Monica Ferguson, DAB CR5585 (2020)

DECISION

Petitioner, Monica Ferguson, was a licensed nurse practitioner, working in Oregon.  Citing a long list of offenses, including professional and fiscal improprieties, the Oregon Department of Human Services, Aging and People with Disabilities (state agency) terminated her Medicaid provider enrollment.  Thereafter, as authorized by section 1128(b)(5) of the Social Security Act (Act), the Inspector General (IG) excluded her from participating in Medicare, Medicaid, and all federal health care programs, at least until the state agency reinstates her program participation.  Petitioner appeals the IG exclusion.

For the reasons discussed below, I sustain the IG’s determination. 

Background

In a letter dated August 30, 2019, the IG advised Petitioner Ferguson that, because the Oregon state agency suspended, excluded, or otherwise sanctioned her “for reasons bearing on [her] professional competence, professional performance or financial integrity,” the IG was excluding her from participating in Medicare, Medicaid, and all federal health care programs.  Her exclusion would remain in effect until the state agency

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reinstated her participation in the Medicaid program.  The letter explained that section 1128(b)(5) of the Act authorizes the exclusion.  IG Ex. 2.

Petitioner timely requested review. 

The parties have submitted written arguments.  (IG Br.; P. Br.).  With her brief, the IG submitted four exhibits (IG Exs. 1-4).  With her brief, Petitioner submitted 14 exhibits (P. Exs. 1-10 and P. Exs. 12-15).  The IG also submitted a reply brief.  In the absence of any objections, I admit into evidence IG Exs. 1-4 and P. Exs. 1-10 and 12-15. 

I instructed the parties to indicate in their briefs whether an in-person hearing would be necessary and, if so, to explain why, identify any proposed witness, and “submit witness testimony in the form of an affidavit or sworn declaration.”  Order and Schedule for Filing Briefs and Documentary Evidence at 4 (¶ 7) (November 1, 2019); see attached Informal Brief of Petitioner at 2-3 (¶ II); 42 C.F.R. § 1005.16(b) (authorizing the ALJ to admit testimony in the form of a written statement).

The IG indicates that an in-person hearing is not necessary.  IG Br. at 6.  Petitioner, however, asserts that an in-person hearing “could be helpful,” but she identifies no specific witnesses and offers no written declarations.  P. Br. at 43-44.  Instead, she attacks the integrity of the state administrative process and describes her (unnamed) potential witnesses as character witnesses:  they “would speak of [her] performance, competence, character as a [n]urse practitioner, [n]urse, person, mother, daughter, friend or colleagues.”  P. Br. at 44.  I must exclude evidence that is irrelevant or immaterial.  42 C.F.R. § 1005.17(c).  As the following discussion explains, this testimony would be irrelevant because Petitioner may not use these proceedings to attack collaterally the state administrative process.  Nor may I alter the exclusion on the grounds that she is a “good person” or otherwise well thought of in her professional life.

I therefore conclude that an in-person hearing would serve no purpose, and this case may be decided based on the written record.

Discussion

Because a state regulatory authority terminated Petitioner Ferguson’s participation in a state medical assistance program for reasons bearing on her professional competence, professional performance or financial integrity, the IG appropriately excluded her from participating in Medicare, Medicaid, and other federal health care programs.1

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The Act authorizes the Secretary of Health and Human Services to exclude from program participation an individual who has been suspended, excluded, or otherwise sanctioned under a state health care program for reasons bearing on her professional competence, professional performance, or financial integrity.  Act § 1128(b)(5); 42 C.F.R. § 1001.601(a)(ii).

Here, Petitioner Ferguson was a nurse practitioner, licensed in the State of Oregon, who worked as a Medicaid-enrolled homecare worker.  Citing violations of program rules, the state agency terminated her Medicaid enrollment.  IG Ex. 3.  She appealed, and, in a decision issued September 13, 2018, a state administrative law judge affirmed the termination, based on Petitioner’s fiscal improprieties (repeated overbilling and double billing) and her failing to report her arrest for a potentially disqualifying crime (driving under the influence of intoxicants – opioids and amphetamines).  IG Ex. 4.

Thus the Oregon state agency suspended, excluded, or otherwise sanctioned Petitioner from a state health care program for reasons bearing on her financial integrity as well as her professional competence or performance.  See Richard R. Jimenez, DAB No, 2986 (2020) (characterizing as bearing on his professional competence or performance a nursing assistant’s failing to comply with his duty to report a shoplifting arrest and conviction).

Petitioner attacks the state agency’s investigation and final decision, arguing that the state ALJ erred in determining that she had committed financial improprieties.  P. Br. at 12, 18.  Federal regulations preclude such a collateral attack:

When the exclusion is based on the existence of a . . . civil judgment  . . . by another Government agency, or any other prior determination where the facts were adjudicated and a final decision was made, the basis for the underlying . . . determination is not reviewable and the individual or entity may not collaterally attack it, either on substantive or procedural grounds in this appeal.

42 C.F.R. § 1001.2007(d); Marvin L. Gibbs, Jr., M.D., DAB No. 2279 at 8-10 (2009); Roy Cosby Stark, DAB No. 1746 (2000).

Petitioner also submits letters from friends and colleagues attesting to her good character.  P. Ex. 2.  But these arguments do not alter the undisputed facts underlying her termination from the state Medicaid program.  My authority is limited by the regulations, and I may not review the IG’s decision to exclude an individual “on the ground that she is a good person or well-thought-of in the profession . . . .”  Donna Rogers, DAB No. 2381 at 6 (2011).

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Petitioner also argues that, in imposing an exclusion, the IG violated her due process and other rights.  I have no authority to review Petitioner’s constitutional challenges.  Donna Rogers, DAB No. 2381 at 5 (2011); Susan Malady, DAB No. 1816 (2001); see also 42 C.F.R. § 1005.4(c)(1).

Finally, the statute and regulation also require that Petitioner’s period of exclusion “shall not be less than the period during which . . . the individual . . . is excluded or suspended from a Federal or State health care program.”  Act § 1128(c)(3)(E); 42 C.F.R. § 1001.601(b)(1).

Conclusion

Because she was excluded from the state Medicaid program for reasons bearing on her professional competence, professional performance, and financial integrity, the IG is authorized to exclude Petitioner Ferguson from participating in Medicare, Medicaid, and other federal health care programs for as long as the state Medicaid exclusion continues.