SUBJECT:

Ming Man Hu,

Petitioner,

The Inspector General.

(A) whose license to provide health care has been revoked or suspended by any State licensing authority, or who otherwise lost such a license or the right to apply for or renew such a license, for reasons bearing on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 . . . .

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 lettered headings in bold type. My legal analysis in reaching each finding and conclusion is set out in the paragraphs which follow each lettered finding and/or conclusion.

A. Summary judgment is appropriate in this case.

Summary judgment (or affirmance) is appropriate when there is no genuine dispute as to any material fact, and the moving party is entitled to judgment as a matter of law. Lebanon Nursing and Rehabilitation Center, DAB No. 1918 (2004). The party moving for summary judgment bears the initial burden of showing the basis for its motion and identifying the portions of the record that it believes demonstrate the absence of a genuine factual dispute. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If a moving party carries its initial burden, the non-moving party must "come forward with specific facts showing that there is a genuine issue for trial." Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed. R. Civ. P. 56e). That is, the non-moving party must act affirmatively by tendering evidence of specific facts showing that a dispute exists. Denials and assertions in pleadings or briefs are not sufficient to overcome a well-supported motion. In this case, the I.G. carried his initial burden of showing that Petitioner's certificates to be a nurse assistant and home health aide were revoked for reasons bearing on her professional competence and/or performance. As explained below, Petitioner's exclusion is derivative of a state licensing authority's actions and Petitioner's denials and assertions are insufficient to overcome the I.G.'s submitted evidence as a matter of law. I conclude that summary affirmance in this case is appropriate.

B. The I.G. properly excluded Petitioner pursuant to section 1128(b)(4) because her nurse assistant and home health aide certificates to provide health care in the State of California were revoked for reasons bearing on Petitioner's professional competence and/or professional performance.

Petitioner was a certified nurse assistant and certified home health aide in the State of California. I.G. Ex. 3, at 2. On April 14, 2004, the California Department of Health Services (CDHS), Licensing and Certification Program, Investigation Section, issued a letter to Petitioner notifying her that her nurse assistant certification and home health aide certification were being revoked because Petitioner's actions constituted unprofessional conduct under California Health and Safety Code � 1337.9(c)(1). I.G. Ex. 2. This revocation was based on an allegation that, on or about January 30, 2003, Petitioner had acted in an abusive manner by roughly handling a female nursing home resident and verbally abusing her and another resident. Id.

After a hearing, the CDHS, Office of Administrative Hearings and Appeals (OAHA) upheld the revocations made by the CDHS Investigation Section on January 12, 2005. I.G. Ex. 3. In California, one cannot use the title "certified nursing assistant" or "home health aid" and provide certified nursing assistant services or home health aide services without an active CDHS-issued certificate to practice. California Health & Safety Code � 1337.2(e) (2004). The revocation of Petitioner's certificate by the California Investigation Section, upheld by the OAHA, is a revocation of Petitioner's license to provide health care services, specifically, certified nursing assistant and home health aide services . Patricia Gilpin, DAB CR925 (2002); Owen C. Gore, DAB CR1070 (2003).

The I.G. has shown the first requirement for a section 1128(b)(4) exclusion in that the CDHS 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.

The OAHA determined that Petitioner's behavior constituted unprofessional conduct under California Health and Safety Code � 1337.9(c)(1). I.G. Ex. 2. The OAHA concluded that Petitioner had handled a nursing home resident suffering from cancer in a rough manner while providing incontinence care. Instead of rolling the resident over, to remove the resident's soiled bed pad, Petitioner tried to roughly pull the pad out from under the resident. The resident began to cry and Petitioner told her "don't be a baby." Later that same evening, Petitioner was brushing a resident's hair. The resident called out and Petitioner mocked her cries. Also, during that evening, Petitioner yelled at a resident (the same resident who previously needed incontinence care) who had turned on her call light for pain medication. Petitioner went to the other side of the resident's bed, pulled the call light cord out its socket, threw the cord, and narrowly missed hitting the resident. I.G. Ex. 3. This resident later told nurses at the facility that she was upset and had felt degraded by Petitioner's actions. Id., at 4 -5.

The OAHA hearing included testimony from several people in addition to Petitioner's own testimony. The OAHA found there was clear and convincing evidence that Petitioner had abused the residents at issue and affirmed the Investigation Section's determination to revoke Petitioner's certified nursing assistant and home health agency certificates.

I conclude that these findings made by the CDHS do bear on Petitioner's professional competence and/or professional performance. The acts complained of were committed during her patient care.

In several of her letters and in her response, Petitioner avers that the facts as stated by the OAHA after her hearing are incorrect, the stories related by the witnesses at her hearing were false, and that the acts complained of did not occur. An exclusion under section 1128(b)(4), however, is a derivative exclusion. The facts leading to the decision of the licensing authority are not reviewable here. Petitioner may not collaterally attack the CDHS's revocation decision either on substantive or procedural grounds in this appeal. 42 C.F.R. � 1001.2007(d); Michele R. Roney, DAB CR1332 (2005). Apparently, Petitioner has appealed the OAHA's decision to Superior Court for the County of Los Angeles. Should that court overturn the OAHA decision, and Petitioner regain her certificates to practice from CDHS, she may request reinstatement by the I.G.

C. The I.G. properly excluded Petitioner until her nurse assistant and home health aide certificates are reinstated by the State of California.

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 (2001), at 9. Thus, there is no issue regarding the reasonableness of the period of exclusion as it is mandated by section 1128(c)(3)(E) of the Act. In the present case, the I.G. has excluded Petitioner until she regains her nurse assistant and home health aide certificates. This is the minimum period of exclusion prescribed by law. Accordingly, I must conclude that the term of the exclusion is reasonable and proper.

IV. Conclusion

For the reasons stated, I conclude that the I.G. was authorized to exclude Petitioner because her nurse assistant and home health aide certificates were revoked by the State of California for reasons concerning her professional competence or professional performance, within the meaning of section 1128(b)(4) of the Act.

Because Petitioner was properly excluded pursuant to section 1128(b)(4), her exclusion must remain in effect until the CDHS again grants her certificates or licenses to practice health care in California.

Anne E. Blair

Administrative Law Judge