Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
In the case of:
Myron R. Wilson, Jr., M.D.,
Petitioner,
- v. -
The Inspector General.
DATE: July 31, 1991
Docket No. C-258
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 June 4, 1990,
that he was being excluded from participation in the
Medicare and State health care programs for five years.
1/
Petitioner was advised that his exclusion resulted from
the fact that his license to practice medicine in the
State of Minnesota was surrendered while a formal
disciplinary proceeding was pending before the Minnesota
Board of Medical Examiners. Petitioner was further
advised that his exclusion was authorized by section
1128(b)(4)(B) of the Act.
By letter of June 19, 1990, Petitioner requested a
hearing before an administrative law judge (ALJ), and
the case was assigned to me for hearing and decision.
During the initial prehearing conference, which I held on
August 30, 1990, the parties agreed that the case could
be decided through an exchange of documents in lieu of an
in-person hearing. Also at this conference, Petitioner
indicated that he would not be contesting whether the
period of exclusion was reasonable, but would be
contesting only whether there was a basis for the I.G. to
exclude Petitioner under section 1128(b)(4)(B) of the
Act. In my Order of August 31, 1990, however, I included
as an issue whether, if there was a basis for the I.G. to
exclude Petitioner, the proposed five-year exclusion
would be extreme or excessive. On January 30, 1991, I
heard oral argument concerning the I.G.'s motion for
summary disposition on the issue of whether the I.G. had
a basis upon which to exclude Petitioner. On February 8,
1991 I ruled that: 1) the I.G. had authority to exclude
Petitioner pursuant to section 1128(b)(4)(B) of the Act;
and 2) there remained the potential for contested facts
regarding the reasonableness of the proposed five-year
exclusion. 2/
On February 22, 1991, I held another prehearing
conference in this case to determine whether either
party wanted an in-person hearing on the issue of whether
the five-year exclusion imposed and directed against
Petitioner by the I.G. was reasonable. Petitioner
indicated that he wished to proceed through an exchange
of stipulations and affidavits in lieu of an in-person
hearing. The parties have submitted briefs and
supporting documents. I heard oral argument in this case
on June 28, 1991.
I have considered the arguments contained in the I.G.'s
motion for summary disposition, Petitioner's response,
and the I.G.'s reply; the positions of the parties as
reflected in the oral argument; the parties joint
stipulation of facts; and the applicable law and regula-
tions. I incorporate in this decision my ruling of
February 8, 1991 that the I.G. had a basis upon which to
exclude Petitioner, and I now find that the five-year
exclusion imposed and directed against Petitioner by the
I.G. is reasonable under the circumstances of this case.
ISSUE
Whether the five-year exclusion imposed and directed
against Petitioner by the I.G. is reasonable.
FINDINGS OF FACT AND CONCLUSIONS OF LAW 3/
1. Petitioner is a psychiatrist who specializes in
the care of adolescents. Petitioner held a license to
practice medicine and surgery in the State of Minnesota
until July 8, 1989. J. Ex. A, H; Stip. 1, 13, 36.
2. The Minnesota Board of Medical Examiners (Minnesota
Board) is the Minnesota State agency with authority for
the licensure of and, if necessary, the imposition of
discipline against physicians and surgeons in Minnesota.
J. Ex. D; Stip. 37.
3. In the event that the Minnesota Board receives a
complaint alleging information that, if true, would be
grounds for disciplinary action against a physician, it
initiates a complaint review process by forwarding the
complaint for investigation to the Office of the
Minnesota Attorney General. The results of such
investigation are forwarded to the Discipline Committee
of the Minnesota Board (Discipline Committee), which may
dismiss the complaint and decline to take any further
action when there is insufficient evidence to warrant
disciplinary action by the Minnesota Board. When the
Committee determines there is sufficient evidence to
justify further review of the matter, it schedules a
conference with the physician against whom the complaint
was made. J. Ex. D.
4. In 1972 Petitioner developed a residential treatment
center and school for adolescents, The Constance Bultman
Wilson Center (Center) in Faribault, Minnesota.
Petitioner was the president, chief executive officer,
and psychiatrist-in-chief at the Center. Stip 3-12.
5. Petitioner practiced solely as an adolescent
psychiatrist and in that capacity wrote articles and made
professional presentations. His clinical practice was
limited to treating patients at the Center. At no time
since 1971 has Petitioner maintained a private office or
private clinical practice. Stip. 13.
6. In April 1982, the Discipline Committee of the
Minnesota Board informed Petitioner by Notice of
Conference (Notice) that it had received complaints of
unprofessional conduct by Petitioner at the Center.
These complaints alleged Petitioner's sexual misconduct
with patients and Petitioner's impairment due to alcohol
and drug abuse. P. Ex. (1) B; Stip 38.
7. By letter of June 10, 1982, the Minnesota Board
informed Petitioner that it had decided to close its
investigation regarding allegations of unprofessional
conduct in Petitioner's practice of medicine. However,
the Minnesota Board advised Petitioner that it would
retain all the records relating to its investigation. It
also informed Petitioner that if similar complaints were
received in the future, the Minnesota Board might reopen
its file and reconsider the allegations in light of any
new information received. P. Ex. (1) D; Stip. 38.
8. By letter of June 10, 1982, the Discipline Committee
specifically advised Petitioner as to concerns it had
regarding Petitioner's practice of medicine at the
Center. These concerns included that:
a) It appeared that there were no clearly
defined boundaries between when a person was a
patient, employee, or friend of Petitioner's.
The Minnesota Board felt that this situation
had the potential for confusion and
misinterpretation by individuals who fit into
more than one category regarding Petitioner's
conduct. The Minnesota Board stated that steps
should be taken to remedy the situation.
b) The Discipline Committee was concerned with
regard to Petitioner's prescription of medica-
tions. Petitioner was told to never prescribe
medicine for himself or for anyone who was not
his psychiatric patient.
c) The Discipline Committee was concerned
about allegations regarding Petitioner's use of
alcohol and the availability of alcohol when
minor patients of the Center were present. The
Discipline Committee stated that even if minors
were not served alcohol, alcohol should not be
used in such a way as to be accessible to
minors. The Discipline Committee stressed that
this was particularly true in a health care
setting, especially one in which the
distinction between the doctor's patients,
employees, and friends was not clear.
d) What Petitioner interpreted as nonsexual
touching had been interpreted by others as
sexual. The Discipline Committee stated that
this fact had been made abundantly clear by
the allegations of several former patients or
employees. The Discipline Committee told
Petitioner that he should alter his conduct so
as to avoid any such interpretation being made.
P. Ex. (1) D.
9. Petitioner moved from Minnesota to California in
1986. Stip. 19-28.
10. On April 6, 1989, the Discipline Committee of the
Minnesota Board sent Petitioner a new Notice, based upon
an investigation conducted by the Office of the Minnesota
Attorney General. The Notice stated that on May 4, 1989,
the Discipline Committee of the Minnesota Board would
hold a conference to discuss with Petitioner his ability
to practice medicine and surgery with reasonable skill
and safety to patients. J. Ex. E, F, G; Stip. 39, 40.
11. This 1989 Notice contained allegations similar to
those set forth in the 1982 Notice, and added allegations
concerning two new patients, neither of whom filed
complaints with the Board. The 1989 Notice also alleged
that Petitioner's written submission to the Minnesota
Board on May 6, 1982, concerning his physician/patient
relationship with patient number 2 (so termed in the 1989
Notice), was inconsistent with testimony Petitioner gave
under oath in a 1987 civil suit. J. Ex. E; Stip. 39, 40.
12. On the basis of such a conference, the Discipline
Committee of the Minnesota Board was empowered to take
any one of the following actions: 1) conclude the matter
based upon its determination that there were insufficient
grounds for discipline; 2) enter into a stipulation with
Petitioner permitting the full Minnesota Board to issue a
mutually agreed upon disciplinary order or remedy; or, 3)
resolve the matter with a "contested case hearing." J.
Ex. E/6-7; Stip. 41.
13. Petitioner was permitted to be represented by
counsel at the conference. J. Ex. E/7.
14. Petitioner asked that the conference be rescheduled
and it was set for June 15, 1989. J. Ex. D; Stip. 42.
15. In the interim, Petitioner and the Minnesota Board
entered into settlement negotiations. J. Ex. D; Stip.
43.
16. Petitioner and the Minnesota Board were represented
by counsel during these settlement negotiations. J. Ex.
H/3.
17. Petitioner and the Discipline Committee of the
Minnesota Board drafted a Stipulation and Order, which
was then presented to the full Minnesota Board for
approval, obviating the need for a conference. J. Ex. H.
18. In this Stipulation and Order, Petitioner denied all
complaints under investigation. However, the parties
stipulated that due to the passage of time and to the
fact that Petitioner no longer resided in Minnesota and
had represented that he had retired from practice in
Minnesota and in the interest of settling the matter
and to avoid the necessity for further proceedings,
Petitioner agreed to: 1) resign his license to practice
medicine and surgery in Minnesota; and 2) not reapply for
a license to practice medicine and surgery in Minnesota.
The Minnesota Board agreed to close its files in the
matter, but reserved the right to reopen the files should
Petitioner ever seek re-licensure in Minnesota. J. Ex.
H.
19. On July 8, 1989, the Minnesota Board adopted,
implemented, and issued this Stipulation and Order
accepting Petitioner's surrender of his license to
practice medicine and surgery in Minnesota. J. Ex. H.
20. 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.
21. Section 1128(b)(4)(B) of the Act authorizes
exclusions from the Medicare and Medicaid programs for
any individual or entity who surrendered a license while
a formal disciplinary proceeding was pending before a
State licensing agency and the proceeding concerned
the individual's or entity's professional competence,
professional performance or financial integrity.
22. On June 4, 1990, pursuant to section 1128(b)(4)(B)
of the Act, the I.G. excluded Petitioner from participa-
ting in the Medicare program and directed that he be
excluded from participating in Medicaid for five years.
23. There do not exist any disputed issues of material
fact in this case that pertain to the I.G.'s authority to
exclude Petitioner; therefore, summary disposition on
that issue is appropriate. See Federal Rules of Civil
Procedure, Rule 56.
24. The interpretation of a federal statute or
regulation is a question of federal, not state, law.
United States v. Allegheny County, 322 U.S. 174, 183
(1944).
25. Petitioner surrendered to a state licensing
authority his license to practice medicine and surgery
while a formal disciplinary proceeding was pending which
concerned his professional competence, professional
performance, or financial integrity within the meaning of
section 1128(b)(4)(B) of the Act. FFCL 1 - 24.
26. The I.G. had discretion to exclude Petitioner from
participation in Medicare and to direct his exclusion
from participation in Medicaid. Act, Section
1128(b)(4)(B).
27. The Center has at no time been a Medicare provider.
No Medicaid reimbursement has been sought by the Center
since 1976. Stip. 29.
28. Petitioner has never been a Medicare provider.
Petitioner has not sought Medicaid reimbursement since
1976. Stip 30.
29. In 1985, Petitioner retired from active clinical
practice treating patients at the Center and, in 1986, he
retired from management of the Center. Stip 27.
30. From 1986 to 1989 Petitioner was a teacher/lecturer
at Harbor-UCLA Medical Center teaching fellows in Child
and Adolescent Psychiatry. No doctor/patient contact was
involved. Petitioner did not seek clinical or admitting
privileges, nor did he receive any compensation for his
teaching. Stip. 31.
31. Petitioner is currently teaching fellows in Child
and Adolescent Psychiatry at Cedars-Sinai Medical Center,
a UCLA affiliate, in Los Angeles. No doctor/patient
contact is involved. Petitioner did not seek clinical or
admitting privileges and receives no compensation. Stip.
32.
32. Harbor-UCLA Medical Center, Cedars-Sinai Medical
Center, and UCLA are all Medicare providers. Stip. 33.
33. The policy of Cedars-Sinai Medical Center is that
anyone with a non-current or inactive medical license
would not be permitted to provide patient care or to
teach at the facility. Declaration of Harry F. McDonagh,
May 31, 1991.
34. Petitioner holds an inactive license to practice
medicine in the State of California. Stip. 35.
35. To activate his license to practice medicine in
California, Petitioner needs only to complete 50 hours of
continuing education. J. Ex. B.
36. A remedial objective of section 1128 of the Act is
to protect the integrity of federally funded health care
programs, and their recipients and beneficiaries, from
individuals who demonstrate by their conduct that they
cannot be trusted to deal with program funds or to
provide items or services to recipients and
beneficiaries.
37. An ancillary remedial objective of section 1128 of
the Act is to deter individuals from engaging in conduct
which jeopardizes the integrity of federally-funded
health care programs.
38. The regulations set forth in 42 C.F.R. 1001.125(b)
are essentially inapplicable to this case.
39. 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 was so extreme or excessive as to
be unreasonable. 48 Fed. Reg. 3744 (January 27, 1983).
40. If true, the allegations contained in the Minnesota
Board's 1989 Notice are very serious, raise important
questions concerning Petitioner's competency to practice
medicine, and any repetition of the practices alleged
would place Petitioner's patients at significant risk.
41. Petitioner chose to surrender his license rather
than contest the charges against him. FFCL 18.
42. The legislative history of section 1128(b)(4)(B)
raises a presumption of the truthfulness of the allega-
tions which led to the surrender of a practitioner's
license to practice medicine while a formal disciplinary
proceeding was pending before a State licensing authority
and the proceeding concerned the individual's
professional competence, professional performance, or
financial integrity. See S. Rep. No. 109, 100th Cong.,
1st Sess. 3, reprinted in 1987 U.S. Code Cong. & Admin.
News, 682, 688.
43. Petitioner offered essentially the same evidence
previously reviewed by the Minnesota Board to deny the
allegations and rebut the presumption. He additionally
relied on the list of his accomplishments and awards
described in his curriculum vitae.
44. Petitioner offered no evidence to show that he
had changed his conduct to comport with the Discipline
Committee's recommendations in its letter to him of
June 10, 1982. FFCL 8.
45. Considering the nature of the allegations against
Petitioner, any continuation of such activities could
place beneficiaries and recipients of the Medicare and
Medicaid programs at risk.
46. The exclusion imposed and directed against
Petitioner by the I.G. is neither extreme nor excessive.
FFCL 1-45.
RATIONALE
Petitioner, an adolescent psychiatrist, surrendered his
license to practice medicine in the State of Minnesota in
the face of allegations of unprofessional conduct. In my
Ruling of February 8, 1991, I found that the I.G. had the
authority to exclude Petitioner from participation in the
Medicare and Medicaid programs. The only issue now
before me is whether or not the length of the exclusion
imposed and directed against Petitioner is reasonable.
I now find and conclude that the five-year exclusion
imposed and directed against Petitioner by the I.G is
reasonable.
In deciding whether or not an exclusion under section
1128(b)(4)(B) 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 threaten
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., 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)(B) will likely have an adverse financial
impact on the person against whom the exclusion is
imposed (although this may not be true in Petitioner's
case as he is not being compensated for his teaching and
is otherwise not in clinical practice). 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)(B), nor is there a requirement that a
petitioner be excluded until he or she obtains a license
from the state where their license was surrendered.
However, an exclusion until a petitioner obtains a
license from the state where his or her license was
surrendered 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.
This hearing is, by reason of section 205(b) of the Act,
de novo. Evidence which is relevant to the reasonable-
ness 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,
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).
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) may guide me in
making this determination. See Vincent Barratta, M.D.,
DAB Civ. Rem. C-144, aff'd DAB App. 1172 (1990); Leonard
N. Schwartz, DAB Civ. Rem. C-62 (1989). However, these
regulations were adopted by the Secretary to implement
the law as it existed prior to adoption of the 1987
revisions to section 1128, which revisions included
section 1128(b)(4)(B). They specifically apply only to
exclusions for program-related offenses (convictions for
criminal offenses related to the Medicare and Medicaid
programs). This case involves the surrender of a license
for reasons which are not concerned with program
violations and where there has been no immediate program
impact, no program damages, no incarceration, and no
previous record of sanctions against Petitioner. Thus,
these regulations are largely inapplicable.
However, in making a determination concerning the
reasonableness of an exclusion, I also consider those
circumstances which indicate the extent of an individ-
ual'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)(B) case necessitates an
examination of the following considerations: 1) the
nature of the license surrender and the circumstances
surrounding it; 2) the impact of the surrender on the
Medicare and Medicaid programs; 3) whether and when the
individual surrendering the license recognized the
gravity of the conduct that initiated the disciplinary
proceeding; 4) the type and quality of help sought to
correct the behavior leading to the license surrender;
and 5) the extent to which the individual has succeeded
in rehabilitation. See Thomas J. DePietro, R.Ph., DAB
Civ. Rem. C-282 (1991).
Congress concluded that, ordinarily, an exclusion is
justified where providers surrender their licenses to
practice health care to avoid the imposition against them
of adverse findings and sanctions by state licensing
authorities. The legislative history to section
1128(b)(4)(B) suggests Congressional recognition of the
probability that providers who surrender their licenses
to provide health care in the face of disciplinary
charges ordinarily do so in order to avoid the stigma of
an adverse finding. See S. Rep. No. 109, 100th Cong.,
1st Sess. 3, reprinted in 1987 U.S. Code Cong. & Admin.
News, 682, 688. This amounts to a legislative finding
that an inference of culpability ought to attach to those
providers who resign their licenses in the face of state
disciplinary actions. See Bernardo G. Bilang, M.D., DAB
Civ. Rem. C-298 at 14 (1991); John W. Foderick, M.D., DAB
App. 1125 (1990).
To prove his trustworthiness and to rebut any presumption
of untrustworthiness, Petitioner has relied primarily on
the record before the Minnesota Board in 1982 and 1989,
and on the information contained in his curriculum vitae
as amplified in the stipulation of facts. He asserts
that he committed no program violations, he has caused
no harm to the programs, and he has not been a recent
participant in the Medicare program. (P. Br. (2) 16, 17,
19, 21-22). Petitioner emphasizes his lack of a
potential threat to beneficiaries and recipients based on
his inactive license to practice medicine in California
and the fact that it is "highly improbable" that he would
re-enter clinical practice (P. Br. (2) 19, 21, 24).
However, I do not find these assertions persuasive
evidence as to Petitioner's trustworthiness, and I do
not conclude from them that Petitioner would present no
threat to the Medicare and Medicaid programs or to
beneficiaries and recipients of those programs.
Petitioner asserts that he surrendered his license to
practice medicine in Minnesota due to: 1) the passage of
time following these incidents; 2) the fact that he no
longer resided in Minnesota; and 3) that he had retired
from active practice. FFCL 18. Petitioner maintains in
this action that he is innocent of the charges brought
against him by the Minnesota Board and is trustworthy.
However, Petitioner is an adolescent psychiatrist and
the allegations in the Minnesota Board's 1989 Notice
specifically concern Petitioner's relationship with
several adolescent patients over a lengthy period of
time. FFCL 1, 6, 10, 11. If these allegations are true,
Petitioner potentially poses a serious risk of harm to
any patient he might treat. As one of the patients
(whose allegations precipitated the Notice letters to
Petitioner stated): ". . . the consequence of my
relationship with Dr. Wilson has not only been the
persistence of the original symptoms but also the
development of a variety of additional ones. The
ultimate affect has been one of increasing emotional,
physical, and mental distress, exhaustion, and eventual
debilitation." J. Ex. F/19. Rather than personally
respond to these allegations, Petitioner surrendered his
license and agreed not to practice in Minnesota again.
Thus, the veracity of these 1989 allegations has never
been determined by the Minnesota Board. From the
description of the process preceding the allegations of
the Minnesota Board, it is evident that the Minnesota
Attorney General's Office and the Disciplinary Committee
of the Minnesota Board, upon reviewing the investigatory
material, concluded that there was sufficient evidence
to warrant initiation of a second license revocation
proceeding against Petitioner. FFCL 3, 10, 11. It is
unlikely that the Minnesota Board would have closed
Petitioner's case if he had merely resubmitted the
materials offered in connection with the 1982 proceeding
without the proceeding leading to some remedial action.
New allegations of misconduct had been raised and
Petitioner's veracity was placed in question based on his
sworn testimony in a civil action involving one of the
complainants to the Minnesota Board. FFCL 11. Instead
of appearing personally and vigorously defending his
reputation and competency to practice medicine in
Minnesota, Petitioner surrendered his license in return
for some equivocal language in the Stipulation and Order
concerning the staleness of the allegations and the
difficulties of proof. FFCL 18. Congress has indicated
in such circumstances that a presumption exists that a
practitioner who surrenders his license in the face of
charges is equally as culpable as someone who is found
guilty at the end of a contested license revocation
proceeding.
Although Petitioner was aware of this presumption and
that it could be the basis for an exclusion from the
Medicare and Medicaid programs if not rebutted, he chose
not to come forward for an in-person evidentiary hearing
to demonstrate his trustworthiness to be a program
provider. 4/ Instead, Petitioner only submitted his
academic credentials, his curriculum vitae (which lists
his academic honors and professional achievements in
adolescent psychiatry), his curriculum vitae's amplifi-
cation in the stipulation of facts, and the materials he
submitted on his own behalf to the Minnesota Board in
1982 (P. Ex. (2) 1, which includes a statement by
Petitioner concerning the charges, as well as affidavits
of friends and co-workers from 1982 on his behalf) as
proof of his trustworthiness.
At the oral argument of June 28, 1991, Petitioner cited
as an additional basis of his trustworthiness his
continued support from the Board of Directors of the
Wilson Foundation and his lack of removal from a policy
position. Such argument is of little significance, since
Petitioner controls the Foundation as its Chairman and
Chief Executive Officer. J. Ex. A. Moreover, when there
were allegations of his misconduct in the mid 1980's,
Petitioner resigned his active medical position with the
Foundation in Minnesota and left to start a new facility
in California. FFCL 9.
The record is replete with opportunities for Petitioner
to have directly confronted the Minnesota Board's
allegations. However, in each instance, Petitioner
instead relied on counsel to defend him in Petitioner's
absence. I am concerned that Petitioner does not yet
understand the seriousness of the allegations and their
obvious negative implications on his competence to
continue to practice medicine, especially adolescent
psychiatry. His voluntary early withdrawal from clinical
practice concerns me, especially in light of his academic
credentials and interest in innovative psychiatric
treatment. Petitioner may have realized that he might
present a risk to his patients. He may have responded to
that risk solely by withdrawing from practice, rather
than admit that his past behavior in Minnesota warranted
remedial action and rehabilitative measures.
Significantly, Petitioner has not demonstrated to me that
he ever addressed the Discipline Committee's concerns, or
in any way modified his behavior to comport with the
Discipline Committee's recommendations. It is possible
that these recommendations, which went to the heart of
Petitioner's practice of adolescent medicine, may never
have been addressed and the behavior in question may
never have been modified. If I could be assured that
Petitioner would not engage in clinical practice in the
future, the need for an exclusion from the programs would
be lessened. However, Petitioner maintains an inactive
license which can readily be activated with only 50 hours
of continuing education courses. Also, the record is
equivocal as to whether Petitioner can continue to teach
at Cedars-Sinai Medical Center without an active license
and direct patient care. See FFCL 31, 33.
When I evaluate the evidence in this case as it regards
Petitioner's trustworthiness, I find that Petitioner
surrendered his license in the face of particularly
serious allegations of misconduct which lasted over a
lengthy period of time. If these allegations are true,
and if Petitioner ever re-entered clinical practice,
Petitioner's conduct could have devastating implications
on the fragile psyches of disturbed psychiatric patients
who might be program beneficiaries or recipients.
Petitioner has given me no evidence that he ever
confronted these allegations, nor has he given me any
evidence as to whether or not he addressed the grave
concerns raised by the Discipline Committee. I do not
know whether Petitioner changed his behavior with regard
to the Discipline Committee's recommendations, or how far
his rehabilitation of his behavior may have progressed.
Where the danger of harm to patients is great, a lengthy
exclusion is justified to insure that program recipients
and beneficiaries are protected from even a slight
possibility that they will be exposed to such danger.
Bernard Lerner, M.D., DAB Civ. Rem. C-48 at 9 (1989);
Michael D. Reiner, R.M.D., DAB Civ. Rem. C-197 (1990);
Norman C. Barber, D.D.S., DAB Civ. Rem. C-198 (1991).
I am unable to conclude that Petitioner did commit the
practices alleged against him by the Minnesota Board.
Equally, I am unable to conclude that he did not commit
such practices. He did surrender his license and agreed
never to practice medicine in Minnesota when faced with
allegations of the Minnesota Board. Petitioner's
surrender of his license in such circumstances raises
the presumption of his lack of trustworthiness. He has
failed to provide convincing evidence to rebut such
presumption. He chose not to participate in an in-person
hearing where: 1) he could respond personally to the
charges of the Minnesota Board; and 2) his trustworthi-
ness could be evaluated through an assessment of his
demeanor and credibility. In sum, I do not find that
Petitioner has demonstrated his trustworthiness to me in
such a way that I can find that the exclusion directed
and imposed against Petitioner by the I.G. is so extreme
or excessive as to be unreasonable.
CONCLUSION
Based on the evidence in this case and the law, I
conclude that the five-year exclusion imposed against
Petitioner from participating in the Medicare and
Medicaid programs is reasonable. Therefore, I sustain
the exclusion imposed against Petitioner, and I enter a
decision in favor of the I.G.
Edward D. Steinman
Administrative Law Judge
1.
"State health care program" is defined by section
1128(h) of the Social Security Act, 42 U.S.C. 1320a-7(h),
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.
In Petitioner's response to the I.G.'s motion for
summary disposition, Petitioner asserted that the period
of exclusion was excessive and unreasonable. (P. Br. (1)
16).
3.
Citations to the record in this Decision are as
follows:
I.G. Exhibits I.G. Ex. (number/page)
I.G. Brief (12/3/90) I.G. Br. (1) (page)
I.G. Reply Brief (1/11/91) I.G. R. Br. (1) (page)
I.G. Brief (May 8, 1991) I.G. Br. (2) (page)
I.G. Reply Brief I.G. R. Br. (2) (page)
(May 31, 1991)
Petitioner's Exhibits P. Ex. (1) (letter/page)
(12/14/90)
Petitioner's Exhibits P. Ex. (2)
(5/20/91) (number/letter/page)
Petitioner's Brief (12/14/90) P. Br. (1) (page)
Petitioner's Brief (5/20/91) P. Br. (2) (page)
Joint Stipulation of Facts Stip. (page)
Joint Exhibits J. Ex. (letter/page)
Findings of Fact and FFCL (number)
Conclusions of Law
4.
My Ruling of February 8, 1991 dealt in detail with the
basis for this presumption of untrustworthiness.
Subsequently, I gave him several opportunities to present
evidence to counter this presumption in an in-person
hearing, but he chose to rely on a paper record.