Department of Health and Human Services DEPARTMENTAL APPEALS BOARD Civil Remedies Division |
|
IN THE CASE OF | |
Roy Cosby Stark, |
DATE: June 19, 2000 |
- v - |
|
The
Inspector General
|
Docket No.C-99-281
Decision No. CR676 |
DECISION | |
I sustain the determination of the Inspector
General (I.G.) to exclude Petitioner, Roy Cosby Stark, from participation
in the Medicare, Medicaid, and all federal health care programs (Medicare
and Medicaid), until Petitioner obtains a license to practice medicine or
provide health care in the State of California. I base my decision on evidence
which proves that Petitioner's medical license was revoked by the State
of California for reasons bearing on his professional competence, professional
performance, or financial integrity. Additionally, I find that when an exclusion
imposed by the I.G., as here, is concurrent with the remedy imposed by a
State licensing authority, then no issue of reasonableness exists and such
an exclusion is mandated by law.
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was revoked, suspended, or otherwise lost, or was surrendered while a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:
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)
CONCLUSION 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. | |
JUDGE | |
Joseph K. Riotto
|
|
FOOTNOTES | |
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. | |