SUBJECT:

Djuana Matthews Beruk, D.D.S.,

Petitioner,

The Inspector General

This case is before me pursuant to a request for hearing filed by Djuana Matthews Beruk, D.D.S. (Petitioner) on April 1, 2002. Social Security Act (Act), Section 1128(f); 42 C. F. R. � 1005.2.

By letter dated January 31, 2002, the Inspector General (I.G.) notified Petitioner that she was being excluded from participating in the Medicare, Medicaid, and all Federal health care programs as defined in � 1128B(f) of the Act. I.G. Exhibit (Ex.) 1. The I.G. further informed Petitioner that the exclusion was based on section 1128(b)(4) of the Act, in view of the revocation, suspension, loss, or surrender of her license to practice medicine or provide health care in the State of Kentucky for reasons bearing on her professional competence, professional performance, or financial integrity. The exclusion would be in effect as long as her license to practice medicine in Kentucky remained revoked, suspended, surrendered, or otherwise lost.

The I.G. is represented in this case by Jashiri S. Mehta, Esq. Petitioner is represented by Michael V. Thompson, Esq. The parties agreed that this matter could be decided based on written arguments and documentary evidence, and that an evidentiary hearing was unnecessary. The I.G. submitted a brief accompanied by five proposed exhibits. These have been identified as I.G. Ex. 1 - 5. Petitioner submitted a brief accompanied by two proposed exhibits.

These have been identified as P. Ex. 1 - 2. I have admitted the parties' proposed exhibits into evidence without objection. It is my decision to sustain the determination of the I.G. to exclude Petitioner from participating in the Medicare, Medicaid, and all other Federal health care programs, for a period coterminous with the loss of her license to practice medicine or provide health care in the State of Kentucky. I base my decision on the documentary evidence, the applicable law and regulations, and the arguments of the parties. It is my finding that Petitioner surrendered her license to practice dentistry in Kentucky when charged by the Board of Dentistry (Board) of that state with allegations of unprofessional conduct that had a bearing on her professional competence, professional performance, or financial integrity. Additionally, I find that when an exclusion imposed by the I.G. runs concurrent with the remedy imposed by the State licensing authority, such an exclusion is mandated by law.

I. ISSUES

1. Whether the I.G. had a basis upon which to exclude Petitioner from participating in the Medicare, Medicaid, and all other Federal health care programs.

2. Whether the length of the exclusion imposed and directed against Petitioner by the I.G. is unreasonable.

II. APPLICABLE LAW AND REGULATIONS

Under section 1128(b) of the Act, the Secretary of Health and Human Services (Secretary) may exclude individuals from receiving payment for services that would otherwise be reimbursable under Medicare, Medicaid, or other Federal health care programs.

The Act defines "Federal health care program," 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, as defined in � 1128(h). Act, Section 1128B(f).

Section 1128(b)(4)(B) of the Act authorizes the I.G. to exclude an individual who surrenders a license to provide health care, while a formal disciplinary proceeding is pending before a state licensing authority, and the proceeding concerns the individual's professional competence, professional performance, or financial integrity. According to section 1128(c)(3)(E) of the Act, the minimum term of exclusion of an individual who is excluded pursuant to section 1128(b)(4) must be coterminous with the term of loss, suspension, revocation, or surrender of that individual's license to provide health care.

The regulations promulgated at 42 C. F. R. �� 1001.501 and 1001.1901(b) mirror the statutory provisions set forth in the Act.

III. FINDING OF FACT AND CONCLUSIONS OF LAW

1. Petitioner was licensed by the State of Kentucky to practice dentistry. P. Ex. 1 at 2.

2. On February 15, 2001, Mr. Gary Munsie, Executive Director, Kentucky Board of Dentistry, filed a formal complaint against Petitioner before the Kentucky Board of Dentistry. I.G. Ex. 4.

3. The complaint was based on the following findings:

a. In or about July 2000, Petitioner discontinued her dental practice in Radcliff, Kentucky, and moved to Mississippi when she encountered complications from a pregnancy. However, she did not notify the Board that her address of practice had changed or where she could be contacted regarding her Kentucky license to practice dentistry. I.G. Ex. 4 at 2.

b. Petitioner's dental records reveal that she provided patient I. B. with extensive maxillary restorative treatment from April 1, 1996 to March 12, 1998. During that time, Petitioner performed bridge work on that patient which was placed over an inappropriate substructure for tooth numbers 11x14 and/or fit so poorly that margins were not closed and the bridge work failed. I.G. Ex. 4 at 3.

c. Petitioner's dental records do not show that patient I. B. gave her informed consent for the bridge work, nor was there evidence of a treatment plan. Id.

d. On January 22, 1998, Petitioner charged patient I. B. for a root canal on tooth number 28, but never performed the work. Id.

e. Petitioner's dental records of her active as well as inactive patients were not made available to those patients after July 2000, when she abruptly discontinued her dental practice in Radcliff, Kentucky. I.G. Ex. 4 at 4.

f. Petitioner did not give reasonable notice to her patients that she was not available to provide any further dental services, either temporarily or permanently. Id.

g. Petitioner made no referrals to any of her patients so that they could continue dental treatment elsewhere. Id.

h. Patient R. C. paid Petitioner the sum of $1,300.00 for dental work that Petitioner was unable to complete due to the sudden closing of her practice. Id.

4. The Board charged Petitioner with failure to meet her professional duty to provide dental services to existing patients consistent with the standard of performance in treatment when measured against the degree of care and skill expected of a reasonably competent dentist. I.G. Ex. 4 at 5.

5. The Board also charged Petitioner with committing a dishonest act in the provision of dental services by abandoning patients who were scheduled to have treatment of a continuing nature performed, and by taking money for dental work that was never completed. Id.

6. After the Board issued its formal complaint on February 15, 2001, Petitioner entered into a Settlement Agreement denying any violation of the Kentucky Revised Statutes, but admitting that the Board had evidence that could have led to the conclusion that a violation or violations occurred. I. G. Ex. 5 at 1.

7. Petitioner acknowledged the Board's jurisdiction over her and over the conduct that precipitated the settlement. I.G. Ex. 5 at 2.

8. Petitioner waived all her rights associated with a public hearing at which she could defend against the accusations leveled against her by the Board, in exchange for the Board's acceptance of the settlement agreement. The settlement spared Petitioner from formal disciplinary action that could include revocation of her license to practice, upon proof of the allegations in the Formal Complaint filed against her. Id.

9. The settlement agreement provided for the following:

a. Petitioner agreed to allow the Board to retire her Kentucky dentistry license pursuant to Kentucky Revised Statutes � 313.085.

b. Petitioner agreed to pay $1,300.00 in restitution to patient R.C., and to make available complete dental records of all patients from her Radcliff, Kentucky office.

c. Petitioner would be allowed to have her license reinstated upon compliance with the following conditions:

i) submit proof of a passing score on the Southern Regional Testing Agency clinical exam on various clinical subjects; or

ii) submit proof of having taken appropriate dental school clinical courses at an American Dental Association accredited dental school in various clinical subjects; or

iii) Submit proof of having successfully completed with a passing grade a clinical, hands on course in various areas of dentistry. I.G. Ex. 5 at 4.

10. Petitioner surrendered her license while formal proceedings aimed at disciplinary action were pending before a State licensing authority within the scope of section 1128(b)(4)(B) of the Act.

11. Section 1128(b)(4)(A) of the Act authorizes the I.G. to exclude an individual from participation in the Medicare, Medicaid, and all Federal health care programs as defined in section 1128B(f), whose license has been revoked, suspended or otherwise lost or surrendered while a formal disciplinary proceeding is pending before any State licensing authority for reasons bearing on the individual's professional competence, professional performance, or financial integrity.

12. Petitioner possessed a license to provide health care within the scope of section 1128(b)(4) of the Act.

13. The I.G. was authorized to exclude Petitioner pursuant to section 1128(b)(4) of the Act because the loss of Petitioner's license was for reasons bearing on her professional competence, professional performance, or financial integrity.

14. Where the 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.

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

16. Section 1128(b) of the Act authorizes the Secretary to bar excluded individuals from receiving payment for services that would otherwise be reimbursable under Medicare, Medicaid, or other federal health care programs.

IV. DISCUSSION

1. The I.G. had a basis for excluding Petitioner.

Petitioner was a doctor licensed to practice dentistry and provide health care in the State of Kentucky. On February 15, 2001, Petitioner was cited by the State Medical Board of Kentucky for reasons bearing on her professional competence and financial integrity. Prior to the scheduling of an evidentiary disciplinary hearing, Petitioner entered into a settlement agreement. That agreement allowed the Board to deem Petitioner's license to practice dentistry as retired under Kentucky law.

By letter dated January 31, 2002, the I.G. notified Petitioner that she was being excluded from participating in the Medicare, Medicaid, and all Federal health care programs pursuant to section 1128(b)(4) of the Act because her license to practice medicine or provide health care in the State of Kentucky was revoked, suspended, or otherwise lost, or surrendered for reasons bearing on her professional competence, professional performance, or financial integrity.

Petitioner contends that nowhere in the settlement agreement reached by the parties is it noted that any disciplinary sanction has been taken against Petitioner's license in the State of Kentucky. Her license was not revoked or suspended, but only deemed "retired" by the Board, says Petitioner. Furthermore, argues Petitioner, whether her license was "otherwise lost" pursuant to section 1128(b)(4) of the Act depends squarely on the agreement reached by the parties.

The clear language of the statute is not open to dispute. The Secretary 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.

Section 1128(b)(4)(A) and (B) of the Act.

I find that the legal provision that more closely defines the facts of this case is section 1128(b)(4)(B). There are two aspects to this legal provision. The first requirement refers to the individual's surrender of a license to provide health care. The second requirement is that the individual surrender a license while a formal disciplinary proceeding is pending before a state licensing authority and that proceeding concerns the individual's professional competence, professional performance, or financial integrity. In the case at hand, Petitioner agreed to have the Board consider her license to practice dentistry in Kentucky as "retired." This is the equivalent of having surrendered her license. Thus, Petitioner's argument that her license was not revoked or suspended is without merit. The law does not limit exclusion actions by the I.G. only to those situations. In fact, the statute's language encompasses a wide range of possibilities when it adds other instances such as the surrender of the license, or when the license is "otherwise lost."

Petitioner appears to suggest that she can finesse her way around the intent of the exclusion statute by the wording in the settlement agreement. Thus, she impermissibly concludes that the form of the settlement language prevails over the substance of the statute. There is no question that the reason Petitioner gave up her privilege to practice dentistry in Kentucky was to avoid an evidentiary hearing that could result in revocation of her license. Under the exclusion provisions of the Act, it is irrelevant whether "the giving up" of her license is called surrender or retirement.

The second requirement of the statute, as pertinent here, is that the license be surrendered while a formal disciplinary proceeding is pending before a State licensing authority, and the proceedings concern the individual's or entity's professional competence, professional performance, or financial integrity. In the settlement agreement, Petitioner acknowledged that the Board had jurisdiction over her as well as the conduct that precipitated the settlement. I.G. Ex. 5 at 2. The Board clearly outlined that conduct in the Formal Complaint as bearing on Petitioner's professional competence, professional performance, and financial integrity. Faced with very serious charges regarding professional incompetence and perpetrating fraud upon her patients, Petitioner opted for a negotiated resolution whereby she agreed to give up (surrender) her license and make monetary restitution of the funds wrongfully taken. Consequently, the application of 1128(b)(4)(B) to this case inescapable.

In view of the foregoing, I conclude that Petitioner surrendered her license to provide dental care in the State of Kentucky while a formal disciplinary proceeding was pending before the State Board of Dentistry that concerned her professional competence, professional performance, or financial integrity.

2. The length of the exclusion is not unreasonable.

The State Medical Board of Kentucky accepted Petitioner's surrender of her license to practice dentistry. Pursuant to section 1128(c)(3)(E) of the Act, "no issue of reasonableness exists" where the length of the exclusion imposed by the I.G. is coterminous with the revocation, suspension, surrender, or loss of a State license. Maurice Labbe, DAB CR488 (1997) at 3. That section requires that Petitioner be excluded for a period no less than the period during which her license is revoked, suspended, surrendered, or lost. The coterminous exclusion by the I.G. in this case is the mandated minimum period required by law.

V. CONCLUSION

It is my decision that the I.G. was authorized to exclude Petitioner pursuant to section 1128(b)(4) of the Act. Additionally, I conclude that the indefinite period of exclusion imposed by the I.G. is the minimum period mandated by section 1128(c)(3)(E) of the Act.

Jose A. Anglada

Administrative Law Judge