SUBJECT:

Tracey Gates, R.N.,

Petitioner,

The Inspector General

FINAL DECISION ON REVIEW OF

ADMINISTRATIVE LAW JUDGE DECISION

Tracey Gates, R.N. (Petitioner) appealed the November 1, 2000 decision of Administrative Law Judge (ALJ) Joseph K. Riotto affirming the determination of the Inspector General (I.G.) to exclude Petitioner from participation in federal health care programs pursuant to section 1128(a)(1) of the Social Security Act (Act). Tracy Gates, R.N., DAB CR708 (2000)(ALJ Decision). The exclusion followed the revocation of Petitioner's license as a registered nurse by the Connecticut Board of Examiners for Nursing (Nursing Board), and is to run until her license to provide health care in the State of Connecticut is reinstated.

On appeal to the Board, Petitioner primarily argued that the ALJ erred in finding that the revocation of Petitioner's nurse's license was for reasons bearing on her professional competence, professional performance, or financial integrity, as the Act requires for an exclusion based on a revocation of a health care license by a state licensing authority. As discussed below, although we do not entirely agree with all of the points of the ALJ's analysis, we uphold the exclusion, and we affirm and adopt his numbered Findings of Fact and Conclusions of Law (FFCLs).

This decision is based on the parties' written submissions to the Board and on the record before the ALJ.

Applicable Law

Section 1128(b)(4)(A) of the Act (42 U.S.C. � 1320a-7(b)(4)) authorizes the Secretary of this Department to exclude from federal health care programs⁽¹⁾ an 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whose license to provide health care has been revoked or suspended by any State licensing authority, or who otherwise lost such a license or the right to apply for or renew such a license, for reasons bearing on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(c)(3)(E) of the Act, as amended by section 212 of the Health Insurance Portability and Accountability Act of 1996 (Public Law No. 104-191), provides that 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.

This provision affecting the length of exclusions became effective on January 1, 1997.

The Secretary delegated the discretion to impose permissive exclusions to the I.G. under 42 C.F.R. � 1001.501. Regulations provide that the ALJ lacks authority to find invalid or refuse to follow federal statutes or regulations or secretarial delegations of authority, or to review the exercise of discretion by the I.G. to exclude an individual or entity under section 1128(b) of the Act, or to determine the scope or effect of the exclusion. 42 C.F.R. � 1005.4(c)(1), (5).

The Board's standard of review on disputed issues of fact is whether the ALJ decision is supported by substantial evidence on the record as a whole. 42 C.F.R. � 1005.21(h). The Board's standard of review as to disputed issues of law is whether the ALJ decision is erroneous. Id.

Background and Arguments

The following undisputed FFCLs from the ALJ Decision describe the circumstances of Petitioner's exclusion:

1. At all times relevant to this case Petitioner was licensed as a registered nurse in . . . Connecticut. I.G. [Exhibit] Ex. 4 at 2.

2. On April 24, 1996, the . . . Connecticut Board of Examiners for Nursing placed Petitioner's registered nurse's license on probation for three years, effective May 1, 1996, as a result of her diversion and abuse of controlled substances during 1993 and 1995, as well as for her falsification of controlled substance records. I.G. Ex. 4.

3. As stated in the April 24, 1996 Order of the [Nursing Board], Petitioner's probation prohibited her from abusing alcohol and/or drugs, and required that she submit to random alcohol and drug screening, the results of which were to be negative. I.G. Ex. 4.

4. On November 23, 1998, Petitioner submitted a urine specimen which tested positive for the presence of two controlled substances, morphine and codeine. I.G. Ex. 2 at 2.

5. On February 10, 1999, Petitioner submitted a urine specimen which tested positive for the presence of the controlled substance, morphine. Id.

6. On March 17, 1999, Petitioner was notified by the [Nursing Board] that her registered nurse's license was summarily suspended pending a final determination of the charge that her conduct failed to conform to the accepted standard of the nursing profession. I.G. Ex. 2.

7. On July 21, 1999, the [Nursing Board] issued an order finding that Petitioner's positive urine screen results were deemed conclusive evidence of her abuse of the controlled substances morphine and codeine; that her abuse of morphine and codeine may affect her practice as a registered nurse; that her positive urine test results of morphine and codeine violated the terms of her probation; and that her registered nurse's license was thereby revoked. I.G. Ex. 2.

8. Petitioner's Connecticut nursing license has not been reinstated.

9. On March 31, 2000, pursuant to section 1128(b)(4) of the Act, the I.G. notified Petitioner of her indefinite exclusion from participation in the Medicare programs on March 31, 2000 pursuant to section 1128(b)(4) of the Act. I.G. Ex. 1.

Based on those facts, the ALJ made the following FFCLs sustaining the I.G.'s exclusion of Petitioner:

10. 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 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.

11. Petitioner, as a registered nurse, possessed a license to provide health care within the scope of section 1128(b)(4) of the Act.

12. Petitioner's nursing license was revoked by a State licensing authority, within the scope of section 1128(b)(4)(A) of the Act.

13. The revocation of Petitioner's nursing license was for reasons bearing on her professional competence, professional performance, or financial integrity, within the scope of section 1128(b)(4) of the Act.

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

15. 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).

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

17. The exclusion imposed by the I.G. against Petitioner, which will remain in effect until Petitioner obtains a valid license to provide health care in Connecticut, was authorized under sections 1128(b)(4) and 1128(c)(3)(E).

Before the Board, Petitioner contested FFCL 13, arguing that substantial evidence did not support the ALJ's determination that the revocation of her nurse's license was for reasons bearing on her professional competence, professional performance or financial integrity. She argued that none of those criteria were alleged or proven before the Nursing Board, which found only that her substance abuse "may affect" her nursing practice. Petitioner also argued that her professional competence was evidenced by her previous employer's willingness to hire her in a non-nursing capacity after the revocation of her nurse's license.

Petitioner also argued that excluding her because of the disease of addiction violated the Americans with Disabilities Act, which, she stated, prohibits discrimination against persons with the disease of addiction who are not currently using drugs. She described herself as a cancer survivor who developed her addictive disease, now in remission, as a consequence of her treatment. She also requested that any exclusion be limited so that she may still work in the health care field in a non-nursing capacity. She reported that she was forced to leave the job offered by her former employer, and another job providing telephone counseling to cancer patients, because her employers feared that they would be subject to sanctions for employing her after her exclusion.⁽²⁾

Discussion

1. The exclusion was authorized under section 1128(b)(4) of the Act.

The issue before us is whether the revocation of Petitioner's nurse's license was for reasons bearing on her professional competence, professional performance, or financial integrity, as required by section 1128(b)(4) to support an exclusion from federal health care programs. We conclude that the ALJ's conclusion in FFCL 13 was supported by substantial evidence and was not erroneous as a matter of law, although we do not fully adopt his reasoning.

Petitioner's reliance on the facts that the Nursing Board found only that her abuse of morphine and codeine "may affect" her practice as a registered nurse and did not specifically find evidence of substandard practice does not alter our determination that the exclusion was authorized. The Board has held that a finding of actual harm to a patient is not a precondition to an exclusion, since the purpose of an exclusion is not to punish the individual excluded but rather to protect the federally-funded health care programs. Narinder Saini, M.D., DAB No. 1371, at 6 (1992).

Petitioner's argument also ignores the totality of the circumstances supporting the revocation of her nurse's license. The Board has held that when a health care license has been revoked for a violation of conditions placed on the license, it is appropriate, in determining whether the revocation was for reasons bearing on professional competence, professional performance or financial integrity, to look at the reasons why conditions were placed on the license in the first place. Those reasons resulted in the immediate basis for the license revocation and are thus reasonably viewed as reasons for the license revocation. Roy Cosby Stark, DAB No. 1746, at 4 (2000).

Thus, in reaching his determination to uphold Petitioner's exclusion, the ALJ examined the totality of Petitioner's acts that resulted in the revocation of her nurse's license. The ALJ noted that the Nursing Board placed Petitioner's license on probation in 1996, requiring random alcohol and drug screening, because she had diverted and abused controlled substances and falsified controlled substance records. ALJ Decision at 5-6. The revocation of her nurse's license followed two drug tests, one positive for morphine and codeine and the other for morphine. Id. Moreover, under Connecticut law, abuse or excessive use of drugs including alcohol, narcotics or chemicals is deemed conduct that fails to conform to the accepted standards of the nursing profession. Id. at 6, citing Conn. Gen. Stat. � 20-99(b) (1997). The totality of the circumstances outlined by the ALJ -- drug abuse, falsification of controlled substance records, and diversion of controlled substances -- is sufficient to conclude that the revocation of Petitioner's nurse's license was for reasons bearing on her professional performance, authorizing her exclusion under section 1128(b)(4) of the Act.

Moreover, that the Nursing Board deemed Petitioner's actions sufficient to warrant the revocation of her nurse's license strongly indicates that those actions bore on her professional competence or performance. While the Nursing Board did not specifically state that Petitioner's professional competence or professional performance were compromised, this does not mean that her actions were not within the standard at section 1128(b)(4). This Board has previously held that a state licensing authority is not required to make findings with respect to an individual's professional competence, professional performance, or financial integrity, or to use those words, in order for the I.G. to exclude an individual. Brian Bacardi, D.P.M., DAB No. 1724 (2000); Olufemi Okonuren, M.D., DAB No. 1319 (1992). The wording of the provision merely requires that the reasons for the revocation have "bearing on" these concerns. A contrary interpretation would subject federal programs and patients to risks simply because of the state licensing authority's choice of words.

Petitioner's actions that led to the revocation of her nurse's license are akin to those which supported exclusions under section 1128(b)(4) in prior ALJ decisions. Those included: using a controlled substance that was not properly prescribed (Charles Sutherland, D.O., DAB CR561 (1998)); substance abuse coupled with the diversion of controlled substances (Mary E. Groten, DAB CR518 (1998)), obtaining a false prescription for a controlled substance (Lakshmi N. Murty Achalla, M.D., DAB CR104 (1990), aff'd, DAB No. 1231 (1991)); prescribing a controlled substance outside of the physician-patient relationship (Chester A. Bennett, M.D., DAB CR64 (1990)); writing false prescriptions (Stephen J. Willig, M.D., DAB CR192 (1992)); and alcoholism (Wilbur D. Hilst, M.D., DAB CR621 (1999)). Excluding Petitioner based on the totality of her actions that resulted in the revocation of her nurse's license is fully consistent with these prior holdings.

In making this determination, however, we do not adopt the ALJ's observation, in his discussion following the FFCLs, that infrequent, occasional, or even one-time drug usage has been held to impact an individual's professional competence or professional performance. ALJ Decision at 6-7. In support of this finding the ALJ cited his decision in Stark, DAB CR676, noting that the Board had affirmed it in DAB No. 1746. In affirming that ALJ decision, however, the Board specifically found that the ALJ's statement went beyond the reasons why the petitioner's license in that case was revoked. The Board found that this error was immaterial, since the ALJ had correctly concluded that the totality of the petitioner's actions (drug usage and criminal convictions for attempted robbery and attempted kidnapping) were reasons for revocation that did bear on his professional competence or performance. Stark, DAB No. 1746, at 9-10. Similarly, the ALJ here based his decision upholding the exclusion on the entire circumstances surrounding the revocation of Petitioner's nurse's license. His language regarding one-time drug usage was not the sole basis for his decision and did not appear in his FFCLs. The citation of his language in Stark is harmless error and provides no basis for reversing Petitioner's exclusion.

2. Petitioner's other arguments are unavailing.

Petitioner cited two Board decisions in arguing that the exclusion should be reversed. Those decisions are not applicable here and provide no basis for reversing the ALJ Decision.

Petitioner cited Catherine L. Dodd, R.N., DAB No. 1345 (1992), where the Board sustained the ALJ's decision not to exclude a nurse under section 1128(a)(1). That section requires the exclusion of any individual convicted of a criminal offense related to the delivery of an item or service under Medicare, Medicaid or another state health care program. Although the petitioner there admitted to making false entries in the medical records of several patients in order to obtain prescription drugs, she had pleaded guilty to only a single criminal count, and the I.G.'s evidence failed to establish that this single count involved a patient who was a recipient of Medicare or Medicaid benefits, or payments or services provided by another state health care program. Here, by contrast, the evidence shows that Petitioner's nurse's license was revoked because of actions and behaviors bearing on her professional competence or performance, justifying exclusion. This case is thus distinguishable from Dodd, where the I.G. failed to establish a requisite element for imposing an exclusion.

In Barry D. Garfinkel, M.D., DAB No. 1572 (1996), the Board held that the ALJ, in reviewing the length of an exclusion imposed under section 1128(b)(1) (which covers criminal convictions for program or health care fraud), incorrectly applied mitigating and aggravating factors listed in the regulations for determining whether the period of exclusion should be lengthened or shortened. 42 C.F.R. � 1001.201(b).

However, the Act and the regulations require that the length of an exclusion based on the revocation of a health care license be for not less than the period of the license revocation. Section 1128(c)(3)(E) of the Act; 42 C.F.R. � 1001.501(b). Mitigating factors may be considered as a basis for reducing the period of exclusion only if there are aggravating factors that provide a basis for lengthening it, and in any event may not be used to reduce the period of exclusion to less than the period of the license revocation. 42 C.F.R. � 1001.501(b)(3). Here, the I.G. has not sought to lengthen the period of exclusion through the consideration of aggravating factors. Thus, Petitioner's citation of Garfinkel, and her argument that her qualifications as a provider of telephone cancer information are a mitigating factor, are not applicable. Garfinkel does not conflict with our holding here.

Petitioner also pointed out that an exclusion under section 1128(b)(1) is not mandatory, and argued that exclusion is unnecessary because the Nursing Board has already restricted her nursing practice. Petitioner requested that she be excluded only from practicing as a registered nurse, noting that she has been offered non-nursing jobs with health care providers.

There is no basis to grant Petitioner's request. While the decision to exclude Petitioner was indeed within the I.G.'s discretion, the regulations specify that the ALJ lacks authority to review the I.G.'s exercise of that discretion in bringing an exclusion under section 1128(b) of the Act. 42 C.F.R. � 1005.4(c)(5). The ALJ further lacks the authority to determine the scope or effect of the exclusion, and thus may not limit the exclusion to certain programs or provide for a shorter exclusion than mandated by the Act. Id. Moreover, the Act and regulations provide only for exclusions "from participation in any Federal health care program" and thus do not permit an exclusion to be limited or tailored in the way that Petitioner here seeks. Section 1128(b) of the Act. Thus, the ALJ did not err in denying the relief Petitioner requested.

Finally, Petitioner's argument regarding the Americans with Disabilities Act provides no basis for reversing the exclusion. Here, we have found that the revocation of Petitioner's nurse's license falls within the ambit of section 1128(b)(4), enabling the I.G. to exclude Petitioner. To reverse the exclusion as violative of the Americans with Disabilities Act would require the ALJ to either find section 1128 invalid or otherwise refuse to follow its requirements. The regulations specifically preclude the ALJ from doing either. 45 C.F.R. � 1005.4(c)(1). We thus find that the ALJ did not commit any error in rejecting this argument.

Conclusion

Based on the preceding analysis, we affirm the ALJ's determination that the exclusion was authorized under section 1128(b)(4) of the Act and uphold the exclusion.

Marc R. Hillson

M. Terry Johnson

Judith A. Ballard
Presiding Board Member

1. Section 1128B(f) defines "Federal health care program" as --

(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 (other than the health insurance program under chapter 89 of title 5, United States Code); or

(2) any State health care program, as defined in section 1128(h).

Section 1128(h) defines "State health care program" as Medicaid, the Maternal and Child Health Services Block Grant, Block Grants to States for Social Services, and the State Children's Health Insurance Program.

2. Section 1128A(a)(6) of the Act subjects to civil monetary penalties any person (including an organization, agency, or other entity) that "arranges or contracts (by employment or otherwise) with an individual or entity that the person knows or should know is excluded from participation in a Federal health care program . . . for the provision of items or services for which payment may be made under such a program . . . ."