Jesse Joseph Marstrell, DAB CR6403 (2023)

DECISION

Petitioner, Jesse Joseph Marstrell, was licensed as a registered nurse in the State of Ohio until the Ohio Board of Nursing (Nursing Board) suspended his license for an indefinite period of no less than two years.  Pursuant to section 1128(b)(4) of the Social Security Act (Act), the Inspector General (IG) excluded him from participation in Medicare, Medicaid, and all federal health care programs until he regains his Ohio nursing license.  Petitioner now appeals the exclusion.

For the reasons set forth below, I find that the Nursing Board suspended Petitioner's nursing license for reasons bearing on his professional competence and performance.  The IG had a legitimate basis to exclude him pursuant to section 1128(b)(4) of the Act.

I.  Background

Petitioner was licensed to practice as a registered nurse in the State of Ohio.  IG Ex. 2 at 2.  On May 20, 2021, the Nursing Board issued a Notice of Opportunity for Hearing in which it proposed to "deny, revoke, permanently revoke, suspend or place restrictions"

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on Petitioner's nursing license or impose a reprimand, discipline, or fine not exceeding $500 against Petitioner based on the following reasons:

On or about February 24, 2021, you were transported to Mercy Medical Center, Canton after being reported to be unresponsive at your residence.  A multitude of syringes, and vials containing controlled substances including but not limited to Ketamine, Morphine, and Hydromorphone, were found in your possession at the residence.  During the course of your treatment at Mercy Medical Center, you stated that you had self-administered Dilaudid and Ketamine by injecting the drugs into your arm.  You did not have a legal, valid prescription for these drugs.  You further stated that you worked as [a] nurse at The Cleveland Clinic, and that you had been self-medicating with drugs that you stole from the hospital, which included Dilaudid, and recently Ketamine.

IG Ex. 3 at 1.  The Nursing Board explained that it is authorized to discipline a licensee "for self-administering or otherwise taking into the body any dangerous drug, as defined in Section 4729.01, [Ohio Revised Code], in any way not in accordance with a legal, valid prescription issued for that individual, or self-administering or otherwise taking into the body any drug that is a schedule I controlled substance."  IG Ex. 3 at 1.  The Nursing Board further explained that pursuant to section 4723.28(B)(13) of the Ohio Revised Code, it is authorized to "discipline a licensee for misappropriating or attempting to misappropriate money or anything of value in the course of practice."  IG Ex. 3 at 1.

In August 2021 Petitioner signed a consent agreement with the Nursing Board.  IG Ex. 2.  Petitioner "knowingly and voluntarily admit[ted] to the factual and legal allegations set forth in" the May 2021 Notice of Opportunity for Hearing.  IG Ex. 2 at 3.  Petitioner also "knowingly and voluntarily agree[d] with the Board" to the suspension of his registered nurse license for an indefinite period of not less than two years.  IG Ex. 2 at 3.  Petitioner agreed that the Nursing Board may reinstate his license upon his written request for reinstatement that complied with the conditions outlined in the consent agreement.  IG Ex. 2 at 3-7.  These conditions included, but were not limited to, compliance with a substance abuse disorder treatment plan and submission to random drug testing.  IG Ex. 2 at 5.

On May 31, 2023, the IG notified Petitioner that he would be excluded from participation in Medicare, Medicaid, and all federal health care programs because his license to provide health care in the State of Ohio had been revoked, suspended, or otherwise lost or surrendered while a formal disciplinary proceeding bearing on his professional competence, professional performance, or financial integrity, was pending.  IG Ex. 1 at 1.  The IG's notice informed Petitioner that he would be eligible for reinstatement upon  regaining his Ohio nursing license.  IG Ex. 1 at 1.  The IG also informed Petitioner that he could be eligible for early reinstatement if he obtained a health care license in any

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state or had been excluded for a minimum period of three years.  IG Ex. 1 at 1; see 42 C.F.R. § 1001.501(c).

Petitioner, through counsel, submitted a request for hearing on August 4, 2023.  Shortly thereafter, the Civil Remedies Division issued my standing pre-hearing order (Pre-Hearing Order).  I convened a pre-hearing conference on August 22, 2023, and I issued an order that same day 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.) and four exhibits (P. Exs. 1-4).  The IG also filed a reply brief.  In the absence of any objections, I admit IG Exs. 1-3 and P. Exs. 1-4 into the evidentiary record.

Neither party submitted the written direct testimony of any witnesses.  See Pre-Hearing Order §§ 9, 14; 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 (D.D.C. 2019).  Consequently, it is unnecessary to convene a hearing for the purpose of cross-examination of any witnesses.  See Pre-Hearing Order §§ 15, 16.  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.

IV.  Findings of Fact, Conclusions of Law, and Analysis¹

The IG had a legitimate basis to exclude Petitioner from participation in Medicare, Medicaid, and all federal health care programs because the Nursing Board suspended his registered nurse license for reasons bearing on his professional competence or performance, and the length of the exclusion is reasonable as a matter of law.²

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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.  Donna Rogers, DAB No. 2381 at 6 (2011) (stating that 42 C.F.R. § 1005.4(c)(5) provides that an administrative law judge (ALJ) "does not have the authority to . . . review the exercise of discretion by the [IG] to exclude an individual . . . under section 1128(b) of the Act").

The Nursing Board is authorized by section 4723.28 of the Ohio Revised Code to impose certain sanctions, to include denying, revoking, permanently revoking, suspending, or placing restrictions on a license, and otherwise imposing a reprimand, discipline, or a fine of not more than $500 per violation.

Pursuant to a consent agreement entered into following a settlement conference, Petitioner agreed to an indefinite suspension of his nursing license for a minimum period of two years.  IG Ex. 2 at 3.  Thus, the first element of section 1128(b)(4), that Petitioner's nursing assistant license was revoked, suspended, or surrendered, is satisfied.

The second element of section 1128(b)(4) requires that the license was suspended "for reasons bearing on the individual's . . . professional competence [or] professional performance . . . ."  Although Petitioner argues there "is no evidence in the record demonstrating that [his] addiction indeed impaired his professional competence, professional performance, or financial integrity" (P. Br. at 3), he fails to acknowledge that the Departmental Appeals Board (DAB) has repeatedly determined that state licensure actions based on the abuse and diversion of controlled substances have a bearing on professional performance and competence.³  In explaining why exclusion

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pursuant to section 1128(b)(4) was warranted based in significant part on a suspension on the diversion and abuse of controlled substances, the DAB explained the following:

The totality of the circumstances outlined by the ALJ -- drug abuse, falsification of controlled substance records, and diversion of controlled substances -- is sufficient to conclude that the revocation of Petitioner's nurse's license was for reasons bearing on her professional performance, authorizing her exclusion under section 1128(b)(4) of the Act.

Moreover, that the Nursing Board deemed Petitioner's actions sufficient to warrant the revocation of her nurse's license strongly indicates that those actions bore on her professional competence or performance.  While the Nursing Board did not specifically state that Petitioner's professional competence or professional performance were compromised, this does not mean that her actions were not within the standard at section 1128(b)(4).  This Board has previously held that a state licensing authority is not required to make findings with respect to an individual's professional competence, professional performance, or financial integrity, or to use those words, in order for the [IG] to exclude an individual.  Brian Bacardi, D.P.M., DAB No. 1724 (2000); Olufemi Okonuren, M.D., DAB No. 1319 (1992).  The wording of the provision merely requires that the reasons for the revocation have "bearing on" these concerns.  A contrary interpretation would subject federal programs and patients to risks simply because of the state licensing authority's choice of words.

Petitioner's actions that led to the revocation of her nurse's license are akin to those which supported exclusions under section 1128(b)(4) in prior ALJ decisions.  Those included:  using a controlled substance that was not properly prescribed (Charles Sutherland, D.O., DAB CR561 (1998)); substance abuse coupled with the diversion of controlled substances (Mary E. Groten, DAB CR518 (1998)), obtaining a false prescription for a controlled substance (Lakshmi N. Murty Achalla, M.D., DAB CR104 (1990), aff'd, DAB No. 1231 (1991)); prescribing a controlled substance outside of the physician-patient relationship (Chester A. Bennett, M.D., DAB CR64 (1990)); writing false prescriptions (Stephen J. Willig, M.D., DAB CR192 (1992)); and alcoholism (Wilbur D. Hilst, M.D., DAB CR621 (1999)).  Excluding Petitioner based on the totality of her actions that

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resulted in the revocation of her nurse's license is fully consistent with these prior holdings.

Tracey Gates, R.N., DAB No. 1768 (2001).  The initial question I must resolve is whether the IG was authorized to exclude Petitioner pursuant to section 1128(b)(4) of the Act, and I may not review the IG's exercise of discretion in such a determination as long as the IG was authorized to impose the exclusion.  42 C.F.R. § 1005.4(c)(5); Monica Ferguson, DAB No. 3013 at 12 (2020) ("[A]n ALJ has no authority to review the [IG'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.").  Because the Nursing Board's suspension of Petitioner's license was based on his abuse and diversion of controlled substances, and such conduct has been determined to bear on professional competence and performance, the IG was authorized to impose an exclusion pursuant to section 1128(b)(4) of the Act.  See Tracey Gates, DAB No. 1768.

To the extent Petitioner argues that his "addiction did not affect his job performance or endangered [sic] patients," the DAB has explained that "[t]his argument does not go to an issue material to the [IG's] authority to exclude Petitioner," in that the IG is authorized to exclude an individual who was the subject of an enumerated licensure action "‘and the proceeding concerned the individual's . . . professional competence, professional performance, or financial integrity.'"  Christy Nichols Frugia, DAB No. 2736 at 5 (2016); see P. Br. at 3.

Petitioner has submitted character references and evidence of his rehabilitation.  P. Exs. 1-4.  While Petitioner's efforts to overcome addiction are laudable and may support a request for reinstatement of his nursing license, such evidence is immaterial to the question of whether the IG was authorized to exclude Petitioner based on the circumstances of his license suspension.⁴  See IG Exs. 1 at 1; 2 at 4-10 (conditions for reinstatement of Petitioner's Ohio nursing license).

Finally, Petitioner argues that the duration of the exclusion is unreasonable.  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); Richard R. Jimenez, DAB No. 2986 at 6 (2020) ("Where, as here, the [IG] 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

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revocation of the license.").  The duration of the exclusion is a matter of law and is therefore reasonable.

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 Ohio nursing license remains suspended.

Endnotes

¹  My findings of fact and conclusions of law are set forth in italics and bold font.

²  I make this one finding of fact/conclusion of law.

³  The IG cited several DAB and ALJ decisions in support of her argument that the Nursing Board "suspended Petitioner's license for conduct bearing on his professional competence and performance within the meaning of section 1128(b)(4) of the Act."  IG Br. at 4-5.  Petitioner did not address any of these decisions, nor did he attempt to distinguish the factual circumstances of his case from the cases cited by the IG.

⁴  Petitioner's license suspension for a minimum of two years was retroactive to April 20, 2021.  IG Ex. 2 at 3.  Therefore, he was eligible to seek reinstatement of his nursing license at the time he filed his request for hearing on August 4, 2023.  IG Ex. 2 at 3.