SUBJECT:

Owen C. Gore, CNA,

Petitioner,

The Inspector General

I sustain the determination of the Inspector General (I.G.) to exclude Owen C. Gore, CNA, (Petitioner) from participation in Medicare, Medicaid, and all federal health care programs, as defined in section 1128B(f) of the Social Security Act (Act), until Petitioner's license to provide health care in the State of Arizona is reinstated. I base my decision upon evidence which proves that Petitioner's certificate as a Certified Nursing Assistant (CNA) was revoked by the Arizona State Board of Nursing (Arizona Board) in a disciplinary proceeding, and that proceeding concerned Petitioner's professional competence, professional performance, or financial integrity, within the meaning of section 1128(b)(4)(A) of the Act. Moreover, having concluded that the I.G. is authorized to exclude Petitioner based on the loss of his nursing certificate, I am required by statute to sustain the I.G.'s determination that Petitioner remain excluded until his right to provide health care is reinstated by the State of Arizona.

I. Background

By letter dated November 29, 2002, the I.G. notified Petitioner that he was being excluded from participation in Medicare, Medicaid, and all federal health care programs. The letter explained that Petitioner's exclusion was authorized under section 1128(b)(4) of the Act (42 U.S.C. � 1320a-7(b)) because Petitioner's "license to practice medicine or provide health care in the State of Arizona was revoked, suspended, or otherwise lost or was surrendered while a formal disciplinary proceeding was pending before the State licensing authority for reasons bearing on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 January 14, 2003, Petitioner requested a hearing before an administrative law judge. The case was assigned to me for decision. The parties agreed that the case could be decided based on their written submissions. I reserved judgment on whether an in-person hearing would be required. Because there are no material and relevant factual issues in dispute, I agree that an in-person hearing is unnecessary.

The I.G. submitted a brief and two proposed exhibits (I.G. Exs. 1 - 2). Petitioner submitted a response and no proposed exhibits. Petitioner did not object to the I.G.'s proposed exhibits. In the absence of objection, I admit into evidence I.G. Exs. 1 - 2.

My decision is based on the exhibits, the parties' arguments, and the applicable law.

II. Applicable Law

Pursuant to section 1128(b)(4) of the Act, the I.G. may exclude an individual or entity -

(A) 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, or

(B) who surrendered such a license while a formal disciplinary proceeding was pending before such an authority and the proceeding concerned the individual's or entity's professional competence, professional performance, or financial integrity.

Pursuant to section 1128(c)(3)(E) of the Act, 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 entity is excluded or suspended from a Federal or State health care program.

III. Analysis

I make the following findings of fact and conclusions of law. My findings and conclusions are set forth as numbered headings in bold type. My legal analysis in reaching each finding and conclusion is set out in the paragraphs which follow each numbered finding.

1. The Arizona Board revoked Petitioner's certificate to provide health care services for reasons bearing on his professional competence, professional performance, or financial integrity.

By order dated March 1, 2002, the Arizona Board revoked Petitioner's certificate to be a CNA. I.G. Ex. 2. The Arizona Board had previously, on December 13, 2001, notified Petitioner of its proposed disciplinary action and a list of the factual allegations it felt "justifies disciplinary action pursuant to A.R.S. �� 32-1601 to 32-1667." I.G. Ex. 1. Petitioner was given the opportunity to dispute the factual findings or otherwise contest the Arizona Board's proposed action. The Arizona Board's December 13, 2001 notice to him stated in bold letters the following:

THE BOARD SHALL CONSIDER [PETITIONER'S] FAILURE TO REQUEST A HEARING WITHIN [30 DAYS] AS [PETITIONER'S] ADMISSION BY DEFAULT THE ALLEGATIONS STATED IN THE NOTICE OF CHARGES.

I.G. Ex. 1, at 4.

Petitioner failed to contest the charges and, on March 1, 2002, a default revocation order was entered against him. I.G. Ex. 2.

The factual allegations made against Petitioner by the Arizona Board are as follows:

�From August 20, 1993 to April 1, 1997, Petitioner was employed as a home health aide by Olsten Health Services (Olsten), a home health agency.

�On or about September 14, 1994, Petitioner was counseled by Olsten staff for frequent cancellations, lack of timeliness, and having time cards signed in bulk.

�On or about June 5, 1995, Petitioner was counseled by Olsten staff for leaving his assignment for extended periods of time to self-administer medications (Interferon).

�On or about August 2, 1996, Olsten staff counseled Petitioner for leaving a client alone during his scheduled shift.

�On or about October 9, 1996, Olsten staff counseled Petitioner for inappropriate documentation of time in a client's home.

�On or about October 21, 1996, Olsten staff counseled Petitioner for being non-compliant with documentation [sic] policy by not wearing a back belt on cases.

�On or about December 31, 1996, Olsten staff counseled Petitioner for submitting time cards on two clients on which Petitioner's time was noticed to overlap by four hours.

�On or about April 1, 1997, Olsten terminated Petitioner's employment because he was "no longer considered a reliable employee" after he had submitted time slips for March 15, 1997 and March 22, 1997, with times of care that differed from the time reported in the home by the client's wife.

�On or about August 11, 1999, Petitioner was arrested for driving under the influence (DUI), a misdemeanor, on August 10, 1999. Petitioner was convicted of this misdemeanor on April 13, 2000, after a plea of guilty.

�On or about April 2, 1999, Petitioner was arrested for aggravated DUI, a class 4 felony. He was convicted of this charge after his plea of guilty on December 7, 2000.

I.G. Ex. 1, at 1 - 3.

In his request for hearing and his brief, Petitioner contends the following with respect to the revocation of his certificate to provide CNA services. He worked with Olsten as a CNA while he was attending college. He established a very good working relationship with his supervisors. Because he was always available to work, if he had to travel 20 or more miles for a job, he wanted to be able to get paid for a certain number of hours. His supervisors understood this and, "I was instructed to fill out the time card for the hours allotted and administration would make the necessary adjustments and bill the client appropriately." January 14, 2003 Petitioner's Request for Hearing. Sometime in 2001, Petitioner claims, he received a call from the Arizona Board. The nurse consultant to whom he spoke told him of the charges and agreed with him that it was unlikely he would not have been fired before committing five offenses if the offenses were valid. This nurse consultant suggested that Petitioner, who was no longer in the health services field, accept a one-year suspension. He never received the form to sign for the suspension and did not follow-up with the Arizona Board. Petitioner's Request for Hearing.

I find Petitioner's arguments less than fully credible. First, it is doubtful that his supervisors would have documented in his personnel records activities the supervisors had approved. Second, Petitioner does not mention in his argument that eventually Olsten terminated his employment for time slips that did not match the time he reported working, an activity he claims his supervisors approved. Further, he does not deny or provide any explanation of his convictions for DUI.

Moreover, I find the facts the Arizona Board listed in its revocation order to be accurate for purposes of this Decision. The I.G. is not required to re-establish the factual or legal basis for an underlying State sanction. 42 C.F.R. � 1001.2007(d). The basis for the underlying action cannot be collaterally attacked or re-litigated. George Iturralde, M.D., DAB No. 1374 (1992); Hassan M. Ibrahim, M.D., DAB No. 1613 (1997).

In Arizona, one cannot use the title "certified nursing assistant" and provide certified nursing assistant services without an active Board-issued certificate to practice. Ariz. Rev. Stat. Ann. � 32-1649 (West 2003). The Arizona Board's revocation of Petitioner's certificate is, therefore, a revocation of Petitioner's license to provide health care services, specifically, certified nursing assistant services. Patricia Gilpin, DAB CR925 (2002).

The I.G. has shown the first requirement for a section 1128(b)(4) exclusion in that the Arizona Board did, indeed, revoke Petitioner's license to provide health care services. Additionally, however, to sustain an exclusion under section 1128(b)(4) of the Act, the revocation of one's license to provide health care services must be for reasons bearing on one's professional competence, professional performance, or financial integrity.

I conclude that the findings made by the Arizona Board do bear on Petitioner's professional performance and financial integrity. Occurrences of "leaving his assignment for extended periods of time" and "leaving a client alone during his scheduled shift" definitely reflect on Petitioner's professional performance. I.G. Ex. 1. And occurrences of "submitting time cards on 2 clients in which time overlapped by 4 hours" and submitting time slips "with times of care that differed from the time reported in the home by the client's wife" definitely reflect on Petitioner's financial integrity. Id.

The I.G. made no specific argument with respect to Petitioner's DUIs that Petitioner abused substances, but I note it is well-settled by decisions of administrative law judges of the Departmental Appeals Board that allegations of substance abuse relate to an individual's professional competence and professional performance, within the meaning of section 1128(b)(4) of the Act. See, e.g., Tracey Gates, R.N., DAB CR708 (2000), aff'd, DAB No. 1768 (2001); Roy Cosby Stark, DAB CR676 (2000), aff'd, DAB No. 1746 (2000) (citing Wilbur D. Hilst, M.D., DAB CR621 (1999)).

I have some empathy for Petitioner in that his infractions with his employer occurred over a relatively lengthy period of time and all occurred some years ago. On the other hand, he was dismissed because he was "no longer considered a reliable employee." I.G. Ex. 2, at 2. Moreover, the language of section 1128(b)(4)(A) of the Act makes clear that the only relevant inquiry under the statute concerns the reasons for which the State licensing board sought to take disciplinary action against an individual's license. If the State board took action for reasons bearing on the individual's professional competence, professional performance, or financial integrity, then the I.G. is authorized to proceed with an exclusion. This satisfies the requirements of section 1128(b)(4)(A). In this case, the Arizona Board revoked Petitioner's right to perform health care services for reasons bearing on his professional performance and financial integrity.

2. The I.G. properly excluded Petitioner until his nursing certificate is reinstated by the Arizona Board.

Section 1128(c)(3)(E) of the Act requires that an individual excluded pursuant to section 1128(b)(4) remain excluded for no less than the period during which the individual's license is revoked, suspended, or surrendered. See also 42 C.F.R. � 1001.501(b)(1); Tracey Gates, R.N., DAB No. 1768, at 9. In the present case, the I.G. has excluded Petitioner until he regains his certificate to practice nursing in Arizona. I.G. Ex. 2. This is the minimum period of exclusion prescribed by law. Accordingly, I must conclude that the term of the exclusion is proper.

I have no authority to set a period of exclusion for less than that required by the statute and regulations. Tracey Gates, R.N., DAB No. 1768, at 10. While I may sympathize with Petitioner's dilemma, Congress has concluded that the revocation of a license to practice a health care profession under circumstances described in section 1128(b)(4) of the Act is evidence of untrustworthiness and, thus, grounds for exclusion to protect federal health care programs and their beneficiaries and recipients. Congress has determined that the licensing authority that took action against the individual's license is in the best position to determine whether or not the reasons for the disciplinary action have been remedied. Therefore, in the present case, Petitioner's representations about his circumstances would be more appropriately addressed to the Arizona Board.

IV. Conclusion

For the reasons stated, I conclude that the I.G. was authorized to exclude Petitioner because his certificate to provide health care services, specifically, certified nursing assistance, was revoked by the Arizona Board for reasons concerning his professional competence or professional performance, within the meaning of section 1128(b)(4)(A) of the Act. Because Petitioner was properly excluded pursuant to section 1128(b)(4)(A), his exclusion must remain in effect until the Arizona Board again grants him a certificate to practice nursing assistance.

Anne E. Blair

Administrative Law Judge