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Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Appellate Division
IN THE CASE OF  

SUBJECT: Andy E. Bailey, C.T.,

Petitioner,

DATE: February 2, 1990

             - v -

 

The Inspector General

 

Docket No.C-110
Decision No. DAB No. 1131
DECISION
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FINAL DECISION ON REVIEW OF

ADMINISTRATIVE LAW JUDGE DECISION

Andy E. Bailey (Petitioner) filed a request for review by the Appellate Panel of an October 6, 1989 decision rendered by Administrative Law Judge Steven Kessel (ALJ decision) which upheld the Inspector General's (I.G.'s) exclusion of Petitioner from participation in Medicare and Medicaid programs until such time as his license as a cardiac technician is restored (and other conditions are satisfied). Petitioner's exclusion was based on section 1128(b)(4)(A) of the Social Security 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whose license to provide health care has been revoked or suspended by any State licensing authority, or who otherwise lost such a license, for reasons bearing on the individual's or entity's professional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's findings of fact and conclusions of law numbered 1 through 15, ALJ decision at 3-4, were not challenged by Petitioner and we adopt them as our own. In summary, the ALJ found that Petitioner's license to practice as a cardiac technician was revoked by Georgia's Composite State Board of Medical Examiners on July 11, 1988. That Board adopted its Hearing Officer's recommended decision that Petitioner's conviction of a felony and his failure to comply with recertification requirements for licensing as required by State regulations constituted a factual and legal basis to revoke his license. The I.G. excluded Petitioner based on his license revocation and his conviction for felony murder. In his decision, the ALJ upheld Petitioner's exclusion as within the I.G.'s discretion insofar as it was based on the license revocation, which was at least in part for reasons pertaining to Petitioner's professional competence or performance.

As noted above, Petitioner did not contest the ALJ decision's findings of fact or conclusions of law. All of Petitioner's contentions before us were directed solely by a mistaken belief that "his exclusion was a result of his criminal conviction . . . ." Brief of the Petitioner, p. 1. In connection with this theory of the case, the Petitioner filed several motions(1) and urged the Appellate Panel to convene an evidentiary hearing to hear evidence concerning Petitioner's allegations that this conviction was the result of a criminal conspiracy against him by officials of the State.(2) For example, in his initial brief Petitioner focused on allegations that the death of his wife (for whose murder he was convicted) was caused by the premature cessation of lifesaving procedures ordered by the police at the scene, that attorneys assigned to him by the court did not properly represent him, that

the case was further misrepresented by outside interference on the case by a social-elite power of the community, who was working behind the scenes to silent [sic] his wife's affair in the community . . . the Petitioner submits the above stated reasons resulted in fabricated evidence, tainted evidence, untrue hearsay, tampering with evidence, witholding [sic] evidence, misrepresenting the facts of the case, failure to call witnesses, and using the press to prejudice the trial which resulted in the Petitioner being falsily [sic] accused for a crime.

Brief of the Petitioner, p. 3. All of these allegations related to Petitioner's criminal conviction, not to the Board of Medical Examiners' proceeding that led to the loss of his license.

The ALJ specifically rejected the I.G.'s contention that a conviction for felony murder automatically related to an individual's professional competence or performance; thus he rejected that rationale for Petitioner's exclusion. Instead, the ALJ relied on the license revocation, which, both below and here, the Petitioner never disputed was for reasons bearing on professional competence or performance (they included failure to fulfill continuing practice and education requirements). Consequently, all of Petitioner's arguments before this Panel about the process leading to his criminal conviction are completely irrelevant to this exclusion proceeding. We therefore summarily reject them without further discussion.(3)We also deny Petitioner's request for an evidentiary hearing for the same reason.

Accordingly, we uphold the ALJ decision.


 

 
JUDGE
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Alexander G. Teitz

Theodore J. Roumel
Public Health Service

Cecilia Sparks Ford
Presiding Panel Member

FOOTNOTES
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1. Petitioner's Motion for Appointment of Special Investigation Committee or Special Investigator, in which he sought assistance in uncovering alleged tampering with evidence by state officials involved in the criminal case, was denied on December 20, 1989. His Motion to Appoint Counsel was denied on December 27, 1989, because the Board lacks authority to appoint counsel.

2. Petitioner's Motion to Produce Documents (directed towards the medical center where the murder victim was treated and died) is denied because it concerns this irrelevant issue. Petitioner's "Motion for the Panel Review Board to Conduct an In-Camera Inspection of the Inspector General's Documents and All Other Evidence Filed Before the Honorable Judge Kessel," which is based on Petitioner's belief that "the State has failed and refused to disclose evidence that was presented to Judge Kessel," motion at 1, is denied because there is no such evidence. The record contains a list (provided to Petitioner on October 26, 1989) of all of the evidence considered by the ALJ; Petitioner did not indicate any item on that list to which he did not have access.

3. Petitioner stated that he intends to pursue a federal action against State officials under 42 U.S.C. 1983. As stated in the Presiding Panel Member's ruling on Petitioner's motion for appointment of special investigator, the federal district court is a more suitable forum to serve the Petitioner's goal of establishing that his constitutional rights were violated, since this Board is without power to vindicate thos rights.

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