SUBJECT:

Alliso Purtell, M.D.,

Petitioner,

The Inspector General

DECISION

It is my decision to sustain the determination of the Inspector General (I.G.) to exclude Allison Purtell, M.D. (Petitioner) from participating in the Medicare, Medicaid, and all other federal health care programs until Petitioner's license to practice medicine or provide health care in the State of California is reinstated. I base my decision upon the applicable law and regulations, the arguments of the parties, and evidence which proves that Petitioner's license was revoked by the Division of Medical Quality of the Medical Board of the State of California (State Board). Additionally, I find that, when an exclusion imposed by the I.G. is concurrent with the remedy imposed by a State licensing authority, as occurs in this case, there is no issue of reasonableness and such an exclusion is mandated by law.

By letter dated July 31, 2000, the I.G. notified Petitioner that she was being excluded from participating in the Medicare, Medicaid, and all other federal health care programs as defined in section 1128B(f) of the Social Security Act (Act). The I.G. informed Petitioner that she was being excluded based on section 1128(b)(4) of the Act because her license to practice medicine or provide health care in the State of California was revoked, suspended, or otherwise lost for reasons bearing on her professional competence, professional performance, or financial integrity. The I.G. also informed Petitioner that the exclusion would be in effect as long as her license to practice medicine in California remained revoked.

Petitioner filed a request for hearing on August 11, 2000, and this case was assigned to me for adjudication. The I.G. is represented in this case by the Office of Counsel. Although advised of her right to retain legal representation, Petitioner elected to appear on her own behalf. The parties agreed that this matter could be decided based on written briefs and documentary evidence, and that an in-person hearing was unnecessary. The I.G. submitted a brief and four proposed exhibits, which have been identified as I.G. Exhibits (I.G. Exs.) 1 - 4. Petitioner submitted no written arguments or documentary evidence in support of her contentions. The extent of her arguments are contained in her request for hearing. On April 18, 2001, I served notice on Petitioner that although she had been granted until November 27, 2000, to respond to the I.G.'s motion for summary affirmance, she had failed to do so. I further advised the parties that I was closing the record and proceeding to the issuance of a decision in this case. Petitioner did not object to the I.G.'s proposed exhibits. Therefore, I admit I.G. Exs. 1-4 into evidence.

It is my finding that the State Board revoked Petitioner's license to practice medicine for reasons bearing on her professional competence, professional performance, or financial integrity.

Whether the I.G. had a basis upon which to exclude Petitioner from participating in the Medicare, Medicaid, and all other federal health care programs.

Under section 1128(b) of the Act, the Secretary of Health and Human Services (Secretary) may exclude individuals from receiving payment for services that would otherwise be reimbursable under Medicare, Medicaid, or other federal health care programs. The Act defines "federal health care program" as "any plan or program that provides health care 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, as defined in section 1128(h)." Act, � 1128B(f).

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 a State licensing authority, or otherwise lost for reasons bearing on that individual's professional competence, professional performance, or financial integrity. According to section 1128(c)(3)(E) of the Act, the period of exclusion of an individual who is excluded pursuant to section 1128(b)(4) shall not be less than the period during which the individual's license to provide health care is revoked, suspended, or surrendered. The regulations promulgated at 42 C.F.R. �� 1001.501 and 1001.1901(b) mirror the statutory provisions set forth in the Act.

1. Petitioner was licensed by the State of California to practice medicine and surgery.

2. On March 3, 2000, the State Board issued an Order revoking Petitioner's license, Certificate No. G-48608, to practice medicine and surgery in the State of California. I.G. Ex. 4.

3. The March 3, 2000 Order was based on Findings and Conclusions of the State Board. The significant findings included:

a. Dr. Purtell engaged in unprofessional conduct based on repeated negligent acts of arriving at improper diagnoses solely on the bases of nonspecific clinical symptoms and without considering the results of laboratory tests;

b. Dr. Purtell engaged in unprofessional conduct by reason of her incompetence;

c. Dr. Purtell engaged in unprofessional conduct based on repeated acts of excessive prescribing of drugs, as determined by the standard of the community of physicians and surgeons. I.G. Ex. 4, at 25, 26.

4. The I.G. notified Petitioner by letter dated July 31, 2000, that, pursuant to section 1128(b)(4) of the Act, she was being excluded from participating in the Medicare, Medicaid, and all other federal health care programs. I.G. Ex. 1.

5. Section 1128(b)(4)(A) of the Act authorizes the I.G. to exclude an individual from participation in the Medicare, Medicaid, and all federal health care programs as defined in section 1128B(f) of the Act, whose license to provide healthcare has been revoked or suspended by any State licensing authority for reasons bearing on the individual's professional competence, professional performance, or financial integrity.

6. Petitioner possessed a license to practice medicine and provide health care within the scope of section 1128(b)(4) of the Act.

7. The Order of the State Board resulted in the revocation of Petitioner's medical license.

8. The I.G. was authorized to exclude Petitioner pursuant to section 1128(b)(4) of the Act because the revocation of Petitioner's license was for reasons bearing on her professional competence, professional performance, or financial integrity.

9. Where the exclusion is imposed pursuant to section 1128(b)(4) 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. Section 1128(c)(3)(E) of the Act.

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

11. Section 1128(b) of the Act authorizes the Secretary to bar excluded individuals from receiving payment for services that would otherwise be reimbursable under Medicare, Medicaid, or other federal health care programs.

Discussion

The I.G. had a basis for excluding Petitioner.

Petitioner is a medical doctor who was licensed to practice medicine and provide health care in the State of California. On September 17, 1999, Petitioner was cited by the State Board for allegedly having failed to properly diagnose patients, medical incompetence, and excessive prescribing of drugs. The matter went before an Administrative Law Judge of the State of California Office of Hearings on September 27 and 28, 1999, in San Diego, California. The proposed decision was submitted to the State Board on October 7, 1999. The Board declined to adopt the proposed decision, and to that effect, issued an Order of Nonadoption on November 17, 1999. The State Board held a hearing, including oral argument, on February 4, 2000. Pursuant to a decision issued on March 3, 2000, the Board revoked Petitioner's license to practice medicine in California, effective April 3, 2000. I.G. Ex. 4.

By letter dated July 31, 2000, the I.G. notified Petitioner that she was being excluded from participating in the Medicare, Medicaid, and all other federal health care programs pursuant to section 1128(b)(4) of the Act because her license to practice medicine or provide health care in the State of California was revoked, suspended, or otherwise lost for reasons bearing on her professional competence, professional performance, or financial integrity.

In her August 11, 2000 request for hearing, Petitioner contends that the State Board arrived at its decision based on the expert testimony of one Dr. Wishnow. She also defended the treatment she provided for J. S., a patient. In reviewing the State Board's decision, however, I note that reliance was placed on the expert opinion of Dr. Georges M. Argoud. There is no mention of Dr. Wishnow. I.G. Ex. 4, at 6. Additionally, while Petitioner defends her treatment of J. S., the decision of the Board refers to a continuing pattern of misconduct spanning a period of more than six years and involving many patients. I.G. Ex. 4, at 22.

More importantly, in order to consider whether Petitioner's license was revoked for reasons bearing on her professional competence, professional performance, or financial integrity, I must take the record of the revocation proceedings as I find it. The law does not permit me to look behind the State revocation proceedings and re-adjudicate the matter. The Departmental Appeals Board has held that collateral attacks on the actions of State licensing authorities are not permitted in the context of an exclusion proceeding under section 1128(b)(4) of the Act. Mary E. Groten, DAB CR518 (1998); Milan Kovar, M.D., DAB CR550 (1998). Thus, Petitioner's defense based on personal animosities or evil motives attributed to her detractors is not relevant.

The language of the statute is not open to dispute. The Secretary may exclude "any individual . . . whose license to provide health care has been revoked or suspended by any State licensing authority . . . for reasons bearing on the individual's . . . professional competence, professional performance, or financial integrity." Act, � 1128(b)(4)(A). There are two aspects to this legal provision. The first requirement, as is pertinent here, is that the individual's license to provide health care be revoked or suspended by any State licensing authority. The evidence in this case shows this to be a fact, and Petitioner does not question it. The second requirement is that the suspension or revocation be for reasons bearing on professional competence, professional performance, or financial integrity. The second requirement is amply met by the State Board decision.

In view of the foregoing, I conclude that Petitioner's license to practice medicine or provide health care in the State of California was revoked for reasons bearing on her professional competence or professional performance.

Finally, pursuant to section 1128(c)(3)(E) of the Act, "no issue of reasonableness exists" where the length of the exclusion imposed by the I.G. is coterminous with the revocation, suspension, or surrender of a State license. Maurice Labbe, DAB CR488 (1997), at 3. Section 1128(c)(3)(E) of the Act requires that Petitioner be excluded for a period no less than the period during which her license is revoked, suspended, or surrendered. Thus, in this case, the coterminous exclusion by the I.G. is the mandated minimum period required by law.

It is my decision that the I.G. was authorized to exclude Petitioner pursuant to section 1128(b)(4) of the Act. Additionally, I conclude that the period of exclusion imposed by the I.G. is mandated by section 1128(c)(3)(E) of the Act.

Jose A. Anglada

Administrative Law Judge