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CASE | DECISION | ANALYSIS | JUDGE | FOOTNOTES

Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Appellate Division
IN THE CASE OF  


SUBJECT:

Roy Cosby Stark,

Petitioner,

DATE: September 18, 2000
             - v -  

The Inspector General

 

Civil Remedies CR676
App. Div. Docket No. A-2000-95
Decision No. 1746

DECISION
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FINAL DECISION ON REVIEW OF

ADMINISTRATIVE LAW JUDGE DECISION

Roy Cosby Stark (Petitioner) appealed the June 19, 2000 decision of Administrative Law Judge (ALJ) Joseph K. Riotto sustaining the exclusion imposed by the Inspector General (I.G.) on Petitioner under section 1128(b)(4) of the Social Security Act (Act). Roy Cosby Stark, DAB CR676 (2000) (ALJ Decision). The exclusion was to remain in effect until Petitioner obtains a valid license to provide health care in California. Petitioner took the position that section 1128(b)(4) did not authorize his exclusion because his license was not revoked for reasons bearing on his professional competence, professional performance, or financial integrity. For the reasons explained below, we affirm and adopt each of the ALJ's Findings of Fact and Conclusions of Law (FFCLs), with the exception of one unnumbered finding (which we find to be immaterial to the decision). We therefore uphold the ALJ Decision to sustain the exclusion imposed by the I.G.

Factual and Legal Background(1)

In 1993, Petitioner applied for certification as a respiratory care practitioner in the State of California. His application was denied based on prior felony convictions for attempted robbery and attempted kidnapping. In 1994, Petitioner re-applied for a respiratory care license. In 1995, the California Respiratory Care Board (CRCB) denied Petitioner's license application, but stayed the denial and issued Petitioner a conditional license to practice respiratory care on conditions that would remain in effect during a five-year probationary period, including conditions that Petitioner abstain from use of alcohol and controlled substances, undergo periodic monitoring for use of alcohol and controlled substances, attend a substance abuse recovery support group, report to a probation monitor, and pay probation costs. In 1997, the State Respiratory Care Examining Committee entered a Petition to Revoke Probation based on Petitioner's failure to attend a scheduled meeting with his probation monitor, Petitioner's delinquency in paying monthly probation costs, and the fact that Petitioner had a positive drug test 18 months after his license was issued. After a hearing, a State ALJ issued a proposed decision revoking Petitioner's license. The CRCB issued a decision adopting the State ALJ's proposed decision effective December 12, 1997. The I.G. notified Petitioner in January 1999 that he was being excluded from participation in the Medicare and Medicaid programs pursuant to section 1128(b)(4) of the Act.

Section 1128(b)(4)(A) authorizes the Secretary to 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 . . . .

The Secretary delegated the discretion to impose this and other permissive exclusions to the I.G. under 42 C.F.R. § 1003.105.

Challenged Findings of Fact and Conclusions of Law (FFCLs)

Petitioner did not specifically identify the FFCLs to which he took exception. However, the Statement of Exceptions in Petitioner's notice of appeal in effect challenged FFCL 19, which states: "The suspension of Petitioner's respiratory care license was for reasons bearing on his professional competence, professional performance, or financial integrity within the scope of section 1128(b)(4) of the Act." ALJ Decision at 4. Petitioner's exceptions also in effect challenged the unnumbered finding that "the record establishes that Petitioner's license was revoked on account of his drug usage and that those problems related to his professional competence and professional performance" (Id. at 6), as well as the unnumbered finding that convictions for attempted robbery and attempted kidnapping "were the ultimate basis" for revocation of Petitioner's license, and that "under California law, such criminal convictions establish that Petitioner lacked professional performance and professional competence" (Id. at 7). In addition, Petitioner excepted to the ALJ's unnumbered finding that, "even if Petitioner did not have a history of substance abuse," the revocation of Petitioner's license based on one positive drug test "is a revocation bearing on his professional performance or professional competence . . . ." Id. at 6.(2) It follows from these exceptions that Petitioner also took exception to the ALJ's conclusion that "[t]he exclusion imposed by the I.G. against Petitioner . . . was authorized under sections 1128(b)(4) and 1128(c)(3)(E) of the Act." FFCL 23 (Id. at 4).

The remaining FFCLs (numbered 1-18 and 20-22), as to which Petitioner raised no objection, are hereby affirmed without discussion.

Standard of Review

The Board's standard of review on disputed issues of fact is whether the ALJ Decision is supported by substantial evidence on the record as a whole. 42 C.F.R. § 1005.21(h). The Board's standard of review as to disputed issues of law is whether the ALJ Decision is erroneous. Id.

Conclusion

Based on the foregoing analysis, we affirm the ALJ's determination that the exclusion was authorized under section 1128(b)(4) of the Act and uphold the exclusion.

ANALYSIS
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The primary issues in this appeal are: 1) for what reasons was Petitioner's license revoked; and 2) whether they are "reasons bearing on professional competence, professional performance, or financial integrity" as required by section 1128(b)(4) of the Act.

1. The ALJ's findings that Petitioner's license was revoked based on his drug usage and his convictions for attempted robbery and attempted kidnapping are supported by substantial evidence in the record.

Petitioner argued generally that his license was revoked based on his violation of the conditions of his license and that the ALJ should not have looked behind those conditions.(3) We disagree. In determining that Petitioner's license was revoked based on his drug usage as well as his prior criminal convictions, the ALJ looked to the reasons why the CRCB placed particular conditions on Petitioner's license, as well as to the reasons why the CRCB was unwilling to issue an unconditional license in the first place. It was reasonable for the ALJ to view the circumstances that led to imposition of the conditions as reasons for the license revocation since those circumstances resulted in the immediate basis for the license revocation.

Petitioner also specifically disputed the ALJ's determination that the CRCB imposed the drug conditions on Petitioner's license because it believed he had a drug abuse problem, leading to the ALJ's finding that one of the reasons for the license revocation was Petitioner's drug usage.(4) Petitioner alleged that the ALJ's determination was based on an unsubstantiated finding in the proposed decision of the State ALJ. The proposed decision stated that "the drug conditions in the probation order were no doubt placed there because respondent had a history of cocaine abuse." I.G. Ex. 5, at 4 (cited in the ALJ Decision at 6). Petitioner stated that no findings that he had a drug abuse problem were made by the CRCB when the conditions were imposed, and that there was no evidence introduced at the hearing before the State ALJ that Petitioner had ever had a drug abuse problem. Petitioner also contended that the fact that the CRCB placed a large number of conditions on his license (there were 16 conditions) showed that the conditions were not tailored to his individual circumstances.

Petitioner's argument has no merit. As indicated above, the salient issue is what the reasons are for which the CRCB revoked Petitioner's license. The ALJ did not need to determine whether the reasons are valid, i.e., whether the CRCB or the State ALJ had evidence that Petitioner had a drug abuse problem or whether Petitioner had notice and an adequate opportunity to rebut any such evidence before his license was revoked. Indeed, 42 C.F.R. § 1001.2007(d) (1992) provides that, when an exclusion is based on the existence of a determination by another government agency (such as the license revocation here), the basis for the underlying determination is not reviewable."(5)

Here, the State ALJ inferred from the placing of the drug conditions on Petitioner's license that the CRCB was concerned that Petitioner had a drug abuse problem. By adopting the State ALJ's proposed decision, the CRCB indicated that this inference was correct and that it was a basis for its decision to revoke his license.(6) Thus, there is substantial evidence in the record to support the ALJ's finding that one reason for the license revocation was Petitioner's drug usage.

Petitioner further argued that it violated his due process rights for the ALJ to find that his license was revoked due to his prior criminal convictions because the I.G. did not state in her brief before the ALJ that the convictions were a basis for Petitioner's exclusion. The I.G. was not relying on the convictions as an independent basis for the exclusion, however, but as one of the reasons why Petitioner's license was revoked. Moreover, the I.G. presented evidence relating to the convictions in the proceedings before the ALJ (I.G. Ex. 2), and Petitioner had an opportunity to rebut that evidence. See 42 C.F.R. § 498.66(d)(3); Order and Schedule for Filing Briefs and Documentary Evidence, dated April 19, 1999. Furthermore, the I.G. stated in briefing before the ALJ that the "probationary terms" that Petitioner violated, resulting in his license revocation, "were initially placed upon Petitioner's license based on the [Respiratory Care Examining Committee's] uncertainty about Petitioner's competence and performance due to his earlier criminal convictions." Response to Petitioner's Opening Brief, dated 4/20/00, at 3. Thus, contrary to Petitioner's representations, the I.G. expressly recognized in her briefing that the convictions were part of the circumstances that led to Petitioner's license revocation.

2. The ALJ did not err as a matter of law in finding that Petitioner's license was revoked for reasons bearing on Petitioner's professional competence or professional performance, and that finding is supported by substantial evidence in the record.

Petitioner disputed the ALJ's finding that the reasons Petitioner's license was revoked are reasons bearing on his professional competence or professional performance. Petitioner noted that the CRCB did not expressly state that Petitioner's license was revoked due to professional incompetence or inadequate professional performance. In addition, Petitioner asserted that California law required that the CRCB administer a professional competency examination before revoking a license on this basis. Petitioner argued that the fact that the CRCB did not follow this procedure showed that the CRCB did not intend to revoke Petitioner's license on this basis.

We do not find these arguments persuasive. This Board has previously held that a state licensing authority is not required to use the words "professional competence, professional performance or financial integrity" in suspending a license in order for the I.G. to exclude an individual under sections 1128(b)(4) or 1128(b)(5)(B) of the Act. Brian Bacardi, D.P.M., DAB No. 1724 (2000); Okonuren. A contrary interpretation would subject federal programs to risks simply because of the state licensing authority's choice of words. Moreover, even if, under California law, Petitioner's license could not be revoked for reasons bearing on his professional competence or professional performance without a professional competency examination, the meaning of this language under state law cannot logically determine how the federal statute should be interpreted.(7)

Petitioner also took the position that Congress intended the section 1128(b)(4) exclusion authority to apply only where a license is revoked for reasons bearing on quality of care. Petitioner quoted the following statement from the legislative history:

The Committee expects that the Secretary will not use his discretion under this authority to exclude individuals whose licenses have been suspended in the State in which they are practicing for minor infractions not relating to quality of care, such as failure to pay licensing fees or violation of strict advertising requirements.

P. Br. at 6, quoting S. Rep. No. 109, 100th Cong., 1st Sess. 7 (1987), reprinted in 1987 U.S.C.C.A.N. 682, 688. Petitioner contended that since there was no allegation or evidence that the quality of care he rendered was inadequate, whereas he had provided evidence to show that the care he rendered was of the highest quality, his exclusion was contrary to congressional intent.

The legislative history cited by Petitioner indicates that certain minor infractions not relating to quality of care should not be the basis of an exclusion; however, that history does not support a conclusion that a showing that inadequate care was in fact rendered is required. Instead, the legislative history indicates that professional competence and professional performance are not necessarily the same, stating elsewhere that the purpose of the statute was "to protect the beneficiaries . . . from incompetent practitioners and from inappropriate or inadequate care." Friedman, at 10-11 (citing 1987 U.S.C.C.A.N. at 682). Thus, the Board has previously held that section 1128(b)(4)(A) does not require a finding of actual harm to a patient or recipient as a precondition to an exclusion. In Narinder Saini, M.D., DAB No. 1371 (1992), the Board explained that "[t]o read the Act as requiring a showing of actual harm would preclude exclusion of providers who pose a threat to beneficiaries or recipients." Saini at 6. Accordingly, section 1128(b)(4) can be read to permit the I.G. to act to protect program beneficiaries where there is a threat to the quality of care, regardless of whether actual harm has already occurred.

Here, the proposed decision adopted by the CRCB stated that "[w]ithout some evidence [Petitioner's] drug abuse is being addressed, the Board is left to wonder how safely he can provide respiratory therapy." I.G. Ex. 6, at 4. Thus, the CRCB considered Petitioner's history of drug abuse to be a threat to quality of care. Moreover, the CRCB's denial of Petitioner's license application and its decision to stay the denial and issue a conditional license was based on the California Business and Professions Code. I.G. Ex. 2, at 4-5. Section 3750 of the Code provides that the CRCB may order the suspension or revocation of, or the imposition of probationary conditions upon, a license for causes including "conviction of a crime that substantially relates to the qualifications, functions, or duties of a respiratory care practitioner." See also section 480(a) (providing that a board may deny a license on the grounds that the applicant has been convicted of a crime substantially related to the qualifications, functions or duties of the business or profession for which application is made). Section 3752.5 of the Code provides that "a crime involving bodily injury or attempted bodily injury shall be considered a crime substantially related to the qualifications, functions, or duties of a respiratory care practitioner." Thus, by operation of state law, Petitioner's prior criminal convictions for attempted kidnapping and attempted robbery were considered a threat to quality of care. Accordingly, there was substantial evidence to support the ALJ's findings that Petitioner's drug usage and his prior criminal convictions were reasons bearing on his professional competence or professional performance.

Petitioner also disputed the finding in the ALJ Decision that the revocation of Petitioner's license based on one positive drug test "is a revocation bearing on his professional performance or professional competence within the scope of section 1128(b)(4) . . . ." ALJ Decision at 6. Petitioner noted that the ALJ provided no support for this finding other than his own observation that "[i]t cannot be denied that alcohol or drug usage impairs one's mental functioning and job performance and that impaired functioning may even persist after such usage ceases." Id. Petitioner asserted that there was no evidence that the quantity of controlled substances he took was sufficient to have caused such impairment or that he was under the influence of a controlled substance when he provided health care.

The ALJ did not cite any authority in support of the finding in question. The proposed decision of the State ALJ indicates that the State ALJ was not relying solely on the positive drug test but also on his finding that Petitioner lied about how the test could have been positive as well as Petitioner's failure to present evidence that he was addressing his long-standing drug abuse problem. See I.G. Ex. 5, at 4-5. Thus, in adopting this proposed decision, the CRCB did not clearly find that a one-time violation of the drug condition had a sufficient bearing on Petitioner's professional competence or professional performance to warrant revocation of Petitioner's license. The statement in the ALJ Decision suggesting that one positive drug test had a bearing on Petitioner's professional competence or professional performance thus went beyond the reasons why Petitioner's license was revoked, but was in any event immaterial since the ALJ correctly concluded that Petitioner's drug usage and his prior criminal convictions were reasons for revocation bearing on Petitioner's professional competence or professional performance. Accordingly, we need not adopt the statement in order to uphold the ALJ Decision.

Finally, Petitioner argued that it was inconsistent with congressional intent to exclude Petitioner based on the revocation of his license due to prior convictions for attempted kidnapping and attempted robbery because these convictions did not fall within any categories of criminal convictions for which the I.G. could have excluded Petitioner under sections 1128(a) or 1128(b)(1) - (3) of the Act.

Petitioner's argument has no merit. The statutory provisions cited by Petitioner require or permit exclusion based directly on conviction of a criminal offense.(8) Section 1128(b)(4), on the other hand, permits exclusion based on the revocation (or suspension) of a license to provide health care for reasons bearing on professional competence, professional performance, or financial integrity. Petitioner pointed to no authority establishing that such reasons may not include conviction of a criminal offense other than those covered by sections 1128(a) and 1128(b)(1).

JUDGE
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Marc R. Hillson

M. Terry Johnson

Judith A. Ballard
Presiding Board Member

FOOTNOTES
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1. The summary of facts here is based on the undisputed findings of the ALJ and is not meant to replace the more detailed Findings of Fact and Conclusions of Law in the ALJ Decision.

2. It appears that this finding was an alternative to the ALJ's separate finding that Petitioner's "drug usage" was a reason for the license revocation. The ALJ appears to have used the term "drug usage" to refer to a drug abuse problem that the CRCB found existed prior to the one positive drug test.

3. As discussed later, Petitioner argued that one positive drug test, although a violation of these conditions, did not have any bearing on his professional competence or professional performance, and was thus not a sufficient reason for exclusion.

4. Petitioner disputed in addition what he characterized as the finding in the ALJ Decision that Petitioner had a drug abuse problem, arguing that the I.G. did not meet its burden to prove this by a preponderance of the evidence. The ALJ Decision does not contain any affirmative finding that Petitioner had a drug abuse problem, however.

5. The Board had previously held that, in a section 1128(b)(4) exclusion action, the I.G. is entitled to rely on the revocation action of a state licensing authority and is not required to examine the fairness of the state proceedings. Leonard Friedman, M.D., DAB No. 1281 (1991).

6. Petitioner asserted that the finding of the State ALJ regarding the reason for the drug conditions was not a "determination by another government agency" within the meaning of section 1001.2007(d), so that Petitioner was not precluded from collaterally attacking it in these proceedings. Since the CRCB adopted the proposed decision containing this finding, however, we conclude that section 1001.2007(d) applied. Petitioner argued further that the finding should not be given collateral estoppel effect because it was not necessary to the State ALJ's proposed decision. This argument fails because it is premised on Petitioner's position, which we rejected above, that the context in which the conditions on his license were imposed should not be considered in determining the reasons for the license revocation.

7. The California law on which Petitioner relied provides that the CRCB may order a respiratory care practitioner to undergo a professional competency examination if the CRCB has reasonable cause to believe that the practitioner is unable or unwilling to practice respiratory care with reasonable skill and patient safety. California Business and Professions Code, § 3756. This appears to cover more limited circumstances than those which might justify revoking a practitioner's license for reasons bearing on professional competence or professional performance.

8. Section 1128(a) requires the Secretary to exclude individuals and entities convicted of program-related crimes, criminal offenses relating to patient abuse, felonies relating to health care fraud, and felonies relating to a controlled substance. Sections 1128(b)(1) - (3) permit the Secretary to exclude individuals and entities convicted for an offense relating to fraud, an offense relating to obstruction of an investigation, or a misdemeanor relating to a controlled substance.

CASE | DECISION | ANALYSIS | JUDGE | FOOTNOTES