SUBJECT:

John C. Cheek, M.D.,

Petitioner,

The Inspector General

This case is before me pursuant to a request for hearing filed by John C. Cheek, M. D. (Petitioner) on August 10, 1999. Social Security Act (Act), section 1128(f); 42 C.F.R.�� 1001.2007, 1005.2.

By letter dated December 31, 1998, the Inspector General (I. G.) notified Petitioner that he was being excluded from participating in the Medicare, Medicaid, and all federal health care programs as defined in section 1128B(f) of the Act. That action, the I.G. informed Petitioner, was taken under section 1128(b)(4) of the Act, inasmuch as his license to practice medicine or provide health care in the State of Ohio, was revoked for reasons bearing on his professional competence, professional performance, or financial integrity. The exclusion would be in effect as long as his license to practice medicine in Ohio remained revoked.

The parties, through their respective counsel, agreed that the case could be decided based on written arguments and documentary evidence and that a live hearing was not necessary. Each side has submitted briefs and proposed exhibits. In this decision, I cite to Petitioner's brief as "P. Brief."

The I.G. submitted five proposed exhibits. These have been identified as I.G. Ex(s). 1 - 5. Petitioner submitted 17 proposed exhibits, which have been identified as P. Ex(s). 1 - 17. Neither party objected to the other's proposed documentary evidence. In the absence of objection, I am admitting I.G. Exs. 1 - 5 and P. Exs. 1 - 17 into evidence. In addition to these exhibits, I am also identifying as ALJ Ex. 1 the State court document titled "Journal Entry," filed May 1, 1997, in the Court of Common Pleas, State of Ohio, Cuyahoga County, which was submitted by the I.G. as part of its initial exchange. I admit ALJ Ex. 1 into evidence.

It is my decision to sustain the determination of the I.G. to exclude Petitioner from participating in the Medicare, Medicaid, and all federal health care programs, for a period coterminous with the revocation of his license to practice medicine or provide health care in the State of Ohio. I base my decision on the documentary evidence, the applicable law and regulations, and the arguments of the parties. It is my finding that the State Medical Board of Ohio revoked Petitioner's license to practice medicine for reasons bearing on his 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.

1. Whether the I.G. had a basis upon which to exclude Petitioner from participation 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.

3. Whether the issuance of a license to practice medicine to Petitioner by the North Carolina Medical Board is a basis for reducing the length of the exclusion.

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 a State licensing authority, or otherwise lost, for reasons bearing on that 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, or revocation of that individual's license to provide health care.

Under Section 1128(b) of the Act, the Secretary of Health and Human Services 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 "[f]ederal 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 section 1128(h). " Act, section 1128B(f).

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

1. Petitioner was licensed by the State of Ohio to practice medicine and surgery.

2. On December 3, 1997, the State Medical Board of Ohio issued an Order permanently revoking Petitioner's certificate to practice medicine and surgery in the State of Ohio.

3. The December 3, 1997 Order was based on the Report and Recommendation of Sharon W. Murphy, State Medical Board Attorney Hearing Examiner. The permanent revocation of Petitioner's certificate was based on Petitioner having been found guilty of one felony count of possession of drugs, the acts underlying which involved the purchase of crack cocaine; and his failure to advise the State Medical Board of Ohio on his license renewal application that he had been found guilty of one misdemeanor count of soliciting. I.G. Exs. 1, 5; P. Exs. 1, 2.

4. On December 9, 1997, the North Carolina Medical Board granted Petitioner a limited temporary permit to practice medicine and surgery in that State. P. Ex. 7. Petitioner was last seen by the North Carolina Medical Board in November 1999 and was issued a license for six months. He will be up for review again by the Board in May 2000. P. Ex. 15.

5. Based on the action taken by the Ohio licensing authority, the Ohio Department of Human Services terminated Petitioner's provider agreement by notice dated May 13, 1998. I.G. Ex. 2.

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.

7. 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 or suspended by any State licensing authority for reasons bearing on the individual's professional competence, professional performance, or financial integrity.

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

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) of the Act.

11. 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. Act, section 1128(c)(3)(E).

12. 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.

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

14. The fact that Petitioner obtained a license to practice medicine in North Carolina after his medical license was permanently revoked in Ohio does nothing to impair the I.G.'s authority to exclude him for as long as his Ohio State license is revoked and to require that he obtain from the Ohio licensing authority the same type of license that he lost before he can be considered for reinstatement as a participant in the Medicare, Medicaid, and other federal health care programs. Act, sections 1128(b)(4), 1128(c)(3)(E).

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

Petitioner is a medical doctor who was licensed to practice medicine and provide health care in the State of Ohio. On April 20, 1997, he appeared before the Court of Common Pleas in the State of Ohio, Cuyahoga County, and entered a plea of guilty to one felony count for possession of drugs. ALJ Ex. 1; P. Brief, at 2; see P. Ex. 8, at 2. This event led to the eventual permanent revocation of Petitioner's certificate to practice medicine and surgery by the State Medical Board of Ohio on December 3, 1997. I.G. Ex. 1; P. Ex. 1. He did not appeal this action by the State Medical Board of Ohio. P. Ex. 5. It appears that Petitioner began the process of seeking a license in North Carolina before the State Medical Board of Ohio issued its decision permanently revoking his Ohio certificate. This is evident from the temporary permit to practice medicine and surgery issued on December 9, 1997 by the North Carolina Medical Board. P. Ex. 7. That temporary license has since become permanent.

On May 13, 1998, the Ohio Department of Human services sent Petitioner a notice informing him that it had come to their attention that the State Medical Board of Ohio had permanently revoked his license (#63948) to practice medicine, effective December 5, 1997, based upon a finding of guilty of one felony count of possession of drugs and his failure to advise the Board of a prior conviction of a misdemeanor count of soliciting. Consequently, Petitioner was notified that his provider agreement with the State of Ohio was being immediately terminated and that he would no longer be eligible for reimbursement for services rendered under Medicaid or Disability Assistance services. I.G. Ex. 2.

By letter dated 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 pursuant to section 1128(b)(4) of the Act because his license to practice medicine or provide health care in the State of Ohio was revoked, suspended, or otherwise lost or was surrendered while a formal disciplinary proceeding was pending before the State licensing authority for reasons bearing on his professional competence, professional performance, or financial integrity.

Petitioner argues that his license to practice medicine in Ohio was revoked due to matters unrelated to the programs from which he was excluded by the I.G. Additionally, he argues that the violations for which he was disciplined by the State Medical Board of Ohio do not rise to the level that would ordinarily lead to the revocation of a physician's license to practice medicine. Media coverage, he contends, played a role in the Board's strict disciplinary measure. Although he raised this issue in the request for hearing, it was not discussed in his brief.

The clear language of the statute is inescapable. The Secretary may exclude "[a]ny 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." Act, section 1128(b)(4)(A). The statutory test is two pronged. The first requirement, to the extent pertinent here, is that the entity's or individual's license to provide health care be revoked or suspended by any State licensing authority. The evidence outlined above establishes this fact, and Petitioner does not contest it. The second requirement is that the suspension or revocation be for reasons bearing on professional competence, professional performance, or financial integrity.

The thrust of Petitioner's argument is that the record is devoid of any evidence which links his professional competence, professional performance, or financial integrity with the grounds upon which the State Medical Board of Ohio revoked his license. P. Brief, at 3. Specifically, he contends that neither his failure to disclose that he had been convicted of solicitation of a prostitute nor the "single crime of simple possession of narcotics" bears any relation to his professional competence or performance. Id. at 7. Additionally, Petitioner asserts that the alleged relation is made more remote by the fact that he was not engaged in the practice of medicine when he committed the crime of narcotics possession. But beyond that, he further contends that it is wrong for the I.G. to presume that physicians who have substance abuse problems are subject to exclusion because such problems would adversely impact on a person's professional competence or performance. Id. at 7, 8. Finally, he argues that even if substance abuse were deemed to affect professional competence or performance, the record does not support a finding that he had an alcohol or substance abuse problem at the time he was practicing medicine in Ohio. Id. at 9, 10.

Petitioner employs the term "simple" to describe the nature of his misdeeds, such as felony conviction for "simple" possession of crack cocaine or "simple" dishonesty in failing to disclose a prior criminal conviction for solicitation. See P. Brief, at 7, 15. However, euphemism alone is insufficient to negate the adverse impact of his behavior on his professional competence or performance. Actual injury need not be established. It suffices to show a reasonable nexus between the behavior and the potential for adverse impact on his professional competence or performance.

Petitioner would have me take a very slanted view of the events leading up to and surrounding the revocation of his license to practice medicine in Ohio. But the substance of which this case is made requires a greater measure of objectivity.

Subsequent to graduation from medical school in 1984, Petitioner practiced medicine as an officer in the United States Army. In 1987, "alcohol related professional sexual misconduct" resulted in the loss of Petitioner's clinical privileges. He was court-martialed and discharged from the United States Army. P. Ex. 8. In 1992, at the time when Petitioner was involved in the development of a surgical monitoring program at the Cleveland Clinic Foundation, he was convicted of solicitation of prostitution. P. Ex. 14; see P. Ex. 11. When he applied for license renewal in 1994, he failed to disclose this conviction. P. Ex. 14, at 4. This act of dishonesty gave the State Medical Board of Ohio not only a sense of Petitioners's untrustworthiness, but also a clearer view of the magnitude of his behavioral problems. Pertinent to this is the fact that Petitioner required treatment by Dr. Gene G. Abel of the Behavioral Medicine Institute of Atlanta for his "past professional sexual misconduct." P. Ex. 8, at 3 (emphasis added). The "common sense connection" is inescapable.

The main reason for having his license revoked by the State Medical Board of Ohio, however, was Petitioner's conviction of one felony count of possession of cocaine. Petitioner contends that he has not been convicted of a crime that relates in any way, either directly or indirectly, to his professional duties as a physician. I disagree.

When considering the elements of professional competence or professional performance, the paramount concern is whether the entity or individual would be able to practice medicine safely. It strains the imagination to argue that a medical practitioner engaging in substance abuse does not compromise his professional competence as well as performance. The enormity of the evils and perils of use of illicit drugs cannot be overstated. This is particularly true in the case of a patient who places his trust (and life) in the hands of a physician who may be under the influence of such reasoning impairing substances. The "State" would be derelict if it allowed physicians whose thinking and medical judgment may be obscured due to substance abuse to treat patients.

In Charles Sutherland, D.O., DAB CR561 (1998), the petitioner's license was revoked because he used Fiorinal, a medication that was not prescribed to him by a treating source. The petitioner suffered from an addiction, and was under a 1993 Department of Professional Regulation of the State of Illinois (DPRSI) consent order to abstain from the use of medication unless it was prescribed by his treating physician. He alleged that the suspension was not based on conduct bearing on his professional competence or performance. Moreover, he used Fiorinal in July 1996 on a single occasion when he injured his back on vacation and a relative gave him three tablets for the pain. Thus, when ingestion of the controlled substance occurred, he was not treating patients. At the time of the adjudication of his case by Administrative Law Judge (ALJ) Joseph K. Riotto, the petitioner was licensed and practicing medicine in the State of Missouri.

In his decision, ALJ Riotto met the petitioner's arguments with the following:

I find that prior DAB (Departmental Appeals Board) decisions support the I.G.'s exclusion of Petitioner. I have found that Petitioner's medical license was suspended pursuant to allegations that he had a substance abuse problem. It has been determined that a substance abuse problem adversely impacts a person's professional competence and professional performance, as those terms are used in section 1128(b)(4) of the Act. Mary E. Groten, DAB CR518(1998); Richard L. Pflepson, D.C., DAB CR132 (1991). Petitioner has argued that the Groten and Pflepson cases are distinguishable from this case. Petitioner argues that in his case, unlike in Groten, there was no diversion of drugs. In Pflepson, Petitioner argues that the petitioner in that case did not file a response and that the issue of the petitioner's ability to practice with reasonable skill and safety was raised specifically. Petitioner's arguments, however, do not overcome the findings in these cases that a substance abuse problem adversely effects the individual's professional competence or performance, nor do they overcome my finding that the DPRSI made evident in its Consent Order that Petitioner's problems with controlled substances amounted to doubts about Petitioner's competence and performance as a physician.

Sutherland, at 7.

In the present case, Petitioner has a long history of substance abuse involving drugs and alcohol. Contrary to his assertion, the North Carolina Medical Board found that Petitioner was engaged in the practice of neurology in 1996 when he relapsed in his recovery from substance abuse. P. Ex. 8, at 1. However, the determination of whether Petitioner's possession and use of cocaine impacts on his professional competence or performance is not dependent on whether he was in his office or away from his practice on vacation as in the case of Sutherland or elsewhere. I cannot subscribe to the theory that a substance abuser, "once hooked," can turn the spigot of his addiction on and off at will.

In view of the foregoing, I find that Petitioner had his license revoked for reasons bearing on his professional competence and professional performance. Consequently, the I.G. had a basis for excluding Petitioner.

2. The exclusion was reasonable.

As stated earlier, Petitioner asserted in his request for hearing that the State Medical Board of Ohio was excessive in its imposition of the sanction due to influence from media coverage. Further, he contends that the events giving rise to the Ohio disciplinary action do not normally carry such a harsh penalty. For reasons that follow, these arguments do nothing to diminish the reasonableness of the period of exclusion.

Section 1128(c)(3)(E) of the Act, which was contained in section 212 of the Health Insurance Portability and Accountability Act of 1996 (Pub. L. 104-191) and amended section 1128(c)(3) of the Act, reads as follows:

[i]n the case of an exclusion of an individual or entity under subsection (b)(4) or (b)(5), the period of the 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.

The plain language of this amendment makes it clear that the minimum length of the exclusion must be coterminous with the term of the revocation, suspension, or surrender of the State license. Inasmuch as Petitioner's license to practice medicine was permanently revoked in the State of Ohio, the Act requires that the period of exclusion from participation in Medicare, Medicaid, and other federal health care programs, will not be less than the period during which his license to practice medicine in Ohio was revoked. The coterminous exclusion imposed by the I.G. in this case, which is of indefinite length, is the mandated minimum period required by law. Thus, the indefinite exclusion from participation in Medicare, Medicaid, and other federal health care programs is authorized in light of the legal requirement that the I.G.'s imposed period of exclusion be coterminous with the State licensing authority's sanction period.

3. Petitioner's obtaining of a license to practice medicine in North Carolina has no impact on the exclusion imposed by the I.G.

In his request for hearing, Petitioner alleged that he began seeking licensure in North Carolina prior to revocation of his license by the State Medical Board of Ohio. He claims that he was forthcoming with the licensing authority in North Carolina. Furthermore, he alleges that since having obtained his license in North Carolina, he has been participating in an extensive rehabilitation program, and his professional performance has been exemplary. This is another matter that Petitioner brought up in his request for hearing but did not broach in his brief.

Petitioner seems to imply that having obtained a license to practice in North Carolina opens the way for participation in Medicare, Medicaid, and other federal health care programs. Unfortunately, that is no longer possible in light of the 1996 amendments to the Act. It is unquestionable that pursuant to section 1128(c)(3)(E) of the Act, 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 the 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 entities or individuals excluded pursuant to section 1128(b)(4). The implication that the issuance of a license by North Carolina negates the exclusion grounded on the Ohio revocation, or that it could serve as a basis to diminish the length of exclusion mandated by statute is misplaced. It is plain from the language of the 1996 amendment of section 1128(c)(3) of the Act that the minimum length of the exclusion must be coterminous with the term of revocation or suspension. Because Petitioner lost his license to practice medicine in Ohio, the Act now requires that the period of exclusion will not be less than the period during which the license to practice medicine in that State was lost. Thus, Petitioner is required to obtain from the Ohio licensing authority the same type of license that he lost before he can be considered for reinstatement as a participant in Medicare, Medicaid, and other federal health care programs.

Prior to the 1996 amendment mentioned above, the regulation promulgated at 42 C.F.R. � 1001.501(c) provided as follows:

[i]f, prior to the notice of exclusion by the OIG, the licensing authority of a State (other than the one in which the individual's or entity's license had been revoked, suspended, surrendered or otherwise lost), being fully apprised of all the circumstances surrounding the prior action by the licensing board of the first State, grants the individual or entity a license, or takes no significant adverse action as to a currently held license, an exclusion imposed in accordance with this section may be for a period of time less than that prescribed by paragraph (b)(1) of this section.

At 63 Fed. Reg. 46,688 (1998), 42 C.F.R. � 1001.501 was amended for the purpose, among others, of deleting paragraph (c), supra, effective October 2, 1998. It should be noted, moreover, that section 1128(c)(3)(E) of the Act (which was contained in Pub. L. 104-191, section 212), became effective January 1, 1997. The notice of proposed rulemaking at 62 Fed. Reg. 47,183-47,184 (1997), contains the following language:

[f]or permissive exclusions from Medicare and the State health care programs as a result of revocation, surrender or suspension of an individual's or entity's health care license, section 212 establishes a minimum exclusion period that would be not less than the period during which the individual's or entity's license was revoked or suspended . . .

As indicated above, this statutory provision is effective for any exclusion imposed or proposed by the OIG on or after January 1, 1997 . . .

Furthermore, we would also revise �� 1001.501 and 1001.601 [42 C.F.R.] to state that the length of exclusion under this authority will never (emphasis added) be for a period of time less than the period during which the individual or entity is excluded from that Federal or State health care program.

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