Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
In the Case of:
Behrooz Bassim, M.D.,
Petitioner,
- v -
The Inspector General.
DATE: December 16, 1991
Docket No. C-388
DECISION
By letter dated May 17, 1991, the Inspector General
(I.G.) notified Petitioner that he was being excluded
from participation in the Medicare and State health care
programs until he obtained a valid license to provide
health care 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 the Commissioner of Education. Petitioner was
further advised that his exclusion was authorized by
section 1128(b)(4)(A) of the Social Security Act (Act).
By letter of May 24, 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 June 24,
1991. During this conference, Petitioner admitted that
his license to practice medicine in the State of New York
had been revoked. Petitioner also stated that he was in
the process of appealing that revocation.
On August 22, 1991, I conducted an evidentiary in-person
hearing in this case in New York, New York. Based on the
record as developed by both parties 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.
ISSUES
1. Whether the I.G. had a basis upon which to exclude
Petitioner under section 1128(b)(4)(A) of the Act.
2. Whether the exclusion directed and imposed against
Petitioner by the I.G. is reasonable.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. At all relevant times, Petitioner was a physician in
the general practice of medicine in Potsdam, New York.
Tr. 65 - 67. 2/
2. Petitioner was licensed to practice as a physician by
the New York State Department of Education. I.G. Ex.
1/1.
3. On March 14, 1989, Petitioner was charged by the New
York Department of Health, State Board for Professional
Medical Conduct, with several counts of conduct
evidencing moral unfitness and several counts of physical
abuse of patients. I.G. Ex. 1/A.
4. Specifically, these charges dealt with Petitioner's
care and treatment of three female patients ("A", "B",
and "C") between the years 1985 - 1988. The charges
stated that Petitioner engaged in inappropriate and
improper physical and/or sexual contact with these
patients, including intercourse, and that he
inappropriately fondled and caressed these patients.
I.G. Ex. 1/A(1-4); B(3).
5. A Hearing Committee of the New York State Department
of Health, State Board for Professional Medical Conduct
(Hearing Committee), following an in-person evidentiary
hearing, unanimously concluded on December 19, 1989 that
all the factual allegations set forth in the Statement of
Charges were sustained by a preponderance of the
evidence. I.G. Ex. 1/B(18).
6. The Hearing Committee recommended that Petitioner's
license to practice medicine in the State of New York be
revoked. The Hearing Committee concluded:
. . . [Petitioner's] conduct [is] a very serious
violation of his responsibility to patients and in
gross contravention of his ethical obligations.
Inherent in the practice of medicine is the fact
that patients come to a physician seeking help and,
based on trust, place themselves in extremely
vulnerable circumstances. In the opinion of the
Committee, a physician who takes advantage of this
trust acts in a reprehensible manner. [Petitioner]
has abused three patients for his own gratification.
I.G. Ex. 1/B(19 - 20).
7. On May 18, 1989, the New York State Commissioner of
Health (Health Commissioner), recommended to the New York
State Board of Regents (Board of Regents), that the Board
of Regents adopt and incorporate the Hearing Committee's
findings of fact, conclusions of law, and its
recommendation to revoke Petitioner's license. I.G. Ex.
1/C(1 - 2).
8. On September 17, 1990, the Board of Regents' Review
Committee (Regents' Review Committee) unanimously
recommended to the Board of Regents that the Hearing
Committee's and Commissioner's findings of fact,
conclusions of law, and recommendation be accepted and
that Petitioner's license to practice be revoked. I.G.
Ex. 1/3 - 4.
9. The Regents' Review Committee specifically rejected
Petitioner's contention that the hearing be reopened to
allow for a physical demonstration concerning the
misconduct charged. The Regents' Review Committee stated
that Petitioner had a full and fair opportunity to
present his case and that the record contained more than
adequate evidence from which to assess his conduct. I.G.
Ex. 1/3.
10. On October 19, 1990, the Board of Regents voted to
accept the Recommendation of the Regents' Review
Committee regarding the Hearing Committee's findings of
fact, conclusions and recommendation, and voted to revoke
Petitioner's license to practice medicine. I.G. Ex. 2/1.
11. On October 26, 1990, Petitioner's license to
practice as a physician in the State of New York was
revoked by the State of New York's Commissioner of
Education (Education Commissioner). I.G. Ex. 2/1 - 2.
12. Petitioner is eligible to apply for restoration of
his license one year from the effective date of the
revocation. Such application is not automatically
granted. I.G. Ex. 3; Tr. 7 - 8.
13. A temporary stay of Petitioner's license revocation
was granted on November 7, 1990. That stay was vacated
on January 25, 1991. I.G. Ex. 4.
14. Petitioner is now appealing his license revocation
in the New York Supreme Court, Appellate Division, Third
Department. P. Ex. 12.
15. On September 11, 1991, the New Jersey Board of
Medical Examiners revoked Petitioner's license to
practice medicine. P. Br. 1; Tr. 10.
16. The Secretary of DHHS (the Secretary) delegated to
the I.G. the authority to determine, 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.
17. On May 17, 1991, 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.
18. The I.G. had authority to impose and direct an
exclusion against Petitioner. FFCL 11.
19. The I.G. excluded Petitioner until such time as he
received a license to practice medicine in New York.
20. Prior to his State license revocation, Petitioner,
based on alleged incompetency, lost hospital privileges
at the Canton-Potsdam Hospital, the only hospital in
which he could practice. Tr. 89 - 99.
21. Petitioner does not believe he needs any
rehabilitation and has not gone for counseling. Tr. 82 -
83, 87 - 88.
22. Petitioner has expressed no intention to practice
anywhere other than in the State of New York.
23. Petitioner currently is not licensed to practice
medicine in any State. P. Br. 9.
24. The exclusion imposed and directed against
Petitioner by the I.G. is reasonable, i.e., it is neither
extreme or excessive. FFCL 1 - 23.
RATIONALE
Petitioner, a former physician in family practice, had
his license to practice medicine revoked, based on
findings that Petitioner had engaged in inappropriate
physical or sexual contact with three of his patients.
FFCL 3 - 11. The I.G., pursuant to section
1128(b)(4)(A) of the Act, then excluded Petitioner from
participation in the Medicare and Medicaid programs until
Petitioner regains his license to practice medicine in
the State of New York. FFCL 17.
Petitioner vigorously denies that he is guilty of the
charges upon which his license was revoked, and has
stated in his defense to this action that he is innocent
of all the charges against him. Petitioner is now
appealing his license revocation in the New York courts,
and also is contesting the reasonableness of the I.G.'s
exclusion of him in this forum.
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.
The I.G.'s authority to exclude Petitioner emanates from
section 1128(b)(4)(A), which states that a permissive
exclusion applies when an individual's license has been
revoked by a State licensing authority, for reasons
bearing on his professional competence, professional
performance, or financial integrity. Petitioner's
license was revoked by the Education Commissioner, a
State licensing authority, for reasons bearing on his
professional competence/performance (the finding of
inappropriate and improper physical or sexual contact
with patients). Petitioner does not dispute this and
admits that the I.G. has authority to exclude him. P. R.
Br. 3; Tr. 77.
2. Exclusion of Petitioner until such time as he regains
his license to practice medicine in the State of New York
is reasonable and appropriate.
Petitioner vehemently objects to the reasonableness of
that exclusion. The essence of his objection is that the
State licensing authority did not provide him due process
and committed numerous errors in rendering an adverse
decision against him.
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 CR137 (1991); Roderick L. Jones, DAB
CR98 (1990); Frank J. Haney, DAB CR81 (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.
An exclusion imposed and directed pursuant to section
1128 of the Act advances this remedial purpose. The
principal purpose is to protect programs and their
beneficiaries and recipients from untrustworthy providers
until the providers demonstrate that they can be trusted
to deal with program funds and to properly serve
beneficiaries and recipients. As an ancillary benefit,
the exclusion deters other 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.
Deterrence cannot be a primary purpose of imposing an
exclusion. Where deterrence becomes the primary purpose,
section 1128 no longer accomplishes a civil remedial
purpose, but punishment becomes the end result. Such a
result has been determined by the Supreme Court to
contravene the Constitution and beyond the purpose of a
civil remedy statute. See, United States v. Halper, 490
U.S. 448 (1989). Here, deterrence is at best a remote
objective of the I.G.'s exclusion of Petitioner.
An exclusion imposed and directed pursuant to section
1128 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. Walter
J. Mikolinski, Jr., DAB 1156 at 20 (1990). 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
1231 at 9 (1991); Richard L. Pflepsen, D.C., DAB CR132
(1991); John W. Foderick, M.D., DAB 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)(1) 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, 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) provide some
guidance in making this determination. See Vincent
Barratta, M.D., DAB CR62 (1990), aff'd DAB 1172 (1990);
Leonard N. Schwartz, DAB CR36 (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)(A). 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 revocation 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.
The I.G. argues that proposed regulatory changes would
require exclusions for section 1128(b)(4) revocations or
suspensions to be for a period of time not less than the
period during which an individual's license is revoked,
suspended or otherwise not in effect as a result of, or
in connection with a State licensing action. I.G. Br. at
2, 3; 55 Fed. Reg. 12,205 and 12,218 (1990). However,
until the final version of the proposed regulations
implementing the permissive exclusionary authority of
section 1128(b) is promulgated, I am not limited to
imposing an exclusion period at least coterminous with
that imposed by the State licensing authority.
Mikolinski supra. However, such proposed regulations can
be used to provide "some indication about the Secretary's
preliminary interpretation of how the section 205(b)(1)
provisions apply in permissive exclusion cases". Vincent
Baratta, M.D., DAB 1172 (1990) at 8.
The reasonableness of the exclusion is determined by
considering the circumstances which indicate the extent
of an individual's or entity's trustworthiness to be a
program provider of services. 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 of the revocation on the Medicare and
Medicaid programs; 3) whether and when the individual
whose license was revoked 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 revocation; and 5) the
extent to which the individual has succeeded in
rehabilitation. 3/ See Thomas J. DePietro, R.Ph., DAB
CR117 (1991); Myron R. Wilson, Jr., M.D., DAB CR146
(1991); Dillard P. Enright, DAB CR138 (1991); Sheldon
Stein, M.D., DAB CR144 (1991).
In argument in support of his trustworthiness and against
the reasonableness of his exclusion, Petitioner states
that: 1) the I.G. should have verified Petitioner's guilt
before taking an adverse action against him (P. Br. 7 -
8); 2) Petitioner's brief to the New York State Appellate
Court (P. Ex. 12) demonstrates Petitioner's innocence of
the charges against him (P. Br. 8); 3) Petitioner has
provided evidence of his trustworthiness through
statements of his patients and colleagues (P. Br. 9, P.
Ex. 1 - 6); and 4) Petitioner is unlicensed in any State
and will not practice medicine again until he is
licensed, so that any decision by the I.G. should be
postponed until the New York courts decide the outcome of
his case (P. Br. 9).
Petitioner argues that the I.G. should have made an
independent assessment of his guilt, and he offers
evidence in an attempt to prove that the decision to
revoke his license was erroneous and was lacking in due
process. In essence, Petitioner is attempting to
establish his trustworthiness by collaterally attacking
the action taken by the Education Commissioner.
Appellate panels of the Departmental Appeals Board have
determined that claims of impropriety in State license
revocation proceedings are not relevant to deciding
whether the I.G. acted improperly to impose and direct
exclusions pursuant to section 1128(b)(4)(A). See John
W. Foderick, M.D., DAB 1125 (1990); Andy E. Bailey, C.T.,
DAB 1131 (1990); Leonard R. Friedman, M.D., DAB 1281
(1991). There is an excellent explication of the
rationale prohibiting collateral challenges in section
1128(b)(4)(A) exclusion actions based on alleged failings
of State licensing revocation proceedings in Friedman,
supra. The appellate panel relied on the following
rationale:
1. There is no requirement in section 1128(b)(4)(A)
that the I.G. go behind the State proceeding to
review the state process and standards used in the
revocation process.
2. The legislative history provides that the only
qualification of the I.G.'s authority to exclude
practitioners based on actions of State licensing
authorities concerns "minor infractions not relating
to quality of care, such as failure to pay licensing
fees or violations of strict advertising require-
ments." S. Rep. No. 109, 100th Cong., 1st Sess. 7,
reprinted in 1987 U.S. Code Cong. & Admin. News 682,
688.
3. A division of responsibility between State and
federal governments is reasonable since State
licensing authorities have a compelling interest in
the practice of professions within their boundaries
and in insuring that practitioners operating
pursuant to State licenses are qualified and honest.
The licensing authorities are appropriately in the
best position to determine whether a license should
be revoked because they have a fundamental interest
in the practitioner's fitness, better access to the
evidence concerning fitness, and more experience and
expertise in applying the relevant State licensing
standards.
4. A preclusion of collateral attacks on State
licensing authorities' revocations does not infringe
on the constitutional rights of practitioners. Such
practitioners have ample opportunity to raise such
issues in appeals taken directly from the State
license revocation determinations.
5. Allowing collateral challenges would result in a
duplication of the State proceeding and would be
wasteful. Patients of practitioners would be
required to appear in two proceedings to provide
evidence of alleged offenses.
6. Considering the size of and cost for
administering the Medicare and Medicaid programs,
congressional reliance on derivative actions as a
means to police such programs is reasonable and
appropriate, particularly in light of State
authorities' primary jurisdiction over, and interest
in, the conduct of their own licensees.
7. When Petitioners believe there are serious flaws
in the actions of the State licensing authorities,
rather than mounting collateral attacks in exclusion
proceedings, they should initiate appeals in the
appropriate State forums.
Friedman, supra. at 6 - 9.
Thus, in my review of the exclusion imposed by the I.G.,
I need not make a finding whether Petitioner is innocent
or guilty of the charges alleged in the State licensing
board action. The appropriate forum for such review is
the appellate court in New York. Petitioner has
undertaken an appeal of the license revocation in the New
York Supreme Court. 4/ FFCL 15. Petitioner has had
ample opportunity through: 1) testimony at hearings
(where he was represented by counsel); 2) review and
adoption of the recommendations of the Hearing Committee
and the Regents' Review Committee by the Board of
Regents; and 3) judicial review of such actions by the
State licensing authority to prove that he is innocent of
the charges leveled at him. The rationale cited by the
appellate panel in Friedman, supra, for prohibiting a
collateral attack on the license revocation proceeding in
the section 1128(b)(4)(A) exclusion action is equally
applicable here.
All of the alleged flaws in the license proceeding
asserted by Petitioner will be fully considered by the
New York Supreme Court. Repeating such a review in this
proceeding is unnecessary, particularly where
Petitioner's exclusion is coterminous with the New York
license revocation and he seeks no alternative form of
exclusion, such as a term of years. Likewise, neither
the I.G. nor I have an obligation in the instant case to
independently review the evidence contained in the New
York license revocation proceeding or to consider new
evidence relating to whether Petitioner committed the
alleged misconduct. 5/
Unlike the case at bar, there will be exceptional
situations where petitioners in section 1128(b)(4)(A)
actions should be given an opportunity to present
evidence relating to the factual allegations contained in
the license revocation/suspension proceeding. In short,
application of the Friedman rationale would lead to an
unreasonable exclusion and prevent a proper evaluation of
a petitioner's trustworthiness to be a program provider.
6/ Among the factors used to determine a petitioner's
trustworthiness would be the extent of the petitioner's
culpability for the conduct which formed the basis of the
license revocation decision. See, Christino Enriquez,
M.D., DAB CR119 (1991); Eric Kranz, M.D., DAB CR148
(1991).
When I evaluate the evidence in this case as it regards
Petitioner's trustworthiness, I find that the nature of
the charges upon which Petitioner's license revocation
was based are very grave. The State of New York, from
the Hearing Committee to the Board of Regents, all found
that Petitioner had committed particularly serious acts
of inappropriate and improper physical or sexual contact
with patients, breaching the trust between physician and
patient in "gross contravention of his ethical
obligations". I.G. Ex. 1/B (19).
A physician who might take advantage of his patients for
his own sexual gratification would pose a very great
danger to Medicare and Medicaid beneficiaries and
recipients. Petitioner's only reaction to these charges
has been to state his complete innocence. Petitioner has
not sought counseling and denies he is in need of any
rehabilitation.
In support of his trustworthiness, Petitioner has
submitted numerous letters and petitions from patients
and colleagues attesting to his good character (P. Ex. 1 -
6). I have carefully read and considered all of this
evidence, as well as Petitioner's statement that he has
no other medical licenses and will not practice medicine
in any State until his name is cleared. P. Br. 9.
However, Petitioner is not precluded from attempting to
get a license in another jurisdiction. Where the danger
of harm to patients is great, 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
CR60 at 9 (1989); Michael D. Reiner, R.M.D., DAB CR90
(1990); Norman C. Barber, D.D.S., DAB CR123 (1991).
In this case, the I.G. has excluded Petitioner until he
regains his license to practice medicine in New York. He
may seek reinstatement of his license to practice
medicine in New York after the expiration of one year
from the date of his license revocation. FFCL 12.
Moreover, Petitioner is vigorously pursuing appeal of his
license revocation in the New York Supreme Court, the
proper forum in which Petitioner's guilt or innocence of
his alleged misconduct will ultimately be decided. I
need not find that Petitioner did commit the actions for
which his license was revoked. Equally, I am unable to
conclude that he did not commit those actions.
Petitioner has not stated that he intends to leave New
York or that he now has a license in another
jurisdiction. Neither is he forever precluded from
regaining his New York license. In assessing his
trustworthiness, Petitioner's presentation of testimonial
letters attesting to his competency and good moral
character is counterbalanced by his own admission that he
lost his sole hospital privileges to practice medicine
prior to his license revocation.
Giving Petitioner the benefit of the doubt, I give no
weight to his present absence of admission of guilt or
lack of rehabilitation or treatment. Petitioner's
position is that he is innocent and that he is not in
need of rehabilitation while he awaits the results of his
appeal of the license revocation. Petitioner's lack of
rehabilitation should only be considered if his license
revocation is upheld on appeal.
Petitioner does not contest the authority of the I.G.
under section 1128(b)(4)(A) to exclude him. His sole
reason for challenging the imposed coterminous exclusion
is his contention that he is innocent of the facts found
by the New York licensing authority as supporting his
license revocation. He is presently pursuing an appeal
of that action. The I.G.'s exclusion of Petitioner is
based on a derivative action. All of the relevant
factors pertaining to Petitioner's trustworthiness and
his ability to be a responsible Medicare and Medicaid
provider in the future emanate from his New York license
revocation and his pending appeal. Under these
circumstances, it is reasonable that Petitioner be
excluded until such time as New York determines that he
is trustworthy to practice medicine again.
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 exclusion imposed against Petitioner
from participating in the Medicare and Medicaid programs
until he obtains a valid license to practice medicine in
the State of New York 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 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. 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)
I.G. Reply I.G. R. Br. (page)
Brief
Petitioner's Exhibits P. Ex. (number/page)
Petitioner's Brief P. Br. (page)
Petitioner's Reply P. R. Br. (page)
Brief
Findings of Fact and FFCL (number)
Conclusions of Law
Departmental Appeals DAB CR(decision no.)
Board ALJ Decisions (date)
Departmental Appeals
Board Appellate
Panel Decisions DAB (decision no.)(date)
3. As indicated previously, the criteria used to
evaluate the reasonableness of a permissive exclusion
absent the promulgation of final regulations are taken
from the regulations currently in place for "program
related" offenses arising under section 1128(a) of the
Act as set forth in 42 C.F.R. 1001.125(b). The factors
used to evaluate the Petitioner's trustworthiness have
been modified to make them applicable to a license
revocation action.
4. I have carefully read the transcript of Petitioner's
hearing before the Hearing Committee (I.G. Ex. 10) and
Petitioner's analysis of that hearing in his brief to the
New York Supreme Court (P. Ex. 12). Petitioner has
raised many issues concerning due process violations and
other problems having to do with his hearing before the
Hearing Committee. None of these issues, which go to
Petitioner's innocence of the charges upon which his
license was revoked, are properly before me.
5. Also unpersuasive is Petitioner's assertion that
Joseph Lowry, the I.G.'s program analyst, was required to
review the transcript of the hearing before the Hearing
Committee and thus independently assess Petitioner's
guilt prior to his recommendation that Petitioner be
excluded from Medicare and Medicaid. P. Br. at 7 - 8.
Petitioner's coterminous exclusion is based on a
derivative action. The I.G. needs only to establish the
existence of the factual elements contained in section
1128(b)(4)(A), unless there are circumstances which place
in doubt the reasonableness of the imposed exclusion. As
I have indicated, there are none in this case.
6. For example, when: 1) the I.G. seeks a period of
exclusion which is longer than the period of the license
revocation or suspension; or 2) an indefinite exclusion
may in fact be an exclusion for life (or for a patently
unreasonable period of time) due to the terms of license
revocation itself or the petitioner's ability to practice
in another state and the petitioner's lack of intention
to seek restoration of the revoked license, such
circumstances would warrant an evaluation of the evidence
of the petitioner's challenged conduct to determine the
reasonableness of the exclusion imposed.