Department of Health and Human Services DEPARTMENTAL APPEALS BOARD Civil Remedies Division |
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IN THE CASE OF | |
James Snow, |
DATE: April 5, 2001 |
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The
Inspector General
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Docket No.C-01-001 Decision No. CR760 |
DECISION | |
I sustain the determination of the Inspector
General (I.G.) to exclude James Snow (Petitioner) from participation in
the Medicare, Medicaid, Maternal and Child Health Services Block Grant and
Block Grants to States for Social Services programs (Medicare programs),
until Petitioner's license to provide health care in the State of Connecticut
is reinstated. I base my decision upon evidence which proves that Petitioner's
nursing license was revoked by the Connecticut Board of Examiners for Nursing
(Board of Examiners) relating to his professional competence, professional
performance, or financial integrity. Additionally I find that, when an exclusion
imposed by the I.G. is concurrent with the remedy imposed by a State licensing
authority, as occurs in this case, there is no issue of reasonableness and
such an exclusion is mandated by law. I. Background By letter dated July 31, 2000, the I.G. notified Petitioner
that he was being excluded from participation in the Medicare programs.
The I.G. explained that Petitioner's exclusion was authorized under section
1128(b)(4) of the Social Security Act (Act) because Petitioner's "license
to practice medicine or provide health care in the State of Connecticut
was revoked, suspended, or otherwise lost or was surrendered while a formal
disciplinary proceeding was pending before the licensing authority for
reasons bearing on [his] professional competence, professional performance,
or financial integrity." Additionally the I.G. advised Petitioner that
his exclusion would "remain in effect as long as [his] license is revoked,
suspended or otherwise lost." By letter dated September 28, 2000, Petitioner requested
a hearing and 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 two proposed exhibits (I.G. Ex. 1- Ex. 2). Petitioner submitted a response brief and one proposed exhibit (P. Ex. 1). In the absence of objection, I am admitting I.G. Ex. 1, Ex. 2, and P. Ex. 1 into evidence. In this decision, I refer to the I.G.'s Brief, Petitioner's Brief and I.G.'s Reply as I.G. Br., P. Br., and I.G. R. Br., respectively. I base my decision in this case on these exhibits, the applicable law, and the arguments of the parties. II. Applicable Law Pursuant to section 1128(b)(4) of the Act, the I.G. may exclude -
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 the 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). 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 minimum required
by law. III. Findings of Fact and
Conclusions of Law 1. Petitioner was issued a registered nurse license, Number
E57134, by the State of Connecticut, on August 5, 1994. I.G. Ex. 1 at
2. 2. At all times relevant to this case until March 15,
2000, Petitioner was licensed as a registered nurse in the State of Connecticut.
I.G. Ex. 1 at 2. 3. The Statement of Charges alleged that Petitioner violated
certain provisions of Chapter 378 of the General Statutes of Connecticut.
On January 6, 1999, based on these allegations the Board of Examiners
found that "the continued practice of nursing by [Petitioner] presented
a clear and immediate danger to public health and safety," and summarily
suspended Petitioner's license pending a final determination. I.G. Ex.
1 at 1. 4. A hearing concerning the allegations against Petitioner
took place on October 20, 1999. Petitioner, who was not present, was represented
by counsel at the hearing. I.G. Ex. 1 at 2. 5. Based on the testimony given and the exhibits offered into evidence, the Board of Examiners made findings of fact that -- * * *
I.G. Ex. 1 at 2. 6. The Board of Examiners concluded that "[Petitioner's]
abuse of controlled substances does and/or may affect his practice as
a registered nurse." I.G. Ex. 1 at 2. 7. The Board of Examiners concluded that Petitioner's
registered nurse license was subject to disciplinary action pursuant to
sections 19a-17 and 20-99 of the General Statutes of Connecticut. I.G.
Ex. 1 at 4. 8. Petitioner admitted the allegations in paragraphs one through six of the Statement of Charges that he --
9. On March 15, 2000, the Board of Examiners executed
a Memorandum of Decision revoking Petitioner's registered nurse license.
I.G. Ex. 1 at 4. 10. The totality of the circumstances outlined by the
I.G. and as found by the Board of Examiners including drug abuse or [use]
to excess of a controlled substance, diversion of controlled substances,
and falsification of one or more hospital records is sufficient to conclude
that the revocation of Petitioner's [registered] nurse's license was for
reasons bearing on his professional performance authorizing his exclusion
under section 1128(b)(4) of the Act. Tracey Gates, R.N., DAB No.
1768 (2001). 11. The revocation by the Board of Examiners of Petitioner's
license to provide health care is consistent with the requirements of
section 1128(b)(4) of the Act. 12. Petitioner was notified by the I.G. of his indefinite
exclusion from participation in Medicare, Medicaid and all Federal health
care programs on July 31, 2000, pursuant to section 1128(b)(4) of the
Act. I.G. Ex. 2. 13. Pursuant to section 1128(b)(4), the I.G. may exclude
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14. Petitioner's exclusion is controlled
by the anti-fraud and abuse provisions of the Health Insurance Portability
and Accountability Act of 1996 (HIPAA). Pub. L. 104-191 (104th Congress,
2nd Session); 110 Stat. 1978, Title II, Secs. 201, 211 213, 218; 42 U.S.C.A.
�� 1320a-7; 142 Cong. Record H9490 (enacted August 21, 1996). 15. Pursuant to section 1128(c)(3)(E) of the Act, as amended
by section 212 of Pub. L. 104-191, the length of an exclusion under 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 the entity is excluded or suspended from a Federal
or State health care program." 16. The I.G. has no discretion to impose an exclusion
against Petitioner that is shorter than the period during which Petitioner's
license to provide health care is revoked, suspended or surrendered. Act,
section 1128(c)(3)(E). IV. Petitioner's Contentions Petitioner does not dispute that his registered nurse's
license was revoked by the Board of Examiners, or that the revocation
is within the scope of section 1128(b)(4). Rather, he contests the I.G.'s
assertion that such revocation occurred for reasons bearing on his professional
performance, professional competence or financial integrity. Petitioner argues that the I.G.'s decision to exclude
him for reasons bearing on his professional performance is not based on
the facts found by the Board of Examiners. Specifically, Petitioner contends
that because the I.G. exercised a unilateral conclusion that a positive
urine drug test inexorably yields a lack of professional performance,
professional competence or financial integrity with no review of the actual
facts, his constitutional rights of due process have been abrogated. P.
Br. at 4. Petitioner further maintains that even if the Board of Examiners revoked his license for reasons bearing on his professional performance, professional competence or financial integrity, then the length of exclusion should be a permissive exclusion rather than a mandatory exclusion. Id. at 4. Petitioner cites no statute, law or regulation for his theory other than 42 U.S.C. � 1320a-7(b). Petitioner also contends that the IG should weigh mitigating
factors which he asserts outweigh the aggravating factors in the case.
Petitioner cites Garfinkle v. I.G., DAB No. 1527 (1996) to support
the position that the need for his unique training and qualifications
as a registered nurse, a nurse aide and recreation specialist exceeds
the availability of similarly qualified persons in his community. Id.
at 11. Petitioner further asserts that his exclusion violates his due process rights. In this regard, he argues that his exclusion is overly broad, as he is excluded from participating in any role as a health care provider. He requests that his exclusion be specifically limited to his practice as a registered nurse, and not encompass the overall provision of health care services in other capacities. Petitioner asserts that even though he has become registered as a nurse aide (see P. Ex. 1.), he is none-the-less unemployable in the health field under the I.G.'s exclusion. He also contends that his constitutional equal protection rights are violated by the exclusion as compared to a similarly situated person who has never held a license as a health care provider. He asserts that a similarly situated person would not be precluded from obtaining employment in the health care field as a result of a prior substance abuse problem. Petitioner asserts that such broad exclusion, as implemented by the I.G., makes it impossible for him to obtain employment in the health care field. Id. at 7. Petitioner also argues that the I.G.'s decision far exceeds
the state imposed exclusion and therefore is a denial of due process.
Id. at 12. He also contends that the factors acted upon by the
Board of Examiners have not reoccurred since 1998, and Petitioner therefore,
requests a revision of his exclusion. Id. at 9. Finally, Petitioner asserts that his exclusion violates
his rights under the Americans with Disabilities Act, in that it wrongfully
discriminates against his disability, the disease of addiction, which
he asserts is currently in remission. Id. at 13. V. Discussion
Petitioner concedes that his registered nurse's license
has been revoked by a State licensing authority within the scope of section
1128(b)(4)of the Act and I find that such has occurred. (P. Br. at 2).
Petitioner, however, misconstrues the I.G.'s authority by characterizing
the duration of the exclusion as permissive as opposed to a mandatory
exclusion. The Act, as amended at section 1128(c)(3)(E), requires that
an individual excluded pursuant to section 1128(b)(4) be excluded for
not less than the period during which the individual's license to provide
health care has been revoked or suspended in any state. It is clear from
the language of the amendment at section 1128(c)(3)(E) of the Act, that
the minimum length of the exclusion must be coterminous with the term
of the revocation or suspension of the State license. In pertinent part,
the Act provides that: Act, section 1128(c)(E). Since Petitioner's registered nurse's license was revoked
in the Commonwealth of Connecticut, the Act requires that the period of
the exclusion will not be less than the period during which his license
to provide health care in the Commonwealth of Connecticut is revoked.
Petitioner is required to obtain from the Board of Examiners authority
the same type of license that such officials revoked before he can be
considered for reinstatement as a participant in the Medicare program.
Gates. While Petitioner claims that his registered nurse's license
was not revoked for reasons bearing on his professional performance or
professional competence, I do not find his argument persuasive or supported
by the evidence. I find that the record has established that Petitioner's
license was revoked as the result of his substance abuse problems and
that those problems had an impact on his professional competence and professional
performance. An examination of the chronology of events associated with
the Board's revocation of Petitioner's nursing license underscores the
conclusion that his license was revoked because his substance abuse unfavorably
impacted his professional competence and performance. On December 6, 1998,
Petitioner submitted a urine specimen which tested positive for the presence
of Tylox, a controlled substance. On January 6, 1999, Petitioner was notified
by the Board of Examiners that his license was summarily suspended pending
a final determination of the charges that his conduct presented a clear
and immediate danger to the public health and safety. I.G. Ex. 1 at 1.
On October 20, 1999, a hearing was held by the Board of Examiners in which
Petitioner's positive urine screening results were deemed conclusive evidence
of his abuse of the controlled substance of Tylox . The Board of Examiners
also concluded that Petitioner admitted that he failed to complete medical
records or falsified medical records. The Board of Examiners further found
that Petitioner's abuse of the controlled substance may affect his practice
as a registered nurse. Based upon these findings of fact and conclusions
of law, the Board of Examiners revoked Petitioner's registered nurse's
license, effective March 15, 2000. Id. at 4. This chronology clearly
demonstrates that Petitioner's substance abuse was the basis for the license
revocation proceeding and that in light of such abuse, the Board of Examiners
found that Petitioner's professional competence and performance were undermined. Petitioner is in fact mistaken in his claim that the Board of Examiners did not find his professional performance or professional competence to have been impaired. The basis of the Board's action, as cited in its March 15, 2000 Order, was sections 19a-17 and 20-99 of the General Statutes of Connecticut, which provides in relevant part --
As such authority was cited by the Board of Examiners
as the basis for its action, it is clear that Petitioner's substance abuse
was found to bear upon his professional competence and performance. Prior
administrative decisions support the conclusion that substance abuse,
like Petitioner's, impacts unfavorably on an individual's professional
competence and professional performance, thereby establishing a basis
for exclusion under section 1128(b)(4) of the Act. Roy Cosby Stark,
DAB CR676, aff'd, DAB No. 1746 (2000), Tracey. Indeed, even
in the absence of a long-standing history of substance abuse, it has been
held that infrequent, occasional, or even one-time drug usage impacts
an individual's professional competence or professional performance. Stark,
at 10. Based upon such authority, I find that the I.G. properly excluded Petitioner, and that Petitioner's exclusion will remain effective until he obtains the same type of license in Connecticut that was previously revoked by the Board of Examiners.
Petitioner asserts that his constitutional rights of equal
protection and due process, as well as, his rights under the Americans
with Disabilities Act have been violated by his exclusion. He argues that
his exclusion is overly broad, with the effect that his employment in
any health care field has been precluded. I do not have the authority
to decide these issues. It is clear that administrative law judges are
limited in the types of claims that they may adjudicate. See 42
C.F.R. � 1005.4(c)(1) and (5). Administrative law judges have no statutory
or regulatory authority to find invalid or refuse to follow federal statutes
or regulations. Wayne E. Imber, M.D., DAB CR661, aff'd,
DAB No. 1740 (2000) (administrative law judges do not have authority to
declare federal statutes unconstitutional). As a result of these explicit jurisdictional prohibitions, Administrative Law Judges of the Departmental Appeals Board lack authority to review the constitutionality of statutes, as well as, decide claims arising under other federal statutes such as the Americans with Disabilities Act. Petitioner may not use the administrative appeals process set forth at 42 C.F.R. Part 1005 et seq. to obtain redress for both his alleged constitutional and federal statutory harms. See Serban I. Cocioba, M.D., DAB CR654 (2000) (finding no jurisdiction to rule on constitutional claims); Morton Markoff, D.O., DAB CR538 (1998) (administrative law judges lack authority to decide constitutional claims); Roberta E. Miller, DAB CR367 (1995) (delegation of authority to administrative law judges to decide exclusion cases does not include the authority to rule on the constitutionality of federal statutes or the I.G.'s actions); Charles Sutherland, D.O., DAB CR561 (1998) (Administrative Law Judge has no authority to decide claim under the Americans with Disabilities Act).
Petitioner's claim for equitable relief consisting of
an exclusion tailored to him so that he may seek employment in the health
care field is not statutorily authorized. Petitioner's contention that
his exclusion from his participation in Medicare programs effectively
deprives him of a livelihood is not pertinent to the resolution of this
appeal. See Farhad Mohebban, M.D., DAB CR686 (2000); Carlos
Rivera-Cruz, DAB CR677 (2000); Arlene Elizabeth Hunter, DAB
CR505 (1997). Moreover, despite the broad effect of exclusion from participation
in Medicare programs as a provider, such is the remedial purpose behind
the I.G.'s exclusion authority. See 42 C.F.R. � 1001.1901; Chander
Kachoria, R.Ph., DAB No. 1380 (1993) (recognizing that although the
economic effects of exclusion on a provider may be adverse, the goal of
exclusion is to protect federal programs by removing untrustworthy providers).
VI. Conclusion I conclude that the I.G. was authorized to exclude Petitioner pursuant to section 1128(b)(4) of the Act. I conclude also that the term of exclusion imposed by the I.G. is mandated by section 1128(c)(3)(E) of the Act. |
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JUDGE | |
Alfonso J. Montano Administrative Law Judge
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