I sustain the determination of the Inspector General (I.G.) to exclude Petitioner, Brian Bacardi, D.P.M., from participating in the Medicare, Medicaid, and all Federal health care programs, until Petitioner obtains or reacquires a license to practice medicine or provide health care (i.e. podiatry) in the state of Tennessee. I base my decision on evidence which proves that Petitioner lost his medical license, and the right to apply for or renew it, for reasons bearing on his professional competence, professional performance, or financial integrity. Additionally, I find that when an exclusion imposed by the I.G., as here, is concurrent with the remedy imposed by a State licensing authority, then no issue of reasonableness 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 the Medicare and Medicaid programs. The I.G. explained that Petitioner's exclusion was authorized under section 1128(b)(4) of the Social Security Act (Act) because Petitioner's "license to practice medicine or provide health care in the State of Tennessee was revoked, suspended, or otherwise lost, or was surrendered while a formal disciplinary proceeding was pending before the licensing authority for reasons bearing on [his] professional competence, professional performance, or financial integrity." Additionally, the I.G. advised Petitioner that his exclusion would remain in effect as long as his license is revoked, suspended, or otherwise lost.

Petitioner requested a hearing and the case was assigned to me for decision. The parties agreed that the case could be decided based on written submissions and that an in-person hearing was not necessary.

On June 22, 1999, I issued an order setting forth a schedule for the parties to submit briefs and supporting evidence. In response, the parties have each submitted written arguments. The I.G. submitted 10 proposed exhibits. Petitioner did not object to the I.G.'s exhibits. Petitioner submitted two proposed exhibits. The I.G. did not object to Petitioner's exhibits. In the absence of objection, I am admitting I.G. Exs. 1-10 and P. Exs. 1-2 into evidence in this case. I base my decision in this case on the exhibits, the applicable law, and the argument of the parties.

Pursuant to section 1128(b)(4) of the Act, the I. G. may exclude:

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. 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 to 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 concurrent with the loss, suspension, or revocation of a State license. A concurrent exclusion, as in Petitioner's case, is the mandated minimum required by law.

1. Petitioner held a license to practice podiatry from the State of Tennessee until February 1995. I.G. Ex. 2 at 3; P. Ex. 2 at 1.

2. In December 1993, the Tennessee Department of Health, on behalf of the Tennessee Board of Registration of Podiatry (Board), commenced an investigation of Petitioner based on complaints from 12 of Petitioner's patients. I.G. Ex. 1 at 3.

3. On February 6, 1995, Petitioner surrendered his license to practice podiatry through "retirement" in the State of Tennessee. P. Ex. 2 at 4.

4. On March 13, 1995, the Board issued a formal Notice of Charges to Petitioner regarding his license to practice podiatry in Tennessee. I.G. Ex. l.

5. In the Notice of Charges, the Board alleged that Petitioner treated medical conditions that were outside the scope of podiatry; charged patients for medical materials that he did not supply; performed additional procedures on patients for which he did not have consent; and charged patients for procedures that were not performed. I.G. Ex. l.

6. The March 13, 1995 Notice of Charges alleged that Petitioner [engaged in] immoral, unethical, unprofessional or dishonorable conduct; [made] false statements or representations or being guilty of fraud or deceit in the practice of podiatry; [engaged in] gross malpractice, or a pattern of continued or repeated malpractice, ignorance, negligence or incompetence in the practice of podiatry. I.G. Ex. 1 at 7.

7. On January 24, 1996, Petitioner and the Board entered into an agreement whereby Petitioner agreed never to reactivate his Tennessee license to practice of podiatry. I.G. Ex. 2.

8. On February 27, 1998, the I.G. notified Petitioner of his exclusion from participation in Medicare and Medicaid. I.G. Ex. 6.

9. On March 30, 1999, Petitioner, through his present counsel, raised an issue of lack of receipt of the I.G.'s Notice of Intent to Exclude which is dated August 7, 1997. I.G. Ex. 8.

10. 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.

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

12. The agreement dated January 24, 1996, which Petitioner entered into with the Board, resulted in the loss of his license and the loss of the right to apply for or renew his medical license within the scope of section 1128(b)(4)(A). I.G. Ex. 2 at 4.

13. The January 24, 1996 agreement refers to the March 13, 1995 Notice of Charges and, as a result, the loss of Petitioner's license to practice podiatry in the State of Tennessee bears on Petitioner's professional competence, professional performance, or financial integrity within the scope of section 1128(b)(4) of the Act. I.G. Ex. 2 at 2.

14. The Board had jurisdiction over Petitioner's Tennessee podiatry license under the January 24, 1996 agreement. I.G. Ex. 2 at 2.

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

16. 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.

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

18. The exclusion imposed by the I.G. against Petitioner is for the minimum period mandated by section 1128(c)(3)(E) of the Act.

1. Petitioner asserts that an action under section 1128(b)(4) of the Act is not warranted because the facts of his case do not establish that he lost his medical license for reasons bearing on his professional competence, professional performance, or financial integrity.

2. Petitioner maintains that the January 24, 1996 agreement reflects that the Board made no findings on the issue of professional competence, professional performance, or financial integrity, and does not specify the nature of the allegations against Petitioner, although admittedly the agreement refers to a licensure action against him.

3. Petitioner asserts that because no findings were made in the agreement, the I.G. cannot establish that any licensing proceeding involved his professional competence, professional performance, or financial integrity.

4. Petitioner also maintains that since he retired his license on February 6, 1995, before the January 24, 1996 agreement, there is no nexus between his action in retiring his license and the charges of substandard performance.

5. Petitioner also contends that he neither lost his license within the scope of section 1128(b)(4)(A), nor surrendered his license within the scope of section 1128(b)(4)(B) of the Act. On this issue, Petitioner notes that on February 6, 1995, he retired his license. Petitioner states that he had stopped practicing in Tennessee in March, 1994. He asserts that such action does not satisfy the "otherwise lost" language of section 1128(b)(4)(A). He also maintains that since he retired his license before he received the Notice of Charges, his retirement was not in connection with a proceeding nor was there a proceeding then pending. He maintains that, subsequent to his retirement, the Board had no jurisdiction over him.

6. Petitioner also challenges the fairness of the Notice of Intent to Exclude procedure in his case.

7. Petitioner asserts that he never received notice, dated August 7, 1997, that the I.G. was intending to exclude him from Medicare and Medicaid programs, because the notice was not sent to his then-current address.

8. Petitioner asserts that as early as April, 1995, Medicare was aware of his new address. Petitioner asserts the new address was still current on August 7, 1997, when the Notice of Intent to Exclude was mailed to an old address stating that the Department of Health and Human Services was considering excluding Petitioner from Medicare and Medicaid programs.

In my consideration, I find that Petitioner lost his right to apply for or renew a medical license within the scope of section 1128(b)(4)(A) of the Act when he entered into the agreement on January 24, 1996, with the Board. The DAB has found that the "otherwise lost" language in section 1128(b)(4)(A) of the Act is broadly defined by Congress to affect any loss of a license. William I. Cooper, M.D., DAB CR1534 (1995). In Cooper, the petitioner signed a Consent Order surrendering his medical license prior to formal disciplinary hearings. The DAB concluded that the ALJ's finding that the I.G. had properly excluded the petitioner was correct under section 1128(b)(4)(B) of the Act , but added that "Petitioner could also have been excluded under the provision of section 1128(b)(4)(A)." The broad "otherwise lost" language Congress included in section 1128(b)(4)(A) indicates that Congress intended that section to encompass any loss that occurs by a means other than revocation or suspension by a licensing authority." Cooper, at fn 1.

In Petitioner's case, an investigation was commenced in late 1993 by the Board to ascertain the veracity of allegations that Petitioner treated conditions that were beyond the scope of podiatry; charged patients for medical materials that he did not supply; performed additional procedures on patients without their consent; and charged patients for procedures that were not performed.

As a result of this investigation, a formal Notice of Charges was issued against Petitioner on March 13, 1995, by the Department of Health on behalf of the Board, alleging that Petitioner [engaged in] "immoral, unethical, unprofessional or dishonorable conduct"; [made] "false statements or representations or being guilty of fraud or deceit in the practice of podiatry"; [engaged in] "gross malpractice, or a pattern of continued or repeated malpractice, ignorance, negligence or incompetence in the practice of podiatry." The Notice of Charges set forth a hearing procedure to determine whether Petitioner should be liable for a civil monetary penalty per violation and to determine whether Petitioner's license should be suspended, revoked, or otherwise disciplined. In response to the Notice of Charges, Petitioner entered into an agreement, which was accepted by the Board on January 24, 1996, in which Petitioner waived his right to a contested hearing and agreed that he "will not reactivate his Tennessee license to practice podiatry or apply for registration with the Board . . . " I.G. Ex. 2.

I find that, on these facts, Petitioner's exclusion falls within the "otherwise lost" provision of section 1128(b)(4)(A) of the Act as it relates to the right to apply for or renew a medical license. Under the agreement of January 24, 1996, Petitioner is prevented from ever reactivating his license to practice podiatry or applying for registration with the Board. As a result of his entering into the agreement, Petitioner avoided a hearing on contested charges that he engaged in fraudulent and unprofessional conduct. Petitioner contends that his situation does not meet the requirements of the "otherwise lost" language because he had previously retired his license. Such claim is irrelevant, as the agreement clearly reflects that Petitioner also agreed never to seek reactivation of his license, a situation which satisfies the statutory condition.

I find that there has been no showing that the investigation begun in December, 1993, as a result of complaints by Petitioner's patients, rose to the level of a "formal disciplinary proceeding" as required by section 1128(b)(4)(B) of the Act. Thus, Petitioner did not, as alleged by the I.G. in its brief, surrender his license while a formal disciplinary proceeding was pending before the Board.

In my review, I also conclude that Petitioner's loss of his medical license occurred for reasons bearing on his professional competence, professional performance, or financial integrity. The Notice of Charges clearly reflects that Petitioner was cited for a number of instances whereby he allegedly treated conditions that were outside the scope of podiatry; charged patients for medical materials that he did not supply; performed additional procedures on patients without their consent; and charged for procedures he did not perform. Clearly, such charges related to Petitioner's professional competence, professional performance, and financial integrity. Petitioner asserts that " since there were no findings of lacking of professional competence, performance or financial integrity," made in the January 24, 1996 agreement, and that he "completely voluntarily retired his Tennessee license" then such situation does not satisfy the requirements of section 1128(b)(4) of the Act. Such argument has been previously rejected. See Maurice Labbe, DAB CR488 (1997) at 6.

In my review, I disagree with Petitioner's contention that exclusion is unfair in his case. Specifically he contends that he did not receive the I.G.'s Notice of Intent to Exclude, dated

August 7, 1997, as he maintains that the document was mailed to an address which was not current. He contends that the I.G. should have been aware of such fact. I find, initially, that Petitioner has submitted no evidence to support his contentions, except for his unsupported assertion, that he did not receive the I.G. notice dated August 7, 1997, (Notice of Intent to Exclude). The fact that the Notice of Intent to Exclude was not returned to the I.G. as "undeliverable" underscores this evidentiary deficiency. Moreover, I find that Petitioner has not demonstrated that he has been prejudiced. Petitioner, through his counsel, claimed in a letter dated March 30, 1999, that he had not received the requisite notice and that he sought to challenge the exclusion. When the I.G. became aware that Petitioner claimed he had not received the Notice of Intent to Exclude and that he sought to challenge the exclusion, the I.G., in correspondence dated April 16, 1999, informed Petitioner's current counsel that the I.G. would consider any relevant information concerning the matter. When Petitioner failed to submit any information, the I.G. considered Petitioner's response as a request for a hearing before an ALJ.

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

Joseph K. Riotto
Administrative Law Judge