$05:Exclusion Case
Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
In the Case of: Ben Rad, M.D., Petitioner,
- v.-
The Inspector General.
DATE: April 14, 1994
Docket No. C-93-076
Decision No. CR308
DECISION
On March 23, 1993, the Inspector General (I.G.) notified Petitioner
that he was being excluded from participation in the Medicare
program and from certain federally-assisted State health care
programs for a period of three years. 1/ The I.G. told Petitioner
he was being excluded under section 1128(b)(3) of the Social
Security Act (Act), based on Petitioner's conviction of a criminal
offense related to the unlawful manufacture, distribution,
prescription, or dispensing of a controlled substance.
Petitioner requested a hearing and the case was assigned to me. I
scheduled an in-person hearing in this case to begin on October 5,
1993. However, during a telephone conference on August 18, 1993,
Petitioner waived his right to an in-person hearing and the parties
requested that I decide the case on written briefs and exhibits.
On August 19, 1993, I issued a prehearing order in which I
established a briefing schedule.
Petitioner subsequently filed a brief accompanied by proposed
findings of fact and conclusions of law, and four declarations. 2/
The I.G. filed a responsive brief, proposed findings of fact and
conclusions of law, and seven exhibits. 3/ Petitioner filed a
reply brief, to which the I.G. responded with an additional brief.
4/
I have carefully considered the evidence, the parties' arguments,
and the applicable laws and regulations. I conclude that, pursuant
to the criteria specified in 42 C.F.R. 1001.401, the three-year
exclusion is reasonable.
ADMISSION
Petitioner does not dispute that he was convicted of a criminal
offense within the meaning of section 1128(b)(3) of the Act. June
29, 1993 Order and Notice of Hearing at p. 2.
ISSUE
The issue in this case is whether it is reasonable to exclude
Petitioner for three years.
FINDINGS OF FACT AND CONCLUSIONS OF LAW (FFCLs)
1. Petitioner is a physician licensed to practice medicine in the
State of California. P. Ex. 1.
2. On March 6, 1992, the California Attorney General's Office
filed an eight count complaint against Petitioner in the Fresno
County Municipal Court. I.G. Ex. 2 at pp. 4 - 7.
3. The complaint charged Petitioner with one felony count of
offering falsified documentary evidence, one felony count of
preparing falsified documentary evidence, three felony counts of
prescribing controlled substances without medical justification,
two felony counts of furnishing controlled substances outside the
regular practice of his profession, and one misdemeanor count of
creating a false medical record. I.G. Ex. 2 at pp. 4 - 7.
4. On June 2, 1992, Petitioner pled guilty to two misdemeanor
offenses: (1) creating a false medical record; and (2) prescribing
a controlled substance without medical justification. I.G. Ex. 1,
I.G. Ex 2 at p. 2.
5. The court accepted Petitioner's guilty plea and sentenced him
to: (1) serve three years informal probation on the condition he
serve one year in county jail, all but 15 days suspended; (2)
perform 100 hours of community service; and (3) pay the $7,500 cost
of the investigation to the Department of Justice, Bureau of
Medi-Cal Fraud. 5/ I.G. Ex. 1, I.G. Ex. 2 at p. 1.
6. Petitioner was convicted of a criminal offense related to the
unlawful manufacture, distribution, prescription, or dispensing of
a controlled substance, within the meaning of section 1128(b)(3) of
the Act. FFCLs 2 - 5; June 29, 1993 Order and Notice of Hearing at
p. 2.
7. The Secretary of the Department of Health and Human Services
(Secretary) delegated to the I.G. the authority to determine,
impose, and direct exclusions pursuant to section 1128 of the Act.
48 Fed. Reg. 21,662 (1983).
8. By letter dated March 23, 1993, the I.G. excluded Petitioner
pursuant to section 1128(b)(3) of the Act for a period of three
years.
9. The I.G. has authority to impose and direct an exclusion
against Petitioner pursuant to section 1128(b)(3) of the Act.
FFCLs 6 - 7.
10. Regulations published on January 29, 1992 establish criteria
to be employed by the I.G. in determining to impose and direct
exclusions pursuant to section 1128 of the Act. 42 C.F.R. Part
1001 (1992).
11. On January 22, 1993, the Secretary published a regulation
which directs that the criteria to be employed by the I.G. in
determining to impose and direct exclusions pursuant to sections
1128(a) and (b) of the Act are binding also upon administrative law
judges, appellate panels of the Departmental Appeals Board (DAB),
and federal courts in reviewing the imposition of exclusions by the
I.G. 42 C.F.R. 1001.1(b).
12. My adjudication of the length of the exclusion in this case is
governed by the criteria contained in 42 C.F.R. 1001.401. FFCLs
10 - 11.
13. An exclusion imposed pursuant to section 1128(b)(3) of the Act
must be for a minimum period of three years, unless aggravating or
mitigating factors as specified in the regulations form a basis for
lengthening or shortening that period. 42 C.F.R.
1001.401(c)(1).
14. The I.G. has the burden of proving that aggravating factors
exist which justify increasing an exclusion imposed pursuant to
section 1128(b)(3) of the Act beyond the three-year benchmark
established by regulation. 42 C.F.R. 1001.401(c)(2)(i) - (iv);
42 C.F.R. 1005.15(c).
15. The I.G. did not allege that aggravating factors are present
in this case which justify increasing the exclusion imposed
pursuant to section 1128(b)(3) of the Act beyond the three-year
benchmark established by regulation.
16. Petitioner has the burden of proving that mitigating factors
exist which justify reducing an exclusion below the three-year
benchmark established by regulation. 42 C.F.R.
1001.401(c)(3)(i) - (ii); 42 C.F.R. 1005.15(c).
17. Petitioner alleged that, as a result of his exclusion,
alternative sources of the type of health care items or services
that he furnishes are not available within the meaning of 42 C.F.R.
1001.401(c)(3)(ii).
18. In order to qualify as an alternative source within the
meaning of the regulations, the alternative source must be able to
substitute for the items or services furnished by the excluded
provider without jeopardizing the health of the recipients of those
items or services. James H. Holmes, M.D., DAB CR270 (1993); Sam
Williams, Jr., M.D., DAB CR287 (1993).
19. An alternative source of health care is not available within
the meaning of the regulations in circumstances where Medicare and
Medicaid beneficiaries and recipients are not able to reasonably
obtain the type of health care items or services furnished by the
excluded provider in a practicable manner consistent with the
Secretary's objective to protect beneficiaries and recipients from
being deprived of needed health care as a result of the provider's
exclusion. Holmes, DAB CR270; Williams, DAB CR287.
20. Petitioner completed a four-year residency in internal
medicine in 1984. P. Ex. 1.
21. Petitioner has been engaged in the general practice of
medicine in Fresno, California since approximately 1985. P. Ex. 1.
22. Prior to his exclusion, approximately 95% of the patients
under Petitioner's care were Medicare and Medicaid patients. P.
Ex. 1.
23. Approximately one third of Petitioner's patients were
developmentally disabled or mentally retarded patients. Most of
these patients resided in board and care facilities. P. Ex. 1.
24. Virtually all of the developmentally disabled or mentally
retarded patients treated by Petitioner were either Medicare
beneficiaries or Medicaid recipients. P. Ex. 1.
25. Prior to his exclusion, Petitioner provided medical services
to residents of three board and care facilities in Fresno: Goodwin
Family Home, Shady Grove Care Home, and Adler Care Home. P. Ex. 2,
P. Ex. 3, P. Ex. 4, I.G. Ex. 4.
26. Prior to his exclusion, Petitioner treated residents of the
three board and care facilities promptly when they needed medical
care. P. Ex. 1, P. Ex. 2, P. Ex. 3, P. Ex. 4.
27. Since Petitioner was excluded, Dr. Rob Smith has been the
attending physician for residents of Goodwin Family Home. P. Ex.
4 at p. 1.
28. Since Petitioner was excluded, Dr. Rob Smith, Dr. Warden
Session, and Dr. Chia Chen have been the attending physicians for
residents of Shady Grove Care Home. P. Ex. 4 at p. 1.
29. Since Petitioner was excluded, Dr. Avule and Dr. Baker have
been the attending physicians for residents of Adler Care Home. P.
Ex. 4 at p. 1.
30. The three board and care facilities use Fresno Community
Hospital for emergency medical services. P. Ex. 4 at p. 1.
31. Many of the residents of the three board and care facilities
have received medical treatment numerous times since Petitioner was
excluded. The record is devoid of evidence establishing that the
health of any of the residents has been jeopardized as a result of
delays in obtaining medical treatment. P. Ex. 4.
32. The residents of the three board and care facilities have
received adequate medical care in a timely fashion since
Petitioner's exclusion. I.G. Ex. 3, I.G. Ex. 4; FFCLs 27 - 31.
33. The record is devoid of evidence establishing that
Petitioner's former patients who are not residents of the three
board and care facilities have been unable to obtain alternative
medical care since Petitioner's exclusion.
34. Petitioner has not met his burden of proving that by virtue of
his exclusion, alternative sources of the type of health care items
or services that he provides are not available.
35. Petitioner has not proved the presence of any mitigating
factors under 42 C.F.R. 1001.401(c)(3).
36. There is no basis under the regulations for me to modify the
three-year exclusion which the I.G. imposed against Petitioner.
37. The three-year exclusion which the I.G. imposed is reasonable
pursuant to the criteria specified in 42 C.F.R. 1001.401.
RATIONALE
Petitioner does not dispute that he was convicted of a criminal
offense within the meaning of section 1128(b)(3) of the Act and
that the I.G. has the authority to exclude him from participating
in the Medicare and Medicaid programs. What is at issue here is
whether it is reasonable to exclude Petitioner for a period of
three years.
I. This case is governed by regulations published on January 29,
1992 and January 22, 1993.
During the June 17, 1993 prehearing conference, I expressed the
view that my adjudication of the reasonableness of the length of
the exclusion in this case is governed by the criteria contained in
the Secretary's implementing regulations that were initially
published on January 29, 1992 and subsequently clarified on January
22, 1993. June 29, 1993 Order and Notice of Hearing at p. 2. The
parties have not argued that this interpretation is in error.
The I.G. contends that a three-year exclusion is reasonable
pursuant to the criteria for determining the length of exclusions
contained in the regulations adopted by the Secretary on January
29, 1992 and clarified on January 22, 1993. Petitioner contends
that the three-year exclusion imposed by the I.G. is excessive
under the applicable regulations. In resolving this issue, it is
instructive to discuss the criteria for adjudicating the
reasonableness of the length of exclusions contained in the
regulations.
The controlling regulations at 42 C.F.R. 1001.401 establish a
benchmark of three years for all exclusions imposed pursuant to
section 1128(b)(3) of the Act. The regulations mandate that, in
cases of exclusions imposed pursuant to section 1128(b)(3) of the
Act, the exclusion will be for three years unless specified
aggravating or mitigating factors form a basis for lengthening or
shortening the exclusion. 42 C.F.R. 1001.401(c)(1). The
standard for adjudication contained in the regulations provides
that, in appropriate cases, exclusions imposed pursuant to section
1128(b)(3) may be for more than three years where there exist
aggravating factors (identified by 42 C.F.R. 1001.401(c)(2))
that support a lengthening of the exclusion while taking into
consideration any mitigating factors which might be present
(identified by 42 C.F.R. 1001.401(c)(3)). Similarly, an
exclusion imposed pursuant to section 1128(b)(3) may be for a
period that is less than three years where there exist mitigating
factors which warrant a reduction in the length of the exclusion
even with consideration of any of the aggravating factors which
might be present.
The regulations specifically state those factors which may be
classified as aggravating and those factors which may be classified
as mitigating. Under the regulatory scheme, evidence which relates
to factors which are not among those specified as aggravating or
mitigating is not relevant to adjudicating the length of an
exclusion and cannot be considered.
In this case, the I.G. imposed the three-year benchmark exclusion.
The I.G. does not contend that there are aggravating factors
present in this case which are sufficiently serious to justify
lengthening the exclusion beyond the three-year benchmark period.
I.G. brief at p. 5. Thus, the only disputed issue before me is
whether the length of Petitioner's exclusion should be shortened
below the three-year benchmark period. The possible mitigating
factors which can be considered as a basis for shortening the
three-year benchmark period of exclusion are very limited. The
applicable regulation provides that only the following factors may
be considered:
(i) The individual's or entity's cooperation with Federal or
State officials resulted in -
(A) Others being convicted or excluded from Medicare or
any of the State health care programs, or
(B) The imposition of a civil money penalty against
others; or
(ii) Alternative sources of the type of health care items or
services furnished by the individual or entity are not available.
42 C.F.R. 1001.401(c)(3)(i) - (ii).
Citing the mitigating circumstance identified at 42 C.F.R.
1001.401(c)(3)(ii), Petitioner asserts that his exclusion is
unreasonable because alternative sources of the type of health care
items or services he furnishes are not available. Petitioner
contends that the presence of this factor in this case justifies a
reduction in the length of his exclusion from three years to one
year. Petitioner brief at p. 1. The I.G. contends that the
evidence fails to establish that this mitigating factor is present
in this case. I.G. brief at p. 5.
In addition, the I.G. contends that the aggravating factor
specified at 42 C.F.R. 1001.401(c)(2)(iii), the sentence imposed
by the court included incarceration, is present in this case.
While the I.G. chose not to impose an exclusion greater than three
years based on this factor, the I.G. asserts that this factor has
sufficient weight to offset any weight I accord to the mitigating
factor specified at 42 C.F.R. 1001.401(c)(3)(ii). I.G. brief at
p. 19. The I.G. reasons that even if I were to find that the
mitigating factor at 42 C.F.R. 1001.401(c)(3)(ii) is present,
the three-year exclusion should still be upheld based on the
presence of the aggravating factor at 42 C.F.R.
1001.401(c)(2)(iii).
In analyzing the evidence in this case, my task is to first
determine whether the mitigating factor cited by Petitioner is
present. If I determine that this factor is not present, my
inquiry ends. Under these circumstances, there would not be any
basis to shorten the three-year exclusion pursuant to the criteria
established by the regulations. If I determine that this factor is
present, my task is to evaluate the reasonableness of the
three-year exclusion by determining the relative weight of this
mitigating factor in the context of any aggravating factors which
are present. Accordingly, I will now consider the threshold
question of whether the mitigating factor cited by Petitioner, that
alternative sources of the type of health care items or services he
furnishes are not available, is present in this case.
II. Petitioner has the burden of proving mitigating circumstances,
including the burden of proving that alternative sources of health
care items or services of the type he furnishes are not available.
There is no specific regulation allocating the burden of proof
regarding aggravating and mitigating factors in exclusion cases
under 42 C.F.R. 1001.401. However, 42 C.F.R. 1005.15(c)
expressly reserves the duty of allocating such burdens to
administrative law judges.
A fair reading of the regulations supports the conclusion that the
Secretary intended the mitigating factors be in the nature of
affirmative defenses to the imposition of the mandated three-year
exclusion. See, 42 C.F.R. 1005.15(b). It does not make
practical sense to require the I.G. to prove a negative -- the
absence of mitigating circumstances -- in cases where the I.G. has
imposed the regulation-mandated minimum exclusion. Furthermore,
allocation of the burden of proof on Petitioner to prove any
mitigating factor is consistent with decisions in exclusion cases
issued prior to promulgation of the current regulations and with
decisions issued subsequent to such regulations. Bernardo G.
Bilang, M.D., DAB 1295 (1992); Jose Ramon Castro, M.D., DAB CR259
(1993); James H. Holmes, M.D., DAB CR270 (1993); Sam Williams, Jr.,
M.D., DAB CR287 (1993); Joseph Weintraub, M.D., DAB CR303 (1994).
III. For the mitigating factor at 42 C.F.R. 1001.401(c)(3)(ii)
to apply, Petitioner must prove that his exclusion will result in
a reduction in health care services to the point that obtaining
comparable sources of health care imposes an unreasonable hardship
on Medicare and Medicaid beneficiaries and recipients.
A purpose of the exclusion law is to protect the beneficiaries and
recipients of federally-funded health care programs from
incompetent practitioners and from inappropriate or inadequate
care. S. Rep. No. 109, 100th Cong., 1st Sess. 1, reprinted in 1987
U.S.C.C.A.N. 682. The regulation at 42 C.F.R.
1001.401(c)(3)(ii) contemplates that, in determining the
appropriate duration of an exclusion, the factfinder will consider
Congress' interest in ensuring the protection of Medicare and
Medicaid beneficiaries and recipients and will balance that
interest against the competing interest of ensuring that
beneficiaries and recipients will not be deprived of needed health
care as a result of a provider's exclusion. Holmes, DAB CR270, at
15 - 16. 6/
As I observed in Holmes, the mitigating factor specified in 42
C.F.R. 1001.401(c)(3)(ii) (that alternative sources of the type
of health care items or services furnished by the individual or
entity are not available) is not defined by statute. I found,
however, that to qualify as an "alternative source" within the
meaning of the regulations, the alternative source must provide
health care items or services that are comparable or equivalent in
quality to the type of items or services provided by the excluded
provider. The alternative source must be able to substitute for
the items or services furnished by the excluded provider without
jeopardizing the health of the recipients of those items or
services. Holmes, DAB CR270, at 13.
The alternative source must also be "available." In Holmes, I
found that alternative sources are not available within the meaning
of the regulations if such sources are not reasonably available.
This standard contemplates that an alternative source is not
available in circumstances where Medicare and Medicaid patients are
not able to reasonably obtain the type of medical services provided
by the excluded provider in a practicable manner consistent with
the Secretary's objective to protect program beneficiaries and
recipients from being deprived of needed health care as a result of
the provider's exclusion. For example, an alternative source of
health care might be identified as being present to provide the
type of health care provided by the excluded provider. However,
that alternative source would not be "available" within the meaning
of the regulations if it is located at such a great distance in
miles from the excluded provider's former Medicare and Medicaid
patients that obtaining the alternative health care would result in
an unreasonable hardship to those patients.
On the other hand, merely showing that the consequence of an
exclusion is a reduction in the availability of health care
services is not tantamount to showing that those services are not
available. Certainly, any provider could show that health care
services are less available because the provider is excluded.
However, in order for the mitigating factor at 42 C.F.R.
1001.401(c)(3)(ii) to apply, there must be a showing that a
consequence of an exclusion is a reduction in health care services
to the point that obtaining alternative sources of health care is
so impractical that it imposes an unreasonable hardship on Medicare
and Medicaid beneficiaries and recipients. This is a far more
stringent test to meet than showing merely a reduction in the
availability of health care. Holmes, DAB CR270, at 14.
In addition, language in the preamble to the January 29, 1992
regulation indicates that reasonable availability of alternative
sources of health care must be viewed in the context of the
Medicare and Medicaid programs. The preamble to the regulations
states that, in evaluating the availability of alternative sources
of health care pursuant to 42 C.F.R. 1001.401(c)(3)(ii), the
Secretary contemplates that the factfinder "will look to whether
there are service providers who accept Medicare and Medicaid
patients, rather than merely whether services are available
generally." 57. Fed. Reg. 3316 (1992). Under this standard,
alternative sources of health care of the type furnished by an
excluded provider are not reasonably available within the meaning
of the regulations if program beneficiaries and recipients cannot
use that source, such as in the situation where the alternative
health care provider does not participate in the Medicare or
Medicaid programs.
IV. Petitioner has not met his burden of proving that by virtue of
his exclusion, alternative sources of the type of health care items
or services he provides are not available.
Based on my review of the evidence of record, I conclude that
Petitioner has failed to sustain his burden of proving that
alternative sources of the type of health care he provides are not
available.
Petitioner is a physician licensed to practice medicine in the
State of California. FFCL 1. Petitioner completed a four-year
residency in internal medicine in 1984. FFCL 20. Petitioner has
been engaged in the general practice of medicine in Fresno,
California since approximately 1985. FFCL 21. Prior to his
exclusion, approximately 95% of the patients under Petitioner's
care were Medicare and Medicaid patients. FFCL 22. Approximately
one third of Petitioner's patients were developmentally disabled or
mentally retarded patients. Most of these patients resided in
board and care facilities. FFCL 23. Virtually all of the
developmentally disabled or mentally retarded patients treated by
Petitioner were either Medicare beneficiaries or Medicaid
recipients. FFCL 24.
Petitioner contends that as a consequence of his exclusion, the
developmentally disabled and mentally retarded patients treated by
him prior to his exclusion have been unable to obtain needed
medical services. Based on this, Petitioner argues that, by virtue
of his exclusion, alternative sources of the type of health care
services that he provides are not available to this segment of the
patient population in the Fresno area of California. Petitioner
brief at pp. 1 - 2.
In support of this contention, Petitioner submits his own
declaration. Petitioner asserts in his declaration that it "is
very difficult to find physicians who will take [Medicaid] or
Medicare patients in the Fresno [area], and particularly difficult
to find physicians who will take such patients who also are either
developmentally disabled or mentally disabled." According to
Petitioner, his former Medicare and Medicaid patients who are
developmentally disabled or mentally retarded "have been unable to
find adequate medical services" since his exclusion went into
effect. P. Ex. 1.
Petitioner states in his declaration also that he has "always made
it a practice to find room on my schedule to see such patients
immediately, if necessary and within a day if they can wait a day,
regardless of their disabilities and regardless of their ability to
pay my fees." Petitioner then expresses the view that "there are
not reasonably available to developmentally disabled and mentally
retarded patients on [Medicaid] or Medicare, comparable services
from other physicians in the Fresno area."
The burden of proving that alternative sources of health care are
unavailable is on Petitioner. Absent additional evidence to
support his declaration, Petitioner's self-serving assertion that
alternative sources of health care are unavailable is not
sufficient to sustain Petitioner's burden of proof. Petitioner's
assertions are vague and are not specific as to the number and
identity of patients, the frequency that physician services were
sought and not rendered timely and whether the failure to obtain
"prompt" medical services resulted in any harm to the patients.
Petitioner states in his declaration that he bases his assertions
on his "knowledge of the services available in the Fresno area and
of the services provided by me." While Petitioner may have
personal knowledge of the services he provides, he has not
established that he is sufficiently knowledgeable regarding the
availability of the medical resources in Fresno to render a
competent opinion on the availability of alternative sources of
health care.
The only references Petitioner makes to independent sources of
information to support his assertions are "conversations" with
unnamed individuals. Specifically, Petitioner states that his
assertions are based on conversations with various patients,
parents or guardians of mentally retarded patients, and proprietors
of board and care facilities in the Fresno area. Petitioner has
not offered declarations from any of his patients or the parents or
guardians of mentally retarded patients to corroborate his
"conversations" with them. While Petitioner has produced
declarations from the administrators of three board and care
facilities 7/ located in Fresno, he has offered no evidence to
corroborate his statements with respect to the experience of other
board and care facilities in the Fresno area. In addition, the
three declarations from administrators of board and care facilities
which Petitioner did provide are not sufficient to establish that
alternative sources of health care are unavailable to
developmentally disabled and mentally retarded patients in Fresno.
The administrators' declarations contain sweeping statements to the
effect that since Petitioner was excluded, they have been unable to
obtain adequate medical care for the residents of their facilities.
Although all three administrators make strong statements that
adequate medical care for the residents of their facilities has
been unavailable since Petitioner's exclusion, none of them provide
any convincing support for these statements. The only specific
reason given for these statements is that there are delays in
getting residents of their facilities seen by physicians.
Each of the three administrators state that, prior to his
exclusion, Petitioner was willing to treat the residents of their
facilities promptly when they needed medical attention. Each of
the three administrators complain that they have been unable to
find another physician who is willing to provide the same prompt
service. In describing this problem, Tyrone Arrington states:
First, it is extremely difficult to find doctors who will take
[Medicaid] patients at all. Secondly, when we can find a physician
who will see our clients, that physician will generally require an
appointment at least three weeks in advance. Our patients are
generally patients with behavior problems who are in wheel chairs
and who simply cannot wait 3 weeks to receive medical care. We do
have available to us emergency rooms for various emergencies but
many times our clients have problems which require that a physician
see them on that day or the following day and which do not warrant
use of the emergency room. For those instances, we simply have
been unable to find medical care since [Petitioner's] exclusion.
[Petitioner] always made himself available for our patients and
would move his schedule around so that he would see and treat our
patients on the day that they had a problem.
I have searched for a physician to care for our patients all
over Fresno and have been unable to find anyone willing to tend to
our patients on a timely basis.
P. Ex. 2 at pp. 1 - 2.
Ms. Blake makes a similar complaint in her declaration:
Often our clients will have a problem like a small infection
or an unexplained swelling or some fever which will require medical
care. In those instances, the matter is not serious enough for the
use of an emergency room but requires that our clients be able to
see a doctor within a day or two. I have been unable to find
doctors who are willing to see our clients unless an appointment is
made weeks in advance.
P. Ex. 3 at p. 1.
Ms. Goodwin, the third administrator, states that since
Petitioner's exclusion:
we have no medical services available to us other than
emergency services at the hospital unless we are willing to wait
months. I have looked for physicians who will see our patients
throughout Fresno and have been unable to find anyone other than
physicians who are willing to see our patients if arrangements are
made three months in advance.
When [Petitioner] was seeing our patients and they would
become ill with the flu or have some other problem which required
medical attention, we could bring our residents over to his office
right away and he would tend to their medical needs. One example
of the problems we have had is the recent case where the patient .
. . had pneumonia. We were unable to find a physician to see that
patient and finally the caseworker was able to find a physician who
saw the patient some three weeks later. When [Petitioner] was
tending to the needs of our patients we could have brought that
patient into his office on the day that the problem arose or the
following day.
P. Ex. 4 at pp. 1 - 2.
The only problem with medical care identified by the three
administrators is one of delay, which, according to the
declarations, varies from three weeks to three months. In Holmes,
as in this case, there was evidence that some of Dr. Holmes' former
patients experienced delays in making an appointment with another
physician after Dr. Holmes was excluded. I concluded that the fact
that some of Dr. Holmes' former patients had to wait to see a
physician is not a basis for finding that alternative sources of
medical care are not available. Holmes, DAB CR270, at 22. There
must be an affirmative showing that the delays in obtaining medical
care jeopardized the health and safety of Petitioner's patients.
Apparently, the administrators recognized the availability of
medical facilities to respond to the emergency care needs of their
residents. They imply that there is a need for an additional level
of care for their residents -- one of urgent care for medical
problems requiring prompt attention but not arising to the level of
an emergency. While the administrators have indicated that it is
difficult to make appointments with local physicians to provide
such care, Petitioner has offered no evidence to demonstrate that
"urgent care" medical facilities 8/ are unavailable in such
circumstances.
Petitioner has not shown that any delay in obtaining medical
services jeopardized the health or safety of any resident. In
fact, all three declarations indicate that emergency medical care
is available to developmentally disabled residents of board and
care facilities in Fresno. It can be inferred from this that
medical care is available in situations where a board and care
resident has a medical problem requiring immediate medical
attention. The administrators complain that residents of their
facilities have experienced delays in receiving medical care for
non-emergency medical conditions which nonetheless require prompt
medical attention. However, they have not provided one specific
instance showing that the health of a board and care resident has
been jeopardized by the delays of which they complain. At most,
the administrators' declarations show that the board and care
residents have been inconvenienced by these delays. 9/ As I stated
in Holmes, inconvenience is not the standard to be used in applying
the mitigating factor under 42 C.F.R. 1001.401(c)(3)(ii).
Holmes, DAB CR270, at 23. In view of the foregoing, Petitioner has
failed to meet his burden of proving that the mitigating
circumstance specified at 42 C.F.R. 1001.401(c)(3)(ii) is
present in this case.
V. An investigation conducted by the California Department of
Social Services establishes that the residents of the three board
and care facilities relied upon by Petitioner to demonstrate the
lack of alternative medical sources instead have received needed
medical services in a timely fashion since Petitioner was excluded
from the Medicare and Medicaid programs.
The I.G. has produced persuasive evidence which rebuts Petitioner's
contention that alternative sources of health care are not
available in Fresno.
Randall K. Brooks, counsel for the I.G., provided copies of the
four declarations submitted by Petitioner to David Guinan, the
Manager of the Fresno District Office of the California Department
of Social Services Community Care Licensing Branch (Department of
Social Services). This office is responsible for licensing board
and care facilities for developmentally disabled and mentally
retarded individuals in Fresno. I.G. Ex. 3.
In discharging this function, the Department of Social Services is
responsible for conducting investigations and inspections of board
and care facilities in Fresno to determine whether such facilities
are in compliance with applicable State statutory and regulatory
criteria for lawful operation. The operators of board and care
facilities are responsible under State law for arranging
appropriate medical care for facility residents and for providing
transportation for the residents in connection with that medical
care. I.G. Ex. 3.
Upon reviewing the declarations provided to him by Mr. Brooks, Mr.
Guinan initiated an investigation of the three board and care
facilities whose administrators signed the declarations. The three
board and care facilities investigated by Mr. Guinan's office are
the Goodwin Family Home, Shady Grove Care Home, and Adler Care
Home. 10/ The purpose of the investigation was to delve further
into the statements made by the three administrators in their
declarations to determine whether residents of their board and care
facilities have received adequate medical care since March 23,
1993, the date Petitioner was excluded. I.G. Ex. 3, I.G. Ex. 4.
On December 13, 1993, two investigators under Mr. Guinan's
supervision visited each of the three facilities. One of the
investigators personally interviewed the administrators who signed
the declarations, and completed written reports of these
interviews. The other investigator reviewed the medical records of
each resident maintained at these facilities. That investigator
recorded information concerning medical treatments received by the
facilities' residents, including each appointment with a physician
since March 1993. The two investigators then discussed the results
of their investigation with Mr. Guinan. I.G. Ex. 3, I.G. Ex. 4.
Mr. Guinan reported on the results of the investigation in a
December 14, 1993 letter to Mr. Brooks, stating:
1. Each client had an attending physician[.] [A]t the
Goodwin [Family] Home, Dr. Rob Smith was in attendance. Shady
Grove Care Home used Dr. Rob Smith, Dr. Warden Session, and Dr.
Chia Chen. Adler Care Home used Dr. Avule and Dr. Baker. 11/
2. In reviewing the records, Analysts determined that many of
the clients saw physicians numerous times during the last year. At
no time was it determined clients failed to receive needed medical
care in anything other than a timely fashion.
3. In discussing medical resources available to the clients,
Licensees/Administrators stated all clients had an attending
physician. Arrangements had also been made for emergency services
at Fresno Community Hospital. They also stated that at no time did
clients go without timely medical treatment. Their impression of
medical care available to their clients was rated as good.
I.G. Ex. 4 at p. 1. Based on these results, the Department of
Social Services concluded that "at no time since March 1993 has any
facility resident failed to receive needed medical attention in
anything other than a timely fashion." I.G. Ex. 3 at p. 4.
Petitioner attacks the conclusions of the Department of Social
Services by questioning the credibility of statements made by the
three administrators during the investigation. Petitioner argues
that administrators of board and care facilities "are
understandably unwilling to state directly that they are not
providing necessary medical services to the patients of their
facilities when asked that question by the licensing authority in
the state." Petitioner reply brief at pp. 1 - 2.
I agree with Petitioner that there are strong pressures on
administrators of board and care facilities to portray the medical
care provided to residents in their facilities in a favorable light
in responding to inquiries from the State agency responsible for
their licenses. However, even taking these pressures into account,
I find the conclusion of the Department of Social Services'
investigation to be reliable and credible.
The Department of Social Services based its conclusion not only on
interviews with the three administrators, but also on an
independent review of medical documentation. A thorough review of
the medical records of each facility resident was conducted,
including an examination of every medical appointment made since
Petitioner was excluded. The Department of Social Services did not
find anything in these medical records which would lead to the
conclusion that any of the facility residents had received
inadequate medical care. Instead, the Department of Social
Services found that the medical records were consistent with the
statements made by the administrators in their interviews, and that
both the interviews and the medical documentation supported the
conclusion that facility residents had received needed medical care
in a timely fashion since Petitioner was excluded.
Petitioner argues also that, while the administrators of the
facilities may have been unwilling to state directly that their
residents were not receiving necessary medical care, they
nonetheless made various statements in the course of their
interviews with the investigator that suggested this. Petitioner
goes on to argue this point by quoting fragments of the interview
reports.
For example, Ms. Blake reportedly told the investigator that a
physician named Rob Smith has been treating the residents of her
facility and that she "would like it if (Dr. Smith) made house
calls." Petitioner argues that this statement "strongly suggests
that Dr. Smith is really not meeting the needs of the client
population formerly served by [Petitioner]." Petitioner reply
brief at p. 2.
In making this argument, Petitioner fails to mention other
statements made by Ms. Blake in her interview. When Ms. Blake's
statement to the investigator is read in context, it contradicts
Petitioner's interpretation of her words. The investigator's
interview report states the following:
. . . Dr. Rob Smith has been the medical doctor providing
services. Dr. Smith[']s services have met all her clients needs
and he has provided them on [a] timely basis. An example of this
was when one of her clients developed a case of cellulitis. Mrs.
Blake contacted Dr. Smith's office on a Thursday [and] the client
was seen on Friday.
Mrs. Blake stated that her client[s] have never had a medical
emergency when medical services were not available. At the
facility if [a] medical emergency [arises] the client is taken to
the Community Hospital at which time Dr. Smith is contacted . . .
Mrs. Blake state[s] that she has the utmost respect for Dr.
Smith and that his services have never been lacking. She would
like it if he made house calls.
In response to the question of her overall assessment of
medical services to her clients in the Fresno area, she stated that
it has been very good.
I.G. Ex. 4 at p. 5.
Thus, a more complete reading of the investigator's interview
report of Ms. Blake reveals that Ms. Blake is of the opinion that
residents in her facility are receiving adequate care. In
addition, while Ms. Blake might prefer Dr. Smith to make house
calls, there is no evidence in the record to suggest that
Petitioner ever made house calls either. On the contrary, the
declaration of another administrator, Ms. Goodwin, states that
"[w]hen [Petitioner] was seeing our patients and they would become
ill with the flu or have some other problem which required medical
attention, we could bring our residents over to his office . . . "
(emphasis added.) P. Ex. 4. This suggests that board and care
facility residents were brought to Petitioner at his office.
Furthermore, even if the record showed that Petitioner made house
calls and that other physicians did not, this alone would not be
sufficient to establish that alternative sources of medical care
are not available. Absent a showing that making house calls was an
integral component of the health care provided by Petitioner, there
would be no basis for concluding that other physicians who do not
make house calls do not provide medical services that are
comparable in quality to those provided by Petitioner.
Ms. Goodwin reported to the investigator that her facility also
uses the medical services of Dr. Rob Smith. As additional support
for his contention that Dr. Smith is not meeting the needs of board
and care residents, Petitioner cites Ms. Goodwin's statement to the
investigator that Dr. Smith is not always pleasant and he "always
seems to have a great number of patients." Petitioner reply brief
at p. 2.
Again, when this comment is read in context with Ms. Goodwin's
other comments made in the course of her interview, there is no
support for Petitioner's contention that alternative sources of
medical care are not available. According to the interview report
of the investigator, Ms. Goodwin related the following:
The facility utilizes Dr. Rob Smith for necessary medical
services to the client, additionally also used are Dr. Warden
Session and Dr. Chia Chen. All [of] these doctors accept medical
payments.
In cases when the regular doctor is not available and the
client needs emergency services, they are taken to Community
Hospital for services . . .
The only problem that Dr. Smith presents is that h[is] manner
is at times not pleasant and he always seems to have a great number
of patients.
The facility clients have never had to go without medical
services because of a lack of medical doctors. Overall the medical
services available to the facility in the Fresno area have been
good.
I.G. Ex. 4 at p. 7.
The fact that Dr. Smith "always seems to have a great number of
patients" is not relevant to this inquiry unless it can be shown
that the size of his practice prevents him from being available to
provide alternative care. Petitioner has made no such showing.
Furthermore, even if Dr. Smith is unavailable to provide
alternative care, there is evidence that satisfactory medical care
is available from other sources. Ms. Goodwin mentions several
other sources of medical care for residents in addition to Dr.
Smith. Further, the fact that Ms. Goodwin perceives Dr. Smith to
be unpleasant at times is not a basis for finding that alternative
sources of medical care are not available. There must be an
affirmative showing that the services rendered by Dr. Smith cannot
be substituted for Petitioner's services without jeopardizing the
health of Petitioner's former patients.
Petitioner points also to several negative comments made by Mr.
Arrington in his interview. Specifically, Mr. Arrington told the
investigator that Petitioner always saw residents on short notice,
and that this was not always the case with other doctors. Mr.
Arrington told the investigator that he has heard that some doctors
have told administrators of other board and care facilities not to
bring residents of their facilities back for treatment. In
addition, Mr. Arrington indicated to the investigator that he
believes medical services in the Fresno area were in need of
improvement. Petitioner argues that Mr. Arrington's comments
establish that the residents of the board and care facilities have
been unable to obtain adequate care since Petitioner's exclusion.
Petitioner reply brief at pp. 2 - 3.
While a reading of the investigator's interview report with Mr.
Arrington shows that Mr. Arrington made these comments, Petitioner
does not mention Mr. Arrington's overall assessment of the medical
services in Fresno. According to the interview report, "[Mr.
Arrington] would rate the overall medical services in the Fresno
area as good; but in need of some improvement." Although Mr.
Arrington told the interviewer that "As a licensee he has found it
very difficult to have to shop for a doctor to provide services to
the clients," he did not state that he had been unable to obtain
adequate care for residents of his facilities since Petitioner was
excluded. I.G. Ex. 4 at p. 9.
Petitioner argues at page three of his posthearing reply brief
that:
The evidence submitted by the Petitioner establishes that the
board and care facilities in question have been unable to obtain
adequate medical care for their residents since [Petitioner's]
exclusion. The evidence submitted by the Inspector General does
little to detract from that evidence.
I disagree. The Department of Social Services' investigation
speaks directly to the experience of the three facilities from
whose administrators Petitioner obtained declarations. The results
of this investigation provide persuasive evidence that all three of
these facilities have been able, since Petitioner's exclusion, to
obtain adequate medical care for the residents of the facilities.
Even if it is true that Petitioner was willing to see residents
more promptly than some other doctors for non-emergency conditions,
the Department of Social Services' investigation did not uncover a
single instance where a resident's health was compromised due to
delays in obtaining treatment. The results of the investigation
clearly rebut Petitioner's claim that he provided a medical service
for which there are not alternative sources. 12/
Throughout this proceeding, Petitioner has argued that his former
Medicare and Medicaid patients who reside in board and care
facilities are not able to obtain adequate medical care. The
burden of proving the unavailability of alternative sources of
health care falls on Petitioner. Petitioner has not met this
burden of proof. Moreover, the evidence gathered by the Department
of Social Services affirmatively demonstrates that subsequent to
Petitioner's exclusion the residents of the facilities serviced by
Petitioner and relied on by him to prove the existence of the lack
of alternative medical sources did, in fact, receive adequate
alternative medical services.
Petitioner has not shown that there exist mitigating circumstances
as defined by 42 C.F.R. 1001.401(c)(3). Accordingly, there is
no basis to modify the three-year exclusion which the I.G. imposed
and directed against Petitioner.
CONCLUSION
I conclude that the three-year exclusion which the I.G. imposed and
directed against Petitioner is reasonable, pursuant to the criteria
specified in 42 C.F.R. 1001.401.
Edward D. Steinman
Administrative Law Judge
1. The State health care programs from which Petitioner was
excluded are defined in section 1128(h) of the Social Security Act
and include the Medicaid program under Title XIX of the Act.
Unless the context indicates otherwise, I use the term "Medicaid"
here to refer to all State health care programs listed in section
1128(h).
2. The four declarations were from Petitioner, Tyrone
Arrington, Shelia Blake, and Mildred Goodwin. None of the
declarations are marked as exhibits. I will refer to Petitioner's
declaration as P. Ex. 1, that of Tyrone Arrington as P. Ex. 2, that
of Shelia Blake as P. Ex. 3, and that of Mildred Goodwin as P. Ex.
4. In addition, none of the exhibits, with the exception of P. Ex.
1, were paginated. I have numbered each page of P. Ex. 2 - 4 in
accordance with the instructions in my August 19, 1993 prehearing
order.
3. The I.G. marked and identified these exhibits as I.G. Ex. 1
- 7. The I.G. filed copies of the declaration of Christine Owens
with the I.G.'s initial brief as I.G. Ex. 6. By letter dated
January 7, 1994, the I.G. supplied my office with the original
declaration signed by Ms. Owens. I then substituted the original
declaration for the previously filed copy of Ms. Owens' declaration
contained in the record.
4. Neither party has contested the authenticity or otherwise
objected to the exhibits submitted by the opposing party. I am
admitting the exhibits into evidence as P. Ex. 1 - 4 and I.G. Ex.
1 - 7.
5. In California, the Medicaid program is known as Medi-Cal.
I.G. Ex. 7.
6. In Holmes, I set forth the legal standard which I am
following in this case. Both Dr. Holmes and the Petitioner here
were excluded for three years pursuant to section 1128(b)(3) of the
Act. Both Dr. Holmes and the Petitioner here argued that the
mitigating factor at 42 C.F.R. 1001.401(c)(3)(ii) is a basis for
reducing their three-year exclusions.
7. These three declarations are from individuals who describe
themselves, respectively, as: the administrator of a "residential
care home for [five] developmentally disabled adults" (P. Ex. 2);
the administrator of a "board and care facility for [five]
developmentally disabled adults" (P. Ex. 3); and the administrator
of a "boarding care facility with six developmentally disabled
residents" (P. Ex. 4). In his own declaration, Petitioner refers
to these facilities collectively as "board and care facilities,"
and that term will be used here. These facilities have a total of
sixteen residents.
8. This term is used to describe clinics or other medical
facilities that see patients without the need for advance
appointments and on a first-come, first-served basis. As I mention
at footnote 12 of this Decision, the I.G. has produced evidence
identifying two hospitals in Fresno which have urgent care clinics
that will treat residents of board and care facilities on a
walk-in, same-day basis. Conceivably, obtaining care at such
urgent care clinics might result in time consuming queuing while
waiting to obtain medical services. However, while this might
inconvenience the personnel accompanying the residents and the
residents themselves, Petitioner has offered no evidence that this
would jeopardize the health or safety of such residents. Moreover,
rather than relying on "urgent care" medical facilities, the
administrators appear to prefer to wait for an appointment with a
local physician, either for an office visit or care rendered at the
board and care facility itself. Any delay associated with the
latter circumstance would be generated by the decisions of the
administrators rather than the lack of adequate alternative medical
sources.
9. The results of a detailed examination of the records of
medical care rendered to the residents at these facilities shows
that such persons were able to obtain timely care from physicians
in the Fresno area subsequent to the exclusion of Petitioner. See,
Section V., pages 17 - 24 of this Decision.
10. Declarant Sheila Blake is the administrator of Goodwin
Family Home; Declarant Mildred Goodwin is the administrator of
Shady Grove Care Home; Declarant Tyrone Arrington is the
administrator of Adler Care Home. I.G. Ex. 4.
11. A review of the investigator's notes concerning medical
treatments received by facility residents shows that these
attending physicians identified by Mr. Guinan were not the only
physicians who treated the board and care residents during the
relevant period. In addition to receiving treatment from these
attending physicians, there are several instances where other
physicians were consulted when necessary.
12. In addition to the alternative medical sources identified
in the Department of Social Services' investigation, the I.G.
submitted proof of other providers in the Fresno area who will
treat Medicare or Medicaid patients who reside in board and care
facilities in a timely manner. The providers include two hospitals
located within three miles of Petitioner's office which participate
in the Medicare and Medicaid programs. Both of these hospitals
have urgent care clinics which are available to treat residents of
board and care facilities on a walk-in, same-day basis. I.G. Ex.
5 - 7. While I recognize that such evidence is commonly offered by
the I.G. in section 1128(b)(3) cases where the mitigating factor of
a lack of alternative medical services is at issue, a careful
review of the evidence of care rendered to the residents of the
facilities relied on by Petitioner demonstrates that such persons
received adequate alternative medical services subsequent to
Petitioner's exclusion. Thus, proof of additional sources of
medical care to these persons is cumulative.