DEPARTMENT OF HEALTH AND HUMAN SERVICES
Departmental Appeals Board
Civil Remedies Division
DATE: January 17, 1990
Docket No. C-144
In the Case of:
Vincent Baratta, M.D.,
Petitioner,
- v. -
The Inspector General.
DECISION AND ORDER
Petitioner timely requested a hearing, protesting a determination by the Inspector
General (I.G.) to exclude
him from participation in the Medicare program, and any State health care programs
(such as Medicaid) as
defined in section 1128(h) of the Social Security Act (Act), for five years,
pursuant to section
1128(b)(4)(A) of the Act. I have considered the parties' arguments, their fact
submissions, and applicable
law. I conclude that the exclusion imposed by the I.G. in this case is authorized
by section 1128(b)(4) of
the Act and that it is appropriate for Petitioner to be excluded for a period
of three years.
BACKGROUND
On July 11, 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. advised Petitioner
that he was being
excluded as a result of the revocation of Petitioner's license to practice medicine
in the State of Florida.
The I.G. further advised Petitioner that he was being excluded for a period
of five years. Petitioner timely
requested a hearing, and the case was assigned to me for a hearing and a decision.
A telephone prehearing
conference was held on September 14, 1989. Petitioner waived his right to an
evidentiary hearing and the
parties agreed to file motions for summary disposition and submit the case for
decision on the basis of
documentary evidence.
APPLICABLE STATUTES AND REGULATIONS
I. The Federal Statute.
Section 1128 of the Act is codified at 42 U.S.C. 1320a-7 (West U.S.C.A., 1989
Supp.). Section
1128(b)(4)(A) of the Act permits the I.G. to exclude from Medicare and Medicaid
participation any
individual or entity whose license to provide health care has been revoked or
suspended by any State
licensing authority, or who otherwise lost such license, for reasons bearing
on the individual's or entity's
professional competence, professional performance, or financial integrity.
II. The Federal Regulations.
The governing federal regulations (Regulations) are codified in 42 C.F.R.,
Parts 498, 1001, and 1002
(1988). Part 498 governs the procedural aspects of this exclusion case; Parts
1001 and 1002 govern the
substantive aspects.
ISSUES
The issues in this case are whether:
1. Petitioner's license to provide health care was revoked for reasons bearing
on his professional
competence, professional performance, or financial integrity;
2. Section 1128(b)(4)(A) of the Act permits an exclusion under the circumstances of this case; and
3. The length of Petitioner's exclusion is appropriate
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. A six-count indictment was filed against Petitioner in the United States
District Court for the Eastern
District of New York. This indictment alleged that Petitioner had committed
crimes with respect to a drug
study within the jurisdiction of the Federal Drug Administration (FDA).
I.G. Ex. 1.
2. At the time of the indictment, Petitioner was a medical doctor licensed
in New York and Florida.
I.G. Ex. 1, 4.
3. Counts 2, 3, and 4 of the indictment alleged that Petitioner, along with
others, had devised a scheme and
artifice to defraud and obtain money and property by means of false pretenses
and representations with
respect to a study on a new drug, Captopril, and had falsified patient reports
relevant to this study. I.G. Ex.
1.
4. Count 5 of the indictment alleged that Petitioner had made a false declaration
to a grand jury conducting
an investigation into the same drug study of Captopril.
I.G. Ex. 1.
5. On May 6, 1985, Petitioner pled guilty to count 5 and was convicted on counts
2, 3, and 4, of the
indictment. Petitioner was acquitted on count 1, and count 6 was dismissed.
I.G. Ex. 2.
6. Petitioner was sentenced to three years in prison on each count, fined the
sum of $26,000, and was
required to serve 250 hours of community service. Petitioner's three-year sentences
were suspended and he
was placed on probation for a period of three years on each count. I.G. Ex.
2.
7. As a result of Petitioner's convictions, the Office of Professional Medical
Conduct of the State of New
York filed an application for the revocation of Petitioner's license to practice
medicine. I.G. Ex. 3.
8. The application to revoke was referred to the Regents Review Committee (the
Committee) of the
University of the State of New York. After a hearing on March 11, 1986, the
Committee recommended to
the Board of Regents that Petitioner's license be revoked, but that the revocation
be stayed and Petitioner
be placed on probation for three years. This recommendation was approved by
the Board of Regents, the
state licensing authority in New York.
I.G. Ex. 3.
9. The Committee's recommendation to place Petitioner on probation and allow
him to continue to practice
medicine was based upon the following considerations:
a. the misconduct involved a field study for a pharmaceutical company which
was not
used;
b. there was no harm to any patient [by Petitioner];
c. [Petitioner] had an otherwise unblemished record for approximately 26 years; and
d. it appears that [Petitioner] has learned his lesson and is unlikely to
repeat this or any
similar misconduct.
I.G. Ex. 3.
10. On November 3, 1987, the Florida Department of Professional Regulation
filed an administrative
complaint with the Florida Board of Medicine (Board of Medicine). I.G. Ex. 4.
11. The complaint alleged that:
(1) Petitioner was a physician and was licensed to practice medicine in Florida
and New
York;
(2) On or about May 5, 1985, Petitioner was convicted of the crimes of mail
fraud, use of false
documents and making false declarations to a grand jury;
(3) Petitioner's convictions were directly related to Petitioner's ability to practice medicine; and
(4) On April 1, 1986, Petitioner's license to practice medicine in the State
of New York had been
placed on probation as a result of these convictions.
I.G. Ex. 4.
12. On June 15, 1988, the Board of Medicine issued a final order approving,
adopting, and incorporating
by reference the allegations set forth in the administrative complaint as findings
of fact and conclusions of
law. I.G. Ex. 6.
13. The Board of Medicine's final order revoked Petitioner's license to practice
medicine in the State of
Florida. I.G. Ex. 6.
14. The Florida Board of Medicine revoked Petitioner's license for reasons
bearing on his professional
competence and professional performance within the meaning of section 1128(b)(4)(A)
of the Act.
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 Act.
48 Fed. Reg. 21662, May
13, 1983.
16. On July 11, 1989, the I.G. excluded Petitioner from participating in the
Medicare and Medicaid
programs for a period of five years pursuant to section 1128(b)(4)(A) of the
Act. I.G. Br. 1.
17. The exclusion imposed by the I.G. was authorized by section 1128(b)(4)(A)
of the Act. 42 U.S.C.
1320a-7(b)(4)(A).
18. An exclusion of three years is appropriate in this case.
DISCUSSION
I. The Florida Board of Medicine Revoked Petitioner's License to Practice Medicine
in Florida For
Reasons Bearing on Petitioner's Professional Competence And Performance.
The undisputed facts in this case establish that Petitioner's license to practice
medicine in Florida was
revoked based on his convictions in New York. Furthermore, Petitioner does not
dispute that his license to
practice medicine was revoked by the state licensing authority in Florida. P.
R. Br. 2-5.
On November 3, 1987, an administrative complaint was filed with the Florida
Board of Medicine alleging
that Petitioner was a physician licensed to practice medicine in Florida and
New York. The complaint
further alleged that Petitioner had been convicted of certain crimes in New
York and that these crimes
directly related to his ability to practice medicine. The final order of the
Board of Medicine incorporated
the allegations of the administrative complaint as findings of fact and conclusions
of law and revoked
Petitioner's license. A specific finding of fact and basis for revocation of
Petitioner's license by the Florida
Board of Medicine was that Petitioner's convictions were directly related to
his ability to practice medicine.
Section 1128(b)(4)(A) of the Act, a federal law, provides that the Secretary
(or his delegate) may exclude
from participation in the Medicare and Medicaid programs:
Any individual or entity whose license to provide health care has been revoked
or
suspended by any State licensing authority,...for reasons bearing on the individual's
or entity's professional
competence, professional performance, or financial integrity.
The Board of Medicine concluded that Petitioner's convictions of the crimes
of mail fraud, use of false
documents, and making false declarations before a grand jury directly related
to his ability to practice
medicine, and revoked his license. I conclude that this revocation was "for
reasons bearing on his
professional competence and performance." Accordingly, I conclude that
Petitioner's license to provide
health care in the State of Florida was revoked by a State licensing authority
within the meaning of section
1128(b)(4)(A).
II. The I.G. is Authorized to Exclude Petitioner by Reason of section 1128(b)(4)(A) of the Act.
Petitioner asserts that the circumstances surrounding the revocation of his
Florida license were not those
contemplated by Congress when it enacted section 1128(b)(4)(A). He also asserts
that an exclusion in this
case is contrary to the purpose and policy of the federal statute and is therefore
not a reasonable exercise of
the I.G.'s discretion under this statute. Petitioner requests that I find that
the action of the I.G. was an
unreasonable and improper application of section 1128(b)(4)(A).
In contrast, the I.G. argues that Petitioner's license was revoked in the State
of Florida for reasons bearing
on his professional performance and professional competence within the meaning
of section 1128(b)(4)(A)
and that an exclusion under those circumstances is authorized by section 1128
of the Act.
Petitioner has attempted to distinguish the circumstances surrounding the revocation
of his license in
Florida from those recited in the legislative history of section 1128 of the
Act and argues that because the
State in which the convictions occurred and in which he now practices (New York)
did not revoke his
license, section 1128(b)(4)(A) should not be applied to this case.
While Petitioner's arguments may be relevant as mitigating circumstances in
considering the appropriate
length of an exclusion, I conclude that these distinctions are not significant
for purposes of determining
whether an exclusion is authorized in this case. Section 1128(b)(4)(A) of the
Act allows the Secretary (or
his delegate, the I.G.) to exclude from participation in Medicare, and to direct
the exclusion from
participation in Medicaid, of any individual or entity whose license to provide
health care has been revoked
or suspended by any State licensing authority, for reasons bearing on the individual's
or entity's
professional competence, professional performance, or financial integrity.
The language of subsection 1128(b)(4)(A) is without qualifying terms or conditions.
Furthermore, as
demonstrated by the legislative history, Congress intended to protect Medicare
and Medicaid patients from
physicians whose license had been revoked by any state licensing authority.
It is not necessary that the
exact circumstances of Petitioner's case be recited in the legislative history.
The language of the statute is
clear and needs no legislative history to clarify its application to this case.
The State of Florida revoked
Petitioner's license for reasons bearing on his professional competence and
performance. Whether another
state in which Petitioner is licensed to practice medicine also revokes his
license and places him on
probation after a review of the same circumstances is irrelevant to the interpretation
or application of
section 1128(b)(4)(A).
While I do have the authority to decide whether the I.G. is authorized by law
to exclude an individual or
entity under section 1128 of the Act, based on the facts of a particular case,
and have done so in this case, I
do not have the authority to decide whether the I.G. should or should not exercise
that legal power when
his discretion is involved. The lawful exercise of the I.G.'s discretion is
a matter of policy for the I.G.
III. An Exclusion of Three Years is Appropriate in This Case.
The I.G. excluded Petitioner from participating in the Medicare and Medicaid
programs for five years.
Since I have decided that the I.G. had discretion to impose an exclusion in
this case, I must now decide the
appropriate length of exclusion.
The Regulations provide that certain criteria be considered in determining
the length of exclusion in this
case. 42 C.F.R. 1001.125. Petitioner asserts that an application of these criteria
to his case leads to the
conclusion that an exclusion of five years is unreasonable. He argues that he
has already been excluded for
a reasonable period of time, and that it is appropriate that no further exclusion
should be imposed. In
support of his arguments, Petitioner cites as mitigating circumstances the findings
of the New York Board
of Regents that there was no adverse impact on patients and that he has had
an otherwise unblemished
record for approximately 26 years. Petitioner argues that his exclusion should
be lessened because: (1) he
has no prior Medicare or Medicaid sanctions; (2) there were no program violations,
and as a result, no
related offenses; and (3) Medicare, Medicaid, and the social services programs
were not damaged.
The I.G. argues that the purpose of an exclusion under section 1128(b)(4)(A)
is to protect program
recipients and beneficiaries, and that Congressional intent with respect to
the length of exclusions can be
determined by a review of section 1128(a). He asserts that, since Petitioner
was convicted of crimes with
respect to his practice of medicine, a five-year period of exclusion mandated
under section 1128(a)(1) is
reasonable.
In order to decide the appropriate length of an exclusion, I must make a de
novo determination by making
an independent assessment of the seven factors listed in section 1001.125 of
the Regulations and consider
all of the purposes designated by Congress for the enactment of section 1128
of the Act. Charles J. Burks,
M.D. v. The Inspector General, Docket No. C-111 (1989). See also, Steven L.
Bickel v. Office of the
Inspector General, DHHS OHA/Appeals Council, No. 000-00-0010 (Oct. 28, 1988).
The main purposes of
an exclusion are to allow for a period of time in which to ensure that Petitioner
is trustworthy and that
persons helped by these programs are protected. I must consider not only the
harm actually caused, but the
public harm that could be caused, and the deterrent effect which an exclusion
might have on other
providers of services. I must look at all relevant factors, such as the crimes
for which Petitioner was
convicted, and which formed the basis of the revocation of his license to practice
medicine in Florida, in
determining Petitioner's trustworthiness and ensuring the protection of the
beneficiaries and recipients of
these programs. Burks, supra.
Petitioner was convicted of giving false testimony before a federal grand jury,
a crime which directly
relates to Petitioner's trustworthiness. Furthermore, Petitioner's other crimes
involved serious and
potentially harmful consequences to patients and others. These crimes involved
a scheme to obtain money
by filing false reports and making false representations with respect to the
study of a new drug within the
jurisdiction of the FDA. The harm caused by Petitioner's crimes is not measured
solely by a review of the
patients involved in this drug study. There is the potential harm to the public
at large resulting from these
false reports. The FDA was set up to protect the public and is relied on to
assure the safety of new drugs.
Thus, a potential harm is the undermining of the public's confidence in the
safety of new drugs.
It is reasonable to infer, from the length of the sentences and the amounts
of the fines imposed against
Petitioner, that the crimes for which he was convicted were serious. 42 C.F.R.
1001.125. The absence of
prior offenses by Petitioner is not a mitigating factor. Furthermore, Petitioner's
lack of a sanction record
under Medicare or Medicaid, the fact that there has been no direct damages incurred
by these programs,
and the fact that Petitioner's convictions did not involve program violations,
are not per se mitigating in
nature. Rather, their presence would be aggravating factors that might justify
an increased sanction.
The I.G. has asserted that Petitioner's license to provide health care was
revoked by the State licensing
authority in New York. Petitioner asserts that his license to practice medicine
in New York was not
revoked. He argues that the revocation of his license was stayed and that a
stay of the execution is the same
as if a revocation never occurred. I disagree with Petitioner's reasoning. I
conclude, for purposes of
considering aggravating and mitigating circumstances, that Petitioner was placed
on probation for three
years by the State of New York with respect to his license to practice medicine.
This is not the same as no
action being taken. Thus, Petitioner's argument, that New York's failure to
revoke his license proves that
patients in the State of New York are not at risk, is without merit.
Contrary to the I.G.'s assertion in this case, I do not deem it appropriate
to use section 1128(a)(1) as a guide
in determining a reasonable exclusion under section 1128(b)(4)(A). Section 1128(a)(1)
requires the I.G. to
exclude petitioners under certain circumstances and sets a mandatory minimum
exclusion period of five
years. Petitioner was excluded pursuant to section 1128(b)(4)(A). In contrast
to section 1128(a)(1),
section (b)(4)(A) gives the I.G. discretion in determining the length of exclusion.
Thus, I conclude that
section 1128(a) is not a reasonable basis for imposing a five-year exclusion
in this case.
Trustworthiness is something that is not subject to exact measurement or determination.
Although
subjective, there is evidence of trustworthiness in this case. The fact that
the New York Board of Regents:
(1) stayed execution of the revocation of Petitioner's license for a period
of three years; (2) stated that it felt
Petitioner had learned his lesson; and (3) thought that there would be no further
violations by the
Petitioner, are important considerations in determining the length of exclusion.
I conclude that the I.G. did
not accord these considerations the proper amount of weight in imposing a five-year
exclusion.
Furthermore, I am influenced by the fact that the Board of Regents thought that
three years was an
appropriate period of time in which to determine whether or not Petitioner is
trustworthy, since one of the
central purposes of an exclusion is to insure trustworthiness. Accordingly,
based on all the facts and
circumstances in this case, I conclude that a three-year exclusion is appropriate.
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 and Medicaid programs was authorized
by law. I further
conclude that a three-year exclusion is reasonable and appropriate in this case.
IT IS SO ORDERED.
____________________________
Charles E. Stratton
Administrative Law Judge