SUBJECT:

Maria Thachenkery, M.D.,

Petitioner,

The Inspector General

I. Applicable Laws and Regulations

Here, I list the statutes, regulations, and legal principles which I have relied upon in reviewing the disputes presented by Petitioner. I have assigned them numbers in order to facilitate their incorporation later into the "Findings of Fact and Conclusions of Law" section of this Decision.

1. Section 1128(b) of the Act states in relevant parts:

Permissive Exclusion -- The Secretary [of Health and Human Services] may exclude the following individuals or entities from participation in any Federal health care program (as defined in section 1128B(f)):

(5) . . . . Any individual or entity which has been suspended or excluded from participation, or otherwise sanctioned, under --

(B) a State health care program, for reasons bearing on the individual's or entity's professional competence, professional performance, or financial integrity.

Section 1128(b)(5) of the Act.

2. The Secretary's authority for determining whether to exercise the Secretary's authority to impose (or not impose) a permissive exclusion under section 1128(b) of the Act, was delegated to the I.G., not to the administrative law judges (ALJ):

The ALJ does not have the authority to -

(5) Review the exercise of discretion by the OIG to exclude an individual or entity under section 1128(b) of the Act, or to determine the scope or effect of the exclusion[.]

42 C.F.R. � 1005.4(c)(5).

3. The regulations promulgated by the Secretary, together with all Secretarial delegations, must be followed by the ALJ:

The ALJ does not have the authority to -

(1) Find invalid or refuse to follow Federal statutes or regulations or secretarial delegations of Authority;

42 C.F.R. � 1005.4(c)(1).

4. The regulation codified at 42 C.F.R. � 1001.601 ("Exclusion or suspension under a Federal or State Health Care Program"), states in relevant parts:

(a) Circumstance for exclusion. (1) The OIG may exclude an individual or entity suspended or excluded from participation, or otherwise sanctioned, under -

(ii) A State health care program, for reasons bearing on the individual's or entity's professional competence, professional performance . . .

(2) The term "or otherwise sanctioned" . . . is intended to cover all actions that limit the ability of a person to participate in the program at issue regardless of what such an action is called and includes situations where an individual or entity voluntarily withdraws from a program to avoid a formal sanction.

(b) Length of exclusion. (1) An exclusion imposed in accordance with this section will not be for a period of time less than the period during which the individual or entity is excluded or suspended from a Federal or State health care program.

42 C.F.R. � 1001.601(emphasis added)(italics in original).

5. The minimum length of exclusion specified by the regulations at 42 C.F.R. � 1001.601(b)(1) is identical to what is required by statute:

In the case of an exclusion of an individual or entity under subsection (b)(4) or (b)(5), the period of the exclusion shall not be less than the period during which the . . . individuals or entities . . . is excluded or suspended from a Federal or State Health care program.

Section 1128(c)(3)(E) of the Act.

6. When an individual excluded under section 1128(a) or (b) of the Act files a timely request for hearing, the only issues the excluded individual may raise to an Administrative Law Judge for review are whether:

(i) The basis for the imposition of the sanction exists, and

(ii) The length of exclusion is unreasonable.

42 C.F.R. � 1001.2007(a)(1).

7. "When the exclusion [under appeal] is based on the existence of a conviction, a determination by another government agency[,] or any other prior determination, the basis for the underlying determination is not reviewable [by the ALJ] and the individual or entity may not collaterally attack the underlying determination . . ..". 42 C.F.R. � 1001.2007(d).

8. The ALJ is not required to convene a full evidentiary hearing in order to consider the issues that an excluded individual may have raised under 42 C.F.R. � 1001.2007(a)(1). Instead, the ALJ may ". . . decide cases, in whole or in part, by summary judgment . . .." 42 C.F.R. � 1005.4(b)(12).

9. Summary judgment is appropriate when, viewing the evidence and the inferences arising therefrom in the light most favorable to the nonmoving party, there exists no genuine issue of material fact, and judgment should be entered as a matter of law. Fed. R. Civ. P. 56(c).

10. In deciding summary judgment motions:

Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes which are irrelevant or unnecessary will not be counted.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

11. In deciding summary judgment motions, the determination of whether a factual dispute is genuine must be made by "view[ing] the evidence presented through the prism of the substantive evidentiary burden" that would be applicable at a trial on the merits. Anderson, 477 U.S. at 254.

12. In this case, the evidentiary standard is a preponderance of the evidence. 42 C.F.R. � 1005.15(d).

II. Discussion

I have applied the statutes, regulations, and legal principles listed above in reviewing the record before me. In the following section, I have organized my summary of the information and arguments presented in the order they were submitted. My written analysis is brief, since the statutes, regulations, and legal principles noted previously speak clearly to most of the arguments and facts of record.

As indicated by my issuance of this Decision, I have denied Petitioner's motion to convene an evidentiary hearing, or, in the alternative, to permit the submission of more briefs. I will set out a short explanation of this denial, to supplement what the procedural history of this case already shows.

A. Procedural History and the Content of the Parties' Filings

On February 29, 2000, the I.G. issued a letter informing Petitioner of the decision to exclude her from participation in the Medicare and other federally funded health care programs under section 1128(b)(5) of the Act. As stated in the notice letter, the basis of the exclusion is the I.G.'s determination that:

[Y]ou have been excluded, suspended, or otherwise sanctioned by the Illinois Department of Public Aid, a Federal or State Health care program, for reasons bearing on your professional competence, professional performance, or financial integrity.

The length of the exclusion imposed by the I.G. was described as follows in the notice letter:

The exclusion . . . will remain in effect until you have been reinstated to the health care program which originally took the action against you.

A request for a hearing before an administrative law judge was timely filed by Petitioner's counsel.⁽¹⁾ Petitioner stated that a copy of her January 6, 2000 letter to the I.G. was attached to her hearing request for the purpose of explaining the bases of the appeal. The attached January 6, 2000 letter shows that it was written to the I.G. while the I.G. was still trying to decide whether to impose an exclusion pursuant to section 1128(b)(5) of the Act⁽²⁾. Through her counsel in the January 6 letter, Petitioner asserted the following in urging the I.G. to refrain from imposing an exclusion:

- an exclusion is permitted, but not mandated, by section 1128(b)(5) of the Act;

- no exclusion is authorized by section 1128(b)(5) because

(i) Petitioner had voluntarily withdrawn from the Illinois Medicaid Program in settlement of charges filed against her by the Illinois Department of Public Aid (IDPA),

(ii) many of the charges filed against her involved failure to maintain adequate medical charts on patients;

(iii) the charges filed against her by the IDPA did not involve life-threatening issues, and

(iv) the merits of the IDPA's charges have never been adjudicated;

- the Illinois Department of Professional Regulation has never sanctioned her before;

- she had not been sued for malpractice in 10 years; and

- she would be willing to retain an expert to address the standard of care issue.

After this case was docketed by the Departmental Appeals Board and assigned to Administrative Law Judge Jill Clifton, she held two prehearing conferences with the parties' representatives. It appears from Judge Clifton's summary of events that during the first conference call, held on June 5, 2000, counsel for Petitioner "questioned whether the Petitioner's decision to voluntarily withdraw from the Illinois Medicaid program (for a two-year period) constituted an exclusion, suspension or sanction for purposes of section 1128(b)(5) of the Act. See FN 2 July 5, 2000 Order at 2.

It does not appear from the Order that the I.G.'s counsel had brought to Judge Clifton's attention the regulation which answers this "question" by Petitioner. See, e.g., 42 C.F.R. � 1001.601(b)(2). Instead, during the June 5, 2000 prehearing conference, the parties' attorneys "agreed to enter into further discussion, and to notify [Judge Clifton] of how they intended to proceed." July 5, 2000 Order at 2.

Then on June 26, 2000, Judge Clifton convened the second prehearing conference, again at the parties' request. During this conference, the attorneys informed her that they wished to brief "certain threshold issues," including the extent of an ALJ's authority to address those threshold issues. July 5, 2000 Order at 2. Accordingly, Judge Clifton designated dates during July and August on which the parties were to file briefs and supporting documents. Id.

Subsequently, Petitioner, through her attorney, made repeated attempts to obtain an evidentiary hearing on matters which are immaterial and beyond an ALJ's authority to review or adjudicate. Petitioner made these attempts by repeatedly failing to acknowledge the existence of those statutes and regulations which have controlling force in these proceedings. Thus, Petitioner tried to make "non-issues" into "issues" in the briefs filed under Judge Clifton's July 5, 2000 Order.

In her "Brief on the Reviewing Authority of the Administrative Law Judge (P. Br.),"⁽³⁾ Petitioner first said her issue was:

[T]he scope of the authority of the ALJ to consider a federal remedy which may differ from that which was imposed by the State of Illinois Medicaid Program as a result of a settlement agreement, and the extent to which the ALJ may review the underlying facts as she considers the appropriate remedy for the Federal Program. P. Br. at 1 - 2.

Petitioner then advised:

The issue is whether the same period of exclusion is reasonably necessary to protect the Federal Program, and whether the Respondent [sic] is entitled to establish an evidentiary basis for a determination of whether a different remedy may be appropriate. She is clearly entitled to this type of hearing. P. Br. at 4.

These statements exemplify Petitioner's presentation of matters which Congress and the Secretary have already removed from the sphere of administrative adjudication. See, Para. 1 - 4 of Section I, above.

Elsewhere in her brief, Petitioner repeated many of the same facts which were raised in her January 6, 2000 letter attempting to dissuade the I.G. from imposing any exclusion against her. P. Br. at 2. As especially relevant to the regulations quoted in Section I, above, I note that Petitioner acknowledged in her brief in these proceedings that the Bureau of Medical Quality Assurance of the IDPA had commenced disciplinary actions against her after a peer review committee had evaluated 15 of her charts. P. Br. at 3. I note also Petitioner's statement that she had "agreed to an exclusion [from the Illinois Medicaid program] for two years with the ability to re-apply" to the State for reinstatement thereafter. P. Br. at 3. There is no hint or allegation of any possibility that Petitioner would have entered into such an agreement if the disciplinary proceedings had not been commenced against her by the Bureau of Medical Quality Assurance division of the IDPA. However, by wholly ignoring the statutes and regulations which have controlling force under the facts already admitted by her, Petitioner then argued that it is within the administrative law judge's authority to determine the reasonableness of the exclusion imposed against her by the I.G. ("until you have been reinstated to the health care program which originally took the action against you," in the words of the I.G.'s Notice Letter) by allowing her to present evidence at a hearing to demonstrate that "a different remedy may be appropriate." P. Br. at 3 - 4.

The I.G.'s Brief in Support of Exclusion (I.G. Br.) cited 42 C.F.R. � 1001.601(a)(2) in responding that Petitioner's voluntary withdrawal from the Illinois Medicaid program in order to end the disciplinary proceedings constitutes a "sanction" within the meaning of section 1128(b)(5) of the Act. I.G. Br. at 4. The brief also highlighted the fact that the disciplinary proceedings, which resulted in her agreement to be excluded by Illinois from its Medicaid program, involved problems with her professional competency or performance. I.G. Br at 4 - 5. The authority to exclude Petitioner from Medicare and other federally funded programs under section 1128(b)(5) of the Act exists because her exclusion by Illinois from its Medicaid program was for reasons bearing on her professional competency or performance. I.G. Br. at 5 - 7. The I.G. further pointed out that section 1128(b)(2) of the Act, as well as the interpretative regulation at 42 C.F.R. � 1001.601(b), both specify that the length of the exclusion shall not be for less time than the period the individual has already been excluded from a Federal or State health care program. I.G. Br. at 8.

Without addressing the statutory or regulatory provisions quoted in the I.G.'s brief, Petitioner filed a reply styled as "Petitioner's Reply to Inspector General's Brief" (P. Rp.) which sets forth immaterial arguments concerning the decision of Thelma Villanueva, DAB No. CR 431 (1996). The I.G. had cited this decision for its discussion of a relationship between the individual's professional competency and her exclusion from the State health care program. I.G. Br. at 6. Petitioner, however, noted that the ALJ in that case had found unreasonable the I.G. exclusion of Villanueva for two years and reduced the period to an amount of time coterminous to her state exclusion. P. Rp. at 2. In putting forth such an inapposite discussion of the Villanueva decision, Petitioner had disregarded the fact that her own exclusion in this case is already set to run coterminously with her exclusion from the Illinois Medicaid program. Neither the Villanueva case nor any other legal authority supports Petitioner's argument that the ALJ should, as Petitioner urges, "exercise her authority to allow the Petitioner to establish a record in this case to support her position for a modified exclusionary period and to consider these facts in light of Petitioner's position that the automatic application of the State exclusion does not comply with the remedial purposes of the Act." P. Rp. at 3.

After the case was re-assigned to me, I found no motion for relief filed by either party. Petitioner's brief contained conflicting information on this matter. On the one hand, Petitioner indicated that the parties have been permitted to file briefs concerning the authority of the ALJ "so that the parties might agree on the most efficient method of proceeding" (P. Br. at 1); but Petitioner also said it was "pray[ing] that the ALJ rule that she has the authority to consider the appropriateness of the federal remedy in light of applicable evidence which may be offered consistent with the factors identified" in its brief. Id. at 4. Judge Clifton's July 5, 2000 Order concerning the two prehearing conferences did not indicate what had been contemplated by her or by the parties after the briefing period closed.

Therefore, I sent out an Order on November 3, 2000, informing the parties that I wished to issue a ruling in this case by reading the I.G.'s brief as seeking summary judgment for the entire case. Noting especially Petitioner's position that an evidentiary hearing is needed due to the existence of factual disputes, I stated also that I have been reading Petitioner's briefs as opposing summary judgment for the entire case. I informed the parties also that, unless they give me good reasons to do otherwise, I would apply the standards of Rule 56, Fed. R. Civ. P. and the limitations of 42 C.F.R. � 1001.2007 to determine whether any conflict of material fact exists in fact and whether other proceedings would be necessary. I set aside a short period for the parties to submit comments, motions, or additional legal memoranda. See Order - Opportunity for Submission of Objections, Comments or Supplemental Information (Nov. 3, 2000).

The I.G. submitted nothing. Therefore, I construed her silence as agreement that I should consider her brief as a motion for entry of summary judgment in her favor on the entire case.

Petitioner, however, "objected to her brief being construed to be in opposition to summary disposition for the entire case." Petitioner's Response To Opportunity For Submission Of Objections, Comments Or Supplemental Information (P. Rs.) at 2. Without referring to any principle governing the summary judgment process, Petitioner argued incorrectly that "either granting or denying summary judgment . . . for the entire case, would have the effect of denying Petitioner an evidentiary hearing, in accordance with 42 C.F.R. � 1001.2007." Id. at 2. She asked that her briefs "be construed as responsive only to the issue of the authority of the ALJ to address the remedy." Id. She asserted that her briefs were intended to be "in support of a determination that the ALJ could exercise her discretion when considering the appropriate remedy." Id. at 1.

B. Denial of Petitioner's Request for Additional Briefing or for an Evidentiary Hearing

As best I can determine, Petitioner believes that I should convene an evidentiary hearing under the facts of this case pursuant to 42 C.F.R. � 1001.2007 because Petitioner's previously filed briefs were intended to persuade me (and therefore I should rule at this time) that "the automatic application of the State exclusion does not comport with the remedial purposes of federal law." P. Rs at 1. In the event that her earlier briefs have not accomplished their intended purpose (and therefore I do not issue the ruling adopting

Petitioner's legal conclusion), Petitioner wishes more time to "set forth the factual, legal and equitable arguments on the merits in accordance with 42 C.F.R. 1001.2007." P. Rs. at 2.

The request to submit an additional filing is denied, as is the request for me to convene an evidentiary hearing.

Petitioner has misconstrued the requirements of 42 C.F.R. � 1001.2007. This regulation merely permitted Petitioner to raise in a hearing request two types of challenges to the I.G.'s exercise of her discretion under section 1128(b) of the Act. It does not entitle Petitioner to an evidentiary hearing (whether done on paper or in person) when the requisite material facts are not in dispute, the additional facts alleged are immaterial under controlling statutes and regulations, and the substantive relief sought is beyond the ALJ's authority to provide. See 42 C.F.R. � 1005.5(b)(12).

Petitioner was accorded several briefing opportunities to date because her hearing request was less than clear. It was conceivable at the beginning of this case that her hearing request might have included valid matters presentable under 42 C.F.R. �1001.2007. Otherwise, this case would have been dismissed long ago on other grounds.⁽⁴⁾

Petitioner has been given more than an adequate opportunity to establish a legitimate need for further proceedings in this forum. She has failed to do so after having described several times her position and the nature of her evidence. I find no basis for allowing her challenge to the I.G.'s determination to linger unresolved.

III. Findings of Fact and Conclusions of Law (FFCLs)

I incorporate items 1 through 12 of Section I, "Applicable Laws and Regulations," above. Having applied these statutes, regulations, and legal principles to the content of the filings made by Petitioner, I add the following FFCLs:

13. Petitioner has acknowledged in the proceedings to date that

A. Disciplinary proceedings were commenced against her by the State of Illinois on the basis of a peer review organization's assessment of her professional work as a physician.

B. She settled the charges that were brought against her by agreeing to withdraw from the Medicaid program and seek re-admittance after two years.

C. The State of Illinois excluded her from participation in its Medicaid program in accordance with the terms of the settlement agreement.

14. The Illinois Medicaid program is a State health care program within the meaning of section 1128(b)(5) of the Act.

15. Petitioner's exclusion from the Illinois Medicaid program, whether or not it is considered a "sanction" under 42 C.F.R. � 1001.601(b) as well, subjected her to the I.G.'s exercise of non-reviewable discretion to exclude her also from the Medicaid program and other Federal health care programs specified in section 1128B(f) of the Act.

16. The exclusion imposed by the I.G. is for the period of time that is minimally required by section 1128(c)(3)(e) of the Act and 42 C.F.R. � 1001.601(b)(1).

17. Having been given repeated opportunities to do so, Petitioner has not been able to offer any legally cognizable theory or argument under 42 C.F.R. � 1001.2007.

18. Having been given repeated opportunities to do so, Petitioner has not been able to offer any genuine issue of material facts in dispute under 42 C.F.R. � 1001.2007.

19. The I.G.'s exclusion of Petitioner pursuant to section 1128(b)(5) of the Act is entitled to summary affirmance as a matter of law.

IV. Conclusion

I enter summary judgment for the I.G. for the reasons stated above.

Mimi Hwang Leahy

Administrative Law Judge

1. Counsel stated in her April 26, 2000 hearing request that she was representing Petitioner "solely for the basis of preserving her right to an appeal, and will not represent her during the hearing process."

2. This section of the Act was codified as 42 U.S.C. � 1320a-7(b)(5). Petitioner's letter cited it incorrectly as "42 U.S.C. 1320a(b)(5)."

3. In the title of the brief filed on behalf of Dr. Thachenkery, she was incorrectly designated "the Respondent."

4. The administrative law judge must dismiss the hearing request if it "fails to raise any issue which may properly be addressed in a hearing." 42 C.F.R. � 1005.2(e)(4).