Laurie Diane Trainer, DAB CR5096 (2018)

DECISION

Petitioner, Laurie Diane Trainer, was a registered nurse (R.N.) in the State of Florida.  The State of Florida Board of Nursing (State Board) found that Petitioner had violated the nursing practice statute by failing to meet minimal standards of acceptable and prevailing nursing practice.  Based on these findings, the State Board revoked Petitioner’s R.N. license.  Now, pursuant to section 1128(b)(4) of the Social Security Act (Act), the Inspector General (I.G.) has excluded Petitioner from participation in Medicare, Medicaid, and all federal health care programs until she regains her Florida R.N. license.

For the reasons set forth below, I find that Petitioner’s R.N. license was revoked for reasons bearing on her professional competence or professional performance.  The I.G. therefore had a legal basis to exclude her from program participation.  The duration of the exclusion is the minimum required by section 1128(c)(3)(E) of the Act; accordingly, it is reasonable as a matter of law.

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I.  Background

In a letter dated August 31, 2017, the I.G. advised Petitioner that she was excluded from participation in Medicare, Medicaid, and all federal health care programs because her license to provide health care as a registered nurse in the State of Florida was revoked, suspended, or otherwise lost for reasons bearing on her professional competence, professional performance, or financial integrity.  I.G. Exhibit (Ex.) 1.  The letter explained that section 1128(b)(4) of the Act authorizes the exclusion.  Id.  Petitioner timely requested review.  I convened a telephone prehearing conference and issued an Order and Schedule for Filing Briefs and Documentary Evidence (Briefing Order).

Pursuant to the Briefing Order, the I.G. submitted a brief and six proposed exhibits (I.G. Br.; I.G. Exs. 1-6).  Petitioner submitted answers to the questions posed in the informal short form brief which this office provided to her (P. Br.).  She did not offer any exhibits, nor did she object to any of the exhibits proposed by the I.G.  Therefore, in the absence of objection, I admit into evidence I.G. Exs. 1-6. 

The parties agree that this case may be resolved without an in-person hearing.  I.G. Br. at 6; P. Br. at 3.  I therefore decide this case based on the written record.  See Briefing Order ¶ 9

II.  Discussion

A. The I.G. is authorized to exclude Petitioner because the Florida State Board revoked Petitioner’s R.N. license for reasons bearing on her professional competence or professional performance.My findings of fact and conclusions of law are set out in bold italic type.

The Act authorizes the Secretary of Health and Human Services (Secretary) to exclude from program participation an individual whose license to provide health care is revoked, suspended, or otherwise lost for reasons bearing on her professional competence, professional performance, or financial integrity.  Act § 1128(b)(4).  The Secretary has delegated this exclusion authority to the I.G.  42 C.F.R. § 1001.501(a).

Petitioner does not dispute that her R.N. license was revoked.  P. Br. at 1.  Nor does she directly challenge the conclusion that the State Board revoked her license for reasons bearing on her professional competence or professional performance, within the meaning of section 1128(b)(4) of the Act.  P. Br.  There can be no doubt that these elements are satisfied in the present case.

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The State Board’s Final Order revoking Petitioner’s license adopted the facts alleged in the Administrative Complaint in Petitioner’s case.  I.G. Ex. 5 at 1.  The Administrative Complaint recounts that Petitioner was employed as an R.N. at a long-term care facility, when a resident of the facility collapsed and Petitioner found the resident unresponsive, but still breathing.  I.G. Ex. 5 at 5.  Thereafter, according to the Administrative Complaint, Petitioner failed to assess the resident properly, failed to stay with the resident or ensure that he was adequately supervised, and failed to apply the facility’s Automated External Defibrillator, or otherwise attempt or apply resuscitation techniques, even though the resident did not have a “Do Not Resuscitate” order.  I.G. Ex. 5 at 5-6.  When emergency medical services arrived at the facility, they found the resident in cardiac arrest, and he was subsequently pronounced dead at the hospital.  I.G. Ex. 5 at 6.

Based on Petitioner’s conduct, the Administrative Complaint charged that Petitioner’s R.N. license was subject to disciplinary action because she “failed to meet minimal standards of acceptable and prevailing nursing practice” in violation of Fla. Stat. § 464.018(1)(n).  I.G. Ex. 5 at 6‑7.  The State Board’s Final Order revoked Petitioner’s license based on its conclusion that the conduct described above violated Fla. Stat. § 464.018(1)(n).  I.G. Ex. 5 at 2.  A license revocation based on an individual’s failure to meet minimal acceptable standards of nursing practice is, on its face, related to the individual’s professional competence and professional performance.  Accordingly, the I.G. had a basis to exclude Petitioner pursuant to section 1128(b)(4) of the Act.

In her informal brief, Petitioner argues, essentially, that the incident on which the State Board relied to revoke her license did not occur as the Board alleged.  She represents that she did assess the resident and did not leave him unattended, but “made sure the CNA [certified nursing assistant] stayed with the Resident to continue monitoring the person while [Petitioner] called emergency services (911) and [Petitioner] was speaking distance away from [the CNA].”  P. Br. at 2-3.  Even if I were inclined to credit Petitioner’s version of events,I note that Petitioner did not submit her statement of the facts as an affidavit or declaration under penalty of perjury, even though my Briefing Order directed parties to do so. Briefing Order ¶ 7(c)(ii). Nevertheless, even had she offered sworn testimony, this would not alter my conclusion that such testimony would represent an impermissible collateral attack on Petitioner’s license revocation. I have no authority to look behind the State Board’s conclusion that Petitioner failed to adhere to minimum standards of acceptable nursing practice in her treatment of the resident at issue.  To do so would represent an impermissible collateral attack on the State Board’s decision to revoke Petitioner’s license.  See 42 C.F.R. § 1001.2007(d) (providing that, where an exclusion is based on an agency’s prior determination where the facts were adjudicated and a final decision was made, the underlying basis for that determination is not reviewable and may not be collaterally attacked).

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B. As a matter of law, Petitioner must be excluded until she regains her R.N. license in Florida.

Petitioner does not explicitly argue that I should reduce the period of her exclusion, but such an argument may be implicit in her statement that “[n]ursing has been [her] livelihood for over 30 years” and she has “a lot to still offer the community.”  P. Br. at 4.  These arguments are essentially equitable.  However, equitable considerations are not a basis to overturn or shorten Petitioner’s exclusion.  I 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.”  Donna Rogers, DAB No. 2381 at 6 (2011); see also Stefan Murza, D.C., DAB No. 2848 at 4 (2018).

Rather, the Act requires that Petitioner’s period of exclusion “shall not be less than the period during which the individual’s . . . license. . . is revoked, suspended, or surrendered .  .  .  .”  Act § 1128(c)(3)(E); see also 42 C.F.R. § 1001.501(b).  I note that, effective February 13, 2017, 42 C.F.R. § 1001.501 was amended by adding a new subsection (c).  See 82 Fed. Reg. 4100, 4113-14 (Jan. 12, 2017).  Subsection 1001.501(c) authorizes the I.G. to consider early reinstatement of an individual if, after being fully informed of the circumstances leading to the exclusion, a state licensing authority (other than the one that originally suspended or revoked the individual’s license) grants the individual a new health care license or takes no adverse action against an existing health care license.  Id. at 4113.  In the present case, Petitioner has not presented any facts from which I could conclude that a state other than Florida issued her a nursing license or took no action on an existing license.  And, even if the record included such facts, I have no authority to direct that Petitioner be granted early reinstatement in any event.  The regulations delegate to the I.G. the discretion to grant or deny early reinstatement.  See 42 C.F.R. §§ 1001.3002(f); 1001.3004(c).

III.  Conclusion

For the above reasons, I conclude that the I.G. had a legal basis to exclude Petitioner from participation in Medicare, Medicaid, and all other federal health care programs for so long as her R.N. license is revoked in the State of Florida.