Monica Ferguson, DAB No. 3013 (2020)

FINAL DECISION ON REVIEW OF ADMINISTRATIVE LAW JUDGE DECISION

Monica Ferguson (Petitioner) appeals the Administrative Law Judge (ALJ) decision upholding the Inspector General’s (I.G.) decision to exclude Petitioner from participating in Medicare, Medicaid, and all federal health care programs under section 1128(b)(5) of the Social Security Act (Act) based on the termination of Petitioner’s enrollment in Medicaid for reasons bearing on her financial integrity, her professional competence or her professional performance.  Monica Ferguson, DAB CR5585 (2020) (ALJ Decision).  The ALJ concluded the I.G. was authorized to exclude Petitioner at least until the Oregon Department of Human Services, Aging and People with Disabilities (ODHS or state agency) reinstates her program participation.

For the reasons set out below, we affirm the ALJ’s conclusion that the I.G. had a basis to exclude Petitioner under section 1128(b)(5) of the Act.  As we explain, however, our analysis differs in part from that of the ALJ.  We affirm the ALJ’s conclusion that the period of Petitioner’s exclusion from federal health care programs is reasonable as a matter of law.

Legal Background

Section 1128(b)(5)(B) of the Act permits the Secretary of Health and Human Services (Secretary) to exclude from participation in any federal health care program an “individual” who “has been suspended or excluded from participation, or otherwise sanctioned, under . . . a State health care program, for reasons bearing on the individual’s . . . professional competence, professional performance, or financial integrity.”  The Secretary has delegated the exclusion authority to the I.G.  42 C.F.R. § 1001.601(a)(1)(ii).  The “term ‘or otherwise sanctioned’ . . . is intended to cover all actions that limit the ability of a person to participate in the program at issue regardless of what such an action is called . . . .”  42 C.F.R. § 1001.601(a)(2).

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The length of an exclusion under section 1128(b)(5) “shall not be less than the period during which” the individual “is excluded or suspended from a Federal or State health care program.”  Act § 1128(c)(3)(E); accord 42 C.F.R. § 1001.601(b)(1). 

An individual excluded under section 1128(b) of the Act may request a hearing before an ALJ only on the issues of whether (1) the basis for the imposition of the exclusion exists and (2) the length of exclusion is unreasonable.  42 C.F.R. § 1001.2007(a)(1).  Any party dissatisfied with an ALJ decision may appeal the decision to the Board.  Id. § 1005.21(a).

If an exclusion “is based on . . . a civil judgment imposing liability by Federal, State or local court, a determination by another Government agency, or any other prior determination where the facts were adjudicated and a final decision was made,” then “the basis for the underlying . . . determination is not reviewable and the individual . . . may not collaterally attack it either on substantive or procedural grounds in this appeal.”  42 C.F.R. § 1001.2007(d).

Case Background1

1.  Termination of Petitioner’s Medicaid Homecare Worker enrollment

In Oregon, Homecare Workers (HCWs) in the Consumer-Employed Provider Program provide Medicaid in-home services to ODHS clients.  I.G. Ex. 3, at 1; I.G. Ex. 4, at 9 (citing Oregon Administrative Rules (OAR)).  HCW services “are intended to help disabled clients remain living in their own homes.”  I.G. Ex. 4, at 9.  “An individual must be a Medicaid-enrolled provider before” ODHS can pay the individual “to provide Medicaid services” to ODHS clients.  I.G. Ex. 4, at 9 (citing OAR 411-031-0020(47) (defining provider enrollment to include “the issuance of a Medicaid provider number”)).  An HCW must meet multiple standards to enroll and maintain enrollment in the program.  OAR 411-031-0040(8).

In a letter dated December 19, 2017, ODHS notified Petitioner that it was terminating her HCW enrollment in the Consumer-Employed Provider Program.  I.G. Ex. 3, at 1-2.2  The letter stated that ODHS had previously enrolled Petitioner as a “HCW provider” and “[i]n that capacity” Petitioner “was providing in-home services to two of” ODHS’s “clients.”  Id. at 1.  The letter said ODHS was terminating Petitioner’s “HCW provider enrollment” based on a statement alleging that Petitioner had violated five HCW enrollment standards:  (1) Lack of Knowledge, Skills and Abilities; (2) Protective Service and Abuse

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Rules; (3) Fiscal Improprieties; (4) Failure to Report an Arrest of a Potentially Disqualifying Crime; and (5) Failure to Resubmit to a Background Check.  Id. at 1-5.  The letter notified Petitioner she had the right to a state administrative hearing to contest the termination.  Id. at 5-6.  Petitioner requested a state hearing.

2.  Petitioner’s state administrative appeal

Following an in-person hearing, the Office of Administrative Hearings, State of Oregon for the Department of Human Services issued a Final Order on September 13, 2018, affirming the termination of Petitioner’s Medicaid provider enrollment and number (MPEN) effective September 14, 2017, based on two of the five alleged violations set out in the termination notice.  I.G. Ex. 4.  The Final Order determined that:  (1) the “preponderance of evidence demonstrated that [Petitioner’s] repeated overbilling and double billing constituted fiscal improprieties” as defined under state regulations; and (2) Petitioner failed to timely report that she was arrested and charged with Driving Under the Influence of Intoxicants (DUII)–Controlled Substance, a potentially disqualifying crime.3  Id. at 13, 14.  The decision stated that either violation was a sufficient basis on its own to support the termination of Petitioner’s Medicaid HCW provider enrollment and number.  Id. at 14.The state ALJ concluded that the evidence was not sufficient to support the other alleged violations cited in the termination notice.  Id. at 11-13.

3.  The I.G.’s exclusion of Petitioner from federal health care programs

By letter dated August 30, 2019, the I.G. notified Petitioner that she was “excluded from participation in any capacity” in Medicare, Medicaid, and all federal health care programs under section 1128(b)(5) of the Act because ODHS “suspended, excluded or otherwise sanctioned” her under “a State health care program, for reasons bearing on” her “professional competence, professional performance or financial integrity.”  I.G. Ex. 2, at 1.  The I.G. stated that Petitioner’s exclusion would “remain in effect until [she is] reinstated by the health care program which originally took the action against” her.  Id.  The notice explained that reinstatement in federal health care programs is not automatic and that she must apply to the I.G. to be granted reinstatement.  Id.at 2.  Petitioner timely requested an ALJ hearing to contest the I.G.’s decision.

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4.  The ALJ Decision

On review of the parties’ written submissions and after determining “that an in-person hearing would serve no purpose,” the ALJ sustained the I.G.’s decision.  ALJ Decision at 2.  The ALJ described Petitioner as “a nurse practitioner, licensed in the State of Oregon, who worked as a Medicaid-enrolled homecare worker.”  Id. at 3.  The ALJ stated that ODHS terminated Petitioner’s Medicaid enrollment “[c]iting violations of program rules.”  Id. (citing I.G. Ex. 3).  The ALJ explained that Petitioner had appealed the termination of her Medicaid enrollment and a state ALJ “affirmed the termination, based on Petitioner’s fiscal improprieties (repeated overbilling and double billing)” and failure “to report her arrest for a potentially disqualifying crime (driving under the influence of intoxicants – opioids and amphetamines).”  Id. (citing I.G. Ex. 4).

Based on these facts, the ALJ concluded, the I.G. was authorized to exclude Petitioner from participating in Medicare, Medicaid, and all federal health care programs pursuant to section 1128(b)(5) of the Act because the “Oregon state agency suspended, excluded, or otherwise sanctioned Petitioner from a state health care program for reasons bearing on her financial integrity as well as her professional competence or performance.”  ALJ Decision at 3.  The ALJ concluded that Petitioner’s period of exclusion, “for as long as the state Medicaid exclusion continues,” was required under section 1128(c)(3)(E) of the Act and 42 C.F.R. § 1001.601(b)(1).  Id.at 4.  The ALJ determined that Petitioner’s arguments challenging the state agency’s investigation and final decision were impermissible collateral attacks; she had no authority to review Petitioner’s constitutional challenges; and the letters from friends and colleagues, submitted by Petitioner and attesting to Petitioner’s good character, provided no basis for reversing or modifying the exclusion.  Id.at 3-4.

Standard of Review

The Board’s standard of review on a disputed issue of fact is whether the ALJ decision is supported by substantial evidence on the whole record.  42 C.F.R. § 1005.21(h).  The standard of review on a disputed issue of law is whether the ALJ decision is erroneous.  Id.

Discussion

As summarized above, the only issues Petitioner may appeal in this case are whether:  (1) the I.G. had a basis to exclude Petitioner; and (2) the length of Petitioner’s exclusion is unreasonable.  42 C.F.R. § 1001.2007(a)(1).  Below, we first describe why the I.G. was authorized to exclude Petitioner under section 1128(b)(5)(B) of the Act and Petitioner’s arguments to the contrary are unavailing.  We next explain that the length of Petitioner’s exclusion is set by statute and therefore reasonable as a matter of law.  We then address Petitioner’s remaining arguments and discuss why they provide no basis for reversing the

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I.G.’s exclusion of Petitioner from participating in Medicare, Medicaid and all federal health programs at least until ODHS reinstates her Medicaid program participation.4

1.  The I.G. had a basis to exclude Petitioner from participation in all federal health care programs under section 1128(b)(5)(B) of the Act.

An exclusion under section 1128(b)(5)(B) is “derivative in nature.”  George Iturralde, M.D., DAB No. 1374, at 6 (1992).  That is, the statute and implementing regulations give the I.G. the authority to rely on the factual findings of another government agency and to base an exclusion on the determination of the other agency.  Cf. Donna Rogers, DAB No. 2381, at 4 (2011) (describing derivative exclusion authority in context of section 1128(b)(4) exclusion). 

Two conditions must be met to support a section 1128(b)(5)(B) exclusion:  (1) The “individual . . . has been suspended or excluded from participation, or otherwise sanctioned, under . . . a State health care program”; and (2) the “reasons” for the suspension, exclusion or sanction had a “bearing on the individual’s . . . professional competence, professional performance, or financial integrity.”  “The term ‘or otherwise sanctioned’” is meant “to cover all actions that limit the ability of a person to participate in the program at issue.”  42 C.F.R. § 1001.601(a)(2).

a.  Petitioner was excluded from participation or otherwise sanctioned under a state health care program.

The evidence in this case establishes that the first condition for Petitioner’s exclusion under section 1128(b)(5)(B) is met.  ODHS’s December 19, 2017 notice of termination and Final Order of September 13, 2018, show that ODHS excluded Petitioner, an individual, from participating in Oregon Medicaid, a state health care program, by terminating her Medicaid HCW provider enrollment and number.  I.G. Ex. 3, at 1-2; I.G. Ex. 4, at 1, 14; Act § 1128(h)(1) (defining state health care program to include a state plan approved under title XIX (Medicaid)). 

Petitioner argues that the termination of her HCW enrollment was not a proper basis for the I.G. to exclude her from participating in any capacity in all federal health care programs.  Request for Review of ALJ Decision (RR) at 8, 12-15; Reply to I.G. Response (Reply) at 5, 8-10, 12, 16; see also Informal Brief of Petitioner, Dkt. No. C-20-19 (P. Br.) at 19-20, 23.  Petitioner asserts that an HCW is not a licensed health care practitioner or professional, the state agency that oversees HCWs has no authority over the licensing of

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nurses, and the termination of an HCW enrollment does not constitute a license revocation, suspension or sanction.  RR at 2-4, 8-10, 12-15; Reply at 5-6, 8-10; P. Br. at 19-20.  Petitioner also contends that the ALJ mistakenly equated the termination of Petitioner’s enrollment in Medicaid as a HCW with the termination of her Medicaid enrollment as a nurse practitioner.  RR at 2-4, 14, 15; Reply at 2, 11-12.  ODHS’s termination of her HCW enrollment, Petitioner argues, did not involve her professional competence or performance, and the Final Order concluded that ODHS did not prove she lacked HCW knowledge, skills or abilities or that she neglected or abused her clients.  RR at 1-3, 6, 11-13; Reply at 1.  Moreover, Petitioner alleges, after ODHS terminated her HCW enrollment, she continued to work as a licensed nurse practitioner through her “clinic,” which offered “individualized primary care services in-office and at home or the patient’s residence,” serving clients enrolled in Medicare or Medicaid.  Reply at 1, 20; P. Br. at 14.5  “If [the] IG wanted to exclude Petitioner as [a nurse practitioner], Independent healthcare provider,” Petitioner says, “then [the] IG should have done an investigation that pertains to those credentials.”  Reply at 9.

Petitioner’s argument that the termination of her HCW enrollment was not an appropriate basis for the I.G. to exclude her from participating in all federal health care programs ignores the plain language of section 1128(b)(5) and conflates the criteria necessary to support an exclusion under section 1128(b)(5) with a different section of the Act.  The wording of section 1128(b)(5)(B) permits the I.G. to exclude an “individual” who has been “excluded from participation, or otherwise sanctioned, under . . . a State health care program,” regardless of whether the individual was licensed or the capacity in which the individual was participating in the state health care program.  A different provision of the Act, section 1128(b)(4)(A), authorizes the I.G. to exclude an individual whose license to provide health care has been revoked or suspended by a state licensing authority.  That is not the provision on which the I.G. relied to exclude Petitioner, however.  In Petitioner’s case, the fact that ODHS excluded Petitioner from participating in Medicaid in a capacity that did not require a license or the delivery of professional health care services is not relevant for the purpose of assessing whether the I.G. was authorized to exclude Petitioner under section 1128(b)(5)(B).     

Furthermore, when the I.G. excludes an individual under section 1128(b) of the Act, the individual generally is “excluded from participation in any capacity” in all federal health care programs, as the I.G. advised Petitioner.  I.G. Ex. 2, at 1 (Notice of Exclusion).  The statute and regulations provide for the Secretary to exclude “individuals” “from

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participation in” any federal health care program and thus do not provide for exclusions to be limited or tailored to specific types of work.  Act § 1128(b); 42 C.F.R. §§ 1001.1(a), 1001.1901(b) (Effect of exclusion on excluded individuals and entities) (stating no payment will be made by any federal health care program for any item or service furnished by an excluded individual); cf. Tracey Gates, R.N., DAB No. 1768, at 10 (2001) (rejecting request to limit exclusion to permit Petitioner to work in the health care field in a non-nursing capacity). 

Petitioner also mischaracterizes the ALJ Decision.  The ALJ stated accurately that Petitioner “was a nurse practitioner, licensed in the State of Oregon, who worked as a Medicaid-enrolled homecare worker.”  ALJ Decision at 3 (emphasis added).  The ALJ’s description of Petitioner, her HCW enrollment, and the termination of her MPEN is supported by the language in the ODHS termination notice and Final Order, as well as Petitioner’s own representations.  See I.G. Exs. 3, 4; RR at 1, 8 (“Petitioner obtained her RN … license in 2000 and NP … certificate in 2006.” “Petitioner obtained a Homecare worker provider enrollment on or about 7/2014.” “Petitioner was terminated as an HCW on 9/14/2017.”).  Like the wording in the ALJ Decision, the Final Order states that Petitioner “was licensed in the State of Oregon as a nurse practitioner beginning in January 2006,” and was “a Medicaid enrolled provider (homecare worker)” since 2014.  I.G. Ex. 4, at 3.          

Petitioner’s assertion that she continued to provide nursing services to Medicaid clients through her company after ODHS terminated her HCW enrollment in 2017, even if true, provides no basis to reverse her exclusion.  As set out above, section 1128(b)(5) permits the I.G. to exclude an individual who has been excluded, suspended or “otherwise sanctioned” under a state health care program.  The term “otherwise sanctioned” refers to any action “that limit[s] the ability of a person to participate in the program at issue.”  42 C.F.R. § 1001.601(a)(2).  Therefore, even if Petitioner continued to work as a nurse or nurse practitioner furnishing services to Medicaid clients after the termination of her HCW enrollment and MPEN, there was a sufficient basis for her exclusion because the termination limited her ability to participate in Medicaid by barring her from providing and receiving payment for HCW services.  Cf. Hassan M. Ibrahim, M.D., DAB No. 1613, at 2 (1997) (finding physician was “otherwise sanctioned” under a state health care program where settlement agreement with the state agency limited his ability to participate in Medicaid “since it restricted him to practicing only as an employee and only in certain facilities”).  

b.  The termination of Petitioner’s Medicaid HCW enrollment was for reasons bearing on Petitioner’s financial integrity.

The evidence further shows that the second criterion for the I.G.’s exclusion of Petitioner under section 1128(b)(5)(B) is satisfied.  To meet that criterion, a state agency “is not required to use the words ‘professional competence, professional performance or

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financial integrity’ in effecting” its action “in order for the I.G. to have authority to exclude an individual under section 1128(b)(5)(B) of the Act.”  Olufemi Okonuren, M.D., DAB No. 1319, at 8 (1992).  “The statute requires only that the state [action] be for reasons bearing on professional competence, performance, or financial integrity.”  Id. (emphasis in DAB No. 1319).  The Board has held “the relationship is established where there is a common sense connection between a state’s findings and either professional competence, performance or financial integrity.”  Iturralde at 11 (sustaining section 1128(b)(5)(B) exclusion where, among other things, Petitioner’s pattern of submitting bills to Medicaid for a higher level of service than was actually performed evidenced a lack of financial integrity).

Here, the record plainly establishes a common sense connection between the reasons for which the state terminated Petitioner’s Medicaid HCW enrollment and her financial integrity.  Summarized above, the state ALJ found that the evidence of Petitioner’s financial misconduct alone justified the termination of her Medicaid enrollment.  The Final Order described Petitioner’s fiscal improprieties and their significance as follows:

The preponderance of evidence demonstrated that [Petitioner’s] repeated overbilling and double billing constituted fiscal improprieties.  The Department’s evidence contained multiple documented instances where [Petitioner] billed the Department for time that overlapped for [two clients], that did not allow for travel time between the residences of [the two clients], and that repeatedly exceeded the number of hours authorized in the clients’ care plans.  Most notably, on October 24, 2016, [Petitioner] billed the Department claiming she provided care to [the two clients] for 11 out of the 15 hours that she was incarcerated in Clackamas County Jail.  The unacceptable billing was repeated multiple times despite numerous warnings from the Department and two investigations by the [Medicaid Fraud Unit].

I.G. Ex. 4, at 13.  The connection between Petitioner’s fiscal improprieties and her financial integrity is obvious.  Petitioner’s pattern of double billing and repeated billing for services that she did not perform shows she lacks the financial integrity – honesty, trustworthiness and reliability – to provide services to program beneficiaries and have access to Medicare, Medicaid or any federal health care program funds.  The exclusion statute “seeks to protect the funds of Federal health care programs and the programs’ beneficiaries and recipients from untrustworthy providers.”  Joann Fletcher Cash, DAB No. 1725, at 10 (2000).  Petitioner’s fiscal improprieties demonstrate that the I.G.’s decision to exclude her serves the exclusion statute’s fundamental purpose.

Petitioner argues that ODHS did not prove the allegations relating to her fiscal improprieties, the Medicaid Fraud Unit did not perform an investigation of Petitioner or conclude Petitioner committed fraud, and the state ALJ erred in concluding that

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Petitioner had committed fiscal improprieties.  RR at 2-3, 12, 20.  Petitioner further claims that neither ODHS nor the I.G. provided evidence of financial loss to any health care program.  Id. at 2, 12, 14, 19.  Petitioner also asserts that the I.G. “did not submit any real evidence of any financial overbilling or double billing or that PetIitioner as a ‘homecare worker’ committed ‘fiscal improprieties.’”  Id. at 3. In addition, Petitioner contends, the I.G. did not investigate or perform a risk assessment on Petitioner.  Id. at 8, 11-14, 17.  Petitioner further asserts that the ALJ incorrectly dismissed Petitioner’s arguments that the state agency and I.G. acted to retaliate against Petitioner for filing whistleblower and tort claims, an EEO complaint and a HIPAA violation complaint.  Id. at 11, 13, 23.

Petitioner’s arguments are collateral attacks on the state action underlying the I.G.’s exclusion and are barred in these proceedings by 42 C.F.R. § 1001.2007(d).  The regulation makes clear that when, as in this case, an I.G. exclusion is based on a determination by another government agency where the facts were adjudicated and a final decision was made, the basis for that determination is not reviewable and the excluded individual may not collaterally attack it on substantive or procedural grounds in these proceedings.  See, e.g., Rehab. Ctr. at Hollywood Hills, DAB No. 2970, at 12 (2019) (citing case).  Nor does the Act require or permit the I.G. to assess on its own the validity of a state agency’s factual findings or conclusions underlying an exclusion under section 1128(b)(5).  Id.  Moreover, the I.G. was not required to submit evidence of any financial losses stemming from Petitioner’s misconduct or to conduct an additional investigation or risk assessment.  We therefore reject Petitioner’s arguments that the ALJ erred in upholding the I.G.’s determination that the termination of Petitioner’s Medicaid enrollment was for reasons bearing on her financial integrity.

Because the 2017 termination of Petitioner’s Medicaid HCW enrollment for reasons bearing on her financial integrity is alone sufficient to support her exclusion under section 1128(b)(5)(B), we need not reach the issue of whether the reasons for the termination also had a bearing on Petitioner’s professional competence or professional performance. 

2.  The length of Petitioner’s exclusion, at least until the state agency reinstates her program participation, is reasonable as a matter of law.

The ALJ concluded that the Act and regulations require Petitioner’s period of exclusion to last “at least until the state agency reinstates her program participation.”  ALJ Decision at 1; see also id. at 4 (quoting Act § 1128(c)(3)(E); 42 C.F.R. § 1001.601(b)(1)).  On appeal to the Board, Petitioner argues that the ALJ Decision does not adequately address the time frame for Petitioner’s exclusion and that the length of exclusion is excessive and unjust.  RR at 2; Reply at 8, 18.

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Applying the Act and regulations here, we find no error in the ALJ’s determination of the length of Petitioner’s exclusion.  Section 1128(c)(3)(E) of the Act states in relevant part that the period of an exclusion under section 1128(b)(5) “shall not be less than the period during which . . . the individual . . . is excluded or suspended from a Federal or State health care program.”  See also 42 C.F.R. § 1001.601(b)(1) (exclusion “will not be for a period of time less than the period during which the individual . . . is excluded or suspended from a Federal or State health care program”).  Accordingly, the length of Petitioner’s exclusion is reasonable as a matter of law.

3.  Petitioner’s other arguments provide no basis to reverse the I.G.’s decision.

a.  The ALJ did not err in concluding that she had no authority to review the constitutional issues Petitioner raised.

Petitioner asserts that the ALJ erred in concluding she had no authority to review Petitioner’s constitutional challenges.  Petitioner argues that the I.G. violated Petitioner’s constitutional rights to due process and equal protection because the I.G.’s notice of proposed exclusion and notice of exclusion were vague and did not give specific reasons, findings, or evidence to support the I.G.’s action; the I.G. did not conduct an investigation, permit discovery, or provide a risk assessment showing that Petitioner posed a physical, emotional or financial risk to Medicaid or Medicare beneficiaries; and the I.G. did not explain what criteria it would use to determine whether to exclude Petitioner.  RR at 7, 8, 12, 24; Reply at 6, 7, 9, 12, 16.

The ALJ did not err in concluding she had no authority to address Petitioner’s constitutional challenges.  As discussed above, the ALJ properly determined that the I.G. had a basis to exclude Petitioner under section 1128(b)(5)(B) of the Act and that the duration of Petitioner’s exclusion was reasonable as a matter of law under 1128(c)(3)(E) of the Act and the implementing regulations.  The regulations expressly preclude the ALJ (and hence the Board in its review of the ALJ Decision) from finding “invalid or refus[ing] to follow Federal statutes or regulations.”  42 C.F.R. § 1005.4(c)(l).  Petitioner’s constitutional arguments in effect asked the ALJ and now ask the Board to overturn or refuse to implement the exclusion statute and regulations, which ALJs and the Board are not permitted to do.  Valentine Okonkwo, DAB No. 2832, at 5 (2017). 

We also note that federal courts and the Board have repeatedly rejected constitutional challenges to the Secretary’s section 1128 exclusion authority.  See, e.g., Manocchio v. Kusserow, 961 F.2d 1539, 1542-1543 (11th Cir. 1992) (holding double jeopardy clause did not apply to physician’s exclusion because exclusions are remedial, not punitive); Greene v. Sullivan, 731 F. Supp. 838, 840 (E.D. Tenn. 1990) (rejecting excluded pharmacist’s double jeopardy and due process arguments); Erickson v. United States ex rel. Dep’t of Health & Human Servs., 67 F.3d 858, 862-63 (9th Cir. 1995) (excluded health care providers had no protected property interest in continuing to participate in the

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Medicare program and received adequate due process); Sushil Aniruddh Sheth, M.D., DAB No. 2491, at 17-18 (2012); W. Scott Harkonen, M.D., DAB No. 2485, at 22 (2012), aff’d, Harkonen v. Sebelius, No. C 13-0071 PJH, 2013 WL 5734918 (N.D. Cal. Oct. 22, 2013).

b.  The state agency’s notice to the I.G. of the termination of Petitioner’s HCW enrollment and the I.G.’s posting of Petitioner’s name, status and NPI on the LEIE provide no basis for reversing Petitioner’s exclusion.

Petitioner contends that her exclusion should be reversed because it is based on an unauthorized notice from ODHS to the I.G.  According to Petitioner, ODHS misled the I.G. in its notice of Petitioner’s Medicaid HCW enrollment termination by allegedly reporting incorrectly Petitioner’s occupation as nurse or nurse aide, not HCW, and giving the I.G. Petitioner’s NPI, not her Medicaid HCW provider enrollment number.  RR at 7, 10, 13, 17; see also P. Br. at 13, 35.  Furthermore, she says, ODHS did not report the 2017 termination of Petitioner’s HCW enrollment to the I.G. until 2019.  RR at 13, 17.  According to Petitioner, ODHS had no authority “to report a Nurse/Nurse Practitioner” to the I.G. because only the Oregon State Board of Nursing has authority to license, discipline and investigate nurses.  Id. at 22.  Petitioner adds that ODHS’s alleged unauthorized notice to the I.G. caused the I.G. to list Petitioner improperly as a “Nurse/Nurse Aid and with [her NPI] for Nurse Practitioner” on the LEIE.  Id. at 7, 10.  As a consequence, Petitioner contends, she has been forced to close her clinic and no longer can provide home care services to her clients.  Id. at 24, 25.      

These arguments provide no basis for reversing Petitioner’s exclusion.  The only issues in this case that the ALJ and the Board are authorized to address are whether the I.G. had a legal basis to exclude Petitioner and whether the length of her exclusion is unreasonable.  As explained above, the ALJ’s conclusions that the I.G. was authorized to exclude Petitioner under section 1128(b)(5)(B) and that the length of her exclusion is reasonable as a matter of law are supported by substantial evidence and free from legal error.  How and when the I.G. obtained the information of the state agency’s action is immaterial to these questions, as is the timing and content of the state agency’s notice to the I.G. of the termination of Petitioner’ Medicaid HCW enrollment and MPEN.  Furthermore, whether and what information the I.G. posts on the LEIE and the effects of Petitioner’s exclusion are issues that the ALJ and, in turn, the Board have no authority to address.  See 42 C.F.R. § 1005.4(c)(5) (ALJ does not have authority to determine the scope or effect of an I.G. exclusion).

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c.  ALJs and the Board have no authority to waive an exclusion or to review a denial of a waiver request.

Petitioner argues that she is eligible for a waiver of her exclusion from Medicare, Medicaid and all federal health care programs because she is a sole community provider or sole source of essential specialized services in the community and her exclusion has imposed a hardship to the Medicare and Medicaid beneficiaries she served.  RR at 7, 24.  Petitioner also asserts that she requested a waiver from the I.G. and the I.G. has not responded to her request.  Id.

As the I.G. stated in its notices to Petitioner, a request for a waiver of exclusion must be made in writing by the person responsible for administering the state health care program for which the waiver is being requested and must demonstrate to the I.G. that a wavier would be in the public’s best interest.  I.G. Ex. 1, at 2 (February 12, 2019 Notice of Proposed Exclusion); I.G. Ex. 2, at 1 (August 30, 2019 Notice of Exclusion); Act § 1128(d)(3)(B) (authorizing Secretary to waive an individual’s exclusion under a state health care program on receipt and approval of a request from the state agency administering or supervising the administration of the health care program); 42 C.F.R. § 1001.1801(c) (request for waiver of permissive exclusion will only be granted if the I.G. determines the exclusion would not be in the public interest). 

Furthermore, 42 C.F.R. § 1001.1801(f) provides that an I.G. decision to grant or deny “a request for a waiver is not subject to administrative or judicial review.”  Accordingly, the Board has no authority to waive Petitioner’s exclusion, to require the I.G. to act on Petitioner’s request, or to review a decision to deny Petitioner’s waiver request.

d.  The ALJ did not err in concluding that the letters from Petitioner’s friends and colleagues provide no basis for reversing her exclusion.

Petitioner argues that the ALJ erred in determining that the letters from Petitioner’s friends and colleagues attesting to her good character “do not alter the undisputed facts underlying her termination from the state Medicaid program.”  ALJ Decision at 3 (citing P. Ex. 2; Rogers at 6).  The “letters of support, personal and professional references, certificates and [evidence of her] continuing education as Nurse Practitioner,” Petitioner says, clearly show her nursing skills, knowledge and abilities exceed the basic requirements of an HCW.  RR at 11, 13. 

The Board previously has explained that an “ALJ may not review the I.G.’s decision to impose an exclusion . . . on the ground that the excluded person is a good person or well-thought of in the profession or suffering from the loss of his/her vocation.”  Rogers at 6.  Moreover, an ALJ has no authority to review the I.G.’s exercise of discretion to exclude an individual under section 1128(b) of the Act, the permissive exclusion authority, or determine the scope or effect of the exclusion.  42 C.F.R. § 1005.4(c)(5); Christy Nichols

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Frugia, DAB No. 2736, at 4 (2016) (stating that “where the statutory requirements for a permissive exclusion are met, the ALJ, and thus the Board, may not look behind the I.G.’s decision to impose an exclusion”). 

We therefore conclude that none of Petitioner’s arguments on appeal provide a basis for modifying or reversing the I.G.’s decision to exclude Petitioner from participation in all federal health care programs.

Conclusion

For the reasons stated above, we affirm the ALJ’s conclusion that the I.G. had a basis to exclude Petitioner under section 1128(b)(5) of the Act at least until the state agency reinstates her program participation.