Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
In the Case of:
Sheldon Stein, M.D.,
Petitioner,
- v. -
The Inspector General.
DATE: July 19, 1991
Docket No. C-342
DECISION
In this case, governed by section 1128 of the Social
Security Act (Act), the Inspector General (I.G.) of the
United States Department of Health and Human Services
(DHHS) notified Petitioner, by letter dated November 23,
1990, that he was being excluded from participation in
the Medicare and State health care programs until he
obtained a valid license to practice medicine in the
State of New York. 1/ Petitioner was advised that his
exclusion resulted from the revocation of his license to
practice medicine in the State of New York by New York's
Commissioner of Education. Petitioner was further
advised that his exclusion was authorized by section
1128(b)(4)(A) of the Act.
By letter of January 12, 1991, Petitioner requested a
hearing before an Administrative Law Judge (ALJ), and
the case was assigned to me for hearing and decision.
I held a prehearing conference in this case on February
19, 1991. At that conference, I granted the parties'
request to stay this action until March 26, 1991, in
order for them to commence possible settlement
discussions. I held a second prehearing conference on
March 26, 1991. At this conference, the parties informed
me that they were unable to reach a settlement of the
case. On April 18, 1991, I conducted an evidentiary in-
person hearing in this case 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 the
exclusion imposed and directed against Petitioner by the
I.G. is reasonable under the circumstances of this case.
APPLICABLE STATUTES AND REGULATIONS
1. The Federal Statute.
Section 1128 of the Act is codified at 42 U.S.C. 1320a-7
(West U.S.C.A., 1990 Supp.). Section 1128(b)(4)(A)
states that the Secretary may exclude any individual or
entity from the Medicare and Medicaid programs whose
license to provide health care has been revoked or
suspended by any State licensing authority, or who
otherwise lost such a license, for reasons bearing on the
individual's or entity's professional competence,
professional performance, or financial integrity.
2. The Federal Regulations.
The governing regulations (Regulations) are codified in
42 C.F.R. Parts 498, 1001, and 1002 (1990). Part 498
governs the procedural aspects of this exclusion case;
Parts 1001 and 1002 govern the substantive aspects.
ISSUES
The issues in this case are:
1. whether Petitioner's license to practice
medicine was revoked or suspended by a State
licensing agency 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. whether the indefinite exclusion imposed and
directed by the I.G. against Petitioner is
reasonable and appropriate.
FINDINGS OF FACT AND CONCLUSIONS OF LAW 2/ 3/
1. At all relevant times until June 3, 1990, Petitioner
was a physician licensed to practice medicine in the
State of New York and was a practicing orthopedic
surgeon. Tr. 4; I.G. Ex. 1/1.
2. On March 30, 1988 (as amended on July 18, 1988), New
York's Department of Health, State Board of Professional
Medical Conduct, in a "Statement of Charges", charged
Petitioner with 25 specifications of practicing with
gross negligence and/or gross incompetence, one
specification of practicing with negligence and/or
incompetence on more than one occasion, and one
specification of failing to maintain adequate records.
I.G. Ex. 1
3. These charges pertained to Petitioner's orthopedic
treatment, between January 1983 and August 1986, of seven
patients who were referred to as patients A through G.
I.G. Ex. 1.
4. These 27 specifications in the charges were
principally concerned with Petitioner's allegedly faulty
performance of a surgical procedure known as "open
reduction and internal fixation", which consisted of the
placement of plates and/or pins to patients' bones to
repair fractures. I.G. Ex. 1, 6.
5. Pursuant to an in-person evidentiary hearing, a
Hearing Committee of the New York Department of Health's
State Board for Professional Medical Conduct (Hearing
Committee), consisting of two physicians and a lay
person, made 90 enumerated Findings of Fact and
recommended that: 1) five allegations of gross
negligence and/or gross incompetence be sustained; 2) so
much of Specification 26 as recited the 17 allegations of
negligence and/or incompetence be sustained; and 3) the
allegation of failure to keep adequate records be
sustained. I.G. Ex. 2.
6. The Hearing Committee further recommended that
Petitioner's medical license be revoked "for the
consistent pattern of negligence and incompetence
evidenced by the Respondent in his practice of the
profession." I.G. Ex. 2/51.
7. On June 30, 1989 (with a clarifying addition of
January 12, 1990), New York's Commissioner of Health
recommended that New York's Board of Regents: 1) accept
the recommendation of the Hearing Committee in full; and
2) issue an order adopting and incorporating as its
determination the recommendations of the Hearing
Committee. I.G. Ex. 3.
8. On February 16, 1990, New York's Regent's Review
Committee unanimously recommended that the Hearing
Committee's 90 Findings of Fact be adopted by the Board
of Regents. However, the Regent's Review Committee
recommended that Petitioner's license not be revoked.
I.G. Ex. 4.
9. The Regent's Review Committee considered: 1)
Petitioner's relative youth at the time of the incidents
in question; 2) the significant education and training
taken by Petitioner to improve his skills since those
incidents; 3) Petitioner's unblemished record since the
incidents; 4) the significant praise and favorable
evaluation of Petitioner by physicians working directly
with him in treating patients; 5) the difficult medical
nature of the cases involved; and 6) Petitioner's being
found guilty of only seven of the 27 specifications of
the charges. I.G. Ex. 4/5 - 6.
10. While the Regent's Review Committee did not
unanimously agree on the recommended measure of
discipline, they did unanimously agree that revocation
was:
not appropriate in this case as it overlooks
both the difficult and close medical issues
involved in the charges and the respondent's
own circumstances and efforts to correct any
deficiencies in his practice of orthopedics.
Revocation, in our unanimous opinion, would
be a regressive penalty, depriving this
relatively young doctor, who has shown
exceptional effort in striving to improve his
medical skills in the area of orthopedics,
from utilizing his significant skills to serve
the public. I.G. Ex. 4/6.
11. By a vote of two to one, the Regent's Review
Committee recommended that: 1) Petitioner be censured
and reprimanded upon each specification of the charges of
which they recommended he be found guilty; 2) Petitioner
be placed on two years probation, the terms to include
monitoring Petitioner's practice and continuing education
in orthopedics and patient management. The third
Regent's Review Committee member, "taking a more serious
view of the actual misconduct, while still acknowledging
the significance of the mitigating factors," recommended
that: 1) Petitioner's license be suspended for two years
upon each specification of charges for which they
recommended he be found guilty; 2) the suspensions run
concurrently; 3) Petitioner be placed on two years'
probation, terms to include monitoring Petitioner's
practice and continuing education in orthopedics and
patient management. I.G. Ex. 4/6 - 8.
12. On March 30, 1990, New York's Commissioner of
Education ordered, pursuant to a March 23, 1990 vote of
the Board of Regents of the University of the State of
New York, that: 1) the Hearing Committee's 90 Findings
of Fact and Conclusions as to Petitioner's guilt be
accepted and the Commissioner of Health's recommendation
be accepted; 2) Petitioner was guilty of the charges as
determined by the Hearing Committee and the Commissioner
of Health; and 3) the recommendation of the Regents
Review Committee be modified as to the measure of
discipline, "based upon the serious nature of the
misconduct committed and in agreement with the hearing
committee and Commissioner of Health, respondent's
license to practice as a physician in the State of New
York be revoked . . ." I.G. Ex. 5.
13. Petitioner was eligible to apply for restoration of
his license one year from the effective date of service
of the Order. The Order stated that Petitioner's
application would not automatically be granted. I.G. Ex.
5.
14. Petitioner was eligible to apply for reinstatement
of his medical license in the State of New York on June
3, 1991. Petitioner is currently submitting his
application for reinstatement. P. Br. 13; Tr. 4.
15. On December 18, 1990, the State of New Jersey,
Department of Law and Public Safety, Division of Consumer
Affairs, State Board of Medical Examiners, promulgated a
Consent Order in the matter of the suspension of
Petitioner's license to practice medicine and surgery in
New Jersey. This matter was opened following the
revocation of Petitioner's license to practice medicine
in New York. I.G. Ex. 7/1 - 2.
16. New Jersey suspended Petitioner's license to
practice medicine for one year, but stayed that
suspension under the following conditions: 1) Petitioner
was to discontinue the performance of open reductions and
internal fixations for one year, or until his New York
license was restored; 2) Petitioner was to undertake 100
hours of continuing medical education in the field of
orthopedic surgery: 3) Petitioner was to pay the costs of
the matter; and 4) prior to reinstatement of full
surgical privileges, Petitioner was to personally appear
before the Board for an inquiry as to his compliance with
the terms of the Order. I.G. Ex. 7/2 - 3.
17. Petitioner appealed the revocation of his license to
practice medicine in New York. On March 28, 1991, an
appellate panel of New York's Supreme Court, Appellate
Division, Third Judicial Department (N.Y. Appellate
Division), upheld the revocation of Petitioner's license.
I.G. Ex. 6.
18. The N.Y. Appellate Division found that: 1) the
determination to revoke Petitioner's license was
supported by substantial evidence and that there was no
"irrational prejudice" exhibited against Petitioner by
the state's expert witness; and 2) the punishment imposed
by the Board of Regents was not disproportionately harsh
in light of the nature of the offenses. I.G. Ex. 6/2 -
3.
19. The N. Y. Appellate Division specifically found that
the patients affected by Petitioner's misconduct all had
to undergo subsequent painful and risky surgery as a
result of his conduct. Several of Petitioner's patients
suffered deformities, infection, necrosis, and wound
dehiscence, and one 13-year-old patient also sustained
nerve and muscle damage. I.G. Ex. 6/2.
20. The N.Y. Appellate Division specifically took into
consideration: 1) the letters of recommendation from
Petitioner's colleagues; 2) that the misconduct occurred
relatively early in Petitioner's medical career; and 3)
that Petitioner has since participated in significant
amounts of continuing education. I.G. Ex. 6/2.
21. The Secretary of DHHS (the Secretary) delegated to
the I.G. the authority to determine, impose, and direct
exclusions pursuant to section 1128 of the Act. 48 Fed.
Reg. 21662, May 13, 1983.
22. Section 1128(b)(4)(A) of the Act authorizes the I.G.
to impose and direct exclusions of individuals 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.
23. On November 23, 1990, the I.G. excluded Petitioner
from participation in the Medicare program and directed
that he be excluded from participation in the Medicaid
program, pursuant to section 1128(b)(4)(A) of the Act.
24. The I.G. had a basis upon which to impose and direct
an exclusion against Petitioner. FFCL 12.
25. The I.G. excluded Petitioner until such time as he
received a license to practice medicine in New York.
26. After taking into consideration all of Petitioner's
arguments against revocation of his license, the Board of
Regents decided that Petitioner's conduct was so serious
that his license should be revoked, and the N.Y.
Appellate Division unanimously upheld the revocation.
These arguments included Petitioner's assertions before
me that: 1) his revocation was based on six cases out of
thousands; 2) since these cases he has maintained an
unblemished record for medical practice; 3) the New York
State Society of Orthopaedic Surgeons believes he should
be licensed; 4) his license was not revoked in New
Jersey; 5) he is no danger to the public; 6) he has
completed 500 hours of continuing medical education in
orthopedic surgery; 7) his colleagues support him. P.
Br. 6, 9 - 10; FFCL 2 - 20.
27. Petitioner now wants to do an orthopaedic fellowship
at the State University of New York, where he would be
treating Medicare and Medicaid patients. Petitioner is
able to take this fellowship because he has a New Jersey
license, and New York does not require that a physician
have a New York license for fellowship positions. The
restrictions on his New Jersey license, however, will not
apply to the fellowship, as it is a supervised position.
Tr. 67 - 68, 97 - 98.
28. Petitioner never acknowledged the gravity of his
conduct towards these patients, and is still arguing that
it was not as a result of his surgery that the patients
in question may have suffered deformities, infection,
necrosis, or nerve and muscle damage. Tr. 93 - 94.
29. The exclusion imposed and directed against
Petitioner by the I.G. is reasonable and appropriate.
FFCL 1 - 28.
DISCUSSION
Petitioner, a practicing orthopedic physician, had his
license to practice medicine revoked by the State of New
York. Petitioner acknowledges that the I.G. had a
technical basis to exclude him from participation in the
Medicare and Medicaid programs under section
1128(b)(4)(A) of the Act. Tr. 5. Petitioner believes,
however, that because the I.G.'s authority to exclude
under section 1128(b)(4)(A) is permissive, the I.G.
should have exercised his permissive authority and chosen
not to exclude him, given what Petitioner perceives are
overwhelming mitigating factors in his case. P. Br. 1 -
11. Petitioner further argues that, even if the I.G.
acted properly in excluding Petitioner from the Medicare
and Medicaid programs, there is no justification to
exclude Petitioner until he obtains his license to
practice medicine again in New York. I disagree.
1. Petitioner's license to practice medicine in New York
was revoked by a State licensing authority for reasons
bearing on his professional competence, professional
performance, or financial integrity, within the meaning
of section 1128(b)(4)(A) of the Act.
Petitioner has admitted that his license was revoked by
the State of New York, and that the revocation concerned
his professional competence, professional performance, or
financial integrity. Tr. 5. In order for the I.G. to
have a basis on which to exclude, all that Congress
required, pursuant to section 1128(b)(4)(A), was that an
individual's license be revoked by a State licensing
authority, for reasons bearing on his professional
competence, professional performance, or financial
integrity. I find that basis has been met in this case
(see FFCL 12) and that the I.G. had the authority to
exclude Petitioner.
2. The I.G. properly exercised his discretion to exclude
Petitioner in this case.
Congress promulgated section 1128(b)(4)(A) to:
protect Medicare and Medicaid patients from
practitioners who lose their licenses in one State,
move to another State, and continue to treat program
beneficiaries. The provisions of this bill would
permit the Secretary to exclude such persons from
Medicare in all States and to require the state to
exclude them from participation in any State health
care program.
S. Rep. No. 109, 100th Cong., 1st Sess. 1, reprinted in
1987 U.S. Code Cong. & Admin. News, 682, 688. While
Congress did not mandate a minimum or maximum period of
exclusion in this instance, Congress clearly envisioned
that unless the exclusion was for "minor infractions not
relating to quality of care," Congress intended some
period of exclusion for practitioners who lost their
licenses. Id.
Petitioner argues that because section 1128(b)(4)(A) is a
permissive statute, the I.G. should have chosen not to
exclude him. He argues that because the purpose of
section 1128 is to ensure the quality of care provided to
Medicare and Medicaid beneficiaries and recipients, and
because he believes he has overwhelmingly demonstrated
that he has met that standard, a reasoned evaluation by
the I.G. would be to keep Petitioner in the programs. P.
Br. 3 - 4. Petitioner's arguments are misplaced. They
relate more to the reasonableness of the length of his
exclusion. Given the revocation of Petitioner's license,
which was upheld by the N.Y. Appellate Division, it was
proper for the I.G. to determine to exclude Petitioner
for some length of time.
Furthermore, while an ALJ does have the authority to
determine whether there is a legal basis for a permissive
exclusion, an ALJ does not have authority under the Act
to decide whether or not the I.G. should have exercised
his discretion in making a determination to exclude a
petitioner. An ALJ also has the authority to decide
whether the length of the exclusion imposed and directed
against a petitioner is reasonable and appropriate. See
42 C.F.R. 1001.128(a); Jack W. Greene, DAB App. 1078 at
17 (1989); Betsy Chua, M.D. and Betsy Chua, M.D., S.C.,
DAB Civ. Rem. C-139 at 9-10 (1990), aff'd DAB App. 1204
at 5 (1990).
3. Exclusion of Petitioner until such time as he regains
his license to practice medicine in the State of New York
is reasonable and appropriate.
In order to modify an exclusion imposed and directed
against a petitioner by the I.G., I must find that the
length of the exclusion imposed was so extreme or
excessive as to be unreasonable. See 48 Fed. Reg. 3744
(January 27, 1983). In deciding whether or not an
exclusion under section 1128(b)(4)(A) is reasonable, I
must review the evidence with regard to the purpose of
section 1128 of the Act. Joel Davids, DAB Civ. Rem. C-
278 (1991); Roderick L. Jones, DAB Civ. Rem. C-230
(1990); Frank J. Haney, DAB Civ. Rem. C-156 (1990).
Congress enacted the exclusion law to protect the
integrity of federally funded health care programs.
Among other things, the law was designed to protect
program recipients and beneficiaries from individuals who
have demonstrated by their behavior that they threatened
the integrity of federally funded health care programs or
that they could not be entrusted with the well-being and
safety of beneficiaries and recipients. See S. Rep. No.
109, 100th Cong., 1st Sess. 1, reprinted in 1987 U.S.
Code Cong. and Admin. News 682.
There are two ways that an exclusion imposed and directed
pursuant to section 1128 of the Act advances this
remedial purpose. First, an exclusion protects programs
and their beneficiaries and recipients from untrustworthy
providers until they demonstrate that they can be trusted
to deal with program funds and to serve beneficiaries and
recipients. Second, an exclusion deters providers of
items or services from engaging in conduct which
threatens the integrity of programs or the well-being and
safety of beneficiaries and recipients. See H. R. Rep.
No. 393, Part II, 95th Cong. 1st Sess., reprinted in 1977
U.S. Code Cong. & Admin. News 3072.
An exclusion imposed and directed pursuant to section
1128(b)(4)(A) will likely have an adverse financial
impact on the person against whom the exclusion is
imposed. However, the law places program integrity and
the well-being of beneficiaries and recipients ahead of
the pecuniary interests of providers. An exclusion is
not punitive if it reasonably serves the law's remedial
objectives, even if the exclusion has a severe adverse
financial impact on the person against whom it is
imposed.
No statutory minimum mandatory exclusion period exists in
cases where the I.G.'s authority arises from section
1128(b)(4)(A), nor is there a requirement that a
petitioner be excluded until he or she obtains a license
from the state where their license was revoked. However,
an exclusion until a petitioner obtains a license from
the state where his or her license was revoked is not per
se unreasonable. See Lakshmi N. Murty Achalla, M.D.,
DAB App. 1231 at 9 (1991); Richard L. Pflepsen, D.C.,
DAB Civ. Rem. C-345 (1991); John W. Foderick, M.D., DAB
App. 1125 (1990).
By not mandating that exclusions from participation in
the programs be permanent, however, Congress has allowed
the I.G. the opportunity to give individuals a "second
chance." An excluded individual or entity has the
opportunity to demonstrate that he or she can and should
be trusted to participate in the Medicare and Medicaid
programs as a provider. See Achalla, supra.
The determination of when an individual should be trusted
and allowed to reapply to the I.G. for reinstatement as a
provider in the Medicare and Medicaid programs is a
difficult issue. It is subject to discretion without
application of any mechanical formula. The federal
regulations at 42 C.F.R. 1001.125(b) guide me in making
this determination. This hearing is, by reason of
section 205(b) of the Act, de novo. Evidence which is
relevant to the reasonableness of an exclusion is
admissible whether or not that evidence was available to
the I.G. at the time the I.G. made his exclusion
determination. I do not, however, simply substitute my
judgment for that of the I.G. An exclusion determination
will be held to be reasonable where, given the evidence
in the case, it is shown to fairly comport with
legislative intent. "The word `reasonable' conveys the
meaning that . . . [the I.G.] is required at the hearing
only to show that the length of the [exclusion]
determined . . . was not extreme or excessive."
(Emphasis added.) 48 Fed. Reg. 3744 (1983).
Given congressional intent to exclude untrustworthy
providers, I also consider those circumstances which
indicate the extent of an individual's or entity's
trustworthiness. Essentially, I evaluate the evidence to
determine whether the exclusion comports with the
legislative purposes outlined above. Thus, a
determination of an individual's trustworthiness in a
section 1128(b)(4)(A) case necessitates an examination of
the following considerations: 1) the nature of the
license revocation and the circumstances surrounding it;
2) the impact on the Medicare and Medicaid programs; 3)
whether and when that individual recognized the gravity
of the conduct that initiated the license revocation
action; 4) the type and quality of help sought to correct
the behavior leading to the license revocation; and 5)
the extent to which the individual has succeeded in
rehabilitation. See Thomas J. DePietro, R.Ph., DAB Civ.
Rem. C-282 (1991).
Petitioner has submitted an exhaustive amount of evidence
purporting to show that he is no longer a threat to the
Medicare and Medicaid programs and that he is a
trustworthy provider. Petitioner has submitted letters
attesting to his competence from physicians who have
worked with him, audited his work, or are otherwise
acquainted with his work. P. Ex. 4, 6, 7, 13. He also
submitted his reappointment to Vasser Brothers Hospital
in 1989, letters of support from patients, evidence as to
continuing education courses he has taken (although there
is a dearth of information regarding the content of these
courses), an amicus brief on Petitioner's behalf filed
with the N.Y. Appellate Division by the New York State
Society of Orthopaedic Surgeons (which did not persuade
the five judge panel to overturn Petitioner's license
revocation), a 1990 Board certification in arthroscopic
surgery, and a current Drug Enforcement Administration
certificate. P. Ex. 5, 8, 9, 11, 12, 15, 17.
Based on this evidence, Petitioner has argued before me
that: 1) his revocation was based on six cases out of
thousands; 2) since these cases he has maintained an
unblemished record for medical practice; 3) the New York
State Society of Orthopaedic Surgeons did not believe
Petitioner's license should be revoked; 4) New Jersey did
not revoke his license, but only put conditions on it; 5)
he is no present danger to the public; 6) he has
completed over 500 hours of continuing medical education
in orthopedic surgery, much of it involving hands on
practice in the techniques of open reduction and internal
fixation; and 7) his colleagues find him a knowledgeable,
caring and competent physician. P. Br. 6, 9 - 10. These
are all arguments he previously made before the Board of
Regents and the N.Y. Appellate Division against his
license revocation, and which they found did not mitigate
against their decision to revoke his license. FFCL 2 -
20, 26.
Petitioner has not submitted any additional substantive
evidence as to his trustworthiness to practice surgery as
an orthopedic surgeon. The two highest authorities
reviewing Petitioner's license revocation determined that
a one year revocation of his medical license was
indicated. FFCL 12, 13, 17, 18. The N.Y. Appellate
Division specifically found that "the truth remains that
the patients affected by petitioner's misconduct all had
to undergo subsequent surgery with its attendant pain and
risks as a result of his conduct. Several patients
suffered deformities, infection, necrosis, and wound
dehiscence, while one patient, a 13-year-old girl, also
sustained nerve and muscle damage. In light of this type
of serious consequences to petitioner's patients as a
result of his conduct, we cannot conclude that revocation
of his license was a disproportionately harsh
punishment." I.G. Ex. 6/2 - 3; FFCL 19.
This is not a case of a petitioner seeking modification
of his exclusion so that he can practice medicine in
another state in which he has a license. 4/ Petitioner
now wants to practice medicine in the State of New York
in a fellowship position. In this position, Petitioner
can practice medicine in New York utilizing his New
Jersey license and circumvent both his license revocation
in New York and the restrictions New Jersey placed on his
license. FFCL 27. Participation as a provider in the
Medicare and Medicaid programs is a prerequisite to the
fellowship position.
In order for me to determine Petitioner's
trustworthiness, I must first be able to find that
Petitioner has acknowledged the gravity of the conduct
which led to his license revocation. Until Petitioner
does this, he cannot go far towards rehabilitating his
trustworthiness. In this case Petitioner has never fully
acknowledged that he may have made mistakes in his
treatment of the patients in question, in spite of the
fact that every tribunal reviewing Petitioner's conduct
found that he practiced with gross negligence and/or
gross incompetence in the treatment of the patients in
question. FFCL 5, 7, 8, 12, 17. Even Petitioner's own
witness stated that, "I think some of the [Petitioner's]
techniques were not as exacting as I would have liked . .
. and I think that there were some that the results were
not as good as you would have wanted." Tr. 112.
Petitioner still argues, however, that his license
revocation came about not because of any deficiencies on
his part, but because there was a conflict of interest
between the administration of the hospital where he
performed the surgeries in question and a general surgeon
at the hospital at which he operated on the patients in
question and that the State's expert witness was biased
against him. Petitioner raised both these issues in his
N.Y. State actions and the State found against him in
both instances. Tr. 80 - 81, 100 - 101, 103 - 104; FFCL
18.
While it is commendable of Petitioner to have taken
significant amounts of continuing education in various
fields of orthopedics (this shows that Petitioner does
realize, to some extent, that he needed remedial
education), I cannot find that Petitioner has come so far
along in his rehabilitation as to make his exclusion by
the I.G. so extreme or excessive as to be unreasonable.
In essence, what Petitioner is asking me to do is to find
that his license revocation was unreasonable and that he
is currently trustworthy to participate in the Medicare
and Medicaid programs. The evidence in this case simply
does not support such an outcome.
The evidence is that the State of New York has
adjudicated Petitioner's competency through every
licensing body in the State and in the Appellate Division
of the State courts. I find the conclusions reached by
those authorities to be persuasive. Moreover, Petitioner
has not shown that his exclusion is unreasonable. Thus,
given Petitioner's stated desire to practice medicine in
the State of New York in a fellowship program, I find and
conclude that Petitioner should be excluded until such
time as New York's licensing authorities restore his
license to practice medicine.
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 section 1128(b)(4)(A) of the Act. I
further conclude that an exclusion until Petitioner
regains his license to practice medicine in the State of
New York is reasonable and appropriate in this case.
Charles E. Stratton
Administrative Law Judge
1. "State health care program" is defined by section
1128(h) of the Social Security Act to cover three types
of federally-assisted programs, including State plans
approved under Title XIX (Medicaid) of the Act. I use
the term "Medicaid" hereafter to represent all State
health care programs from which Petitioner was excluded.
2. Some of my statements in the sections preceding
these formal findings and conclusions are also findings
of fact and conclusions of law. To the extent that they
are not repeated here, they were not in controversy.
3. Citations to the record and to Board cases in this
Decision are as follows:
I.G. Exhibits I.G. Ex. (number/page)
I.G. Brief I.G. Br. (page)
Petitioner's Exhibits P. Ex. (number/page)
Petitioner's Brief P. Br. (page)
Findings of Fact and FFCL (number)
Conclusions of Law
Departmental Appeals DAB Civ. (docket no./
Board ALJ Decisions date)
Departmental Appeals DAB App. (decision no./date)
Board Appellate
Decisions
4. In Petitioner's January 12, 1990, request for a
hearing in this case, Petitioner asserted that he had job
offers in and might relocate to another state. However,
Petitioner now asserts that, although he continues to
practice in New Jersey, he wants to take up a fellowship
position in New York. P. Br. 13.