Lisa Marie Bruwer, DAB CR6805 (2025)

DECISION

I affirm the exclusion of Petitioner, Lisa Marie Bruwer, from participation in all federal health programs.

I.  Background

In an April 30, 2025 notice, the Inspector General (IG) of the Department of Health and Human Services excluded Petitioner from participation in all federal health care programs under section 1128(b)(4) of the Social Security Act (42 U.S.C. § 1320a-7(b)(4)) because Petitioner's "license to provide health care as a registered nurse in the State of Arizona was revoked, suspended, or otherwise lost or was surrendered while a formal disciplinary proceeding was pending, for reasons bearing on [Petitioner's] professional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."  IG Ex. 1 at 1.  The notice further stated that the exclusion remains in effect until the IG reinstates Petitioner, which can only occur if Petitioner regains her Arizona registered nurse (RN) license, obtains a health care license in another state, or serves at least three years of the exclusion.  IG Ex. 1 at 1.

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On July 8, 2025, Petitioner requested a hearing to dispute the exclusion.  On July 9, 2025, the Civil Remedies Division acknowledged receipt of the hearing request, gave notice I would hold a telephone prehearing conference on August 5, 2025, and issued my Standing Order.

On August 5, 2025, Petitioner and counsel for the IG appeared for the conference, the substance of which is summarized in my August 5, 2025 Order Rescheduling Prehearing Conference.  At the conference, Petitioner stated that she had not retained an attorney to represent her.  I advised Petitioner that she had the right to be represented by an attorney at her own expense, but that I could not appoint an attorney to represent her.  I offered Petitioner the opportunity to reschedule the conference to give her more time to consider whether she should hire an attorney.  Petitioner was uncertain whether she should hire an attorney and agreed that learning more about the process for adjudicating this case would be helpful.  I explained some of the basic aspects related to this case to help inform Petitioner's choice concerning representation.  I rescheduled the conference to September 18, 2025, to give Petitioner time to decide.

On September 18, 2025, I held a telephone prehearing conference with the parties, the substance of which is summarized in my September 22, 2025 Order Following Prehearing Conference and Setting Schedule for Prehearing Submissions.  At the conference, Petitioner confirmed that she would represent herself.  During the conference, the parties agreed to a prehearing exchange schedule.

On October 23, 2025, the IG submitted a prehearing exchange consisting of a brief (IG Br.) and two proposed exhibits (IG Exs. 1-2).  On December 3, 2025, Petitioner filed a brief (P. Br.) and two unmarked exhibits.  Electronic Filing System (E-File) Doc. Nos. 8-10.  On December 12, 2025, the IG filed a reply.

II.  Admission of Exhibits

Absent objection, I admit IG Exhibits 1 and 2, and Petitioner's two unmarked exhibits into the record.  Standing Order ¶ 13; see 42 C.F.R. § 1005.8(c).

III.  Decision on the Written Record

I directed the parties to submit written direct testimony from all witnesses that the parties wanted to present in this case and stated that the opposing party could request to cross-examine the witnesses.  Standing Order ¶¶ 11-12; see also 42 C.F.R. § 1005.16(b); Civil Remedies Division Procedures (CRDP) § 16(b).  I also advised the following:

I will not conduct a hearing in this case unless a party files admissible, written direct testimony, and the opposing party asks to cross-examine one or more witnesses.  If I do not

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conduct a hearing, then I will issue [a decision] based on the written record.

Standing Order ¶ 12; see also CRDP § 19(b).  Consistent with my Standing Order, the CRDP states the following:

The ALJ may determine that an oral hearing is unnecessary and not in the overall interest of judicial economy if the parties do not identify any proposed witnesses, do not offer the written direct testimony of any witnesses when ordered to do so, or do not request an opportunity to cross-examine a witness whose written direct testimony has been offered.  Under these circumstances, the ALJ may decide the case based on the written record.

CRDP § 19(d).

In the present case, all deadlines for submitting prehearing exchanges have passed and neither party filed written direct testimony.  Further, the IG affirmatively stated that witness testimony and an in-person hearing are not necessary.  IG Br. at 4.  Therefore, I do not need to hold an in-person hearing and may issue a decision based on the written record.  EI Medical, Inc., DAB No. 3117 at 15 (2023); Anil Hanuman, D.O., DAB No. 3080 at 12 (2022); Vandalia Park, DAB No. 1940 (2004).

IV.  Issues

1. Whether the IG had a legitimate basis to exclude Petitioner under 42 U.S.C. § 1320a-7(b)(4).
2. Whether the length of exclusion is unreasonable.

V.  Jurisdiction

I have jurisdiction to adjudicate this case.  42 U.S.C. § 1320a-7(f)(1); 42 C.F.R. §§ 1001.2007, 1005.2.

VI.  Findings of Fact

1) Petitioner was licensed to practice as an RN in Arizona.  IG Ex. 2 at 1.

2) On or about February 16, 2024, the Chief Nursing Officer of a health care entity where Petitioner worked filed a complaint with the Arizona State Board of Nursing

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(Board of Nursing) that Petitioner was suspected of improperly diverting narcotics.  IG Ex. 2 at 1.

3) The Board of Nursing investigated the complaint.  IG Ex. 2 at 1.

4) Although the Board of Nursing made various attempts to contact Petitioner from April to August 2024, by August 9, 2024, Petitioner had not responded to the Board of Nursing.  IG Ex. 2 at 5-6.

5) On September 19, 2024, the Board of Nursing voted to summarily suspend Petitioner's RN license pending further hearing.  IG Ex. 2 at 6.

6) On January 31, 2025, Petitioner signed a Consent Agreement and Order in which Petitioner admitted the Findings of Fact and Conclusions of Law.  IG Ex. 2 at 8-9.

7) Petitioner did not concede that she diverted drugs.  E-File Doc. No. 8.

8) The Consent Agreement and Order included the following Findings of Fact and Conclusions of Law:

a.  On August 3, 2023, while working at a health care entity, Petitioner obtained 2mg of Lorazepam (benzodiazepine) but only administered 1mg of the medication to the patient.  In violation of nursing standards, Petitioner failed to have someone witness that Petitioner wasted the remaining unused medication.  IG Ex. 2 at 1-2.

b.  On August 9, 2023, while working at a health care entity, Petitioner removed 2mg/ml of Dilaudid (an opioid and Schedule II controlled substance) but only administered 1.5 mg within 3.5 hours of removal.  This action violated nursing standards requiring a documented witness for wasted medication within one hour of administering the medication.  IG Ex. 2 at 2.

c.  On November 29, 2023, while working at a health care entity, Petitioner removed 4mg of Morphine (an opioid and Schedule II controlled substance) without a physician order and did not document the administration of that medication to a patient, a return of the medication, or that someone witnessed Petitioner waste the medication.  This action violated nursing standards because Petitioner failed to document her actions concerning the morphine.  IG Ex. 2 at 2-3.

d.  On December 29, 2023, while working at a health care entity, Petitioner removed 5mg of Midazolam (benzodiazepine) for a patient who did not

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exist in the patient database and there was no documentation for the administration, return, or that someone witnessed Petitioner waste the medication.  This action violated nursing standards because Petitioner failed to document her actions concerning the Midazolam.  IG Ex. 2 at 3-4.

e.  On January 25, 2024, while working at a health care entity, Petitioner obtained 100mcg/2ml of Fentanyl (an opioid and Schedule II controlled substance) but only administered 25 mcg to the patient.  In violation of nursing standards, Petitioner failed to document that the drug was administered, returned, or the remaining amount was wasted in the presence of a witness.  IG Ex. 2 at 4.

f.  On or between February 3, 2024 and February 4, 2024, while working at a health care entity, Petitioner reported to another RN that she provided a full 2mg dose (i.e., a full vial) of Ativan (benzodiazepine sedative) to a patient; however, the other RN noted that there was still liquid in the vial.  When questioned, Petitioner threw the vial in a Sharps container.  This action violated nursing standards because Petitioner improperly reported that she gave a patient the entire vial of medication, but had not, and failed to document she wasted the remaining amount in the vial.  IG Ex. 2 at 5.

g.  The Board of Nursing concluded that it had subject matter and personal jurisdiction related to Petitioner and the violations of nursing standards.  IG Ex. 2 at 7.

h.  The Board of Nursing concluded that the Findings of Fact showed that Petitioner engaged in "Unprofessional conduct" under Arizona Revised Statutes (A.R.S.) section 32-1601(27) based on her conduct.  IG Ex. 2 at 7.

i.  The Board of Nursing concluded that "[t]he conduct and circumstances described in the Findings of Fact constitute sufficient cause . . . to revoke, suspend or take disciplinary action against the license of [Petitioner] to practice as a registered nurse in the State of Arizona."  IG Ex. 2 at 8.

9) In the Consent Agreement and Order, Petitioner agreed that "the Findings of Fact, Conclusion of Law and Order are conclusive evidence of a prior violation of the Nurse Practice Act and may be used for the purposes of determining sanction in any future disciplinary matter.  IG Ex. 2 at 8.

10) Pursuant to the Consent Agreement, the Board of Nursing issued an Order that included the following provisions:

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a.  Petitioner's RN license was revoked; however, the revocation was stayed so long as Petitioner complied with the provisions in the Order.  IG Ex. 2 at 10.

b.  Petitioner's license was suspended for a term not to exceed 12 months with terms and conditions.  IG Ex. 2 at 10.

c.  Upon completion of the terms and conditions, Petitioner will be placed on either a minimum 36-month or 24-month Stayed Revocation Probation.  The longer period will be used if Petitioner is found to have a substance use disorder.  IG Ex. 2 at 10.

d.  If Petitioner does not comply with the terms of the Order during the Stayed Revocation period, Petitioner's license will be automatically revoked for a minimum of five years.  IG Ex. 2 at 10.

e.  During the period of the Stayed Revocation Suspension, Petitioner is prohibited from nursing.  IG Ex. 2 at 11.

f.  If Petitioner is found to have a substance use disorder, then Petitioner must enter the substance use disorder rehabilitation program.  IG Ex. 2 at 13.  In addition, Petitioner would have to comply with numerous other requirements, such as drug testing, related to improper substance usage.  IG Ex. 2 at 15-21.

11) From March 2025 through November 2025, Petitioner has been tested for drugs many times and the results have been negative.  E-File Doc. No. 10.

VII.  Conclusions of Law and Discussion

1. The IG excluded Petitioner under 42 U.S.C. § 1320a-7(b)(4)(B), 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

* * * *

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(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.

42 U.S.C. § 1320a-7(b)(4); see also 42 C.F.R. § 1001.501.

As stated in Findings of Fact 8 through 10, Petitioner admitted to violating the standards of nursing, and agreed to a revocation/suspension of her nursing license because her actions constituted unprofessional conduct under Arizona's law governing nursing.  Therefore, the record fully supports the elements for a permissive exclusion under 42 U.S.C. § 1320a-7(b)(4).

Petitioner requests that I reverse the IG's exclusion because the revocation of her license was not based on professional competence, professional performance, or financial integrity.  P. Br. at 1.  Petitioner asserts that her license revocation was based on false accusations of drug diversion that were not supported by evidence.  P. Br. at 1.  Petitioner explained that some of the documentation problems with the drugs stemmed from work in an Emergency Department where there may be chaotic situations that make it difficult to account for the medications.  P. Br. at 1-2.  Petitioner points out that the health care entity where she was working allowed Petitioner to work three additional shifts after accusations were made against her.  P. Br. at 2.  Petitioner denied diverting drugs, that there was any evidence that she diverted any drugs, or that she harmed any patients.  P. Br. at 2.

I am unable to reverse the exclusion.  Petitioner admitted to committing multiple violations of nursing standards concerning her documentation of controlled substances.  Failing to properly account for controlled substances certainly relates to professional competence and performance.  Petitioner agreed in the Consent Agreement and Order that her violations of nursing standards constituted unprofessional behavior under applicable state law, further supporting the characterization of her misconduct as involving professional competence and performance.

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I agree that the Consent Agreement and Order does not expressly find or conclude that Petitioner improperly diverted controlled substances.  However, the documented violations are enough to factually and legally support the IG's decision to impose a permissive exclusion.  If the IG has a legitimate basis to impose the permissive exclusion, I cannot reverse the IG's discretionary decision to impose it.  See 42 C.F.R. § 1005.4(c)(5).

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

Petitioner also seeks a reduction in the length of her exclusion.  P. Br. at 1.  Petitioner argues that the length of the exclusion imposes an undue hardship because her reinstatement is pending with the Nursing Board.  P. Br. at 2.  She also states that a mitigating circumstance should be considered because the violations took place during work at an understaffed Emergency Department that had high pressure and no patients were harmed.  P. Br. at 2.  Petitioner also states that she has fully cooperated with the Board of Nursing concerning drug testing and other accountability requirements.  P. Br. at 3.  Petitioner asserts that the exclusion serves no remedial purpose.  P. Br. at 2.

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 . . . ."  Although the IG may lengthen the period exclusion if certain aggravating circumstances are present, mitigating circumstances may only be considered once the IG has lengthened the exclusion beyond the statutory minimum.  42 C.F.R. § 1001.501(b).

The IG imposed the minimum statutorily required length of exclusion.  I cannot reduce its length.

VIII.  Conclusion

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