$05:Exclusion Case
Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
In the Case of: Roger W. Ihrig, M.D., Petitioner,
- v. -
The Inspector General.
DATE: December 5, 1994
Docket No. C-93-021
Decision No. CR346
DECISION
This case is before me on Petitioner's request for a hearing to
contest his exclusion from participation in the Medicare, Medicaid,
Maternal and Child Health Services Block Grant and Block Grants to
States for Social Services programs. 1/ In a letter dated October
21, 1992 (Notice), the Inspector General (I.G.) notified Petitioner
of his exclusion. The I.G. alleged that Petitioner's license to
practice medicine or provide health care in the State of
Massachusetts had been revoked by the Massachusetts Board of
Registration in Medicine (Massachusetts Board) for reasons bearing
on Petitioner's professional competence, professional performance,
or financial integrity. The I.G. told Petitioner that his
exclusion would remain in effect until he obtained a valid license
to practice medicine or provide health care in the State of
Massachusetts and that his exclusion was authorized by section
1128(b)(4) of the Social Security Act (Act).
Initially, Petitioner contested both the I.G.'s authority to
exclude him based on the Massachusetts Board's action and also the
reasonableness of the length of his exclusion. However, once into
the hearing phase of this case, Petitioner determined that he had
no legal or factual basis to challenge the I.G.'s authority to
exclude him based on the Massachusetts Board's action. Moreover,
absent the I.G. alleging any aggravating factors, Petitioner
determined that he had no basis upon which to challenge the minimum
period of exclusion mandated by 42 C.F.R. 1001.501(b) (which
minimum period of exclusion the regulations mandate will continue
until Petitioner's license to practice medicine or provide health
care is reinstated by the State of Massachusetts).
Petitioner currently resides and practices medicine in the State of
Arizona and has no apparent interest in returning to medical
practice in Massachusetts. Further, Petitioner has no apparent
interest in regaining his Massachusetts medical license. During
the course of this proceeding, Petitioner's federal active medical
license was renewed by the Kansas State Board of Healing Arts
(Kansas Board), the State licensing authority in Kansas. The
Kansas Board renewed Petitioner's federal active medical license
without any restrictions. Petitioner asserts that he has met the
prerequisite conditions for consideration of early reinstatement
under 42 C.F.R. 1001.501(c)(2), because he has fully and
accurately disclosed the circumstances surrounding the
Massachusetts Board's action to the Kansas Board and the Kansas
Board has taken no significant adverse action against his Kansas
medical license. The I.G. disagrees.
For the reasons discussed below, I find that Petitioner has fully
and accurately informed the Kansas Board concerning the action of
the Massachusetts Board in his case. Further, I find that the
Kansas Board has taken no significant adverse action against
Petitioner's Kansas medical license, as evidenced by the Kansas
Board's renewal of Petitioner's Kansas medical license. Thus, I
find that Petitioner has met the conditions set forth in 42 C.F.R.
1001.501(c)(2). The I.G. must consider a request by Petitioner for
early reinstatement.
I make no determination here as to whether Petitioner qualifies for
reinstatement. I am deciding only whether the factual predicate to
42 C.F.R. 1001.501(c)(2) has been met. Thus, I am making
findings only as to whether, based on the record before me,
Petitioner has satisfied the conditions contained in this exception
such as to warrant consideration by the I.G. of a request for early
reinstatement. 42 C.F.R. 1001.501(c)(2), 1001.3001. Whether
such reinstatement is granted is governed by 42 C.F.R.
1001.3002, and I have no authority to intervene in that process.
42 C.F.R. 1001.3002(f).
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. Petitioner was licensed to practice medicine by the
Massachusetts Board. I.G. Ex. 2 at 11. 2/
2. In December 1989, Petitioner was hospitalized for substance
abuse (chemical dependency). P. Ex. 10; I.G. Ex. 2 at 12.
3. In January 1990, the Massachusetts Medical Society's Committee
on Physician Health (Committee) reported to the Massachusetts Board
that Petitioner was very ill and would require a long period of
treatment and rehabilitation. The Committee recommended that
Petitioner should not practice medicine for the foreseeable future.
I.G. Ex. 2 at 12.
4. In January 1990, Petitioner requested, due to his
hospitalization for substance abuse, that his certificate of
registration to practice medicine in Massachusetts (Massachusetts
medical license) be suspended. P. Ex. 10.
5. Petitioner agreed that his suspension would remain in effect
unless, and until such time as, the Massachusetts Board determined
that the health, safety, and welfare of the public no longer
necessitated the suspension. P. Ex. 10 at 2.
6. To regain his Massachusetts medical license following this
suspension, Petitioner was required to petition the Massachusetts
Board for reinstatement. P. Ex. 10 at 1 - 2.
7. On April 16, 1991, the Massachusetts Board wrote to Petitioner
at his last known home address in order to obtain information about
his condition. The letter was returned to the Massachusetts Board,
because Petitioner had left Massachusetts to practice medicine with
the Indian Health Service. Petitioner did not provide the
Massachusetts Board with a forwarding address when he moved. I.G.
Ex. 2 at 12 - 13.
8. In a Statement of Allegations dated December 18, 1991, the
Massachusetts Board ordered Petitioner to show cause why he should
not be disciplined for conduct which placed in question his
competence to practice medicine, specifically citing his substance
abuse and his having left Massachusetts without informing the
Massachusetts Board that he had done so. I.G. Ex. 2 at 11 - 15.
9. Petitioner did not receive, and, thus, did not respond to, the
Massachusetts Board's Statement of Allegations. I.G. Ex. 1 at 6.
10. Since Petitioner did not respond to the Massachusetts Board's
Statement of Allegations, in an April 4, 1992 Recommended Decision,
a Hearing Officer for the Massachusetts Board adopted the
allegations contained in the Statement of Allegations and
recommended that sanctions be imposed against Petitioner. I.G. Ex.
2 at 8 - 10.
11. In a May 13, 1992 Final Decision and Order, the Massachusetts
Board adopted the Hearing Officer's Recommended Decision and
revoked Petitioner's inchoate right to renew his Massachusetts
medical license by simply re-registering (Petitioner's
Massachusetts medical license having lapsed during the pendency of
the Massachusetts Board's proceeding against him). I.G. Ex. 2 at
5 - 7.
12. In its Final Decision and Order, the Massachusetts Board
concluded: a) that Petitioner was guilty of conduct placing his
competence to practice medicine in question; and b) that Petitioner
was guilty of being addicted to, dependent on, or a habitual user
of, narcotics, barbiturates, amphetamines, hallucinogens, or other
drugs having similar effects. I.G. Ex. 2 at 5 - 6.
13. The basis for the Massachusetts Board's conclusion in its
Final Decision and Order was that, given Petitioner's history of
substance abuse, and given that Petitioner had not cooperated with
the Massachusetts Board's investigation (such that there was no
evidence in the Massachusetts Board's records regarding
Petitioner's then current condition), the Massachusetts Board was
unable to find that Petitioner was then fit to practice medicine.
I.G. Ex. 2 at 5 - 7.
14. In its Final Decision and Order, the Massachusetts Board
stated that it would entertain a reinstatement petition from
Petitioner properly documenting his fitness to practice medicine.
I.G. Ex. 2 at 7.
15. The revocation of Petitioner's inchoate right to renew his
medical license did not alter Petitioner's actual position with
respect to his ability to practice medicine under a Massachusetts
medical license. After voluntarily petitioning to have his
Massachusetts medical license suspended, Petitioner could regain
his Massachusetts medical license and, thus, practice medicine
under a Massachusetts medical license only by convincing the
Massachusetts Board of his fitness to practice medicine. Equally,
following the revocation of his inchoate right to renew his medical
license, Petitioner could have his Massachusetts medical license
reinstated only by convincing the Massachusetts Board of his
fitness to practice medicine. Findings 5, 6, 14.
16. The record does not reflect that Petitioner has ever requested
that the Massachusetts Board reinstate him. I.G. Ex. 2 at 2.
17. By letter of June 1, 1992, Petitioner received notice of the
Massachusetts Board's revocation of his inchoate right to renew his
license. In that letter, the Massachusetts Board informed
Petitioner that the I.G.'s office had provided the Massachusetts
Board with Petitioner's address. P. Ex. 12.
18. The Secretary of the United States 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).
19. Section 1128(b)(4)(A) of the Act and the regulations
promulgated pursuant to the Act (as set forth at 42 C.F.R.
1001.501(a)(1)) permit the I.G. to exclude an individual whose
license to provide health care has been revoked or suspended by a
State licensing authority for reasons bearing on the individual's
professional competence, professional performance, or financial
integrity.
20. Regulations at 42 C.F.R. 1001.501(b) provide that an
exclusion imposed under section 1001.501(a)(1) will never be for a
period of time less than the period during which the individual's
license is revoked, suspended, or otherwise not in effect as a
result of, or in connection with, a State licensing agency action.
21. With regard to an individual excluded pursuant to section
1001.501, the I.G. must consider that individual's request for
early reinstatement if that individual fully and accurately
discloses the circumstances surrounding a prior State's revocation
of that individual's license to a licensing authority of a
different State and that State either grants the individual a new
license or takes no significant adverse action against a currently
held license. 42 C.F.R. 1001.501(c)(2).
22. For purposes of exclusion under the Act and applicable
regulations, the revocation by a State licensing authority of an
individual's inchoate right to renew a medical license is
equivalent to the revocation of an individual's medical license.
42 C.F.R. 1001.501(a)(1).
23. The I.G. had authority to impose and direct an exclusion
against Petitioner pursuant to section 1128(b)(4) of the Act.
Findings 11, 12, 19; Act, section 1128(b)(4)(A); 42 C.F.R.
1001.501(a)(1).
24. On October 21, 1992, based on the Massachusetts Board's May
13, 1992 revocation of Petitioner's inchoate right to renew his
Massachusetts medical license, the I.G. excluded Petitioner until
such time as Petitioner obtained a valid license to practice
medicine or provide health care in Massachusetts. October 21, 1992
Notice.
25. The indefinite nature of Petitioner's exclusion is lawful.
Findings 20, 23; 42 C.F.R. 1001.501(b)(1).
26. Since 1976, Petitioner has held a medical license issued to
him by the Kansas Board. Tr. 38; P. Ex. 15.
27. Beginning in 1976, the Kansas Board required all physicians
practicing medicine in Kansas to have mandatory professional
liability insurance. Tr. 15.
28. The Kansas Board established the license category of the
"federal active license" to allow physicians employed by the
federal government to practice under a Kansas medical license
without having to purchase professional liability insurance. Tr.
15.
29. A federal active license in Kansas requires everything of a
physician that an active license would require, including the same
renewal and continuing education requirements. Tr. 15 - 16.
30. Physicians working for the federal government must hold a
good, valid, current, and unrestricted license in some State
jurisdiction. Tr. 15.
31. Petitioner holds a federal active license from the Kansas
Board. P. Ex. 15; Tr. 21.
32. Petitioner resides and practices medicine in the State of
Arizona, and is currently employed as a physician by the Phoenix
Indian Medical Center, Department of Emergency Medicine, Indian
Health Service, which is a part of the Public Health Service of the
United States Department of Health and Human Services.
Petitioner's November 9, 1992 Hearing Request.
33. Under his federal active license, Petitioner can practice
medicine in Kansas in a federal or military facility. If
Petitioner moved to Kansas to practice medicine in a federal or
military facility, Petitioner would have to provide the Kansas
Board with a change of address, but he would not have to apply to
or formally report to the Kansas Board before doing so. Tr. 21 -
22, 68.
34. To deny renewal to an individual holding a federal active
license, the Kansas Board would have to initiate an action to
revoke, suspend, or otherwise limit the license. Tr. 33.
35. If Petitioner wanted to return to private practice in Kansas,
he would be required to apply for a status change from a federal
active license to an active license. Tr. 23.
36. The Kansas Board would review Petitioner's current situation
to determine whether giving him an active license without
restrictions would be appropriate. Tr. 23 - 24.
37. As part of its review, the Kansas Board would look at the
documentation Petitioner submitted with his application to change
his status with regard to Petitioner's recovery from prior
substance abuse. Tr. 23.
38. The Kansas Board would probably require Petitioner to meet
with the Medical Advocacy Program of the Kansas Medical Society.
Tr. 23 - 24.
39. Following, and depending upon, the results of its review, the
Kansas Board might or might not place restrictions on Petitioner's
license. Tr. 24.
40. The Kansas Board would subject Petitioner to an inquiry into
his recovery process that another physician holding a federal
active license and seeking a status change would not undergo, but
the standard against which Petitioner would be reviewed would not
be different from that of any other physician requesting a status
change. Tr. 23 - 24, 68 - 70, 87 - 89.
41. If Petitioner returned to the State of Kansas to practice
(either under his federal active license in a federal or military
facility or as a physician in private practice requesting a status
change), the Kansas Board staff would make inquiries to ascertain
Petitioner's recovery status and make a report to the Kansas Board.
Pursuant to that report, the Kansas Board would determine whether
disciplinary action would or would not be called for. Tr. 50, 68
- 70, 87 - 89.
42. Documents in the Kansas Board's files regarding Petitioner and
the revocation of Petitioner's license by the Massachusetts Board
include: 1) the Final Decision and Order of the Massachusetts
Board, accompanied by the Recommended Decision and Statement of
Allegations; 2) Petitioner's May 28, 1993 application for renewal
of his federal active license in Kansas; 3) Petitioner's letter of
May 26, 1993 to the Kansas Board, accompanying his application; 4)
a letter of September 5, 1992 to Petitioner from the American Board
of Family Practice stating that he had been recertified; 5)
Petitioner's Petition for Restrictions to the Massachusetts Board,
accompanied by a January 3, 1990 letter to Petitioner from a
Massachusetts Board Investigator regarding the Petition; 6)
Petitioner's November 9, 1992 Hearing Request in this action; 7) a
letter from the I.G.'s counsel of May 26, 1993 transmitting the
I.G.'s list of proposed exhibits and witnesses for a hearing
scheduled in this case and a copy of the exhibit and witness list
prepared for that hearing; 8) the declaration of William M.
Libercci, the I.G.'s Deputy Director of the office of Health Care
Administrative Sanctions; 9) a letter from Petitioner to the I.G.
dated August 25, 1992, responding to the I.G.'s Notice of
exclusion; 10) a June 23, 1992 letter from the I.G. to Petitioner,
informing Petitioner of his proposed exclusion and asking him to
provide information; 11) Petitioner's October 21, 1992 Notice of
exclusion; 12) a May 3, 1982 stipulation between Petitioner and the
Kansas Board; 13) minutes of Kansas Board meetings between 1982 and
1984, regarding Petitioner; 14) a November 3, 1993 letter to the
Kansas Board from Petitioner informing the Kansas Board of the
I.G.'s exclusion and attaching the I.G.'s October 21, 1992 Notice
letter; 15) a June 1, 1992 letter to Petitioner from the
Massachusetts Board, enclosing a copy of the Massachusetts Board's
Final Decision and Order, Recommended Decision, and Statement of
Allegations; 16) a June 23, 1992 letter from the I.G. to
Petitioner; and 17) letters supporting Petitioner's character
written by Judith E. Dixon, M.D., William D. Brown, M.D., and Wayne
R. Keene, R.N. P. Ex. 16, 17.
43. Based on the information currently in the files of the Kansas
Board, the Kansas Board staff has determined to take no adverse
action against Petitioner's Kansas medical license. Whether the
Kansas Board would take any adverse action against Petitioner's
Kansas medical license if he returned to Kansas to practice is
speculative, and would depend upon what additional information the
Kansas Board received. Tr. 87 - 89.
44. A decision made by the Kansas Board staff acting in their
properly delegated role not to take adverse action against a
physician's license constitutes a decision by the Kansas Board.
Tr. 50 - 52.
45. The preponderance of the evidence convinces me that Petitioner
included the Massachusetts Board's Final Decision and Order,
Recommended Decision, and Statement of Allegations, with the
material Petitioner submitted to the Kansas Board in May 1993 with
regard to the renewal of his Kansas medical license. P. Ex. 16,
17; Tr. 78 - 86.
46. Petitioner fully informed the Kansas Board with regard to the
Massachusetts Board's action when he applied to renew his Kansas
medical license on May 28, 1993, by indicating on his application
that a disciplinary action had been taken against him and by
attaching documents regarding the Massachusetts Board's action
(including the Massachusetts Board's Final Decision and Order) with
his May 26, 1993 letter to the Kansas Board. Finding 45; P. Ex.
16, 17; Tr. 78 - 86.
47. The Kansas Board (via the properly delegated determination of
the Kansas Board staff) believes that it has been fully informed
with regard to the action taken against Petitioner's Massachusetts
medical license by the Massachusetts Board. Tr. 26, 44 - 46, 70 -
76.
48. Petitioner's characterization of the Massachusetts Board's
action as a suspension at Petitioner's request (P. Ex. 16 at 15)
did not mislead the Kansas Board as to the nature of the
Massachusetts action. I.G. Ex. 4 at 1.
49. Kansas Board statistics show that an individual who has had a
substance abuse problem, has gone through an appropriate recovery
process, and has not relapsed within two to five years returns to
the same risk as the general population. Petitioner last
experienced a relapse in 1989, five years ago. Tr. 19.
50. In determining not to take any adverse action against
Petitioner's Kansas medical license, the Kansas Board staff
considered: 1) that Petitioner was not practicing within Kansas;
2) that his relapse occurred in 1989; 3) evidence of his current
fitness to practice, consisting of letters written by his
co-workers in Arizona; and 4) the fact that no difficulties with
Petitioner's practice had been brought to the Kansas Board's
attention following the Massachusetts Board's action. Tr. 53 - 55.
51. The Kansas Board has not placed any restrictions on
Petitioner's federal active license, nor has it taken any adverse
action against Petitioner's federal active license based on
Petitioner's history of substance abuse and the revocation of
Petitioner's inchoate right to renew his Massachusetts medical
license. Tr. 22, 27, 44 - 46, 49 - 52, 86.
52. Petitioner's federal active license from the Kansas Board is
a good, current, and unrestricted license, because the only
difference between a federal active Kansas license and an active
Kansas license goes to whether or not a physician has liability
insurance, not to a physician's qualifications, character, medical
condition, or ability to practice. Findings 27 - 29.
53. Petitioner meets the prerequisite conditions for consideration
of early reinstatement under 42 C.F.R. 1001.501(c)(2). Findings
1 - 52.
54. The regulations at 42 C.F.R. 1001.501 require the I.G. to
consider for reinstatement any individual or entity who meets the
prerequisite conditions for consideration of early reinstatement
under 42 C.F.R. 1001.501(c)(2). Alan R. Bonebrake, D.C., DAB
CR279, at 46 - 47 (1993).
55. The I.G. must consider an application by Petitioner for early
reinstatement. Findings 1 - 54.
ANALYSIS
In this case, Petitioner is not contesting the basis for his
exclusion or whether the indefinite exclusion imposed by the I.G.
is reasonable. The only issue before me in this case is whether
the factual predicate to the exception at 42 C.F.R.
1001.501(c)(2) has been met.
Petitioner is currently an employee of the United States Department
of Health and Human Services' Indian Health Service (a part of the
Department of Health and Human Services' Public Health Service) and
is practicing medicine at the Indian Health Service's Phoenix
Indian Medical Center in Phoenix, Arizona, under a license from the
Kansas Board. 3/ In December 1989, Petitioner, who was then
practicing medicine in Massachusetts, suffered a relapse of a
substance abuse problem. Petitioner voluntarily surrendered his
Massachusetts medical license to the Massachusetts Board, with the
stipulation that he could not regain his Massachusetts medical
license until he was able to demonstrate his fitness to practice
medicine. Petitioner did not practice medicine for a year.
Petitioner then left Massachusetts to practice medicine with the
Indian Health Service, first in South Dakota, and then in Arizona.
Petitioner did not inform the Massachusetts Board of his change of
address.
As the Massachusetts Board was unable to find that Petitioner was
fit to practice medicine (Petitioner being then absent from the
State and the Massachusetts Board apparently unable to discover his
address), the Massachusetts Board revoked Petitioner's inchoate
right to renew his Massachusetts medical license. In October 1992,
the I.G. excluded Petitioner from Medicare and Medicaid based on
the Massachusetts Board's action. Petitioner has never applied to
have his Massachusetts medical license reinstated.
Petitioner has held a Kansas medical license since 1976.
Currently, Petitioner holds a federal active license in Kansas. In
May of 1993, Petitioner applied for a renewal of this license.
Petitioner answered "yes" to the question on his renewal
application which asked "[h]as any disciplinary action been taken
or initiated against you by a State licensing agency or other State
or federal agency, peer review organization or professional
association or surrendered or consented to limitation of license to
practice in any State?" P. Ex. 16 at 14. Petitioner submitted a
letter of explanation with his application, characterizing the
Massachusetts Board's action not as a revocation of his license,
but as a suspension of his license at his request. Petitioner
noted also that the I.G. had excluded him from participating in
Medicare and Medicaid based on the Massachusetts Board's action. 4/
However, with his application for renewal, Petitioner submitted
documentation regarding the Massachusetts Board's action, including
the Massachusetts Board's Final Decision and Order. The Kansas
Board renewed Petitioner's federal active license. 5/
I. If the prerequisite conditions set forth at 42 C.F.R.
1001.501(c)(2) are met, the I.G. must consider early reinstatement
of an individual excluded under the authority of section
1128(b)(4)(A) of the Act.
The regulations at 42 C.F.R. 1001.501(c)(2) specifically
provide:
(2) Consideration of early reinstatement. If an individual or
entity that has been excluded in accordance with this section fully
and accurately discloses the circumstances surrounding this action
to a licensing authority of adifferent State, and that State grants
the individual or entity a new license or takes no significant
adverse action as to a currently held license, the OIG will
consider a request for early reinstatement.
In Alan R. Bonebrake, D.C., DAB CR279, at 45 - 49 (1993), I
examined this section of the regulations in detail. I stated that,
if circumstances warranting application of this exception exist,
the exception set forth at section 1001.501(c)(2) mandates early
consideration of reinstatement by the I.G. and the I.G. must
consider an individual's request for early reinstatement. However,
this section does not mandate that the I.G. must reinstate a
petitioner, only that the I.G. must consider a petitioner's
reinstatement (emphasis added). 6/
Specifically, a determination by a State licensing authority to
grant an individual a new license, or take no significant adverse
action against an individual's current license, provides a basis
for a conclusion that: 1) a petitioner is apparently trustworthy
to be a program provider; 2) consideration should be given to
ending the petitioner's exclusion; and 3) the I.G. must consider
the petitioner's reinstatement. In short, the provision defines
what a reasonable period of exclusion is under section 1001.501,
and that any period of exclusion beyond the licensing authority's
determination would arguably be excessive or unreasonable. 7/
When considering whether a petitioner meets the factual predicate
for consideration under this exception, a number of preliminary
conditions must be met. A petitioner, as the moving party seeking
application of the exception, has the burden of proof to show that
the circumstances envisioned in the exception have been met.
Following the petitioner's showing, a determination must be made as
to whether the factual predicate for applying the exception is
present in the petitioner's case.
Whether the exception applies when a State licensing authority
takes no adverse action against a petitioner's license 8/ turns on
what information a petitioner has provided to such State licensing
authority. Specifically, there must have been a full and accurate
disclosure to the State licensing authority of the circumstances
surrounding the prior license revocation, surrender, or loss. The
requirements for the exception at section 1001.501(c)(2) will have
been met: 1) where a petitioner has made a good faith attempt to
supply a State with all the information in his or her possession
concerning a prior licensing disciplinary action; and 2)
where the petitioner responds to all reasonable requests
from another State's licensing authority for information about his
license revocation, surrender, or loss.
The preamble to the exception at section 1001.501(c)(2) couches the
test whether the exception is met not on what information a
petitioner supplies to a State licensing authority, but on whether
the licensing authority is "fully apprised of the circumstances
surrounding the loss of the license." 57 Fed. Reg. 3304 - 3305.
Thus, if a petitioner has supplied sufficient information to a new
State licensing authority such that, with reasonable diligence and
effort, the State licensing authority can be fully apprised of the
circumstances surrounding a license revocation, surrender, or loss,
then that petitioner has met the predicate to the exception.
Depending on the nature of the circumstances surrounding the loss
of a petitioner's license, each State licensing authority will
decide how much information (additional to the bare fact of the
license revocation, surrender, or loss) it needs to protect the
public from a potentially untrustworthy medical practitioner. By
relying on State licensing authorities to trigger consideration of
early reinstatement, the I.G. has given State licensing authorities
latitude with regard to the investigation of a practitioner whose
license was revoked, surrendered, or otherwise lost. However, the
ultimate determination as to whether to reinstate a petitioner
under the exception resides with the I.G.
II. Petitioner has met the prerequisite conditions for
consideration of early reinstatement under 42 C.F.R.
1001.501(c)(2).
The I.G. argues that Petitioner has not met the prerequisite
conditions for consideration of early reinstatement under the
exception at 42 C.F.R. 1001.501(c)(2) because: 1) the evidence
does not establish that Petitioner fully and accurately disclosed
the circumstances surrounding the Massachusetts Board's action to
the Kansas Board, nor that the Kansas Board was "fully apprised" of
all relevant circumstances regarding Petitioner's fitness to
practice as a result of their own investigation; and 2) the Kansas
Board has simply deferred any decision with respect to a possible
adverse action against Petitioner until he returns to Kansas to
practice medicine. For the reasons set forth below, I disagree
with the I.G. on both issues and find that Petitioner has, indeed,
met the prerequisite conditions for consideration of early
reinstatement as set forth at section 1001.501(c)(2).
A. Petitioner has fully and accurately disclosed to the
Kansas Board the circumstances surrounding the Massachusetts
Board's action.
The I.G. asserts that Petitioner has not fully and accurately
disclosed to the Kansas Board the circumstances surrounding the
revocation of his Massachusetts medical license. The I.G.
acknowledges that the Kansas Board knew of the Massachusetts
Board's action before renewing Petitioner's Kansas medical license
and considered itself fully informed about the Massachusetts
Board's action. I.G. Br. 13. The I.G. contends, however, that the
record does not show that Petitioner himself made a good faith
effort to fully and accurately disclose the Massachusetts Board's
action to the Kansas Board. Rather, the I.G. argues that
Petitioner mischaracterized the nature of the Massachusetts Board's
action in his communication with the Kansas Board, stating that he
had voluntarily requested a suspension of his license, not that the
Massachusetts Board had revoked his inchoate right to renew his
license. 9/ I disagree.
Petitioner's characterization of the Massachusetts Board's action
is not determinative for the purposes of meeting the exception at
section 1001.501(c)(2). The determinative factor with regard to
this exception is whether or not Petitioner's actions fully and
accurately informed the Kansas Board with regard to the
Massachusetts Board's action. The preponderance of the evidence
supports a determination that Petitioner's actions did fully and
accurately inform the Kansas Board.
The record of this case convinces me that Petitioner fully and
accurately informed the Kansas Board with regard to the nature of
the Massachusetts Board's action. Petitioner is not an attorney.
As a layperson, Petitioner legitimately may have believed that the
Massachusetts Board's action was based on his voluntary license
suspension given that: 1) Petitioner voluntarily had his license
to practice medicine in Massachusetts suspended in 1990; 2) the
revocation of Petitioner's inchoate right to renew his license was
based on the same relapse of a substance abuse problem which led
him to request that his license be suspended; and 3) the practical
effect of either the license suspension or the revocation is
exactly the same (i.e., that Petitioner could not regain his
Massachusetts medical license until he demonstrated his current
fitness to practice medicine). Moreover, Petitioner fairly
characterized the Massachusetts Board's action in his letter to the
Kansas Board in November 1992. P. Ex. 17 at 6. Specifically,
Petitioner noted that the I.G. took her exclusion action against
him based upon what the I.G. termed his license revocation in
Massachusetts. Petitioner stated that this characterization of
events was not totally correct and then went on to describe the
situation as he saw it. Petitioner noted that he had requested and
received a voluntary suspension, noted that he left Massachusetts
without attempting to have his license reinstated, and then stated
that, based on the information the Massachusetts Board had, the
Massachusetts Board informed Petitioner that he could not renew his
license without reapplying. Petitioner attached a copy of the
Notice with this letter.
The Kansas Board has stated (via its delegated representative,
Lawrence T. Buening) that it has been fully informed with regard to
the Massachusetts Board's action against Petitioner and has
elected, based on the information currently in its possession, not
to take adverse action against Petitioner's Kansas medical license.
Further, the Kansas Board does not believe any mischaracterization
on Petitioner's part regarding the nature of the Massachusetts
Board's action misled the Kansas Board. Petitioner provided
information to the Kansas Board (including, as I found above, the
Final Decision and Order of the Massachusetts Board in his case)
documenting the events surrounding the revocation of his inchoate
right to renew his Massachusetts medical
license. 10/ Thus, Petitioner has fully and accurately disclosed
the circumstances surrounding the Massachusetts Board's action to
the Kansas Board. 11/
B. The Kansas Board has renewed Petitioner's Kansas medical
license.
The I.G. contends that, although the Kansas Board has not yet taken
adverse action against Petitioner's Kansas medical license, 12/ the
Kansas Board has not determined that Petitioner is fit to practice
medicine, but has simply deferred a decision on Petitioner's
license until he returns to Kansas. With regard to meeting the
conditions for consideration of early reinstatement under the
exception at section 1001.501(c)(2), however, this argument is
irrelevant.
Section 1001.501(c)(2) requires only that a State take no
significant adverse action as to a petitioner's currently held
license. The regulation does not contemplate denying a petitioner
who meets the conditions predicate to the exception the opportunity
to apply for consideration of early reinstatement because at some
unspecified time in the future a State licensing authority might
take action against a petitioner's license. Further, the
regulation does not set forth what type of investigation a State
must undertake before the I.G. can rely on a State action. While
the assumption behind the exception may be that a State has
determined a petitioner to be trustworthy by granting a petitioner
a license, the exception gives a petitioner only the opportunity to
apply for reinstatement. The I.G. is given the power to test this
assumption, as the exception leaves to the I.G. the decision as to
whether a petitioner is sufficiently trustworthy to be reinstated.
13/
In this case, a fully informed State licensing authority not only
took no significant adverse action against Petitioner's license, it
took no action at all against Petitioner's license. While Mr.
Buening did suggest that, if Petitioner returned to Kansas to
practice, the Kansas Board staff would require him to meet with the
Kansas Medical Advocacy Program of the Kansas Medical Society (and
suggested also that the Kansas Board staff would report to the
Kansas Board the results of any investigation they did of
Petitioner), Mr. Buening testified that the Kansas Board would
sanction Petitioner only if new information came to light outside
of what was in the record before them. Tr. 87 - 89. What is clear
from Mr. Buening's testimony is that, based on the information in
its files concerning Petitioner, the Kansas Board took no adverse
action against Petitioner's existing federal active license and, in
fact, renewed such license without any restrictions other than
those placed on all federal active licenses.
III. Allowing Petitioner to apply for early reinstatement does not
leave the programs or their beneficiaries and recipients
unprotected.
The I.G. notes that one purpose of exclusion under section
1128(b)(4) is to prevent practitioners who lose their license in
one State from moving and continuing their practice elsewhere. See
S. Rep. No. 109, 100th Cong., 1st Sess. 1 - 2 (1987), reprinted in
1987 U.S.C.C.A.N. 682. The I.G. argues that considering Petitioner
for early reinstatement would thus defeat the primary purpose of
the Act, which is to promote the safety and well-being of Medicare
beneficiaries and Medicaid recipients. The I.G. asserts that this
is because the I.G. cannot rely on the Kansas Board's actions in
this case to ensure that Petitioner is currently fit to treat
Medicare and Medicaid patients. However, section 1001.501(c)(2)
does not require that a petitioner be declared fit by a State
licensing authority. As I stated above, section 1001.501(c)(2)
requires only that a fully informed State licensing authority grant
a petitioner a license or take no significant adverse action
against a currently held license.
Moreover, even if it is determined that a petitioner has met the
requirements for consideration of early reinstatement as set forth
at section 1001.501(c)(2), this does not mean that the I.G. is
required to reinstate a petitioner or that the programs are not
protected from an untrustworthy provider. Once a petitioner is
found eligible for consideration of early reinstatement under the
programs, it is up to the I.G. to investigate and determine that
petitioner's fitness to practice. An administrative law judge does
not have the authority to order a petitioner reinstated; an
administrative law judge can only find a petitioner eligible to be
considered for early reinstatement.
In this case, once I have found Petitioner eligible to be
considered for early reinstatement, to accomplish reinstatement,
Petitioner must first make a written request to the I.G. for
reinstatement. 42 C.F.R. 1001.3001(a)(3). Once Petitioner
makes his request, as the I.G. acknowledges (I.G. R. Br. 2 - 3),
the I.G.'s duty is to fully investigate Petitioner before
determining whether he should be reinstated. The I.G. stated in
her reply brief that she would require Petitioner to furnish
specific information and authorization to obtain information from
private health insurers, peer review bodies, probation officers,
professional associates, investigative agencies, and such other
sources as may be necessary to determine whether reinstatement
should be granted. 42 C.F.R. 1001.3001(a)(3). Based upon
evaluation of all of the information gathered (and taking into
account the considerations addressed at 42 C.F.R. 1001.3002),
the I.G. will make a determination as to whether Petitioner should
be reinstated. Thus, the I.G. has the opportunity to determine
whether Petitioner is currently fit (and trustworthy enough) to
provide services to Medicare and Medicaid. 14/
Finally, the I.G. has suggested that I should not find Petitioner
eligible to apply for early reinstatement because he has other
options, such as reapplying for his Massachusetts medical license.
Any other options Petitioner may have are immaterial to my decision
in this case. Petitioner has met the prerequisite conditions for
early reinstatement as set forth at section 1001.501(c)(2). Thus,
Petitioner is eligible to apply for early reinstatement under that
section.
CONCLUSION
I have found that Petitioner has met the prerequisite conditions
for consideration of early reinstatement under the exception at 42
C.F.R. 1001.501(c)(2). Thus, the I.G. must consider a request
by Petitioner for early reinstatement.
Edward D. Steinman
Administrative Law Judge
1. In this Decision, I refer to all programs from which
Petitioner has been excluded, other than Medicare, as Medicaid.
2. The transcript of the testimony of Lawrence T. Buening, Jr.
(taken by telephone on July 13, 1994) will be referred to in this
Decision as Tr. (page). The parties' posthearing briefs will be
referred to as I.G. or P. Br. (page). The parties' posthearing
reply briefs will be referred to as I.G. R. or P. R. Br. (page).
The exhibits submitted by the parties, which I admitted into
evidence by telephone on July 28, 1994 (the I.G.'s exhibits
numbered 1 through 4 and Petitioner's exhibits numbered 1 and 9
through 17), will be referred to as I.G. or P. Ex. (number) at
(page). My Findings of Fact and Conclusions of Law will be
referred to as Finding(s) (number).
3. I note here the anomaly that Petitioner is employed, and,
thus, paid for his services, by one arm of the Department of Health
and Human Services (and has been so employed since the commencement
of his exclusion), while another arm of the Department of Health
and Human Services has excluded him from reimbursement for his
services by Medicare and Medicaid. In essence, apparently
Petitioner is fit to practice medicine as a Departmental physician
and serve individuals eligible for treatment at Indian Health
Service (IHS) facilities, but Petitioner is not fit to seek
reimbursement for program-related items or services. In short, by
excluding Petitioner, the I.G. is prohibiting IHS from getting
reimbursed for Petitioner's work when treating individuals eligible
for Medicare or Medicaid coverage. As of September 18, 1993, over
one year ago, Petitioner estimated that IHS had lost approximately
$250,000 due to his exclusion. P. Ex. 1 at 1. By now, IHS likely
has lost at least double this amount.
4. By letter of November 3, 1992, Petitioner previously had
notified the Kansas Board of his exclusion.
5. The Kansas Board's files contain a psychiatric evaluation of
Petitioner dated December 28, 1990, which was submitted to the
Kansas Board by Petitioner, and was in the Kansas Board's
possession when the Kansas Board renewed Petitioner's Kansas
medical license. Tr. 58 - 59. The I.G. has asked to see this
document. The Kansas Board does not want to release it to the I.G.
without Petitioner's consent, and Petitioner does not now want the
Kansas Board to release it to the I.G. I am not drawing an adverse
inference in this case from Petitioner's decision not to allow the
Kansas Board to release this document to the I.G. I note that the
contents of this document apparently did not persuade the Kansas
Board staff to go to the Kansas Board in an effort to take adverse
action against Petitioner's Kansas medical license.
6. While the language at 42 C.F.R. 1001.501(c)(2) makes it
mandatory for the I.G. to consider a petitioner's request for early
reinstatement ("the OIG will consider a request for early
reinstatement" (emphasis added)), not "may" or "might"
consider
such a request, Medicare and Medicaid are still protected. This is
because, in evaluating a petitioner's reinstatement application,
the I.G. has the opportunity to determine a petitioner's
trustworthiness by extensively reviewing the petitioner's past and
current condition. 42 C.F.R. 1001.3002(b).
7. The preamble to the regulations at 42 C.F.R. 1001.501
suggests that the I.G. considers her authority to exclude pursuant
to this section to be based on the actions of "derivative
agencies," i.e., agencies other than the Department of Health and
Human Services. 57 Fed. Reg. 3304 (1992). By relying on the
subsequent actions of these "derivative agencies" in granting a new
license or not taking significant adverse action against a current
license, the I.G. is treating the State licensing authority's
action as a surrogate determination that a petitioner no longer
poses a threat to Medicare or Medicaid. Id. at 3304 - 3305.
8. The I.G. recognizes that the Kansas Board has of yet taken
no adverse action against Petitioner's federal active license.
I.G. Br. 18. However, the I.G. argues that I am charged with the
responsibility of examining whether the Kansas Board adequately
considered Petitioner's fitness to practice when it made its
determination not to take any adverse action against his license.
As will be discussed more fully below, the Act and the regulations
impose no such obligation on an administrative law judge.
9. The I.G. notes that Petitioner made these alleged
mischaracterizations in his November 3, 1992 letter to the Kansas
Board (P. Ex. 17 at 6) and in his May 26, 1993 letter accompanying
his application for license renewal (P. Ex. 16 at 15). The I.G.
notes further that Petitioner's assertion contradicts the
declaration of Debra Stoller (I.G. Ex. 2 at 1 - 2) in which Ms.
Stoller states that the Massachusetts Board's action was not based
on Petitioner's voluntary surrender of his Massachusetts medical
license.
10. The I.G. asserts that the May 17, 1993 declaration of Debra
Stoller (I.G. Ex. 2 at 1 - 2), which stated that Petitioner's
license revocation in Massachusetts was not premised upon his
voluntary suspension, was not sent with Petitioner's license
renewal application. The I.G. argues that it was Petitioner's duty
to make a good faith effort to make the Kansas Board fully aware of
all pertinent circumstances, including this declaration. First, I
note that Petitioner provided the Kansas Board with a copy of the
I.G.'s exhibit list, which refers to this declaration. Thus, the
Kansas Board was aware of the existence of this document and could
have obtained it. Second, the Kansas Board had the Final Decision
and Order of the Massachusetts Board and was able to draw its own
conclusion as to the nature of the action. I do not believe Ms.
Stoller's declaration would materially add to the Kansas Board's
knowledge as to the nature of the action the Massachusetts Board
took against Petitioner. Thus, as the Kansas Board was not misled
by Petitioner's characterization of the Massachusetts Board's
action, and, as the Kansas Board was notified of the existence of
the declaration, I do not draw an inference adverse to Petitioner
for his not providing the Kansas Board with this document.
11. The I.G. argues that consideration for reinstatement is not
the automatic result of a licensing decision. Further, the I.G.
argues that it is impossible to conclude that the Kansas Board has
been fully apprised of (or has conducted its own review of) all
relevant circumstances as to Petitioner's disciplinary history. I
disagree. I have found that there is ample evidence (based on the
extensive testimony of Mr. Buening, who testified concerning the
Kansas Board's actions regarding Petitioner, and based on the
documents contained in the files of the Kansas Board) that the
Kansas Board was fully and accurately apprised of the nature of
Petitioner's problems and the reasons why the Massachusetts Board
took their action. Based on such information, the Kansas Board
renewed Petitioner's Kansas medical license without taking any
adverse action against his license. On its face, the regulation at
42 C.F.R. 1001.501(c)(2) does not require a licensing authority
to actually do anything with regard to investigation. The
regulation merely requires that the excluded individual fully and
accurately disclose the circumstances surrounding an adverse
licensing action and that a State licensing authority either grant
the individual a new license or take no significant adverse action
against an existing license. Petitioner met these requirements
here.
12. The I.G. has contended also that the Kansas Board has never
reviewed Petitioner's case, inferring that the regulation
contemplates action by the full Kansas Board, not Kansas Board
staff. I disagree. In this case, the Kansas Board staff, acting
in their delegated capacity, made a decision not to recommend that
adverse action be taken against Petitioner's license. I have found
that the record supports a finding that the Kansas Board staff is
empowered to make such a determination.
13. I note that for any exclusion imposed under section 1128 of
the Act based upon a derivative action (such as a conviction or a
license revocation), neither an administrative law judge nor the
I.G. is permitted to look behind the conviction or revocation to
decide whether the facts support the court's or the licensing
authority's determination to convict or to revoke a license.
Equally, in determining whether a petitioner has met the
prerequisite conditions to be considered for reinstatement at 42
C.F.R. 1001.501(c)(2), I do not believe that either an
administrative law judge or the I.G. is authorized to look behind
a fully and accurately informed licensing authority's decision to
either grant a petitioner a new license or to take no significant
adverse action against a petitioner's currently held license.
14. Throughout this proceeding, the I.G. gave little weight to
the fact that, at the same time Petitioner was being excluded by
the I.G., another component of the Department, the IHS, was
employing him to treat IHS patients. While I recognize that each
component of the Department has separate responsibilities to the
public, I suggest that any action taken by the I.G. to continue
Petitioner's exclusion be coordinated closely with IHS. Clearly,
eligible IHS patients should be entitled to the same protection
afforded Medicare and Medicaid beneficiaries and recipients. To do
otherwise, leaves the Department open to serious questions of
fairness, especially regarding whether the Department is providing
equal protection to all individuals receiving benefits administered
by the Department.