SUBJECT:

Varinia Elizabeth Hernandez,

Petitioner,

The Inspector General.

DECISION

This case is before me pursuant to a request for hearing filed by Varinia Elizabeth Hernández (Petitioner) on July 25, 2005. Social Security Act (Act), section 1128(f); 42 C.F.R. � 1005.2.

By letter dated June 30, 2005, the Inspector General (I.G.) notified Petitioner that she was being excluded from participating in the Medicare, Medicaid, and all other federal health care programs as defined in section 1128B(f) of the Act. Administrative Law Judge (ALJ) Exhibit (Ex.) 1. ⁽¹⁾ The I.G. further informed Petitioner that the exclusion was based on section 1128(b)(4) of the Act, and that it was related to the revocation, suspension, or loss of her license to practice medicine or provide health care in the State of California for reasons bearing on her professional competence, professional performance, or financial integrity. The I.G. also stated that the exclusion would be in effect as long as Petitioner's license to provide health care in California remained revoked.

The I.G. is represented in this case by the Office of Counsel. Although advised of her right to representation, Petitioner elected to appear on her own behalf. The parties agreed that this matter could be decided based on written arguments and documentary evidence, and that an in-person hearing was unnecessary. The I.G. submitted a memorandum of law, accompanied by two proposed exhibits. These have been identified as I.G. Exs. 1, 2. Petitioner submitted written arguments in the form of a letter dated October 20, 2005. However, she submitted no documentary evidence in support of her contentions. The I.G. did not file a reply to Petitioner's arguments contained in the October 20, 2005 letter.

It is my decision to sustain the determination of the I.G. to exclude Petitioner, Varinia Elizabeth Hernández, 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 as a Certified Nurse Assistant (CNA) in the State of California. 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 California Department of Human Services (California DHS) revoked Petitioner's license to provide health care as a CNA 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.

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, if the basis for Petitioner's exclusion exists, Petitioner must be excluded until her license to practice health care is reinstated by the State of California.

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 a "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 the individual's or entity'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.

1. Petitioner was licensed by the State of California to provide health care as a CNA. I.G. Ex. 1.

2. On December 28, 2004, the California DHS revoked Petitioner's CNA license. Id.

3. The California DHS revoked Petitioner's CNA license based on findings that she engaged in acts of unprofessional conduct by abusing a female resident at the Lone Tree Convalescent Hospital in Antioch, California. Id.

4. As a result of an investigation conducted on December 1, 2004, it was determined that Petitioner roughly handled an elderly female during a transfer from the bed to a wheelchair, and caused a skin tear on her right arm. I.G. Ex. 2.

5. Section 1128(b)(4)(A) of the Act authorizes the I.G. to exclude an individual from participation in the Medicare, Medicaid, and all other federal health care programs as defined in section 1128B(f) of the Act, whose license has been revoked or suspended by any State licensing authority for reasons bearing on the individual's professional competence, professional performance, or financial integrity.

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

7. The I.G. was authorized to exclude Petitioner pursuant to section 1128(b)(4) of the Act because the revocation of Petitioner's license was for reasons bearing on her professional competence, professional performance, or financial integrity.

8. Where an exclusion is 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. Act, section 1128(c)(3)(E).

9. When an exclusion is imposed pursuant to section 1128(b)(4) of the Act and the period of exclusion is coterminous with the revocation, suspension, or surrender of a State license, no issue of reasonableness with regard to the length of the exclusion exists.

10. Section 1128(b) of the Act authorizes the Secretary to bar excluded individuals from receiving payment for services that would otherwise be reimbursable under Medicare, Medicaid, or all other federal health care programs.

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

Petitioner is a CNA who was licensed to provide health care in the State of California. On October 13, 2004, the California DHS received a complaint regarding an incident which took place at the Lone Tree Convalescent Hospital in Antioch, California. The complaint alleged that Petitioner roughly handled a female resident on July 24, 2004, while transferring her from the bed to a wheelchair. I.G. Ex. 2. Pursuant to an investigation conducted on December 1, 2004, it was determined that Petitioner hastily transferred the resident in anger and in the process caused a tear in her right arm. I.G. Ex. 2, at 5. The investigator relied on the statements of two witnesses who were present at the time of the incident giving rise to the disciplinary action. I.G. Ex. 2. During the course of the investigation, Petitioner excused her actions by stating that she was upset that she had to transfer the resident repeatedly while trying to do her charting. Petitioner now contends that, although she was stressed due to the number of residents entrusted to her care and that the resident in question requested frequent transfers, the skin tear occurred accidentally when the resident's arm got caught on Petitioner's watch.

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." Act, section 1128(b)(4)(A). There are two requirements which must be met under this legal provision. The first requirement, which 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 dispute it. ⁽²⁾ The second requirement is that the suspension or revocation be for reasons bearing on professional competence, professional performance, or financial integrity. The December 28, 2004 revocation notice issued by the California DHS informed Petitioner that the revocation action was being taken based on the findings of an investigation regarding alleged patient abuse. Specifically the California DHS determined that, on or about July 24, 2004, a female patient was abused by Petitioner, which resulted in a skin tear, when Petitioner angrily transferred the patient to a wheelchair from the resident's bed. I.G. Ex. 1, at 1.

In order to consider whether Petitioner's license was revoked for reasons bearing on her professional competence, professional performance, or financial integrity, I must take the record of the revocation proceedings as I find it. The law does not permit me to look behind the State revocation proceedings and re-adjudicate the matter. It has been held that collateral attacks on the actions of State licensing proceedings are not permitted in the context of an exclusion proceeding under section 1128(b)(4) of the Act. Mary E. Groten, DAB CR518, at 6 (1998); Milan Kovar, M.D., DAB CR550, at 4 (1998). Thus, I cannot consider Petitioner's argument that the injury to the resident was purely an accidental occurrence unrelated to her professional performance or competence. The State has already considered the matter and determined that the injury resulted from Petitioner's displeasure with the resident and the demands of her work. Inasmuch as the revocation of Petitioner's CNA license was for reasons bearing on her professional competence, professional performance, or financial integrity, I conclude that there was a basis for the I.G.'s exclusion action.

I note that Petitioner pleads for a second chance in order that she may work again as a CNA. However, it is beyond my authority to grant equitable relief. ⁽³⁾

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

2. Petitioner must be excluded until such time as her license to practice health care as a CNA is reinstated by the State of California.

The California DHS revoked Petitioner's license to practice as a CNA. 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). The provision 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 period required by law.

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 period mandated by section 1128(c)(3)(E) of the Act.

José A. Anglada

Administrative Law Judge

1. Inasmuch as the I.G. failed to submit the exclusion letter as an exhibit, I have entered it as an ALJ exhibit motu proprio.

2. Petitioner was entitled to request a hearing to contest the revocation of her license, but she failed to do so.

3. Even if I were able to decide the matter before me in Petitioner's favor, she would not be able to work as a CNA in California because of the revocation of her license by the State licensing authority.