Gregory Brent Dennis, Ph.D., DAB CR5221 (2018)

DECISION

Petitioner, Gregory Brent Dennis, Ph.D., was a psychologist, licensed to practice in the State of Nevada.  He abused cocaine and hydrocodone – obtaining these controlled substances from a known drug dealer and from his patients – and practiced psychology while under their influence.  He then lied about his substance abuse on his license renewal application.  The State of Nevada Board of Psychological Examiners determined that he could not safely practice psychology, and Petitioner agreed to suspend his license for six months.  Thereafter, pursuant to section 1128(b)(4) of the Social Security Act (Act), the Inspector General (IG) excluded him from participating in Medicare, Medicaid, and all federal health care programs at least until he regained his license.  Petitioner appeals the IG exclusion.

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

Background

In a letter dated April 30, 2018, the IG advised Petitioner Dennis that, because his license to provide health care as a psychologist was revoked, suspended, or surrendered while a formal disciplinary proceeding was pending before the Nevada Board of Psychological Examiners “for reasons bearing on [his] professional competence, professional

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performance or financial integrity,” the IG was excluding him from participating in Medicare, Medicaid, and all federal health care programs.  He would not be eligible for reinstatement until he regained his 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 his brief, Petitioner submitted nine exhibits (P. Exs. 1-9).  The IG also submitted a reply brief.

Petitioner objects to my admitting three of the IG’s exhibits:  IG Exs. 2, 3, and 6, arguing that they are irrelevant.  IG Ex. 3 is the licensing board’s summary suspension of Petitioner’s license.  It describes Petitioner’s February 2, 2017 arrest, his substance abuse, and his exploitative relationships with clients.  The document concludes that allowing Petitioner to continue to practice as a psychologist “would be a danger to the public health, safety, and welfare of the citizens of Nevada” and summarily suspends his license, effective February 7, 2017.  IG Ex. 2 is the complaint and notice of hearing, dated February 28, 2017, which the licensing board subsequently issued.  As discussed below, these documents are critical to establishing that a formal disciplinary hearing was pending, and they describe the reasons the licensing board brought the proceeding, which are critical requirements for excluding an individual who has surrendered his medical license.  They are therefore relevant and must be admitted.

Petitioner also objects to my admitting IG Ex. 6, a page from the licensing board’s website indicating that Petitioner’s license was summarily suspended on February 7, 2017, and reactivated under supervision, effective May 24, 2018.  This is further evidence that Petitioner’s license was suspended and is therefore relevant.

I admit IG Exs. 1-6 and P. Exs. 1-9.

The parties agree that an in-person hearing is not necessary.  IG Br. at 4; P. Br. at 8-9.  I therefore close the record and issue this decision based on the parties’ written submissions.

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Discussion

Because Petitioner Dennis surrendered his license to practice as a psychologist while a formal disciplinary proceeding was pending, and the Nevada Board of Psychological Examiners brought the proceeding for reasons bearing on Petitioner’s professional competence or performance, the IG appropriately excluded Petitioner 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 who, while a formal disciplinary proceeding was pending before a state licensing authority, surrendered his license to provide health care, and the proceeding concerned his professional competence, professional performance, or financial integrity.  Act § 1128(b)(4)(B); accord 42 C.F.R. § 1001.501(a)(2).

Here, the Nevada State Board of Psychological Examiners was investigating complaints leveled against Petitioner Dennis, a licensed psychologist, when it learned that he had been arrested on serious drug charges.  After reviewing credible allegations that he practiced psychology while under the influence of controlled substances and that he obtained controlled substances from a known drug dealer and from his patients, the licensing board determined that allowing him to continue practicing as a psychologist “would be a danger to the public health, safety, and welfare of the citizens of Nevada” and that suspending his license required emergency action.  IG Ex. 3 at 2.  Thereupon, the Board suspended his license.  IG Ex. 3 at 3.

On February 28, 2017, the licensing board issued its complaint and notice of hearing.  The complaint offered more details regarding Petitioner’s substance abuse, citing his admissions, made under oath, that he abused cocaine and hydrocodone and that he purchased drugs from a convicted drug dealer.  IG Ex. 2 at 2, 3 (Complaint ¶¶ 8, 13).  The complaint also alleges that, on several occasions, Petitioner Dennis provided professional psychological services to patients while under the influence of controlled substances, and concluded that he was not able to practice safely “due to his substance abuse issues and exploitive dual relationships with patients.”  IG Ex. 2 at 3-4, 5 (Complaint ¶¶ 21, 33).  Finally, the complaint charged that Petitioner:

• provided a fraudulent or untrue statement to the licensing board on his November 10, 2014 license renewal application;

• engaged in gross malpractice;

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• is professionally incompetent to practice psychology safely and skillfully due to his dependence on a controlled substance;
• performed or attempted to perform a professional service while impaired by drugs;

• began and/or continued a professional relationship with a patient or client while impaired by controlled substances; and

• engaged in exploitative relationships with his patients by purchasing and/or obtaining controlled substances from them.

IG Ex. 2 at 5-6.  Thus, the licensing board commenced against Petitioner a formal disciplinary proceeding that concerned his professional competence and professional performance.

Thereafter, Petitioner agreed to a six-month suspension of his license, beginning May 5, 2017 and ending November 5, 2017.  According to his agreement with the licensing board, his license would be reinstated at the conclusion of the suspension subject to certain conditions and subject to recommendations made by the Nevada Professional Assistance Program.  IG Ex. 4 at 12 (¶ 2); P. Ex. 2 at 7 (¶ 2).  Among the conditions, Petitioner agreed to submit to an administrative forensic evaluation; to follow the recommendations resulting from the evaluation and to enroll in up to seven years of monitoring by the assistance program (if recommended); to authorize the assistance program to report his progress to the licensing board; and to pay the costs of the evaluation.  IG Ex. 4 at 12-13 (¶¶ 3, 4, 5, 7).

Thus, Petitioner plainly surrendered his license while disciplinary proceedings were pending against him, and the IG is authorized to exclude him from program participation under section 1128(b)(4).

Petitioner, however, argues that, pursuant to his agreement with the licensing board, his license suspension ended on November 5, 2017, well before the time that the IG imposed his exclusion (effective May 20, 2018).  Petitioner does not say that his license was reinstated, and he offers no evidence that he was licensed at the time the IG imposed his exclusion, which he was not.  IG Ex. 6.  Instead, he repeats (at least four times), with great emphasis, the phrase “ending on November 5, 2017.”  P. Br. at 3, 4, 8.  He acknowledges (as he must) that his agreement imposed conditions for reinstatement but argues that they were imposed “after the suspension period.”  P. Br. at 4 (emphasis in original).  Thus, Petitioner’s license was lost for reasons bearing on his professional competence and performance; its return was contingent on his fulfilling certain conditions; and as of the time of his exclusion, his license had not been returned.  But,

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according to Petitioner, it does not follow that, post-November 5, his license continued to be suspended.  I find no merit in Petitioner’s position.

As a threshold matter, I see nothing in the statute or regulations that would preclude the IG from excluding an individual under section 1128(b)(4) even after he has regained his license, so long as regulatory criteria for exclusion are met.  The statute and regulation require only that the license loss occurred (“has been revoked or suspended,” “otherwise lost,” or “surrendered”).  They do not require that the license loss be in effect at the time of the exclusion.  Indeed, the regulations anticipate that individuals who regain their licenses may nevertheless be excluded from program participation.  Act § 1128(c)(3)(E); 42 C.F.R. § 1001.501(a).  If one of several listed aggravating factors is present, the IG may extend the period of exclusion, even though the individual’s license has been reinstated.  42 C.F.R. § 1001.501(b).  For example, where (as here) the acts that resulted in the loss of the license had, or could have had, an adverse physical, emotional, or financial impact on program beneficiaries or others, the IG may lengthen the period of exclusion beyond the period of the license suspension.

But I need not reach that issue.  Petitioner’s argument that, as of November 5, his license was no longer suspended, even though it hadn’t been reinstated, is inconsistent with the terms of his suspension agreement (not to mention common sense).  Under the terms of the agreement, his license was suspended until November 5, but would not be reinstated unless and until certain conditions were met.  Apparently those conditions were not met, and Petitioner’s license was not reinstated until months later.  If a suspended license is not reinstated, it is still suspended.  In fact, according to the regulation governing reinstatement following an exclusion, the license need not be “suspended” (as Petitioner defines the term) in order to prevent an individual’s reinstatement.  So long as a license is “not in effect as a result of, or in connection with a State licensing agency action,” the individual is subject to exclusion.  See 42 C.F.R. § 1001.501(a)(1) (emphasis added).

Conclusion

Because he surrendered his license to practice while a formal disciplinary proceeding was pending before the state licensing board, and that proceeding concerned his professional competence and performance, the IG is authorized to exclude Petitioner Dennis from participating in Medicare, Medicaid, and other federal health care programs.  I therefore sustain the exclusion.

• 1. I make this one finding of fact/conclusion of law.