SUBJECT:

Julia Maria Nash,

Petitioner,

The Inspector General.

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 Julia Maria Nash, Petitioner, from participation in Medicare, Medicaid, and other federally funded health care programs until such time as Petitioner regains her license as a registered nurse in the State of California. ⁽¹⁾

I. Background

The critical facts of this case are not in dispute. By letter dated July 30, 2004, the I.G. notified Petitioner that pursuant to section 1128(b)(4), she was being excluded from participation in Medicare, Medicaid, and all other federally funded health care programs because her license to practice medicine or provide health care in the State of California as a registered nurse had been "revoked, suspended, or otherwise lost" or "was surrendered while a formal disciplinary proceeding was pending before the State licensing authority for reasons bearing on [her] professional competence, professional performance, or financial integrity." The letter advised that the program exclusion remains in effect as long as Petitioner's California license as a registered nurse is revoked, suspended, or otherwise lost.

Petitioner timely requested a hearing and the case was assigned to me. On August 10, 2004, my office received from Petitioner a copy of a letter dated June 2, 2004 which had the original name whited out. The letter was covered with handwritten notations scrawled in the margins and on the back. Thereafter, my office received numerous submissions from Petitioner, all with hand scribbled notations, often impossible to decipher. Some of the submissions appeared to be duplicative of what Petitioner submitted previously, but with minor changes. By letter dated August 18, 2004, Civil Remedies Division staff acknowledged the receipt of Petitioner's hearing request and instructed the parties that the next step in the process would be a prehearing telephone conference on September 27, 2004. Petitioner nevertheless continued to send unsolicited submissions to my office. These submissions were similar to those received earlier in that they again were full of handwritten notations and largely unintelligible. Petitioner provided no suggestion that she was sending copies of these submissions to counsel for the I.G. After receiving eight such submissions from August 16^th through August 30, 2004, my office informed Petitioner that: (1) she should not send any more submissions to my office until I specifically direct her to do so (see letter dated August 30, 2004); (2) any further unsolicited submissions received after August 30, 2004 would be returned; (3) my staff found these submissions largely undecipherable and could not determine from her handwritten marginal notes what was "new" and what was not; (4) the submissions were often incomplete and sent out of order; and, finally (5) the documents generally appeared irrelevant to the proceedings before me.

I convened a telephone prehearing conference with the parties on September 27, 2004. Because Petitioner was proceeding without counsel, I carefully and fully explained the process. I first confirmed with the parties that the basis for the exclusion was Petitioner's surrender of her license as a registered nurse in California under a written stipulated Surrender of License and Order in lieu of the California Board of Nursing pursuing license revocation proceedings against Petitioner. I explained to Petitioner what this exclusion means to her and the scope of my review.

I explained that I cannot look behind the decision of the California State Board of Registered Nursing; I can only determine if a basis for the imposition of the exclusion exists - namely, did Ms. Nash surrender her license as a registered nurse while a formal disciplinary proceeding concerning the her professional competence, professional performance or financial integrity was pending before a State licensing authority.

Section 1128(b)(4) of the Social Security Act; 42 C.F.R. � 1001.501(a) and (b). I further explained that if such a basis exists, I have no choice but to affirm the exclusion for the length of time the individual's license is surrendered.

I discussed with the parties whether an in-person hearing was necessary. It appeared that there were no material facts in dispute and that this matter could be decided on the basis of the parties' written submissions and accompanying documentary exhibits. Counsel for the I.G. stated that she believed this matter could be decided on the basis of written submissions. I asked Petitioner whether she felt it was necessary to have an in-person hearing to take testimony because there were facts in dispute. Ms. Nash initially stated that an in-person hearing might be necessary because she believes that the Nursing Board's charges were brought against her in retaliation for her actions in a labor suit . As I explained to her, I cannot look behind the motives or relitigate the disciplinary proceedings. She may argue and prove only that her license surrender was not the result of a pending formal disciplinary proceeding concerning her professional competence or professional performance as a registered nurse. After our discussion, Ms. Nash indicated that based on these factors, she could not demonstrate that an in-person hearing would serve any purpose.

I, therefore, established a schedule for the parties' submissions in writing. I explained that because the I. G. has the burden of proof in these cases, the I.G. would submit its brief and exhibits first. Petitioner would then have the opportunity to submit her written response and arguments together with her exhibits. The I.G. would then have an opportunity to reply. I explained that Petitioner generally would not have an additional opportunity to reply. I further explained that this was the parties' opportunity to submit all relevant arguments and exhibits and that Petitioner should not send any other submissions. I cautioned Ms. Nash to make her submissions clear. Her earlier submissions which I had returned, contained significant marginal notes which made them difficult to read or understand. Thus, I would not accept any submissions with such notes; her arguments, I explained, should be presented in her brief and should refer to the exhibits.

Finally, I explained to Ms. Nash the basis for the exclusion and what that meant to her. I clarified that this exclusion does not affect her ability to receive benefits as a recipient of Medicare or any State health care program; rather, it means that she cannot work in a position for which her salary is claimed or reimbursed in whole or part by Medicare, Medicaid or any State health care program.

On October 27, 2004, I received the I.G.'s motion for summary affirmance, together with its brief in support of its motion and three exhibits, I.G. Exs. 1 - 3. I granted Petitioner a 30-day extension, until January 22, 2005, to submit her written response. From December 17 through December 27, 2004, Petitioner submitted numerous documents. These again contained handwritten notes, often indecipherable, which were in large part duplicates of previous submissions. On January 25, 2005, yet another large packet arrived from Petitioner. Because it did not appear that Petitioner sent a copy of this to opposing counsel, staff wrote the parties, describing the contents of the submission, and providing a the I.G. a copy. I informed Petitioner that I considered the January 25, 2005 submission her response to the I.G.'s motion and brief, and I would accept no further submissions. Nevertheless, on February 1, 2005, another packet of documents arrived from Petitioner. Staff again sent to the I.G. a letter describing the contents of the packet, together with a copy of the documents, and informed Petitioner that no further submissions would be accepted and that the record would close on February 7, 2005.

II. Issue

The sole issue before me is whether, based on the loss of Petitioner's California registered nursing license, the I.G. appropriately excluded her from participation in Medicare, Medicaid, 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 lettered heading.

A. Because Petitioner surrendered her registered nursing license while a formal disciplinary proceeding concerning her professional competence or professional performance was pending before the California State Board of Registered Nursing, the I.G. may appropriately exclude her from participation in Medicare, Medicaid, and other federally funded health care programs.

Section 1128(b)(4)(B) of the Act authorizes the I.G. to exclude an individual who surrenders a State license to provide health care:

while a formal disciplinary proceeding was pending before . . . [a State licensing authority] and the proceeding concerned the individual's or entity's professional competence, professional performance, or financial integrity.

See also 42 C.F.R. � 1001.501(a)(2).

On August 25, 2003, Petitioner signed a Stipulated Surrender of License to the action brought against her by the State of California Board of Registered Nursing, Department of Consumer Affairs, the licensing authority for registered nurses in the State of California. I.G. Ex. 2. In that Stipulated Surrender, she agreed that certain matters were true; she admitted the truth of each charge and allegation contained in the accusation filed against her by the Board of Registered Nursing; she agreed that cause for discipline existed; and she agreed to surrender her license as a registered nurse. By signing, she signified that she understood that her signature on the Stipulated Surrender would enable the Board to issue an order accepting the surrender of the registered nursing license without further process. Above her signature, it states that Petitioner carefully read the Stipulated Surrender of license and order and that she understands it and the effect it will have on her registered nursing license. It further states that she enters into this surrender "voluntarily, knowingly, and intelligently" and agrees to be bound to the decision and order of the California Board of Registered Nursing. I.G. Ex. 2. She surrendered her license because she was accused of gross negligence, incompetence, and impaired ability to practice nursing, and the California Board had initiated a formal proceeding against her on each of these three bases. I.G. Ex. 1.

While Petitioner does not dispute that she voluntarily surrendered her license, she now appears to contend that she signed the Stipulated Surrender because a deputy attorney general of Los Angeles contacted her every day for at least "2-3 weeks" to sign it. The I.G. argues that Petitioner's submissions amount to no more than collateral attacks on the events surrounding the surrender of her license and other events wholly unrelated to that surrender. I.G. Reply. I agree. Where, as here, an exclusion is based on the existence of a determination made by another governmental agency, the basis for the underlying determination is not reviewable. 42 C.F.R. � 1001.2007(d); Roy Cosby Stark, DAB No. 1746 (2000). I am required to determine the reasons for the State Board's actions, but not whether its reasoning was valid. The State Board took action because it deemed Petitioner grossly negligent and incompetent in the performance of her professional duties. It found her impaired in her ability to practice nursing safely. I.G. Ex. 1. I may not look behind that determination. Petitioner's license to provide health care as a registered nurse was surrendered voluntarily while a formal disciplinary proceeding which related to her professional competence or professional performance was pending against her before the California State Board. Thus, given the undisputed facts and under the provisions of the Act, the I.G. was authorized to exclude Petitioner.

B. The exclusion period may not be less than the period during which Petitioner's license is surrendered.

Neither I nor the I.G. has any discretion in determining the duration of an exclusion under section 1128(b)(4) of the Act, since that duration is set by statute. Section 1128(c)(3)(E) of the Act provides that an exclusion imposed pursuant to section 1128(b)(4) shall be for a term that is not less than the period when an individual's license to provide health care is revoked, suspended, or surrendered. The Act thus mandates that the minimum exclusion period that the I.G. may impose in the case of a license revocation, suspension, or surrender is conterminous with the revocation, suspension, or surrender period. In this case, the I.G. imposed that minimum period against Petitioner and, therefore, the exclusion is consistent with statutory requirements. Rogelio Fernadez, R. Ph., DAB CR1018 (2003).

IV. Conclusion

For the reasons stated above, I conclude that the I.G. was authorized to exclude Petitioner from participation in Medicare and other federally funded programs because she surrendered her license which related to her professional competence or professional performance to provide health care while a formal disciplinary proceeding which concerned her professional competence and performance was pending. I also conclude that the I.G. is authorized to exclude Petitioner for a period conterminous with the time her license is surrendered.

Carolyn Cozad Hughes

Administrative Law Judge

1. "Federal health care program" is defined in section 1128B(f) of the Act as 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 any State health care program. "State health care program" is defined in section 1128(h) of the Act and includes the Medicaid program (Title XIX).