Department of Health and Human Services DEPARTMENTAL APPEALS BOARD Civil Remedies Division |
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IN THE CASE OF | |
Alliso Purtell, M.D., |
DATE: June 14, 2001 |
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The
Inspector General
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Docket No.C-00-777 Decision No. CR781 |
DECISION | |
DECISION It is my decision to sustain the determination of the
Inspector General (I.G.) to exclude Allison Purtell, M.D. (Petitioner)
from participating in the Medicare, Medicaid, and all other federal health
care programs until Petitioner's license to practice medicine or provide
health care in the State of California is reinstated. I base my decision
upon the applicable law and regulations, the arguments of the parties,
and evidence which proves that Petitioner's license was revoked by the
Division of Medical Quality of the Medical Board of the State of California
(State Board). Additionally, I find that, when an exclusion imposed by
the I.G. is concurrent with the remedy imposed by a State licensing authority,
as occurs in this case, there is no issue of reasonableness and such an
exclusion is mandated by law.
Background By letter dated July 31, 2000, the I.G. notified Petitioner
that she was being excluded from participating in the Medicare, Medicaid,
and all other federal health care programs as defined in section 1128B(f)
of the Social Security Act (Act). The I.G. informed Petitioner that she
was being excluded based on section 1128(b)(4) of the Act because her
license to practice medicine or provide health care in the State of California
was revoked, suspended, or otherwise lost for reasons bearing on her professional
competence, professional performance, or financial integrity. The I.G.
also informed Petitioner that the exclusion would be in effect as long
as her license to practice medicine in California remained revoked. Petitioner filed a request for hearing on August 11, 2000,
and this case was assigned to me for adjudication. The I.G. is represented
in this case by the Office of Counsel. Although advised of her right to
retain legal representation, Petitioner elected to appear on her own behalf.
The parties agreed that this matter could be decided based on written
briefs and documentary evidence, and that an in-person hearing was unnecessary.
The I.G. submitted a brief and four proposed exhibits, which have been
identified as I.G. Exhibits (I.G. Exs.) 1 - 4. Petitioner submitted no
written arguments or documentary evidence in support of her contentions.
The extent of her arguments are contained in her request for hearing.
On April 18, 2001, I served notice on Petitioner that although she had
been granted until November 27, 2000, to respond to the I.G.'s motion
for summary affirmance, she had failed to do so. I further advised the
parties that I was closing the record and proceeding to the issuance of
a decision in this case. Petitioner did not object to the I.G.'s proposed
exhibits. Therefore, I admit I.G. Exs. 1-4 into evidence. It is my finding that the State Board revoked Petitioner's
license to practice medicine for reasons bearing on her professional competence,
professional performance, or financial integrity.
Issue Whether the I.G. had a basis upon which to exclude Petitioner
from participating in the Medicare, Medicaid, and all other federal health
care programs.
Applicable Law and Regulations Under section 1128(b) of the Act, the Secretary of Health
and Human Services (Secretary) may exclude individuals from receiving
payment for services that would otherwise be reimbursable under Medicare,
Medicaid, or other federal health care programs. The Act defines "federal
health care program" as "any plan or program that provides health care
benefits, whether directly, through insurance, or otherwise, which is
funded directly, in whole or in part, by the United States Government
. . . or any State health care program, as defined in section 1128(h)."
Act, � 1128B(f). Section 1128(b)(4)(A) of the Act authorizes the I.G. to
exclude an individual whose license to provide health care has been revoked
or suspended by a State licensing authority, or otherwise lost for reasons
bearing on that individual's professional competence, professional performance,
or financial integrity. According to section 1128(c)(3)(E) of the Act,
the period of exclusion of an individual who is excluded pursuant to section
1128(b)(4) shall not be less than the period during which the individual's
license to provide health care is revoked, suspended, or surrendered.
The regulations promulgated at 42 C.F.R. �� 1001.501 and 1001.1901(b)
mirror the statutory provisions set forth in the Act.
Findings of Fact and Conclusions of Law 1. Petitioner was licensed by the State of California
to practice medicine and surgery. 2. On March 3, 2000, the State Board issued an Order revoking
Petitioner's license, Certificate No. G-48608, to practice medicine and
surgery in the State of California. I.G. Ex. 4. 3. The March 3, 2000 Order was based on Findings and Conclusions of the State Board. The significant findings included:
4. The I.G. notified Petitioner by letter dated July 31,
2000, that, pursuant to section 1128(b)(4) of the Act, she was being excluded
from participating in the Medicare, Medicaid, and all other federal health
care programs. I.G. Ex. 1. 5. Section 1128(b)(4)(A) of the Act authorizes the I.G.
to exclude an individual from participation in the Medicare, Medicaid,
and all federal health care programs as defined in section 1128B(f) of
the Act, whose license to provide healthcare has been revoked or suspended
by any State licensing authority for reasons bearing on the individual's
professional competence, professional performance, or financial integrity. 6. Petitioner possessed a license to practice medicine
and provide health care within the scope of section 1128(b)(4) of the
Act. 7. The Order of the State Board resulted in the revocation
of Petitioner's medical license. 8. The I.G. was authorized to exclude Petitioner pursuant
to section 1128(b)(4) of the Act because the revocation of Petitioner's
license was for reasons bearing on her professional competence, professional
performance, or financial integrity. 9. Where the exclusion is imposed pursuant to section
1128(b)(4) of the Act, the period of exclusion shall not be less than
the period during which the individual's license to provide health care
is revoked, suspended, or surrendered. Section 1128(c)(3)(E) of the Act. 10. When an exclusion is imposed pursuant to section 1128(b)(4)
of the Act and the period of exclusion is coterminous with the revocation,
suspension, or surrender of a State license, no issue of reasonableness
with regard to the length of the exclusion exists. 11. Section 1128(b) of the Act authorizes the Secretary
to bar excluded individuals from receiving payment for services that would
otherwise be reimbursable under Medicare, Medicaid, or other federal health
care programs. Discussion The I.G. had a basis for excluding Petitioner. Petitioner is a medical doctor who was licensed to practice
medicine and provide health care in the State of California. On September
17, 1999, Petitioner was cited by the State Board for allegedly having
failed to properly diagnose patients, medical incompetence, and excessive
prescribing of drugs. The matter went before an Administrative Law Judge
of the State of California Office of Hearings on September 27 and 28,
1999, in San Diego, California. The proposed decision was submitted to
the State Board on October 7, 1999. The Board declined to adopt the proposed
decision, and to that effect, issued an Order of Nonadoption on November
17, 1999. The State Board held a hearing, including oral argument, on
February 4, 2000. Pursuant to a decision issued on March 3, 2000, the
Board revoked Petitioner's license to practice medicine in California,
effective April 3, 2000. I.G. Ex. 4. By letter dated July 31, 2000, the I.G. notified Petitioner
that she was being excluded from participating in the Medicare, Medicaid,
and all other federal health care programs pursuant to section 1128(b)(4)
of the Act because her license to practice medicine or provide health
care in the State of California was revoked, suspended, or otherwise lost
for reasons bearing on her professional competence, professional performance,
or financial integrity. In her August 11, 2000 request for hearing, Petitioner
contends that the State Board arrived at its decision based on the expert
testimony of one Dr. Wishnow. She also defended the treatment she provided
for J. S., a patient. In reviewing the State Board's decision, however,
I note that reliance was placed on the expert opinion of Dr. Georges M.
Argoud. There is no mention of Dr. Wishnow. I.G. Ex. 4, at 6. Additionally,
while Petitioner defends her treatment of J. S., the decision of the Board
refers to a continuing pattern of misconduct spanning a period of more
than six years and involving many patients. I.G. Ex. 4, at 22. More importantly, in order to consider whether Petitioner's
license was revoked for reasons bearing on her professional competence,
professional performance, or financial integrity, I must take the record
of the revocation proceedings as I find it. The law does not permit me
to look behind the State revocation proceedings and re-adjudicate the
matter. The Departmental Appeals Board has held that collateral attacks
on the actions of State licensing authorities are not permitted in the
context of an exclusion proceeding under section 1128(b)(4) of the Act.
Mary E. Groten, DAB CR518 (1998); Milan Kovar, M.D., DAB
CR550 (1998). Thus, Petitioner's defense based on personal animosities
or evil motives attributed to her detractors is not relevant. The language of the statute is not open to dispute. The
Secretary may exclude "any individual . . . 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." Act, � 1128(b)(4)(A).
There are two aspects to this legal provision. The first requirement,
as is pertinent here, is that the individual's license to provide health
care be revoked or suspended by any State licensing authority. The evidence
in this case shows this to be a fact, and Petitioner does not question
it. The second requirement is that the suspension or revocation be for
reasons bearing on professional competence, professional performance,
or financial integrity. The second requirement is amply met by the State
Board decision. In view of the foregoing, I conclude that Petitioner's
license to practice medicine or provide health care in the State of California
was revoked for reasons bearing on her professional competence or professional
performance. Finally, pursuant to section 1128(c)(3)(E) of the Act,
"no issue of reasonableness exists" where the length of the exclusion
imposed by the I.G. is coterminous with the revocation, suspension, or
surrender of a State license. Maurice Labbe, DAB CR488 (1997),
at 3. Section 1128(c)(3)(E) of the Act requires that Petitioner be excluded
for a period no less than the period during which her license is revoked,
suspended, or surrendered. Thus, in this case, the coterminous exclusion
by the I.G. is the mandated minimum period required by law.
Conclusion It is my decision that the I.G. was authorized to exclude Petitioner pursuant to section 1128(b)(4) of the Act. Additionally, I conclude that the period of exclusion imposed by the I.G. is mandated by section 1128(c)(3)(E) of the Act. |
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JUDGE | |
Jose A. Anglada Administrative Law Judge |
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