CASE | DECISION | JUDGE | FOOTNOTES

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


SUBJECT:

Patricia Gilpin,

Petitioner,

DATE: July 1, 2002
                                          
             - v -

 

The Inspector General

 

Docket No.C-02-049
Decision No. CR925
DECISION
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DECISION

This case is before me pursuant to a request for hearing filed by Patricia Gilpin (Petitioner), on October 10, 2001, in accordance with the Social Security Act (Act), section 1128(f), and 42 C.F.R. § 1005.2.

By letter dated September 28, 2001, 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.) 2. 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 Virginia for reasons bearing on her professional competence, professional performance, or financial integrity. And, Petitioner was informed, the exclusion would be in effect as long as her license to practice nursing in the Commonwealth of Virginia remained revoked.

The I.G. is represented in this case by the Office of Counsel. Petitioner was advised of her right to retain counsel, but she represented herself in this proceeding. On January 8, 2002, I convened a telephone prehearing conference during which the parties agreed that an in-person hearing was not required and that the issues could be resolved by summary judgment. Consequently, I issued an Order on January 18, 2002 establishing briefing deadlines.

Pursuant to that Order, the I.G. timely filed her brief on February 7, 2002. The I.G. submitted a memorandum of law accompanied by three proposed exhibits. These have been identified as I.G. Exs. 1 - 3. Petitioner submitted undated arguments in the form of Findings of Fact, which was received on April 29, 2002. Petitioner submitted no exhibits with its proposed Findings of Fact. (1)

It is my decision to sustain the determination of the I.G. to exclude Petitioner from participating in 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 Commonwealth of Virginia. 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 Virginia 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.

Issue

Whether the I.G. had a basis upon which to exclude Petitioner from participating in Medicare, Medicaid, and all other federal health care programs.

Applicable Law and Regulations

Under section 1128(b) of the Act, the Secretary of The United States Department 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 Commonwealth of Virginia to practice nursing within the scope of section 1128(b)(4) of the Act. I.G. Ex. 1.

2. Petitioner's nurse aid certificate expired on January 31, 2001, when she failed to renew. I.G. Ex. 1.

3. On March 19, 2001, a formal hearing was held before the Virginia Board of Nursing regarding Petitioner's alleged acts of professional misconduct involving patient abuse, negligent practices and endangerment of the health and welfare of patients in violation of §§ 54.1-3307(2), (5), and (8) of the Code of Virginia and 18 VAC 90-20-360(2)(e) of the Board of Nursing Regulations. I.G. Ex. 1.

4. After a hearing, the Virginia Board of Nursing ordered that Petitioner's right to renew her license be revoked effective March 30, 2001. The Board further ordered that a finding of abuse be entered against Petitioner in the Virginia Nurse's Aid Registry, pursuant to 42 C.F.R. § 483.13(c)(1)(ii)(B) and 42 C.F.R. § 483.156(c)(1)(iv)(D). I.G. Ex. 1.

5. On September 28, 2001, 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. I.G. Ex. 2.

6. The revocation of Petitioner's nurse's aid certificate relates to her professional competence and professional performance pursuant to section 1128(b)(4) of the Act.

7. 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).

8. 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 Virginia State Board of Nursing for reasons bearing on her professional competence and professional performance.

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

Discussion

The sole issue in this case is whether the I.G. had a basis for excluding Petitioner. Petitioner was licensed to practice nursing and provide health care in the Commonwealth of Virginia. On March 30, 2001, after conducting an evidentiary hearing, the Virginia Board of Nursing determined that Petitioner violated §§ 54.1-3307(2), (5) and (8) of the Code of Virginia and 18 VAC 90-20-360(2)(e) of the Board of Nursing regulations and ordered that Petitioner's right to renew her certificate be revoked effective March 30, 2001. The Board also ordered that a finding of abuse be entered against Petitioner in the Virginia Nurse's Aid Registry, pursuant to 42 C.F.R. § 483.13(c)(1)(ii)(B) and 42 C.F.R. § 483.156(c)(i)(iv)(D). The revocation action by the Board has not been appealed and has become final. Additionally, Petitioner's nurse's aid certificate has not been reinstated.

By letter dated September 28, 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 Commonwealth of Virginia 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 innocent of the charges leveled against her before the Virginia Board of Nursing and that she did not appear at her revocation hearing because she did not receive a notice. I.G. Ex. 3. However, the law does not allow me to readjudicate the issues that were before the Virginia Board of Nursing, nor may I consider the issue of adequate notice. In her proposed Findings, Petitioner argues that she was in Florida when the Virginia Board of Nursing reviewed her case. Presumably, Petitioner wants me to infer that the revocation action was issued when the Board was unable to exercise jurisdiction over her. The argument is misplaced. Petitioner's physical presence in the Commonwealth of Virginia or domiciliary status is not relevant to the Board's findings of abuse, professional incompetence, or unprofessional performance. 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. There is ample evidence from the decision issued by the Virginia Board Nursing on March 30, 2001 to fulfill the second requirement.

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

Finally, the Virginia State Board of Nursing revoked Petitioner'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 at 3(1997). 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

FOOTNOTES
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1. Petitioner sent a letter to the Civil Remedies Division on January 6, 2002, addressed to "whom it may concern," and attached five letters of reference. These letters might have been proper for consideration by the Virginia Board of Nursing but are not relevant in these proceedings. Nonetheless, I will preserve those documents and enter them into the record as Administrative Law Judge exhibits 1-5 (ALJ Exs. 1-5).

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