DEPARTMENT OF HEALTH AND HUMAN SERVICES
Departmental Appeals Board
Civil Remedies Division
In the Case of:
John W. Foderick, M.D.,
Petitioner,
- v. -
The Inspector General.
DATE: September 8, 1989
Docket No. C-113
DECISION OF ADMINISTRATIVE LAW JUDGE
ON MOTION FOR SUMMARY DISPOSITION
On March 29, 1989, the Inspector General (the I.G.) notified Petitioner that
he was being excluded from
participation in the Medicare program and any State health care program. The
I.G. told Petitioner that his
exclusions were due to the fact that Petitioner surrendered his license to practice
medicine in the State of
Minnesota while a formal disciplinary proceeding was pending before the Minnesota
Board of Medical
Examiners (the Board of Medical Examiners). Petitioner was advised that in the
event he obtained a valid
license to practice medicine from the State of Minnesota, he would have the
right to apply for
reinstatement to the Medicare and State health care programs.
Petitioner timely requested a hearing, and the case was assigned to me for
a hearing and decision. I
conducted a prehearing conference by telephone on May 23, 1989, at which Petitioner
appeared pro se. He
requested that I appoint counsel to represent him in this proceeding. I ruled
that I had no authority to
appoint counsel to represent Petitioner, but I advised him that he had the right
to obtain counsel. I
suggested to Petitioner that he contact resources in his community which might
provide legal services.
Petitioner did not obtain counsel.
During the May 23 prehearing conference, the I.G. stated that he intended to
move for summary
disposition in this case. I issued a Prehearing Order on June 1, 1989, which
established a schedule for
filing the motion and responding to it, and which also provided for oral argument
on the motion. The I.G.
timely filed a motion for summary disposition, to which Petitioner responded.
Neither party requested oral
argument on the motion.
I have considered the arguments contained in the I.G.'s motion for summary
disposition, the undisputed
material facts, and applicable law and regulations. I conclude that the exclusions
imposed and directed by
the I.G. are authorized by section 1128(b)(4)(B) of the Social Security Act
and are reasonable. Therefore, I
am deciding this case in favor of the I.G.
ISSUES
The issues in this case are whether:
1. Petitioner surrendered his license to practice medicine and surgery while
a formal disciplinary hearing
was pending which concerned his professional competence, professional performance,
or financial integrity
within the meaning of Section 1128(b)(4)(B) of the Social Security Act;
2. It would be relevant for Petitioner to prove that the Board of Medical Examiners
deprived him of due
process;
3. The exclusions imposed and directed against Petitioner are reasonable;
4. Summary disposition is appropriate in this case.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. Petitioner is a doctor of medicine. I.G. Ex. 1/3.
2. Petitioner held a license to practice medicine and surgery in the State
of Minnesota. I.G. Ex. 1/3.
3. The Board of Medical Examiners is the state agency responsible for the licensure
of, and, if necessary,
the imposition of discipline, against physicians and surgeons in Minnesota.
I.G. Ex. 5/2.
4. In the Fall of 1987, the Board of Medical Examiners received a complaint
against Petitioner, alleging
that he abused alcohol. I.G. Ex. 5/2.
5. In May 1988, pursuant to an order issued by the Board of Medical Examiners,
Petitioner submitted to a
mental and physical examination. I.G. Ex. 1/3.
6. The Board of Medical Examiners Discipline Committee concluded that the examination
established that
Petitioner suffered from serious physical impairments and deteriorating mental
abilities that rendered him
unable to practice medicine and surgery safely and that provided a basis for
disciplinary action by the
Board. I.G. Ex. 5/2.
7. Based on this evidence, the Discipline Committee held a conference with
Petitioner at which it
recommended that Petitioner permanently surrender his license to practice medicine
in Minnesota, in order
to avoid the necessity of further disciplinary proceedings. I.G. Ex. 5/2.
8. On June 15, 1988, as a condition for the Board of Medical Examiners terminating
its investigation,
Petitioner agreed to permanently surrender his license to practice medicine
and surgery in Minnesota. I.G.
Ex. 1/4-5.
9. On June 15, 1988, the Board of Medical Examiners issued a Stipulation and
Order accepting Petitioner's
surrender of his license to practice medicine and surgery in Minnesota. I.G.
Ex. 1/6.
10. Subsequently, Petitioner requested the Board of Medical Examiners to modify
or void its June 15,
1988 Stipulation and Order. I.G. Ex. 2/3.
11. Petitioner's request was denied by the Board of Medical Examiners on February
14, 1989. I.G. Ex.
2/3.
12. Subsequently, Petitioner requested the Board of Medical Examiners to reconsider
its decision not to
modify or void its June 15, 1988 Stipulation and Order. I.G. Ex. 3/3.
13. On May 17, 1989, the Board of Medical Examiners affirmed its February 14,
1989 decision not to void
or modify the June 15, 1988 Stipulation and Order. I.G. Ex. 3/3.
14. On May 17, 1989, the Board of Medical Examiners held that its June 15,
1988 Stipulation and Order
was its final decision in Petitioner's case. I.G. Ex. 3/5.
15. The Secretary of Health and Human Services (the Secretary) delegated to
the I.G. the authority to
determine, impose, and direct exclusions pursuant to section 1128 of the Social
Security Act. 48 Fed. Reg.
21662, May 13, 1983.
16. On March 29, 1989, the I.G. excluded Petitioner from participating in the
Medicare program, and
directed that he be excluded from participating in Medicaid. I.G. Ex. 4/2.
17. Petitioner's exclusions are effective until such time as his license to
practice medicine and surgery in
Minnesota is restored and he is reinstated as a provider. I.G. Ex. 4/3.
18. Petitioner's exclusions are based upon section 1128(b)(4)(B) of the Social Security Act. I.G. Ex. 4/2.
19. Petitioner's assertion that the Board of Medical Examiners deprived him
of due process is not relevant.
See Social Security Act, sections 205(b), 1128(b)(4)(B).
20. There do not exist disputed issues of material fact in this case; therefore,
summary disposition is
appropriate. See Federal Rules of Civil Procedure, Rule 56.
21. Petitioner surrendered his license to practice medicine and surgery while
a formal disciplinary hearing
was pending which concerned his professional competence, professional performance,
or financial integrity
within the meaning of section 1128(b)(4)(B) of the Social Security Act. Findings
3-17.
22. The I.G. had discretion to exclude Petitioner from participation in Medicare
and to direct his exclusion
from participation in Medicaid. Social Security Act, Section 1128(b)(4)(B).
23. The exclusions imposed and directed by the I.G. are reasonable. Social
Security Act, section
1128(b)(4)(B).
ANALYSIS
The I.G. bases his motion for summary disposition on Petitioner's voluntary
surrender of his license to
practice medicine and surgery in Minnesota. According to the I.G., there are
no disputed issues of material
fact in this case. The I.G. asserts that Petitioner surrendered his license
as a condition for terminating a
formal disciplinary proceeding against Petitioner which concerned his professional
competence.
Therefore, according to the I.G., Petitioner's case falls within the provisions
of section 1128(b)(4)(B) of the
Social Security Act, and the I.G. has discretion to exclude Petitioner from
participation in Medicare and to
direct that he be excluded from participation in Medicaid. The I.G. argues that
the indefinite length of the
exclusions is justified by the purpose of the exclusion law, which is in part
to protect program beneficiaries
from individuals or entities who are capable of causing harm.
Petitioner argues that the Board of Medical Examiners' actions in this case
are not justified by the facts. He
contends that elements in the record of the investigation concerning his license
are "clearly false . . . ." P.'s
Memorandum at 3. He also contends that the Board of Examiners' Medical decision
in his case is not final,
evidently because an appeal of the Board's decision is pending or contemplated.
1. Petitioner surrendered his license to practice medicine and surgery while
a formal disciplinary hearing
was pending which concerned his professional competence, professional performance,
or financial integrity
within the meaning of section 1128(b)(4)(B) of the Social Security Act.
I conclude that the Board of Medical Examiners' investigation of Petitioner
constituted a "formal
disciplinary proceeding" pertaining to Petitioner's professional competence
or performance. I conclude
further that Petitioner's surrender of his professional license to the Board
of Medical Examiners
Disciplinary Committee was a surrender of a license while a disciplinary hearing
was pending concerning
Petitioner's professional competence or performance. Therefore the I.G. had
authority to exclude Petitioner
pursuant to section 1128(b)(4)(B) of the Social Security Act.
The undisputed facts of this case are that the Board of Medical Examiners received
a complaint concerning
Petitioner and initiated an investigation, which included ordering that Petitioner
submit to a physical and
mental examination. Based on the results of this examination, the Board of Medical
Examiners
Disciplinary Committee scheduled a conference with Petitioner at which it recommended
that Petitioner
permanently surrender his license to practice medicine and surgery as a condition
for avoiding further
proceedings against him. Petitioner agreed, and this agreement was memorialized
in a written Board order.
Findings 3-9.
Although section 1128(b)(4)(B) does not define the term "formal disciplinary
proceeding," it is reasonable
to conclude from the face of the statute, and from legislative history, that
the law refers to a license
proceeding which places a party's license in jeopardy and which provides that
party with an opportunity to
defend against charges which might result in a license suspension or revocation.
This interpretation is
consistent with the purpose of the law. As is noted above, the law is intended
to protect Medicare
beneficiaries and Medicaid recipients from individuals and entities who are
demonstrated to be
untrustworthy. The law presumes that an individual or entity who surrenders
a health care license in the
face of charges, and in the circumstance where he has the opportunity to defend
himself, is as likely to be
untrustworthy as the individual or entity who loses a license after litigating
the issue of his or her
professional competence, performance, or financial integrity.
The facts of this case establish both that charges had been made against Petitioner
and that he had been
afforded an opportunity to defend himself against those charges. It is apparent
that the confrontational
phase of the Board of Medical Examiners' case against Petitioner was in its
early stages. See I.G. Ex. 5/2.
But it is equally apparent that Petitioner agreed to surrender his license to
practice medicine and surgery at
a point in the process where it was apparent that the ultimate result would
be a formal resolution of his
entitlement to retain his license.
The law does not define the terms "professional competence, professional
performance, or financial
integrity." I conclude that the plain meaning of the terms "professional
competence" and "professional
performance" encompasses those circumstances where license revocation proceedings
concern the question
of whether a party's ability to provide health care in a competent and professional
manner has been
compromised for reasons of health. That is precisely what was at issue in the
Board of Medical Examiners'
proceeding against Petitioner.
I conclude that Petitioner "surrendered" his license within the meaning
of the law. Petitioner asserts that
the decision of the Board of Medical Examiners to accept his surrender of his
license is not "final,"
evidently contending that he plans to continue to petition the Board of Medical
Examiners to reconsider its
final order, to take such appeals from that order as may be available to him,
or to collaterally attack the
order. Petitioner appears to be arguing that there may be some uncertainty as
to the finality of the order,
and that he has not actually "surrendered" his license to practice
medicine.
I disagree with Petitioner's contentions. First, the record of this case does
not show that there are additional
proceedings pending concerning the surrender of Petitioner's license. But even
if additional proceedings
were pending, I conclude that Petitioner's surrender of his license to the Board
of Medical Examiners
constitutes a "surrender" within the meaning of section 1128(b)(4)(B).
The law does not contain qualifying language which would suggest that a license
surrender must be
litigated through all potential appeals and collateral attacks in order to constitute
a surrender upon which
exclusions could be predicated. Indeed, the law provides that a license surrender
which occurs during a
disciplinary proceeding is sufficient to trigger the exclusion provisions--regardless
whether the individual
or entity who surrenders the license subsequently has a change of heart and
appeals or petitions for
reconsideration.
2. Petitioner's assertion that the Board deprived him of due process is not relevant.
Petitioner's central argument is that the proceedings before the Board of Medical
Examiners which led to
his surrendering his license to practice medicine were based on an incomplete
and inaccurate record, and
were thus deficient. Therefore, according to Petitioner, actions taken by the
I.G. to exclude him from
participation in Medicare and State health care programs are unjustified.
Petitioner's assertions concerning the Board of Medical Examiners' proceedings
in his case amount to a
claim that these proceedings are defective because he was denied due process
of law. Petitioner's argument
is the same argument as was offered by the petitioner in Frank Waltz, M.D. v.
The Inspector General,
Docket No. C-86, decided September 1, 1989. I held in the Waltz case that the
petitioner's argument
concerning the fairness of a state licensing board's license revocation proceeding
was irrelevant to the issue
of the I.G.'s authority to impose and direct exclusions based on the state board's
final action. I reaffirm that
holding here.
My authority to hear and decide exclusion cases is limited to deciding whether
the decisions made by the
Secretary comport with statutory and regulatory standards. If Petitioner's assertions
are not relevant to the
Secretary's exclusion decision, then they are beyond the bounds of the issues
which I may consider in a
hearing concerning that decision.
There are several issues which a petitioner may potentially argue in a hearing
brought to challenge
exclusions imposed pursuant to section 1128(b)(4)(B). A petitioner may argue
that: a formal disciplinary
proceeding was not pending against him; the proceeding was not before a State
licensing authority; the
proceeding did not concern his professional competence, professional performance,
or financial integrity;
he did not actually surrender his license to provide health care; or that the
term of the exclusions imposed
and directed against him is unreasonable.
However, as I held in Waltz, a hearing on exclusions imposed and directed pursuant
to section 1128(b)(4)
may not be used by a petitioner to mount a collateral attack on a state board's
action. The I.G.'s authority to
impose and direct exclusions pursuant to section 1128(b)(4)(B) emanates from
the actions taken by state
licensing boards. The law instructs the Secretary to rely on these boards' actions.
The law does not intend
that the Secretary examine the fairness or propriety of the process which led
to the boards' actions.
Consequently, the section of the exclusion law pursuant to which Petitioner
was excluded does not provide
him with a legitimate basis in this hearing to argue that the Board of Medical
Examiners deprived him of
due process.
Furthermore, the sections of the law which provide for administrative hearings
in exclusion cases do not
authorize collateral challenges of state board decisions on due process grounds.
Congress directed the
Secretary to provide excluded parties with the opportunity to have hearings
as to their exclusions. Social
Security Act, section 1128(f). The law provides that an excluded party be given
reasonable notice and
opportunity for a hearing by the Secretary to the same extent as is provided
by section 205(b) of the Social
Security Act.
Section 205(b) states that:
Upon request by any . . . individual who makes a showing in writing that his
or her
rights may beprejudiced by any decision the Secretary has rendered . . . [the
Secretary] shall give such. . .
[individual] reasonable notice and opportunity for a hearing with respect to
such decision, and if a hearing
is held, shall on the basis of evidence adduced at the hearing, affirm, modify,
or reverse his findings of fact
and such decision.
(Emphasis added).
As I held in Waltz, this section does not provide a petitioner with the right
in an administrative hearing to
argue issues which are not relevant to the Secretary's (or pursuant to delegation,
the I.G.'s) exclusion
decision. In this case, the "decision" which is challenged is the
I.G.'s determination to exclude Petitioner
based on the Board of Medical Examiners' acceptance of Petitioner's surrender
of his license to practice
medicine and surgery. The fairness of the Board of Medical Examiners' action
is not relevant to the I.G.'s
exclusion decision and is not a basis on which I may decide the reasonableness
of the exclusions.
3. Summary disposition is appropriate in this case.
Summary disposition is appropriate in an exclusion case where there are no
disputed issues of material fact
and where the undisputed facts demonstrate that one party is entitled to judgment
as a matter of law.
Howard B. Reife, D.P.M. v. The Inspector General, Docket No. C-64, decided April
28, 1989; Michael I.
Sabbagh, M.D. v. The Inspector General, Docket No. C-59, decided February 22,
1989; Jack W. Greene v.
The Inspector General, Docket No. C-56, decided January 31, 1989, appeal docketed,
DAB No. 89-59,
Decision No. 1078 (1989); See F.R.C.P. 56.
As is noted supra, there are potential questions of fact which may arise in
an exclusion hearing brought to
challenge exclusions imposed and directed pursuant to section 1128(b)(4)(B)
of the Social Security Act. I
have carefully considered the arguments of the parties with respect to each
of these possible issues, and I
conclude that there exist no disputed issues of material fact with respect to
any of them.
The first potential question of fact in this case is whether a formal disciplinary
hearing was brought against
Petitioner. The I.G. has offered the Orders of the Board of Medical Examiners
and the affidavit of the
Chairman of its Disciplinary Committee which establish that, based on a complaint
filed against Petitioner,
and the results of physical and mental examinations, a disciplinary hearing
had been implemented.
Findings 4-9; I.G. Ex. 5. Petitioner has not challenged the veracity of any
of this evidence. He asserts,
however, that the proceedings of the Board of Medical Examiners were not "formal
disciplinary
proceedings" within the meaning of section 1128(b)(4)(B). P.'s Memorandum
at 8. The issue asserted by
Petitioner is not a question of fact, but is a legal question of how to characterize
the Board proceedings
which involved Petitioner. I concluded that the proceeding before the Board
of Medical Examiners
concerning Petitioner was a "formal disciplinary proceeding." See,
Part I of this Analysis, supra.
The second potential question of fact is whether the proceeding was before
a State licensing authority. The
unrebutted evidence in this case is that the Board of Medical Examiners is a
State licensing authority.
Finding 3. Petitioner argues that he did not actually appear before the Board
of Medical Examiners, but
before its Disciplinary Committee. P.'s Memorandum at 7. However, it is not
disputed that the
Disciplinary Committee is a component of the Board of Medical Examiners with
delegated authority to
hear and decide questions of potential license suspension or revocation.
The third potential question of fact is whether the proceeding concerned Petitioner's
professional
competence, professional performance, or financial integrity. The evidence offered
by the I.G. as to this
issue establishes that the disciplinary proceeding against Petitioner was grounded
on complaints that he
abused alcohol, and findings from physical and mental examinations which showed
that Petitioner
experienced diminished physical and mental capacity. Findings 4-6. Although
Petitioner asserts that the
facts upon which the Board of Medical Examiners based its actions are "false,"
he does not dispute that the
proceeding against him concerned his professional competence or performance.
The fourth potential question of fact in this case is whether Petitioner actually
surrendered his license to
provide health care. Petitioner seems to argue that, in fact, he did not surrender
his license, asserting that
"final disposition" of his case has not been made. P.'s Memorandum
at 9. However, the evidence offered
by the I.G. establishes that Petitioner surrendered his license to practice
medicine and surgery to the Board
of Medical Examiners. Findings 8-9. The Board of Medical Examiners issued its
final order in Petitioner's
case. Finding 14. And, although Petitioner disputes the characterization of
these acts pursuant to section
1128(b)(4)(B), he does not offer meaningful challenge to the evidence offered
by the I.G. Petitioner's
argument therefore relates to the legal issue of how to characterize his license
surrender pursuant to the
exclusion law, and not to the facts. As I have held supra at Part I of this
analysis, Petitioner "surrendered"
his license, as defined by law.
The final potential question of fact is the reasonableness of the exclusions
the I.G. imposed and directed
against Petitioner. The I.G. imposed and directed exclusions which will remain
in effect until Petitioner's
license to practice medicine and surgery in Minnesota is restored and he is
reinstated by the I.G.
The I.G. asserts that its exclusion determination in this case is consistent
with Congress' intent that
individuals or entities who lose their licenses to provide health care in any
State for reasons pertaining to
their professional competence or performance, or their financial integrity,
be excluded in all states from
participating in Medicare or in Medicaid until such time as they reacquire their
licenses and demonstrate
their trustworthiness as providers of services. I.G.'s Memorandum at 16. The
I.G. therefore asserts that, as
a matter of law, the only reasonable exclusion determination that can be made
in a case of this type is to
impose and direct exclusions which will remain in effect until the restoration
of a petitioner's license. If
this analysis is accepted, then the only factual issues that may be litigated
in a hearing to challenge
exclusions imposed pursuant to section 1128(b)(4)(B) are those discussed supra,
which relate to the issue
of whether there exists a basis in law to impose exclusions.
I agree with the I.G.'s argument in this case as it pertains to exclusions
of Petitioner from participating in
Medicare or Medicaid programs which encompass the activities which had been
licensed under state law.
In this instance, it is apparent, from both the face of the statute and from
legislative history, that Congress
concluded that individuals and entities who lost their licenses to provide health
care in a State were not to
be trusted to provide previously licensed care to Medicare beneficiaries or
Medicaid recipients:
The provisions of . . . [the law] would permit the Secretary to exclude .
. . persons [whose
licenses had been revoked] in all States and to require the State to exclude
them from participation in any
State health care program.
This provision would also permit the exclusion of individuals or entities who
surrender their licenses while
disciplinary proceedings involving professionalcompetence, professional conduct,
or financial integrity are
pending. This provision will prevent unfit practitioners from avoiding exclusion
through the expedient of
surrendering their license before the State can conclude proceedings against
them.
S. REP. No. 109, 100th Cong., 1st Sess. 7, reprinted in 1987 U.S. CODE CONG. & ADMIN. NEWS 688.
Given this legislative directive, it is reasonable to conclude that Congress
intended that individuals and
entities excluded pursuant to section (b)(4) be excluded with respect to their
licensed activities until such
time as they regain their licenses and demonstrate their fitness for reinstatement.
Thus, the exclusions
imposed and directed in this case are reasonable, given the nature and terms
of Petitioner's license
revocation.
CONCLUSION
Based on the undisputed material facts and the law, I conclude that the I.G.'s
determination to exclude
Petitioner from participation in the Medicare program, and to direct that Petitioner
be excluded from
participating in Medicaid, was justified pursuant to section 1128(b)(4)(B) of
the Social Security Act. I
conclude further that the exclusions imposed and directed by the I.G. are reasonable
insofar as the
exclusions apply to Petitioner's rendering care as a physician. Therefore, I
am entering a decision in favor
of the I.G. in this case.
_________________________
Steven T. Kessel
Administrative Law Judge