Andrea Michelle Eagle, DAB CR6477 (2024)

DECISION

Petitioner, Andrea Michelle Eagle, was a practical nurse, licensed in Arizona.  On August 31, 2016, the Arizona State Board of Nursing revoked her nursing license, finding that she had violated patient confidentiality and that she had been convicted of attempted assault on a peace officer.  In 2021, she asked that her license be reinstated, and, on March 11, 2022, the Board of Nursing granted her application but imposed conditions.  Among those conditions, Petitioner was required to abstain from alcohol, illegal drugs, and drugs requiring a prescription.  When Petitioner failed a drug test, the Board of Nursing began disciplinary actions against her license.  While that action was pending, Petitioner Eagle voluntarily surrendered her nursing license.

Pursuant to section 1128(b)(4) of the Social Security Act (Act), the Inspector General (IG) has excluded her from participating in Medicare, Medicaid, and all other federal health care programs until she regains that license.  Petitioner now appeals the exclusion.

For the reasons set forth below, I find that Petitioner Eagle surrendered her medical license while formal disciplinary proceedings were pending against her before the Arizona licensing authority.  The licensing authority brought those proceedings against

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her for reasons bearing on her professional competence and performance.  The IG has therefore appropriately excluded her from program participation pursuant to section 1128(b)(4).

Background

In a letter dated February 29, 2024, the IG advised Petitioner Eagle that she was excluded from participating in Medicare, Medicaid, and all federal health care programs because her license to provide health care as a practical nurse in the State of Arizona was revoked, suspended, or otherwise lost or was surrendered while a formal disciplinary proceeding, bearing on her professional competence, professional performance, or financial integrity, was pending before the state licensing authority.  The letter explained that section 1128(b)(4) authorizes the exclusion.  IG Ex. 1.  Petitioner Eagle requested review.

The IG submitted her brief (IG Br.) and four exhibits (IG Exs. 1-4).  Petitioner filed a brief (P. Br.) with six exhibits (P. Exs. 1-6).

In the absence of any objection, I admit into evidence IG Exs. 1-4 and P. Exs. 1-6.  The parties agree that an in-person hearing is not necessary in order to decide this case.  IG Br. at 4; P. Br. at 3.

Discussion

Because Petitioner Eagle surrendered her nursing license while a formal disciplinary proceeding bearing on her professional competence or performance was pending, the IG may appropriately exclude her from participating in Medicare, Medicaid, and other federally funded health care programs.1

The Act authorizes the Secretary of Health and Human Services to exclude from program participation an individual who surrendered her license to provide health care while a formal disciplinary proceeding was pending before any state licensing authority, if the proceeding concerned the individual’s professional competence, professional performance, or financial integrity.  Act § 1128(b)(4); accord 42 C.F.R. § 1001.501(a).

The parties agree that Petitioner Eagle voluntarily surrendered her nursing license while formal disciplinary proceedings were pending against her.  IG Br. at 2-3; P. Br. at 2; IG Exs. 2, 4.

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Petitioner’s difficulties with the state licensing board began in 2013.  At that time, she was working for an assisted living facility.  On April 16, 2013, she allowed her husband – who was not a facility employee – to take patient vital signs, feed residents, and “linger around the nurse’s station in violation of [the facility’s] policies and patient confidentiality.”  The facility terminated her employment.  IG Ex. 4 at 2 (¶ 5).

A few days later, on April 22, 2013, Petitioner was involved in an altercation and kicked a police officer.  She was arrested and charged with two counts of aggravated assault on a peace officer.  She ultimately pleaded guilty to a Class 1 misdemeanor.  She did not timely report the incident or the conviction to the Board of Nursing, “as required by statute and rule.”  IG Ex. 4 at 2 (¶ 3).

Initially, without filing formal charges, the Board of Nursing offered to enter into a consent agreement, placing Petitioner on probation for a minimum of 24 months.  Petitioner did not sign the agreement.  On July 22, 2016, the Arizona State Board of Nursing revoked Petitioner’s nursing license.  IG Ex. 4 at 3, 4.

On September 2, 2021, Petitioner applied for reissuance of her nursing license.  Pursuant to a consent agreement, dated March 15, 2022, the Board of Nursing granted Petitioner a limited license, with conditions attached.  Among other requirements, she agreed to abstain from alcohol and unauthorized drug use and to undergo periodic drug testing.  IG Ex. 3 at 8-10 (¶¶ H2-H4).  The agreement provides that, if Petitioner violated its terms, her nursing license would automatically be revoked.  IG Ex. 3 at 17 (¶ H19).

On May 11, 2022, Petitioner submitted a random urine drug test that was positive for codeine.  IG Ex. 2 at 1.  When the Board of Nursing notified her of the results, she denied using any substance containing codeine.  Although advised that she could request that a Medical Review Officer review the test results, Petitioner opted instead to surrender her license voluntarily.  Id.  The Arizona State Board of Nursing accepted the voluntary surrender.  IG Ex. 2 at 5.  In doing so, the Board concluded that, under Arizona law, “failing to comply with a stipulated agreement, consent agreement or board order” constitutes unprofessional conduct.  IG Ex. 2 at 2, citing A.R.S. § 32-1601(27).

Petitioner does not dispute any of this but complains that the test result, which led to her surrendering her license, was a false positive.  P. Br. at 2, citing P. Ex. 2.  However, as part of her voluntary surrender agreement, Petitioner agreed to the Board of Nursing’s findings and conclusions.  IG Ex. 2 at 2.  These findings included that her random drug test was positive for codeine.  IG Ex. 2 at 1.  The Board of Nursing’s findings are final, and Petitioner may not use this forum to challenge them.  The regulations preclude such a collateral attack on an underlying determination:

When the exclusion is based on the existence of a . . . determination by [a] [g]overnment agency, or any other prior determination where

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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); Delores L. Knight, DAB No. 2945 at 9 (2019); Marvin L. Gibbs, Jr., M.D., DAB No. 2279 at 8-10 (2009); Roy Cosby Stark, DAB No. 1746 (2000).

The statute requires that Petitioner Eagle’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).

Conclusion

For the above reasons, I conclude that the IG properly excluded Petitioner Eagle from participating in Medicare, Medicaid, and all other federal health care programs for so long as her nursing license is surrendered.