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# Elena M. Murray, DAB CR5163 (2018)

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## Department of Health and Human Services     DEPARTMENTAL APPEALS BOARD          Civil Remedies Division        

## Elena M. Murray,	(OI File No. H-18-40028-9),	Petitioner,

## v.

## The Inspector General.

### Docket No. C-18-794Decision No. CR5163August 14, 2018

### DECISION

Petitioner, Elena M. Murray, was a registered nurse, licensed to practice in the Commonwealth of Massachusetts.  Because she did not comply with her agreement to abstain from using alcohol and all other substances with the potential for abuse, and because she did not submit to drug and alcohol testing as required, the Massachusetts Board of Registration in Nursing suspended, for a minimum of three years, her license to practice nursing.  Thereafter, pursuant to section 1128(b)(4) 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 she regains her license.  Petitioner appeals the IG exclusion.

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

### Background

In a letter dated March 30, 2018, the IG advised Petitioner Murray that, because her license to practice health care as a registered nurse was suspended “for reasons bearing on [her] professional competence, professional performance or financial integrity,” the IG

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was excluding her from participating in Medicare, Medicaid, and all federal health care programs.  She would not be eligible for reinstatement until she regained her license.  The letter explained that section 1128(b)(4) of the Act authorizes the exclusion.  IG Ex. 1.

Petitioner timely requested review.

The parties have submitted written arguments (IG Br.; P. Br.).  With his brief, the IG submitted six exhibits (IG Exs. 1-6).  With her brief, Petitioner submitted five exhibits (P. Exs. 1-5).  The IG also submitted a reply brief.  In the absence of any objections, I admit into evidence IG Exs. 1-6 and P. Exs. 1-5.

The parties agree that an in-person hearing is not necessary.  IG Br. at 7; P. Br. at 3.  I therefore close the record and issue this decision based on the parties’ written submissions.

### Discussion

***Because the Massachusetts Board of Registration in Nursing suspended Petitioner Murray’s nursing license for reasons bearing on her professional competence or performance, the IG appropriately excluded her from participating in Medicare, Medicaid, and other federal health care programs.***1

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).

Here, on November 17, 2016, Petitioner Murray admitted that she had a substance abuse problem that impaired her ability to practice nursing in a safe and competent manner, and that she had practiced nursing while impaired.  To keep her nursing license, she agreed to participate in the state’s Substance Abuse Rehabilitation Program.  IG Ex. 3 at 1.  Among other requirements, she was to abstain from using alcohol and all substances of abuse or with the potential for abuse; to submit to random, supervised urine tests for substance abuse (which had to be negative); and to report any instance of relapse.  IG Ex. 3 at 2-3.

Petitioner violated the agreement.  She submitted multiple positive urine samples, failed to submit samples as required, and failed to provide a relapse assessment.  IG Ex. 4.  Based on her noncompliance, the nursing board suspended her license for a minimum of three years, effective November 13, 2017.  IG Ex. 5.

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Thus, for reasons bearing on her professional competence or professional performance, the Massachusetts Board of Registration in Nursing suspended Petitioner Murray’s license to practice as a registered nurse.

Petitioner, however, complains that her 2016 agreement with the nursing board was onerous and that its requirements were out-of-proportion to her misconduct, which she attributes to a youthful indiscretion.  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 points out that she harmed no one, was not charged criminally, and was otherwise an excellent nurse.  She submits letters attesting to her good character and showing at least partial compliance with her substance abuse program.  P. Ex. 3.  But these arguments do not alter the undisputed facts underlying her license suspension.  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).

The statute and regulations also require that Petitioner’s period of exclusion “shall not be less than the period during which her license is .  .  .  suspended . . . .”  Act § 1128(c)(3)(E); 42 C.F.R. § 1001.501(b)(1).

### Conclusion

Because her nursing license was suspended for reasons bearing on her professional competence and professional performance, the IG is authorized to exclude Petitioner Murray from participating in Medicare, Medicaid, and other federal health care programs.  I therefore sustain the exclusion.

Carolyn Cozad HughesAdministrative Law Judge

                                              1. I make this one finding of fact/conclusion of law. 
                            - back to note 1