Richard R. Jimenez, DAB No. 2986 (2020)

FINAL DECISION ON REVIEW OF ADMINISTRATIVE LAW JUDGE DECISION

Petitioner Richard R. Jimenez appeals the October 30, 2019 decision of an administrative law judge (ALJ) sustaining a December 31, 2018 determination by the Inspector General (I.G.) to exclude Petitioner from participating in Medicare, Medicaid, and all federal health care programs under section 1128(b)(4) of the Social Security Act (Act).1 Richard R. Jimenez, DAB CR5457 (ALJ Decision). The ALJ concluded that the I.G. was authorized to exclude Petitioner because the Arizona State Board of Nursing (State Board) revoked Petitioner's nursing assistant license for reasons bearing on his professional competence or performance and that the exclusion period was consistent with the Act and applicable regulations. The Board affirms the ALJ Decision.

Legal background

The Act authorizes the Secretary of Health and Human Services to exclude from participation in any federal health care program an individual "whose license to provide health care has been revoked or suspended by any State licensing authority, or who otherwise lost such a license or the right to apply for or renew such a license, for reasons bearing on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 . . . professional competence, professional performance, or financial integrity[.]" Act § 1128(b)(4)(A); see also 42 C.F.R. § 1001.501(a)(1) (The I.G. "may" exclude an individual who "[h]ad a license to provide health care revoked or suspended by any State licensing authority, or otherwise lost such a license . . . for reasons bearing on the individual's . . . professional competence, professional performance or financial integrity[.]"). The length of an exclusion based on section 1128(b)(4) "shall not be less than the period during which the individual's . . . license to provide health care is revoked, suspended, or surrendered, or the individual . . . is excluded or suspended from a Federal or State health care program." Act

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§ 1128(c)(3)(E); see also 42 C.F.R. § 1001.501(b)(1).

If an individual is excluded under section 1128(b) of the Act, a permissive exclusion authority, the individual may request a hearing before an ALJ only on the issues of whether the "basis for the imposition of the [exclusion] exists" and the "length of exclusion is unreasonable." 42 C.F.R. § 1001.2007(a)(1). 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, or determine the scope or effect of the exclusion. Id. § 1005.4(c)(5); Christy Nichols Frugia, DAB No. 2736, at 4 (2016) (stating, in a case involving exclusion under section 1128(b)(4)(B) of the Act, 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"). A party dissatisfied with the ALJ's decision may appeal the decision to the Board. Id. § 1005.21(a).

Case background

By letter dated December 31, 2018, the I.G. notified Petitioner that he was being excluded from participation in all federal health care programs under section 1128(b)(4) of the Act because his license "to practice medicine or provide health care as a licensed nursing assistant in the State of Arizona was revoked, suspended, or otherwise lost or was surrendered while a formal disciplinary proceeding was pending before the [State Board] for reasons bearing on [his] professional competence, professional performance, or financial integrity."  I.G. Ex. 1, at 1. The notice explained that the exclusion "will remain in effect" until the I.G. reinstates Petitioner, and that he "must regain" his Arizona nursing assistant license to be eligible for reinstatement by the I.G. Id.2

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The I.G. informed Petitioner of his right to appeal the I.G.'s determination within 60 days of receipt of the exclusion notice. Id. at 4. Petitioner appealed.3  In a decision based on the written record,4 the ALJ concluded that the I.G. lawfully excluded Petitioner under section 1128(b)(4)(A) of the Act and 42 C.F.R. § 1001.501(a)(1) because the State Board revoked his nursing assistant license for reasons bearing on his professional competence or performance. ALJ Decision at 1, 6-8.

In reaching her conclusion, the ALJ considered the findings in the State Board's February 23, 2018 notice of "automatic" revocation of Petitioner's nursing assistant license (Notice of Revocation) for a minimum of five years based on his failure to comply with a Consent Agreement and Order (Consent Order), which Petitioner signed on September 15, 2017.5 I.G. Exs. 2, 3; ALJ Decision at 3-4. By the Consent Order, the State Board gave Petitioner a nursing assistant license on a provisional basis. I.G. Ex. 3, at 6 (stating that the license "will be granted" but "revoked," with revocation being "stayed contingent upon" compliance with the Consent Order, and that the stayed revocation "shall be lifted" and the license "automatically revoked" for a minimum five years if Petitioner fails to comply with the Consent Order during the 24-month "stayed revocation probation period") (emphases in original removed). However, as set out in the Notice of Revocation, the State Board later lifted the stay, resulting in revocation of the license, because Petitioner violated certain Consent Order terms as follows:

• On September 5, 2017, Petitioner pleaded guilty to a citation for shoplifting on July 31, 2017. Petitioner's October 3, 2017 verbal notice of the shoplifting charge

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to the State Board did not comply with the Consent Order, which required written notice within 10 days of the citation and conviction.6

• Petitioner failed to submit to random drug testing on five days between December 19, 2017 and February 20, 2018.
• Petitioner failed to submit a quarterly report of attendance at meetings of State Board-approved programs such as Alcoholics Anonymous and Narcotics Anonymous, due on January 31, 2018, for a three-month period ending that date.
• Petitioner failed to submit a quarterly report on his employment, which was due within 7 days of January 31, 2018.

I.G. Ex. 2, at 1-2; ALJ Decision at 4, and 6-7 (discussing the lift of stay on revocation based on the State Board's findings of Consent Order violations, which Petitioner did not dispute or refute with any evidence to the contrary).7

The ALJ also cited the State Board's finding that revocation was warranted for "unprofessional conduct," quoting the state law definition as including "[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." ALJ Decision at 7 (quoting I.G. Ex. 2, at 2, quoting in turn Ariz. Rev. Stat. §§ 32-1601, 32-1663(D)). In so concluding, the ALJ noted that the State Board put conditions on Petitioner's license subject to revocation for noncompliance with those conditions in light of Petitioner's history (past conduct, involvement in crimes, substance use). Id. That State Board action, the ALJ noted, indicated the State Board's determination that Petitioner's past conduct could pose a risk of harm to patients or the public and that his repeated substance use could impair his ability to practice on duty. Id. (citing Tracy Gates, R.N., DAB No. 1768 (2001); Roy Cosby Stark, DAB No. 1746 (2000); I.G. Ex. 3, at 4). The ALJ thus concluded that "the revocation of Petitioner's nursing license was for reasons related to his professional competence and professional performance." Id. at 8.

With respect to the duration of the exclusion, the ALJ stated that, if, as here, the I.G. exercises her discretion to exclude an individual under section 1128(b)(4), then the law requires exclusion for a period not "less than the period during which the individual's . . . license to provide health care is revoked, suspended, or surrendered . . . ." Id. at 6 (quoting Act § 1128(c)(3)(E)); 42 C.F.R. § 1001.501(b)(1).

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Standard of review

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

Discussion

Petitioner appears pro se before the Board, as he did before the ALJ. Petitioner does not raise any argument about the essential facts as found by the ALJ:  that, by its February 23, 2018 determination, the State Board revoked his nursing assistant license because he did not comply with the terms of his provisional license to which he had agreed by signing the Consent Order on September 15, 2017. We find the ALJ's findings supported by substantial evidence. Petitioner, moreover, does not dispute the ALJ's determination that the State Board revoked his license for reasons bearing on his professional competence or performance, and we agree with that determination. The ALJ's conclusion that the I.G. had a lawful basis for excluding Petitioner under section 1128(b)(4) of the Act was legally correct. On appeal, Petitioner raises arguments concerning the exclusion period and procedural due process, which we address below.

1. The ALJ correctly determined that the law requires an exclusion period no shorter than the period of revocation of the state nursing assistant license.

Petitioner recounts his past "mistakes" and "accidental[ ]" failure to submit to a drug test as required by the State Board in accordance with the Consent Order. He explains that an "investigator" (presumably referring to an individual with the State Board) told him that his license would be revoked if he failed to submit to additional tests, but that he could not afford to pay for additional tests. Notice of appeal (NA) at 1. He states that he has been working with people with mental illness and substance abuse problems and finds that work rewarding. He expresses a desire to return to work involving patient care. Id. at 1-2. He asks that the Board shorten the exclusion period. Id. at 1, 2.

Where, as here, the I.G. excludes an individual based on revocation of the individual's health care license for reasons bearing on his or her professional competence or performance, the individual must be excluded for a period not less than the period of revocation of that license.8 Act § 1128(c)(3)(E); 42 C.F.R. § 1001.501(b)(1). The ALJ

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has no discretionary authority not to follow the exclusion authorities, or to shorten the exclusion period under the circumstances here. See 42 C.F.R. § 1005.4(c)(1), (4), (5), (6) (the ALJ must follow the federal exclusion law and regulations; she cannot enjoin any act of the Secretary or the Secretary's delegate, or review the Secretary's determination to exclude an individual under section 1128(b), or determine the scope or effect of the exclusion, or set or reduce the exclusion period to "zero"). The Board, too, is bound to follow the exclusion authorities. See Ethan Edwin Bickelhaupt, M.D., DAB No. 2480, at 3 (2012), aff'd, Bickelhaupt v. Sebelius, No. 12 C 9598 (N.D. Ill. May 29, 2014).  Accordingly, the Board cannot reduce the exclusion period based on Petitioner's arguments, which reasonably may be understood as a request for a shorter exclusion period for equity reasons. See Rita Patel, DAB No. 2884, at 7 (2018) (The Board "does not have the power to decline to apply a regulation based on equity alone."), appeal docketed, Patel v. Sec'y U.S. Dep't of Health & Human Servs., No. 18-3227 (3d Cir. Oct. 5, 2018), transferred to No. 2:19-cv-08295 (D.N.J. Mar. 27, 2019).

2. Petitioner does not show that he was deprived of process to which he was entitled under the I.G. exclusion regulations.

Petitioner states that no one told him that he would be barred from working for any health care organization that receives any federal funding as a result of revocation of his state license. NA at 1. He says he learned about the I.G.'s determination to exclude him sometime after he applied for a job with a health care organization which informed him that a background check revealed negative history. Id. He states that he "never received" the I.G.'s exclusion notice because it was sent to the "wrong apartment." Id. The I.G.'s error, Petitioner asserts, caused him to "miss the initial period for challenging the decision to revoke" his license and "made [his] current efforts all that more difficult." Id.

The I.G.'s determination to exclude Petitioner from participation in all federal health care programs under section 1128(b)(4) is derivative of the State Board's revocation of Petitioner's nursing assistant license based on the State Board's findings that Petitioner violated the terms and conditions of his license in the Consent Order. See Donna Rogers, DAB No. 2381, at 4 (2011) ("In enacting section 1128(b)(4), Congress gave the I.G. derivative exclusion authority, i.e., the authority to rely on the factual findings of other government agencies and to base exclusions on the determinations of those agencies."). Nevertheless, appeal of the I.G.'s exclusion and appeal of revocation of a state license are separate matters governed by different rules. Petitioner does not explain how the I.G.'s sending the December 2018 exclusion notice – which explained that Petitioner was being excluded from all federal health care programs based on the revocation of his state nursing assistant license – to the "wrong apartment," even if true, could have affected the ability to challenge an earlier, February 2018 state license revocation before the State Board. We note, moreover, that the Consent Order, which Petitioner signed, included the following provision: "With the exception of the provisions identified in paragraphs Drug Testing and Performance Evaluations/Self-Reports, [Petitioner] waives any and all rights

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to any further review, hearing, rehearing or judicial review of any revocation imposed pursuant to this paragraph." I.G. Ex. 3, at 6 (emphasis in original removed). The State Board's Notice of Revocation, which informed Petitioner that his nursing assistant license was "automatically revoked" for violation of multiple Consent Order terms, quoted the Consent Order's waiver language. See I.G. Ex. 2, at 1.

In any case, it is evident that Petitioner eventually received the I.G.'s exclusion notice because he appealed the I.G.'s determination to the ALJ.  To the extent Petitioner is asserting that the I.G.'s mailing error caused him to miss the date for requesting a hearing before the ALJ to challenge the I.G. exclusion, as we discussed earlier, the ALJ raised the issue of timeliness of appeal and, upon notice of the I.G.'s decision not to move to dismiss the request for hearing on timeliness grounds, proceeded to review the merits of the appeal in accordance with the exclusion regulations in 42 C.F.R. Part 1005. See note 3 supra.  Petitioner does not show that he was deprived of his right to ALJ review of the I.G.'s determination to exclude him from all federal health care programs in accordance with the applicable exclusion authorities.

Conclusion

We affirm the ALJ Decision.

• 1. The current version of the Act can be found at http://www.socialsecurity.gov/OP_Home/ssact/ssact-toc.htm. Each section of the Act on that website contains a reference to the corresponding United States Code chapter and section. Cross-reference tables for the Act and the United States Code can be found at http://uscode.house.gov/table3/1935_531.htm and https://www.ssa.gov/OP_Home/comp2/G-APP-H.html.
• 2. The exclusion notice informed Petitioner about reinstatement, including early reinstatement in accordance with 42 C.F.R. § 1001.501(c), by the I.G. I.G. Ex. 1, at 1, 3. Early reinstatement of an individual excluded under section 1128(b)(4) of the Act is at the I.G.'s discretion. A decision to deny reinstatement is not subject to administrative or judicial review. See Act § 1128(g); 42 C.F.R. § 1001.501(c); 42 C.F.R. Part 1001, subpart F (reinstatement); Stefan Murza, D.C., DAB No. 2848, at 2 n.2 (2018).
• 3. Petitioner filed his request for hearing on July 4, 2019, about six months after the date of the I.G.'s exclusion notice. A request for hearing must be filed within 60 days after the exclusion notice. 42 C.F.R. § 1005.2(c). During a prehearing conference held on July 24, 2019, the ALJ raised the issue of timeliness of the appeal. The ALJ gave the I.G. an opportunity to move to dismiss the request for hearing, and, Petitioner, an opportunity to respond to any such I.G. motion. ALJ's July 25, 2019 order (citing 42 C.F.R. § 1005.2(e)(1), which states that the ALJ "will" dismiss an untimely request for hearing). On July 25, 2019, the I.G. filed a "Statement Regarding Jurisdictional Issue," informing the ALJ and Petitioner that the I.G. would not move to dismiss because 42 C.F.R. § 1005.2(c)'s presumption of receipt of the exclusion notice five days from the date of the notice was rebutted. The ALJ then proceeded to review the merits of the appeal.
• 4. Neither party submitted the written direct testimony of any witnesses the opposing party could choose to cross-examine at hearing. The ALJ therefore determined that a hearing need not be convened. ALJ Decision at 5. Neither party raises any argument concerning the ALJ's determination to issue a decision based the written record.
• 5. The State Board issued its 2018 Notice of Revocation in connection with Petitioner's third (2016) application for a nursing assistant license. The ALJ Decision recounts Petitioner's prior unsuccessful attempts to gain licensure due to his criminal history and substance abuse problems. It also discusses the findings of the State Board's background investigation initiated upon the third application, which revealed a criminal history and submittal of job applications that omitted disclosure of such history, and Petitioner's admission to the State Board that he had a history of illegal drug use. ALJ Decision at 1-3; I.G. Ex. 3, at 1-5.
• 6. With respect to the 2017 conviction for shoplifting that pre-dated the September 15, 2017 Consent Order, the ALJ noted that, only ten days after Petitioner pleaded guilty on September 5, 2017, he signed the Consent Order agreeing to accept the chronology of his prior criminal history set out in the Consent Order, which did not discuss the 2017 conviction. ALJ Decision at 4 n.1 (citing I.G. Ex. 3, at 1-5).
• 7. As indicated elsewhere in this decision, the I.G.'s exhibits on which the ALJ based her decision included the State Board's Notice of Revocation and Consent Order (I.G. exhibits 2 and 3). Petitioner submitted no exhibits; he did not object to the I.G.'s exhibits. See ALJ Decision at 5.
• 8. The ALJ concluded that "the IG properly excluded Petitioner . . . for as long as his Arizona nursing assistant license is revoked." ALJ Decision at 8. The evidence of record, and the ALJ Decision, make clear that the State Board revoked Petitioner's license for a minimum five-year period, permitting Petitioner to apply for reissuance of his state license only on or after February 23, 2023. See I.G. Ex. 2, at 3; see also id. at 4 (revocation order, signed by the State Board's executive director on February 23, 2018, stating that Petitioner may apply for reissuance after five years).