I do not address Petitioner's exclusion under section 1892 of the Act because I do not have the authority to review an exclusion imposed pursuant to section 1892 of the Act. James F. Cleary, D.D.S., DAB CR252 (1993); Charles K. Angelo, Jr., M.D., DAB CR290 (1993); and Joseph Marcel-Saint Louis, M.D., DAB CR320 (1994). As I pointed out in Angelo, section 1892 of the Act does not confer any hearing rights. No regulations have been published which grant a party hearing rights for exclusions imposed pursuant to section 1892 of the Act. And, I am unaware of any authority that has been delegated to administrative law judges to hold hearings concerning exclusions imposed pursuant to section 1892 of the Act.

I find that Petitioner shall be excluded until such time as the Public Health Service (PHS) notifies the I.G. that her default on Health Education Assistance Loans (HEAL) has been cured or the obligations have been resolved to PHS's satisfaction.

Background

On December 31, 1998, the I.G. notified the Petitioner that she was being excluded from participating in Medicare, Medicaid, and all federal health care programs, due to her failure to repay her HEAL obligation or to enter into an agreement to repay the debt. The I.G. stated that Petitioner had been excluded pursuant to the provisions of sections 1128B(f), 1128(b)(14), and 1892 of the Act and that her exclusion would remain in effect until her debt had been satisfied completely.

Petitioner requested a hearing and the case was assigned to me for a hearing and a decision. I conferred with the parties, and the parties agreed that the case could be decided on the basis of the parties' written submissions. I directed the parties to file briefs and supporting exhibits concerning the issues in the case.

The I.G. submitted a brief and supporting exhibits. The I.G. also submitted additional comments by letter. Petitioner has not objected to the I.G.'s comments. I accept the I.G.'s comments into the record. The I.G. submitted 31 proposed exhibits with her brief (I.G. Exhibits (Exs.) 1-31).
Petitioner has not objected to my receipt of I.G. Exs. 1-31 into evidence. I receive into
evidence I.G. Exs. 1-31.

Petitioner submitted a brief and attached five documents to the brief. Petitioner did not characterize all of these documents as exhibits. However, one or more of these documents consist of or contain statements by Petitioner in the form of an affidavit. I have elected to designate each of Petitioner's documents as an exhibit in the interest of due process and of preserving a record in this case. I have designated these documents as Petitioner Exhibits (P. Exs.) 1-5. The I.G. has not objected to my receipt of P. Exs. 1-5 into evidence. I receive into evidence P. Exs. 1-5.

Governing law

Section 1128(b)(14) of the Act provides, in pertinent part, as follows:

Congress enacted section 1128(b)(14) of the Act as part of the Medicare and Medicaid Patient and Program Protection Act of 1987, Pub. L. 100-93.

Section 1128(b)(14) of the Act authorizes the Secretary of DHHS to exclude individuals who are in default to the United States for loans made in connection with their health care education. The I.G., under delegated authority from the Secretary, may exclude individuals pursuant to this provision.

Issues

The issues identified in this case are whether:

Findings of fact and conclusions of law

I make findings of fact and conclusions of law (Findings) to support my decision that the I.G. is authorized to exclude Petitioner until she completely satisfies her HEAL obligations. I set forth each Finding below as a separate heading. I discuss each finding in detail.

I find that the I.G. had the authority to exclude Petitioner from participating in Medicare, Medicaid and all other federal health care programs, pursuant to section 1128(b)(14) of the Act. I make no findings or offer any conclusions as to whether the I.G. had the authority to exclude Petitioner pursuant to section 1892 of the Act or whether the exclusion which the I.G. imposed pursuant to section 1892 of the Act is reasonable. Petitioner applied for and received several HEAL loans in connection with her chiropractic training from 1983-1985 and executed promissory notes agreeing to repay borrowed amounts. I.G. Exs. 1-10. After completing her chiropractic training, Petitioner obtained several forbearance requests, but ultimately failed to begin repayment on her HEAL loans. In February 1989, Petitioner defaulted on her HEAL obligations. I.G. Exs. 11, 29.

After Petitioner defaulted on her HEAL loans, DHHS assumed the debt and commenced collection efforts. In 1991, PHS initiated contact with Petitioner regarding repayment of her HEAL loans. In August 1991, Petitioner filed a petition of bankruptcy, and the PHS did not seek payments from Petitioner towards the outstanding HEAL loans while the bankruptcy proceeding was pending. I.G. Exs. 15, 29, 31. Following completion of the bankruptcy proceeding in 1992, PHS resumed its collection efforts. I.G. Exs. 15, 17-24, 26. As Petitioner remained in default on her HEAL obligations, despite concerted collection efforts by PHS, the I.G. excluded Petitioner pursuant to sections 1128(b)(14) and 1892 of the Act. See I.G. Ex. 28; I.G. Brief in Support of Exclusion at 11-16; I.G. Exs. 1-26.

In her January 11, 1999 request for hearing submitted through counsel, Petitioner contended that she had no obligation to satisfy her HEAL loan indebtedness, because such obligation "had expired under the applicable statute of limitations," and had been discharged in a prior bankruptcy proceeding. Petitioner also contested the amount of her HEAL loan indebtedness. Petitioner also requested, by letter dated May 19, 1999, that the issues in this case be revised to include the effect of Petitioner's 1991 bankruptcy filing and the total amount of her HEAL loan indebtedness.

However, in her brief, Petitioner appears to concede that her HEAL loan indebtedness was not discharged in her 1991 bankruptcy proceeding, and no longer contests the outstanding amount of her HEAL loan indebtedness. Petitioner's Brief in Opposition to Exclusion (P. Br.) at 1-2. Nor does Petitioner dispute that she remains in default on her HEAL obligations and has not entered into an agreement for repayment of her HEAL loan indebtedness. P. Br. at 2-3. Petitioner now asserts that an administrative law judge has the discretion to consider "the reasonableness of the proposed exclusion and the length thereof." P. Br. at 2.

Petitioner does not dispute that she applied for and received the loans at issue. Nor does she dispute the I.G.'s contention that her HEAL loan indebtedness arises from loans made "in connection with health professions education." Section 1128(b)(14) of Act. Petitioner also does not dispute that she has defaulted on repayment of the loans and that she failed to respond to efforts that the Secretary and other federal government agencies have made to collect on the debt. I.G. Exs. 17, 19, 21, 23. Petitioner also does not deny that she was granted a forbearance, or delay in repayment, and offered an offset agreement, whereby Petitioner's reimbursements from Medicare and/or Medicaid would be applied directly to her HEAL loan indebtedness, but that she failed to enter into such an agreement. Id. Nor has Petitioner disputed the I.G.'s contentions that she was given several warnings before being declared delinquent. Finally, Petitioner does not dispute that she remains in default on her HEAL obligations and has not entered into an agreement for repayment of her HEAL loan indebtedness.

Given the undisputed facts in this case, I must find that the I.G. had authority to exclude Petitioner under section 1128(b)(14) if I conclude that the Secretary took "all reasonable steps available" to secure Petitioner's repayment of her HEAL debt. The term "all reasonable steps available" has been construed to mean all reasonable and legitimate means of debt collection. Cynthia M. Ramkelawan, D.D.S., DAB CR415 (1996); Charles K. Angelo, Jr., M.D., DAB CR290 (1993).

In Ramkelawan, the petitioner was given the opportunity to reduce her HEAL loan indebtedness by surrendering a portion of payments she received from government programs, that is, by entering into an offset arrangement. DHHS also agreed to forbearances and issued numerous warnings to the petitioner prior to the I.G.'s imposition of an exclusion. Under such circumstances, an administrative law judge held that DHHS took reasonable measures to collect the indebtedness before Petitioner was excluded. Ramkelawan, DAB CR415, at 5, 7-8. The circumstances in this case are similar. I find that PHS has taken all reasonable administrative steps necessary to secure repayment of Petitioner's loans. I also find, as a matter of law, that PHS has taken all reasonable administrative steps necessary to secure repayment of the loans by offering an offset arrangement. 42 C.F.R. � 1001.1501(a).

2. The I.G. is not precluded from excluding Petitioner under section
1128(b)(14) of the Act due to the location of her practice in a rural area.

The regulations applicable to exclusions due to HEAL defaults state that the I.G. will not exclude a physician who is the sole community physician or the sole source of essential specialized services in a community if a State requests that the physician not be excluded. 42 C.F.R. � 1001.1501(a)(4). Petitioner, a chiropractor, argues that she provides necessary specialized services in a rural area. P. Br. at 2; P. Ex. 2, at 1.

Section 1128(b)(14) of the Act provides, in relevant part, that the Secretary shall not exclude a physician who is: the sole community physician or sole source of essential specialized services in a community if a State requests that the physician not be excluded. That section also provides that the Secretary shall take into account, in determining whether to exclude any other physician, access of beneficiaries to physician services for which payment may be made under Medicare or Medicaid. The terms "sole community physician" and "sole source of essential specialized services" are defined by regulation at 42 C.F.R. � 1001.2. "Sole community physician" means a physician who is the only physician who provides primary care services to federal or State health care program beneficiaries within a defined service area. Id. "Sole source of essential specialized services in the community" means that an individual or entity--(1) [i]s the only practitioner, supplier or provider furnishing specialized services in an area designated by the Health Resources Services Administration as a health professional shortage area for that medical specialty, as listed in 42 (C.F.R.) part 5, appendices B-F; (2) [i]s a sole community hospital, as defined in � 412.92 of this title (42); or (3) [i]s the only source of specialized services in a reasonably defined service area where services by a non-specialist could not be substituted for the source without jeopardizing the health or safety of beneficiaries. Id.

First, Petitioner has not proved that she is a "physician" within the meaning of 42 C.F.R. � 1001.1501(a)(3) and (4). Although the regulation does not define the term "physician," it would appear that the word refers to a medical doctor or the equivalent. I find that Petitioner, who is a chiropractor, has not shown that she is a "physician" for purposes of the regulation. Second, Petitioner has not shown that residents of her community would be deprived from access to or obtaining chiropractic services by her exclusion, nor has Petitioner contended that the I.G. failed to take into account beneficiaries' access to physician services, in determining whether to exclude her. Finally, Petitioner has not proven that she is the sole source of essential specialized chiropractic services in her community, or that the area in which she practices has been designated as a health professional shortage area for her medical specialty, or that the State of Georgia has requested that she not be excluded. James F. Cleary, D.D.S., DAB CR252 (1993).

Accordingly, I find that Petitioner's circumstances do not fall within the provisions of 42 C.F.R. � 1001.1501(a)(3) and (4). Therefore, the I.G. is not precluded from imposing an exclusion.

3. The length of the exclusion imposed under
section 1128(b)(14) of the Act is not reasonable.

In her notice of exclusion, the I.G. advised Petitioner that she would be excluded under sections 1128(b)(14) and 1892 of the Act, until her HEAL loan indebtedness "has been completely satisfied." Petitioner argues, in effect, that the term of the exclusion that the I.G. imposed against her is inequitable and therefore unreasonable. She asserts that her income is significantly less than that of similarly situated chiropractors who maintain their practices in urban areas. She also contends that, in view of her limited income potential and financial resources, her ability to repay her HEAL loan indebtedness is limited, absent a restructuring of her loans, including an agreement that no further interest charges will accrue. Petitioner argues that, by being required to make full repayment of all outstanding HEAL loan indebtedness, the I.G. effectively has imposed a permanent exclusion upon her, given Petitioner's straitened financial circumstances, and that a permanent exclusion is inherently unfair. P. Br. at 2; P. Ex. 2. Petitioner's assertions, which are essentially derived from equity and fairness principles, do not form a basis which would preclude the I.G. from imposing an exclusion. Ramkelawan, DAB CR415 (1996).

I do find, however, that the I.G.'s determination that Petitioner's exclusion will remain in effect until she has completely satisfied her debt does not comport with the standard for the length of an exclusion that may be imposed under section 1128(b)(14) of the Act. That standard is set forth in 42 C.F.R. � 1001.1501(b) as being "until such time as PHS notifies the OIG that the default has been cured or the obligations have been resolved to the PHS's satisfaction." Accordingly, I find that Petitioner shall be excluded until such time as PHS notifies the I.G. that her HEAL loan default has been cured or the obligations have been resolved to PHS's satisfaction.

Steven T. Kessel Administrative Law Judge