Richard R. Jimenez, DAB CR5457 (2019)

DECISION

Petitioner, Richard R. Jimenez, was licensed as a nursing assistant in the State of Arizona until the Arizona State Board of Nursing (State Board) revoked his license. Pursuant to section 1128(b)(4) of the Social Security Act (Act), the Inspector General (IG) has excluded him from participation in Medicare, Medicaid, and all federal health care programs until he regains his Arizona nursing assistant license. Petitioner now appeals the exclusion.

For the reasons set forth below, I find that the Arizona licensing authority revoked Petitioner's nursing assistant license for reasons bearing on his professional competence and performance. The IG has appropriately excluded him from program participation.

I. Background

Petitioner was licensed as a nursing assistant by the State Board. IG Exhibit (Ex.) 2 at 1. The State Board denied Petitioner's initial application for a nursing assistant license in December 2000 based on his previous criminal convictions and his admission to an employer that he had a substance abuse problem. IG Ex. 3 at 1.

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The State Board again denied Petitioner a nursing assistant license in March 2007 "based upon reasons including a 2001 shoplifting offense and ongoing concerns about [Petitioner's] substance use." IG Ex. 3 at 1-2. The State Board also cited a July 2006 conviction for driving under the influence, at which time Petitioner had relapsed, was under the influence of heroin, and had crack cocaine and heroin in his possession. IG Ex. 3 at 1-2.

Petitioner applied for a nursing assistant license for a third time in August 2016. IG Ex. 3 at 1. At that time, the State Board initiated a background investigation that revealed a December 2009 arrest for assault/domestic violence. IG Ex. 3 at 2. Although the charges were dismissed, Petitioner admitted that he had pushed his girlfriend after she pushed him. IG Ex. 3 at 2. The investigation also revealed a May 2012 arrest for domestic violence and criminal damage. IG Ex. 3 at 2. Although prosecution was declined, Petitioner did not report this arrest to the State Board. IG Ex. 3 at 2. The State Board's investigation also found that when Petitioner submitted job applications in April 2016 and April 2017, he failed to disclose a number of criminal convictions. IG Ex. 3 at 3. Petitioner admitted to the State Board that he had "a long history of illegal drug use, including crack cocaine and heroin." IG Ex. 3 at 3.

In connection with Petitioner's third application for a nursing assistant license, Petitioner and the State Board executed a consent agreement (Agreement) on September 15, 2017. IG Ex. 3 at 5. In signing the Agreement, Petitioner acknowledged the following:

The conduct and circumstances ... constitute sufficient cause pursuant to A.R.S. § 32-1663(A) as defined in A.R.S. § 32-1601(24)(d) (Any conduct or practice that is or might be harmful to the health of a patient or the public), (j) (Violating a rule that is adopted by the Board pursuant to this chapter) (effective July 1, 2016); and A.A.C. R4-19-814(16) (Repeated use or being under the influence of alcohol, medication, or any other substance to the extent that judgment may be impaired and practice detrimentally affected or while on duty in any work setting), (25)(a) (Failing to cooperate with the Board during an investigation by not furnishing in writing a complete explanation of a matter reported under A.R.S. § 32-1664), (28) (Making a false misleading statement on a nursing assistant, medication assistant, or health care related employment or credential application); and A.A.C. R4-19-815 (An applicant whose application has been denied shall submit documentation showing that the basis for denial, revocation or voluntary surrender has been removed and that the issuance or reinstatement of nursing assistant certification will no longer constitute a threat to the public health or safety) to deny, or issue a conditional license to [Petitioner].

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IG Ex. 3 at 4.

The State Board issued an Order, effective September 15, 2017, in which it mandated terms for Petitioner's nursing assistant licensure. IG Ex. 3 at 6-18. The Order directed that Petitioner "will be granted a nursing assistant license and that license is hereby revoked; however, the revocation is stayed contingent upon [Petitioner's] compliance with this Order." IG Ex. 3 at 6 (emphasis omitted). The Order further explained that "[d]uring the stay of the revocation, Applicant's nursing assistant license is placed on probation for at minimum twenty-four months with terms and condition[s]." IG Ex. 3 at 6. The Order stated that if Petitioner "is non-compliant with any of the terms of the Order during the twenty-four month stayed revocation period, the stay of the revocation shall be lifted and [Petitioner's] license shall be automatically revoked for a minimum period of five (5) years." IG Ex. 3 at 6 (emphasis in original).

As relevant here, the Order required Petitioner to comply with the following terms:

1. Obey all federal, state and local criminal laws and notify the Board in writing within 10 days of any misdemeanor or felony arrest, citation or charge. IG Ex. 3 at 17. The Order likewise required notification within 10 days of any conviction. IG Ex. 3 at 18.
2. Attend Alcoholics Anonymous (AA), Narcotics Anonymous (NA), or other approved meetings at least three times weekly and provide quarterly reports of his attendance at those meetings. IG Ex. 3 at 7. The Order directed that "[f]ailure to provide quarterly reports within 7 days of the reporting due date shall constitute non-compliance with this Order." IG Ex. 3 at 7.
3. Submit to random urine drug screen testing twice per month for the first twelve months and once per month for the next twelve months. IG Ex. 3 at 9. The Order directed: "Failing to submit to two or more random drug tests; or failing to submit to a drug test on a day when a drug test has been requested by the Board, its designee, [Petitioner's] healthcare employer, or the drug testing program will constitute noncompliance with this Order and Applicant's license shall be automatically revoked for at minimum 5 years, NOT subject to further review." IG Ex. 3 at 10 (emphasis in original).
4. Submit quarterly employer evaluations that are completed by his direct supervisor. The Order also required a quarterly self-report of activities if not working in a position as a licensed nursing assistant. IG Ex. 3 at 14. Failure to timely provide an employer evaluation or self-report would be deemed "non-compliance ... [that] is not subject to further review." IG Ex. 3 at 15.

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Within only a few months of the issuance of the Order, the State Board issued a "Notice of Revocation" in which it "provide[d] notice of the automatic revocation of [Petitioner's] licensed nursing assistant number ... on February 23, 2018." IG Ex. 2 at 1. The Notice explained that revocation was based on noncompliance with the following terms of the Order:

1. Petitioner had been arrested for shoplifting on July 31, 2017, and entered a guilty plea to a misdemeanor charge on September 5, 2017. Petitioner verbally notified the State Board on October 3, 2017, that he had been charged with shoplifting. The State Board determined that Petitioner did not notify the State Board within 10 days of the citation and conviction.1
2. Petitioner failed to submit to random drug testing on the following dates: December 19, 2017; January 2 and 5, 2018; and February 6 and 20, 2018.
3. Petitioner failed to submit a quarterly report for the quarter ending January 31, 2018, and as a result, failed to demonstrate attendance at AA, NA, or other State Board approved meetings between November 1, 2017, and January 31, 2018.
4. Petitioner failed to submit a quarterly employer evaluation or self-report for the quarter ending January 31, 2018.

IG Ex. 2 at 1-2.

In a December 31, 2018 letter, the IG advised Petitioner that he was excluded from participation in Medicare, Medicaid, and all federal health care programs because his license to provide health care in the State of Arizona was revoked, suspended, or otherwise lost or was surrendered while a formal disciplinary proceeding, bearing on his professional competence, professional performance, or financial integrity, was pending. The IG's notice explained that section 1128(b)(4) of the Act authorizes the exclusion. IG Ex. 1 at 1.

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Petitioner submitted a request for hearing via DAB E-File on July 4, 2019.2 On July 9, 2019, the Civil Remedies Division issued my standing pre-hearing order (Pre-Hearing Order). Following a July 24, 2019 pre-hearing conference, I issued orders on July 25 and 26, 2019, in which I memorialized certain matters discussed during the pre-hearing conference and established a briefing schedule. The IG submitted her brief (IG Br.) and three exhibits (IG Exs. 1-3), and Petitioner filed a brief (P. Br.).3 The IG also filed a Reply Brief. In the absence of any objection, I admit IG Exs. 1-3 into the evidentiary record.

Neither party submitted the written direct testimony of any witnesses. See Pre-Hearing Order §§ 5, 7, and 8; see, e.g., Lena Lasher, DAB No. 2800 at 4 (2017) (discussing that when neither party submits written direct testimony as directed, "no purpose would be served by holding an in-person hearing"), aff'd, Lasher v. Dep't of Health & Human Servs., 369 F. Supp. 3d 243 (2019). Consequently, it is unnecessary to convene a hearing for the purpose of cross-examination of any witnesses. See Pre-Hearing Order §§ 8, 9, 11. The record is closed, and the case is ready for a decision on the merits.

II. Issues

Whether the IG has a basis for exclusion and, if so, whether the length of the exclusion is reasonable. 42 C.F.R. § 1001.2007(a)(1).

III. Jurisdiction

I have jurisdiction to adjudicate this case. Act § 1128(f)(1) (42 U.S.C. § 1320a-7(f)(1)); 42 C.F.R. § 1005.2.

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IV. Findings of Fact, Conclusions of Law, and Analysis4

The IG had a legitimate basis to exclude Petitioner from participation in Medicare, Medicaid, and all federal health care programs because the Arizona State Board of Nursing revoked Petitioner's nursing assistant license for reasons bearing on his professional competence or performance, and the length of the exclusion is reasonable as a matter of law.5

The Act authorizes the Secretary of Health and Human Services to exclude from program participation an individual whose license to provide health care "has been revoked or suspended by any State licensing authority" for reasons bearing on the individual's "professional competence, professional performance, or financial integrity." Act § 1128(b)(4)(A) (42 U.S.C. § 1320a-7(b)(4)(A)); see also 42 C.F.R. § 1001.501(a)(1).

An exclusion based on section 1128(b)(4) of the Act is discretionary. If the IG exercises her discretion to proceed with the sanction, then the mandatory minimum period of exclusion to be imposed under section 1128(b)(4) of the Act "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 ...." Act § 1128(c)(3)(E) (42 U.S.C. § 1320a-7(c)(3)(E)). Regulatory language at 42 C.F.R. § 1001.501(b)(1) implements the statutory provision. Although an exclusion based on section 1128(b)(4) of the Act is discretionary, the IG's decision to exercise her discretion and proceed with the sanction is not subject to review. Christy Nichols Frugia, DAB No. 2736 at 4 (2016); 42 C.F.R. § 1005.4(c)(5).

The State Board has the authority to regulate and control the practice of nursing in that state pursuant to Ariz. Rev. Stat. §§ 32-1606, -1663, and -1664. The State Board has authority to impose disciplinary sanctions when a licensed nursing assistant violates the Nurse Practice Act, Ariz. Rev. Stat. §§ 32-1601 through -1667.

It is not disputed that the stay of Petitioner's revoked nursing assistant license was lifted and, as a result, the State Board issued a notice on February 23, 2018, in which it revoked Petitioner's nursing assistant license. IG Ex. 2. Petitioner disputes the specific bases underlying the revocation of his nursing assistant license. P. Br. Petitioner disagrees with the State Board's determination that he failed to submit to random drug testing on five separate occasions; however, he presents no evidence demonstrating that he complied with the drug testing requirement. In fact, Petitioner admits that he "couldn't afford" the drug testing and "believ[ed] the [license] revocation would only affect his

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ability to work as a [licensed nursing assistant]" and he "said nothing further." P. Br. With respect to the basis that Petitioner failed to submit a quarterly report of his attendance at AA, NA, or other Board-approved meetings, Petitioner stated that he "recalls submitting that report in writing." P. Br. However, Petitioner did not submit evidence that he actually submitted a quarterly report (such as a copy of his report). Finally, addressing the State Board's charge that Petitioner did not submit a quarterly employer evaluation or self-report, Petitioner admits that he "did not submit a report because there was nothing to report since [he] was not working as a[n] LNA." P. Br. Petitioner's admitted failure to submit a quarterly self-report, alone, supports the State Board's lifting of the stay of the revocation of his nursing assistant license. IG Ex. 3 at 15 ("Failure to provide employer evaluations if not working as a licensed nursing assistant, self-reports, within seven (7) days of the reporting day is non-compliance with this Order and is not subject to further review."). Thus, the first element of section 1128(b)(4), that Petitioner's nursing assistant license was revoked, is satisfied.

The second element of section 1128(b)(4) requires that the license was revoked "for reasons bearing on the individual's ... professional competence [or] professional performance ...." The State Board determined that revocation was warranted based on "unprofessional conduct," which the State Board explained involves "[a]ny conduct or practice that is or might be harmful or dangerous to the health of a patient or the public" or "[f]ailing to comply with a stipulated agreement, consent agreement[,] or board order." IG Ex. 2 at 2, citing Ariz. Rev. Stat. §§ 32-1601, 1663(D). Petitioner failed to address this prong in his brief, but I nonetheless address it below.

When a license is revoked due to violations of previous conditions placed on that license, it is appropriate to look at the underlying reasons why the license was in a probationary status. Tracy Gates, R.N., DAB No. 1768 at 6-7 (2001), citing Roy Crosby Stark, DAB No. 1746 (2000). The circumstances that led the State Board to previously impose the conditions can reasonably be viewed as the reasons the State Board ultimately revoked Petitioner's license. Stark, DAB No. 1746 at 4. The underlying basis for the issuance of a license with a stayed revocation was Petitioner's record of past criminal convictions, prior conduct, and lengthy history of substance use, which is supported by the Agreement's conclusions that Petitioner's conduct could be harmful to a patient or the public and that his repeated substance use may impair his practice while on duty. IG Ex. 3 at 4. See Gates, DAB No. 1768; Stark, DAB No. 1746 (both discussing that substance abuse directly affects professional competence as those terms are used in section 1128(b)(4)).

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The State Board revoked Petitioner's nursing assistant license in February 2018 based on his "unprofessional conduct," which included his failure to comply with the Order. IG Ex. 2 at 2, citing Ariz. Rev. Stat. § 32-1663(D) (2017) and Ariz. Rev. Stat. § 32-1601. Because Petitioner did not comply with the Order, the State Board correctly determined that his license should be revoked based on unprofessional conduct. I conclude as a matter of law that the revocation of Petitioner's nursing license was for reasons related to his professional competence and professional performance.

Further, to the extent that Petitioner appears to disagree with the underlying basis for the revocation of his nursing license, the basis for that determination is not reviewable because it is a final adjudicated decision by another government agency. 42 C.F.R. § 1001.2007(d). I reiterate that my authority is limited to determining whether there is a basis for exclusion, and I have no authority to review the IG's exercise of discretion. 42 C.F.R. § 1005.4(c)(5); see Donna Rogers, DAB No. 2381 at 6 (2011). The IG appropriately excluded Petitioner from program participation under section 1128(b)(4)(A) of the Act.

The statute requires that Petitioner's period of exclusion "shall not be less than the period during which [his] ... license ... is ... revoked." Act § 1128(c)(3)(E) (42 U.S.C. § 1320a-7(c)(3)(E)); see also 42 C.F.R. § 1001.501(b)(1). If Petitioner regains his Arizona nursing assistant license, he may be eligible for reinstatement at such time. IG Ex. 1 at 1.

V. Conclusion

For the above reasons, I conclude that the IG properly excluded Petitioner from participation in Medicare, Medicaid, and all federal health care programs for so long as his Arizona nursing assistant license is revoked.

• 1.Because Petitioner's September 5, 2017 criminal conviction pre-dated the September 15, 2017 effective date of the Order, I focus on the other bases for noncompliance with the Order. Nonetheless, I point out that only ten days after Petitioner entered a guilty plea on September 5, 2017, Petitioner signed the Agreement in which he accepted the chronology of his prior criminal history presented in that document, which lacked any discussion of the most recent September 5, 2017 conviction. IG Ex. 3 at 1-5.
• 2.In a July 25, 2019 filing, the IG acknowledged that "the presumption, set out in 42 C.F.R. § 1005.2(c), that Petitioner received the ... Notice of Exclusion five days after the date of this notice is rebutted by a 'reasonable showing to the contrary.'"
• 3.Petitioner's brief is unpaginated. Therefore, I do not provide pinpoint citations to Petitioner's brief.
• 4.My findings of fact and conclusions of law are set forth in italics and bold font.
• 5.I make this one finding of fact/conclusion of law.