SUBJECT:

Michael John Patton, R.C.P.,

Petitioner,

The Inspector General

DECISION

I decide to sustain the determination of the Inspector General (I.G.) to exclude Michael John Patton, R.C.P. (Petitioner) from participating in Medicare, Medicaid, and all other federal health care programs, for a period coterminous with the revocation of his license to practice respiratory care or provide health care in the State of California.

Background

By letter dated September 28, 2001, the I.G. notified Petitioner that he was being excluded from participating in Medicare, Medicaid, and all federal health care programs as defined in section 1128B(f) of the Social Security Act (Act). 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, or loss of his license to practice medicine or provide health care in the State of California for reasons bearing on his professional competence, professional performance, or financial integrity. The I.G. notified Petitioner that the exclusion would be in effect as long as his license to practice respiratory care in the State of California remained revoked. Petitioner requested a hearing on November 6, 2001 and the case was assigned to me for a hearing and a decision.

The I.G. is represented in this case by the Office of Counsel. Petitioner appears pro se. On January 28, 2002, I convened a telephone prehearing conference during which the parties agreed that an in-person hearing was not required, and that the issues could be resolved by summary judgment. Consequently, I issued an Order on January 29, 2002, establishing briefing deadlines. Pursuant to that Order, the parties filed their respective briefs on February 28, 2002. The I.G. submitted a reply brief on March 12, 2002.

The I.G. also submitted four proposed exhibits (I.G. Exs. 1 - 4). Petitioner filed his brief accompanied by one exhibit (P. Ex. 1). Neither party objected to the other party's exhibits. Therefore, I admit into evidence I.G. Exs. 1- 4 and P. Ex.1.

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 Respiratory Care Board of California (Board) revoked Petitioner's license to practice respiratory care for reasons bearing on his professional competence, professional performance, or financial integrity. Additionally, I find that when an exclusion imposed by the I.G. pursuant to section 1128(b)(4) is coterminous with the revocation, suspension, surrender, or loss of a State license that no issue of reasonableness of the length of the exclusion exists.

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.

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 care 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).

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.

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

1. Petitioner was issued a conditional license to practice respiratory care on August 8, 1997, by the State of California. I.G. Ex. 2 at 2. The terms of the conditional license required the completion of a three year period of probation. Id.

2. The relevant terms of the conditional license provided as follows:

�Paragraph 3. (Abstention from Use of Mood Altering Substances):. . . [Petitioner] shall completely abstain from the possession or use of alcohol, any and all mood altering drugs, substances and their associated paraphernalia, except drugs that are lawfully prescribed by a licensed practitioner as part of a documented medical treatment.

�Paragraph 6. (Obey All Laws):. . . [Petitioner] shall obey all laws whether federal, State or local, and all regulations governing the practice of respiratory care in California.

�Paragraph 9. (Probation Monitoring Costs): All costs incurred for probation monitoring during the entire probation period shall be paid by the . . . [Petitioner] at the rate of $100 per month.

�Paragraph 15. (Violation of Probation): If . . . [Petitioner] violates probation in any respect, the Board, after giving . . . [Petitioner] notice and an opportunity to be heard, may revoke probation and carry out disciplinary action.

I.G. Ex. 4 at 3, 4.

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

4. On September 3, 1998 and December 21, 1998, Petitioner tested positive for amphetamine, a Schedule II controlled substance in the State of California. I.G. Ex. 2 at 2, 3.

5. The amphetamine had metabolized in the urine from an appetite suppressant medication taken by Petitioner known as Asenlix (clobenzorex). This medication is not dispensed in California. Petitioner admitted having purchased the controlled substance through a physician in Mexico. I.G. Ex. 2 at 2, 3.

6. On November 11, 1998, Petitioner informed Dr. Kristi Dove that he drank two alcoholic beverages a week. I.G. Ex. 2 at 3.

7. Petitioner failed to make timely payments to the Board for probation costs, and as of April 23, 1999, he was $1,350.00 in arrears. I.G. Ex. 2 at 3.

9. Section 1128(b)(4)(A) of the Act provides that the I.G. may exclude any individual, whose license to administer health care has been revoked or suspended by any State licensing authority, for reasons bearing on the individual's professional competence, professional performance, or financial integrity.

10. In an exclusion 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; 42 C.F.R. � 1001.501(b)(1).

11. The I.G. notified Petitioner by letter dated September 28, 2001 that he was being excluded pursuant to section 1128(b)(4) of the Act from participating in Medicare, Medicaid and all federal health care programs. I.G. Ex. 1.

13. The exclusion imposed by the I.G. against Petitioner will remain in effect until he regains his respiratory care license in the State of California. 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.

Discussion

Petitioner was licensed to practice respiratory care and provide health care in the State of California. On December 30, 1999, the Executive Officer of the Board filed an accusation and petition to revoke Petitioner's probationary license. On April 20, 2000, a State of California ALJ from the Office of Administrative Hearings issued a decision with respect to Petitioner's revocation action for violation of the terms of his probation. The Board rejected that decision and issued a decision on November 1, 2000, finding that Petitioner had obtained a prescription for a drug containing a Schedule II controlled substance from a physician not licensed in California in violation of Business Professions Code section 3750.5(a) and the terms of the order of probation. It was also determined that Petitioner violated the terms of his probation by consuming alcoholic beverages two times a week. Additionally, he fell behind on his payments to the Board for probation costs. As of April 23, 1999, he owed the Board $1,350.00. I.G. Ex. 2 at 3, 4.

By letter dated September 28, 2001, the I.G. notified Petitioner that he was being excluded pursuant to section 1128(b)(4) of the Act because his license to practice medicine or provide health care in the State of California was revoked, suspended, or otherwise lost for reasons bearing on his professional competence, professional performance, or financial integrity.

Petitioner contends that the use of the illicit drug, Asenlix, has had no adverse effect on his professional competence. He places reliance on the findings of the ALJ in the Proposed Decision issued on April 20, 2000. However, the recommendation of the ALJ was not accepted by the Board. It was the Board's conclusion that Petitioner had no legitimate justification for the use of an amphetamine, a drug that has a stimulating effect on the central nervous system. The Board also found that there was a basis for concluding that Petitioner was consuming alcohol, and had no valid excuse for failing to make timely payments associated with probation costs.

I note that most of Petitioner's arguments attempt to re-litigate the revocation action of the Board. However, 42 C.F.R. � 1001.2007(d) provides that:

When the exclusion is based on the existence of a conviction, a determination by another government agency or any other prior determination, the basis for the underlying determination is not reviewable and the individual or entity may not collaterally attack the underlying determination, either on substantive or procedural grounds, in this appeal.

The clear language of the statute is not open to dispute. The basis for the underlying determination is not reviewable by me and Petitioner may not collaterally attack the underlying determination. The Secretary may exclude "any 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(b)(4)(A). There are two aspects to this legal provision. The first requirement, as is pertinent here, is that the individual's or entity's license to provide health care be revoked or suspended by any State licensing authority. The evidence in this case shows this to be a fact, and Petitioner does not question it. The second requirement is that the suspension or revocation be for reasons bearing on professional competence, professional performance, or financial integrity. There is ample evident of this from the "Decision After Nonadoption" issued by the Board on November 1, 2000.

Furthermore, when considering the elements of professional competence or professional performance, the paramount concern is whether the entity or individual would be able to provide medical care safely. Since amphetamines act on the central nervous system, it is obvious that its use is likely to compromise professional competence as well as performance. It is not necessary for the I.G. to provide specific instances of adverse effects on Petitioner's inability to properly discharge his duties in a professionally competent manner. It suffices to establish that Petitioner's conduct was likely to have a bearing on his professional competence or performance. It has been shown that even moderate use of any stimulant such as amphetamines produces hyperactivity, and a sense of enhanced physical and mental capacity. The acute picture of stimulant intoxication includes, among others, acute brain syndrome with confusion and disorientation. Tolerance develops quickly and, as the dosage is increased, paranoid ideation, often with aggressive responses develops. See Current Medical Diagnosis and Treatment 776 (1991).

In view of the foregoing, I conclude that Petitioner's license to provide health care in the State of California was suspended for reasons bearing on his professional competence, professional performance, or professional integrity.

2. The length of the exclusion is not unreasonable.

The Board revoked Petitioner's license to practice respiratory care. 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 his 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.

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