Anthony Lee Williams, DAB CR6574 (2024)

DECISION

Petitioner, Anthony Lee Williams, is excluded from participation in Medicare, Medicaid, and all other federal health care programs pursuant to section 1128(b)(4) of the Social Security Act (Act) (42 U.S.C. § 1320a-7(b)(4)) and 42 C.F.R. § 1001.501(a)(1),1 effective March 20, 2024.  Petitioner is excluded because his2 “licenses to provide health care as a chemical dependency professional and an associate licensed mental health counselor in the State of Washington” were suspended “for reasons bearing on [his] professional competence, professional performance, or financial integrity.”  Inspector General (IG) Exhibit (Ex.) 1 at 1.  There is a proper basis for the exclusion.  The Act requires Petitioner’s exclusion for not less than the period during which his state licenses

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to provide health care are revoked, suspended, or surrendered.3  Act § 1128(c)(3)(E) (42 U.S.C. § 1320a-7(c)(3)(E)); 42 C.F.R. § 1001.501(b).

I.    Background

The IG notified Petitioner by letter dated February 29, 2024, that he was excluded from participation in Medicare, Medicaid, and all federal health care programs pursuant to section 1128(b)(4) of the Act.  The letter advised Petitioner that the exclusion was based on the revocation, suspension, or loss for other reasons of his Washington licenses as a chemical dependency professional and an associate licensed mental health counselor while a formal disciplinary proceeding was pending for reasons related to his professional competence, professional performance, or financial integrity.  The letter further advised Petitioner that the exclusion would remain in effect until he was reinstated by the IG after he regained his licenses in Washington, or in limited circumstances in another state.  IG Ex. 1 at 1.

Petitioner filed a timely request for hearing (RFH) pursuant to 42 C.F.R. §§ 1001.2007(b) and 1005.2(c) on May 9, 2024.4  The case was assigned to me on May 24, 2024.  A prehearing conference was convened on June 11, 2024, the substance of which is memorialized in my order dated June 12, 2024.

The IG filed a motion for summary judgment, supporting brief, and IG Exs. 1 through 5 on July 5, 2024.  Petitioner did not object to my consideration of IG Exs. 1 through 5 and they are admitted as evidence.5

Petitioner filed Petitioner’s Exhibits (P. Exs.) 1 through 6 on August 13, 2024, P. Exs. 6 (amended) through 29 on August 19, 2024, P. Exs. 30 through 32 on August 22, 2024, P. Exs. 33 and 34 on September 9, 2024, and P. Ex. 35 on September 10, 2024.  P. Exs. 1, 3, 6, 6 (amended), 18, 30, 33, and 35 contain Petitioner’s arguments and they are collectively treated as his brief (P. Br.).

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The IG does not object to the admission and my consideration of Petitioner’s exhibits.  Pursuant to 42 C.F.R. § 1005.17(a), I am required to determine the admissibility of evidence and that duty is not dependent upon whether the IG objects to evidence.  I am required by 42 C.F.R. § 1005.17(c) to exclude irrelevant or immaterial evidence.  Although not binding in this forum, the Federal Rules of Evidence (Fed. R. Evid.) are instructive.  Fed. R. Evid. 401 provides:

Evidence is relevant if:

(a) it has any tendency to make a fact more or less probable than it would be without the evidence; and

(b) the fact is of consequence in determining the action.

Pursuant to 42 C.F.R. § 1001.501(b)(1):

Except as provided in paragraph (b)(2) of this section, an exclusion imposed in accordance with this section will not be for a period of time less than the period during which an individual’s or entity’s license is revoked, suspended, or otherwise not in effect as a result of, or in connection with, a State licensing agency action.

The exception in 42 C.F.R. § 1001.501(b)(2), which permits extending a period of exclusion based on the existence of certain aggravating factors, has no application in this case.  Therefore, 42 C.F.R. § 1001.501(b)(3), which permits consideration of certain mitigating factors if aggravating factors under 42 C.F.R. § 1001.501(b)(2) are considered, also has no application in this case.  The period of exclusion established by the regulation is mandatory and not subject to review or change by me.  The only issue that I may decide is whether the IG had a basis for excluding Petitioner.  42 C.F.R. § 1001.2007(a)(1)(i).

The documents Petitioner submitted show that he has been diligently pursuing rehabilitation, advancing his career goals, and working to be a good citizen.  However, none of the documents he submitted have any tendency to make it more or less probable that the IG had no basis for his exclusion or that he has met requirements to be reinstated.  Therefore, P. Exs. 1 through 35 are not relevant to the issue that I may decide and are not admitted as evidence.  But P. Exs. 1, 3, 6, 6 (amended), 18, 30, 33, and 35 are treated and considered as Petitioner’s brief.

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II.    Discussion

1. Issues

The Secretary of Health and Human Services (the Secretary) has by regulation limited my scope of review to two issues:

Whether there is a basis for the imposition of the exclusion; and

Whether the length of the exclusion is unreasonable.

42 C.F.R. § 1001.2007(a)(1).  However, pursuant to 42 C.F.R. § 1001.501(b)(1), the period of exclusion in this case is mandatory and not reviewable for reasonableness.

2. Applicable Law

Section 1128(f) of the Act (42 U.S.C. § 1320a-7(f)) provides Petitioner’s right to a hearing by an administrative law judge (ALJ) and judicial review of the final action of the Secretary.

Pursuant to section 1128(b)(4)(A) of the Act, the Secretary may exclude from participation in Medicare, Medicaid, and all federal health care programs, any individual whose license to provide health care is revoked or suspended by any state licensing authority for reasons bearing upon the individual’s professional competence, professional performance, or financial integrity.  42 C.F.R. § 1001.501(a)(1).

The standard of proof is a preponderance of the evidence.  42 C.F.R. § 1001.207(c).  Petitioner bears the burden of proof and persuasion on any affirmative defenses or mitigating factors, and the IG bears the burden on all other issues.  42 C.F.R. § 1005.15(b) and (c).

3. Analysis

My conclusions of law are in bold followed by my findings of fact and analysis.

3. Summary judgment is appropriate in this case.

Pursuant to section 1128(f) of the Act, a person subject to exclusion has a right to reasonable notice and an opportunity for a hearing.  The Secretary has provided by regulation that a sanctioned party has the right to a hearing before an ALJ, and both the sanctioned party and the IG have a right to participate in the hearing.  42 C.F.R. §§ 1005.2-.3.  Either or both parties may choose to waive appearance at an oral hearing

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and to submit only documentary evidence and written argument for my consideration.  42 C.F.R. § 1005.6(b)(5).  An ALJ may also resolve a case, in whole or in part, by summary judgment.  42 C.F.R. § 1005.4(b)(12).

Summary judgment is appropriate in an exclusion case when there are no disputed issues of material fact and when the undisputed facts, clear and not subject to conflicting interpretation, demonstrate that one party is entitled to judgment as a matter of law.  Tanya A. Chuoke, R.N., DAB No. 1721 (2000); David A. Barrett, DAB No. 1461 (1994); Robert C. Greenwood, DAB No. 1423 (1993); Thelma Walley, DAB No. 1367 (1992); Catherine L. Dodd, R.N., DAB No. 1345 (1992); John W. Foderick, M.D., DAB No. 1125 (1990).  When the undisputed material facts of a case support summary judgment, there is no need for a full evidentiary hearing, and neither party has the right to one.  Surabhan Ratanasen, M.D., DAB No. 1138 (1990); Foderick, DAB No. 1125.  In opposing a properly supported motion for summary judgment, the nonmovant must set forth specific facts that show there is a genuine dispute of material fact that affects the proponent’s prima facie case or that might establish a defense.  The nonmovant may not rely upon mere allegations or denials to defeat a properly supported motion for summary judgment.  To defeat a properly supported motion for summary judgment and proceed to a trial, the nonmovant must show there is a genuine dispute as to a material fact that requires determination by the fact finder.  On summary judgment, the judge does not weigh the evidence or attempt to determine the truth.  Rather, the judge accepts the nonmovant’s evidence as true and draws all permissible inferences in the nonmovant’s favor.  Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-57 (1986).

The IG has moved for summary judgment.  There are no genuine disputes of material fact in this case.  All issues must be resolved against Petitioner as matters of law.  Accordingly, I conclude that summary judgment for the IG is appropriate.

2. There is a basis for Petitioner’s exclusion pursuant to section 1128(b)(4)(A) of the Act.

The IG cites section 1128(b)(4) of the Act as the basis for Petitioner’s permissive exclusion.  IG Ex. 1.  Section 1128(b)(4)(A) of the Act provides:

(b) PERMISSIVE EXCLUSION. – The Secretary may exclude the following individuals and entities from participation in any Federal health care program (as defined in section 1128B(f):

*     *     *     *

(4) LICENSE REVOCATION OR SUSPENSION. – Any individual or entity –

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(A) whose license to provide health care has been revoked or suspended by any State licensing authority, or who otherwise lost such a license or the right to apply for or renew such a license, for reasons bearing on the individual’s or entity’s professional competence, professional performance, or financial integrity.

Act § 1128(b)(4)(A).  The statute permits, but does not require, the Secretary to exclude from participation any individual:  (1) whose state license to provide health care has been suspended or revoked by a state licensing authority, and (2) where the revocation or suspension is for reasons bearing on an individual’s professional competence, professional performance, or financial integrity.

IG Ex. 5 is the ex parte order of summary action by the Adjudicative Service Unit of the Washington State Department of Health dated August 7, 2019.  The Order provided that Petitioner’s credential to practice as a chemical dependency counselor and an associate licensed mental health counselor was summarily suspended pending further disciplinary proceedings.  IG Ex. 5 at 4.

IG Ex. 3 is the statement of charges filed before the Secretary of Health, Washington State Department of Health dated August 7, 2019.  The charges alleged acts of misconduct and were served upon Petitioner to permit him to respond.  IG Ex. 3.  IG Ex. 4 is the second amended statement of charges before the Secretary of Health, Washington Department of Health dated January 31, 2022.  The charges alleged acts of misconduct and were served upon Petitioner to permit him to respond to the charges.  IG Ex. 4.

IG Ex. 2 is a document titled “Findings of Fact, Conclusions of Law and Final Order of Default (Failure to Respond)” dated September 27, 2022, issued by the Washington Secretary of Health.  The Order provided Petitioner’s credentials to practice as a chemical dependency professional and an associate licensed mental health counselor issued by the State of Washington were suspended.  The Order provided that Petitioner could not petition for reinstatement of his licenses for 10 years.  IG Ex. 2 at 5.  The suspension was based on the conclusions of law that Petitioner failed to respond to the charges, and he committed unprofessional conduct in violation of state law based on evidence presented.  IG Ex. 2 at 4.  The findings of fact list two convictions of multiple criminal acts as the bases for the conclusion of unprofessional conduct and the suspension:

On December 27, 2019, Petitioner was convicted in the Superior Court of Washington, County of Spokane, of six counts of delivery of a controlled substance (a class B felony) and two counts of possession of a controlled substance with intent to deliver (a class B felony).  IG Ex. 2 at 3.

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On October 28, 2021, Petitioner was convicted in the Superior Court of Washington, County of Spokane, of one count of theft-domestic violence in the first degree (a class B felony) and one count of assault-domestic violence in the third degree (a class C felony), and two counts of possession of a controlled substance with the intent to deliver (a class B felony). 

IG Ex. 2 at 3.  Petitioner did not dispute or contest the charges and failed to respond at all, which triggered issuance of the default order.  IG Ex. 2 at 1, 4.

The evidence shows that Petitioner’s Washington licenses or credentials to practice as a chemical dependency professional and an associate licensed mental health counselor were suspended for 10 years.  In his request for hearing, Petitioner states that he is not disputing the suspension of his licenses as a chemical dependency professional and associate licensed mental health counselor.  Petitioner asserts that he is disputing the fact that he cannot bill Medicare, Medicaid, or federal health care programs as a certified peer counselor.  RFH at 1.

The IG has discretion to exclude an individual or entity under section 1128(b)(4)(A) of the Act if two elements are satisfied: 

1. The individual’s or entity’s license to provide health care has been revoked or suspended by a state licensing authority, or the individual or entity has otherwise lost a license to provide health care or the right to apply for or renew such a license; and
2. The revocation, suspension or other loss of a license or the ability to apply for a health care license was based on reasons bearing on the individual’s or entity’s professional competence, professional performance, or financial integrity.

I conclude that there is no dispute that Petitioner’s licenses to provide health care as a chemical dependency professional and an associate licensed mental health counselor were suspended for 10 years by the Washington Secretary of Health, and the first element is satisfied.

The second element is also satisfied.  The Washington Secretary of Health suspended Petitioner’s licenses for 10 years based on the conclusion of law that conduct for which Petitioner was convicted was unprofessional conduct in violation of Wash. Rev. Code § 18.130.180(1), (6), and (17).  The pertinent parts of the Washington statute in effect at the time of the suspension provided:

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The following conduct, acts, or conditions constitute unprofessional conduct for any license holder under the jurisdiction of this chapter:

(1) The commission of any act involving moral turpitude, dishonesty, or corruption relating to the practice of the person’s profession, whether the act constitutes a crime or not.  If the act constitutes a crime, conviction in a criminal proceeding is not a condition precedent to disciplinary action. Upon such a conviction, however, the judgment and sentence is conclusive evidence at the ensuing disciplinary hearing of the guilt of the license holder of the crime described in the indictment or information, and of the person’s violation of the statute on which it is based.  For the purposes of this section, conviction includes all instances in which a plea of guilty or nolo contendere is the basis for the conviction and all proceedings in which the sentence has been deferred or suspended.  Nothing in this section abrogates rights guaranteed under chapter 9.96A RCW;

*     *     *     *

(6) Except when authorized by RCW 18.130.345, the possession, use, prescription for use, or distribution of controlled substances or legend drugs in any way other than for legitimate or therapeutic purposes, diversion of controlled substances or legend drugs, the violation of any drug law, or prescribing controlled substances for oneself;

*     *     *     *

(17) Conviction of any gross misdemeanor or felony relating to the practice of the person’s profession.  For the purposes of this subsection, conviction includes all instances in which a plea of guilty or nolo contendere is the basis for conviction and all proceedings in which the sentence has been deferred or suspended.  Nothing in this section abrogates rights guaranteed under chapter 9.96A RCW;

Wash. Rev. Code § 18.130.180(1), (6), and (17) (2021).

Pursuant to 42 C.F.R. § 1001.2007(d):

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When the exclusion is based on the existence of a criminal conviction or a civil judgment imposing liability by Federal, State or local court, a determination by another Government agency, or any other prior determination where the facts were adjudicated and a final decision was made, the basis for the underlying conviction, civil judgment or determination is not reviewable and the individual or entity may not collaterally attack it either on substantive or procedural grounds in this appeal.

There is no dispute that the suspension of Petitioner’s Washington licenses was based on adjudicated facts and a final decision was made by the Washington Secretary of Health.  Accordingly, I conclude that Petitioner’s underlying convictions and the suspension of his licenses by the Washington Secretary of Health are not subject to my review, and they are not subject to collateral attack by Petitioner.  Rather, the convictions and suspension are facts binding upon me and Petitioner in this proceeding.

The second element of section 1128(b)(4) of the Act is satisfied by the Washington Secretary of Health’s conclusion of law that Petitioner’s convictions constituted unprofessional conduct.

I conclude that the elements necessary for a permissive exclusion pursuant to section 1128(b)(4)(A) of the Act are satisfied and that there is a basis for Petitioner’s permissive exclusion pursuant to that provision.  When I conclude that the Secretary had a basis for permissive exclusion, I have no authority to review the exercise of discretion by the IG to exclude.  42 C.F.R. § 1005.4(c)(5).  The exclusion is effective 20 days from the date of the IG’s February 29, 2024 notice of exclusion (IG Ex. 1), which is March 20, 2024.  42 C.F.R. § 1001.2002(b).

Petitioner asserts in his request for hearing that he is disputing the fact he cannot bill Medicare, Medicaid, or federal health care programs as a certified peer counselor.  RFH at 1.  However, Petitioner’s argument is without merit.  Section 1128(b) of the Act provides that if the Secretary excludes an individual from participation, the exclusion applies to any federal health care program, including Medicare and Medicaid.  The Act does not permit exclusion of an individual or entity practicing health care under only certain types of state licenses.  Rather, a fair reading of the Act is that an exclusion applies to the individual or entity and serves to completely prevent participation in Medicare, Medicaid, or any other federal health care program for the period of the exclusion.  My reading is also consistent with 42 C.F.R. § 1001.1901(b), which explains the effect of an exclusion on an excluded entity or individual.  The IG notice of the exclusion informed Petitioner he was excluded from participating in all federal health care programs.  IG Ex. 1 at 1.  The effect of exclusion is explained in detail in the

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enclosure to the IG notice.  IG Ex. 1 at 2.  The advice provided by the IG notice and its enclosure is consistent with my reading of the Act.  I conclude that Petitioner cannot be permitted to bill Medicare, Medicaid, or any federal health care program during the period of his exclusion.  42 C.F.R. § 1001.1901(b).

3. The period of exclusion is reasonable as a matter of law.

The duration of the period of exclusion is established by section 1128(c)(3)(E) of the Act and 42 C.F.R. § 1001.501(b).  The length of a permissive exclusion pursuant to section 1128(b)(4) of the Act and 42 C.F.R. § 1001.501(a) is no less than the period the individual’s state license is revoked, suspended, or otherwise not in effect.  Because the length of exclusion is dictated by the Act and the Secretary’s regulation, the period of exclusion is not subject to my review or action.  I am bound to follow the federal statutes and the Secretary’s regulations.  42 C.F.R. § 1005.4(c)(1).  No aggravating factors were considered by the IG under 42 C.F.R. § 1001.501(b)(2) and no mitigating factors may be considered under 42 C.F.R. § 1001.501(b)(3).

4. I have no authority to grant equitable relief.

Petitioner’s arguments may be viewed as requests for equitable relief.  However, I have no authority to grant Petitioner any equitable relief.  Matthew J. Girardy, DMD, DAB No. 2987 at 7 (2020).  Congress granted the Secretary discretion to exclude Petitioner pursuant to section 1128(b)(4) of the Act if the elements are met.  If I conclude, as I have in this case, that the IG had a basis for exclusion, my review is complete, and I cannot second guess whether exclusion was appropriate.  The regulation establishes the effective date of an exclusion and the duration of an exclusion.  I am bound to follow the Act and the Secretary’s regulations.  42 C.F.R. § 1005.4(c)(1).

III.    Conclusion

For the foregoing reasons, Petitioner is excluded from participation in Medicare, Medicaid, and all federal health care programs effective March 20, 2024, for the period specified by the regulations.