SUBJECT:

Tracey Gates, R.N.,

Petitioner,

The Inspector General

I sustain the determination of the Inspector General (I.G.) to exclude Tracey Gates (Petitioner) from participation in the Medicare, Medicaid, Maternal and Child Health Services Block Grant and Block Grants to States for Social Services programs (Medicare programs), until Petitioner's license to provide health care in the State of Connecticut is reinstated. I base my decision upon evidence which proves that Petitioner's nursing license was revoked by the State of Connecticut for reasons relating to her professional competence, professional performance, or financial integrity. Additionally I find that, when an exclusion imposed by the I.G. is concurrent with the remedy imposed by a State licensing authority, as occurs in this case, there is no issue of reasonableness and such an exclusion is mandated by law.

I. Background

By letter dated March 31, 2000, the I.G. notified Petitioner that she was being excluded from participation in the Medicare programs. The I.G. explained that Petitioner's exclusion was authorized under section 1128(b)(4) of the Social Security Act (Act) because Petitioner's "license to practice medicine or provide health care in the State of Connecticut was revoked, suspended, or otherwise lost or was surrendered while a formal disciplinary proceeding was pending before the licensing authority for reasons bearing on [her] professional competence, professional performance, or financial integrity." Additionally the I.G. advised Petitioner that her exclusion would remain in effect "as long as that license is revoked, suspended, or otherwise lost."

By letter dated May 26, 2000, Petitioner requested a hearing and the case was assigned to me for decision. The parties agreed that the case could be decided based on their written submissions and that an in-person hearing was not necessary. The parties have each submitted written arguments and proposed exhibits.

The I.G. submitted a brief, a reply brief, and four proposed exhibits (I.G. Ex. 1-4). Petitioner did not object to these exhibits. Petitioner submitted a response brief. In the absence of objection, I am admitting I.G. Ex. 1-4 into evidence. I base my decision in this case on these exhibits, the applicable law, and the arguments of the parties.

II. Applicable Law

Pursuant to section 1128(b)(4) of the Act, the I.G. may exclude "[a]ny individual or entity - (A) whose license to provide health care has been revoked or suspended by any State licensing authority, or who otherwise lost such a license or the right to apply for or renew such a license, for reasons bearing on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, or (B) who surrendered such a license while a formal disciplinary proceeding was pending before such an authority and the proceeding concerned the individual's or entity's professional competence, professional performance, or financial integrity."

Pursuant to section 1128(c)(3)(E) of the Act, as amended by section 212 of the Health Insurance Portability and Accountability Act of 1996 (Pub. L. 104-191), 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." Prior to 1996, the Act provided no criteria for establishing the length of exclusions for individuals or entities excluded pursuant to section 1128(b)(4). Under the 1996 amendments, no issue of reasonableness exists where the exclusion imposed by the I.G. is concurrent with the loss, suspension, or revocation of a State license. A concurrent exclusion, as in Petitioner's case, is the minimum required by law.

III. Findings of Fact and Conclusions of Law

1. At all times relevant to this case Petitioner was licensed as a registered nurse in the Commonwealth of Connecticut. I.G. Ex. 4 at 2.

2. On April 24, 1996, the Commonwealth of Connecticut Board of Examiners for Nursing (Board) placed Petitioner's registered nurse's license on probation for three years, effective May 1, 1996, as a result of her diversion and abuse of controlled substances during 1993 and 1995, as well as for her falsification of controlled substance records. I.G. Ex. 4.

3. As stated in the April 24, 1996 Order of the Board, Petitioner's probation prohibited her from abusing alcohol and/or drugs, and required that she submit to random alcohol and drug screening, the results of which were to be negative. I.G. Ex. 4.

4. On November 23, 1998, Petitioner submitted a urine specimen which tested positive for the presence of two controlled substances, morphine and codeine. I.G. Ex. 2 at 2.

5. On February 10, 1999, Petitioner submitted a urine specimen which tested positive for the presence of the controlled substance, morphine. Id.

6. On March 17, 1999, Petitioner was notified by the Board that her registered nurse's license was summarily suspended pending a final determination of the charge that her conduct failed to conform to the accepted standard of the nursing profession. I.G. Ex. 2.

7. On July 21, 1999, the Board issued an order finding that Petitioner's positive urine screen results were deemed conclusive evidence of her abuse of the controlled substances morphine and codeine; that her abuse of morphine and codeine may affect her practice as a registered nurse; that her positive urine test results of morphine and codeine violated the terms of her probation; and that her registered nurse's license was thereby revoked. I.G. Ex. 2.

8. Petitioner's Connecticut nursing license has not been reinstated.

9. On March 31, 2000, pursuant to section 1128(b)(4) of the Act, the I.G.. notified Petitioner of her indefinite exclusion from participation in the Medicare programs on March 31, 2000 pursuant to section 1128(b)(4) of the Act. I.G. Ex. 1.

10. 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 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 professional competence, professional performance, or financial integrity.

11. Petitioner, as a registered nurse, possessed a license to provide health care within the scope of section 1128(b)(4) of the Act.

12. Petitioner's nursing license was revoked by a State licensing authority, within the scope of section 1128(b)(4)(A) of the Act.

13. The revocation of Petitioner's nursing license was for reasons bearing on her professional competence, professional performance, or financial integrity, within the scope of section 1128(b)(4) of the Act.

14. The I.G. was authorized to exclude Petitioner pursuant to section 1128(b)(4) of the Act.

15. Where an 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).

16. When an exclusion is imposed pursuant to section 1128(b)(4) of the Act and the period of exclusion is concurrent with the loss, suspension, revocation, or surrender of a State license, then no issue of reasonableness concerning the length of the exclusion exists.

17. The exclusion imposed by the I.G. against Petitioner, which will remain in effect until Petitioner obtains a valid license to provide health care in Connecticut, was authorized under sections 1128(b)(4) and 1128(c)(3)(E).

IV. Petitioner's Contentions

Petitioner does not dispute the fact that her nursing license was revoked by the Board, or that such revocation is within the scope of section 1128(b)(4). Rather she contests the I.G.'s assertion that such revocation occurred for reasons bearing on her professional performance or professional competence. She asserts that the Commonwealth of Connecticut Board concluded only that her abuse of controlled substances "may" have affected her professional competence and professional performance.

Petitioner also maintains that her exclusion violates her due process rights. In this regard she asserts that her exclusion is overly broad, as she is excluded from participating in any role as a health care provider. She requests that her exclusion be limited to her practice as a registered nurse only, and not encompass the overall provision of health care services in other capacities. Petitioner asserts that such broad exclusion, as implemented by the I.G., makes it impossible for her to obtain employment in the health care field. She also contends that her equal protection rights are violated by the exclusion as a similarly situated person who never held a license as a health care provider would not be precluded from obtaining employment in the health care field as a result of a substance abuse problem. Finally, Petitioner asserts that her exclusion violates her rights under the Americans with Disabilities Act, in that it wrongfully discriminates against her disability, the disease of addiction, which she asserts is currently in remission.

V. Discussion

A. Petitioner's nursing license was revoked by the Board for reasons bearing on her professional competence and performance.

Petitioner concedes that her nursing license has been revoked by a State licensing authority within the scope of section 1128(b)(4) of the Act and I find that such has occurred. The Act, as amended at section 1128(c)(3)(E), requires that an individual excluded pursuant to section 1128(b)(4) be excluded for not less than the period during which the individual's license to provide health care has been revoked or suspended in any state. It is clear from the language of the amendment at section 1128(c)(3)(E) that the minimum length of the exclusion must be coterminous with the term of the revocation or suspension of the State license. Since Petitioner's nursing license was revoked in the Commonwealth of Connecticut, the Act requires that the period of the exclusion will not be less than the period during which her license to provide health care in the Commonwealth of Connecticut is revoked. Petitioner is required to obtain from the Board authority the same type of license that such officials revoked before she can be considered for reinstatement as a participant in the Medicare program. See Act, section 1128(c)(3)(E); Mary E. Groten, DAB CR518 (1998).

It is also not disputed that Petitioner's nursing license is a license to provide health care within the scope of section 1128(b)(4) of the Act. Although Petitioner claims that her license was not revoked for reasons bearing on her professional performance or professional competence, I disagree. I find that the record has established that Petitioner's license was revoked as the result of her substance abuse problems and that those problems had an impact on her professional competence and professional performance. An examination of the chronology of events associated with the Board's revocation of Petitioner's nursing license underscores the conclusion that her license was revoked because her substance abuse unfavorably impacted her professional competence and performance. On April 24, 1996, the Board placed Petitioner's license on probation for three years, as a result of her diversion and abuse of controlled substances during 1993 and 1995, as well as for her falsification of controlled substance records. Petitioner's probation prohibited her from abusing drugs and/or alcohol and required that she submit to random alcohol and drug screenings. On November 23, 1998, she submitted a urine specimen which tested positive for the presence of two controlled substances, morphine and codeine. On February 10, 1999, Petitioner submitted a urine specimen which tested positive for the presence of morphine. On March 17, 1999, Petitioner was notified by the Board that her license was summarily suspended pending a final determination of the charge that her conduct presented a clear and immediate danger to the public health and safety. I.G. Ex. 2 at 1. On April 7, 1999, a hearing was held by the Board in which Petitioner's positive urine screening results were deemed conclusive evidence of her abuse of the controlled substances of morphine and codeine. The Board further found that Petitioner's abuse of these substances "may" affect her practice as a licensed nurse. The Board also determined that Petitioner's two positive test results violated the terms of her probation. Based upon these findings of fact and conclusions of law, the Board revoked Petitioner's license, effective July 21, 1999. Id. at 4. This chronology clearly demonstrates that Petitioner's substance abuse was the basis for the license revocation proceeding and that in light of such abuse, the Board found that Petitioner's professional competence and performance were undermined.

Petitioner is in fact mistaken in her claim that the Board did not find her professional performance or professional competence to have been impaired. The basis of the Board's action, as cited in its July 21, 1999 Order, was section 20-99 of the General Statutes of Connecticut, which provides in relevant part:

(a) The Board of Examiners for Nursing shall have jurisdiction to hear all charges of conduct which fail to conform to the accepted standards of the nursing profession brought against persons licensed to practice nursing. After holding a hearing. said board, if it finds such person to be guilty, may revoke or suspend his or her license or take any of the actions set forth in section 19a-17(b) Conduct which fails to conform to the accepted standards of the nursing profession includes but is not limited to the following (5) abuse or excessive use of drugs, including alcohol, narcotics or chemicals ."

As such authority was cited by the Board as the basis for its action, it is clear that Petitioner's substance abuse was found by the Board to bear upon her professional competence and performance. Although the revocation of Petitioner's license was a result of her sporadic abuse of two controlled substances, morphine and codeine, numerous administrative decisions support the conclusion that substance abuse like Petitioner's impacts unfavorably on an individual's professional competence and professional performance, thereby establishing a basis for exclusion under section 1128(b)(4) of the Act. Roy Cosby Stark, DAB CR676, aff'd, DAB No. 1746 (2000), citing Wilbur D. Hilst, M.D., DAB CR621 (1999); Charles Sutherland, D.O., DAB CR561 (1998); Mary E. Groten, DAB CR518 (1998). Indeed it has been held that even in the absence of a long-standing history of substance abuse, infrequent, occasional, or even one-time drug usage impacts an individual's professional competence or professional performance. stark, id. at 10.

Based upon such authority, I find that the I.G. properly excluded Petitioner, and that Petitioner's exclusion will remain effective until she obtains the same type of license in Connecticut that was previously revoked by the Board.

B. I do not have the authority to hear and decide Petitioner's additional arguments.

Petitioner asserts that her constitutional rights and her rights under the Americans with Disabilities Act have been violated by her exclusion and that her exclusion is overly broad, with the effect that her employment in any health care field has been precluded. I do not have the authority to decide these issues. It is clear that administrative law judges are limited in the types of claims that they may adjudicate. See 42 C.F.R. § 1005.4(c)(1) and (5). Administrative law judges have no statutory or regulatory authority to find invalid or refuse to follow federal statutes or regulations. Wayne E. Imber, M.D., DAB CR661, aff'd, DAB No. 1740 (2000); Richard A. Fishman, D.O., DAB CR100 (1990) (administrative law judges do not have authority to declare federal statutes unconstitutional).

As a result of these explicit jurisdictional prohibitions, Departmental Appeals Board administrative law judges lack authority to review the constitutionality of statutes as well as decide claims arising under other federal statutes such as the Americans with Disabilities Act. Petitioner may not use the administrative appeals process set forth at 42 C.F.R. Part 1005 et seq. to obtain redress for both her alleged constitutional and federal statutory harms. See Serban I. Cocioba, M.D., DAB CR654 (2000) (finding no jurisdiction to rule on constitutional claims); Morton Markoff, D.O., DAB CR538 (1998) (administrative law judges lack authority to decide constitutional claims); Roberta E. Miller, DAB CR367 (1995) (42 C.F.R. § 1005.4(c)(1) delegation of authority to administrative law judges to decide exclusion cases does not include the authority to rule on the constitutionality of federal statutes or the I.G.'s actions); Charles Sutherland, D.O., DAB CR561 (1998) (ALJ has no authority to decide claim under the Americans with Disabilities Act).

C. Petitioner's deprivation of livelihood argument is not relevant to the outcome of these proceedings.

Petitioner's claim for equitable relief, that is, an exclusion "tailored" so that she may seek employment in the health care field is not relevant. Petitioner's contention that her exclusion from participation in Medicare programs effectively deprives her of a livelihood is not pertinent to the resolution of this appeal. See Farhad Mohebban, M.D., DAB CR686 (2000); Carlos Rivera-Cruz, DAB CR677 (2000); Arlene Elizabeth Hunter, DAB CR505 (1997). Moreover, despite the broad effect of exclusion from participation in Medicare programs as a provider, such is the remedial purpose behind the I.G.'s exclusion authority. See 42 C.F.R. § 1001.1901; Chander Kachoria, R.Ph., DAB No. 1380 (1993) (recognizing that although the economic effects of exclusion on a provider may be adverse, the goal of exclusion is to protect federal programs by removing untrustworthy providers).

VI. Conclusion

I conclude that the I.G. was authorized to exclude Petitioner pursuant to section 1128(b)(4) of the Act. I conclude also that the term of exclusion imposed by the I.G. is mandated by section 1128(c)(3)(E) of the Act.

Joseph K. Riotto

Administrative Law Judge