SUBJECT:

April Ann May, P.A.,

Petitioner,

The Inspector General

I sustain the determination of the Inspector General (I.G.) to exclude Petitioner, April Ann May, from participating in Medicare and other federally funded programs, including State Medicaid programs, until she regains her license to provide health care in the State of Idaho. The I.G. is authorized to impose this exclusion under section 1128(b)(4)(B) of the Social Security Act (Act) because Petitioner surrendered her license to provide health care while a formal State disciplinary proceeding was pending against her in Idaho which concerned her professional performance.

I. Background

On March 31, 2003 the I.G. notified Petitioner that she was being excluded pursuant to the requirements of section 1128(b)(4) of the Act. Petitioner requested a hearing and the case was assigned to me for a hearing and a decision.

The I.G. moved for disposition based on a written record. In her motion the I.G. asserted that all of the relevant facts of the case were described in documents. Petitioner opposed the motion but did not disagree with the I.G.'s assertion that all facts were described in documents. The I.G. submitted seven proposed exhibits in support of her motion (I.G. Ex. 1 - I.G. Ex. 7). Petitioner did not oppose my receiving these exhibits into evidence. Petitioner offered no exhibits of her own. I therefore receive into evidence I.G. Ex. 1 - I.G. Ex. 7.

II. Issues, findings of fact and conclusions of law

A. Issue

The issue in this case is whether Petitioner surrendered her license to provide health care in Idaho while a formal disciplinary proceeding was pending against her that related to her professional performance.

B. Findings of fact and conclusions of law

I make findings of fact and conclusions of law (Findings) to support my decision in this case. I set forth each Finding below as a separate heading. I discuss each Finding in detail.

1. The I.G. is authorized to exclude Petitioner pursuant to section 1128(b)(4)(B) of the Act because Petitioner surrendered her license to provide health care in Idaho while a formal disciplinary proceeding was pending in that State which concerned her professional performance.

Section 1128(b)(4)(B) of the Act authorizes the I.G. to exclude an individual who surrenders a State license to provide health care:

while a formal disciplinary proceeding was pending before . . . [a State licensing authority] and the proceeding concerned the individual's or entity's professional competence, professional performance, or financial integrity.

The I.G. asserts that the undisputed facts of this case establish a basis for excluding Petitioner pursuant to the above-cited section. Petitioner disagrees, arguing that a formal disciplinary proceeding which related to her professional performance was not pending against her when she surrendered her State health care license.

The undisputed facts of this case establish that Petitioner held a physician's assistant license in the State of Idaho. On June 13, 2002, Petitioner signed a Stipulation and Order (June Stipulation) with the Idaho State Board of Medicine (Board). I. G. Ex. 4. The June Stipulation recites that the Board had received information that Petitioner had engaged in excessive personal use of alcohol, which, according to the Board, could constitute violations of the Idaho Medical Practice Act in that Petitioner might not be able to practice medicine with reasonable skill and safety to patients. Id., at 1 - 2. It also states that the Board believed that it had sufficient evidence to support disciplinary action against Petitioner. However:

rather than pursue a formal investigation and hearing, the parties are voluntarily entering into this Stipulation and Order for the purpose of informally responding to the concerns of the Board and for the purpose of providing an acceptable procedure for dealing with the alleged problem.

Id.

Petitioner promised that, among other things, she would: execute a contract with a physician health program and fully comply with the terms and conditions of that contract; submit to random urine or blood screenings for drugs or alcohol; and provide all employers, partners, administrators, and chiefs of staff at each hospital where she applied for privileges with a copy of the June Stipulation. I.G. Ex. 4, at 3 - 4. Additionally, she promised that she would notify the Board of the dates of her departure and return if she left Idaho for three continuous months or resided or practiced outside of the State. Id., at 4.

On September 4, 2002, a Petition for Violations and Enforcement of Stipulation and Order (Petition) was filed with the Board. I.G. Ex. 5. The Petition alleged that Petitioner failed to fulfill the promises that I described in the preceding paragraph. Id., at 2. The Petition asked that the Board conduct a hearing and suspend, revoke or take such action respecting Petitioner's physician assistant registration as may be deemed just. Id., at 3.

Petitioner signed an additional Stipulation and Order with the Board on December 13, 2002 (December Stipulation). I.G. Ex. 3. The December Stipulation recites the Board's allegation that Petitioner did not comply with the requirements of the June Stipulation. Id., at 1 - 2. It also states that allegations of Petitioner's alcohol abuse coupled with allegations of noncompliance by Petitioner with the June Stipulation would constitute violations of the Idaho Medical Practice Act in that Petitioner: (a) might be unable to practice medicine with reasonable skill and safety to patients, in violation of Idaho State law; and (b) might have practiced in violation of the June Stipulation. Id., at 2.

The December Stipulation contains language which is identical to that of the June Stipulation stating that the parties were entering into an agreement rather than pursuing a formal investigation and hearing. I.G. Ex. 3, at 2. Petitioner agreed that she would surrender and not renew her Idaho physician assistant license and not practice as a physician assistant in the State of Idaho and not reapply for any type of license issued by the Board for a period of three years. Id. The parties agreed that the Board could impose such terms and conditions that it chose on any license that might be granted to Petitioner after the expiration of the three-year period. Id.

Petitioner argues that the process which resulted in the December Stipulation and in her surrendering her license was not a formal disciplinary proceeding which concerned her professional performance but, rather, was merely a compliance proceeding that was intended to enforce the June stipulation. Petitioner would have the Petition and the December Stipulation viewed as comprising a proceeding which is separate from and unrelated to the proceeding which led to the June Stipulation.

I do not agree with this analysis. The process that began with the June Stipulation and which culminated with the December Stipulation cannot reasonably be broken into separate and distinct components. Rather, the entire process - the June stipulation, the Petition, and the December stipulation - must be viewed in their entirety as a single disciplinary proceeding against Petitioner that related to allegations that Petitioner's ability to practice as a physician's assistant was impaired by her excessive use of alcohol. The allegations of excessive alcohol consumption were at least as important to the Board in December as was Petitioner's compliance with the June stipulation. The December stipulation makes it clear that action by the Board against Petitioner's license which culminated with that stipulation was prompted by Petitioner's possible violation of the June stipulation and by Petitioner's possible inability to practice medicine with reasonable skill and safety to patients as is required by Idaho State law. I.G. Ex. 3, at 2.

Thus, all aspects of the Board's actions against Petitioner concerned her professional performance as a physician assistant. That is made clear by the letter of both Stipulations as well as by the Petition.

It is also evident that the process against Petitioner satisfied the statutory requirement of a "formal disciplinary proceeding". Both the June and December Stipulations contain language that state that the Stipulations were being executed in lieu of a "formal investigation and hearing". I.G. Ex. 3, at 2; I.G. Ex. 4, at 2. But, that language does not suggest that there was not a formal disciplinary proceeding pending against Petitioner at the time that Petitioner executed these Stipulations. It is apparent that Petitioner executed each of these Stipulations in order to avoid going through a formal hearing. At the time that Petitioner executed each of the Stipulations there were allegations pending against her with the Board that would have resulted in a hearing and formal findings against Petitioner had she not executed each Stipulation. Consequently, there was a formal disciplinary proceeding pending against Petitioner when she executed each Stipulation.

I find, therefore, that Petitioner surrendered her license to practice as a physician assistant in Idaho during the pendency of a formal disciplinary proceeding against her which concerned her performance as a physician assistant in that State. The I.G. consequently is authorized to exclude Petitioner pursuant to section 1128(b)(4)(B) of the Act.

Petitioner argues that she should not be penalized because the process that resulted in her executing the December Stipulation emanated from events that were not her fault or which were beyond her ability to control. Petitioner asserts that she executed a contract with the Physician Recovery Network as was required by the June Stipulation. She contends that she subsequently complied with notification requirements and advised this entity that she would be away from the Boise Idaho area for a period of three months. However, she alleges, the Physician Recovery Network then advised Petitioner that it would not be able to monitor her during her period of absence and referred her case back to the Board. Petitioner argues that she acted in good faith, that she had received permission previously from the Board to leave Idaho for three months, and that she:

should not be punished because the Physician Recovery Network dropped the ball and refused to comply with the . . . [June] Stipulation . . . .

Petitioner's brief at 4.

For purposes of deciding this case I will accept as true Petitioner's allegations. But, they provide me with no basis for ruling in Petitioner's favor. Petitioner's allegations are, essentially, a challenge to the propriety of the Board's actions against her. However, I have no authority to look behind what occurred in this case and to decide whether Petitioner was the victim of a process that was unfair or which deviated from the terms of the June Stipulation. The I.G.'s statutory authority under section 1128(b)(4) derives from the action taken by a State licensing board. The propriety or lawfulness of that action simply is not an issue that I may consider.

2. The term of Petitioner's exclusion is mandated by statute.

Section 1128(c)(3)(E) of the Act provides that an exclusion imposed pursuant to section 1128(b)(4) shall be for a term that is not less than the period when an individual's license to provide health care is revoked, suspended, or surrendered. The act thus mandates that the minimum exclusion period that the I.G. may impose in the case of a license revocation, suspension, or surrender is conterminous with the revocation, suspension, or surrender period. In this case the I.G. imposed that minimum period against Petitioner and, therefore, the exclusion is consistent with statutory requirements.

Steven T. Kessel

Administrative Law Judge