Harris Michael Flug, Sr., DAB CR6564 (2024)

DECISION

Petitioner, Harris Michael Flug, Sr., was a licensed clinical social worker, practicing in the State of New York. The New York State Education Department charged him with professional misconduct. While the charges were pending, he voluntarily surrendered his license to practice social work. Pursuant to section 1128(b)(4) of the Social Security Act (Act), the Inspector General (IG) has excluded him from participating in Medicare, Medicaid, and all other federal health care programs until he regains his license. Petitioner now appeals the exclusion.

For the reasons set forth below, I find that Petitioner Flug surrendered his social work license while formal disciplinary proceedings were pending against him before the New York licensing authority. The licensing authority brought those proceedings against him for reasons bearing on his professional competence and performance. The IG therefore is authorized to exclude him from program participation, and I may not disturb the IG’s exercise of that authority.

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I. Background

In a letter dated June 28, 2024, the IG advised Petitioner Flug that he was excluded from participation in Medicare, Medicaid, and all federal health care programs because he had surrendered his license to provide health care as a licensed clinical social worker in the State of New York while a formal disciplinary proceeding, bearing on his professional competence, professional performance, or financial integrity, was pending before the state licensing authority. The letter explained that section 1128(b)(4) authorizes the exclusion. IG Ex. 1.

Petitioner Flug requested review.

The IG submitted its brief (IG Br.) and two exhibits (IG Exs. 1-2). In the absence of any objection, I admit into evidence IG Exs. 1-2.

Although directed to do so (and provided with a “short-form brief” to make the process easier), Petitioner declined to file a brief or any other documents. Order and Schedule for Filing Briefs and Documentary Evidence at 4 (¶ 5) (August 9, 2024). In the absence of a brief, I consider the arguments set forth in his hearing request. See Anil Hanuman, D.O., DAB No. 3080 at 12 (2022).

The IG indicates that this case may be decided without an in-person hearing. IG Br. at 5. Petitioner, obviously, has not commented. In any event, neither party proposes any witnesses or witness testimony, so an in-person hearing would serve no purpose. See Order and Schedule at 4 (¶ 7).

II. Discussion

Because Petitioner Flug surrendered his license to practice as a social worker while a formal disciplinary proceeding, bearing on his professional competence and professional performance, was pending, the IG may exclude him from participating in Medicare, Medicaid, and other federally funded health care programs.1

The Act authorizes the Secretary of Health and Human Services to exclude from program participation an individual who surrendered his license to provide health care “while a formal disciplinary proceeding was pending” before a state licensing authority, and the proceeding concerned the individual’s “professional competence, professional performance, or financial integrity.” Act § 1128(b)(4)(B); accord 42 C.F.R. § 1001.501.

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With the assistance of the State Board for Social Work, and supervised by the State Board of Regents, the New York State Education Department regulates the practice of clinical social work in the State of New York. N.Y. Educ. Law §§ 6504, 6506, 6507, 6508, 7703. The Department charged Petitioner with professional misconduct. Specifically, the Department charged that, between November 2021 and December 2021, Petitioner treated a patient with phone therapy sessions. Thereafter, he failed to maintain appropriate professional boundaries, left inappropriate voicemails, and sent to the patient “several unusual videos.” IG Ex. 2 at 9. While those charges were pending, Petitioner applied for permission to surrender his license. He explicitly did not contest the charges of professional misconduct. IG Ex. 2 at 7.

In January 2023, the Education Department and Board of Regents granted Petitioner permission to surrender his license. IG Ex. 2 at 2-4. The effective date of surrender was January 23, 2023. IG Ex. 2 at 2.

Petitioner maintains that, at the time he surrendered his license, he was ill and that he sent the inappropriate videos to his patient “accidentally”; he had intended to send them to a friend. He also argues that excluding him “would be very insane [and] unjust” because of his skills as a clinical social worker. Hearing Request (DAB E-file Dkt. C-24-592, # 1).

I note that in asking permission to surrender his license, Petitioner did not contest the charges of professional misconduct. IG Ex. 2 at 7. Moreover, because he surrendered his license while a formal disciplinary proceeding was pending for reasons bearing on his professional competence and performance, I have no discretion; I must follow the federal exclusion statute and regulations and sustain the exclusion. 42 C.F.R. § 1005.4(c)(5); Richard R. Jimenez, DAB No. 2986 at 5-6 (2020); Christy Nichols Frugia, DAB No. 2736 at 5 (2016) (rejecting petitioner’s attack on the state licensing board’s findings); see Marvin L. Gibbs, Jr., M.D., DAB No. 2279 at 8-10 (2009) (citing 42 C.F.R. § 1001.2007(d) and noting that the regulation prohibits collateral attacks on a state agency’s revocation or suspension of a license).

The statute requires that Petitioner Flug’s period of exclusion “shall not be less than the period during which [his] license . . . is . . . surrendered.” Act § 1128(c)(3)(E); see also 42 C.F.R. § 1001.501(b)(1).

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III. Conclusion

For the above reasons, I conclude that the IG properly excluded Petitioner Flug from participating in Medicare, Medicaid, and all other federal health care programs for so long as his license to practice social work is surrendered.