Department of Health and Human Services DEPARTMENTAL APPEALS BOARD Civil Remedies Division |
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IN THE CASE OF | |
Tracey Gates, R.N., |
DATE: November 1, 2000 |
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The Inspector General
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Docket No.C-00-523 Decision No. CR708 |
DECISION | |
I sustain the determination of the Inspector General (I.G.)
to exclude Tracey Gates (Petitioner) from participation in the Medicare,
Medicaid, Maternal and Child Health Services Block Grant and Block Grants
to States for Social Services programs (Medicare programs), until Petitioner's
license to provide health care in the State of Connecticut is reinstated.
I base my decision upon evidence which proves that Petitioner's nursing
license was revoked by the State of Connecticut for reasons relating to
her professional competence, professional performance, or financial integrity.
Additionally I find that, when an exclusion imposed by the I.G. is concurrent
with the remedy imposed by a State licensing authority, as occurs in this
case, there is no issue of reasonableness and such an exclusion is mandated
by law. I. Background By letter dated March 31, 2000, the I.G. notified Petitioner
that she was being excluded from participation in the Medicare programs.
The I.G. explained that Petitioner's exclusion was authorized under section
1128(b)(4) of the Social Security Act (Act) because Petitioner's "license
to practice medicine or provide health care in the State of Connecticut
was revoked, suspended, or otherwise lost or was surrendered while a formal
disciplinary proceeding was pending before the licensing authority for
reasons bearing on [her] professional competence, professional performance,
or financial integrity." Additionally the I.G. advised Petitioner that
her exclusion would remain in effect "as long as that license is revoked,
suspended, or otherwise lost." By letter dated May 26, 2000, Petitioner requested a hearing
and the case was assigned to me for decision. The parties agreed that
the case could be decided based on their written submissions and that
an in-person hearing was not necessary. The parties have each submitted
written arguments and proposed exhibits. The I.G. submitted a brief, a reply brief, and four proposed exhibits (I.G. Ex. 1-4). Petitioner did not object to these exhibits. Petitioner submitted a response brief. In the absence of objection, I am admitting I.G. Ex. 1-4 into evidence. I base my decision in this case on these exhibits, the applicable law, and the arguments of the parties. II. Applicable Law Pursuant to section 1128(b)(4) of the Act, the I.G. may
exclude "[a]ny 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, as amended
by section 212 of the Health Insurance Portability and Accountability
Act of 1996 (Pub. L. 104-191), 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." Prior to 1996, the Act provided no criteria
for establishing the length of exclusions for individuals or entities
excluded pursuant to section 1128(b)(4). Under the 1996 amendments, no
issue of reasonableness exists where the exclusion imposed by the I.G.
is concurrent with the loss, suspension, or revocation of a State license.
A concurrent exclusion, as in Petitioner's case, is the minimum required
by law. III. Findings of Fact and
Conclusions of Law 1. At all times relevant to this case Petitioner was licensed
as a registered nurse in the Commonwealth of Connecticut. I.G. Ex. 4 at
2. 2. On April 24, 1996, the Commonwealth of Connecticut
Board of Examiners for Nursing (Board) 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 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 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 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. 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). IV. Petitioner's Contentions Petitioner does not dispute the fact that her nursing
license was revoked by the Board, or that such revocation is within the
scope of section 1128(b)(4). Rather she contests the I.G.'s assertion
that such revocation occurred for reasons bearing on her professional
performance or professional competence. She asserts that the Commonwealth
of Connecticut Board concluded only that her abuse of controlled substances
"may" have affected her professional competence and professional performance. Petitioner also maintains that her exclusion violates
her due process rights. In this regard she asserts that her exclusion
is overly broad, as she is excluded from participating in any role as
a health care provider. She requests that her exclusion be limited to
her practice as a registered nurse only, and not encompass the overall
provision of health care services in other capacities. Petitioner asserts
that such broad exclusion, as implemented by the I.G., makes it impossible
for her to obtain employment in the health care field. She also contends
that her equal protection rights are violated by the exclusion as a similarly
situated person who never held a license as a health care provider would
not be precluded from obtaining employment in the
health care field as a result of a substance abuse problem. Finally, Petitioner
asserts that her exclusion violates her rights under the Americans with
Disabilities Act, in that it wrongfully discriminates against her disability,
the disease of addiction, which she asserts is currently in remission. V. Discussion
Petitioner concedes that her nursing license has been
revoked by a State licensing authority within the scope of section 1128(b)(4)
of the Act and I find that such has occurred. The Act, as amended at section
1128(c)(3)(E), requires that an individual excluded pursuant to section
1128(b)(4) be excluded for not less than the period during which the individual's
license to provide health care has been revoked or suspended in any state.
It is clear from the language of the amendment at section 1128(c)(3)(E)
that the minimum length of the exclusion must be coterminous with the
term of the revocation or suspension of the State license. Since Petitioner's
nursing license was revoked in the Commonwealth of Connecticut, the Act
requires that the period of the exclusion will not be less than the period
during which her license to provide health care in the Commonwealth of
Connecticut is revoked. Petitioner is required to obtain from the Board
authority the same type of license that such officials revoked before
she can be considered for reinstatement as a participant in the Medicare
program. See Act, section 1128(c)(3)(E); Mary E. Groten,
DAB CR518 (1998). It is also not disputed that Petitioner's nursing license
is a license to provide health care within the scope of section 1128(b)(4)
of the Act. Although Petitioner claims that her license was not revoked
for reasons bearing on her professional performance or professional competence,
I disagree. I find that the record has established that Petitioner's license
was revoked as the result of her substance abuse problems and that those
problems had an impact on her professional competence and professional
performance. An examination of the chronology of events associated with
the Board's revocation of Petitioner's nursing license underscores the
conclusion that her license was revoked because her substance abuse unfavorably
impacted her professional competence and performance. On April 24, 1996,
the Board placed Petitioner's license on probation for three years, 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.
Petitioner's probation prohibited her from abusing drugs and/or alcohol
and required that she submit to random alcohol and drug screenings. On
November 23, 1998, she submitted a urine specimen which tested positive
for the presence of two controlled substances, morphine and codeine. On
February 10, 1999, Petitioner submitted a urine specimen which tested
positive for the presence of morphine. On March 17, 1999, Petitioner was
notified by the Board that her license was summarily suspended pending
a final determination of the charge that her conduct presented a clear
and immediate danger to the public health and safety. I.G. Ex. 2 at 1.
On April 7, 1999, a hearing was held by the Board in which Petitioner's
positive urine screening results were deemed conclusive evidence of her
abuse of the controlled substances of morphine and codeine. The Board
further found that Petitioner's abuse of these substances "may" affect
her practice as a licensed nurse. The Board also determined that Petitioner's
two positive test results violated the terms of her probation. Based upon
these findings of fact and conclusions of law, the Board revoked Petitioner's
license, effective July 21, 1999. Id. at 4. This chronology clearly
demonstrates that Petitioner's substance abuse was the basis for the license
revocation proceeding and that in light of such abuse, the Board found
that Petitioner's professional competence and performance were undermined. Petitioner is in fact mistaken in her claim that the Board
did not find her professional performance or professional competence to
have been impaired. The basis of the Board's action, as cited in its July
21, 1999 Order, was section 20-99 of the General Statutes of Connecticut,
which provides in relevant part:
As such authority was cited by the Board as the basis
for its action, it is clear that Petitioner's substance abuse was found
by the Board to bear upon her professional competence and performance.
Although the revocation of Petitioner's license was a result of her sporadic
abuse of two controlled substances, morphine and codeine, numerous administrative
decisions support the conclusion that substance abuse like Petitioner's
impacts unfavorably on an individual's professional competence and professional
performance, thereby establishing a basis for exclusion under section
1128(b)(4) of the Act. Roy Cosby Stark, DAB CR676, aff'd,
DAB No. 1746 (2000), citing Wilbur D. Hilst, M.D., DAB CR621 (1999);
Charles Sutherland, D.O., DAB CR561 (1998); Mary E. Groten,
DAB CR518 (1998). Indeed it has been held that even in the absence of
a long-standing history of substance abuse, infrequent, occasional, or
even one-time drug usage impacts an individual's professional competence
or professional performance. stark, id. at 10. Based upon such authority, I find that the I.G. properly
excluded Petitioner, and that Petitioner's exclusion will remain effective
until she obtains the same type of license in Connecticut that was previously
revoked by the Board.
Petitioner asserts that her constitutional rights and
her rights under the Americans with Disabilities Act have been violated
by her exclusion and that her exclusion is overly broad, with the effect
that her employment in any health care field has been precluded. I do
not have the authority to decide these issues. It is clear that administrative
law judges are limited in the types of claims that they may adjudicate.
See 42 C.F.R. � 1005.4(c)(1) and (5). Administrative law judges
have no statutory or regulatory authority to find invalid or refuse to
follow federal statutes or regulations. Wayne E. Imber, M.D., DAB
CR661, aff'd, DAB No. 1740 (2000); Richard A. Fishman, D.O.,
DAB CR100 (1990) (administrative law judges do not have authority to declare
federal statutes unconstitutional). As a result of these explicit jurisdictional prohibitions,
Departmental Appeals Board administrative law judges lack authority to
review the constitutionality of statutes as well as decide claims arising
under other federal statutes such as the Americans with Disabilities Act.
Petitioner may not use the administrative appeals process set forth at
42 C.F.R. Part 1005 et seq. to obtain redress for both her alleged constitutional
and federal statutory harms. See Serban I. Cocioba, M.D.,
DAB CR654 (2000) (finding no jurisdiction to rule on constitutional claims);
Morton Markoff, D.O., DAB CR538 (1998) (administrative law judges
lack authority to decide constitutional claims); Roberta E. Miller,
DAB CR367 (1995) (42 C.F.R. � 1005.4(c)(1) delegation of authority to
administrative law judges to decide exclusion cases does not include the
authority to rule on the constitutionality of federal statutes or the
I.G.'s actions); Charles Sutherland, D.O., DAB CR561 (1998) (ALJ
has no authority to decide claim under the Americans with Disabilities
Act).
Petitioner's claim for equitable relief, that is, an exclusion
"tailored" so that she may seek employment in the health care field is
not relevant. Petitioner's contention that her exclusion from participation
in Medicare programs effectively deprives her of a livelihood is not pertinent
to the resolution of this appeal. See Farhad Mohebban, M.D.,
DAB CR686 (2000); Carlos Rivera-Cruz, DAB CR677 (2000); Arlene
Elizabeth Hunter, DAB CR505 (1997). Moreover, despite the broad effect
of exclusion from participation in Medicare programs as a provider, such
is the remedial purpose behind the I.G.'s exclusion authority. See
42 C.F.R. � 1001.1901; Chander Kachoria, R.Ph., DAB No. 1380 (1993)
(recognizing that although the economic effects of exclusion on a provider
may be adverse, the goal of exclusion is to protect federal programs by
removing untrustworthy providers). VI. Conclusion I conclude that the I.G. was authorized to exclude Petitioner pursuant to section 1128(b)(4) of the Act. I conclude also that the term of exclusion imposed by the I.G. is mandated by section 1128(c)(3)(E) of the Act. |
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JUDGE | |
Joseph K. Riotto Administrative Law Judge |
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