SUBJECT:

Ioan Cheregi, M.D.,

Petitioner,

The Inspector General

DECISION

I decide that the Inspector General (I.G.) is authorized, pursuant to section 1128(b)(5) of the Social Security Act (Act), to exclude Petitioner, Ioan Cherigi, M.D., from participating in Medicare and other federally funded health care programs. The I.G. is authorized to exclude Petitioner because Petitioner was terminated from participating in the Illinois Medical Assistance Program (Illinois Medicaid) for reasons bearing on his professional competence or professional performance. I also find the length of Petitioner's exclusion - until he is reinstated to participate in Illinois Medicaid - to be reasonable.

I. Background and undisputed facts

A. Background

On February 28, 2001, the I.G. notified Petitioner that he was being excluded from participating in Medicare and other federally funded health care programs. The I.G. informed Petitioner that she was excluding him pursuant to section 1128(b)(5) of the Act based on Petitioner's termination from participation in Illinois Medicaid. The I.G. advised Petitioner that he would be excluded until he is reinstated to participate in Illinois Medicaid.

Petitioner requested a hearing and the case was assigned to me for a hearing and a decision. Neither party advised me that there was a need to present testimony in person. I established a schedule for the parties to submit briefs and exhibits. The I.G.'s submission included four proposed exhibits (I.G. Ex. 1 - I.G. Ex. 4). Petitioner's submission also included four proposed exhibits (P. Ex. 1 - P. Ex. 4). Neither party has filed objections to my admitting any of the proposed exhibits into evidence. Therefore, I receive into evidence I.G. Ex. 1 - I.G. Ex. 4 and P. Ex. 1 - P. Ex. 4.

B. Undisputed facts

The following facts are not disputed. Petitioner is a physician who practices medicine in Illinois. On July 27, 1998, the Illinois Department of Public Aid (Department of Public Aid) issued a statement of allegations against Petitioner. It charged that Petitioner failed to treat several of his patients appropriately. I.G. Ex. 2. It asserted that Petitioner's alleged failures to treat his patients appropriately resulted in the provision of medical goods or services to patients that were in excess of their needs, were potentially harmful to them, and were of grossly inferior quality. Id. at 2, 3, 4, 5, 6, 8, 9, 10, 11. Based on these allegations the Department of Public Aid sought to terminate Petitioner's participation in Illinois Medicaid. Id. at 12.

Petitioner was given a hearing concerning these charges before an Illinois State administrative law judge. The State administrative law judge issued a report in which she recommended that Petitioner's participation in Illinois Medicaid be terminated. I.G. Ex. 3. The report makes numerous findings that Petitioner provided care to his patients that was potentially harmful, of grossly inferior quality, and in excess of patients' needs. Id.

On July 14, 2000, the Director of the Department of Public Aid (Director) notified Petitioner that she had reviewed the report of the State administrative law judge along with exceptions to that report submitted by Petitioner's attorney. I.G. Ex. 4. She advised Petitioner that it was her conclusion that the recommendation to terminate his participation in Illinois Medicaid was warranted. Id. The Director advised Petitioner that she had adopted the State administrative law judge's recommended decision as her final decision, meaning that Petitioner's eligibility to participate in Illinois Medicaid was terminated. Id. She advised Petitioner that her decision was the final and binding decision of the Department of Public Aid. Id.

Petitioner appealed this decision to Illinois State Court. On March 2, 2001, the Circuit Court of Cook County, Illinois, Chancery Division, decided Petitioner's appeal. The court affirmed in part and reversed in part the Director's decision. P. Ex. 1. The court found that there was sufficient evidence in the record of Petitioner's administrative hearing to find that Petitioner's conduct resulted in the provision of medical goods or services which were in excess of patients' needs or potentially harmful to patients. Id. at 6. However, the court found also that the Director's determination that Petitioner's conduct resulted in the provision of medical goods or services which were of grossly inferior quality was against the manifest weight of the evidence. Id. The court concluded that, based on its review of the record that was generated before the State administrative law judge, the sanction of termination of Petitioner's participation in Illinois Medicaid did not appear to be unreasonable. Id. at 8 - 9.

Petitioner then appealed the Circuit Court's decision to the First District Appellate Court of Illinois. P. Ex. 2. A cross-appeal was filed by the Department of Public Aid. P. Ex. 3. These appeals are pending.

II. Issues, findings of fact and conclusions of law

A. Issues

The issues in this case are whether:

1. The I.G. is authorized to exclude Petitioner pursuant to section 1128(b)(5) of the Act; and,

2. The term of the exclusion that the I.G. imposed against Petitioner is unreasonable.

B. 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 as a separate heading. I discuss each Finding in detail.

1. The I.G. was authorized to exclude Petitioner pursuant to section 1128(b)(5) of the Act.

Section 1128(b)(5)(B) of the Act provides, among other things, that the Secretary of the United States Department of Health and Human Services (or his delegate, the I.G.) may exclude any individual who has been sanctioned under a State health care program:

for reasons bearing on . . . [that] individual's . . . professional competence, professional performance, or financial integrity.

This statutory basis for excluding Petitioner exists in this case. Petitioner was sanctioned by a State health care program for reasons bearing on his professional competence and professional performance.

I take notice that Illinois Medicaid is a State health care program. The termination of Petitioner's participation in Illinois Medicaid is a "sanction" against Petitioner within the meaning of the Act. The State administrative law judge findings that are the basis for termination of Petitioner's participation in Illinois Medicaid and which were sustained on appeal to the Circuit Court of Cook County, Illinois, bear directly on Petitioner's professional competence and performance as a physician. Petitioner was found to have provided goods and services to patients that were in excess of those patients' needs or which were potentially harmful to patients.

Petitioner argues that it is premature to exclude him because all of his appeals have not been exhausted. However, there is no language, either in the Act or in implementing regulations at 42 C.F.R. Part 1001, which requires the I.G. to defer imposing an exclusion pursuant to section 1128(b)(5) until the excluded individual exhausts his or her appeals of a State sanction determination. The I.G. is authorized to act upon the imposition of a State sanction. I conclude, therefore, that the I.G. is under no constraint here to defer imposing an exclusion against Petitioner until Petitioner exhausts his appeals. Of course, if Petitioner ultimately is successful in appealing the sanction that was imposed against him, then the basis for his exclusion would disappear, and the exclusion would be rescinded.

Petitioner argues also that the I.G. abused her discretion in determining to impose an exclusion against Petitioner before Petitioner exhausted his appeals of the State sanction determination. As I have just discussed, there is no provision of the Act or of implementing regulations which requires the I.G. to wait until an excluded individual exhausts his or her appeals before imposing an exclusion based on a State sanction determination. In any event, pursuant to 42 C.F.R. � 1005.4(c)(2), I have no authority to decide whether the I.G. abused her discretion in determining to impose an exclusion under any of the sub-parts of section 1128(b) of the Act, including section 1128(b)(5).

Finally, Petitioner asserts that the I.G.'s exclusion determination deprives him of his rights under the United States Constitution because he has been stigmatized by the exclusion determination before he has exhausted all of his appeals. I have no authority to address this argument. As I discuss above, the I.G.'s exclusion determination in this case is consistent with the authority conferred on the I.G. by section 1128(b)(5) of the Act and implementing regulations. Therefore, in order to find that the I.G.'s actions taken pursuant to the authority conferred by the Act and regulations are unconstitutional, I would necessarily have to find that the authorizing section of the Act and implementing regulations are unconstitutional and invalid. I am expressly prohibited from doing so. 42 C.F.R. � 1005.4(c)(1).

I note that the exclusion determination in this case merely reflects the action taken against Petitioner by a State agency. It is not, as Petitioner argues, an action taken prematurely against Petitioner by the I.G. The termination of Petitioner's participation in Illinois Medicaid was not held in abeyance, nor was it stayed, pending the disposition of his appeal of that action. Petitioner presently is terminated from participating in Illinois Medicaid. The I.G.'s determination to exclude Petitioner thus reflects Petitioner's present status. And I note that, in this case, the I.G.'s exclusion determination is coterminous with the State termination of Petitioner's participation in Illinois Medicaid. If Petitioner is reinstated to that program he is eligible for reinstatement to other federally funded health care programs.

2. The term of the exclusion that the I.G. imposed against Petitioner is not unreasonable.

The I.G. determined to exclude Petitioner until he is reinstated to participate in Illinois Medicaid. This exclusion is the minimum exclusion that the I.G. may impose pursuant to section 1128(b)(5) of the Act. 42 C.F.R. � 1001.601(b)(1). And, therefore, it is reasonable as a matter of law.

Steven T. Kessel

Administrative Law Judge