SUBJECT:

Lawrence W. Appel,

Petitioner,

The Inspector General.

I sustain the Inspector General's (I.G.) determination, made pursuant to section 1128(b)(4) of the Social Security Act (Act), to exclude Lawrence W. Appel, Petitioner, from participation in Medicare, Medicaid, and other federally funded health care programs ⁽¹⁾ until such time as he regains his Maryland pharmacy license.

I. Background

The critical facts of this case are not in dispute. Petitioner was a pharmacist licensed in the State of Maryland. In a final decision and order dated January 6, 2004, the Maryland State Board of Pharmacy revoked his license to practice pharmacy, finding him in violation of Maryland's Health Occupations Articles �� 12-313(b)(4), (20) and (24), and finding that his actions "posed an imminent threat to the public health, safety and welfare." I.G. Exhibit (Ex.) 1, at 10.

By letter dated November 30, 2004, the I.G. notified Petitioner that, pursuant to section 1128(b)(4) of the Act, he was being excluded from participation in Medicare, Medicaid, and all other federally funded health care programs because his license to practice medicine or provide health care in the State of Maryland had been "revoked, suspended, or otherwise lost" or "was surrendered while a formal disciplinary hearing was pending before the State licensing authority for reasons bearing on [his] professional competence, professional performance, or financial integrity." The letter advised that program exclusion remains in effect as long as Petitioner's Maryland license is revoked, suspended, or otherwise lost.

Petitioner timely requested a hearing and the case was assigned to me. I held a prehearing conference by telephone on March 31, 2005. The parties agreed that the matter could be heard and decided based on written submissions. Order (April 1, 2005). Both parties have filed written submissions (I.G. or P. Br.) accompanied by documentary evidence. The I.G. filed one exhibit (I.G. Ex. 1) as part of his submission, and, in the absence of any objection, I admit I.G. Ex. 1. Petitioner attached to his submission five unmarked documents, which I have marked P. Exs. 1-5. In the absence of any objections, I admit P. Exs. 1-5.

II. Issue

The sole issue before me is whether, based on the loss of Petitioner's Maryland pharmacy license, the I.G. appropriately excluded him from participation in Medicare, Medicaid, and other federally funded health care programs.

III. 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, in italics, as a separately lettered heading. I discuss each Finding in detail.

A. Because the state licensing authority suspended Petitioner's pharmacy license for reasons bearing on his professional competence or performance, the I.G. may appropriately exclude him from participation in Medicare, Medicaid, and other federally funded health care programs.

The statute authorizes the Secretary of Health and Human Services to exclude from participation in any federal health care program an individual whose license to provide health care "has been revoked or suspended by any State licensing authority" for reasons bearing on the individual's "professional competence, professional performance, or financial integrity." Act, section 1128(b)(4)(A). See also 42 C.F.R. � 1001.501.

Petitioner has apparently had a rocky history with the Maryland Board of Pharmacy (Board). I.G. Ex. 1, at 6-7. In September 1992, the Board placed him on probation for two years, mandated that he undergo substance abuse treatment, and restricted his practice after he admitted addiction to controlled substances. In August 2000, the Board summarily suspended him because he allegedly assaulted the husband of a patient while he was working as a pharmacist. Petitioner subsequently agreed to an indefinite period of probation, to enter a Board-approved treatment program, and to practice under the supervision of another pharmacist. In March 2001, however, the Board issued a Violation of Consent Order against Petitioner based on his alleged failure to abide by the terms of his probation. Nevertheless, his license was ultimately reinstated, and, in August 2002, he was released from probation.

Petitioner found himself before the Board again in 2003, charged with: 1) providing professional services while using a narcotic or controlled substance; 2) being professionally, physically, or mentally incompetent; 3) violating a rule or regulation adopted by the Board; and 4) violating Md. Regs. Code tit. 10, � 34.10. I.G. Ex. 1, at 1-2.

Following a hearing, the Board found that on March 24, 2003, Petitioner was working as a pharmacist at Wal-Mart Pharmacy, when staff discovered a bag of marijuana near the pharmacy restroom. I.G. Ex. 1, at 5-6. Staff were subsequently required to undergo drug testing, but Petitioner, admitting that he had smoked marijuana the evening before, refused the drug test. He was fired for failure to comply with his employer's drug abuse policy, and for gross misconduct. He subsequently admitted that the bag of marijuana was his. In harsh language, the Maryland Board of Pharmacy found him in violation of Health Occupations Articles �� 12-313(b)(4), (20) and (24), and concluded that the "public's health and safety would be compromised" if he were permitted to maintain his pharmacist's license. I.G. Ex. 1, at 10.

Petitioner concedes the revocation of his license by the Maryland licensing authority. Although he questions some of its specific findings, and denies being an habitual drug user, he agrees that the Board revoked his license because he violated "pharmacy rules or regulations by inadvertently taking the bag [of marijuana] into the [Wal-Mart pharmacy] store." P. Br. at 1. He nevertheless questions the Board's motives, and argues that his conduct was not so egregious as that of others who have been excluded under section 1128(b) of the Act. This may be so, but it is irrelevant.

Where, as here, an exclusion is based on the existence of a determination made by another governmental agency, the basis for the underlying determination is not reviewable. 42 C.F.R. � 1001.2007(d). Roy Cosby Stark, DAB No. 1746 (2000). I am required to determine the reasons for the State Board's actions, but not whether its reasoning was valid. Here, the Board unquestionably revoked Petitioner's pharmacy license because of his professional competence and performance. I must therefore sustain the exclusion.

B. The exclusion period may not be less than the period during which Petitioner's medical license is revoked.

Neither I nor the I.G. has much discretion in determining the duration of an exclusion under section 1128(b)(4), since that duration is set by statute. For a person excluded under section 1128(b)(4), the statute requires that the period of exclusion "shall not be less than the period during which the individual's or entity's license . . . is . . . revoked." Act, section 1128(c)(3)(E). I therefore have no authority to change the length of the exclusion period. Tracey Gates, R.N., DAB No. 1768, at 9 (2001).

IV. Conclusion

For the reasons stated above, I conclude that the revocation of Petitioner's pharmacy license related to his professional performance. I therefore affirm the I.G.'s determination and find that the I.G. had a basis to exclude Petitioner from participation in Medicare, Medicaid, and other federally funded health care programs for an indefinite period pursuant to section 1128(b)(4) of the Act.

Carolyn Cozad Hughes

Administrative Law Judge

1. "Federal health care program" is defined in section 1128B(f) as any plan or program that provides health benefits, whether directly, through insurance, or otherwise, which is funded directly, in whole or in part, by the United States Government, or any state health care program. "State health care program" is defined in section 1128(h) of the Act and includes the Medicaid program (Title XIX).