Robert L. Alexander, M.D., DAB No. 1424 (1993)

Department of Health and Human Services

DEPARTMENTAL APPEALS BOARD

Appellate Division

In the Case of:
Robert L. Alexander, M.D.,
Petitioner,
- v. -
The Inspector General.

DATE: July 19, 1993
Docket No. C-255
Decision No. 1424


     FINAL DECISION ON REVIEW OF ADMINISTRATIVE LAW JUDGE
  DECISION


Robert L. Alexander, M.D. (Petitioner) appealed a December 8, 1992
decision by Administrative Law Judge (ALJ) Charles E. Stratton.  See
Robert L. Alexander, M.D., DAB CR244 (1992) (ALJ Decision).  There the
ALJ affirmed the Inspector General's (I.G.'s) determination to impose
and direct an exclusion against Petitioner under section 1128(b)(3) of
the Social Security Act (Act).  Originally, based on Petitioner's
conviction of a criminal offense related to a controlled substance, the
I.G. proposed to exclude Petitioner from participation in Medicare and
State health care programs for a period of 15 years. 1/  However, the
ALJ reduced the period of exclusion to 10 years.

The I.G.'s response to Petitioner's exceptions raised exceptions of his
own.  The I.G. took exception to the ALJ's decision to reduce the length
of the exclusion. 2/  We decline to review the I.G.'s exceptions. 3/

Petitioner, who represented himself before the Board, presented his
exceptions to the ALJ Decision orally. 4/  Petitioner did not file
exceptions to specific Findings of Fact and Conclusions of Law (FFCLs)
in the ALJ Decision.  Rather, he offered a broad-based argument
regarding why his exclusion, even for a period of 10 years, was wrong.
Generally, Petitioner asserted that a 10-year exclusion was excessive
because of his value to the community and his remorse for his past
transgressions.  In addition, he asserted that the period of any
exclusion imposed against him should be coterminous with the length of
time his license to practice medicine is suspended in the State of
Michigan.

Petitioner's general assertions were fully and correctly considered by
the ALJ and we need not discuss them further. However, Petitioner raised
two issues which we address here.  Petitioner asserted that:  1) the
I.G.'s prosecution of him was racially motivated; and 2) the ALJ did not
consider all the evidence which favored Petitioner so that his decision
that Petitioner should be excluded for 10 years was arbitrary and
capricious.

As explained more fully below, we find no evidence of racial bias in the
I.G.'s prosecution of Petitioner.  Additionally, we find that the ALJ's
decision that Petitioner should be excluded for 10 years was supported
by substantial evidence in the record.  Accordingly, we affirm the ALJ
Decision in its entirety.

 

 

 

Background

The ALJ Decision excluding Petitioner from participation in Medicare and
Medicaid for a period of 10 years was based on the following FFCLs:

1.  I reaffirm each and every prehearing ruling and FFCL. 5/

2.  This proceeding is governed by section 1128 and especially
subsection 1128(b)(3) of the Act.

3.  The regulations concerning time limitations for filing appeals of
exclusion determinations (to be codified at 42 C.F.R. . 1005.2(c),
published at 57 Fed. Reg. 3298, 3350 on Jan. 29, 1992), were not
intended to apply retroactively to appeals of I.G. exclusion
determinations that were pending before ALJs at the time the regulations
were published.

4.  The regulations concerning permissive exclusion proceedings brought
under section 1128(b)(3) of the Act (to be codified at 42 C.F.R. Part
1001, published at 57 Fed. Reg. 3298 et seq. on Jan. 29, 1992) were not
intended to apply retroactively to proceedings which began before the
regulations were published.

5.  Petitioner's hearing request, filed June 12, 1990, was not timely
filed.

6.  According to applicable regulations, "good cause" occurs where
unusual or unavoidable factors beyond a party's control prevent him from
filing in a timely manner.  Cf. 20 C.F.R. . 404.911.

7.  Petitioner has shown "good cause" for submitting a late request for
a hearing based on the cumulative circumstances of his medical
condition, his incarceration, and his pro se and in forma pauperis
status at the time he received the Notice.

8.  Petitioner is granted an extension of time to file his hearing
request, and the request for a hearing is granted.  The I.G.'s Motion to
Dismiss is denied.

9.  Petitioner, Robert L. Alexander, M.D., was licensed by the State of
Michigan to practice medicine.  In 1982, he worked as a resident at
Providence Hospital in Detroit, Michigan.

10.  Petitioner was convicted of a criminal offense within the meaning
of sections 1128(i) and 1128(b)(3) of the Act.

11.  The I.G. had authority to exclude Petitioner from participation in
the Medicare and Medicaid programs pursuant to the permissive exclusion
provision of section 1128(b)(3) of the Act.

12.  The remedial purpose of section 1128 of the Act is to protect
federally financed health care programs and their beneficiaries and
recipients from providers who have demonstrated by their conduct that
they cannot be trusted to handle program funds or treat beneficiaries
and recipients.

13.  The serious nature of Petitioner's violations is reflected in the
fact that they involve a criminal conviction on one count of conspiracy
to distribute eight controlled substances and eleven counts of
distributing or aiding and abetting the distribution of four of those
controlled substances.

14.  It is an aggravating factor that Petitioner was sentenced to
several concurrent four-year terms of imprisonment, fined $25,000, and
paroled on a three-year special parole term.

15.  It is an aggravating factor that the Michigan Board revoked
Petitioner's license to practice medicine and imposed a $50,000 fine
which must be paid before Petitioner can apply for reinstatement of his
license.

16.  An exclusion is needed in this case to satisfy the remedial
purposes of the Act.

17.  It is a neutral factor that Petitioner's crimes were not directly
related to the Medicare or Medicaid programs.

18.  Petitioner suffers from a medical condition, a chronic bipolar
disorder, which manifests itself with symptoms of manic depression.

19.  Petitioner has received continuous treatment for his disorder since
he entered prison in 1989, and his prognosis is fair to good if he
continues to receive medication and therapy.

20.  Petitioner has been involved in community volunteer services since
his release from prison and has complied with the terms of his parole.

21.  Petitioner acknowledges his actions and demonstrates remorse for
them.

22.  In light of the remedial purpose of section 1128(b)(3) and the
progress Petitioner has made toward rehabilitation, a 15-year exclusion
is unreasonable and excessive.

23.  Under the circumstances of this case, the remedial considerations
of the Act will be served by a ten-year exclusion.

ALJ Decision at 5-7 (citations omitted).

Analysis

I.  There is no evidence to show that the I.G.'s prosecution of
Petitioner was racially motivated.

Based on our review of the record, it is evident that Petitioner raised
the issue of racial bias by the I.G. for the first time on appeal to
this panel.  Generally, we "will not consider any issue . . . that could
have been raised before the ALJ but was not."  See 42 C.F.R. .
1005.21(e).  While we thus would be justified in simply refusing
outright to consider Petitioner's assertion, the gravity of the charge
compels us to address the issue, albeit briefly.

In his appeal to the Board, Petitioner contended that as a "black man"
he felt that counsel for the I.G. had exhibited a "personal" and racial
bias against him in his prosecution of this case.  Tr. at 9 and 28-29.
Before the ALJ, Petitioner had asserted that he would prove that counsel
engaged in "unethical and unprofessional conduct towards me and my
family, . . . and . . . immoral behavior unbecoming an Attorney on the
telephone."  Petitioner's letter to the ALJ (July 28, 1992) (emphasis in
original).  However, Petitioner made no apparent effort to substantiate
his charges.  Before this panel, Petitioner alleged that counsel had
referred to him as a "dope dealer" and "dope pusher."  Tr. at 28.
Counsel for the I.G. denied "harassing" the Petitioner and noted that
while he prosecuted this case strongly, he had not done so on the "basis
of race or any other improper manner."  Tr. at 51.  Counsel indicated
that he could not recall having referred to Petitioner in inflammatory
terms, such as a dope dealer or a dope pusher, although he admitted that
it was possible.  Tr. at 53-54.

Allegations of racial bias in the Government's prosecution of a case
(indeed, in any Government action) are serious and should not be
dismissed lightly.  By the same token, however, the potential harm to a
party charged with bias in the prosecution of a matter for the
Government demands that charges of racial bias have a substantive basis.
Here, it is clear that there is no substance to Petitioner's charges.
First, it is readily apparent that the statements to which Petitioner
alludes must have occurred, if at all, in the proceedings before the
ALJ.  Yet Petitioner did not raise charges of racial bias there.  While
Petitioner did allege unethical, unprofessional and immoral conduct by
counsel for the I.G. in his letter to the ALJ, he did no more than
suggest that such actions occurred.  He offered no evidence to support
his claim either before the ALJ or this Panel.

Even if there were evidence to support Petitioner's claims that he was
referred to as a dope dealer or a dope pusher, that language does not
demonstrate racial bias by counsel.  At worst, it is a crude
characterization of Petitioner's status as an individual convicted on
charges related to the distribution of controlled substances.  The
manner in which counsel may have characterized Petitioner does not
change the basis for his exclusion.  Petitioner was convicted of two
criminal offenses related to controlled substances.  The evidence in the
record supports a conclusion that Petitioner's conviction, not his race,
served as the basis for this exclusion.  See Letter to Petitioner
(February 21, 1990) I.G. Exhibit (Ex.) 1 (before the ALJ) and section
1128(b)(3) of the Act.  Here, the crude verbal characterizations alleged
by Petitioner, even if established, are racially neutral; they are not
evidence of racial bias.

Finally, Petitioner's argument that, because of his race, he was subject
to a more severe exclusion than other petitioners in similar
circumstances also lacks merit.  The 15-year exclusion initially
proposed by the I.G. is identical to those proposed by the I.G. in other
exclusion actions involving similar drug-related offenses.  See David
Cooper, R.Ph., DAB CR88 (1990); Bernard Lerner, M.D., DAB CR60 (1989).
6/  Petitioner also contended that his exclusion was extreme when
compared to a case such as Vincent Baratta, M.D., DAB 1172 (1990).  The
circumstances in Baratta do not support Petitioner's position.  Baratta
involved a three-year exclusion based on section 1128(b)(4)(A) of the
Act which, generally, permits exclusion of an individual whose license
to practice medicine has been revoked or suspended for reasons bearing
on professional competence, professional performance or financial
integrity. 7/  Moreover, Dr. Baratta's crime was related to a fraud he
perpetrated in connection with a study relative to a new drug.  Here,
Petitioner's exclusion was based on his conviction of a crime related to
a controlled substance, not the revocation of his license.  Dr.
Baratta's crime involved one instance of fraud in connection with a drug
study and, thus, since the fraud was detected timely, was arguably
victimless.  However, Petitioner's crime involved numerous acts and
clearly posed a more direct and viable threat to society in that he
provided controlled substances to individuals without ascertaining that
they had a valid medical basis for obtaining them.

Based on the preceding analysis we find no merit in Petitioner's
allegations that the I.G.'s actions in excluding him were racially
motivated.

II.  The ALJ's decision that Petitioner should be excluded for 10 years
was supported by substantial evidence in the record.

Petitioner asserted that the ALJ failed to consider certain evidence
submitted on his behalf.  Specifically, Petitioner cited  a deposition
from the Executive Director of a Boys and Girls Club at which Petitioner
volunteered (Petitioner Ex. 13); a deposition by the interim Medical
Director of the Physicians Recovery Network of the Michigan State
Medical Society which was monitoring Petitioner's efforts to deal with
his mental illness (Petitioner Ex. 14); a physician in Petitioner's
field (Obstetrics/Gynecology) who expressed a willingness to participate
in monitoring Petitioner, or to participate in what was described as a
reentry relationship, should Petitioner regain his medical license
(Petitioner Ex. 15); a deposition from Petitioner's psychiatrist
(Petitioner Ex. 16); and a letter from Petitioner's Probation Officer
(Petitioner Ex. 17).  Petitioner contended that, in light of the
cumulative effect of this evidence, the decision to exclude him for 10
years was arbitrary and capricious.  Rather, he argued, given his good
character, his sincere remorse and the need for hJDO.$.%..A...A.C0.

The ALJ determined that there was sufficient evidence of Petitioner's
untrustworthiness to support a 10-year exclusion.  ALJ Decision at 15.
However, Petitioner would have us conclude that because the ALJ did not
specifically cite and discuss every exhibit favorable to Petitioner, his
decision was arbitrary and capricious.  Petitioner's violations were
both serious and numerous.  As the ALJ noted, "the evidence of
Petitioner's culpability for his offenses is overwhelming."  Id. at 16.
The lack of citation to every one of Petitioner's exhibits in the FFCLs
simply does not mean that the ALJ did not consider these exhibits.

The ALJ was clearly aware of Petitioner's rehabilitation efforts.  He
cited the evidence in the record supplied by Petitioner's psychiatrist
and his parole officer, and he referred to Petitioner's church and
community involvement.  ALJ Decision at 21-22.  The ALJ found that
Petitioner had made "great steps toward rehabilitation."  Id. at 23.
The ALJ was convinced that Petitioner was indeed remorseful.  Id. at 24.

However, as he stated, the ALJ must balance mitigating factors against
any aggravating factors which may exist.  Petitioner's argument ignores
the reality of the situation in which he has placed himself as the
result of his conviction for criminal activities.  The ALJ found that
Petitioner's actions had the potential for serious harm to his patients.
Further, based on the evidence, the ALJ determined that Petitioner's
conduct was motivated by considerations of unlawful and personal gain.
ALJ Decision at 19.  The ALJ noted that Petitioner was a highly educated
individual who had acted recklessly in failing to take the medication
which would have controlled his disorder.  Id. at 23.  The ALJ
recognized that Petitioner posed a risk should he again cease taking his
medication and thus was concerned that sufficient time had not elapsed
to gauge Petitioner's trustworthiness.  Id. at 25.

The ALJ determination that Petitioner should be excluded for 10 years
was reasonable.  Petitioner argued that his exclusion should end when
his license is reinstated.  It is unclear when Petitioner will be
determined eligible to practice again in Michigan. 8/  Petitioner has
obviously made some efforts at rehabilitation.  However, those efforts
have occurred while Petitioner was not licensed to practice medicine.
No matter how well-adjusted he now claims to be, Petitioner has yet to
show the ability to function under the day-to-day pressures of a medical
practice without losing control of his illness.  Thus, we reject
Petitioner's argument that his exclusion should be coterminous with the
period for which his license is revoked.  The mere reinstatement of his
license would be insufficient to outweigh the ALJ's conclusion, based on
all the evidence in the record, that Petitioner was untrustworthy.

Medicare and Medicaid participants are entitled to functional and
trustworthy doctors.  In spite of his arguments to the contrary,
Petitioner has yet to show that, as a doctor, he is either functional or
trustworthy.  Consequently, we affirm the ALJ Decision excluding
Petitioner from participation in Medicare and Medicaid for a period of
10 years.

 

Conclusion

Based on the preceding analysis, we reject Petitioner's exceptions to
the ALJ Decision.  We affirm the ALJ Decision and affirm and adopt each
of the FFCLs in that decision.

 


     _________________________ Judith
     A. Ballard

 


     _________________________ Donald
     F. Garrett

 


     _________________________ M.
     Terry Johnson Presiding Board
     Member


1.     "State health care program" is defined in section 1128(h) of the
Act and includes the Medicaid program under Title XIX of the Act.
Unless the context indicates otherwise, we use the term "Medicaid" here
to refer to all programs listed in section 1128(h).

2.     The I.G. also asserted that Petitioner's exceptions were untimely
filed and thus should be rejected outright.  This argument has been
considered and rejected in a March 25, 1993 ruling.  Thus, we need not
address it further here.  See also Letter to Dr. Alexander (March 19,
1993).

3.     Petitioner requested an opportunity to respond to the I.G.'s
exceptions.  See Petitioner's Letter (June 16, 1993).  Since we decline
review of the I.G.'s exceptions, Petitioner's request is moot.

4.     The transcript of Petitioner's presentation is, in effect, his
brief.  We use the following form to cite the transcript:  Tr. at
(page).

5.     In his Amended Prehearing Order (April 17, 1992), based on
Petitioner's admissions, the ALJ concluded that Petitioner had been
convicted within the meaning of section 1128 of the Act of a crime
relating to the "distribution, prescription, or dispensing of a
controlled substance," within the meaning of section 1128(b)(3) of the
Act.  Id. at 3, . VI.

6.     Since it is not relevant, an individual's race is usually not
specifically noted in the course of proceedings before the ALJ or the
Board unless, for example, allegations such as those raised by
Petitioner here are made.  Counsel for the I.G. indicated that the
Lerner and Cooper decisions were prosecuted by his office.  He noted
that he had been "assured" by the attorneys involved in those cases that
both Lerner and Cooper were caucasian.  I.G. Brief at 4, nn.3-4.
Petitioner did not offer evidence to support his allegation of racial
bias.  Thus, we need not rely on counsel's assertions as to the race of
Lerner and Cooper.

7.     The I.G. sought to exclude Dr. Baratta for five years.  However,
the ALJ reduced the exclusion to three years.

8.     Before the Board, Petitioner repeatedly claimed that his
relicensure was imminent.  However, this has been a recurring theme
throughout the proceedings both before the ALJ and this