SUBJECT:

Howard L. Rosov,

Petitioner,

The Inspector General.

DECISION

I sustain the determination of the Inspector General (I.G.) to exclude Howard L. Rosov (Petitioner) from participation in Medicare, Medicaid, and all federal health care programs, as defined in section 1128B(f) of the Social Security Act (Act), until, at least, Petitioner's license to practice dentistry in the State of Maryland is reinstated. I base my decision upon evidence which proves that Petitioner's license to practice dentistry in Maryland was revoked and the revocation concerned Petitioner's professional competence, professional performance, or financial integrity, within the meaning of section 1128(b)(4)(A) of the Act. Moreover, having concluded that the I.G. is authorized to exclude Petitioner based on the loss of his license to practice dentistry, I am required by statute to sustain the I.G.'s determination that Petitioner remain excluded as long as his Maryland license to practice dentistry is revoked.

I. Background

By letter dated September 30, 2004, the I.G. notified Petitioner that he was being excluded from participation in Medicare, Medicaid, and all federal health care programs. The letter explained that Petitioner's exclusion was authorized under section 1128(b)(4) of the Act because Petitioner's license to practice dentistry in Maryland was revoked for reasons bearing on his professional competence, professional performance, or financial integrity. Additionally, the I.G. advised Petitioner that his exclusion would remain in effect as long as his license to practice dentistry in Maryland is revoked, suspended, or otherwise lost.

By letter dated November 4, 2004, Petitioner timely requested a hearing before an administrative law judge (ALJ). The case was assigned to me for hearing and decision. A telephonic prehearing conference was held on January 10, 2005, which was memorialized in my Order of January 13, 2005. In the Order, I indicated that I would reserve ruling on whether an in-person hearing was necessary. Thereafter, the parties submitted written arguments and proposed exhibits.

On February 11, 2005, the I.G. submitted The Inspector General's Motion for Summary Affirmance, brief in support thereof, and one proposed exhibit (I.G. Ex. 1). On March 11, 2005, Petitioner submitted a response and three proposed exhibits (P. Exs. 1 - 3). In the absence of objection, I admit into evidence I.G. Ex. 1 and P. Exs. 1 - 3.

I find that an in-person hearing is not necessary in this case. I make this finding knowing that Petitioner has submitted an affidavit of an expert witness who states conclusively that the basis for Petitioner's license revocation was not for reasons bearing on his professional competence, professional performance, or financial integrity. P. Ex. 3. As I discuss more fully below, the expert does not adequately explain his conclusion. Moreover, I find I am authorized to determine whether Petitioner's license revocation was for reasons bearing on his professional competence, professional performance, or financial integrity. Therefore, because I have determined there are no material facts at issue and the only matter to be decided is the legal significance of the facts, I have decided that summary disposition is appropriate. The case can be decided on the basis of the parties' written submissions in lieu of an in-person hearing. See, e.g., Fed. R. Civ. P. 56(c); Garden City Medical Clinic, DAB No. 1763 (2001); Everett Rehabilitation and Medical Center, DAB No. 1628, at 3 (1977) (in-person hearing required where non-movant shows there are material facts in dispute that require testimony).

II. Applicable Law

Pursuant to section 1128(b)(4) of the Act, the I.G. may exclude an 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 . . . .

Act, section 1128(b)(4)(A).

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.

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

III. Analysis

I make the following findings of fact and conclusions of law. My findings and conclusions are set forth as lettered headings in bold type. My legal analysis in reaching each finding and conclusion is set out in the paragraphs which follow each lettered heading.

A. The I.G. properly excluded Petitioner pursuant to section 1128(b)(4) of the Act because his license to practice dentistry in the State of Maryland was revoked for reasons bearing on Petitioner's professional performance.

1. I make the following findings of background facts.

a. On October 8, 2002, the Maryland State Board of Dental Examiners (MSBDE) summarily suspended Petitioner's license based on allegations of violations of the Centers for Disease Control (CDC) Guidelines. Petitioner obtained consultation and training regarding infection control practices for him and his office staff. The MSBDE stayed the summary suspension until December 31, 2003, pending Petitioner's compliance with and completion of certain conditions, including the observation of his practice by an expert in CDC compliance, and inspections of his dental practice throughout 2002 and 2003. I.G. Ex. 1.

b. On February 26, 2003, Petitioner treated a minor patient for a root canal. After the procedure, Petitioner's dental assistant claimed she had been accidentally stuck with the same needle that had been used to inject the child. In another version, it is alleged that Petitioner used the needle on the minor after the dental assistant had been stuck with it. P. Br. at 5 - 6; I.G. Ex. 1, at 2.

c. On June 18, 2003, the MSBDE again summarily suspended Petitioner's license on the basis of "numerous ongoing and repetitive CDC violations" as well as for the "needle stick" incident. I.G. Ex. 1.

d. After a July 2, 2003 show cause hearing, the MSBDE stayed the summary suspension pending the outcome of an evidentiary hearing. I.G. Ex. 1.

e. MSBDE delegated to an ALJ of the Office of Administrative Hearings the authority to hear the case and issue proposed findings of fact and conclusions of law. Petitioner, represented by counsel, contested the charges in a six-day evidentiary hearing in August 2003. After consideration of the ALJ's proposed findings and Petitioner's exceptions to the findings, the MSBDE concluded, inter alia, that:

• Petitioner failed to record the need for a gingevectomy in a patient's medical record, and his documentation of the treatment was deficient. I.G. Ex. 1, at 9 - 10.

• For one patient, Petitioner failed to record the anesthesia he used on a patient in a clear or professionally appropriate method. I.G. Ex. 1, at 10.

• Contaminated reusable sharps were not placed in containers which were puncture resistant, labeled or color-coded or leakproof during transport from Petitioner's Glen Burnie office to his Annapolis office. I.G. Ex. 1, at 12.

• On May 21, 2003, Petitioner told the MSBDE that the dental assistant involved in the needle stick incident had negative blood test results, even though her blood tests showed she was repeatedly reactive for Hepatitis C Virus Ab, and HEP C RIBA results were indeterminate. I.G. Ex. 1, at 14.

• Petitioner's assistants failed to use the timer on his autoclave to time sterilization cycles. Further, after his October 8, 2002 summary suspension, Petitioner reduced the amount of time on the autoclave mid-cycle, reducing the effectiveness of the sterilization procedure and violating CDC guidelines. I.G. Ex. 1, at 14 - 15.

• Petitioner's autoclave was not working properly over a period of time and he failed to immediately repair or replace the autoclave. I.G. Ex. 1, at 15.

• Petitioner dug through the hazardous waste box, retrieved unexposed contaminated x-ray film packets and placed them in a drawer for later use on patients. Additionally he removed some temporary filling material from the bottom of his shoe with a gloved hand after stomping the biohazardous waste. He then used the same gloved hand to treat a patient. I.G. Ex. 1, at 15.

• Petitioner failed to complete the organization of the sterile and prep areas. I.G. Ex. 1, at 16.

• Petitioner allowed his dental assistants to take x-rays without his direct supervision before and during their enrollment in a MSBDE-approved educational program. One of the dental assistants was allowed to continue to take x-rays before she was certified by MSBDE. I.G. Ex. 1, at 17.

• The "needle stick" incident, under the specific facts of the case, did not show that Petitioner was incompetent, grossly incompetent, or dishonorable within the meaning of §§ 4-315 (a)(6) and (16) of the Maryland Dentistry Act. Petitioner did fail to act appropriately in response to the incident and failed to follow post-exposure protocol. I.G. Ex. 1, at 19 - 20.

2. Analysis and Legal Conclusions

Petitioner's main argument in this case is that the MSBDE's revocation of his license had nothing to do with his professional competence or performance. Other arguments subsumed in his primary contention are that:

•Petitioner has an excellent history and reputation in dentistry. He has practiced dentistry and endodontics for over 30 years. He has taught dentistry, given hours of volunteer time, and has been elected to offices in dental societies. P. Br. at 4; P. Ex. 1.

•Petitioner's dental assistant's story about a needle stick incident led to a sensationalistic newspaper article which led to the MSBDE charges. P. Br. at 6 - 7. Petitioner's former dental assistant, who filed a civil lawsuit against Petitioner based on the incident, is not credible. Id. at 6.

•At the administrative hearing regarding the MSBDE charges against Petitioner, the ALJ inappropriately admitted prejudicial evidence against Petitioner and failed to admit evidence that would have impeached the dental assistant's credibility. P. Br. at 7.

•The previously-alleged CDC violations against Petitioner had been cleared before the needle stick incident and should not have been among the bases for the MSBDE's revocation of his license. These alleged CDC violations involved the operations of Petitioner's dental office, not his professional competence or performance. P. Br. at 8.

•Petitioner sought and received a dental license in Florida and intended to practice in clinics in Florida where the majority of patients would be affiliated with Medicare, Medicaid or other federal health care programs. P. Br. at 8.

Petitioner's arguments do not change the essential fact that the MSBDE's revocation was based on Petitioner's professional performance. Even when one accepts, as I do, the MSBDE's finding that the "needle stick" incident did not rise to the level of Petitioner being professionally incompetent or grossly incompetent or that he behaved dishonorably or unprofessionally or violated a professional code of ethics pertaining to the dentistry profession, I cannot ignore the MSBDE's finding of Petitioner's "failure to document his treatment properly, as well as the sheer breadth and repetitive nature of [Petitioner's] failure to comply with CDC guidelines regarding universal precautions." I.G. Ex. 1, at 21. The MSBDE also noted Petitioner's "lack of direct supervision of his dental assistants in the placement and exposure of radiographs when the assistants were not certified by the Board as dental radiation technologists and were not acting in accordance with an educational program approved by the Board." Id. at 21 - 22.

While Petitioner argues that I should not accept as fact the statements made in the MSBDE's revocation order, I point out that such an argument constitutes a collateral attack on the actions of the State licensing authority. Such collateral attacks on the actions of a State licensing authority are not permitted in the context of an exclusion proceeding under section 1128(b)(4) of the Act. Milan Kovar, M.D., DAB CR550 (1998); John W. Foderick, M.D., DAB No. 1125 (1990); see also Barry Kamen, RPA, DAB CR493 (1997).

Moreover, I did not find the affidavit of Marc R. Leffler, D.D.S., as submitted by Petitioner, to be persuasive. P. Ex. 3. He attested to the following:

[t]he secondary bases were CDC violations that, if I assume were true, dealt with office procedure and protocol and were corrected and followed by Petitioner after the summary suspension was stayed and he was permitted to practice again. Accordingly, none of the reasons for the revocation of Petitioner's license were because of reasons bearing on his professional competence, professional performance, or financial integrity.

Id. at 2.

First, Dr. Leffler fails to mention MSBDE's finding regarding an inspection of Petitioner's office by a CDC consultant on May 5, 2003, after the MSBDE's summary suspension was stayed. ⁽¹⁾ Petitioner's problems with following CDC guidelines did not end after he told the MSBDE they had been corrected. Second, Petitioner's problems with CDC guidelines are not just problems with office procedures. He is responsible for all procedures in his office. Not following CDC guidelines can directly affect patient health and, thus, have a direct bearing on Petitioner's professional performance as a dentist. As the MSBDE pointed out, inspections at Petitioner's dental office showed "numerous and significant violations" of CDC guidelines. I.G. Ex. 1, at 1. The MSBDE also noted Petitioner's "somewhat cavalier attitude toward compliance with CDC protections for the benefit of his patients and staff." Id. at 20. Allowing uncertified assistants to take and expose radiographs without his supervision also had a direct bearing on Petitioner's professional performance as a dentist. Dr. Leffler's attestation notwithstanding, taking radiographs improperly could risk the health of the patient and/or Petitioner's staff, something for which a professional dentist has responsibility and bears on his professional performance.

Petitioner also argues that he has had an exemplary record in the practice of dentistry. Moreover, Petitioner submitted that he is highly esteemed in his profession. The Departmental Appeals Board, however, has determined that no showing of inadequate care is required for an exclusion under section 1128(b)(4) of the Act if the elements of section 1128(b)(4) are present, as they are in this case. Roy Cosby Stark, DAB No. 1746 (2000). Petitioner's standing in the professional community is not relevant for purposes of an exclusion under section 1128(b)(4) of the Act.

B. The I.G. properly excluded Petitioner for a period coterminous with the period during which his Maryland dentistry license is revoked.

Section 1128(c)(3)(E) of the Act requires that an individual excluded pursuant to section 1128(b)(4) remain excluded for no less than the period during which the individual's license to provide health care is revoked, suspended, or surrendered. See also 42 C.F.R. § 1001.501(b)(1); Tracey Gates, R.N., DAB No. 1768, at 9 (2001). Thus, there is no issue regarding the reasonableness of the period of exclusion as it is mandated by section 1128(c)(3)(E) of the Act. In the present case, the I.G. has excluded Petitioner for a period coterminous with the period during which his Maryland dentistry license is revoked. This is the minimum period of exclusion prescribed by law. Accordingly, I must conclude that the term of the exclusion is reasonable and proper.

The I.G.'s authority to exclude an individual pursuant to section 1128(b)(4) of the Act derives from the state proceeding against the individual. I have no authority to set a period of exclusion for less than that required by the statute and regulations. Tracey Gates, R.N., DAB No. 1768, at 10. While I may sympathize with Petitioner's dilemma, Congress has concluded that the loss or surrender of a license to practice a health care profession under circumstances described in section 1128(b)(4) of the Act is evidence of untrustworthiness and, thus, grounds for exclusion to protect federal health care programs and their beneficiaries and recipients. Congress has determined that the licensing authority that took action against the individual's license is in the best position to determine whether or not the reasons for the disciplinary action have been remediated.

IV. Conclusion

For the reasons stated, I conclude that the I.G. was authorized to exclude Petitioner because his license to practice dentistry was revoked by the State of Maryland for reasons concerning his professional competence or professional performance, within the meaning of section 1128(b)(4) of the Act. Because Petitioner was properly excluded pursuant to section 1128(b)(4), his exclusion must remain in effect for a period coterminous with the time his license is revoked.

Anne E. Blair

Administrative Law Judge

1. The CDC inspector found that Petitioner was "placing and/or storing multiple bags of instruments in treatment drawers and instrument storage baskets with process monitors entirely unprocessed; placing inverted latex gloves in his lab coat pocket; failing to make available staff training documents for a new employee; failing to use heavy duty gloves for processing instruments; allowing the bio-hazardous box to overflow with waste; allowing the continued unreliable operation of the autoclave." I.G. Ex. 1, at 5.