SUBJECT:

Michele R. Rodney,

Petitioner,

The Inspector General.

DECISION

This case is before me pursuant to a request for hearing filed by Michele R. Roney (Petitioner) on January 10, 2005. Social Security Act (Act), section 1128(f); 42 C.F.R. � 1005.2.

I. Background

By letter dated October 29, 2004, the Inspector General (I.G.) notified Petitioner that she was being excluded from participation in the Medicare, Medicaid, and all federal health care programs as defined in section 1128B(f) of the Act. ALJ Exhibit (Ex.) 1. ⁽¹⁾ The I.G. further informed Petitioner that the exclusion was based on section 1128(b)(4) of the Act, in view of the revocation, suspension, or loss of her license to practice medicine or provide health care in the State of Pennsylvania for reasons bearing on her professional competence, professional performance, or financial integrity. The I.G. stated that the exclusion would be in effect as long as Petitioner's license to practice nursing in the State of Pennsylvania remained revoked.

The I.G. is represented in this case by the Office of Counsel to the Inspector General. Petitioner filed the request for hearing on her own behalf. ⁽²⁾ On March 16, 2005, I convened a telephone pre-hearing conference during which it was noted that an in-person hearing was not required, and that the issues could be resolved by summary judgment. Consequently, I issued an Order on March 17, 2005, establishing briefing deadlines.

Pursuant to that Order, the I.G. timely filed a brief on April 15, 2005, accompanied by one proposed exhibit. That exhibit has been identified as I.G. Ex. 1, and I admit it in evidence. Petitioner did not submit a brief by the deadline established in my March 17 Order. On June 6, 2005, a letter was sent at my direction notifying Petitioner of my intent to close the record and issue my decision if she did not respond by June 15, 2005. Petitioner did not respond to the June 6 letter. Thus, Petitioner has submitted no arguments in support of her contentions, except for the issues raised in her request for hearing.

It is my decision to sustain the determination of the I.G. to exclude Petitioner, Michele R. Roney, from participating in the Medicare, Medicaid, and all other federal health care programs, for a period coterminous with the revocation of her license to practice nursing or provide health care in the Commonwealth of Pennsylvania. I base my decision on the documentary evidence, the applicable law and regulations, and the arguments of the parties. It is my finding that the Pennsylvania State Board of Nursing revoked Petitioner's license to practice nursing for reasons bearing on her professional competence, professional performance, or financial integrity. Additionally, I find that when an exclusion imposed by the I.G. runs concurrent with the remedy imposed by the state licensing authority, such exclusion is mandated by law.

II. Issues

1. Whether the I.G. had a basis upon which to exclude Petitioner from participating in the Medicare, Medicaid, and all other federal health care programs.

2. Whether the length of the exclusion imposed and directed against Petitioner by the I.G. is unreasonable.

III. Applicable Law and Regulations

Under section 1128(b) of the Act, the Secretary of Health and Human Services (Secretary) may exclude individuals from receiving payment for services that would otherwise be reimbursable under Medicare, Medicaid, or other federal health care programs.

The Act defines "federal health care program," as "any plan or program that provides health benefits, whether directly, through insurance, or otherwise, which is funded directly, in whole or in part, by the United States Government . . . or any State health care program, as defined in section 1128(h)." Act, section 1128B(f).

Section 1128(b)(4)(A) of the Act authorizes the I.G. to exclude an individual whose license to provide health care has been revoked or suspended by a state licensing authority, or which has otherwise been lost, for reasons bearing on that individual's professional competence, professional performance, or financial integrity. According to section 1128(c)(3)(E) of the Act, the minimum term of exclusion of an individual who is excluded pursuant to section 1128(b)(4) must be coterminous with the term of loss, suspension, or revocation of that individual's license to provide health care.

The regulation promulgated at 42 C.F.R. � 1001.501 mirrors the statutory provisions set forth in the Act.

IV. Findings of Fact and Conclusions of Law

1. Petitioner was licensed by the State of Pennsylvania to practice nursing, a license to practice health care within the scope of section 1128(b)(4) of the Act. I.G. Ex. 1, at 4. ⁽³⁾

2. On June 4, 2004, the Pennsylvania State Board of Nursing (Board) issued a Final Adjudication and Order (Order) whereby Petitioner's license to practice nursing in that State was revoked. I.G. Ex. 1, at 12.

3. The Board revoked Petitioner's license based on its finding that, in dealing with a patient, her "conduct was callous and demonstrated a complete lack of empathy to the patient." Furthermore, the Board found that "her conduct is an affront to patients, her professional colleagues and the public in general." I.G. Ex. 1, at 11.

4. The Board is a state licensing authority within the meaning of section 1128(b)(4)(A) of the Act. See 63 Pa. Cons. Stat. � 224.

5. On October 29, 2004, the I.G. notified Petitioner that she was being excluded from participation in Medicare, Medicaid and all federal health care programs pursuant to section 1128(b)(4) of the Social Security Act. ALJ Ex. 1.

6. The revocation of Petitioner's nursing license relates to her professional competence and professional performance within the meaning of section 1128(b)(4) of the Act.

7. In an exclusion imposed pursuant to section 1128(b)(4) of the Act, the period of exclusion shall not be less than the period during which the individual's license to provide health care is revoked, suspended, or surrendered. Act, section 1128(c)(3)(E); 42 C.F.R. � 1001.501(b)(1).

8. The I.G. is authorized to exclude Petitioner pursuant to section 1128(b)(4) of the Act because her license to provide health care was revoked by the Board for reasons bearing on her professional competence and professional performance.

9. The exclusion imposed by the I.G. against Petitioner will remain in effect until she regains her nursing license in the State of Pennsylvania.

V. Discussion

1. The I.G. had a basis for excluding Petitioner.

On or about April 27, 2002, Petitioner was employed as a professional nurse by Edgewood Nursing Center in Youngstown, Pennsylvania. I.G. Ex. 1, at 4. On that date, at approximately 6:30 a.m., a phlebotomist from a local hospital found Resident J.M. lying on the floor behind the back of the bed. Id. The phlebotomist immediately notified the nursing staff of the situation, and Petitioner and two nursing assistants went to the resident's room. ⁽⁴⁾ They found him lying in blood and the nursing assistants suggested that he be checked and vital signs taken. Id. At that moment, Petitioner uttered expressions to the effect that the resident was "bleeding from his ass hole" because he had cancer of the bowel. Id. She added that "he shit all over the place" and that "God should do us all a favor and let him die." Id. at 5. Furthermore, Petitioner stated that the reason the resident went behind the bed was the way a cat or dog goes behind something to die. Id. Those statements by Petitioner were made in the presence and within hearing of the resident. Id.

As a result of Petitioner's conduct, on March 8, 2004, the Board issued an order to show cause, advising Petitioner of the specific charges, and warning her of the consequences of failing to respond. I.G. Ex. 1, at 3, 7-8. After Petitioner failed to respond to the order to show cause, the State of Pennsylvania moved for a default order and the same was granted by the Board. Id. at 3. Consequently, on June 4, 2004, the Board issued an Order revoking Petitioner's license to practice professional nursing in the State of Pennsylvania. Id. at 12.

By letter dated October 29, 2004, the I.G. notified Petitioner that she was being excluded from participation in the Medicare, Medicaid, and all federal health care programs pursuant to section 1128(b)(4) of the Act because her license to practice nursing or provide health care in the State of Pennsylvania was revoked, suspended, or otherwise lost for reasons bearing on her professional competence, professional performance, or financial integrity.

In her request for hearing, Petitioner asserts that she is innocent of the charges leveled against her before the Board, and that she did not appear at her revocation hearing because she did not receive a notice. However, the law does not allow me to re-adjudicate the issues that were before the Board, nor may I consider the issue of adequate notice.

The clear language of the statute is not open to dispute. The Secretary may exclude "any individual or entity 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." Act, section 1128(b)(4)(A). There are two aspects to this legal provision. The first requirement, as is pertinent here, is that the individual's or entity's license to provide health care be revoked or suspended by a state licensing authority. The evidence in this case shows this to be a fact, and Petitioner does not dispute it. The second requirement is that the suspension or revocation be for reasons bearing on professional competence, professional performance, or financial integrity. This is amply evident from the Order issued by the Board on June 4, 2004, which concludes, in part: "The Board finds [Petitioner's] conduct is a most serious breach of the standards of professional conduct." I.G. Ex. 1, at 11.

In view of the foregoing, I conclude that Petitioner's license to provide health care in the State of Pennsylvania was revoked for reasons bearing on her professional competence or professional performance.

2. The length of the exclusion is not unreasonable.

The Board revoked Michele R. Roney's license to practice nursing. "[N]o issue of reasonableness exists" where the length of the exclusion imposed by the I.G. is coterminous with the revocation, suspension, surrender, or loss of a state license. Maurice Labbe, DAB CR488, at 3 (1997). Section 1128(c)(3)(E) of the Act requires that Petitioner be excluded for a period no less than the period during which her license is revoked, suspended, surrendered, or lost. The coterminous exclusion by the I.G. in this case is the mandated minimum period required by law.

VI. Conclusion

It is my decision that the I.G. was authorized to exclude Petitioner pursuant to section 1128(b)(4) of the Act. Additionally, I conclude that the indefinite period of exclusion imposed by the I.G. is the minimum period mandated by section 1128(c)(3)(E) of the Act.

José A. Anglada

Administrative Law Judge

1. Inexplicably, the I.G. did not submit the exclusion letter as an exhibit. I have, therefore, entered the I.G.'s exclusion letter into the record motu proprio.

2. Petitioner was advised of her right to retain legal representation.

3. Pages three and four of I.G. Ex. 1 have been marked "I.G. Ex. 2." Because the I.G. submitted only a single exhibit and because the context of the document makes clear that pages three and four are part of the same document as the remaining pages of I.G. Ex. 1, I am confident that the designation of the pages as I.G. Ex. 2 is simply the result of a typographical error.

4. Petitioner in this case is referred to as "Respondent" in I.G. Ex. 1.