SUBJECT:

Michael Pigott Koger, M.D.,

Petitioner,

The Inspector General

This case is before me pursuant to a request for hearing filed by Michael Pigott Koger, M.D. (Petitioner), on March 3, 2000, in accordance with section 1128(f) and 42 C.F.R. §§ 1001.2007, 1005.2 of the Social Security Act (Act).

By letter dated February 29, 2000, the Inspector General (I. G.) notified Petitioner that he was being excluded from participating in the Medicare, Medicaid, and all federal health care programs (Medicare and Medicaid) as defined in section 1128B(f) of the Act. That action, the I.G. informed Petitioner, was taken under section 1128(b)(4) of the Act, because his license to practice medicine or provide health care in the State of Georgia was suspended. Petitioner's exclusion is in effect as long as his license to practice medicine in Georgia remains revoked, suspended, or otherwise lost.

In an April 10, 2000 prehearing conference, the parties agreed that I could hear the case based on written arguments and documentary evidence and that an in-person hearing was not necessary. Petitioner appeared pro se and submitted a one page brief, without exhibits (P. Br.).

The I.G. submitted six proposed exhibits. These have been identified as I.G. Exs. 1 - 6. As noted, Petitioner submitted no exhibits. However, Petitioner did submit a letter dated June 7, 2000, which I accept as a reply brief (P. Reply). Petitioner submitted an attachment to that letter, which I have marked as P. Ex. 1. Neither party objected to the other parties' submissions. In the absence of objection, I am admitting I.G. Exs. 1 - 6 and P. Ex. 1 into evidence.

I am sustaining the I.G.'s determination to exclude Petitioner from participating in Medicare and Medicaid for a period coterminous with the suspension of his license to practice medicine or provide health care in the State of Georgia. I base my decision on the documentary evidence, the applicable law and regulations, and the arguments of the parties. I find that the State Medical Board of Georgia 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, the exclusion imposed by the I.G. is mandated by law.

1. Whether the I.G. had a basis upon which to exclude Petitioner from participating in Medicare and Medicaid programs.

2. Whether the exclusion imposed and directed against Petitioner by the I.G. is appropriate.

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.

Under section 1128(b) of the Act, the Secretary of Health and Human Services 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 "[f]ederal health care program" as "any plan or program that provides health 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).

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

1. Petitioner was licensed by the State of Georgia to practice medicine on June 11, 1985. I.G. Ex. 1.

2. Petitioner's licence to practice medicine in Georgia was suspended on January 8, 1998. I.G. Ex. 1, at 15.

3. On or about October 19, 1995, the Composite State Board of Medical Examiners of Georgia (Board) ordered Petitioner to submit to a mental/physical examination within seven days of the order and to consent to release his medical records to the Board. I.G. Ex. 2, at 2.

4. The Board's order was based on Petitioner having had his hospital privileges revoked by Northwest Georgia Regional Hospital because of signs of a psychiatric illness. I.G. Ex. 2, at 2.

5. The Board's order was also based on reports that alleged Petitioner had a preoccupation with the sexual histories of his young female patients and that he had attempted to establish inappropriate relationships with them. I.G. Ex. 1, at 9.

6. On October 27, 1999, the Maryland State Board of Quality Assurance suspended Petitioner's license to practice medicine in the State of Maryland, following the disciplinary action in Georgia. I.G. Ex. 1, at 5; I.G. Ex. 3.

7. On February 29, 2000, the I.G. notified Petitioner that he was being excluded from participating in the Medicare and Medicaid programs. I.G. Ex. 5.

8. Section 1128(b)(4)(A) of the Act, in pertinent part, authorizes the I.G. to exclude an individual from participating in Medicare and Medicaid programs when that individual's license has been revoked or suspended by any State licensing authority for reasons bearing on the individual's professional competence or professional performance.

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

10. The Board's order resulted in the suspension of Petitioner's medical license within the scope of section 1128(b)(4)(A) of the Act for reasons bearing on his professional competence or performance. I.G. Ex. 1, at 15.

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

12. 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. Act, section 1128(c)(3)(E).

13. 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.

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

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

Petitioner is a medical doctor who was licensed to practice medicine and provide health care in the State of Georgia. By letter dated February 29, 2000, 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. Petitioner was excluded because his license to practice medicine or provide health care in the State of Georgia was suspended for reasons bearing on his professional competence or professional performance.

Petitioner has not presented any evidence or argument disputing that he has lost his license to practice medicine, or that the basis for his exclusion was for reasons that did not bear on his professional competence or professional performance. Nor does Petitioner make any other arguments that relate to this case. The submissions that Petitioner made in this case include two letters dated May 8, 2000 (this is the document that I am considering as Petitioner's brief) and June 7, 2000 (this is the document that I am considering as Petitioner's reply). Neither letter contains an argument (other than what appears to be impermissible collateral attack on the State proceedings). They appear to be simply ad hominem attacks upon persons who are part of the medical establishment in Georgia whom he believes were involved in the Board's suspension of his license. The letter dated May 8, 2000 includes one paragraph which reads:

Dr. Thomas Muller, who is the superintendent of Northwest Georgia Regional Hospital, 1305 Redmond Circle, Rome, Georgia 30165, is a former drug user. So are Dr. Jackie Cox, Dr. Paul Earley, and Dr. David Cadenhead. The latter three are evaluators for the Georgia Medical Board's Impaired Physicians Program.

P. Br. The letter dated June 7, 2000 consists of two paragraphs which read:

In February of this year I wrote to Ms. Karen Mason, who is Executive Director of the Georgia Medical Board. Enclosed with the letter was the evaluations which the Board requested. The letter also requested that the Georgia Medical Board send me public records on Dr. Thomas Muller and on certain of the evaluators themselves. Enclosed is Ms. Sharon Cloud's response to my request for public records. It follows therefore that the Georgia Medical Board received the package that I sent with evaluations enclosed. Ms. Bowman's claim that the Board never received them is not true.

Dr. Louis A. Barton is a psychiatrist practicing at Northwest Georgia Regional Hospital, 1305 Redmond Circle, Rome, Georgia 30165. He was disciplined by the Georgia Medical Board.

P. Reply. Even if I considered that information to be credible, the information does not address the issues in this case.

The clear language of the statute is inescapable. The Secretary may exclude "[a]ny 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." Act, section 1128(b)(4)(A). The first requirement is that the entity's or individual's license to provide health care be revoked or suspended by any State licensing authority. The evidence presented by the I.G. establishes this fact, and Petitioner does not contest it. The pertinent part of the second requirement of the Act is that the suspension or revocation be for reasons bearing on professional competence or professional performance. Petitioner has not challenged this fact either. The evidence presented by the I.G. satisfies me that both requirements have been met.

It is clear from the evidence of record that Petitioner has had his license suspended. Accordingly, no further analysis is required on this point.

My analysis of the second requirement turns on the reasons the Board suspended the Petitioner's license. The question to be resolved is what are the reasons upon which the Board's decision was based. It is not the province of this tribunal to re-litigate the State proceedings. In this case, it is not disputed that the motivating reasons prompting action by the Georgia Board were Petitioner's mental health and behavior. I find that these reasons are among those contemplated by the regulations in specifying professional competency and professional performance as factors supporting an exclusion.

The Inspector General has cited Jerry D. Harrison, DAB No. 1365 (1992) for the proposition that the terms professional performance and professional competence include the ability to practice with skill, confidence and safety. I.G. Br. at 8. In Harrison an appellate panel of the Departmental Appeals Board (DAB) noted that the Administrative Law Judge (ALJ) had found that "Petitioner's mental illness affected his professional competence and performance." Harrison at 14. In that case, the Iowa licensing authority had investigated the petitioner, a dentist, based on findings of mental illness and the sexual abuse of boys who were patients in his practice.

The Board recited the ALJ's conclusion (also cited by the I.G. as indicated above) that:

[t]he terms "professional competence" and "professional performance" are not defined in section 1128(b)(4)(B). However, the plain meaning of the terms encompasses the ability to practice a licensed service with reasonable skill and safety. Petitioner's mental illness jeopardizes the well-being and safety of children who are his patients, and it impairs his ability to practice dentistry with reasonable skill and safety.

Harrison, at 14. Similarly, in this case I find that the nature of Petitioner's mental illness and the incidents of improper conduct with his young female patients, as found by the Board, are of the type that one can reasonably conclude would impair his ability to practice medicine with reasonable skill and safety. I agree that this type of impairment is included under the terms "professional competence" and "professional performance" as defined in section 1128(b)(4)(B) of the Act. As indicated above, the goal of my analysis is to reach a conclusion about only the nature of the proceeding to revoke or suspend a license to provide health care at the State level -- not to re-litigate the matter. Here, I find that the nature of those proceedings concerned professional competence and professional performance.

In view of the foregoing, I find that Petitioner had his license revoked for reasons bearing on his professional competence and professional performance. Consequently, the I.G. had a basis for excluding Petitioner.

2. The exclusion of Petitioner is appropriate.

As stated earlier, Petitioner has not made any arguments addressing why the exclusion imposed against him by the I.G. is wrong or excessive and the I.G. has established sufficient evidence in the record on both points. Nonetheless, in the interest of thoroughness, I briefly address the appropriateness of the term of the exclusion.

Section 1128(c)(3)(E) of the Act, which was contained in section 212 of the Health Insurance Portability and Accountability Act of 1996 (Pub. L. 104-191) and amended section 1128(c)(3) of the Act, reads as follows:

[i]n the case of an exclusion of an individual or entity under subsection (b)(4) or (b)(5), the period of the 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 the entity is excluded or suspended from a Federal or State health care program.

The plain language of this amendment makes it clear that the minimum length of the exclusion must be coterminous with the term of the revocation, suspension, or surrender of the State license. Inasmuch as Petitioner's license to practice medicine was permanently suspended in the State of Georgia, the Act requires that the period of exclusion from participation in Medicare and Medicaid will not be less than the period during which his license to practice medicine in Georgia was suspended. The coterminous exclusion imposed by the I.G. in this case, which is of indefinite length, is the mandated minimum period required by law. Thus, the indefinite exclusion from participation in the Medicare and Medicaid programs is authorized in light of the legal requirement that the I.G.'s imposed period of exclusion be coterminous with the State licensing authority's sanction period.

Therefore, Petitioner is required to obtain from the Georgia licensing authority the same type of license that he lost before he can be considered for reinstatement as a participant in the Medicare and Medicaid programs.

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 1128(c)(3)(E) of the Act.

Joseph K. Riotto

Administrative Law Judge