Kris R. Kile, DAB CR5641 (2020)

DECISION

I sustain the determination of the Inspector General (IG) to exclude Petitioner, Kris R. Kile, from participating in Medicare and other federally funded health care programs.  Section 1128(b)(4)(A) of the Social Security Act (Act) authorizes Petitioner’s exclusion.  The exclusion shall last until Petitioner’s licenses to provide health care services are restored by the State of Alaska.  Petitioner may be eligible for earlier reinstatement if she meets criteria stated at 42 C.F.R. § 1001.501(c).

I. Background

The IG filed a brief and four proposed exhibits, identified as IG Ex. 1-IG Ex. 4, supporting the exclusion determination.  Petitioner responded with her brief plus five proposed exhibits, identified as P. Ex. 1-P. Ex. 5.  The IG filed a reply brief.

Petitioner listed numerous proposed witnesses whom she contends will testify on her behalf.  She asserts that these witnesses will, if called, attest to her professionalism, her judgment, and her character.  The IG objected to my receiving these witnesses’ testimony.  The IG asserts that Petitioner failed to comply with my initial pre-hearing

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order in which I directed each party to provide any proposed testimony as written declarations made under penalty of perjury or affidavits.  Additionally, the IG challenges the relevance of these witnesses’ purported testimony.

I sustain the IG’s objections.  My initial pre-hearing order explicitly directed the parties to reduce all proposed testimony to written declarations or affidavits.  Petitioner did not comply with that requirement, and she did not explain why she did not comply.  Moreover, as described by Petitioner, the proposed testimony is irrelevant.  As I discuss below, the issue in this case is whether a State authority suspended Petitioner’s professional licenses for reasons bearing on her professional competence, professional performance, or financial integrity.  The authority to exclude derives exclusively from that State action.  Evidence pertaining to Petitioner’s professionalism, judgment, or character, while it might have been relevant in a State hearing that resulted in an order from a State agency, is not something that I may consider inasmuch as it is the State’s final action, and not Petitioner’s underlying conduct or character, that is before me.

I receive into evidence IG Ex. 1-IG. Ex. 4 and P. Ex. 1-P. Ex. 5.  I find no basis to convene an in-person hearing inasmuch as there is no relevant testimony that I must hear on the record.

II. Issues, Findings of Fact and Conclusions of Law

A.Issues

The issues are whether:  Section 1128(b)(4)(A) of the Act authorizes the IG to exclude Petitioner; and the length of the exclusion is reasonable.

B. Findings of Fact and Conclusions of Law

Section 1128(b)(4)(A) authorizes the IG to exclude any individual whose license to provide health care is suspended by a State licensing authority for reasons consisting of that individual’s professional competence, professional performance, or financial integrity.  The authority to exclude derives from the State action.  At issue before me in any case addressing an exclusion that the IG imposes pursuant to section 1128(b)(4)(A) is whether the State licensing authority took an action as is described in the statute.  In deciding that issue, I may not question the factual basis for the State’s action, nor may I allow the parties to relitigate the issue of whether grounds existed for the State licensing authority to suspend the individual’s license.

Here, the facts establish that the Alaska Board of Nursing (Nursing Board) suspended Petitioner’s licenses to serve as a registered nurse and as an advanced nurse practitioner for reasons encompassed by the Act.  On July 31, 2019, the Nursing Board notified Petitioner of its action suspending her professional licenses based on Petitioner’s failure

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to comply with a prior consent agreement.  IG Ex. 2; IG Ex. 3.  The Nursing Board acted on the authority of an Alaska law that enables the Nursing Board to suspend or revoke an individual’s professional license for reasons including unprofessional conduct that could adversely affect the welfare of the public.  AS 08.68.270(7); 12 AAC 44.770.

The Nursing Board cited three grounds for the suspension.  Ultimately, it relied on two of them:  (1) that Petitioner admittedly had prescribed narcotics to her boyfriend, with whom she shared a residence, in violation of Alaska State law; and (2) that Petitioner had maintained login information for a prescription drug monitoring program in a common area at the clinic at which Petitioner worked, rendering that information accessible to other employees, also in violation of Alaska State law.  IG Ex. 3 at 2.

Petitioner appealed, and an Alaska State administrative law judge heard her case.  The administrative law judge found that Petitioner’s violations “implicate carelessness” and recommended that her suspension be sustained.  IG Ex. 4 at 1, 9-10.  The administrative law judge concluded that Petitioner had demonstrated questionable professional competence by allowing unauthorized persons access to the prescription drug monitoring program.  Id. at 11-12.  The administrative law judge characterized Petitioner’s conduct as “inexcusably lax.”  Id. at 14.

On October 28, 2019, the Nursing Board adopted the administrative law judge’s decision and affirmed its determination to suspend Petitioner’s professional licenses.  IG Ex. 4 at 15.  There is no question that the Nursing Board’s actions squarely address the grounds for exclusion stated at section 1128(b)(4)(A) of the Act.  First, the Nursing Board took an adverse action against Petitioner, suspending her professional licenses.  Second, the Board took its action because it ultimately found that Petitioner had behaved unprofessionally by prescribing narcotics to her boyfriend in violation of Alaska law and because she had demonstrated questionable professional competence in allowing prescription drug monitoring program information to be accessible to other employees at her work place.

The IG excluded Petitioner for a period of time that coincides with her license suspensions.  That is consistent with regulatory provisions governing the length of exclusions imposed pursuant to section 1128(b)(4)(A) of the Act.  42 C.F.R.  § 1001.501(b)(1).  There are circumstances, explained at 42 C.F.R. § 1001.501(c), that may enable Petitioner to qualify for early reinstatement, provided that she satisfies certain criteria.

Petitioner argues at length that the adverse actions taken by the Nursing Board were unfair and illegal.  She asserts that the Nursing Board failed to take into consideration facts that operated in her favor.  She contends that the Nursing Board was biased against her and that it denied her the opportunity to present evidence that was favorable to her case.  She complains that the Nursing Board’s license suspension determination denied

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her due process.  She alleges that she is the victim of persistent harassment by some of her patients, her employees, and family members, and that the Nursing Board is complicit in this alleged harassment.  P. Br.

These assertions are irrelevant.  They amount to a collateral attack on the action that the Nursing Board took against Petitioner’s professional licenses, an attack that I am without authority to hear.  42 C.F.R. § 1001.2007(d).  As I have stated, the IG’s authority to exclude Petitioner derives from the final action taken by the Nursing Board.  On its face, that action satisfies the statutory criteria for exclusion pursuant to section 1128(b)(4)(A) of the Act.  The underlying merits of this State action are irrelevant at this juncture.