SUBJECT:

Michael I. Boone, D.C.,

Petitioner,

The Inspector General

I sustain the determination of the Inspector General (I.G.) to exclude Michael I. Boone, D.C. (Petitioner), from participating in the Medicare, Medicaid, and all federal health care programs as defined in section 1128B(f) of the Social Security Act (Act)⁽¹⁾ until Petitioner obtains a license to practice chiropractic medicine in the State of New Hampshire. I base my decision on evidence which proves that Petitioner's license to practice chiropractic medicine was revoked by the New Hampshire licensing authority for reasons bearing on his professional competence, professional performance, or financial integrity, within the meaning of section 1128(b)(4)(A) of the Act. Additionally, I find that when an exclusion imposed by the I.G. pursuant to section 1128(b)(4)(A) of the Act is coterminous with the term of revocation, suspension, or surrender of the excluded provider's State license, then no issue of reasonableness exists and an exclusion for at least that length is mandated by law.

By letter dated July 31, 1998, the I.G. notified Petitioner that he was being excluded from participating in Medicare and Medicaid. The I.G. explained that Petitioner's exclusion was authorized under section 1128(b)(4) of the Act because Petitioner's "license to practice medicine or provide health care in the State of New Hampshire was revoked, suspended, or otherwise lost or was surrendered while a formal disciplinary proceeding was pending before the State licensing authority for reasons bearing on your professional competence, professional performance, or financial integrity." Additionally, the I.G. advised Petitioner that his exclusion would "remain in effect as long as your license is revoked, suspended, or otherwise lost."

On February 14, 2000, Petitioner requested a hearing and the case was assigned to me for decision. Petitioner stated that the reason that he had not filed a hearing request sooner was that the July 31, 1998 notice letter was sent to an incorrect address. The I.G. did not contest this claim, and has not made any challenge to the timeliness of the hearing request. In view of the fact that the I.G. does not challenge the timeliness of Petitioner's hearing request, I will decide the case on its merits.

The parties agreed that the case could be decided based on their written submissions, and that an in-person hearing was not necessary. On June 15, 2000, I issued an order setting forth a schedule for the parties to submit briefs and supporting evidence.

The I.G. submitted a brief and three proposed exhibits identified as I.G. Ex. 1 - 3. Petitioner did not object to these exhibits, and I admit I.G. Ex. 1 - 3 into evidence in this case. Petitioner submitted a one page statement in support of his case. In deciding this case, I have considered the exhibits, the applicable law, and the arguments of the parties.

Pursuant to section 1128(b)(4) of the Act, the I.G. may exclude "[any] individual or entity - (A) 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 or entity's professional competence, professional performance, or financial integrity, or (B) who surrendered such a license while a formal disciplinary proceeding was pending before such an authority and the proceeding concerned the individual's or entity's professional competence, professional performance, or financial integrity."

Pursuant to section 1128(c)(3)(E) of the Act, as amended by section 212 of the Health Insurance Portability and Accountability Act of 1996 (Pub. L.104-191), the length of an exclusion under section 1128(b)(4) "shall not be less than the period during which the individual's or entity's license to provide health care is revoked, suspended, or surrendered, or the individual or entity is excluded or suspended from a Federal or State health care program." This provision affecting the length of exclusions became effective on January 1, 1997.

Prior to 1996, the Act provided no criteria for establishing the length of exclusions for individuals or entities excluded pursuant to section 1128(b)(4). The 1996 amendments require, at section 1128(c)(3)(E), that an individual or entity who is excluded under section 1128(b)(4) be excluded for not less than the period during which the individual's or entity's license to provide health care is revoked, suspended, or surrendered. Under the 1996 amendments, no issue of reasonableness exists where the exclusion imposed by the I.G. is coterminous with the period of revocation, suspension, or surrender of a State license. A coterminous exclusion, as in Petitioner's case, is the mandated minimum required by law.

1. Petitioner obtained a license to practice as a chiropractor in the State of New Hampshire in 1984. I.G. Ex. 2.

2. On January 12, 1995, the New Hampshire Board of Chiropractic Examiners issued a Notice of Hearing containing allegations that Petitioner engaged in professional misconduct. I.G. Ex. 2.

3. The New Hampshire Board of Chiropractic Examiners conducted a full evidentiary hearing on the allegations set forth in the Notice of Hearing. Petitioner and his legal counsel participated in this hearing.

4. On September 22, 1995, the New Hampshire Board of Chiropractic Examiners revoked Petitioner's chiropractic license, effective October 13, 1995. I.G. Ex. 2.

5. The decision of the New Hampshire Board of Chiropractic Examiners to revoke Petitioner's chiropractic license was based on findings that Petitioner's record-keeping and billing practices between 1991 and 1994 were dishonest, unprofessional, and unworthy of a licensed chiropractor. The New Hampshire Board of Chiropractic Examiners found also that Petitioner intentionally placed unreliable information on chiropractic treatment records merely to obtain payment from insurance carriers. I.G. Ex. 2.

6. Petitioner's New Hampshire chiropractic license has not been reinstated.

7. On July 31, 1998, the I.G. notified Petitioner of his exclusion from participation in Medicare and Medicaid.

8. Section 1128(b)(4)(A) of the Act authorizes the I.G. to exclude an 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.

9. Petitioner possessed a license to provide health care within the scope of section 1128(b)(4)(A) of the Act.

10. The order dated September 22, 1995, issued by the New Hampshire Board of Chiropractic Examiners, constituted the revocation of Petitioner's chiropractic license within the scope of section 1128(b)(4)(A) of the Act.

11. Petitioner's chiropractic license was revoked for reasons bearing on his professional competence, professional performance, or financial integrity within the scope of section 1128(b)(4)(A) of the Act.

12. The I.G. was authorized to exclude Petitioner pursuant to section 1128(b)(4)(A) of the Act.

13. Where an exclusion is imposed pursuant to section 1128(b)(4)(A) of the Act, the period of exclusion shall not be less than the period during which the individual's license to provide health care is revoked, suspended, or surrendered. Act, section 1128(c)(3)(E).

14. When an exclusion is imposed pursuant to section 1128(b)(4)(A) of the Act, and the period of exclusion is coterminous with the revocation, suspension, or surrender of a State license, then no issue of reasonableness concerning the length of the exclusion exists.

15. The exclusion imposed by the I.G. against Petitioner is for the minimum period mandated by section 1128(c)(3)(E) of the Act.

Petitioner does not dispute that his chiropractic license was revoked by the State licensing authority for reasons bearing on his professional competence, professional performance, or financial integrity within the meaning of section 1128(b)(4)(A) of the Act. Instead, he raises challenges concerning the fairness of his exclusion from Medicare and Medicaid. He asserts that the exclusion is inhibiting his ability to find work in the health care field. He asserts also that "enough time has elapsed for punishment."

Petitioner does not dispute that his chiropractic license was revoked by a State licensing authority for reasons bearing on his professional competence, professional performance, or financial integrity within the scope of section 1128(b)(4)(A) of the Act. I agree.

Petitioner's chiropractic license was revoked on September 22, 1995, following the State licensing authority's conclusion that Petitioner had repeatedly engaged in unprofessional practices involving chiropractic billing and treatment records. The Board found that Petitioner "offered no credible assurances that he understands the unprofessional nature of [his] conduct and why it has no place in the practice of chiropractic, or any other profession in which honest and competent service to the patient or client is necessarily the practitioner's preeminent goal." I.G. Ex. 2, at page 20. The Board's findings clearly demonstrate Petitioner's untrustworthiness. The Board also found that Petitioner routinely billed for services which were not rendered. I.G. Ex. 2. This finding clearly relates to Petitioner's financial integrity. Morton Markoff, D.O., DAB CR538 (1998). Furthermore, the Board found that Petitioner did not maintain complete or accurate patient records. When third party payors requested copies of patient treatment records prior to reimbursement for billed services, Petitioner instructed his staff to improperly fabricate the missing records. I.G. Ex. 2. This finding relates to Petitioner's professional performance and professional competence. Hassan M. Ibraham, M.D., DAB CR445 (1996); Thelma C. Villanueva, M.D., DAB CR431 (1996).

Petitioner asserts that his exclusion detrimentally and unfairly affects his employment. It is well-established, however, that an individual does not have a property right in participation in the Medicare and Medicaid programs and that an exclusion is not an unconstitutional taking of property. Kahn v. The Inspector General, 848 F. Supp. 432 (S.D.N.Y. 1994). The claim that an exclusion is unfair because it results in a loss of employment opportunities, therefore, has been rejected. Morton Markoff, D.O., supra.

Petitioner also asserts that it is unreasonable to have his exclusion continue in effect until he obtains a chiropractic license from the State of New Hampshire. Under section 1128(c)(3)(E) of the Act, it is required that an individual excluded under section 1128(b)(4)(A) be excluded for not less than the period during which the individual's license to provide health care is revoked, suspended or surrendered. No issue of reasonableness exists where the exclusion imposed by the I. G. is coterminous with the loss, suspension, or revocation of a State license. Maurice Labbe, DAB CR488 (1997).

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 period of exclusion imposed by the I.G. is the minimum mandatory period mandated by section 1128(c)(3)(E) of the Act. Accordingly, I sustain it.

Joseph K. Riotto

Administrative Law Judge

1. In this decision, I refer to all programs from which Petitioner has been excluded, other than Medicare, as "Medicaid."