CASE | DECISION | JUDGE

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


SUBJECT:

James Snow,

Petitioner,

DATE: April 5, 2001
                                          
             - v -

 

The Inspector General

 

Docket No.C-01-001
Decision No. CR760
DECISION
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I sustain the determination of the Inspector General (I.G.) to exclude James Snow (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 I base my decision upon evidence which proves that Petitioner's nursing license was revoked by the Connecticut Board of Examiners for Nursing (Board of Examiners) relating to his professional competence, professional performance, or financial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 July 31, 2000, the I.G. notified Petitioner that he 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Act (Act) because Petitioner's "license to practice medicine or provide health care in the State of Connecticut was revoked, suspended, or otherwise lost or was surrendered while a formal disciplinary proceeding was pending before the licensing authority for reasons bearing on [his]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 is revoked, suspended or otherwise lost."

By letter dated September 28, 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 two proposed exhibits (I.G. Ex. 1- Ex. 2). Petitioner submitted a response brief and one proposed exhibit (P. Ex. 1). In the absence of objection, I am admitting I.G. Ex. 1, Ex. 2, and P. Ex. 1 into evidence. In this decision, I refer to the I.G.'s Brief, Petitioner's Brief and I.G.'s Reply as I.G. Br., P. Br., and I.G. R. Br., respectively. 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 -

any 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. Petitioner was issued a registered nurse license, Number E57134, by the State of Connecticut, on August 5, 1994. I.G. Ex. 1 at 2.

2. At all times relevant to this case until March 15, 2000, Petitioner was licensed as a registered nurse in the State of Connecticut. I.G. Ex. 1 at 2.

3. The Statement of Charges alleged that Petitioner violated certain provisions of Chapter 378 of the General Statutes of Connecticut. On January 6, 1999, based on these allegations the Board of Examiners found that "the continued practice of nursing by [Petitioner] presented a clear and immediate danger to public health and safety," and summarily suspended Petitioner's license pending a final determination. I.G. Ex. 1 at 1.

4. A hearing concerning the allegations against Petitioner took place on October 20, 1999. Petitioner, who was not present, was represented by counsel at the hearing. I.G. Ex. 1 at 2.

5. Based on the testimony given and the exhibits offered into evidence, the Board of Examiners made findings of fact that --

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(3) During 1998, while working as a registered nurse . . . [Petitioner] diverted for his own personal use the controlled substance Tylox;

(4) During 1998, [Petitioner] abused or utilized to excess Tylox and other controlled substances; and

(5) On or about December 6, 1998, while working as a registered nurse . . . [Petitioner] was sent to the emergency department for evaluation subsequent to his on-the-job performance being questioned. A urine drug screen to which [Petitioner] submitted, tested positive for one or more controlled substances.

I.G. Ex. 1 at 2.

6. The Board of Examiners concluded that "[Petitioner's] abuse of controlled substances does and/or may affect his practice as a registered nurse." I.G. Ex. 1 at 2.

7. The Board of Examiners concluded that Petitioner's registered nurse license was subject to disciplinary action pursuant to sections 19a-17 and 20-99 of the General Statutes of Connecticut. I.G. Ex. 1 at 4.

8. Petitioner admitted the allegations in paragraphs one through six of the Statement of Charges that he --

(a) diverted Tylox; . . .

(b) failed to completely, properly and/or accurately document medical or hospital records; and/or

(c) falsified one or more hospital records[.] I.G. Ex. 1 at 3-4.

9. On March 15, 2000, the Board of Examiners executed a Memorandum of Decision revoking Petitioner's registered nurse license. I.G. Ex. 1 at 4.

10. The totality of the circumstances outlined by the I.G. and as found by the Board of Examiners including drug abuse or [use] to excess of a controlled substance, diversion of controlled substances, and falsification of one or more hospital records is sufficient to conclude that the revocation of Petitioner's [registered] nurse's license was for reasons bearing on his professional performance authorizing his exclusion under section 1128(b)(4) of the Act. Tracey Gates, R.N., DAB No. 1768 (2001).

11. The revocation by the Board of Examiners of Petitioner's license to provide health care is consistent with the requirements of section 1128(b)(4) of the Act.

12. Petitioner was notified by the I.G. of his indefinite exclusion from participation in Medicare, Medicaid and all Federal health care programs on July 31, 2000, pursuant to section 1128(b)(4) of the Act. I.G. Ex. 2.

13. Pursuant to section 1128(b)(4), the I.G. may exclude -

. . . Any 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.

14. Petitioner's exclusion is controlled by the anti-fraud and abuse provisions of the Health Insurance Portability and Accountability Act of 1996 (HIPAA). Pub. L. 104-191 (104th Congress, 2nd Session); 110 Stat. 1978, Title II, Secs. 201, 211 213, 218; 42 U.S.C.A. §§ 1320a-7; 142 Cong. Record H9490 (enacted August 21, 1996).

15. Pursuant to section 1128(c)(3)(E) of the Act, as amended by section 212 of Pub. L. 104-191, the length of an exclusion under 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."

16. The I.G. has no discretion to impose an exclusion against Petitioner that is shorter than the period during which Petitioner's license to provide health care is revoked, suspended or surrendered. Act, section 1128(c)(3)(E).

IV. Petitioner's Contentions

Petitioner does not dispute that his registered nurse's license was revoked by the Board of Examiners, or that the revocation is within the scope of section 1128(b)(4). Rather, he contests the I.G.'s assertion that such revocation occurred for reasons bearing on his professional performance, professional competence or financial integrity.

Petitioner argues that the I.G.'s decision to exclude him for reasons bearing on his professional performance is not based on the facts found by the Board of Examiners. Specifically, Petitioner contends that because the I.G. exercised a unilateral conclusion that a positive urine drug test inexorably yields a lack of professional performance, professional competence or financial integrity with no review of the actual facts, his constitutional rights of due process have been abrogated. P. Br. at 4.

Petitioner further maintains that even if the Board of Examiners revoked his license for reasons bearing on his professional performance, professional competence or financial integrity, then the length of exclusion should be a permissive exclusion rather than a mandatory exclusion. Id. at 4. Petitioner cites no statute, law or regulation for his theory other than 42 U.S.C. § 1320a-7(b).

Petitioner also contends that the IG should weigh mitigating factors which he asserts outweigh the aggravating factors in the case. Petitioner cites Garfinkle v. I.G., DAB No. 1527 (1996) to support the position that the need for his unique training and qualifications as a registered nurse, a nurse aide and recreation specialist exceeds the availability of similarly qualified persons in his community. Id. at 11.

Petitioner further asserts that his exclusion violates his due process rights. In this regard, he argues that his exclusion is overly broad, as he is excluded from participating in any role as a health care provider. He requests that his exclusion be specifically limited to his practice as a registered nurse, and not encompass the overall provision of health care services in other capacities. Petitioner asserts that even though he has become registered as a nurse aide (see P. Ex. 1.), he is none-the-less unemployable in the health field under the I.G.'s exclusion. He also contends that his constitutional equal protection rights are violated by the exclusion as compared to a similarly situated person who has never held a license as a health care provider. He asserts that a similarly situated person would not be precluded from obtaining employment in the health care field as a result of a prior substance abuse problem. Petitioner asserts that such broad exclusion, as implemented by the I.G., makes it impossible for him to obtain employment in the health care field.

Id. at 7.

Petitioner also argues that the I.G.'s decision far exceeds the state imposed exclusion and therefore is a denial of due process. Id. at 12. He also contends that the factors acted upon by the Board of Examiners have not reoccurred since 1998, and Petitioner therefore, requests a revision of his exclusion. Id. at 9.

Finally, Petitioner asserts that his exclusion violates his rights under the Americans with Disabilities Act, in that it wrongfully discriminates against his disability, the disease of addiction, which he asserts is currently in remission. Id. at 13.

V. Discussion

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

Petitioner concedes that his registered nurse's 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. (P. Br. at 2). Petitioner, however, misconstrues the I.G.'s authority by characterizing the duration of the exclusion as permissive as opposed to a mandatory exclusion. 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) of the Act, that the minimum length of the exclusion must be coterminous with the term of the revocation or suspension of the State license. In pertinent part, the Act provides that:

[i]n the case of an exclusion of an individual or entity under subsection (b)(4) or (b)(5), the period of the exclusion 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)(E).

Since Petitioner's registered nurse's 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 his license to provide health care in the Commonwealth of Connecticut is revoked. Petitioner is required to obtain from the Board of Examiners authority the same type of license that such officials revoked before he can be considered for reinstatement as a participant in the Medicare program. Gates.

While Petitioner claims that his registered nurse's license was not revoked for reasons bearing on his professional performance or professional competence, I do not find his argument persuasive or supported by the evidence. I find that the record has established that Petitioner's license was revoked as the result of his substance abuse problems and that those problems had an impact on his 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 his license was revoked because his substance abuse unfavorably impacted his professional competence and performance. On December 6, 1998, Petitioner submitted a urine specimen which tested positive for the presence of Tylox, a controlled substance. On January 6, 1999, Petitioner was notified by the Board of Examiners that his license was summarily suspended pending a final determination of the charges that his conduct presented a clear and immediate danger to the public health and safety. I.G. Ex. 1 at 1. On October 20, 1999, a hearing was held by the Board of Examiners in which Petitioner's positive urine screening results were deemed conclusive evidence of his abuse of the controlled substance of Tylox . The Board of Examiners also concluded that Petitioner admitted that he failed to complete medical records or falsified medical records. The Board of Examiners further found that Petitioner's abuse of the controlled substance may affect his practice as a registered nurse. Based upon these findings of fact and conclusions of law, the Board of Examiners revoked Petitioner's registered nurse's license, effective March 15, 2000. 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 of Examiners found that Petitioner's professional competence and performance were undermined.

Petitioner is in fact mistaken in his claim that the Board of Examiners did not find his professional performance or professional competence to have been impaired. The basis of the Board's action, as cited in its March 15, 2000 Order, was sections 19a-17 and 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 --

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"(5) abuse or excessive use of drugs, including alcohol, narcotics or chemicals[.]"

As such authority was cited by the Board of Examiners as the basis for its action, it is clear that Petitioner's substance abuse was found to bear upon his professional competence and performance. Prior 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), Tracey. Indeed, even in the absence of a long-standing history of substance abuse, it has been held that infrequent, occasional, or even one-time drug usage impacts an individual's professional competence or professional performance. Stark, at 10.

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

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

Petitioner asserts that his constitutional rights of equal protection and due process, as well as, his rights under the Americans with Disabilities Act have been violated by his exclusion. He argues that his exclusion is overly broad, with the effect that his 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) (administrative law judges do not have authority to declare federal statutes unconstitutional).

As a result of these explicit jurisdictional prohibitions, Administrative Law Judges of the Departmental Appeals Board 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 his 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) (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) (Administrative Law Judge has no authority to decide claim under the Americans with Disabilities Act).

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

Petitioner's claim for equitable relief consisting of an exclusion tailored to him so that he may seek employment in the health care field is not statutorily authorized. Petitioner's contention that his exclusion from his participation in Medicare programs effectively deprives him 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.

JUDGE
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Alfonso J. Montano

Administrative Law Judge

 

CASE | DECISION | JUDGE