DEPARTMENT OF HEALTH AND HUMAN SERVICES
Departmental Appeals Board
Civil Remedies Division
In the Case of: Andy E. Bailey, C.T., Petitioner,
- v. -
The Inspector General.
DATE: October 6, 1989
Docket No. C-110
DECISION OF ADMINISTRATIVE LAW JUDGE
ON MOTION FOR SUMMARY DISPOSITION
On March 2, 1989, the Inspector General (the I.G.) notified Petitioner that
he was being excluded from
participation in Medicare and State health care programs. The I.G. told Petitioner
that his exclusion was
due to the revocation by Georgia's Composite State Board of Medical Examiners
(the Board of Examiners)
of Petitioner's license to practice as a cardiac technician in the State of
Georgia. Petitioner was advised that
he would have the right to apply for reinstatement to the Medicare and Medicaid
programs when he
obtained a valid license to practice as a cardiac technician in Georgia.
Petitioner timely requested a hearing, and the case was assigned to me for
a hearing and decision.
Petitioner moved that I appoint counsel to represent him in this case. I conducted
a prehearing conference
by telephone on May 10, 1989, at which I ruled that I was without authority
to appoint counsel to represent
Petitioner. I suggested to Petitioner that he seek representation from whatever
agency could provide free
legal assistance to indigent persons. Petitioner has not obtained counsel and
has appeared pro se in this
case.
During the May 10, 1989 prehearing conference, the I.G. stated that he intended
to move for summary
disposition. I issued a Prehearing Order on May 12, 1989, which, among other
things, established a
schedule for the I.G. to move for summary disposition and for the Petitioner
to respond to the motion. The
I.G. filed a motion for summary disposition pursuant to this Order, and Petitioner
filed a timely response to
the motion.
Petitioner requested oral argument of the motion, and I held oral argument
in Grovetown, Georgia, on
September 18, 1989.
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)(A) 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. The Board of Examiners revoked Petitioner's license to practice as a cardiac
technician for
reasons bearing on Petitioner's professional competence or performance;
2. It would be relevant for Petitioner to prove that he was deprived of due
process in a state
criminal proceeding or in his license revocation hearing;
3. The exclusions imposed and directed against Petitioner are reasonable.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. Petitioner was licensed as a cardiac technician in the State of Georgia. I.G. Ex. 3/2.
2. On October 6, 1986, the Board of Examiners held a hearing concerning whether
Petitioner's
license should be revoked. I.G. Ex. 3/1.
3. On September 4, 1987, a Hearing Officer for the Board of Examiners issued
a recommended
decision in Petitioner's case. I.G. Ex. 3.
4. The Hearing Officer found that Petitioner had been convicted of a felony,
in violation of State
rules and regulations governing licensure of medical technicians. I.G. Ex. 3/3.
5. The Hearing Officer found that Petitioner had failed to comply with recertification
requirements for licensing as required by State regulations. I.G. Ex. 3/3.
6. The Hearing Officer concluded that Petitioner's felony conviction and failure
to comply with
recertification requirements constituted a factual and legal basis to revoke
Petitioner's license to practice as
a cardiac technician. I.G. Ex. 3/3.
7. On July 11, 1988, the Board of Examiners issued its final decision in Petitioner's
case. I.G. Ex.
2.
8. The Board of Examiners adopted the findings of fact, the conclusions of
law, and the
recommended decision of the Hearing Officer, and revoked Petitioner's license
to practice as a cardiac
technician. I.G. Ex. 2/1.
9. The Board of Examiners revoked Petitioner's license to practice as a cardiac
technician for
reasons bearing on Petitioner's professional competence or performance. Findings
4-8.
10. 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.
11. On March 2, 1989, the I.G. excluded Petitioner from participating in the
Medicare program
and directed that he be excluded from participating in Medicaid, pursuant to
section 1128(b)(4)(A) of the
Social Security Act. I.G. Ex. 1.
12. Petitioner's exclusion is effective until such time as his license to
practice as a cardiac
technician in Georgia is restored and his participation status is reinstated.
I.G. Ex. 1/2.
13. The I.G. had discretion to exclude Petitioner from participation in Medicare
and to direct his
exclusion from participation in Medicaid. Finding 9; Social Security Act, section
1128(b)(4)(A).
14. Petitioner's assertions that he was deprived of due process at his State
criminal trial and by the
Board of Examiners are not relevant. See Social Security Act, section 1128(b)(4)(A).
15. The exclusion imposed and directed against Petitioner is reasonable. Social
Security Act,
section 1128(b)(4)(A).
ANALYSIS
The Board of Examiners revoked Petitioner's license to practice as a cardiac
technician in Georgia based on
a Hearing Officer's findings that Petitioner had been convicted of a felony
and had failed to comply with
State recertification requirements. Findings 4-8. Subsequently, the I.G. imposed
and directed an exclusion
against Petitioner pursuant to section 1128(b)(4)(A) of the Social Security
Act. This section permits such
an exclusion of any individual or entity:
(W)hose license to provide health care has been revoked or suspended by any
State licensing authority,
or who otherwise lost such a license, for reasons bearing on the individual's
or entity's professional
competence, professional performance, or financial integrity; . . .
The exclusion imposed and directed by the I.G. is indefinite in duration. Petitioner
may request
reinstatement as a provider in Medicare and Medicaid when his license is restored.
Petitioner does not deny that his license to practice as a cardiac technician
was revoked. He does not
dispute that the rationale expressed by the Board of Examiners for revoking
his license pertained to his
professional competence or performance. He does not dispute that, assuming it
was reasonable for the I.G.
to exclude him, the indefinite nature of the exclusions is unreasonable.
Petitioner contends that he was denied due process at both his State criminal
trial and at the license
revocation proceeding. He asserts that he should be permitted to offer evidence
in this case to prove that
he was denied due process. P.'s Brief at 1. He argues that if the proceedings
which resulted in his license
revocation were unfair, then the I.G.'s determination to impose and direct an
exclusion against him is
unreasonable.
The I.G. argues that the authority contained in section 1128(b)(4)(A) for the
Secretary (or his delegate, the
I.G.) to impose and direct exclusions derives from the actions taken by state
licensing boards, not the
underlying facts on which state boards' decisions may be based. The I.G. contends
that the validity of
Petitioner's license revocation is not at issue in this case. I.G.'s Brief at
3. Therefore, according to the I.G.,
evidence as to the fairness of state proceedings is not relevant in this case.
1. The Board of Examiners revoked Petitioner's license to practice as a cardiac
technician for
reasons bearing on Petitioner's professional competence or performance.
The I.G. contends that either of the reasons given by the Board of Examiners
for revoking Petitioner's
license to practice as a cardiac technician establish that the license revocation
was for reasons bearing on
Petitioner's professional competence or performance. As is noted above, Petitioner
has not disputed that
the reasons given by the Board of Examiners for revoking Petitioner's license
pertain to his professional
competence or performance.
I conclude that Petitioner's failure to comply with recertification requirements
relates to his professional
competence or performance. These requirements, as stated in Georgia law at O.G.C.A.
31-11-58, include
both active practice and continuing education requirements. Failure by a licensed
practitioner to comply
with these requirements certainly could affect his competence to render licensed
services or the quality of
the services he renders. Therefore, the Board of Examiners' license revocation
decision was at least in part
based on reasons bearing on Petitioner's professional competence or performance.
The Hearing Officer who conducted a hearing in Petitioner's license revocation
case for the Board of
Examiners found that Petitioner had been convicted of the offense of felony
murder. I.G. Ex. 3/2. I do not
accept the I.G.'s contention that a conviction for felony murder relates to
an individual's professional
competence to provide health care or his performance as a health care provider,
absent evidence
establishing the circumstances and nature of the offense. In any event, the
fact that Petitioner's license was
revoked because, among other things, he had failed to comply with recertification
requirements satisfies
the requirement in section 1128(b)(4)(A) that license revocation be for reasons
bearing on an individual or
entity's professional competence or performance.
2. Petitioner's assertions that he was deprived of due process at his criminal
trial and by the Board
of Examiners are irrelevant.
Petitioner's principal argument is that he was denied due process at his criminal
trial and by the Board of
Examiners. Petitioner contends that the I.G.'s exclusion determination is invalid
because it is based on
defective proceedings.
Identical arguments to those raised by Petitioner in this case were raised
by the petitioners in two recent
cases, John W. Foderick, M.D. v. The Inspector General, Civil Remedies Docket
No. C-113 (1989), and
Frank Waltz, M.D. v. The Inspector General, Civil Remedies Docket No. C-86 (1989).
In both of these
cases, I held that claims of impropriety in state license revocation proceedings
are not relevant to deciding
whether the I.G. acted properly to impose and direct exclusions pursuant to
section 1128(b)(4)(A). As I
held in Waltz and Foderick, I conclude here also that Petitioner's claims concerning
the fairness of state
criminal proceedings and the Board of Examiners license revocation hearing are
not relevant to the issues
in this case. The I.G.'s authority to impose and direct exclusions pursuant
to section 1128(b)(4)(A)
emanates from the actions taken by state licensing boards. The law does not
intend that the Secretary
examine the fairness of the process which led to the state boards' decisions.
Furthermore, the section of the Social Security Act which entitles parties
to administrative hearings in
certain contested cases does not authorize collateral challenges of state decisions
on due process grounds.
Section 205(b) of the Social Security Act authorizes hearings with respect to
specific decisions by the
Secretary (or by officials with authority delegated by the Secretary). This
section does not provide a
petitioner with the right in an administrative hearing to prevail based on issues
which are not relevant to the
Secretary's decision. In this case, the "decision" which is challenged
is the I.G.'s determination to exclude
Petitioner based on the Board of Examiners' license revocation decision. The
fairness of the state board or
criminal proceeding is not relevant to the I.G.'s exclusion determination, and
thus evidence relating to the
fairness of state proceedings is similarly not relevant.
3. The exclusion imposed and directed against Petitioner is reasonable.
I held in Waltz and Foderick that Congress intended that the Secretary exclude
individuals or entities who
have lost their license for reasons pertaining to their professional competence
or performance, or their
financial integrity, from reimbursement for performing those services for which
they had been licensed,
until such time as their licenses are restored. This interpretation of the law
is consistent with legislative
history and with the statutory purpose of giving the Secretary a remedy to protect
Medicare beneficiaries
and Medicaid recipients from individuals or entities who are found capable of
causing harm to
beneficiaries and recipients.
Petitioner does not dispute that, assuming the I.G. had authority to impose
and direct an exclusion in this
case, the duration of the exclusion imposed and directed against him is reasonable.
The length of the
exclusion imposed and directed in this case coincides with the term of Petitioner's
license revocation--that
is, Petitioner is excluded until his license is restored and he applies for
and receives reinstatement. I
conclude that, given the purpose of the law, the term of the exclusion in this
case is reasonable.
CONCLUSION
Based on the evidence and the law, I conclude that the I.G.'s determination
to exclude Petitioner from
participating in Medicare, and to direct that Petitioner be excluded from participating
in Medicaid, was
justified pursuant to section 1128(b)(4)(A) of the Social Security Act. I conclude
further that it was
reasonable to base the duration of the exclusion on Petitioner's obtainin
a license as a cardiac technician in Georgia. Therefore, I am entering a decision
in favor of the I.G. in this
case.
____________________________
Steven T. Kessel
Administrative Law Judge