$05:Exclusion Case
Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
In the Case of:
Michael A. Fuentes, M.D.,
Petitioner,
- v. -
The Inspector General.
DATE: June 13, 1995
Docket No. C-95-017
Decision No. CR382
DECISION
On September 20, 1994, the Inspector General (I.G.) notified
Petitioner that he was being excluded from participating in the
following programs: Medicare, Medicaid, Maternal and Child Health
Services Block Grant and Block Grants to States for Social
Services. The I.G. advised Petitioner that she had determined that
the exclusion was authorized by section 1128(b)(4) of the Social
Security Act (Act). The I.G. informed Petitioner that the
exclusion was based on a decision by the Virginia Board of Medicine
to revoke Petitioner's license to practice medicine or provide
health care in the State of Virginia, for reasons bearing on
Petitioner's professional competence, professional performance, or
financial integrity. The I.G. also told Petitioner that he would
not be eligible to apply for reinstatement to the programs until he
obtained a valid license to practice medicine or provide health
care in Virginia.
Petitioner requested a hearing, and the case was assigned to me for
a hearing and a decision. I held two prehearing conferences. In
addition, I received numerous items of correspondence from
Petitioner. I concluded that there may not exist disputed issues
of material fact requiring an in-person hearing. I afforded the
I.G. the opportunity to file a motion for summary disposition. I
afforded Petitioner the opportunity to respond to the I.G.'s
motion.
The I.G. moved for summary disposition and Petitioner responded to
the I.G.'s motion. I have carefully considered the facts alleged
by the parties, their arguments, and the law. I conclude that no
disputed material facts exist in this case. I conclude also that
the I.G. had authority, pursuant to section 1128(b)(4)(A) of the
Act, to exclude Petitioner. Finally, I conclude that, under the
regulations which govern exclusions imposed under section
1128(b)(4) of the Act, the exclusion in this case must remain in
effect until Petitioner obtains a valid license to provide health
care in the State of Virginia. Therefore, I sustain the exclusion
imposed against Petitioner by the I.G.
I. Issues, findings of fact, and conclusions of law
There are two issues in this case. The first issue is whether the
I.G. had authority to exclude Petitioner under section 1128(b)(4)
of the Act. The second issue is whether the length of the
exclusion -- coterminous with Petitioner's loss of his license to
practice medicine in Virginia -- is reasonable.
In concluding that the I.G. had authority to exclude Petitioner and
that the length of the exclusion is reasonable, I make the
following findings of fact and conclusions of law. After each
finding or conclusion, I state the page or pages of this Decision
at which I discuss the finding or conclusion in detail.
1. Petitioner's license to practice medicine in Virginia was
revoked by that State's licensing authority for reasons bearing on
his professional competence and performance. Pages 5-6.
2. Petitioner may not successfully challenge the authority of
the I.G. to exclude him on the grounds that the revocation of his
license by the Virginia Board of Medicine denied him due process of
law, was unreasonable, or was otherwise improper. Pages 6-8.
3. The I.G. was authorized to exclude Petitioner pursuant to
section 1128(b)(4)(A) of the Act. Pages 4-6.
4. Regulations which govern the length of exclusions imposed
pursuant to section 1128(b)(4) of the Act generally require that an
exclusion imposed pursuant to that section must be for the same
length of time as the State revocation, suspension, surrender or
other loss of a license to provide health care which is the basis
for the exclusion. Pages 3-4.
5. Petitioner has not established a basis for reducing the
exclusion imposed in this case to a period that is less than
coterminous with his loss of his license to practice medicine in
Virginia. Pages 5-8.
6. The exclusion which the I.G. imposed against Petitioner is
reasonable. Pages 5-8.
II. Analysis of the law and evidence
A. Analysis of the law
The I.G. excluded Petitioner pursuant to section 1128(b)(4) of the
Act. This section authorizes the Secretary (or her delegate, the
I.G.) to exclude an individual or entity:
(A) whose license to provide health care has been revoked or
suspended by any State licensing authority, or who otherwise lost
such a license or the right to apply for or renew such a license,
for reasons bearing on the individual's or entity's professional
competence, professional performance, or financial integrity, . .
. .
The Secretary has published a regulation which governs the length
of exclusions which are imposed pursuant to section 1128(b)(4) of
the Act. 42 C.F.R. 1001.501. This regulation provides,
generally, that an exclusion imposed pursuant to section 1128(b)(4)
will be for the same length of time as the State revocation or
suspension of a license to provide health care which is the basis
for the exclusion. 42 C.F.R. 1001.501(b)(1).
The regulation permits an exclusion to be for less than a
coterminous period only in the limited circumstances described in
42 C.F.R. 1001.501(c)(1). That subsection permits a less than
coterminous exclusion to be imposed if, prior to the date of the
I.G.'s notice of exclusion to the excluded individual or entity:
the licensing authority of a State (other than the one in
which the individual's or entity's license had been revoked,
suspended, surrendered or otherwise lost), being fully apprised of
all of the circumstances surrounding the prior action by the
licensing board of the first State, grants the individual
or entity a license or takes no significant adverse action as
to a currently held license, . . . .
Neither the Act, nor the regulations which govern exclusions
imposed pursuant to section 1128 of the Act, allocate to a specific
party the burden of persuasion on the issues of whether an
exclusion is authorized or whether the length of an exclusion is
reasonable. Regulations which govern a hearing in an exclusion
case under section 1128 provide that the administrative law judge
shall have the authority to allocate the burden of persuasion as is
appropriate. 42 C.F.R. 1005.15(c).
Generally, administrative law judges allocate to the I.G. the
burden of proving that an exclusion is authorized and that it is
reasonable. However, the burden usually shifts to the petitioner
where the petitioner advocates an affirmative exception to a
general rule governing the length of an exclusion. The guiding
principal is that the party which is most likely to be in
possession of evidence which would establish a contested fact bears
the burden of persuasion as to that fact.
The I.G. has the burden of proving that an exclusion is authorized
under section 1128(b)(4) of the Act. In this case, the elements of
that burden consist of proving, in accordance with the requirements
of section 1128(b)(4)(A), that Petitioner's license to practice
medicine in Virginia was revoked by the Virginia Board of Medicine,
and of proving also that Petitioner's license was revoked for
reasons bearing on his professional competence, professional
performance, or financial integrity.
Pursuant to section 1128(b)(4)(A) of the Act, the authority to
exclude an individual or entity derives from the suspension or
revocation by the State licensing authority of that individual's or
entity's State license to provide health care. In deciding whether
the State licensing authority has suspended or revoked a license to
provide health care for one of the reasons set forth under section
1128(b)(4)(A), the underlying merits of the case which led to the
State action are not at issue. Thus, in an administrative hearing
concerning an exclusion imposed under section 1128(b)(4), an
individual may not successfully challenge the exclusion on the
ground that he or she did not, in fact, engage in the conduct
asserted by the State licensing authority as the basis for revoking
or suspending that individual's license. Nor may that party
successfully challenge an exclusion imposed under section
1128(b)(4) on the ground that the State license revocation or
suspension proceeding was not conducted fairly. 1/
Although the I.G. has the burden also of proving that the length of
the exclusion is reasonable, that burden is met in a case involving
an exclusion imposed pursuant to section 1128(b)(4), which is
coterminous with a State license revocation or suspension. The
I.G. must simply prove that the authority exists to exclude an
individual or entity. This is because a coterminous exclusion is
presumed to be reasonable under 42 C.F.R. 1001.501(b)(1),
assuming that authority to exclude is established. An excluded
party may rebut that presumption only by proving that an exception
exists under 42 C.F.R. 1001.501(c)(1). In this case, the I.G.
meets her burden of proving that the coterminous exclusion is
reasonable by proving that Petitioner's license to practice
medicine and surgery in Virginia was revoked for one of the reasons
stated in section 1128(b)(4)(A).
B. Analysis of the evidence
Summary disposition sustaining Petitioner's exclusion is
appropriate. I have no basis to conduct an in-person hearing. The
undisputed material facts of this case establish that the I.G. was
authorized to exclude Petitioner for a period which is coterminous
with the loss of his Virginia license to practice medicine.
Petitioner's license to practice medicine in Virginia was revoked
by that State's Board of Medicine for reasons bearing on his
professional competence or performance. Although Petitioner has
alleged serious allegations of wrongdoing on the part of
individuals on the Pennsylvania and Virginia Boards of Medicine, as
I explained above, I may not consider such allegations here.
Petitioner has not alleged facts which might establish that the
Virginia Board of Medicine's determination may be disputed
legitimately. Nor has Petitioner alleged facts which might suggest
that this case qualifies for an exception to the requirement stated
in 42 C.F.R. 1001.501(b)(1) that the exclusion be coterminous
with the loss of his license to practice medicine in Virginia.
The undisputed material facts of this case are as follows. On
December 21, 1993, the Virginia Board of Medicine suspended
Petitioner's license to practice medicine and surgery in that
State. I.G. Ex. 1 at 3. 2/ The decision to suspend Petitioner's
Virginia license was based on a summary suspension by the
Connecticut Medical Examining Board of Petitioner's license to
practice medicine and surgery in Connecticut. Id. Petitioner
requested the Virginia Board of Medicine to reinstate his Virginia
license. Id. at 1. On June 9, 1994, a formal hearing was held on
this request. Id at 1. Petitioner did not appear at this hearing.
Id. On June 28, 1994, the Virginia Board of Medicine revoked
Petitioner's license to practice medicine in Virginia. Id. at 6.
The Virginia Board of Medicine found that, in October, 1993, the
Connecticut Medical Examining Board suspended Petitioner's license
to practice medicine and surgery in Connecticut. I.G. Ex. 1 at
2-3. In deciding to revoke Petitioner's Virginia license, the
Virginia Board of Medicine restated some of the findings made by
the Connecticut Medical Examining Board concerning Petitioner's
license to practice medicine and surgery in Connecticut. The
Virginia Board of Medicine found that the Connecticut licensing
authority had suspended Petitioner's license in that State, based
on information that Petitioner suffered from an emotional disorder
or mental illness, which prevented him from practicing medicine and
surgery with reasonable skill and safety. Id.
The Virginia Board of Medicine found also that, in September and
December, 1993, the Commonwealth of Pennsylvania State Board of
Medicine had filed orders to show cause against Petitioner. I.G.
Ex. 1 at 2. It found that these orders to show cause made
allegations against Petitioner which included the allegation that
Petitioner was unable to practice medicine with reasonable skill
and safety to his patients by reason of illness. Id.
It is apparent from the foregoing undisputed facts that the
Virginia Board of Medicine revoked Petitioner's license for reasons
bearing on Petitioner's professional competence and performance.
Although not stated specifically in the Virginia Board of
Medicine's order, it is evident that the Virginia Board of Medicine
was persuaded that Petitioner, by reason of illness, was unable to
practice medicine in Virginia with reasonable skill and safety to
his patients.
Petitioner has not denied that his license to practice medicine and
surgery was revoked in Virginia. Petitioner has not denied that
the Virginia Board of Medicine revoked his license to practice
medicine in that State for reasons bearing on his professional
competence or performance. Petitioner has not asserted that the
length of the exclusion, if authorized, is unreasonable.
Petitioner argues that it would be unfair to exclude him based on
the action taken by the Virginia Board of Medicine. He asserts
that he must be afforded an in-person hearing so that he may offer
evidence to prove that he is the subject of unfair or biased
actions by Virginia authorities, and by authorities in other
jurisdictions as well. The allegations that Petitioner seeks to
have heard include allegations that:
The actions of the Virginia Board of Medicine were
based on lies, perjured testimony, and a wrongful diagnosis of
Petitioner's medical problems.
The Virginia Board of Medicine's determination to
suspend Petitioner's license was in retribution for Equal
Employment Opportunity complaints and antitrust lawsuits which he
filed.
Petitioner was denied due process of law by the
Virginia Board of Medicine.
Petitioner has been diagnosed incorrectly to be
suffering from a mental illness, when in fact, his illness is
pernicious anemia, which mimics mental illness.
Petitioner's illness is the consequence of his
inability to purchase medicine or food due to the wrongful
suspension of reimbursement for Medicare items or services that he
had provided.
Due to Petitioner's inability to afford legal counsel,
he had to represent himself while he was ill, and therefore, had
ineffective assistance of counsel.
Petitioner has been denied fair treatment by State
licensing authorities and the federal government because of his
status as an ethnic minority.
Petitioner has been entrapped by federal authorities.
Petitioner's privileged communications with his former
attorney and his former physician were intercepted unlawfully by
federal authorities.
I do not have authority to hear Petitioner's assertions, nor are
they material to this case. In effect, Petitioner concedes that
the decision by the Virginia Board of Medicine meets the criteria
in section 1128(b)(4)(A) of the Act authorizing the I.G. to impose
an exclusion based on a license revocation or suspension. His
assertions address the truth of the facts which underlie the
actions taken by the Virginia Board of Medicine. Petitioner's
arguments concerning the actions taken by the Virginia Board of
Medicine do not raise an issue that I may hear and decide. The
I.G.'s authority to exclude under section 1128(b)(4) derives from
a State licensing authority's determination, and does not depend on
proving the truth of the facts which may underlie that
determination. 3/ John W. Foderick, M.D., DAB CR43 (1989), aff'd,
DAB 1125 (1990); Anthony Cerrone, D.M.D., DAB CR373 (1995).
I conclude that the I.G. has shown that the length of the exclusion
is reasonable. An exclusion which is coterminous with the
revocation of Petitioner's license to practice medicine and surgery
in Virginia is presumptively reasonable under 42 C.F.R.
1001.501(b)(1). Petitioner has made no contentions of fact or
arguments which might rebut that presumption of reasonableness.
III. Conclusion
I conclude that there are no disputed issues of material fact in
this case. Summary disposition is appropriate. The exclusion
imposed by the I.G. is authorized under section 1128(b)(4)(A) of
the Act and is reasonable. Therefore, I sustain the exclusion.
________________________
Steven T. Kessel
Administrative Law Judge
1. If an excluded party is successful in reversing or vacating
a State license revocation or suspension action through an appeal
of that action, then the I.G. will reinstate that party retroactive
to the effective date of the exclusion. 42 C.F.R.
1001.3005(a)(2).
2. The I.G. submitted one exhibit, I.G. Ex. 1. Petitioner has
not objected to the admission into evidence of I.G. Ex. 1 and I
hereby admit it into evidence.
Shortly after Petitioner submitted his request for a hearing, the
I.G. sent to the Departmental Appeals Board offices in Washington
D.C. a package of documents consisting of correspondence between
the I.G. and Petitioner, and correspondence between Petitioner and
the Executive Director of the Virginia Board of Medicine.
The I.G. has not requested that any of these documents be made
exhibits and has not made any arguments based on these documents.
I have not reviewed these documents, nor are any of my findings
based on these documents, because they do not appear to be material
to this case and I am returning them to the I.G.
Petitioner submitted eleven exhibits and twenty-three attachments
with his response to the I.G.'s motion for summary disposition. I
have designated Petitioner's attachments as P. Ex. 12. At various
times during the course of these proceedings, Petitioner submitted
documents, in the form of letters, statements, and telegrams.
Petitioner did not formally designate these submissions as
exhibits. These documents were forwarded to the I.G., and include
the following: letters from Petitioner dated December 4, 1994 and
December 23, 1994, an envelope received on January 4, 1995, a
telegram received on February 28, 1995. See January 9, 1995 letter
from Ms. McKessy to Robert Drum, Assistant Regional Counsel. I
have designated them as exhibits P. Ex. 13-16. The I.G. has not
objected to my admitting into evidence any of the exhibits and
other documents submitted by Petitioner. I hereby admit into
evidence P. Ex. 1-16.
3. I can not address Petitioner's assertion that he was not
reimbursed for one-year of Medicare services which he rendered, as
this issue is not within the scope of my authority. I may decide
only the issues of whether: the I.G. is authorized to exclude
Petitioner, and the length of the exclusion is reasonable.