SUBJECT:

Ali S. Zadeh, M.D.,

Petitioner,

The Inspector General

DECISION

I sustain the Inspector General's (I.G.) determination to exclude Ali S. Zadeh, M.D., Petitioner, from participation in Medicare, Medicaid, and other federal health care programs for an indefinite period pursuant to section 1128(b)(4) of the Social Security Act (Act).

BACKGROUND

The Act authorizes the Secretary to exclude from participation in any federal health care program ⁽¹⁾ an individual whose license to provide health care has been revoked or suspended for reasons bearing on the individual's professional competence, professional performance, or financial integrity.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.

Petitioner is a physician who was licensed in the Commonwealth of Kentucky. I.G. Ex. 3. Following an administrative hearing, the State Board of Medical Licensure (Licensing Board) revoked his medical license. I.G. Exs. 3, 4. ⁽²⁾ Adopting without amendment the recommendation of the administrative hearing officer, the Licensing Board decided, among other findings, that Petitioner had conspired with another physician "to have [his patient] submit a false statement of facts" that was "dishonest, fraudulent, deceitful;" that he himself submitted a false affidavit; and that he "repeatedly and deliberately uttered untrue statements, in an effort to mislead and deceive the Board." I.G. Ex. 3, at 24-25.

By letter dated December 31, 2001, the I.G. notified Petitioner that he was being excluded, pursuant to section 1128(b)(4) of the Act, from participation in Medicare and other federally funded health care programs because his license to practice medicine in the Commonwealth of Kentucky had been revoked for reasons bearing on his professional competence, professional performance, or financial integrity. 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 five exhibits (I.G. Exs. 1 - 5) as part of her submission. Petitioner filed two exhibits (P. Exs. 1 - 2). In the absence of objection, I receive into evidence I.G. Exs. 1 - 5 and P. Exs. 1 - 2.

ISSUE

The parties agree that Petitioner's medical license has been revoked. The sole issue in dispute is whether the license revocation was for reasons related to his "professional competence, professional performance, or financial integrity."

PETITIONER'S ARGUMENTS

Petitioner attacks the evidence underlying the Licensing Board's decision, complains that the Licensing Board has been "out to get" him for years, and argues that no action on his part bears on his professional competence, professional performance, or financial integrity. P. Br. at 2.

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.

1. The I.G. may exclude Petitioner based on the loss of his Kentucky license, as the loss of his license bears on his professional performance.

Petitioner has a history of difficulties with the Licensing Board. In 1994, following his felony conviction for failure to pay child support, a hearing officer determined that the Licensing Board had a basis for taking disciplinary action against him. Apparently, before the Licensing Board acted on that recommendation, Petitioner was indicted on charges of conspiracy to grow, manufacture, and produce marijuana, so the Licensing Board amended its complaint to incorporate those new charges. I.G. Ex. 3 at 11. The drug charges were eventually dismissed, and Petitioner denies having any knowledge of that criminal activity. Nevertheless, on November 20, 1997, he entered into an agreement with the Licensing Board, effective for five years, which required that he: 1) fully comply with the provisions of a probationary order entered by the Circuit Court (presumably in his non-support case) and with the terms and conditions set by his probation officer; 2) fully comply with all terms and conditions set by any court order relating to the payment of his support obligation; and 3) not violate any provision of the Kentucky Medical Practice Act, KRS § 311.530 et seq.

Petitioner subsequently developed a personal and professional relationship with Dr. Michael Pravetz, a psychiatrist. Dr. Pravetz was having his own significant problems with the Licensing Board, which, in a complaint issued October 29, 1997, alleged that he "inappropriately and excessively" prescribed controlled substances to four of his patients, and that he "engaged in inappropriate sexual contact with four additional patients, including Patient C." I.G. Ex. 3, at 11. An administrative hearing was scheduled for February 3-5, 1998, at which Patient C was scheduled to testify.

In November 1997, Patient C began seeking medical treatment from Petitioner. After consulting Dr. Pravetz, Petitioner attempted to persuade Patient C to recant his accusations. Petitioner wrote out, in his own handwriting, a draft statement which said:

I [Patient C] write the following to clarify my statement about Dr. Pravetz. At the time I spoke with Kentucky Board investigator Doug Wilson I was under psychiatric meds but now I am in a sound mind at the present time and able to make and write justifiable comment about Dr. Pravetz.

He treated me at Three Rivers Hospital in Louisa in psychiatric ward. Dr. Pravetz did not caused [sic] any physical harm or worsening my psychiatric [sic] condition.

I.G. Ex. 3, at 13.

He presented the document to Patient C during a December 4, 1997 medical appointment, and instructed him to copy and sign it. But Patient C insisted that his allegations against Dr. Pravetz were true, and refused to copy and sign Petitioner's statement. Instead, he surreptitiously photocopied the handwritten draft, and returned the original to Petitioner, keeping the photocopy for himself.

Later, in his sworn deposition, Petitioner repeatedly denied ever having written a statement for Patient C, asserting "I told you previously there was no such letter, or piece of paper, or whatever you are talking about," and later characterizing the suggestion as "absolutely nonsense." See I.G. Ex. 3, at 16-19. However, Patient C had obviously provided the Licensing Board counsel with his photocopy of the document, and counsel confronted Petitioner:

Q. You recognize that, don't you?

A. Yes. He - I remember. He was telling me to write this for him to sign. Yes, I did write this.

Q. Okay. So you wrote that in your - this is your handwriting, right?

A. I remember now, yes. It is my handwriting.

I.G. Ex. 3, at 19-20.

Not surprisingly, the Licensing Board characterized Petitioner's testimony as "deliberately untruthful and deceptive." I.G. Ex. 3, at 20.

Moreover, when he was unable to persuade Patient C to recant, Petitioner drafted his own affidavit, stating that he had examined and treated Patient C, "most recently . . . on December 4, 1997." The affidavit continues:

[Patient C] told me he feels guilty because he has been influenced by Kentucky Medical Board Investigator Wilson ⁽³⁾ to make false statements about Dr. Pravetz. He specifically claimed that there was never any improper behavior, or sexual behavior, on the part of Dr. Pravetz in the course of his treatment.

He told me that during his psychiatric hospitalization, Dr. Pravetz never physically harmed him and Dr. Pravetz never made his psychiatric condition worse.

[Patient C] claimed that he knows that Dr. Pravetz is a good doctor and he knows that he has helped many other patients, and he wished to clear this matter up. At the time he spoke to Investigator Wilson, he admitted to be [sic] under many psychiatric medications and now is not taking any minor or major tranquilizers. He also remembers suffering from auditory and visual hallucinations at the time Wilson spoke to him.

I.G. Ex. 3, at 14-15.

The Licensing Board concluded that Petitioner's affidavit was completely false. Patient C had not made any of the statements Petitioner attributed to him. I.G. Ex. 3, at 15-16.

The Licensing Board also concluded that Petitioner acted in furtherance of a conspiracy with Dr. Pravetz to tamper with the Board's witness, and to submit false evidence. ⁽⁴⁾ I.G. Ex. 3, at 21, 24. In harsh language, the Licensing Board found nothing to mitigate Petitioner's conduct, and characterized Petitioner as unfit and unworthy to remain a member of the medical profession. I.G. Ex. 3, at 26.

Petitioner takes issue with the Licensing Board's findings, attacking Patient C's credibility, as well as with the Licensing Board's motives, suggesting "retribution" for his having stood up to them. P. Brief at 2. Where, as here, the exclusion is based on the existence of a determination made by another governmental agency (such as this license revocation), the basis for the underlying determination is not reviewable. 42 C.F.R. § 1001.2007(d). Roy Cosby Stark, DAB No. 1746 (2000). I am required to determine the reasons for the license revocation, but not whether the Licensing Board's reasoning is valid. Id. I therefore accept the Licensing Board's findings.

Petitioner also argues that giving false testimony, "in an attempt to aid another physician who was under assault from the Kentucky Medical Licensure Board, does not reflect on [Petitioner's] ability to provide professional assistance and aid to patients." P. Br. at 2.

In rejecting his claim, I note that this is not a close question. While the Licensing Board, understandably emphasized Petitioner's conduct in undermining its processes, I am not required to decide here whether a physician's misstatements to a licensing board necessarily bears on his professional performance irrespective of whether those misstatements relate to patient care. Here, Petitioner used his position as a treating physician to manipulate a mentally fragile patient. When that effort failed, he lied in order to undermine the patient's legitimate complaint against another physician. I find such conduct squarely within the ambit of professional performance. The I.G. justifiably excluded Petitioner. ⁽⁵⁾

Because I find that Petitioner's medical license was revoked for reasons bearing on his professional performance, I must sustain the exclusion.

2. The exclusion period may not be less than the period during which Petitioner's medical license is revoked.

For a person excluded under section 1128(b)(4), the statute also requires that the period of exclusion shall not be less than the period during which the individual's or entity's license is revoked. Act section 1128(b)(4). I therefore have no authority to shorten the length of the exclusion period.

CONCLUSION

For the reasons stated above, I conclude that the revocation of Petitioner's medical license related to his professional performance. I therefore affirm the I.G.'s determination and find that the I.G. had a basis to exclude Petitioner from participation in Medicare, Medicaid, and other federal health care programs for an indefinite period pursuant to section 1128(b)(4) of the Act.

Carolyn Cozad Hughes

Administrative Law Judge

1. 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).

2. The Licensing Board initially issued its Order of Revocation on March 7, 2000, (I.G. Ex. 3 at 1-3) but a Kentucky Circuit Court issued a temporary restraining order to prevent the revocation pending court review. I.G. Ex. 5. On May 9, 2001, the court issued an opinion and order affirming the Licensing Board's decision, and on May 16, 2001, the Licensing Board issued its Amended Order of Revocation. I.G. Ex. 4.

3. The Licensing Board also found that Petitioner bears a grudge against Licensing Board Investigator Wilson, stemming from Wilson's earlier investigations of Petitioner. Petitioner's submissions to this tribunal confirm that finding. See P. Ex. 1 at 3-4, 13; P. Ex. 2, at 3-4, 7.

4. This was not Dr. Pravetz's only effort to tamper with witnesses. The Licensing Board's decision cites findings from Dr. Pravetz's disciplinary action that establish his witness-tampering efforts. Among other tactics, he would supply controlled substances to Patient F, a recovering alcoholic and drug addict, in exchange for Patient F's swearing to false testimony. See I.G. Ex. 3 at 22-23.

5. Exclusions are imposed to protect health care programs from those who have demonstrated themselves to be untrustworthy and a threat to the integrity of federal health care programs. See Manocchio v. Kusserow, 961 F.2d 1539 (11^th Cir. 1992); Douglas Schram, R. Ph., DAB No. 838 (1992). As a judge, I am regularly called upon to assess witness credibility. It has been my experience that in general, an individual is found not credible because human memory is unreliable or because he/she genuinely views the issues in a contrary light. Rarely does evidence establish that a witness has told a deliberate and bare-faced lie. Here, Petitioner's obvious lies, his continuing refusal to accept responsibility for his misdeeds, and his total lack of remorse all raise significant concerns about his trustworthiness. Absent some dramatic transformation, I would consider his participation at any time a serious threat to the integrity of federal healthcare programs.