Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
In the Case of:
Keith M. King, M.D.,
Petitioner,
- v. -
The Inspector General.
DATE: March 19, 1991
Docket No. C-313
DECISION
On August 1, 1990, the Inspector General (I.G.) notified
Petitioner that he was being excluded from participation
in Medicare and State health care programs. 1/ The
I.G. told Petitioner that he was being excluded because
his license to practice medicine in the State of Kentucky
was revoked by the Kentucky Board of Medical Licensure.
Petitioner was advised that he would be excluded until he
obtained a valid license to practice medicine in the
State of Kentucky.
Petitioner timely requested a hearing, and the case was
assigned to me for a hearing and decision. Petitioner
asserted that his revocation had been stayed pending the
outcome of an appeal. He argued that, consequently, the
I.G. lacked authority to exclude him. During the
prehearing conference on November 21, 1990, Petitioner
indicated that he would file a motion challenging the
authority of the I.G. to exclude him under section
1128(b)(4)(A) of the Social Security Act (Act).
Subsequently, Petitioner filed a motion to dismiss or, in
the alternative, to stay the action of the I.G. pending
resolution of the matter by the court. The I.G. filed an
opposition. Neither party requested oral argument.
I have considered the parties' arguments, the undisputed
material facts, and the applicable law and regulations.
I conclude that the I.G. did not have authority to impose
and direct an exclusion against Petitioner pursuant to
section 1128(b)(4)(A) of the Act. I therefore vacate the
exclusion.
ISSUE
The issue in this case is whether the I.G. had the
authority to exclude Petitioner from the Medicare and
Medicaid programs for reasons bearing on the revocation
of his license by a State licensing authority under
section 1128(b)(4)(A) of the Act.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. Prior to January 25, 1990, Petitioner was licensed to
practice medicine in the State of Kentucky. I.G. Ex. 1.
2/
2. On January 25, 1990, the Kentucky Board of Medical
Licensure (the Medical Board) revoked Petitioner's
Kentucky medical license. I.G. Ex. 3.
3. The Medical Board found that Petitioner's conduct,
which resulted in the suspension of his privileges at the
Highlands Regional Medical Center (the Hospital) in
Prestonsburg, Kentucky, involved substandard anesthesia
care and was potentially dangerous to his patients and
co-workers. I.G. Ex. 3.
4. The Medical Board concluded that Petitioner's
conduct was unprofessional in nature. I.G. Ex. 3.
5. On May 2, 1990, the Medical Board issued an order
denying Petitioner's request for reconsideration. I.G.
Ex. 4.
6. On February 26, 1990, Petitioner appealed the
Medical Board's decision to the Jefferson Circuit Court
in Louisville, Kentucky.
7. Pursuant to Petitioner's appeal, the court entered
an Agreed Order for Temporary Injunction on June 18,
1990. P. Ex. A.
8. The court's order temporarily enjoined the Medical
Board from revoking Petitioner's medical license during
the pendency of his appeal. P. Ex. A.
9. The Secretary of Health and Human Services (the
Secretary) delegated to the I.G. the authority to
determine, impose, and direct exclusions pursuant to
section 1128 of the Act. 48 Fed. Reg. 21611 (1983).
10. On August 1, 1990, the I.G. excluded Petitioner from
participating in the Medicare program and directed that
he be excluded from participating in Medicaid until he
obtains a valid license to practice medicine in the State
of Kentucky, pursuant to section 1128(b)(4)(A) of the
Act. I.G. Ex. 7.
11. Petitioner's license to practice medicine has not
been revoked within the meaning of section 1128(b)(4)(A)
of the Act. Findings 7-8.
12. The I.G. did not have authority to impose or direct
an exclusion against Petitioner pursuant to section
1128(b)(4)(A) of the Act. Findings 7-8.
ANALYSIS
The issue before me on Petitioner's motion to dismiss is
whether the I.G. had authority to exclude Petitioner
pursuant to section 1128(b)(4)(A) of the Act. I conclude
that the I.G. did not have such authority, because, as of
the date of the exclusion, Petitioner's license to
practice medicine in the State of Kentucky was not
revoked, suspended, or otherwise lost within the meaning
of section 1128(b)(4)(A). Therefore, I enter summary
disposition in favor of Petitioner and vacate the
exclusion which the I.G. imposed and directed against
him.
The relevant material facts in this case are not
disputed. Petitioner, a physician, had a license to
practice medicine in Kentucky. Petitioner had served on
the medical staff of a hospital in Prestonsburg,
Kentucky. In 1988, that hospital suspended Petitioner's
staff privileges. The reasons for that action included
unprofessional conduct, professional incompetence, and
malpractice. Subsequently, a complaint was filed against
Petitioner before the Kentucky State Board of Medical
Licensure (the Medical Board). On January 25, 1990, the
Medical Board revoked Petitioner's Kentucky medical
license, concluding that Petitioner had engaged in
unprofessional conduct. On May 2, 1990, the Medical
Board declined Petitioner's request that it reconsider
its January order.
On February 26, 1990, Petitioner filed an appeal of the
license revocation in a Kentucky State court. On June
18, 1990, Petitioner obtained a temporary injunction from
that court. The injunction order enjoined the Medical
Board's license revocation order pending the outcome of
Petitioner's appeal. In issuing the injunction, the
court found that unless it enjoined the order, Petitioner
would be immediately and irreparably harmed by it. 3/
On June 6, 1990, the I.G. sent Petitioner a letter in
which he advised Petitioner that he was considering
excluding him pursuant to section 1128(b)(4) of the Act.
The I.G. sent a notice of exclusion to Petitioner on
August 1, 1990, advising Petitioner that he was being
excluded pursuant to section 1128(b)(4). That section
provides that the Secretary may exclude 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, 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.
Petitioner argues from the foregoing facts that the
I.G.'s exclusion determination should be vacated.
Petitioner's contention is that, by virtue of the
injunction, his license to practice medicine in Kentucky
has not been revoked, suspended, or otherwise vacated
within the meaning of section 1128(b)(4). Petitioner
does not deny that his license to practice medicine in
Kentucky was initially revoked by a state licensing
authority. He does not dispute that the rationale
expressed by the Medical Board in its revocation order
pertained to Petitioner's professional competence or
performance. Petitioner contends that the Medical
Board's revocation order was effectively nullified by the
court's order granting a temporary injunction.
Petitioner argues that, pursuant to a Kentucky statute,
KRS 311.593(4), and the court's injunction, the Medical
Board's order was not in effect as of the date the I.G.
excluded Petitioner and is not presently in effect. 4/
The I.G. does not deny that the license revocation order
was enjoined. He argues that it would be inimical to
Congressional intent to permit practitioners whose
licenses had been revoked for reasons relating to their
competence or performance to evade exclusions by
obtaining state court injunctive relief from state
medical boards' license revocation orders. The I.G.
contends that section 1128 should be interpreted broadly
so that Medicare beneficiaries and Medicaid recipients
are protected from untrustworthy providers.
The I.G. contends that the court's injunction order was
not contested by the Medical Board because Petitioner had
moved to Arizona and no longer posed a threat to
residents of Kentucky. Therefore, the state authorities
no longer had an interest in barring Petitioner from
practicing medicine. On the other hand, according to the
I.G., section 1128 embodies Congressional intent that
recipients and beneficiaries receive national protection
from individuals and entities who had been determined to
be untrustworthy providers of health care in any state.
The I.G. argues that this supervening national interest
requires that the I.G.'s authority to exclude Petitioner
be sustained in this case.
It is not completely clear from the record of this case
that Kentucky authorities agreed to the injunction, or
that the Kentucky court imposed it, based entirely on the
"out of sight, out of mind" rationale asserted by the
I.G. However, for purposes of deciding Petitioner's
motion, I accept the I.G.'s representations. I conclude
that there was no license revocation in effect as of the
date the I.G. imposed and directed the exclusion against
Petitioner. The I.G. was without authority to exclude
Petitioner regardless of the Medical Board's motives in
agreeing to the injunction or the court's rationale for
issuing it.
I do not disagree with the I.G.'s statement of
Congressional intent. In enacting section 1128(b)(4),
Congress was concerned that untrustworthy practitioners
whose licenses had been suspended or revoked by a state
might move to another state, open practices, and continue
to treat program beneficiaries and recipients. See S.
Rep. No. 109, 100th Cong., 1st Sess. 7, reprinted in 1987
U.S. Code Cong. & Admin. News 688. Congress' intent in
enacting section 1128(b)(4) included giving the Secretary
or his delegate, the I.G., the authority to provide
national protection to program beneficiaries and
recipients from untrustworthy providers whose licenses to
provide health care had been revoked by state licensing
authorities.
However, the I.G.'s accurate recitation of Congressional
intent begs the question of whether he had authority to
exclude Petitioner. Congress did not give the Secretary
carte blanche authority to exclude individuals or
entities who he determined posed a threat to the welfare
of program beneficiaries or recipients. The Act
specifically delineates those circumstances which either
mandate or authorize exclusions. The Secretary does not
have authority to exclude an untrustworthy provider
absent the presence of at least one of the specifically
delineated circumstances described in section 1128. Joel
L. Korins, D.P.M., DAB Civ. Rem. C-176 (1990).
The authority to impose an exclusion pursuant to section
1128(b)(4) derives from the actions taken by state
authorities. In order for there to be authority to
exclude Petitioner pursuant to section 1128(b)(4),
Petitioner's license to practice medicine must have been
revoked, suspended, or otherwise lost as of the date of
the I.G.'s exclusion determination. There is no question
that the Medical Board initially revoked Petitioner's
license. However, prior to the imposition of the
exclusion, a state court enjoined that license
revocation. The consequence of the court's order was to
at least temporarily rescind the Medical Board's action.
Petitioner was freed by the injunction to resume his
practice in Kentucky, if he desired, on the same footing
as any physician licensed to practice medicine in that
state. The effect of the injunction, therefore, was to
erase the license revocation, at least until the
conclusion of Petitioner's appeal. I conclude that,
given the imposition of the injunction, Petitioner's
Kentucky license was not revoked, suspended, or otherwise
lost as of the date the I.G. imposed and directed
exclusions against Petitioner. 5/
Congress could have specified in enacting section
1128(b)(4) that a license revocation or suspension order
authorized the Secretary to impose and direct exclusions
regardless whether the order was temporarily enjoined
pending an appeal. It did not do so. Furthermore, the
legislative history of section 1128 is devoid of any
commentary which would support the conclusion that
Congress intended to give the Secretary authority to
impose and direct exclusions based on enjoined license
suspension or revocation orders. I do not find that the
Act can be read as expansively as the I.G. asserts, given
Congress' silence on this point.
Congress' silence on this question in section 1128(b)(4)
stands in contrast to its treatment of the term
"convicted" in section 1128(i) of the Act. That section
defines the term "convicted" to include circumstances
where pleas are accepted by courts but where courts
withhold judgments of conviction. Social Security Act,
section 1128(i)(4). Congress' definition of "convicted"
assures that the Secretary has authority to impose and
direct exclusions based on convictions regardless of
state procedures which might work to ameliorate the
impact of convictions on defendants. Congress did not
enact a similarly expansive definition of a license
revocation or suspension.
The I.G. argues that the injunction is fictitious, in
that Petitioner does not intend to resume his Kentucky
practice. According to the I.G., if Petitioner were to
attempt to resume that practice, that would "violate the
spirit and intent of the temporary injunction order."
I.G.'s Memorandum at 10-11, n. 2. However, there is
nothing of record of this case which would support a
finding that, notwithstanding the injunction, Petitioner
continues to be precluded from returning to Kentucky to
practice medicine. On its face, the injunction order
permits Petitioner to do precisely that. 6/
CONCLUSION
Based on the undisputed facts and the law, I conclude
that the I.G. did not have authority to exclude
Petitioner under section 1128(b)(4) of the Act.
Therefore, I enter summary disposition in favor of
Petitioner and vacate the exclusion imposed and directed
against Petitioner by the I.G.
__________________________
Steven T. Kessel
Administrative Law Judge
* * * Footnotes * * *
1. "State health care program" is defined by
section 1128(h) of the Social Security Act to include any
State Plan approved under Title XIX of the Act (such as
Medicaid). I use the term "Medicaid" hereafter to
represent all State health care programs from which
Petitioner was excluded.
2. The parties' exhibits are cited as I.G. Ex.
(number) for the Inspector General's exhibits and P. Ex.
(letter) for Petitioner's exhibits.
3. The injunction order also recited that
Petitioner no longer resided in Kentucky, but had
relocated to Arizona. The order stated that Petitioner
and the Medical Board agreed that Petitioner would suffer
immediate and irreparable harm before a decision could be
reached on his appeal "by virtue of the operation of
certain federal laws, as well as the operation of laws of
other states." I.G. Ex. 6.
4. The Kentucky statute provides in relevant
part that:
If the petitioner seeks immediate injunctive
relief [from an order by the Medical Board] the
court shall not award such relief without
providing the [Medical Board] with the
reasonable opportunity to be heard. A final
order of the [Medical Board] affecting a
physician's license shall remain in effect
until the court enters an order reversing or
enjoining the [Medical Board's] order.
5. Should the injunction be vacated and the
license revocation order reinstated, then the I.G. would
have authority to exclude Petitioner based on the Medical
Board's license revocation order.
6. The I.G.'s argument suggests that, in
deciding whether he has authority to impose and direct
exclusions, it is appropriate to look behind the language
of state actions to determine the intent of the parties
and court officials in those actions. There may be cases
where state actions are ambiguous. In those cases, some
inquiry may be necessary to determine what a state agency
or court intended. For example, a party may be convicted
of a criminal offense, but the charging document and the
conviction itself may not clearly state whether the
offense falls within one of the subsections of section
1128 which authorize the imposition of an exclusion. In
that case, it may be appropriate to conduct a limited
fact inquiry to decide what were the elements of the
offense of which the party was convicted. See Thomas M.
Cook, DAB Civ. Rem. C-106 (1989). However, the Kentucky
court's injunction is not ambiguous in this case. See
I.G. Ex. 6.