James Bryan Grierson, M.D., DAB CR6386 (2023)

DECISION

Respondent, the Inspector General of the United States Department of Health and Human Services (the IG), excluded Petitioner, James Bryan Grierson, M.D., from participation in Medicare, Medicaid, and all other federal health care programs because the State of Washington suspended his medical license.  Petitioner sought review of the exclusion.  For the reasons stated below, I affirm the IG’s exclusion determination.

I.     Procedural History

By letter dated March 31, 2023, the IG notified Petitioner of his exclusion from participation in Medicare, Medicaid, and all federal health care programs under section 1128(b)(4) of the Social Security Act (Act), 42 U.S.C. § 1320a-7(b)(4), because his medical license was revoked, suspended, or otherwise lost or was surrendered while a formal disciplinary proceeding was pending for reasons bearing on his professional competence, professional performance, or financial integrity.  IG Ex. 1 at 1.¹  The IG advised Petitioner his exclusion would remain in effect until the IG reinstated him, which

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could occur if he regained his medical license, obtained a new license in any state, or his period of exclusion exceeded three years.  Id.

Petitioner timely requested a hearing before an administrative law judge (ALJ) in the Civil Remedies Division, resulting in my designation to hear and decide this case.  I held a pre-hearing telephone conference with the parties on June 15, 2023, the substance of which is set forth in an order issued that same day (Summary Order).  See 42 C.F.R. § 1005.6.  Among other things, I directed the parties to file pre-hearing briefs articulating their respective arguments as well as identifying witnesses and exhibits in support thereof.  Summary Order ¶ 7.

The IG filed a brief (IG Br.)² and three proposed exhibits (IG Exs. 1-3).  Petitioner filed a short-form brief (P. Br.) and seven proposed exhibits (P. Exs. 1-7).  The IG subsequently filed a reply brief (IG Reply).

II.    Admission of Exhibits and Decision on the Record

Neither party objected to the opposing party’s proposed exhibits.  Accordingly, I admit their proposed exhibits into the record.  42 C.F.R. § 1005.8(c); Civ. Remedies Div. P. § 14(e).

Neither party requested an in-person hearing.  IG Br. at 6; P. Br. at 3.  I therefore decide this case on the written record.  See Civ. Remedies Div. P. § 19(d).

III.    Issue

Whether the IG had a basis to exclude Petitioner from participating in Medicare, Medicaid, and all other federal health care programs under 42 U.S.C. § 1320a-7(b)(4).³  See 42 C.F.R. § 1001.2007(a)(1).

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IV.    Applicable Law

Section 1128(f) of the Act (42 U.S.C. § 1320a-7(f)) provides Petitioner with rights to an administrative hearing and judicial review of the final action of the Secretary of Health and Human Services (Secretary).  The right to a hearing before an ALJ is set forth at 42 C.F.R. §§ 1001.2007(a) and 1005.2, and the rights of both the sanctioned party and the IG to participate in a hearing are specified by 42 C.F.R. § 1005.3.

The Act permits the Secretary to exclude⁴ individuals or entities whose license to provide health care has been revoked or suspended:

(b) PERMISSIVE EXCLUSION.—The Secretary [of the Department of  Health and Human Services] may exclude the following individuals and entities from participation in any Federal health care program (as defined in section 1128B(f)) . . . .

(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.

Act § 1128(b)(4); see also 42 C.F.R. § 1001.501(a).

The length of an exclusion imposed under section 1001.501 may not be for a period shorter than the period during which the individual’s or entity’s license is revoked, suspended, or otherwise not in effect as a result of, or in connection with, a state licensing agency action.  42 C.F.R. § 1001.501(b).

The standard of proof I apply in this proceeding is a preponderance of the evidence.  42 C.F.R. § 1001.2007(c).  Petitioner bears the burden of proof and the burden of persuasion on any affirmative defenses or mitigating factors; the IG bears the burden on all other issues.  42 C.F.R. § 1005.15(c).

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V.    Findings of Fact, Conclusions of Law, and Analysis

My conclusions of law are set forth in bold and followed by pertinent findings of fact and analysis.

A.  Petitioner timely requested a hearing, and I have jurisdiction.

Petitioner timely requested a hearing.  I therefore have jurisdiction to hear and decide this case.  See 42 C.F.R. §§ 1001.2007(a)(1), 1005.2(a); see also 42 U.S.C. § 1320a-7(f)(1).

B.  There is a basis for Petitioner’s exclusion pursuant to section 1128(b)(4) of the Act.

The IG is authorized to exclude an individual from participation in Medicare, Medicaid, and all federal health care programs pursuant to section 1128(b)(4) of the Act and 42 C.F.R. § 1001.501(a) where:  (1) the individual’s license to provide health care was revoked or suspended by any state licensing authority, or the license was otherwise lost, including the right to apply for or renew such a license, for reasons bearing on the individual’s professional competence, professional performance or financial integrity; or (2) the individual surrendered such a license while a formal disciplinary proceeding concerning the individual’s professional competence, professional performance or financial integrity was pending before a state licensing authority.

As discussed below, I find the IG established a basis for Petitioner’s exclusion because a state licensing authority suspended his medical license for a reason bearing on his professional competence or professional performance.

1.  A state licensing authority suspended Petitioner’s license to provide health care.  

There is no dispute Petitioner’s license to provide health care was revoked, suspended, or otherwise lost because of action taken by a state licensing authority.  P. Br. at 1; IG Br. at 1-2.  The State of Washington’s Department of Health authorized Petitioner to practice as a physician and surgeon in March 2004.  IG Ex. 2 at 3.  On June 10, 2022, upon referral by the Washington Medical Commission (Commission), the Secretary of Health for the State of Washington⁵ issued a Statement of Charges accusing Petitioner of unprofessional conduct in the practice of medicine.  IG Ex. 3 at 1-2.

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Petitioner subsequently stipulated to engaging in a sexually intimate relationship with a patient (Patient A) shortly after beginning a treatment relationship with her.  IG Ex. 2 at 3.  Petitioner admitted to engaging in a sexual relationship with Patient A on at least four occasions between May 2021 and August 2021, after he began treating her in or around December 2020.  Id.  He acknowledged one of those occasions took place in his exam room after a scheduled appointment with Patient A.  Id.

Relying on these stipulations, the Secretary of Health concluded Petitioner engaged in unprofessional conduct and suspended Petitioner’s license to practice medicine in Washington state for no less than three years, effective September 15, 2022.  Id. at 4, 5, 8.

2.  The Secretary of Health suspended Petitioner’s license for reasons bearing on his professional competence or professional performance.

The IG contends its permissive exclusion action is lawful because the Secretary of Health suspended Petitioner’s license for reasons bearing on his professional competence or performance, namely engaging in sexual contact with a patient.  IG Br. at 4.  Petitioner concedes his license was suspended for reasons bearing on his professional competence or performance.  P. Br. at 2.  He has little basis to argue otherwise.  Washington state law explicitly defines “Unprofessional conduct” to include “sexual contact with a client or patient.”  Wash. Rev. Code § 18.130.180(23); see also Wash. Admin. Code § 246-919-630(2) (defining sexual intercourse with a current patient as “sexual misconduct”).  Petitioner admitted to engaging in a sexually intimate relationship with Patient A after beginning a treatment relationship with her in December 2020.  IG Ex. 2 at 3.  That sexual relationship persisted through August 2021 and on at least one occasion took place in his exam room.  Id.

There is little doubt this conduct, for which Washington state suspended Petitioner’s medical license, bears on his professional competence or performance.  The medical community’s widely applied prohibition against pursuing or engaging in sexual encounters with patients clearly stems from the concern that such intimacy would seriously impede a physician’s ability to competently and professionally treat that patient.  Amer. Med. Assn., Code of Med. Ethics, Op. 9.1.1, Romantic or Sexual Relationships with Patients, available at https://code-medical-ethics.ama-assn.org/ethics-opinions/romantic-or-sexual-relationships-patients (last visited Oct. 30, 2023) (“Romantic or sexual interactions between physicians and patients that occur concurrently with the patient-physician relationship are unethical.  Such interactions detract from the goals of the patient-physician relationship and may exploit the vulnerability of the patient, compromise the physician’s ability to make objective judgments about the patient’s health care, and ultimately be detrimental to the patient’s well-being.”).

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Petitioner engaged in a sexual relationship with a patient that violated professional standards imposed by the State of Washington’s Secretary of Health and resulted in the suspension of his medical license.  His misconduct plainly bore on his professional competence and performance.  The record before me establishes the Secretary of Health suspended Petitioner’s medical license for reasons bearing on his professional competence or professional performance.

3.  The regulations do not permit me to override the IG’s exercise of her permissive exclusion authority.

Petitioner acknowledges section 1128(b)(4) of the Act permitted the IG to exclude him because of the suspension of his medical license for unprofessional conduct.  P. Br. at 1-2.  He nevertheless appears to assert the IG should not have excluded him, pointing out cases cited by the IG are distinguishable from his own because they reflected a pattern of professional misconduct by the excluded physicians.  P. Br. at 4-5, citing Steven C. Wein, D.O., DAB No. 2473 at 5-6 (2012); Jim Earl Lewis, D.O., DAB CR616 at 5-6 (1999); Jordan Sterns, M.D., DAB CR669 (2000).  Petitioner also argues the IG did not take mitigating circumstances into account, including his 20-year history of competent performance as a physician, the deterioration of his mental health during the COVID-19 pandemic, and his significant efforts at remediation following his license suspension.  P. Br. at 5-6.

I fully credit Petitioner’s acknowledgment of wrongdoing and his good-faith efforts to restore his professional integrity, including taking several courses and completing 58 counseling sessions during his suspension.  Id. at 6.  I also acknowledge his long medical career and his desire to continue using his skills to help others.  Id. at 6-7.  I am not persuaded his conduct cannot be described as a pattern or that the establishment of a pattern is even necessary to permit the IG to exclude him.  Nor do I believe the stressors of the COVID-19 pandemic adequately explain his willingness to violate a core tenet of the doctor-patient relationship.

But whatever my assessment of Petitioner’s claims, it cannot change the outcome here.  The regulations explicitly preclude me from reviewing the IG’s exercise of discretion to permissively exclude an individual.  42 C.F.R. § 1005.4(c)(5); see also Christy Nichols Frugia, DAB No. 2736 at 4 (2016) (“where the statutory requirements for a permissive exclusion are met, the ALJ, and thus the Board, may not look behind the I.G.’s decision to impose an exclusion”).  As I have explained, the IG has established the elements required by the Act necessary to exercise her permissive exclusion authority.  I cannot look behind her decision to do so.

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VI.    Conclusion

For the foregoing reasons, I affirm the IG’s determination to exclude Petitioner from participation in Medicare, Medicaid, and all federal health care programs pursuant to section 1128(b)(4) of the Act (42 U.S.C. § 1320a-7(b)(4)).

Endnotes

¹  Document 7_b in the official case file maintained in the Departmental Appeals Board (DAB) E-file system; for clarity and simplicity, whenever possible I will cite to the exhibits attached to the parties’ respective briefs by the exhibit numbers therein, not the document numbers assigned by the E-file system.

²  The IG did not paginate her brief, failing to comply with Section 7(c)(i) of my Summary Order.  Owing to its short length I have not required the IG to re-file it.  However, IG counsel should in future instances familiarize herself with the filing requirements plainly set forth in my orders.

³    Because the period of exclusion is premised on a contingent condition – license revocation or suspension – the IG cannot select a period shorter than that in which the contingent condition exists.  See 42 C.F.R. § 1001.501(b)(1) (an individual excluded on the basis of license revocation or suspension shall not be excluded for a period less than the period during which the individual’s license to provide health care is revoked, suspended, or otherwise not in effect).  The IG did not apply aggravating factors to increase Petitioner’s period of exclusion beyond this minimum period.  42 C.F.R. § 1001.501(b)(2).  Therefore, the exclusion period is per se reasonable and not at issue.

⁴  The Secretary has delegated this exclusion authority to the IG.  48 Fed. Reg. 21,662 (May 13, 1983).

⁵  Under the general authority of the Secretary of Health to grant or deny licenses, Washington state law authorizes the Commission to establish, monitor, and enforce qualifications governing the practice of medicine.  Wash. Rev. Code § 18.71.002, 18.130.040.  The Secretary of Health otherwise retains sole disciplinary authority over license holders alleged to have committed acts of unprofessional conduct involving sexual misconduct.  Id. at 18.130.062.  The Secretary of Health is therefore a state licensing authority within the meaning of the Act.