Department of Health and Human Services DEPARTMENTAL APPEALS BOARD Civil Remedies Division |
|
IN THE CASE OF | |
Brenda Jo Gallagher, |
DATE: November 1, 2001 |
- v - |
|
The
Inspector General
|
Docket No.C-01-616
Decision No. CR834 |
DECISION | |
DECISION I sustain the Inspector General's (I.G.) determination, made pursuant to section 1128(b)(4) of the Social Security Act (Act), to exclude Brenda Jo Gallagher, Petitioner, from participation in Medicare, Medicaid, and all federal health care programs for an indefinite period. I. BackgroundBy letter dated March 30, 2001, the I.G. notified Petitioner
that she was being excluded, pursuant to section 1128(b)(4) of the Act,
from participation in Medicare, Medicaid, and all federal health care
programs because her license to practice medicine in the State of New
Jersey was revoked, suspended, or otherwise lost for reasons bearing on
her professional competence, professional performance, or financial integrity.
Petitioner requested a hearing and the case was assigned to me. I held
a prehearing conference by telephone at which the parties agreed that
the case could be heard and decided based on written submissions. Both
parties submitted briefs (I.G. Br. or P. Br.) accompanied by documentary
evidence, and the I.G. submitted a reply brief (I.G. Reply Br.). The I.G.
filed four exhibits (I.G. Exs. 1 - 4) as part of her submission. Petitioner
filed two exhibits, which I have numbered Petitioner's exhibits 1 and
2 (P. Exs. 1 - 2) to conform to Civil Remedies Division procedures. In
the absence of objection, I receive into evidence I.G. Exs. 1 - 4 and
P. Exs. 1 - 2. The bare facts of this case are not in dispute. Petitioner
was a nurse licensed in the State of New Jersey. She admits to a history
of drug dependence (P. Br. at 2), and the New Jersey Board of Nursing
(State Board) suspended her license twice - in 1991 and 1995 - for serious
misconduct in the charting and administration of controlled dangerous
substances. I.G. Exs. 3, 4. Her offenses included: 1) failing on multiple
occasions to chart the administration of controlled dangerous substances;
2) signing out on multiple occasions controlled dangerous substances in
higher quantities than ordered by a physician; 3) signing out on multiple
occasions controlled dangerous substances after a physician's order had
expired; and 4) diverting controlled dangerous substances for her own
use. Id. On July 16, 1998, she entered into a consent order with
the State Board. Under its terms, her license was reinstated. But, prior
to resuming the practice of nursing, she agreed to complete successfully
a pharmacology/documentation course. She also agreed to provide her employer,
nursing supervisor, and Director of Nursing with copies of the consent
order, advising them of its provisions. She agreed to submit to the State
Board quarterly written reports from her nursing supervisor, and self-evaluation
reports. She was required to comply with all health facility and agency
policies, procedures, and accepted standards of nursing practice, and
to refrain from using all chemical substances, including alcohol, unless
prescribed by a physician for good medical cause. She agreed to report
to the State Board, within 10 days of use, all chemical substances prescribed
and used as an analgesic or anesthetic, and to inform all physicians and
dentists from whom she received medical or dental care about her history
of substance use. I.G. Ex. 2. The consent order was explicit in stating
that any deviation from the terms of the order, without prior written
consent of the Board, constituted a violation of probation and grounds
for new charges to suspend or revoke her license. I.G. Ex. 2 at 2. On September 21, 1998, Petitioner was hired and began
working as a nurse at a nursing home. She had not completed the required
pharmacology course. She did not inform her employer of her probationary
status. She did not report her use of analgesic/anesthetic chemical substances
as required. She did not inform treating physicians of her history of
substance use. On numerous occasions she failed to chart the administration
of controlled dangerous substances. I.G. Ex. 2 at 2 - 3. In response to
these violations of the consent order, the State Board brought charges
against her and, pursuant to another consent order, suspended her license
for an indefinite period of no less than two years. I.G. Ex. 2 at 4. The
language of the State Board's order is harsh:
I.G. Ex. 2 at 1. II. Issue The sole issue before me is whether, based on the loss
of Petitioner's New Jersey nursing license, the I.G. appropriately excluded
Petitioner from participation in Medicare and other federally funded health
care programs. III. 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, in italics, as a separately numbered heading. I discuss each Finding in detail.
The Act authorizes the Secretary to exclude from participation
in any federal health care program(1) an
individual whose license to provide health care has been revoked or suspended
by a State licensing agency for reasons bearing on the individual's professional
competence, professional performance, or financial integrity. Act, section
1128(b)(4)(A). The I.G.'s implementing regulations reiterate the Act's
grant of authority, and provide that the I.G. may exclude an individual
whose license has been suspended or revoked for reasons "bearing on the
individual's . . . professional competence, professional performance or
financial integrity." 42 C.F.R. � 1001.501(a)(1). The parties agree that the State Board suspended Petitioner's
nursing license for reasons bearing on her professional competence and
professional performance. See P. Br. at 1 ("Petitioner does not
dispute the facts set forth in the Inspector General's brief nor the Inspector
General's version of the law."). Petitioner instead challenges, on Constitutional
and equitable grounds, the State Board's actions in suspending her license
for the third time, arguing that she was without counsel and that extenuating
circumstances not related to substance abuse explain and mitigate her
actions. However, the regulations preclude my looking behind the State Board's decision:
42 C.F.R. � 1001.2007(d). The factors I may consider in this proceeding are thus very limited. I am bound by the requirements of the statute and regulations, and I may not review the exercise of the I.G.'s discretion to exclude an individual under section 1128(b) of the Act. Because I find that Petitioner's medical license was revoked for reasons bearing on her professional competence and professional performance, I must sustain the exclusion without regard to Petitioner's Constitutional or equitable arguments. See Milan Kovar, M.D., DAB CR550 (1998).
For a person excluded under section 1128(b)(4), the Act
also requires that the period of exclusion "shall not be less than the
period during which the individual's or entity's license . . . is . .
. revoked, suspended, or surrendered." Act, section 1128(c)(3)(E). I therefore
have no authority to shorten the length of the exclusion period. IV. Conclusion For the reasons stated above, I conclude that the suspension of Petitioner's nursing license related to her professional competence and professional performance. I therefore affirm the I.G.'s determination and find that the I.G. had a basis to exclude Petitioner from participation in Medicare, Medicaid, and any federal health care programs for an indefinite period pursuant to section 1128(b)(4) of the Act. |
|
JUDGE | |
Carolyn Cozad Hughes Administrative Law Judge |
|
FOOTNOTES | |
1. The Act defines a "Federal health care program" in this context to mean "(1) any plan or program that provides health benefits, whether directly, through insurance, or otherwise, which is funded directly, in whole or in part, by the United States Government . . . ; or (2) any State health care program, as defined in section 1128(h). Act, section 1128B(f); see Act, section 1128(b). | |