SUBJECT:

Roy Cosby Stark,

Petitioner,

The Inspector General

BACKGROUND

By letter dated January 29, 1999, 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 Social Security Act (Act) because Petitioner's "license to practice medicine or provide health care in the State of California was revoked, suspended, or otherwise lost, or was surrendered while a formal disciplinary proceeding was pending before the licensing authority for reasons bearing on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 his 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, a reply brief, and six proposed exhibits (I.G. Exs. 1-6). Petitioner did not object to these exhibits. Petitioner submitted a brief and ten proposed exhibits, which he designates as Exhibits 1-10. Because Petitioner's exhibits 4, 5, and 6 are duplicates of I.G. exhibits 2, 4, and 5, I do not admit them into evidence and I renumber Petitioner's exhibits as P. Exhibits (P. Exs.) 1-7. The I.G. did not object to Petitioner's exhibits. Thus, in the absence of objection, I am admitting I.G. Exs. 1-7 and P. Exs. 1-7 into evidence in this case. I base my decision in this case on the exhibits, the applicable law, and the arguments of the parties.

APPLICABLE LAW

Pursuant to section 1128(b)(4) of the Act, the I. G. 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(A) whose license to provide health care has been revoked or suspended by any State licensing authority, or who otherwise lost such a license or the right to apply for or renew such a license, for reasons bearing on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 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 require, at section 1128(c)(3)(E), that an individual or entity who is excluded under section 1128(b)(4) be excluded for not less than the period during which the individual's or entity's license to provide health care is revoked, suspended, or surrendered. Under the 1996 amendments, 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 mandated minimum required by law.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

1. On September 1, 1993, Petitioner applied for certification as a respiratory care practitioner from the Respiratory Care Examining Committee (Committee), Department of Consumer Affairs, State of California. I.G. Ex. 2.

2. On September 21, 1993, the Committee denied Petitioner's application based on his November 15, 1989 felony conviction of attempted robbery and attempted kidnapping. I.G. Ex. 2.

3. In 1994, Petitioner re-applied to the Committee for a respiratory care license. I.G. Ex. 2.

4. On November 15, 1994, an Executive Officer of the Committee made and filed a Statement of Issues regarding the Committee's cause for denial of Petitioner's application for a respiratory care license; specifically, the Committee alleged that Petitioner's felony conviction was substantially related to the practice of respiratory care, in violation of the California Business and Professions (Bus. &. Prof.) Code, and that Petitioner's license application should be denied. I.G. Ex. 2.

5. On March 2, 1995, the Committee entered before the California Respiratory Care Board (Board) a Stipulation for Issuance of a Conditional License and Order (Stipulation and Order) in Petitioner's case. I.G. Ex. 3.

6. Under the Stipulation and Order, the Board denied Petitioner's application for licensure; however, the Board stayed the denial; and the Board issued Petitioner a conditional license to practice respiratory care on terms and conditions that would remain in effect during a five-year probationary period. I.G. Ex. 3.

7. Under the Stipulation and Order, Petitioner was to abstain from alcohol and drug use and to undergo drug testing, report to a probation officer as required, and to pay probation and related costs. I.G. Ex. 3.

8. On April 18, 1995, the Board issued a decision, effective May 3, 1995, adopting the Stipulation and Order. I.G. Ex. 3.

9. On August 4, 1997, the Committee entered a Petition to Revoke Probation (Petition). I.G. Ex. 4.

10. The Petition stated that the causes for revocation of Petitioner's respiratory care license were the following: (1) on or about March 26 and 27, 1997, Petitioner failed to meet with his probation monitor for his quarterly monitoring meeting as scheduled in violation of the Stipulation; (2) Petitioner was delinquent in paying his monthly probation costs in violation of the Stipulation; and (3) on or about December 13, 1996, Petitioner submitted a random urine sample to his probation monitor which indicated the presence of amphetamines and methamphetamines, in violation of the Stipulation. I.G. Ex. 4.

11. On October 29, 1997, a hearing was held before a State Administrative Law Judge (State ALJ) concerning the Petition to Revoke Probation. I.G. Ex. 5.

12. On October 31, 1997, the State ALJ issued a Proposed Decision revoking Petitioner's respiratory care license. I.G. Ex. 5.

13. On December 5, 1997, the Board issued a Decision, effective December 12, 1997, adopting the State ALJ's Proposed Decision to revoke Petitioner's respiratory care conditional license. I.G. Ex. 6.

14. Petitioner's California respiratory care conditional license has not been reinstated.

15. Petitioner was notified of his indefinite exclusion from participation in the Medicare and Medicaid programs on January 29, 1999, pursuant to section 1128(b)(4) of the Act.

16. 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.

17. Petitioner, as a licensed respiratory care therapist, possessed a license to provide health care within the scope of section 1128(b)(4) of the Act.

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

19. The suspension of Petitioner's respiratory care 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.

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

21. 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. Section 1128(c)(3)(E) of the Act.

22. 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.

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

PETITIONER'S CONTENTIONS

1. Petitioner does not challenge that his respiratory care license in California was "revoked" or "lost" by the State licensing authority as those terms are used in section 1128(b)(4) of the Act. Rather, Petitioner asserts that an action under section 1128(b)(4) of the Act is not warranted because the facts of his case do not establish that his respiratory care license was revoked or lost for reasons bearing on his professional competence, professional performance, or financial integrity.

2. Petitioner maintains that his license was revoked because he missed a urine screening, which he was obligated to undergo pursuant to the March 2, 1995 Stipulation in his case. Petitioner concedes that such conduct is a violation of the Stipulation; Petitioner maintains that such conduct does not impugn his professional competence or performance.

3. Petitioner asserts that his urine sample on or about December 13, 1996, tested positive for a controlled substance because he mistakenly took such drugs believing they were aspirin; although, he concedes that the State ALJ in the California licensing proceeding rejected such claim.

4. Petitioner also maintains that there is no evidence that he had a drug abuse problem and that the statement of the State ALJ in the California licensing proceeding indicating that he had such problem is not entitled to a collateral estoppel effect in the exclusion proceeding.

5. Moreover, Petitioner maintains that the State ALJ in the California licensing proceeding did not make a finding that Petitioner's drug usage made Petitioner unable to render competent care. In this regard, Petitioner asserts that the cases cited by the I.G. in support of exclusion involved instances where there was a history of repeated or chronic alcohol or drug abuse or where there were instances of inadequate care rendered by the health care provider, circumstances the Petitioner maintains are not present in his case.

6. Finally, Petitioner asserts that, under California procedure, if the California Board intended drug abuse or professional incompetence to be a basis for the revocation of his license, the Board would have to follow the procedures set forth in California Bus. & Prof. Code section 3756, which requires the care giver to undergo a competency examination. Petitioner maintains that the fact that he was not required to undergo such examination supports his claim that his license revocation was not for reasons bearing on his professional competence or professional performance.

DISCUSSION

Petitioner concedes that his respiratory care license has been "revoked" or "lost" by State licensing authorities as those terms are used in the scope of section 1128(b)(4)(A) of the Act, and I find that such has occurred. It is also undisputed that Petitioner's respiratory care license 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. Rather, I find that the record establishes that Petitioner's license was revoked on account of his drug usage and that those problems related to his professional competence and professional performance. The record establishes that the Board, in its March 2, 1995 Stipulation, required Petitioner to abstain from use of alcohol and controlled substances, to undergo periodic monitoring for use of alcohol and controlled substances, and to exhibit regular attendance at a substance abuse recovery support group. It is unlikely that such conditions would have been imposed by the Respiratory Care Board if Petitioner did not have a substance abuse problem. Indeed, the State ALJ in his Proposed Decision in Petitioner's case, which was adopted by the Respiratory Care Board on December 5, 1997, came to the same conclusion. In his Proposed Decision, the State ALJ said that "the drug conditions in the probation order were no doubt placed there because [Petitioner] had a history of cocaine abuse." I.G. Ex. 5 at 4.

Clearly, past decisions by the Departmental Appeals Board (DAB) have found that such substance abuse problem impacts unfavorably on a health care professional's professional competence or professional performance within the scope of section 1128(b)(4) of the Act. Andy E. Bailey, C.T., DAB No. 1131 (1990); Cherlyn J. Parrish, DAB CR560 (1999); Wilbur D. Hilst, M.D., DAB CR621 (1999).

Further, I find that, even if the record does not establish a long-standing substance abuse problem by Petitioner, the incident of non-compliance by Petitioner with the substance abuse testing requirement in the Stipulation is sufficient to support the finding that his license revocation for the one incident of positive urine testing for amphetamines and methamphetamines is a revocation bearing on his professional performance or professional competence within the scope of section 1128(b)(4) of the Act. In so holding, I find that, even if Petitioner did not have a history of substance abuse, infrequent, occasional or onetime drug usage impacts on his professional competence or professional performance under section 1128(b)(4) of the Act. It cannot be denied that alcohol or drug usage impairs one's mental functioning and job performance and that impaired functioning may even persist after such usage ceases. On such basis, I find that Petitioner's use of a controlled substance, which formed the basis for his license revocation, is within the scope of section 1128(b)(4) of the Act. In his defense, Petitioner asserts that such usage was inadvertent as he mistakenly believed that the pills were aspirin. The State ALJ in the proceeding before the Respiratory Care Board specifically rejected such claim. In fact, the State ALJ said that Petitioner's "explanation for the positive drug test is so farfetched and unbelievable as to require no serious discussion." I.G. Ex. 5, at 3. In any event, such contention constitutes a collateral attack on the actions of the State licensing authority. The DAB has held however that such collateral attack 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 (involving section 1128(b)(5)).

In my review, I further note that the probationary terms initially placed upon Petitioner when the Board granted his request for a conditional license were based upon the Respiratory Care Board's uncertainty concerning Petitioner's professional competence and professional performance due to his criminal convictions for attempted robbery and attempted kidnapping. It is clear that under California law, such criminal convictions establish that Petitioner lacked professional performance and professional competence. Section 3750(d) of the California Bus. & Prof. Code provides in part that "the conviction of a crime which substantially relates to the qualifications, functions, or duties of a respiratory care practitioner" constitutes cause for disciplinary action. Section 3752.5 of the California Bus. & Prof. Code provides that a conviction for a crime involving, inter alia, attempted bodily injury shall be considered one substantially related to the qualifications, functions, or duties of respiratory care practitioner. The Respiratory Care Board, in its complaint dated November 15, 1994 and its Stipulation and Order dated March 2, 1995, wherein the Board denied Petitioner's request for a license, found such convictions to be within the scope of section 3752.5 of the California Bus. & Prof. Code. I.G. Exs. 2 and 3.

In my review, I too find that such criminal convictions unfavorably impact upon Petitioner's professional competence and professional performance as a respiratory care practitioner. As such convictions were the ultimate basis for the proceedings regarding Petitioner's license application, I find that on account of such criminal convictions, Petitioner lost his license or the right to apply for a license as a respiratory care practitioner within the scope of section 1128(b)(4) of the Act.⁽¹⁾

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. Accordingly, I sustain it.

Joseph K. Riotto

Administrative Law Judge

1. Petitioner asserts that the fact that he was not required to undergo a competency examination as specified by the California Bus. & Prof. Code for a license revocation due to a substance abuse problem supports his claim that his license was not revoked on such basis. It may be however that, since the basis for the license proceedings was Petitioner's criminal convictions, the Respiratory Care Board was not required to accord Petitioner a competency examination.