Marc Charles Hancock, DAB CR6697 (2025)

DECISION

I affirm the exclusion of Petitioner, Marc Charles Hancock, from participation in all federal health programs. 

I. Background

In a December 31, 2024 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] licenses to provide health care as an advanced practice registered nurse, an advanced practice registered nurse (controlled substances), and a registered nurse in the State of Utah were revoked, suspended, or otherwise lost or were 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 states that the exclusion remains in effect until the IG reinstates Petitioner, which can only occur if Petitioner regains at least one of his Utah nursing licenses, 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 February 6, 2025, Petitioner requested a hearing to dispute the exclusion.  On February 10, 2025, the Civil Remedies Division acknowledged receipt of the hearing request, gave notice I would hold a prehearing conference, and issued my Standing Order.  On March 4, 2025, I held a telephonic prehearing conference with the parties, the substance of which is summarized in my March 4, 2025 Order Following Prehearing Conference and Setting Schedule for Prehearing Submissions (March 4 Order).  The parties agreed to the prehearing exchange schedule that I set. 

On April 3, 2025, the IG submitted a prehearing exchange consisting of a brief (IG Br.) and four proposed exhibits (IG Exs. 1-4).  Petitioner did not file an exchange. 

II. Admission of Exhibits

I admit IG Exhibits 1 through 4 into the record, without objection.  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 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). 

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In the present case, all deadlines for submitting prehearing exchanges have passed and neither party filed written direct testimony.  The IG affirmatively stated that witness testimony and an in-person hearing are not necessary.  IG Br. at 5-6.  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); Vandalia Park, DAB No. 1940 (2004).  Petitioner’s failure to file a prehearing exchange does not preclude me from issuing a decision based on the written record.  Anil Hanuman, D.O., DAB No. 3080 at 12 (2022). 

IV. Issue

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. On October 18, 2001, Petitioner was licensed to practice as a registered nurse (RN) in Utah.  IG Ex. 4 at 2.
2. On March 11, 2008, Petitioner was licensed to practice as an advanced practice RN (APRN) in Utah.  Petitioner was also authorized to administer and prescribe controlled substances.  IG Ex. 4 at 2.
3. On October 15, 2013, Petitioner’s RN and APRN licenses, including the authority to administer and prescribe controlled substances, were revoked.  IG Ex. 2 at 2.
4. On October 31, 2016, the revocation of Petitioner’s APRN license and the authority to administer and prescribe controlled substances was stayed, and Petitioner was placed on five years of probation.  IG Ex. 2 at 2.
5. On April 12, 2017, the revocation of Petitioner’s RN license was stayed, and Petitioner was placed on five years of probation.  IG Ex. 2  at 3.
6. On September 17, 2018, Petitioner’s RN and APRN licenses, including the authority to administer and prescribe controlled substances, were revoked for unprofessional conduct and a failure to comply with the terms and conditions of

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his probation.  In particular, Petitioner failed to provide samples for drug and alcohol analysis on at least 15 occasions.  IG Ex. 2 at 3.

7. In Orders issued on January 10, 2024, and February 7, 2024, the Division of Professional Licensing (DPL) for the Utah Department of Commerce approved written stipulations agreed upon between DPL and Petitioner to provide Petitioner with new RN and APRN licenses.  IG Exs. 2-3.  Petitioner’s authorization to administer and prescribe controlled substances would remain suspended and Petitioner’s RN and APRN licenses were subject to five years of probation during which time Petitioner had to comply with numerous requirements.  IG Ex. 2 at 3-14; IG Ex. 3 at 4-14.  One requirement was abstaining from the use and possession of alcohol and controlled substances (unless the controlled substances were lawfully prescribed).  IG Ex. 2 at 8; IG Ex. 3 at 8.  Petitioner agreed that DPL could impose an appropriate sanction, including a license revocation or suspension, if Petitioner violated any of the terms or conditions of the stipulation.  IG Ex. 2 at 15; IG Ex. 3 at 16.
8. In a June 25, 2024 Order, DPL approved a written stipulation agreed upon between DPL and Petitioner for the surrender of Petitioner’s licenses.  IG Ex. 4.
   1. The stipulation has a formal case caption and characterizes the action against Petitioner as a “disciplinary action.”  IG Ex. 4 at 1, 2, 3, 5.
   2. The stipulation states that Petitioner violated the terms of his probation by consuming alcohol and that, rather than pay a fine, Petitioner requested to surrender his licenses.  IG Ex. 4 at 3.
   3. The stipulation states that Petitioner admitted that his conduct, i.e., consuming alcohol in violation of the terms and conditions of his probation, is “unprofessional conduct” as that term is defined in Utah law.  IG Ex. 4 at 3.
   4. The stipulation states that Petitioner surrendered his RN and APRN licenses and his authorization to administer and prescribe controlled substances.  IG Ex. 4 at 3.
   5. The stipulation provides that Petitioner cannot reapply for licensure in Utah until three years have elapsed and Petitioner can demonstrate he has not used alcohol or drugs (unless he has a valid prescription) for a period of at least a year.  IG Ex. 4 at 3. 

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VII. Conclusions of Law and Discussion

A. 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

* * * *

(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) (emphasis added); see also 42 C.F.R. § 1001.501. 

As stated in Findings of Fact No. 8, Petitioner surrendered his licenses, while a disciplinary action was pending, based on “unprofessional conduct” under Utah law.  Therefore, the record supports the elements for a permissive exclusion under 42 U.S.C. § 1320a-7(b)(4). 

Petitioner asserted that his license was not surrendered during an investigation, but simply involved a fine that DPL wanted to impose on Petitioner for consuming alcohol while on vacation.  Hearing Req. at 1.  Petitioner’s view is that he simply “opted to permanently leave the nursing profession, leading to the voluntary surrender of [Petitioner’s] license.”  Hearing Req. at 1; see also March 4 Order at 2.  

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The record supports Petitioner’s position that DPL wanted to impose a fine on Petitioner and that Petitioner requested to surrender his licenses.  IG Ex. 4 at 3.  However, as summarized in Findings of Fact No. 8, Petitioner signed a stipulation that shows he agreed that the action taken against him was a disciplinary action and that his conduct was unprofessional conduct.  The stipulation and the order approving the stipulation have the appearance of a formal proceeding, with a case caption on the first page.  The fact that DPL was planning on imposing a fine on Petitioner shows that a formal disciplinary process had been underway when Petitioner surrendered his license.  In addition, Petitioner’s conduct was unprofessional conduct because Petitioner violated the terms of probation that DPL had ordered.  See Utah Code § 58-1-501(2)(a)(xv) (defining “Unprofessional conduct” as “violating the terms of an order governing a license.”). 

Without evidence from Petitioner contradicting the stipulation, I must uphold the exclusion.  Therefore, I conclude that the IG had a legitimate basis to exclude Petitioner from participation in all federal health care programs. 

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

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 . . . .”  Because Petitioner has not asserted that any of his licenses have been reinstated, I conclude that an indefinite period of exclusion is warranted under 42 U.S.C. § 1320a-7(c)(3)(E). 

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).