CASE | DECISION | JUDGE

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


SUBJECT:

Stacey K. Clayton, a/k/a, Stacey K. Dudek,

Petitioner,

DATE: December 14, 2001
                                          
             - v -

 

The Inspector General

 

Docket No.C-01-591
Decision No. CR847
DECISION
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DECISION

This case is before me pursuant to a request for hearing filed by Stacey K. Clayton, (Petitioner) on April 13, 2001. Social Security Act (Act), Section 1128(f), 42 C. F. R. § 1005.2.

By letter dated March 30, 2001, the Inspector General (I.G.) notified Petitioner that she was being excluded from participating in the 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, or loss of her license to practice medicine or provide health care in the State of Pennsylvania 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 nursing in the state of Pennsylvania remained revoked.

The I.G. is represented in this case by the Office of Counsel. Petitioner filed the request for hearing on her own behalf. I scheduled a prehearing conference to take place on June 19, 2001, at 10:30 a.m., to be conducted by telephone. The Petitioner was advised to provide the Civil Remedies Division with a telephone number at least five days before the call. In view of Petitioner's failure to provide a telephone number as requested, the prehearing conference did not take place.

I determined that this matter could be decided based on written arguments and documentary evidence, and that an evidentiary hearing was unnecessary. Consequently, I issued an Order on July 12, 2001, establishing briefing deadlines. Pursuant to that Order the I.G. timely filed its brief on August 13, 2001. Petitioner did not submit its brief that was due on September 12, 2001. I have, therefore, closed the record in this case and proceeded to the issuance of a decision.

The I.G. submitted a memorandum of law accompanied by three proposed exhibits. These have been identified as I.G. exhibits (Exs.) 1 - 3. Petitioner submitted no written arguments or documentary evidence in support of her contentions. The extent of her arguments are contained in the request for hearing. On November 5, 2001, I served notice on Petitioner that although she had been granted until September 12, 2001 to respond to the I.G.'s motion for summary affirmance, she had failed to do so. I further advised her that I was closing the record and proceeding to the issuance of a decision in this case.

It is my decision to sustain the determination of the I.G. to exclude Petitioner, Stacey K. Clayton, from participating in the Medicare, Medicaid, and all other federal health care programs, for a period coterminous with the revocation of her license to practice nursing or provide health care in the State of Pennsylvania. I base my decision on the documentary evidence, the applicable law and regulations, and the arguments of the parties. It is my finding that the State Board of Nursing of Pennsylvania revoked Petitioner's license to practice nursing 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.

Issues

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.

Applicable Law and Regulations

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 care 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 health care has been revoked or suspended by a State licensing authority, or otherwise lost, for reasons bearing on that 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) must be coterminous with the term of loss, suspension or revocation 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.

Findings of Fact and Conclusions of Law

1. Petitioner was licensed by the State of Pennsylvania to practice nursing. I.G. Ex. 3 at 7.

2. On April 7, 1999, the Commonwealth of Pennsylvania, Bureau of Professional and Occupational Affairs, filed an order to show cause, charging that Petitioner was subject to disciplinary action under section 16(a)(6) of the Pennsylvania Practical Nurse law, Act of March 2, 1956, P. L. 1211, as amended, 63 P. S. §§ 652 et. seq,. at P. S. § 666(a)(6) in that she was "addicted to alcohol and hallucinogenic or narcotic drugs or other drugs that tend to impair judgment or coordination." I.G. Ex. 3 at 6.

3. The Commonwealth charged in its order to show cause that Petitioner was unable to practice professional nursing with reasonable skill and safety to patients by reason of her dependence on alcohol and drugs that tend to impair her judgment and coordination. I.G. Ex. 3 at 11-12.

4. The charge and order to show cause were brought as a result of Petitioner's violation of the requirements of the Voluntary Recovery Program (VRP) for impaired health care practitioners administered by the Professional Health Monitoring Program (PHMP) of the Pennsylvania Bureau of Professional and Occupational Affairs. I.G. Ex. 3 at 9, 11-12.

5. On July 30, 1999, a formal administrative hearing was held on the Commonwealth's order to show cause before a hearing examiner for the Pennsylvania Bureau of Professional and Occupational Affairs. I.G. Ex. 3 at 7.

6. On June 27, 2000, the hearing examiner issued a "proposed Adjudication and Order" wherein she found that Petitioner had violated the requirements of the VRP by failing to submit to random urine screens, failing to furnish PHMP monthly documentation of her attendance at support group meetings, failing to furnish PHMP 60-day interval progress reports from a continuing care provider, and failing to notify PHMP of her new address. I.G. Ex. 3 at 9.

7. In the "Proposed Adjudication and Order" the hearing examiner concluded as a matter of law that Petitioner was subject to disciplinary action under section 16(a)(6) of the Practical Nurse Law, Act of March 2, 1956, P.L. 1211, as amended, at 63 P.S. § 666(a)(6), because Petitioner was still "addicted to alcohol and hallucinogenic or narcotic drugs or other drugs that tend to impair judgment or coordination." I.G. Ex. 3 at10.

8. As a result of the findings of fact and conclusions of law, the hearing examiner ordered that Petitioner's license be indefinitely suspended until she presented to the Board documented evidence from both the PHMP and the Virginia Board of Nursing peer assistance group that she had three years of sustained recovery from chemical dependency. I.G. Ex. 3 at 15.

9. On September 29, 2000, the Pennsylvania State Board of Nursing adopted the "Proposed Adjudication and Order" of the hearing examiner and ordered that Petitioner immediately cease practicing professional nursing. I.G. Ex. 3 at 3, 4.

10. The I.G. notified Petitioner by letter dated March 30, 2001, that she was being excluded pursuant to section 1128(b)(4) of the Act from participating in Medicare,

Medicaid and all Federal health care programs. I.G. Ex. 1.

11. The I.G. is authorized to exclude Petitioner pursuant to section 1128(b)(4) of the Act because her license to provide health care has been suspended by the Pennsylvania State Board of Nursing for reasons bearing on her professional competence and professional performance.

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

13. In an exclusion 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. Section 1128(c)(3)(E) of the Act; 42 C.F.R. § 1001.501(b)(1).

14. The exclusion imposed by the I.G. against Petitioner will remain in effect until she regains her nursing license in the Commonwealth of Pennsylvania.

Discussion

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

Petitioner was licensed to practice nursing and provide health care in the State of Pennsylvania. On April 7, 1999, the Commonwealth of Pennsylvania, Bureau of Professional and Occupational Affairs, filed an order to show cause, charging that Petitioner was subject to disciplinary action under the Pennsylvania Practical Nursing Law, in that she was "addicted to alcohol and hallucinogenic or narcotic drugs or other drugs that tend to impair judgment or coordination. The matter went before a hearing examiner on July 30, 1999, who concluded that Petitioner had failed to comply with State monitoring requirements. As a result of the findings, the hearing examiner issued a "Proposed Adjudication Order" and ordered that Petitioner's license be indefinitely suspended until she presented to the Pennsylvania State Board of Nursing documented evidence of three years of sustained recovery from chemical dependency. The Board adopted the "Proposed Adjudication Order" and directed that Petitioner immediately cease practicing professional nursing. I.G. Ex. 3.

By letter dated March 30, 2001, the I.G. notified Petitioner that she was being excluded from participating in the Medicare, Medicaid, and all federal health care programs pursuant to section 1128(b)(4) of the Act because her license to practice nursing or provide health care in the State of Pennsylvania was revoked, suspended, or otherwise lost for reasons bearing on her professional competence, professional performance, or financial integrity.

In her request for hearing, Petitioner asserts that she is in a recovery program approved by the State Board of Nursing in Hampton, Virginia. If Petitioner has in fact entered into a recovery program, she should so notify the Pennsylvania Board of Nursing. Once she has shown compliance to the Board's satisfaction and recovers her nursing license, she may then request reinstatement from the I.G. However, her enrollment in a recovery program at this time is not a factor that I may consider in determining whether the I.G. has a basis to exclude Petitioner, nor whether the period of exclusion is reasonable. Other than the aforementioned claim, Petitioner opposes the I.G.'s allegations in no other way. Consequently, I find that the I.G.'s legal and factual claims have been undisputed by Petitioner.

The clear language of the statute is not open to dispute. The Secretary may 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." Section 1128(b)(4)(A) of the Act. There are two aspects to this legal provision. The first requirement, as is pertinent here, is that the individual's or entity's license to provide health care be revoked or suspended by any State licensing authority. The evidence in this case shows this to be a fact, and Petitioner does not question it. The second requirement is that the suspension or revocation be for reasons bearing on professional competence, professional performance, or financial integrity. This is amply evident from the "Proposed Adjudication and Order" issued by the hearing examiner on June 27, 2000, and adopted by the Pennsylvania State Board of Nursing on September 29, 2000.

In view of the foregoing, I conclude that Petitioner's license to provide health care in the State of Pennsylvania was suspended for reasons bearing on her professional competence or professional integrity.

2. The length of the exclusion is not unreasonable.

The Pennsylvania State Board of Nursing revoked Stacey K. Clayton's license to practice nursing. 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 (1997) at 3. That section requires that Petitioner be excluded for a period no less than the period during which her license 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.

JUDGE
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Jose A. Anglada

Administrative Law Judge

 

CASE | DECISION | JUDGE