Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Appellate Division
In the Case of:
Behrooz Bassim, M.D.,
Petitioner,
- v. -
The Inspector General.
DATE: May 28, 1992
Docket No. C-388
Decision No. 1333
FINAL DECISION ON REVIEW OF
ADMINISTRATIVE LAW JUDGE
DECISION
Behrooz Bassim, M.D. (Petitioner) appealed a decision by
Administrative
Law Judge (ALJ) Edward D. Steinman affirming the determination
by the
Inspector General (I.G.) to exclude Petitioner from participation in
the
Medicare and Medicaid programs until he obtained a valid license
to
practice medicine in the State of New York. 1/ See Behrooz
Bassim,
M.D., DAB CR168 (1992) (ALJ Decision).
Petitioner's exclusion was based on section 1128(b)(4)(A) of the
Social
Security Act (Act), which permits the exclusion of an 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whose license to provide health care has been revoked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 Inspector General excluded Petitioner from the Medicare and
Medicaid
programs on the ground that the Office of Professional Discipline of
the
State Education Department of New York (New York) had
revoked
Petitioner's license to practice medicine in the State of New
York.
Petitioner's exclusion is to remain in effect until he obtains a
valid
license to practice medicine in New York.
The ALJ concluded that the I.G. had authority to exclude Petitioner,
and
that the length of the exclusion imposed against Petitioner by the
I.G.
was reasonable. For the reasons stated below, we affirm the
ALJ
Decision.
BACKGROUND
The ALJ made the following findings of fact and conclusions of
law
(FFCLs):
l. At all relevant times, Petitioner was a physician in the
general
practice of medicine in Potsdam, New York.
2. Petitioner was licensed to practice as a physician by the New
York
State Department of Education.
3. On March 14, 1989, Petitioner was charged by the New York
Department
of Health, State Board for Professional Medical Conduct, with
several
counts of conduct evidencing moral unfitness and several counts
of
physical abuse of patients.
4. Specifically, these charges dealt with Petitioner's care
and
treatment of three female patients ("A", "B", and "C") between the
years
1985 - 1988. The charges stated that Petitioner engaged
in
inappropriate and improper physical and/or sexual contact with
these
patients, including intercourse, and that he inappropriately fondled
and
caressed these patients.
5. A Hearing Committee of the New York State Department of
Health,
State Board for Professional Medical Conduct (Hearing
Committee),
following an in-person evidentiary hearing, unanimously concluded
on
December 19, 1989 that all the factual allegations set forth in
the
Statement of Charges were sustained by a preponderance of the
evidence.
.6. The Hearing Committee recommended that Petitioner's
license to
practice medicine in the State of New York be revoked. The
Hearing
Committee concluded:
. . . [Petitioner's] conduct [is] a very serious violation
of
his responsibility to patients and in gross contravention of
his
ethical obligations. Inherent in the practice of medicine
is
the fact that patients come to a physician seeking help
and,
based on trust, place themselves in extremely
vulnerable
circumstances. In the opinion of the committee, a
physician who
takes advantage of this trust acts in a reprehensible
manner.
[Petitioner] has abused three patients for his
own
gratification.
7. On May 18, 1989, the New York State Commissioner of Health
(Health
Commissioner) recommended to the New York State Board of Regents
(Board
of Regents) that the Board of Regents adopt and incorporate the
Hearing
Committee's findings of fact, conclusions of law, and its
recommendation
to revoke Petitioner's license.
8. On September 17, 1990, the Board of Regents' Review
Committee
(Regents' Review Committee) unanimously recommended to the Board
of
Regents that the Hearing Committee's and Commissioner's findings
of
fact, conclusions of law, and recommendation be accepted and
that
Petitioner's license to practice be revoked.
9. The Regent's Review Committee specifically rejected
Petitioner's
contention that the hearing be reopened to allow for a
physical
demonstration concerning the misconduct charged. The Regents'
Review
Committee stated that Petitioner had a full and fair opportunity
to
present his case and that the record contained more than
adequate
evidence from which to assess his conduct.
10. On October 19, 1990, the Board of Regents voted to accept
the
Recommendation of the Regent's Review Committee regarding the
Hearing
Committee's findings of fact, conclusions and recommendation, and
voted
to revoke Petitioner's license to practice medicine.
11. On October 26, 1990, Petitioner's license to practice as
a
physician in the State of New York was revoked by the State of
New
York's Commissioner of Education (Education Commissioner).
12. Petitioner is eligible to apply for restoration of his license
one
year from the effective date of the revocation. Such application is
not
automatically granted.
13. A temporary stay of Petitioner's license revocation was granted
on
November 7, 1990. That stay was vacated on January 25, 1991.
14. Petitioner is now appealing his license revocation in the New
York
Supreme Court, Appellate Division, Third Department.
15. On September 11, 1991, the New Jersey Board of Medical
Examiners
revoked Petitioner's license to practice medicine.
16. The Secretary of DHHS (the Secretary) delegated to the I.G.
the
authority to determine, 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.
17. On May 17, 1991, the I.G. excluded Petitioner from participation
in
the Medicare program and the Medicaid program, pursuant to
section
1128(b)(4)(A) of the Act.
18. The I.G. had the authority to impose and direct an
exclusion
against the petitioner.
19. The I.G. excluded Petitioner until such time as he received
a
license to practice medicine in New York.
20. Prior to his State license revocation, Petitioner, based on
alleged
incompetency, lost hospital privileges at the Canton-Postdam
Hospital,
the only hospital in which he could practice.
21. Petitioner does not believe he needs any rehabilitation and has
not
gone for counseling.
22. Petitioner has expressed no intention to practice anywhere
other
than in the State of New York.
23. Petitioner currently is not licensed to practice medicine in
any
State.
24. The exclusion imposed and directed against Petitioner by the
I.G.
is reasonable, i.e., it is neither extreme or excessive.
ALJ Decision at 2-5 (citations omitted).
While Petitioner did not object to any specific FFCLs, it appears that
his
objections are primarily directed toward FFCL No. 24.
ANALYSIS
Petitioner challenged the imposition of the exclusion and argued that
it
was unfair to allow the conclusions of the New York licensing action
to
have a "domino effect" on this proceeding. He asserted his innocence
of
all charges, and stated that, as the evidence showed
numerous
irregularities in the state proceeding, it is manifestly unjust to
base
a finding of untrustworthiness on it. The I.G., however, argued
that
the ALJ Decision is consistent with prior Board decisions and
is
required by the recently promulgated exclusion regulations.
Before considering Petitioner's appeal, we first address the
I.G.'s
arguments regarding the effect of the new regulations, as they raise
a
threshold question which, if resolved in the I.G.'s favor, could
require
us to affirm the ALJ Decision regardless of the merits of
Petitioner's
arguments.
1. The I.G.'s arguments regarding the applicability of the
recently
promulgated exclusion regulations have no merit.
The Notice of Exclusion sent by the I.G. to Petitioner was dated May
17,
1991, and the ALJ Decision was issued on December 16, 1991. On
January
29, 1992, the Secretary promulgated new regulations which, among
other
things, effect both procedural and substantive changes with respect
to
the I.G.'s authority to exclude individuals and entities
from
reimbursement for services rendered in connection with the Medicare
and
Medicaid programs and with respect to excluded parties' rights
on
appeal. 42 C.F.R. Parts 1001-1007; 2/ 57 Fed. Reg. 3298 et seq.
(1992)
(1992 Regulations). The I.G. argued that the 1992 Regulations
apply to
all proceedings pending on the date published, and, therefore, are
now
binding on our determination here. Citing 42 C.F.R. . 1001.2007(d)
and
. 1001.501(b) of the 1992 Regulations, the I.G. also asserted that
any
review, on appeal, of the underlying order revoking Petitioner's
license
was prohibited, and that Petitioner's exclusion must be
coterminous
with, and remain in effect, until his New York license is
restored. 3/
Additionally, the I.G. argued that we should apply the 1992 Regulations
to
this decision because, not only were they effective when published,
but they
are consistent with prior Board case law. We disagree on
both
points. The Federal Register publication states: "These
regulations are
effective on January 29, 1992." 57 Fed. Reg. at
3298. The effective
date of a regulation does not establish the
permissible effect of the
regulation, however. Also, the I.G.'s
interpretation of the 1992
Regulations on the issues of the scope of review
and the length of the
exclusion is not consistent with past Board decisions
and would
represent substantive changes in the law. 4/ Thus, the issue
here is
whether sections of the 1992 Regulations which make substantive
changes
can properly be applied to a pending proceeding.
Substantive changes in the law are not lightly applied
retroactively.
Retroactivity is not favored in the law. The authority
to promulgate
rules having a retroactive effect must be expressly granted to
an agency
by Congress. Bowen v. Georgetown Univ. Hosp., 488 U.S. 204,
208-9
(1988); United States v. Murphy, 937 F.2d 1032, 1036-8 (6th Cir.
1991).
Further, if Congress does include such a statutory grant in its
enabling
legislation, the promulgated rules will not be applied
retroactively
unless their language clearly requires this result.
Georgetown, 488
U.S. at 1036.
Neither the legislative history of the MMPPPA 5/ nor the
exclusion
statutes themselves provide any support for concluding that the
rules
upon which the I.G. relied should be applied retroactively, nor did
the
I.G. cite any. There is no statement in the preamble on whether
the
rules were intended to apply retroactively or to pending cases. In
our
view, if the Secretary had intended to effect substantive changes
in
pending cases, this intent would have been expressly stated since
this
effect would create administrative complications in the appeals
process,
as well as potential prejudice for petitioners.
Contrary to what the I.G. argued, the I.G.'s interpretation of the
1992
Regulations would result in substantive changes from prior
precedent.
Before the 1992 Regulations were promulgated, there were no
regulations
implementing the Secretary's permissive authority under section
1128(b)
of the Act. Thus, the Secretary's delegates -- the I.G., the
ALJs, and
this Board -- relied on the statutes, interpretive case law, and to
some
extent, used as guidance an existing regulation at 42
C.F.R.
.1001.125(b). That regulation set forth factors used to evaluate
an
excluded party's trustworthiness in cases involving convictions
for
program-related offenses under former section 1128(a) of the Act. 6/
Under current precedent, the primary questions to be resolved on appeal
of
a permissive exclusion under section 1128(b)(4) are: (1) whether
there was an
event, such as a state revocation or suspension, which
would trigger the
I.G.'s authority to exclude, and (2) whether, after
consideration of the
additional information presented in the appeal, the
length of the exclusion
imposed was reasonable (that is, neither extreme
nor excessive). See 48
Fed. Reg. at 3744.
In examining whether the ALJ erred in determining the reasonableness
of
the length of an exclusion, we have reviewed the evidence
introduced
during the course of the appeals, including that presented in the
state
revocation proceeding. The evidence is examined with a view to
making
findings concerning a petitioner's culpability or other matters
relevant
to determining a petitioner's trustworthiness to participate in
the
Medicare and Medicaid programs. See Bernardo G. Bilang, M.D., DAB
1295,
at 8 (1992); Kranz, DAB 1286, at 11. Since the purpose of the
exclusion
is to protect the federal programs and their beneficiaries
or
recipients, these matters are relevant in determining the
reasonableness
of the length of an exclusion. 7/ We have also stated
that, considering
the permissive nature of the exclusion, "Congress did not
require that
any exclusion be imposed based on the action of a licensing
board, much
less that the period of an exclusion be coterminous with the
licensure
revocation." Kranz, DAB 1286, at 11; accord Walter J.
Mikolinski Jr.,
DAB 1156, at 20 (1990). Equally, we have concluded that
a coterminous
exclusion is not unreasonable per se. Lakshmi N. Murty
Achalla, M.D.,
DAB 1231, at 9 (1991).
Accordingly, there is no merit to the I.G's argument that
his
interpretation of the 1992 Regulations comports with prior
Board
decisions, with respect to prohibiting review of matters
considered
during the state licensing proceeding and requiring a
coterminous
exclusion. 8/ Petitioner had a right to, and indeed based much of
his
appeal on, the existing appeals process. Consequently, application
of
the I.G.'s interpretation of the 1992 Regulations to the instant
case
would be a substantive change from past practice.
In sum, absent specific instructions in the Act or the preamble to
the
1992 Regulations directing that they apply to pending cases, we
conclude
that the Secretary did not intend to alter a petitioner's
substantive
rights in such fundamental ways as suggested by the I.G.
We also
conclude that portions of the 1992 Regulations which change
substantive
law may permissibly be applied only to cases in which the I.G.'s
Notice
of Intent to Exclude, Notice of Exclusion, or Notice of Proposal
to
Exclude is dated on or after January 29, 1992. 9/ As
Petitioner's
Notice of Exclusion is dated May 17, 1991, we, therefore,
consider
Petitioner's appeal without reference to the provisions of the
1992
Regulations relied on by the I.G.
2. The coterminous exclusion is supported by substantial evidence
and
is correct under the law.
It is undisputed that Petitioner's license to practice medicine in
New
York was revoked by the state licensing authority for reasons bearing
on
his professional competence and performance within the meaning
of
section 1128(b)(4)(A) of the Act. Thus, Petitioner did not
challenge
the authority of the I.G. to impose an exclusion, but rather the
I.G.'s
decision to do so. His appeal primarily focused on the
allegation that
New York should not have revoked his license.
Throughout both this
appeal and the New York proceeding, Petitioner has
strongly maintained
his innocence of all charges. Further, he asserted
that the ALJ should
have determined his guilt or innocence of the charges
made in the New
York proceeding before damaging his name by affirming the
exclusion. He
argued that alleged unfairness, numerous errors, and
denial of due
process in the New York proceeding were relevant to the
ALJ's
determination of his trustworthiness.
One of Petitioner's primary concerns appeared to arise from
a
misunderstanding of the nature of the federal exclusions --
especially
permissive ones under section 1128(b)(4) of the Act. A
definitive
finding of guilt or innocence before imposition of an exclusion,
as
demanded by Petitioner, implies a criminal standard which is
not
applicable here. 10/ As the ALJ Decision pointed out, the purpose
of
these types of exclusions, as envisioned by Congress, is not
punitive
but remedial. Accordingly, the exclusion serves not to punish
the
"guilty" but to protect the programs from fraud and abuse and
the
beneficiaries and recipients from incompetent practitioners
and
inappropriate or inadequate care. 11/ Thus, the major concerns
focus on
the well-being of the programs and their beneficiaries and
recipients --
not the excluded party.
Congress has determined that federal exclusion actions under
section
1128(b) of the Act may be derivative of state actions such as
licensing
proceedings. As the exclusion arises from the state action,
great
deference is given the state, unless the action is for a
minor
infraction. 12/ For example, with respect to the I.G.'s authority
to
exclude, generally, Congress has permitted the I.G. to rely on the
fact
of a state licensing authority's revocation and did not intend for
him
to review the process used by that state. Leonard R. Friedman,
M.D.,
DAB 1281, at 6-8 (1991). Thus, as the ALJ Decision noted,
Petitioner's
claims of impropriety in the process used by New York are not
relevant
to deciding whether the I.G. acted properly in the first instance
in
imposing and directing the exclusion pursuant to section
1128(b)(4)(A)
of the Act. See id. at 8; John W. Foderick, M.D., DAB
1125, at 11
(1990). It then follows that the I.G. properly relied on
the New York
proceeding in determining to impose Petitioner's exclusion.
Our determination that there has been a state revocation or
suspension
within the meaning of section 1128(b)(4), so as to trigger the
I.G.'s
authority, is, however, only the first step in our review on
appeal.
The next step is to determine whether there was substantial evidence
to
support the ALJ's findings relevant to the length of the exclusion,
and
whether the ALJ erred in concluding that the length of the
exclusion
imposed was not extreme or excessive under the
circumstances.
Petitioner argued that we should not rely on the New York
proceeding in
making this judgment. However, because of the weight
accorded state
proceedings by Congress, an ALJ may presume that these actions
are based
on valid findings. Reliance is especially reasonable where,
as here, an
evidentiary hearing was provided, and the New York licensing body
had
the opportunity to observe and judge the credibility of all
the
witnesses.
The ALJ may, however, review the circumstances of the conduct upon
which
the state action was based and not simply adopt the state's
reasoning.
Kranz, DAB 1286, at 10-12. We reject the I.G.'s
argument that this
constitutes a form of collateral review of the New York
proceeding
barred by 28 U.S.C. . 1738, which requires federal courts to give
full
faith and credit to the judgments of state courts acting within
the
scope of their jurisdiction. The I.G. asserted that because a New
York
intermediate appellate court had affirmed the license revocation, 13/
we
may not consider further that order. 14/
The ALJ did not take any action here which would lead either
to
overturning the state revocation or permitting Petitioner to
relitigate
fully, in a new forum, the conduct which led to the
revocation. Rather,
consideration of the evidence related to the
underlying conduct is
simply a recognition that the facts and circumstances
surrounding the
alleged conduct may be relevant in determining the
reasonableness of an
exclusion's length. In Bernardo G. Bilang, M.D.,
DAB 1295 (1992), we
specifically rejected the I.G.'s arguments that no
challenge to state
findings was permitted and affirmed the ALJ's decision to
examine the
evidence regarding the petitioner's conduct relevant to judging
the
petitioner's trustworthiness. We have affirmed ALJ decisions using
this
"trustworthiness" finding as a key element in analyzing
the
reasonableness of the length of an exclusion. This does not mean,
as
suggested by Petitioner, that we will review the state proceeding
to
overturn the exclusion itself. 15/
While exclusion cases are essentially derivative, and aimed at
protecting
the programs and their beneficiaries and recipients, excluded
practitioners
are accorded due process protections from this agency on
appeal.
Petitioner was given a de novo hearing and review by the ALJ,
and an
opportunity to testify, to present witnesses and evidence, and to
rebut the
I.G.'s evidence and witnesses, including that related to the
New York
proceeding. Petitioner received adequate due process
protections in
this proceeding. Thus, the ALJ neither erred in
reviewing the evidence
from the New York proceeding with respect to
Petitioner's trustworthiness nor
in declining to review the propriety of
the process used by the state.
Therefore, we now turn to whether the ALJ erred in affirming
the
coterminous exclusion. No statutory minimum exclusion period exists
in
section 1128(b)(4) cases, nor is there a requirement that a
petitioner
be excluded until he or she obtains a license from the state where
the
license was revoked. 16/ Mikolinski, DAB 1156, at 20.
Likewise, a
coterminous exclusion is not per se unreasonable. 17/
An essential element in the ALJ's review of the evidence before him was
a
determination of the Petitioner's trustworthiness. "Trustworthiness"
is
a term of art in exclusion proceedings, and is not used, as suggested
by
Petitioner, in an attempt to "degrade his name." See Petitioner's
Brief
at 5. The word is used here not with respect to a party's
general
trustworthiness, but to reflect the extent of the needed remedial
action
and whether and when the excluded party may be trusted again
to
participate in the programs without abusing them or the
beneficiaries
and recipients. 18/
We believe that the ALJ correctly concluded, after a review of all
the
evidence and testimony proffered by both sides, that the
cumulative
evidence here supported a finding of untrustworthiness -- within
the
meaning of the exclusion statutes. However, we briefly review
the
particular points raised by Petitioner in his appeal which are
relevant
to the ALJ's finding with respect to the underlying conduct:
. Neither the I.G., the ALJ Decision, nor
this Board has labeled
Petitioner "guilty." As we noted above, "guilt"
and "innocence" are
criminal standards. The standard here is whether
there was sufficient
and reasonable evidence to support the exclusion and its
length. To
that extent, we rely on whether the evidence, taken as a
whole, supports
the exclusion and its length, and whether the rebutting
evidence
submitted by Petitioner is sufficient to overcome the state
findings.
. Petitioner submitted to the ALJ
numerous letters and petitions
from friends, fellow practitioners, and
patients attesting to his
character, skills as a physician, and standing in
the community.
However, none of these individuals expressed any knowledge of
the
alleged events. Therefore, the submissions offer little in the way
of
probative evidence regarding the trustworthiness of Petitioner
with
respect to the alleged conduct with which he was charged by the New
York
licensing board.
. Petitioner's evidence and testimony
regarding the alleged
conduct center primarily on allegations of "physical
impossibilities,"
"contradictions" in the testimony of the witnesses, and
bias on the part
of the New York licensing board. Having reviewed all
the submitted
evidence and testimony, we conclude that the ALJ's finding
that
Petitioner's version of the events was less credible than that of
New
York and the I.G. was based on substantial evidence. The
evidence
relied on by Petitioner does not definitively establish that his
view of
the facts is correct. Rather, his position is based on
inferences he
drew from the evidence, which are not, however, necessary
inferences.
Since other reasonable inferences can be drawn which are
not
inconsistent with New York's findings, Petitioner's evidence is
not
sufficient to shift the burden to the I.G. to prove the accuracy of
New
York's findings. Again, we emphasize that it is not this
Board's
function to "convict" Petitioner -- only to weigh all the
evidence
presented and determine whether the ALJ Decision was based
on
substantial evidence.
Petitioner also objected to the ALJ Decision on two additional points
as
discussed below:
. Petitioner argued that because the
revocations of his licenses
19/ have been reported to the "federal Data
Bank," no state licensing
agency can issue him a new license until New York
restores his license.
20/ Therefore, he asserted that the ALJ should
not have been concerned
with his ability to obtain a new state license.
The ALJ did not err in
taking into account the fact that Petitioner was not
precluded from
attempting to get a license in another state. 21/ ALJ
Decision at 13.
Regardless of the status of Petitioner with respect to this
federal Data
Bank, one of Congress' primary concerns when it amended the
exclusion
statutes in 1987 was the ability of sanctioned practitioners to
move to
other states and continue their practices. 22/ Accordingly, the
issue
is not whether another state may or may not license Petitioner;
the
purpose of the exclusion is to ensure that the excluded party will
not
be in a position to adversely affect either the programs or
their
beneficiaries and recipients during the term of the exclusion.
These
are entirely different functions from those present in
state
proceedings.
. Petitioner also objected to the ALJ's
reliance on Petitioner's
loss of hospital privileges as an aggravating factor
in finding him
untrustworthy. The loss of privileges was extensively
discussed by
Petitioner in his pleadings and evidence, and the facts and
arguments
raised by Petitioner were unrebutted by the I.G. We conclude
that,
under the circumstances, little or no weight should have been given
to
that occurrence. 23/
However, even disregarding the issue of the loss of hospital
privileges,
we find that the ALJ Decision to affirm the coterminous exclusion
is
based on substantial evidence which was not adequately rebutted
by
Petitioner. Petitioner was charged by New York with having
committed
particularly serious acts of inappropriate and improper physical
or
sexual contact with several patients. 24/ Actions of this type pose
a
serious potential danger to program beneficiaries and recipients
and
justifies the coterminous exclusion. See Leonard R. Friedman, M.D.,
DAB
1281, at 10-11 (1991). Concern for the well-being of
program
beneficiaries and recipients must, as the ALJ found, take
precedence
over a provider's participation in the programs. In any
event, if
Petitioner regains his New York license either through success in
his
state court appeal, or reapplication to New York now that the
one-year
waiting period imposed by the State has expired, he will be able
to
apply immediately for readmission to the Medicare and Medicaid
programs.
25/ Thus, the ALJ did not err in concluding that the length
of the
exclusion was not extreme or excessive.
CONCLUSION
Based on the above analysis: 1) we conclude that the rules which the
I.G.
states are set out in the 1992 Regulations do not apply; 2) we
affirm and
adopt the FFCLs; and 3) we sustain the ALJ Decision which
affirmed the
exclusion of Petitioner until he obtains a valid license to
practice medicine
in the State of New York.
___________________________
Cecilia
S. Ford
___________________________
Donald
F.
Garrett
___________________________
Judith
A.
Ballard
Presiding
Board
Member
1. We use the term "Medicaid" to refer to all State health
care
programs as defined by section 1128(h) of the Act.
2. The 1992 Regulations were authorized by the Medicare and
Medicaid
Patient and Program Protection Act (MMPPPA), Pub. L. 100-93, 101
Stat.
697 (1987).
3. We note that in a recent permissive exclusion proceeding, the
I.G.
clearly stated that "the ALJ should apply only those provisions in
the
regulations that are prospective in nature, i.e, applicable to a
stage
of the case that has not yet happened." Inspector General's Brief
on
the Applicability of Departmental Regulations Published January
29,
1992, at 23, discussed in Hanlester Network, DAB CR181, at 45
(1992).
Yet, here, the I.G. ignored the fact that an ALJ Decision had
been
issued and that this Board has a limited review function and
sought
instead to give certain provisions retroactive effect.
4. As we have concluded that the provisions of the 1992 Regulations
on
which the I.G. relied do not apply here, we specifically do not
reach
any conclusions regarding either the appropriateness of the
I.G.'s
interpretation of the provisions or their effect on future
proceedings
to which they would apply.
5. See n. 2, supra. The authority to promulgate the 1992
Regulations
is discussed at S. Rep. No. 109, 100th Cong., 1st. Sess. 13
(1987). See
also section 1102 of the Act.
6. These factors have been modified for section 1128(b)(4) cases
and
used by some ALJs. See Eric Kranz, M.D., DAB 1286, at 8-9
(1991);
Vincent Baratta, M.D., DAB 1172, at 11 (1990).
7. On the other hand, we have affirmed ALJ decisions
precluding
collateral attacks on the process used by a state to revoke
a
petitioner's license as irrelevant to either the applicability
of
section 1128(b)(4) or the reasonableness of the length of the
exclusion.
See our discussion below in part 2 of the Analysis.
8. We note that the Administrative Procedure Act does permit an
agency
to promulgate rules to be effective on publication which
are
formalizations of current agency policy. See 5 U.S.C. .
553(d)(2).
However, as discussed above, the I.G.'s interpretations of the
1992
Regulations do not formalize existing policy with respect to
appellate
review.
9. Subpart E of Part 1001 of the 1992 Regulations governs the
I.G.'s
notices to individuals and entities of the I.G.'s intent to exclude,
42
C.F.R. . 1001.2001, notice of exclusion, 42 C.F.R. . 2002, and notice
of
proposed exclusion, 42 C.F.R. . 2003. These subsections deal
with
different types of exclusions, but each serves as a starting point for
a
party's right to object to the I.G.'s intention to exclude or to
appeal
an imposed exclusion.
10. See Bernardo G. Bilang, M.D., DAB 1295, at 7 (1992).
11. S. Rep. No. 109, 100th Cong., 1st Sess. 1-2, (1987).
12. Id. at 7; see Sheldon Stein, M.D., DAB 1301, at 8 n.3 (1992).
13. Petitioner is currently pursuing his appeal of the state
revocation
in the New York court system. On December 26, 1991, a New
York
intermediate appellate court affirmed the license revocation in
Bassim
v. Sobol, 577 N.Y.S.2d 521 (N.Y.App.Div. 1991). This Board has
been
provided with no further information on the status of
Petitioner's
appeal.
14. Kremer v. Chemical Construction Corp., 456 U.S. 461, reh'g
denied,
458 U.S. 1138 (1982), the case upon which the I.G. relied for
this
argument, does not raise an absolute bar to collateral attacks.
Rather,
there, the United States Supreme Court determined that an individual
was
not permitted to relitigate an employment discrimination complaint
in
federal court because: 1) basically the same issue had been decided
at
the state court level under a similar state law; 2) there was no
express
or implied repeal of the collateral effect in the federal statute;
and
3) the state procedures were sufficient under the Due Process Clause
of
the Fourteenth Amendment. Id. at 466, 476, and 483.
15. We have not ruled out the appropriateness of a review of the
I.G.'s
exercise of his authority to exclude if there were allegations
that
there had been an abuse of that discretion. Such an abuse could
arise
if, for example, a petitioner were to submit evidence
indicating
discrimination and that the exclusion was inconsistent with the
I.G.'s
internal guidelines. See Vincent Baratta, M.D., DAB 1172, at 9
(1990).
This is a different type of analysis from that requested by
Petitioner.
Here, while Petitioner challenged the I.G.'s decision, he made no
such
claims of abuse of discretion.
16. We note at this point that the I.G. argued that we are bound in
our
review of the reasonableness of the exclusion's length by a rule in
the
1992 Regulations which, the I.G. asserted, required a
coterminous
exclusion. As discussed in part 1 of the Analysis, we have
concluded
that this rule does not apply to our review of this proceeding.
17. The I.G. was incorrect to argue that the ruling in Mikolinski was
a
narrow exception to "the Foderick rule." See I.G. Brief at 8,
n.3.
There is no Foderick rule. What we said in John W. Foderick, DAB
1125,
at 11 (1990), was that the coterminous exclusion in that case
was
"consistent with congressional intent." This is far different
from
stating that it is required or even preferred. Indeed, in
Mikolinski,
we specifically rejected the I.G.'s argument, which was based on
section
1128(g)(2) of the Act, that a coterminous exclusion was required
in
every section 1128(b)(4) case. Mikolinski, DAB 1156, at 18.
18. See Sheldon Stein, M.D., DAB 1301, at 10, n.6 (1992).
19. Petitioner's New Jersey license was also revoked. FFCL No. 15.
20. The National Practitioner Data Bank is a clearing house which
is
subscribed to by entities such as hospitals and State
licensing
authorities. It retains malpractice and licensing action
information on
medical doctors and dentists. However, it does not
provide an absolute
bar to a practitioner obtaining a license in another
state. States have
licensed practitioners under certain circumstances,
such as requiring
supervision at all times.
21. Petitioner stated that he has not reapplied for restoration of
his
license, as his first priority is to clear his name through the
state
courts. Petitioner's Brief at 2.
22. See S. Rep. No. 109, 100th Cong., 1st Sess. 3 (1987).
23. As FFCL No. 20 states only the fact of the loss of
hospital
privileges, we do not need to amend it.
24. There is no evidence that there was any connection between
these
alleged acts and Petitioner's loss of hospital privileges.
25. If Petitioner regains his State license through reapplication,
he
may apply for, but is not guaranteed, reinstatement pursuant to
Subpart
F of Part 1001 of the 1992 Regulations. However, if his
revocation is
reversed or vacated, he would be reinstated retroactive to the
date of
the exclusion. 42 C.F.R. .