Katherine M. Sovulewski, DAB CR6837 (2026)

DECISION

Petitioner, Katherine M. Sovulewski, was a registered nurse in the State of Missouri, whose license has repeatedly been restricted and was ultimately revoked.  Because her license was revoked, the Inspector General (IG) has excluded her from participating in Medicare, Medicaid, and all other federal health care programs pursuant to section 1128(b)(4) of the Social Security Act (Act).  The exclusion remains in effect until she is reinstated.  To be eligible for reinstatement, she must regain her Missouri nursing license, obtain another healthcare license or have been excluded for a minimum period of three years.

Petitioner now appeals the exclusion.

For the reasons set forth below, I find that the Missouri State Board of Nursing revoked Petitioner Sovulewski’s license to provide health care as a registered nurse for reasons bearing on her professional competence and performance.  The IG therefore is authorized to exclude her from program participation, and I may not disturb the IG’s exercise of that authority.

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Background

In a letter dated July 31, 2025, the IG advised Petitioner Sovulewski that she was excluded from participation in Medicare, Medicaid, and all federal health care programs because her license to provide health care as a registered nurse in the State of Missouri was revoked, suspended, or otherwise lost for reasons bearing on her professional competence, professional performance, or financial integrity.  The letter explained that section 1128(b)(4) authorizes the exclusion.  The letter also explained that the exclusion would remain in effect until she is reinstated by the IG.  To be eligible for reinstatement, she had to regain her Missouri nursing license.  In the alternative, the letter explained, the IG would consider early reinstatement if she obtained a health care license in any state or after she had been excluded for a minimum of three years.  IG Ex. 1.

Petitioner Sovulewski requested review.

Exhibits.  The IG submitted its brief (IG Br.) and four exhibits (IG Exs. 1-4).  In the absence of any objection, I admit into evidence IG Exs. 1-4.

Petitioner submitted her own brief with three exhibits (P. Exs. 1-3).  The IG objects to all three exhibits, arguing that they are irrelevant.  P. Exs. 1 and 2 are letters from Petitioner’s physician and licensed social worker opining that she is able to practice safely as a nurse.  P. Ex. 3 is Petitioner’s own written declaration, challenging the actions of the State Board of Nursing.  I agree that the documents are irrelevant and should be excluded.  See 42 C.F.R. § 1005.17(c) (requiring the ALJ to exclude irrelevant evidence).

The issue before me is narrow:  did the IG have the authority to exclude Petitioner from program participation?  This depends on whether her nursing license was revoked for reasons bearing on her professional competence or performance.  Her subsequent efforts to rehabilitate herself are not relevant to that question (although they may help her obtain her nursing license, generally a prerequisite to reinstatement).  Nor may Petitioner use this forum to challenge the nursing board’s actions.  See discussion below.  I therefore decline to admit Petitioner’s proffered exhibits.

Hearing based on the written record.  The IG indicates that this case may be decided without an in-person hearing.  IG Br. at 5.  Petitioner, on the other hand, indicates that an in-person hearing is necessary, with herself and her social worker as witnesses.  P. Br. at 3.1  In my initial Order and Schedule for Filing Briefs and Documentary Evidence, I directed the parties to submit witness testimony in the form of an affidavit or written sworn declaration and cautioned that I would accept witness testimony only if it is relevant to the issues before me.  Order at 4 ¶ 7 (October 30, 2025).  Even accepting the

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social worker’s letter in lieu of a written declaration, the “testimony” proffered is irrelevant, so I will not allow it.  Thus, because there are no witnesses to be examined or cross-examined, an in-person hearing would serve no purpose, and this matter may be decided based on the written record.

Discussion

Because Petitioner Sovulewski’s license to practice nursing was revoked for reasons bearing on her professional competence and professional performance, the IG may exclude her from participating in Medicare, Medicaid, and other federally funded health care programs.2

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 for reasons bearing on her “professional competence, professional performance, or financial integrity.”  Act § 1128(b)(4); accord 42 C.F.R. § 1001.501(a)(1).  The exclusion “will not be for a period of time less than the period during which an individual’s . . . license is revoked . . . as a result of . . . a State licensing agency action.”  Act § 1128(c)(3)(E); 42 C.F.R. § 1001.501(b)(1).  Under certain circumstances, the IG may lengthen the period of exclusion.  42 C.F.R. § 1001.501(b)(2).

Here, the parties agree that Petitioner’s nursing license was revoked by a state licensing authority.  IG Br. at 1; P. Br. at 1.  Petitioner, however, does not agree that the license was revoked for reasons bearing on her professional competence, professional performance or financial integrity.  P. Br. at 1-2.  Petitioner’s contention fails because the evidence definitively establishes that her license was revoked for reasons bearing on her professional competence and performance.

Petitioner has an extensive history of difficulties with the state licensing board:

• Effective July 9, 2013, the Missouri State Board of Nursing placed Petitioner’s license on probation for five years, finding that, from March 5 through April 4, 2012, she had diverted 29 mg. of Hydromorphone, a controlled substance, from her hospital employer.  She subsequently ingested the drug, and thereafter she continued to divert the drug from the hospital.  IG Ex. 2 at 7-8.  Her probation included specified terms and conditions.  IG Ex. 2 at 8.
• Following a March 5, 2015 hearing, the nursing board found that Petitioner had violated the terms of her probation – she failed to call the Board’s third-party administrator; she failed to report to a collection site to provide a required urine

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• sample; and she tested positive for Ethyl Glucuronide, a metabolite of alcohol.  The nursing board revoked her probation and placed her license under new probationary restrictions.  IG Ex. 2 at 8.
• Following another hearing, held on November 18, 2015, the nursing board found that Petitioner had again violated the terms of her probation:  she failed to call the board’s third-party administrator; she failed to report to a collection site to provide a required urine sample; and she tested positive for a metabolite of alcohol.  The nursing board again revoked her probation and placed her on new probationary restrictions.  IG Ex. 2 at 9.
• Following a third hearing, held on June 9, 2016, the nursing board revoked Petitioner’s nursing license because she had again tested positive for a metabolite of alcohol.  IG Ex. 2 at 9.
• Petitioner reapplied for her nursing license in September 2017.  With her application, she submitted the results of a chemical dependency evaluation that diagnosed her with opiate addiction and polysubstance abuse (alcohol).  Although the nursing board denied her application, on appeal, the Administrative Hearing Commission for the State of Missouri granted her application.  Her license was reinstated, subject to probationary conditions.  IG Ex. 2 at 9-10; IG Ex. 2 at 11-20.
• Reinstatement of Petitioner’s license was temporary.  After receiving complaints that she had again violated the conditions of her probationary license, the nursing board convened a hearing on February 29, 2024.  IG Ex. 4 at 2.  Following the hearing, the nursing board concluded that Petitioner had again tested positive for a metabolite of alcohol, failed to make the required daily check-ins on multiple days, submitted diluted urine samples three times, and failed to report for a test.  In an order dated May 20, 2024, the Missouri State Board of Nursing revoked her nursing license, concluding that revocation was appropriate “in order to safeguard the health of the public.”  IG Ex. 4 at 10.

Petitioner suggests that, because the exclusion here is permissive, the IG was not required to exclude Petitioner and should instead have considered mitigating factors.  Citing 42 C.F.R. § 1001.201(b)(3)(1), Petitioner claims that, because her case does not involve any financial loss or criminal offenses, she should not be excluded.  P. Br. at 2.  Petitioner’s argument is seriously flawed.

Petitioner cites to the wrong regulation.  Section 1001.201(b)(3) describes potential mitigating factors in 1128(b)(1) exclusions, which are based on misdemeanor convictions relating to program or healthcare fraud.  Section 1001.501(b)(3) applies to exclusions based on a license revocation or suspension (section 1128(b)(4)).  Section 1001.501(b)(3)

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lists just one mitigating factor:  whether the individual’s cooperation with the state licensing authority resulted in the sanctioning of others, additional cases being investigated, or reports issued identifying program vulnerabilities.

In any event, mitigating factors may not eliminate an exclusion altogether, and apply only if aggravating factors have increased the period of exclusion.  Most important, any decrease “will not be for a period of time less than the period during which an individual’s . . . license is revoked . . . .”  42 C.F.R. § 1001.501(b)(1), (3).

Petitioner also argues that the nursing board abused its discretion, and that its decision was arbitrary, capricious, unreasonable, and not supported by substantial evidence.  The regulations preclude such a collateral attack on an underlying determination:

When the exclusion is based on the existence of a . . . determination by [a] 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); 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).

Petitioner also denies that her license was revoked for reasons bearing on her professional competence or performance.  In Petitioner’s view, apparently, so long as her license revocation did not involve criminal offenses or financial crimes, she should not be excluded.  She cites no support for her position, which is, in fact, unsupportable.  Where, as here, a health care professional repeatedly disregards the requirements of her probationary licenses, the revocation is, by definition, based on professional competence and performance.  Richard R. Jimenez, DAB No. 2986 (2020).  And the underlying reason for those probationary requirements – that she diverted controlled substances from her hospital employer for her own use – is directly related to her professional competence and performance.  As the nursing board concluded, revoking her license was appropriate “in order to safeguard the health of the public.”  IG Ex. 4 at 10.  See Christy Nichols Frugia, DAB No. 2736 (2016); Tracey Gates, R.N., DAB No. 1768 (2001).

Having concluded that Petitioner’s license was revoked for reasons bearing on her professional competence and performance, I have no discretion; I must follow the federal exclusion statute and regulations and sustain the exclusion.  42 C.F.R. § 1005.4(c)(5); Jimenez, DAB No. 2986 at 5-6; Frugia, DAB No. 2736 at 4-5; see Marvin L. Gibbs, Jr., M.D., DAB No. 2279 at 8-10 (2009).

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The statute requires that Petitioner Sovulewski’s period of exclusion “shall not be less than the period during which [her] license . . . is . . . surrendered.”  Act § 1128(c)(3)(E); see also 42 C.F.R. § 1001.501(b)(1).  Although the regulations give the IG some discretion to reinstate under other conditions (if she obtains a health care license in another state or has been excluded for three years), I have no authority to review the IG’s exercise of that discretion.

Conclusion

For the above reasons, I conclude that the IG properly excluded Petitioner Sovulewski from participating in Medicare, Medicaid, and all other federal health care programs for so long as her license to practice as a registered nurse is revoked.