SUBJECT:

Lori E. Miller,

Petitioner,

The Inspector General

DECISION

I sustain the determination of the Inspector General (I.G.) to exclude Lori E. Miller (Petitioner) from participation in Medicare, Medicaid, and all federal health care programs, as defined in section 1128B(f) of the Social Security Act (Act), until Petitioner's license to provide health care in the State of Texas is reinstated. I base my decision upon evidence which proves that Petitioner surrendered her license to practice nursing in the State of Texas while a formal disciplinary proceeding was pending before the Board of Nurse Examiners for the State of Texas, and that the pending proceeding concerned Petitioner's professional competence, professional performance, or financial integrity, within the meaning of section 1128(b)(4)(B) of the Act. Moreover, having concluded that the I.G. is authorized to exclude Petitioner based on the loss of her nursing license, I am required by statute to sustain the I.G.'s determination that Petitioner remain excluded until her license is reinstated by the State of Texas.

I. Background

By letter dated January 31, 2002, the I.G. notified Petitioner that she was being excluded from participation in Medicare, Medicaid, and all federal health care programs. The letter explained that Petitioner's exclusion was authorized under section 1128(b)(4) of the Act because Petitioner's "license to practice medicine or provide health care in the State of Texas was revoked, suspended, or otherwise lost or was surrendered while a formal disciplinary proceeding was pending before the State licensing authority for reasons bearing on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 [her] license is revoked, suspended, or otherwise lost."

By letter dated February 12, 2002, Petitioner requested a hearing before an administrative law judge. 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 five exhibits (I.G. Ex. 1-5). Petitioner submitted a response and 70 exhibits (P. Ex. 1-70). Petitioner did not object to the I.G.'s proposed exhibits. The I.G. objected to all of Petitioner's proposed exhibits, arguing that they are irrelevant. In the absence of objection, I admit into evidence I.G. Ex. 1-5. I have considered the I.G.'s argument that Petitioner's proposed exhibits are irrelevant. I admit P. Ex. 1-70 into evidence over the I.G.'s objection. As discussed more fully below, however, I have considered the I.G.'s arguments in deciding what weight, if any, to give to Petitioner's evidence.

II. Applicable Law

Pursuant to section 1128(b)(4) of the Act, the I.G. may exclude an 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, 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.

III. Analysis

I make the following findings of fact and conclusions of law. My findings and conclusions are set forth as numbered headings in bold type. My legal analysis in reaching each finding and conclusion is set out in the paragraphs which follow each numbered finding.

1. Petitioner surrendered her license to practice nursing while a formal disciplinary proceeding was pending which concerned her professional competence, professional performance, or financial integrity.

By order dated January 29, 2001, the Board of Nurse Examiners for the State of Texas (Texas Nursing Board) accepted the surrender of Petitioner's nursing license. I.G. Ex. 1. The Texas Nursing Board, in issuing its order, made findings of fact which included the following:

[Petitioner], on or about March 13, 2000, . . . lacked the fitness to practice professional nursing as evidenced by her drowsiness, confusion, dry mouth, and lack of focus. [Her] condition may have impaired her ability to make rational, accurate [,] and appropriate assessments, judgments, and decisions regarding patient care, thereby placing the patients in potential danger.

[Petitioner], on or about March 16, 2000, . . . engaged in the intemperate use of Propoxyphene as evidenced by a positive drug screen. Possession of Propoxyphene is prohibited by [the Texas Controlled Substances Act]. The use of Propoxyphene by a Registered Nurse, while subject to call or duty, could impair the nurse's ability to recognize subtle signs, symptoms or changes in the patient's condition and could impair the nurse's ability to make rational, accurate, and appropriate assessments, judgments, and decisions regarding patient care, thereby placing the patient in potential danger.

Id. at 2. Among other things, the Texas Nursing Board concluded that "The evidence received is sufficient cause pursuant [to Texas law], to take disciplinary action against [Petitioner's license], including revocation of [Petitioner's] professional license to practice nursing in the State of Texas." Id. at 3.

The signature page of the order, which Petitioner signed on January 29, 2001, contains the following statement:

I neither admit nor deny the violations alleged herein. By my signature on this Order, I agree to the Findings of Fact, Conclusions of Law, Order, and any conditions of said Order, to avoid further disciplinary action in this matter.

Id. at 5.

On its face, the order issued by the Texas Nursing Board demonstrates that Petitioner surrendered her license to practice nursing to avoid having the Board take formal disciplinary action against that license. It is also clear from the face of the order that the Nursing Board was proceeding against Petitioner's license because it believed that Petitioner had a substance abuse problem. ⁽¹⁾ Indeed, the order recites: "The Board finds that there exists [sic] serious risks to public health and safety as a result of impaired nursing care due to intemperate use of controlled substances or chemical dependency." Id. at 3. For these reasons, there can be no serious debate that Petitioner is subject to exclusion pursuant to section 1128(b)(4)(B) of the Social Security Act. As required by that section, Petitioner surrendered her nursing license while a formal disciplinary proceeding was pending before the Texas Nursing Board. Moreover, the pending proceeding concerned Petitioner's fitness to practice nursing due to concerns about substance abuse or chemical dependency. It is well-settled by decisions of Administrative Law Judges of the Departmental Appeals Board that allegations of substance abuse relate to an individual's professional competence and professional performance, within the meaning of section 1128(b)(4). See, e.g., Tracey Gates, R.N., DAB CR708 (2000), aff'd, DAB No. 1768 (2001); Roy Cosby Stark, DAB CR676, aff'd, DAB No. 1746 (2000) (citing Wilbur D. Hilst, M.D., DAB CR621 (1999)).

Petitioner does not dispute that she surrendered her nursing license, nor that she has experienced substance abuse problems. She contends, however, that she surrendered her license because of chronic health problems unrelated to substance abuse. Petitioner has submitted voluminous evidence which demonstrates that she suffers from a chronic illness which requires long-term pain management. I find fully credible Petitioner's assertion that she made the decision to surrender her license based on considerations related to her medical condition and not because of substance abuse. Unfortunately for Petitioner, the language of section 1128(b)(4)(B) makes clear that Petitioner's reasons for surrendering her license are not relevant to my inquiry. Instead, the only relevant inquiry under the statute concerns the reasons for which the State licensing board sought to take disciplinary action against an individual's license. If the State board took action for reasons bearing on the individual's professional competence, professional performance, or financial integrity, and the individual surrendered the license for any reason, then the I.G. is authorized to proceed with an exclusion. As I have concluded above, in the present case, the Texas Nursing Board instituted proceedings against Petitioner's license based on concerns that Petitioner's abuse of a controlled substance could pose a danger to patients in her care. Regardless of Petitioner's motives in surrendering her license, the Texas Nursing Board's order makes clear that it was proceeding based on concerns related to Petitioner's professional competence and professional performance. This satisfies the requirements of section 1128(b)(4)(B).

2. The I.G. properly excluded Petitioner until her nursing license is reinstated by the Texas Nursing Board.

Section 1128(c)(3)(E) of the Act requires that an individual excluded pursuant to section 1128(b)(4) remain excluded for no less than the period during which the individual's license is revoked, suspended, or surrendered. See also 42 C.F.R. § 1001.501(b)(1); Tracey Gates, DAB No. 1768, at 9. In the present case, the I.G. has excluded Petitioner until she regains her license to practice nursing in Texas. I.G. Ex. 5. This is the minimum period of exclusion prescribed by law. Accordingly, I must conclude that the term of the exclusion is proper.

Petitioner argues, in effect, that her exclusion is permanent because she will never be able to regain her nursing license, due to her chronic illness and her need for long-term pain management. She also represents that she never again intends to practice nursing. She is presently employed in medical research. For these reasons, she contends that I should modify the exclusion to take into consideration her unique circumstances.

I have no authority to set a period of exclusion less than that required by the statute and regulations. Tracey Gates, DAB No. 1768, at 10. While I may sympathize with Petitioner's dilemma, Congress has concluded that the loss or surrender of a license to practice a health care profession under circumstances described in section 1128(b)(4) is evidence of untrustworthiness and, thus, grounds for exclusion to protect federal health care programs and their beneficiaries and recipients. Congress has determined that the licensing authority that took action against the individual's license is in the best position to determine whether or not the reasons for the disciplinary action have been remediated. Therefore, in the present case, Petitioner's representations about her special circumstances would be more appropriately addressed to the Texas Nursing Board.

Similarly, the regulations state that I lack the authority to determine the scope or effect of an exclusion. 42 C.F.R. § 1005.4(c)(5); see also Tracey Gates, DAB No. 1768, at 10. Thus, I am unable to respond to Petitioner's concerns about whether her exclusion will prevent her from continuing to work in the field of medical research. Petitioner must seek advice about the scope of her exclusion from the I.G.

IV. Conclusion

For the reasons stated, I conclude that the I.G. was authorized to exclude Petitioner because she surrendered her license to practice nursing while a formal disciplinary proceeding was pending before the Texas Nursing Board concerning her professional competence or professional performance, within the meaning of section 1128(b)(4)(B) of the Act. Because Petitioner was properly excluded pursuant to section 1128(b)(4)(B), her exclusion must remain in effect until the Texas Nursing Board again grants her a license to practice nursing.

Anne E. Blair

Administrative Law Judge

1. In fact, at the time of the events in question, Petitioner was a participant in the Texas Peer Assistance Program for Nurses (TPAPN), which is a voluntary alternative to board discipline for nurses experiencing problems with substance abuse, dependence, or mental illness. See Letter dated July 17, 2002, to the undersigned Administrative Law Judge, from Terree Wozny, Case Manager Coordinator, and Michael Van Doren, Program Director, both of TPAPN. I admit the July 17, 2002 letter into evidence as Administrative Law Judge (ALJ) Ex. 1.