SUBJECT:

Rodolfo Byrne, M.D.,

Petitioner,

The Inspector General

DECISION

I sustain the determination of the Inspector General's (I.G.) to exclude Rodolfo Byrne, M.D., Petitioner, from participation in the Medicare, Medicaid, and all federal and State health care programs (Medicare and Medicaid programs), until Petitioner's eligibility to participate in the New York State Medical Assistance program (State Medicaid program) is reinstated. I base my decision upon evidence that proves that the I.G. excluded Petitioner from the Medicare and Medicaid programs because he was excluded, suspended, or otherwise sanctioned by the New York State Department of Social Services (DSS), the State regulatory agency responsible for the State Medicaid program, for reasons bearing on his professional competence, professional performance, or financial integrity. Additionally, I find that, when the I.G. imposes an exclusion concurrent with a remedy imposed by any State Medicaid program regulatory authority, there is no issue of reasonableness and law mandates such an exclusion.

I. BACKGROUND

On March 31, 2000, the I.G. notified Petitioner that he was being excluded from participation in the Medicare and Medicaid programs. The I.G. explained that Petitioner's exclusion was authorized under section 1128(b)(5) of the Social Security Act (Act) because "[he has] been excluded, suspended or otherwise sanctioned by the New York State Department of Social Services, a Federal or State health care program, for reasons bearing on [his] professional competence, professional performance, or financial integrity." Additionally, the I.G. advised Petitioner that his exclusion would "remain in effect until [he has] been reinstated to the health care program that originally took the action against [him]."

On May 22, 2000, Petitioner requested a hearing and the case was assigned to me for decision. The parties agreed that the case could be decided based on their written submissions and that an in-person hearing was not necessary. The parties have each submitted written briefs and proposed exhibits.

The I.G. filed his brief (I.G. Br.) in support of the exclusion accompanied by four proposed exhibits (I.G. Exs. 1 - Ex. 4). Petitioner submitted a response brief (P. Br.) and no exhibits. In the absence of an objection, I am admitting I.G. Exs. 1 - 4 into evidence. On April 26, 2001, the parties jointly filed a stipulation relating to the stay of the Petitioner's underlying exclusion from the State Medicaid program that I will label and admit into evidence as ALJ Ex. 1. I base my decision in this case on these exhibits, the applicable law, and the arguments of the parties.

II. APPLICABLE LAW

Pursuant to section 1128(b)(5) of the Act, the I.G. may exclude -

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.

Pursuant to section 1128(c)(3)(E) of the Act, under subsection 1128(b)(5), "the period of the exclusion shall not be less than the period during which . . . the individual or the entity is excluded or suspended from a Federal or State health care program." Before 1996, the Act provided no criteria for establishing the length of exclusions for individuals or entities excluded pursuant to section 1128(b)(5). Under 1996 amendments to the Act [section 212 of the Health Insurance Portability and Accountability Act of 1996 (Pub. L. 104-191)], no issue of reasonableness exists where the exclusion imposed by the I.G. is concurrent with the time that the individual or the entity is excluded or suspended from a federal or State health care program. A concurrent exclusion, as in Petitioner's case, is the minimum required by law.

III. FINDINGS OF FACT AND CONCLUSIONS OF LAW

1. At all times relevant to this case, Petitioner was a physician providing medical services to eligible Medicaid patients in the State of New York. I.G. Ex. 3 at 3.

2. Petitioner's exclusion from the State Medicaid program by DSS was based on an audit of 19 medical records of Petitioner's patients from September 1994 through August 1995. I.G. Ex. 2 at 2.

3. The audit found limited documentation of patient histories and physical examinations, a failure to document the patients' progress or response to treatment, an excessive ordering of medications without documented medical necessity, and billing for services not supported by documentation in the medical records. Id.

4. On February 6, 1997, DSS notified Petitioner that it had determined to exclude him from the State Medicaid program for two years. Id.

5. DSS also notified Petitioner that this exclusion would deny him payment under the State Medicaid program for any care, services or supplies furnished from the effective date of the exclusion until his reinstatement into the program. Id.

6. In response to DSS's notice of exclusion, Petitioner requested a hearing before an administrative law judge of the New York State Bureau of Adjudication (Adjudication Bureau). I.G. Ex. 3 at 3.

7. Petitioner requested and obtained a stay of his exclusion pending the decision of the Adjudication Bureau. ALJ Ex. 1.

8. On February 8, 1999, the Adjudication Bureau issued a decision affirming Petitioner's two-year exclusion from the State Medicaid program. I.G. Ex. 3 at 25.

9. Petitioner's two-year exclusion from the State Medicaid program became effective on February 8, 1999. ALJ Ex. 1.

10. The totality of the circumstances outlined by the I.G. and as found by the Adjudication Bureau is sufficient to conclude that Petitioner was excluded from participation in the State Medicaid program for reasons bearing on his professional competence, professional performance, or financial integrity. I.G. Ex. 1; I.G. Ex. 2 at 2; I.G. Ex. 3 at 8.

11. Petitioner's exclusion from participation in the State Medicaid program is an exclusion or suspension as those terms are used in section 1128(b)(5)(B) of the Act.

12. The State Medicaid program is a State health care program within the meaning of sections 1128(h) and 1128(b)(5)(B) of the Act.

13. Pursuant to section 1128(b)(5)(B) of the Act, the Secretary [of the Department of Health and Human Services] may exclude from participation in any Medicare and Medicaid program any individual or entity which has been suspended or excluded from a State health care program.

14. The Secretary has delegated the duty to impose and direct exclusions to the I.G. pursuant to section 1128 of the Act. 48 Fed. Reg. 21,662 (1983).

15. On March 31, 2000, the I.G. advised Petitioner that he was being indefinitely excluded from participation in the Medicare and Medicaid programs pursuant to section 1128(b)(5) of the Act for reasons bearing on his professional competence, professional performance or financial integrity. I.G. Ex. 1.

16. Petitioner is excluded from the Medicare and Medicaid programs until he has been reinstated to the State health care program that originally took the action against him. I.G. Ex. 1.

17. An exclusion imposed pursuant to section 1128(b)(5) of the Act 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(b)(1).

18. The I.G. has no discretion to impose an exclusion against Petitioner that is shorter than the period during which Petitioner's license to provide health care is revoked, suspended or surrendered. Act, section 1128(c)(3)(E).

IV. PETITIONER'S CONTENTIONS

Petitioner does not dispute that he was excluded from the State Medicaid program, or that the state's exclusion is within the scope of section 1128(b)(5) of the Act. He asserts that the I.G.'s exclusion is discretionary. P. Br. at 1. Indeed, the Secretary's authority under section 1128(b) of the Act is styled as "Permissive Exclusion." Petitioner also contends that the length of the exclusion is not reasonable because his readmission into the State Medicaid program is contingent on his participation in the Medicare and Medicaid programs and that his readmission into the Medicare and Medicaid programs is contingent on his participation in the State Medicaid program. Thus, Petitioner argues that he is in a "catch-22" situation from which there is no way back into the State Medicaid program or the Medicare and Medicaid programs. P. Br. at 2. Petitioner further requests that his term of indefinite exclusion be modified to reduce it to a term-certain of two years. Id.

V. DISCUSSION

1. Petitioner's exclusion from participation from the State program by the DSS was for reasons bearing on his professional competence, professional performance, or financial integrity.

Petitioner does not dispute the I.G.'s claim that his exclusion from the State program was for reasons bearing on his professional performance, professional competence or financial integrity. (P. Br. at 1). I find that upon review of the totality of the circumstances shown in the record, the I.G. has established that Petitioner's exclusion from the State Medicaid program was revoked for reasons bearing on his professional competence, professional performance or financial integrity I.G. Exs. 2, 3. An examination of the events associated with Petitioner's exclusion by DSS underscores this conclusion. On February 6, 1997, DSS sent Petitioner a notice (DSS Notice) in which it determined that Petitioner had violated certain provisions of the State regulations of the State Medicaid Program. I.G. Ex. 2 at 1. After a peer review of 19 medical records of Petitioner's Medicaid patients, DSS determined that there was: limited documentation of patient histories and physical examinations, failure to document the patient's progress or response to treatment, excessive ordering of medications without documented medical necessity, and billing for services not supported by documentation in the medical records. Id. at 2.

Petitioner appealed the determination by DSS. The case was tried de novo with live testimony before the Adjudication Bureau. On February 8, 1999, the Adjudication Bureau affirmed the DSS decision. The Adjudication Bureau found inter alia that "care for most of these [19] patients appeared to be poor at best and [from] potentially to actually dangerous in others." I.G. Ex. 3 at 4. The Adjudication Bureau pointed out that "[Petitioner's] participation in the Medicaid program is contractual . . . [A] provider of Medicaid Services has no vested right to continued participation . . . [S]uch participation is a privilege . . . [Petitioner has] abused this privilege." I.G. Ex. 3 at 25.

2. The duration of Petitioner's exclusion from participation from the Medicare program by the I.G. was reasonable.

Petitioner, disputes the I.G.'s authority to exclude Petitioner for an indeterminate time instead of his suggested time certain of two years. P. Br. at 2. However, the Act at section 1128(c)(3)(E), requires that if an individual is excluded pursuant to section 1128(b)(5), the duration of that exclusion cannot be for less than the period during which the individual or the entity is excluded or suspended from the federal or State health care program. Thus, section 1128(c)(3)(E) of the Act mandates that the length of the exclusion must be coterminous with the term of the revocation or suspension of the individual's participation in the State program.

Since Petitioner was excluded from participation in the State program for two years, the Act requires that his period of exclusion cannot be less than the period during which Petitioner's exclusion from the State Medicaid program is in effect. Petitioner must be readmitted to the State Medicaid program before he can be considered for reinstatement as a participant in the Medicare and Medicaid programs.

Petitioner complains that he is trapped in a "catch-22" situation. Petitioner has not shown that the avenues of reinstatement offered by the State and the I.G. combine in some manner to make the term of the his exclusion unreasonable. First, his exclusion from the State Medicaid program has a limited time duration of two years, after which Petitioner may request reinstatement under the procedures set forth in his notice of exclusion from the State Medicaid program. I.G. Ex. 2 at 3. Second, the I.G.'s notice of exclusion informs Petitioner, "If, at the end of the period assessed to you by the [State Medicaid program], you are denied reinstatement [in the State Medicaid program] based solely on the fact that you remain excluded by [the I.G.], then the [I.G.] will consider a request for reinstatement. I.G. Ex. 1 at 1.

3. I do not have the authority to order the I.G. to convert Petitioner's exclusion to a two-year term of exclusion.

I do not have the authority to modify a mandatory term of exclusion. It is clear that administrative law judges are limited in the types of claims that they may adjudicate. See 42 C.F.R. � 1005.4(c)(1) and (5). Administrative law judges have no statutory or regulatory authority to find invalid or refuse to follow federal statutes or regulations.

VI. CONCLUSION

I conclude that the I.G. was authorized to exclude Petitioner pursuant to section 1128(b)(5) of the Act. I conclude also that the term of exclusion imposed by the I.G. is mandated by section 1128(c)(3)(E) of the Act.

Jose A. Anglada

Administrative Law Judge