Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Appellate Division
In the Case of:
Hassan M. Ibrahim, M.D.,
Petitioner,
- v. -
The Inspector General.
DATE: March 6, 1997
Civil Remedies CR445
App. Div. Docket No.
A-97-48
Decision No. 1613
FINAL DECISION ON REVIEW OF
ADMINISTRATIVE LAW JUDGE DECISION
Hassan M. Ibrahim, M.D. (Petitioner) appealed a November
20, 1996 decision of Administrative Law Judge (ALJ)
Steven T. Kessel. See Hassan M. Ibrahim, M.D., DAB CR445
(1996) (ALJ Decision). The ALJ concluded that the
Inspector General (I.G.) had authority to exclude
Petitioner from participating in Medicare and State
health care programs, including Medicaid, pursuant to
section 1128(b)(5) of the Social Security Act (Act). The
ALJ modified the length of the exclusion from the five
years proposed by the I.G. to three years or the date on
which Petitioner is reinstated by the New York State
Medicaid program, whichever comes first. ALJ Decision
at 11-13. The I.G. did not appeal the modification of
the length of Petitioner's exclusion. The facts are set
forth in the ALJ Decision and are not disputed before us.
The ALJ made 11 numbered findings of fact and conclusions
of law (FFCLs). Petitioner excepted to FFCLs 2, 6,
and 7, set out below.
2. An individual who withdraws voluntarily from
participating in a federal or State health care
program in order to avoid the imposition of a formal
sanction against that individual, is "otherwise
sanctioned" within the meaning of section 1128(b)(5)
of the Act.
6. The determination to exclude Petitioner from the
New York Medicaid program made by the Department of
Social Services was for reasons bearing on
Petitioner's professional competence, professional
performance, or financial integrity.
7. Petitioner was "otherwise sanctioned" by the
Department of Social Services, and the I.G. had
authority to exclude Petitioner from participating
in Medicare and Medicaid.
We affirm the remaining FFCLs without discussion, since
neither party excepted to them. The statute authorizes
exclusion of any individual suspended or excluded or
"otherwise sanctioned" by a state health care program for
reasons bearing on his "professional competence,
professional performance, or financial integrity."
Section 1128(b)(5) of the Act. Regulations define
"otherwise sanctioned" to include "all actions that limit
the ability of a person to participate . . . regardless
of what such an action is called, and includes situations
where an individual . . . voluntarily withdraws from a
program to avoid a formal sanction." 42 C.F.R.
§ 1001.601(a)(2).
Petitioner argued that the ALJ Decision was wrong because
he was not "otherwise sanctioned" within the meaning of
section 1128(b)(5) of the Act. Petitioner Appeal at 2.
He contended that the I.G. relied only on a settlement
agreement which Petitioner reached with New York State,
that Petitioner had no hearing on the merits on the
validity of the exclusion in New York which was resolved
by the agreement, that he is not under exclusion by New
York because he can practice at any time in certain
facilities there by the terms of the settlement
agreement, that he did not admit unacceptable practices
in entering into the agreement, and that the I.G. was
"intentionally and unduly dilatory" in processing his
case. Id. at 2-3. Petitioner contended that the ALJ was
wrong to find that the I.G. had authority to exclude him.
Petitioner's arguments are without merit. The settlement
agreement clearly limited Petitioner's ability to
participate since it restricted him to practicing only as
an employee and only in certain facilities. Petitioner
expressly waived any right to a hearing on the State
exclusion in the agreement. Petitioner was not entitled
to collaterally attack the State proceedings before the
ALJ. See George Iturralde, M.D., DAB No. 1374 (1992);
Olufemi Okunoren, M.D., DAB No. 1319 (1992). The I.G.
could reasonably rely on the State action in imposing a
derivative federal exclusion. Petitioner executed the
agreement to remove a State exclusion resulting from an
audit of his practice which found Petitioner's
professional care to be below standard in numerous
respects, as well as finding that Petitioner submitted a
false Medicaid claim. Even though Petitioner did not
admit any unacceptable practice in the agreement, the
State action which the agreement resolved was clearly
taken for reasons bearing on Petitioner's professional
competence and performance, as well as financial
integrity. Petitioner's voluntary withdrawal from full
participation in the Medicaid program, even while
retaining by agreement some limited ability to
participate, in order to avoid a formal exclusion, meets
the definition of "otherwise sanctioned." Petitioner
also pointed to no authority which would justify
reversing his exclusion because of the time required by
the I.G. to process his case.
The Petitioner has shown no error of law in the ALJ
Decision, and the material facts are not disputed.
Therefore, we affirm the ALJ Decision and affirm and
adopt the FFCLs therein.
_______________________________
Cecilia Sparks Ford
_______________________________
M. Terry Johnson
_______________________________
Donald F. Garrett
Presiding Board Member