CASE | DECISION | FINDINGS OF FACT AND CONCLUSIONS OF LAW | CONCLUSION | JUDGE
Decision No. CR647
Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division

IN THE CASE OF  


SUBJECT:

Donald D. Oh, M.D.,

Petitioner,

DATE: Feb.16, 2000
                                          
             - v -
 
The Inspector General Docket No.C-00-020
DECISION
...TO TOP
I sustain the determination of the Inspector General (I.G.) to exclude Petitioner, Donald D. Oh, M.D., from participating in the Medicare program and in all other federally funded health care programs, including State Medicaid programs, until Petitioner is reinstated to participate in the New Jersey Medicaid program. I base my decision on evidence which proves that Petitioner was suspended from participation in the New Jersey Medicaid program. I find that the exclusion is authorized by section 1128(b)(5) of the Social Security Act (Act) and that the period of exclusion imposed by the I.G. is mandated by section 1128(c)(3)(E) of the Act. I also find that when an exclusion imposed by the I.G., as here, is concurrent with the remedy imposed by a State Medicaid program, then no issue of reasonableness relative to the length of the exclusion exists and such an exclusion is mandated by law.

Background

The I.G. notified Petitioner by letter dated August 31, 1999 that he was being excluded from participation in the Medicare, Medicaid, and all federal health care programs for an indefinite period. The I.G. informed Petitioner that the exclusion was authorized under section 1128(b)(5) of the Act because the Petitioner had been suspended from participation in the New Jersey Medicaid program for reasons related to Petitioner's professional competence, professional performance, or financial integrity. Petitioner filed a request for hearing on October 6, 1999.

A prehearing conference was conducted on November 8, 1999. Both parties appeared through counsel and agreed that the case could be decided upon written submissions. A briefing schedule was set for the parties to address the issue of whether the I.G. has the authority to exclude Petitioner pursuant to section 1128(b)(5) of the Act.

The I.G. submitted her brief in support of summary disposition on December 17, 1999, which included one proposed exhibit (I.G. Ex. 1).

Petitioner had until January 28, 2000 to file his brief. Petitioner filed a letter dated December 28, 1999, indicating that he would not respond to the I.G.'s brief but would instead await my decision in this case. Counsel for Petitioner indicated that: "I have taken this action in view of the fact that the government's position seems to be that their exclusion will not extend beyond that of the State of New Jersey's, and in view of that fact, my client understands what he is facing." Petitioner did not object to the admission of I.G.'s Ex. 1.

Applicable Law

Section 1128(b)(5) of the Act authorizes the Secretary of the United States Department of Health and Human Services (the Secretary) and her delegate, the I.G., to exclude an individual who has been suspended or excluded from participation, or otherwise sanctioned, under a State health care program for reasons bearing on that individual's or entity's professional competence, professional performance, or financial integrity. The length of an exclusion under section 1128(b)(5) is set by section 1128(c)(3)(E) of the Act which states that for a person excluded under section 1128(b)(5) ". . . the period of exclusion 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." An exclusion under section 1128(b)(5) must therefore remain in effect until the sanction imposed by the State or federal program is lifted.

 

FINDINGS OF FACT AND CONCLUSIONS OF LAW
...TO TOP

 

  1. At all time relevant to this case, Petitioner was a licensed physician practicing in the State of New Jersey. I.G. Ex. 1.

  2. The State of New Jersey Department of Human Services, Division of Medical Assistance and Health Services (DMAHS), charged Petitioner with submitting a false provider application. Id.

  3. DMAHS also charged Petitioner with operating two unapproved sites and billing improperly for services rendered at those sites. Id.


  4. DMAHS also charged Petitioner with hiring a Program Director who was not qualified under New Jersey standards. Id.


  5. By letter dated February 2, 1998, DMAHS informed Petitioner of its findings. Id.


  6. The February 2, 1998 letter informed Petitioner that his actions violated several provisions of the New Jersey Annotated Code and thereby warranted his suspension from the New Jersey Medicaid program. Id.


  7. The suspension became effective on February 2, 1998, the date of the letter which informed Petitioner of the suspension. See N.J.A.C. 10:49-11.1(d).


  8. Petitioner is currently suspended from participating in the New Jersey Medicaid program for reasons cited by DMAHS in their letter of February 2, 1998.


  9. Petitioner's suspension from participating in the New Jersey Medicaid program is for reasons related to his professional competence, professional performance, and financial integrity.

  10. Based on the action taken by DMAHS in New Jersey, the I.G. notified Petitioner by letter dated August 31, 1999, that he was excluded for an indefinite period from participation in the Medicare, Medicaid, and all federal health care programs, pursuant to section 1128(b)(5) of the Act.


  11. Section 1128(b)(5) of the Act provides that the Inspector General may exclude, "[a]ny individual or entity which has been suspended or excluded from participation, or otherwise sanctioned, under --(A) any Federal program, including programs of the Department of Defense or the Department of Veterans Affairs, involving the provision of health care, or (B) a State health care program, for reasons bearing on the individual's or entity's professional competence, professional performance, or financial integrity."
  12. Pursuant to section 1128(c)(3)(E) of the Act, the length of exclusion under section 1128(b)(5), ". . . 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 the entity is excluded or suspended from a Federal or State health care program."


  13. The Act requires that Petitioner's exclusion will remain in effect until he is reinstated to participate in the New Jersey Medicaid program.


  14. The I.G. has proven that Petitioner was suspended from the New Jersey Medicaid program and that his suspension was for reasons bearing on his professional competence, professional performance, or financial integrity.
  15. I conclude also that the I.G. was authorized to exclude Petitioner pursuant to section 1128(b)(5) of the Act.


  16. I also conclude that the period of exclusion imposed by the I.G. is mandated by section 1128(c)(3)(E) of the Act.

Discussion

The sole issue in this case is whether the I.G. is authorized to exclude Petitioner under section 1128(b)(5) of the Act. With regard to the period of exclusion pursuant to sections 1128(b)(5) and 1128(c)(3)(E) of the Act, when an exclusion imposed by the I.G. is concurrent with the remedy imposed by a State Medicaid program, then no issue of reasonableness with regard to the length of the exclusion exists and such an exclusion is mandated by law.

Under section 1128(b)(5), the I.G. need only prove that two elements have been met: (1) that a petitioner was excluded or suspended from a State health care program and (2) that the exclusion or suspension was for reasons bearing on a petitioner's professional competence, professional performance, or financial integrity.

Petitioner was suspended from participating in the New Jersey Medicaid program effective February 2, 1998. An investigation by DMAHS, disclosed that Petitioner submitted a false provider application. DMAHS also found that Petitioner was operating two unapproved sites and billing improperly for services rendered at those unapproved sites.

DMAHS also found that Petitioner had hired an unqualified Program Director. New Jersey administrative law governing Medicaid participation requires that a Program Director have input in developing and managing children's partial care programs. Thus, a Program Director must, at a minimum, have a master's degree in a related field and have three years of experience in providing youth mental health services. See N.J.A.C. 10:37-12.12. The Program Director hired by Petitioner did not meet those State standards.

The I.G. argues that the applicable law as well as the case law fully support the exclusion of the Petitioner from participation in the Medicare and other federally funded health care programs.

The I.G. correctly maintains that Departmental Appeals Board case precedent supports its position that the exclusion of an individual from a State Medicaid program provides a basis for exclusion pursuant to section 1128(b)(5). In the case of George Iturralde, M.D., DAB No. 1374 (1992), an appellate panel at the Departmental Appeals Board held that an exclusion under section 1128(b)(5) is authorized where there is a common sense connection between a State's findings and either professional competence, professional performance or financial integrity. In the case of Barry Kamen, DAB CR493(1997), the administrative law judge (ALJ) concluded that the I.G. could exclude the petitioner under section 1128(b)(5) based on petitioner's exclusion from the New York Medical Assistance program. The ALJ concluded that the petitioner's exclusion from the State Medicaid program was premised upon reasons relating to his professional performance or competence.

The I.G. argues in the present case that Petitioner's suspension from participation in the New Jersey Medicaid program may be considered a sanction under a State health care program for reasons that bear on his professional competence, professional performance, or financial integrity. I find that the evidence supports the I.G.'s position. The findings underlying the Petitioner's suspension from the New Jersey Medicaid program clearly relate to Petitioner's professional competence, professional performance, and financial integrity. The Petitioner's act of submitting a false provider application clearly calls into question Petitioner's financial integrity as do Petitioner's acts of operating and billing for services at sites that were not approved by Medicaid.

I also find compelling the I.G.'s argument that Petitioner's hiring of a Program Director, whom he knew was not qualified under New Jersey standards, also calls into question his professional competence and professional performance, as that act compromised the level of care available to his patients.

Petitioner was afforded an opportunity to present his case but instead decided not to respond to the I.G.'s brief. Thus, Petitioner has not disputed the fact that he was suspended from the New Jersey Medicaid program. Furthermore, Petitioner has not advanced any argument to rebut the I.G.'s contention that the findings underlying his suspension from the New Jersey Medicaid program relate to issues involving his professional competence, professional performance, and financial integrity.

Based on the evidence before me, I find that the I.G. has sustained her burden of proving that Petitioner was suspended from the New Jersey Medicaid program and that the suspension was for reasons bearing on his professional competence, professional performance, and financial integrity.

 

CONCLUSION
...TO TOP

 

Based on foregoing, I conclude that the I.G. was authorized to exclude Petitioner pursuant to section 1128(b)(5) of the Act. I also conclude that the period of exclusion imposed by the I.G. is mandated by section 1128(c)(3)(E) of the Act.

 

JUDGE
...TO TOP

 

Alfonso J. Montano
Administrative Law Judge

 

CASE | DECISION | FINDINGS OF FACT AND CONCLUSIONS OF LAW | CONCLUSION | JUDGE