DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
In the Case of: Jagdish Mangla, M.D., Petitioner,
- v. -
The Inspector General.
DATE: April 15, 1997
Docket No. C-96-440
Decision No. CR470
DECISION
I sustain the determination of the Inspector General
(I.G.) to exclude Petitioner, Jagdish Mangla, M.D., from
participating in Medicare and State health care programs,
including Medicaid, until Petitioner obtains a valid
license to practice medicine or to provide health care in
the State of California. I base my decision on evidence
which proves that a State licensing authority revoked
Petitioner's medical license for reasons bearing on
Petitioner's professional competence and professional
performance within the meaning of section 1128(b)(4)(A)
of the Social Security Act (Act). Petitioner has not
offered any evidence which would support a finding that
the I.G. does not have the authority to exclude
Petitioner or that the length of the exclusion should be
modified.
BACKGROUND
On July 24, 1996, the I.G. notified Petitioner that he
was being excluded from participation in Medicare and
State health care programs, including Medicaid, until
Petitioner obtained a valid license to practice medicine
or provide health care in the State of California. The
I.G. advised Petitioner that she was excluding him
pursuant to section 1128(b)(4) of the Act because his
license to practice medicine or provide health care was
revoked by the State of California.
Petitioner requested a hearing and the case was assigned
to Administrative Law Judge Edward Steinman for a hearing
and a decision. On February 12, 1997, the Chief of the
Civil Remedies Division reassigned this case to me.
The parties agreed that this case could be heard and
decided based on written submissions, including briefs
and documentary evidence, and without the need for an in-
person hearing.
The I.G submitted a brief, with one proposed exhibit
(I.G. Ex. 1). Petitioner submitted a brief, with ten
proposed unnumbered exhibits. The I.G. declined the
opportunity to file a reply brief. For the purposes of
maintaining a uniform record in this case, I have
numbered Petitioner's exhibits (P. Ex. 1 - 10). There
having been no objections to any of the offered exhibits,
I hereby receive into evidence I.G. Ex. 1 and P. Ex. 1 -
10.
APPLICABLE LAW
Section 1128(b)(4)(A) of the Act, 42 U.S.C. § 1320a-
7(b)(4)(A), authorizes the Secretary of the United States
Department of Health and Human Services (or her delegate,
the I.G.) to exclude from participation in the Medicare
program any individual "whose license to provide health
care has been revoked or suspended by any State licensing
authority, or who otherwise lost such a license or the
right to apply for or renew such a license, for reasons
bearing on the individual's . . . professional
competence, professional performance, or financial
integrity."
The Secretary has published regulations which establish
criteria for determining the length of any exclusion that
is imposed pursuant to section 1128(b)(4) of the Act. An
exclusion imposed pursuant to section 1128(b)(4)
ordinarily shall be for the same duration as the period
during which an individual's license is lost as a result
of a State disciplinary proceeding. 42 C.F.R. §
1001.501(b)(1). An exclusion may be for a longer
duration than a period that is coterminous with a loss of
a State license to provide health care if there exist
aggravating factors that are not offset by any mitigating
factors. 42 C.F.R. § 1001.501(b)(2), (3). An exclusion
may be for a shorter duration than a period that is
coterminous with the loss of a State license to provide
health care, if prior to the date of the notice of
exclusion, the licensing authority of a State (other than
the one in which the individual's license had been
revoked, suspended, surrendered, or otherwise lost),
being fully apprised of all of the circumstances
surrounding the prior action by the licensing board of
the first State, grants the individual a license or takes
no significant adverse action as to a currently held
license. 42 C.F.R. § 1001.501(c)(1). In addition,
subsection (2) of 42 C.F.R. § 1001.501(c) provides that
the I.G. will consider a request for early reinstatement
if an excluded provider fully and accurately discloses
the circumstances surrounding the license revocation to
another State and that State either grants the provider a
new license or takes no adverse action against an
existing license.
PETITIONER'S POSITION
Petitioner contends that the New York State proceedings
which resulted in the initial revocation of his license
to practice medicine were biased against him and were
conducted by his enemies.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. Petitioner was licensed to practice medicine in the
States of California and New York. I.G. Ex. 1, at 3 and
10.
2. On March 3, 1993, the State of New York Board for
Professional Medical Conduct suspended Petitioner's
license to practice medicine in that State because it
determined that he suffered from a psychiatric condition,
bipolar disorder. I.G. Ex. 1, at 8 - 15.
3. On June 8, 1995, the California Medical Board, citing
the March 3, 1993, order of the New York State Board of
Professional Medical Conduct, entered an order revoking
Petitioner's physician and surgeon certificate, effective
July 8, 1995, based on a finding of unprofessional
conduct. I.G. Ex. 1, at 4 - 5.
4. The June 8, 1995 action of the California Medical
Board was based on sections 2234 and 2305 of the
California Business and Professional Code, which provide
that the revocation, suspension, or other discipline by
another State of a license or certificate to practice
medicine issued by that State shall constitute
unprofessional conduct in California. I.G. Ex. 1, at 3.
5. By letter dated July 24, 1996, the I.G. notified
Petitioner that, pursuant to section 1128(b)(4) of the
Act, the Department of Health and Human Services was
excluding him from participation in the Medicare program
and directing his exclusion from State health care
programs based on the revocation of his California
physician and surgeon certificate for reasons bearing on
his professional competence, professional performance, or
financial integrity.
6. Section 1128(b)(4)(A) of the Act authorizes the I.G.
to exclude an individual whose license to provide health
care in a State has been revoked or suspended as a result
of formal disciplinary proceedings by the State's
licensing authority for reasons bearing on the
individual's professional competence, professional
performance, or financial integrity.
7. Where an exclusion is imposed pursuant to section
1128(b)(4) of the Act, and there exist no aggravating
factors or exceptional circumstances, the length of the
exclusion will be coterminous with the State license
revocation on which the exclusion was based. 42 C.F.R. §
1001.501(b).
8. The I.G. was authorized to exclude Petitioner
pursuant to section 1128(b)(4)(A) of the Act.
9. The I.G. neither alleged nor proved the presence of
aggravating factors.
10. Petitioner did not prove the presence of any
exceptions which would justify reducing the exclusion
which the I.G. imposed to one which was less than
coterminous with Petitioner's loss of his license to
practice medicine in California.
11. The exclusion imposed by the I.G. against Petitioner
was reasonable.
DISCUSSION
The undisputed facts establish that Petitioner's license
to practice medicine in the State of California was
revoked by the State of California, effective July 8,
1995, due to unprofessional conduct. The California
Medical Board's action was based on the suspension of
Petitioner's license to practice medicine in the State of
New York. The suspension of Petitioner's New York
license was based upon a determination by the New York
Board that Petitioner suffered from a psychiatric
condition which impaired his occupational functioning.
The action of the California Medical Board was authorized
by California law that provides that the revocation,
suspension, or other discipline by another State of a
license or certificate to practice medicine issued by
that State shall constitute unprofessional conduct in
California. California Business and Professional Code
section 2305.
The exclusion in Petitioner's case is based on section
1128(b)(4) of the Act which authorizes the exclusion from
participation in the Medicare program of any individual
whose license to provide health care has been revoked or
suspended by any State licensing authority, or who
otherwise lost such a license or the right to apply for
or renew such a license, for reasons bearing on the
individual's professional competence, professional
performance, or financial integrity. The Act further
authorizes the Secretary to direct that an individual be
excluded under section 1128(b)(4) of the Act from
participation in the State health care programs defined
by section 1128(h) of the Act.
The imposition of Petitioner's exclusion coterminous with
the license revocation in California is consistent with
the criteria set forth in the regulations at 42 C.F.R. §
1001.501. Petitioner has not alleged or demonstrated
that, prior to the notice of exclusion, he obtained a
license to practice medicine in another State after the
licensing authority of that State had been fully apprised
of all of the circumstances surrounding the prior action
by the California Medical Board. The I. G. has not
alleged any aggravating factors in Petitioner's case.
Furthermore, the record does not show that the exceptions
in 42 C.F.R. § 1001.501(c) for shortening the length of
the exclusion are applicable to this case.
Petitioner's contends that the action of the New York
licensing authority was unfair. His allegations on this
issue, however, are wholly unsupported by any evidence.
Moreover, it has been held that in proceedings under
section 1128(b)(4) collateral attacks on the actions of
the State licensing authorities are not permitted. John
W. Foderick, M.D., DAB 1125 (1990). Even if I could
review the actions of the New York Medical Board, the
record establishes that Petitioner was afforded the
opportunity, either personally or through counsel, to
present his case to those authorities. There was ample
basis on the record in that proceeding for concluding
that Petitioner suffered from a serious psychiatric
disturbance which impaired his occupational functioning.
CONCLUSION
I conclude that the I.G. was authorized to exclude
Petitioner pursuant to section 1128(b)(4)(A) of the Act.
I conclude also that the term of exclusion imposed by
the I.G. was lawful.
________________________
Joseph K. Riotto
Administrative Law Judge