Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
In the Case of: Tajammul H. Bhatti, M.D., Petitioner,
- v. -
The Inspector General.
DATE: December 14, 1992
Docket No. C-92-045
Decision No. CR245
DECISION
This case is governed by section 1128 of the Social Security Act (Act). By
letter dated December 12,
1991, the Inspector General (I.G.) notified Petitioner that he was being excluded
from participation in the
Medicare and State health care programs. 1/ The I.G. advised Petitioner that
his exclusion was due to the
fact that his license to practice medicine in the State of Wisconsin was revoked
by the Wisconsin Medical
Examining Board (Wisconsin Medical Board). The I.G. asserted that the exclusion
was authorized by
section 1128(b)(4)(A) of the Act. Petitioner was advised that the exclusion
would remain in effect until
such time as Petitioner obtained a valid license to practice medicine in the
State of Wisconsin. 2/ The I.G.
told Petitioner that when he obtained a valid license, he had the right to apply
for reinstatement to the
Medicare and Medicaid programs.
Petitioner timely requested a hearing before an Administrative Law Judge (ALJ),
and the case was assigned
to me for hearing and decision. Petitioner appeared pro se throughout this proceeding.
On February 7,
1992, I issued an Order and Notice of Hearing and Schedule for Filing Motions
for Summary Disposition.
The I.G. moved for summary disposition by filing a motion and brief. Petitioner
did not file a response.
During a conference call with the parties, I denied the I.G.'s request for summary
disposition.
I conducted an in-person hearing in Washington, D.C. on June 11, 1992. The
parties were given the
opportunity to file posthearing briefs and proposed findings of fact and conclusions
of law. The I.G. filed a
posthearing brief and proposed findings of fact and conclusions of law. Petitioner
did not file a
posthearing brief or proposed findings of fact and conclusions of law.
I have considered the evidence of record, the parties' arguments, and the applicable
law. I conclude that
the I.G. was authorized to impose and direct an exclusion against Petitioner
pursuant to section
1128(b)(4)(A) of the Act. However, I find that the indefinite exclusion imposed
and directed by the I.G. is
unreasonable. I modify the exclusion to a five-year exclusion.
ISSUES
1. Whether the new regulations published on January 29, 1992 govern the disposition of this case.
2. Whether the I.G. had a basis upon which to exclude Petitioner pursuant to
section 1128(b)(4)(A)
of the Act.
3. Whether the 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 and is licensed to practice medicine in Virginia
and West Virginia. I.G.
Ex. 13/37. 4/
2. Petitioner was licensed to practice medicine in Wisconsin and South Dakota. I.G. Exs. 2, 8.
3. Petitioner practiced psychiatry in South Dakota from 1976 to 1989. I.G. Ex. 13/38-39.
4. On November 29, 1988, the South Dakota State Board of Medical and Osteopathic
Examiners
(South Dakota Medical Board) filed a complaint against Petitioner alleging that
he engaged in
unprofessional conduct and gross incompetence because of his improper sexual
contacts with a female
patient he was treating for bulimia, anorexia, and depression. I.G. Ex. 4/1-2.
This patient was also
employed by Petitioner. Tr. at 29.
5. South Dakota law provides that the following is unprofessional conduct:
"the exercise of
influence within the physician-patient relationship for the purposes of engaging
a patient in sexual activity,
and for the purposes of this statute, the patient is presumed incapable of giving
free, full and informed
consent to sexual activity with the physician." S.D. Codified Laws Ann.
36-4-30(19). I.G. Ex. 9/3.
6. Petitioner has admitted that he had a sexual relationship with a patient
whom he was treating for
psychological problems. Tr. at 12, 28; I.G. Ex. 13/39.
7. On March 29, 1989, Petitioner voluntarily entered into a Stipulation on
Agreed Disposition
(Stipulation) with the South Dakota Medical Board. The Stipulation provided
that Petitioner's license to
practice medicine would be suspended for four years and that the suspension
would be stayed during a
four-year period of probation if Petitioner met certain conditions of probation.
I.G. Ex. 5; I.G. Ex. 13/113.
8. The Stipulation required in part that, during probation, Petitioner should:
(1) obtain an evaluation
and/or assessment of his condition from Dr. Gary Schoener, a psychologist who
specializes in counseling
sexual misconduct by therapists, or his designee; (2) not practice medicine
by direct patient care for one
year or until his condition was successfully treated, whichever was longer;
(3) not engage in the solo
practice of medicine by direct medical care; and (4) not see, treat, or enter
into a physician-patient
relationship with female patients. I.G. Ex. 5; Tr. at 31.
9. The Stipulation also provided that the South Dakota Board could summarily
cancel Petitioner's
license to practice medicine if Petitioner violated any of the terms of the
Stipulation. I.G. Ex. 5/7.
10. Petitioner agreed to voluntarily surrender his Drug Enforcement Administration
(DEA) certificate
as a result of the Stipulation. Tr. at 13, 36; I.G. Ex. 7/2; I.G. Ex. 13/49.
11. On February 28, 1992, the South Dakota Medical Board canceled Petitioner's
license to practice
medicine in South Dakota since Petitioner violated the Stipulation in the following
ways: (1) Petitioner
engaged in direct patient care within one year of entering the Stipulation;
(2) Petitioner failed to get an
assessment of his condition as required; and (3) Petitioner treated female patients
within four years of
entering the Stipulation. I.G. Ex. 8.
12. The South Dakota Medical Board is a State licensing authority, within the
meaning of section
1128(b)(4)(A).
13. Physical conduct of a sexual nature between a physician and patient is
a professional activity and
is related to Petitioner's professional competence and professional performance.
FFCL 4-11; I.G. Ex. 5.
14. Petitioner's license was revoked by the South Dakota Medical Board for
reasons bearing on his
professional competence and professional performance. FFCL 4-11.
15. On February 19, 1991, the Wisconsin Medical Board held a hearing to determine
whether
Petitioner's license to practice medicine in Wisconsin should be revoked. Neither
Petitioner nor his
representative appeared at the hearing held by the Wisconsin Board. I.G. Ex.
2.
16. The Wisconsin Medical Board determined that Petitioner had failed to obtain
the psychological
evaluation and treatment required by his Stipulation with the South Dakota Medical
Board. I.G. Ex. 2/2.
17. The administrative law judge presiding at the hearing at the Wisconsin
Medical Board determined
that Petitioner's failure to obtain counseling as required by his Stipulation
with the South Dakota Board left
an "unanswered question as to whether or not [Petitioner] suffers from
any psychological and/or physical
condition(s) adversely effecting his ability to practice
. . . it is my opinion that the protection of the public requires that [Petitioner]
not be permitted to practice
medicine and surgery in the State of Wisconsin at this time." I.G. Ex.
2/2.
18. On March 20, 1991, the Wisconsin Medical Board revoked Petitioner's license
to practice
medicine. I.G. Ex. 2.
19. The Wisconsin Medical Board revoked Petitioner's license because of activities
bearing on his
professional competence and professional performance, within the meaning of
section 1128(b)(4)(A) of the
Act. FFCL 15-18.
20. By letter dated December 12, 1991, the I.G. excluded Petitioner from participating
in the
Medicare program and directed that he be excluded from participation in the
Medicaid program until he
obtained a valid license to practice medicine in Wisconsin, pursuant to section
1128(b)(4)(A) of the Act.
I.G. Ex. 1/1.
21. During the period August 1989 through November 1990, Petitioner was employed
at
Southwestern Virginia Mental Health Institute (Southwestern). I.G. Ex. 7.
22. While employed at Southwestern, Petitioner failed to comply with the terms
and conditions of the
South Dakota Stipulation. Within one year of the Stipulation, Petitioner engaged
in direct patient care; he
failed to get counseling for his condition; and within four years of the Stipulation,
he treated female
patients. I.G. Ex. 7/1-3; I.G. Ex. 8/2.
23. On at least 11 occasions while practicing at Southwestern, Petitioner failed
to obtain a physician
countersignature on Schedule IV drugs, despite the fact that he did not hold
a valid DEA certificate. I.G.
Ex. 7/2.
24. On October 25, 1990, Petitioner prescribed Haldol for a female patient
with a history of
neuroleptic malignant syndrome, despite the fact that Haldol is contraindicated
for patients with that
condition. The patient required intensive care and treatment because of the
harm resulting from that
erroneous prescription. I.G. Ex. 7/2-3; I.G. Ex. 11/177.
25. Petitioner was terminated from employment at Southwestern due to patient
abuse in the form of
neglect and failure to follow hospital policy. FFCL 23-24; I.G. Ex. 10.
26. In August 1991, the Virginia Board of Medicine (Virginia Board) held a
formal administrative
hearing on Petitioner's violation of the laws governing the practice of medicine
in that State. I.G. Ex. 7.
27. In its October 29, 1991 decision, the Virginia Board of Medicine concluded
in effect that: (1)
because of the restrictions on his license by the South Dakota Medical Board,
Petitioner's practice of
medicine in Virginia was in violation of 54.1-2915.A(3) of the Virginia Code;
(2) Petitioner's violation of
the Stipulation with the South Dakota Medical Board constitute a violation of
54.1-2915.A(3) as defined
in 54.1-2914.A(9) of the Virginia Code; (3) Petitioner's prescribing of Haldol
to a patient when the
medication was contraindicated was gross carelessness and constituted a violation
of 54.1-2915.A(4) of
the Virginia Code; and (4) Petitioner's prescribing medications without the
proper DEA certificate
constituted a violation of 54.1-3303 of the Virginia Code. I.G. Ex. 7.
28. Based on its findings, the Virginia Board of Medicine suspended Petitioner's
license to practice
medicine in Virginia. I.G. Ex. 7/3.
29. The Virginia Board of Medicine stayed its suspension of Petitioner's license
based on terms and
conditions, including: (1) Petitioner should be evaluated by a clinical psychologist
or psychiatrist approved
by the Virginia Board of Medicine and it should receive a report of the evaluation;
(2) Petitioner should
authorize free communication between the Virginia Board of Medicine and his
evaluators; (3) Petitioner's
psychiatric practice should be limited to a group medical setting or his practice
should be supervised by the
Virginia Board of Medicine; and (4) Petitioner should appear before an informal
conference committee of
the Virginia Board of Medicine in one year. I.G. Ex. 7.
30. Petitioner has not yet complied with the terms and conditions imposed by
the Virginia Board of
Medicine. Tr. at 43-44.
31. The Secretary of the Department of Health and Human Services 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.
32. The regulations concerning permissive exclusions pursuant to section 1128(b),
to be codified at 42
C.F.R. 1001, subpart C, published at 57 Fed. Reg. 3298, 3330-42 (Jan. 29, 1992),
were not intended to
apply retroactively to ALJ hearings regarding I.G. exclusion determinations
in which the request for the
ALJ hearing was made prior to the date the regulations were published.
33. The regulations concerning permissive exclusions pursuant to section 1128(b),
to be codified at 42
C.F.R. 1001, subpart C, published at 57 Fed. Reg. 3298, 3330-42 (Jan. 29, 1992),
were not intended to
govern administrative review of I.G. exclusion determinations.
34. The I.G. had authority to impose and direct an exclusion against Petitioner
pursuant to section
1128(b)(4)(A) of the Act. FFCL 4-20. Social Security Act, section 1128(b)(4).
35. The exclusion imposed and directed against Petitioner by the I.G. is extreme
and excessive.
Social Security Act, section 1128(b)(4).
36. The remedial purpose of section 1128 of the Act is to assure that federally
funded health care
programs and their beneficiaries and recipients are protected from individuals
and entities who have
demonstrated by their conduct that they are untrustworthy.
37. The primary purpose of section 1128(b)(4) of the Act is to protect the
Medicare and Medicaid
programs from fraud and abuse and to protect the beneficiaries of those programs
from incompetent
practitioners and from inappropriate or inadequate care. S. Rep. No. 109, 100th
Cong., 1st Sess. 1-2,
reprinted in 1987 U.S.C.C.A.N. 682.
38. An additional purpose of section 1128(b)(4) is to prevent individuals or
entities from evading
sanctions by moving from their home jurisdiction to avoid sanctions imposed
there, and thus protect the
integrity of State regulation of medical professional standards. S. Rep. No.
109, 100th Cong., 1st Sess. 3-4,
reprinted in 1987 U.S.C.C.A.N. 682.
39. Petitioner's admission that he had a sexual relationship with a patient
he was treating for
psychiatric problems is evidence of his untrustworthiness to treat Medicare
and Medicaid program
beneficiaries and recipients. Tr. at 12, 28; I.G. Ex. 13/39.
40. Petitioner's failure to obtain the counseling required by the South Dakota
Medical Board is
evidence of his untrustworthiness to treat Medicare and Medicaid program beneficiaries
and recipients.
41. Petitioner's violation of his Stipulation with the South Dakota Medical
Board is evidence of his
untrustworthiness to meet his obligations under the Medicare and Medicaid health
care programs.
42. Petitioner has failed to admit his responsibility for noncompliance with
the obligations to which
he voluntarily bound himself in his Stipulation with the South Dakota Medical
Board. Tr. at 16; I.G. Ex.
13/45-46, 110, 113, 115-16.
43. Petitioner's use of his move to Virginia to avoid the obligations to which
he voluntarily bound
himself in his Stipulation with the South Dakota Medical Board is evidence of
his untrustworthiness to
meet his statutory and regulatory obligations under the Medicare and Medicaid
health care programs. I.G.
Ex. 13/43.
44. Petitioner offered no evidence to show that he had changed his conduct
to comport with the
Stipulation entered into with the South Dakota Medical Board, or the terms imposed
on him by the
Wisconsin Medical Board or the Virginia Board of Medicine.
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 I.G. has not shown that an exclusion until Petitioner regains his license
to practice medicine
in either Wisconsin or South Dakota is reasonably necessary to satisfy the remedial
purpose of section
1128 of the Act. FFCL 1-45.
47. The remedial purpose of section 1128 of the Act will be satisfied in this
case by modifying the
exclusion imposed and directed against Petitioner to a five-year exclusion.
DISCUSSION
Petitioner is a psychiatrist who is licensed to practice medicine in Virginia
and West Virginia. FFCL 1.
Petitioner's medical license was revoked in both Wisconsin and South Dakota.
FFCL 11, 18. The
uncontested facts show that the South Dakota Medical Board filed a complaint
against Petitioner alleging
that he engaged in unprofessional conduct because of his improper sexual contacts
with a female
psychiatric patient. FFCL 4. Petitioner has admitted that he had a sexual relationship
with one of his
female patients. FFCL 6.
On March 29, 1989, Petitioner entered a Stipulation with the South Dakota Medical
Board which provided
that Petitioner's license to practice medicine would be suspended for four years,
but the suspension would
be stayed during a four-year period of probation if Petitioner met certain conditions
of probation. FFCL 7.
The Stipulation also provided that Petitioner was to obtain an evaluation of
his condition from a
psychologist or psychiatrist; he was not to practice direct patient care for
one year; he was not to engage in
solo practice; and he was not to treat female patients. FFCL 8. The Stipulation
also provided that the
South Dakota Medical Board could cancel Petitioner's medical license if he violated
any of the Stipulation's
terms. FFCL 9. Petitioner also voluntarily surrendered his DEA certificate when
he entered the
Stipulation. FFCL 10.
The Wisconsin Medical Board held a hearing to determine whether to revoke Petitioner's
license because
he did not comply with the terms of the Stipulation with the South Dakota Medical
Board. FFCL 15.
After a hearing in which neither Petitioner nor his representative appeared,
the Wisconsin Medical Board
found that Petitioner had violated the Stipulation because he never received
an assessment of his condition.
FFCL 15-16. Subsequently, on March 20, 1991, the Wisconsin Medical Board revoked
Petitioner's license
to practice medicine and surgery. FFCL 18. On February 28, 1992, the South Dakota
Medical Board
canceled Petitioner's license because he violated the Stipulation by: engaging
in direct patient care within
one year of entering the Stipulation; failing to get psychological treatment
as required; and treating female
patients within four years of entering the Stipulation. FFCL 11.
From August 1989 through November 1990, Petitioner was employed at Southwestern.
FFCL 21. While
there, he failed to comply with the terms and conditions of the Stipulation.
FFCL 22-25. While at
Southwestern, Petitioner had direct patient care; he did not get psychological
treatment; he treated female
patients; and he prescribed medicine without having a valid DEA certificate.
FFCL 22-25.
On October 29, 1991, the Virginia Board found that Petitioner had engaged in
direct patient care within
one year of the Stipulation and had treated female patients within four years
of the agreement -- these acts
were performed by Petitioner during the probationary period of the Stipulation.
I.G. Ex. 7. The Virginia
Board found also that when Petitioner prescribed Haldol for a patient with a
history of neuroleptic
malignant syndrome -- which is contraindicated for patients with that condition
-- it caused harm to the
patient; the patient required intensive care and treatment. FFCL 24, 27. The
Virginia Board found also
that Petitioner did not have a valid DEA certificate and he failed to get countersignatures
on 11 filled
prescriptions. FFCL 23, 27. The Virginia Board suspended Petitioner's license
to practice medicine;
however, it stayed the suspension based on Petitioner meeting certain conditions.
FFCL 28-29. Also, the
Virginia Board required Petitioner to appear before an informal conference committee
in one year, which
would monitor his compliance with the terms and conditions of the order, and
the committee would
determine whether Petitioner had to appear before it in the future. FFCL 29.
I. The new regulations published on January 29, 1992 do not establish criteria
which govern my decision
in this case.
In his motion for summary disposition, the I.G. asserts that the regulations
published on January 29, 1992
(57 Fed. Reg. 3298 et seq., to be codified at 42 C.F.R. Part 1001-1007) (new
regulations) control the
disposition of this case. I.G. Br. 7. 5/
The I.G.'s position is without merit in light of the decision in Behrooz Bassim,
M.D., DAB 1333 (1992). In
that case, an appellate panel of the DAB held that, as interpreted by the I.G.,
the new regulations effected a
substantive change in the right of a petitioner to a de novo hearing to challenge
his exclusion pursuant to
section 1128(b)(4)(A) of the Act. For that reason, the panel held that retroactive
application of the new
regulations would deprive petitioner of due process. I conclude that application
of the new regulations to
the present case would similarly materially alter Petitioner's substantive rights.
Therefore, I conclude that
the new regulations do not apply to this case. 6/
II. The I.G. had authority to exclude Petitioner pursuant to section 1128(b)(4)(A)
of the Act.
The I.G. excluded Petitioner from participating in Medicare and directed that
he be excluded from
participating in Medicaid pursuant to section 1128(b)(4) of the Act. Subsection
(A) of that provision
authorizes the Secretary, or his delegate, the I.G., to impose and direct exclusions
against any individual or
entity:
whose license to provide health care has been revoked or suspended by any
State licensing
authority, or who otherwise lost such a license or the right to apply for or
renew such a license, for reasons
bearing on the individual's or entity's professional competence, professional
performance, or financial
integrity.
Petitioner contends that the actions by both the South Dakota Board and the
Wisconsin Board are not for
reasons related to his professional competence and financial integrity. I.G.
Ex. 3. Petitioner contends that
the South Dakota Medical Board revoked his license merely because he failed
to renew his medical license
in that State and not because of his involvement with a patient. 7/ Tr. at 12.
Further, Petitioner claims that
the Wisconsin Medical Board took an adverse action against him because he was
not represented or present
at the hearing before them. Tr. at 12. Petitioner believes that the I.G. is
without authority to impose and
direct an exclusion against him.
I disagree with Petitioner's contentions. South Dakota filed a complaint against
Petitioner alleging that he
engaged in unprofessional conduct because of his improper sexual contacts with
a female psychiatric
patient that he was treating. Based on this allegation, Petitioner voluntarily
entered into a Stipulation with
the South Dakota Medical Board whereby he agreed to a probationary period of
four years with certain
terms and conditions. Petitioner has admitted that he had a sexual relationship
for approximately two years
with a person who worked in his office and who also was a patient of his that
he was treating for
psychological problems. Tr. at 12-13, 18; I.G. Ex. 13/39.
The Wisconsin Medical Board revoked Petitioner's license to practice medicine
on March 20, 1991 because
he violated the terms of the Stipulation with South Dakota. The administrative
law judge for the Wisconsin
Medical Board stated that South Dakota's order which imposed probation on Petitioner
was related to a
"formal disciplinary complaint alleging that [Petitioner] had engaged in
improper sexual contacts with a
patient." I.G. Ex. 2/2.
The terms "professional competence" and "professional performance"
are not defined in section
1128(b)(4)(A) of the Act. However, the plain meaning of the terms encompasses
the ability to practice a
licensed service with reasonable skill and safety consistent with the requirements
of State law and
regulations. Bernardo G. Bilang, M.D., DAB CR141 (1991), aff'd, DAB 1295 (1992).
See also Leonard
R. Friedman, M.D., DAB 1281, at 9-10 (1991) (sexual activity between a psychiatrist
and his patient
clearly bears on his professional competence and performance and the exclusion
falls within
1128(b)(4)(A)). See also Behrooz Bassim, M.D., DAB CR168, at 6 (1991), aff'd,
DAB 1333 (1992)
(improper physical or sexual contact with patients bears on professional competence/performance).
I find that Petitioner's license to practice medicine was revoked by both the
Wisconsin Medical Board and
South Dakota Medical Board -- State licensing authorities -- for reasons bearing
on his professional
competence and professional performance. In this case, Petitioner's sexual relationship
with a patient
clearly bears on his professional competence and professional performance and
the exclusion falls within
section 1128(b)(4)(A) of the Act. I find that the I.G. had the authority to
exclude Petitioner.
III. The exclusion imposed and directed against Petitioner is unreasonable.
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, R.N., 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.C.C.A.N.
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, 9th
Cong., 1st Sess., reprinted in
1977 U.S.C.C.A.N. 3072.
Punishment cannot be the primary purpose of imposing an exclusion. Where punishment
becomes the
primary purpose, section 1128 no longer accomplishes a civil remedial purpose.
Such a result has been
determined by the Supreme Court to contravene the Constitution and to be beyond
the purpose of a civil
remedy statute. See United States v. Halper, 490 U.S. 435 (1989). Here, punishment
is not a primary
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 petitioner obtains a license from the State where
his or her license was
revoked is not per se unreasonable. See Behrooz Bassim, M.D., DAB CR168 (1991),
aff'd, DAB 1333
(1992); Lakshmi N. Murty Achalla, M.D., DAB CR104 (1990), aff'd, DAB 1231 (1991);
John W.
Foderick, M.D., DAB 1125 (1990); Sheldon Stein, M.D., DAB CR144 (1991), aff'd,
DAB 1301 (1992).
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 CR60 (1989); Michael D. Reiner, M.D., DAB
CR90 (1990); Norman
C. Barber, D.D.S., DAB CR123 (1991); Myron R. Wilson, Jr., M.D., DAB CR146 (1991).
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, DAB CR104, at 10-11.
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).
Petitioner vehemently objects to the reasonableness of the exclusion. Tr. at
12-15; I.G. Ex. 3. The essence
of his objection is that the exclusion is not only punitive in nature but it
will force him to practice in a State
where he does not want to practice. Tr. at 16. He feels that since he lost his
family (through divorce) and
his private practice and has had financial difficulties, he "has been punished
enough for that particular
incident [sexual contact with patient]." Tr. at 14; I.G. 13/42-43.
The determination of when a health care provider 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 involves
consideration of multiple factual circumstances. An appellate panel of the DAB,
in adopting criteria
previously outlined by ALJs in section 1128 cases, has provided a listing of
some of these factors, which
include:
the nature of the offense committed by the provider, the circumstances surrounding
the offense,
whether and when the provider sought help to correct the behavior which led
to the offense, how far the
provider has come toward rehabilitation, and any other factors relating to the
provider's character and
trustworthiness.
Robert Matesic, R.Ph., d/b/a Northway Pharmacy, DAB 1327, at 12 (1992). It
is evident that in evaluating
these factors I must attempt to balance the seriousness and impact of the offense
with existing factors
which may demonstrate trustworthiness. The totality of the circumstances of
each case must be evaluated
in order to reach a determination regarding the appropriate length of an exclusion.
In weighing these factors, I conclude that the I.G. has failed to show a meaningful
remedial basis for an
indefinite exclusion until Petitioner regains a valid license to practice medicine
in either Wisconsin or
South Dakota.
In light of Petitioner's intention not to resume the practice of medicine in
Wisconsin or South Dakota, there
is no rational basis to condition reinstatement on his obtaining a license in
either Wisconsin or South
Dakota. In order for an exclusion so conditioned to be reasonable, the evidence
would have to demonstrate
that there is little or no possibility that Petitioner would become trustworthy
unless and until he changed his
mind and chose to return to one of those two States. See Bilang, DAB CR141,
at 11 n.6 (1991). The I.G.
has presented no such evidence.
On the other hand, an exclusion clearly is warranted by the evidence. Section
1128(b)(4)(A) authorizes the
exclusion of providers whose license is revoked or suspended by a State licensing
authority for reasons
bearing on the individual's professional competence, professional performance,
or financial integrity. The
crux of the problem here is that Petitioner allowed his medical judgment to
be clouded when he entered
into a relationship with his patient. Sexual contact between a doctor and his
patient is considered unethical.
Tr. at 29. Petitioner's lapse of judgment indicates a lack of trustworthiness.
This lapse of judgment by
Petitioner could have endangered his patient's health. Petitioner's behavior
demonstrates that he lacks the
ability to distinguish between his duties as a doctor and his personal needs.
Petitioner's behavior shows a
propensity to engage in acts or practices which could endanger the health or
safety of program
beneficiaries or recipients. When referring to his improper sexual contact with
a patient, Petitioner
contends that "this was an unfortunate incident" which took place
from approximately 1983 to 1985. 8/ Tr.
at 12-13. There is no evidence in the record that Petitioner ever did this with
any other patient.
Nevertheless, based on the evidence presented, I find Petitioner to be an untrustworthy
provider of care.
Petitioner points out that the hearing officer for the Virginia Board of Medicine
found that even though
Petitioner had failed to comply with the terms of the Stipulation, his behavior
was not unprofessional
conduct. Tr. at 40; P. Ex. 1/8. However, the hearing officer found also that
the conduct giving rise to the
Stipulation -- improper sexual contacts with a patient -- constituted unprofessional
conduct under the Code
of Virginia. P. Ex. 1/8. The hearing officer submitted proposed findings of
fact and conclusions of law in
which he made these additional findings: (1) the restrictions placed on Petitioner's
license by the
Stipulation constituted a violation of the Code of Virginia; (2) the prescribing
of medicine by Petitioner
without a proper DEA certificate constituted a violation of the Code of Virginia;
(3) the treatment given the
patient who received Haldol was simple negligence. P. Ex. 1. Petitioner's reliance
on the hearing officer's
finding is misplaced, however, because the Virginia Board of Directors disagreed
with the hearing officer
and found that Petitioner's noncompliance with the Stipulation, together with
his misconduct while at
Southwestern -- prescribing medicine without the proper DEA certificate and
prescribing of Haldol to a
patient when the medication is contraindicated -- did violate Virginia law.
Tr. at 40; I.G. Ex. 7. I find that
despite having entered into a Stipulation with South Dakota which imposed certain
conditions on his
license to practice, Southwestern had given Petitioner another chance. Petitioner
violated Southwestern's
trust by engaging in inappropriate conduct while at Southwestern. I find that
Petitioner, when given the
opportunity to redeem himself, again demonstrated that he was untrustworthy.
Petitioner contends that before Southwestern hired him, he fully briefed it
about his Stipulation with South
Dakota. Tr. at 14. David Alex Rosenquist, the Director at Southwestern when
Petitioner applied for a
position as a psychiatrist, testified at the hearing before the Virginia Board
of Medicine that he had seen a
copy of the ruling from South Dakota and that Southwestern made some changes
regarding the terms of the
Stipulation. I.G. Ex. 11/72-73, 76. Mr. Rosenquist stated also that he was aware
that Petitioner was
supposed to be evaluated and entered into therapy and he thought it was unrealistic
to expect him to
commute to Minneapolis to see Dr. Schoener. Id. at 78-79. Mr. Rosenquist left
the issue of finding a
substitute therapist for Petitioner to Petitioner and the Medical Director.
Id. at 79.
Furthermore, in September 1989, Southwestern wrote the Virginia Board of Medicine
indicating that
Petitioner was going to be employed there and that, because of his Stipulation
with South Dakota, there
also would be certain conditions on his employment at Southwestern. Tr. at 26.
Southwestern told the
Virginia Board that there were two provisions in the Stipulation that they determined
that Petitioner did not
have to follow: one involved his engaging in direct patient care and the other
was his treating female
patients. With regard to these two provisions, Southwestern decided that Petitioner
would be supervised by
its Medical Director. Tr. at 26-27. Southwestern did not submit this information
to the Virginia Board of
Medicine for approval but provided it only for information purposes. Tr. at
26-27. Subsequently, the
Virginia Board of Medicine conducted its own investigation. Tr. at 26-27. The
Virginia Board concluded
that Petitioner's noncompliance with the Stipulation, together with the other
unprofessional conduct while
at Southwestern (Petitioner's gross carelessness in prescribing Haldol and his
prescribing medications
without the proper DEA certificate) warranted a suspension of his license, which
was stayed, with certain
conditions being imposed.
Petitioner has not submitted any evidence purporting to show that he is no
longer a threat to the Medicare
and Medicaid programs and that he is a trustworthy provider. He has not submitted
any character
witnesses or colleagues who could testify about his qualities and competency
as a psychiatrist. Further,
Petitioner has not submitted any additional substantive evidence as to his trustworthiness
to practice
psychiatry. Two State medical boards have revoked Petitioner's medical license
because he engaged in
unprofessional conduct. Additionally, it is an aggravating factor that the State
Board of Virginia found
also that Petitioner violated terms of the Stipulation.
Although it appears that Petitioner understands that he displayed inappropriate
behavior by engaging in a
sexual relationship with a patient, I am not convinced that he fully realizes
how serious his acts were. The
Stipulation provided that Petitioner was to get an assessment or evaluation
of his condition from a
psychologist or psychiatrist. I am very concerned that Petitioner has not taken
the directive to get
counseling more seriously. At the hearing in this case, Petitioner argued that
he had his own psychological
evaluation with Dr. Wilfred Abse, his mentor, on an ongoing basis. Tr. at 16.
See also I.G. Ex. 12/6-48.
However, the I.G.'s witness, Karen Perrine, Deputy Executive Director for Disciplinary
Matters for the
Virginia Board of Medicine, testified that while Petitioner had some contact
with Dr. Abse, there was not
an official designation of Dr. Abse by Dr. Schoener to perform the evaluation,
as required by the
Stipulation. FFCL 8; Tr. at 33. Petitioner further claims that once he is employed,
he will have the
financial resources to get the evaluation done. Tr. at 17.
In past cases under section 1128(b)(4), appellate panels of the DAB have stated
that the I.G. has authority
to impose exclusions of an indefinite duration based on relicensure in the State
where the original license
was revoked, suspended, or surrendered. Leonard R. Friedman, M.D., DAB 1281
(1991); John W.
Foderick, M.D., DAB 1125 (1990); Sheldon Stein, M.D., DAB 1301 (1992). As the
appellate panel
concluded in Friedman, such a remedy is reasonable since that State, in exercising
its decision on
relicensure, would act in a careful and prudent manner in the best interest
of its citizens. Friedman, DAB
1281, at 7. In such circumstances, it is appropriate for the Secretary, in discharging
his responsibilities to
the Medicare and Medicaid programs, to defer to such State in determining that
a provider has
demonstrated sufficient trustworthiness to justify seeking application for readmission
into the program.
Here, however, the States of Wisconsin and South Dakota have no further interest
in Petitioner -- he does
not intend to practice in those States.
The exclusion, as modified by my decision to set a term of five years, will
provide Petitioner with a
reasonable period of time within which to reaffirm his trustworthiness as a
program provider. Because
Petitioner has indicated no interest in returning to Wisconsin or South Dakota,
it would be unreasonable to
insist that Petitioner and the States of Wisconsin and South Dakota expend their
resources to reinstate
Petitioner's Wisconsin or South Dakota license simply to enable Petitioner to
treat Medicare and Medicaid
beneficiaries in another State. See Stephen J. Willig, M.D., CR192 (1992); Charles
J. Barranco, M.D.,
DAB CR187, at 36 (1992). On the present facts, the States of Wisconsin and South
Dakota have no further
interest in Petitioner -- he does not practice in either of those States and
does not treat Wisconsin or South
Dakota citizens. Id. at 38.
CONCLUSION
Based on the law and the evidence, 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 than an exclusion until Petitioner regains his license to
practice medicine in either
Wisconsin or South Dakota is extreme or excessive. I therefore modify the period
of exclusion imposed
and directed by the I.G. to a five-year exclusion.
________________________________
Charles E. Stratton
Administrative Law Judge
1. "State health care program" is defined by section 1128(h) of the
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. Unless the context indicates otherwise, I use the term "Medicaid"
hereafter to represent all State
health care programs from which Petitioner was excluded.
2. During the in-person hearing held in this case on June 11, 1992, the I.G.
modified Petitioner's
exclusion. The I.G. stated that Petitioner's exclusion is in effect until he
receives a valid license to practice
medicine in either the State of Wisconsin or the State of South Dakota.
3. 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.
4. Citations to the record in this case are noted as follows:
I.G.'s Exhibits I.G. Ex. (number/page)
I.G.'s Brief I.G. Br. (page)
I.G.'s Posthearing I.G. P. Br. (page)
Brief
Transcript Tr. at (page)
5. The I.G. also argues that under the new regulations, application of 42 C.F.R.
1001.501(b)(1)
would not result in an injustice and that I must affirm the period of exclusion
determined by the I.G. I.G.
Br. 14-15. If I were to agree with the I.G.'s argument, I would have no choice
but to conclude that, despite
statutory language to the contrary, Petitioner is not entitled to an administrative
hearing as to the
reasonableness of the exclusion.
6. I note also that in Steven Herlich, DAB CR197 (1992), the ALJ reasoned that
the regulation cited
by the I.G. establishes criteria to be used by the I.G. in making exclusion
determinations, but does not
establish criteria binding on an ALJ in conducting a de novo review of the reasonableness
of an exclusion.
Id. at 8-16. See also Charles J. Barranco, M.D., DAB CR187 (1992).
7. The Stipulation provided "[t]that Tajammul Bhatti, M.D., . . . renew
license #2183 before March 1
of each year during the duration of this Agreement." I.G. 5/3.
8. When he appeared at the hearing before the Virginia Board of Medicine, Petitioner
testified that "I
got romantically involved with a patient of mine, who also worked for me for
about from 1984 'til '85 and
we had contemplated and considered marriage at a certain time." I.G. Ex.
13/39.