Scott Bonner, DAB CR5316 (2019)

DECISION

The Inspector General (IG) of the United States Department of Health and Human Services excluded Scott Bonner (Petitioner) from participation in Medicare, Medicaid, and all federal health programs because the North Carolina Board of Nursing (Nursing Board) suspended Petitioner's license as a Licensed Practical Nurse (LPN). The IG indicated that the exclusion would remain in effect until reinstatement by the IG. Petitioner requested a hearing to dispute the exclusion. For the reasons stated below, I affirm the IG's exclusion of Petitioner from participation in all federal health care programs.

I. Background

On August 31, 2018, the IG issued a notice that informed Petitioner that he was being excluded from participating in Medicare, Medicaid, and all federal health care programs because Petitioner's "license to ... provide health care as a[n] [LPN] in the State of North Carolina was revoked, suspended, or otherwise lost or was surrendered while a formal disciplinary proceeding was pending before the [Nursing Board] for reasons bearing on [Petitioner's] professional competence, professional performance, or financial

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integrity." IG Exhibit (Ex.) 1 at 1. The IG also stated that the exclusion would remain in effect until the IG reinstates Petitioner, which could occur when Petitioner regains his LPN license in North Carolina, obtains a professional health care license in any state, or has been excluded for a minimum of 3 years. IG. Ex. 1 at 1.

Petitioner timely requested a hearing to dispute the exclusion. Judge Bill Thomas was assigned to hear and decide this case. On October 17, 2018, Judge Thomas held a telephonic prehearing conference, the substance of which is summarized in his October 18, 2018 Order Summarizing Pre-hearing Conference and Setting Schedule for Filing Briefs and Documentary Evidence (Order). On November 20, 2018, this case was transferred to me.

In compliance with the Order, the IG timely submitted a brief (IG Br.) along with three exhibits (IG Exs. 1-3). Petitioner did not submit his prehearing exchange by January 25, 2019, the due date stated in the Order. On February 11, 2019, I issued an Order to Show Cause to Petitioner in which I gave him until February 22, 2019, to either submit his prehearing exchange with an explanation as to why it is late or withdraw his hearing request. Petitioner did not respond by February 22, 2019, and my office contacted Petitioner in April 2019. Petitioner responded that he wanted to continue pursuing this appeal, and I permitted him to file his prehearing exchange. Petitioner filed a brief but no exhibits (P. Br.). The IG declined to file a reply brief.

II. Decision on the Record

Petitioner did not object to any of the IG's proposed exhibits; therefore, I admit IG Exs. 1-3 into the record. Order ¶ 5; Civil Remedies Division Procedures (CRDP) § 14(e); see also 42 C.F.R. § 1005.8(c).

I render this decision based on the written record because neither party indicated that they had any witnesses to testify at a hearing and both parties indicated that a hearing was not necessary in this case. IG Br. at 6; P. Br. at 3; CRDP § 19(b), (d).

III. Issue

Whether a state licensing authority suspended Petitioner's LPN license for reasons bearing on his professional competence or professional performance.

IV. Jurisdiction

I have jurisdiction to hear and decide this case. 42 U.S.C. §§ 405(b), 1320a-7(f)(1); 42 C.F.R. §§ 1001.2007(a)(1)-(2), 1005.2(a).

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V. Findings of Fact, Conclusions of Law, and Analysis

My findings of fact and conclusions of law are set forth in italics and bold font.

A. The IG excluded Petitioner under 42 U.S.C. § 1320a-7(b)(4)(A), and the IG has proven each required element under the statute.

The IG cites 42 U.S.C. § 1320a-7(b)(4) as the basis for Petitioner's permissive exclusion. IG Ex. 1. The statute provides, in pertinent part:

(b) PERMISSIVE EXCLUSION. – The Secretary may exclude the following individuals and entities from participation in any Federal health care program

* * * *

(4) LICENSE REVOCATION OR SUSPENSION. – Any 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.

Thus, the elements that the IG must prove in this case are: (1) a state licensing authority (2) suspended Petitioner's LPN license (3) for reasons bearing on Petitioner's professional competence, professional performance, or financial integrity. For the reasons stated below, I conclude that the IG has proven each of these elements.

1. The Nursing Board is the state licensing authority for nurses in North Carolina.

By statute, the Nursing Board has the authority to "[e]xamine, license, and renew the licenses of duly qualified applicants for licensure" as well as "(i) refuse to issue a license to practice nursing; (ii) refuse to issue a certificate of renewal of a license to practice

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nursing; (iii) revoke or suspend a license to practice nursing; and (iv) invoke other such disciplinary measures, censure, or probative terms against a licensee as it deems fit and proper ...." N.C. Gen. Stat. §§ 90-171.23(b)(6), 90-171.37. Therefore, I conclude that the Nursing Board is a state licensing authority for purposes of 42 U.S.C. § 1320a-7(b)(4).

2. The Nursing Board suspended Petitioner's license to practice as an LPN in North Carolina.

Petitioner was licensed as an LPN in North Carolina (Licensing Number 79316). IG Ex. 3 at 1. The Nursing Board received a complaint that Petitioner, while employed with Carillon Assisted Living in Durham, North Carolina, tested positive for marijuana. IG Ex. 3 at 1. In April 2017, Petitioner entered into a Non-Disciplinary Consent Order with the Nursing Board in which he: voluntarily waived his right to a formal hearing, stipulated that he tested positive for marijuana; admitted that grounds existed to discipline Petitioner, and agreed to numerous conditions, including that Petitioner would enter "the Intervention Program ("IP")" and "be subject to the conditions of the IP until [Petitioner] completes a minimum of one (1) year of drug screening." IG Ex. 3.

On September 13, 2017, the Nursing Board issued an Order to Suspend and Show Cause. IG Ex. 2. The Nursing Board found that Petitioner violated the terms of the Non-Disciplinary Consent Order because he neither registered for drug screening nor submitted a request to withdraw from participation in the IP. IG Ex. 2 at 1. The Nursing Board suspended Petitioner's LPN license for a minimum of 12 months. IG Ex. 2 at 2.

Petitioner admits that his LPN license is suspended. Petitioner stated that he was asked to provide a sample for a drug test because there had been a "huge discrepancy in oxycontin" at Carillon Assisted Living, and wishes now that he had refused the test. P. Br. at 1-2. Therefore, I conclude that Petitioner's LPN license was suspended for purposes of 42 U.S.C. § 1320a-7(b)(4).

3. The Nursing Board suspended Petitioner for reasons bearing on Petitioner's professional competence or professional performance.

The IG asserts that Petitioner's suspension involved reasons bearing on his professional competence or professional performance. IG Br. at 4-5. Petitioner disputes this, indicating that "I did not have the financial resources for the drug tests required by the state to get [the LPN license] reinstated, so I just let it go and they then revoked it." P. Br. at 2.

To determine whether a suspension or revocation of a license bears on professional competence or professional performance, I need to look at the "totality of [the excluded

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individual's] actions that resulted in the revocation of [the excluded individual's] nurse's license ...." Tracy Gates, R.N., DAB No. 1768 (2001). As more fully explained:

Moreover, that the Nursing Board deemed Petitioner's actions sufficient to warrant the revocation of her nurse's license strongly indicates that those actions bore on her professional competence or performance. While the Nursing Board did not specifically state that Petitioner's professional competence or professional performance were compromised, this does not mean that her actions were not within the standard at section 1128(b)(4). This Board has previously held that a state licensing authority is not required to make findings with respect to an individual's professional competence, professional performance, or financial integrity, or to use those words, in order for the I.G. to exclude an individual. Brian Bacardi, D.P.M., DAB No. 1724 (2000); Olufemi Okonuren, M.D., DAB No. 1319 (1992). The wording of the provision merely requires that the reasons for the revocation have "bearing on" these concerns. A contrary interpretation would subject federal programs and patients to risks simply because of the state licensing authority's choice of words.

Id.

In the present case, the local police were investigating why a significant amount of oxycontin was missing from the assisted living facility where Petitioner served as Director of Nursing, and Petitioner was asked to take a drug test. P. Br. at 2. The drug test was positive for marijuana. IG Ex. 3 at 1. The Nursing Board permitted Petitioner to enter a drug testing program in lieu of disciplinary sanctions, and Petitioner agreed to be tested periodically for drugs and to refrain from drug use. IG Ex. 3 at 2-4. However, shortly after agreeing to the IP, Petitioner requested to withdraw from participation in the IP, and the Nursing Board provided Petitioner with the form to complete to withdraw from that program. "Between July 17, 2017 and August 3, 2017, [Nursing] Board staff attempted to contact [Petitioner] via telephone three (3) times regarding receipt of the Consent to Withdraw Form. A final deadline of August 3, 2017 was given for the signed withdrawal form to be submitted." IG Ex. 2 at 1. Because months had gone by and Petitioner neither registered for drug screenings nor withdrew from participation in the IP, the Nursing Board suspended Petitioner in September 2017. IG Ex. 2.

Petitioner simply argues that he could not afford the drug screenings. P. Br. at 2. Petitioner also states that he did something that is not illegal in "most states." P. Br. at 4.

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Petitioner's suspension was based on his positive drug test and, ultimately, on his failure to obtain periodic drug testing. Petitioner did not communicate with the Nursing Board for months and there is no indication that Petitioner informed the Nursing Board that his only impediment to the testing was cost. In the present proceeding, Petitioner has evidenced a similar failure to meet deadlines and maintain communication. Providing health care requires individuals to comply with many rules and requirements. Petitioner's conduct before the Nursing Board bears on his professional competence and performance. Further, regardless of the legality of marijuana in various states, the Nursing Board is rightly concerned whether an individual may abuse a substance that could impair that individual's ability to provide health care to patients. Therefore, I conclude that the IG has proven that Petitioner's suspension had a bearing on his professional competence and professional performance for purposes of 42 U.S.C. § 1320a-7(b)(4).

B. The length of Petitioner's exclusion is reasonable as a matter of law.

Under 42 U.S.C. § 1320a-7(c)(3)(E), the period of exclusion "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 ...." Because Petitioner has not asserted that his LPN license has been reinstated, I conclude that an indefinite period of exclusion is warranted under 42 U.S.C. § 1320a-7(c)(3)(E).

VI. Conclusion

I affirm the IG's determination to exclude Petitioner from participating in Medicare, Medicaid, and all federal health care programs pursuant to 42 U.S.C. § 1320a-7(b)(4).