William E. O’Connor, Jr., M.D., DAB CR6236 (2023)

DECISION

Respondent, the Inspector General of the United States Department of Health and Human Services (the IG), excluded Petitioner, William E. O’Connor, Jr., M.D., from participation in Medicare, Medicaid, and all other federal health care programs because the Commonwealth of Massachusetts Board of Registration in Medicine (Medical Board) suspended his right to renew his medical license.  Petitioner sought review of the exclusion.  For the reasons stated below, I affirm the IG’s exclusion action.

I.      Procedural History

By letter dated July 29, 2022, the IG notified Petitioner of his exclusion from participation in Medicare, Medicaid, and all federal health care programs under section 1128(b)(4) of the Social Security Act (Act), 42 U.S.C. § 1320a-7(b)(4), because his medical license was revoked, suspended, or otherwise lost or was surrendered while a formal disciplinary proceeding was pending for reasons bearing on his professional competence, professional performance, or financial integrity.  IG Ex. 1 at 1.¹  The IG

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advised Petitioner his exclusion would remain in effect until the IG reinstated him, which could occur if he regained his medical license, obtained a new license in any state, or his period of exclusion exceeded three years.  Id.

Petitioner timely requested a hearing before an administrative law judge (ALJ) in the Civil Remedies Division and I was designated to hear and decide this case.  I held a pre-hearing telephone conference attended by the parties on October 18, 2022, the substance of which is summarized in my October 21, 2022 Order Summarizing Pre-hearing Conference and Setting Briefing Schedule (Summary Order).  See 42 C.F.R. § 1005.6.  Among other things, I directed the parties to file pre-hearing briefs articulating their respective arguments as well as identifying witnesses and exhibits in support thereof.  Summary Order ¶ 7.

The IG filed a brief (IG Br.) and three proposed exhibits (IG Exhibits 1 through 3).  Petitioner filed a short-form brief (P. Br.) and thirteen proposed exhibits (P. Exhibits 1 through 13).²  The IG subsequently filed a reply brief (IG Reply).

II.     Admission of Exhibits and Decision on the Record

Neither party objected to the opposing party’s proposed exhibits.  Accordingly, I admit all proposed exhibits into the record.  42 C.F.R. § 1005.8(c); Civ. Remedies Div. P. § 14(e).

Neither party requested an in-person hearing.  IG Br. at 6; P. Br. at 3.  I therefore decide this case on the written record.  See Civ. Remedies Div. P. § 19(d).

III.   Issue

Whether the IG had a basis to exclude Petitioner from participating in Medicare, Medicaid, and all other federal health care programs under 42 U.S.C. § 1320a-7(b)(4).³  See 42 C.F.R. § 1001.2007(a)(1).

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IV.    Applicable Law

Section 1128(f) of the Act (42 U.S.C. § 1320a-7(f)) provides Petitioner with rights to an administrative hearing and judicial review of the final action of the Secretary of Health and Human Services (Secretary).  The right to a hearing before an ALJ is set forth at 42 C.F.R. §§ 1001.2007(a) and 1005.2, while the rights of both the sanctioned party and the IG to participate in a hearing are specified by 42 C.F.R. § 1005.3.

The Act permits the Secretary to exclude⁴ individuals or entities whose license to provide health care has been revoked or suspended:

(b) PERMISSIVE EXCLUSION.—The Secretary [of the Department of  Health and Human Services] 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—
(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, or
(B) who surrendered such a license while a formal disciplinary proceeding was pending before such an authority and the proceeding concerned the individual’s or entity’s professional competence, professional performance, or financial integrity.

Act § 1128(b)(4); see also 42 C.F.R. § 1001.501(a).

The length of an exclusion imposed under section 1001.501 may not be for a period shorter than the period during which the 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.  42 C.F.R. § 1001.501(b).

The standard of proof I apply in this proceeding is a preponderance of the evidence.  42 C.F.R. § 1001.2007(c).  Petitioner bears the burden of proof and the burden of persuasion on any affirmative defenses or mitigating factors; the IG bears the burden on all other issues.  42 C.F.R. § 1005.15(c).

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V.      Findings of Fact, Conclusions of Law, and Analysis

My conclusions of law are set forth in bold and followed by pertinent findings of fact and analysis.

1. Petitioner timely requested a hearing, and I have jurisdiction.

Petitioner timely requested a hearing.  I therefore have jurisdiction to hear and decide this case.  See 42 C.F.R. §§ 1001.2007(a)(1), 1005.2(a); see also 42 U.S.C. § 1320a-7(f)(1). 

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

The IG is authorized to exclude an individual from participation in Medicare, Medicaid, and all federal health care programs pursuant to section 1128(b)(4) of the Act and 42 C.F.R. § 1001.501(a) where:  (1) the individual’s license to provide health care was revoked or suspended by any state licensing authority, or the license was otherwise lost, including the right to apply for or renew such a license, for reasons bearing on the individual's professional competence, professional performance or financial integrity; or (2) the individual surrendered such a license while a formal disciplinary proceeding concerning the individual’s professional competence, professional performance or financial integrity was pending before a state licensing authority.

As discussed below, I find the IG established a basis for Petitioner’s exclusion because a state licensing authority suspended his right to renew his medical license for a reason bearing on his professional competence or professional performance.

1. A state licensing authority suspended Petitioner’s license to provide health care.

There is no dispute Petitioner’s license to provide health care was revoked, suspended, or otherwise lost because of action taken by a state licensing authority.  P. Br. at 2; IG Br. at 2.  Petitioner was licensed to practice as a physician in the Commonwealth of Massachusetts.  IG Ex. 2 at 4 (¶ 1); P. Ex. 1.  On February 7, 2020, the Medical Board⁵ issued a Statement of Allegations accusing Petitioner of misconduct in the practice of medicine.  IG Ex. 2 at 1-2.  The Medical Board temporarily suspended Petitioner’s medical license, asserting “the health, safety and welfare of the public necessitate said suspension.”   Id.  The Medical Board referred the matter to its Division of Administrative Law Appeals, where Chief Administrative Magistrate Edward B. McGrath held an evidentiary hearing on August 5, 2020.  Id. at 2-3.  On May 26, 2021,

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Magistrate McGrath found Petitioner violated the Medical Board’s regulations but did not pose an “immediate, serious threat to the health, safety, and welfare of the public…” Id. at 1.  The magistrate accordingly did not believe suspension of Petitioner’s medical license to be appropriate and recommended the Board impose alternative disciplinary measures against him.  Id.

On October 21, 2021, the Medical Board issued a Final Decision and Order disagreeing with Magistrate McGrath’s conclusion that Petitioner’s conduct did not pose “an immediate and serious threat to the public health and safety…”  IG Ex. 3 at 1.  Accordingly, the Medical Board indefinitely suspended Petitioner’s license to practice. ⁶  Id. at 2-3.  The record therefore establishes the first criterion for exclusion pursuant to section 1128(b)(4) of the Act, that a state licensing authority suspended Petitioner’s medical license.

2. The Medical Board suspended Petitioner’s license for reasons bearing on his professional competence or professional performance.

The Medical Board indefinitely suspended Petitioner’s medical license for a pattern of behavior that undermined public confidence in the integrity of the medical profession and demonstrated a lack of moral character that called into question his ability to practice medicine.  IG Ex. 3 at 2.  The IG contends⁷ its permissive exclusion action is lawful because the Medical Board suspended Petitioner’s license for a reason “bearing on his professional competence or professional performance,” thus warranting his exclusion.  IG Br. at 4; 42 U.S.C. § 1320a-7(b)(4); 42 C.F.R. 1001.501(a).  

Neither the Act nor its implementing regulations formally define the terms “professional competence” or “professional performance.”  But when Congress amended the Act in 1987 to allow the Secretary to permissively exclude practitioners for license revocation or

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suspension, it noted prefatorily that it did so with the intent “to protect beneficiaries under the health care programs of [the Social Security Act] from unfit health care practitioners…” Medicare and Medicaid Patient and Program Protection Act of 1987, 42 U.S.C. § 1305 (1987) at preamble (emphasis added). 

The Senate Committee on Finance explained the drafters of this amendment to the Act intended:

“to prevent unfit practitioners from avoiding exclusion through the expedient of surrendering their license before the State can conclude proceedings against them. The Committee expects that the Secretary will not use his discretion under this authority to exclude individuals whose licenses have been suspended in the State in which they are practicing for minor infractions not relating to quality of care[.]”

S.R. Rep. No. 100-109 at 7 (Jul. 14, 1987).

When the IG promulgated 42 C.F.R. § 1001.501 to implement this statutory exclusion authority, commenters in the notice-and-comment process expressed concern the terms “professional competence,” “professional performance,” and “financial integrity” were too vague.  57 Fed. Reg. 3271, 3306 (Jan. 29, 1992).  The drafters declined to define these terms, stating they believed “whether someone’s professional competence, professional performance or financial integrity are implicated must be determined based on all the circumstances.”  57 Fed. Reg. 3306; see also Tracy Gates, R.N., DAB No. 1768 at *4 (2001 WL 358750) (affirming exclusion where the ALJ reviewed the totality of the circumstances to determine whether a license suspension was for a reason bearing on professional competence or performance.

Viewing the circumstances giving rise to Petitioner’s suspension in their totality, I conclude the record before me establishes the Medical Board suspended Petitioner’s medical license for reasons bearing on his professional competence or professional performance.  The Medical Board cited a series of incidents it believed in combination demonstrated suspension of Petitioner’s medical license was warranted.  I address these in turn.  

First, the Medical Board found Petitioner fraudulently renewed his medical license in July 2001 when he indicated in his application that he had not been charged with a criminal offense outside of minor traffic violations.  IG Ex. 3 at 1.  In fact, Petitioner had been charged in January of that year with operating a motor vehicle under the influence of alcohol.  IG Ex. 2 at 4.  Even accepting the Medical Board’s characterization of Petitioner’s omission of this charge from his 2001 license renewal application as fraudulent, his suspension on that basis simply has no bearing on his professional competence or performance.  Filing an application to renew a professional license is

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ministerial; Petitioner’s failure to identify his alcohol-related motor vehicle offense did not stem from medical incompetence or poor performance as a physician.  And while the Medical Board and Magistrate McGrath rejected Petitioner’s defense that he genuinely believed the charge to be a “minor traffic violation” excluded from the reporting requirement, Petitioner was subsequently found not guilty of the offense at trial.  IG Ex. 2 at 5.  Finally, this alleged misconduct took place nearly 20 years earlier than the Medical Board’s suspension action.  The IG made no effort to explain why Petitioner’s failure to identify a decades-old criminal offense on a decades-past license renewal application signaled contemporaneous incompetence or poor performance warranting his exclusion now.  The IG has failed to establish this so-called misconduct warranted exclusion under section 1128(b)(4) of the Act.  

The Medical Board also observed Petitioner failed to maintain medical records pertaining to prescriptions written to a patient, Patient A.  IG Ex. 3 at 2.  Petitioner provided Patient A prescriptions for Lunesta on January 20, 2011 and Flurazepam on May 28, 2013, July 14, 2015, and June 30, 2016. ⁸  IG Ex. 2 at 5-6; P. Ex. 5 at 9, 25, 28, 30.  Magistrate McGrath observed the record showed no documentation by Petitioner prior to the January 20, 2011 Lunesta prescription and that Petitioner otherwise failed to document reasons for prescribing Flurazepam to Patient A.  IG Ex. 2 at 17.  He concluded this violation of Medical Board regulations subjected Petitioner to discipline by the Medical Board.  Id. 

The IG relied on this perfunctory conclusion⁹ by the Magistrate and its adoption by the Medical Board but again neglected to articulate why a failure in documentation amounted to professional incompetence or poor performance by Petitioner within the meaning of the Act.  Nevertheless, the record before me is replete with prescriptions written for Patient A that have no corresponding clinical notes.  IG Ex. 2 at 5-6; P. Ex. 5 at 9, 25, 28, 30.  Petitioner did not submit such documentation to either the magistrate, the Medical Board, or to me to rebut the conclusion that he did not adequately document the basis for the prescriptions he wrote for Patient A. 

The failure to document the rationale for the prescription of controlled substances on multiple occasions contravenes the Medical Board’s medical recordkeeping rule, one of several “Provisions Governing the Practice of Medicine” in Massachusetts.  243 CMR § 2.07.  And physicians in any state are expected to maintain patient records for significant periods of time to ensure effective treatment of their patients and allow

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subsequent treaters access to a patient’s longitudinal record.  HealthIT.gov, State Medical Record Laws:  Minimum Medical Record Retention Periods for Records Held by Medical Doctors and Hospitals, available at https://www.healthit.gov/sites/default/files/appa7-1.pdf  (last visited Feb. 16, 2023). 

Petitioner’s inability to produce years of clinical notes for Patient A despite prescribing her controlled substances for a prolonged period reflects a profound failure in one of his basic duties to her as a patient, reflected in the Medical Board’s characterization of medical record-keeping as a provision “governing” the practice of medicine.  The IG has established suspension arising from Petitioner’s failure to produce documentation corresponding to his prescriptions warrants exclusion under section 1128(b)(4) of the Act as it bears on his professional competence. 

The Medical Board also found suspension of Petitioner’s medical license appropriate because he treated Patient A while dating her.  IG Ex. 3 at 1.  But as Magistrate McGrath observed, the Medical Board’s regulations only prohibited physicians from prescribing Schedule II controlled substances to family members; they did not prohibit him from prescribing the Schedule IV drugs at issue here.  IG Ex. 2 at 16-17.  Instead, as the magistrate observed, the Medical Board’s regulations merely suggested physicians refrain from prescribing any sort of controlled substance to family members or significant others outside of emergency situations.  Id.  The plain language of this admonition strongly suggests there is no actual prohibition against dating patients, as the Medical Board claimed.  Otherwise, it would not need to suggest physicians avoid prescribing drugs to “significant others.”  In short, the Medical Board at least impliedly permitted physicians licensed in Massachusetts to treat individuals with whom they enjoyed intimate relationships.  Petitioner’s decision to treat a significant other may have been inadvisable, but the suspension of his medical license did not stem from medical incompetence or poor performance as a physician. The IG has failed to demonstrate Petitioner’s prescription of Schedule IV drugs to an individual he was dating warrants exclusion under section 1128(b)(4) of the Act. 

Finally, the Medical Board found suspension appropriate because Petitioner undermined the public’s confidence in the medical profession and demonstrated lack of good moral character.  IG Ex. 3 at 1.  This charge refers broadly to Petitioner’s behavior towards Patient A and her new significant other, John Doe, after she ended her relationship with Petitioner.  Specifically, Petitioner engaged in stalking behavior, including uninvited visits to John Doe’s and Patient A’s house, stealing blank checks and bills from their mail, and leaving anonymous voice messages.  IG Ex. 2 at 6-9.  Petitioner’s bizarre behavior provoked Patient A to obtain a restraining order against him (referred to locally as an Abuse Prevention order) in May 2018.  Id. at 9.  In September 2019, despite the Abuse Prevention order against him, Petitioner trespassed at Patient A’s house and attempted to enter through the back door.  Id. at 10.  As a result, Petitioner was charged

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with trespassing, violating the Abuse Prevention order, and attempted breaking and entering.  Id.

The Medical Board characterized Petitioner’s conduct as a pattern of behavior that “calls into questions [his] ability to practice medicine . . . ” and undermined the public’s confidence in the medical profession.  IG Ex. 3 at 2.  But while it may be appropriate to suspend a physician’s license for undermining the public’s confidence in the medical profession or the even more vague failure to demonstrate “good moral character,” neither failing squarely constitutes professional incompetence or poor performance as a physician within the meaning of the Act.  But Petitioner’s conduct does demonstrate he intentionally or recklessly acted in a manner that caused direct emotional harm to Patient A, his patient.  Petitioner had treated Patient A for anxiety for years.  He knew or should have known the effect his bizarre conduct would likely have on her mental health but persisted in that conduct, even after she obtained a protective order against him.  Petitioner’s behavior may or may not have impugned the reputation of the medical profession, as the Medical Board claimed, but there is no doubt his conduct directly and negatively impacted his patient. 

Even though this negative impact occurred as the result of conduct outside the confines of Petitioner’s office, his willingness to cause his own patient distress reflects the sort of “unfitness” resulting in license suspension for which Congress intended the IG to exclude a suspended practitioner.  The suspension of Petitioner’s medical license for this behavior clearly bears on his professional competence or performance.  While not every basis cited by the Medical Board warranted permissive exclusion, the record before me establishes that, under the totality of the circumstances, the board suspended Petitioner’s license at least in part for reasons bearing on his professional competence or professional performance.  

VI.    Conclusion

For the foregoing reasons, I affirm the IG’s determination to exclude Petitioner from participation in Medicare, Medicaid, and all federal health care programs pursuant to section 1128(b)(4) of the Act (42 U.S.C. § 1320a-7(b)(4)).                   

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Endnotes

¹  Document 10 in the official case file maintained in the Departmental Appeals Board (DAB) E-file system; for clarity and simplicity, whenever possible I will cite to the exhibits attached to the parties’ respective briefs by the exhibit numbers therein, not the document numbers assigned by the E-file system.

²  P. Exhibit 8 comprises two parts appearing in the electronic docket as Document Numbers 15 and 15a.

³  Because the period of exclusion is premised on a contingent condition – license revocation or suspension – the IG cannot select a period shorter than that in which the contingent condition exists.  See 42 C.F.R. § 1001.501(b) (an individual excluded on the basis of license revocation or suspension shall not be excluded for a period less than the period during which the individual’s license to provide health care is revoked, suspended, or otherwise not in effect).  The IG did not identify any aggravating factors to increase Petitioner’s period of exclusion.  42 C.F.R. § 1001.501(b)(2).  Therefore, the exclusion period is per se reasonable and not at issue.

⁴  The Secretary has delegated the authority to exclude individuals pursuant to section 1128 of the Act to the IG.  48 Fed. Reg. 21,662 (May 13, 1983).

⁵   The Medical Board is authorized to adopt rules and regulations governing the practice of medicine in Massachusetts.  M.G.L. c. 112, § 5.  It is therefore a state licensing authority within the meaning of the Act.  

⁶  The Medical Board somewhat confusingly described its action as termination of “Summary Suspension” and indefinite suspension of Petitioner’s “inchoate right to renew his license to practice…”  IG Ex. 3 at 3.  But in the prior paragraph it asserts its authority to impose “indefinite suspension of the physician’s license to practice…”  Id. at 2.  This language confirms the Medical Board did not terminate Petitioner’s suspension or merely suspend his right to renew his license, but instead permanently suspended his medical license after he received the benefit of an evidentiary hearing.  

⁷  The IG conflates the basis for suspension imposed by the Medical Board (a pattern of behavior that undermined public confidence in the integrity of the medical profession and demonstrated lack of good moral character) with the standard under the Act for permissive exclusion (suspension for a reason bearing on professional competence or performance).  But these are different standards articulated by different authorities.  Given the IG’s burden to show an evidentiary basis for its exclusion action, IG counsel should have made some effort to articulate why the Medical Board’s findings demonstrated it suspended Petitioner’s medical license for reasons bearing on his professional competence or performance.  

⁸   The U.S. Drug Enforcement Administration categorizes both Lunesta (Zopiclone) and Flurazepam (Dalmane) as Schedule-IV controlled substances.  21 C.F.R. § 1308.14(c)(26), (59). 

⁹   Magistrate McGrath’s only numbered finding of fact pertaining to Petitioner’s office notes stated one was illegible.  IG Ex. 2 at 5.  If illegibility in a physician’s office notes amounts to a failure to document warranting both license suspension and exclusion, the subsequent reduction in the supply of physicians would constitute a national emergency.