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CASE | DECISION | ANALYSIS | JUDGE | FOOTNOTES

Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Appellate Division
IN THE CASE OF  


SUBJECT:

Wayne E. Imber, M.D.,
Petitioner,

DATE: August 9, 2000
                                          
             - v -

 

The Inspector General

 

Civil Remedies CR661
App. Div. Docket No. A-2000-71
Decision No. 1740
DECISION
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FINAL DECISION ON REVIEW OF

ADMINISTRATIVE LAW JUDGE DECISION

Wayne E. Imber, M.D. appealed the April 7, 2000 decision of Administrative Law Judge (ALJ) Marc R. Hillson sustaining the exclusion imposed by the Inspector General (I.G.) on Dr. Imber under section 1128(b)(4) of the Social Security Act (Act). Wayne E. Imber, M.D., DAB CR661 (2000) (ALJ Decision). The exclusion was for so long as Dr. Imber is not licensed to practice medicine in California. Dr. Imber conceded that he was subject to a permissive exclusion under the Act, that the decision whether to impose an exclusion is within the discretion of the I.G., and that the exercise of that discretion is not subject to administrative review in the hearing process. Dr. Imber argued, however, that the I.G. did not show that she had, in fact, exercised her delegated discretion to decide to exclude him for a period coterminous with the loss of his state license. For the reasons explained below, we affirm and adopt the ALJ's Findings of Fact and Conclusions of Law (FFCLs) and sustain the ALJ Decision in its entirety.

Factual and Legal Background(1)

Dr. Imber practiced medicine in California until the California Medical Board brought disciplinary charges against him for unprofessional conduct, which Dr. Imber resolved by surrendering his license on July 11, 1997. On September 30, 1998, the I.G. gave notice that Dr. Imber would be excluded from participation in Medicare, Medicaid, and all federal health programs, unless and until Dr. Imber obtains a valid license to practice medicine in California. See ALJ Decision at 3-4.

Section 1128(b)(4)(B) of the Act authorizes the Secretary to exclude any individual "who surrendered" a 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." The length of the exclusion period may not be less than the period during which the individual's license to provide health care is revoked, suspended, or surrendered. Section 1128(c)(3)(E) of the Act.

The Secretary delegated the discretion to impose this and other permissive exclusions to the I.G. under 42 C.F.R. § 1001.501. Regulations specifically provide that the ALJ lacks authority to "review the exercise of discretion by the OIG to exclude an individual . . . under section 1128(b) of the Act, or determine the scope or effect of the exclusion." 42 C.F.R. § 1005.4(c)(5).

Issues

Dr. Imber expressly excepted to only one numbered FFCL -- FFCL No. 10, which reads as follows:

When an exclusion is imposed pursuant to section 1128(b)(4) of the Act and the period of exclusion is coterminous with the revocation, suspension, or surrender of a State license, no issue of reasonableness with regard to the length of exclusion exists.

ALJ Decision at 4. Dr. Imber argued that this FFCL presupposes that the I.G. appropriately exercised her discretion to impose any exclusion in the first place. Imber Br. at 5. Dr. Imber denied that anything in the record supported the inference drawn by the ALJ that the I.G. had actually exercised her discretion in his case. Id. at 6. The I.G. responded that she has already exercised her discretion by "determining whether or not to exclude [Dr. Imber] after he surrendered his California medical license." I.G. Br. at 6.

Although he did not except to the FFCL directly, Dr. Imber also raised challenges to the substance of FFCL No. 12, which reads as follows:

The alleged failure of the Department of Health and Human Services to respond to Petitioner's FOIA [Freedom of Information Act] request is not material to my decision in this case, since I have no jurisdiction to review the I.G.'s exercise of discretion to exclude Petitioner.

ALJ Decision at 4. Dr. Imber essentially argued that some information might have been obtained through his FOIA request that could have helped him marshal "facts in favor of his argument . . . supporting non-exclusion." Imber Br. at 10. We will consider Dr. Imber's arguments on this question as amounting to an exception to FFCL No. 12. The remaining FFCLs (numbered 1-9, 11, and 13) as to which Dr. Imber raised no objection are hereby affirmed without further discussion.

Standard of Review

Our standard of review on disputed issues of fact is whether the ALJ Decision is supported by substantial evidence on the record as a whole. 42 C.F.R. § 1005.21(h). Our standard of review as to disputed issues of law is whether the ALJ Decision is erroneous. Id.

CONCLUSION

For the reasons explained above, we affirm the exclusion determined by the ALJ, affirm and adopt the challenged FFCLs, and sustain the ALJ Decision.

ANALYSIS
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1. The I.G. has exercised her discretion to exclude Dr. Imber, and neither the basis of that discretionary act nor the reasonableness of the resulting coterminous exclusion are reviewable.

The challenged FFCL is unquestionably an accurate statement. The statute expressly provides, as noted above, that where a permissive exclusion is imposed based on the surrender of a professional license under the circumstances spelled out in the Act, that exclusion must be for at least as long as the license action is in effect. Sections 1128(b)(4)(B) and 1128(c)(3)(E) of the Act. Logically, therefore, the length of the exclusion imposed in the case of an exclusion under section 1128(b)(4)(B) is not subject to challenge by the individual being excluded on the grounds that it is unreasonably long since the period could not legally be shortened. Dr. Imber offered no basis to conclude that the ALJ made any legal error in the FFCL.

However, it appears from Dr. Imber's briefing that his exception was not to the content of this FFCL, but rather to the reasoning expressed by the ALJ in his analysis, and implicitly underpinning this FFCL, to the effect that the I.G. had fulfilled her duty to act within her discretion in imposing an exclusion under that section and thereby triggering the provision on the required length of the exclusion. Thus, Dr. Imber asserted that the I.G. had neither acknowledged that she "had a discretion to decide to exclude or not to exclude," nor stated "an exercise of that discretion in favor of excluding" Dr. Imber. Imber Br. at 6. Dr. Imber argued that a grant of discretion of this kind is not unfettered and implies at the least "a duty to exercise that discretion, and on this record it is a matter of pure speculation whether such discretion has been exercised, and if so, upon what factors." Id. at 6-7 (emphasis in original). Before the ALJ and before us, Dr. Imber stated that he sought not to have the I.G.'s exercise of discretion overturned but rather to have the I.G. directed to exercise her discretion explicitly, so that a court could gauge whether the discretion was fairly exercised. Imber Br. at 10-11.

The ALJ determined that the I.G. had exercised her discretion "with respect to deciding whether [Dr. Imber's] surrendering of his license to practice medicine in California as a consequence of the State's allegations warranted that he be excluded as per the Act and regulations." ALJ Decision at 5. The ALJ found that the actual exercise of this discretion was evidenced by the "issuance of the exclusion letter." Id., citing I.G. Ex. 1. The ALJ concluded that it was "totally apparent to [him] that [the I.G.'s] discretion has in fact been exercised." ALJ Decision at 5.

On appeal, Dr. Imber contended that the evidence in the record was insufficient to support the ALJ's inference. Imber Br. at 9. Dr. Imber relied on various federal court cases to derive the principle that a delegation of discretion imposes a duty to act, and that where an agency declines or fails to act on that duty a writ may lie to compel agency action. Imber Br. at 7-9. Dr. Imber argued that he had shown a failure to exercise delegated discretion here because he had presented information to the I.G. about factors which, in his view, "bear upon the exercise of discretion," and yet the I.G. had made no findings "upon any of these factors, whether . . . as a part of this record, or otherwise communicated to [Dr. Imber] at any time in this process which commenced with the Exclusion Letter of October, 1998." Imber Br. at 9.

We find that substantial evidence in the record as a whole supports the ALJ's conclusion that the I.G. has in fact exercised her delegated discretion in determining to exclude Dr. Imber. In addition to the fact cited by the ALJ that the I.G. affirmatively acted by issuing the notice imposing the exclusion, we find evidence in the record that she did, in fact, inform Dr. Imber that she was doing so knowingly after consideration of his individual case. For example, in the notice informing Dr. Imber of his exclusion, the I.G.'s representative expressly stated that the office had "considered the information [Dr. Imber] furnished to our field office in response to its letter to Dr. Imber." I.G. Ex. 1, at 1.(2) In addition, the parties engaged in some months of settlement discussions about "outstanding matters" related to the imposition of the exclusion. See I.G. Motion for Order to Show Cause (July 7, 1999). Dr. Imber himself acknowledged in briefing before the ALJ that the I.G. had "declined [Dr. Imber's] invitation" to stipulate to not treating Medicaid and Medicare beneficiaries without advance approval and instead had "insisted upon continuing with the exclusion." Imber Hearing Br. at 9.

Dr. Imber apparently feels entitled to more explanation as to why the information which he furnished to the I.G. and the suggestions he made to avoid the imposition of the exclusion did not suffice to cause her to exercise her discretion in a way favorable to him. Dr. Imber has identified no requirement, however, that obliges the I.G. to spell out her thinking in each instance in which she determines to exercise her permissive exclusion authority, nor any requirement that the I.G. address any specific factors in reaching her determination. We find that the I.G. has acted in the exercise of her discretion.

Turning to the legal questions raised by Dr. Imber about the ALJ's treatment of his request that the I.G. be ordered to exercise her discretion, we find that the cases relied on by Dr. Imber are distinguishable or inapposite, and often quoted out of context.

The primary rule established in the cited cases, and in many others, is that mandamus to compel an official to act is an "extraordinary remedy" appropriate "only when (1) the plaintiff's claim is 'clear and certain'; (2) the defendant official's duty to act is ministerial, and 'so plainly proscribed as to be free from doubt;' and (3) no other adequate remedy is available." Barron v. Reich, 13 F.3d 1370, 1374 (9th Cir. 1994) (citations omitted); see also Carpet, Linoleum and Resilient Tile Layers, Local Union No. 419 v. Brown, 656 F.2d 564, 566 (10th Cir. 1981) (duty owed must be "ministerial, clearly defined and peremptory"); Davis Assoc., Inc. v. Secretary, Dept. of Housing and Urban Development, 498 F.2d 385, 388-89 (1st Cir. 1974) (mandamus lies only where the official owes a duty to the plaintiff to take the action sought, not where the determination is discretionary).

Dr. Imber did not meet the first two tests. He presented no basis on which he is clearly or certainly entitled to anything more from the I.G. than the decision she already made to exclude him. Further, the I.G.'s action was not ministerial at all, but instead was plainly entrusted to her discretion.

In Barron, mandamus was denied where the statute allowed only the Secretary of Labor to take action to enforce certain claims under federal service contracts. 13 F.3d at 1376-77. The court noted that "agency decisions regarding enforcement are particularly likely to be discretionary," referencing Supreme Court language addressing the "complicated balancing of a number of factors which are peculiarly within [the agency] expertise" in any decision to undertake or decline enforcement, including "whether a violation has occurred, . . . whether agency resources are best spent on this violation or another, whether the agency is likely to succeed if it acts, whether the particular enforcement action requested best fits the agency's overall policies, and, indeed, whether the agency has enough resources to undertake the action at all." 13 F.3d at 1376, n.3, quoting Heckler v. Chaney, 470 U.S. 821, 831-32 (1985). A similar need to exercise agency discretion exists here in applying expertise to balance limited resources, various program policies and priorities, and numerous other factors in regard to pursuing permissive exclusions intended to protect federal program integrity and safeguard those dependent on the programs.

Dr. Imber's efforts to fit his situation within exceptions to the denial of mandamus to impinge on "legitimate use of discretion" are unavailing. Cf. Imber Br. at 7, quoting Barron, 13 F.3d at 1376; see also Davis, 498 F.2d at 389, n.5. Mandamus may lie where an official has ignored or violated specific standards constraining discretion or if the agency's actions fall outside the scope of the discretion delegated to it. 13 F.3d at 1376; 498 F.2d at 389. Neither situation occurred here. In United States v. Shano, 955 F.2d 291 (5th Cir. 1992), for example, the lower court had failed to give reasons as required to explain its upward departure from sentencing guidelines, and the case was therefore remanded for resentencing. This case differs too from a situation in which a lower judge or agency official has withheld an action based on a mistaken belief that no discretion was available to permit the action sought. Cf. United States v. Gonzalez, 582 F.2d 1162 (2nd Cir. 1978). No agency action has been withheld, much less unlawfully withheld, here. Cf. Estate of Smith v. Heckler, 747 F.2d 583, 591 (10th Cir. 1984) (compelling issuance of statutorily mandated nursing home regulations). Even where mandamus may lie to compel an agency to act where it has failed to take an action, a court may only compel the agency to act to exercise its discretion, but may not "dictate how that discretion is to be exercised." Marathon Oil Co. v. Lujan, 937 F.2d 498, 501-02 (10th Cir. 1991), and cases cited therein. Dr. Imber's reliance on Soler v. Scott, 942 F.2d 597, 602 (9th Cir. 1991), adds nothing since Soler presents essentially the same factors discussed in Barron and is not itself "reliable authority," having been vacated and remanded for dismissal by the Supreme Court. 13 F.3d at 1375, citing Sively v. Soler, 506 U.S. 969 (1992). Cf. Imber Br. at 8.

We find that the I.G. has unquestionably acted, and that she plainly knew as she did so that she had discretion in taking that action. See I.G. Br. at 6; I.G. Ex. 1. There was neither a failure nor a refusal to exercise a delegated discretion or duty of action. Nothing in these cases supports Dr. Imber's attempt to undo an unfavorable exercise of discretion by redefining it as a failure to act or an action outside the scope of discretion.

Dr. Imber acknowledged that the substance of the I.G.'s decision-making process is expressly made unreviewable by regulation, before the ALJ or before us. It is not contested that the action taken by the I.G., imposing an exclusion here, was among the determinations permitted within the scope of the discretionary actions available to her in such circumstances. Dr. Imber's effort to reframe his challenge as a question of whether that process ever occurred at all is meritless. That the I.G.'s discretionary determination was unfavorable to Dr. Imber does not mean it did not occur.

We conclude that the ALJ did not err in refusing to issue an order that the I.G. exercise her discretion.

2. The disposition of the FOIA request is immaterial.

Dr. Imber made repeated requests to the ALJ that his appeal be stayed until he received a response to a FOIA request he submitted during the pendency of this case. The ALJ denied the requests and found that the FOIA request was immaterial to the administrative exclusion proceedings. See Denial of Petitioner's Request for Additional Stay and Setting of Briefing Schedule (Dec. 7, 1999); ALJ Decision at 2, 6. On appeal, Dr. Imber took issue with this conclusion and characterized the result as a double failure on the I.G.'s part, in that she not only failed to exercise her discretion but also failed to give Dr. Imber access to the very information he needed to urge her favorable exercise of discretion. Imber Br. at 10.

The FOIA request generally sought information about the I.G.'s previous exercises of discretion in deciding whether to exclude other individuals subject to permissive exclusion under the same provision as Dr. Imber. Imber Ex. 1, at 1-2. It also sought information about whether the I.G. had permitted any individuals to surrender "Medicare program supplier enrollment in lieu of an imposed program exclusion." Id. at 2. Finally, it sought records or policies addressing the exercise of the discretion to exclude under this statutory provision. Id.

We find no merit in Dr. Imber's position for a number of reasons. First, the information sought is not relevant or material to the issue of whether the I.G. actually exercised discretion in considering the individual circumstances presented by Dr. Imber. If anything, the information relates to issues expressly excluded from review by the ALJ, such as whether the exclusion was fair or should have been imposed in these circumstances. Second, to the extent that Dr. Imber believed he needed to have this information to make an informed decision about how to pursue his appeal, he simply failed to make any diligent effort to use the processes available to him to obtain it in a timely fashion.

Dr. Imber stated that the factors on which he relied to urge non-exclusion consisted of an argument that the exclusion would be "unduly punitive" because his underlying conduct did not transgress Medicare or Medicaid laws, and because he would withdraw from all federal health care programs and would not "intend in the future to practice medicine in any jurisdiction." Imber Br. at 11. None of the information sought in the FOIA request bears on his ability to make this argument to the I.G., since his argument is based wholly on information within Dr. Imber's control.(3) None of the information sought is relevant, for example, to his argument that the underlying charges did not involve program-related misconduct. In any event, the exclusion provision applied to Dr. Imber has no prerequisite that the disciplinary proceeding involve program-related misconduct.

The thrust of the information sought, on its face, goes rather to whether the I.G. exercised her discretion in Dr. Imber's case in a manner consistent with any written policies and with prior exercises of discretion in analogous circumstances. Such arguments would be material only to reviewing the exercise of the I.G.'s discretion, which the ALJ is expressly prohibited from doing. 42 C.F.R. § 1005.4(c)(5).

Dr. Imber's own actions undercut his claim that the documents sought were essential to his presentation to the I.G. to inform her exercise of discretion in his case. Dr. Imber did not show any effort to seek this information when the decision on his exclusion was pending before the I.G. (i.e., prior to issuance of the final exclusion notice on September 30, 1998); nor after he sought a hearing (on October 16, 1998) on the exclusion imposed on him; nor even during the stay granted to permit settlement negotiations between the parties (which concluded after a show-cause order issued on July 23, 1999). See I.G. Ex. 1; Imber Request for Hearing (Oct. 16, 1998); Order to Show Cause Why Hearing Request Should Not Be Dismissed (July 23, 1999). The first indication that Dr. Imber was contemplating any need for additional documents appeared in his response to the show-cause order filed on August 4, 1999, in which he asserted that he was "in the process of preparing" a FOIA request and that his "delay in propounding" it resulted from "his counsel's inaction due to the press of many other matters." Response to Order to Show Cause at 1-2 (Aug. 4, 1999).

At no point did Dr. Imber seek discovery through the procedures provided for ALJ hearings in exclusion cases, which would have provided a mechanism to obtain documents "relevant and material to the issues before the ALJ." See 42 C.F.R. § 1005.7(a). FOIA processes are independent of the exclusion appeal proceedings and are governed by different legal authorities than exclusion hearings. Dr. Imber cited to no authority by which the ALJ could control the timing of the FOIA response, notwithstanding his opinion that the agency's failure to respond timely was "regrettable." See ALJ Decision at 6. The ALJ did not err in finding the pendency of the FOIA request irrelevant where the documents sought would not be material to any issue before him. ALJ Decision at 6; see generally Carolyn Westin, DAB No. 1381 (1993).

We therefore agree with the ALJ that the pendency of the FOIA request was immaterial to his decision.

JUDGE
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Donald F. Garrett

M. Terry Johnson

Judith A. Ballard
Presiding Board Member

 

FOOTNOTES
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1. The summary of facts here is based on the undisputed findings of the ALJ and is not meant to replace the more detailed FFCLs in the ALJ Decision.

2. The I.G. was following the process set out in her regulations to provide a notice of intent to exclude, which provides the individual involved 30 days in which to "submit documentary evidence and written argument concerning whether the exclusion is warranted and any related issues." 42 C.F.R. § 1001.2001(a). The provision of this step prior to the I.G.'s determination to exclude Dr. Imber is further evidence that the I.G. made a conscious exercise of discretion in determining that an exclusion was warranted.

3. We note that Dr. Imber's representations that he would voluntarily withdraw from federal health care programs and not practice medicine in the future, on their face, do not provide the same protection to the programs as an exclusion would. It is not clear that he might not later change his mind nor is it clear that his voluntary withdrawals would cover as wide a scope of actions as an exclusion. In fact, in his brief before the ALJ, Dr. Imber acknowledged that, while he "has no plans to practice medicine in the near future; . . . he prefers to keep his options to do so in the future open." Imber Hearing Br. at 8.

CASE | DECISION | ANALYSIS | JUDGE | FOOTNOTES