SUBJECT:

Arthur Ralph Mason, III, M.D.,

Petitioner,

DATE: December 09, 2003

The Inspector General

I sustain the determination of the Inspector General (I.G.) to exclude Petitioner, Arthur Ralph Mason, III, M.D., from participation in Medicare, Medicaid, and all federal health care programs, as defined in section 1128B(f) of the Social Security Act (Act), for a period of 20 years.

I. Background and undisputed material facts

A. Background

By letter dated September 30, 2002, the I.G. notified Petitioner that he was being excluded for a period of 20 years from participating in Medicare, Medicaid, and other federally funded health care programs. The I.G. advised Petitioner that she was authorized to exclude Petitioner because he had been convicted of a criminal offense within the meaning of section 1128(a)(2) of the Act, in that he had abused his patients in connection with the delivery of a health care item or service. Additionally, the I.G. told Petitioner that the length of the exclusion in his case was justified by the presence of certain aggravating factors and the nature of Petitioner's offense.

Petitioner requested a hearing and the case was assigned to me for a hearing and a decision. I held a prehearing conference on April 18, 2003, at which Petitioner participated without the benefit of legal counsel. I informed Petitioner of his right to have an attorney or other representative assist him in this matter. Petitioner indicated that he understood his rights and further indicated that he intended to represent himself in this action. Petitioner had not reviewed the applicable regulations before the prehearing conference. The prehearing conference was continued so that Petitioner could be provided with a copy of the regulations and given the opportunity to review and consider them in preparing to present his case. I conducted a second prehearing conference on May 15, 2003, to discuss with the parties the necessity of an in person hearing in this matter. During that discussion, both parties agreed that this case could be resolved on the basis of written submissions, and Petitioner specifically waived his right to an in person hearing during the prehearing conference. I then issued an order setting forth a briefing schedule.

The I.G. subsequently submitted a motion for summary affirmance and eight proposed exhibits (I.G. Ex. 1 - I.G. Ex. 8) in support of her argument. Petitioner filed a written response to the motion and submitted six proposed, but unmarked exhibits in support of his position. These exhibits included 19 pages of his personal medical records, which I have labeled P. Ex. 1, and five character references, which I have labeled P. Ex. 2 - P. Ex. 6. Petitioner also requested that he be given the opportunity to supplement these exhibits. Petitioner subsequently submitted an additional six proposed exhibits, consisting of a psychological assessment, five character references (duplicates of the references already submitted), and 12 more pages of medical records. I have labeled these exhibits as P. Ex. 7 - P. Ex. 8, not re-labeling and admitting the five references previously submitted. The I.G. then submitted a reply and an objection in which she argued that all the exhibits offered by Petitioner were irrelevant. As Petitioner did not object to the I.G.'s proposed exhibits, I receive into evidence I.G. Ex. 1 - I.G. Ex. 8. I overrule the I.G.'s objection and receive P. Ex. 1 - P. Ex. 8 into evidence.

B. Undisputed material facts

There are no disputed material facts in this case. The basis for the I.G.'s exclusion is a November 29, 2001 judgment of conviction in the Superior Court of the State of California for the County of Los Angeles against Petitioner on four counts of sexual assault on four separate female patients of Petitioner. I.G. Ex. 7. The judgment was entered pursuant to Petitioner's plea of nolo contendere to each of the four felony counts on October 26, 2001. I.G. Ex. 6. Petitioner was sentenced to serve three years in a California state prison.

II. Issues, findings of fact and conclusions of law

A. Issues

The scope of my review under section 1128(a)(2) is limited to two issues: (1) whether the I.G. has authority to exclude Petitioner on the ground that Petitioner was convicted of a criminal offense within the meaning of section 1128(a)(2) of the Act and, (2) whether the length of the exclusion is within a reasonable range. There are no issues of material fact in dispute in this case. In the April 18, 2001, prehearing conference, Petitioner admitted that he had been convicted and incarcerated, and expressed his position that an exclusion of five years was appropriate, but that an exclusion of 20 years was onerous. Thus, the only issue in dispute is whether the I.G.'s determination to exclude Petitioner for a period of 20 years is reasonable.

B. Findings of fact and conclusions of law

I make findings of fact and conclusions of law (Findings) to support my decision in this case. I set forth each Finding below as a separate heading. I discuss each finding in detail.

1. Petitioner was convicted of a criminal offense within the meaning of section 1128(a)(2) of the Act and, therefore, the I.G. has the authority to exclude Petitioner from Medicare, Medicaid, and all federal health programs for a minimum period of five years.

Section 1128(a) provides -

The Secretary shall exclude the following individuals and entities from participation in any Federal health care program)as defined in section 1128B(f)

(2) Conviction relating to patient abuse.-Any individual or entity that has been convicted, under Federal or State law, of a criminal offense relating to neglect or abuse of patients in connection with the delivery of a health care item or service.

The Act mandates that an exclusion imposed pursuant to section 1128(a)(2) be for a minimum period of five years. Act, section 1128(c)(3)(B).

Petitioner was convicted of sexually assaulting four individuals who came to him for medical treatment. I.G. Exs. 6, 7. Moreover, Petitioner has admitted in a prehearing conference his conviction and the nature of his offenses and agreed that an exclusion for five years would be reasonable.

2. The I.G. established the presence of aggravating factors which justify an exclusion of more than five years.

An exclusion may be for more than the five-year minimum period where circumstances warrant a lengthier exclusion. The Secretary has published regulations which govern the length of exclusions imposed pursuant to section 1128 of the Act. The regulation which governs exclusions that are imposed under section 1128(a)(3) is found at 42 C.F.R. § 1001.102. This regulation describes certain aggravating factors which, if present and not offset by mitigating factors, may justify an exclusion of more than five years. 42 C.F.R. § 1001.102(b); see 42 C.F.R. § 1001.102(c).

In this case, the I.G. proved the presence of four aggravating factors. They are as follows:

•The acts that resulted in Petitioner's conviction, or similar acts, occurred over a period of more than a year. 42 C.F.R. § 1001.102(b)(2). The Amended Felony Complaint stated that Petitioner first sexually assaulted an individual on October 20, 1998, and assaulted his fourth victim on July 2, 2001, a period of nearly three years since the first assault. I.G. Ex. 5.

•The actions resulting in convictions involved patient abuse, the actions were premeditated, part of a continuing behavior, or consisted of non-consensual sexual acts. 42 C.F.R. § 1001.102(b)(4). Petitioner was convicted of sexually assaulting four individuals over a period spanning nearly three years establishing a continuing pattern of behavior. I.G. Exs. 6, 7.

• The sentence imposed against Petitioner for his crime included incarceration. 42 C.F.R. § 1001.102(b)(5). Petitioner was sentenced to three years of imprisonment. I.G. Ex. 6.

• Petitioner was the subject of an adverse action by a Federal, state or local government agency or board based on the same set of circumstances that served as the basis for the imposition of his exclusion. 42 C.F.R. § 1001.102(b)(9). On January 9, 2002, the Medical Board of California required Petitioner to surrender his physician's and surgeon's certificate. I.G. Ex. 4.

Petitioner did not dispute the existence of any of these aggravating factors.

3. Petitioner failed to prove the presence of any mitigating factors which offsets the aggravating factors established by the I.G.

As I discuss above, at Finding 2, the presence of aggravating factors in a case might justify excluding an individual for more than the five-year minimum period. Conceivably, evidence relating to an aggravating factor or factors might be offset by evidence relating to any of the mitigating factors set forth at 42 C.F.R. § 1001.102(c). The only mitigating factor advanced by Petitioner as being applicable to this case is set forth at 42 C.F.R. § 1001.102(c)(2) -

The record in the criminal proceeding, including sentencing documents, demonstrates that the court determined that the individual had a mental, emotional or physical condition before or during the commission of the offense that reduced the individual's culpability.

Petitioner argues that this mitigating factor should be considered as he has been diagnosed as having Bipolar Disorder I, a severe form of manic-depression. Petitioner contends his actions were not pre-meditated and that he put himself under the care of a psychiatrist and counselor immediately following the first incident with one of his patients. Petitioner maintains that he was initially mis-diagnosed and given medication which exacerbated his mania. While admitting that during bouts of his mania he engaged in compulsive and high-risk behavior, Petitioner disputes the I.G.'s contention that he is untrustworthy, maintaining that with continued treatment he is fully capable of being a productive member of society. Petitioner maintains that he is currently undergoing intensive therapy and is being compliant with the appropriate medication. Petitioner asserts that he hopes that the California Board of Medical Examiners may eventually allow him to practice again with only male patients. In this vein, Petitioner proposes that suitable compromise here would be a general exclusion of five years from participation in any federal health care program, with a 20-year period of exclusion on the treatment of female patients.

While I may be sympathetic to Petitioner's efforts to deal with his mental disorder, I do not have the authority under the regulations to take into account the proffered evidence of Petitioner's mental condition as a mitigating factor. Section 1001.102(c)(2) explicitly provides that an individual's mental condition before or during the commission of his or her offense may be considered as a mitigating factor only if the records of the individual's criminal proceeding indicate that the court determined the existence of such a condition. There is no evidence before me, however, that Petitioner ever raised before the court that convicted and sentenced him the issue of his personal medical history or introduced his diagnosis of bipolar disorder. I.G. Exs. 6, 7. As such, I cannot now consider the psychiatric report and medical records proffered by Petitioner that were not considered in Petitioner's criminal proceeding and sentencing. Furthermore, I do not have the authority under the regulations to consider the compromise advanced by Petitioner that his exclusion be limited to only female patients.

4. The I.G.'s exclusion of Petition for a period of 20 years is not unreasonable.

Section 1128 of the Act is remedial. Its purpose is not to impose additional punishment on an excluded individual, but to protect federally funded health care programs and the beneficiaries and recipients of those programs from individuals and entities who have established themselves to be untrustworthy to provide care to those beneficiaries and recipients.

Section 1001.2007(a)(1)(ii) of 42 C.F.R. provides that the ALJ may determine whether the length of exclusion imposed is "unreasonable." In making such a determination, the ALJ is to conduct a "de novo" review as to the facts related to any aggravating and mitigating factors identified at 42 C.F.R. § 1001.102. Joann Fletcher Cash, DAB No. 1725 (2000), n.6, and cases cited therein. As the Departmental Appeals Board has noted, however, the preamble to the regulations governing exclusions states that "[s]o long as the amount of time chosen by the OIG is within a reasonable range, based on demonstrated criteria, the ALJ has no authority to change it under this rule." Id. at 17, quoting 57 Fed. Reg. 3298, 3321 (1992). A "reasonable range" is "a range of exclusion periods that is more limited than the full range authorized by the statute and that is tied to the circumstances of the individual case." Gary Alan Katz, R.Ph., DAB No. 1842, at 8, n.4 (2002). In determining the reasonable range, it is not the number of aggravating factors that is determinative; rather, it is the quality of the circumstances which is controlling in analyzing these factors. Keith Michael Everman, D.C., DAB No. 1880 (2003); Barry D. Garfinkel, M.D., DAB No. 1572 (1996).

Neither the Act nor implementing regulations direct that an exclusion of any particular length beyond the minimum five-year period must be imposed based on the presence of aggravating factors or the absence of mitigating factors. The aggravating and mitigating factors that are identified at 42 C.F.R. § 1001.102(b) and (c) function in a sense as rules of evidence which establish what evidence may be considered in deciding whether an exclusion is unreasonable, but which do not establish the weight that must be afforded to any evidence that is relevant to the issue. The presence of aggravating factors not offset by mitigating factors is not an automatic basis for deciding that an exclusion of any particular length is unreasonable. Nor is the number of aggravating factors that may be present in a case a particularly significant indicator whether an exclusion is unreasonable.

What is relevant to deciding whether an exclusion is unreasonable is evidence that relates to an aggravating or a mitigating factor. Ultimately, it is that evidence which establishes whether an exclusion is unreasonable and not the presence or absence of factors. See John D. Strom, D.C., DAB CR1056 (2003).

In this case the evidence that relates to aggravating factors establishes that Petitioner engaged in a series of sexual assaults against female patients who came to him for medical care. These incidents did not occur in a short period of time, but stretched over a period of nearly three years. Petitioner's acts assuredly calls into question his trustworthiness in dealing professionally with his patients.

I have considered all of the evidence submitted by Petitioner and the I.G. and I find that an exclusion of 20 years is not unreasonable in light of the evidence presented in this case.

III. Conclusion

For the reasons set forth above, I sustain the I.G.'s exclusion of Petitioner from participation in Medicare, Medicaid, and all other Federal health care programs for a period of 20 years pursuant to section 1128(a)(2) of the Act.

Alfonso J. Montano

Administrative Law Judge