Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
In the Case of:
Narayan Kulkarni, M.D.,
Petitioner,
- v. -
The Inspector General.
DATE: February 10, 1997
Docket No. C-96-231
Decision No.CR458
DECISION
I sustain the determination of the Inspector General (I.G.)
to exclude Petitioner, Narayan Kulkarni, M.D. (Petitioner),
from participating in Medicare and State health care
programs, including Medicaid, until Petitioner obtains a
valid license to practice medicine or to provide health care
in the State of Alabama. I base my decision on evidence
which proves that Petitioner surrendered his license to
practice medicine in Alabama during the pendency in that
State of a formal disciplinary proceeding involving
Petitioner's license to practice medicine that concerned
Petitioner's professional competence, professional
performance, and financial integrity. Petitioner has not
offered any evidence which would support a finding that
Petitioner's exclusion should be modified to a term that is
less than coterminous with Petitioner's loss of his license
to practice medicine in Alabama.
I. Background
On February 14, 1996, the I.G. notified Petitioner that he
was being excluded from participating in Medicare and State
health care programs. The I.G. asserted that she was
authorized to exclude Petitioner because Petitioner allegedly
surrendered his license to practice medicine in the State of
Alabama while a formal disciplinary proceeding was pending
before the Alabama Board of Medical Examiners (the Alabama
licensing authority), concerning Petitioner's professional
competence, professional performance, or financial integrity.
The I.G. cited as authority for her action section
1128(b)(4) of the Social Security Act (Act). Additionally,
the I.G. advised Petitioner that his exclusion would remain
in effect until Petitioner obtained a valid license to
practice medicine or to provide health care in the State of
Alabama.
Petitioner requested a hearing. 1/ The case was assigned
to me for a hearing and a decision. The parties agreed that
the case could be decided based on their written submissions,
and that an in-person hearing was not necessary. The parties
each submitted written arguments and proposed exhibits.
Petitioner's argument, dated September 29, 1996, is
testimonial in nature. For that reason, I have designated it
as P. Ex. 5. 2/ The I.G. has not objected to my
considering P. Ex. 5 as evidence.
The I.G. submitted five proposed exhibits (I.G. Exs. 1, 5-8),
which relate to the merits of the case. Petitioner did not
object to my receiving I.G. Exs. 1, 5, 7, and 8 into
evidence.
Petitioner objected to my receiving into evidence I.G. Ex. 6.
It is evident from Petitioner's objection that he disputes
the truth of the contents of the exhibit, which consists of
an investigative report made as a predicate to the Alabama
proceedings concerning Petitioner's license to practice
medicine. Petitioner's response includes P. Ex. 6, which
consists of what may be voluminous excerpts from the
proceeding before the Alabama licensing authority.
The I.G. responded to Petitioner's objection to my receiving
I.G. Ex. 6 into evidence by averring that she offers the
exhibit not for the truth of its contents, but to establish
the nature of the proceeding before the Alabama licensing
authority. I conclude that I.G. Ex. 6 is relevant to
establishing the purpose of the Alabama proceedings
concerning Petitioner's license to practice medicine.
Therefore, I admit into evidence P. Exs. 5 and 6 and I.G.
Exs. 1, and 5-8. I base my decision in this case on the
exhibits, on the applicable law, and on the arguments of the
parties.
II. Issues, findings of fact and conclusions of law
The issues in this case are whether the I.G. was authorized
to exclude Petitioner, and whether the exclusion that the
I.G. imposed is reasonable. I make the following findings of
fact and conclusions of law (Findings) to support my decision
that the I.G. was authorized to exclude Petitioner and that
it is reasonable to exclude Petitioner until he obtains a
valid license to practice medicine or to provide health care
in the State of Alabama. I discuss each of my Findings in
detail at Part III. of this decision.
1. Section 1128(b)(4)(B) of the Act authorizes the
I.G. to exclude an individual who voluntarily surrenders
his license to provide health care in a State during the
pendency of formal disciplinary proceedings by the
State's licensing authority which concern the
individual's professional competence, professional
performance, or financial integrity.
2. Where an exclusion is imposed pursuant to section
1128(b)(4)(B) of the Act, and there exist no aggravating
factors or exceptional circumstances, the exclusion will
remain in effect until the excluded individual regains a
license to provide health care in the State in which
that individual surrendered his or her license to
provide health care.
3. An exclusion may be of a greater duration than the
period where a State license is lost when an exclusion
is imposed pursuant to section 1128(b)(4) of the Act if
there exist aggravating factors, not offset by
mitigating factors, justifying an exclusion of a greater
duration.
4. An exclusion may be of a shorter duration than the
period where a State license is lost if there exist
circumstances that are an exception to the requirement
of a coterminous exclusion and which justify an
exclusion of a shorter duration.
5. Petitioner surrendered his license to practice
medicine in the State of Alabama during the pendency of
an investigation brought by the Alabama licensing
authority into the manner in which Petitioner practiced
medicine.
6. The investigation of Petitioner by the Alabama
licensing authority involved allegations that Petitioner
had conducted his practice of medicine in violation of
statutes which permitted the Alabama licensing authority
to suspend or revoke the license of a physician who:
engages in immoral, unprofessional or dishonorable
conduct; practices medicine in such a manner as to
endanger the health of patients; or, who performs
unnecessary diagnostic tests or medical or surgical
services.
7. Among the allegations which the Alabama licensing
authority had before it at the time that Petitioner
surrendered his license were allegations that
Petitioner: improperly performed or supervised the
performance of laboratory tests; performed unnecessary
medical procedures; and made claims for reimbursement
from the Alabama Medicaid program for items or services
which were unnecessary or which had not been provided by
Petitioner.
8. Petitioner surrendered his license to practice
medicine in Alabama during the pendency of a formal
disciplinary proceeding by the Alabama licensing
authority which concerned Petitioner's professional
competence, professional performance, and financial
integrity.
9. The I.G. was authorized to exclude Petitioner
pursuant to section 1128(b)(4)(B) of the Act.
10. The I.G. neither alleged nor proved the presence
of aggravating factors.
11. Petitioner did not prove the presence of any
exceptions which would justify reducing the exclusion
which the I.G. imposed to one which was less than
coterminous with Petitioner's loss of his license to
practice medicine in Alabama.
12. The exclusion imposed against Petitioner by the
I.G., which precludes Petitioner from applying to the
I.G. for reinstatement until Petitioner obtains a valid
license from the State of Alabama to practice medicine
or to provide health care, is reasonable.
III. Discussion
A. Governing law (Findings 1-4)
The I.G. excluded Petitioner pursuant to section
1128(b)(4)(B) of the Act. 3/ This section authorizes the
Secretary of the United States Department of Health and Human
Services (the Secretary), or her delegate, the I.G., to
exclude an individual who surrenders a State license to
provide health care while a formal disciplinary proceeding
was pending before a State licensing authority and that
proceeding concerned the individual's professional
competence, professional performance, or financial integrity.
The Secretary has published regulations which establish
criteria for determining the length of any exclusion that is
imposed pursuant to section 1128(b)(4) of the Act. An
exclusion imposed pursuant to section 1128(b)(4) ordinarily
shall be for the same duration as the period during which an
individual's license is lost as a result of a State
disciplinary proceeding. 42 C.F.R. § 1001.501(b)(1). An
exclusion may be for a longer duration than a period that is
coterminous with a loss of a State license to provide health
care, if there exist aggravating factors that are not offset
by any mitigating factors. 42 C.F.R. § 1001.501(b)(2), (3).
An exclusion may be for a shorter duration than a period
that is coterminous with the loss of a State license to
provide health care, if prior to the date of the notice of
exclusion:
. . . the licensing authority of a State (other
than the one in which the individual'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 . . . a license or takes no significant
adverse action as to a currently held license . . .
42 C.F.R. § 1001.501(c)(1). Additionally, the I.G. will
consider a request for early reinstatement if, after the date
of the exclusion, the excluded individual fully and
accurately discloses to the licensing authority of a
different State the circumstances of the exclusion, and the
licensing authority of that State grants the individual a new
license to provide health care or takes no significant
adverse action concerning a license which the excluded
individual holds in that State. 42 C.F.R. § 1001.501(c)(2).
B. The relevant facts concerning Petitioner's loss of
his license to practice medicine in Alabama (Findings 5-
7)
On December 2, 1994, Petitioner executed an agreement in
which he agreed to surrender voluntarily his license to
practice medicine in the State of Alabama. I.G. Ex. 1. In
that agreement, Petitioner acknowledged that he was taking
this action while under investigation by the Alabama
licensing authority for violations of Alabama law. Id. The
agreement specifically referred to violations of three
sections of Alabama law: Ala. Code §§ 34-24-360(2), (3), and
(11)(1975). Id.; I.G. Ex. 5. The sections in question
empower the Alabama licensing authority to suspend or revoke
the license of a physician who: engages in immoral,
unprofessional or dishonorable conduct; practices medicine in
such a manner as to endanger the health of patients; or, who
performs unnecessary diagnostic tests or medical or surgical
services. I.G. Ex. 5 at 1-2.
Petitioner executed the agreement in the face of an
investigative report which had been prepared for the Alabama
licensing authority. I.G. Ex. 6. This report recited
findings made by other investigators, to the effect that
Petitioner had provided laboratory services for Medicaid
recipients that were deficient in numerous respects. Id. at
2. Additionally, it recited findings that Petitioner had
billed the Alabama Medicaid program for numerous tests that
he did not perform. Id. at 3. These included tests that
were not documented in the records of patients seen by
Petitioner, but for which Petitioner submitted invoices to
the Alabama Medicaid program. Id. at 4.
The report additionally reported on interviews that were
conducted with former employees of Petitioner. One former
employee was reported to have stated that she performed tests
on behalf of Petitioner which she was not trained to perform.
I.G. Ex. 6 at 8. This former employee averred that she had
told Petitioner that she was not trained to perform the tests
but that Petitioner had ordered her to perform them anyway.
Id. The report also addressed patient records that the
investigator reviewed independently. The investigator found
instances in which Petitioner had utilized personnel to
perform laboratory tests which they were not trained to
perform. Id. at 11. The investigator additionally found
instances in which Petitioner had used outdated chemicals to
perform tests, had ordered tests for no apparent medical
reasons, had charged for undocumented visits, and had
appeared to perform excessive numbers of medical tests. Id.
at 11-12.
Petitioner admits agreeing to surrender his license. P. Ex.
1 at 1. According to Petitioner, he did so in order to avoid
civil, and possibly, criminal proceedings. Id. Petitioner
asserts that, in agreeing to surrender his license, he did
not consider the possibility that the agreement might lead to
his being excluded. Id. Petitioner asserts that the State
disciplinary proceeding which led to his agreement to
surrender his license was not based on substantial evidence.
Id. at 1-2. I infer from this last assertion by Petitioner
that he does not agree with the findings contained in the
investigative report. Id.; see I.G. Ex. 6.
C. The absence of aggravating factors and of
exceptional circumstances (Findings 10-11)
The I.G. neither alleged, nor did she offer evidence to
establish, the presence of any aggravating factors in this
case. Nor did Petitioner prove the presence of any
exceptional circumstances that might justify reducing the
length of his exclusion to a period of time that is less than
coterminous with his loss of his Alabama license to practice
medicine.
At the first prehearing conference, Petitioner asserted that
he was licensed to practice medicine in States other than
Alabama. I advised Petitioner then that I would afford him
the opportunity to show that facts existed which established
either of the exceptions contained in 42 C.F.R. §
1001.501(c)(1) or (2). However, Petitioner has offered no
evidence concerning his alleged licensure by other States,
nor has he offered evidence concerning whether those States
other than Alabama in which he is allegedly licensed are
aware of, or have considered the circumstances of and acted
on Petitioner's case as is required under 42 C.F.R. §
1001.501(c)(1) or (2).
D. Application of the law to the facts (Findings 8-9,
12)
Petitioner surrendered his license to practice medicine in
Alabama during the pendency of a formal disciplinary
proceeding concerning Petitioner's professional competence,
professional performance, and his financial integrity. Thus,
the I.G. is authorized to exclude Petitioner pursuant to
section 1128(b)(4)(B) of the Act.
The investigation that was conducted by the Alabama licensing
authority into Petitioner's conduct is part of a formal
disciplinary proceeding. The I.G. did not introduce exhibits
which established the precise nature of the proceedings that
were begun against Petitioner by the Alabama licensing
authority. However, it is apparent, both from the
investigative report that was prepared for the Alabama
licensing authority concerning Petitioner, and by
Petitioner's communications with the Alabama licensing
authority, that he was the subject of a formal disciplinary
proceeding. I.G. Ex. 6; P. Ex. 1. Petitioner acknowledges
that he was visited by investigators on behalf of the Alabama
licensing authority, who told Petitioner that he was under
investigation. P. Ex. 1 at 1. Petitioner acknowledges also
that he instructed his attorney to settle the matter. Id.
The license surrender agreement which Petitioner executed and
the sections of Alabama law which that agreement refers to
make it evident that the proceeding against Petitioner
concerned his professional competence, professional
performance, or financial integrity. I.G. Ex. 1; I.G. Ex. 5.
The nature of the disciplinary proceeding is evident also
from the investigative report which predates the agreement.
I.G. Ex. 6.
An exclusion which is coterminous with Petitioner's loss of
his license to practice medicine in Alabama is reasonable.
There exist neither aggravating factors nor exceptional
circumstances which would justify varying the exclusion from
one that is coterminous with Petitioner's loss of his license
to practice medicine in Alabama.
I have considered Petitioner's assertion that the proceeding
against him in Alabama was not grounded on substantial
evidence of wrongdoing by Petitioner. I find this assertion
not to be relevant, concerning the issue of the I.G.'s
authority to exclude Petitioner, and concerning also the
issue of whether the exclusion is reasonable. It is not
relevant to the issue of the I.G.'s authority to exclude
Petitioner, because, the I.G.'s authority to exclude an
individual pursuant to section 1128(b)(4) derives from the
State proceeding against that individual, and the
proceeding's outcome, and not from the evidence on which the
proceeding is based. Petitioner's assertion is not relevant
to the issue of whether the exclusion is reasonable because
it does not address any of the exceptional circumstances
which I might consider as a basis for modifying the
exclusion.
IV. Conclusion
I conclude that the I.G. was authorized to exclude
Petitioner, pursuant to section 1128(b)(4)(B) of the Act. I
conclude also that the exclusion imposed by the I.G., which
permits Petitioner to apply for reinstatement only after he
obtains a valid license to practice medicine or to provide
health care in the State of Alabama, is reasonable.
________________________
Steven T. Kessel
Administrative Law
Judge
* * * Footnotes * * *
1. Petitioner did not request a hearing until April
26, 1996. The I.G. moved to dismiss Petitioner's request on
the ground that it was not made timely. I denied the I.G.'s
motion. I ruled that Petitioner had not received notice of
the I.G.'s exclusion determination until early March 1996,
because Petitioner had been out of the United States until
then.
2. I.G. Exs. 2-4 and P. Exs. 1-4 were submitted by
the parties in connection with the I.G.'s motion to dismiss
Petitioner's request for a hearing on the ground that it was
not made timely. I am rejecting I.G. Exs. 2-4 and P. Exs. 1-
4 in the case in chief because they are not relevant to the
merits. Moreover, the issue of timeliness of Petitioner's
hearing request is now moot inasmuch as I ruled in favor of
Petitioner on that issue.
3. The February 14, 1996 notice letter to Petitioner
from the I.G. does not state explicitly which subsection of
section 1128(b)(4), subsection 1128(b)(4)(A) or subsection
1128(b)(4)(B), the I.G. was relying on as authority for
excluding Petitioner. However, the text of the notice letter
recites that Petitioner was being excluded as a result of
Petitioner having surrendered his license to practice
medicine or provide health care in Alabama while a formal
disciplinary proceeding was pending before that State's
licensing authority. I find that the text of the notice
letter gave Petitioner adequate notice that the I.G. was
excluding Petitioner pursuant to section 1128(b)(4)(B) of the
Act.