DEPARTMENT OF HEALTH AND HUMAN SERVICES
Departmental Appeals Board
Civil Remedies Division
DATE: January 24, 1990
Docket No. C-133
In the Case of:
Chester A. Bennett, M.D.,
Petitioner,
- v. -
The Inspector General.
DECISION AND ORDER
On June 16, 1989, the Inspector General (the I.G.) notified Chester A. Bennett,
M.D. (Petitioner) that he
was being excluded from participation in the Medicare program and any State
health care program,
pursuant to section 1128 of the Social Security Act (Act). The I.G. told Petitioner
that his exclusion was
due to the fact that Petitioner surrendered his license to practice medicine
in the State of Virginia while a
formal disciplinary proceeding was pending before the Virginia State Board of
Medicine (Board of
Medicine). Petitioner was advised by the I.G. that in the event he obtained
a valid license to practice
medicine from the State of Virginia, he would have the right to apply for reinstatement
to the Medicare and
Medicaid programs.
Petitioner timely requested a hearing before an Administrative Law Judge (ALJ),
and the case was assigned
to me for a hearing and decision. I conducted a prehearing conference by telephone
on September 13,
1989. During that prehearing conference, the I.G. stated that he intended to
move for summary disposition
in this case and the parties agreed to submit the case to me for a decision
based upon documentary
evidence. I issued a Prehearing Order on September 15, 1989, which established
a schedule for filing
submissions. The I.G. timely filed a motion for summary disposition and Petitioner
responded and
requested that the I.G.'s exclusion be summarily overruled.
I have considered the arguments contained in the I.G.'s motion for summary
disposition, Petitioner's
response and request, the undisputed material facts, and the applicable law
and Regulations. I conclude
that an exclusion by the I.G. is authorized by section 1128(b)(4)(B) of the
Act and that it is appropriate and
reasonable under the circumstances of this case to exclude Petitioner for an
indefinite period of time.
ISSUES
The issues in this case are whether:
1. Summary disposition is appropriate in this case;
2. Petitioner surrendered his license to practice medicine while a formal disciplinary
proceeding was
pending which concerned his professional competence, professional performance,
or financial integrity
within the meaning of Section 1128(b)(4)(B) of the Act; and
3. The exclusion imposed against Petitioner is appropriate and reasonable.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. Petitioner is a doctor of medicine. I.G. Ex. 1/1.
2. Petitioner held a license to practice medicine in the State of Virginia.
I.G. Ex. 1/1.
3. The Board of Medicine is the State agency responsible for the licensing of,
and, if necessary, the
imposition of discipline, against physicians in Virginia. P. Ex. 1/1.
5. On March 24, 1988, a letter (Notification) was sent to Petitioner notifying
him that an informal
conference would be held on April 27, 1988, by an informal conference committee
composed of three
members of the Virginia Board of Medicine. The Notification advised Petitioner
that the conference was
concerning his ability "to practice medicine with reasonable skill and
safety to patients". I.G. Ex. 4/1.
6. The Notification stated that Petitioner had admitted prescribing a Schedule
II controlled substance
outside a bona fide physician-patient relationship, without accepted therapeutic
purpose, and contrary to
sound medical judgment. I.G. 4/1.
7. By letter dated March 27, 1988, Petitioner informed the Board of Medicine
that he had retired from the
practice of medicine and moved to the State of Ohio. Petitioner also advised
the Board of Medicine that, in
lieu of the informal conference, it was his desire to voluntarily surrender
his license. I.G. 1/2.
8. On May 31, 1988, Petitioner entered into a consent order with the Board
of Medicine, in which he
voluntarily surrendered his license to practice medicine in the State of Virginia.
I.G. Ex. 1/2-3.
9. The May 31, 1988 consent order recites that the purpose for the April 27,
1988 conference was to
receive and act upon evidence that Petitioner may have violated certain laws
relating to the practice of
medicine in Virginia. I.G. Ex. 1/1.
10. The April 27, 1988 conference concerned Petitioner's professional competence
and professional
performance, within the meaning of section 1128(b)(4)(B) of the Act.
11. Petitioner surrendered his license to practice medicine while a formal disciplinary
proceeding was
pending, within the meaning of section 1128(b)(4)(B) of the Act.
12. The Secretary of Health and Human Services (the Secretary) delegated to
the I.G. the authority to
determine, impose, and direct federal exclusions pursuant to section 1128 of
the Act. 48 Fed. Reg. 21662,
May 13, 1983.
13. On June 16, 1989, the I.G. excluded Petitioner from participating in the
Medicare and Medicaid
programs. I.G. Ex. 2/1.
14. Petitioner's exclusion is effective until such time as his license to practice
medicine in Virginia is
restored, he applies to the I.G. for reinstatement to the Medicare and Medicaid
programs, and he is
reinstated as a provider. I.G. Ex. 2/2.
15. Petitioner's exclusion is based upon section 1128(b)(4)(B) of the Act. I.G. Ex. 2/2.
16. There do not exist disputed issues of material fact in this case; therefore,
summary disposition is
appropriate. See Rule 56, Federal Rules of Civil Procedure (F.R.C.P.).
17. The I.G. had discretion to exclude Petitioner from participation in Medicare
and to direct his exclusion
from participation in Medicaid. Section 1128(b)(4)(B) of the Act.
18. The exclusion imposed by the I.G. is appropriate and reasonable under the
circumstances of this case.
Section 1128(b)(4)(B) of the Act.
DISCUSSION
The basis asserted by the I.G. for Petitioner's exclusion is Petitioner's voluntary
surrender of his license to
practice medicine in Virginia. The I.G. asserts that the documentary evidence
proves that Petitioner
surrendered his license while a formal disciplinary proceeding was pending 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 Act, and the I.G. has discretion
to exclude Petitioner from
participation in the Medicare and Medicaid programs. The I.G. states that the
indefinite length of the
exclusion imposed in this case is justified by the purpose of the exclusion
law.
I. 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. Jack
W. Greene v. The Inspector General, appeal docketed DAB No. 89-59, Decision
No. 1078 (1989); See
Rule 56, F.R.C.P.
There are no disputed issues of material fact in this case. Petitioner did
not contest the appropriateness or
reasonableness of the length of exclusion. Rather, he argues that he did not
surrender his license during the
pendency of a "formal disciplinary proceeding" within the meaning
of section 1128(b)(4)(B) of the Act. I
conclude that the documentary evidence submitted by the parties eliminates any
question of material fact.
Thus, this case presents issues of law, not fact, and summary disposition is
an appropriate mechanism to
decide these issues.
II. Petitioner Surrendered His License To Practice Medicine Within The Meaning
Of Section
1128(b)(4)(B) Of The Act.
I conclude that the actions of the informal committee of the Board of Medicine
constituted a "formal
disciplinary proceeding" pertaining to Petitioner's professional competence
or performance within the
meaning of section 1128(b)(4)(B) of the Act. I also conclude that Petitioner's
surrender of his professional
license to the Board of Medicine was a surrender of a license while a formal
disciplinary proceeding 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 Act.
Section 1128(b)(4)(B) provides that the Secretary may impose and direct exclusions
against any individual
or entity who:
surrendered . . . a license . . . [to provide health care] while a formal
disciplinary
proceeding was pending before . . . [any State licensingauthority] and the proceeding
concerned
theindividual's or entity's professional competence,professional performance,
or financial integrity.
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 the 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.
John W. Foderick, M.D.
v. The Inspector General, Docket No. C-113 (1989) appeal docketed, DAB No. 89-205,
Decision No. 1125
(1990). This interpretation is consistent with the purpose of the law to protect
Medicare beneficiaries and
Medicaid recipients from individuals and entities who are untrustworthy.
The undisputed facts of this case are that the Board of Medicine received a
complaint concerning
Petitioner. On March 24, 1988, a letter (Notification) was sent to Petitioner
notifying him that a
conference would be held on April 27, 1988, by a committee composed of three
members of the Board of
Medicine. This Notification advised Petitioner that the conference concerned
his ability "to practice
medicine with reasonable skill and safety to patients". I.G. Ex. 4/1. The
Notification also stated that
Petitioner had:
by his own admission indiscriminately prescribed and administered 3/10 cc
of Morphine,
a Schedule II controlled substance twice a day to an individual since on or
about October 1982 through
October 8, 1987 outside a bona fide physician/patient relationship and without
accepted therapeutic
purpose, contrary to sound medical judgment.
I.G. 4/1.
Thus, I conclude that the April 27, 1988 conference concerned Petitioner's
professional competence and
professional performance.
Petitioner asserts that the April 27, 1988 conference was not a "formal
disciplinary proceeding" within the
meaning of 1128(b)(4)(B) of the Act. He argues that the only power that the
Committee had was to
dismiss the charges that had been brought against him, or to reprimand, censure,
or place him on probation,
and require him to furnish them certain information. Petitioner also argues
that Foderick is not applicable
to his case because the Committee could not have revoked or suspended his license,
but could only have
presented its findings to the Board of Medicine. The Board of Medicine could
then have commenced a
formal hearing to revoke or suspend Petitioner's license. P. Br. pp. 1-2.
If section 1128(b)(4)(B) required that I find that Petitioner had surrendered
his license during the pendency
of a formal hearing, his arguments would have some validity. However, the language
of the statute is
much broader. Although it is not specifically defined, it is reasonable to conclude
that "during a formal
disciplinary proceeding" encompasses more than just a hearing on the matter.
A proceeding "entails a
succession of events taking place," rather than just one event, such as
a hearing. Webster's Third New
International Dictionary, 1976 Unabridged Edition.
The proceeding in Petitioner's case began when the conference was scheduled.
By state statute, the
Committee's responsibilities were to investigate and receive evidence with respect
to a complaint that had
been made. P. Br. 2. At the time the conference was scheduled, Petitioner's
license was "put in jeopardy."
Foderick, supra.
The Committee's findings would have been referred for formal hearing to the
Board of Medicine, which
had the authority to revoke Petitioner's license to practice medicine. P. Br.
2. Thus, the events which
could have led to the revocation of Petitioner's license had been set in motion
when the Committee initiated
the informal conference.
Petitioner has also pointed out that this conference is referred to as an "informal"
conference. That this
conference is referred to as an "informal conference" is not definitive
or meaningful in interpreting section
1128(b)(4)(B). This case is governed by federal law and the interpretation of
a federal statute or regulation
is a question of federal, not state, law. United States v. Allegheny County,
322 U.S. 174, 183 (1944). In
making my determination in this case, I am guided by the intent of Congress
in interpreting section
1128(b)(4)(B) of the Act, and my task is to interpret the words of this section
in light of the purposes that it
was designed to serve.
Congress intended to prevent physicians from circumventing 1128(b)(4)(B) by
surrendering their licenses
before a state could conclude its proceedings. Inherent in this statute is the
premise that there is some truth
in the allegations that have been made, if a physician does not contest them
but surrenders his license
instead. Whether that premise is true in Petitioner's case is irrelevant. The
proper forum in which to
contest the allegations was the Board of Medicine.
The Board of Medicine's Notification advised Petitioner of the charges against
him and set forth procedural
safeguards. He was allowed to have an attorney present and to defend against
these charges. Instead,
Petitioner chose to voluntarily surrender his license at the time he received
the Notification. I conclude that
Petitioner's surrender of his license to the Board of Medicine constitutes a
"surrender of his license" within
the meaning of section 1128(b)(4)(B).
III. An Indefinite Exclusion Is Appropriate and Reasonable In This Case.
The I.G. asserts that his exclusion determination in this case is consistent
with Congress' intent to prevent
practitioners from treating Medicare and Medicaid patients during any period
in which they are no longer
permitted to practice medicine in any state. I.G. Br. 9. The I.G. also asserts
that this is a matter of law and
can be decided by summary disposition. The issue is a question of law in this
case because Petitioner did
not file any submissions on this issue and did not argue that the period of
exclusion was inappropriate or
that the I.G. acted unreasonably in imposing it.
The purpose of an exclusion is to protect those persons that are helped by
these programs and to ensure that
a provider is trustworthy. Whether an exclusion is reasonable is a fact issue
to be determined after a review
of the circumstances of a case. Since Petitioner did not contest the period
of exclusion imposed by the I.G.
in this case, I conclude that the exclusion imposed by the I.G. is reasonable
under the circumstances of this
case
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 section
1128(b)(4)(B) of the Act. I conclude further that the length of the exclusion
is appropriate and that the I.G.
acted reasonably in imposing it.
IT IS SO ORDERED.
_________________________
Charles E. Stratton
Administrative Law Judge