I sustain the determination of the Inspector General (I.G.) to exclude Petitioner, Claudia Hall, R.N., from participating in the Medicare program and in other federally funded health care programs, including State Medicaid programs, until Petitioner's license to practice nursing in the State of Nevada is reinstated.

I. BACKGROUND

On November 30, 1998, the I.G. notified Petitioner that Petitioner was being excluded from participating in Medicare and in other federally funded health care programs. The I.G. advised Petitioner that the exclusion was being imposed pursuant to the requirements of section 1128(b)(4) of the Social Security Act (Act). The I.G. advised Petitioner that she was being excluded because her license to provide health care in the State of Nevada was revoked, suspended, or otherwise lost or was surrendered while a formal disciplinary proceeding was pending before the State licensing authority for reasons bearing on Petitioner's professional competence, professional performance, or financial integrity. The I.G. told Petitioner that she would not be eligible to apply for reinstatement to participate in Medicare and other federally funded health care programs until Petitioner obtained reinstatement of her Nevada license.

Petitioner requested a hearing and the case was assigned to me for a hearing and a decision. I directed the parties to file briefs and supporting exhibits concerning the issues in the case. I advised the parties that I would afford either of them an in-person hearing if I determined, after reviewing their written submissions, that there remained issues which could only be resolved based on the presentation of in-person testimony. Each party submitted a brief. Additionally, the I.G. submitted a statement entitled "Inspector General's Objections to Factual Statements Raised in Petitioner's Response Brief." The I.G. submitted three proposed exhibits with her brief (I.G. Ex. 1 - I.G. Ex. 3). Petitioner submitted a letter dated March 10, 1999, from the Oregon State Board of Nursing. I have identified this document as P. Ex. 1. I receive into evidence I.G. Ex. 1 - I.G. Ex. 3 and P. Ex. 1.

1. The I.G. is authorized to exclude Petitioner from Medicare and other federally funded health care programs;

2. It is reasonable for the I.G. to exclude Petitioner until her license to practice nursing in the State of Nevada is reinstated.

I make findings of fact and conclusions of law (Findings) to support my decision that the I.G. is authorized to exclude Petitioner until her license to practice nursing in the State of Nevada is reinstated. I set forth each Finding below as a separately numbered heading. I discuss each Finding in detail.

1. The I.G. is authorized to exclude an individual who surrenders his or her license to provide health care during the pendency of a formal disciplinary proceeding before a State licensing authority where the subject matter of the proceeding concerns that individual's professional competence, professional performance, or financial integrity.

The I.G. excluded Petitioner pursuant to the exclusion authority contained in section 1128(b)(4) of the Act. This section provides, at section 1128(b)(4)(B), that the Secretary of the United States Department of Health and Human Services (or her delegate, the I.G.) may exclude an individual who surrenders his or her license to provide health care while a formal disciplinary proceeding is pending against that individual by a State licensing authority and where the subject matter of the proceeding concerns that individual's professional competence, professional performance, or financial integrity.

Certain necessary facts must be present in order for the I.G. to have authority to exclude an individual pursuant to section 1128(b)(4)(B) of the Act. These necessary facts consist of the following: (1) there must be a formal disciplinary proceeding instituted against an individual's license to provide health care; (2) that hearing must concern the individual's professional competence, professional performance, or financial integrity; and (3) the individual surrenders his or her license during the pendency of that formal disciplinary proceeding.

It is not a necessary prerequisite for an exclusion under section 1128(b)(4)(B) that a formal disciplinary hearing concern an individual or entity's professional competence and professional performance and financial integrity. The subject matter language of this section is written in the disjunctive. The I.G. has the authority to exclude an individual under section 1128(b)(4)(B), assuming that the excluded individual has resigned his or her license during the pendency of a formal disciplinary proceeding, if the subject matter of that proceeding includes the individual's professional competence or professional performance or financial integrity.

2. Where the I.G. determines to exclude an individual pursuant to section 1128(b)(4) of the Act, the I.G. must exclude the individual for a period of time which at least coincides with the period during which the individual's State health care license is suspended, revoked, or surrendered.

The minimum exclusion period for an exclusion that is imposed pursuant to section 1128(b)(4) of the Act is prescribed by section 1128(c)(3)(E) of the Act. That section provides that 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 entity is excluded or suspended from a Federal or State health care program."

The provisions of section 1128(c)(3)(E) operate to set a minimum exclusion period for an exclusion that is imposed pursuant to section 1128(b)(4). At a minimum, the I.G. must exclude any individual whom she determines to exclude under section 1128(b)(4) for a period that is coterminous in duration with the period during which that individual's State health care license is revoked, suspended, or surrendered.

3. The I.G. is authorized to exclude Petitioner pursuant to the provisions of section 1128(b)(4)(B) of the Act because Petitioner surrendered her license to practice health care in the State of Nevada during the pendency of a formal disciplinary hearing which concerned her professional performance as a nurse.

The material facts of this case are not in dispute. Petitioner is a registered nurse who was licensed to practice nursing in the State of Nevada. Petitioner continues to maintain a license to practice nursing in the State of Oregon. P. Ex. 1.

On January 20, 1998, the Nevada State Board of Nursing issued an administrative complaint against Petitioner. I.G. Ex. 1. The complaint notified Petitioner that an administrative hearing would be held on March 3, 1998, to consider the allegations that were stated in the complaint. The complaint alleged that in September and/or October, 1996, Petitioner was employed in the capacity of a registered nurse at the Ely State Prison in Ely, Nevada. Id. at 1. It alleged that, during this period, Petitioner wrote approximately three letters to an inmate at the Ely State Prison. Id. It alleged that, in one of the letters, Petitioner told the inmate that she could or would access the inmate's medical record and provide the record to other persons in an attempt to aid the inmate. Id. at 2.

The complaint asserted that the alleged conduct by Petitioner violated prison administrative regulations. I.G. Ex. 1 at 2. It asserted that this alleged conduct constituted grounds for disciplinary action against Petitioner under Nevada State law in two respects: 1) failure by Petitioner to abide by any State or federal statute or regulation relating to the practice of nursing; and, 2) failure by Petitioner to perform nursing functions in a manner consistent with established or customary standards. Id.

On March 11, 1998, Petitioner entered into a settlement agreement with the Nevada State Board of Nursing. I.G. Ex. 2. Petitioner voluntarily surrendered her license to practice nursing in Nevada in lieu of other possible disciplinary actions by the Nevada State Board of Nursing. Id. at 1. Petitioner made the following admission:

I freely admit, in violation of . . . [Nevada State law], that during September and/or October of 1996, while employed by Correctional Medical Services at Ely State Prison, that I developed a relationship with an inmate, wrote him letters, and attempted to copy his health record. I further acknowledge that my actions were in violation of C.M.S. and Ely State Prison's policies and regulations.

Id. at 1.

The undisputed material facts of this case establish the necessary elements which must be present in order for the I.G. to have authority to exclude Petitioner pursuant to section 1128(b)(4) of the Act. First, a formal disciplinary proceeding was instituted against Petitioner's license to provide health care by the Nevada State Board of Nursing. I.G. Ex. 1. That is established by the January 20, 1998 notice to Petitioner which stated the specific allegations against her and advised her of a pending administrative hearing concerning a possible disciplinary action concerning Petitioner's Nevada State nursing license.

Second, the proceeding against Petitioner concerned Petitioner's professional performance. The January 20, 1998 notice specifically alleged that the conduct of Petitioner which was the subject of the administrative complaint against her was "unprofessional conduct" by Petitioner and a failure by Petitioner to "perform nursing functions in a manner consistent with established or customary standards." I.G. Ex. 1 at 2.

Finally, Petitioner surrendered her license to practice nursing in the State of Nevada while formal disciplinary proceedings were pending against her. This is established by the agreement in which Petitioner surrendered her license. I.G. Ex. 2. In that agreement, Petitioner acknowledged that her license surrender was in lieu of other possible disciplinary action against her. Id. at 1. And, Petitioner freely acknowledged that her conduct, which was the basis for the disciplinary action, violated Nevada State law. Id.

4. Petitioner's defenses are not a basis to conclude that the I.G. lacks the authority to exclude Petitioner under section 1128(b)(4)(B) of the Act.

Petitioner asserts two affirmative defenses against the I.G.'s action. First, Petitioner argues that, in this case, the application of the law to the undisputed material facts produces an illogical result which is not what Congress intended when it enacted section 1128(b)(4). Second, Petitioner asserts that she is being denied due process.

a. The exclusion is plainly authorized by the Act and is not an absurd consequence of the application of statutory language to the facts of this case.

Petitioner does not deny that the exclusion action taken by the I.G. in this case is authorized by the literal wording of the Act. But, Petitioner asserts that the exclusion makes no sense. Petitioner asserts that her conduct in Nevada was motivated only by good intentions. According to Petitioner, she was attempting only to help an inmate obtain rights which were afforded to the inmate by the Nevada State prison system. According to Petitioner: "[W]hile Petitioner's conduct may satisfy the letter of the law, it is so easily sated under the operant language as to be meaningless." Petitioner's brief at 7.

Petitioner's argument notwithstanding, the basis for the disciplinary proceeding against Petitioner before the Nevada State Board of Nursing plainly related to Petitioner's professional performance. As I discuss above, at Finding 3, the allegations made against Petitioner included allegations of unprofessional conduct by Petitioner and failure by Petitioner to perform nursing conduct that is consistent with professional standards.

Moreover, contrary to Petitioner's assertion, the conduct by Petitioner which was the basis for the Nevada State Board of Nursing's disciplinary proceedings was not beyond the spirit of the Act. On its face, section 1128(b)(4) was intended to enable the I.G. to exclude individuals whose professional conduct demonstrates that they may lack trustworthiness to deal with federally funded programs and their beneficiaries and recipients. Petitioner's admitted conduct in this case is evidence that she is not trustworthy.

It is easy to understand why the Nevada State Board of Nursing may have looked at Petitioner's admitted conduct as being unprofessional and potentially a threat to the integrity of the Nevada State prison system. Petitioner may have believed that her intended acts were motivated by the best intentions. But, Petitioner's admitted actions were, on their face, a breach of prison security. And, as Petitioner admits, they violated Nevada State law.

b. Petitioner has received a hearing that is consistent with the due process requirements of the Act and regulations.

Petitioner makes two assertions that she has been denied due process in this case. First, Petitioner argues that she should have been given a hearing before the I.G. excluded her. Second, Petitioner seems to argue that she is being denied due process because she is not able to present evidence which addresses the totality of the circumstances surrounding her Nevada State proceeding and her subsequent performance as a licensed nurse in the State of Oregon.

The action taken by the I.G. against Petitioner is consistent with both the requirements of the Act and regulations. Section 1128 of the Act does not require that the I.G. or the Secretary give an excluded individual a hearing before that individual is excluded under section 1128(b)(4) of the Act. Congress has determined that the requirements of due process will be met if an excluded individual is given an opportunity for a hearing after the exclusion determination is made. Regulations adopted by the Secretary at 42 C.F.R. Parts 1001 and 1005 are consistent with the Act's requirements.

It is Congress, and not the I.G. or any administrative law judge, that has opted to limit the issues that may be heard and decided in a case involving a section 1128(b)(4) exclusion. As I discuss above, at Finding 1, the Act establishes what facts are necessary to decide whether the I.G. has the authority to impose an exclusion under section 1128(b)(4). And, as I discuss above, at Finding 2, the Act establishes the minimum term (coterminous with the loss of a State license to provide health care) of an exclusion that may be imposed under section 1128(b)(4).

In this case, the I.G. chose to impose the minimum exclusion term. Therefore, the only facts that I may consider as relevant are those which may or may not establish the I.G.'s authority to impose an exclusion. Obviously, that narrows sharply the scope of the hearing I may hold. But, that narrowing is the consequence of a legislative decision by Congress and not the consequence of an arbitrary administrative determination at the Departmental level to deny Petitioner her due process rights.

In this case, I gave Petitioner the opportunity for a hearing consistent with the requirements of the Act and the regulations at 42 C.F.R. Part 1005. I imposed on the I.G. the burden of coming forward with evidence and proving, by a preponderance of the evidence, that the exclusion of Petitioner was authorized and was reasonable. I gave Petitioner the opportunity to present evidence, either in writing or through in-person testimony, to rebut any allegation that the I.G. sought to prove. Petitioner submitted written evidence and a brief. Petitioner has not made a showing that she has evidence which she needs to present in person that would rebut the evidence offered by the I.G.

5. The length of the exclusion is reasonable.

Petitioner contends that the I.G. misapplied the Act in excluding Petitioner for a period that is conterminous with the loss of her license to practice nursing in the State of Nevada. In fact, the term of the exclusion that the I.G. imposed against Petitioner is the minimum period that the Act allows. As I discuss above, at Finding 2, the Act mandates that an exclusion be for a period that at least is coterminous with a loss of a license to provide health care in a State. Act, section 1128(c)(3)(E).

Petitioner has offered evidence concerning her practice of nursing in the State of Oregon subsequent to her resigning her license to practice nursing in the State of Nevada. P. Ex. 1. The evident purpose of this evidence is to show that Petitioner has provided exemplary professional service in Oregon. However, that evidence is irrelevant to the issue of whether the exclusion that the I.G. imposed here is unreasonable, inasmuch as the exclusion that the I.G. imposed is for the minimum term prescribed by the Act.