Lisa Michelle Dyer, DAB CR6499 (2024)

DECISION

The Inspector General (IG) of the United States Department of Health and Human Services excluded Lisa Michelle Dyer (Petitioner) from participation in all federal health programs because the Pennsylvania State Board of Nursing (Board of Nursing) suspended Petitioner’s registered nurse (RN) license. Petitioner requested a hearing to dispute the exclusion, arguing that the reasons for the suspension did not have a bearing on Petitioner’s professional competence or performance. As discussed below, I find that Petitioner’s RN license was originally suspended for substance abuse and that the Board of Nursing explicitly found that Petitioner was unable to practice professional nursing with reasonable skill and safety to patients due to the improper drug use. Although the Board of Nursing stayed the suspension in favor of probation, the Board of Nursing eventually terminated the stay and allowed the suspension to become effective. Therefore, I conclude that the reasons for the suspension had a bearing on Petitioner’s professional competence and/or performance, and I affirm the IG’s exclusion of Petitioner from participation in all federal health care programs.

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I. Background

In a January 31, 2024 notice, the IG excluded Petitioner from participation in all federal health care programs. The IG cited section 1128(b)(4) of the Social Security Act (42 U.S.C. § 1320a-7(b)(4)) as the basis for Petitioner’s exclusion. The IG took this action because Petitioner’s license to provide health care as an RN in Pennsylvania was revoked, suspended, or otherwise lost, or was surrendered while a formal disciplinary proceeding was pending, for reasons bearing on Petitioner’s professional competence, professional performance, or financial integrity. The notice stated that the exclusion will remain in effect until Petitioner is reinstated by the IG and that, to be eligible for reinstatement, Petitioner must regain her RN license in Pennsylvania. The notice also stated that there may be other options for reinstatement after the exclusion has been in effect for three years. Finally, the notice stated the exclusion would be effective 20 days from the date of the notice. IG Ex. 1 at 1.

Petitioner requested a hearing to dispute the exclusion. The Civil Remedies Division acknowledged receipt of the hearing request, informed the parties I would hold a prehearing conference, and issued my Standing Order. On March 5, 2024, I held a telephonic prehearing conference, the substance of which is summarized in my March 5, 2024 Order Following Prehearing Conference and Setting Schedule for Prehearing Submissions. At the conference, I advised Petitioner of the right to be represented by counsel, but Petitioner decided to proceed self-represented. I discussed the prehearing exchanges the parties would need to submit, and the parties agreed to a prehearing submission schedule.

The IG timely submitted a brief (IG Br.) along with four exhibits. Petitioner submitted a brief (P. Brief), a response to the IG’s Statement of Facts (P. Supp. Br.), and 12 marked exhibits. The IG filed a reply brief (IG Reply) with objections to Petitioner’s exhibits.

II. Issue

Whether the IG had a legitimate basis to exclude Petitioner under 42 U.S.C. § 1320a-7(b)(4).

III. Evidentiary Rulings

I admit IG Exhibits 1 through 4 into the record, without objection. See Standing Order ¶ 13; see also 42 C.F.R. § 1005.8(c).

The IG objected to all of Petitioner’s proposed exhibits, mostly on grounds that they are irrelevant and immaterial. I must exclude irrelevant or immaterial evidence. 42 C.F.R. § 1005.17(c).

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As discussed below, I overrule the objection to Petitioner Exhibit 1 but sustain the objections as to Petitioner’s other proposed exhibits. Therefore, I exclude Petitioner Exhibits 2-5, 6a, 6b, 7-8, 9a., 9b, 9c, and 10-12 from the record.

Petitioner Exhibit 1 is a letter from Pennsylvania authorities dated February 12, 2020, permitting Petitioner to return to the practice of nursing with several restrictions. The IG asserts that this letter is irrelevant because it is dated well before the disciplinary proceedings held in 2021 and 2022. IG Reply at 4-5. I overrule this objection because the 2022 suspension of Petitioner’s RN license has its origins in a disciplinary proceeding that dates back to 2019. Therefore, as discussed below, Petitioner Exhibit 1 provides some relevant information related to the question as to whether the reasons for Petitioner’s license suspension had a bearing on Petitioner’s professional competence and performance.

Petitioner Exhibits 2 through 5 are documents from 2020 showing nursing positions that Petitioner was either offered, pursuing, or accepted. Petitioner submitted these documents as proof that the suspension of her RN license did not involve her professional competence or performance. P. Br. at 5. The IG objected to these proposed exhibits as irrelevant and immaterial as to whether Petitioner’s RN license was suspended based on professional competence or performance. IG Reply at 5-7. For purposes of determining whether Petitioner’s license was suspended based on matters involving professional competence or performance, the job offers made to Petitioner in 2020 are irrelevant.

Petitioner Exhibits 6a, 6b, and 7 are documents showing that Petitioner complied with various probation requirements that the Board of Nursing found Petitioner to have violated. Petitioner submitted these documents because they “highlight[] numerous errors documented in my [Board of Nursing] file over the years.” P. Br. at 5; P. Supp. Br. at 1-3. The IG objected to these documents as irrelevant because Petitioner submitted them to collaterally attack the Board of Nursing suspension order. IG Reply at 7. There is no doubt that these exhibits relate to allegations and findings of Petitioner’s failure to comply with various probation conditions and requirements that had been placed on Petitioner’s RN license. See IG Ex. 2 at 2-3; IG Exs. 3-4. I agree with the IG that these documents are irrelevant because Petitioner submitted them to show that the Board of Nursing erroneously concluded that Petitioner failed to comply with the requirements to maintain probation for her RN license. As a result, the proposed exhibits’ only purpose is to make an impermissible collateral attack on the findings in the Board of Nursing’s suspension order. 42 C.F.R. § 1001.2007(d).

Petitioner Exhibits 8, 9a, 9b, 9c, and 10-12 are documents showing that Petitioner’s attorneys failed to file a timely appeal in 2022 to the Board of Nursing’s May 20, 2022 order suspending Petitioner’s RN license. P. Br. at 6. Petitioner argues that these exhibits demonstrate that she made every effort to comply with the appeal deadline concerning the May 20, 2022 suspension order, but Petitioner’s attorneys were late and

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made errors. P. Supp. Br. at 3-4. The IG objects to these proposed exhibits as irrelevant. IG Reply at 8-9. The IG asserts that the right of appeal Petitioner is referring to is an opportunity for judicial review in a Pennsylvania court. IG Reply at 8 n.3; IG Ex. 4 at 4. I agree with the IG that the proposed exhibits are irrelevant because Petitioner’s allegations that her attorneys failed to timely appeal the May 20, 2022 suspension order to a court is not an issue that I can consider when deciding this case. Petitioner must seek redress in the Pennsylvania court system.

IV. Decision on the Record

Both of the parties indicated that they did not have any witnesses to present in this case and that an in-person hearing was not necessary to decide this case. P. Br. at 3; IG Br. at 7. Therefore, I render this decision on the basis of the written record. Standing Order ¶¶ 12, 16; see also 42 C.F.R. § 1005.6(b)(5).

V. Jurisdiction

I have jurisdiction to hear and decide this case. 42 U.S.C. §§ 405(b), 1320a-7(f)(1); 42 C.F.R. §§ 1001.2007(a)(1)-(2), 1005.2(a).

VI. Findings of Fact

1) Petitioner was licensed to practice as an RN in Pennsylvania on December 4, 2008. IG Ex. 2 at 37.

2) On April 17, 2019, the Board of Nursing issued a Consent Agreement and Order in which the Board of Nursing “found that [Petitioner] was unable to practice professional nursing with reasonable skill and safety to patients by reason of mental or physical illness or condition or physiological or psychological dependence on alcohol, hallucinogenic or narcotic drugs or other drugs which tend to impair judgment or coordination unless she participates in a monitoring program.” IG Ex. 2 at 35; see IG Ex. 2 at 37-38.

3) Through the April 17 Consent Agreement and Order, “the Board [of Nursing] indefinitely suspended [Petitioner’s] license for no less than three (3) years, but immediately stayed enforcement of the suspension in favor of no less than three (3) years of probation retroactive to August 17, 2016, to be monitored by [the Disciplinary Monitoring Unit (DMU)]. IG Ex. 2 at 35; see IG Ex. 2 at 37-38.

4) The April 17 Consent Agreement and Order provided various conditions that Petitioner had to follow or else the Nursing Board could terminate probation and impose an actual suspension. These conditions included: fully and completely complying and cooperating with the Professional Health Monitoring Programs

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(PHMP) efforts to monitor Petitioner’s compliance with the Consent Agreement and Order; cooperating and complying with PHMP’s requests for written reports, records, and verification of actions that may be required by PHMP; completely abstaining from the use of controlled substances and mood altering drugs (as well as alcohol) except when lawfully prescribed by a provider approved by PHMP; submitting to random unannounced and observed drug and alcohol tests as directed by PHMP; and paying the costs incurred to comply with the Consent Agreement and Order including the cost for drug testing. IG Ex. 2 at 38-39.

5) The April 17 Consent Agreement and Order stated: “A positive, adulterated or substituted result on a drug test shall constitute an irrefutable violation of this Order unless [Petitioner] has complied with the provisions of this Order pertaining to the use of drugs. Failure to provide a specimen or a specimen of sufficient quantity for testing when requested will be considered a violation of this Order.” IG Ex. 2 at 40

6) The April 17 Consent Agreement and Order stated: “Failure of [Petitioner] to pay any of these costs [related to complying with the Consent Agreement and Order] in a timely manner shall constitute a violation of this Agreement.” IG Ex. 2 at 40.

7) On July 25, 2019, a Petition for Appropriate Relief was filed with the Board of Nursing alleging that Petitioner: had positive drug screens in June and July 2019 for a schedule IV controlled substance; omitted employment as a nurse on a Personal Data Sheet; and failed to pay the costs of the drug monitoring. IG Ex. 2 at 35.

8) After holding a hearing, on November 4, 2019, a Board of Nursing hearing examiner issued a Proposed Adjudication and Order. IG Ex. 2 at 34-66. The hearing examiner concluded that Petitioner violated the terms and conditions of the Consent Agreement and Order “by providing positive drug screens on June 5, 2019 and July 8, 2019 for Phentermine without first submitting a prescription to PHMP; failing to pay the costs of drug testing . . .; and failing to fully and completely comply and cooperate with the PHMP in the monitoring of her impairments.” IG Ex. 2 at 44. The hearing examiner recommended that “[Petitioner] be given one last opportunity to complete her monitoring program having the active suspension of her license to practice as a registered nurse immediately stayed in favor of probation for an additional three months of monitoring in the DMU program.” IG Ex. 2 at 48.

On February 4, 2020, the Board of Nursing issued a Final Order indicating that the hearing examiner’s Proposed Adjudication and Order was the final order of the Board of Nursing because neither party filed any exceptions to it. IG Ex. 2 at 32.

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10) On November 17, 2020, Petitioner signed a document entitled Consent Agreement and Order concerning further disciplinary matters related to Petitioner’s RN license. IG Ex. 2 at 6-31. Petitioner stipulated that, on February 19, 2020, Petitioner submitted a specimen for a scheduled drug screen and that specimen tested positive for Marijuana Metabolite. IG Ex. 2 at 8. Petitioner also agreed that she violated a state statute and “is unable to practice professional nursing with reasonable skill and safety by reason of mental or physical illness or condition or dependence upon alcohol, hallucinogenic or narcotic drugs or other drugs which tend to impair judgment or coordination.” IG Ex. 2 at 8. Petitioner agreed to an indefinite suspension of Petitioner’s RN license for no less than three years commencing retroactively to June 10, 2020, but that the suspension would be immediately stayed in favor of probation lasting not less than three years. IG Ex. 2 at 9-10. A violation of the terms and conditions in the November 17 Consent Agreement and Order would result in the termination of probation and the activation of a suspension. IG Ex. 2 at 23. The terms and conditions for probation included, in pertinent part: monitoring by the PHMP’s DMU; complying fully and completely with the PHMP; abiding by all federal and Pennsylvania laws; cooperating and complying with any PHMP requests for written reports, records, or verifications of actions; enrolling in the peer assistance program when requested by PHMP to do so, and complying with the peer assistance program; abstaining from use of controlled substances except when such medications are lawfully prescribed by a treating practitioner approved by PHMP; submitting to random unannounced and observed drug and alcohol tests selected by PHMP; and a “[f]ailure to provide a specimen or a specimen of sufficient quantity for testing when requested will be considered a violation of this Agreement.” IG Ex. 2 at 10-11, 16-18.

11) On December 7, 2020, the Board of Nursing issued an Order approving and adopting the November 17 Consent Agreement and Order. IG Ex. 2 at 69.

12) On March 17, 2022, the Pennsylvania Bureau of Professional and Occupational Affairs filed a Petition for Appropriate Relief with the Board of Nursing seeking the active suspension of Petitioner’s RN license. IG Ex. 2 at 1-4. The Petitioner for Appropriate Relief alleged that Petitioner violated the Consent Agreement and Order that the Board of Nursing approved on December 7, 2020, because Petitioner failed to: submit to drug testing; provide a written verification of support group attendance; provide monthly progress reports to the Pennsylvania Nurse Peer Assistance Program (PNAP); and fully and completely comply and cooperate with the PHMP in monitoring Petitioner through drug testing, submitting written verification of support group attendance, and submitting monthly progress reports to PNAP. IG Ex. 2 at 2-3.

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13) On March 22, 2022, the Board of Nursing Probable Cause Screening Committee issued a Preliminary Order finding that there was probable cause to conclude that Petitioner violated the terms and conditions of the December 7, 2020 Consent Agreement and Order. IG Ex. 3. The Preliminary Order vacated the stay of the suspension of Petitioner’s RN license, terminated Petitioner’s probation, and actively suspended Petitioner’s license for no less than three years. IG Ex. 3 at 3.

14) On May 20, 2022, the Board of Nursing issued a Final Order. IG Ex. 4. The Final Order noted that Petitioner had not filed a response to the March 22, 2022 Preliminary Order and that the Preliminary Order was final. IG Ex. 4 at 2. The Final Order specified that “[Petitioner’s] license to practice professional nursing, licensing number RN601180, is actively SUSPENDED, for no less than three (3) years, retroactive to March 22, 2022.” IG Ex. 4 at 2.

VII. Conclusions of Law and Discussion

A. The IG excluded Petitioner under 42 U.S.C. § 1320a-7(b)(4)(A), and the IG has proven each required element under the statute.

The IG cites 42 U.S.C. § 1320a-7(b)(4) as the basis for Petitioner’s permissive exclusion. IG Ex. 1. The statute provides, in pertinent part:

(b) PERMISSIVE EXCLUSION. – The Secretary may exclude the following individuals and entities from participation in any Federal health care program

* * * *

(4) LICENSE REVOCATION OR SUSPENSION. – Any individual or entity –

(A) 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 or entity’s professional competence, professional performance, or financial integrity, or

(B) who surrendered such a license while a formal disciplinary proceeding was pending before such an authority and the proceeding concerned the individual’s or entity’s professional competence, professional performance, or financial integrity.

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Thus, the elements that the IG must prove in this case are: (1) a state licensing authority (2) suspended Petitioner’s RN license (3) for reasons bearing on Petitioner’s professional competence, professional performance, or financial integrity.

For the reasons stated below, I conclude that the IG has proven each of these elements.

1. Petitioner’s RN license was suspended by a state licensing authority.

Petitioner does not dispute the first two elements for exclusion, as identified above, i.e., that Petitioner’s RN license was suspended as a consequence of an action taken by a state licensing authority, were proven by the IG. P. Br. at 1. The record also clearly supports the finding that the Board of Nursing suspended Petitioner’s RN license for no less than three years effective March 22, 2022. IG. Exs. 3-4. Therefore, I conclude that Petitioner’s RN license was suspended by a state licensing authority for purposes of exclusion under 42 U.S.C. § 1320a-7(b)(4).

2. The Board of Nursing suspended Petitioner’s RN license for reasons bearing on Petitioner’s professional competence or professional performance.

Petitioner disputes that the Board of Nursing suspended her RN license for reasons bearing on professional competence and/or professional performance. P. Br. at 2. Petitioner argues that her professional competence and performances have never been questioned and that PNAP issued a “Permission to Work” letter evidencing that PNAP believed Petitioner to be competent. P. Br. at 2, 5.

The February 12, 2020 PNAP letter states that, effective that date, Petitioner had the permission of PHMP and PNAP to return to the practice of nursing. However, the letter restricted Petitioner from practicing nursing in emergency rooms, operating rooms, intensive care units, cardiac catheterization laboratories, and coronary care units, and from serving as a supervisor in a home care setting or as an agency nurse. Further, Petitioner was not allowed to practice nursing without direct RN supervision. P. Ex. 1.

The IG argues that the reasons for the RN license suspension did bear on Petitioner’s competence and/or performance. The IG argues:

The Consent Agreement “found [Petitioner] to have violated Section 14(a)(2) of the [Professional Nursing Law], 63 P.S. § 224(a)(2), because the Board found that [Petitioner] is unable to practice professional nursing with reasonable skill and safety by reason of mental or physical illness condition or dependence upon alcohol, hallucinogenic or narcotic drugs or other drugs which tend to impair coordination. I.G. Ex. 2 at 2

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and at 6. Petitioner’s violation of the Consent Agreement and Order bears on her professional competence and professional performance. See Richard R. Jimenez, DAB No. 2986 (2020) (affirming ALJ’s decision that Petitioner was lawfully excluded under section 1128(b)(4)(A) of the Act for reasons bearing on professional competence or performance where Petitioner’s nursing assistance license was revoked for failure to comply with the Arizona State Board of Nursing’s Consent Agreement and Order); and Christy Nichols Frugia, DAB No. 2736 at 2 (2016) (affirming the ALJ’s decision upholding the I.G.’s exclusion of Petitioner under section 1128(b)(4) of the Act based on Petitioner’s loss of her nursing license due to her failure to comply with the State of Texas Board of Nursing’s Reinstatement Agreed Order).

IG Br. at 5.

To determine whether a suspension or revocation of a license bears on professional competence or professional performance, I need to look at the “totality of [the excluded individual’s] actions that resulted in the revocation of [the excluded individual’s] nurse’s license . . . .” Tracy Gates, R.N., DAB No. 1768 (2001).

I agree generally with the IG’s position. I believe that Petitioner’s suspension was first imposed in 2019 based on Petitioner’s substance abuse that resulted in a Consent Agreement and Order acknowledging that Petitioner was unable to practice professional nursing with reasonable skill and safety. IG Ex. 2 at 35; see IG Ex. 2 at 37-38. Although the suspension imposed in 2019 was immediately stayed in favor of probation, it is significant that, in 2022, the Board of Nursing terminated the stay and actively imposed the suspension. While the reason for the termination of the stay involved a failure to comply with probation requirements, the suspension itself was still the suspension ordered in 2019. Therefore, the reason for the original suspension bears on Petitioner’s professional competence and/or performance.

The IG appears to take the position that the suspension is based on the 2020 Consent Agreement and Order. The document also required Petitioner to acknowledge Petitioner’s inability to practice professional nursing with reasonable skill and safety based on substance abuse issues. IG Ex. 2 at 8. Even if the suspension imposed in 2022 was based on the 2020 Consent Agreement and Order, as the IG appears to argue, the situation remains the same - Petitioner’s substance abuse problem was identified as rendering Petitioner unable to practice professional nursing with reasonable skill and safety. Further, as the IG argues, Petitioner’s failure to comply with the conditions of probation show a lack of professional care that bears on her professional competence.

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Finally, as stated above, Petitioner argues that PNAP’s permission to work shows that she was professionally competent and refutes that she was suspended for matters bearing on her professional performance. However, as summarized above, PNAP placed heavy restrictions on Petitioner’s RN license showing that PNAP lacked confidence in Petitioner’s ability to fully discharge the duties as RN. P. Ex. 1. As a result, this document does not support Petitioner’s position and, instead, supports the IG position.

Therefore, I conclude that the reasons for the suspension of Petitioner’s RN license bear on her professional competence and/or performance, and that Petitioner was properly excluded under 42 U.S.C. § 1320a-7(b)(4).

B. The length of Petitioner’s exclusion is reasonable as a matter of law.

Under 42 U.S.C. § 1320a-7(c)(3)(E), the period of exclusion “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 . . . .” Because Petitioner has not asserted that her RN license has been reinstated, I conclude that an indefinite period of exclusion is warranted under 42 U.S.C. § 1320a-7(c)(3)(E).

VIII. Conclusion

I affirm the IG’s determination to exclude Petitioner from participating in all federal health care programs pursuant to 42 U.S.C. § 1320a-7(b)(4).