Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
In the Case of:
Eric Kranz, M.D.,
Petitioner,
- v. -
The Inspector General.
DATE: August 1, 1991
Docket No. C-325
DECISION
On September 24, 1990 the Inspector General (I.G.)
notified Petitioner that he was being excluded from
participation in the Medicare and State health care
programs. 1/ The I.G. told Petitioner that he was being
excluded because his license to practice medicine in West
Virginia had been revoked by that state's licensing
authority. The I.G. cited section 1128(b)(4) of the
Social Security Act (Act) as authority for his decision
to exclude Petitioner. He advised Petitioner that the
exclusion would remain in effect until Petitioner
obtained a valid license to practice medicine in West
Virginia.
Petitioner timely requested a hearing. The case was
originally assigned to another administrative law judge
for a hearing and a decision. It was reassigned to me on
April 9, 1991. I held a hearing in Harrisburg,
Pennsylvania, on April 18, 1991.
I have considered the evidence, the parties' arguments,
and the applicable laws and regulations. I conclude that
the I.G. was authorized to impose and direct an exclusion
against Petitioner by section 1128(b)(4)(A) of the Act.
However, I find that the indefinite exclusion imposed and
directed by the I.G. is unreasonable. I modify the
exclusion to a one-year exclusion.
ISSUES
The issues in this case are whether:
1. the I.G. had authority to exclude Petitioner
pursuant to section 1128(b)(4)(A) of the Act; and
2. the exclusion imposed and directed against
Petitioner by the I.G. is reasonable.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. Petitioner is a physician. Tr. at 52-54. 2/
2. Petitioner is licensed to practice medicine in the
District of Columbia and in Pennsylvania. P. Ex. 7/1,
9/1.
3. Petitioner presently practices medicine in
Pennsylvania. Tr. at 52-53.
4. Petitioner was licensed to practice medicine in West
Virginia. See I.G. Ex. 11.
5. On March 18, 1988, the West Virginia Board of
Medicine revoked Petitioner's license to practice
medicine in West Virginia. I.G. Ex. 11/8.
6. In revoking Petitioner's license to practice medicine
in West Virginia, the West Virginia Board of Medicine
found that Petitioner had engaged in unprofessional
conduct. I.G. Ex. 11/7.
7. The West Virginia Board of Medicine found that
Petitioner's unprofessional conduct included falsely
representing in a June 29, 1987, West Virginia
physician's license renewal application that he had not
been denied a license to practice medicine during the
previous two years, when in fact Petitioner should have
known as of June 23, 1987, that the State of Ohio had
denied his application for a license to practice
medicine. I.G. Ex. 11/5-7.
8. The West Virginia Board of Medicine additionally
found that Petitioner's unprofessional conduct included
committing an unsavory and insulting repugnant criminal
act in a hospital setting upon a hospital employee. I.G.
Ex. 11/6.
9. On June 19, 1987, the State Medical Board of Ohio
(Ohio Medical Board) denied Petitioner's application for
a license to practice medicine in Ohio. I.G. Ex. 12.
10. The West Virginia Board of Medicine also found that
Petitioner's unprofessional conduct included the reasons
enumerated in the Order of the Ohio Medical Board denying
his license. I.G. Ex. 11/6.
11. The Ohio Medical Board's reasons for denying
Petitioner's license application included findings that
Petitioner: (1) offered to sell compilations of questions
and answers from the 1978 FLEX and Medical Council of
Canada examinations to persons planning to take these
examinations in 1979; and (2) falsely stated in his
license application that he was a licentiate of the
Medical Council of Canada. I.G. Ex. 12/4-5.
12. The Ohio Medical Board also found that Petitioner had
intentionally failed to disclose in his application for
an Ohio license to practice medicine that previously he
had been denied licenses to practice medicine in Oklahoma
and Pennsylvania. I.G. Ex. 12/9.
13. The West Virginia Board of Medicine revoked
Petitioner's license to practice medicine in West
Virginia for reasons related to Petitioner's professional
performance. Findings 6, 7, 10-12; Social Security Act,
section 1128(b)(4)(A).
14. The Secretary of the Department of Health and Human
Services (Secretary) delegated to the I.G. the authority
to determine, impose, and direct exclusions pursuant to
section 1128 of the Act. 48 Fed. Reg. 21662, May 13,
1983.
15. On September 24, 1990 the I.G. excluded Petitioner
from participating in the Medicare program and directed
that he be excluded from participating in Medicaid.
16. The I.G. had authority to exclude Petitioner pursuant
to section 1128(b)(4)(A) of the Act. Findings 13-14.
17. The remedial purpose of section 1128 of the Act is to
assure that federally-funded health care programs and
their beneficiaries and recipients are protected from
individuals and entities who have demonstrated by their
conduct that they are untrustworthy.
18. The I.G. excluded Petitioner from participating in
Medicare and directed that he be excluded from
participating in Medicaid until he obtains a license to
practice medicine in West Virginia.
19. In revoking Petitioner's license to practice medicine
in West Virginia, the West Virginia Board of Medicine did
not state a date when Petitioner would be entitled to
have his license restored. See I.G. Ex. 11.
20. Although Petitioner's explanation for his false
answer on his application for renewal of his West
Virginia license to practice medicine regarding the
denial of his license in Ohio is not controverted by the
record, he failed to recognize that he had a duty in good
faith to promptly inform West Virginia licensing
authorities that the Ohio Medical Board had denied his
license application when he became aware of this action.
See Tr. at 72-74.
21. Petitioner's failure to inform the West Virginia
licensing authorities that the Ohio Medical Board had
denied his license when he first became aware of this
action is evidence of a lack of trustworthiness.
Findings 7, 20.
22. Petitioner's explanation that he was not aware that
his license application in Ohio had been denied at the
time that he applied for renewal of his West Virginia
license is self-serving. Findings 7, 20, 21.
23. Although Petitioner's explanation for his false
representation that he was a licentiate in Canada on his
Ohio license application is not controverted by the
record, he failed to recognize that he had a duty in good
faith to ascertain the meaning of the word "licentiate"
before answering the question on the application. See
Tr. at 57-59.
24. Petitioner's answer to a question on his Ohio license
application in a light most favorable to him without
first confirming the meaning of the question is evidence
of a lack of trustworthiness. Findings 11, 23.
25. Petitioner's explanation that he did not understand
the questions on the Ohio license application and
mistakenly stated that he was a licentiate in Canada as a
consequence of his misunderstanding is self-serving.
Findings 11, 23, 24.
26. Petitioner's testimony that his sale of FLEX
questions to 1979 candidates for that examination was
solely motivated by a desire to help fellow medical
residents to prepare for the examination is self-serving
and strains credulity. See Tr. at 68-70.
27. Given that twelve years has elapsed since Petitioner
sold compilations of questions from FLEX and the Medical
Council of Canada examinations, the I.G. has failed to
prove that Petitioner is presently untrustworthy based on
this incident. See Finding 11; See P. Ex. 3.
28. The criminal act identified by the West Virginia
Board of Medicine in its decision to revoke Petitioner's
license to practice medicine in West Virginia consisted
of Petitioner's 1986 nolo contendere plea to a
misdemeanor charge of battery. I.G. Ex. 11/3.
29. Petitioner's plea was the consequence of a criminal
complaint filed against him by a coworker at a West
Virginia hospital. See I.G. Ex. 15.
30. Petitioner was initially charged with sexual abuse in
the first degree, a felony under West Virginia law. I.G.
Ex. 15/3.
31. Petitioner and the coworker who filed the criminal
complaint against him were personal acquaintances who had
maintained a social relationship. I.G. Ex. 15/37.
32. Petitioner's nolo contendere plea did not amount to
an admission of unlawful sexual contact with a coworker.
33. The I.G. did not prove from Petitioner's admitted
battery against a coworker that Petitioner posed a threat
to the welfare or safety of beneficiaries or recipients
of federally-funded health care programs. See Findings
28-32.
34. There is no evidence that Petitioner has engaged in
fraudulent conduct against a health insurer or a
federally-funded health care program. See Tr. at 86-87,
124.
35. There is no evidence that Petitioner has ever engaged
in conduct which is harmful to program recipients or
beneficiaries. See Finding 34; See Tr. at 86.
36. The indefinite exclusion which the I.G. imposed and
directed against Petitioner does not serve the remedial
purpose of section 1128 of the Act and is excessive.
37. The remedial purpose of section 1128 will be met in
this case by a one-year exclusion from participation in
Medicare and Medicaid.
ANALYSIS
The I.G. excluded Petitioner from participating in
Medicare and directed that he be excluded from
participating in Medicaid, pursuant to section
1128(b)(4)(A). The event which triggered the exclusion
determination was the decision by the West Virginia Board
of Medicine to revoke Petitioner's license to practice
medicine in West Virginia. 3/ The West Virginia Board of
Medicine based its revocation of Petitioner's license to
practice medicine upon several grounds. First, the State
Medical Board of Ohio denied Petitioner's application for
a license to practice medicine in Ohio and the West
Virginia Board of Medicine found that Petitioner was not
qualified to practice medicine in West Virginia for the
reasons given by the Ohio Medical Board in denying his
license in Ohio. Second, Petitioner failed to advise the
West Virginia Board of Medicine in his 1987 application
for renewal of his license that the Ohio licensing
authority had denied Petitioner's application for a
license to practice medicine in Ohio. The West Virginia
Board of Medicine concluded that Petitioner's failure to
report this denial was a deliberately fraudulent act.
Third, Petitioner had pleaded nolo contendere in 1986 to
a misdemeanor battery against a coworker in a West
Virginia hospital. The West Virginia Board of Medicine
concluded that Petitioner had perpetrated a criminal
sexual assault against the coworker, which it found to be
morally repugnant. See I.G. Ex. 11. 4/
Hearings conducted pursuant to section 1128 of the Act
generally subsume two issues. The first issue involves
the authority of the I.G. to impose and direct an
exclusion. More specifically, the question is whether
the excluded person has committed an act or has been
convicted of a criminal offense which falls within the
purview of one of the subsections of section 1128, which
authorizes the Secretary (or his delegate, the I.G.) to
impose and direct exclusions. The second issue involves
the reasonableness of the length of the exclusion.
1. The I.G. had authority to exclude Petitioner
pursuant to section 1128(b)(4)(A) of the Act.
Section 1128(b)(4)(A) of the Act authorizes the I.G. to
impose and direct an exclusion against a party whose
license to provide health care is revoked or suspended by
a state licensing authority for reasons bearing on that
party's professional competence, professional
performance, or financial integrity. Petitioner contends
that the West Virginia Board of Medicine did not revoke
his license for any of the reasons enumerated in the Act.
Therefore, according to Petitioner, the I.G. was without
authority to impose and direct an exclusion against him.
I disagree with Petitioner's contention. The West
Virginia Board of Medicine's license revocation decision
was at least in part grounded on findings related to
Petitioner's professional performance. The West Virginia
Board of Medicine found that Petitioner committed a
dishonest act in filing his application for license
renewal, by not reporting the fact that Ohio had denied
him a license to practice medicine. The West Virginia
Board of Medicine's license revocation decision was also
in part based on findings of the Ohio Medical Board that
Petitioner had falsely stated in his application for
licensure in Ohio that he was a licentiate of the Medical
Council of Canada and that he had intentionally failed to
disclose that he had been denied licenses in other
states. Acts of dishonesty of this nature relate to
Petitioner's "professional performance" as that term is
used in section 1128(b)(4)(A). Therefore, the I.G. was
authorized by section 1128(b)(4)(A) to impose and direct
an exclusion against Petitioner.
The term "professional performance" is not defined in
section 1128(b)(4)(A). However, that term plainly
subsumes elements of professional deportment which
include honesty and integrity in the discharge of
professional duties. A health care provider's
professional duties include compliance with applicable
state laws and regulations concerning licensure and
license renewals. A requirement by a state licensing
board that a health care provider honestly and fully
report the status of his licensure applications to the
board is an integral element of professional performance.
Dishonesty by a provider in reporting required
information to a state licensing board therefore relates
to that provider's professional performance. 5/
Petitioner contends that the findings made by the West
Virginia Board of Medicine were based on circumstantial
and erroneous evidence. Petitioner argues that since the
findings of the West Virginia Board of Medicine are
incorrect, the I.G. does not have the authority to base
its exclusion determination on the West Virginia Board of
Medicine's decision to revoke Petitioner's medical
license.
It is well-settled that a petitioner's argument
concerning the correctness or fairness of a state
licensing board's license revocation proceeding is
irrelevant to the issue of whether the I.G. has authority
to impose and direct an exclusion based on the state
board's order revoking that petitioner's license.
Roosevelt A. Striggles. DAB Civ. Rem. C-301 (1991). The
I.G.'s authority to impose and direct exclusions pursuant
to section 1128(b)(4)(A) emanates from the actions taken
by state licensing boards. The law instructs the
Secretary to rely on these boards' decisions. The law
does not intend that the Secretary examine the fairness
or propriety of the process which led to the decisions.
A hearing on exclusions imposed pursuant to section
1128(b)(4)(A) may not be used by a petitioner to mount a
collateral attack on a state board's decision. If a
petitioner thinks that there are serious flaws in a state
board decision, the petitioner should challenge it in the
proper forum. Frank Waltz, M.D., DAB Civ. Rem. C-86
(1989). 6/
2. The exclusion imposed and directed against Petitioner
by the I.G. is unreasonable.
The I.G. effectively imposed and directed an indefinite
exclusion against Petitioner by excluding him until he
obtained a license to practice medicine in West Virginia.
The West Virginia Board of Medicine did not specify a
date when Petitioner would be entitled to have his
license restored. It is conceivable, from the license
revocation decision, that the West Virginia Board of
Medicine might never determine to restore Petitioner's
license. I conclude that the I.G.'s indefinite exclusion
of Petitioner is unreasonable because it bears no
rational relationship to the remedial purpose of section
1128.
Section 1128 is a civil remedies statute. The remedial
purpose of section 1128 is to enable the Secretary to
protect federally-funded health care programs and their
beneficiaries and recipients from individuals and
entities who have proven by their misconduct that they
are untrustworthy. Exclusions are intended to protect
against future misconduct by providers.
Federally-funded health care programs are no more
obligated to deal with dishonest or untrustworthy
providers than any purchaser of goods or services would
be obligated to deal with a dishonest or untrustworthy
supplier. The exclusion remedy allows the Secretary to
suspend his contractual relationship with those providers
of items or services who are dishonest or untrustworthy.
The remedy enables the Secretary to assure that
federally-funded health care programs will not continue
to be harmed by dishonest or untrustworthy providers of
items or services. The exclusion remedy is closely
analogous to the civil remedy of termination or
suspension of a contract to forestall future damages from
a continuing breach of that contract.
Exclusion may have the ancillary benefit of deterring
providers of items or services from engaging in the same
or similar misconduct as that engaged in by excluded
providers. However, the primary purpose of an exclusion
is the remedial purpose of protecting the trust funds and
beneficiaries and recipients of those funds. Deterrence
cannot be a primary purpose for imposing an exclusion.
Where deterrence becomes the primary purpose, section
1128 no longer accomplishes the civil remedies objectives
intended by Congress. Punishment, rather than remedy,
becomes the end. As stated by the United States Supreme
Court:
[A] civil sanction that cannot fairly be said
solely to serve a remedial purpose, but rather
can be explained only as also serving either
retributive or deterrent purposes, is
punishment, as we have come to understand the
term.
United States v. Halper, 490 U.S. 435, 448 (1989).
Therefore, in determining the reasonableness of an
exclusion, the primary consideration must be the degree
to which the exclusion serves the law's remedial
objective of protecting program recipients and
beneficiaries from untrustworthy providers. An exclusion
is not excessive if it does reasonably serve these
objectives.
The hearing in an exclusion case is, by law, de novo.
Social Security Act, section 205(b). Evidence which is
relevant to the reasonableness of the length of an
exclusion will be admitted in a hearing on an exclusion,
whether or not that evidence was available to the I.G. at
the time the I.G. made his exclusion determination.
Evidence which relates to a petitioner's trustworthiness
or the remedial objectives of the exclusion law is
admissible at an exclusion hearing even if that evidence
is of conduct other than that which establishes statutory
authority to exclude a petitioner. The purpose of the
hearing is not to determine how accurately the I.G.
applied the law to the facts before him, but whether,
based on all relevant evidence, the exclusion comports
with legislative intent. For example, I permitted the
I.G. to offer evidence in this case pertaining not only
to the basis for revocation of Petitioner's West Virginia
license to practice medicine, but to disciplinary
proceedings concerning Petitioner in states other than
West Virginia. Similarly, I allowed Petitioner to offer
evidence concerning disciplinary proceedings in other
states. I also allowed both parties to offer evidence
concerning the events which led to Petitioner's nolo
contendere plea to a criminal battery charge.
My purpose in hearing and deciding the issue of whether
an exclusion is reasonable is not to second-guess the
I.G.'s exclusion determination. It is to decide whether
the determination was extreme or excessive. 48 Fed. Reg.
3744 (Jan. 27, 1983). Should I determine that an
exclusion is extreme or excessive, I have authority to
modify the exclusion, based on the law and the evidence.
Social Security Act, section 205(b).
The Secretary has adopted regulations to be applied in
exclusion cases. The regulations specifically apply to
exclusion cases for "program-related" offenses
(convictions for criminal offenses relating to Medicare
or Medicaid). The regulations express the Secretary's
policy for evaluating cases where the I.G. has discretion
in determining the length of an exclusion. The
regulations require the I.G. to consider factors related
to the seriousness and program impact of the offense and
to balance those factors against any factors that may
exist demonstrating trustworthiness. 42 C.F.R.
1001.125(b)(1)-(7).
There are circumstances where I have sustained an
indefinite exclusion premised on a decision to revoke a
license by a state licensing authority. Those
circumstances are not present here. For example, in
Richard L. Pflepsen, D.C., DAB Civ. Rem. C-345 (1991), I
sustained an indefinite exclusion of the petitioner
premised on his surrender of his health care license to a
state licensing authority. However, as I noted in
Pflepsen, the petitioner evidenced no desire to provide
health care in any jurisdiction besides Iowa, the state
in which he had been licensed. Petitioner did not
dispute the facts (his substance abuse) which led to the
disciplinary action against him, nor did he argue that
the conditions which Iowa attached to restoration of his
license were unreasonable.
By contrast, Petitioner in this case is presently
practicing in a jurisdiction other than West Virginia
(Pennsylvania) pursuant to a valid license. The
Pennsylvania licensing authorities reviewed the
circumstances of Petitioner's West Virginia license
revocation and concluded that Petitioner should continue
to be a licensed physician in Pennsylvania. 7/
Petitioner vigorously disputes the factual findings of
the West Virginia Board of Medicine in its license
revocation decision and contends, above all, that he is a
trustworthy provider of care.
Given these distinctions and Petitioner's contentions, I
cannot say that the I.G.'s decision to impose and direct
an indefinite exclusion against Petitioner premised on
the West Virginia license revocation is per se
reasonable. See Lakshmi N. Murty Achalla, M.D., DAB App.
1231 (1991). Nor, for reasons which I express below, can
I conclude that an indefinite, or even a lengthy
exclusion, is reasonable based on the evidence.
It is apparent from the record of this case that
Petitioner has on several occasions run afoul of state
licensing authorities and has been found not to have been
completely honest in his disclosures and reporting to
these authorities. These episodes, taken in the
aggregate, suggest that Petitioner is not an entirely
trustworthy individual. I conclude from this evidence
that an exclusion is not completely unwarranted in this
case. On the other hand, there is not evidence of record
in this case from which I can infer that Petitioner is so
untrustworthy as to merit an indefinite exclusion from
participation in Medicare and Medicaid or an exclusion
for a lengthy term of years. 8/
Petitioner was less than candid in reporting the status
of his Ohio license application to West Virginia
authorities. He asserted to the West Virginia
authorities that he had not been denied a license to
practice medicine in Ohio, when in fact he had been
denied such a license.
Petitioner testified before me that the Ohio license
denial decision was mailed to him by certified mail
several days prior to the date when he filed his
application to renew his West Virginia license. The
certification of delivery was signed by an employee in
Petitioner's medical office. Petitioner's explanation
for not advising the West Virginia authorities of the
Ohio license denial was that he was out of the country
when the Ohio denial was mailed to him. He asserted that
he had not seen the denial when he filed his license
renewal application in West Virginia. Therefore,
according to Petitioner, there was no dishonesty in his
failure to report the Ohio denial in his West Virginia
renewal application. See Tr. at 72-73.
I am troubled by the glibness and self-serving quality of
Petitioner's explanation for his failure to notify West
Virginia authorities of his Ohio license denial. While
this explanation is not contradicted by any evidence of
record, I nevertheless find it troubling because it shows
that Petitioner failed to recognize that he had a duty in
good faith to report the denial of his license in Ohio
when he did find about it.
Petitioner certainly knew about the Ohio denial within a
few days of filing his application for renewal of his
West Virginia license. He also knew that the denial and
the circumstances relating to that denial were a matter
of concern to West Virginia authorities, inasmuch as the
West Virginia renewal form specifically required him to
describe any license denials by other states. Petitioner
had a duty in good faith to promptly inform West Virginia
authorities when he became aware of the Ohio action. His
failure to inform the West Virginia licensing authorities
that the Ohio Medical Board had denied his license when
he became aware of this action is evidence of a lack of
trustworthiness.
This conclusion is reinforced by the fact that Petitioner
presented me with other self-serving explanations for
problems he had experienced on previous occasions with
licensing authorities in states other than West Virginia.
For example, Ohio's licensing authority denied Petitioner
a license to practice medicine in Ohio because it found,
among other things, that Petitioner had falsely stated in
his application that he was a licentiate in Canada.
Petitioner's explanation for this concededly untrue
averment in his Ohio license application was that he
misunderstood the term "licentiate" to mean, in effect,
eligibility for a license. See I.G. Ex. 12/8; Tr. at 58-
59.
As with Petitioner's explanation for his failure to
inform West Virginia authorities about his Ohio license
denial, this explanation is not contradicted by evidence
of record. However, it is troubling because it shows
that Petitioner failed to recognize that he had a duty in
good faith to ascertain the meaning of the word
"licentiate" before answering a question referring to the
term on a state licensing application.
Petitioner testified before me that he did not know the
meaning of the word "licentiate" when he wrote his answer
to the question on the licensing application. Tr. at 59.
Assuming that this is true, at the very least it
demonstrates a willingness on Petitioner's part to answer
questions on licensing applications without first
determining their meanings. Certainly Petitioner had a
duty in good faith to ascertain the meaning of the
questions he was responding to because a failure to do so
would put him at risk of providing false information to
the licensing board. His statement to the Ohio licensing
authority regarding his status as a "licentiate" without
even knowing what the word meant is evidence of a
reckless disregard for the importance of making truthful
representations to the state licensing authority.
Similarly, Petitioner provided me with an explanation for
his sale of FLEX questions to 1979 candidates for that
examination. He justifies his actions as being motivated
by a good faith desire to assist fellow medical residents
to prepare for that examination. See Tr. at 68-70. As
with Petitioner's other explanations for past problems,
this testimony is not entirely implausible, but it is
self-serving. Petitioner's tendency to characterize his
conduct in the light most favorable to him is further
illustrated by his testimony before the Ohio Medical
Board concerning this incident. Petitioner claimed that
he was advancing the Hippocratic Oath by selling the FLEX
questions, and the Ohio Medical Board found this
rationalization for his conduct to be "astounding". I.G.
Ex. 12/10. Petitioner's testimony before me regarding
his motives for the sale of the FLEX questions is an
unconvincing rationalization of his conduct when it is
viewed in context with his other self-serving
explanations for his problems with state licensing
authorities.
Petitioner's reckless disregard for the truthfulness of
his statements in license applications is the ambit of
the evidence in this case from which I can infer that
Petitioner is not a trustworthy health care provider. I
find unpersuasive other evidence asserted by the I.G. to
establish lack of trustworthiness.
I am not persuaded that the evidence concerning the
events which resulted in Petitioner's nolo contendere
plea to a charge of battery provides substantial
additional proof that Petitioner is an untrustworthy
individual. Petitioner was charged by a coworker with a
criminal felony of sexual abuse. The transcript of the
preliminary hearing of these criminal proceedings shows
that the complaining coworker testified that Petitioner
approached her in the hospital where they were both
employed and grasped her right breast without invitation.
The coworker also testified that when she protested this
offensive conduct, Petitioner said "just sit there and
enjoy it." I.G. Ex. 15/9. Although the coworker
admitted that she had enjoyed a social relationship with
Petitioner which included going out to dinner and to a
bar and that she had received free medicine from
Petitioner, she denied that she had ever visited him in
his home or that she had sexual relations with him. The
coworker also testified that Petitioner had verbally
harassed her and made unwelcome sexual advances to her on
more than one occasion. I.G. Ex. 15/37-40, 45.
Petitioner vehemently denied these allegations. In
pleading nolo contendere to a misdemeanor battery charge,
Petitioner admitted to an unlawful contact with the
complaining coworker. He did not, however, admit to the
offense as she alleged it. At the hearing before me,
Petitioner testified that he had dated the coworker and
that she repeatedly and willingly had sexual relations
with him. Petitioner also testified that he and the
coworker frequently "flirted" at the hospital where they
both worked. While Petitioner testified that he put his
arm around the coworker and touched her right breast, he
was under the impression that their relationship was such
that "she didn't mind me hugging her or kissing her on
occasion." Tr. at 77. Petitioner said that when the
coworker told him to remove his hand from her breast, he
immediately did so. In addition, Petitioner pointed out
that the coworker did not file criminal charges against
him for more than a week after the incident occurred.
Tr. at 75-78.
I cannot discern from the record before me that the
complaining coworker's allegations of sexual misconduct
are true. Although I admitted the transcribed statement
of the coworker into evidence, I was not provided the
opportunity to judge the demeanor or credibility of this
individual. Petitioner denied abusive sexual conduct at
the hearing. He produced a witness, Denise Elswick, who
in important respects corroborated Petitioner's assertion
that the coworker had lied to authorities about the
degree of intimacy in her relationship with Petitioner
prior to the allegedly felonious sexual contact. 9/
It is not possible for me to draw meaningful inferences
as to Petitioner's trustworthiness from this episode
because I am not convinced from the record that
Petitioner actually perpetrated an act of sexual abuse as
alleged by the complainant in the criminal case. 10/
This case is thus distinguishable from cases which I have
adjudicated pursuant to section 1128(a)(2) of the Act,
wherein I have inferred from proven episodes of abuse,
including sexual misconduct, a propensity on the part of
petitioners to engage in future abusive conduct. See,
for example, Norman C. Barber, D.D.S., DAB Civ. Rem. C-
198 (1991).
In Barber, the petitioner pleaded guilty to an offense
consisting of the sexual abuse of his daughter in the
context of a patient relationship. In the Barber case,
the conduct giving rise to the conviction was undisputed
and admitted to by the petitioner. I was therefore able
to infer from the record that the petitioner posed a
threat to the welfare of program beneficiaries and
recipients and on that basis I affirmed the exclusion
imposed and directed against the petitioner by the I.G.
By contrast, the most that can be said about the episode
at issue in this case is that Petitioner may have engaged
in sexually offensive conduct towards a coworker with
whom Petitioner had previously had a personal
relationship. Although Petitioner admits that he put his
arm around a coworker and touched her breast without
being given explicit permission to do so, the underlying
circumstances of this incident are too ambiguous to
enable me to infer that Petitioner might engage in
sexual misconduct with patients. In view of the
foregoing, I find that the I.G. has failed to establish
that Petitioner poses a threat to program beneficiaries
and recipients based on Petitioner's nolo contendere plea
to a misdemeanor charge of battery. 11/
The fact that I do not draw inferences against Petitioner
based on his nolo contendere plea to a battery charge and
the allegations that he engaged in sexual abuse is not to
say that the record establishes Petitioner to be an
entirely honest or trustworthy individual. As I note
above, Petitioner has in the past made false statements
in his licensing applications filed with state licensing
boards. While Petitioner was able to present plausible
explanations for these false statements, I am troubled by
the glib and self-serving nature of these explanations.
Petitioner has consistently attempted to excuse and
rationalize his actions without recognizing that he may
have brought some of his trouble with the licensing
boards upon himself.
However, I do not find that this lack of honesty in
Petitioner justifies the indefinite exclusion imposed and
directed by the I.G. or even an exclusion for a period of
three years. While Petitioner's actions cause me to have
reservations about his trustworthiness, my reservations
are largely balanced by the fact that there is no
evidence that Petitioner has ever defrauded a health care
program or engaged in conduct which jeopardized the
welfare or a program beneficiary or recipient.
I also note that none of the episodes of misconduct
alleged by the I.G. occurred later than 1987. Petitioner
was first charged with the episode of alleged sexual
abuse in May 1986. I.G. Ex. 15/7. He filed his
application for license renewal in West Virginia in June,
1987. I.G. Ex. 11/7. He filed his Ohio license
application in February, 1986. I.G. Ex. 12/8. His sale
of FLEX examination questions occurred in 1979. See I.G.
Ex. 12/8. 12/ All of the episodes of misconduct
identified by the I.G., including those Petitioner
attempted to excuse in his testimony, occurred at least
four years ago.
I am also mindful of the fact that professional licensing
boards in both Pennsylvania and the District of Columbia
have reviewed essentially the same record presented to me
and have concluded that Petitioner is sufficiently
trustworthy so as to be permitted to practice medicine in
those jurisdictions. The evidence therefore does not
convince me that Petitioner is so untrustworthy so as to
require a lengthy exclusion from participating Medicare
and Medicaid.
I conclude that the exclusion should be modified to a
term of one year. At the completion of this term, more
than four full years will have elapsed since the last
episode in which Petitioner was found to have been
untruthful to a state licensing board. Given that, and
assuming that no other examples of Petitioner's
dishonesty are identified, ample time will have elapsed
for Petitioner to have demonstrated that he does not pose
a threat to the integrity of federally-funded health care
programs.
In modifying the exclusion, I am cognizant of the fact
that I have found Petitioner's explanations for the
events which resulted in disciplinary actions by several
state licensing boards to be glib and self-serving,
suggesting that Petitioner has been less than open in his
testimony before me. Arguably, I could conclude from
this finding that Petitioner was so untrustworthy an
individual as to merit a lengthy exclusion. I do not do
so because I cannot conclude from my review of the record
that Petitioner actually lied to me in his testimony so
much as he characterized the facts in a way intended to
depict his actions in as favorable light as is possible.
13/ Furthermore, Petitioner's testimony all concerned
events that occurred in the remote past. I do not infer
from his characterizations of such remote events that
Petitioner is likely to commit offenses which jeopardize
the integrity of the Medicare or Medicaid programs.
CONCLUSION
Based on the law and the evidence, I conclude that the
indefinite exclusion imposed and directed against
Petitioner by the I.G. is excessive. I conclude that the
remedial purposes of section 1128 of the Act will be
satisfied in this case by an exclusion of one year, and I
modify the exclusion accordingly.
______________________________
Steven T. Kessel
Administrative Law Judge
1.
"State health care program" is defined by section
1128(h) of the Social Security Act to cover three types
of federally-financed health care programs, including
Medicaid. I use the term "Medicaid" hereafter to
represent all State health care programs from which
Petitioner was excluded.
2.
The parties' exhibits and the transcript of proceedings
in this case will be cited as follows:
Inspector General Exhibit I.G. Ex. (number)/(page)
Petitioner Exhibit P. Ex. (number)/(page)
Transcript Tr. at (page)
3.
On February 9, 1989, the Oklahoma State Board of
Medical Licensure revoked Petitioner's license to
practice medicine in Oklahoma. This agency's decision
appears to have been predicated on the decision of the
West Virginia Board of Medicine. See P. Ex. 9/2.
Licensing authorities in the District of Columbia and
Pennsylvania also have reviewed Petitioner's case,
including the action by the West Virginia Board of
Medicine, and have decided not to revoke Petitioner's
license to practice medicine in those jurisdictions. P.
Ex. 7; P. Ex. 9.
4.
In addition to filing criminal charges against
Petitioner, the coworker had also filed a complaint with
the West Virginia Board of Medicine alleging that
Petitioner had sexually assaulted her. I.G. Ex. 11/4.
5.
The fact that Petitioner's license in West Virginia was
revoked because, among other things, he had failed to
honestly and fully report the status of his licenses to
practice medicine in other jurisdictions satisfies the
requirement in section 1128(b)(4)(A) that license
revocation be for reasons bearing on Petitioner's
professional performance. I do not make any findings on
whether Petitioner's conviction for battery against a
coworker or his sale of compilations of questions and
answers from medical examinations relate to his
professional competence or performance because there is
no need for me to resolve these issues. See Andy E.
Bailey, C.T., DAB Civ. Rem. C-110 (1989). While there is
no need for me to make a finding on whether Petitioner's
conviction for battery against a coworker and his sale of
examination questions relate to his professional
competence or performance in order to resolve the issue
of whether the I.G. had the authority to exclude
Petitioner, these incidents may be relevant to the issue
of the reasonableness of the length of the exclusion.
6.
While the correctness of the findings made by the West
Virginia Medical Board in its decision to revoke
Petitioner's license are not relevant to the issue of
whether the I.G. has the authority to exclude Petitioner,
it may be relevant to the issue of whether the length of
the exclusion imposed by the I.G. is extreme or
excessive. See Bernardo G. Bilang, M.D., DAB Civ. Rem.
C-298 (1991).
7.
Petitioner entered into a consent order with
Pennsylvania authorities wherein he submitted to a
reprimand and a civil penalty of $2,000. P. Ex. 9/7-8.
However, Petitioner's license to practice medicine in
Pennsylvania was not otherwise restricted.
8.
On page 31 of his posthearing brief, the I.G. suggested
that, if I was not convinced that his indefinite
exclusion should be affirmed, I should modify the
exclusion to a term of three years.
9.
The findings of the West Virginia Board of Medicine
concerning the conduct which underlies Petitioner's nolo
contendere plea, do not, in my opinion, provide
additional weight for the contention that Petitioner
sexually abused a coworker. The hearing examiner
appointed by the West Virginia Board of Medicine to
review the complaints against Petitioner relied on the
transcript of the preliminary hearing which is in
evidence in this case as I.G. Ex. 15. In addition, I had
the benefit of evidence which was not presented to the
hearing examiner, consisting of the testimony of
Petitioner and Ms. Elswick. See I.G. Ex. 11.
10.
Just because I am not persuaded that the coworker's
allegations are true does not mean that I must find that
Petitioner's version is true. There are too many
inconsistencies in the record to enable me to find that
the I.G. has submitted sufficient evidence to prove that
Petitioner engaged in an act of sexual abuse as alleged
by the coworker. I am not, however, required to, nor do
I find, that Petitioner's explanation of the events
underlying his criminal conviction are credible.
11.
Had the I.G. proven that the complaining coworker's
allegations of sexual misconduct are true, it would
arguably have made a stronger case for a lengthy
exclusion. However, even if the weight of the evidence
had established the coworker's allegations, I would still
have to infer that Petitioner posed a present threat to
patients.
12. Petitioner also experienced difficulties with state
licensing boards concerning statements he made regarding
license applications he filed in 1981 (Pennsylvania) and
in 1983 (Oklahoma). I.G. Ex. 12/8. The State Medical
Board of Ohio concluded in its 1987 denial of
Petitioner's license application that Pennsylvania and
Oklahoma had denied Petitioner's applications for
licenses. In fact, Pennsylvania did not deny
Petitioner's license application. I.G. Ex. 3/7; P. Ex.
9/3. It is unclear from the record whether Oklahoma, in
fact, denied Petitioner's 1983 application. There is
evidence to suggest that Petitioner was granted a license
in Oklahoma. P. Ex. 2/1. However, I cannot determine
whether this license approval relates to the same
application which the Ohio authorities found to have been
denied.
13. Petitioner made several representations to me which
were not disproved by the I.G. Had the I.G. brought
forward evidence which proved that Petitioner lied to me,
I would be more inclined to find that a lengthy exclusion
would be justified. For example, the decision of the
Ohio Medical Board noted that although Petitioner claimed
to be licensed to practice medicine in Italy, he had not
produced documentary evidence of such licensure. I.G.
Ex. 12/8. Petitioner testified before me that the reason
he has not produced documentation of his Italian license
is that he is required to pick up the Italian license
certificate in person, and that he has never had the
opportunity to do so. Tr. at 56. Again, this testimony
strikes me as being self-serving, but there is nothing in
the record to contradict it.