CASE | DECISION | JUDGE

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


SUBJECT:

Jordan Sterns, M.D.

Petitioner,

DATE: May 11, 2000

 

                                          
             - v -

 

The Inspector General

 

Docket No. C-99-817
Decision No. CR669
DECISION
...TO TOP
I sustain the determination of the Inspector General (I.G.) to exclude Petitioner, Jordan Sterns, M.D., from participating in Medicare, Medicaid, and all federal health care programs (Medicare and Medicaid), until Petitioner obtains a license to practice medicine or provide health care in the State of Florida. I base my decision on evidence which proves that Petitioner surrendered his medical license during the pendency of a formal disciplinary proceeding in the State of Florida that related to his professional competence, professional performance, or financial integrity. I further base my decision on evidence which proves that Petitioner lost such 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 August 31, 1999, 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Security Act (Act) because Petitioner's "license to practice medicine or provide health care in the State of Florida was revoked, suspended, or otherwise lost, or was surrendered while a formal disciplinary proceeding was pending before the State licensing authority for reasons bearing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 your 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 November 3, 1999, I issued an order setting forth a schedule for the parties to submit briefs and supporting evidence. In response, the I.G. submitted a brief and four proposed exhibits (I.G. Exs. 1-4). Petitioner did not object to the I.G.'s exhibits. Petitioner submitted a brief accompanied by 10 attachments, which I have numbered as exhibits (P. Exs. 1-10). Petitioner also submitted a reply brief with an additional attachment, which I have numbered as P. Ex. 11. The I.G. did not object to Petitioner's exhibits. In the absence of objection, I am admitting I.G. Exs. 1-4 and P. Exs. 1-11 into evidence. I base my decision in this case on the exhibits, the applicable law, and the argument of the parties.

APPLICABLE LAW

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

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.

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.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

1. Petitioner obtained a license to practice medicine from the State of Florida Board of Medicine. I.G. Ex.1.

2. This license was contingent upon Petitioner's being monitored by the Physician's Recovery Network (PRN), an organization tasked by the State of Florida (Board of Medicine) with monitoring impaired health care professionals and assisting these professionals in securing appropriate and approved treatment for their conditions. I.G. Ex. 1.

3. As part of the monitoring by the PRN, Petitioner was evaluated by a psychiatrist. In the course of the evaluation, Petitioner admitted to a long history of a sexual disorder involving both adults and children. Petitioner also admitted to a long history of chemical dependency and major depression. I.G. Ex. 1.

4. A further multidisiciplinary evaluation of Petitioner was done at the Rush Behavioral Health Care Center in or about November 1995. During this evaluation, Petitioner was diagnosed as suffering from pedophilia, alcohol dependence, poly-substance dependence, and narcissistic personality disorder. I.G. Ex. 1.

5. On or about January 15, 1996, Petitioner was also diagnosed as suffering from major depression. I.G. Ex. 1.

6. In March 1997, the PRN advised the State of Florida Agency for Health Care Administration (Agency) that Petitioner was unable to practice medicine with reasonable skill and safety to patients due to mental illness and chemical dependency. I.G. Ex. 1.

7. The Agency filed an Administrative Complaint against Petitioner on April 28, 1997. I.G. Ex. 1.

8. Specifically, this Administrative Complaint alleged that on a medical license application Petitioner completed on June 21, 1995, Petitioner answered "yes" to certain questions. These questions pertained to medical leaves of absence taken by Petitioner and to Petitioner having undergone counseling, therapy, or treatment for any mental or physical illness or condition that impacted his ability to function fully in any educational or practice setting; i.e., Petitioner stated on his application that he suffered from an anxiety disorder that was in complete remission. I.G. Ex. 1.

9. The Administrative Complaint further alleged that, based on the PRN report and Petitioner's mental health history, Petitioner was guilty of obtaining a medical license by fraudulent misrepresentation in that he failed on his application for licensure to notify the Board of Medicine of his history of major depression and chemical dependency. I.G. Ex. 1.

10. In the April 28, 1997 Administrative Complaint, the Agency charged Petitioner with violating section 458.331(1)(a), Florida Statutes, by attempting to obtain, obtaining, or renewing a license to practice medicine by bribery, by fraudulent misrepresentations, or through an error of the Department or Board. I.G. Ex. 1.

11. In the April 28, 1997 Administrative Complaint, the Agency charged Petitioner with violating section 458.331(1)(s), Florida Statutes, by being unable to practice medicine with reasonable skill and safety to patients by reason of illness or use of alcohol, drugs, narcotics, chemicals, or any other type of material as a result of any mental or physical condition. I.G. Ex. 1.

12. In the April 28, 1997 Administrative Complaint, the Agency charged Petitioner with violating section 458.331(gg), Florida Statutes, by misrepresenting or concealing a material fact at any time during any phase of a licensing or disciplinary process or procedure. I.G. Ex. 1.

13. On February 27, 1998, Petitioner entered into a Voluntary Relinquishment of License (Relinquishment) with the Agency in which he relinquished his license to practice as a physician in the State of Florida and agreed not to reapply for a license as a physician in the State of Florida for a period of five years and then only upon a showing to the State of Florida Board of Medicine, through the PRN, that he was no longer impaired and could practice with skill and safety to patients. I.G. Ex. 2.

14. On May 6, 1998, the State of Florida Board of Medicine entered and effected a Final Order accepting Petitioner's Relinquishment. I.G. Ex. 3.

15. Petitioner's license to practice medicine in the State of Florida is currently "relinquished." I.G. Ex. 3.

16. On August 31, 1999, the I.G. notified Petitioner of his exclusion from participation in Medicare and Medicaid. I.G. Ex. 4.

17. 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.

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

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

20. The February 27, 1998 Relinquishment, which Petitioner entered into with the Agency, 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).

21. Petitioner surrendered his medical license during the pendency of a formal disciplinary proceeding before a State licensing authority, within the scope of section 1128(b)(4)(B) of the Act.

22. The loss or surrender of Petitioner's license to practice medicine in the State of Florida, as a result of the February 27, 1998 Relinquishment, bears on Petitioner's professional competence, professional performance, or financial integrity within the scope of section 1128(b)(4) of the Act.

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

24. 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.

25. 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.

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

PETITIONER'S CONTENTIONS

Petitioner does not dispute that he surrendered or lost his medical license within the scope of section 1128(b)(4) of the Act. He does maintain, however, that such surrender or loss did not relate to his professional competence, professional performance, or financial integrity. Specifically he maintains that he has a medical "impairment," and that he never acted incompetently, unprofessionally, or fraudulently in his medical practice. Rather, he states that he voluntarily withdrew from practice upon becoming ill, thus obviating any risk to patients.

Petitioner also challenges other aspects of the proceeding. He asserts that he was never notified prior to his receipt of the exclusion letter that the I.G. would take action against him. He contends that he should have been allowed to challenge such action before the exclusion notice was issued. He also maintains that the Americans with Disabilities Act precludes his exclusion. Further, he maintains that the allegations in the Florida proceeding were unsubstantiated. Finally, he maintains that the period of exclusion is unreasonable, as under the Final Order it is unlikely he will obtain a license from the State of Florida and he is in the process of obtaining a medical license in Ohio, where he presently resides.

DISCUSSION

In my consideration, I find that Petitioner lost his license within the scope of section 1128(b)(4)(A) of the Act when he voluntarily relinquished his license to the Agency. An appellate panel of the Departmental Appeals Board (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 No. 1534 (1995). In Cooper, the petitioner signed a Consent Order surrendering his medical license prior to formal disciplinary hearings. The DAB concluded that the Administrative Law Judge's (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 "[p]etitioner 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 n.1.

In Petitioner's case, an Administrative Complaint was filed by the Agency seeking the suspension or revocation of Petitioner's medical license as a result of his mental illness, chemical dependence, and fraudulent failure to disclose such illnesses in his application for a medical license. I.G. Ex. 1. When Petitioner was confronted with these allegations, he entered into a Relinquishment in which he voluntarily surrendered his license to practice medicine. I.G. Ex. 2. On May 6, 1998, the State of Florida Board of Medicine entered and effected a Final Order accepting Petitioner's relinquishment. I.G. Ex. 3. Like Dr. Cooper, Petitioner surrendered his license prior to formal disciplinary hearings and once he signed the Relinquishment, Petitioner's license was "otherwise lost" within the scope of section 1128(b)(4)(A) of the Act.

I also find that Petitioner surrendered his medical license within the scope of section 1128(b)(4)(B) of the Act due to the likelihood that a disciplinary proceeding would have been initiated by the Agency in which the suspension or revocation of his license to practice medicine would have been sought. It has been found that the I.G. has authority to exclude an individual from participation in Medicare and Medicaid if that individual surrenders his license to provide health care pending a disciplinary hearing. Dillard P. Enright, DAB CR138 (1991); John W. Foderick, M.D., DAB CR43 (1989). The I.G. has authority to indefinitely exclude a provider who surrenders his or her license pursuant to a settlement agreement. Richard L. Pflepsen, D.C., DAB CR132 (1991). It has also been held that surrender of licenses to informal committees constitutes surrender while a formal disciplinary proceeding is pending. Chester A. Bennett, M.D., DAB CR64 (1990). In Enright, the petitioner surrendered his nursing license to a Nursing Board before formal findings were made as to the allegations in a complaint filed against him. In that case, the ALJ found that the petitioner's license surrender at an informal meeting was a surrender while a formal disciplinary proceeding was pending. In the present case, had Petitioner not voluntarily relinquished his license to practice medicine in the State of Florida, he would have faced an administrative hearing seeking the revocation or suspension of his medical license.

Additionally, the Relinquishment signed by Petitioner stated that, "[w]hen relinquishments are offered to the Board of Medicine to avoid further administrative prosecution, this is considered to be disciplinary action against the Respondent's license to practice medicine in the State of Florida." I.G. Ex. 2.

In my review, I also conclude that Petitioner's loss or surrender of his medical license occurred for reasons bearing on his professional competence, professional performance, or financial integrity. The record reflects that Petitioner relinquished his medical license based on charges in the April 28, 1997 Administrative Complaint that he could no longer competently practice medicine due to his mental illness and substance dependence. In his Relinquishment, dated February 27, 1998, Petitioner agreed that he can reapply for a license only upon a showing to the PRN that he is no longer so impaired and can practice with skill and safety. I.G. Ex. 2. It has been determined that a substance abuse problem adversely impacts a person's professional competence and professional performance as those terms are used in section 1128(b)(4) of the Act. Charles Sutherland, D.O., DAB CR561 (1998); Mary E. Groten, DAB CR518 (1998). It has also been held that loss of a medical license based on a finding that a petitioner was unfit to practice medicine by virtue of mental illness is within the scope of section 1128(b)(4) of the Act. Michael D. Tempel, DAB CR266 (1993). The Relinquishment signed by Petitioner acknowledges his inability to practice medicine due to mental illness. I.G. Ex. 2.

In my review, I disagree with Petitioner's contention that exclusion is unfair in his case. Specifically, he contends that it is unfair to require that his exclusion remain in effect until he obtains a medical license in the State of Florida, as it is unlikely Florida would grant him such license and he is attempting to obtain a medical license in Ohio. Petitioner's argument is contrary to the statute. The I.G. has the authority to exclude Petitioner in this case because he surrendered or 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. Since Petitioner surrendered or otherwise lost his license to practice medicine in the State of Florida, 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 Florida is surrendered or lost. Petitioner is required to obtain from the Florida licensing authority the same type of license that he surrendered or lost before he can be considered for reinstatement as a participant in Medicare and Medicaid.

Although Petitioner contends that the length of his exclusion is not reasonable, it has been held under section 1128(c)(3)(E) of the Act that no issue of reasonableness exists where 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). 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.

I also find no merit in Petitioner's other contentions. He asserts that his exclusion violates his rights under the Americans with Disabilities Act, but I have no authority to entertain such a claim. He also asserts that he should have been afforded notice of the I.G.'s exclusion action prior to his receipt of the August 31,1999 exclusion letter. However, Petitioner has been afforded due process rights to challenge such exclusion in the present proceeding. Finally, Petitioner asserts that the Florida licensing proceeding was unfair and improper. Such contentions constitute a collateral attack on the actions of the State licensing authority. However, such collateral attacks on the actions of a State licensing authority are not permitted in the context of an exclusion proceeding under section 1128(b)(4) of the Act. 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)).

CONCLUSION

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



JUDGE
...TO TOP

Joseph K. Riotto

Administrative Law Judge

 

CASE | DECISION | JUDGE