Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
In the Case of:
Bruce Lindberg, D.C.,
Petitioner,
- v. -
The Inspector General.
DATE: July 22, 1991
Docket No. C-348
DECISION
On February 15, 1991, the Inspector General (I.G.)
notified Petitioner that he was being excluded from
participation in Medicare and State health care programs.
1/ The I.G. advised Petitioner that he was being
excluded due to his State court conviction of a criminal
offense relating to neglect or abuse of patients in
connection with the delivery of a health care item or
service. Petitioner was further advised that exclusions
based on such convictions were made mandatory pursuant to
section 1128(a)(2) of the Social Security Act (Act) and
that section 1128(c)(3)(B) of the Act required a minimum
period of exclusion of not less than five years.
Petitioner timely requested a hearing and the case was
assigned to me. A prehearing conference was held on
March 15, 1991 to discuss procedures for hearing and
deciding the case. The I.G. indicated that the case
could be decided through submission of a motion for
summary disposition without the need for an in-person
hearing. With the acquiescence of Petitioner, I set
a schedule for filing of briefs and supporting
documentation. The parties have completed their
submissions and the matter is ready for decision.
I have considered the exhibits 2/ submitted by the
parties, their arguments, and the applicable law and
regulations. I conclude that (1) there are no material
disputed facts, (2) the exclusion imposed and directed by
the I.G. is mandated by section 1128(a)(2) of the Act,
and (3) the five-year exclusion is the minimum mandatory
period required by section 1128(c)(3)(B) of the Act.
ISSUE
Whether Petitioner was convicted of a criminal offense
relating to the neglect or abuse of a patient, within the
meaning of section 1128(a)(2) of the Act.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. Petitioner, at all times relevant to this case, was
a chiropractor with offices in Albia, Centerville, and
Ottumwa, Iowa. I.G. Ex. 1. 3/
2. On June 16, 1989, in a Trial Information 4/ filed in
the Iowa District Court for Monroe County, Petitioner was
charged with five counts of Lascivious Acts with a Child,
in violation of section 709.8(1) of the Iowa Criminal
Code. I.G. Ex. 15.
3. On January 17, 1990 in a Trial Information filed in
court, Petitioner was charged with one count of Indecent
Contact with a Child and two counts of Lascivious Acts
with a Child, violation of sections 709.12(2) and 709.8
of the Iowa Criminal Code. I.G. Ex. 16.
4. On April 11, 1990, in a Trial Information filed in
court, Petitioner was charged with two counts of Indecent
Contact with a Child and two counts of Indecent Exposure,
violations of sections 709.12(2) and 709.9 of the Iowa
Criminal Code. I.G. Ex. 17.
5. On April 11, 1990, Petitioner pled guilty to two
counts of Indecent Contact with a Child and two counts of
Indecent Exposure, violations of sections 709.12(2) and
709.9 of the Iowa Criminal Code. Sentencing was set for
July 20, 1990. I.G. Ex. 17.
6. In a Judgment Entry dated July 20, 1990, the court
found Petitioner guilty of two counts of Indecent Contact
with a Child and two counts of Indecent Exposure,
violations of section 709.12(2) and 709.9 of the Iowa
Criminal Code. P. Ex. 6.
7. The record shows that Petitioner included among his
patients a number of male children under the age of 18.
I.G. Ex. 11 - 12. These children would come to
Petitioner seeking treatment for various spinal
disorders. I.G. Ex. 30. A number of the children were
members of athletic teams at the local high school and
sought treatment for problems arising from the physical
rigors of team sports. I.G. Ex. 6 at 4. During the
course of treatments of such persons, Petitioner would
engage in illicitly attempting to touch and touching of
the childrens' genitalia. I.G. Ex. 3, 5, 7, 8, 30, 31.
8. The court sentenced Petitioner to six years'
probation subject to the following conditions: (1) he
was to pay all court costs and make restitution to the
eight victims by providing an annuity which would provide
each victim with funds to pay for counseling and each
victim with $5,000 on his 18th birthday; (2) he was to
continue receiving counseling on an individual basis
throughout probation or until successfully discharged by
the counselor with the approval of the probation officer;
(3) he was to continue attending 12-step meetings with
the majority of them focusing on sexual addiction; and
(4) he was to complete 300 hours of community service
work. I.G. Ex. 19.
9. Petitioner was convicted of a criminal offense,
within the meaning of sections 1128(i) and 1128(a)(2) of
the Act.
10. Petitioner was convicted of a criminal offense
relating to abuse of patients in connection with the
delivery of a health care item or service, within the
meaning of section 1128(a)(2) of the Act.
11. Sections 1128(a)(2) and 1128(c)(3)(B) of the Act
mandate a minimum exclusion period of five years for an
individual who has been convicted of a criminal offense
relating to the abuse of patients in connection with the
delivery of a health care item or service.
12. The Secretary of the United States 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).
13. On September 20, 1990, Petitioner filed an Amendment
to Judgment Entry. Petitioner's amended plan of restitu-
tion provided that he was to make restitution to the
eight victims of his crime by providing a $5,000 annuity
for each of the victims, paying a total amount of
$40,000. Each victim was to have any funds from the
annuity available to him prior to age 18 to use for
counseling services. At age 18, each victim was to
receive the remaining balance of his $5,000 annuity, the
remaining balance being the sum of $5,000 minus any early
withdrawal for counseling. If there is an early
withdrawal, Petitioner is to cover the early withdrawal
penalty. I.G. Ex. 29.
14. On September 21, 1990, the court sustained
Petitioner's application to amend the Judgment Entry.
I.G. Ex. 29.
15. On September 28, 1990, the court approved
Petitioner's Plan of Restitution. I.G. Ex. 29.
16. On September 28, 1990, Petitioner was notified by
the State of Iowa Board of Chiropractors (Iowa Board)
that a hearing had been scheduled concerning his license
to practice as a chiropractor in the State of Iowa. The
hearing was scheduled to determine whether disciplinary
action should be taken against Petitioner's license for
his alleged violation of Iowa Board regulations. I.G.
Ex. 23.
17. The Iowa Board informed Petitioner that the
violations arose from these allegations: (1) Petitioner
made suggestive, lewd, lascivious, or improper remarks or
advances to at least seven minors who were his patients
during the time period of approximately 1988-1989; and
(2) Petitioner used his position as a chiropractor to
allow him to make suggestive, lewd, lascivious, or
improper remarks or advances to at least one other minor
during the time period of approximately 1988-1989. I.G.
Ex. 23.
18. In a letter dated February 15, 1991, Petitioner was
notified by the I.G. that he was being excluded from
participation in the Medicare program and any State
health care program for a period of five years, because
of his conviction of a criminal offense relating to
neglect or abuse of patients in connection with the
delivery of a health care item or service. I.G. Ex. 26.
19. On March 1, 1991, the Iowa Board entered a
Stipulation and Order, signed by Petitioner on February
26, 1991, in which Petitioner's chiropractic license was
surrendered indefinitely pending compliance with certain
conditions. I.G. Ex. 27.
20. The Stipulation provided the following conditions
for Petitioner during the period that his license was to
be suspended: (1) Petitioner was to continue counseling
and any other treatment in which he was then engaged and
was to arrange for his counselors to submit monthly
progress reports to the Iowa Board; (2) he was to comply
with the terms of his court-ordered probation and arrange
to have his probation officer submit monthly reports
documenting that compliance to the Iowa Board; and (3) at
the end of six months, he could submit to the Iowa Board
a comprehensive evaluation conducted within the six-month
period by a professional therapist approved by the Iowa
Board. If the report were to find that Petitioner could
resume the practice of chiropractic and he had complied
with all the terms of his court-ordered probation, the
suspension could be stayed, with a three-year
probationary period and other conditions as delineated
in the Stipulation. I.G. Ex. 27.
21. The I.G. properly excluded Petitioner from
participation in the Medicare and Medicaid programs for a
period of five years as required by the minimum mandatory
exclusion provisions of sections 1128(a)(2) and
1128(c)(3)(B) of the Act.
22. The remedial purpose of section 1128 of the Act is
to protect federally-funded health care programs and
their beneficiaries and recipients from providers who
have demonstrated by their conduct that they cannot be
trusted to handle programs funds or to treat
beneficiaries and recipients.
23. In response to the court's inquiry concerning his
guilty plea to Counts I and II, Petitioner admitted that
he did touch a child, who was under the age of 14, in the
groin area for Petitioner's own sexual satisfaction.
P. Ex. 7 at 17 - 18.
24. Petitioner has demonstrated that he is capable of
using his license to practice chiropractic to perpetrate
child molestation against young boys who were his
patients. Petitioner has repeatedly placed the gratifi-
cation of his own urges above the welfare of his young
patients. FFCL 7.
25. The five-year exclusion imposed and directed against
Petitioner by the I.G. is reasonable. FFCL 1-24.
RATIONALE
1. Petitioner was convicted of a criminal offense
relating to neglect or abuse of patients in connection
with the delivery of a health care item or service,
within the meaning of section 1128(a)(2) of the Act.
Petitioner is a chiropractor with offices in Albia,
Centerville, and Ottumwa, Iowa. Based on information
developed in a criminal investigation of Petitioner, a
Trial Information was filed on June 16, 1989 in the Iowa
District Court for Monroe County, charging Petitioner
with five counts of Lascivious Acts with a Child, in
violation of section 709.8 of the Iowa Criminal Code.
FFCL 2. A second Trial Information was filed on January
17, 1990, in the same court, charging Petitioner with one
count of Indecent Contact with a Child, in violation of
section 709.12(2) of the Iowa Criminal Code and two
counts of Lascivious Acts with a Child, in violation of
section 709.8 of the Iowa Criminal Code. FFCL 3. On
April 11, 1990, Petitioner entered into a plea agreement
wherein he voluntarily pled guilty to two counts of the
crime of Indecent Contact with a Child, in violation of
section 709.12(2) of the Iowa Criminal Code, and two
counts of Indecent Exposure, in violation of section
709.9 of the Iowa Criminal Code. FFCL 5.
Consequently, in a Judgment Entry dated July 20, 1990,
the court found Petitioner guilty of violations of the
Iowa Criminal Code as set forth in the plea agreement and
placed Petitioner on six years' probation conditioned on
(1) payment of court costs and full restitution to the
victims by providing an annuity which would provide each
victim with funds to pay for counseling and with a lump-
sum payment of $5,000 on each victim's 18th birthday;
(2) continuation of counseling on an individual basis
throughout probation or until Petitioner is successfully
discharged by the counselor and with the approval of the
probation officer; (3) continuation of attendance of
12-step meetings with the majority of them focusing on
sexual addiction; and (4) completion of 300 hours of
community service work. FFCL 6, 8. On September 21,
1990, the Court sustained Petitioner's application to
amend the Judgment Entry regarding the amount of money
to be provided the victims. The amended Judgment Entry
provided that each victim would receive a $5,000 annuity.
Each victim could then request funds from the annuity to
pay for counseling. Upon each victim's 18th birthday, he
would receive the $5,000 annuity, minus the counseling
fees. FFCL 13 - 14.
In order to exclude Petitioner under Section 1128(a)(2)
of the Act, it must be shown that he was (1) convicted
of a criminal offense and that (2) the offense related
to neglect or abuse of patients in connection with the
delivery of a health care item or service. Petitioner
does not dispute that he was convicted of a criminal
offense, but contends that the charges upon which the
conviction is based do not involve "child abuse or
conduct that endangered a child while [Petitioner] was
their doctor." P. Response at 2, 4.
Apparently, the crux of Petitioner's argument is based
on procedural grounds in that the specific violations
contained in the documents which form the basis of the
conviction, indecent contact and indecent exposure with
children, occurred outside of the doctor-patient
relationship. P. Response at 5. Moreover, Petitioner
opines that the I.G. cannot properly rely on extrinsic
pleadings, such as "various depositions and other court
pleadings and affidavits," other than the conviction
itself, to support patient abuse in connection with the
delivery of a health care item or service. P. Response
at 5. For example, Petitioner takes issue with the
I.G.'s reliance on the victim's restitution plan, which
Petitioner admits includes two of his patients. P.
Response at 4 - 5. Lastly, Petitioner illustrates his
position that the conviction itself did not relate to
his patients by pointing to the sentencing transcript's
recital of Counts I and II of the Trial Information,
which pertains to indecent contact with one "K.L.," a
child who is not described as a patient. P. Response at
6; P. Ex. 7 at 9 - 10.
Petitioner's arguments are without merit and contrary to
existing case law. The essence of Petitioner's position
is that evidence supporting patient abuse in connection
with the delivery of a health care item or service is
limited to the Judgment Entry and plea transcript. Such
a restricted interpretation is not supported by the
existing case law. The I.G. properly relies on Norman C.
Barber, D.D.S., DAB Civ. Rem. C-198 (1991), to
demonstrate that a determination of whether the elements
of section 1128(a)(2) were met can be based on extrinsic
evidence found in pleadings and other documents
supporting the conviction. I.G. Reply at 1 - 2. The
rationale for such an interpretation is shown by the
following passage from Barber:
It is consistent with congressional intent to
admit limited evidence concerning the facts
upon which the conviction was predicated in
order to determine whether the statutory
criteria of section 1128(a)(2) have been
satisfied. Congress could have conditioned
imposition of the exclusion remedy on
conviction of criminal offenses consisting of
patient neglect or abuse. Had it used the term
"of" instead of the term "relating to" in
section 1128(a)(2), that intent would have been
apparent. Had Congress done so, then,
arguably, no extrinsic evidence would be
permitted in a given case to explain the
relationship between the criminal conviction
and the underlying conduct. However, Congress
intended that the exclusion authority under
section 1128(a)(2) apply to a broader array of
circumstances. It mandated the Secretary
exclude providers who are convicted of criminal
offenses "relating to" patient neglect or abuse
in connection with the delivery of a health
care item or service. The question . . . is
whether the criminal offense which formed the
basis for the conviction related to neglect or
abuse of patients, not whether the court
convicted Petitioner of an offense called
"patient abuse" or "patient neglect."
[E]xtrinsic evidence is admissible to explain
ambiguities in criminal complaints or pleas.
It is admissible to explain unstated but
necessarily implied elements of the offense to
which a party pleads.
Id. at 10 - 12.
The appellate decision in Dewayne Franzen, DAB App. 1165
(1990), is instructive on the issue of the scope of the
administrative law judge's (ALJ) examination in
determining the nature of a criminal offense under
section 1128(a)(1) and (a)(2). The appellate panel,
relying on H. Gene Blankenship, DAB Civ. Rem. C-67
(1989), held that:
[T]he ALJ, the finder of fact, can look beyond
the findings of the state court to determine if
a conviction was related to Medicaid.
Therefore the ALJ's characterization of an
offense is not limited to the state court's or
the violated statute's precise terms for
purposes of determining whether a conviction
related to Medicaid. Franzen at 6. See Thomas
M. Cook, DAB Civ. Rem. C-106 (1989).
Having the authority to examine the full circumstances
surrounding a conviction to determine whether the
statutory elements of section 1128(a)(2) are met is
particularly appropriate in the context of this case.
Here, Petitioner pled guilty to specified criminal
offenses pursuant to a plea agreement. He was able to
avoid a trial where full details of his criminal
activities would have been presented. The Trial
Information upon which his conviction was based contains
only a skeletal recital of the essential elements of the
criminal offenses of which he was charged. See I.G. Ex.
17. There is no description of where, under what
circumstances, and who were the recipients of
Petitioner's criminal sexual misconduct (other than a
generic reference to two individuals). This was
obviously done to protect the identity of the children
who were the victims of Petitioner's criminal conduct.
Petitioner would have the determination of the extent of
his criminal offense for purposes of section 1128(a)(2)
be limited to the four corners of the Judgment Entry.
But such constraints are even more restrictive than that
imposed on the trial judge in his deliberations on
whether to accept Petitioner's guilty plea. Although the
Trial Information referred only to two children, it is
evident from the discussion in the transcript of
Petitioner's guilty plea that Petitioner's conduct
involved more than the two children mentioned in the
Trial Information. In return for dropping certain
charges, Petitioner agreed to set up an annuity in the
amount of $5,000 for each of the "eight different
children . . . involved in the original two charges." P.
Ex. 7 at 12 - 13. The Plan of Restitution clearly
reflects that it was for the purpose of compensating
these eight children for "pecuniary damages caused by
[Petitioner] as a result of criminal activities." I.G.
Ex. 29. There is no doubt that all the parties involved
in Petitioner's criminal conviction were aware of the
details of his criminal activities. That same
information can properly be examined for purposes of
section 1128(a)(2).
Having disposed of Petitioner's procedural argument, I
must next resolve whether the elements of section
1128(a)(2) have been met in this case. This section
refers to convictions involving patient neglect or abuse.
The terms "neglect or abuse" are not defined in the
statute. Absent a statutory definition, the words should
be given their common and ordinary meaning. As indicated
in Cook:
"Neglect" is defined in Webster's Third New
International Dictionary, 1976 Edition as "1:
to give little or no attention or respect to: .
. . 2: to carelessly omit doing (something that
should be done) either altogether or almost
altogether . . . ." "Abuse" is defined as "4:
to use or treat so as to injure, hurt or
damage; MALTREAT . . . ." I conclude from
these common definitions that Congress intended
the statutory term "neglect" to include failure
by a party to satisfy a duty of care to another
person. "Abuse" is intended to include those
situations where a party willfully mistreats
another person. Id. at 4 - 5. See Summit
Health Limited, dba Marina Convalescent
Hospital, DAB App. 1173 at 8 (1990).
Neither the I.G. nor Petitioner has submitted for the
record the full wording of the two sections of the
Iowa Criminal Code -- Indecent Contact with a Child
(709.12(2)) and Indecent Exposure (709.9) -- which form
the basis for Petitioner's conviction. The trial
documents of record do not contain statutory language
adequate for me to conclude that violation of the
criminal code provisions per se amounts to "neglect or
abuse" under section 1128(a)(2) of the Act. Also, I
am unable to conclude from examination of the Trial
Information and the Judgment Entry alone that the victims
of Petitioner's criminal conduct were his patients and
that such conduct occurred in the delivery of a health
care item or service.
Even though the criminal statute underlying Petitioner's
conviction does not provide evidence of the elements
necessary to support an exclusion under section
1128(a)(2), the "relating to" language provides a basis
to examine the full circumstance of Petitioner's criminal
offenses to establish the I.G.'s authority to exclude.
Review of the record supporting Petitioner's criminal
conviction amply establishes the elements of section
1128(a)(2). Petitioner, a licensed chiropractor,
included among his patients a number of male children
under the age of 18. I.G. Ex. 11 - 12. These children
came to Petitioner seeking treatment for various spinal
disorders. Apparently as an inducement to new patients,
Petitioner provided the initial treatments without cost.
I.G. Ex. 30 at 28. A number of the children were members
of athletic teams at the local high school and sought
treatment for problems arising from the physical rigors
of team sports. I.G. Ex. 6 at 4. Petitioner encouraged
these children to seek him out by providing weight
training and other equipment for their use. I.G. Ex. 7
at 12.
During the course of treatments of these children,
Petitioner illicitly attempted to touch and touched their
genitalia. This would often occur while Petitioner was
engaged in chiropractic treatment, such as a massage, or
in the course of using electrical vibrators and
stimulators. I.G. Ex. 3, at 3; 5 at 3; 13 at 28 - 29; 30
at 9 - 10, 23 - 24; 31 at 8 - 10; 32 at 6 - 8; 7 at 12; 8
at 6 - 9. Moreover, Petitioner frequently exploited the
care and trust arising from the doctor-patient
relationship by inviting these children to his home or to
other locations for recreational activities. I.G. Ex. 30
at 11; 32 at 5. While at his home, Petitioner suggested
to the children that they should undergo a chiropractic
adjustment or massage. The illicit touching occurred on
these occasions as well. I.G. Ex. 7 at 1, 4 - 5, 8 - 9.
Petitioner not confine his sexual misconduct with these
children only to situations where the illicit touching
occurred under the guise of legitimate chiropractic
treatments. He often engaged in sexual molestation of
children in the sauna at his home, while engaged in water
sports, and in his car while driving the children to
their homes. I.G. Ex. 7 at 13 - 16; 8 at 10 - 11; 30 at
17; 31 at 11 - 12, 13 - 14; 32 at 5.
Petitioner utilized his doctor-patient relationship to
foster the children's confidence and trust and then
further exploited this relationship through the provision
of gifts, such as money and trips to recreational areas.
I.G. Ex. 7 at 6, 8, 10, 19. Such actions by Petitioner
was particularly devious since it took advantage of the
vulnerability of these children and enabled Petitioner to
engage in the illicit sexual misconduct with a minimum of
resistance. The following excerpt from the deposition of
one of Petitioner's victims illustrates this point:
Q. So [Petitioner] reached over and touched your
chest, and then touched you in your privates while
he was driving?
A. Yes.
Q. And how did you feel about that, or what
were you thinking when he was doing that?
A. I was thinking in my mind that maybe [I]
should tell him don't, but if I do maybe he
wouldn't like me any more or something.
I.G. Ex. 31 at 22.
Although the record is replete with evidence that
Petitioner's criminal conviction related to sexual
misconduct involving his patients while in the course
of chiropractic treatment or in other circumstances,
Petitioner contends that the "charges" did not involve
"child abuse" while Petitioner was the children's doctor.
P. Response at 2. The only basis for Petitioner's
assertions is his reliance on the specific wording of the
Trial Information and the admission by Petitioner at his
guilty plea. P. Response at 3. The supporting documents
establish without doubt that Petitioner engaged in the
sexual misconduct either during the course of his
chiropractic practice or as a result of the relationships
with children that evolved from such practice. If it
were not for contacts arising from Petitioner's
chiropractic practice, the children identified in the
documents supporting the conviction would not be the
victims of Petitioner's sexual misconduct.
Petitioner apparently recognizes that his conduct
constituted "abuse," but argues that the specifics
of the Trial Information did not recite such abuse.
P. Response at 3. The shallowness of Petitioner's
argument has already been shown and need not be repeated
again. Moreover, the record reflects reports from
Petitioner's treating analysts which fully describe the
extent of his long-standing sexual addictive disorder,
hebephilia. 5/ I. G. Ex. 24 at 3. Petitioner did not
control his unnatural compulsions toward young males
emanating from his mental disorder. The emotional
turmoil created by Petitioner's sexual molestation is
likely to have had a significant physical and mental
impact on his victims. They were dependent upon him as
a result of his position as their doctor. Due to their
youth and inexperience, they had no reason to question
his motives or behavior. Such dependence and lack of
sophistication was exploited by Petitioner to satisfy his
own sexual fantasies and erotic desires. Recognition of
the harm resulting from Petitioner's abusive conduct is
reflected by the terms of his restitution plan, in which
he agreed to provide each of the recipients of his sexual
misconduct with a $5,000 annuity to use for personal
counseling.
The Iowa Board also recognized the seriousness of
Petitioner's sexual misconduct and the damaging impact
such behavior had on his patients. The Iowa Board
suspended his license with the resumption conditioned on
the successful completion of therapy and a three-year
probationary period during which he would not be allowed
to treat male children under the age of 18 without the
presence of their parents or a staff member. I.G. Ex.
23, 27.
There is overwhelming, uncontroverted, evidence that
Petitioner's conviction related to patient abuse in the
delivery of a health care item or service. Absent
disputed issues of material fact, summary disposition is
appropriate in this case. I conclude, therefore, that
Petitioner was convicted of a criminal offense within the
meaning of section 1128(a)(2) of the Act.
2. The exclusion imposed and directed against
Petitioner is mandated by law.
Sections 1128(a)(2) and 1128(c)(3)(B) of the Act require
the I.G. to exclude individuals and entities from the
Medicare and Medicaid programs for a minimum period of
five years when such individuals and entities have been
convicted of a criminal offense relating to neglect or
abuse of patients in connection with the delivery of a
health care item or service. Congressional intent is
clear from the express language of section 1128(c)(3)(B):
In the case of an exclusion under subsection
(a), the minimum period of exclusion shall be
not less than five years . . .
Where the minimum mandatory exclusion of five years is
applicable by virtue of the statutory requirements having
been met, the I.G. must seek an exclusion of at least
that term of years and I do not have any discretion to
alter it. Accordingly, by virtue of the statutory
requirements, the I.G.'s imposition of a five-year
exclusion of Petitioner is consistent with the
Congressional mandate. 6/
CONCLUSION
Based on the law and undisputed material facts in the
record of this case, I conclude that the I.G. has the
authority to exclude Petitioner from the Medicare and
Medicaid programs for a period of five years, pursuant to
sections 1128(a)(2) and 1128(c)(3)(B) of the Act.
___________________________
Edward D. Steinman
Administrative Law Judge
1.
"State health care program" is defined by section
1128(h) of the Act to cover three types of federally-
financed health care programs, including Medicaid. I use
the term "Medicaid" hereafter to represent all State
health care programs from which Petitioner was excluded.
2.
The I.G. filed 33 exhibits with his briefs, accompanied
by the required declaration. These are admitted into
evidence as I.G. Ex. 1 - 33. Petitioner filed seven
exhibits with his brief, accompanied by the required
declaration. Petitioner submitted his exhibit as
"Exhibit A" and then numbered each document 1 - 7.
However, I have designated the exhibits as P. Ex. 1 - 7
and these are admitted into evidence.
3.
The parties' exhibits and memoranda will be referred
to as follows:
I.G.'s Exhibit I.G. Ex. (number) at (page)
I.G.'s Brief I.G. Brief at (page)
I.G.'s Reply Brief I.G. Reply at (page)
Petitioner's Exhibit P. Ex. (number) at (page)
Petitioner's Response P. Response at (page)
Brief
4.
Although this document is captioned "Information", it
is referred to in the text as a "Trial Information."
5.
This condition has been described as the erotic
attraction to early and mid-pubescent individuals, in
Petitioner's case, an attraction to young males.
P. Ex. 2. Petitioner described his own behavior "as
inappropriate attention and touch to the boys to attempts
to masturbate them, most of his behavior being of a
passive, seductive, albeit abusive nature." P. Ex. 2
at 1.
6.
The evidence supports the conclusion that Petitioner
suffers from a variant of pedophilia (described in DSM-
III-R Code 302.20), a mental illness having significant
and damaging consequences on young children who are the
subject of his deviant, uncontrolled, sexual fantasies.
P. Ex. 2. Petitioner preyed on young males who sought
him out for treatment of health-related problems. It was
within the trust and vulnerability arising from such
relationship that he victimized them. The harm to such
individuals cannot be quantified in monetary terms and
may take many years of psychological counseling to
overcome. Considering that Petitioner's mental illness
is of long-standing duration and chances of recidivism
are great even with therapeutic counseling, an exclusion
of a precise term of years may not adequately protect
recipients and beneficiaries of the program. Nor does
the record suggest that full recovery will occur within
the minimum mandatory exclusion period. Where mental
illness is the prime factor leading to the conduct which
provided the authority for the exclusion, Petitioner
should not be allowed to again become a provider under
the Medicare and Medicaid programs until he demonstrates
that he is mentally competent to treat patients without
risk of resumption of the offending conduct. I do not
have authority to impose such a requirement or other
conditions on Petitioner as part of his exclusion.
See Walter J. Mikolinski, Jr., DAB App. 1156 at 5 - 16
(1990). Fortunately, 42 C.F.R. 1001.132 provides the
I.G. with an opportunity to carefully examine any
application from Petitioner for reinstatement, to ensure
that he no longer poses any risk to program beneficiaries
and recipients.