SUBJECT:

Teresa A. Johnson,

Petitioner,

The Inspector General

DECISION

This case is before me pursuant to a request for hearing filed by Teresa A. Johnson (Petitioner) on February 27, 2003. Social Security Act (Act), section 1128(f); 42 C.F.R. § 1005.2.

By letter dated December 31, 2002, the Inspector General (I.G.) notified Petitioner that she was being excluded from participating in Medicare, Medicaid, and all federal health care programs as defined in section 1128B(f) of the Act. I.G. Exhibit (Ex.) 1. 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, loss, or surrender of her license to practice medicine or provide health care as a nursing home administrator in the State of Missouri for reasons bearing on her professional competence, professional performance, or financial integrity. The exclusion would be in effect as long as her license to practice as a nursing home administrator in Missouri remained revoked, suspended, surrendered, or otherwise lost.

The I.G. is represented in this case by the Office of Counsel. Petitioner is represented by James P. Lemonds, Esq. At a telephone conference held on May 5, 2003, I set a schedule for the parties to file briefs supported by documentary evidence because there were no issues requiring an in-person hearing. The I.G. submitted a memorandum of law (I.G. Br.) accompanied by six proposed exhibits on June 5, 2003. These have been identified as I.G. Exs. 1 - 6, and admitted into the record without objection. Petitioner submitted a brief (P. Br.) in support of her contentions on July 7, 2003, and offered five exhibits, identified as Petitioner's (P.) Exs. 1 - 5. These have been admitted into the record without objection. The I.G. filed a reply brief on August 4, 2003 and offered three additional exhibits, I.G. Exs. 7 - 9. These exhibits are not relevant to the issues in this case and therefore, I do not admit them into the record.

It is my decision to sustain the determination of the I.G. to exclude Petitioner, Teresa A. Johnson, from participating in the Medicare, Medicaid, and all other federal health care programs, for a period coterminous with the loss of her license to practice medicine or provide health care as a nursing home administrator in the State of Missouri. I base my decision on the documentary evidence, the applicable law and regulations, and the arguments of the parties. It is my finding that Petitioner's license was revoked by the State of Missouri Board of Nursing Home Administrators (Board) for reasons bearing on her 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 exclusion is mandated by law.

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 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 healthcare has been lost, suspended, or revoked by any State licensing authority, for reasons bearing on the 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) of the Act must be coterminous with the term of suspension, revocation, or surrender 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 licensed by the State of Missouri to practice as a nursing home administrator.

2. On June 27, 2001, the Board filed a complaint with the State of Missouri's Administrative Hearing Commission (Commission), seeking the Commission's determination that Petitioner's professional nursing home administrator's license was subject to discipline for incompetence, misconduct, gross negligence and violations of the Board's regulations. I.G. Ex. 3, at 1.

3. On April 3, 2002, the Commission granted the Board's petition for summary determination based on the finding that although she was not guilty of misconduct, her license was subject to discipline for gross negligence and incompetence in the performance of her professional duties as a nursing home administrator. I.G. Ex. 3, at 15.

4. Petitioner's nursing home administrator license was revoked by the Board on July 15, 2002, for reasons bearing on her professional competence, professional performance, or financial integrity. I.G. Ex. 2.

5. Section 1128(b)(4) of the Act authorizes the I.G. to exclude an individual whose license to provide health care was revoked or suspended by any State licensing authority, or otherwise lost, due to the individual's professional competence, professional performance, or financial integrity. 42 U.S.C. § 1320a-7(b)(4).

6. The Board is a State licensing authority pursuant to section 1128(b)(4)(A) of the Act.

7. On December 31, 2002, the I.G. notified Petitioner that she was being excluded from participation in Medicare, Medicaid, and all federal health care programs, pursuant to section 1128(b)(4) of the Act.

8. The I.G. notified Petitioner that the program exclusion was effective 20 days from the date of the letter and would remain in effect as long as Petitioner's license was revoked, suspended, or otherwise lost.

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

10. The I.G. was authorized to exclude Petitioner pursuant to section 1128(b)(4) of the Act because the revocation of Petitioner's license was for reasons bearing on her professional competence, professional performance, or financial integrity.

11. Where the 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. Section 1128(b) of the Act authorizes the Secretary to bar excluded individuals from receiving payment for services that would otherwise be reimbursable under Medicare, Medicaid, or other federal health care programs.

Discussion

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

Petitioner was a licensed nursing home administrator in the State of Missouri. The facts leading to Petitioner's loss of her license are summarized by the I.G. as follows:

Petitioner served as the administrator of Leland Health Care Center (facility), which was located in University City, Missouri. . . . From on or about April 5, 2001, through April 9, 2001, University City experienced unusually high temperatures, which resulted in a rise in the temperature of the rooms on the facility's second and third floors. . . . On April 6, 2001, the temperature on the second and third floors rose beyond levels safe for residents of the facility. . . . Petitioner failed to take steps to maintain the facility's temperature below 85 degrees.[ ⁽¹⁾] . . . As a result of the unusually warm temperature, four facility residents died of hyperthermia between April 8, 2001 and April 9, 2001.

I.G. Br. at 4.

The threshold issue to be decided here is whether the I.G. had a basis to exclude Petitioner from participating in Medicare, Medicaid, and all other federal health care programs. Petitioner asserts that a license to act as a nursing home administrator in the State of Missouri is not a license to "provide health care" under the Act and thus is not a legitimate basis for exclusion. P. Br. at 4. Furthermore, contends Petitioner, under Missouri law, there is no requirement that a nursing home administrator have any medical or nursing training, or any experience or qualifications to provide direct patient care. Id. Thus, Petitioner posits that the I.G. only has authority to exclude a person from participating in federal health care programs if that person's license to provide health care is revoked. Since a nursing home administrator is not a health care provider for the purposes of Section 1128(b) of the Act, Petitioner argues, the I.G. has no authority to exclude Petitioner from participating in federal health care programs even though her license has been revoked. P. Br. at 6. I disagree.

In Crews v. Shalala, 40 F. Supp. 2d 350 (E.D. Va. 1999), the court found no merit in Petitioner's argument that a license to perform as a nursing home administrator is not a license to provide health care under the Act. The court stated as follows:

The Court must first determine whether a license to perform as a nursing home administrator constitutes a "license to provide health care" for the purposes of Section 1128(b)(4). The parties agree that Crews' nursing home administrator's license did not authorize him to directly provide health care. The Secretary maintains, however, that Crews provided health care through others. The Court finds the Secretary's construction to be reasonable. Section 1128(b)(4) applies equally to "entities." Entities can only provide health care through other individuals. Both federal regulations, see 42 C.F.R. § 483.75(d)(2)(i), and Virginia statutes, see Va. Admin. Code § 95-20-270, require nursing homes to be operated by a licensed administrator. The same Virginia Administrative Code section allows for the revocation of a nursing home administrator's license if the administrator "conduct[s] the practice of nursing home administration in such a manner as to constitute a danger to the health . . . of the residents. . . ." Id. This authority ensures government oversight of a nursing home administrator's primary duties, which include the provision of health care to residents, even if through other professionals. Accordingly, an examination of the administrative record indicates that the Secretary's application of Section 1128(b)(4) to nursing home administrators' licenses is not arbitrary, capricious or otherwise contrary to law. This conclusion also accords with previous administrative decisions. See Maurice Labbe, DAB CR488 (1977) (implicitly finding nursing home administrator subject to exclusion under Section 1128(b)(4)).

Crews, 40 F. Supp. 2d at 354.

Petitioner attempts unsuccessfully to distinguish Crews from the case here under consideration. The Crews decision, states Petitioner, "was based on the interpretation of Virginia law governing nursing home administrators." P. Br. at 6. Petitioner adds that the "Missouri regulations outlining the reasons the Board may revoke a nursing home administrator's license do not contain this same provision that is found in the Virginia regulations." Id. However, Petitioner does not indicate what is the crucial difference in the rendering of the statutory or regulatory language applicable to nursing home administrators in those two states. Whatever differences may exist, however, have no bearing on the issue of whether a license to perform as a nursing home administrator constitutes a license to provide health care. This is so because the court in Crews based its holding on an interpretation of federal law and not on Virginia law. Thus, the court concluded that the Secretary's construction finding that Section 1128(b)(4) of the Act applied to a nursing home administrator inasmuch as he provided health care through others, ⁽²⁾ was reasonable. I.G. Ex. 3, at 14.

As stated above, the court in Crews noted that the Virginia statute requires that nursing homes be operated by a licensed administrator and also provides that a nursing home administrator's license may be revoked if he or she conducts the practice of nursing home administration in such a manner as to constitute a danger to the health, safety, and well being of the residents, staff or public. 18 Va. Admin. Code § 95-20-470. Similarly, the Missouri Code of State Regulations requires that the person designated as the nursing home administrator must hold a current license as a nursing home administrator in Missouri, and "[d]evote reasonable time and attention to the management of the health, safety and welfare of the residents of the facility." Mo. Code Regs. Ann. tit. 19, § 30-85.042(1) (2003); Mo. Code Regs. Ann. tit. 13, § 73-2.095(1)(H) (2003). Given the language in the Missouri Code of State Regulations, Petitioner fails to advance cogent reason as to why the Crews holding would not be equally applicable here. Consequently, the Commission's finding that Petitioner "failed to devote reasonable time and attention to the management of the health, safety and welfare of the residents" (I.G. Ex. 3, at 14) is congruent with the I.G.'s determination that Petitioner was a provider of health care and that her license was revoked for reasons bearing on her professional competence, professional performance, or financial integrity.

2. The length of the exclusion is not unreasonable.

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, at 3 (1997). That section requires that Petitioner be excluded for a period no less than the period during which her license to provide health care is revoked, suspended, surrendered, or lost. The coterminous exclusion by the I.G. in this case is the mandated minimum period required by law.

Conclusion

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

1. Federal requirements mandate comfortable and safe temperature levels. Facilities initially certified after October 1, 1990, must maintain a temperature range of 71-81 F. 42 C.F.R. § 483.15(h)(6).

2. The Missouri Code of State Regulations provides that a nursing home administrator shall be held responsible for the actions of all employees, subject to the provisions of Mo. Code Regs. Ann. tit. 13, § 73-2.095(1)(B)(1) - (3) (2003).