SUBJECT:

Maureen Felker

Petitioner,

The Inspector General

I. Background

Petitioner is a social worker who was licensed to practice in the State of California. The I.G. determined to exclude Petitioner from Medicare and other federally funded programs and, on May 24, 2003, Petitioner requested a hearing. The case was assigned to me for a hearing and a decision. The parties agreed that the case could be tried based on their written submissions. The I.G. submitted a brief, a reply brief, and proposed exhibits consisting of I.G. Exhibits (I.G. Exs.) 1 - 6. Petitioner submitted a brief and no exhibits. In her brief Petitioner objected to the I.G.'s proposed findings of fact and conclusions of law. But, Petitioner did not object to my receiving into evidence any of the I.G.'s proposed exhibits. Consequently, I receive I.G. Ex. 1 - I.G. Ex. 6.

II. Issues, findings of fact and conclusions of law

A. Issues

The issues in this case are:

1. Whether the I.G. is authorized to exclude Petitioner pursuant to section 1128(b)(4) of the Act; and

2. Whether the exclusion that the I.G. imposed against Petitioner is reasonable as a matter of law.

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) of the Act.

Section 1128(b)(4) of the Act permits the I.G. to exclude an individual who loses his or her State license to provide health care for reasons bearing on that individual's professional competence, professional performance, or financial integrity. Specifically, subsection (B) of section 1128(b)(4) permits the I.G. to exclude any 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 undisputed facts of this case establish that Petitioner surrendered her license to provide social work in California while a formal disciplinary proceeding was pending against her concerning her professional competence and performance. Consequently, the I.G. was authorized to exclude Petitioner pursuant to section 1128(b)(4) of the Act.

On February 1, 1999, a complaint was filed against Petitioner before the Board of Behavioral Sciences, Department of Consumer Affairs, State of California (Board). I.G. Ex. 1. The complaint alleged that Petitioner had received a license from the Board to serve as a licensed clinical social worker in California. Id. at 1 - 2. It asserted that Petitioner had engaged in unprofessional conduct and was guilty of gross negligence or incompetence. Id. at 2 - 6. It demanded that a hearing be held into these allegations and that Petitioner's license be revoked or suspended. Id. at 6.

A California State administrative law judge held a hearing to adjudicate the allegations in the complaint. On December 24, 1999, the judge issued a proposed decision which upheld, in part, the allegations against Petitioner of unprofessional conduct and gross negligence. I.G. Ex. 2. The remedies recommended by the judge included a 120-day suspension of Petitioner's license to practice as a social worker and requirements that: Petitioner submit a performance plan to the Board; take courses in the areas of ethics and maintaining professional boundaries with patients; take and pass the State license examination required of new applicants for a social worker's license; and reimburse the Board $8,983.86 for the costs of prosecution of her case. Id. at 11 - 12. The judge's proposed decision was adopted by the Board on January 24, 2000. Id. at 1.

On May 16, 2001, a petition was filed with the Board to revoke Petitioner's probation. I.G. Ex. 3, at 7 - 10. The petition alleged that Petitioner failed to comply with the conditions of her probation in that Petitioner had taken the written State license examination twice but had failed to pass it on each occasion, and had failed to pay the first installment of her mandated restitution. Id. at 8 - 9. The petition demanded that the Board hold a hearing and, among other things, revoke Petitioner's probation and revoke or suspend her clinical social worker's license. Id. at 9.

Subsequently, Petitioner and the Board entered into a stipulation in which Petitioner surrendered her license to practice social work. I.G. Ex. 3, at 2 - 5. Petitioner admitted the truth of each and every charge in the petition to revoke her probation. Id. at 3. She admitted that cause existed for discipline against her. Id. at 3 - 4. She agreed to pay the previously imposed restitution amount of $8,983.86 as a precondition for reapplying for a social worker's license. Id. at 4 - 5. The surrender of her license became effective on December 15, 2001. I.G. Ex. 4, at 1.

The above-described facts plainly satisfy the statutory requirements that must be met to authorize an exclusion under section 1128(b)(4) of the Act. First, Petitioner surrendered her license to provide health care. That is evident from the stipulation Petitioner entered into with the Board. Second, she surrendered that license while a formal disciplinary proceeding was pending against her. That proceeding began with the February 1, 1999 complaint, continued through a hearing and administrative decision which imposed probation against Petitioner's license, and culminated with the petition to revoke that probation. Third, this proceeding concerned Petitioner's professional competence and performance. The petition specifically alleged that Petitioner had acted incompetently and unprofessionally in the performance of her duties. The probation and other remedies imposed against Petitioner by the Board were based on the administrative law judge's decision to sustain, in part, the allegations of incompetent and unprofessional discharge of duties.

Petitioner argues that she did not surrender her license while a disciplinary proceeding was pending against her. Petitioner's Brief in Opposition to Inspector General's Motion for Summary Affirmance (Petitioner's brief) at 3 - 4. Petitioner contends that the disciplinary proceeding against Petitioner ended with the decision of the California administrative law judge. See I.G. Ex. 2. Thus, according to Petitioner, her subsequent license surrender was not made while a formal disciplinary proceeding was pending against her.

Petitioner's argument depends on viewing the petition to revoke Petitioner's probation and her subsequent license surrender as an action that is separate and totally disconnected from the process that resulted in her being placed on probation. That is an artificial separation which has no basis in reality. It is apparent that the petition to revoke Petitioner's probation and her license surrender were elements of an overall formal disciplinary process. Moreover, even if one could logically view the petition to revoke Petitioner's probation as initiating a proceeding against Petitioner's license that is separate from the disciplinary proceeding that resulted in her being placed on probation, that subsequent proceeding still constituted a "formal disciplinary proceeding" within the meaning of section 1128(b)(4) of the Act.

Petitioner argues next that the probation revocation proceeding resulted in no findings or conclusions against Petitioner regarding her professional competence, professional performance, or financial integrity. Petitioner's brief at 4 - 5. As with the previous argument, Petitioner hinges this argument on separating the probation revocation proceeding from the proceeding that resulted in her being placed on probation. Again, I find this argument to be without merit. The probation revocation proceeding clearly sprang from findings of professional incompetence and poor performance that were made against Petitioner. Furthermore, Petitioner's argument is based in large measure on a misreading of the Act. Section 1128(b)(4) does not require that findings be made regarding an individual's professional competence, professional performance, or financial integrity as a necessary prerequisite to conferring authority on the I.G. to exclude that individual. It only requires that a formal disciplinary proceeding concern the individual's professional competence, professional performance, or financial integrity. Here, the proceeding against Petitioner obviously concerned her professional competence and performance.

Indeed, the probation revocation proceeding explicitly concerned Petitioner's professional competence, even if that proceeding was artificially separated from the complaint and hearing decision that imposed the probation to begin with. The petition for revocation of Petitioner's probation expressly recited that Petitioner failed to pass the written State social worker's license examination on each of the two occasions that she took the examination after being placed on probation. Petitioner's failure to pass that examination relates directly to her professional competence.

Finally, Petitioner avers that she was not aware of the potential federal consequences of surrendering her State license. Petitioner asserts that it would be unfair to exclude her given that she was not aware of the possibility that she might be excluded when she surrendered her license. Petitioner's brief at 5 - 6. I find this argument to be unpersuasive. The Act does not suggest that the I.G. may exclude an individual only when he or she surrenders a health care license with awareness of the possibility that the surrender might result in an exclusion being imposed.

Indeed, section 1128(b)(4) of the Act would be meaningless if it was interpreted to require "awareness" of the potential consequences of a license surrender as a condition for authority to exclude. The purpose of the section is to protect beneficiaries and recipients of federally-funded programs from untrustworthy individuals. Congress determined that individuals who lose or surrender their licenses to provide health care in the face of formal disciplinary proceedings involving those individuals' professional competence, professional performance, or financial integrity are by definition so untrustworthy as to justify excluding them from federally-funded programs. It is the subject of the proceedings against an individual's license - not the individual's "awareness" of the possible consequences of a license surrender - that establishes the individual's lack of trustworthiness to provide care.

2. The exclusion that the I.G. imposed against Petitioner is reasonable as a matter of law.

Although the I.G. has discretion whether or not to exclude an individual pursuant to section 1128(b)(4) of the Act, the I.G. has no discretion in determining the minimum term of such an exclusion. Section 1128(c)(3)(E) of the Act provides that any exclusion imposed on the authority of section 1128(b)(4) must be for no less than the period during which the excluded individual's license to provide health care is revoked, suspended, or surrendered. Thus, where the I.G. is authorized to impose an exclusion pursuant to section 1128(b)(4), that exclusion is reasonable as a matter of law if it is coterminous with the period during which the excluded individual has lost his or her State license to provide health care.

Here, the exclusion that the I.G. imposed against Petitioner is coterminous with the loss of her California license to practice as a social worker. The exclusion is, therefore, reasonable as a matter of law.

Petitioner argues that there was no "sanction" imposed by a State licensing authority against her and, consequently, there is no State license loss which can be the basis of a federal period of exclusion. Petitioner's brief at 6. This argument is without merit because Petitioner's surrender of her license falls squarely within the plain meaning of what is covered by sections 1128(b)(4)(B) and 1128(c)(3)(E) of the Act.

There is nothing in these sections which suggests that a "sanction" should be the basis of an exclusion. The term is used neither in section 1128(b)(4)(B) nor in section 1128(c)(3)(E) of the Act. Both sections address license revocations, suspensions, and surrenders, without ever referring to a "sanction."

Steven T. Kessel

Administrative Law Judge