SUBJECT:

Peter D. Barran, M.D.,

Petitioner,

The Inspector General

Introduction

Petitioner has not timely filed his request. However, Petitioner has raised what it terms a jurisdictional issue: that the I.G., and the United States Department of Health and Human Services did not have the authority to exclude Petitioner from federal programs because that authority is embodied in a law passed after the fact on which the exclusion is premised (a Commonwealth of Massachusetts administrative proceeding to suspend Petitioner's license to practice medicine). In essence, this is an argument that the I.G.'s action constitutes an impermissible retroactive application of the regulations. Although I decide that Petitioner is not entitled to a hearing because he did not timely file his request, I address the threshold issue of whether the I.G. impermissibly applied the regulations retroactively in this case.

By letter dated December 21, 1989, 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 1128(h) (42 U.S.C. 1320a-7(h)) of the Social Security Act (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 Commonwealth of Massachusetts was suspended. Petitioner's exclusion is in effect as long as his license to practice medicine in Massachusetts remains revoked, suspended, or otherwise lost.

In a September 11, 2000 prehearing conference, I ordered the parties to submit written arguments and documentary evidence. I further ordered that the parties submit affidavits with their written submissions in lieu of the testimony of witnesses at an in-person hearing.

Petitioner submitted his Brief - Memorandum on Behalf of Peter D. Barran, M.D. (P. Br.), with three proposed exhibits, identified by Petitioner as Exhibits A, B, and C (P. Exs. A, B, and C). The I.G. submitted The Inspector General's Motion for Summary Affirmance, the Inspector General's Brief in Support of Exclusion (I.G. Br.), and five proposed exhibits. These have been identified as I.G. Exs. 1 - 5. Neither party objected to the other parties' submissions. In the absence of objection, I am admitting I.G. Exs. 1 - 5 and P. Exs. A, B, and C into evidence.

I sustain 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 Massachusetts. I base my decision on the documentary evidence, the applicable law and regulations, and the arguments of the parties. I find that summary disposition is appropriate, the applicable regulations were not impermissibly applied retroactively, and that Petitioner failed to timely file his appeal. Therefore, I grant summary affirmance of the exclusion imposed.

The issues in this care are whether:

1. Summary affirmance is appropriate;

2. The I.G.'s action constituted the impermissible retroactive application of 1128(b)(4) of the Act; and

3. Petitioner's request for a hearing was timely filed.

1. Petitioner was licensed to practice medicine in the Commonwealth of Massachusetts. I.G. Ex. 2, at 1.

2. Petitioner was arrested, and on October 24, 1986 arraigned in the South Boston District Court for the murder of his roommate. Petitioner was committed to the Bridgewater State Hospital for evaluation of his competency to stand trial and his criminal responsibility. I.G. Ex. 2, at 2.

3. On October 28, 1986, the Commonwealth of Massachusetts, Board of Registration in Medicine (Board) issued an Order to Show Cause, charging Petitioner with conduct placing into question his competence to practice medicine; practicing medicine while the ability to practice is impaired by mental instability; conduct evidencing a lack of good moral character; and conduct which undermines confidence of the public in the integrity of the medical profession. I.G. Ex. 2, at 1.

4. The Board granted the motion by the Board's prosecuting attorney to summarily suspend Petitioner's license to practice medicine in Massachusetts. I.G. Ex. 3.

5. On February 18, 1987, the Board issued a Final Order on Summary Suspension (Final Order), which ordered that Petitioner's certificate of registration to practice medicine in Massachusetts be suspended pending a final decision on the merits of the case. I.G. Ex. 4.

6. The Board ordered Petitioner to surrender his license within 10 days of receipt of the Final Order. I.G. Ex. 4.

7. On September 5, 1988, the Board issued a Final Decision and Order concluding that Petitioner was guilty of practicing medicine while impaired by a mental instability, and Petitioner's license was suspended indefinitely. The Board reserved the right, upon Petitioner's future petition for reinstatement of his medical license, to require proof of his fitness to resume practicing medicine, and that granting such a petition would advance the public interest. The Board indicated that such a showing may entail a demonstration of freedom from mental health impairment and a presentation of evidence relating to the pending murder charge. I.G. Ex. 5, at 4-5.

8. On December 21, 1989, Petitioner was notified by the I.G. of his indefinite exclusion from participation in the federal health care programs. I.G. Ex. 1.

9. 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.

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

11. 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. 5.

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

13. 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).

14. 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.

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

16. The Secretary of DHHS has delegated to the I.G. the duty to determine and impose exclusions pursuant to section 1128(b)(4) of the Act.

17. Petitioner would have been entitled to a hearing if he had made a request for hearing within 60 days of his receipt of the I.G.'s notice of exclusion. 42 C.F.R. § 1005.2(c).

18. An excluded individual is presumed to have received a notice of exclusion that is delivered to the excluded individual's address within five days from the date of the notice of exclusion unless he can make a reasonable showing to the contrary. 42 C.F.R. § 1005.2(c).

19. Petitioner is presumed to have received the I.G.'s notice of exclusion on December 26, 1989.

20. Petitioner has made no showing to rebut the presumption that he received the notice of exclusion five days from the date of the notice of exclusion.

21. Petitioner did not make a request for hearing within 60 days of his receipt of the I.G.'s notice of exclusion and, therefore, is not entitled to a hearing in this case.

1. Summary affirmance is appropriate.

A threshold question in this case is whether summary disposition is appropriate. Summary disposition is appropriate where: either there are no disputed issues of material fact and the only questions that must be decided involve application of law to the undisputed facts; or, where the moving party must prevail as a matter of law even if all disputed facts are resolved in favor of the party against whom the motion is made. I have looked closely at the parties' arguments to decide whether there are disputed issues of material fact. There are no disputed material facts in this case. Essentially, the parties are relying on the same facts and are making legal arguments based on those facts. Additionally, because Petitioner's jurisdictional argument fails, as discussed below, I find that summary disposition is appropriate because Petitioner's request for a hearing was not timely filed. Therefore, I find that summary disposition is appropriate in this case.

2. The I.G.'s action does not constitute an impermissible retroactive application of 1128(b)(4) Of the Act.

Petitioner's sole argument is that the regulation does not apply to the Massachusetts administrative proceeding because the statute and corresponding regulation were enacted after the start of the Massachusetts proceeding against Petitioner. P. Br. at 1-2. While Petitioner refers to this as a jurisdictional argument, as I explained in the introduction, it amounts to an argument that the law was not in effect at the relevant time, and therefore it is being given impermissibly retroactive effect.⁽¹⁾ Petitioner argues that section 1128(b)(4) does not apply to him based on the language set out in Public Law 100-93, Section 15(a). Petitioner relies on the following language in Public Law 100-93, Section 15(a):

IN GENERAL -- Except as provided in subsections (b), (c), (d), and (e), the amendments made by this Act shall become effective at the end of the fourteen-day period [September 1, 1987] beginning on the date of the enactment of this Act and shall not apply to administrative proceedings commenced before the end of such period.

The amendments referred to in the public law are to section 1128 of the Act, and in this case, to section 1128(b)(4) of the Act.

Petitioner deduces from this language that:

The clear words of the statute provide that it became effective as to license suspension September 1, 19[87] and that it did not apply to administrative proceedings commenced prior thereto.

The documentary evidence submitted herein clearly establishes that the administrative proceeding in Dr. Barran's case was commenced October 28, 19[86]. As a consequence, [the] exclusion statute does not apply to Dr. Barran's case.

There is and has been no jurisdiction on the part of DHHS to take exclusion action. Lack of jurisdiction is a proper issue to be raised at any time.

P. Br. at 2.

The I.G. counters that:

The administrative proceedings to which the section refers are proceedings initiated by the Federal government prior to enactment of § 1128(b)(4), not to proceedings commenced at the state level before enactment, e.g., Petitioner's license suspension by the Board. The provision was intended to protect individuals from retroactive application of the new exclusion authority to an action the Federal government had already taken against an individual. Hence, Petitioner's argument that the exclusion should not apply to him does not hold any weight because the I.G. appropriately acted on the final action of the Board which occurred after the date of the enactment of the exclusion amendments.

I.G. Br. at 8 (emphasis in original).

The I.G. offers nothing in its brief to support its assertion that the text of the public law is referring to proceedings initiated by the federal government. In fact the text of Public Law 100-93 does not specifically differentiate between state level administrative proceedings and federal proceedings. However, there is support for the I.G.'s contention in the law, and I agree with the I.G.'s position.

A case on point is Harman v. Sullivan, 720 F.Supp. 60 (E.D.Pa.1989). In that case, the Federal District Court was faced with interpreting the same language at issue in the instant case. The court held that the Secretary of Health and Human Services did not give improper retroactive effect to the statute authorizing exclusion of a physician from Medicare based on the imposition of sanctions under a state health care program, where the federal statute by its terms became effective only as to administrative proceedings commenced after a certain date; even though state proceedings eventually resulting in the exclusion of the physician from the state Medicaid program had begun before that date. The court concluded that the administrative proceedings referred to in the statute was the separate federal proceedings, not the state proceedings.

As noted above, Public Law 100-93 does set the effective date as September 1, 1987, and it does say that the Act shall not apply to administrative proceedings commenced prior to that date. However, looking at the broader context, the purposes of Public Law 100-93 as stated in the introduction to the law is to amend Titles XI, XVIII, and XIX of the Act, to protect beneficiaries under the health care programs of that Act from unfit health care practitioners, and otherwise to improve the antifraud provisions relating to those programs.

The court's view in Harman is that within the context of a statute governing Medicare exclusion proceedings, administrative proceedings mean Medicare administrative proceedings. Harman at 62. I agree. The court, however, in a footnote, added its belief that the legislative history of section 15(a) of Public law 100-93 sheds little light on how Congress intended the phrase "administrative proceedings" to be construed. Harman at 62. In my determination, the legislative history does support the "Medicare administrative proceedings" reading of this law. Specifically, where the Senate report, expounding the purpose behind the effective dates section of the public law, says:

In general, the amendments made by this bill would become effective 15 days after enactment. [September 1, 1987]. They would not apply to exclusion or civil monetary penalty proceedings that are commenced before this effective date.

(Emphasis added) S. Rep. No. 109, 100^th Cong., 1^st Sess. 27, reprinted in 1987 U.S. Code Cong. & Admin. News 682, 708. This choice of words in the legislative history buttresses the conclusion that Congress meant to exclude federal administrative proceedings commenced before September 1, 1987 (e.g., I.G. exclusion proceedings or the imposition of civil monetary penalties), but not, judging by their omission from mention in the history, state administrative proceedings (e.g., a medical board's action to revoke a license to practice medicine).

In this case it is not disputed that the administrative proceeding in Massachusetts was begun October 5, 1986 and the regulation became effective September 1, 1987. However, the federal administrative proceeding, i.e., the I.G.'s action to exclude Petitioner, and this appeal did not commence until, at the earliest, the conclusion of the Massachusetts proceeding on or about September 5, 1988 (the date of the Board's final order). As indicated in Harman, the state and federal administrative proceedings are not one proceeding, but are separate. Harman at 60-62.

Accordingly, I find that in this case the I.G. had jurisdiction, and did not impermissibly apply the regulation retroactively, to exclude Petitioner pursuant to 1128(b)(4) of the Act, because the federal administrative proceeding, resulting in the exclusion was not commenced before September 1, 1987 - the effective date of the statute.

3. Petitioner's request for a hearing was not timely filed.

Petitioner filed his request for a hearing on August 7, 2000, over 10 years after receiving the notice of exclusion in 1989. Since I have established that the regulations were not impermissibly applied, and that the I.G. had jurisdiction to impose the exclusion in this matter, all of the regulations that normally apply to these matters are in effect. Therefore, it is appropriate to consider the I.G.'s motion asserting that Petitioner's request for a hearing was untimely filed. Petitioner has made no argument regarding the timeliness issue other than the tacit observation that timeliness does not matter in this case because "[l]ack of jurisdiction is a proper issue to be raised at any time." P. Br. at 2.

As discussed above, the I.G. excluded Petitioner pursuant to section 1128(b)(4) of the Act. An individual who is excluded under any of the subsections of section 1128 of the Act has a right to reasonable notice, an opportunity for an administrative hearing to challenge the I.G.'s authority to impose the exclusion and to challenge the reasonableness of the length of the exclusion. Act, section 1128(f); see Act, section 205(b). However, the right to a hearing is conditioned on the excluded individual making a timely request for a hearing after receiving notice of the I.G.'s exclusion determination. An excluded individual or entity who fails to timely request a hearing loses the right to a hearing. The request for a hearing must be filed within 60 days after the I.G.'s exclusion notice is received by the excluded individual. 42 C.F.R. § 1005.2(c). The date of receipt of the notice letter will be presumed to be five days after the date of the notice letter unless there is a reasonable showing to the contrary. Id.

In this case, notice is deemed to have been received by Petitioner December 26, 1989. The request for a hearing was not filed until August 7, 2000, over 10 years after the notice from the I.G. Therefore, I find that Petitioner has not filed a timely request for a hearing.

I conclude that Petitioner did not timely request a hearing, and therefore, is not entitled to a hearing. The regulations provide that an administrative law judge will dismiss a request for a hearing where the request is not made timely. 42 C.F.R. § 1005.2(e)(1). Therefore, I dismiss Petitioner's request for a hearing, and the I.G.'s Motion for Summary Affirmance of the exclusion imposed is granted.

Joseph K. Riotto

Administrative Law Judge

1. Retroactive application is disfavored. See, e.g., Georgetown University Hosp. v. Bowen, 821 F2.d 750 (D.C. Cir. 1988) (holding that legislative rules must be prospective in application and agencies are not free to make rules retroactive to cure a "mere procedural defect"). However, other cases indicate that there is no prohibition on retroactive application. See Motion Picture Ass'n. of Am. v. Oman, 969 F2.d 1154 (D.C. Cir. 1992) (Congress must expressly confer retroactive rulemaking power). The presumption against retroactivity may be overcome by language in a statute explicitly directing retroactive effect. In the absence of such language I conclude that the statute may not be applied retroactively.