SUBJECT:

William L. O'Boyle, R.N., L.P.N.,

Petitioner,

The Inspector General

DECISION

William L. O'Boyle, R.N., L.P.N. (Petitioner), is excluded from participation in Medicare, Medicaid, and all other Federal health care programs pursuant to section 1128(b)(4) of the Social Security Act (Act) (42 U.S.C. § 1320a-7(b)(4)), effective March 20, 2002, based upon the surrender of his nursing licenses while a formal disciplinary proceeding was pending before the Pennsylvania State licensing authority for reasons bearing on his professional competence, professional performance, or financial integrity. This exclusion remains in effect until Petitioner is granted a nursing license by the Commonwealth of Pennsylvania and Petitioner applies for and is granted reinstatement by the Inspector General (I.G.). The period of exclusion is mandated by statute and there is no issue as to its reasonableness.

I. PROCEDURAL HISTORY

Petitioner was notified of his exclusion by letter dated February 28, 2002. The I.G. cited section 1128(b)(4) of the Act (42 U.S.C. § 1320a-7(b)(4)) as the basis for Petitioner's exclusion. Petitioner appealed the I.G.'s action by letter dated March 7, 2002, arguing that the State disciplinary board proceeding that caused him to surrender his license had nothing to do with his professional competence, professional performance, or financial integrity.

On March 28, 2002, the case was assigned to me for hearing and decision. On April 19, 2002, I conducted a telephonic prehearing conference, the substance of which is memorialized in my order of April 19, 2002. The I.G. filed her brief in support of her exclusion on May 15, 2002, with attached I.G. exhibits (I.G. Exs.) 1 - 3. Petitioner filed his brief in opposition to exclusion on June 12, 2002, with attached Petitioner exhibits (P. Ex.) 1 - 4. The I.G. filed a reply brief on July 1, 2002. Although neither authorized nor requested, Petitioner filed a response to the I.G.'s reply brief on July 11, 2002, with one unmarked exhibit that I have marked as P. Ex. 5. The I.G. has not moved to strike the unauthorized brief and exhibit and they are accepted for filing. The offered exhibits are admitted.

There are no disputed issues of material fact in this case. The only issue is whether the Pennsylvania State proceeding to revoke Petitioner's nursing licenses was a formal disciplinary proceeding that concerned Petitioner's "professional competence, professional performance, or financial integrity" within the meaning of section 1128(b)(4)(B) of the Act (42 U.S.C. § 1320a-7(b)(4)(B)). The issue may be resolved as a matter of law simply by referring to the Pennsylvania statutes. There is no issue regarding the reasonableness of the period of exclusion as it is mandated by section 1128(c)(3)(E) of the Act (42 U.S.C. § 1320a-7(c)(3)(E)). Summary judgment is appropriate and no hearing is necessary in this case for a full and fair disposition.

II. FINDINGS OF FACT

The following findings of fact are based upon the uncontested and undisputed assertions of fact in the parties' pleadings and the exhibits admitted.

1. Petitioner was issued a registered nurse license by the Commonwealth of Pennsylvania on July 21, 2000, which license required renewal on November 1, 2001. I.G. Ex. 2 at 2.

2. Petitioner was issued a practical nurse license by the Commonwealth of Pennsylvania on December 16, 1991. I.G. Ex. 2 at 3.

3. On May 7, 2001, the State Board of Nursing for the Commonwealth of Pennsylvania initiated a formal disciplinary proceeding against Petitioner, pursuant to the Pennsylvania Professional Nursing Law, Act of May 22, 1951, 63 P.S. § 211 et. seq., by ordering Petitioner to show cause why his registered nurse license should not be suspended, revoked, or otherwise restricted. I.G. Ex. 2 at 1, 4, and 8 (a separate proceeding was already pending against Petitioner's practical nurse license and a hearing had been held in November 2000).

4. On July 20 and 23, 2001, Petitioner and his counsel, respectively, signed a Consent Agreement and Order to settle the disciplinary proceedings involving both his registered nurse and practical nurse licenses. I.G. Ex. 3 at 1 and 9.

5. Petitioner admitted and stipulated as fact in paragraphs 5 and 6 of the Consent Agreement and Order that he violated the Pennsylvania Practical Nurse Law, 63 P.S. § 666(a)(6) and the Pennsylvania Professional Nursing Law, 63 P.S. § 224(a)( 2) and (4).

6. The Pennsylvania Practical Nurse Law, 63 P.S. § 666(a)(6) provides:

(a) The board may refuse, suspend or revoke any license in any case where the board shall find, that the licensee

(6) Is addicted to alcohol or is addicted to hallucinogenic or narcotic drugs or other drugs which tend to impair judgment or coordination . . . .

7. The Pennsylvania Professional Nursing Law, 63 P.S. § 224(a)(2) and (4) provide:

(a) The Board may refuse, suspend or revoke any license in any case where the Board shall find that -

(2) The licensee is unable to practice professional nursing with reasonable skill and safety to patients by reason of mental or physical illness or condition or physiological or psychological dependence upon alcohol, hallucinogenic or narcotic drugs or other drugs which tend to impair judgment or coordination . . . .

(4) The licensee has committed fraud or deceit in the practice of nursing, or in securing his or her admission to such practice or nursing school.

8. Petitioner "permanently voluntarily" surrendered both his practical nurse and registered nurse licenses pursuant to paragraphs 7d and 7e of the Consent Agreement and Order. I.G. Ex. 3 at 6.

9. Pursuant to paragraph 8 of the Consent Agreement and Order, Petitioner waived the right to an administrative hearing, to presentation of witnesses and testimony, to cross-examine witnesses, to present evidence in defense or mitigation, to appeal, and such other due process rights accorded by law. I.G. Ex. 3 at 7.

10. In paragraph 13 of the Consent Agreement and Order, Petitioner acknowledged that he understood that any false statements in the agreement subjected him to criminal penalties. I.G. Ex. 3 at 9.

11. The I.G.'s notice to Petitioner dated February 28, 2002, advised Petitioner that the I.G.'s decision to exclude Petitioner was authorized by section 1128(b)(4) of the Act because Petitioner's licenses to practice medicine or provide health care in the State of Pennsylvania were revoked, suspended, or otherwise lost or were 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. I.G. Ex. 1.

12. The I.G.'s notice to Petitioner dated February 28, 2002, advised Petitioner that the I.G. had considered information submitted by Petitioner and his attorney. I.G. Ex. 1.

III. CONCLUSIONS OF LAW

1. Summary judgment is appropriate in this case as there are no material facts in dispute.

2. The disciplinary proceeding initiated against Petitioner's registered nurse license on May 7, 2001, by the State Board of Nursing for the Commonwealth of Pennsylvania, pursuant to the Pennsylvania Professional Nursing Law, Act of May 22, 1951, 63 P.S. § 211 et. seq., was a formal disciplinary proceeding.

3. The disciplinary proceeding against Petitioner by the State Board of Nursing was based on alleged violations of Pennsylvania statutes 66 P.S. §§ 224(a)(2) and (4) and 666(a)(6).

4. The provisions of Pennsylvania statutes 66 P.S. §§ 224(a)(2) and (4) and 666(a)(6) authorize the State Board of Nursing to deny, revoke, or suspend a practical nurse or registered nurse license when the Board finds that a nurse is addicted to alcohol or committed fraud in obtaining a nursing license and is therefore related directly to professional competence or professional performance within the meaning of section 1128(b)(4) of the Act.

5. Petitioner admitted as a condition of the Consent Agreement and Order he signed on July 20, 2001, that he violated the Pennsylvania statutes cited in Conclusion of Law 4 by being addicted to alcohol which, pursuant to the statute, presumptively leads to impairment of judgment or coordination, and that he committed fraud in obtaining his nursing license.

6. Petitioner affirmatively waived his due process rights in connection with the State Board of Nursing proceeding as part of the Consent Agreement and Order.

7. Petitioner is bound by the terms of the Consent Agreement and Order with the State Board of Nursing pursuant to which Petitioner voluntarily permanently surrendered his license.

8. Pursuant to 42 C.F.R. § 1001.2007(d), Petitioner cannot collaterally attack the determination of the State Board of Nursing to accept the permanent voluntary surrender of his licenses pursuant to the provisions of the Consent Agreement and Order.

9. The Pennsylvania State Board of Nursing formal disciplinary action against Petitioner related to his professional competence or professional performance within the meaning of section 1128(b)(4) of the Act.

10. The I.G. exercised her discretion to exclude Petitioner from participation in Medicare, Medicaid, and other Federal health care programs pursuant to the authority of section 1128(b)(4) of the Act based on the Pennsylvania State Board of Nursing's formal disciplinary proceeding, as evidenced by the Board's Order to Show Cause and the Consent Agreement and Order. I.G. Ex. 2 at 2 - 8; I.G. Ex. 3.

11. The I.G. considered information provided by Petitioner and his attorney prior to exercising her discretion.

12. The I.G. acted in accordance with the statutory authority of section 1128(b)(4) of the Act as delegated to her by the Secretary pursuant to 42 C.F.R. § 1001.501 and did not abuse her discretion to so act by excluding Petitioner.

13. The minimum period of exclusion specified by Congress in section 1128(c)(3)(E) of the Act (42 U.S.C. § 1320a-7(c)(3)(E) is not subject to being shortened through any exercise of discretion by the Secretary or his delegee and is not subject to my review.

IV. DISCUSSION

A. APPLICABLE LAW

Pursuant to section 1128(b)(4) of the Act (42 U.S.C. § 1320a-7(b)(4)(A) and (B)) and the Secretary's delegation of authority in 42 C.F.R. § 1001.501, the I.G. has the discretion to exclude any individual or entity from participation in Medicare, Medicaid, and other Federal health programs:

(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 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). The 1996 amendments require, at section 1128(c)(3)(E), that an individual or entity who is excluded under section 1128(b)(4) be excluded for not less than the period during which the individual's or entity's license to provide health care is revoked, suspended, or surrendered. 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 mandated minimum required by law.

Petitioner's right to a hearing by an Administrative Law Judge and a judicial review of the final action of the Secretary is provided by section 1128(f) of the Act (42 U.S.C. § 1320a-7(f)). Petitioner's request for a hearing was timely filed and I do have jurisdiction. However, my review is limited. The period of exclusion is mandated by the Act, thus there is no issue of whether the period of exclusion is reasonable. The Secretary has further limited my scope of review. Pursuant to 42 C.F.R. § 1005.4(c)(5), I may not review the I.G.'s exercise of discretion in deciding whether or not to exclude an individual pursuant to section 1128(b)(4), e.g., I cannot decide whether the I.G. was correct in her decision based on the facts presented and considered by her. The only remaining issue that I may resolve is whether the I.G. abused her discretion in deciding to exclude by exceeding or violating her authority under the Act and the Secretary's regulations. See Wayne E. Imber, M.D., DAB No. 1740 (2000).

The standard of proof is a preponderance of the evidence and there may be no collateral attack of the conviction that is the basis for the exclusion. 42 C.F.R. § 1001.2007(c) and (d). Petitioner bears the burden of proof and persuasion on any affirmative defenses or mitigating factors and the I.G. bears the burden on all other issues. 42 C.F.R. § 1005.15(b) and (c).

B. ISSUE

Whether Petitioner was properly subject to exclusion pursuant to section 1128(b)(4) of the Act because the Pennsylvania State proceeding to revoke Petitioner's nursing licenses was a formal disciplinary proceeding that concerned Petitioner's "professional competence, professional performance, or financial integrity" within the meaning of section 1128(b)(4)(B) of the Act (42 U.S.C. § 1320a-7(b)(4)(B)).

C. ANALYSIS

1. Summary judgment is appropriate.

Summary judgment is appropriate and no hearing is required where either: there are no disputed issues of material fact and the only questions that must be decided involve application of law to the undisputed facts; or, the moving party must prevail as a matter of law even if all disputed facts are resolved in favor of the party against whom the motion is made. A party opposing summary judgment must allege facts which, if true, would refute the facts relied upon by the moving party. See e.g., Fed. R. Civ. P. 56(c); Garden City Medical Clinic, DAB No. 1763 (2001); Everett Rehabilitation and Medical Center, DAB No. 1628, at 2 (1997) (in-person hearing required where non-movant shows there are material facts in dispute that require testimony); see also, New Millennium CMHC, DAB CR672 (2000); New Life Plus Center, DAB CR700 (2000). There are no issues of material fact in dispute in this case.

The only issue in this case for me to resolve involves determining whether the Pennsylvania State proceeding to revoke Petitioner's nursing licenses was a formal disciplinary proceeding that concerned Petitioner's "professional competence, professional performance, or financial integrity" within the meaning of section 1128(b)(4)(B) of the Act - an issue of law. Resolution of this issue turns on the plain language of the Pennsylvania statutes upon which the Pennsylvania State Board of Nursing was acting and that Petitioner admitted violating. No testimony is required as it is not disputed that the State Board convened formal proceedings against Petitioner's licenses, the grounds upon which the Board was proceeding are not disputed, and the terms of the Consent Agreement and Order are clear.

Petitioner has not offered his own affidavit, the affidavit of any other individual, or any evidence that raises an issue of material fact. P. Ex. 1 is an October 3, 2001 I.G. notice letter, which requested that Petitioner respond to the proposal to exclude him pursuant to section 1128(b)(4) of the Act within 30 days. P. Ex. 1 also includes a November 27, 2001 letter by the I.G. acknowledging receipt of the untimely November 26, 2001 letter from Petitioner's counsel, but indicating that the submission would nevertheless be considered in the exclusion action. These documents raise no issues of fact, but indicate the process accorded Petitioner as required by regulation.

P. Ex. 2 is the November 26, 2001 letter from Petitioner's counsel in response to the I.G. notice of proposed exclusion. Counsel argued then, as now, that the Pennsylvania State Board of Nursing proceedings had nothing to do with Petitioner's professional performance, professional competence, or financial integrity. Counsel also submitted a copy of Petitioner's responses to the State Board's Order to Show Cause for the express purpose of showing that Petitioner's counsel "tried to make this point in an Answer to the Pennsylvania Order To Show Cause." P. Ex. 2(a) at 2; P. Ex. 2(b).

Petitioner's answers to the Order to Show Cause are of no relevance now as the stipulated and admitted terms of the Consent Agreement and Order control. Neither counsel's argument nor Petitioner's answers to the Order to Show Cause raise issues of material fact. P. Exs. 3, 4, and 5 are not relevant to the issue of whether the I.G. abused her discretion by violating the statute or regulation in deciding to exclude Petitioner.

Petitioner argues in his Brief in Opposition to Exclusion that there are two additional issues: (1) whether exclusion was appropriate in Petitioner's case; and (2) whether the period of exclusion is reasonable. Petitioner is in error. I have already discussed that my scope of review is limited by regulation and, if I find the I.G. had discretion to exclude, I may not review the exercise of that discretion. Further, the statute allows for no review of the reasonableness of the period of exclusion as it specifies what that period should be. ⁽¹⁾

2. Petitioner was properly excluded pursuant to section 1128(b)(4) of the Act because he surrendered his nursing licenses in order to resolve a pending Pennsylvania State proceeding to revoke his nursing licenses and the State proceeding was a formal disciplinary proceeding that concerned Petitioner's "professional competence, professional performance, or financial integrity" within the meaning of section 1128(b)(4)(B) of the Act.

In this case, Petitioner argues that the I.G. abused her discretion by excluding him pursuant to section 1128(b)(4) of the Act because the surrender of his license was not for reasons bearing on his professional competence, professional performance, or financial integrity, the grounds specified by this section of the Act. If I conclude that Petitioner is correct, then his exclusion was an abuse of discretion because it exceeds the I.G.'s statutory and regulatory authority, assuming no other statutory grounds for exclusion exist. If, on the other hand, I find that the I.G. was correct that the surrender of Petitioner's license was for reasons bearing upon his professional competence, professional performance, or financial integrity, my inquiry is complete and I must affirm the I.G.'s decision to exclude pursuant to section 1128(b)(4) - I may not review further the I.G.'s decision to exclude and there is no issue related to whether the period of exclusion is reasonable. See Wayne E. Imber, M.D., DAB No. 1740.

Petitioner concedes that he was the subject of a disciplinary proceeding against his licenses by the Commonwealth of Pennsylvania and that he surrendered his license while formal disciplinary proceedings were pending against him. Petitioner's Response to the I.G. Reply Brief at 2. Petitioner also does not dispute that I.G. Ex. 3 is a copy of the Consent Agreement and Order or settlement between him and the Commonwealth of Pennsylvania. Petitioner does not dispute that he voluntarily entered the Consent Agreement and Order with the State Nursing Board. Petitioner has not disputed or denied that by executing the Consent Agreement and Order he admitted that he violated Pennsylvania statutes 66 P.S. §§ 224(a)(2) and (4) and 666(a)(6). Petitioner never addresses in his arguments the plain language of the Pennsylvania statutes which he admittedly violated and that I find clearly and directly relate to professional competence and professional performance. The Pennsylvania Practical Nurse Law, 63 P.S. § 666(a)(6) provides:

(a) The board may refuse, suspend or revoke any license in any case where the board shall find, that the licensee

(6) Is addicted to alcohol or is addicted to hallucinogenic or narcotic drugs or other drugs which tend to impair judgment or coordination . . . .

The Pennsylvania Professional Nursing Law, 63 P.S. § 224(a)(2) and (4) provides:

(a) The Board may refuse, suspend or revoke any license in any case where the Board shall find that -

(2) The licensee is unable to practice professional nursing with reasonable skill and safety to patients by reason of mental or physical illness or condition or physiological or psychological dependence upon alcohol, hallucinogenic or narcotic drugs or other drugs which tend to impair judgment or coordination . . . .

(4) The licensee has committed fraud or deceit in the practice of nursing, or in securing his or her admission to such practice or nursing school.

Both sections 666(a)(6) and 224(a)(2) authorize the Board to take a practitioner's nursing license where the individual is addicted to alcohol which impairs judgment or coordination. Section 224(a)(2) further provides for licensing action where "the licensee is unable to practice . . . with reasonable skill and safety to patients" due to alcohol abuse. It is clear based on the plain language of these statutes that they directly relate to professional competence and professional performance, and Petitioner specifically admitted in the Consent Agreement and Order that he violated both.

I conclude that the I.G. could properly find that all elements necessary for an exclusion pursuant to section 1128(b)(4)(B) of the Act were present in this case, i.e., (1) Petitioner surrendered his licenses, (2) while a formal disciplinary proceeding was pending, and (3) the disciplinary proceeding concerned Petitioner's professional competence, professional performance, or financial integrity. Further, it appears that the I.G. accorded Petitioner an opportunity to make submissions for the I.G. to consider prior to deciding to exclude Petitioner as required by 42 C.F.R. § 1001.2001(a). Accordingly, there is no abuse of discretion by the I.G. The exclusion of Petitioner was within the authority granted the Secretary pursuant to section 1128(b)(4), as delegated to the I.G. pursuant to 42 C.F.R. § 1001.501, and it was done consistent with fundamental due process. ⁽²⁾

3. There is no issue related to the reasonableness of the period of exclusion in this case.

Petitioner does not challenge that the minimum exclusion is specified by the Act to be the period during which his licenses are withheld by the State of Pennsylvania. Act section 1128(c)(3)(E). The effective date of Petitioner's exclusion is March 20, 2002, 20 days after the February 28, 2002 I.G. notice of exclusion. 42 C.F.R. § 1005.20(b).

V. CONCLUSION

For the foregoing reasons, Petitioner is excluded from participation in Medicare, Medicaid, and all other Federal health care programs until such time as Petitioner is granted a nursing license by the State of Pennsylvania and Petitioner applies for and is granted reinstatement by the I.G.

Keith W. Sickendick

Administrative Law Judge

1. Counsel for Petitioner acknowledges in the Brief in Opposition to Exclusion, pp. 3 and 20, that he understands that my jurisdiction does not include passing upon Constitutional challenges.

2. Even if I had authority to review the I.G. decision to exclude, Petitioner has submitted no evidence that might have been considered by the I.G. that would rebut the evidence that he admitted alcohol abuse and addiction in violation of the Pennsylvania statutes that raise the presumption that such addiction and abuse effects judgment, coordination, and the ability to practice nursing safely. Furthermore, the impact of alcohol addiction has been recognized on more than one occasion as impacting adversely upon professional competence and professional performance without a showing of actual harm to patients. See e.g., James Snow, DAB CR760 (2001); Tracy Gates, R.N., DAB CR708 (2000); Wilbur D. Hilst, M.D., DAB CR621 (1999). P. Ex. 2 presents the same argument advanced before me that, in essence, Petitioner has never been accused of neglecting or harming a patient. There is no evidence to this effect except the assertions of counsel plus the assertion that Petitioner voluntarily surrendered his license as an expedient to obtaining his Nevada license. The weighty evidence of the Consent Agreement and Order is simply not rebutted. Petitioner is bound by the terms of his agreement with the Pennsylvania State Board of Nursing.