DEPARTMENT OF HEALTH AND HUMAN SERVICES
Departmental Appeals Board
Civil Remedies Division
In the Case of:
Walter J. Mikolinski, Jr.,
Petitioner,
- v. -
The Inspector General.
DATE: November 2, 1989
Docket No. C-83
DECISION NOT TO REVISE REOPENED DECISION
The Inspector General (the I.G.) petitioned to reopen and revise my decision
in this case. I reopened my
decision to consider the issues raised by the I.G. in his petition. Both parties
have submitted briefs. Based
on the arguments of the parties and on the applicable law, I conclude that the
I.G. has offered neither
argument nor new and relevant evidence which justifies revising my decision
in this case. Therefore, I
decline to revise my decision.
BACKGROUND
On December 9, 1988, the I.G. notified Petitioner that he was being excluded
from participating in
Medicare and State health care programs. The exclusion was based on the suspension
by the State of
Massachusetts of Petitioner's license to practice pharmacy. Petitioner was advised
by the I.G. that he
would be excluded until he regained his pharmacy license. Petitioner requested
a hearing. The parties
agreed that the case could be decided based on a stipulated record and on motions
for summary disposition.
The parties filed stipulations and briefs supporting their positions, and I
conducted oral argument. On
August 8, 1989, I issued a decision in this case.
I held that the I.G. had authority to impose and direct an exclusion against
Petitioner, pursuant to section
1128(b)(4)(A) of the Social Security Act. This conclusion was based on my finding
that Petitioner's
pharmacy license had been suspended by the Massachusetts Board of Registration
in Pharmacy (Pharmacy
Board) for reasons bearing on Petitioner's professional competence, professional
performance, or financial
integrity.
I found that the length of the exclusion imposed and directed against Petitioner
by the I.G. was reasonable
insofar as it applied to Petitioner's participation as a pharmacist in Medicare
and Medicaid. However, I
concluded that the length of the exclusion was not reasonable insofar as it
applied to Petitioner's
participation in Medicare and Medicaid as a nursing home operator, administrator,
or employee.
This conclusion was premised on my finding that the exclusion imposed and directed
by the I.G.
conditioned Petitioner's eligibility for reinstatement as a participant in Medicare
and Medicaid on his
regaining his pharmacy license in Massachusetts. The terms of Petitioner's license
suspension conditioned
restoration of the license on Petitioner completing certain continuing education
courses and on his taking
and passing a pharmacy law examination with a grade of no less than 75 percent.
I concluded that these
conditions effectively made Petitioner's exclusion indefinite in duration. While
the conditions were
reasonably related to Petitioner's trustworthiness to render services as a pharmacist,
they bore no rational
relationship to Petitioner's trustworthiness to participate in Medicare and
Medicaid as a nursing home
operator, administrator or employee.
Therefore, I sustained the exclusion insofar as it applied to Petitioner's
participation in Medicare and
Medicaid as a pharmacist. I modified the exclusion insofar as it applied to
Petitioner's participation in
Medicare and Medicaid as a nursing home operator, administrator, or employee
to exclude Petitioner from
participating in that capacity for a two year period.
ANALYSIS
The I.G. now asserts that my decision is incorrect in two respects and urges
that I revise my decision
accordingly. First, the I.G. argues that, by law, exclusions imposed and directed
pursuant to section 1128
of the Social Security Act apply to any item or service rendered by an excluded
party for which that party
seeks reimbursement. Therefore, according to the I.G., any exclusion imposed
and directed against
Petitioner must apply equally to his participation as a nursing home operator,
administrator, or employee as
it does to his participation as a pharmacist. Second, the I.G. asserts that
my finding that the length of the
exclusion originally imposed against Petitioner is unreasonable, insofar as
it applies to his participation as a
nursing home operator, administrator or employee, is not supported by substantial
evidence, and is,
therefore, incorrect.
The I.G. premises his first argument on the language of section 1862(e)(1)
of the Social Security Act. That
section provides in relevant part that:
No payment may be made under this title with respect to any item or service
(other than an emergency
item or service) furnished --
(A) by an individual or entity during the period when such individual or entity
is
excluded pursuant tosection 1128, 1128A, 1156, or 1842(j)(2) fromparticipation
in the program under this
title; . . . .
The I.G. argues that when an individual or entity is excluded pursuant to section
1128 of the Social
Security Act, section 1862(e)(1) operates to require that that individual or
entity be barred from
reimbursement for any item or service that he may provide to a Medicare recipient
or Medicaid
beneficiary. Thus, according to the I.G., exclusion of Petitioner based on suspension
of his pharmacy
license would, by law, require that he not be reimbursed for items or services
rendered as a nursing home
operator, administrator, or employee. The I.G. asserts that section 1862(e)(1)
prohibits the Secretary from
tailoring exclusions to apply to reimbursement for specific items or services.
I disagree with the I.G.'s "all or nothing" reading of section 1862(e)(1).
The plain language of section
1862(e)(1) is that it bars reimbursement for items or services where reimbursement
has been excluded
pursuant to section 1128. Thus, the law does nothing more than direct the Secretary
to adhere to the terms
of exclusions imposed pursuant to section 1128.
A broader reading of section 1862(e)(1) would be inconsistent with the language
and intent of section
1128. The exclusion law is remedial and is intended to protect the integrity
of federally funded health care
programs from parties who have demonstrated by their actions that they cannot
be trusted to deal with
program funds or to treat recipients and beneficiaries of those funds. Exclusions
imposed and directed
pursuant to section 1128 must be tailored to accomplish this remedial objective,
in order to avoid having a
punitive effect which would be inconsistent with legislative intent. If section
1862(e)(1) were read as
categorically as is urged by the I.G., it would necessarily result in exclusions
that are not rationally related
to the remedial objectives of section 1128.
The I.G. premises his second argument on the contention that the record does
not substantiate my
conclusion that an indefinite exclusion is unreasonable insofar as it applies
to Petitioner's participation in
Medicare and Medicaid as a nursing home operator, administrator, or employee.
The I.G. concedes that
there exists at least a "theoretical or hypothetical possibility that [Petitioner]
may, for an indefinitely
prolonged period of time, (or may never) be able to satisfy" the conditions
for reinstatement of his
pharmacy license. Therefore, the I.G. admits that it is at least possible that
Petitioner may never qualify for
reinstatement as a nursing home operator, administrator, or employee under the
terms of the the exclusion
the I.G. originally imposed and directed. However, the I.G. contends that the
record does not substantiate
my conclusion that the exclusion imposed and directed against Petitioner was
unreasonable as it applied to
his participation as a nursing home operator, administrator, or employee, in
the absence of evidence
showing a likelihood that this possibility may eventuate.
My conclusion that the exclusion originally imposed and directed against Petitioner
by the I.G. was
unreasonable as it applied to Petitioner's participation as a nursing home operator,
administrator, or
employee, was based on my finding that the conditions for reinstatement of Petitioner's
pharmacy license
bore no rational relationship to his trustworthiness to provide nursing home
items or services. The
likelihood that Petitioner might satisfy these conditions did not enter into
my analysis. Evidence as to that
likelihood is not relevant.
Therefore, the I.G.'s argument misses the point of my decision. An exclusion
which is premised on
conditions which are not rationally related to the remedial purpose of the exclusion
law is not a reasonable
exclusion, irrespective of the likelihood that these conditions will be satisfied.
CONCLUSION
Having considered the arguments offered by the parties, I conclude that there
exists no basis to revise the
decision entered by me in this case on August 8, 1989.
_______________________
Steven T. Kessel
Administrative Law Judge