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Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
IN THE CASE OF  


SUBJECT:

Brenda Jo Gallagher,

Petitioner,

DATE: November 1, 2001
                                          
             - v -

 

The Inspector General

 

Docket No.C-01-616
Decision No. CR834
DECISION
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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 Brenda Jo Gallagher, Petitioner, from participation in Medicare, Medicaid, and all federal health care programs for an indefinite period.

I. Background

By letter dated March 30, 2001, the I.G. notified Petitioner that she was being excluded, pursuant to section 1128(b)(4) of the Act, from participation in Medicare, Medicaid, and all federal health care programs because her license to practice medicine in the State of New Jersey was revoked, suspended, or otherwise lost for reasons bearing on her professional competence, professional performance, or financial integrity. Petitioner requested a hearing and the case was assigned to me. I held a prehearing conference by telephone at which the parties agreed that the case could be heard and decided based on written submissions. Both parties submitted briefs (I.G. Br. or P. Br.) accompanied by documentary evidence, and the I.G. submitted a reply brief (I.G. Reply Br.). The I.G. filed four exhibits (I.G. Exs. 1 - 4) as part of her submission. Petitioner filed two exhibits, which I have numbered Petitioner's exhibits 1 and 2 (P. Exs. 1 - 2) to conform to Civil Remedies Division procedures. In the absence of objection, I receive into evidence I.G. Exs. 1 - 4 and P. Exs. 1 - 2.

The bare facts of this case are not in dispute. Petitioner was a nurse licensed in the State of New Jersey. She admits to a history of drug dependence (P. Br. at 2), and the New Jersey Board of Nursing (State Board) suspended her license twice - in 1991 and 1995 - for serious misconduct in the charting and administration of controlled dangerous substances. I.G. Exs. 3, 4. Her offenses included: 1) failing on multiple occasions to chart the administration of controlled dangerous substances; 2) signing out on multiple occasions controlled dangerous substances in higher quantities than ordered by a physician; 3) signing out on multiple occasions controlled dangerous substances after a physician's order had expired; and 4) diverting controlled dangerous substances for her own use. Id.

On July 16, 1998, she entered into a consent order with the State Board. Under its terms, her license was reinstated. But, prior to resuming the practice of nursing, she agreed to complete successfully a pharmacology/documentation course. She also agreed to provide her employer, nursing supervisor, and Director of Nursing with copies of the consent order, advising them of its provisions. She agreed to submit to the State Board quarterly written reports from her nursing supervisor, and self-evaluation reports. She was required to comply with all health facility and agency policies, procedures, and accepted standards of nursing practice, and to refrain from using all chemical substances, including alcohol, unless prescribed by a physician for good medical cause. She agreed to report to the State Board, within 10 days of use, all chemical substances prescribed and used as an analgesic or anesthetic, and to inform all physicians and dentists from whom she received medical or dental care about her history of substance use. I.G. Ex. 2. The consent order was explicit in stating that any deviation from the terms of the order, without prior written consent of the Board, constituted a violation of probation and grounds for new charges to suspend or revoke her license. I.G. Ex. 2 at 2.

On September 21, 1998, Petitioner was hired and began working as a nurse at a nursing home. She had not completed the required pharmacology course. She did not inform her employer of her probationary status. She did not report her use of analgesic/anesthetic chemical substances as required. She did not inform treating physicians of her history of substance use. On numerous occasions she failed to chart the administration of controlled dangerous substances. I.G. Ex. 2 at 2 - 3. In response to these violations of the consent order, the State Board brought charges against her and, pursuant to another consent order, suspended her license for an indefinite period of no less than two years. I.G. Ex. 2 at 4. The language of the State Board's order is harsh:

[T]he Board finds that Respondent engaged in the use of fraud, deception, dishonesty and misrepresentation and professional misconduct in violation of N.J.S.A. 45:1-21(b) and (e) . . . .

I.G. Ex. 2 at 1.

II. Issue

The sole issue before me is whether, based on the loss of Petitioner's New Jersey nursing license, the I.G. appropriately excluded Petitioner from participation in Medicare 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 numbered heading. I discuss each Finding in detail.

1. Because Petitioner's license was suspended for reasons relating to her professional competence and professional performance, the I.G. has a basis on which to exclude Petitioner.

The Act authorizes the Secretary to exclude from participation in any federal health care program(1) an individual whose license to provide health care has been revoked or suspended by a State licensing agency for reasons bearing on the individual's professional competence, professional performance, or financial integrity. Act, section 1128(b)(4)(A). The I.G.'s implementing regulations reiterate the Act's grant of authority, and provide that the I.G. may exclude an individual whose license has been suspended or revoked for reasons "bearing on the individual's . . . professional competence, professional performance or financial integrity." 42 C.F.R. � 1001.501(a)(1).

The parties agree that the State Board suspended Petitioner's nursing license for reasons bearing on her professional competence and professional performance. See P. Br. at 1 ("Petitioner does not dispute the facts set forth in the Inspector General's brief nor the Inspector General's version of the law."). Petitioner instead challenges, on Constitutional and equitable grounds, the State Board's actions in suspending her license for the third time, arguing that she was without counsel and that extenuating circumstances not related to substance abuse explain and mitigate her actions.

However, the regulations preclude my looking behind the State Board's decision:

When the exclusion is based on the existence of a conviction, a determination by another government agency or any other prior determination, the basis for the underlying determination is not reviewable and the individual or entity may not collaterally attack the underlying determination, either on substantive or procedural grounds . . . .

42 C.F.R. � 1001.2007(d).

The factors I may consider in this proceeding are thus very limited. I am bound by the requirements of the statute and regulations, and I may not review the exercise of the I.G.'s discretion to exclude an individual under section 1128(b) of the Act. Because I find that Petitioner's medical license was revoked for reasons bearing on her professional competence and professional performance, I must sustain the exclusion without regard to Petitioner's Constitutional or equitable arguments. See Milan Kovar, M.D., DAB CR550 (1998).

2. The exclusion period may not be less than the period during which Petitioner's medical license is revoked.

For a person excluded under section 1128(b)(4), the Act also requires that the period of exclusion "shall not be less than the period during which the individual's or entity's license . . . is . . . revoked, suspended, or surrendered." Act, section 1128(c)(3)(E). I therefore have no authority to shorten the length of the exclusion period.

IV. Conclusion

For the reasons stated above, I conclude that the suspension of Petitioner's nursing license related to her professional competence and professional performance. I therefore affirm the I.G.'s determination and find that the I.G. had a basis to exclude Petitioner from participation in Medicare, Medicaid, and any federal health care programs for an indefinite period pursuant to section 1128(b)(4) of the Act.

JUDGE
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Carolyn Cozad Hughes

Administrative Law Judge

FOOTNOTES
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1. The Act defines a "Federal health care program" in this context to mean

"(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 . . . ; or (2) any State health care program, as defined in section 1128(h). Act, section 1128B(f); see Act, section 1128(b).

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