CASE | DECISION | JUDGE

Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
IN THE CASE OF  


SUBJECT:

Richard M. Donnini, D.O.,

Petitioner,

DATE: May 8, 2000
                                          
             - v -

 

The Inspector General

 

Docket No.C-99-719
Decision No. CR668
DECISION
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This case is before me pursuant to a request for hearing filed by Richard M. Donnini, D.O., (Petitioner) on July 27, 1999. Social Security Act (Act) section 1128(f); 42 C.F.R. § 1005.2.

By letter dated June 30, 1999, the Inspector General (I.G.) notified Petitioner that he was being excluded from participating in the Medicare, Medicaid, and all federal health care programs as defined in section 1128B(f) of the Act. I.G. Exhibit (Ex.) 1. The I.G. further informed Petitioner that the exclusion was based on section 1128(b)(4) of the Act, in view of the revocation, suspension, or loss of his license to practice medicine or provide health care in the State of Ohio for reasons bearing on his professional competence, professional performance, or financial integrity. The exclusion would be in effect as long as his license to practice medicine in Ohio remained revoked.

The I.G. is represented in this case by the Office of Counsel. Although advised of his right to representation, Petitioner elected to appear on his own behalf. The parties agreed that this matter could be decided based on written arguments and documentary evidence, and that an evidentiary hearing was unnecessary. Each side has made written submissions in support of their contentions. The I.G. submitted six proposed exhibits. These have been identified as I.G. Ex(s). 1 - 6. Petitioner submitted 12 proposed exhibits, which have been identified as P. Ex(s). 1 - 12. On February 14, 2000, the I.G. moved to strike Petitioner's exhibits based on the untimeliness of his submission and the violation of the Order for Document Exchange. I denied the I.G.'s motion based mainly on Petitioner's pro se status. My ruling to that effect, dated March 29, 2000, is incorporated here by reference. I am, therefore, admitting I.G. Exs. 1-6 and P. Exs. 1-12 into evidence.

It is my decision to sustain the determination of the I.G. to exclude Petitioner, Richard M. Donnini, D. O., from participating in the Medicare, Medicaid, and all other federal health care programs, for a period coterminous with the revocation of his license to practice medicine or provide health care in the State of Ohio. I base my decision on the documentary evidence, the applicable law and regulations, and the arguments of the parties. It is my finding that the State Medical Board of Ohio suspended Petitioner's license to practice medicine for reasons bearing on his professional competence, professional performance, or financial integrity. Additionally, I find that when an exclusion imposed by the I.G. runs concurrent with the remedy imposed by the State licensing authority, such exclusion is mandated by law.

Issues

1. Whether the I.G. had a basis upon which to exclude Petitioner from participating in the Medicare, Medicaid, and all other federal health care programs.

2. Whether the length of the exclusion imposed and directed against Petitioner by the I.G. is unreasonable.

Applicable Law and Regulations

Under section 1128(b) of the Act, the Secretary of Health and Human Services (Secretary) may exclude individuals from receiving payment for services that would otherwise be reimbursable under Medicare, Medicaid, or other federal health care programs.

The Act defines "federal health care program," as "any plan or program that provides health care benefits, whether directly, through insurance, or otherwise, which is funded directly, in whole or in part, by the United States Government . . . or any State health care program, as defined in section 1128(h)." Act, section 1128B(f).

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 a State licensing authority, or otherwise lost, for reasons bearing on that individual's professional competence, professional performance, or financial integrity. According to section 1128(c)(3)(E) of the Act, the minimum term of exclusion of an individual who is excluded pursuant to section 1128(b)(4) must be coterminous with the term of loss, suspension or revocation of that individual's license to provide health care.

The regulations promulgated at 42 C. F. R. §§ 1001.501 and 1001.1901(b) mirror the statutory provisions set forth in the Act.

Findings of Fact and Conclusions of Law

I make the following findings of fact and conclusions of law (Findings) to support my decision in this case. Below, I discuss both issues in this case and use my Findings as support for my conclusions.

1. Petitioner was licensed by the State of Ohio to practice medicine and surgery.

2. On September 9, 1998, the State Medical Board of Ohio issued an Order suspending for an indefinite period, but not less than one year, the certificate of Richard M. Donnini, D.O., Petitioner, to practice medicine and surgery in the State of Ohio. I.G. Ex.5.

3. The September 9, 1998 Order was based on the Report and Recommendation of R. Gregory Porter, State Medical Board Attorney Examiner finding that:

a. Petitioner allowed a physician assistant to practice without on-site physician supervision;

b. although Petitioner had submitted a plan to the State Medical Board of Ohio indicating that physician assistants would see 10-15 patients a day, he allowed them to see up to 40 patients a day;

c. Petitioner post-dated a prescription for Percocet to be given to a patient while he was away from his office on vacation;

d. Petitioner signed prescription blanks and left them for his staff to use in an emergency while he was away from his office; and

e. Petitioner permitted a physician assistant to practice without being registered with the State Medical Board of Ohio. I.G. Ex. 3.

4. On appeal to the Court of Common Pleas, the suspension action of the State Medical Board of Ohio was affirmed. P. Ex. 9.

5. Based on the action taken by the Ohio licensing authority, the Ohio Department of Human Services terminated Petitioner's provider agreement by notice dated October 28, 1998. I.G. Ex. 6.

6. On June 30 1999, the I.G. served notice on Petitioner that he was being excluded from participating in the Medicare, Medicaid, and all federal health care programs. I.G. Ex. 1.

7. Section 1128(b)(4)(A) of the Act authorizes the I.G. to exclude an individual from participation in the Medicare, Medicaid, and all federal health care programs as defined in section 1128B(f), whose license has been revoked or suspended by any State licensing authority 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 Order of the State Medical Board of Ohio resulted in suspension of Petitioner's medical license for an indefinite period, but not less than one year.

10. The I.G. was authorized to exclude Petitioner pursuant to section 1128(b)(4) of the Act because the suspension of Petitioner's license was for reasons bearing on his professional competence, professional performance, or financial integrity.

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

13. Section 1128(b) of the Act authorizes the Secretary to bar excluded individuals from receiving payment for services that would otherwise be reimbursable under Medicare, Medicaid, or other federal health care programs.

Discussion

1. The I.G. had a basis for excluding Petitioner.

Petitioner is a doctor of osteopathic medicine who was licensed to practice medicine and provide health care in the State of Ohio. On February 11, 1998, Petitioner was cited by the State Medical Board of Ohio (State Medical Board) for allegedly having failed to maintain supervision of a physician's assistant and permitting an individual to practice as a physician's assistant without being registered with the State Medical Board. He was also charged with post-dating a prescription for a schedule II controlled substance and pre-signing prescription forms for use by his office staff. After a hearing, he was sanctioned with an indefinite suspension, subject to one year minimum. P. Ex. 8. Petitioner appealed the State Medical Board's decision to the Franklin County Court of Common Pleas, which affirmed the State Medical Board's decision. P. Ex. 9.

On October 28, 1998, the Ohio Department of Human Services sent Petitioner a notice informing him that it had come to their attention that the State Medical Board of Ohio had suspended his license (#3971) to practice medicine, effective October 12, 1998, based upon failing to maintain supervision of a physician assistant, and providing a post-dated prescription for a schedule II controlled substance to his staff. Consequently, Petitioner was notified that his provider agreement with the Ohio Department of Human Services was being immediately terminated and that he would no longer be eligible for reimbursement for services rendered under Medicaid or Disability Assistance services. P. Ex. 6.

By letter dated June 30, 1999, the I.G. notified Petitioner that he was being excluded from participating in the Medicare, Medicaid, and all federal health care programs pursuant to section 1128(b)(4) of the Act because his license to practice medicine or provide health care in the State of Ohio was revoked, suspended, or otherwise lost for reasons bearing on his professional competence, professional performance, or financial integrity.

Petitioner argues that the suspension of his license for failure to properly supervise a physician assistant is an administrative issue, unrelated to professional competence or performance. For the reasons set forth below, I disagree.

The clear language of the statute is not open to dispute. The Secretary may exclude "any individual or entity 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." Section 1128(b)(4)(A). There are two aspects to this legal provision. The first requirement, as is pertinent here, is that the individual's or entity's license to provide health care be revoked or suspended by any State licensing authority. The evidence in this case shows this to be a fact, and Petitioner does not question it. The second requirement is that the suspension or revocation be for reasons bearing on professional competence, professional performance, or financial integrity. Petitioner's defense hinges on the contention that if any impropriety is attributable to him it is in the realm of administrative shortcomings, and unrelated to his professional competence or professional performance.

As stated earlier, the State Medical Board of Ohio found that Petitioner allowed unsupervised physician assistants to see an excessive number of patients, and in the case of one in particular, he permitted the assistant to practice without the required Board registration. Although the State Medical Board also found that Petitioner engaged in illegal processing of drug documents, the Court of Common Pleas struck that charge as not constituting a felony. The Court specifically held:

[w]hile such actions may violate a standard of care under medical practice, there is no criminal culpability that this court can discern from Appellant's admitted actions and the provisions of R. C. 2929.23. P. Ex. 9, at 4.

Nonetheless, the appellate tribunal affirmed the other charges as sufficient to sustain the suspension penalty imposed by the State Medical Board of Ohio. That the court understood that Petitioner's actions were related to his professional competence or performance is evident from the following language:

[t]he General Assembly, through its police power, has bestowed upon the board administrative powers to 'safeguard the public's interest in having competent, properly trained and educated, and experienced doctors.' Midwestern College of Massotherapy v. Ohio Med. Bd. (1995), 102 Ohio App. 3d. 17, 23, 656 N. E. 2d. 963. R. C. 4731.22(B)(6) grants the board the authority to discipline a physician for '[a] departure from, or the failure to conform to minimal standards of care of similar practitioners under the same similar circumstances, whether or not actual injury to a patient is established. . . .' P. Ex. 9, at 9.

It can hardly be argued by Petitioner that allowing physician assistants to see up to 40 patients a day, in assembly line fashion, and unsupervised, while he vacationed in the Bahamas is not offensive to the better principles of professional competence or professional performance. See P. Ex. 4, at 17. This is particularly more disturbing in the case of an unregistered assistant who treated and prescribed medication to a new patient without that patient first being examined by Petitioner or another physician. P. Ex. 4, at 18. In his written arguments, Petitioner would have me apply the facts as he conceives them, and not as contained in the findings of the State Medical Board of Ohio or the Court of Common Pleas that considered the case on appeal. One example will suffice to illustrate this point. I will refer again to the decision on appeal to show that the court there was also mindful of Petitioner's tortured application of the facts. The Court of Common pleas stated:

Appellant's second contention of error is that he did not violate the physician's assistant utilization plan by allowing Mr. Booth to see more than 10 to 15 patients per day. The Court finds that Appellant's argument in this regard is an exercise in sophistry . . . Appellant takes the position that since Mr. Booth did not see patients everyday, his load should be divided by the number of available workdays in each week to obtain the average. While this may be mathematically sound, it certainly fails the test of logic and reasonability. The Court does not need to reach far to conclude that the number of patients per day to be seen is limited in order to maintain adequate supervision and minimal patient care (emphasis added). Under Appellant's theory, if the practice operated six days per week, the physician's assistant could attend patients for one day in each week and treat 90 patients in that day. P. Ex. 9, at 6 - 7.

The portion cited above also shows the connection between the number of patients per day seen by a physician's assistant and patient care. The issue is not one of administrative paperwork as suggested by Petitioner, but, rather, one of quality of health care.

Moreover, in order to consider whether Petitioner's license was suspended for reasons bearing on his professional competence, professional performance, or financial integrity, I must take the record of the suspension proceedings as I find it. The law does not permit me to look behind the State suspension proceedings and readjudicate the matter. It has been held that collateral attacks on the actions of State licensing proceedings are not permitted in the context of an exclusion proceeding under section 1128(b)(4). Mary E. Groten , DAB CR518 (1998); Milan Kovar, M.D., DAB CR550 (1998).

In view of the foregoing, I conclude that Petitioner's license to provide health care in the State of Ohio was suspended for reasons bearing on his professional competence or professional integrity.

2. The length of the exclusion is not unreasonable.

The State Medical Board of Ohio suspended Dr. Donnini's license to practice osteopathic medicine and surgery for an indefinite period, but not less than one year. He would be considered for reinstatement subject to successfully taking an examination related to the content of Ohio Statutes and Board rules relating to the practice of physician assisting. Additionally, if reinstated, his certificate would be subject to a five year minimum probationary period. Thus, if Petitioner were diligent, he could resume his medical practice after a one year suspension, albeit on a probationary basis for at least five years. P. Ex. 3.

Pursuant to 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. 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 by the I.G. in this case is the mandated minimum period required by law.

Petitioner requests that mitigating circumstances be taken into account. However, neither the law nor the regulations provide for exceptions to the mandatory coterminous exclusion period which is the minimum period of exclusion mandated under the statute and regulation. See 42 C.F.R. § 1001.501(b)(2).

Conclusion

It is my decision that the I.G. was authorized to exclude Petitioner pursuant to section 1128(b)(4) of the Act. Additionally, I conclude that the indefinite period of exclusion imposed by the I.G. is the minimum period mandated by section 128(c)(3)(E) of the Act.

JUDGE
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Jose A. Anglada

Administrative Law Judge

CASE | DECISION | JUDGE