Dillard P. Enright, CR No. 138 (1991)

Department of Health and Human Services

DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

In the Case of:
Dillard P. Enright,

Petitioner,
- v. -
The Inspector General.

DATE: June 19, 1991

Docket No. C-320

DECISION

By letter dated September 10, 1990, the Inspector General (I.G.) notified Petitioner that he was being
excluded from participation in the Medicare and State health care programs until he obtained a valid
license to provide health care in the State of South Dakota. Petitioner was advised that his exclusion
resulted from his surrender of his license to provide health care while a formal disciplinary proceeding was
pending before the South Dakota Board of Nursing. Petitioner was further advised that his exclusion was
authorized by section 1128(b)(4)(B) of the Social Security Act (Act).

By letter of October 23, 1990, Petitioner requested a hearing, and the case was initially assigned to
Administrative Law Judge (ALJ) Steven T. Kessel for hearing and decision. Judge Kessel held a
prehearing conference in this case on January 4, 1991, at which time he set a hearing date for the case of
March 12, 1991. On March 1, 1991, this case was reassigned to me for hearing and decision.

On March 12, 1991, I conducted an evidentiary hearing in Rapid City, South Dakota. Based on the
evidence introduced by both parties at the hearing, and on the applicable law, I conclude that the I.G. had
authority to exclude Petitioner and that the exclusion imposed and directed against Petitioner by the I.G. is
reasonable under the circumstances of this case.


ISSUES

The issues in this case are:

1. whether Petitioner's license to provide healthcare was surrendered while a
formaldisciplinaryproceeding was pending before aState licensingagency and the proceedingconcerned his
professionalcompetence, professional performance, orfinancial
integrity;

2. whether the indefinite exclusion imposed anddirected by the I.G. against Petitioner is
reasonable and appropriate.


FINDINGS OF FACT AND CONCLUSIONS OF LAW

1. At all relevant times until October 11, 1989, Petitioner was a licensed (by South Dakota) practical
nurse (L.P.N.) employed by the Sturgis Community Health Care Center (Sturgis). P. Br. 2, I.G. Ex. 11.

2. Petitioner is now, and was at all relevant times, a certified laboratory technician. Petitioner's
certification is through the "Credentialing Commission," which is not a State agency, but an independent,
autonomous, credentialing agency. The State of South
Dakota does not license laboratory technicians. P. Ex. C; P. Br. 7.

3. On August 16, 1989, Petitioner was terminated by Sturgis for unprofessional conduct, as a result
of two incidents of inappropriately touching male patients in the genital area. P. Br. 2; I.G. Ex. 5, 6, 7.

4. On May 31, 1989, Michael Penticoff (Penticoff), Sturgis' Administrator, received a letter from an
attorney indicating that her client had been sexually molested in the early morning hours of March 25 and
26, 1989, while a patient at Sturgis. The attorney alleged that her client had been receiving counseling and
had been "somewhat affected" by the incident. I.G. Ex. 5, 6; Tr. 19 - 20.

5. Petitioner and Sturgis' Director of Nursing, Sinnet Gorman Bestgen (Bestgen), met with Petitioner
on June 5, 1989, to discuss this letter. Petitioner denied the accusations at this meeting, and at a later
meeting on June 21, 1989, attended by Penticoff, Bestgen, and an adjustor from Sturgis' insurance carrier.
At this time, Penticoff, after contacting Sturgis' attorney, elected to do nothing about the complaint, as he
had doubts about the allegations in the letter. I.G. Ex. 5; Tr. 20 - 21.

6. On August 12, 1989, Penticoff was called by a physician whose patient had just been discharged
from Sturgis. This second patient claimed that he had awakened while he was a patient at Sturgis and a
male nurse was standing next to his bed. The male nurse had his hand in the patient's genital area. I.G. Ex.
5; Tr. 21 - 22.

7. Bestgen first became aware of the second incident when a nurse working with the patient told her
the patient had made allegations concerning the male nurse on the night shift. Bestgen visited the patient,
who told her that he awoke to find a male nurse standing over him, with his hand in the patient's genital
area. Bestgen called Petitioner into her office to discuss the allegations. Petitioner denied them. Tr. 62 -
63.

8. Penticoff interviewed the patient, who informed Penticoff that when he woke up the nurse quickly
removed his hands and grabbed the patient's arm. The nurse asked how the patient's arm was, and
indicated to the patient that he was "checking the I.V." I.G. Ex. 5, 6; Tr. 22 -23.

9. Penticoff called Petitioner at home that day. Petitioner denied the allegations. Petitioner told
Penticoff that he had gone into the patient's room to complete a paper report. He thought the "I.V. had
infiltrated", and all he did was check the I.V. Penticoff suspended Petitioner with pay, pending an
investigation. I.G. Ex. 5; Tr. 22 - 23.

10. During this telephone conversation, Petitioner volunteered that he seemed to be having quite a few
problems, particularly with his foster children, one of whom he had struck. Penticoff suggested Petitioner
see a psychologist, Dr. Arnio. I.G. Ex. 5; Tr. 23 - 26.

11. On August 15, 1989, Petitioner met with Penticoff, Sturgis' Assistant Administrator Roger Heidt
(Heidt) , and Bestgen. Penticoff reviewed the allegations with Petitioner and Petitioner initially denied
them. I.G. Ex. 5; Tr. 27 - 28.

12. Penticoff and Heidt left the room. Bestgen was left alone with Petitioner. Bestgen asked
Petitioner if the second patient's allegation was true and he said yes, that he had done something very
unprofessional to that patient. Bestgen then asked if the first patient's allegation was true. Petitioner told
her it was true and that he could have touched the first patient "through the covers". Tr. 64; I.G. Ex. 5, 7.

13. Penticoff was called into the room and Petitioner admitted that the allegations made by both
patients were true. Penticoff indicated to Petitioner that one of the most important things that could be
done is for him to get help for himself. Tr. 28; I.G. Ex. 5.

14. On August 16, 1989 Penticoff terminated Petitioner's employment at Sturgis, based on Petitioner's
admission of unprofessional conduct. I.G. Ex. 5, 6, 7; 28 - 29.

15. Penticoff informed the South Dakota Board of Nursing (Nursing Board) about Petitioner's
unprofessional conduct and about Petitioner's subsequent employment in a nursing home, the Wesleyan
Methodist Care Center. Penticoff was concerned about nursing home patients being alone with Petitioner.
Petitioner had begun the job with the nursing home job on Labor Day, 1989. I.G. Ex. 4, 5; Tr. 29 - 32,
122.

16. The Nursing Board investigated Petitioner's unprofessional conduct and in its Notice to Petitioner of
October 11, 1989, summarily suspended his nursing license, after finding that his conduct "constitutes an
immediate threat to the public welfare and safety, and that it imperatively requires emergency action by the
Board." I.G. Ex. 8, 9.

17. The Nursing Board, in its Notice to Petitioner of October 11, 1989, ordered an "informal meeting" to
be held October 25, 1989, at which meeting Petitioner was requested to show compliance with the
requirements for licensure in South Dakota. The Nursing Board informed Petitioner that it had information
from independent sources that he had been involved in the conduct described in affidavits from Penticoff
and Bestgen. I.G. Ex. 6, 7, 9.

18. The Nursing Board specifically informed Petitioner in its October 11, 1989 Notice that Petitioner had
the right to appear at the meeting with an attorney. If Petitioner did not appear, his right to the "informal
meeting" would be waived and more formal proceedings would be held. I.G. Ex. 9.

19. The "informal meeting" was held on October 25, 1989, between Petitioner, the Nursing Board's
attorney, and a nurse consultant to the Nursing Board. Petitioner announced that he did not want to contest
the allegations as reflected in the affidavits. He asserted that at the time of the incidents he had been under
a lot of pressure. I.G. Ex. 10.

20. Petitioner stated at the meeting that he had seen a Dr. Arnio after his termination, and that Dr. Arnio
had referred Petitioner to a mental health center. Petitioner saw a psychologist there three times, but did
not return to see the psychologist after early September 1989. The only other time Petitioner saw a mental
health professional was in the week preceeding the March 12, 1991 hearing. I.G. Ex. 10; Tr. 134 - 137.

21. On November 15, 1989, the Nursing Board approved and entered a Stipulation and Order, signed by
Petitioner on November 3, 1989, in which Petitioner voluntarily surrendered his nursing license. I.G. Ex.
11.

22. The Stipulation states that: 1) the parties desired to come to a professionally responsible solution and
resolve the issues without the requirement of further formal hearings and disciplinary proceedings; and 2)
Petitioner had been given ample opportunity to address the matters with an attorney and had entered into
the Stipulation fully understanding its consequences and not being under any duress. I.G. Ex. 11.

23. In the Stipulation, the parties agreed that: 1) Petitioner would: 1) surrender his license to practice
nursing; 2) if Petitioner should ever seek reinstatement as a L.P.N. in South Dakota, Petitioner would have
the right to present a petition to the Nursing Board, in which he would "provide satisfactory evidence to the
Board, that the conduct and source of the problems noted in this disciplinary matter were being dealt with
in a sound and professional manner and that in all respects he would be a proper candidate for licensure
again in South Dakota"; 3) the Nursing Board would not guarantee reinstatement and the Nursing Board
might "reasonably require Mr. Enright to file with the Board such reports and evaluations by appropriate
counselors and professionals, as the Board may deem reasonably appropriate." I.G. Ex. 11.

24. In a letter of November 21, 1989 to Petitioner, enclosing a copy of the settlement agreement as
accepted by the Nursing Board, Petitioner was told that Nursing Board staff encouraged him to seek further
assistance in dealing with the difficulties he had experienced in the past months. The letter suggested that
Petitioner's concerns went beyond nursing practice and employment and that Nursing Board staff hoped he
would find ways to deal with these matters. P. Ex. A-31.

25. The Secretary of the Department of Health and Human Services (the Secretary) delegated to the I.G.
the authority to determine, impose, and direct exclusions pursuant to section 1128 of the Act. 48 Fed. Reg.
21661 (May 13, 1983).

26. Section 1128(b)(4)(B) authorizes the I.G. to impose and direct exclusions of individuals who have
surrendered their licenses to provide health care before a State licensing authority 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.

27. Petitioner surrendered his license while a formal disciplinary proceeding was pending before a State
licensing authority in a proceeding concerning his professional performance.
28. The I.G. had the authority to exclude Petitioner under section 1128(b)(4)(B) of the Act.

29. On September 20, 1990, the I.G. excluded Petitioner from participation in the Medicare program and
directed that he be excluded from participation in the Medicaid program, pursuant to section 1128(b)(4)(B)
of the Act.

30. The I.G. excluded Petitioner until such time as he received a license to provide health care in the State
of South Dakota.

31. The requirement that Petitioner obtain a valid license to provide health care in the State of South
Dakota means that Petitioner must obtain a valid L.P.N. license from the Nursing Board.

32. At first Petitioner denied the two allegations of misconduct and admitted them only after he was
suspended following the second incident. Tr. 63 - 64; I.G. Ex. 5, 8.

33. Petitioner has not actively participated in a counseling program for the conduct that was the subject of
the disciplinary matter; such counseling program is the prerequisite for relicensure as an L.P.N., and was
strongly suggested to him by Penticoff, the Nursing Board staff, and Dr. Jenter. Tr. 134 - 137, 152 - 153;
I.G. Ex. 11; FFCL 20.

34. The professions of nursing and laboratory technician both involve patient contact and patient trust. Tr.
33, 65 - 66, 125 - 127.

35. Petitioner has not demonstrated that he is trustworthy to work as either an L.P.N. or a lab technician.
FFCL 32 - 34.

36. The exclusion imposed and directed against Petitioner by the I.G. is reasonable. FFCL 1 - 35.


DISCUSSION

Petitioner was both a practicing L.P.N. and lab technician in the State of South Dakota. In November
1989, Petitioner surrendered his L.P.N. license in the State of South Dakota in the face of charges that he
had improperly fondled two male patients in their genital area in the course of his duties as an L.P.N.
Petitioner has no current plans to seek reinstatement as a L.P.N., but he would like to provide services to
the Medicare and Medicaid programs as a lab technician. Petitioner argues that: 1) The proceeding in
which he surrendered his nursing license was not a formal proceeding and that he was not advised that
surrender of his license would lead to his exclusion from participation in the Medicare and Medicaid
programs in any capacity; and 2) conditioning Petitioner's exclusion on reissuance of his L.P.N. license by
the Nursing Board is unreasonable. I disagree.
1. Petitioner surrendered his L.P.N. license in South Dakota while a formal disciplinary proceeding was
pending before the Nursing Board, which concerned Petitioner's professional performance, within the
meaning of section 1128(b)(4)(B).

The term "formal disciplinary proceeding" in section 1128(b)(4)(B) refers to "a license proceeding which
places a party's license in jeopardy and which provides that party with an opportunity to defend against
charges which might result in a license suspension or revocation." John W. Foderick M.D., DAB Civ.
Rem. C-113 at 6 (1989), aff'd DAB App. 1125 at 5 (1990). This interpretation is consistent with the
legislative purpose behind section 1128(b)(4)(B), which "presumes that an individual or entity who
surrenders a health care license in the face of charges, and in the circumstance where he has the
opportunity to defend himself, is as likely to be untrustworthy as the individual or entity who loses a
license after litigating the issue of his or her professional competence, performance, or financial integrity."
Foderick, DAB Civ. Rem. C-113 at 6 - 7.

In this case, Petitioner argues that: 1) under regulations of the South Dakota Board of Nursing (P. Br. 29 -
32), the informal meeting Petitioner attended is not a step in a disciplinary proceeding; 2) the informal
meeting was conducted only by a staff representative of the Nursing Board and Nursing Board counsel;
and 3) no discipline or action could have been taken by the Nursing Board which would result in denial,
revocation, suspension, annulment, withdrawal, or amendment of any application license or certificate. If a
complaint was to be initiated, specific action was required by the Nursing Board after the informal
meeting. Only the filing of a complaint would give the Board authority to place Petitioner's license in
jeopardy. P. Br. 4 - 6.

I do not agree with Petitioner's interpretation that the informal meeting at which Petitioner surrendered his
license was not a "formal disciplinary proceeding" within the meaning of the Act. As I interpret the phrase,
such "formal disciplinary proceeding" in Petitioner's case began when he received his October 11, 1989,
Notice of Informal Meeting and Order of Summary Suspension (I.G. Ex. 9); his license to practice nursing
in South Dakota was, therein, summarily suspended. The Nursing Board suspended Petitioner's license
"pending resolution of these matters," which matters concerned the affidavits of Penticoff and Bestgen
recounting the unprofessional conduct at Sturgis for which Petitioner's employment was terminated. I.G.
Ex. 6, 7, 9. If proven, these allegations could have resulted in the Nursing Board's revocation of
Petitioner's license. As stated in Chester A. Bennett, M.D., DAB Civ. Rem. C-133 at 7 (1990), "it is
reasonable to conclude that 'during a formal disciplinary proceeding' encompasses more than just a hearing
on the matter." A proceeding "entails a succession of events taking place, rather than just one event, such
as a hearing." Id.

If Petitioner had not surrendered his license, the Nursing Board would have had a responsibility to resolve
the issues raised by the claims. See I.G. Ex. 10. The Stipulation and Order signed by the Nursing Board
on November 15, 1989, specifically stated that the parties decided to resolve the issues set forth in the
affidavits and Order of Summary Suspension, without the requirement of further formal hearings and
disciplinary proceedings . I.G. Ex. 11. The Nursing Board, in the absence of Petitioner's surrender of his
license, was fully prepared to go forward.

Furthermore, whether or not this meeting was referred to as "informal" by the Nursing Board, is not
definitive or meaningful in interpreting section 1128(b)(4)(B). This case is governed by federal law, and
the interpretation of a federal statute or regulation is a question of federal, not state, law. Bennett, supra, at
7, United States v. Allegheny County, 322 U.S. 174, 183 (1944).

Thus, I find that Petitioner surrendered his license to provide health care to the South Dakota licensing
authority, the Nursing Board while a formal disciplinary proceeding was pending, within the meaning of
section 1128(b)(4)(B). I further find that he surrendered his license for reasons bearing on his professional
performance, those being the incidents of unprofessional conduct alleged in the affidavits of Penticoff and
Bestgen, and which formed the basis for the summary suspension of Petitioner's license. I also find that a
determination of whether Petitioner was told that surrendering his license might result in his exclusion
from the Medicare and Medicaid programs is irrelevant to the question of whether or not the I.G. had a
basis upon which to exclude him. In Foderick, the appellate panel stated:

The authority given to the I.G. to impose and
direct exclusions pursuant to section 1128(b)(4)(B)
is based on actions taken by state licensing boards.
The statute clearly intended that the I.G. was to
rely on the state board actions . . .

Foderick, DAB App. at 10; Also See, Andy E. Bailey, C.T., DAB App. 1131 (1990); Roosevelt A.
Striggles, DAB Civ. Rem. C-301 (1991).


2. It is reasonable to exclude Petitioner from participating in the Medicare and Medicaid programs until he
regains his L.P.N. license from the Nursing Board.

In deciding whether or not an exclusion under section 1128(b)(4)(B) is reasonable, I must review the
evidence with regard to the exclusion law's remedial purpose.

Congress enacted the exclusion law to protect the integrity of federally funded health care programs.
Among other things, the law was designed to protect program recipients and beneficiaries from individuals
who have demonstrated by their behavior that they threatened the integrity of federally funded health care
programs or that they could not be entrusted with the well-being and safety of beneficiaries and recipients.

There are two ways that an exclusion imposed and directed pursuant to the law advances this remedial
purpose. First, an exclusion protects programs and their beneficiaries and recipients from untrustworthy
providers until they demonstrate that they can be trusted to deal with program funds and to serve
beneficiaries and recipients. Second, an exclusion deters providers of items or services from engaging in
conduct which threatens the integrity of programs or the well-being and safety of beneficiaries and
recipients. See H.R. Rep. No. 393, Part II, 95th Cong. 1st Sess., reprinted in 1977 U.S. Code Cong. &
Admin. News 3072.

An exclusion imposed and directed pursuant to section 1128 will likely have an adverse financial impact
on the person against whom the exclusion is imposed. However, the law places program integrity and the
well-being of beneficiaries and recipients ahead of the pecuniary interests of providers. An exclusion is not
punitive if it reasonably serves the law's remedial objectives, even if the exclusion has a severe adverse
financial impact on the person against whom it is imposed.

No statutory minimum mandatory exclusion period exists in cases where the I.G.'s authority arises from
section 1128(b)(4)(B), nor is there a requirement that a petitioner is to be excluded until he or she obtains a
license from the state where their license was revoked, surrendered or suspended. See Lakshmi N. Murty
Achalla, M.D., DAB App. 1231 at 9 (1991). By not mandating that exclusions from participation in the
programs be permanent, Congress has allowed the I.G. the opportunity to give individuals a "second
chance." An excluded individual or entity has the opportunity to demonstrate that he or she can and should
be trusted to participate in the Medicare and Medicaid programs as a provider.

The determination of when an individual should be trusted and allowed to reapply for reinstatement as a
provider in the federal programs is a difficult issue. It is subject to discretion without application of any
mechanical formula. The federal regulations at 42 C.F.R. 1001.125(b) guide me in making this
determination. This hearing is, by reason of section 205(b) of the Act, de novo. Evidence which is
relevant to the reasonableness of an exclusion is admissible whether or not that evidence was available to
the I.G. at the time the I.G. made his exclusion determination.

Given congressional intent to exclude untrustworthy providers, I also consider those circumstances which
indicate the extent of an individual's or entity's trustworthiness. Essentially, I evaluate the evidence to
determine whether the exclusion comports with the legislative purpose outlined above. I do not, however,
simply substitute my judgment for that of the I.G. I evaluate the evidence in order to decide whether the
exclusion imposed and directed against a petitioner is so extreme or excessive as to be unreasonable.

A determination of an individual's trustworthiness in section 1128(b)(4)(B) cases thus necessitates the
following considerations: 1) the nature of the license surrender, the circumstances surrounding it, and its
impact on the federal programs; 2) whether and when that individual sought help to correct the behavior
leading to his license surrender; and 3) the extent to which the individual has succeeded in rehabilitation.
See Thomas J. DePietro, R.Ph., DAB Civ. Rem. C-282 (1991).

Petitioner argues that he has now been excluded for a sufficient length of time to satisfy all legitimate
concerns and questions that the I.G. may have. Petitioner also believes that any further exclusion would be
punitive. P.Br. p. 12. Petitioner bases his argument on the following: 1) Petitioner wants to practice as a
laboratory technician, and South Dakota does not license laboratory technicians; 2) it is unreasonable to
base Petitioner's ability to provide services to the Medicare and Medicaid programs as a laboratory
technician on his regaining his L.P.N. license, as the two professions are separate; 3) while what Petitioner
did in the two incidents involving improper touching of male patients' genitalia through the covers (I.G.
Ex. 5/3) was not proper, it cannot be characterized as sexual molestation or sexual abuse; 4) Petitioner had
practiced for over ten years as a laboratory technician before pursuing his L.P.N. and was employed as a
lab technician while employed as an L.P.N.; 5) Petitioner had been a loyal, reliable, professional, and
dependable employee throughout his Sturgis employment; 6) Petitioner has had an otherwise unblemished
23 year employment history; and 7) no criminal conduct, fraud or financial abuse of the system was
involved in Petitioner's case. P. Br. 6 - 11.

Petitioner has argued that earlier Departmental Appeals Board (DAB) decisions support his conclusion,
principally the cases of Foderick, supra.; Walter J. Mikolinski, DAB Civ. Rem. C-166 (1989), rev'd DAB
App. 1156 (1990); and Lakshmi N. Murty Achalla, M.D., DAB Civ. Rem. C-146 (1990), aff'd DAB App.
1231 (1991). I do not agree.

In Foderick, Dr. Foderick surrendered his license to practice medicine after the Minnesota Board of
Medical Examiners' Discipline Committee concluded that a physical examination established that Dr.
Foderick suffered from serious physical impairments and deteriorating mental abilities rendering him
unable to practice medicine and surgery safely. In Foderick, both the ALJ and the appellate panel held that
it was reasonable to exclude Dr. Foderick until such time as he regained his license to practice medicine.

In contrast, in Mikolinski, Mr. Mikolinski, a pharmacist and a nursing home operator, had his pharmacy
license suspended by the Pharmacy Board for two years after the Pharmacy Board found that Mr.
Mikolinski had violated a state law by knowingly possessing, with intent to distribute, a Class E controlled
substance, and that he had conspired to divert drugs from Massachusetts General Hospital, thus not
conducting his professional activities in conformance with law. The Pharmacy Board conditioned Mr.
Mikolinski's reinstatement on maintaining his continuing education requirements and on taking a pharmacy
law examination and passing with a grade of no less than 75 percent. The I.G. excluded him until he
regained his pharmacy license. In deciding Mr. Mikolinski's appeal of this exclusion, the ALJ sustained
the exclusion as it applied to his participation as a pharmacist, but modified it to a definite term of two
years as it applied to Mr. Mikolinski's participation as a nursing home operator, administrator, or employee.
The appellate panel reversed the ALJ and concluded that the ALJ had erred in setting different exclusion
periods for different functions. They stated, however, that section 1128(b)(4) did not require an indefinite
exclusion for all section 1128(b)(4) exclusions. Instead, the ALJ could modify the exclusion and set an
exclusion for a term of years.

In Achalla, the Florida Board of Medicine revoked Dr. Achalla's license to practice medicine based on his
delivery to another individual of 100 tablets of a Schedule II narcotic controlled substance, including
telephoning a false prescription for a controlled substance, and on his subsequent conviction. Based on the
license revocation, the I.G. excluded Dr. Achalla until he regained his license. On appeal, I found the
length of Dr. Achalla's exclusion to be unreasonable and modified it to a three year exclusion. The
appellate panel affirmed, specifically finding that there was no explicit statement in section 1128(b)(4) or
in its legislative history that the exclusion period should be coterminous with the period of license
revocation on which it was based. This was because Congress had expressed an intent that the exclusion
period should be set taking into consideration factors including the seriousness of the offense, the impact of
the offense and the exclusion on beneficiaries, and any mitigating circumstances. The appellate panel
stated that consideration of those factors would not be necessary if the exclusion period was intended to be
tied automatically to the length of the license revocation. DAB App. 1231 at 9.

Petitioner asserts that these DAB decisions do not apply, because Petitioner: 1) was not specifically found
to be suffering from serious physical and mental impairments (as was Dr. Foderick), and 2) had not been
convicted in a criminal court nor was he guilty of fraud or financial abuse of the system (as were Mr.
Mikolinski and Dr. Achalla). Petitioner argues that the indefinite length of his exclusion was unreasonable,
and that Petitioner's exclusion should be limited to "time served," as any legitimate function and purpose
for the exclusion had already been fulfilled. Petitioner states that his conduct, while improper, does not
even approach the fraudulent criminal conduct of the decisions cited above. P. Br. 9 - 10.

Petitioner has stated that he wants to participate in the programs as a laboratory technician, a profession
which is different than that of licensed practical nurse. Petitioner appears to compare his situation to that
of Mr. Mikolinski, who desired to participate in the programs as a nursing home operator, not a pharmacist.
Thus, Petitioner argues, the indefinite exclusion imposed against him is unreasonable. The decisions in
Mikolinski and Achalla, however, never held that an indefinite exclusion was per se unreasonable for all
1128(b)(4) exclusions. Rather, they held that it was up to the ALJ to assess the reasonableness of the
exclusion in light of all the circumstances detailed above.

In the case of Dr. Foderick, the DAB found that his physical and mental impairments made it reasonable
that he remain excluded until the Minnesota licensing board found him competent. In the case of Dr.
Achalla, in modifying Dr. Achalla's exclusion from an indefinite exclusion to a three year exclusion, I
specifically found that Dr. Achalla's conduct subsequent to his conviction demonstrated that he was
unlikely to again abuse his privileges as a physician, and that he did not pose a substantial risk of harm to
beneficiaries or recipients or to the integrity of the Medicare and Medicaid programs. DAB App. at 5. It
was the ALJ's task in each of these cases to determine when these individuals would be trustworthy to
participate as providers in the Medicare and Medicaid programs. In this case, I do not find that Petitioner
is as yet trustworthy to participate in the Medicare and Medicaid programs.

When Petitioner fondled those two patients, he broke a high duty of care and trust. In a hospital, a patient
may be completely helpless and totally dependent on the professional care of the hospital staff. Patients
need to believe that when hospital personnel touch their bodies, it is for professional reasons, not to gratify
the sexual desires of the hospital staff. There is testimony that one of the patients Petitioner fondled
needed therapy to deal with the consequences of Petitioner's conduct. FFCL 4. Petitioner's breach of those
patients' trust and the duty he owed them is serious and extensive. Mr. Penticoff, Sturgis' administrator,
realized this, and this concern was a factor in his determination to terminate Petitioner. Penticoff stated:
"[t]he patients in the hospital basically give us their life and soul and put a lot of trust in us, and that trust
had been violated, so I then terminated Mr. Enright." Tr. 29.

Petitioner has urged that, rather than focus on these two incidents, I should look at his prior unblemished
employment history. I have taken that into consideration. I am more concerned, however, with Petitioner's
present condition and any future danger he might pose to program beneficiaries and recipients. Petitioner
has not as yet made any real efforts to deal with his problems. When confronted with the allegations of
professional misconduct, Petitioner at first repeatedly denied that he had fondled either patient. Penticoff,
the Nursing Board, and its staff, all urged Petitioner to get therapy for his problems, but as yet he has made
no serious attempt to do so. Petitioner only saw a therapist a few times immediately after the incidents in
question, and once during the week prior to the hearing in this case. FFCL 20, 33. Petitioner testified
during the hearing that he planned to continue with counseling, and that given all he has gone through,
incidents such as the ones at Sturgis are not likely to recur. Tr. 112, 137. He testified that at the time of
the incidents he was under stress due to problems with foster children at home, and that stress is now gone.
Tr. 118 - 123. Petitioner's explanation, however, is simply not sufficient, given his prior lack of
commitment to counseling and working out his problems. I see no indication that Petitioner has actively
sought help to correct the behavior leading to his license surrender, or that he has made significant progress
towards rehabilitation of the behavior which led him to surrender his license. There is no evidence that if
stress recurred in his life he would deal with it in a more appropriate manner.

Petitioner's current employer, Dr. Jenter, testified that he has no reservations concerning Petitioner working
with patients. Tr. 148 - 149. Jenter feels that Petitioner today is a more "mellow person" than he was two
years ago. Tr. 149. However, Jenter was not aware until February 19, 1991, when Petitioner's counsel told
him, that Petitioner had surrendered his license voluntarily because of two cases of sexual misconduct at
Sturgis. Jenter had previously been led to believe that there was a problem with Petitioner and a couple of
male patients, but Jenter had no knowledge of the exact nature of the problems. When Jenter was informed
of the nature of the problems, Jenter, as Penticoff and the Nursing Board staff had done previously, urged
Petitioner to go for counseling. Tr. 152 - 154.

Petitioner asserts that it is unreasonable to preclude him from providing his services to the Medicare and
Medicaid programs as a laboratory technician until he regains his L.P.N. license. However, while nursing
would likely involve a greater amount of patient contact, Petitioner might also have a considerable amount
of patient contact as a laboratory technician. Both Penticoff and Bestgen testified that, like nursing, the
profession of laboratory technician involves patient contact and trust. Tr. 33, 66. Bestgen testified that, at
Sturgis, laboratory technicians act as phlebotomists, which means that they directly draw blood from the
patients for testing, in open and closed door situations, in the patient's room or in the emergency room. Tr.
66. Petitioner himself indicated that as a laboratory technician he has had patient contact. Tr. 126 - 127.
Thus, I find that the two professions are not so different that the same standards of trustworthiness would
not be applicable to both. This situation is unlike Mr. Mikolinski's, where his program participation as a
nursing home operator became conditioned upon his receiving a passing score of 75 percent or better on a
pharmacy exam. In Petitioner's case, a determination of his trustworthiness to work with patients is the
same whether he functions as a laboratory technician or a nurse.

Before Petitioner can regain his L.P.N. license, the Nursing Board wants Petitioner to show them that his
problems have been dealt with in a sound and professional manner. Once Petitioner can do this, the
Nursing Board stipulated that it would entertain Petitioner's petition to regain his license. FFCL 23. Such
evidence that Petitioner is dealing with his problems, soundly and professionally, is precisely what I need
to see before I can consider modifying the I.G.'s exclusion. I have not seen it in this proceeding.

Petitioner argues that he has attempted to contact the Nursing Board and that they have not been
encouraging. Petitioner states that one Nursing Board staff member told him, "your chances of getting it
[Petitioner's L.P.N. license] back are nearly not at all because you surrendered your license," and that
Petitioner, "might as well forget trying to do it [regain his license]." Tr. 127 - 128. The Nursing Board's
attorney, in a letter to Petitioner's counsel, indicated that Petitioner, "does have the option, I suppose, of
coming back before the Board for licensure, but I would anticipate that under the circumstances of this
case, this would be a difficult course for him to be successful in." P. Ex. A/11. However, Petitioner has
never applied for relicensure (Tr. 128) and does not know what the Nursing Board would do if he
reapplied. I realize that, since Petitioner has done nothing to seriously address the conduct for which he
was excluded, it may be true that at this time he will not be able to regain his license. However, Petitioner
has not permanently surrendered his nursing license. While Petitioner may not now be ready to regain his
license, that does not mean that the Nursing Board will never consider his application. Before he can say
convincingly that he cannot regain his nursing license, Petitioner needs to show the Nursing Board that he
has professionally dealt with his problems.

In order to modify an exclusion imposed and directed against a petitioner by the I.G., I must find that the
exclusion is so extreme or excessive as to be unreasonable. Because of the similarity of patient contact
between the professions of licensed practical nurse and laboratory technician, and because the very
conditions upon which the Nursing Board has stipulated it will consider Petitioner's application for
relicensure are the same as those I need to see in order to consider modifying Petitioner's exclusion, I find
that the exclusion imposed and directed against Petitioner by the I.G. is reasonable. Petitioner has not
seriously sought help to correct the behavior which led to his license surrender and has not yet made
significant steps on the road to rehabilitation.


CONCLUSION

Based on the evidence in the record of this case, the arguments of the parties, and federal law and
regulations, I conclude that the I.G.'s determination to exclude Petitioner from participation in the Medicare
and Medicaid programs until he obtains a valid L.P.N. license in South Dakota is reasonable and
appropriate. There-fore, I am entering a decision in favor of the I.G. in this case.

IT IS SO ORDERED



Charles E. Stratton
Administrative Law Judge