SUBJECT:

Armando G. Sanchez, M.D.,

Petitioner,

The Inspector General.

DECISION

I sustain the Inspector General's (I.G.) determination, made pursuant to section 1128(b)(4) of the Social Security Act (Act), to exclude Armando G. Sanchez, Petitioner, from participation in Medicare, Medicaid, and other federally funded health care programs until such time as Petitioner regains his medical license to provide health care as a physician in the State of Texas. ⁽¹⁾

I. Background

The critical facts of this case are not in dispute. By letter dated August 31, 2004, the I.G. notified Petitioner that pursuant to section 1128(b)(4), he was being excluded from participation in Medicare, Medicaid, and all other federally funded health care programs because his license to practice medicine or provide health care as a medical doctor in the State of Texas had been "revoked or suspended by any State licensing authority, or otherwise lost . . . for reasons bearing on [his] professional competence, professional performance, or financial integrity." The letter advised that the program exclusion remains in effect as long as Petitioner's Texas license as a medical doctor is revoked, suspended, or otherwise lost.

Petitioner timely requested a hearing and the case was assigned to me. I convened a telephone prehearing conference with the parties on January 19, 2005. I fully explained the process. I first confirmed with the parties that the basis for the exclusion was that Petitioner's license as a medical doctor in Texas was revoked, suspended, or otherwise lost for reasons bearing on his professional competence, professional performance, or financial integrity.

I explained that I cannot look behind the proceedings and decision of the State of Texas licensing authority; I can only determine if a basis for the imposition of the exclusion exists - namely, did Dr. Sanchez have his license to practice medicine or provide health care as a medical doctor in the State of Texas revoked or did he otherwise lose his license or his right to renew that license for reasons bearing on his professional competence, professional performance or financial integrity. Section 1128(b)(4)(A) of the Act; 42 C.F.R. � 1001.501(a). I further explained that, if such a basis exists, I have no choice but to affirm the exclusion for the length of time the individual's license is surrendered.

I discussed with the parties whether an in-person hearing was necessary. After discussion, the parties agreed there appear to be no material facts in dispute and that this matter involves a legal issue which can be resolved on the basis of the parties' written submissions (briefs) and accompanying documentary exhibits. I, therefore, established a schedule for the parties' submissions in writing. I explained that, because the I.G. has the burden of proof in these cases, the I.G. would submit its brief and exhibits first. Petitioner would then have the opportunity to submit his written response and arguments together with his exhibits. The I.G. would then have an opportunity to reply. I further explained that this was the parties' opportunity to submit all relevant arguments and exhibits. I reviewed with the parties what documents I currently had in my record and informed the parties that they should submit as exhibits any documents other than these that they believe I should consider in making my decision.

On February 18, 2005, I received the I.G.'s motion for summary affirmance, together with his brief in support of the motion and four exhibits, I.G. Exs. 1-4. Petitioner submitted his motion against the I.G.'s motion for summary affirmance, together with his brief in support of his motion and seven documentary exhibits which were not marked, but which I have marked as P. Exs. 1-7. ⁽²⁾ The I.G. submitted his reply on April 1, 2005.

II. Issue

The sole issue before me is whether, based on the loss of Petitioner's Texas license to provide health care as a physician, the I.G. appropriately excluded him from participation in Medicare, Medicaid, and other federally funded health care programs.

III. Findings of Fact and Conclusions of Law

I make findings of fact and conclusions of law (Findings) to support my decision in this case. I set forth each Finding below, in italics, as a separately lettered heading.

A. Because Petitioner lost his license to practice medicine in Texas for reasons bearing on his professional competence or professional performance, the I.G. may appropriately exclude him from participation in Medicare, Medicaid, and other federally funded health care programs.

Section 1128(b)(4)(A) of the Act authorizes the I.G. to exclude an individual that has -

(1) Had a license to provide health care revoked or suspended by any State licensing authority, or has otherwise lost such a license . . . for reasons bearing on the individual's or entity's professional competence, professional performance or financial integrity.

See also 42 C.F.R. � 1001.501(a)(1).

While Petitioner agrees that his license to practice medicine was revoked by the Texas State Board of Medical Examiners (Texas Board), the State licensing authority, Petitioner argues that it was revoked for reasons that did not bear on his professional competence or professional performance. P. Brief at 2-6, 15.

I disagree. I find that Petitioner's license was revoked for reasons bearing on his professional competence or professional performance. It is not necessary that a state licensing authority use the words "professional competence, professional performance or financial integrity" in revoking a license in order for the I.G. to exclude an individual under section 1128(b)(4) of the Act. Brian Bacardi, D.P.M., DAB No. 1724 (2000). The Board has held that to find otherwise "would subject federal programs to risks simply because of the state licensing authority's choice of words." Roy Cosby Stark, DAB No. 1746 (2000), at 7.

Moreover, the legislative history of section 1128(b)(4) does not require only that inadequate care was rendered. Instead, the legislative history indicates that professional competence and professional performance are not necessarily the same, stating elsewhere that the purpose of the statute was "to protect the beneficiaries . . . from incompetent practitioners and from inappropriate or inadequate care." Leonard Friedman, M.D., DAB No. 1281 (1991), at 10-11 (citing 1987 U.S.C.C.A.N. at 682). Also, section 1128(b)(4)(A) does not require a finding of actual harm to a patient or recipient as a precondition to an exclusion. In Narinder Saini, M.D., DAB No. 1371 (1992), the Appellate Panel of the Departmental Appeals Board explained that "[t]o read the Act as requiring a showing of actual harm would preclude exclusion of providers who pose a threat to beneficiaries or recipients." Saini, DAB No. 1371, at 6.

The Texas Board's Final Order, in part, found that-

�Petitioner treated Patient MG for a period of years and Patient MG last visited Petitioner's office as a patient on August 24, 2000.

�In late August or early September 2000, Patient MG went to Petitioner's office upset about his workers' compensation claim and allegedly made threats against Petitioner and his family.

�Petitioner's friend set up a meeting for Petitioner with Officer Hill of the Houston Police Department to help Petitioner deal with Patient MG. During this meeting, Petitioner solicited the Officer to murder Patient MG.

�Petitioner agreed to pay the Officer $20,000 to kill Patient MG and he paid $8,000 in cash as partial payment.

�Based on recorded conversations between Petitioner and the Officer, Petitioner was arrested.

�Petitioner was indicted for solicitation of the capital murder of Patient MG.

�Petitioner's solicitation of the murder of Patient MG was intentional, premeditated conduct and Petitioner attempted to conceal his misconduct.

�Petitioner's conduct was likely to result in the death of Patient MG and was likely to injure the public.

I.G. Ex. 1, at 1-3. The Texas Board then specifically concluded, among other things, that Petitioner committed unprofessional and dishonorable conduct that was likely to injure the public and revoked Petitioner's license to practice medicine in Texas. Id. at 3.

Petitioner contends his license was not revoked for reasons bearing on his professional competence or professional performance and supports this argument by relying on a proposed conclusion of law reached by the Administrative Law Judge (ALJ) of the Texas State Office of Administrative Hearings.

I find Petitioner's argument unpersuasive and a collateral challenge to the Texas Board's final determination as to the revocation of Petitioner's license. The Texas Board, in fact, deleted the proposed conclusion of the State ALJ (that the solicitation of murder did not occur while Petitioner was engaged in the practice of medicine as defined in the State occupational code) for the reasons that this was never an issue in the matter before the Texas Board; the conclusion was not necessary to support the conclusion that Petitioner committed unprofessional and dishonorable conduct likely to injure the public; and because the Board specifically declined to adopt the State ALJ's reasoning (that the act must occur in the practice of medicine) as the policy of the Texas Board. I.G. Ex. 1, at 4. Thus, Petitioner's argument is based upon a proposed conclusion of law that was clearly rejected by the Board. "It is well settled that a provider's arguments concerning the correctness or fairness of a State licensing board's revocation proceeding are irrelevant to the issue of whether the I.G. has authority to impose and direct an exclusion" pursuant to section 1128(b)(4)(A). Michael D. Tempel, DAB CR266 (1993).

Even if Petitioner's arguments were considered proper, there is no question that Petitioner's conduct, namely the solicitation of murder, arose out of his professional relationship with Patient MG. Petitioner, as a physician, treated Patient MG for a period of years. The dispute between Petitioner and Patient MG was over Patient MG's worker's compensation claim which is directly related to the medical problems for which Petitioner was treating Patient MG. The competent and professional performance of medicine can reasonably be interpreted as to prohibit the solicitation of murder by a physician of his patient because of a dispute arising from issues in a worker's compensation claim. Furthermore, a common sense connection exists between Petitioner's solicitation of the murder of one of his patients and Petitioner's professional competence and performance. Clearly, there is no question that Petitioner's intentional acts and conduct put his patient at risk of harm as the Texas Board so found. Cf. Jerold Morgan, D.O., DAB CR768 (2001), at 5 (ALJ did not find that revocation of a medical license following conviction for attempted assault of the Petitioner's wife was related to his professional competence and performance because his conduct did not put any patient at risk and the circumstances surrounding his conviction were peculiar to his domestic situation and had no bearing on his professional life). Thus, I conclude that the Texas Board revoked Petitioner's license for reasons bearing on his professional competence or professional performance.

Once I have made this determination, my inquiry need go no further. Where, as here, an exclusion is based on the existence of a determination made by another governmental agency, the basis for the underlying determination is not reviewable. 42 C.F.R.� 1001.2007(d); Roy Cosby Stark, DAB No. 1746 (2000). Thus, given the undisputed facts and under the provisions of the Act, the I.G. was authorized to exclude Petitioner.

B. The exclusion period may not be less than the period during which Petitioner's license is surrendered.

Petitioner argues that the length of the exclusion is unreasonable as a matter of law. However, as the I.G. points out, Petitioner relies on a specific section of the regulations (42 C.F.R. � 1001.501(c)) which was removed in 1998 when the regulation was amended.

Neither I nor the I.G. has any discretion in determining the duration of an exclusion under section 1128(b)(4) of the Act, since that duration is set by statute. Section 1128(c)(3)(E) of the Act provides that an exclusion imposed pursuant to section 1128(b)(4) shall be for a term that is not less than the period when an individual's license to provide health care is revoked, suspended, or surrendered. ⁽³⁾ The Act thus mandates that the minimum exclusion period that the I.G. may impose in the case of a license revocation, suspension, or surrender is conterminous with the revocation, suspension, or surrender period.

The statute applies to any practitioner who loses a medical license for reasons relating to professional competence or performance without regard to whether he remains licensed in another jurisdiction. Indeed, at one time, the statute allowed, and the regulations carved out, an exception for those in Petitioner's position. The 1992 revisions to 42 C.F.R. � 1001.501 specifically allowed for reinstatement in cases where another state, fully apprised of the circumstances surrounding the license loss, nevertheless grants the practitioner a new license or takes no significant adverse action as to a current license. 57 Fed. Reg. 3298, 3304-3305. Section 1001.501(c) of 42 C.F.R. authorized the I.G. to consider a request for early reinstatement if the individual "fully and accurately discloses the circumstances" of his license suspension/revocation to the licensing authority of a different state, and that state grants a new license or "takes no significant adverse action as to a currently held license . . . ."

However, the Health Insurance Portability and Accountability Act of 1996 (HIPAA) (Public Law 104-191) mandated changes. Under its provisions, effective January 1, 1997, the length of an exclusion under � 1128(b)(4) was to be coterminous with the revocation. Act, section 1128(c)(3)(E); HIPAA, section 212. The regulations were amended to conform to the statutory changes. Subpart (c) to 42 C.F.R. � 1001.501 was eliminated, so, without exception, the exclusion must be imposed for a period "not less than the period during which the individual's . . . license was revoked or suspended." 63 Fed. Reg. 46,676, 46,688.

In this case, the I.G. imposed that minimum period against Petitioner and, therefore, the exclusion, as a matter of law, is consistent with statutory requirements.

IV. Conclusion

For the reasons stated above, I conclude that the I.G. was authorized to exclude Petitioner from participation in Medicare and other federally funded programs because his license as a physician in the State of Texas was revoked for reasons related to his professional competence or professional performance. I also conclude that the I.G. is authorized to exclude Petitioner for a period coterminous with the time his license is surrendered.

Alfonso J. Montano

Administrative Law Judge

1. "Federal health care program" is defined in section 1128B(f) of the Act as any plan or program that provides health benefits, whether directly, through insurance, or otherwise, which is funded directly, in whole or in part, by the United States Government, or any State health care program. "State health care program"+ is defined in section 1128(h) of the Act and includes the Medicaid program (Title XIX).

2. P. Ex. 1 is a copy of I.G. Ex. 1; P. Ex. 2 is a Citation Order; P. Ex. 3 is a November 18, 2004 letter to Petitioner from the Medical Board of California; P. Ex. 4 is a copy of the transcript of proceedings on June 10, 2003,before the Texas State Office of Administrative Hearings in the complaint against Petitioner (Petitioner did not submit all pages of the transcript); P. Ex. 5 is Petitioner's Appeal Brief for the State of Texas Court of Appeals for the 3 ^rd Supreme Judicial District with pages 98-101 of the June 10, 2003 transcript attached; and P. Ex. 6 is another copy of I.G. Ex. 1, which is the Final Order of the Texas State Board of Medical Examiners.

3. The ALJ in Michael D. Cerny, D.O., DAB CR1070 (2003) explained why this period of exclusion is reasonable and proper, as follows:

Congress has concluded that the loss or surrender of a license to practice a health care profession under circumstances described in section 1128(b)(4) is evidence of untrustworthiness and, thus, grounds for exclusion to protect federal health care programs and their beneficiaries and recipients. Congress has determined that the licensing authority is in the best position to determine whether or not the reasons for the disciplinary action have been remediated.

Id. at 9.