Narinder Saini, M.D., DAB No. 1371 (1992)

Department of Health and Human Services

DEPARTMENTAL APPEALS BOARD

Appellate Division

In the Case of:    
Narinder Saini, M.D.,     
Petitioner,
- v. - 
The Inspector General.

DATE: November 23, 1992
Docket No. C-425
Decision No. 1371

FINAL DECISION ON REVIEW OF ADMINISTRATIVE LAW JUDGE
  DECISION

Narinder Saini, M.D. (Petitioner) appealed a July 23, 1992 decision by
Administrative Law Judge (ALJ) Steven T. Kessel.  See Narinder Saini,
M.D., DAB CR217 (1992) (ALJ Decision).  The ALJ affirmed the Inspector
General's (I.G.'s) determination to exclude Petitioner under section
1128(b)(4) of the Social Security Act (Act).  The period of exclusion
was three years.

Based on the following analysis, we affirm the ALJ Decision.

Background

Petitioner was employed as a staff psychiatrist at Mendota Mental Health
Institute (Mendota) in Madison, Wisconsin from February 24 through
September 26, 1986.  From September 29, 1986 through August 1989,
Petitioner practiced psychiatry in various capacities in the State of
Iowa.  On January 29, 1990 he returned to Mendota as a forensic
psychiatrist, the position he currently holds.

On August 7, 1990, the Board of Medical Examiners of the State of Iowa
(Iowa Board) issued an order directing that Petitioner's license to
practice medicine and surgery in Iowa be suspended indefinitely for
reasons bearing on his professional competence or performance.  The
order was based on findings of fact and conclusions of law issued by a
panel, comprised of three members.of the Iowa Board and an
administrative law judge, which conducted an evidentiary hearing in
Petitioner's case.  Specifically, the Iowa Board found that --

 o  During his employment at the Mental Health Center of North
 Iowa, Petitioner had experienced a psychotic episode which
 affected his medical practice and compromised the care of his
 patients.

 o  Petitioner's practice of psychiatry had been harmful or
 detrimental to the public.

 o  Although Petitioner had received treatment for his mental
 condition, the possibility remained that Petitioner could
 experience another psychotic episode which would compromise the
 care of his patients.

 o  Based on his mental condition, Petitioner was unable to
 practice medicine with reasonable skill and safety.

On February 21, 1991, the State of Wisconsin Medical Examining Board
(Wisconsin Board) issued a decision and order regarding Petitioner's
license to practice medicine and surgery in Wisconsin.  Basing their
action, in part, on the decision and order by the Iowa Board, the
Wisconsin Board found that --

 o  Petitioner suffered from a bipolar mental disorder
 (manic-depressive illness).

 o  Petitioner's illness was reasonably related to his ability to
 practice medicine and surgery.

 o  Petitioner's illness could be reasonably accommodated by
 placing appropriate conditions on his license to practice
 medicine and surgery in Wisconsin.

As the result of the Wisconsin Board's decision, Petitioner could not
practice medicine or surgery as an unrestricted sole practitioner in
Wisconsin.  Petitioner was required to advise the Wisconsin Board prior
to commencing the practice of medicine or surgery in the State and to
identify an acceptable individual as his supervisor.  He had to remain
in treatment with his physician.  Finally, every 90 days, his physician
was required to report on Petitioner's treatment and progress to the
Wisconsin Board.  Petitioner's employment at Mendota satisfies these
conditions.  On March 6, 1992, the Wisconsin Board renewed its order,
leaving the restrictions on Petitioner's license in place.  See
Petitioner Exhibit (Ex.) 25.

On April 18, 1991, the I.G. notified Petitioner that he would be
excluded from participation in Medicare and State health care programs
(Medicaid) until he obtained a valid license to practice.medicine in
Iowa.  The I.G. based Petitioner's exclusion on the action of the Iowa
Board.  On July 8, 1991, the I.G. informed Petitioner that his exclusion
was being modified to a term of three years.  The I.G.'s decision to
modify the exclusion was based on the fact that Petitioner had obtained
a restricted license to practice medicine in Wisconsin.

The I.G.'s action constituted a "permissive exclusion" under section
1128(b) of the Act.  As it pertains to this case, that section provides
--

 The Secretary may exclude the following individuals and entities
 from participation in any program under title XVIII [Medicare]
 and may direct that the following individuals and entities be
 excluded from participation in any State health care program:

       *   *   *

 (4)  LICENSE REVOCATION OR SUSPENSION. -- Any individual or
 entity --

 (A)  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 Decision upholding Petitioner's exclusion was based on 49
findings of fact and conclusions of law (FFCLs).  Generally, the ALJ
found that Petitioner was not responsible for his medical problems, but
that those problems did render Petitioner less than fully trustworthy to
provide care.  While noting that Petitioner was not manifesting signs of
the bipolar disorder which affected him in 1989, the ALJ found
sufficient expert evidence in the record to conclude that Petitioner's
disorder may recur and affect his judgment in a way which could endanger
his patients.  The ALJ also found that Petitioner suffered diminished
mental functioning which affected his ability to engage in tasks
requiring flexibility of thinking.  Consequently, the ALJ determined
that Petitioner's impairments and need for close supervision evidenced a
lack of trustworthiness justifying his exclusion, and that the
three-year exclusion proposed by the I.G. was not extreme or excessive.
ALJ Decision at 20-21.

Petitioner had also argued that he was an individual with handicaps
under the Rehabilitation Act of 1973, as amended, 29 U.S.C. . 794(a),
and that the ALJ was required to modify the exclusion to accommodate his
handicap.  The ALJ found that he did not have the authority to modify an
exclusion to limit the scope.of services to which it would apply.
Additionally, the ALJ concluded that he lacked authority to modify an
exclusion on the basis of the Rehabilitation Act.  He noted that there
was nothing in the language or history of section 1128 of the Act even
to  suggest that Congress intended that exclusions could be modified to
accommodate handicapping conditions.  ALJ Decision at 21-22.

Issues on appeal

Generally, Petitioner took exception to the ALJ's conclusion that a
three-year exclusion was reasonable.  Petitioner also excepted to the
ALJ's failure to apply the Rehabilitation Act of 1973 as requested.

Analysis

The ALJ's principal FFCL, FFCL 49, provides --

49.  The Act's remedial purpose will be accomplished by excluding
Petitioner for three years.

ALJ Decision at 7.  Petitioner took exception to FFCL 49 as well as
several other FFCLs which support that ultimate determination.  Below,
we first consider Petitioner's exceptions to FFCLs 27, 31, 32 and 39,
which relate to the reasonableness of the length of the exclusion, given
Petitioner's medical condition.  We then address his exceptions to FFCLs
47 and 48, which involve the Rehabilitation Act of 1973.  We do not
specifically discuss FFCL 49 since we address and reject Petitioner's
exceptions to the underlying FFCLs.

I.  A three-year exclusion is reasonable.

The FFCLs in contention here provide --

27.  Petitioner's present cerebral impairments might affect his ability
to make complicated decisions concerning the management of patients in
the context of his present work as a psychiatrist.  *  *  *

31.  A significant minority of individuals who suffer from bipolar
affective disorders experience recurrences of symptoms, despite
treatment, which can be disabling for a period of time.

32.  There is no guarantee that Petitioner will not, at some future
date, experience a relapse of his bipolar affective disorder.

        *  *  *.39.  Petitioner is not trustworthy
        to provide care to patients outside of the
        setting of his current employment at
        Mendota Mental Health Institute or a
        setting with an equivalent level of
        supervision.

ALJ Decision at 5-6 (citations omitted).

Section 1128(b)(4) of the Act allows the Secretary to exclude a provider
from participation in Medicare and Medicaid where a state licensing body
has revoked or suspended the provider's license for reasons bearing on
the provider's professional competence or performance.  Petitioner did
not dispute that his license to practice medicine and surgery in Iowa
was suspended for reasons relating to his professional competence or
performance.  See ALJ Decision at 3 (FFCL 13) and 9.

In general, Petitioner maintained that a three-year exclusion was
unreasonable.  Petitioner indicated that he had experienced but a single
psychotic episode more than three years ago.  He argued that the
restrictions placed on his practice in Wisconsin provided the Department
of Health and Human Services with reasonable assurances that his prior
problems will not recur and that he posed no threat to his patients.
Petitioner noted that he was functioning normally within the restricted
setting provided for him at Mendota.  Further, he indicated that even if
he did suffer a relapse it would be detected quickly in his current work
environment.  Petitioner also argued that the ALJ had created an
impossible standard by requiring that, in order to avoid an exclusion,
Petitioner guarantee that he would not have a relapse.  Rather,
Petitioner contended the proper test should have been whether there were
reasonable assurances that his condition was responsive to medication,
such as lithium.  Petitioner asserted that the ALJ erred by relying on
neuropsychological tests as proof that Petitioner was incapable of
functioning as a psychiatrist.  Finally, Petitioner contended  that a
one-year exclusion, which would permit him to petition for reinstatement
as of May 18, 1992, would provide adequate protection to the Medicare
and Medicaid programs.  Petitioner Brief (Br.) at 9-13.

Petitioner's arguments do not persuade us that the ALJ Decision was
wrong.  There is no question that Petitioner suffers from a serious
mental illness.  The ALJ, after consideration of the evidence concerning
Petitioner's history and present condition, reasonably concluded that
Petitioner posed a risk to program recipients and beneficiaries as a
result of this illness.  The ALJ found (and Petitioner did not deny)
that, despite treatment, a significant minority (30%) of individuals
suffering from Petitioner's condition experience a recurrence of
symptoms which may disable them for a period of time.  See FFCL 31; see
also ALJ Decision at 20.  Additionally, the decision to exclude
Petitioner was based on the findings of the licensing authorities in
Iowa.and Wisconsin.  Those authorities concluded that, for reasons
related to his professional competence or performance, Petitioner was
not sufficiently trustworthy to be allowed to engage in an unrestricted
medical practice.  See FFCLs 11-13, 16.  As recently as March 1992,
following review of Petitioner's case, the Wisconsin Board renewed the
restrictions on his medical license.  Petitioner Ex. 25.  The findings
of these licensing authorities raise the presumption that Petitioner is
untrustworthy.  That presumption is the basis for his exclusion which is
designed to protect recipients and beneficiaries in the Medicare and
Medicaid programs.

Petitioner contended that he is currently functioning normally.  Thus,
he argued that the ALJ erred in upholding the exclusion based on the
fact that Petitioner's symptoms might recur.  Petitioner's argument
ignores the purpose of section 1128(b)(4) of the Act.  An individual or
entity losing a license for reasons bearing on professional competence
or performance is presumed to be untrustworthy and potentially harmful
to program beneficiaries and recipients.  Section 1128(b)(4)(A) does not
require a finding of actual harm to a patient or recipient as a
precondition to an exclusion.  Rather, the essential element is
revocation of a provider's license for reasons bearing on professional
competence or performance.  To read the Act as requiring a showing of
actual harm would preclude exclusion of providers who pose a threat to
beneficiaries or recipients.  Leonard R. Friedman, M.D., DAB 1281 at
9-10 (1991) (Forensic psychiatrist excluded based on finding of state
licensing authorities that he had engaged in sexual activity with a
patient during an office visit.  It was not necessary that an
identifiable patient have actually suffered harm as the result of the
offending conduct.  Sexual activity alone had sufficient bearing on
professional competence and performance to justify exclusion.); see also
Eric Kranz, M.D., DAB 1286 at 8-9 (1991) (Proof of actual harm is not
required.  Rather, the nature of the questioned conduct and the degree
of potential for harm are relevant considerations.).  Exclusions under
section 1128(b)(4) of the Act are remedial in nature and intended to
protect beneficiaries and recipients from incompetent, inadequate, and
inappropriate care.  The major concerns accompanying imposition of an
exclusion focus on the well-being of the programs, their recipients, and
beneficiaries, not the excluded party.  Behrooz Bassim, M.D., DAB 1333
at 9-10 (1992) (Physician's license revoked based on inappropriate and
improper physical and/or sexual contact with patients.).   Protection of
program beneficiaries and recipients is the primary motivating factor
underlying an exclusion.  As we discuss below, an exclusion is necessary
in this case to safeguard program beneficiaries and recipients.

Additionally, Petitioner misinterpreted FFCL 32.  There the ALJ stated
that there is no guarantee that Petitioner will not suffer a relapse of
his bipolar affective disorder.  The ALJ was not.requiring that
Petitioner guarantee that he would not experience a relapse in order to
avoid an exclusion.  Rather, by this statement the ALJ recognized that
there was a significant possibility of a relapse even among individuals
who, like Petitioner, were responding to lithium treatment for this
disorder.  Even if, as Petitioner asserted, there is but a slight risk
of recurrence of his psychotic episode, such a risk justifies an
exclusion.  This is especially true in light of the potential for harm
to those seeking psychiatric care, who may be particularly vulnerable
and unable to exercise the judgment necessary to protect themselves.
See Jerry D. Harrison, D.D.S., DAB 1365 (1992).  (Dentist admitted to
sexual misconduct with several boys and lost his license in Iowa.
Although Harrison ultimately received restricted licenses in two other
states, he posed a risk justifying exclusion due to the particular
vulnerability of his potential victims.)

Finally, contrary to Petitioner's arguments, we are not convinced that
the ALJ erred in relying on neuropsychological tests to support his
determination that Petitioner is incapable of functioning as a
psychiatrist.  See ALJ Decision at 5 (FFCL 27).  Petitioner underwent
neuropsychological testing at the Mayo Clinic in February 1990.
Petitioner was found to suffer from a "degree of neurocognitive
impairment . . . sufficiently great to impose very significant risks of
compromising competence in the practice of medicine and psychiatry.
Given these findings . . . [Petitioner] would qualify for total medical
disability."  I.G. Ex. 22 at 2.  A psychologist, who participated in
Petitioner's testing, indicated that at the minimum, Petitioner "would
require direct supervision of his psychiatric practice . . . ."  I.G.
Ex. 25 at 1.  Subsequently, a January 1992 examination of Petitioner at
the University of Wisconsin found that his "level of impairment . . . is
essentially the same (or in some instances worse) than that shown . . .
at the Mayo Clinic."  I.G. Ex. 31 at 3.  The ALJ concluded that these
tests established that Petitioner is suffering from diminished mental
functioning which affected his ability to engage in tasks requiring
flexibility of thinking.  See ALJ Decision at 5 (FFCLs 21-26).

Petitioner argued that the areas addressed by this testing are "not . .
. much taxed by a psychiatrist."  Petitioner Br. at 11.  Consequently,
they were not a true barometer of his ability to practice psychiatry
safely and competently.  Rather, he asserted that the strongest evidence
of his competency is the fact that he is currently practicing in a
satisfactory manner. 1/  Id. at 12..The evidence does not support a
finding that Petitioner is capable of performing his duties without
restriction.  Rather, the only situation in which he can be considered
trustworthy is if he continues to practice in the controlled setting
offered by his current employment at Mendota or a similar setting.  As
the ALJ indicated, the fact that Petitioner requires close supervision
to successfully practice medicine augments, rather than diminishes, the
argument that Petitioner should be excluded.  A three-year exclusion is
necessary here to preclude the possibility, however slight, that
Petitioner might attempt to seek Medicare or Medicaid reimbursement
outside his current work environment in spite of the restrictions placed
on his license in Wisconsin.  ALJ Decision at 20-21.

There was substantial evidence to support the ALJ's findings on the risk
Petitioner poses to recipients and beneficiaries of the Medicare and
Medicaid programs.  Accordingly, we affirm FFCLs 27, 31, 32, 39 and 49.

II.  The ALJ correctly found that the Rehabilitation Act of 1973
does not apply.

In the FFCLs to which Petitioner excepted here, the ALJ concluded --

47.  I do not have authority to decide whether any exclusion imposed and
directed by the I.G. must reasonably accommodate an excluded party's
medical impairments.

48.  I do not have authority to impose an exclusion which applies to
some, but not to all, services for which Petitioner potentially could
file Medicare or Medicaid reimbursement claims.

ALJ Decision at 7 (citations omitted).

Petitioner asserted that he was a handicapped individual within the
meaning of the Rehabilitation Act of 1973.  Thus, he reasoned, the
Rehabilitation Act should be applied to modify his exclusion..Although
Petitioner took exception to both FFCLs, he did not challenge the ALJ's
legal conclusion that he lacks  authority to modify an exclusion in the
manner requested.  The plain language of the Medicare and Medicaid
Patient and Program Protection Act of 1987, Public Law No. 100-93,
section 2 (MMPPA), which added the permissive exclusion authority
contained in section 1128(b)(4) to the Act, provides that payment must
be denied for "any" item or service and consistently uses the singular
to describe the exclusion and the period of exclusion.  This indicates
that Congress intended that any exclusion imposed by the Secretary would
apply to all items or services for which an excluded party potentially
could file Medicare or Medicaid reimbursement claims.  Thus, the
Secretary (and his delegatees, the ALJ and this Board) do not have
authority to tailor an exclusion to permit an excluded party to claim
reimbursement for particularized items or services.  Walter J.
Mikolinski, Jr., DAB 1156 (1990).  Petitioner's contention that public
policy embodied in the Rehabilitation Act somehow required the
Department of Health and Human Services to accede to his request simply
does not overcome this statutory mandate.

Moreover, Petitioner did not identify anything in the MMPPA, its
legislative history, or any case law that contradicts the ALJ's
determination that "[t]here is nothing in . . . section 1128 which
states or suggests that Congress intended that exclusions be modified to
accommodate handicapping conditions."  ALJ Decision at 22.  Instead,
Petitioner asserted that reasonable accommodation in this case does not
require a partial exclusion because of the legal restrictions already
imposed on his medical license.

This contention does not provide the missing legal authority to override
the plain language of the MMPPA, but simply assumes that the ALJ must
conclude that Wisconsin's license restrictions provide adequate
protection to program beneficiaries.  We have already determined above,
however, that the ALJ properly concluded, based on the evidence before
him (including the license restrictions), that the I.G.'s proposed
exclusion was reasonable because Petitioner would not be trustworthy to
provide Medicare and Medicaid services for at least three years.
Petitioner here has not seriously challenged the ALJ's interpretations
of his legal authority, much less shown that they are wrong.
Consequently, we affirm FFCLs 47 and 48..Conclusion

Based on the analysis above, we affirm and adopt FFCLs 27, 31, 32, 39
and 47-49 to which Petitioner excepted.  Additionally, we affirm those
FFCLs to which Petitioner did not take exception.

      _________________________
      Donald F. Garrett

      _________________________
      Cecilia Sparks Ford

      _________________________
      M. Terry Johnson
      Presiding Board Member

1.  Among the evidence cited by Petitioner in support of his position
was a document identified as his "Exhibit 23." Petitioner Br. at 12.
This document was Petitioner's 12-month performance evaluation at
Mendota for the period ending February 27, 1992.  See Petitioner's
Amended List of Proposed Exhibits (March 5, 1992).  Although referred to
in the testimony of at least two witnesses, this document was ultimately
excluded from evidence because it was not timely submitted to the ALJ.
Hearing Transcript (Tr.) at 49, 92, 130-131.  Consequently, while the
substance of the document was entered in the record through testimony
(See Tr. at 130-131), we cannot properly consider the document itself as
support for Petitioner's position.  However, as we have noted,
Petitioner's ability to function satisfactorily in a controlled
environment, such as Mendota, does not prove that he is trustworthy as a
provider of services under Medicare or