Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
In the Case of:
Lakshmi N. Murty Achalla, M.D.,
Petitioner,
- v. -
The Inspector General.
DATE: October 18, 1990
Docket No. C-146
DECISION
Petitioner requested a hearing to contest a determination by the Inspector
General (I.G.) to exclude
Petitioner from participation in the Medicare program and certain federally-assisted
State health care
programs. The I.G. alleged that the exclusion was authorized by section 1128(b)(4)(A)
of the Social
Security Act (Act).
On May 3, 1990, I conducted an evidentiary hearing in Albany, New York. Based
on the evidence
introduced by both parties at the hearing, and on the applicable law, I conclude
that the I.G. had authority
to exclude Petitioner and that a three-year period of exclusion is reasonable
under the circumstances of this
case. I note that at the end of that period, Petitioner may apply for reinstatement
under section 1128(g)(1)
of the Act.
BACKGROUND
By letter dated July 25, 1989, the I.G. notified Petitioner that he was being
excluded from participation in
the Medicare and Medicaid programs as a result of the fact that the Florida
Department of Professional
Regulation, Board of Medicine (Florida Board of Medicine) had revoked Petitioner's
license to practice
medicine in the State of Florida. The I.G. advised Petitioner that he would
be eligible to apply for
reinstatement to the Medicare and Medicaid programs if he obtained a valid license
to practice medicine in
the State of Florida. By letter dated August 2, 1989, Petitioner timely requested
a hearing and, thereafter,
the case was assigned to me for a hearing and decision.
APPLICABLE STATUTES AND REGULATIONS
I. The Federal Statute.
Section 1128 of the Act is codified at 42 U.S.C. 1320a-7 (West U.S.C.A., 1989
Supp.). Section
1128(b)(4)(A) of the Act permits the I.G. to exclude from Medicare and Medicaid
participation:
any individual or entity whose license to provide health care has been revoked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 license, for reasons
bearing on the individual's or
entity's professional competence, professional performance, or financial integrity.
II. The Federal Regulations.
The applicable federal regulations are codified in 42 C.F.R., Parts 498, 1001,
and 1002 (1989). Part 498
governs the procedural aspects of this exclusion case; Parts 1001 and 1002 govern
the substantive aspects.
ISSUES
The issues are whether:
1. Petitioner's license to provide health care was revoked for reasons bearing
on his professional
competence, professional performance, or financial integrity, within the meaning
of section 1128(b)(4)(A)
of the Act;
2. Section 1128(b)(4)(A) of the Act permits an exclusion under the circumstances of this case;
3. An indefinite exclusion is required in this case as a matter of law; and
4. The period of Petitioner's exclusion is reasonable and appropriate.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. Petitioner is a physician specializing in physical medicine and rehabilitation
(physiatry) and held a valid
license to practice in the State of Florida prior to December, 1988. I.G. Ex.
1/1.
2. On March 24, 1987, in the State of Pennsylvania, Petitioner delivered to
another individual 100 tablets
of oxycodone hydrochloride (generic Percocet) obtained by telephoning a false
prescription to a local
pharmacy. Percocet is a Schedule II narcotic controlled substance. I.G. Ex.
2, I.G. Ex. 8/3-4.
3. On March 24, 1987, a criminal information was filed against Petitioner in
a Juniata County,
Pennsylvania, court charging him with one count of delivering a controlled substance:
1) not in good faith
within the scope of his professional practice; 2) outside of the patient relationship;
and 3) not in accordance
with treatment principles accepted by a responsible segment of the medical profession.
I.G. Ex. 8/5; 35
Penn. Stat. Ann. section 780-113(a)(14).
4. On August 3, 1987, in the Pennsylvania Court of Common Pleas, Petitioner
pled guilty to, and was
convicted of, the criminal offense alleged in the March 24, 1987 criminal information.
5. In December, 1988, the Florida Board of Medicine revoked Petitioner's license
to practice medicine
based on the events of March 24, 1987, including telephoning a false prescription
for a controlled
substance, and on Petitioner's subsequent conviction. I.G. Ex. 1.
6. The Florida Board of Medicine is a state licensing agency within the meaning
of 1128(b)(4)(A) of the
Act.
7. Telephoning a prescription to a pharmacy is a professional activity and
is related to Petitioner's
professional competence and professional performance.
8. Petitioner's license was revoked by the Florida Board of Medicine for reasons
bearing on his
professional competence and professional performance with the meaning of section
1128(b)(4)(A) of the
Act.
9. By letter dated July 25, 1989, the I.G. notified Petitioner that he would
be excluded from the Medicare
and Medicaid programs until he obtained a valid license to practice medicine
in Florida. I.G. Ex. 4.
10. Section 1128(b)(4)(A) authorizes the Secretary of Health and Human Services
(and his delegate, the
I.G.), to impose and direct exclusions of individuals whose license to provide
health care has been revoked
by any State licensing authority for reasons bearing on professional competence
or professional
performance. 42 U.S.C.A. 1320a-7(b)(4)(A).
11. The I.G. had authority to exclude Petitioner under section 1128(b)(4)(A) of the Act.
12. An indefinite exclusion is not required by section 1128(b)(4)(A) of the Act.
13. A purpose of section 1128(b)(4) of the Act is to protect beneficiaries
and program funds by excluding
individuals or entities, who by their conduct have demonstrated a risk that
they may engage in fraud,
substandard services, abuse, or unsafe practices, until such time as those excluded
can demonstrate that
such risk no longer exists. S. Rep. No. 109, 100th Cong., 1st Sess. 2, reprinted
in 1987 U.S. Code Cong. &
Admin. News 682.
14. An additional purpose of section 1128(b)(4) is to prevent individuals or
entities from evading
sanctions by moving from their home jurisdiction to avoid sanctions imposed
there, and thus protect the
integrity of State regulation of medical professional standards. Id., pp. 3-4.
15. The legislative history of the Act illustrates that Congress intended that,
in setting the period of
exclusion in this type of case, such factors as the seriousness of the offense,
the impact of both the offense
and the exclusion on beneficiaries, and any mitigating circumstances, such as
the availability of alternate
providers of needed health care services, be considered. S. Rep. No. 109, 100th
Cong., 1st Sess. 3,
reprinted in 1987 U.S. Code Cong. & Admin. News 682, 693.
16. The criminal offense of which Petitioner was convicted was a serious offense
involving an abuse of
physicians' privileges to prescribe controlled substances. I.G. Exs. 1 and 8.
17. Petitioner was sentenced to a three-year term of probation, which was subsequently
reduced to sixteen
months. I.G. Ex. 8; Tr. 106-07.
18. Petitioner's criminal conduct did not have an adverse impact on program
beneficiaries or recipients, or
involve the Medicare or Medicaid programs.
19. Petitioner has never been the subject of formal complaints by either patients
or other health care
providers, other than one patient whose narcotic drugs were taken away by Petitioner.
Tr. 91.
20. Petitioner had attempted to limit distribution of controlled substances
at the Altoona Veterans
Administration (VA) Medical Center. Tr. 92-96.
21. Petitioner was suffering from a depressive illness which affected his judgment
during the period in
which he engaged in criminal conduct. Tr. 104-05.
22. Petitioner fulfilled the terms of his probation. Tr. 106-07.
23. Since his conviction, Petitioner has participated in the impaired physician
program in both
Pennsylvania and New York, and continues to participate in the New York impaired
physician program.
Tr. 105-07; P. Ex. 1.
24. Since his conviction, Petitioner has continued psychotherapy and has demonstrated
substantial
improvement. P. Ex. 1; Tr. 62-69.
25. Petitioner has been satisfactorily employed since December 1987 at the
Harlem Valley Psychiatric
Center and has also been working with physically disabled prisoners at the Green
Haven Correctional
Facility in New York. I.G. Ex. 3; P. Ex. 2. Green Haven has the only unit for
disabled and handicapped
inmates in the New York correctional system. P. Ex. 2; Tr. 115.
26. Petitioner's conduct subsequent to his conviction demonstrates that he
is unlikely to again abuse his
privileges as a physician.
27. Petitioner does not pose a substantial risk of harm to beneficiaries or
recipients or to the integrity of
the Medicare and Medicaid programs.
28. Petitioner was not practicing medicine or residing in Florida at the time
his license was revoked in that
State, nor does he intend to practice medicine or reside in Florida in the future.
29. Based on the events of March 24, 1987, and Petitioner's subsequent conviction,
the Pennsylvania Board
of Medicine revoked Petitioner's license to practice medicine in the State of
Pennsylvania and the Georgia
Board of Medical Examiners placed Petitioner's license to practice medicine
in the State of Georgia on
"inactive status" subject to revocation on certain conditions. I.G.
Exs. 6 and 9.
30. Petitioner has been practicing medicine and residing in the State of New
York since December 1987
and did not move to New York to avoid sanction proceedings or sanctions. Tr.
106.
31. Petitioner did not seek to evade sanctions by State licensing authorities,
nor did he challenge the
integrity of the State regulation of medical professionals.
32. The Act establishes neither minimum nor maximum periods for exclusions
based on section
1128(b)(4)(A).
33. I have authority to modify the terms of the exclusion imposed by the I.G.
against Petitioner. 42
U.S.C. 405(b).
34. It is a mitigating factor that Petitioner:
(1) was suffering from a depressive illness which affected his judgment during
the time in which he
engaged in criminal conduct; (2) is continuing to seek treatment for his depression
and has made progress
with his psychiatric treatment; and (3) is providing a needed specialty to the
New York correctional
system. Tr. 67, P. Ex. 2.
35. The exclusion of Petitioner until he obtains a valid license to practice
medicine in the State of Florida
is excessive in light of: (1) the absence of substantial risk of harm to patients
or the integrity of the
Medicare and Medicaid programs; (2) the absence of any intent to evade sanctions
or challenge the
integrity of State regulation of medical professionals; and (3) the mitigating
circumstances listed above.
36. The remedial considerations of section 1128(b)(4)(A) of the Act will be
served in this case by a three-
year exclusion from the Medicare and Medicaid programs.
DISCUSSION
I. The Board of Medicine revoked Petitioner's license to practice medicine
in Florida for reasons bearing
on Petitioner's professional competence and performance.
It is undisputed that Petitioner's license to provide health care in Florida
was revoked by the Florida Board
of Medicine and that this Board is a State licensing authority within the meaning
of section 1128(b)(4)(A)
of the Act. There is also no dispute that his license revocation was based on
Petitioner's conviction in
Pennsylvania, as well as the underlying conduct which resulted in his conviction.
Petitioner's conviction was for dispensing a controlled substance outside of
a patient relationship. He had
obtained these drugs by telephoning a false prescription in his wife's name
to a pharmacy. This act
constituted an abuse of Petitioner's privileges as a physician and was related
to both his competence and
performance as a physician. Accordingly, the revocation of Petitioner's license
by the Florida Board of
Medicine was for "reasons bearing on his professional competence and professional
performance," within
the meaning of section 1128(b)(4)(A) of the Act.
II. The I.G. is authorized to exclude Petitioner by section 1128(b)(4)(A) of
the Act.
Section 1128(b)(4)(A) of the Act provides that the Secretary (or his delegate,
the I.G.) may exclude from
participation in the Medicare and Medicaid programs:
Any individual or entity whose license to provide health care has been revoked
or
suspended by any State licensing authority,...for reasons bearing on the individual's
or entity's professional
competence, professional performance, or financial integrity.
I have already determined that Petitioner's license was revoked by a state
licensing authority for reasons
bearing on his professional performance and competence within the meaning of
section 1128(b)(4)(A) of
the Act. Accordingly, I find that Petitioner's exclusion by the I.G. was authorized.
III. An indefinite exclusion until Petitioner regains his license in Florida
is not required by section
1128(b)(4)(A) of the Act.
The I.G. argues that since Petitioner's license was revoked by the State of
Florida, it is reasonable to
impose an indefinite period of exclusion, until Petitioner obtains a license
to practice medicine in Florida
before he is eligible for reinstatement in the Medicare and Medicaid programs.
The I.G. relied on the Departmental Appeals Board's decision in John W. Foderick,
M.D., DAB App. 1125
(1990), to support this position and also cited the legislative history of section
1128(b)(4)(A) of the Act.
The I.G. asserted that section 1128(b)(4)(A) of the Act was enacted to expand
federal authority to exclude
practitioners who lose their license in one state, but continue to treat program
beneficiaries by moving to
another state. The I.G. concludes that the indefinite period of exclusion which
he imposed here would
insure that the intent of Congress in authorizing such exclusions was realized.
I.G. Br. 7.
Petitioner argues, in essence, that an indefinite period of exclusion is unreasonable
and that the length of an
exclusion under section 1128(b)(4)(A) is a question of fact. P. Br. 6.
In Foderick, the petitioner surrendered his license to practice medicine while
a formal disciplinary
proceeding was pending against him before the Minnesota Board of Medical Examiners.
He was not
licensed to practice in any other state. The I.G. excluded the petitioner until
such time as he obtained a
valid license to practice medicine in Minnesota. The ALJ decided the case in
favor of the I.G. on a motion
for summary disposition. A panel of the Departmental Appeals Board affirmed,
holding that "[t]he ALJ
properly concluded that the I.G.'s exclusion determination was consistent with
Congressional intent" (p.
11).
In another, more recent, case, that of Walter J. Mikolinski, Jr., DAB App.
1156 (1990), the petitioner's
pharmacy license had been suspended by the Massachusetts Board of Regulation
in Pharmacy for reasons
bearing on petitioner's professional competence, professional performance, or
financial integrity. The I.G.
excluded the petitioner until such time as he obtained a valid license as a
pharmacist in Massachusetts. The
ALJ decided that the I.G. reasonably excluded the petitioner in his capacity
as a pharmacist provider, but
not in the petitioner's other capacity as a nursing home operator. The ALJ imposed
an exclusion of two
years on the petitioner in that capacity.
The Board held that the ALJ erred in setting different time periods for different
kinds of services, rejected
the I.G.'s argument that the ALJ was required to exclude the petitioner until
he regained his pharmacy
license in Massachusetts, and remanded the case to the ALJ to consider the appropriate
length of exclusion.
The Board did not mention the earlier decision in Foderick. The Board stated
that a legitimate factor to be
considered in setting a period of exclusion was the concern that a petitioner
"might never satisfy the
conditions for regaining his license, even though he had overcome the lack of
trustworthiness arising from
the activities based on which his license had been suspended." Mikolinski,
p. 16. The Board went on to
note that both the language and purpose of the Act can be given effect through
the simpler remedy of
setting one definite period of exclusion.
In addition, the I.G. appears to have recognized that an indefinite exclusion
is not always required, since he
has not imposed such an exclusion in all cases under section 1128(b)(4)(A) of
the Act. See Vincent
Baratta, M.D., DAB Civ. Rem. C-144 (1990), aff'd DAB App. 1172 (1990).
Accordingly, I must decide whether the I.G. in this case acted reasonably in
excluding Petitioner
indefinitely, until such time as Petitioner would regain his license to practice
medicine in Florida. Then, if
I find that the facts warrant it, I must exclude Petitioner for a set period
of time in lieu of the indefinite
exclusion imposed and directed by the I.G. Thus, I find and conclude that an
exclusion until such time as
Petitioner regains his license in the State of Florida is not required by section
1128(b)(4)(A) of the Act and,
in accordance with the facts in the record, pursuant to 42 U.S.C. 405(b), I
must modify the terms of the
exclusion imposed by the I.G. against Petitioner.
IV. A three-year exclusion is reasonable and appropriate under the circumstances of this case.
A purpose of section 1128(b)(4) of the Act is to protect beneficiaries and
program funds by excluding
individuals or entities who by their conduct have demonstrated a risk that they
may engage in fraud,
substandard services, abuse, or unsafe practices, until such time as those excluded
can demonstrate that
such risk no longer exists. S. Rep. No. 109, 100th Cong., 1st Sess. 2, reprinted
in 1987 U.S. Code Cong. &
Admin. News 682.
The legislative history of the Act indicates that Congress intended that, in
setting the period of an exclusion
in this type of permissive exclusion case, such factors as the seriousness of
the offense, the impact of both
the offense and the exclusion on beneficiaries, and any mitigating circumstances,
such as the availability of
alternate providers of needed health care services, be considered. S. Rep. No.
109, 100th Cong., 1st Sess.
3, reprinted in 1987 U.S. Code Cong. & Admin. News 682, 693. Furthermore,
the regulations at 42 C.F.R.
1001.125, and the proposed regulations in 55 Fed. Reg. 12205 (April 2, 1990),
provide guidance in
determining the period of exclusion to be imposed in an 1128(b)(4)(A) case.
In order to decide the appropriate period of an exclusion in this case, I made
a de novo determination and
considered all of the purposes designated by Congress for the enactment of section
1128 of the Act. In
making that de novo determination, I considered whether the indefinite period
of exclusion, imposed by the
I.G., is reasonable under the circumstances of this case.
Since one of the main purposes of an exclusion from the Medicare and Medicaid
programs is to allow for a
period of time in which to ensure that Petitioner is trustworthy, I examined
such relevant factors as the
nature of the crime for which Petitioner was convicted and which formed the
basis of the revocation of his
license, the length of the sentence imposed by the court in Petitioner's criminal
case, and Petitioner's
subsequent conduct. To ensure the protection of the beneficiaries of the Medicare
and Medicaid programs,
I also considered Petitioner's previous sanction record, whether his criminal
conviction involved program
violations or other related offenses, and whether Petitioner's conduct resulted
in damages to the Medicare
or Medicaid programs.
The I.G. argued that Petitioner's present and past mental states were not relevant
to these proceedings and
that there were aggravating circumstances to be considered in Petitioner's case.
The I.G. also asserted that
neither Petitioner's nor his witness' testimony were credible. During the hearing,
the I.G. introduced
evidence of Petitioner's license revocation in the States of Georgia and Pennsylvania
and argued, in
essence, that these were aggravating circumstances. Since these other states
barred Petitioner on the basis
of the same underlying facts, however, I find that this is neither aggravating
nor mitigating.
Petitioner contended that under the circumstances of his case it is appropriate
that no exclusion be imposed.
He argued that an exclusion in his case would be unduly harsh and not in keeping
with the goals or
objectives of section 1128(b)(4)(A). Petitioner also argued that if an exclusion
is warranted, the indefinite
exclusion imposed by the I.G. is unreasonable, since Petitioner will not be
returning to, nor seeking a
license to practice in, the State of Florida.
In support of his arguments, Petitioner cited as mitigating circumstances that:
(1) there was no adverse
impact on beneficiaries; (2) Medicare, Medicaid, and the social services programs
were not damaged; (3)
he has no prior Medicare or Medicaid sanctions; (4) there were no program violations,
and, as a result, no
related offenses; (5) he is the only physiatrist presently employed by both
the Harlem Valley Psychiatric
Center and the Green Haven Correctional Facility; and (6) his criminal conduct
was the result of a
psychological problem that has been and continues to be treated.
The absence of prior offenses by Petitioner is not a mitigating factor. Furthermore,
Petitioner's lack of a
sanction record under Medicare or Medicaid, the I.G.'s lack of proof that there
was any adverse impact on
program beneficiaries, and the fact that Petitioner's convictions did not involve
program violations, are not
mitigating in nature. Rather, their presence would be aggravating factors that
might justify an increased
sanction.
However, Petitioner's mental state, both at the time he engaged in his criminal
conduct and now, and his
conduct subsequent to his conviction are relevant to determining the period
of exclusion to be imposed.
Moreover, the availability of alternate health care services is a mitigating
circumstance which the
legislative history of the Act indicates should be considered in determining
a period of exclusion.
Trustworthiness is not something that is subject to exact measurement or determination.
However, in
attempting to measuring Petitioner's trustworthiness, I gave great weight to
the credibility of his testimony
during the May 3, 1990 hearing. I evaluated Petitioner's credibility based on
the following factors. First, I
compared Petitioner's testimony to the other evidence introduced at the May
3, 1990 hearing. Such
evidence included testimony of other witnesses and documents. Petitioner's testimony
was unequivocal
and did not contradict other evidence offered against him. Moreover, much of
Petitioner's testimony was
corroborated by other witnesses. Second, my personal observation of Petitioner
was that he testified in a
forthright manner and did not appear to try to avoid questions. For these reasons,
I conclude that
Petitioner's testimony was credible and that this reflects favorably on his
trustworthiness.
Petitioner's testimony revealed that Petitioner had attempted to limit the
distribution of controlled
substances at the Altoona Veterans Administration Medical Center (VA Hospital)
while he was employed
at that facility. Petitioner attempted to do this by reporting incidents of
excessive prescription of narcotic
drugs at the VA Hospital to the VA central office in Washington, D.C. It was
after making his report to the
VA central office that Petitioner's difficulties began.
Shortly after Petitioner's report to Washington, a patient at the VA Hospital
lodged a complaint against
him. The complaint alleged that Petitioner had supplied narcotic drugs to the
patient in return for the
patient's procuring female companionship for Petitioner. Petitioner testified
that he did not attempt to
obtain female companionship in return for drugs. I accept Petitioner's version
of the incident. I conclude
that the complaint was most likely motivated by the fact that Petitioner had
reduced the complainant's
supply of narcotic drugs. Thus, Petitioner's subsequent act, of bringing narcotic
drugs to this individual,
though illegal, was induced by someone with a selfish and improper motive. Tr.
43. While these
circumstances do not change the fact that Petitioner committed a serious criminal
offense, they are
mitigating. More importantly, Petitioner's forthrightness in testifying as to
these matters reflects favorably
on his trustworthiness.
In addition to Petitioner's credibility, I also considered Petitioner's past
exercise of judgment in determining
his trustworthiness. I considered Petitioner's judgment relevant to his trustworthiness
because a mistake in
judgment can be as harmful as an intentional wrong to program beneficiaries
and recipients. Although I do
not believe that Petitioner intentionally committed a wrong against program
beneficiaries and recipients,
Petitioner has demonstrated naivete and lack of judgment. Petitioner's resignation
from the VA Hospital,
based upon the promises of the hospital's administrator that he would receive
a good reference, was naive.
Furthermore, Petitioner's actions in contacting the complainant and agreeing
to bring him narcotics in
exchange for the retraction of his earlier accusations demonstrated a total
lack of good judgment on
Petitioner's part. This past lack of judgment gives me some concern as to his
present trustworthiness.
The period of exclusion I am imposing is based on whether Petitioner is likely
to exhibit this kind of
conduct in the future if placed under similar extreme circumstances or pressure.
My goal is to determine
how much time is needed for Petitioner to again be trustworthy. I determined
the time needed to
accomplish that goal by reviewing Petitioner's past actions and the nature of
those actions, as well as his
subsequent conduct and reputation in the community.
Petitioner was convicted of providing controlled substances to an individual
outside of the physician-
patient relationship. He had obtained these drugs by telephoning a false prescription
in his wife's name to a
pharmacy, thus abusing his privileges as a physician. Petitioner pled guilty
to the offense and was
sentenced to three years probation. As a condition of his probation, Petitioner
was also ordered to continue
psychiatric treatment and to participate in a program for impaired physicians.
Petitioner's probation was
reduced to sixteen months. Petitioner fulfilled the terms of his probation,
and continues to receive
psychotherapy.
Petitioner's psychiatrist testified that during the time of his criminal conduct,
Petitioner was under extreme
depression that severely affected his judgment. He further testified that, although
he has some reservations
about Petitioner's ability to handle certain situations, Petitioner has made
good progress and is continuing
to receive professional counseling. He pointed out that Petitioner's credulity
has been tempered by the
circumstances surrounding his resignation and conviction and that Petitioner
is dependable, reliable and
consistent. Tr. 67 - 69.
Other evidence gleaned from the testimony of witnesses indicated that Petitioner
was well-respected in his
professional community and that he is providing a needed specialty at both the
Green Haven Correctional
Facility and the Harlem Valley Psychiatric Center. The evidence reflected that
Petitioner evaluates all of
the physically disabled inmates at Green Haven, a facility which contains the
only physically disabled unit
for the entire New York correctional system. P. Ex. 2.; P. Br. 2.
I give a great deal of weight to this testimony in determining Petitioner's
trustworthiness and setting an
appropriate period of exclusion in his case. I conclude that Petitioner is unlikely
to again abuse his
privileges as a physician and does not pose a substantial risk of harm to beneficiaries,
recipients, or to the
integrity of the Medicare and Medicaid programs.
The I.G. argued that, although the Act establishes neither minimum nor maximum
periods of exclusions
based on section 1128(b)(4)(A), an indefinite exclusion should be imposed. In
support of his position, he
argued that an additional purpose of section 1128(b)(4) is to prevent individuals
from evading sanctions by
moving from their home jurisdiction to avoid sanctions imposed there, and thus
protect the integrity of
State regulation of medical professional standards. I.G. Br. 8-10.
The evidence indicated that Petitioner has been practicing medicine in the
State of New York since
December 1987, and, thus, was not residing in Florida at the time of his license
revocation. He, therefore,
did not move to New York to avoid sanctions or sanction proceedings, and the
integrity of Florida's
regulation of its medical profession has been protected. Furthermore, Petitioner
indicated that he does not
intend to return to Florida in the foreseeable future. Accordingly, I conclude
that the exclusion of
Petitioner until he obtains a valid license to practice medicine in the State
of Florida is excessive and
unreasonable. I further conclude that the remedial considerations of section
1128(b)(4)(A) of the Act will
be served in this case by a three-year exclusion.
CONCLUSION
Based on the material facts and the law, I conclude that the I.G.'s determination
to exclude Petitioner from
participation in the Medicare and Medicaid programs was authorized by law. I
further conclude that a
three-year exclusion is reasonable and appropriate in this case.
IT IS SO ORDERED.
____________________________
Charles E. Stratton
Administrative Law Judge