SUBJECT:

Edmund B. Eisnaugle, D.O.,

Petitioner,

The Inspector General

DECISION

By letter dated August 30, 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. 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, or loss of his license to practice medicine or provide health care in the State of Iowa for reasons bearing on his professional competence, professional performance, or financial integrity. The exclusion would be in effect as long as his license to practice medicine in Iowa remained suspended.

The I.G. is represented in this case by the Office of Counsel to the I. G. Although advised of his right to representation, Petitioner elected to appear on his own behalf. The parties agreed that this matter could be decided based on written arguments and documentary evidence, and that an evidentiary hearing was unnecessary. The I.G. submitted a memorandum of law accompanied by five proposed exhibits. These have been identified as I.G. Exhibits 1 - 5 (I.G. Exs. 1 - 5). Petitioner submitted no written arguments or documentary evidence in support of his contentions. The extent of his arguments are contained in the request for hearing. On January 29, 2003 I served notice on Petitioner that although he had been granted until January 10, 2003 to submit a brief setting forth argument in support of his contentions, nothing had been forthcoming. At that time I granted Petitioner a final opportunity to file his brief not later than February 6, 2003. Since Petitioner has provided no argument in support of his claims, in spite of ample time to do so, I have proceeded to close the record and issue a decision.

It is my decision to sustain the determination of the I.G. to exclude Petitioner, Edmund B. Eisnaugle, D.O., from participating in the Medicare, Medicaid, and all other federal health care programs, for a period coterminous with the suspension of his license to practice medicine or provide health care in the State of Iowa. I base my decision on the documentary evidence, the applicable law and regulations, and the arguments of the parties. It is my finding that the Board of Medical Examiners of the State of Iowa (State Board) indefinitely suspended Petitioner's license to practice medicine 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.

ISSUES

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.

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

APPLICABLE LAW AND REGULATIONS

Under section 1128(b) of the Act, the Secretary of Health & 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)(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 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, or revocation 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.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

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

2. The State Board determined that Petitioner willfully violated a lawful order of the Board to complete a comprehensive physical, neuropsychological, and substance abuse evaluation in violation of Iowa Code section 148.6(2)(i)(2001) and 653 IAC 12.4(34). I.G. Ex. 2 at 6.

3. The State Board also concluded that Petitioner was unable to practice medicine with reasonable skill and safety due to a mental or physical condition, in violation of Iowa Code section 148.6(2)(h)(2001). I.G. Ex. 2 at 7.

4. On November 1, 2001 the State Board issued an order indefinitely suspending Petitioner's license to practice osteopathic medicine and surgery in the Sate of Iowa, until such time as he successfully completes the Board ordered evaluations and convinces the Board, through an Application for Reinstatement, that the reason for the indefinite suspension no longer exists and it is in the public interest for his license to be reinstated. I. G. Ex. 2 at 7. 4. On August 30, 2002 the I.G. served notice on Petitioner that he was being excluded from participating in the Medicare, Medicaid, and all 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), whose license 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 provide health care within the scope of section 1128(b)(4) of the Act.

7. The Order of the State Medical Board of Iowa resulted in an indefinite suspension 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 suspension of Petitioner's license was for reasons bearing on his 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

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

Petitioner is a doctor of osteopathic medicine who was licensed to practice medicine and provide health care in the State of Iowa. On May 3, 2001 Petitioner was cited by the State Medical Board of Iowa for allegedly having failed to follow a lawful directive issued by the State Board to submit to a medical evaluation in violation of Iowa Code § 148.6(2)(i)(2001) and 653 IAC 12.4(34). The State Board also charged Petitioner with the inability to practice medicine with reasonable skill and safety due to a medical condition. I.G. Ex. 5. The State Board held a hearing in Des Moines, Iowa on July 18, 2001 and issued a decision suspending Petitioner's license indefinitely on November 3, 2001.

By letter dated August 30, 2002 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 Iowa was revoked, suspended, or otherwise lost for reasons bearing on his professional competence, professional performance, or financial integrity.n his request for hearing Petitioner contends that he has a constitutionally protected right to practice medicine, and that such right may not be taken away without due process of law. The issue before me, however; is whether the I.G. had a basis for excluding Petitioner from Medicare, Medicaid, and all other federal healthcare programs. I.G. Ex. 2 at 1-2. Inasmuch as Petitioner's license to practice medicine in Iowa was indefinitely suspended, and that suspension was related to his professional competence or performance, I conclude that a basis exists for the I.G.'s exclusion action. Moreover, I have no authority to entertain Petitioner's constitutional challenge. I do note, nonetheless, that the Departmental Appeals Board has recognized that the courts have rejected the notion that a Medicare provider has a property interest in, and an expectation of continued participation in such federal program. Hillman Rehabilitation Center, DAB No. 1611 (1997).

Petitioner also claims that he is entitled to a reasonable opportunity to establish his competence and ability to practice medicine. If Petitioner believed that he was not afforded an opportunity to establish his competence to practice medicine, that is a matter that he could have taken up with the State of Iowa legal system. This is not the appropriate forum to raise that issue. Having said that, I must also add that a perusal of the State Board's decision clearly shows that Petitioner was afforded opportunities to establish his fitness to practice medicine in the State of Iowa. Pertinent to this is the fact that the State Board suspended Petitioner's license until such time as he completes the State Board ordered evaluations.

The clear language of the statute is not open to dispute. The Secretary may exclude "any individual or entity 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." Section 1128(b)(4)(A). There are two aspects to this legal provision. The first requirement, as is pertinent here, 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 question it. The second requirement is that the suspension or revocation be for reasons bearing on professional competence, professional performance, or financial integrity. This is amply evident from the decision issued by the State Board.

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

2. The length of the exclusion is not unreasonable.

The State Medical Board of Iowa suspended Petitioner's license to practice medicine and surgery. 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). That section requires that Petitioner be excluded for a period no less than the period during which his 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.

CONCLUSION

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.

Jose A. Anglada
Administrative Law Judge