CASE | DECISION | FINDINGS OF FACT AND CONCLUSIONS OF LAW | CONCLUSION | JUDGE | FOOTNOTES
Decision No. CR661
Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
IN THE CASE OF  


SUBJECT:

Wayne E. Imber, M.D.,

Petitioner,

DATE: Apr. 7, 2000
                                          
             - v -
 

The Inspector General

 

Docket No.C-99-038
DECISION
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In this decision, I sustain the exclusion imposed by the Inspector General (I.G.) against Petitioner, Wayne E. Imber, M.D., excluding him from participation in Medicare, Medicaid, and all federal health care programs as long as he is not licensed to practice medicine in California. If his license to practice is reinstated by the licensing authority in the State of California, he is eligible to apply for reinstatement to the federal health care programs.

Background

On March 28, 1997, the Division of Medical Quality of the Medical Board of California (California Medical Board) initiated a disciplinary proceeding against Petitioner by filing an Amended Accusation. The Accusation alleged acts of unprofessional conduct. Specifically, Petitioner was accused of excessive prescribing and administering of treatment and repeated acts of clearly excessive use of diagnostic or treatment facilities. I.G. Ex. 11.(1) The California Medical Board sought to suspend or revoke Petitioner's license to practice medicine. On July 11, 1997, Petitioner voluntarily surrendered his license to practice medicine to the California Medical Board, agreeing that the California Medical Board could at least establish a prima facie case for the charges alleged in the March 28, 1997 Accusation. I.G. Ex. 12. Petitioner could petition the State of California at a later date to reinstate his license. Id.

By letter dated September 30, 1998, the I.G. notified Petitioner that he was being excluded from participation in the Medicare, Medicaid, and all federal health care programs as defined in section 1128B(f) of the Social Security Act (Act), pursuant to section 1128(b)4) of the Act. The letter informed Petitioner that his exclusion would remain in effect as long as his license to practice medicine was revoked, suspended, or otherwise lost. If reinstated to practice medicine in the State of California, he could apply to the I.G. for reinstatement to the federal health care programs.

On October 16, 1998, Petitioner, through his attorney, challenged the exclusion imposed by the I.G. and requested a hearing. The case was originally assigned to Administrative Law Judge Edward D. Steinman.

At the parties' request, Judge Steinman stayed the case so that the parties could discuss a possible settlement. In July 1999, the I.G. indicated that settlement was unlikely and stated that he had not received any correspondence from Petitioner for several months. Judge Steinman issued an Order to Show Cause to Petitioner. In his Response to the Order to Show Cause, Petitioner stated, among other things, that he would like a further stay of proceedings, since he was preparing a Freedom of Information Act (FOIA) request to the Department of Health and Human Services. Judge Steinman ruled that Petitioner's pending FOIA request would not delay the outcome of the case, and denied Petitioner's request for a further stay.

Petitioner has also indicated that he elected to have the matter decided on submission of briefs, rather than have an in person hearing.

The case was transferred to me on November 23, 1999. I denied Petitioner's request for an additional stay and set a briefing schedule. I received an initial brief from Petitioner, a response brief from the I.G., and a reply brief from Petitioner.

 

FINDINGS OF FACT AND CONCLUSIONS OF LAW
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1. Prior to July 11, 1997, Petitioner was a physician licensed by the California Medical Board. I.G. Ex. 11.

2. On March 28, 1997, the California Medical Board initiated a disciplinary proceeding against Petitioner by filing an Amended Accusation alleging acts of unprofessional conduct by Petitioner involving his excessive prescribing and administering of treatment and repeated acts of clearly excessive use of diagnostic or treatment facilities. I.G. Ex. 11.

3. On July 11, 1997, Petitioner resolved the pending matters brought against him by the California Medical Board by entering into a stipulation with the Board for voluntary surrender of his medical license. I.G. Ex. 12. The California Medical Board accepted Petitioner's surrender of his license. I.G. Ex. 13.

4. On September 30, 1998, the I.G. notified Petitioner that he was being excluded from participation in the Medicare, Medicaid, and all federal health care programs, as defined in section 1128B(f) of the Act, pursuant to section 1128(b)(4) of the Act. I.G. Ex. 1.

5. Section 1128(b)(4) of the Act authorizes the I.G. to exclude an individual who surrenders his license to provide health care during the pendency of formal disciplinary proceedings before the State licensing authority which concern the individual's professional competence, professional performance, or financial integrity.

6. Petitioner surrendered his California medical license during the pendency of a formal disciplinary proceeding before the California Medical Board, within the meaning of section 1128(b)(4) of the Act.

7. The disciplinary proceeding before the California Medical Board concerned Petitioner's professional competence, professional performance, and financial integrity, within the meaning of section 1128(b)(4) of the Act.

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

9. 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.

10. 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, no issue of reasonableness with regard to the length of the exclusion exists.

11. 42 C.F.R. § 1005.4(c)(5) states that "[t]he ALJ does not have the authority to [r]eview the exercise of discretion by the OIG to exclude an individual or entity under section 1128(b) of the Act, or determine the scope or effect of the exclusion."

12. The alleged failure of the Department of Health and Human Services to respond to Petitioner's FOIA request is not material to my decision in this case, since I have no jurisdiction to review the I.G.'s exercise of discretion to exclude Petitioner.

13. The exclusion imposed by the I.G. against Petitioner, which will remain in effect unless and until Petitioner obtains a valid license to practice medicine in California, was authorized under sections 1128(b)(4) and 1128(c)(3)(E) of the Act.

Applicable Law

Section 1128 of the Act, 42 U.S.C. 1320a-7, provides for the mandatory or permissive exclusion of individuals from participating in any Federal health care program, as defined in section 1128B(f) of the Act. In particular, Section 1128 provides that:

(b) PERMISSIVE EXCLUSION. - The Secretary may exclude the following individuals and entities from participation in any Federal health care program . . .

(4) LICENSE REVOCATION OR SUSPENSION.-ANY 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.


The authority to exclude has been delegated to the I.G. and is implemented under authority of 42 C.F.R. § 1001.501. Regulations at 42 C.F.R. § 1005.4 further provide that

(c) The ALJ does not have the authority to-

(5)Review the exercise of discretion by the OIG to exclude an individual or entity under section 1128(b) of the Act, or determine the scope or effect of the exclusion.



Discussion

A. The I.G. has exercised her discretion and I
have no authority to review her discretion.

Petitioner was a physician licensed by the California Medical Board and, thus, possessed a license to provide health care within the meaning of section 1128(b)(4) of the Act. It is undisputed that Petitioner surrendered his California medical license during the pendency of a formal disciplinary proceeding before the California Medical Board, and that such surrender falls within the scope of section 1128(b)(4) of the Act.

By the issuance of the exclusion letter (I.G. Ex. 1), the I.G. has exercised her discretion with respect to deciding whether Petitioner's surrendering of his license to practice medicine in California as a consequence of the State's allegations warranted that he be excluded as per the Act and regulations. While Petitioner argues (Pet. Br., at 13 - 14) that the I.G. be ordered by me to exercise her discretion, it is totally apparent to me that her discretion has in fact been exercised. There is no dispute that the underlying circumstances in this case -- the surrender of Petitioner's license as a result of an accusation filed against him by the California Medical Board -- fits squarely within the type of situation where the I.G. may exercise discretion to exclude. There is no dispute that the I.G. issued an exclusion letter barring Petitioner from participating in Federal health care programs, and that such exclusion will continue unless and until his license is reinstated and he applies to the I.G. for reinstatement to the Federal health care programs. And there can be no dispute that under the regulations cited above it is outside my authority to review the I.G.'s exercise of discretion.

B. The government's delay in responding to
Petitioner's FOIA request has no bearing on this case.

Petitioner filed a FOIA request during these proceedings. Petitioner indicated in his briefs that neither the Department of Health and Human Services nor the Office of Inspector General had responded to his FOIA request. While the government's failure to respond to Petitioner's FOIA request is regrettable, it is also immaterial. Whatever information this request would elicit would not alter the fact that the I.G. has exercised her discretion. Whether the exercise of the I.G.'s discretion in this case is consistent with past exercises of discretion or not, it would not change my lack of authority to review any such exercise of the I.G.'s discretion.

 

CONCLUSION
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The I.G. had the authority to exercise her discretion to exclude Petitioner in this case pursuant to section 1128(b)(4) of the Act. I have no authority to review this exercise of discretion. Accordingly, I affirm the decision of the I.G.

 

JUDGE
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Marc R. Hillson
Administrative Law Judge

 

FOOTNOTES
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1. The I.G. submitted thirteen exhibits, I.G. Exhibits (I.G. Ex.) 1 - 13, with its response brief. Petitioner submitted Exhibits A, B, and C with his reply brief. In the absence of any objections by either party, I am admitting all submitted exhibits into evidence.


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