SUBJECT:

Ramona K. Alexander,

Petitioner,

The Inspector General.

DECISION

I enter summary judgment in favor of the Inspector General (I.G.) sustaining his determination to exclude Petitioner, Ramona K. Alexander, for as long as her license to provide health care in the State of California is revoked.

I. Background

Petitioner worked as a certified nursing assistant (CNA) in the State of California. On December 30, 2004, the I.G. notified Petitioner that she was being excluded from participating in Medicare and other federally funded health care programs. The I.G. advised Petitioner that she was being excluded pursuant to the provisions of section 1128(b)(4) of the Social Security Act (Act) because Petitioner's license to provide health care in California had been revoked, suspended, or otherwise lost, or was surrendered while a formal disciplinary proceeding was pending before the California Department of Health Services, Licensing, and Certification for reasons bearing on Petitioner's professional competence, professional performance or financial integrity.

Petitioner requested a hearing and the case was assigned to me for a hearing and a decision. I held a pre-hearing conference by telephone. On April 29, 2005 I issued a pre-hearing order which established a schedule for the parties to file proposed exhibits and briefs addressing the merits of the case. The I.G. complied with my order by filing a motion for summary judgment on May 20, 2005. Petitioner's deadline for responding to the I.G.'s submission was June 20, 2005. However, Petitioner did not file a response.

On July 6, 2005 I sent an order to show cause to Petitioner directing her either to file a response to the I.G.'s motion or to explain her failure to do so. In this order I advised Petitioner that I might dismiss her hearing request if she failed to respond. I gave Petitioner until July 22, 2005 to respond to the order to show cause. Petitioner filed no response.

The I.G. filed one exhibit in support of his motion. I.G. Ex. 1. Petitioner filed no objection to receiving this exhibit into evidence. Therefore I receive I.G. Ex. 1 into evidence.

II. Issue, findings of fact and conclusions of law

A. Issue

The issue in this case is whether the I.G. is authorized to exclude Petitioner pursuant to section 1128(b)(4) of the Act until such time as Petitioner regains her license to provide health care in California.

B. Findings of fact and conclusions of law.

Petitioner's failure to comply with either my April 29, 2005 pre-hearing order or with the order to show cause provides a basis for me to dismiss her hearing request. I may dismiss a hearing request in the circumstance where a party fails to comply with my orders. 42 C.F.R. � 1005.14(a)(5). I may also dismiss a hearing request on the grounds that a party has abandoned it in circumstances where that party is not actively pursuing his or her case. However, in this case I am opting not to dismiss the hearing request, but to issue a decision on the merits in light of the I.G.'s presentation of prima facie evidence supporting his exclusion determination and Petitioner's failure to offer facts or evidence to rebut the I.G.'s prima facie case.

I make findings of fact and conclusions of law (Findings) to support my decision in this case. I set forth each Finding below, as a separate heading. I discuss each Finding in detail.

1. Summary judgment is appropriate because there are no disputed issues of fact.

Entry of summary judgment is appropriate in this case because there are no disputed issues of fact. The only facts before me are those contained in I.G. Ex. 1. Petitioner has not opted to dispute any of them. ⁽¹⁾

2. The I.G. is authorized to exclude Petitioner pursuant to section 1128(b)(4) of the Act.

Section 1128(b)(4)(a) of the Act authorizes the I.G. to exclude any individual whose license to provide health care has been revoked or suspended by a state licensing authority, or who has otherwise lost his or her license, for reasons bearing on that individual's professional competence, professional performance, or financial integrity. The undisputed facts of this case establish that the California Department of Health, a state licensing agency, revoked Petitioner's CNA certification for reasons bearing on her professional competence and performance. I.G. Ex. 1. Consequently, the I.G. is authorized to exclude Petitioner. It is undisputed that, on September 23, 2003, the California Department of Health Services revoked Petitioner's CNA certification. Id. at 1. The revocation was based on several acts by Petitioner that established a pattern of negligence and unprofessional conduct sufficient to support revocation of Petitioner's certification. Id. There is nothing in the record to show that Petitioner appealed this determination.

3. The length of Petitioner's exclusion is reasonable.

The exclusion that the I.G. imposed in this case is reasonable as a matter of law. The I.G. made Petitioner's exclusion coterminous with her license revocation in California. The Act requires that an exclusion imposed pursuant to section 1128(b)(4) be for a period that is at least coterminous with the revocation, suspension, or loss of the excluded individual's professional license. Act, section 1128(c)(3)(E); see 42 C.F.R. � 1001.501(b)(1).

Steven T. Kessel

Administrative Law Judge

1. I did not envision that I would be ruling on a motion for summary judgment when I issued my initial pre-hearing order. In that order I established a schedule for the parties to make their cases based on written submissions, with each party having the opportunity to ask for an in-person hearing to present testimony that was relevant and not cumulative. This schedule was based on my assumption that, although there might be disputed facts in the case, the parties would nevertheless most likely opt to file written submissions in lieu of requesting a hearing in person. The I.G. opted to style his submission a motion for summary judgment.