SUBJECT:

Marcos U. Ramos, M.D.,

Petitioner,

The Inspector General

DECISION

This case is before me pursuant to a request for hearing filed by Marcos U. Ramos, M.D. (Petitioner) on May 27, 2000.

By letter dated March 31, 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 Social Security Act (Act). The I.G. informed Petitioner that this action was taken, under section 1128(b)(4) of the Act, because his license to practice medicine or provide health care in the State of Massachusetts was suspended. The I.G. explained that Petitioner's exclusion is in effect as long as his license to practice medicine in Massachusetts remains revoked, suspended, or otherwise lost.

Before this case was assigned to me it was assigned to Administrative Law Judge Joseph K. Riotto. He discussed the case with the parties in a September 27, 2000 prehearing conference, which he subsequently memorialized in an Order dated October 16, 2000. As recounted in Judge Riotto's Order, Petitioner indicated during the prehearing conference that he was uncertain of how he wished to proceed with the case and that there was litigation pending in Massachusetts which might impact the outcome of this case. In light of this information, Judge Riotto stayed the case until November 27, 2000. By that date, in accordance with Judge Riotto's Order, Petitioner was to provide either the status of the Massachusetts litigation or request a conference to discuss moving the case forward. Instead, Petitioner filed its "Brief In Support To Request For Reinstatement As A Medicare Provider" (P. Br.). As Judge Riotto noted in an Order issued March 8, 2001, Petitioner indicated that he was proceeding pro se. Accordingly, Judge Riotto accepted Petitioner's brief and set forth a schedule to be followed for the remainder of the case. The I.G. filed its "Brief In Support of Exclusion" (I.G. Br.).

The I.G. submitted five proposed exhibits. These have been identified as I.G. Exs. 1 - 5. Petitioner submitted four proposed exhibits. These have been identified as P. Exs. A, B, C, and D. Neither party objected to the other party's submissions. In the absence of objection, I am admitting I.G. Exs. 1 - 5 and P. Exs. A - D 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 Massachusetts. I base my decision on the documentary evidence, the applicable law and regulations, and the arguments of the parties. I find that the Massachusetts Board of Registration in Medicine (MBRM) suspended Petitioner's license to practice medicine for reasons bearing on his professional competence and professional performance. Additionally, I find that the exclusion imposed by the I.G. must run concurrent with the remedy imposed by the MBRM, the State licensing authority, as mandated by law.

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

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).

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 for 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 measures set forth in the Act.

1. On February 26, 1976, Petitioner was licensed to practice medicine by the Commonwealth of Massachusetts. I.G. Ex. 1, at 2.

2. Petitioner's licence to practice medicine in Massachusetts was temporarily suspended by order of the MBRM on February 22, 1999. That order was sustained by a "Final Decision and Order on Summary Suspension" issued on September 22, 1999, which made the license suspension permanent. I.G. Exs. 1, 2, and 3.

3. The MBRM suspended Petitioner's license because it determined that Petitioner posed an immediate threat to the health, safety, and welfare of the public, because he had engaged in conduct which called into question his competence to practice medicine. I.G. Ex. 1.

4. The suspension was based on allegations that Petitioner engaged in sexual misconduct and sexual assault, and misrepresented information to the MBRM. I.G. Ex. 1.

5. By letter dated March 31, 2000, the I.G. notified Petitioner that he was being excluded from participating in the Medicare and Medicaid programs.

6. 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 the Medicare and Medicaid programs.

7. Section 1128(b)(4)(A) of the Act, in pertinent part, authorizes the I.G. to exclude an individual from participating in the 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.

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

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

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

11. 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).

I. 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 Commonwealth of Massachusetts. By letter dated March 31, 2000, the I.G. notified Petitioner that he was being excluded from participating in the Medicare and Medicaid programs pursuant to section 1128(b)(4) of the Act. Petitioner was excluded because his license to practice medicine or provide health care in Massachusetts 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. Instead, the arguments in Petitioner's brief are reducible to: (1) the facts underlying the MBRM decision are wrong; and (2) exclusion is unfair. Neither argument is based on fact or law which could result in a decision for Petitioner.

Petitioner argues that the allegations which formed the basis for the suspension of his license are false and, in many or all instances, were perpetrated as revenge by patients and plaintiff's lawyers due to Petitioner's "verticality" (which he appears to redefine as his unwillingness to participate in fraudulent injury cases). P. Br. at 3. Petitioner also insinuates that the MBRM decision to suspend his license was influenced by public, media and political pressure. P. Br. at 5. If true, this conspiracy to destroy his career is indeed impressive, given its longevity and the number of complaints involved; nonetheless, these arguments constitute collateral attacks on the decision of the MBRM and are not subject to my review.

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.

Alfonso J. Montano

Administrative Law Judge