination to exclude
Petitioner from participation in the Medicare and
Medicaid programs was authorized by section 1128(b)(4)(A)
of the Act. I conclude further that the term of the
exclusion is reasonable.
______________________________
Constance T. O'Bryant
Administrative Law Judge
* * * Footnotes * * *
1. "State health care program" is defined by
section 1128(h) of the Social Security Act to cover three
types of federally-assisted programs, including State
plans approved under Title XIX (Medicaid) of the Act. I
use the term "Medicaid" hereafter to represent all State
health care programs from which Petitioner was excluded.
2. The citations to the record in this
Decision are designated as follows:
Inspector General's Exhibits I.G. Ex. (number)
Inspector General's Brief I.G. Br. (page)
Petitioner's Exhibits P. Ex. (number)
Petitioner's Brief P. Br. (page)
3. The evidence shows that Petitioner did, in
fact,
challenge the decision of the Massachusetts licensing
authority on the grounds that his right to due process
was violated. He appealed to the Massachusetts Supreme
Judicial Court. His appeal was heard first by a single
justice of the court and then by four justices. In the
two decisions issued by that court, dated November 14,
1989 and December 18, 1989, the court affirmed the
license revoca-tion action taken by the Massachusetts
Board. It held that Petitioner had not been denied due
process before the revocation of his license. See I.G.
Exs. 5 and 6.
4. The court cited the "Historical and
Statutory
Notes" section relating to the amendments of 42 U.S.C.A.
section 1320a-7, p.40 (1990 Supplementary Pamphlet).