SUBJECT:

John C. Cheek, M.D.,

Petitioner,

The Inspector General

FINAL DECISION ON REVIEW OF

ADMINISTRATIVE LAW JUDGE DECISION

John C. Cheek, M.D., (Petitioner) appealed an April 19, 2000 decision by Administrative Law Judge (ALJ) Jose A. Anglada. John C. Cheek, M.D., DAB CR665 (2000) (ALJ Decision). The ALJ affirmed the decision of the Inspector General (I.G.) to exclude Petitioner from participation in all federal health care programs because of the State of Ohio's revocation of Petitioner's license to practice medicine or provide health care. The exclusion was to remain in effect as long as Petitioner's license to practice medicine in Ohio remained revoked. The ALJ found that the license revocation was based on Petitioner's conviction for a drug-related offense and his failure to advise the State of Ohio Medical Board that he had been found guilty of one count of soliciting; that the revocation was for reasons bearing on his professional competence or behavior as a physician; and that the clear language of section 1128(b)(4)(A) of the Social Security Act (Act) gave the I.G. the authority to exclude Petitioner.

For the reasons discussed below, we find that there is substantial evidence in the record to support the ALJ's affirmation of the I.G.'s decision to exclude Petitioner. Accordingly, we sustain the ALJ Decision, with the exception of modifying FFCL 6 as noted below.

Applicable Law

Section 1128(b)(4)(A) of the Act authorizes the I.G. to exclude an individual or entity --

whose license to provide health care has been revoked or suspended by any State licensing authority, or who otherwise lost such a license or the right to apply for or renew such a license, for reasons bearing on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 . . .

Section 1128(c)(3)(E) provides that such an exclusion -

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 the entity is excluded or suspended from a Federal or State health care program.

Factual Background

The following summary of the facts is intended to provide a general framework for understanding this decision. This summary is not intended to be a substitute for the ALJ's findings unless specifically noted.

The Medical Board of the State of Ohio revoked Petitioner's medical license on December 3, 1997. Petitioner Exhibit ( P. Ex.) 1. The revocation was based on Petitioner's conviction of one felony count of possession of drugs involving the purchase of crack cocaine and on Petitioner's failure to advise the Medical Board on his license renewal application that he had been found guilty of one misdemeanor count of soliciting. P. Ex. 2. At the time of his license revocation in Ohio, Petitioner had moved to North Carolina. On December 9, 1997, Petitioner received a temporary license to practice medicine and surgery from the North Carolina Medical Board. P. Ex. 7. Petitioner had informed the North Carolina Medical Board of his conviction in Ohio of one felony count for the possession of drugs and the revocation of his Ohio license prior to being awarded a temporary license by the North Carolina Medical Board. P. Ex. 8. The temporary North Carolina license was based on the following representations by Petitioner: he had completed a long-term treatment program for substance abuse; he regularly attends Alcoholics Anonymous and Caduceus meetings; and he had been treated for past professional sexual misconduct. Id. at 2 - 3. The North Carolina Medical Board further ordered that: Petitioner continue in therapy, with progress reports sent to the Medical Board every six months; Petitioner meet with Medical Board members at any time requested by the Board; Petitioner provide 50 hours of medical care yearly without compensation; and Petitioner obtain each calendar year 50 hours of continuing medical education. Id. at 3 - 4. Petitioner's license to practice medicine in North Carolina remains in effect.

The I.G. mailed a letter dated December 31, 1998, to Petitioner at his former Ohio address notifying him that, as a result of his license being permanently revoked by the Ohio Board, he was being excluded from participating in the Medicare, Medicaid, and all federal health care programs as defined in section 1128(b)(4) of the Act. I.G. Ex. 3. However, since Petitioner had already moved to North Carolina, he did not receive this letter. Thus, contrary to what the ALJ found in FFCL 6, Petitioner first became aware of his exclusion on June 16, 1999, as a result of an inquiry from the North Carolina Attorney General's office. At that point, Petitioner requested a hearing, and the current proceedings ensued. No issue of timeliness of the hearing request before the ALJ was raised.

Discussion

In an appeal of an ALJ decision, our standard of review on a disputed issue of law is whether the decision is erroneous; for a disputed issue of fact, the standard is whether the ALJ decision is supported by substantial evidence in the whole record. 42 C.F.R. � 1005.21(h).

Petitioner took exception to three findings of fact and conclusions of law (FFCLs) made by the ALJ:

6. On December 31, 1998, the I.G. notified Petitioner that he was being excluded from participating in the Medicare, Medicaid, and all federal health care programs.

9. The Order of the State Medical Board of Ohio resulted in the permanent revocation of Petitioner's medical license within the scope of section 1128(b)(4)(A) of the Act for reasons bearing on his professional competence or performance.

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

We address Petitioner's exceptions to each of these FFCLs in turn below. Since the remaining FFCLs were not excepted to by either party, we affirm and adopt them without discussion.

I. FFCL 6

Petitioner excepted to FFCL 6 because of his contention that he was not "notified" of his exclusion by the I.G.'s December 31, 1998 letter. The I.G. acknowledged that Petitioner may not have received the notice of exclusion dated December 31, 1998, but argued that Petitioner was not prejudiced since all his due process rights were afforded. We agree with both Petitioner and the I.G. that, for purposes of notice under the regulations, Petitioner was not notified of his exclusion until June 16, 1999. The ALJ's statement that Petitioner was "notified" on December 31, 1998 is not consistent with the undisputed facts. Since the date on which Petitioner received notice of the exclusion is not material to the ALJ's ultimate decision on exclusion of Petitioner, we find that it constitutes harmless error.

We nevertheless modify FFCL 6 to read:

6. The I.G. mailed a letter of exclusion to Petitioner dated December 31, 1998. Petitioner did not receive the letter since he had moved to North Carolina while the letter was sent to his former Ohio address. Petitioner received notice of the proposed exclusion on June 16, 1999 and his subsequent request for hearing was thus timely.

II. FFCL 9 and FFCL 10

We affirm FFCLs 9 and 10 as written. The principal issue in this case has been whether the Ohio revocation of Petitioner's license was for reasons bearing on his professional competence or performance. Section 1128 of the Act, which governs the exclusion of individuals from participation in federal health care programs, allows the Secretary to exclude an individual whose license to practice medicine has been revoked "for reasons bearing on the individual's . . . professional competence, professional performance, or financial integrity." Section 1128(b)(4)(A). The ALJ found that Ohio's revocation of Petitioner's license to practice medicine was for reasons bearing on his professional competence or performance.

Petitioner vigorously contended before the Board, as he did before the ALJ, that neither his failure to disclose his previous criminal record nor his felony drug conviction bore on either his professional competence or performance. Petitioner characterized his misdeeds as "simple." ALJ Decision at 5, citing Petitioner's Brief at 7, 15. As the ALJ pointed out, however, a "common sense connection" is easily made between the type of dishonesty which manifests itself in falsely filling out a license renewal application, the type of conduct related to his drug conviction and substance abuse issues, and Petitioner's professional competence and/or performance. ALJ Decision at 6. Further, in arriving at his determination, the ALJ relied on evidence that Petitioner had a history of past professional misconduct as a result of earlier substance abuse issues, including alcohol-related sexual misconduct. Id.⁽¹⁾ That Petitioner's problems have occurred over a period of years further supports the ALJ's finding that the I.G. correctly determined that the license revocation was based on the factors enumerated in the statute, in that excluding untrustworthy practitioners who might not be fully competent as a result of long-term substance abuse problems would be consistent with and in furtherance of the aims of the Act. Moreover, that a professional licensing panel including his peers found Petitioner's drug conviction and failure to report his conviction for solicitation were sufficient to warrant the revocation of his license to practice strongly indicates that these two actions bore on his professional competence or performance.

Petitioner submitted a number of exhibits in the proceedings before the ALJ indicating that he had been successfully practicing in North Carolina, and that he had been completely candid with the North Carolina Board in his application for his license to practice. P. Exs. 5, 8, 9, and 10. He further indicated that he had been continuing to undergo treatment for substance abuse, and that his condition was actually related to depression, for which he was also being treated. P. Ex. 14, at 3 - 4. This evidence, however, does not alter the fact that the Ohio Board's determination did involve factors that gave the I.G. the authority to exclude Petitioner. Once the remedy of exclusion is imposed, the Act requires that the exclusion be in effect for as long as the license revocation is in effect. If Petitioner believes that the revocation is no longer warranted as a result of his treatment and possible recovery, then the appropriate forum for raising this is before the Ohio Board. It is clear from the Act that, once the exclusion remedy is properly imposed for license revocation for reasons bearing on professional competence or performance issues, license reinstatement by the revoking authority is the only statutorily recognized way to lift the exclusion. If his license is restored, Petitioner may then seek reinstatement by the I.G. to participate in federal health care programs.

For the reasons discussed above, we sustain the ALJ decision. We affirm and adopt each of the FFCLs in that decision, except for FFCL 6 which we adopt as modified.

Judith A. Ballard

M. Terry Johnson

Marc R. Hillson
Presiding Board Member

1. The ALJ inferred that this evidence was relevant to the reasons why the license was revoked. Petitioner pointed to nothing in the record that renders this inference an unreasonable one.