CASE | DECISION | JUDGE | FOOTNOTES

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


SUBJECT:

Jerold Morgan, D.O.,

Petitioner,

DATE: April 30, 2001
                                          
             - v -

 

The Inspector General

 

Docket No.C-01-289
Decision No. CR768
DECISION
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DECISION

I decide that the Inspector General (I.G.) should not have excluded Petitioner, Jerold Morgan, D.O., from participating in Medicare and other federally funded health care programs, pursuant to section 1128(b)(4) of the Social Security Act (Act).

I. Background

By letter dated August 31, 2000, the I.G. notified Petitioner that he was being excluded from participation in Medicare and other federally funded health care programs because his license to practice medicine in the State of Arizona was revoked for reasons bearing on his professional competence, professional performance, or financial integrity, pursuant to section 1128(b)(4) of the Act. Petitioner requested a hearing and the case was assigned to me. I held a prehearing conference by telephone at which the parties agreed that the case could be heard and decided based on written submissions. Both parties submitted briefs (I.G. or P. Br.) accompanied by documentary evidence. The I.G. filed four exhibits (I.G. Exs. 1 - 4) as part of her submission, and Petitioner filed four exhibits (P. Exs. 1 - 4) as part of his submission. In the absence of objection, I receive into evidence I.G. Exs. 1 - 4 and P. Exs. 1 - 4.

Petitioner was a licensed doctor of osteopathy in the State of Arizona. I.G. Ex. 3, at 1. On or about May 9, 1995, Petitioner was charged by the Maricopa County Attorney's office with kidnaping, aggravated assault, and sexual assault of a spouse. Id. at 2. On or about November 17, 1997, Petitioner entered a plea of guilty to one count of attempted aggravated assault and was sentenced to four years of probation and six months of incarceration. Id. Based on this conviction, the Arizona Board of Osteopathic Examiners in Medicine and Surgery (State Board) revoked Petitioner's license because Arizona law defines the commission of a felony, whether or not it involves moral turpitude, as unprofessional conduct justifying revocation. Id.; A.R.S. § 32-1854, subsection 2.

II. Issue

I held a telephone prehearing conference with the parties on February 1, 2001. During that conference, the parties agreed that the only issue for me to decide was whether the I.G. had a basis on which to exclude Petitioner based on the loss of his Arizona license to practice osteopathic medicine. Order and Schedule for Filing Briefs and Documentary Evidence (Order) dated February 2, 2001, at 2.

III. Findings of Fact and Conclusions of Law

I make findings of fact and conclusions of law (Findings) to support my decision in this case. I set forth each Finding below, in italics, as a separately numbered heading. I discuss each Finding in detail.

1. The I.G. waived her opportunity to contest the timeliness of Petitioner's hearing request.

The I.G. sent Petitioner a letter on August 31, 2000, notifying him of his exclusion from participation in federal health care programs. I.G. Ex. 1. The letter was sent to Petitioner's address in Arizona. Id. However, Petitioner had, by that time, moved to the State of Washington, lost contact with his attorney, and did not receive the notice. P. Br. at 4; I.G. Ex. 2. Petitioner learned of his exclusion in November 2000, when he received a National Practitioner Data Bank "Report of Adverse Action." Id. He immediately took steps to obtain a copy of the exclusion notice and filed his appeal on December 29, 2000. I.G. Ex. 2.

During the February 1, 2001 prehearing conference, Petitioner asserted that he did not receive a copy of the notice, likely because he relocated, and the I.G.'s attorney declared that the I.G. would not raise timeliness as an issue. On February 2, 2001, I issued the Order noted above. Among other matters, my Order incorporated the I.G.'s waiver of the timeliness issue:

The I.G. waived objection to the timeliness of Petitioner's hearing request. Thus, I will not be hearing any timeliness issue in this case and will proceed to hearing on the merits.

Order, at 1 - 2. My Order then goes on to define the "only issue" remaining before me: "whether the I.G. had a basis to exclude Petitioner based on the loss of his Arizona license to practice osteopathic medicine." Id. at 2.

Neither party objected to the contents of my Order. Nevertheless, on March 2, 2001, the I.G. filed a brief arguing that Petitioner's appeal should be dismissed as untimely. She does not acknowledge or explain the change in her position. For the reasons discussed below, I conclude that the I.G. is bound by my February 2, 2001 Order, and has therefore waived the timeliness issue.

Under the regulations governing these proceedings, following a prehearing conference, the administrative law judge (ALJ) issues an order setting forth the results of the conference, including the agreements made by the parties or ordered by the ALJ. 42 C.F.R. § 1005.6. I note that under 42 C.F.R. § 498.50, an ALJ settles an order after 10 days, and the Order is binding on all parties unless a party presents facts that, in the opinion of the ALJ, would make an agreement unreasonable or inequitable. Here, the I.G. did not object to the contents of my February 2 Order in a timely manner, and has not shown that any part of it is unreasonable or inequitable. My Order is binding, and the timeliness issue is not before me.(1)

2. The I.G. does not have a basis on which to exclude Petitioner based on the loss of his Arizona license, as the loss of his license does not relate to his professional competence or performance.

The Act authorizes the Secretary to exclude from participation in any federal health care program(2) an individual whose license to provide health care has been revoked or suspended for reasons bearing on the individual's professional competence, professional performance, or financial integrity. Act, section 1128(b)(4)(A). The I.G.'s implementing regulations reiterate the Act's grant of authority, and provide that the I.G. may exclude an individual whose license has been suspended or revoked for reasons "bearing on the individual's . . . professional competence, professional performance or financial integrity." 42 C.F.R. § 1001.501.

Both parties agree that the State Board revoked Petitioner's medical license following his conviction for attempted aggravated assault, a Class 4 felony under Arizona law. I.G. Ex. 3, at 2. The question before me is whether this conviction bears on Petitioner's professional competence, professional performance, or financial integrity.

The I.G.'s brief is particularly unhelpful to me in resolving this issue because it offers only the wholly unsupported conclusions that the Arizona statute on which Petitioner was convicted "clearly relates to professional competence and performance," and that the I.G. sanction "clearly falls within the rubric of the actions contemplated in section 1128(b)(4)(A) in that Petitioner's license was revoked for reasons bearing on his professional competence or performance." I.G. Br. at 8. But, the relationship between Petitioner's criminal conviction and his professional competence or performance is not so clear. His conduct towards his wife was egregious, as he is the first to admit, but such egregious conduct does not automatically relate to professional competence or performance. In the case of Andy E. Bailey, C.T., DAB CR47 (1989), aff'd, DAB No. 1131 (1990), the petitioner, although convicted of felony murder, was excluded because his license was revoked for professional reasons, such as his failure to fulfill continuing practice and education requirements. The ALJ in that case specifically rejected the I.G.'s contention that a conviction for felony murder automatically relates to an individual's professional competence or performance.

The Act does not establish, and the I.G. cites no other authority to establish, a per se rule that license revocation based on a felony conviction automatically relates to professional competence or performance, justifying the exclusion under section 1128(b)(4)(A). In fact, in drafting the regulations implementing section 1128(b)(4), the Secretary specifically rejected the suggestion of a per se rule, noting that Congress vested the Secretary with the discretion and the responsibility to determine the appropriateness of excluding individuals, stating that treating these exclusions as automatic would be inconsistent with that authority. 57 Fed. Reg. 3298, 3305 (1992). The Secretary also specifically declined to list factors to be considered in determining whether to impose an exclusion in section 1128(b)(4) cases, noting that the factors will vary depending on the unique circumstances of a particular case. Id.

Did Petitioner's conduct in any way put his patients at risk? I say no. Following an evidentiary hearing before a State ALJ prior to the State Board's decision regarding revocation of Petitioner's license, the State ALJ recommended against revocation of Petitioner's license. P. Ex. 2. The State ALJ found that Petitioner had assaulted his wife after discovering that she was either having an affair or contemplating having an affair (id. at 1 - 3), that Petitioner was ashamed of what he had done, and was filled with remorse and regret. Id. at 5. The ALJ found that Petitioner had never done anything like it before or since, and had acknowledged that his conduct was wrong. Id. The State ALJ noted the expert testimony of a psychiatric witness that Petitioner's actions toward his wife were a result of an "acute situational reaction, with behaviors that were not heretofore seen," and also noted the psychiatrist's report, which stated that, "[b]ecause of Dr. Morgan's past history without violence or harm to others and his long-standing gentle and generous nature, as well as his apparently sincere regrets of his misaction, the profile is one with a low likelihood of recurrence of potentially dangerous activities." Id. at 4. The ALJ noted the psychiatrist's opinion that future occurrences of this type were improbable because Petitioner had learned from his mistake and he had no condition that would impair his ability to practice medicine or have any effect on his clinical judgment or care of his patients. Id. at 4 - 5. The State ALJ concluded that the evidence before him did not show that Petitioner committed unprofessional conduct by violating Arizona law regarding the prohibition of conduct contrary to the recognized standards of ethics of the osteopathic medical profession or which prohibits any conduct or practice that endangers a patient's or the public's health or that may be expected to do so, as the assault had nothing to do with Petitioner's practice as a physician. Id. at 5. The State ALJ found Petitioner had committed unprofessional conduct under Arizona law solely by committing a felony. Id. at 6. Thus, the State ALJ found that because no evidence established that Petitioner posed a danger to the public, a large amount of mitigating evidence surrounded the incident for which he was convicted, and the uncontested testimony demonstrated Petitioner's good character, no disciplinary action was warranted. Id. at 6 - 7.

Despite the State ALJ's recommendation, however, the State Board revoked Petitioner's license. I.G. Ex. 3. However, the State Board's action was not taken because the State Board considered that Petitioner's conduct put his patients at risk. Rather, the State Board opined that, as a matter of Arizona law, any felony conviction is per se unprofessional conduct, subjecting the individual to license revocation. A.R.S. § 32-1854.(3) Id. In explaining the State Board's decision to a State Court Judge during Petitioner's appeal of his license revocation, counsel from the State Attorney General's Office explicitly denied that the State Board acted because it considered Petitioner's conduct detrimental to his patients:

THE COURT: [A]re you concerned that something bad might happen because of allowing the doctor to practice . . .?

MR.COUNTRYMAN: No, it's not the State's position or the Board's position. Their ruling was not that he was a danger to his patients, it's protecting public policy . . . . So it's not the danger to the public, it's the protection of the Board's position and authority and imposing its sanction and the appropriateness of the sanctions.

P. Ex. 4.

Thus, the State Board did not determine that Petitioner's conduct related to his practice of medicine. In the State of Arizona, as a matter of law, any felony conviction constitutes "unprofessional conduct" and mandates license revocation.

As discussed above, the Act contains no such per se rule, and I am not aware of any circumstance in which an exclusion has been upheld based on conduct as tangentially related to professional competence or performance as the conduct here. The cases of exclusion under section 1128(b)(4) generally fall into categories of substance abuse, financial irregularities, and patient abuse, none of which exist here. The I.G. cites cases that simply do not support its position. In Jim Earl Lewis, D.O., DAB CR616 (1999), the petitioner surrendered his license having been charged with unprofessional conduct, including inappropriately touching his female patients, charges that unquestionably involved his professional performance. In Jerry D. Harrison, D.D.S., DAB No. 1365 (1992), the petitioner surrendered his license rather that face a hearing on charges that he had sexually abused five children who were patients in his dental practice.

Petitioner in this case appears to be truly remorseful for his conduct, and nothing in the record suggests that he is anything other than a competent physician. While Petitioner's conduct with regard to his wife was egregious and justified his conviction, the record indicates that the circumstances surrounding his conviction were peculiar to his domestic situation and had no bearing on his professional life, including his professional competence or performance. I therefore conclude that his license revocation was for reasons that do not bear on his professional competence, professional performance, or financial integrity.

My decision here does not mean that loss of a medical license based on a conviction for domestic violence would not, in the proper context, be related to professional competence or performance and thus justify exclusion under section 1128(b)(4). I decide only that, under the narrow circumstances of this case, the I.G. did not establish that crucial link it asserted between the conviction and Petitioner's professional competence or performance. As the drafters of the regulations recognized, these matters are fact specific.

IV. Conclusion

For the reasons stated above, I reverse the I.G.'s determination and find that the I.G. did not have a basis to exclude Petitioner here, as the revocation of Petitioner's license did not relate to his professional competence, professional performance, or financial integrity.

JUDGE
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Carolyn Cozad Hughes

Administrative Law Judge

FOOTNOTES
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1. Nor am I convinced that the I.G. would prevail on this issue. Petitioner did not receive the notice, which was sent to his old address even though he had advised HCFA of his change of address. See P. Br. at 4; P. Ex. 3. I agree with the I.G. that I am required to dismiss an untimely hearing request. However, the time within which the request must be filed begins to run when a petitioner receives the notice of exclusion. In arguing that Petitioner here received his notice five days after its date of mailing, the I.G. cites to an incorrect section of the regulations, 42 C.F.R. § 1001.2001(a). That section governs the "notice of intent to exclude," not the exclusion letter itself. The appropriate section of the regulations, 42 C.F.R. § 1005.2(c), provides that, for the purposes of requesting a hearing before an administrative law judge, the date of receipt of the notice of exclusion is presumed to be five days after the date of such notice "unless there is a reasonable showing to the contrary." It appears that Petitioner would be able to make that showing.

2. The Act defines a "Federal health care program" in this context to mean

"(1) 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 (2) any State health care program, as defined in section 1128(h). Act, section 1128B(f); see Act, section 1128(b).

3. A.R.S. § 32-1854 defines "unprofessional conduct" as: "(2) Committing a felony, whether or not involving moral turpitude, or a misdemeanor involving moral turpitude. In either case conviction by any court of competent jurisdiction is conclusive evidence of the commission. (19) Any conduct or practice contrary to recognized standards of ethics of the osteopathic medical profession; to wit, American Osteopathic Association Code of Ethics, Section 13, 'A physician shall respect the law.' (40) Any conduct or practice that endangers a patient's or the public health or may reasonably be expected to do so."

CASE | DECISION | JUDGE | FOOTNOTES