SUBJECT:

Fadi Ahmad Sobh, R. Ph.,

Petitioner,

The Inspector General

DECISION

This case is before me pursuant to a request for hearing filed by Fadi Ahmad Sobh, R. Ph. (Petitioner) on July 12, 2002. Social Security Act (Act), section 1128(f); 42 C. F. R. � 1005.2.

By letter dated June 28, 2002 the Inspector General (I.G.) notified Petitioner that he was being excluded from participating in the Medicare, Medicaid, and all federal health care programs as defined in section 1128B(f) of the Act. Administrative Law Judge (ALJ) Exhibit (Ex.) 1. ⁽¹⁾ The I.G. further informed Petitioner that the exclusion was based on section 1128(b)(4) of the Act, in view of the revocation, suspension, loss, or surrender of his license to practice medicine or provide health care in the State of Michigan for reasons bearing on his professional competence, professional performance, or financial integrity. The exclusion would be in effect as long as his pharmacological license remained revoked, suspended, surrendered, or otherwise lost.

On August 21, 2002 I convened a telephone conference call with the parties. The I.G. is represented in this case by the Office of Counsel. Petitioner is represented by Mr. Christopher Pencak, Esq. The parties agreed that this matter could be decided based on written arguments and documentary evidence, and that an evidentiary hearing was unnecessary. A Briefing Order was issued on August 22, 2002 which established deadlines for the parties' submission of their respective briefs and proposed exhibits. The I.G. submitted a memorandum of law accompanied by three proposed exhibits on October 21, 2002. These have been identified as I.G. Exhibits (I.G. Exs.) 1 - 3, and admitted into the record without objection. Petitioner failed to submit his brief by the October 21, 2002 deadline established in my August 22^nd Order. By letter dated November 7, 2002 I reminded Petitioner of his failure to comply with the briefing deadline, and admonished him that I would close the record and issue my decision if nothing was forthcoming by November 22, 2002. To date, Petitioner has not filed any written arguments in support of his contentions nor offered any documentary evidence for my consideration. I have, therefore proceeded to close the record and issue a decision in this case based on Petitioner's request for hearing and the submissions of the I.G. ⁽²⁾

It is my decision to sustain the determination of the I.G. to exclude Petitioner from participating in the Medicare, Medicaid, and all other federal health care programs, for a period coterminous with the loss of his license to practice medicine or provide health care in the State of Michigan. I base my decision on the documentary evidence, the applicable law and regulations, and the arguments of the parties. It is my finding that Petitioner's license was revoked by the State of Michigan, Board of Pharmacy Disciplinary Subcommittee (DSC) for reasons bearing on his professional competence, professional performance, or financial integrity. Additionally, I find that when an exclusion imposed by the I.G. runs concurrent with the remedy imposed by the State licensing authority, such exclusion is mandated by law.

1. 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; and

2. Whether the length of the exclusion imposed and directed against Petitioner by the I.G. is unreasonable.

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, section 1128B(f).

Section 1128(b)(4)(B) of the Act authorizes the I.G. to exclude an individual who surrenders a license to provide health care, while a formal disciplinary proceeding is pending before a state licensing authority, and the proceeding concerns the individual's professional competence, professional performance, or financial integrity. According to section 1128(c)(3)(E) of the Act, the minimum term of exclusion of an individual who is excluded pursuant to section 1128(b)(4) must be coterminous with the term of loss, suspension, revocation, or surrender of that individual's license to provide health care.

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 Michigan to practice pharmacy.

2. On July 10, 2000 an Administrative Complaint was filed against Petitioner before the Bureau of Hearings, State of Michigan Department of Consumer and Industry Services. I.G. Ex. 2, at 1.

3. On or about August 2000 the Administrative Complaint was withdrawn and replaced by a First Superseding Administrative Complaint. Id.

4 The Complaint alleged that Petitioner allowed someone else to impersonate him in connection with an examination or application for license to practice pharmacy. Id., at 3-4.

5. The complaint also alleged that Petitioner had used fraud or deceit in obtaining his pharmacist license. Id., at 4.

6. On January 18, 2000 the DSC issued an Order revoking Petitioner's pharmacy license based on his violations of the Michigan Public Health Code. I.G. Ex. 1, at 2. The revocation constitutes an act within the scope of section 1128(b)(4) of the Act.

7. Section 1128(b)(4) of the Act authorizes the I.G. to exclude an individual whose license was revoked by the State's licensing authority due to the individual's professional competence, professional performance, or financial integrity. 42 U.S.C. � 1320a-7(b)(4).

8. On June 28, 2000 the I.G. notified Petitioner that he was being excluded from participation in Medicare, Medicaid, and all federal health care programs, pursuant to section 1128(b)(4) of the Act. ALJ Ex. 1.

9. The I.G. notified Petitioner that the program exclusion was effective 20 days from the date of the letter and would remain in effect as long as Petitioner's license was revoked, suspended, or otherwise lost. Id.

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

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

12. 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. Act, section 1128(c)(3)(E).

15. 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.

16. 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

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

Petitioner was a pharmacist licensed to practice in the State of Michigan. On August 2, 2000 the Health Professionals Division within the Department of Attorney General filed a First Superseding Administrative Complaint with the DSC for reasons bearing on his professional competence, professional performance, or financial integrity. I.G. Ex. 1. On January 18, 2002 the DSC issued an order revoking Petitioner's pharmacy license based on his violations of the Michigan Public Health Code. Id., at 1-3.

By letter dated June 28, 2000 the I.G. notified Petitioner that he was being excluded from participating in the Medicare, Medicaid, and all federal health care programs pursuant to section 1128(b)(4) of the Act because his license to practice medicine or provide health care in the State of Michigan was revoked, suspended, or otherwise lost, or surrendered for reasons bearing on his professional competence, professional performance, or financial integrity.

In his request for hearing, Petitioner alleged that the State of Michigan ALJ found that the State had failed to prove its complaint. On review however, says Petitioner, the DSC reversed the factual findings of the Michigan State ALJ, and revoked his license. Petitioner further argued that due to the extreme likelihood that the Michigan Court of Appeals will reverse the DSC determination, the I.G. should reverse its decision to terminate him from participation in federal heath care programs.

The I.G. argues that exclusions under section 1128(b)(4) of the Act are derivative actions, that is, the I.G.'s authority to exclude derives from the state licensing board's action taken against Petitioner. Thus, contends the I.G., the revocation action in this case is grounded exclusively on the revocation of Petitioner's pharmacist license. That is the sole evidence the I.G. requires to proceed under this exclusion authority. Charles J. Barranco, M.D., DAB CR187 (1992).

The clear language of the statute is not open to dispute. The Secretary 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.

Act, sections 1128(b)(4)(A), (b)(4)(B).

There are two aspects to this legal provision. The first requirement, pertinent to the present case, is that the individual's or entity'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 dispute it. The second requirement is that the suspension or revocation be for reasons bearing on professional competence, professional performance, or financial integrity. Clearly, the Michigan Board of Pharmacy's finding that Petitioner obtained a license to practice pharmacy by fraud and deceit has a bearing on his professional competence, professional performance, or financial integrity.

In view of the foregoing, I conclude that Petitioner's license to provide health care in the State of Michigan was revoked for reasons bearing on his professional competence, professional performance, or financial integrity.

2. The length of the exclusion is not unreasonable.

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, surrender, or loss of a State license. Maurice Labbe, DAB CR488 (1997), at 3. That section requires that Petitioner be excluded for a period no less than the period during which her license is revoked, suspended, surrendered, or lost. The coterminous exclusion by the I.G. in this case 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 indefinite period of exclusion imposed by the I.G. is the minimum period mandated by section 1128(c)(3)(E) of the Act.

José A. Anglada
Administrative Law Judge

1. Inexplicably, the I.G. did not submit the exclusion letter served on Petitioner in this case. I am, therefore, entering that letter into the record sua sponte, as ALJ Ex. 1.

2. In the absence of a brief by Petitioner, I draw his contentions from the request for hearing filed by legal counsel on his behalf on July 29, 2002.