April Cobia, DAB CR5455 (2019)

DECISION

I sustain the determination of the Inspector General (IG) to exclude Petitioner, April Cobia, from participating in Medicare, Medicaid, and other federally funded health care programs. Section 1128(b)(4) of the Social Security Act (Act) authorizes Petitioner's exclusion. Petitioner shall remain excluded until she regains her license to practice as a registered nurse in the State of Arizona.

I. Background

The IG filed a brief, a reply brief, and two exhibits that she identified as IG Ex. 1 and IG Ex. 2. Petitioner filed a brief and 47 exhibits (P. Ex. 1-P. Ex. 47). Neither Petitioner nor the IG filed written direct testimony of a witness and neither party requested an in-person hearing. Consequently, I receive the parties' exhibits into the record and decide this case based on their written exchanges.

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II. Issues, Findings of Fact and Conclusions of Law

A. Issues

The issues are whether the IG may exclude Petitioner and, if so, whether the term of the exclusion is reasonable.

B. Findings of Fact and Conclusions of Law

Section 1128(b)(4) of the Act authorizes the IG to exclude any individual whose license to provide health care has been revoked or suspended by any State licensing authority for reasons bearing on that individual's professional competence, professional performance, or financial integrity. The exclusion remains in effect until the excluded individual regains his or her professional license. Act § 1128(c)(3)(E).1

The Arizona State Board of Nursing (Board of Nursing) revoked Petitioner's license to practice as a registered nurse in Arizona. Specifically, the Board of Nursing found that Petitioner committed "unprofessional conduct" and that this conduct constituted cause to revoke her license. IG Ex. 2 at 24-25. The Board of Nursing made several findings of unprofessional conduct. These included findings that Petitioner: (1) violated her employer's policy by reporting a patient's wife to Adult Protective Services and by accompanying a patient to an emergency room without informing her supervisor; (2) improperly kept a patient's medical records for her own use in violation of law; (3) engaged in disorderly conduct that included threatening individuals with racial slurs and racist epithets, calling into question her ability to care for patients of different races; (4) made false written statements to the Board of Nursing's staff during the course of its investigation into Petitioner's conduct; (5) made inappropriate and self-serving entries in patients' medical records; (6) made false statements on employment applications; and (7) failed to report to the Board of Nursing, as is required by Arizona law, that she had been charged with disorderly conduct.

The evidence establishes ample grounds for the IG to exclude Petitioner pursuant to section 1128(b)(4). The Board of Nursing's findings plainly establish that it revoked Petitioner's registered nurse license for reasons bearing on her professional performance. The Board of Nursing expressly revoked Petitioner's license based on its numerous and specific findings of unprofessional conduct by Petitioner.

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Petitioner does not dispute that the Board of Nursing revoked her license, nor does she dispute that the Board of Nursing explicitly did so based on its findings that Petitioner engaged in unprofessional conduct. However, Petitioner asserts that the Board of Nursing's expressed reasons for revoking her license are a pretense and that she is a victim of biased and unfair findings. Essentially, Petitioner claims that the Board of Nursing made unsustainable findings of unprofessional conduct based on false or contrived allegations that are unsupported by fact.

This constitutes a collateral attack on the Board of Nursing's decision. Petitioner would have me look behind that agency's decision and relitigate the evidence leading to the Board of Nursing's decision. I have no authority to do that. In any case brought pursuant to section 1128(b)(4) of the Act, the IG's authority to exclude derives from the action of another agency, in this case, the Board of Nursing. It is the decision by the Board of Nursing that generates the IG's exclusion authority, and not the underlying conduct that led to that decision. 42 C.F.R. § 1001.2007(d). If Petitioner wishes to challenge the Board of Nursing's decision, she may not do so here but must exercise whatever due process rights that she may have under Arizona law.

• 1. The IG has discretion to consider early reinstatement of an excluded individual if that individual obtains a professional health care license in any State or after a minimum exclusion period of three years. 42 C.F.R. § 1001.501(c).