SUBJECT:

William Monroe Hart,

Petitioner,

The Inspector General.

DECISION

I decide that the Inspector General (I.G.) does not have authority pursuant to section 1128(b)(4) of the Social Security Act (Act) to exclude Petitioner, William Monroe Hart, from participating in Medicare and other federally funded health care programs including State Medicaid programs.

I. Introduction

Petitioner is a laboratory technologist who was licensed by the State of Florida. On February 27, 2004, the I.G. notified Petitioner that he was being excluded from Medicare and other federally funded health care programs. The I.G. asserted that Petitioner was being excluded pursuant to section 1128(b)(4) of the Act because, allegedly, his Florida license to provide health care as a clinical laboratory technologist was revoked, suspended, or otherwise lost or surrendered while a formal disciplinary hearing was pending against Petitioner for reasons concerning his professional competence, professional performance, or financial integrity.

Petitioner requested a hearing and the case was assigned to me for a hearing and a decision. I held a telephone pre-hearing conference at which I advised the parties that it appeared that all of the evidence in the case was contained in documents. I therefore established a schedule for the parties to file their proposed exhibits and briefs. Order Establishing Schedule for Filing Briefs, May 14, 2004. I advised the parties also that I would convene an in-person hearing should a party seek to present testimony and if the proffered testimony was relevant and did not duplicate the contents of exhibits. See Id. Each party filed proposed exhibits and a brief. ⁽¹⁾ Neither party advised me that there was a need to present testimony in person. The I.G. filed five proposed exhibits (I.G. Ex. 1 - I.G. Ex. 5). Petitioner filed 27 proposed exhibits (P. Ex. 1 - P. Ex. 27). Additionally, the I.G. asked that I grant leave to file a reply brief. I granted the I.G.'s request and the I.G. filed a reply brief. Petitioner also submitted a supplemental brief along with a motion that I accept the brief. I grant that motion and I accept Petitioner's supplemental brief.

Neither side objected to my receipt of any of the proposed exhibits. Therefore, I receive into evidence I.G. Ex. 1 - I.G. Ex. 5 and P. Ex. 1 - P. Ex. 27. I note, however, that both the I.G. and Petitioner submitted additional exhibits as attachments to their respective reply briefs. These are I.G. Ex. 6 and I.G. Ex. 7, and P. Ex. 131. I decline to accept these additional exhibits. I did not grant either party leave to file additional exhibits. Were I to accept them I would have to afford each party the opportunity to object to or to rebut the supplemental exhibits, thereby protracting this case unnecessarily.

II. Issues, findings of fact and conclusions of law

A. Issues

The I.G. excluded Petitioner pursuant to the authority of section 1128(b)(4)(B) of the Act. This section authorizes the I.G. to exclude any person who:

surrendered . . . [a 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 issues in this case are whether:

1. Petitioner surrendered his license to practice as a laboratory technologist in the State of Florida while a formal disciplinary proceeding was pending against him; and

2. The proceeding concerned Petitioner's professional competence, professional performance, or financial integrity.

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 separately numbered heading. I discuss each Finding in detail.

1. Petitioner surrendered his license to practice as a laboratory technologist in the State of Florida while a formal disciplinary proceeding was pending against him.

Petitioner acknowledges that he surrendered his license to practice as a laboratory technologist in the State of Florida in order to avoid disciplinary proceedings that were pending against him. He argues, however, that this act did not amount to a "surrender" of his license within the meaning of section 1128(b)(4)(B) of the Act because, according to Petitioner, he did not knowingly or intelligently make the choice to surrender his license. According to Petitioner, he surrendered his license believing that there would be no additional sanctions imposed against him. He attributes this mistaken belief to his psychological state at the time that he surrendered his license and to his allegedly misplaced reliance on what he thought were assurances from the State of Florida that no further adverse action would be taken against him.

I do not find these arguments to be persuasive. First, the evidence in this case establishes that Petitioner surrendered his license consistent with the language in the Act. Second, I do not have the authority to look behind Petitioner's surrender to decide whether it is invalid.

Records of the State of Florida Department of Health (Department of Health) unequivocally establish that Petitioner surrendered his laboratory technologist's license in order to bring to an end formal disciplinary proceedings that had been brought against him. I.G. Ex. 1; I.G. Ex. 3. On October 18, 2002, the Department of Health issued an administrative complaint against Petitioner. I.G. Ex. 1. It alleged that Petitioner pled nolo contendere to a felony information involving a crime of moral turpitude. Id. at 2. It asserted that Petitioner was the subject of discipline as a consequence of having entered his plea. Id. It requested that Florida's Board of Clinical Laboratory Personnel (Board) enter an order imposing one of the following remedies against Petitioner: revocation or suspension of his professional license; imposition of an administrative fine; issuance of a reprimand; placing him on probation; costs; and/or any other relief that the Board deemed to be appropriate. Id. at 3.

The proceeding against Petitioner plainly was a "formal disciplinary proceeding" within the meaning of section 1128(b)(4)(B) of the Act. The administrative complaint that was filed against Petitioner bore all of the trappings of a formal action involving the possible imposition of remedies against Petitioner. It put Petitioner on notice that charges were filed against him. Additionally, it informed Petitioner that he would have to defend against these charges or he would risk the imposition of remedies including suspension or revocation of his license.

On December 13, 2002, the Board received a document signed by Petitioner entitled "Voluntary Relinquishment of License." I.G. Ex. 3. It recited that:

To avoid the necessity of further administrative proceedings in this case, . . . [Petitioner] herein files this voluntary relinquishment of his/her license to practice as a licensed technologist in the State of Florida, as discipline, . . . .

Id. at 1. ⁽²⁾

Petitioner's execution of this document was a "surrender" of his license within the meaning of section 1128(b)(4). The surrender document speaks for itself in that regard. It shows an explicit surrender by Petitioner of his license in order to avoid additional disciplinary proceedings.

I have no authority to look behind Petitioner's act of surrender in order to decide whether or not it was valid. Petitioner's state of mind at the time that he surrendered his license is irrelevant. The Act excludes from consideration an individual's motives for surrendering his or her license. It states simply that any individual who surrenders his or her license while a formal disciplinary proceeding is pending may be excluded if the proceeding addresses one of the statutory subjects. ⁽³⁾

2. The I.G. did not prove that the Florida proceeding concerned Petitioner's professional competence, professional performance, or his financial integrity.

The I.G. argues that, as a matter of law, the Florida disciplinary proceedings concerned Petitioner's professional competence or performance. ⁽⁴⁾ The I.G. premises this argument on a Florida statute which provides that a professional license may be subject to discipline if the holder of that license is convicted of a crime of moral turpitude. According to the I.G.:

As a matter of law, the state of Florida has established that such individuals are subject to discipline, up to and including license revocation, because the conviction reflects negatively on that individual's capacity to act in a professionally competent manner or professionally perform in a clinical environment.

I.G.'s Brief in Support of Motion for Summary Affirmance (I.G.'s brief) at 8. The I.G. is, in effect, making two arguments about the Florida disciplinary proceedings against Petitioner. First, it is arguing that implicit in Florida law is a conclusion that any conviction of a crime of moral turpitude is also a finding that the convicted license holder's professional competence and performance has been impaired by that conviction. Second, the I.G. is contending that the Secretary must defer to Florida's asserted judgment as to the implicit link between crimes of moral turpitude and professional competence or performance. In effect, according to the I.G., it is the States who establish the basis for an exclusion under section 1128(b)(4), because the Secretary must, as a matter of law, defer to their definition of what is incompetence or poor performance.

I am not persuaded by these arguments. Contrary to the I.G.'s assertion, it is not possible to say that a Florida sanction against an individual that is based solely on his or her conviction of a crime of moral turpitude concerns his or her performance or competence as a matter of law. Careful reading of the Florida statute that is at issue does not support the I.G.'s assertion of an automatic linkage of conviction of a crime of moral turpitude to professional performance or competence. The law in question cites a conviction of a crime of moral turpitude as one of three separate and distinct grounds for discipline, each of which may stand alone as a basis for discipline. The law authorizes discipline of anyone who:

Has been convicted or found guilty of, or entered a plea of nolo contendere to, regardless of adjudication, a crime in any jurisdiction which directly relates to the activities of clinical laboratory personnel or involves moral turpitude or fraudulent or dishonest dealing.

Fla. Stat. Ann. � 483.825(1)(e) (West 2004) (emphasis added). The fact that these grounds are stated in the disjunctive makes it clear that the Florida legislature permitted sanctioning a laboratory technologist for conviction of a crime of moral turpitude whether or not that crime involved a laboratory technologist's performance of his or her professional requirements or involved fraudulent or dishonest dealing. Obviously, a crime of moral turpitude might concern the perpetrator's professional performance or competence, but the point of the statute is that conviction of a crime of moral turpitude would be a basis for a sanction even if it was unrelated to such activities.

Indeed, there is nothing in the administrative complaint that was filed against Petitioner which makes or suggests an allegation that Petitioner's conviction of a crime of moral turpitude affected his abilities to perform his professional duties. The complaint cites only Petitioner's conviction of a crime of moral turpitude as grounds for sanctioning him. It contains no language drawing a link between that conviction and Petitioner's professional competence or professional performance. I.G. Ex. 1. It clearly implies that Petitioner could have been sanctioned by Florida regardless whether his crime actually impacted on his professional performance or professional competence.

I find also that the I.G. is not correct in asserting that the Act requires the I.G. and the Secretary to assume that any ground cited by a State for disciplining a license holder must relate to the licensee's professional competence or performance. Section 1128(b)(4) of the Act is federal law and there is nothing in that section which states or suggests that Congress left it to the States to define what constitutes professional incompetence or poor performance. The Act does not allow for a State-defined per se rule of exclusion.

My conclusion that the I.G. and the Secretary are not required by law to assume that any ground cited by a State for disciplinary action must relate to the licensee's professional competence or performance is consistent with the Secretary's comments to regulations that were adopted to apply section 1128(b)(4) and with the decision in Jerold Morgan, D.O., DAB CR768 (2001). In Morgan, as is the case here, the I.G. asserted that, if a State determines that a conviction of a crime is grounds for license revocation, then that determination establishes conclusively a performance or competence related basis for exclusion. Administrative Law Judge Hughes rejected that assertion:

The Act does not establish, and the I.G. cites no other authority to establish, a per se rule that license revocation based on a felony conviction [in Morgan a domestic assault by the petitioner against his spouse] automatically relates to professional competence or performance, justifying the exclusion under section 1128(b)(4)(A). In fact, in drafting the regulations implementing section 1128(b)(4), the Secretary specifically rejected the suggestion of a per se rule, noting that Congress vested the Secretary with the discretion and the responsibility to determine the appropriateness of excluding individuals, stating that treating these exclusions as automatic would be inconsistent with that authority. 57 Fed. Reg. 3298, 3305 (1992). The Secretary also specifically declined to list factors to be considered in determining whether to impose an exclusion in section 1128(b)(4) cases, noting that the factors will vary depending on the unique circumstances of a particular case.

Jerold Morgan, D.O., DAB CR768, at 3 - 4.

As the Act does not allow for a per se rule of exclusion based on an administrative sanction for conviction of a crime of moral turpitude, the question which must be addressed in deciding whether the I.G. has authority to exclude an individual under section 1128(b)(4) is whether the sanctioning body in fact acted on the premise that the conduct which is the basis for the sanction was related to the sanctioned individual's professional competence or performance. As is made plain by Morgan and by applicable regulations, the unique facts that relate to an individual's commission of a crime of moral turpitude might be a basis for imposition of State sanctions to address compromised professional performance or competence. But, it is up to the I.G. to establish on a case-by-case basis that competence or performance was actually a premise for a State to bring a sanction proceeding against an individual.

It is not enough for the I.G. to assert simply that Petitioner was convicted of a crime of moral turpitude. That begs the question of whether the State sanction action related to Petitioner's professional competence or performance. Did the Florida Board seek to take action against Petitioner because it determined that he was convicted of conduct that suggested that he was less than professional or competent in discharging his duties as a laboratory technologist? Or, was the action motivated simply by Petitioner's conviction without regard to the significance of the specific conduct which was the basis for the conviction?

The I.G. failed completely to offer proof that would answer that question. The I.G.'s case is based exclusively on the per se theory of exclusion which I have found to be without merit. The I.G. has not shown that the Florida Board alleged that or considered whether Petitioner's conviction of a crime of moral turpitude would have any impact on his ability to perform the duties of his profession.

In the I.G.'s reply brief the I.G. asserts that the only question I must resolve about the Florida Board's action is whether the proceeding that the Florida Board brought against Petitioner concerned Petitioner's professional competence or performance. It is not necessary, according to the I.G., that I find that Petitioner's professional competence or performance actually was impaired, nor is it necessary that I find that the Florida Board found such to be the case. The I.G. contends that I must find only that the subject matter of the proceeding in Florida was Petitioner's competence or performance.

I agree with this analysis. But, accepting that analysis does not justify a blanket conclusion that a proposed sanction based on a conviction of a crime of moral turpitude automatically assumes that Petitioner's professional competence or performance is impaired. That cannot be the case here because the relevant Florida statute states conviction of a crime of moral turpitude as a basis for sanction without any reference to the individual's professional competence or performance.

To be sure, Petitioner was convicted of an odious crime. On or about August 23, 2000, the Circuit Court of Sarasota County Florida issued a criminal information against Petitioner in which he was alleged to have coerced a minor - his niece - into performing an act of oral sex on him. I.G. Ex. 1, at 1 - 2. On May 6, 2002, Petitioner entered a nolo contendere plea to this offense. Id. at 2. As a consequence Petitioner was sentenced to a term of incarceration.

But, as disgusting as this crime is, the I.G. did not prove that the Florida Board premised its disciplinary proceeding on a conclusion the crime had anything to do with Petitioner's trustworthiness to perform as a laboratory technologist or his professional competence. The I.G. made no effort to show that the Florida Board sought to sanction Petitioner because of a concern that Petitioner's conviction established that he had a proclivity to engage in similar or related conduct in the workplace or that his crimes made him any less trustworthy to perform clinical testing.

Indeed, and as I discuss above, it is apparent from the administrative complaint that was filed against Petitioner that the action against him before the Florida Board was motivated entirely and exclusively by his conviction of a crime of moral turpitude and without any case-specific analysis of how that crime might affect Petitioner's professional performance. I.G. Ex. 1. There is not a word in the administrative complaint to show that the Florida Board had any concern about the unique facts of Petitioner's case or about how those facts might bear on Petitioner's professional performance. Furthermore, the I.G. made no effort to show that Petitioner's duties involved - for example - contact in private settings with children. In fact, the I.G. offered no evidence to show that Petitioner's duties even brought him into contact with members of the public.

Moreover, the I.G. failed to prove objectively that the crime committed by Petitioner showed any impairment of his professional performance or reduction of his competence. The I.G. has not offered any theory, much less evidence, to show how Petitioner's abilities to perform laboratory tests were affected by his propensity to commit the crime to which he entered a nolo contendere plea.

In Morgan the petitioner's conviction of the crime of domestic assault was found to be unrelated to his performance as a physician. The I.G. attempts to distinguish the facts of Morgan - if not Judge Hughes' legal analysis - from those of the present case. The I.G. observes that the petitioner in Morgan was a relatively sympathetic figure. The I.G. notes that: (1) the petitioner had an "acute situational reaction" that was brought on by stress related to discovering his spouse's infidelity; (2) the petitioner expressed remorse for his conduct; and (3) there was a low likelihood of recurrence of the petitioner's conduct. I.G.'s brief at 7 n.3. The I.G. argues that none of these unique facts are present here:

There is no evidence presently to show that Petitioner's conduct is attributable to anything other than his own indiscretion and willingness to exploit another person. The I.G. excluded Petitioner based on his demonstrated heinous violation of trust in a familial setting before he had an opportunity to harm Federal health care beneficiaries.

Id.

The I.G.'s attempt to distinguish the facts of Morgan from the present case is misplaced. Judge Hughes did not cite the "mitigating" factors that were present in Morgan for reasons of equity or just to show that the petitioner was a sympathetic figure. She cited those factors as evidence that the sanction action against the petitioner in that case was unrelated to the Petitioner's professional performance or competence. There was nothing about the petitioner's conviction that showed that the sanctioning body in Morgan was concerned that he had a proclivity to engage in violent behavior towards the public. Judge Hughes pointed out that the State licensing authority in Morgan was aware of the mitigating factors but sanctioned the petitioner's license nonetheless, not because it was concerned about the petitioner's trustworthiness to provide care, but because of a per se sanction rule for individuals who were convicted of felonies.

Indeed, in one sense, there were facts in Morgan that required a closer analysis of the specific elements of the petitioner's conviction by Judge Hughes than is necessary for me to perform in this case. In Morgan the evidence showed that the petitioner's profession had him in close and intimate contact with patients. In light of that, Judge Hughes found it necessary to decide whether the petitioner's conviction of an act of domestic violence said anything about a possible proclivity for violence by the petitioner in a setting outside of the home where he came into close contact with patients. Because, if such proclivity existed, then there might arguably be some logical concern by the sanctioning body in Morgan that the petitioner's professional performance or competence was affected adversely. Here, by contrast, the I.G. has made no showing that Petitioner's duties as a laboratory technologist had him in any contact with female minors or other patients. So, although Petitioner may be a less sympathetic figure than was the petitioner in Morgan, there is not evidence of record to establish even the hypothetical possibility that Petitioner might sexually abuse female minors, patients, or program beneficiaries in the setting of his workplace. Consequently, the I.G. has offered no reason for me to assume that such concern was a reason for the Florida Board to sanction Petitioner.

3. The I.G. is not authorized to exclude Petitioner.

The I.G. does not have authority to exclude Petitioner pursuant to section 1128(b)(4)(B) of the Act because he has not proven that the formal disciplinary proceeding during which Petitioner surrendered his laboratory technologist's license concerned Petitioner's professional competence, professional performance, or financial integrity. Therefore, I overturn the I.G.'s exclusion determination.

The I.G. seems to suggest that his determination to exclude Petitioner is an act of discretion that may not be reviewed. Or, at the very least, it is an act which should be deferred to. According to the I.G.:

The I.G., therefore, excluded Petitioner out of an abundance of caution. This decision warrants considerable deference. See 42 C.F.R. � 1005.5(c)(5) (stating that the I.G.'s exercise of discretion in implementing a permissive exclusion is not reviewable).

However, "deference" and "discretion" are not at issue here. I would not question the I.G.'s discretion to determine to exclude Petitioner if the I.G. had the statutory authority to do so. But, the I.G. may not cloak as "discretion" a determination which is not authorized by law. Nor may I defer to the I.G.'s determination in the circumstance where the law does not permit the I.G. to determine to impose an exclusion.

4. It is unnecessary that I consider Petitioner's additional arguments

Petitioner makes several arguments in addition to those which I address in this decision which I find unnecessary to address. These include but are not limited to Petitioner's arguments concerning: the constitutionality of section 1128 of the Act and Florida State laws; whether his exclusion is barred by principles of double jeopardy, res judicata, or collateral estoppel; whether he is a "provider" within the meaning of the Act; whether he would require a license to practice his profession in another State; and whether the exclusion is unreasonable as a matter of equity.

Steven T. Kessel

Administrative Law Judge

1. The I.G. inaccurately characterized his filing as a "motion for summary affirmance." However, summary judgment or affirmance is not what is being sought here nor is it what I am issuing. Whether or not a case is appropriate for summary judgment depends on whether there are disputed issues of material fact. Here, the process that I established for deciding this case envisions that there may well be disputed issues of fact but that the evidence that relates to those facts is written.

2. There is some ambiguity as to the precise date when Petitioner executed this document. The document was witnessed on December 9, 2002 and, apparently, mailed on or about that date. However, above the Petitioner's signature appears the typewritten date of June 10, 2002. I infer that this latter date is an error and that Petitioner actually signed the document on the date when it was witnessed.

3. If, on the other hand, Petitioner were to challenge his surrender directly via some State proceeding in Florida and were to prevail in that proceeding then, presumably, the I.G. would no longer be able to say that he'd surrendered his license and that the necessary predicate for excluding Petitioner would no longer exist.

4. The I.G. does not contend that the proceeding concerned Petitioner's financial integrity.