By letter dated November 30, 1998, the I.G. notified Petitioner that he would be excluded from participation in the Medicare and Medicaid programs until such time as he obtained a valid license to practice medicine or provide health care in the State of Oklahoma. In that letter, the I.G. explained that Petitioner's exclusion was authorized under section 1128(b)(4) of the Act because his license to practice as an osteopathic physician in the State of Oklahoma had been revoked, suspended, or otherwise lost or surrendered during the pendency of formal disciplinary proceedings before the State licensing authority for reasons bearing on his professional competency, professional performance, or financial integrity.

Petitioner requested a hearing to contest the I.G.'s action. The parties subsequently agreed that an in-person hearing was not necessary and the case could be decided based on written submissions. The parties have each submitted written arguments. The I.G. submitted eight proposed exhibits ("I.G. Ex. 1-8"), to which Petitioner did not object. Petitioner did not submit any exhibits. In the absence of objection from the parties, I am admitting I.G. Ex. 1-8 into evidence in this case. I base my decision in this case on the applicable law and the parties' arguments and related exhibits.

Section 1128(b) of the Act authorizes the Secretary of Health and Human Services to exclude individuals and entities from receiving payment for services that would otherwise be reimbursable under Medicare, Medicaid or any Federal health care program. 42 U.S.C. � 1320a-7(b). Section 1128(b)(4) of the Act permits the I.G. to exclude:

[a]ny individual or entity - (A) whose license to provide health care has been revoked or suspended by any State licensing authority, or who otherwise lost such a license or the right to apply for or renew such a license, for reasons bearing on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.

42 U.S.C. � 1320a-7(b)(4).

The length of an exclusion under section 1128(b)(4) is set by section 1128(c)(3)(E) of the Act. Section 1128(c)(3)(E) states that for a person excluded under � 1128(b)(4) "...the period of 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 entity is excluded or suspended from a Federal or State health care program." 42 U.S.C. � 1320a-7(c)(3)(E). Thus, by law, exclusions imposed pursuant to � 1128(b)(4) must remain in effect until the excluded individual obtains a valid license from the state which revoked or suspended the license, or to which it was surrendered.

PETITIONER'S ARGUMENTS

Petitioners' primary argument is that he did not actually surrender his license but instead let it expire. Petitioner also maintains that his professional competence has never been questioned and that he could demonstrate that the treatment modalities he used were within professionally recognized standards of care.

The only issue in this case is whether Petitioner surrendered his license to practice medicine in Oklahoma while a formal disciplinary hearing was pending before the State Board concerning his professional competence, professional performance, or financial integrity, within the meaning of section 1128(b)(4) of the Act.

1. At all times relevant to this case, Petitioner held a probationary license to practice osteopathic medicine in the State of Oklahoma, issued by the State Board of Osteopathic Examiners, State of Oklahoma ("OBOE"). (I.G. Ex. 1.)

2. Under Oklahoma statutory law, the OBOE is charged with licensing and regulating physicians in the practice of osteopathic medicine in the State of Oklahoma. See 59 Okla. Stat. Ann. tit. 59 � 637 (West 1999). (I.G. Ex. 8.)

3. Petitioner provided health care services to patients at Reynolds Army Community Hospital ("Reynolds Hospital"), Fort Sill, Oklahoma. (I.G. Ex. 1.)

4. On November 18, 1997, the Department of the Army notified Petitioner that his clinical privileges at Reynolds were suspended for alleged unprofessional conduct. (I.G. Ex. 1.)

5. On December 11, 1997, a Special Prosecutor for the OBOE, State of Oklahoma served a Citation and Notice of Hearing and a formal Complaint to the Petitioner for alleged violations of 59 O.S. Supp. 1996 � 637(A)(2),(2)(c), and (11) of the Osteopathic Medicine Act to wit:

The State Board of Osteopathic Examiners may refuse to admit a person to an examination or may refuse to issue or reinstate or may suspend or revoke any license issued or reinstated by the Board upon proof that the applicant or holder of such a license:

2. Has engaged in the use or employment of dishonesty, fraud, misrepresentation, false promise, false pretense, unethical conduct or unprofessional conduct, as may be determined by the Board, in the performance of the functions or duties of an osteopathic physician, including, but not limited to...

c. willfully performing inappropriate or unnecessary treatment, diagnostic tests or osteopathic medical or surgical services.

. . .

11. Has violated or refused to comply with a lawful order of the Board.

(I.G. Ex. 5.)

6. At a later unspecified date, the Special Prosecutor for the OBOE amended the Complaint and added allegations of two other instances of unprofessional conduct involving inappropriate touching of female patients. (I.G. Ex. 1.)

7. A disciplinary hearing before the OBOE on the issues set forth in the Amended Complaint was scheduled for March 19, 1998. (I.G. Ex. 2.)

8. Petitioner surrendered his license to practice as an osteopathic physician in the State of Oklahoma to the OBOE, pursuant to a voluntary surrender agreement and in lieu of a hearing on a disciplinary action brought against him by the OBOE. By an Order issued on March 19, 1998, the OBOE formally accepted Petitioner's surrender of his license and dismissed the pending disciplinary action without prejudice. (I.G. Ex. 3.)

9. On November 30, 1998, the I.G. notified Petitioner of his indefinite exclusion from participation in Medicare, Medicaid and all Federal health care programs, pursuant to section 1128(b)(4) of the Act. (I.G. Ex. 4.)

10. Section 1128(b)(4) of the Act authorizes the I.G. to exclude an individual who surrenders his or her license to provide health care during the pendency of formal disciplinary proceedings before a State licensing authority which concern the individual's professional competence, professional performance, or financial integrity. 42 U.S.C. � 1320a-7(b)(4).

11. Petitioner, as a licensed osteopathic physician, possessed a license to provide health care within the scope of section 1128 (b)(4)(B) of the Act.

12. Petitioner surrendered his license to practice osteopathic medicine during the pendency of a formal disciplinary proceeding before a State licensing authority, within the scope of section 1128(b)(4)(B) of the Act.

13. The disciplinary proceeding that was pending when Petitioner surrendered his license to practice osteopathic medicine concerned his professional competence, professional performance, or financial integrity, within the scope of section 1128(b)(4) of the Act.

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

15. Under section 1128(c)(3)(E) of the Act, 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.

16. The applicable statute requires that Petitioner's exclusion remain in effect until (at a minimum) he regains his physician's license from the State of Oklahoma.

17. Petitioner's license to practice osteopathic medicine in Oklahoma has not been reinstated.

18. The exclusion imposed by the I.G. against Petitioner is appropriate and legally supportable.

DISCUSSION

I. Petitioner surrendered his license to practice osteopathic medicine during the pendency of a formal disciplinary proceeding before a State licensing authority, within the scope of section 1128(b)(4) of the Act.

I find that the record establishes that Petitioner surrendered his license to practice osteopathic medicine while a formal disciplinary proceeding was pending before the Oklahoma licensing authority concerning his professional performance, professional competence, or financial integrity. The record reflects that the OBOE initiated a disciplinary proceeding against the Petitioner arising from a complaint filed by the Special Prosecutor for the OBOE on December 11, 1997. An amended complaint was served and filed thereafter. The basis of the OBOE complaint and amended complaint was unprofessional conduct during "accupressure" treatment sessions with several female patients, and failure to submit psychiatric reports as required under the terms of the Order granting Petitioner's probationary license.

A hearing was scheduled for March 19, 1998, and Petitioner was given notice of the hearing with the original complaint on December 11, 1997. In lieu of appearing at the scheduled disciplinary hearing, however, Petitioner agreed to surrender his license to practice osteopathic medicine in the State of Oklahoma to the OBOE. Pursuant to that agreement, the OBOE dismissed the disciplinary proceeding against Petitioner, without prejudice, on March 19, 1998.

The record clearly reflects that Petitioner agreed to surrender his license in lieu of appearing at the scheduled disciplinary hearing. In a letter to Richard M. Mildren, dated March 18, 1998, Petitioner's attorney, John P. Zelbst writes,

This letter is to confirm our agreement wherein the case against Dr. Lewis will be dismissed without prejudice, and that he is to surrender to the Board his Oklahoma license, and therefore the hearing previously set for Thursday, March 19, 1998 is cancelled. As previously advised as soon as the license is received from Dr. Lewis we will transmit this to you.

I.G. Ex. 2.

Likewise, the record indicates that OBOE formally accepted Petitioner's license surrender to resolve the disciplinary proceeding pending against Petitioner. The Order issued on March 19, 1998 by the OBOE states:

This matter comes before the State Board of Osteopathic Examiners ("Board") for an individual proceeding against Jim Earl Lewis, D.O. ("Dr. Lewis"). In lieu of a hearing in the above-styled action, Dr. Lewis surrenders his license issued by the Board to practice as an osteopathic physician in the State of Oklahoma. The Board will dismiss without prejudice the above-styled action. I.G. Ex. 3.

The language in the Order demonstrates that the circumstances surrounding Petitioner's license were viewed by both parties to the disciplinary action as a surrender. Petitioner chose not to appear in person at the hearing but instead agreed to surrender his license to practice in the State of Oklahoma in exchange for having the pending disciplinary proceedings dismissed. By voluntarily agreeing to surrender his license, Petitioner clearly relinquished the permission conferred on him by the State licensing authorities to be an osteopathic physician in the State of Oklahoma. If Petitioner had not agreed to surrender his license in lieu of appearing at the hearing to respond to the charges against him, it is likely the OBOE would have continued with its disciplinary proceeding, which could have led to sanctions against Petitioner, including license suspension or revocation.

Petitioner argues that although he had originally agreed to surrender his license, he never actually sent it in and simply let it expire. Even were I to accept Petitioner's argument that he let his license expire, after which he did not seek relicensure, the language of section 1128(b)(4)(B) does not require actual physical surrender of the license document. See John W. Crews DAB CR509 (1997),(DAB review declined), aff'd 40 F. Supp. 2d 350, 354 (E.D. Va.1999); William I. Cooper, M.D., DAB No. 1534 (1995). The appellate panel in Cooper upheld the ALJ's conclusion that "the term 'license' can mean a permission to act, as well as the document evidencing that permission has been conferred...Nothing in the wording of section 1128(b)(4)(B) suggests that Congress was using the term to mean the document, as opposed to the permission." 40 F. Supp. 2d 350, 354. (E.D. Va. 1999).

The legislative history of section 1128(b) supports such an interpretation of the term "license." Congress enacted section 1128 (b)(4)(B) to ensure that practitioners could not place program beneficiaries at risk by surrendering a license pending a disciplinary proceeding and then moving to another state. H.R. REP. No. 85, 100th Cong. 1st Sess. Pt.1, 7; S. REP. No. 109, 100th Cong. 1st Sess. Interpreting the section to require physical surrender of a document would frustrate Congressional intent; the potential harm to program beneficiaries, if the practitioner moves to another state and sets up practice, is as great as in the situation where the actual license document has been physically surrendered.

In this case, I find that Petitioner surrendered the authority granted by the OBOE to practice osteopathic medicine during the pendency of a formal disciplinary proceeding bearing on his professional competence or professional performance within the scope of section 1128(b)(4)(B) of the Act. Maurice Labbe, DAB CR488 (1997); Dillard P. Enright, DAB CR138 (1991); John W. Foderick, M.D., DAB CR43 (1989). I find also that the circumstances of this case constitute a surrender of his license within the scope of section 1128(b)(4)(B) of the Act. John W. Crews, DAB CR509 (1997), aff'd 40 F. Supp. 2d 350 (E.D.Va. 1999); William I. Cooper, M.D., DAB No. 1534 (1995).

II. Petitioner surrendered his license during the pendency of a formal disciplinary proceeding concerning his professional competence, professional performance, or financial integrity.

Petitioner's voluntary surrender of his license amid allegations that he violated Oklahoma statutes and regulations governing the practice of osteopathic medicine, and in so doing engaged in unprofessional conduct, clearly can be construed as relating to his professional competence and professional performance. Behavior which rises to the level of unprofessional conduct clearly impacts upon a person's professional competence and performance. See Morton Markoff, D.O., DAB CR538 (1998) (upholding exclusion of provider pursuant to section 1128(b)(4) of the Act following provider's surrender of medical license during the pendency of formal disciplinary proceedings initiated as a result of provider's criminal conviction arising out of his participation in an insurance fraud scheme).

While the terms "professional competence" and "professional performance" are not defined in section 1128(b)(4)(B), their plain meaning encompasses the ability to practice a licensed service with reasonable skill and safety. See Jerry D. Harrison, D.D.S., DAB CR203 at 12 (1992), aff'd DAB No. 1365 (1992). The allegations against Petitioner in the present case included his failure to follow routine medical procedure to secure informed consent for the examination and treatment of several female patients, failure to explain the purpose for vaginal and breast procedures during accupressure treatment sessions, failure to wear gloves at any time during the execution of these procedures, and failure to have a female chaperone present during the treatment of two of the female patients. These allegations clearly question Petitioner's ability to practice osteopathic medicine with reasonable skill and safety.

The principal purpose of the Act is to protect Federal health care programs and their beneficiaries from untrustworthy providers until it can be demonstrated that they can be trusted to deal with program funds and to properly serve beneficiaries and recipients. See Myron R. Wilson, Jr., M.D., DAB CR146 at 10 (1991). Additionally, exclusions serve to deter providers from engaging in conduct which threatens the integrity of the programs or well-being of the beneficiaries and recipients. Id.

In Wilson, the IG's exclusion was upheld against a psychiatrist for adolescents who surrendered his license to practice medicine in the State of Minnesota in the face of allegations of unprofessional conduct, e.g., improper sexual contact between the petitioner and his patients. Id. The ALJ in Wilson found that the legislative history suggests Congressional recognition of the probability that providers who surrender their licenses to provide health care in the face of disciplinary charges ordinarily do so in order to avoid the stigma of an adverse finding. Id; See S. REP. No. 100-109, at 7, 100th Cong., 1st Sess. (1987), reprinted in 1987 U.S.C.C.A.N. 682, 688. Here, just as in Wilson, Petitioner voluntarily chose to surrender his medical license rather than have a formal adjudication of the allegations of unprofessional conduct. Accordingly, under the statute, he will not be permitted to treat beneficiaries of federal health care programs unless and until the OBOE reinstates his license to practice osteopathic medicine.

Petitioner argues that his professional competence has never been questioned (Petitioner's letter to ALJ Clifton) and that he could demonstrate that the treatment modalities that he used were within professionally recognized standards of care. Petitioner's argument constitutes a collateral attack on the actions of the State licensing authority. In this case, the I.G.'s authority to exclude Petitioner from the Medicare and Medicaid programs was based upon the State of Oklahoma's formal disciplinary proceeding against Petitioner for reasons bearing upon his professional competence, professional performance, or financial integrity, and Petitioner's surrender of his license to practice osteopathic medicine during the pendency of those proceedings. Petitioner may not challenge the basis for the I.G.'s authority to exclude him by asking the administrative law judge to review the State of Oklahoma's underlying action and determine the validity of that action. The Departmental Appeals Board has held that a collateral attack on the actions of the State licensing authority is not permitted in the context of an exclusion proceeding under section 1128(b)(4). John W. Foderick, M.D., DAB No. 1125 (1990); see also, Jagdish Mangla, M.D., DAB CR470 (1997).

I conclude that the I.G. was authorized to exclude Petitioner pursuant to section 1128(b)(4) of the Act. I conclude also that the period of exclusion imposed by the I.G. is for the minimum period mandated by section 1128(c)(3)(E) of the Act, i.e., coterminous with the OBOE's sanction period. Accordingly, I sustain the I.G.'s determination to exclude Petitioner from participation in the Medicare and Medicaid programs until such time as he obtains a valid license to practice osteopathic medicine in the State of Oklahoma.