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1:12-Cv-09598 Document #: 60 Filed: 05/29/14 Page 1 of 13 Pageid Case: 1:12-cv-09598 Document #: 60 Filed: 05/29/14 Page 1 of 13 PageID #:<pageID> UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION ETHAN E. BICKELHAUPT, ) ) Plaintiff, ) ) v. ) No. 12 C 9598 ) KATHLEEN SEBELIUS, in her official ) Judge Sara L. Ellis capacity as Secretary of the U.S. Department ) of Health and Human Services, and ) DAVID LEVINSON, in his official capacity ) as Inspector General of the U.S. Department ) of Health and Human Services, ) ) Defendants. ) OPINION AND ORDER Plaintiff, Ethan Bickelhaupt, a physician, brings this action to challenge his five year exclusion from receiving reimbursements from government health care programs. After his 2010 felony drug conviction, Bickelhaupt was excluded from government health care programs by Defendants David Levinson, Inspector General of the U.S. Department of Health and Human Services, and Kathleen Sebelius, Secretary of Health and Human Services (collectively, the “Department”). Bickelhaupt unsuccessfully opposed his exclusion before an administrative law judge (“ALJ”) and an appeals board. Bickelhaupt contends that his exclusion from government health care programs is illegal because it violates: the constitutional protection against double jeopardy, the Administrative Procedures Act (“APA”), the equal protection clause, and the Rehabilitation Act. Now before the Court are cross-motions for summary judgment, brought by both Bickelhaupt [28] and the Department [41]. The Court denies Bickelhaupt’s motion and grants the Department’s motion because Bickelhaupt’s exclusion does not constitute double jeopardy as it is merely a civil penalty, the Department did not violate the APA in interpreting Case: 1:12-cv-09598 Document #: 60 Filed: 05/29/14 Page 2 of 13 PageID #:<pageID> the scope of exclusion, his exclusion is rationally related to a legitimate government interest, and the Rehabilitation Act does not bar exclusion where Bickelhaupt engaged in illegal conduct separate and apart from his addiction. BACKGROUND1 Bickelhaupt is a physician who has held board certifications in psychiatry, pain medicine, and addiction medicine, among others. Some time before September of 2007 and while practicing as a physician, Bickelhaupt developed polysubstance dependence. In September of 2007, Bickelhaupt sought and underwent treatment for his drug addiction. In August of 2009, Bickelhaupt was indicted in the District of Kansas on six felony drug counts. In September of 2010, Bickelhaupt pleaded guilty to two counts: knowingly and intentionally dispensing a controlled substance outside the scope of professional practice and for no legitimate medical purpose, in violation of 21 USC § 841(a)(1) and (b)(1)(C) (Count I), and knowingly and intentionally obtaining and acquiring a controlled substance by misrepresentation, fraud, deception, and subterfuge via a fraudulent prescription in violation of 21 U.S.C. § 843(a)(3) and (d) (Count VI). Bickelhaupt was sentenced to three years’ probation, 300 hours of community service, a three year prohibition from practicing medicine, and a $200 fine. On August 31, 2011, Bickelhaupt received a letter from the Department of Health and Human Services, Office of the Inspector General, notifying him that he had been excluded from participating in Medicare, Medicaid, and all other federal health care programs for five years pursuant to § 1128(a)(4) of the Social Security Act, 42 U.S.C. § 1320a-7(a)(4). An attachment to the exclusion letter states: No payment will be made by any Federal health care program (such as Medicare, Medicaid, Veterans Administration, TRICARE, etc.) for any items or services 1 The facts set forth in this section are derived from Bickelhaupt’s Local Rule 56.1 statement of fact [34], and the Department’s response thereto [43], as well as the administrative record [12]. 2 Case: 1:12-cv-09598 Document #: 60 Filed: 05/29/14 Page 3 of 13 PageID #:<pageID> furnished, ordered, or prescribed by you in any capacity. For example, you are prohibited from submitting or causing claims to be submitted to Federal health care programs for items or services which you provide, and you are also prohibited from being employed to provide items or services which are billed to a Federal health care program. Such items or services could include administrative, clerical, and other activities that do not directly involve patient care or the provision of any health care related services. An excluded person cannot be employed by a provider to perform functions paid for, in whole or in part, by any Federal health care program. Generally speaking, with rare exceptions, you may not be employed by a hospital, nursing home, or any other institutional provider that participates in Federal health care programs. Doc. 34 ¶ 15. The letter further states that Bickelhaupt could challenge his exclusion by requesting a hearing before an ALJ. Bickelhaupt challenged his exclusion before an ALJ on the grounds that it violated the double jeopardy clause, the equal protection clause, the APA, and the Rehabilitation Act. The ALJ’s scope of review was limited to whether there was a basis for exclusion and whether the length of the exclusion was unreasonable. Bickelhaupt conceded these points and the ALJ granted summary judgment in favor of the Department of Health and Human Services. Bickelhaupt then sought review of the ALJ’s decision by the Departmental Appeals Board (“DAB”). Bickelhaupt again argued that his exclusion violated the double jeopardy clause, the equal protection clause, the APA, and the Rehabilitation Act. The DAB held that “[t]he ALJ did not err in refusing to entertain [Bickelhaupt’s] challenges to section 1128(a)(4) and the I.G.’s actions, and in any event those challenges are meritless.” Doc. 12-2 at 10. Bickelhaupt brings this case to appeal the DAB’s ruling. LEGAL STANDARD The scope of judicial review of the DAB’s decision is set forth in 42 U.S.C. § 405(g). The DAB’s findings of fact are conclusive so long as they are “supported by substantial 3 Case: 1:12-cv-09598 Document #: 60 Filed: 05/29/14 Page 4 of 13 PageID #:<pageID> evidence.” 42 U.S.C. § 405(g); Prochaska v. Barnhart, 454 F.3d 731, 734 (7th Cir. 2006). “The court may not substitute its own judgment for that of the Secretary, even if it might justifiably have reached a different result upon a de novo review.” Valente v. Sec’y of Health & Human Servs., 733 F.2d 1037, 1041 (2d Cir. 1984). But the Court is not bound to accept the DAB’s conclusions of law. Kuebler v. Sec’y of U.S. Dep’t of Health & Human Servs., 579 F. Supp. 1436, 1438 (E.D.N.Y. 1984); Klofta v. Mathews, 418 F. Supp. 1139, 1141 (E.D. Wis. 1976). Instead, the Court reviews conclusions of law de novo. Prochaska, 454 F.3d at 734. Summary judgment obviates the need for a trial where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56. To determine whether a genuine issue of fact exists, the Court must pierce the pleadings and assess the proof as presented in depositions, answers to interrogatories, admissions, and affidavits that are part of the record. Fed. R. Civ. P. 56 & advisory committee’s notes. The Court must construe all facts in a light most favorable to the non-moving party and draw all reasonable inferences in that party’s favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). The same standard applies when considering cross- motions for summary judgment. Int’l Bhd. of Elec. Workers, Local 176 v. Balmoral Racing Club, Inc., 293 F.3d 402, 404 (7th Cir. 2002). Therefore, when considering Bickelhaupt’s motion for summary judgment, the Court views all facts in the light most favorable to the Department; and when considering the Department’s motion, the Court views all evidence in the light most favorable to Bickelhaupt. See id. ANALYSIS Bickelhaupt raises four purely legal claims that his exclusion from government health care programs is illegal. First, he contends that exclusion violates the double jeopardy clause 4 Case: 1:12-cv-09598 Document #: 60 Filed: 05/29/14 Page 5 of 13 PageID #:<pageID> because he has already been punished for his crimes. Second, Bickelhaupt asserts that the terms outlined in his notice of exclusion impermissibly expand the definition of exclusion in violation of the APA. Next, he argues that his exclusion violates the equal protection clause of the Fifth Amendment because it is overly broad and not rationally related to a legitimate governmental purpose. Finally, Bickelhaupt alleges that his exclusion violates the Rehabilitation Act because it denies him access to payment from government health care programs solely as a result of his medical disease of addiction. The Court finds that none of these claims has merit and therefore grants summary judgment in favor of the Department. I. Double Jeopardy Bickelhaupt first argues that his exclusion from government health care programs violates the double jeopardy clause of the Fifth Amendment. Double jeopardy protects an individual from the danger of being punished twice for the same conduct. Witte v. United States, 515 U.S. 389, 395, 115 S. Ct. 2199, 132 L. Ed. 2d 351 (1995). But, “the Double Jeopardy Clause does not prohibit the imposition of all additional sanctions that could, in common parlance, be described as punishment.” Hudson v. United States, 522 U.S. 93, 98–99, 118 S. Ct. 488, 139 L. Ed. 2d 450 (1997) (internal quotation marks omitted). To determine whether double jeopardy applies, the Court must determine whether the proposed penalty is civil or criminal in nature. Id. at 99. Generally speaking, a civil penalty does not implicate the double jeopardy clause unless it is so punitive as to transform it into a criminal punishment.
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