$05:Exclusion Case
Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
In the Case of:
Dr. William I. Cooper,
Petitioner,
- v. -
The Inspector General.
DATE: June 7, 1995
Docket No. C-95-024
Decision No. CR381
DECISION
On October 19, 1994, the Inspector General (I.G.) notified
Petitioner that he was being excluded from participating in the
following programs: Medicare, Medicaid, Maternal and Child Health
Services Block Grant and Block Grants to States for Social
Services. The I.G. notified Petitioner that he was being excluded
pursuant to the provisions of section 1128(b)(4) of the Social
Security Act (Act). The I.G. asserted that the exclusion was based
on the fact that Petitioner's license to practice medicine or
provide health care in the State of Pennsylvania, or the right to
renew that license, had been suspended, or was otherwise lost, due
to actions taken by the Pennsylvania State Board of Medicine for
reasons bearing on Petitioner's professional competence,
professional performance, or financial integrity. The I.G. told
Petitioner that he would be excluded until he obtained a valid
license to practice medicine or provide health care in
Pennsylvania.
Petitioner requested a hearing, and the case was assigned to me for
a hearing and a decision. I scheduled an in-person evidentiary
hearing, based on Petitioner's request to present in-person
testimony. Petitioner then moved for summary disposition. The
I.G. opposed the motion. On February 21, 1995, I denied
Petitioner's motion. 1/ Petitioner then submitted his list of
proposed witnesses. Based on this submission, the I.G. moved to
cancel the in-person hearing, arguing that there existed no
disputed issues of material fact in the case. On March 16, 1995,
I ordered that the in-person hearing be continued, and I afforded
the I.G. the opportunity to file a motion for summary disposition.
2/ The I.G. then moved for summary disposition. Petitioner
opposed the motion.
I have considered the I.G.'s motion, Petitioner's opposition to the
motion, the exhibits submitted by the parties, and the relevant
law. 3/ I conclude that there exist no disputed issues of material
fact in this case. I conclude also that, based on the undisputed
material facts and the law, the I.G. was authorized to exclude
Petitioner pursuant to section 1128(b)(4)(B) of the Act. Finally,
I conclude that the length of the exclusion -- coterminous with
Petitioner's loss of his license to practice medicine in
Pennsylvania -- is authorized by applicable regulations.
I. Issues, findings of fact, and conclusions of law
There are two issues in this case. The first issue is whether the
I.G. had authority to exclude Petitioner under section 1128(b)(4)
of the Act. The second issue is whether the length of the
exclusion is reasonable.
In concluding that the I.G. had authority to exclude Petitioner and
that the length of the exclusion is reasonable, I make the
following findings of fact and conclusions of law. After each
finding or conclusion, I state the page or pages of this decision
at which I discuss the finding or conclusion in detail.
1. Petitioner surrendered his license to practice medicine in
Pennsylvania during the pendency of a formal disciplinary
proceeding which concerned his professional competence or
performance. Pages 3-4, 6-8.
2. The I.G. was authorized to exclude Petitioner pursuant to
section 1128(b)(4)(B) of the Act. Pages 8-9.
3. The exclusion which the I.G. imposed against Petitioner is
reasonable. Page 9.
II. Analysis
A. Undisputed material facts
The undisputed material facts of this case are as follows. On
December 23, 1991, the Commonwealth of Pennsylvania, State Board of
Medicine (Pennsylvania Board of Medicine) issued an order to show
cause to Petitioner. I.G. Ex. 1. The order to show cause
contained numerous allegations that Petitioner had failed to comply
with the ethical or quality standards of the medical profession.
Id. at 2-140. It stated that, should the Pennsylvania Board of
Medicine find the allegations to be true, the Board could impose
penalties against Petitioner, including revocation or suspension of
Petitioner's license to practice medicine in Pennsylvania. Id. at
140.
Petitioner was advised of his right to request a hearing. I.G. Ex.
1 at 141. On March 18, 1992, Petitioner answered the order to show
cause. P. Ex. 1.
In March 1994, Petitioner and the Pennsylvania Board of Medicine
entered into a consent agreement. I.G. Ex. 2. In order to resolve
the allegations against him, Petitioner agreed to the following:
a. That on or before June 30, 1994, [Petitioner] will
voluntarily and permanently cease and desist from practicing
medicine and surgery within the Commonwealth of Pennsylvania;
b. That on December 31, 1994, the end of the current biennial
renewal period, [Petitioner] shall allow his unrestricted medical
license, . . . to go on permanent inactive status;
c. That [Petitioner] will not at any time thereafter apply
for reinstatement, reissuance, reactivation or renewal of his
unrestricted license to practice medicine and surgery in the
Commonwealth of Pennsylvania.
Id. at 2-3.
Petitioner asserts that there exist facts in addition to the
foregoing undisputed material facts which are material to this case
and which he would prove at an in-person evidentiary hearing.
Petitioner avers that, if provided an in-person hearing, he would
prove that the reasons he entered into the consent agreement had
nothing to do with his professional competence or performance. He
asserts that he would prove that his reasons for giving up his
right to renew his license relate to the time and financial
commitment that would have been involved in contesting the
allegations made against him in Pennsylvania, coupled with his
intent to relocate his practice to another State. Petitioner's
Brief at 4.
For purposes of resolving the I.G.'s motion, I accept as true
Petitioner's contention that he entered into the consent agreement
because he did not want to incur the expense and time outlay that
would be involved in defending against the allegations made in the
Pennsylvania Board of Medicine's order to show cause. Also, I
accept as true Petitioner's contention that he entered into the
consent agreement because he was planning to relocate his practice
to another State. However, for the reasons I discuss at Part II.C.
of this decision, these contentions are not of facts that are
material to the outcome of this case.
In his request for hearing in response to the I.G.'s October 19,
1994 notice of exclusion, Petitioner alleged that he was licensed
to practice in States other than Pennsylvania, and that these
States were fully aware of the actions which occurred in
Pennsylvania concerning Petitioner's Pennsylvania license.
Petitioner contended further that none of these other States had
taken any adverse action concerning the licenses to practice
medicine which Petitioner held in those States. 4/ If true, these
allegations might provide a basis for Petitioner to argue that the
exclusion which the I.G. imposed is not reasonable. See Part II.B.
of this decision.
However, Petitioner has not offered to prove any facts which might
support these allegations. He has not contended, in response to
the I.G.'s motion for summary disposition, that he would be able to
prove at an in-person hearing that Oklahoma or New Jersey had
decided not to take action against Petitioner's licenses in those
States, being fully apprised of the events that occurred in
Pennsylvania. He has not submitted exhibits or proposed testimony
to support the assertions he made in his request for a hearing. I
conclude that Petitioner has not shown that there may exist
evidence which supports his allegations concerning his licenses to
practice medicine in States other than Pennsylvania.
B. Applicable law
The I.G. excluded Petitioner pursuant to section 1128(b)(4) of the
Act. This section authorizes the Secretary (or her delegate, the
I.G.), to exclude an 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.
The Secretary has published a regulation which governs the length
of exclusions imposed pursuant to section 1128(b)(4) of the Act.
42 C.F.R. 1001.501. This regulation provides, generally, that
an exclusion imposed pursuant to section 1128(b)(4) will be for the
same length of time as the State revocation, suspension, surrender
or other loss of a license to provide health care which is the
basis for the exclusion. 42 C.F.R. 1001.501(b)(1). However,
the regulation states an exception permitting an exclusion to be
for less than a coterminous period. Under 42 C.F.R.
1001.501(c)(1), an exclusion may be for less than a coterminous
period if, prior to the date of the I.G.'s notice of exclusion to
the excluded individual or entity:
the licensing authority of a State (other than the one in
which the individual's or entity's license had been revoked,
suspended, surrendered or otherwise lost), being fully apprised of
all of the circumstances surrounding the prior action by the
licensing board of the first State, grants the individual or entity
a license or takes no significant adverse action as to a currently
held license . . .
C. Analysis of the material facts and law
The I.G. argues that, based on the undisputed material facts and
the law, she was authorized to exclude Petitioner, either under
section 1128(b)(4)(A) or section 1128(b)(4)(B) of the Act.
According to the I.G., within the meaning of section 1128(b)(4)(A)
of the Act, Petitioner "otherwise lost" his license to practice
medicine in Pennsylvania for reasons bearing on his professional
competence or performance when he entered into the consent
agreement with the Pennsylvania Board of Medicine. The I.G. argues
also that, within the meaning of section 1128(b)(4)(B) of the Act,
Petitioner "surrendered" his license to practice medicine in
Pennsylvania during the pendency of a formal disciplinary
proceeding in that State which concerned his professional
competence or performance.
Petitioner argues that the I.G. has not established a basis to
exclude him either under section 1128(b)(4)(A) or section
1128(b)(4)(B) of the Act. Petitioner asserts that his license to
practice medicine in Pennsylvania was not revoked, suspended, or
otherwise lost within the meaning of section 1128(b)(4)(A). He
argues that, where an individual relinquishes voluntarily the
privilege of providing health care for reasons of expedience, the
loss of that privilege is not a "loss" under section 1128(b)(4)(A),
even if the events that predicated the loss of license involve
charges relating to that individual's professional competence or
performance. 5/ Petitioner asserts additionally that he should be
permitted to prove that the reasons he gave up his Pennsylvania
license to practice medicine had to do with expediency, and not
with the merits of the charges filed against him in Pennsylvania.
Petitioner argues also that the I.G. has not established a basis to
exclude him under section 1128(b)(4)(B) of the Act. He argues that
he did not surrender his license to practice medicine within the
meaning of this section. 6/ Petitioner apparently asserts that, in
order to surrender a license within the meaning of section
1128(b)(4)(B), an individual must physically surrender his or her
license document to the appropriate State authorities. Although
Petitioner acknowledges that he agreed to cease practicing medicine
in Pennsylvania and to not seek renewal of his license to practice
in that State, he asserts that this agreement did not contain a
provision to physically surrender his license to practice medicine.
Petitioner's license to practice medicine was not revoked,
suspended, or otherwise lost, within the meaning of section
1128(b)(4)(A) of the Act. It is apparent from the plain language
of this section that it applies only to those circumstances where
an individual or entity loses a license to provide health care as
the consequence of an adverse action taken by a State licensing
authority. 7/ Petitioner's license to practice medicine in
Pennsylvania was not taken from him by the Pennsylvania Board of
Medicine. Rather, Petitioner voluntarily relinquished the
privilege of practicing in Pennsylvania in order to end a
disciplinary proceeding that had been initiated against him in that
State.
It is unnecessary for me to address Petitioner's assertion that the
reason he ceased practicing in Pennsylvania did not relate to his
professional competence or performance. I do not reach that issue
because section 1128(b)(4)(A) does not apply to the circumstance
where an individual or entity voluntarily relinquishes the
privilege of providing health care. Thus, the reason that the
individual or entity relinquishes the privilege is irrelevant to
application of this section. However, I would have concluded that
Petitioner's argument as to the reasons for his ceasing his
Pennsylvania practice is not germane, had I concluded that his
license was "otherwise lost" within the meaning of section
1128(b)(4)(A). The reasons described by that section relating to
a loss of a license to provide health care plainly relate to the
reasons on which a State licensing authority bases an adverse
action, and not to an individual's or entity's reasons for giving
up a license to a State licensing authority.
Petitioner "surrendered" his license to practice medicine in
Pennsylvania within the meaning of section 1128(b)(4)(B) of the
Act. I construe this section to apply to the case where an
individual or entity voluntarily relinquishes the privilege to
provide health care conferred by a license during the pendency of
formal disciplinary proceedings that concern the individual's
professional competence, professional performance, or financial
integrity. The undisputed material facts of this case prove that
Petitioner relinquished his privilege to practice medicine in
Pennsylvania under circumstances described by section
1128(b)(4)(B).
I do not agree with Petitioner's argument that this section applies
only to the circumstance where an individual or entity physically
surrenders to a State licensing authority the document which
authorizes that individual or entity to provide health care. In
neither section 1128(b)(4)(A) nor section 1128(b)(4)(B) did
Congress intend the word "license" to mean only a document which
memorializes a privilege to provide health care. The word
"license" is not defined either in section 1128(b)(4)(A) or section
1128(b)(4)(B). Absent an explicit congressional definition of
"license," it is reasonable to give it its common and ordinary
meaning. Webster's New Collegiate Dictionary, 1977 Ed., defines a
"license" to be:
1 a: permission to act b: freedom of action 2 a: a permission
granted by a competent authority to engage in a business or
occupation or in an activity otherwise unlawful b: a document,
plate, or tag evidencing a license granted . . . .
From this, it is evident that the common and ordinary meaning of
"license" encompasses permission by an authority to perform an act.
While it is true that a "license" may constitute a document which
evidences the grant of authority, the common and ordinary meaning
of the word plainly is far broader than that. There is nothing
contained in section 1128(b)(4)(A) or section 1128(b)(4)(B) to
suggest that Congress intended it to be applied consistent with
only the narrowest possible definition of "license."
The undisputed material facts of this case establish that
Petitioner surrendered the authority granted by the Pennsylvania
Board of Medicine to practice medicine in Pennsylvania during the
pendency of a formal disciplinary proceeding concerning his
professional competence or performance. The consent agreement
which Petitioner entered into with the Pennsylvania Board of
Medicine had three relevant elements. Petitioner agreed to: (1)
permanently cease practicing medicine in Pennsylvania; (2) allow
his license to practice medicine in Pennsylvania to go on permanent
inactive status; and (3) not seek reinstatement of his Pennsylvania
license. I.G. Ex. 2. These elements comprise a surrender by
Petitioner of his Pennsylvania license within the meaning of
section 1128(b)(4)(B) of the Act.
The exclusion of Petitioner is reasonable. The coterminous
exclusion imposed by the I.G. is authorized by 42 C.F.R.
1001.501(b)(1). Petitioner has neither offered nor proven any
facts to show that the requirement of this regulation, that,
ordinarily, an exclusion imposed pursuant to section 1128(b)(4)
must be coterminous with the loss of a license to provide health
care, should not apply here.
III. Conclusion
I conclude that the undisputed material facts of this case
establish that the I.G. was authorized to exclude Petitioner under
section 1128(b)(4)(B) of the Act, and that the exclusion imposed by
the I.G. is reasonable. Therefore, I enter summary disposition
sustaining the I.G.'s exclusion determination.
_______________________
Steven T. Kessel
Administrative Law Judge
1. Ruling Denying Motion for Summary Disposition, February 21,
1995.
2. Order Continuing Hearing, March 16, 1995.
3. The I.G. submitted two exhibits (I.G. Ex. 1 and 2) in
support of her motion for summary disposition. Petitioner
submitted one exhibit (P. Ex. 1) in opposition to the I.G.'s motion
for summary disposition. Neither party objected to the admission
into evidence of the other party's exhibits. Therefore, I admit
into evidence I.G. Ex. 1 and 2, and P. Ex. 1.
I note, however, that it is not necessary for a party to offer, or
for me to receive, exhibits in support of or in opposition to a
motion for summary disposition where there are no disputed issues
of material fact. Where facts are truly not in dispute, then a
party need only aver those facts which that party believes to be
dispositive of an issue.
4. In Petitioner's Request for Hearing and at the initial
prehearing conference that I held, Petitioner's counsel asserted
that the States of Oklahoma and New Jersey were fully aware of the
events which had occurred in Pennsylvania, but had not taken any
adverse action against the licenses to practice medicine which
Petitioner held in those States. Petitioner's Request for Hearing,
November 3, 1994; Order and Notice of Hearing, December 14, 1994.
5. Petitioner characterizes the terms of the consent agreement
as the relinquishing of his right to renew his Pennsylvania
license. Petitioner's Brief at 3.
6. Petitioner does not deny that a formal disciplinary
proceeding was pending against him in Pennsylvania when he entered
into the consent agreement. He concedes that this proceeding
concerned his professional competence or performance. Petitioner's
Brief at 5.
7. If I were to interpret this section as broadly as is urged
by the I.G., then section 1128(b)(4)(B) would be superfluous. That
is so because, under the I.G.'s advocated interpretation of
"otherwise lost" in section 1128(b)(4)(A), the term would encompass
any situation that might comprise a surrender of a license within
the meaning of section 1128(b)(4)(B).