SUBJECT:

John Francis Hildebrand,M.D.,

Petitioner,

The Inspector General

DECISION

I sustain the determination of the Inspector General (I.G.) to exclude Petitioner, John Francis Hildebrand, M.D., from participating in Medicare, Medicaid, and other federal health care programs for a period of 10 years. I find that the I.G. is authorized to exclude Petitioner pursuant to section 1128(a)(2) of the Social Security Act (Act), and that the 10-year exclusion imposed by the I.G. against Petitioner falls within a reasonable range.

I. Background

By letter dated July 31, 2002, the I.G. notified Petitioner that he was being excluded from participation in Medicare, Medicaid, and all federal health care programs (as defined in section 1128B(f) of the Act) for a period of 10 years. The I.G. advised Petitioner that he was being excluded pursuant to section 1128(a)(2) of the Act as a result of his conviction in the Superior Court of California, County of Sacramento, of a criminal offense related to neglect or abuse of patients in connection with the delivery of a health care item or service. The I.G. also noted that the Act mandates that Petitioner be excluded for a minimum period of five years, but he was excluded for 10 years because of two aggravating circumstances: 1) The action that resulted in Petitioner's conviction was premeditated, part of a continuing pattern of behavior, or consisted of non-consensual sexual acts, in that Petitioner had been found guilty of the crimes of Sexual Battery and Sexual Exploitation; and 2) Petitioner was the subject of an adverse action by a State board, in that his license to practice medicine was revoked effective September 20, 2001.

By letter dated August 16, 2002, Petitioner timely requested a hearing and the case was assigned to me. In his request Petitioner admitted that he was found guilty of the misdemeanor offenses of Sexual Battery and Sexual Exploitation. However, Petitioner denied that he committed the crimes for which he was convicted and stated that he had appealed his license revocation. Petitioner also argued that a 10-year exclusion would have a "catastrophic" impact on his ability to maintain a medical practice, assuming he regained his medical license, and inferred that the exclusion would have a negative impact on the elderly patients in his practice.

On October 2, 2002, I convened a prehearing conference by telephone. During the conference Petitioner admitted that the I.G. had a basis upon which to exclude him, in that he had been convicted of an offense within the meaning of section 1128(a)(2) of the Act. He asserted, as he did in his hearing request, that he did not commit the offenses for which he was convicted, and that he was appealing the license revocation. Based on Petitioner's admissions and the discussion during the conference, I found no facts were likely to be in dispute in the case. The parties agreed that the case could be heard based on an exchange of written briefs and exhibits in lieu of an in-person hearing. Accordingly, with the parties agreement, I set a briefing schedule.

The I.G. submitted a motion for summary disposition and brief, accompanied by 10 exhibits (I.G. exhibits (I.G. Exs.) 1 - 10). Petitioner submitted a response brief, unaccompanied by exhibits. The I.G. submitted a reply brief. In the absence of objection, I receive into evidence I.G. Exs. 1 - 10.

II. Issues

The issues in this case are:

1. Whether the I.G. had a basis to exclude Petitioner from participation in Medicare, Medicaid, and all federal health care programs; and,

2. Whether the length of the exclusion imposed by the I.G. is within a reasonable range of possible exclusions.

III. Applicable Law

Section 1128(a)(2) of the Act mandates exclusion from federal health care programs of an individual or entity convicted of "a criminal offense relating to neglect or abuse of patients in connection with the delivery of a health care item or service. Section 1128(i) of the Act defines the term "convicted" to include: (1) when a judgment of conviction has been entered against the individual or entity by a federal, State or local court, regardless of whether there is an appeal pending or whether the judgment of conviction or other record relating to criminal conduct has been expunged; (2) when there has been a finding of guilt against the individual or entity by a federal, State or local court; (3) when a plea of guilty or nolo contendere by the individual or entity has been accepted by a federal, State, or local court; or (4) when the individual or entity has entered into participation in a first offender, deferred adjudication, or other arrangement or program where judgment of conviction has been withheld. Act, section 1128(i)(1) - (4).

Section 1128(c)(3)(B) of the Act sets the minimum exclusion period at five years. The Secretary has given the I.G. the responsibility for excluding an individual convicted of patient abuse or neglect. 42 C.F.R. § 1001.101(b). The Secretary has also given the I.G. discretion to lengthen the period of exclusion if specific aggravating factors are present. 42 C.F.R. § 1001.102(b). Among those aggravating factors are: (1) in convictions involving patient abuse or neglect, the action that resulted in the conviction was premeditated, was part of a continuing pattern of behavior, or consisted on non-consensual sexual acts; and (2) whether the individual or entity was convicted of other offenses besides those which formed the basis for the exclusion, or has been the subject of any other adverse action by any federal, State or local government agency or board, if the adverse action is based on the same set of circumstances that serves as the basis for the imposition of the exclusion. 42 C.F.R. § 1001.102(b)(4) and (9).

If the presence of one or more aggravating factors justifies an exclusion longer than five years, specific mitigating factors contained in the regulations at 42 C.F.R. § 1001.102(c) may be considered as a basis for reducing an exclusion to no less than five years. This includes the mitigating factor at 42 C.F.R. 1001.102(c)(1), which states that it is a mitigating factor if an individual is convicted of an offense consisting of three or fewer misdemeanor offenses and the entire amount of the financial loss to Medicare or any other federal, State or local governmental health care program due to the acts resulting in the conviction, and similar acts, is less than $1,500. The aggravating and mitigating factors set forth in the regulations comprise the exclusive factors that may be considered in determining the length of an exclusion to be imposed pursuant to section 1128(a). Evidence which does not relate to these factors is not relevant to determining the length of an exclusion.

The regulations governing the length of exclusions do not prescribe the weight to be given to these factors. However, so long as the amount of time chosen for the exclusion imposed on a petitioner by the I.G. is within a reasonable range, based on demonstrated criteria, an administrative law judge has no authority to change the length of the exclusion. JoAnn Fletcher Cash, DAB No. 1725, at 18 - 19 (2000), citing 57 Fed. Reg. 3298, 3321 (1992); see Stacy Ann Battle, D.D. S., DAB No. 1843 (2002); see also Gary Alan Katz, R.Ph., DAB No. 1842 (2002).

IV. Findings of Fact and Conclusions of Law

I make findings of fact and conclusions of law to support my decision in this case. I set forth each finding below, in italics and bold, as a separate heading.

1. The I.G. had a basis upon which to exclude Petitioner from participation in Medicare, Medicaid, and all federal health care programs.

In this case Petitioner, a physician licensed as a general practitioner in the State of California (I.G. Ex. 10, at 2), has admitted that the I.G. had a basis upon which to exclude him under section 1128(a)(2) (see my Order and Schedule for Filing Briefs and Documentary Evidence dated October 3, 2002). Moreover, he stated specifically in his hearing request that he was "found guilty of the crime of Sexual Battery, a misdemeanor, which in my case involved breast touching" and "of Sexual Exploitation" and that the individual involved was a "patient . . . in for a sinus infection." Further, his brief in this case notes "I am painfully aware that I cannot contest the facts in this case, and so I must literally place myself at the mercy of the court, while citing what hopefully may be considered mitigating factors." P. Br. at 1.

My review of the evidence submitted by the I.G. confirms Petitioners's admission. The four elements necessary for the I.G. to impose an exclusion against an individual under section 1128(a)(2) exist in this case. Petitioner was: 1) convicted under State law; 2) of criminal offenses related to the abuse; 3) of a patient; 4) in connection with the delivery of a health care item or service. See Narendra M. Patel, M.D., DAB No. 1736, at 6 (2000). Specifically, Petitioner was found guilty following a jury trial in the Superior Court of California, County of Sacramento (a guilty verdict constituting a conviction under section 1128(i) of the Act) of four misdemeanor ⁽¹⁾ counts of: Sexual Battery (one count), Battery (two counts), and Sexual Exploitation (one count). I.G. Exs. 7, 8. These four counts involved Petitioner's: "willfully and unlawfully touch[ing] an intimate part, to wit, touch[ing] the breast of [K.L] ⁽²⁾ against the will and for the specific purpose of sexual arousal, sexual gratification and sexual abuse" (Count One); "willfully and unlawfully us[ing] force and violence upon the person of [K.L.], to wit, plac[ing] his groin against the victim's person" (Count Two); "willfully and unlawfully us[ing] force and violence upon the person of [K.L.], to wit, plac[ing] the victim's hand on the groin area of the defendant" (Count Three); and "said defendant, a medical doctor, did engage in sexual contact with [K.L.], to wit, touched and fondled the breast of [K.L.]" (Count Four). I.G. Ex. 8, at 1 - 2. Petitioner's conviction of these criminal offenses on their face constitute abuse and, specifically, the sexual abuse of a patient, which Petitioner has admitted occurred in connection with the delivery of a health care service to a patient he was seeing for a sinus infection. See Petitioner's hearing request.

2. The length of the exclusion imposed by the I.G. is within a reasonable range.

The purpose of an I.G. exclusion is to protect the federally-funded health care programs, as well as those served by the programs, from an individual who has demonstrated by his or her conduct that he or she is untrustworthy. The I.G. has been vested with the discretion to increase the minimum period of exclusion. The use of the I.G.'s discretion has been found to be reasonable where a longer period of exclusion is necessary to accomplish this statutory purpose. The aggravating and mitigating factors listed in the regulations are the only factors the I.G. and an administrative law judge can consider when evaluating an individual's potential future threat to the programs and those they serve, which is the central concern of the exclusion provisions. Narendra M. Patel, M.D., DAB No. 1736; Joann Fletcher Cash, DAB No. 1725.

I find that the I.G. has proved that two aggravating factors exist in this case. First, the I.G. asserted that the action resulting in Petitioner's conviction consisted of non-consensual sexual acts, an aggravating factor under 42 C.F.R. § 1001.102(b)(4). That this aggravating factor has been met is evident from the face of the complaint upon which Petitioner was convicted and the transcript of the jury verdict. I.G. Exs. 7, 8. Petitioner's misdemeanor convictions were for non-consensual sexual acts. Id. Specifically, Petitioner was convicted of the crime of Sexual Battery for touching the breast of [K.L.] for the "purpose of sexual arousal, sexual gratification and sexual abuse[,]" and of the crime of Sexual Exploitation for "engag[ing] in sexual contact with [K.L.] . . . [by] touch[ing] and fondl[ing] the breast of [K.L.]." Id. Second, the State licensing board revoked Petitioner's medical license based on the same circumstances that served as the basis for the imposition of this exclusion. 42 C.F.R. § 1001.102(b)(9). Specifically, Petitioner's license was revoked, following a State administrative law judge hearing, based on the same incident with Patient K.L. for which he was convicted. I.G. Exs. 2 - 5, 10.

To offset the lengthened exclusion, Petitioner asserts a mitigating factor under 42 C.F.R. § 1001.102(c)(1), pointing out that he was convicted of three or fewer misdemeanor offenses and that the amount of financial loss to Medicare or any other federal, State or local governmental health care program due to the acts resulting in his conviction was less than $1,500. P. Br. at 2. For this mitigating factor to be available to Petitioner, however, both prongs of the factor must be met, i.e., both the conviction of three or fewer misdemeanor offenses and the less than $1,500 threshold for financial loss. The I.G. appears to agree with Petitioner that this mitigating factor is available to him, but argues that it should be given little weight because it pertains to financial misconduct in combination with the absence of additional misdemeanors, whereas the two aggravating factors here pertain to sexual misconduct which is a direct violation of the doctor/patient relationship and a derogation of Petitioner's professional responsibility. Moreover, the I.G. argues that the aggravating factors are appropriate in a case of patient abuse and to evaluating whether Petitioner poses a threat to patients as opposed to this mitigating factor which does not relate to patient abuse. I.G. Reply Br. at 5 - 6.

I am not convinced that this mitigating factor applies here. Petitioner was convicted of four separate counts of a criminal complaint, counts two through four stating specifically that they were for a separate cause of action and a different offense, albeit of the same class of crime and offense as count one. I.G. Ex. 8, at 1 - 2. However, even if this mitigating factor would otherwise be available to Petitioner, I give it little or no weight because it addresses convictions for financial offenses against the program or its beneficiaries, and not sexual abuse cases such as this.

When I weigh the aggravating factors in this case, I find Petitioner's 10-year exclusion to be well within a reasonable range given the egregious nature of Petitioner's conduct under 42 C.F.R. § 1001.102(b)(4). An individual who seeks treatment from a physician places herself in a vulnerable position and must rely on the physician's judgment and good faith. Petitioner abrogated this bond of trust in his treatment of Patient K.L. I find it notable that the State administrative law judge who heard the case involving the revocation of Petitioner's medical license and observed his demeanor found that Petitioner "has acted as though his position as a physician places him above accountability for his actions" and that his "demeanor and attitude provide no assurance that the conduct will not be repeated" and that "psychiatric testimony [makes it apparent] that [Petitioner's] personality does not lend itself to acknowledgment of wrongdoing and acceptance of authority." I.G. Ex. 10, at 8 - 9.

I therefore do not find a 10-year exclusion unreasonable. As reflected by the two directly applicable aggravating circumstances, his conduct was egregious. The only potentially relevant mitigating factor is of questionable relevance here, inasmuch as his was not a financial crime. Moreover, even if I found that the mitigating factor applied to this situation, it would not override the impact of section 1001.102(b)(4).

3. Petitioner's other arguments are unavailing.

Petitioner argues that he is not really guilty of the criminal offenses for which he was convicted. Petitioner's hearing request; P. Br. at 1. This is not an appropriate forum for re-litigating Petitioner's criminal conviction. The regulations are explicit.

When an exclusion is based on the existence of a conviction, the basis for the underlying conviction is not reviewable, and the individual or entity may not collaterally attack the underlying determination, either on substantive or procedural grounds. Randall L. Snook, M.D., DAB CR761, at 6 (2001), citing 42 C.F.R. § 1001.2007(d).

Petitioner asserts that his exclusion is punitive because it is longer than the term of the revocation of his medical license. The purpose of an exclusion is remedial and protective, not punitive. Narendra M. Patel, M.D., DAB No. 1736, at 11. Moreover, no regulation or other authority requires that an exclusion under section 1128(a) be co-terminus with the loss of an individual's medical license. ⁽³⁾

Petitioner infers in his hearing request and in his brief that alternative sources of medical care are not readily available to his patients (". . . a large portion of my practice is dedicated to caring for older patients. Many of these patients, if not most, are friends." Petitioner's hearing request. ". . . a lot of my patients are older, and are Medicare recipients. I can assure you that once I have my license again, these patients will want to be under my care. They remind me of this every day." P. Br. at 2.). That Petitioner is beloved by many of his patients who are upset that they have lost his services is not an appropriate standard for mitigation under this section of the regulations. Even if this were something that I could consider in mitigation (see 42 C.F.R. § 1001.201(b)(3)(iv)) the issue of comparability of services is a question directed to the objective qualifications and type of services offered by alternative sources and the practical access to those services by program patients. Randall L. Snook, M.D., DAB CR761, at 10. Moreover, given the purpose of exclusion, the regulations do not allow me to consider the impact of the exclusion on Petitioner or his practice.

Finally, Petitioner asserts that he has no prior criminal or civil malpractice record and that he is in the process of appealing his license revocation. Petitioner's hearing request; P. Br. These are not mitigating factors under the regulations and I cannot consider them here.

V. Conclusion

For the reasons set forth above, I conclude that the I.G. was authorized to exclude Petitioner pursuant to section 1128(a)(2) of the Act. Further, I am unable to find that Petitioner's 10-year exclusion does not fall within a reasonable range of possible exclusions.

Carolyn Cozad Hughes
Administrative Law Judge

1. The Act does not differentiate between whether a conviction is for a misdemeanor or felony in terms of whether the conviction constitutes a criminal offense pursuant to section 1128(a). Thus, both misdemeanor and felony convictions have been found to constitute criminal offenses. See Act, sections 1128(a) and (i); Eleanor D'Angelo, L.P.N., DAB CR748 (2001); Lorna Fay Gardner, DAB No. 1733 (2000); Janet Wallace, L.P.N., DAB No. 1326 (1992).

2. I identify the patient by her initials to protect her privacy.

3. I note that section 1128(b)(4) and section 1128(c)(3)(E) of the Act require that if an individual loses a license (in the absence of a conviction that would require exclusion under section 1128(a)) that individual must be excluded for a period at least co-terminus with the revocation of the individual's license, although the I.G. retains the authority to exclude the individual for a lengthier period of time.