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  
Mark Baldwin, D.O., Petitioner Date: 1999 September 7
- v. -  
The Inspector General Docket No. C-98-352
Decision No. CR614
DECISION
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I sustain the determination of the Inspector General (I.G.) to exclude Mark Baldwin, D.O. (Petitioner) from participating in the Medicare, Medicaid, Maternal and Child Health Services Block Grant and Block Grant to States for Social Services programs (Medicare and Medicaid(1)), for a period from October 11, 1996 to November 10, 1998, when Petitioner was reinstated to participate in the Medicare and Medicaid programs. I find that Petitioner lost his medical license, and the right to apply for or renew it, on October 11, 1996, for reasons bearing on his professional competence, professional performance, or financial integrity, within the meaning of section 1128(b)(4) of the Social Security Act (Act). Additionally, I find that when an exclusion imposed by the I.G. pursuant to section 1128(b)(4) of the Act is coterminous with the remedy imposed by a State licensing authority, then no issue of reasonableness with regard to the length of the exclusion exists and such an exclusion is mandated by law.

BACKGROUND

By letter dated February 27, 1998, the I.G. notified Petitioner that he was being excluded from participating in Medicare and Medicaid. The I.G. explained that Petitioner's exclusion was authorized under section 1128(b)(4) of the Act because Petitioner's "license to practice medicine or provide health care in the State of Illinois was revoked, suspended, or otherwise lost or was surrendered while a formal disciplinary proceeding was pending before the State licensing authority for reasons bearing on [Petitioner's] professional competence, professional performance, or financial integrity." Additionally, the I.G. advised Petitioner that his exclusion would remain in effect as long as that license was revoked, suspended, or otherwise lost.

Petitioner requested a hearing and the case was assigned to me for decision. As an initial matter, I note that Petitioner's request was not filed until May 22, 1998. Petitioner had 60 days from the receipt of the I. G.'s notice of exclusion to file a hearing request. 42 C.F.R. § 1005.2(c). Petitioner states that such notice was not mailed to the proper address and that he did not receive it until April 25, 1998. The I.G. does not dispute Petitioner's statement. I therefore find that Petitioner's hearing request was timely filed.

The parties agreed that this case could be decided based on written submissions, and that an in-person hearing was not necessary. The parties have each submitted written arguments and proposed exhibits. The I.G. submitted seven proposed exhibits (I.G. Ex. 1-7). Petitioner did not object to these exhibits. Petitioner submitted four exhibits (which I have renumbered as P. Ex. 1-4) and his affidavit (which I have designated as P. Ex. 5). The I.G. did not object to Petitioner's exhibits. Thus, in the absence of objection, I am admitting I.G. Ex. 1-7 and P. Ex. 1-5 into evidence in this case. I base my decision in this case on these exhibits, the applicable law, and the arguments of the parties.

APPLICABLE LAW

Pursuant to section 1128(b)(4) of the Act, the I.G. may exclude "[a]ny individual or entity - (A) whose license to provide health care has been revoked or suspended by any State licensing authority, or who otherwise lost such a license or the right to apply for or renew such a license, for reasons bearing on the individual's or entity's professional competence, professional performance, or financial integrity, or (B) who surrendered such a license while a formal disciplinary proceeding was pending before such an authority and the proceeding concerned the individual's or entity's professional competence, professional performance, or financial integrity."

Pursuant to section 1128(c)(3)(E) of the Act, as amended by section 212 of the Health Insurance Portability and Accountability Act of 1996, Pub. L. No. 104-191, the length of an exclusion under section 1128(b)(4) "shall not be less than the period during which the individual's or entity's license to provide health care is revoked, suspended, or surrendered, or the individual or entity is excluded or suspended from a Federal or State health care program." Prior to 1996, the Act provided no criteria for establishing the length of exclusions for individuals or entities excluded pursuant section 1128(b)(4). The 1996 amendments require, at section 1128(c)(3)(E), that an individual or entity who is excluded under section 1128(b)(4) be excluded for not less than the period during which the individual's or entity's license to provide health care is revoked, suspended, or surrendered. Under the 1996 amendments, no issue of reasonableness exists where the exclusion imposed by the I.G. is coterminous with the revocation, suspension, or surrender of a State license. A coterminous exclusion, as in Petitioner's case, is the mandated minimum required by law.


ISSUES
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FINDINGS OF FACT AND CONCLUSIONS OF LAW
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1. Petitioner was licensed by the State of Illinois to practice medicine.

2. On October 11, 1996, the Director of the Department of Professional Regulation (Director) for the State of Illinois issued an order indefinitely suspending Petitioner's license to practice medicine as a physician and surgeon. I.G. Ex. 1.

3. The October 11, 1996 Order of the Director was based upon an August 7, 1996 recommendation by the Medical Disciplinary Board of the Department of Professional Regulation of the State of Illinois, which concluded that Petitioner had "an outstanding tax liability with the Illinois Department of Revenue in the amount of . . . $16,854.45 for the years 1989 through 1992, in violation of Illinois Compiled Statutes, Chapter 225 (1992), Act 60, Section 22, Paragraph A.38." I..G. Ex. 2 at 2-3.

4. On February 27, 1998, the I.G. notified Petitioner of his exclusion from participation in Medicare and Medicaid.

5. On October 6, 1998, Petitioner's medical license in Illinois was restored to probationary status. I..G. Ex. 6.

6. On November 10, 1998, Petitioner was reinstated by the I.G. to participate in the Medicare and Medicaid programs. I.G. Ex. 7

7. Section 1128(b)(4)(A) of the Act authorizes the I.G. to exclude an individual whose license to provide health care has been revoked or suspended by any State licensing authority, or who otherwise lost such a license or the right to apply for or renew such a license, for reasons bearing on the individual's professional competence, professional performance, or financial integrity.

8. Petitioner possessed a license to provide health care within the scope of section 1128(b)(4) of the Act.

9. The October 11, 1996 Order of the Director resulted in the suspension of Petitioner's medical license and the right to apply for or renew such license within the scope of section 1128(b)(4)(A).

10. The I.G. was authorized to exclude Petitioner pursuant to section 1128(b)(4) of the Act.

11. Where an exclusion is imposed pursuant to section 1128(b)(4) of the Act, the period of exclusion shall not be less than the period during which the individual's license to provide health care is revoked, suspended, or surrendered. Section 1128(c)(3)(E) of the Act.

12. When an exclusion is imposed pursuant to section 1128(b)(4) of the Act and the period of exclusion is coterminous with the revocation, suspension, or surrender of a State license, then no issue of reasonableness with regard to the length of the exclusion exists.

13. The exclusion imposed by the I.G. against Petitioner for the period beginning 20 days from the date of the notice of the exclusion until November 10, 1998 is the minimum period mandated by section 1128(c)(3)(B) of the Act.

PETITIONER'S CONTENTIONS

Petitioner raises a number of challenges concerning the propriety of his exclusion. He contends that his license was not "revoked," "suspended" or "lost" as those terms are used in section 1128(b)(4) of the Act. Instead, Petitioner asserts that his license expired or lapsed on July 31, 1996 and that it is "unfair that a disciplinary action can be permitted against an inactive and expired medical license." P. Brief at 2. Petitioner also maintains that, as the license suspension related to an outstanding personal income tax liability, it does not relate to his professional competence, professional performance or financial integrity within the scope of section 1128(b)(4) of the Act.

Petitioner also challenges the fairness of the State of Illinois licensing proceeding. Petitioner asserts that such proceeding was unfair because he had no notice of it. Petitioner alleges that the State recognized the unfairness of the procedure when it reinstated his license, but that the State negligently did not make such reinstatement retroactive so that he could receive payment for services he provided during the period of suspension. Consequently, Petitioner requests that the I.G.'s reinstatement be made retroactive. Finally, Petitioner notes that he has had a medical license in Ohio since he left Illinois and implies that this factor entitles him to reimbursement for services provided during the period of suspension.

DISCUSSION

Petitioner does not dispute that his medical license constitutes a license within the scope of section 1128(b)(4) of the Act. However, Petitioner does contest that the October 11, 1996 Order of the Director constitutes a revocation, suspension or loss of a license or the right to apply for or renew such a license within the meaning of section 1128(b)(4)(A) of the Act. I find no merit in Petitioner's argument.

At the outset, I note that Petitioner has not provided any evidence to support his argument that his license had expired. More importantly, however, whether or not Petitioner's license expired prior to the State's suspension is irrelevant to his exclusion from Medicare and Medicaid. An exclusion under section 1128(b)(4)(A) of the Act may be based on a State's action against an expired license. In Mary E. Groten, DAB CR518 (1998), the Connecticut Department of Public Health filed a petition against the petitioner, a registered nurse. In settlement of the allegations, the petitioner voluntarily agreed, on January 3, 1996, not to renew or apply for reinstatement of her license to practice as a registered nurse in the State of Connecticut. In Groten, the petitioner no longer resided in Connecticut and her license had expired on December 31, 1995. The I.G.'s exclusion was upheld. The administrative law judge (ALJ) found that the petitioner's loss of the ability to renew or reinstate her medical license was a relinquishment of "the permission conferred on her by the State licensing authorities to be a registered nurse." Id. Consequently, the ALJ found that the State's action constituted the loss of a license or the right to apply for or renew a license under section 1128(b)(4)(A) of the Act. See also, William I. Cooper, M.D., DAB No. 1534 (1995); John W. Crews, CR509 (1997), aff'd 40 F. Supp. 2d 350 (E.D. Va. 1999) (petitioner claimed that his license expired on March 31, 1996, prior to the institution of disciplinary proceedings and before a July 17, 1996 consent order in which he agreed to surrender his license; I..G. may permissibly bring an exclusion action under section 1128(B)(4) of the Act.) I therefore find that the fact that Petitioner's medical license may have expired does not affect an exclusion action in his case. I conclude further that, as a result of the Order by the State of Illinois, Petitioner lost his license or the right to apply for or renew his license within the scope of section 1128(b)(4)(A) of the Act.

Petitioner also maintains that an exclusion under section 1128(b)(4) of the Act is not warranted because the action by the State of Illinois in revoking his medical license was not for reasons bearing on his professional competence, professional performance, or financial integrity but related to a personal matter, his liability to pay taxes in the amount of $16,854.45 for tax years 1989 through 1992. Although the record does not establish that such tax liability related to Petitioner's medical practice, I do not find this factor controlling. Instead, I find that the fact that Petitioner owed and failed to pay such a substantial amount in back taxes indicates his lack of financial integrity. The Illinois Disciplinary Board found Petitioner's failure to pay state taxes was of a nature that would require him "to show that he has been sufficiently rehabilitated to warrant the public's trust" as a condition for restoration of his license. I.G. Ex. 1 at 3. The failure to meet financial obligations to the State has been found to give rise as a basis for an exclusion action. Mary E. Holt, R.N., CR530 (1998) (failure to repay student loans which resulted in loss of a nursing license rises to the level of lack of financial integrity for purposes of section 1128(b)(4)).

Further, Petitioner implies that the fact that he possessed a license to practice medicine in Ohio during the period when his Illinois license was suspended negates an exclusion under section 1128(b)(4). Petitioner's argument is contrary to the statute. The I.G. has the authority to exclude Petitioner in this case because he lost his medical license within the scope of section 1128(b)(4) of the Act. The Act, as amended at section 1128(c)(3)(E), requires that an individual excluded pursuant to section 1128(b)(4) be excluded for not less than the period during which the individual's license to provide health care is revoked, suspended, or surrendered. It is plain from the language of the amendment at section 1128(c)(3)(E) that the minimum length of the exclusion must be coterminous with the term of revocation, suspension, or surrender of the State license. Because Petitioner lost his license to practice medicine in the State of Illinois, the Act requires that the period of the exclusion will not be less than the period during which his license to practice medicine in the State of Illinois is lost. Petitioner is required to obtain from the Illinois licensing authority the same type of license that he lost before he can be considered for reinstatement as a participant in Medicare and Medicaid. On October 6, 1998, Illinois authorities restored Petitioner's license to probationary status and on November 10, 1998, the I.G. reinstated Petitioner to participate in the Medicare and Medicaid programs. Consequently, Petitioner has no right to retroactive participation.

Additionally, I find that I have no authority to grant Petitioner retroactive reinstatement. The Departmental Appeals Board (DAB) has ruled consistently that an ALJ has no authority to alter the effective date of an exclusion. Shanti Jain, M.D., DAB No. 1398 (1993); Chander Kachoria, DAB No. 1380 (1993); Samuel W. Chang, M.D., DAB No. 1198 (1990). Consequently, an ALJ has no authority to make exclusions retroactive and neither the ALJ nor the I.G. can move the effective date of the exclusion back to the date when Petitioner's license was revoked. Morton Markoff, D.O., DAB CR538 (1998).

Although Petitioner implies that the length of his exclusion is not reasonable, it has been held that under section 1128(c)(3)(E) of the Act, "no issue of reasonableness exists" where the length of the exclusion imposed by the I.G. is coterminous with the revocation, suspension, surrender, or loss of a State license. Maurice Labbe, DAB CR488 (1997) at 3. As in Labbe, the exclusion period in this case is controlled by section 1128(c)(3)(E) of the Act. That section requires that Petitioner be excluded for a period no less than the period during which his license is revoked, suspended, surrendered, or lost. The coterminous exclusion imposed by the I.G. in this case is the mandated minimum period required by law.

Finally, Petitioner maintains that exclusion is unfair in his case because he had no notice of the Illinois disciplinary proceedings.(2) According to Petitioner, notice of the State disciplinary proceedings was sent to an incorrect address. Petitioner's contention constitutes a collateral attack on the actions of the State licensing authority and is not relevant to the issue of the I.G.'s authority to exclude Petitioner. DAB decisions have held that such collateral attack on the actions of the State licensing authority are not permitted in the context of an exclusion proceeding under section 1128(B)(4). Mary E. Groten, R.N., supra; Jagdish Mangla, M.D., DAB CR470 (1997); John W. Foderick, M.D., DAB No. 1125 (1990); see also, Barry Kamen, RPA, DAB CR493 (1997) (involving section 1128(b)(5)).


ANALYSIS
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CONCLUSION
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I conclude that the I.G. was authorized to exclude Petitioner pursuant to section 1128(b)(4) of the Act. I conclude also that the period of exclusion imposed by the I.G. is the minimum mandatory period mandated by section 1128(c)(3)(E) of the Act. Accordingly, I sustain it.


JUDGE
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Joseph K. Riotto
Administrative Law Judge


FOOTNOTES
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1. In this decision, I refer to all programs from which Petitioner has been excluded, other than Medicare, as "Medicaid."

2. Petitioner also asserts that he had no notice of the I.G.'s exclusion action. I have however accepted Petitioner's hearing request as timely filed and he has been accorded an opportunity to fully litigate his claims before me.


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