Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Appellate Division
In the Case of:
Sheldon Stein, M.D.,
Petitioner,
- v. -
The Inspector General.
DATE: February 14, 1992
Docket No. C-342
Decision No. 1301
FINAL DECISION ON REVIEW OF ADMINISTRATIVE LAW
JUDGE
DECISION
Sheldon Stein, M.D. (Petitioner) appealed a decision by Administrative
Law
Judge (ALJ) Charles E. Stratton upholding the determination by the
Inspector
General (I.G.) to exclude Petitioner from participation in the
Medicare
program and to direct his exclusion from participation in State
health care
programs until he obtained a valid license to practice
medicine in the State
of New York. 1/ Sheldon Stein, M.D., DAB CR144
(1991) (ALJ
Decision). Petitioner's exclusion was based on section
1128(b)(4)(A) of
the Social Security Act (Act), which permits the
exclusion of any individual
or entity --
whose license to provide health care has been revoked
or
suspended by any State licensing authority, or who
otherwise
lost such a license, for reasons bearing on the individual's
or
entity's professional competence, professional performance,
or
financial integrity . . . .
The ALJ concluded that the I.G. had authority to exclude Petitioner
and
that the length of the exclusion imposed and directed against
Petitioner
by the I.G. was reasonable.
For the reasons stated below, we affirm the ALJ Decision. The
ALJ
Decision
The ALJ made the following findings of fact and conclusions of
law
(FFCLs):
1. At all relevant times until June 3, 1990, Petitioner was a
physician
licensed to practice medicine in the State of New York and was
a
practicing orthopedic surgeon.
2. On March 30, 1988 (as amended on July 18, 1988), New
York's
Department of Health, State Board of Professional Medical Conduct, in
a
"Statement of Charges", charged Petitioner with 25 specifications
of
practicing with gross negligence and/or gross incompetence,
one
specification of practicing with negligence and/or incompetence on
more
than one occasion, and one specification of failing to maintain
adequate
records.
3. These charges pertained to Petitioner's orthopedic
treatment,
between January 1983 and August 1986, of seven patients who
were
referred to as patients A through G.
4. These 27 specifications in the charges were principally
concerned
with Petitioner's allegedly faulty performance of a surgical
procedure
known as "open reduction and internal fixation", which consisted of
the
placement of plates and/or pins to patients' bones to repair
fractures.
5. Pursuant to an in-person evidentiary hearing, a Hearing Committee
of
the New York Department of Health's State Board for Professional
Medical
Conduct (Hearing Committee), consisting of two physicians and a
lay
person, made 90 enumerated Findings of Fact and recommended that:
1)
five allegations of gross negligence and/or gross incompetence
be
sustained; 2) so much of Specification 26 as recited the 17
allegations
of negligence and/or incompetence be sustained; and 3) the
allegation of
failure to keep adequate records be sustained.
6. The Hearing Committee further recommended that Petitioner's
medical
license be revoked "for the consistent pattern of negligence
and
incompetence evidenced by the Respondent in his practice of
the
profession."
7. On June 30, 1989 (with a clarifying addition of January 12,
1990),
New York's Commissioner of Health recommended that New York's Board
of
Regents: 1) accept the recommendation of the Hearing Committee in
full;
and 2) issue an order adopting and incorporating as its
determination
the recommendations of the Hearing Committee.
8. On February 16, 1990, New York's Regent's Review
Committee
unanimously recommended that the Hearing Committee's 90 Findings of
Fact
be adopted by the Board of Regents. However, the Regent's
Review
Committee recommended that Petitioner's license not be revoked.
9. The Regent's Review Committee considered: 1) Petitioner's
relative
youth at the time of the incidents in question; 2) the
significant
education and training taken by Petitioner to improve his skills
since
those incidents; 3) Petitioner's unblemished record since the
incidents;
4) the significant praise and favorable evaluation of Petitioner
by
physicians working directly with him in treating patients; 5)
the
difficult medical nature of the cases involved; and 6)
Petitioner's
being found guilty of only seven of the 27 specifications of
the
charges.
10. While the Regent's Review Committee did not unanimously agree
on
the recommended measure of discipline, they did unanimously agree
that
revocation was:
not appropriate in this case as it overlooks both the
difficult
and close medical issues involved in the charges and
the
respondent's own circumstances and efforts to correct
any
deficiencies in his practice of orthopedics. Revocation, in
our
unanimous opinion, would be a regressive penalty, depriving
this
relatively young doctor, who has shown exceptional effort
in
striving to improve hismedical skills in the area
of
orthopedics, from utilizing his significant skills to serve
the
public.
11. By a vote of two to one, the Regent's Review Committee
recommended
that: 1) Petitioner be censured and reprimanded upon each
specification
of the charges of which they recommended he be found guilty;
2)
Petitioner be placed on two years probation, the terms to
include
monitoring Petitioner's practice and continuing education in
orthopedics
and patient management. The third Regent's Review Committee
member,
"taking a more serious view of the actual misconduct, while
still
acknowledging the significance of the mitigating factors,"
recommended
that: 1) Petitioner's license be suspended for two years
upon each
specification of charges for which they recommended he be found
guilty;
2) the suspensions run concurrently; 3) Petitioner be placed on
two
years' probation, terms to include monitoring Petitioner's practice
and
continuing education in orthopedics and patient management.
12. On March 30, 1990, New York's Commissioner of Education
ordered,
pursuant to a March 23, 1990 vote of the Board of Regents of
the
University of the State of New York, that: 1) the Hearing
Committee's
90 Findings of Fact and Conclusions as to Petitioner's guilt be
accepted
and the Commissioner of Health's recommendation be accepted;
2)
Petitioner was guilty of the charges as determined by the
Hearing
Committee and the Commissioner of Health; and 3) the recommendation
of
the Regents Review Committee be modified as to the measure
of
discipline, "based upon the serious nature of the misconduct
committed
and in agreement with the hearing committee and Commissioner of
Health,
respondent's license to practice as a physician in the State of New
York
be revoked . . ."
13. Petitioner was eligible to apply for restoration of his license
one
year from the effective date of service of the Order. The Order
stated
that Petitioner's application would not automatically be granted.
14. Petitioner was eligible to apply for reinstatement of his
medical
license in the State of New York on June 3, 1991. Petitioner
is
currently submitting his application for reinstatement.
15. On December 18, 1990, the State of New Jersey, Department of
Law
and Public Safety, Division of Consumer Affairs, State Board of
Medical
Examiners, promulgated a Consent Order in the matter of the
suspension
of Petitioner's license to practice medicine and surgery in New
Jersey.
This matter was opened following the revocation of Petitioner's
license
to practice medicine in New York.
16. New Jersey suspended Petitioner's license to practice medicine
for
one year, but stayed that suspension under the following
conditions: 1)
Petitioner was to discontinue the performance of open
reductions and
internal fixations for one year, or until his New York license
was
restored; 2) Petitioner was to undertake 100 hours of continuing
medical
education in the field of orthopedic surgery; 3) Petitioner was to
pay
the costs of the matter; and 4) prior to reinstatement of full
surgical
privileges, Petitioner was to personally appear before the Board for
an
inquiry as to his compliance with the terms of the Order.
17. Petitioner appealed the revocation of his license to
practice
medicine in New York. On March 28, 1991, an appellate panel of
New
York's Supreme Court, Appellate Division, Third Judicial
Department
(N.Y. Appellate Division), upheld the revocation of
Petitioner's
license.
18. The N.Y. Appellate Division found that: 1) the determination
to
revoke Petitioner's license was supported by substantial evidence
and
that there was no "irrational prejudice" exhibited against Petitioner
by
the state's expert witness; and 2) the punishment imposed by the
Board
of Regents was not disproportionately harsh in light of the nature
of
the offenses.
19. The N.Y. Appellate Division specifically found that the
patients
affected by Petitioner's misconduct all had to undergo
subsequent
painful and risky surgery as a result of his conduct.
Several of
Petitioner's patients suffered deformities, infection, necrosis,
and
wound dehiscence, and one 13-year-old patient also sustained nerve
and
muscle damage.
20. The N.Y. Appellate Division specifically took into
consideration:
1) the letters of recommendation from Petitioner's colleagues;
2) that
the misconduct occurred relatively early in Petitioner's medical
career;
and 3) that Petitioner has since participated in significant amounts
of
continuing education.
21. The Secretary of DHHS (the Secretary) delegated
to the I.G. the
authority to determine, impose, and direct exclusions
pursuant to
section 1128 of the Act. 48 Fed. Reg. 21662, May 13,
1983.
22. Section 1128(b)(4)(A) of the Act authorizes the
I.G. to impose
and direct exclusions of individuals 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.
23. On November 23, 1990, the I.G. excluded
Petitioner from
participation in the Medicare program and directed that he be
excluded
from participation in the Medicaid program, pursuant to
section
1128(b)(4)(A) of the Act.
24. The I.G. had a basis upon which to impose and
direct an
exclusion against Petitioner.
25. The I.G. excluded Petitioner until such time as
he received a
license to practice medicine in New York.
26. After taking into consideration all of
Petitioner's arguments
against revocation of his license, the Board of
Regents decided that
Petitioner's conduct was so serious that his license
should be revoked,
and the N.Y. Appellate Division unanimously upheld the
revocation.
These arguments included Petitioner's assertions before me
that: 1) his
revocation was based on six cases out of thousands; 2)
since these cases
he has maintained an unblemished record for medical
practice; 3) the New
York State Society of Orthopaedic Surgeons believes he
should be
licensed; 4) his license was not revoked in New Jersey; 5) he is
no
danger to the public; 6) he has completed 500 hours of
continuing
medical education in orthopedic surgery; 7) his colleagues support
him.
27. Petitioner now wants to do an orthopaedic
fellowship at the
State University of New York, where he would be treating
Medicare and
Medicaid patients. Petitioner is able to take this
fellowship because
he has a New Jersey license, and New York does not require
that a
physician have a New York license for fellowship positions.
The
restrictions on his New Jersey license, however, will not apply to
the
fellowship, as it is a supervised position.
28. Petitioner never acknowledged the gravity of his
conduct towards
these patients, and is still arguing that it was not as a
result of his
surgery that the patients in question may have suffered
deformities,
infection, necrosis, or nerve and muscle damage.
29. The exclusion imposed and directed against
Petitioner by the
I.G. is reasonable and appropriate.
ALJ Decision at 3-8 (citations omitted).
Analysis
Petitioner raised a number of arguments challenging the ALJ
Decision.
While Petitioner did not cite to any specific numbered findings of
fact
and conclusions of law in the ALJ's decision, except to quote part
of
FFCL 19 in his arguments, it is apparent that Petitioner takes
exception
to some of the FFCLs. Thus, in the course of discussing
Petitioner's
arguments, we cite to the FFCLs which we conclude were
challenged.
I. The I.G. properly excluded Petitioner based
on his licensure
revocation.
The first three points made in Petitioner's brief essentially raise
the
issue of whether the ALJ erred by not addressing whether the I.G.
had
violated the statute by automatically proposing an exclusion based
on
the licensure revocation (and thus had deprived Petitioner of
due
process and his constitutional rights). 2/ Petitioner's argument
relied
on testimony by an I.G. witness at the hearing which Petitioner
said
showed that the I.G. policy is to impose an exclusion in every
instance
where a license is revoked for reasons bearing on
professional
competence, and that this policy was applied to Petitioner's
case
without any consideration of the factors which Petitioner said
showed
that no exclusion was necessary to protect program
beneficiaries. In
effect, Petitioner's position is that, by making an
exclusion on the
basis of license revocation permissive, Congress intended to
preclude
the I.G. from adopting the type of policy described by the I.G.
witness
and to require the I.G. to evaluate each case on its individual
merits.
The ALJ did not directly address Petitioner's argument that the I.G.
had
violated the statute by not making a case-by-case determination
on
whether to impose any exclusion at all. The ALJ concluded simply
that
the I.G. had "properly exercised his discretion" to exclude
Petitioner.
The rationale for this conclusion was that section 1128(b)(4)(A)
applies
(since Petitioner's license was revoked by a state licensing
authority
for reasons bearing on his professional competence) and that
Congress
intended some period of exclusion for practitioners who lost
their
licenses, unless a revocation was for "minor infractions not relating
to
quality of care." ALJ Decision at 9, citing S. Rep. No. 109,
100th
Cong., 1st Sess. 1, reprinted in 1987 U.S. Code Cong. & Admin.
News,
682, 688. 3/
The ALJ also stated that "an ALJ does not have authority under the Act
to
decide whether or not the I.G. should have exercised his discretion
in making
a determination to exclude a petitioner." ALJ Decision at
9-10, citing
42 C.F.R. 1001.128(a); Jack W. Greene, DAB 1078 at 17
(1989), aff'd, 731 F.
Supp. 835, 839 (E.D. Tenn. 1990); Betsy Chua, M.D.
and Betsy Chua, M.D.,
S.C., DAB CR76 (1990) at 9-10, aff'd DAB 1204
(1990) at 5. 4/
Arguably the issue raised by Petitioner goes to the scope and meaning
of
the statutory grant of discretion rather than to the exercise of
that
discretion. In any event, we need not decide here whether the ALJ
erred
in not addressing this issue, since we conclude that
Petitioner's
argument has no merit.
First, the testimony relied on by Petitioner does not clearly refer to
a
policy to automatically exclude every practitioner whose license
has
been revoked for reasons bearing on professional competence.
In
context, the witness appears instead to be explaining when someone
in
his position (program analyst) is required to recommend an exclusion
to
higher level officials within the I.G.'s office. Transcript of
Hearing
at 40-55. This does not necessarily mean that the I.G.
would
automatically impose an exclusion based on this recommendation,
without
considering all the circumstances, or in fact did so here. 5/
Moreover, a grant of discretion by Congress does not preclude an
agency
from exercising that discretion by adopting reasonable
guidelines. See,
e.g., Farmer v. U.S. Parole Commission, 588 F.2d 54,
56 (4th Cir. 1978).
Indeed, adoption of such guidelines avoids arbitrary
decisionmaking.
The guideline Petitioner said was applied here would be a
reasonable
one. Revocation of a license is the most drastic action a
state
licensing authority can take, and gross negligence and
gross
incompetence such as that found here presents the most potential
for
injury or harm to Medicare or Medicaid patients. Thus, it would
be
fully consistent with the statute and its legislative history for
the
I.G. to establish a guideline that he should impose some exclusion
in
every instance where revocation occurs for such reasons,
particularly
where the circumstances may be taken into account in determining
the
length of the exclusion.
Finally, Petitioner did not cite any authority for his position that
such
a policy would deprive Petitioner of constitutional and due process
rights,
and we see no reason to conclude that those rights were violated
here. 6/
II. The ALJ was not required to reverse the I.G.'s decision based
on
the ancillary action of another state.
Petitioner asserted that the ALJ erred by ignoring the action of the
State
of New Jersey which allowed him to continue to practice medicine
and
orthopedic surgery. See FFCLs 15 and 16. Petitioner argued
that
the State of New Jersey performed an independent review of the
cases
tried in New York and allowed him to practice, restricting only
his
performance of open reductions and internal fixations.
We find that Petitioner's argument is without merit. The ALJ's
FFCLs,
as cited in the previous paragraph, specifically included the fact
that
New Jersey had permitted Petitioner to continue to practice
medicine.
As the Appellate Panel indicated in Eric Kranz, M.D., DAB 1286
(1991) at
11, however, it is "reasonable to give primary weight to the
decision of
that [licensing] Board which gave the most careful consideration
to the
facts . . . ." That decision also stated:
The divergent opinions of various licensing
authorities regarding
the Petitioner's fitness to
practice medicine may in part have been
attributable
to the degree of remoteness in time of the
underlying
events considered or to other factors
such as the particular
State's need for
physicians.
Kranz at 17.
In this case, the fact that New Jersey allowed Petitioner to continue
to
practice medicine is not determinative. The ALJ reasonably gave
more
weight to New York's action since New York gave the most
complete
consideration to the issues. Indeed, the restrictions New
Jersey placed
on Petitioner's license were related to New York's
action. Since the
federal government cannot ensure that every state
would impose
sufficient protective restrictions, it is reasonable to
exclude
Petitioner until there are adequate assurances regarding his
competence.
III. The ALJ did not err in relying on findings of the N.Y.
Appellate
Division.
Petitioner maintained that the ALJ's reliance on the N.Y.
Appellate
Division finding that "the patients affected by Petitioner's
misconduct
all had to undergo subsequent painful and risky surgery as a
result of
his conduct" was inappropriate and erroneous. FFCL 19; see
FFCLs 18 and
20. 7/ Petitioner asserted that he was never afforded the
opportunity
to answer these charges because at no time was proximate cause an
issue.
Petitioner cited two cases, Davidson v. Conole, App. Div., 436 N.Y.S.
2d
109 (1981) and Connecticut v. Doehr, 500 U.S. ___, 111 S.Ct.
2105
(1991), to support his position that "there is no inferred
proximate
causal link for a doctor's acts or omissions, unless specifically
proven
by a preponderance of the evidence." Petitioner's brief at 6.
8/
Petitioner's reliance on Davidson and Connecticut is misplaced.
Davidson
involved a plaintiff's suit for negligence. The question in
Davidson
was whether the tort of medical malpractice had been
established.
Contrary to what Petitioner suggested, the court did not
say that proximate
cause can never be inferred from the surrounding
circumstances. Rather,
the court found that.the connection between the
hospital's acts or omissions
and the plaintiff's injury was merely
speculative under the particular
circumstances in that case.
Connecticut involved the question of what process
must be afforded by a
state statute enabling an individual to enlist the aid
of the state to
deprive another of his or her property by means of a
pre-judgment
attachment or similar procedure. Neither of these cases
preclude the
drawing of a reasonable inference of injury in
appropriate
circumstances.
Here, the ALJ could properly rely on the New York Appellate
Division
findings, since 1) those findings were based on a reasonable
inference
from the findings of the Hearing Committee (see I.G. ex 2);
2)
Petitioner's appeal of the Appellate Division decision was denied
(see
Reply of the I.G. at 5); and 3) Petitioner did not offer any evidence
to
show that some act or omission other than his own conduct was
the
proximate cause of the injuries in question.
Therefore, we conclude that the ALJ decision on this issue is supported
by
substantial evidence in the record.
IV. The ALJ Decision does not indicate a lack of impartiality.
Petitioner argued that the ALJ erred in stating that the
fellowship
position Petitioner was seeking was an attempt to "circumvent both
his
license revocation in New York and the restrictions New Jersey placed
on
his license." See FFCL 27; ALJ Decision at 13. Petitioner
maintained
that the ALJ's finding that Petitioner was attempting to
circumvent his
revocation "stands as monumental testimony to the abject and
total lack
of partiality (sic), and absence of understanding of the reasons
for the
appeal, the purpose of the fellowship, and the concept of the
practice
of medicine." Petitioner also asserted that, contrary to what
the ALJ
said, it was not a prerequisite for the fellowship that
Petitioner
participate in Medicare. Petitioner's brief at 7-9.
Petitioner also
alleged that the ALJ Decision as a whole calls into question
the ALJ's
impartiality. Id. at 11.
Even if the ALJ did somewhat misunderstand the fellowship and
related
matters, this would at most be harmless error.since it does not
undercut
the reasons for his decision. Moreover, it appears that
Petitioner
contributed to any misunderstanding. In a letter to the
Director,
Office of Investigations, Office of Inspector General,
Petitioner
stated:
I have been asked to accept a position as a teaching
Orthopaedic
Fellow at Long Island College Hospital .
. . . The position would
include care of
medicare covered patients.
Petitioner's letter dated January 12, 1990 (since the stamped receipt
date
is January 24, 1991, it appears that the correct date of the letter
should be
January 12, 1991) at 2, .6.
Petitioner's assertion that the ALJ's statement concerning the
fellowship
shows that the ALJ lacked impartiality is without merit. At
most, this
statement shows that the ALJ was suspicious of Petitioner's
motives. An
opinion reached of a petitioner's motives during the course
of judicial (or
administrative) proceedings does not indicate the type
of bias that calls
into question the impartiality of the decisionmaker.
In order to be
disqualifying, bias must arise from an extrajudicial
source. Edward J.
Petrus, Jr., M.D., DAB 1264 (1991), citing United
States v. Grinnell Corp.,
384 U.S. 563, 583 (1966); Tynan v. United
States, 376 F. 2d 761 (D.C. Cir.
1967), cert. denied, 389 U.S. 845
(1967); Duffield v. Charleston Area Medical
Center, 503 F. 2d 512, 517
(4th Cir. 1974). Petitioner did not allege
such an extrajudicial source
here.
Moreover, the record shows that the ALJ allowed Petitioner a wide
latitude
to present his case, and considered the relevant factors. A
subsequent
decision adverse to Petitioner's position is not indicative
of partiality,
nor is the type of misunderstanding alleged here.
V. Consent agreements with other states are not determinative of
the
issue here.
Petitioner submitted to us copies of consent agreements reached with
the
States of Connecticut and Pennsylvania, as well as a Hearing
Examiner's
Adjudication and Order from Pennsylvania. These documents
were issued
after the ALJ Decision. Petitioner asserted that these
states
will.issue him unrestricted licenses, requiring only that his
practice
be monitored for a period of eight or nine months.
Additionally,
Petitioner submitted a letter dated December 4, 1991 from the
Episcopal
Hospital in Philadelphia, Pennsylvania, addressed to the Acting
Deputy
Secretary for Medical Assistance for Pennsylvania, asking the
Deputy
Secretary to request from the I.G. a waiver of Dr. Stein's
exclusion.
Petitioner concluded that all of these documents confirm his
competence
and ability to practice medicine and orthopedic surgery. He
also argued
that the actions taken by the licensing boards of three States
(New
Jersey, Connecticut, and Pennsylvania) "conclusively demonstrate
how
severely aberrational the revocation imposed by New York
was."
Petitioner's response brief at 14.
The I.G. objected to the introduction into the record of documents
which
were not before the ALJ. However, the regulations in effect at
the time
the documents were submitted specifically permit additional evidence
to
be admitted during an appeal, stating:
(a) The [Board] may admit evidence into the record in
addition
to the evidence introduced at the ALJ hearing, (or the
documents
considered by the ALJ if the hearing was waived), if the
[Board]
considers that the additional evidence is relevant and
material
to an issue before it.
42 C.F.R. 498.86. 9/
The documents at issue here do not show that an error was made in
finding
that section 1128(b)(4) applies. At most, they are relevant as
opinions
by licensing bodies and other medical professionals to be
considered in
determining whether the length of the exclusion imposed
here was extreme.
10/ Contrary to what Petitioner argued, they do not
show that the
decision by New York was "aberrational." .Both the
Connecticut and
Pennsylvania actions were taken at a later point in time
than New York's
action and do not involve an independent evaluation of
the seriousness of
Petitioner's conduct. Indeed, while New York found
"gross negligence
and gross incompetence," the derivative actions in
Connecticut and
Pennsylvania were based on Petitioner's admission only
to negligence and
incompetence. See Attachments to Petitioner's brief,
Connecticut
Consent Agreement at .1 and Pennsylvania Consent Agreement
at .7. While
the documents do indicate current evaluations of
Petitioner's competence
based on the additional training and experience
he has had since the conduct
occurred, most of that training and
experience was taken into account in New
York's decision to revoke
Petitioner's license for only a year. For
federal purposes, it is thus
reasonable to wait until Petitioner has
satisfactorily demonstrated his
current competence to New York in order to
assure protection of Medicare
and Medicaid patients.
We also note that the States licensing Petitioner did not take
into
account all of the factors considered by the ALJ in
evaluating
Petitioner's trustworthiness. For example, the ALJ found
that
Petitioner had never fully acknowledged that he may have made
mistakes
in his treatment of the patients in question. 11/
Thus, even considering the additional evidence submitted by Petitioner,
we
would not find that the ALJ erred in concluding that the exclusion
period
here was not extreme. .Conclusion
Based on the above analysis, we affirm and adopt the FFCLs relied on
by
the ALJ in reaching his decision. We sustain the ALJ Decision
imposing
an exclusion on Petitioner until he obtains a valid license to
practice
medicine in the State of New York.
Cecilia Sparks Ford
Theodore J. Roumel
Judith A. Ballard
Presiding
Panel Member
1. "State health care program" is defined by section 1128(h) of the
Act
to cover several federally-financed programs including Medicaid. We
use
the term "Medicaid" to refer to all State health care programs
from
which Petitioner was excluded.
2. Petitioner framed what he said were the "true issues" as follows:
1. the inappropriateness of the Inspector General
mandating
automatic exclusion of a physician from the Medicare program
in
the event of license revocation, rather than following
the
statutory directive requiring a case by case
determination.
This policy constitutes legal constitutional
rights
infringements and violates essential due process rights.
2. whether the Inspector General abrogated the legal
and
constitutional rights of the Petitioner by failing to
properly
consider the overwhelming, substantial, and
uncontroverted
testimony attesting to the skill and expertise of
Petitioner.
3. the failure by the Inspector General to consider
the
overwhelming weight of mitigating factors is violative of
his
congressional mandate.
Petitioner's brief at 1-2.
3. We agree with the ALJ that the I.G. had established by
a
preponderance of the evidence that the terms of section
1128(b)(4)(A)
apply here and that therefore the I.G. had a basis under that
section
for excluding Petitioner. We do not agree, however, that
the
legislative history indicates an intent to limit the
Secretary's
discretion as narrowly as suggested. While the legislative
history
reflects an expectation that exclusions would not be imposed where
loss
of license was for a minor infraction not relating to quality of
care,
it does not state as a corollary the expectation that the
Secretary
would impose an exclusion in every other instance of loss of
license.
See 57 Fed. Reg. 3298, 3305 (January 29, 1992).
4. Neither Greene nor Chua discuss review of the I.G.'s exercise
of
discretion to exclude and were apparently cited because they
discuss
whether an ALJ may reach constitutional issues. The
regulatory section
cited by the ALJ does not directly apply to permissive
exclusions. See
Vincent Baratta, M.D., DAB 1172 (1990). Recently
published regulations
which do apply to permissive exclusions state
specifically that an ALJ
does not have authority to "[r]eview the exercise of
discretion by the
OIG to exclude an individual or entity under section
1128(b) of the Act
. . . ." 42 C.F.R. 1005.4(c), 57 Fed. Reg. at
3350. We express no
opinion here on whether this precludes an ALJ from
examining issues
related to the scope of the I.G.'s discretion or to an
alleged abuse of
discretion.
5. The preamble to recently published regulations which apply
to
permissive exclusions specifically states that the I.G. will
not
automatically exclude individuals whose license has been lost, but
will
consider the particular circumstances. 57 Fed. Reg. at 3305.
6. Petitioner also maintained that the ALJ obfuscated the true
issues
of deprivation of civil rights and due process by creating a
charade
that Petitioner is lacking in "trustworthiness." See FFCL
28. However,
the ALJ was using the term "trustworthiness" simply as a
shorthand for
all of the factors such as professional competence which are
relevant to
promoting the purposes of the exclusion provisions.
7. Petitioner also noted that over four years had passed between
the
date of occurrence of the last case with which he was charged and
the
date of revocation of his license in the State of New York. While
the
passage of time is relevant here, it is only one factor to be
considered
and can properly be given less weight where, as here, the conduct
has
serious consequences on patients' health.
8. Petitioner cited Connecticut v. Doehr, supra, as "Mathews
and
Connecticut v. Doehr." However, the case of Mathews v. Eldridge,
424
U.S. 319 (1976) is discussed in Connecticut.
9. The Departmental Appeals Board was delegated the authority
which
formerly had been delegated to the Appeals Council. 53 Fed. Reg.
25543
(July 7, 1988); see also 57 Fed. Reg. 3354 (January 29, 1992).
10. We note that Petitioner's one-year revocation expired on June
3,
1991, and that Petitioner has applied for reinstatement of his New
York
license.
11. Petitioner argued that this finding by the ALJ proved that the
ALJ
had never made an effort to review the proceedings of the State of
New
York, where such acknowledgments were made. Petitioner's brief at
10.
Petitioner did not cite to any specific page of the transcript of
the
New York proceedings. Even assuming it is true that he did in
those
proceedings acknowledge his mistakes, this does not support
the
conclusion Petitioner would have us draw. The ALJ could reasonably
have
found from the statements made in Petitioner's briefs to him
that
Petitioner had not fully acknowledged his mistakes since the tone
of
those briefs evidences an attitude inconsistent with full acceptance
of