SUBJECT:

James Linton,

Petitioner,

The Inspector General.

DECISION

I sustain the determination of the Inspector General (I.G.) to exclude Petitioner, James Linton, from participating in Medicare and other federally funded health care programs until Petitioner's certification as a nursing assistant is restored in the State of California.

I. Background

On February 28, 2006, the I.G. notified Petitioner that he was excluded from participating in Medicare and other federally funded health care programs, pursuant to the provisions of section 1128(b)(4) of the Social Security Act (Act). The I.G. advised Petitioner that his exclusion would be coterminous with his loss of certification in the State of California to provide care as a nursing assistant.

Petitioner requested a hearing and the case was assigned to me for a hearing. I held a pre-hearing conference at which I established a schedule for the parties to file written submissions including briefs and proposed exhibits. ⁽¹⁾ The I.G. then submitted a brief and three proposed exhibits (I.G. Ex. 1 - I.G. Ex. 3). Petitioner filed no response.

I sent an order to show cause to Petitioner directing Petitioner to explain his failure to file a response to the I.G.'s submission. I received no response to the order to show cause.

I am admitting into the record of this case I.G. Ex. 1 - I.G. Ex. 3 in the absence of any opposition from Petitioner.

II. Issues, findings of fact and conclusions of law

It would be appropriate for me to dismiss Petitioner's hearing request in light of his failure to reply to the I.G.'s submission and his failure also to reply to my order to show cause. However, I am electing to issue a decision on the merits given that the I.G. has presented evidence that supports his determination to exclude Petitioner. I consider the arguments that Petitioner made in his hearing request as if they were submitted by him in a brief and I address them, below.

A. Issue

The issue in this case is whether a basis exists for the I.G. to exclude Petitioner pursuant to the provisions of section 1128(b)(4) of the Act for a period that is coterminous with that of Petitioner's loss of his certification as a nursing assistant in the State of California.

B. Findings of fact and conclusions of law

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

Section 1128(b)(4) of the Act states in relevant part that the Secretary of the United States Department of Health and Human Services (or his delegate, the I.G.) may exclude from participating in Medicare or a State health care program any individual:

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 . . . professional competence, professional performance, or financial integrity, . . . .

Act, section 1128(b)(4)(A).

Petitioner's license to work in California as a nursing assistant was revoked by a California State agency based on findings relating to Petitioner's financial integrity. That authorizes the I.G. to exclude him pursuant to section 1128(b)(4).

The undisputed facts of this case are that, on June 9, 2005, the State of California Health and Human Services Agency, Department of Health Services, determined to immediately revoke Petitioner's certification as a nursing assistant in California. I.G. Ex. 3, at 1. The rationale that this agency gave to Petitioner was that he was found guilty of professional misconduct when he consciously forged a check, in the amount of $250.00, that belonged to a nursing home resident. Id.; see I.G. Ex. 2. Petitioner was advised that he had a right to a hearing at which he could contest the determination. Id. There is no evidence of record that Petitioner requested a hearing or that one was held.

Petitioner held a license to practice health care in California. The Act does not define the term "license to provide health care." It is apparent, however, that Petitioner's certification to work as a nursing assistant in California was a license to provide health care in that State. Petitioner's certification was a prerequisite for him to work in a State-regulated health care industry (nursing care) subject to his meeting certain criteria and qualifications. Absent this certification, Petitioner is not permitted by California law to work as a nursing assistant. Cal. Health & Safety Code, � 1337.2(e) (2006). Administrative law judges of the Departmental Appeals Board have held previously that certification as a nursing assistant is a "license to provide health care" under section 1128(b)(4) of the Act. Owen C. Gore, DAB CR1070 (2003).

Petitioner's license to provide health care in California was revoked by a State agency. I.G. Ex. 3. The reason for that revocation - that Petitioner consciously forged a nursing facility resident's check - obviously bears on his financial integrity.

In his hearing request, Petitioner argues that he was accused falsely of forging a resident's check, that the check was, in fact, a gift to him from a resident, and that he was wrongfully terminated from his job as a result of the false accusation of check forging. Petitioner asserts in effect that he is guilty of no wrongdoing and that there was no legitimate basis for the State of California to revoke his nursing assistant certification. This argument is not relevant to the issue of the I.G.'s authority to exclude Petitioner. The I.G.'s authority in this case derives from the act of license revocation taken by a California State agency and not from the underlying conduct on which the revocation decision was based. In this case the State agency revoked Petitioner's license to provide health care for one of the reasons stated at section 1128(b)(4)(A) of the Act. That is all that the I.G. needs in order to exclude Petitioner. ⁽²⁾

2. The I.G. is authorized to exclude Petitioner for a period that is coterminous with the revocation of his certification as a nursing assistant in California.

The I.G. excluded Petitioner until he regains his certification as a nursing assistant in California. I.G. Ex. 1, at 1. The coterminous exclusion that the I.G. imposed is consistent, both with the requirements of the Act, and with implementing regulations. Act, section 1128(c)(3)(E); 42 C.F.R. � 1001.501(b)(1).

Steven T. Kessel

Administrative Law Judge

1. During the pre-hearing conference, I also advised the parties that either of them could request to present testimony in person.

2. The appropriate forum to challenge the basis for Petitioner's license revocation would be before the State agency that revoked the license or in whatever appellate process that ensues from that.