CASE | DECISION | ISSUES | FINDINGS OF FACT AND CONCLUSIONS OF LAW | ANALYSIS | CONCLUSION | JUDGE | FOOTNOTES

Department of Health and Human Services

DEPARTMENTAL APPEALS BOARD

Civil Remedies Division


IN THE CASE OF  
Richard Eaton Leach, M.D. Date: 1999 June 10
- v. -  
The Inspector General Docket No. C-98-501
Decision No. CR601
DECISION
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I sustain the determination of the Inspector General (I.G.) to exclude Petitioner, Richard Eaton Leach, M.D., from participating in the Medicare program and other federally funded health care programs, including State Medicaid programs, until Petitioner's license to practice medicine in the State of Louisiana is reinstated.

I. BACKGROUND

On June 30, 1998, the I.G. notified Petitioner that Petitioner was being excluded from participating in Medicare and in other federally funded health care programs. The I.G. advised Petitioner that the exclusion was being imposed pursuant to the requirements of section 1128(b)(4) of the Social Security Act (Act). The I.G. advised Petitioner that he was being excluded because his license to practice medicine or provide health care in the State of Louisiana was revoked, suspended, or otherwise lost or was surrendered while a formal disciplinary hearing was pending before the Louisiana State licensing authority for reasons bearing on Petitioner's professional competence, professional performance, or financial integrity. The I.G. told Petitioner that he would not be eligible to apply for reinstatement to participate in Medicare and other federally funded health care programs until Petitioner obtained reinstatement of his Louisiana license.

Petitioner requested a hearing and the case was assigned to me for a hearing and a decision. I directed the parties to file briefs and supporting exhibits concerning the issues in the case. I advised the parties that I would afford either of them an in-person hearing if I determined, after reviewing their written submissions, that there remained issues which could only be resolved based on the presentation of in-person testimony. Each party submitted a brief.

The I.G. submitted four proposed exhibits with her brief (I.G. Exhibits (Exs.) 1 - 4). During the course of this proceeding, Petitioner has submitted several documents. Petitioner has not characterized these documents as "exhibits." However, many of them consist of or contain statements by Petitioner that are in the nature of testimony. I have elected to designate each of Petitioner's submissions as an exhibit in the interests of due process and of preserving a record of this case. I have designated these exhibits as P. Ex. 1 - 14 .

I receive into evidence I.G. Exs. 1 - 4. Additionally, I receive into evidence P. Exs. 1 - 14.


ISSUES
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The issues in this case are whether:

1. The I.G. is authorized to exclude Petitioner from participating in Medicare and other federally funded health care programs.

2. It is reasonable for the I.G. to exclude Petitioner until his license to practice medicine or health care in the State of Louisiana is reinstated.


FINDINGS OF FACT AND CONCLUSIONS OF LAW
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I make findings of fact and conclusions of law (Findings) to support my decision that the I.G. is authorized to exclude Petitioner until his license to practice medicine or to provide health care in the State of Louisiana is reinstated. I set forth each Finding below as a separate heading. I discuss each Finding in detail.

1. The I.G. is authorized to exclude an individual whose license to provide health care has been revoked or suspended by any State licensing authority for reasons bearing on the individual's professional competence, professional performance, or financial integrity.

The I.G. excluded Petitioner pursuant to the exclusion authority contained in section 1128(b)(4) of the Act. This section provides that the Secretary of the United States Department of Health and Human Services (or her delegate, the I.G.) may exclude an individual whose license to provide health care has been revoked or suspended by a State licensing authority for reasons bearing on the individual's professional competence, professional performance, or financial integrity.

Certain necessary facts must be present in order for the I.G. to have the authority to exclude an individual pursuant to section 1128(b)(4)(A) of the Act. These necessary facts consist of the following: (1) a State licensing authority must take action against an individual's license to provide health care; (2) that action must consist of action to revoke or suspend the individual's license; and (3) the revocation or suspension must be taken for reasons bearing on the individual's professional competence, professional performance, or financial integrity.

The authority to exclude pursuant to section 1128(b)(4)(A) derives from action taken by a State licensing authority. The validity of the State licensing authority's action is not an issue in deciding whether the I.G. has the authority to exclude. The authority to exclude is present so long as the State licensing authority has acted against an individual's license for a statutory reason.

2. Where the I.G. determines to exclude an individual pursuant to section 1128(b)(4) of the Act, the I.G. must exclude the individual for a period of time which at least coincides with the period during which the individual's State health care license is suspended or revoked.

The minimum exclusion period for an exclusion that is imposed pursuant to section 1128(b)(4) of the Act is prescribed by section 1128(c)(3)(E) of the Act. That section provides that the length of an exclusion under section 1128(b)(4) " . . . shall not be less than the period during which the individual's . . . license to provide health care is revoked . . . [or] suspended . . . ."

The provisions of section 1128(c)(3)(E) operate to set a minimum exclusion period for an exclusion that is imposed pursuant to section 1128(b)(4). At a minimum, the I.G. must exclude any individual whom she determines to exclude under section 1128(b)(4) for a period that is coterminous in duration with the period during which that individual's State health care license is revoked or suspended.

3. The I.G. is authorized to exclude Petitioner because Petitioner's license to practice medicine in the State of Louisiana was revoked by that State's licensing authority for reasons bearing on Petitioner's professional competence or professional performance.

The I.G. plainly is authorized to exclude Petitioner under the provisions of section 1128(b)(4)(A). On February 27, 1998, the Louisiana State Board of Medical Examiners (Louisiana licensing authority) suspended indefinitely Petitioner's license to practice medicine in Louisiana. I.G. Ex. 1 at 4. I take notice that the Louisiana State Board of Medical Examiners is the licensing authority in the State of Louisiana which is responsible for the professional licensing of physicians in that State. Petitioner's license to practice medicine in Louisiana was suspended by the Louisiana licensing authority for reasons bearing on Petitioner's professional competence and professional performance.

I base this conclusion on the following material facts. The Louisiana licensing authority received complaints about the way in which Petitioner was discharging his duties as a physician. I.G. Ex. 1 at 1. These complaints included allegations that Petitioner's behavior was erratic, that he was often abusive with his staff, would come to work inappropriately dressed, and was difficult to get along with. Id. at 1 - 2. The Louisiana licensing authority conducted a hearing at which several medical experts testified. Id. at 2 - 3. Based on the testimony of these experts, the Louisiana licensing authority concluded that Petitioner was suffering from a serious psychiatric impairment which rendered him unable to practice medicine with reasonable skill and safety to patients. Id. at 3 - 4.

Petitioner argues that there are material facts in dispute in this case. Petitioner contends that I cannot resolve these allegedly disputed material facts without first conducting an in-person hearing. Petitioner's brief at 4 - 6 (unnumbered). The gravamen of Petitioner's argument, evidently, is that the Louisiana license authority violated Petitioner's due process rights in investigating Petitioner's case and in determining to suspend his license to practice medicine in Louisiana. It may also be that Petitioner disputes the substantive findings that the Louisiana licensing authority made concerning his fitness to practice medicine.

Petitioner apparently wishes to offer evidence to challenge the fairness of the proceeding that was conducted by the Louisiana licensing authority and to prove that the findings that the authority made in his case are without merit.

I have no doubt that Petitioner advocates his arguments sincerely. However, for the reasons that I explain above, at Finding 1, these arguments are not germane. The I.G.'s authority to exclude Petitioner derives entirely from the action taken against Petitioner's license by the Louisiana licensing authority and not from the truth of the allegations and evidence which were the basis for that action. The fairness or validity of the Louisiana licensing authority's decision is simply irrelevant to the issue of whether the I.G. may exclude Petitioner.

4. The length of the exclusion is reasonable.

The term of the exclusion that the I.G. imposed against Petitioner is reasonable as a matter of law. The I.G. excluded Petitioner for a period that is coterminous with the loss of his license to practice medicine or health care in the State of Louisiana. As I discuss above, at Finding 2, the Act mandates that an exclusion be for a period that at least is coterminous with a loss of license to provide health care in a State. Act, section 1128(c)(3)


ANALYSIS
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CONCLUSION
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JUDGE
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Steven T. Kessel
Administrative Law Judge


FOOTNOTES
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CASE | DECISION | ISSUES | FINDINGS OF FACT AND CONCLUSIONS OF LAW | ANALYSIS | CONCLUSION | JUDGE | FOOTNOTES