Department of Health and Human Services DEPARTMENTAL APPEALS BOARD Civil Remedies Division |
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IN THE CASE OF | |
Stacey K. Clayton, a/k/a, Stacey K. Dudek, |
DATE: December 14, 2001 |
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The
Inspector General
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Docket No.C-01-591 Decision No. CR847 |
DECISION | |
DECISION This case is before me pursuant to a request for hearing
filed by Stacey K. Clayton, (Petitioner) on April 13, 2001. Social Security
Act (Act), Section 1128(f), 42 C. F. R. � 1005.2. By letter dated March 30, 2001, the Inspector General
(I.G.) notified Petitioner that she was being excluded from participating
in the Medicare, Medicaid, and all federal Health care programs as defined
in section 1128B(f) of the Act. I.G. Exhibit (Ex.) 1. The I.G. further
informed Petitioner that the exclusion was based on section 1128(b)(4)
of the Act, in view of the revocation, suspension, or loss of her license
to practice medicine or provide health care in the State of Pennsylvania
for reasons bearing on her professional competence, professional performance,
or financial integrity. The exclusion would be in effect as long as her
license to practice nursing in the state of Pennsylvania remained revoked. The I.G. is represented in this case by the Office of
Counsel. Petitioner filed the request for hearing on her own behalf. I
scheduled a prehearing conference to take place on June 19, 2001, at 10:30
a.m., to be conducted by telephone. The Petitioner was advised to provide
the Civil Remedies Division with a telephone number at least five days
before the call. In view of Petitioner's failure to provide a telephone
number as requested, the prehearing conference did not take place. I determined that this matter could be decided based on
written arguments and documentary evidence, and that an evidentiary hearing
was unnecessary. Consequently, I issued an Order on July 12, 2001, establishing
briefing deadlines. Pursuant to that Order the I.G. timely filed its brief
on August 13, 2001. Petitioner did not submit its brief that was due on
September 12, 2001. I have, therefore, closed the record in this case
and proceeded to the issuance of a decision. The I.G. submitted a memorandum of law accompanied by
three proposed exhibits. These have been identified as I.G. exhibits (Exs.)
1 - 3. Petitioner submitted no written arguments or documentary evidence
in support of her contentions. The extent of her arguments are contained
in the request for hearing. On November 5, 2001, I served notice on Petitioner
that although she had been granted until September 12, 2001 to respond
to the I.G.'s motion for summary affirmance, she had failed to do so.
I further advised her that I was closing the record and proceeding to
the issuance of a decision in this case. It is my decision to sustain the determination of the
I.G. to exclude Petitioner, Stacey K. Clayton, 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 nursing
or provide health care in the State of Pennsylvania. 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 State Board of Nursing
of Pennsylvania revoked Petitioner's license to practice nursing 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.
Issues 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 the length of the exclusion imposed and directed against Petitioner by the I.G. is unreasonable.
Applicable Law and Regulations 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 "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 that individual'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.
Findings of Fact and Conclusions of Law 1. Petitioner was licensed by the State of Pennsylvania
to practice nursing. I.G. Ex. 3 at 7. 2. On April 7, 1999, the Commonwealth of Pennsylvania,
Bureau of Professional and Occupational Affairs, filed an order to show
cause, charging that Petitioner was subject to disciplinary action under
section 16(a)(6) of the Pennsylvania Practical Nurse law, Act of March
2, 1956, P. L. 1211, as amended, 63 P. S. �� 652 et. seq,. at
P. S. � 666(a)(6) in that she was "addicted to alcohol and hallucinogenic
or narcotic drugs or other drugs that tend to impair judgment or coordination."
I.G. Ex. 3 at 6. 3. The Commonwealth charged in its order to show cause
that Petitioner was unable to practice professional nursing with reasonable
skill and safety to patients by reason of her dependence on alcohol and
drugs that tend to impair her judgment and coordination. I.G. Ex. 3 at
11-12. 4. The charge and order to show cause were brought as
a result of Petitioner's violation of the requirements of the Voluntary
Recovery Program (VRP) for impaired health care practitioners administered
by the Professional Health Monitoring Program (PHMP) of the Pennsylvania
Bureau of Professional and Occupational Affairs. I.G. Ex. 3 at 9, 11-12. 5. On July 30, 1999, a formal administrative hearing was
held on the Commonwealth's order to show cause before a hearing examiner
for the Pennsylvania Bureau of Professional and Occupational Affairs.
I.G. Ex. 3 at 7. 6. On June 27, 2000, the hearing examiner issued a "proposed
Adjudication and Order" wherein she found that Petitioner had violated
the requirements of the VRP by failing to submit to random urine screens,
failing to furnish PHMP monthly documentation of her attendance at support
group meetings, failing to furnish PHMP 60-day interval progress reports
from a continuing care provider, and failing to notify PHMP of her new
address. I.G. Ex. 3 at 9. 7. In the "Proposed Adjudication and Order" the hearing
examiner concluded as a matter of law that Petitioner was subject to disciplinary
action under section 16(a)(6) of the Practical Nurse Law, Act of March
2, 1956, P.L. 1211, as amended, at 63 P.S. � 666(a)(6), because Petitioner
was still "addicted to alcohol and hallucinogenic or narcotic drugs or
other drugs that tend to impair judgment or coordination." I.G. Ex. 3
at10. 8. As a result of the findings of fact and conclusions
of law, the hearing examiner ordered that Petitioner's license be indefinitely
suspended until she presented to the Board documented evidence from both
the PHMP and the Virginia Board of Nursing peer assistance group that
she had three years of sustained recovery from chemical dependency. I.G.
Ex. 3 at 15. 9. On September 29, 2000, the Pennsylvania State Board
of Nursing adopted the "Proposed Adjudication and Order" of the hearing
examiner and ordered that Petitioner immediately cease practicing professional
nursing. I.G. Ex. 3 at 3, 4. 10. The I.G. notified Petitioner by letter dated March
30, 2001, that she was being excluded pursuant to section 1128(b)(4) of
the Act from participating in Medicare, Medicaid and all Federal health care programs. I.G. Ex.
1. 11. The I.G. is authorized to exclude Petitioner pursuant
to section 1128(b)(4) of the Act because her license to provide health
care has been suspended by the Pennsylvania State Board of Nursing for
reasons bearing on her professional competence and professional performance. 12. Petitioner possessed a license to provide health care
within the scope of section 1128(b)(4) of the Act. 13. In an exclusion 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. Section 1128(c)(3)(E) of the Act; 42 C.F.R.
� 1001.501(b)(1). 14. The exclusion imposed by the I.G. against Petitioner
will remain in effect until she regains her nursing license in the Commonwealth
of Pennsylvania. Discussion
Petitioner was licensed to practice nursing and provide
health care in the State of Pennsylvania. On April 7, 1999, the Commonwealth
of Pennsylvania, Bureau of Professional and Occupational Affairs, filed
an order to show cause, charging that Petitioner was subject to disciplinary
action under the Pennsylvania Practical Nursing Law, in that she was "addicted
to alcohol and hallucinogenic or narcotic drugs or other drugs that tend
to impair judgment or coordination. The matter went before a hearing examiner
on July 30, 1999, who concluded that Petitioner had failed to comply with
State monitoring requirements. As a result of the findings, the hearing
examiner issued a "Proposed Adjudication Order" and ordered that Petitioner's
license be indefinitely suspended until she presented to the Pennsylvania
State Board of Nursing documented evidence of three years of sustained
recovery from chemical dependency. The Board adopted the "Proposed Adjudication
Order" and directed that Petitioner immediately cease practicing professional
nursing. I.G. Ex. 3. By letter dated March 30, 2001, the I.G. notified Petitioner that she was being excluded from participating in the Medicare, Medicaid, and all federal health care programs pursuant to section 1128(b)(4) of the Act because her license to practice nursing or provide health care in the State of Pennsylvania was revoked, suspended, or otherwise lost for reasons bearing on her professional competence, professional performance, or financial integrity. In her request for hearing, Petitioner asserts that she
is in a recovery program approved by the State Board of Nursing in Hampton,
Virginia. If Petitioner has in fact entered into a recovery program, she
should so notify the Pennsylvania Board of Nursing. Once she has shown
compliance to the Board's satisfaction and recovers her nursing license,
she may then request reinstatement from the I.G. However, her enrollment
in a recovery program at this time is not a factor that I may consider
in determining whether the I.G. has a basis to exclude Petitioner, nor
whether the period of exclusion is reasonable. Other than the aforementioned
claim, Petitioner opposes the I.G.'s allegations in no other way. Consequently,
I find that the I.G.'s legal and factual claims have been undisputed by
Petitioner. 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." Section 1128(b)(4)(A) of the Act. There are two aspects to this legal provision. The first requirement, as 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 question it. The second requirement is that the suspension or revocation be for reasons bearing on professional competence, professional performance, or financial integrity. This is amply evident from the "Proposed Adjudication and Order" issued by the hearing examiner on June 27, 2000, and adopted by the Pennsylvania State Board of Nursing on September 29, 2000. In view of the foregoing, I conclude that Petitioner's license to provide health care in the State of Pennsylvania was suspended for reasons bearing on her professional competence or professional integrity.
The Pennsylvania State Board of Nursing revoked Stacey K. Clayton's license to practice nursing. 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 (1997) at 3. That section 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 minimum period required by law.
Conclusion 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 minimum period mandated by section 1128(c)(3)(E) of the Act. |
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JUDGE | |
Jose A. Anglada Administrative Law Judge
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