By letter dated June 30, 1998, the I.G. notified Petitioner that he was being excluded from participating in the Medicare and Medicaid programs. The I.G. explained that Petitioner's exclusion was authorized under section 1128(b)(4) of the Act because Petitioner's "license to practice medicine or provide health care in the State of Kansas was revoked, suspended, or otherwise lost or was surrendered while a formal disciplinary proceeding was pending before the licensing authority for reasons bearing on [his] professional competence, professional performance, or financial integrity." Additionally, the I.G. advised Petitioner that his exclusion would remain in effect "as long as that license is revoked, suspended, or otherwise lost."

Petitioner requested a hearing and the case was assigned to me for decision. The parties agreed that the case could be decided based on their written submissions, and that an in-person hearing was not necessary. The parties have each submitted written arguments and proposed exhibits.

The I.G. submitted a brief and seven proposed exhibits (I.G. Exs. 1-7). Petitioner did not object to these exhibits. Petitioner submitted a brief and 19 proposed exhibits, which I have renumbered P. Exs. 1-19. The I.G. did not object to Petitioner's exhibits. Thus, in the absence of any objections, I am admitting I.G. Exs. 1-7 and P. Exs. 1-19 into evidence in this case. I base my decision in this case on these exhibits, the applicable law, and the arguments of the parties.

Pursuant to section 1128(b)(4) of the Act, the I.G. may exclude "[a]ny individual or entity - (A) whose license to provide health care has been revoked or suspended by any State licensing authority, or who otherwise lost such a license or the right to apply for or renew such a license, for reasons bearing on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."

Pursuant to section 1128(c)(3)(E) of the Act, as amended by section 212 of the Health Insurance Portability and Accountability Act of 1996 (Pub. L. 104-191), the length of an exclusion under section 1128(b)(4) "shall not be less than the period during which the individual's or entity's license to provide health care is revoked, suspended, or surrendered, or the individual or the entity is excluded or suspended from a Federal or State health care program." Prior to 1996, the Act provided no criteria for establishing the length of exclusions for individuals or entities excluded pursuant to section 1128(b)(4). The 1996 amendments indicate that no issue of reasonableness exists where the exclusion imposed by the I.G. is concurrent with the loss, suspension, or revocation of a State license. A concurrent exclusion, as in Petitioner's case, is the minimum required by law.

1. Petitioner was licensed as a physician in the State of Kansas. I.G. Ex. 1.

2. The Kansas State Board of Healing Arts (Board) revoked Petitioner's medical license on February 10, 1990, based on Petitioner's violation and breach of a Stipulation with the Board. The Board concluded that Petitioner was unable to practice medicine and surgery with reasonable skill and safety to patients because of alcoholism. I.G. Ex. 3; P. Ex. 11.

3. On March 14, 1994, Petitioner was granted reinstatement of his Kansas medical license subject to several conditions stated in a Stipulation and Agreement and Enforcement Order. (Stipulation). I.G. Exs. 3-6.

4. A Final Order, issued on October 26, 1996, stipulated that Petitioner's failure to adhere to any provision of the Stipulation, as amended, would result in the immediate revocation of his medical license. I.G. Ex. 6.

5. Petitioner failed to undergo urine screenings on two occasions, a violation of the Stipulation and Final Order of the Board.

6. At the conclusion of a Show Cause Hearing on July 10, 1997, the Board found that Petitioner violated the terms of the Stipulation and Final Order and found insufficient mitigating circumstances to justify the violation. I.G. Ex. 7.

7. On July 16, 1997, the Board revoked Petitioner's license to engage in the practice of medicine. I.G. Ex. 7.

8. Petitioner's Kansas medical license has not been reinstated.

9. Petitioner was notified of his indefinite exclusion from participation in the Medicare and Medicaid programs on June 30, 1998, pursuant to section 1128(b)(4) of the Act.

10. Section 1128(b)(4)(A) of the Act authorizes the I.G. to exclude an individual 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 professional competence, professional performance, or financial integrity.

11. Petitioner, as a licensed physician, possessed a medical license to provide health care within the scope of section 1128(b)(4) of the Act.

12. Petitioner's medical license was revoked by a State licensing authority, within the scope of section 1128(b)(4)(A) of the Act.

13. The suspension of Petitioner's medical license was for reasons bearing on his professional competence, professional performance, or financial integrity within the scope of section 1128(b)(4) of the Act.

14. The I.G. was authorized to exclude Petitioner pursuant to section 1128(b)(4)(A) of the Act.

15. Where an exclusion is imposed pursuant to section 1128(b)(4) of the Act, the period of exclusion shall not be less than the period during which the individual's license to provide health care is revoked, suspended, or surrendered. Act, section 1128(c)(3)(E).

16. When an exclusion is imposed pursuant to section 1128(b)(4) of the Act and the period of exclusion is concurrent with the loss, suspension, revocation, or surrender of a State license, then no issue of reasonableness concerning the length of the exclusion exists.

17. The exclusion imposed by the I.G. against Petitioner, which will remain in effect until Petitioner obtains a valid license to practice medicine or provide health care in Kansas, is authorized under sections 1128(b)(4) and 1128(c)(3)(E) of the Act.

PETITIONER'S CONTENTIONS

Petitioner concedes that his medical license in Kansas was revoked by a State licensing authority within the scope of section 1128(b)(4) of the Act. However, he contests the I.G.'s assertion that such revocation occurred for reasons bearing on his professional performance or professional competence. He asserts that his license was revoked because he missed a urine screening which he was obligated to undergo pursuant to the Stipulation in his case. He concedes that such conduct is a violation of the 1996 Final Order, but maintains that such conduct has no bearing on his professional competence or performance.

Petitioner also challenges the propriety of the State license revocation proceeding, contending that it was marred by legal errors and unfairness. He also notes that he obtained a medical license in Oklahoma after full disclosure to Oklahoma officials of the circumstances of the loss of his Kansas license. He maintains that Oklahoma officials, by issuing him a medical license, concluded that his conduct did not adversely impact upon his professional performance or professional competence. Petitioner asserts that, as he is presently licensed in the State of Oklahoma, his exclusion should be terminated.

Finally, Petitioner notes that he has been a physician for more than forty years and that there is a need in the community for his medical skills. He has submitted correspondence, signed by health professionals in his community, attesting to his skills and value as a physician.

DISCUSSION

Petitioner concedes that his medical license has been revoked by State licensing authorities within the scope of section 1128(b)(4)(A) of the Act and I find that such has occurred. It is also not disputed that Petitioner's license to practice medicine is a license to provide health care within the scope of section 1128(b)(4) of the Act. Although Petitioner claims that his license was not revoked for reasons bearing on his professional performance or professional competence, I disagree. The record establishes that Petitioner's license was revoked because of his alcohol abuse problems and that those problems related to his professional competence and professional performance. The record establishes that Petitioner's alcohol abuse resulted in the Board's 1990 revocation order and also in the October 1996 Final Order which reinstated his licence subject to a number of conditions related to his alcohol abuse problems. I.G. Exs. 3-7. These conditions prohibited Petitioner from performing surgery, restricted his work to family practice, and required regular urine tests. Petitioner's failure to undergo urine screening on two occasions in violation of the Final Order led to the Board's decision to revoke his license to practice medicine in the State of Kansas.

It is clear that the Board had strong reservations about Petitioner's competence to practice medicine in view of his alcohol abuse problems. In its Final Order the Board placed restrictions on Petitioner's right to practice surgery. Such restrictions and, ultimately, Petitioner's license revocation, reflect the belief of the Board that Petitioner was not competent to practice medicine because his alcohol abuse might impair his judgment as a physician. I find that these concerns are in fact self-evident from the actions of the Board in initiating the procedure that ultimately resulted in the revocation of Petitioner's medical license.

Prior DAB decisions support the I.G.'s exclusion of Petitioner. The Petitioner's medical license was suspended pursuant to allegations that he had an alcohol abuse problem. Prior decisions have held that a substance abuse problem, such as alcohol abuse, adversely impacts a person's professional competence and professional performance as those terms are used in section 1128(b)(4) of the Act. Mary E. Groten, DAB CR518 (1998); Richard L. Pflepson, D.C., DAB CR132 (1991).

I also disagree with Petitioner's contention that the exclusion is not proper in this case because he has obtained a medical license in Oklahoma after full disclosure to officials there of the circumstances of the loss of his Kansas medical license. Petitioner's argument is contrary to the statute. The I.G. has the authority to exclude Petitioner in this case because his medical license was revoked within the scope of section 1128(b)(4)(A) of the Act. The Act, as amended at section 1128(c)(3)(E), requires that an individual excluded pursuant to section 1128(b)(4) be excluded for not less than the period during which the individual's license to provide health care is revoked, suspended, or surrendered in any State. It is clear from the language of the amendment at section 1128(c)(3)(E) that the minimum length of the exclusion must be coterminous with the term of revocation, suspension, or surrender, of the State license. Since Petitioner's medical license was revoked in the State of Kansas, the Act requires that the period of the exclusion will not be less than the period during which his license to practice medicine in the State of Kansas is revoked. Petitioner is required to obtain from the Kansas licensing authority the same type of license that such officials suspended before he can be considered for reinstatement as a participant in Medicare and Medicaid. See Mary E. Groten, supra.

Petitioner also asserts that the Kansas licensing proceeding was unfair and in error. Such contentions constitute a collateral attack on the actions of the State licensing authority. However, such collateral attacks on the actions of a State licensing authority are not permitted in the context of an exclusion proceeding under section 1128(b)(4) of the Act. Jagdish Mangla, M.D., DAB CR470 (1997); John W. Foderick, M.D., DAB No. 1125 (1990); see also Barry Kamen, RPA, DAB CR493 (1997) (involving section 1128(b)(5)).

Petitioner also asserts that he is a competent and respected physician and has submitted correspondence in support of his case from health professionals who are familiar with his practice. Because his exclusion is derived from the State license revocation procedure, such factors are irrelevant in his case.

I conclude that the I.G. was authorized to exclude Petitioner pursuant to section 1128(b)(4)(A) of the Act. I conclude also that the term of exclusion imposed by the I.G. is mandated by section 1128(c)(3)(E) of the Act.

1. In this decision, I refer to all programs from which Petitioner has been excluded, other than Medicare, as "Medicaid."