Jerry D. Harrison, D.D.S., CR No. 203 (1992)

Department of Health and Human Services

DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

In the Case of:
Jerry D. Harrison, D.D.S.,

Petitioner,
- v. -
The Inspector General.

DATE: May 29, 1992

Docket No. C-281

DECISION

This case is governed by section 1128 of the Social Security Act (Act). By letter dated August 1, 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 obtains a valid license to practice dentistry in the State of Iowa.
Petitioner was advised that his exclusion resulted from the surrender of his dental license while a formal
disciplinary proceeding was pending before the Iowa Board of Dental Examiners (Iowa Board). Petitioner
was further advised that his exclusion was authorized by section 1128(b)(4) of the Act. By letter dated
August 10, 1990, Petitioner requested a hearing before an administrative law judge (ALJ), and the case was
assigned to me for hearing and decision.

The I.G. subsequently filed a motion for summary disposition, and Petitioner opposed this motion. In the
I.G.'s March 29, 1991 reply to Petitioner's opposition to his motion for summary disposition, the I.G.
notified this office that, effective March 1, 1991, the California Board of Dental Examiners (California
Board) had revoked Petitioner's dental license and stayed the revocation for five years, based on his
compliance with certain restrictions. The I.G. stated that in light of this recent state action, he modified the
length of Petitioner's exclusion to be until Petitioner successfully completes his California probation and
has his California dental license fully restored.

I deemed this modification of the proposed exclusion by the I.G. as a motion to add a new issue to this
proceeding, pursuant to 42 C.F.R. 498.56, which allows me to give notice of new issues. I further gave
the parties the opportunity to brief this issue.

On May 14, 1991, I issued a Ruling in which I granted the I.G.'s motion to modify the proposed exclusion,
on the grounds that Petitioner had not demonstrated any substantial prejudice by this modification. I also
preliminarily concluded that the I.G. has authority to exclude Petitioner pursuant to section 1128(b)(4)(B)
of the Act. In addition, I concluded that the I.G. had not demonstrated as a matter of law that Petitioner
should be excluded until he obtains full restoration of his license to practice dentistry in the State of
California. I found that there were genuine issues of material fact concerning the issue of Petitioner's
alleged untrustworthiness.

On October 8, 1991, I conducted an in-person hearing in San Francisco, California. On January 29, 1992,
during the period that the post-hearing briefing schedule was in progress, the Secretary of the Department
of Health and Human Services (the Secretary) promulgated new regulations containing procedural and
substantive provisions affecting exclusion cases. I extended the post-hearing briefing schedule to provide
the parties with the opportunity to address the issue of the potential impact of the regulations on this case.

Based on the evidence of record, the parties' arguments, and the applicable law, I conclude that the I.G.'s
determination to exclude Petitioner was authorized by section 1128(b)(4)(B) of the Act. I also conclude
that the new regulations do not govern my decision regarding the reasonableness of the length of the
exclusion. I find that the I.G.'s determination to exclude Petitioner for a minimum period of five years is
reasonable. If at the end of that time California has given him an unrestricted dental license, or at any time
thereafter that California gives him an unrestricted dental license, he may apply for reinstatement as a
Medicare/Medicaid provider. Or, if at the end of the five years another State has given him an unrestricted
dental license, or at any time after the five years that a State gives him an unrestricted dental license, and 1)
he is practicing there; and 2) prior to giving him an unrestricted dental license, that State had examined all
of the legal and factual issues considered by the California Board, then he may apply for reinstatement as a
Medicare/Medicaid provider.

ISSUES

The issues are:

a. Whether the I.G. has the authority to impose an exclusion against Petitioner pursuant to section
1128(b)(4) of the Act.

b. If the I.G. has the authority, whether the modified period of exclusion imposed and directed
against Petitioner by the I.G. is reasonable.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

1. Petitioner was licensed to practice dentistry in the State of Iowa on July 1, 1968. I.G. Ex. 1/1.

2. Subsequent to receiving his Iowa dental license, Petitioner received orthodontic training and he began to
practice as an orthodontist in Iowa in June 1970. Tr. 149-150.

3. On November 17, 1989, the Iowa Board filed a Statement of Charges alleging Petitioner sexually
abused five different children during the period from 1978 to 1984. I.G. Ex. 1/2.

4. In the face of these charges, on April 16, 1990, Petitioner signed a Stipulation and Consent Order
(Consent Order) in which he surrendered his Iowa dental license. I.G. Ex. 2/3.

5. In the April 16, 1990 Consent Order, Petitioner admitted to sexually abusing four of the five children
during the period from 1978 to 1981, with the understanding that the sexual abuse did not occur while
Petitioner was performing dental services to the children. I.G. Ex. 2/2; FFCL 3.

6. 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. 21662, May 13, 1983.

7. Section 1128(b)(4)(B) of the Act authorizes exclusions from the Medicare and Medicaid programs for
any individual or entity who surrendered a license while a formal disciplinary proceeding was pending
before a State licensing authority and the proceeding concerned the individual's or entity's professional
competence, professional performance, or financial integrity.

8. On August 1, 1990, pursuant to section 1128(b)(4)(B) of the Act, the I.G. excluded Petitioner from
participating in the Medicare program and directed that he be excluded from participating in Medicaid until
he obtains a valid license to practice medicine in Iowa.

9. On July 30, 1984, Petitioner was issued a license to practice dentistry in the State of California. I.G. Ex.
2/3.

10. On September 21, 1984, Petitioner was issued a license to practice dentistry in the State of
Washington. I.G. Ex. 2/3.

11. Effective March 1, 1991, the California Board revoked Petitioner's license and stayed the revocation
for five years, based on certain restrictions, including the successful completion of a period of probation to
last at least five years. I.G. Ex. 8.

12. On March 29, 1991, the I.G. notified Petitioner that he modified the length of Petitioner's exclusion to
be until Petitioner successfully completes the California probation and his California dental license is fully
restored. I.G. March 29, 1991 Prehearing Reply Brief.

13. On September 13, 1991, the Washington Board issued a decision revoking Petitioner's dental license,
but staying the revocation indefinitely and placing Petitioner on probation with certain conditions,
including that he comply with the conditions established by the California Board. I.G. Ex. 17.

14. Petitioner admitted that he surrendered his license to provide health care while a formal disciplinary
proceeding was pending before a State licensing authority, within the meaning of section 1128(b)(4)(B) of
the Act. January 7, 1991 Prehearing Order.

15. The formal disciplinary proceeding concerned Petitioner's professional competence and his
professional performance within the meaning of section 1128(b)(4)(B) of the Act. FFCL 3-5.

16. The I.G. had authority to exclude Petitioner pursuant to section 1128(b)(4)(B) of the Act. FFCL 7, 14-
15.

17. Section 1128(b)(4)(B) of the Act does not establish a minimum or a maximum term of exclusion.

18. The Secretary did not intend that the regulations promulgated on January 29, 1992, concerning
permissive exclusions under section 1128(b) of the Act, 42 C.F.R. 1001 Subpart C, apply retroactively to
appeals of I.G. exclusion determinations that were pending before ALJs at the time the regulations were
promulgated.

19. The remedial purpose of section 1128 of the Act is to protect the integrity of federally-funded health
care programs and the welfare of beneficiaries and recipients of such programs from individuals and
entities who have been shown to be untrustworthy.

20. Petitioner's surrender of his dental license in the face of charges, and where he had the opportunity to
defend himself against such charges, creates a presumption that he is as untrustworthy as an individual who
loses his or her license after litigating the issue of his or her professional competence or professional
performance. S. Rep. No. 109, 100th Cong., 1st Sess. 2-4, 7, reprinted in 1987 U.S. Code Cong. & Admin.
News 682, 684, 688.

21. The four boys Petitioner admitted abusing during the period from 1978 to 1981 were 12, 13, or 14
years old. Tr. 195-196.

22. The four boys Petitioner admitted abusing during the period from 1978 to 1981 were children of close
friends of Petitioner. Tr. 158, 183, 241-242.

23. Petitioner abused alcohol from 1978 to 1981, and this alcohol abuse was a contributing factor in
Petitioner's sexual abuse of the four boys during this period. Tr. 156-157.

24. Petitioner did not stop abusing the children of his close friends until he was confronted by the parents
of some of the victims. Tr. 151.

25. Petitioner did not seek professional psychological treatment for his problem until May 1983, when
parents of some of the victims decided that it was necessary that he do so. Tr. 151-152.

26. Petitioner's therapist reported Petitioner's sexual misconduct to the Department of Social Services. Tr.
159-160.

27. Petitioner began to exhibit classic signs of a manic episode during the period the Department of Social
Services was investigating his sexual misconduct. I.G. Ex. 11/3; Tr. 163.

28. Petitioner's friends involuntarily committed him to a mental institution in July 1983. I.G. Ex. 11/3; Tr.
162.

29. During the course of his hospitalization, Petitioner was diagnosed as having a manic depressive illness
(bipolar disorder). I.G. Ex. 11/3.

30. On the day before he was hospitalized, Petitioner engaged in sexually inappropriate behavior with a
12-year-old boy who lived in his neighborhood. Tr. 203-204.

31. Petitioner was discharged from the mental institution in August 1983, and he returned to work as a
dentist. I.G. Ex. 11/3; Tr. 167-169.

32. In February 1984, an adolescent Petitioner met while he was in the hospital accused Petitioner of
sexually abusing him. Petitioner has consistently denied these charges, and the record does not contain
sufficient evidence to prove that these allegations are true. Tr. 167-169.

33. Petitioner stopped practicing dentistry in 1984, and he did not work again as a dentist until 1988.
During the period Petitioner did not work, he received disability payments for his manic depressive illness.
I.G. Ex. 2/3; Tr. 171-175.

34. Petitioner has received continuous psychiatric treatment from 1983 until the present. I.G. Exs. 8/4, 11.

35. Petitioner was treated with lithium, an antimanic drug, from 1983 to 1986. I.G. Ex. 11/3.

36. Petitioner was the victim of sexual abuse as a child on repeated occasions. I.G. Ex. 11/4; Tr. 160.

37. Petitioner admits to engaging in repeated incidents of sexual misconduct involving five different boys,
aged 12 to 14 years, over a period of five years. FFCL 5, 30.

38. Petitioner's pattern of sexual misconduct during the period from 1978 to 1983 meets the diagnostic
criteria for the mental disorder known as pedophilia, established by the American Psychiatric Association,
as set forth in the 1987 Diagnostic and Statistical Manual of Mental Disorders. I.G. Ex. 15; Tr. 114.

39. Individuals who were victims of sexual abuse as children are predisposed to suffering from pedophilia
when they become older. I.G. Ex. 15.

40. Pedophilia is known to have a high recidivism rate, particularly when the abuse involves children of
the same sex. I.G. Ex. 15.

41. There are no allegations that Petitioner has engaged in sexual misconduct since 1984. FFCL 32.

42. There is no evidence that Petitioner is now abusing alcohol. P. Ex. 2/8.

43. Petitioner feels remorse for his sexual offense, and he has expressed concern for his victims' welfare.
Tr. 179-180; 213.

44. Petitioner's manic depressive illness is now in remission. I.G. Ex. 11/8.

45. The expert medical opinion evidence establishes that Petitioner is unlikely to have another manic
episode in the future. Tr. 139.

46. The expert opinion evidence establishes that Petitioner is unlikely to sexually abuse adolescent boys in
the future. Tr. 127; P. Ex. 2/8; I.G. Ex. 11/8-9.

47. The expert opinion evidence establishes that Petitioner should continue to remain under psychiatric
care for at least two years. Tr. 144; P. Ex 2/8; I.G. Ex. 11/9.

48. Petitioner's treating therapist is unable to guarantee that Petitioner will not have another manic episode
and that he will not sexually abuse children in the future. Tr. 139, 144.

49. Were Petitioner to have another manic episode, there is a good possibility that he will sexually abuse
children. Tr. 144.

50. A lengthy exclusion is reasonable in this case to protect program beneficiaries and recipients, even if
there is only a slight risk that Petitioner might sexually abuse patients, because such abuse, if it occurred,
would greatly endanger the welfare and safety of such persons.

51. The remedial purpose of section 1128 of the Act is satisfied by the following exclusion: Petitioner is
excluded for not less than five years. If at the end of that time California has given him an unrestricted
dental license, or at any time thereafter that California gives him an unrestricted dental license, he may
apply for reinstatement as a Medicare/Medicaid provider. Or, if at the end of the five years another State
has given him an unrestricted dental license, or at any time after the five years that a State gives him an
unrestricted dental license, and 1) he is practicing there; and 2) prior to giving him an unrestricted dental
license, that State had examined all of the legal and factual issues considered by the California Board, then
he may apply for reinstatement as a Medicare/Medicaid provider.


RATIONALE

1. Petitioner surrendered his license to provide health care while a formal disciplinary proceeding was
pending before a State licensing authority which concerned his professional competence, professional
performance, or financial integrity, within the meaning of section 1128(b)(4)(B) of the Act.

The I.G. excluded Petitioner from participating in Medicare and directed that he be excluded from
participating in Medicaid pursuant to section 1128(b)(4) of the Act. Subsection (B) of that provision
authorizes the Secretary, or his delegate, the I.G., to impose and direct exclusions against any individual or
entity who:

surrendered . . . a license [to provide health care] while a formal disciplinary proceeding was
pending before . . . [any State licensing] authority and the proceeding concerned the individual's or entity's
professional competence, professional performance, or financial integrity.

The I.G.'s authority to impose and direct an exclusion under 1128(b)(4)(B) is based upon fulfillment of the
following statutory criteria: (1) surrender of a license to provide health care, (2) while a formal
disciplinary proceeding is pending before any State licensing authority, (3) which concerns the individual's
or entity's professional competence, professional performance, or financial integrity.

The uncontested facts show that on November 17, 1989 the Iowa Board filed a Statement of Charges based
on Petitioner's alleged sexual abuse of, or attempt to sexually abuse, five children who were patients in his
dental practice. I.G. Ex. 1. On April 16, 1990, Petitioner and the Iowa Board agreed to a Consent Order in
which Petitioner admitted to sexually abusing four of the five children described in the Statement of
Charges, with the understanding that such conduct did not occur while Petitioner was performing dental
services. Petitioner stipulated that the alleged conduct occurred from at least 1978 to 1981; that he was
involuntarily admitted to Mercy Health Center from July 1983, until August 1983; and that due to his
mental condition he did not practice dentistry and received disability insurance payments from February
23, 1984 through March 21, 1988. I.G. Ex. 2.

The Consent Order stated that Petitioner's disciplinary hearing would not be held and that Petitioner agreed
to surrender his Iowa dental license, "in order to resolve the pending disciplinary proceeding against him."
The Consent Order further noted that the surrender of Petitioner's Iowa dental license constitutes
disciplinary action. I.G. Ex. 2/3.

Petitioner does not dispute that the first two statutory criteria set forth in section 1128(b)(4)(B) of the Act
are met in this case. He admitted during the December 14, 1990 prehearing conference that: (1) he
surrendered his license to provide health care; (2) while a formal disciplinary proceeding was pending
before a State licensing authority. January 7, 1991 Prehearing Order. I conclude that the record supports
this admission.

However, Petitioner vigorously disputes that the formal disciplinary proceeding concerned his professional
competence or performance. According to Petitioner, the evidence presented at the hearing establishes that
Petitioner did not meet the children he abused through his dental practice and that he did not rely on his
professional contacts for sexual satisfaction. Instead, Petitioner asserts that he had established close ties
with the parents of each of the affected children and with the children themselves long before they became
his dental patients. Petitioner also asserts that none of the incidents of abuse occurred in Petitioner's dental
office or in the course of his delivery of dental treatment to these patients. According to Petitioner, it was
"fortuitous" that the victims of his sexual abuse also happened to be his patients. P. Posth. Br. 2. Petitioner
avers that the incidents of sexual abuse "had absolutely nothing to do with the fact that, on occasion, these
adolescents may have received dental services from [Petitioner]." P. Posth. R. Br. 3. Petitioner argues that
the Iowa license disciplinary proceeding did not relate to his professional competence or performance
because the incidents of sexual abuse were not connected with the victims' status as dental patients. P.
Posth. Br. 3.

The I.G. does not dispute Petitioner's characterization of the facts regarding how Petitioner met the children
he abused and where the abuse occurred. Instead, he argues that these facts are irrelevant to the issue of
whether the Iowa disciplinary proceeding related to Petitioner's professional competence or performance.
The I.G. argues that sexual misconduct with children who were patients in Petitioner's practice concerned
Petitioner's professional competence and performance. According to the I.G., it makes no difference where
the abuse occurred or how Petitioner initially met the victims. I.G. Posth. R. Br. 1-4.

I agree with the I.G. that I do not need to find that Petitioner abused children in the course of treating them
in his dental office or that he met these children through his dental practice in order to conclude that the
Iowa disciplinary proceeding related to Petitioner's professional competence or performance. While the
presence of these factors would be additional evidence for concluding that Petitioner's sexual offenses
related to his professional competence and performance, they are not determinative.

The medical evidence of record establishes that Petitioner's pattern of sexual offenses fits the diagnostic
criteria for the mental disorder known as pedophilia, established by the American Psychiatric Association.
I.G. Ex. 15; Tr. 114. The medical evidence also establishes that Petitioner's sexual misconduct was related
to a mental condition which resulted in his involuntary commitment to a psychiatric hospital for several
weeks in July and August of 1983. Petitioner was disabled from this mental condition and did not practice
dentistry during the years from 1984 to 1988. Petitioner was diagnosed as suffering from a manic-
depressive illness, otherwise known as a bipolar disorder, at the time of his hospitalization in 1983. I.G.
Exs. 2, 11/3.

Stephen C. Hansen, Ph.D., a psychotherapist who evaluated Petitioner in 1989 at the request of the Iowa
Board, testified at the October 8, 1991 hearing before me that, in his opinion, Petitioner's sexual
misconduct was due to a bipolar disorder. Dr. Hansen opined that during the period that Petitioner
engaged in the sexual abuse, he was in a "hypomanic" phase of his illness. According to Dr. Hansen,
hypomanic behavior is characterized by impulsive behavior where an individual may engage in conduct
without thinking and take risks that normally would not be taken. Dr. Hansen stated that hypomanic
behavior can go on for a period of years without being diagnosed, and he expressed the view that
Petitioner's sexual improprieties were a manifestation of this hypomanic behavior. Dr. Hansen also
explained that hypomanic behavior can devolve into an "actual manic episode" which usually does not go
unnoticed. Tr. 66, 92, 106-107, 115, 122, 127; P. Ex. 4.

I infer from this medical evidence that Petitioner's sexual misconduct during the period of 1978 to 1983
was a manifestation of his underlying manic-depressive illness which resulted in his hospitalization in
1983. It is obvious that a dentist afflicted with this mental disorder would have his ability to practice
dentistry significantly adversely affected. There is no question that such a condition could be disabling and
cause a dental practitioner to be unable to continue to practice his profession. This happened to Petitioner,
as demonstrated by the fact that he did not practice dentistry and received disability payments for a period
of four years from 1984 to 1988.

The terms "professional competence" and "professional performance" are not defined in section
1128(b)(4)(B). However, the plain meaning of the terms encompasses the ability to practice a licensed
service with reasonable skill and safety. Petitioner's mental illness jeopardizes the well-being and safety of
children who are his patients, and it impairs his ability to practice dentistry with reasonable skill and safety.
There is a nexus between Petitioner's mental illness, his abuse of minor patients, and his ability to function
as dentist. This nexus is evidenced by the fact that the California Board ordered Petitioner to undergo a
psychiatric evaluation regarding his judgment and/or ability to function as a dentist in accordance with
safety to the public. I.G. Ex. 8. In view of the foregoing, I conclude that Petitioner's "professional
competence" and "professional performance" were at issue in the Iowa disciplinary proceeding, within the
meaning of section 1128(b)(4)(B) of the Act.

II. The reasonableness of the I.G's exclusion

Having concluded that the I.G. has authority to exclude Petitioner, I must next consider whether the length
of the exclusion imposed and directed against Petitioner is reasonable. On January 29, 1992, the Secretary
published regulations which, among other things, establish criteria to be employed by the I.G. in
determining the length of exclusions to be imposed pursuant to section 1128(b)(4) of the Act. 42 C.F.R.
1001.501. These regulations also include provisions which govern appeals of such exclusions. 42 C.F.R.
Part 1005. In considering the issue of the reasonableness of the length of the exclusion, the threshold
question is whether these regulations apply to this case.

A. The new regulations promulgated on January 29, 1992, do not govern the disposition of this case.

The I.G. asserts that the regulations promulgated January 29, 1992 apply to any exercise of ALJ authority
on and after that date. The I.G. asserts, therefore, that all cases pending on January 29, 1992 are controlled
by the new regulations. The I.G. also cites sections 1005.4(c)(1) and (5) to argue that I have no authority
to find the regulations invalid or to review the I.G.'s exercise of discretion to exclude or to review the scope
or effect of such exclusion. According to the I.G., the authority of the ALJ is limited to determining
whether the I.G. had the legal authority to exclude Petitioner. If it is decided that the I.G. had the legal
authority to exclude Petitioner, the regulations prohibit any further inquiry into the length of the exclusion
chosen by the I.G. The I.G. avers, therefore, that I must affirm the I.G.'s exclusion in this case and that I do
not have the authority to reduce it under the new regulations. I.G. Regulations Brief 3, 5.

In opposition, Petitioner contends that the new regulations do not apply to this case because they were not
in effect at the time that the I.G. made his exclusion determination. P. Posth. Br. 10.

I find that these regulations are not applicable to cases pending as of the effective date, January 29, 1992.
To the extent that the regulations deprive parties of the opportunity for a full hearing as to the
reasonableness of their exclusions, those regulations would, if applied to determinations made prior to the
regulations' effective date, strip parties of previously vested rights under sections 1128(b) and 205(b)(1) of
the Act. There is nothing in the regulations which can be interpreted as a directive to apply them in a way
which would produce such a consequence. Such an application would create manifest injustice and would
be an unlawful retroactive application of the new regulations, a result not intended by the Secretary. I have
previously addressed this issue in depth in my decision in Charles J. Barranco, M.D., DAB CR187 at 16-27
(1992). For purposes of this case, I incorporate the rationale in Barranco that Petitioner's hearing rights
would be substantially adversely affected and it would be manifestly unjust to apply the new regulations to
this case.

Moreover, the Court of Appeals for the Fourth Circuit held in Varandani v. Bowen, 284 F. 2d 307, 312-
313 (4th Cir. 1987), that regulations implementing section 1156 of the Act would not apply retroactively
even where the new regulations arguably place the excluded party in a better position to defend against the
I.G.'s exclusion. As here, the new regulations at issue in Varandani specified an effective date and were
silent on the issue of retroactivity. In such circumstances, the court applied the "usual rule that laws are not
retroactive unless they expressly so provide". Id. at 312.

Even assuming arguendo that the new regulations apply to this proceeding, there remains the question of
whether Part 1001 is binding on a hearing held under section 205(b)(1) of the Act. As I stated in Barranco,
I conclude that the regulations contained in Part 1001 were not intended to provide binding criteria for
evaluating the reasonableness of an exclusion at the level of an administrative hearing. The essence of my
position is that there is no legislative history or DAB precedent in section 1128(b) permissive exclusion
cases to support the application of minimum specified periods of exclusion. While the new regulations
arguably reflect the Secretary's intent to have such minimum exclusions apply in permissive cases, the
preamble and comments to the new regulations, as well as the regulations themselves, when considered in
relation to the applicable legislative history and DAB precedent, strongly suggest that the Secretary
intended that Subpart C, pertaining to permissive exclusions, only applies to the I.G.'s decision to exclude,
and did not intend to abrogate any of the hearing rights afforded providers under section 205(b)(1) of the
Act. Barranco, DAB CR187 at 24-27. Until an appellate panel interprets these regulations as the I.G.
contends, I shall continue to apply them consistent with my obligation under the Act to consider a myriad
of facts needed to determine, as in this case, the length of time necessary to establish that Petitioner is not
likely to repeat the type of conduct which precipitated his exclusion. Robert Matesic R. Ph. d/b/a
Northway Pharmacy, DAB 1327 at 12 (1992).

B. The remedial purpose of section 1128 of the Act is satisfied by the following exclusion: Petitioner is
excluded not less than five years. If at the end of that time California has given him an unrestricted dental
license, or at any time thereafter that California gives him an unrestricted dental license, he may apply for
reinstatement as a Medicare/Medicaid provider. Or, if at the end of the five years another State has given
him an unrestricted dental license, or at any time after the five years that a State gives him an unrestricted
dental license, and 1) he is practicing there; and 2) prior to giving him an unrestricted dental license, that
State had examined all of the legal and factual issues considered by the California Board, then he may
apply for reinstatement as a Medicare and Medicaid provider.

In deciding whether an exclusion under section 1128(b)(4) is reasonable, I must analyze the evidence of
record in light of the exclusion law's remedial purpose. Lakshmi N. Murty Achalla, M.D., DAB 1231
(1991).

Section 1128 is a civil statute and Congress intended it to be remedial in application. The remedial purpose
of the exclusion law is to enable the Secretary to protect federally-funded health care programs from
misconduct. Such misconduct includes fraud or theft against federally-funded health care programs. It
also includes neglectful or abusive conduct against program beneficiaries and recipients. See, S. Rep. No.
109, 100th Cong., 1st Sess. 1, reprinted in 1987 U.S. Code Cong. and Admin. News 682.

When considering the remedial purpose of section 1128, the key term to keep in mind is "protection", the
prevention of harm. Through exclusion, individuals who have caused harm, or demonstrated that they may
cause harm, to the federally-funded health care programs or their beneficiaries or recipients are no longer
permitted to receive reimbursement for items or services which they provide to program beneficiaries or
recipients. Thus, untrustworthy providers are removed from positions which provide a potential avenue for
causing future harm to the program or to its beneficiaries or recipients.

No statutory minimum mandatory exclusion period exists in cases where the I.G.'s authority arises from
section 1128(b)(4)(B). By not mandating that exclusions from participation in the programs be permanent,
however, 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. Achalla, DAB 1231.

The hearing is, by reason of section 205(b)(1) 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. Evidence which relates to a provider's trustworthiness or
the remedial objectives of the exclusion law is admissible at an exclusion hearing even if that evidence is of
conduct other that which establishes statutory authority to exclude a provider.

I do not, however, substitute my judgment for that of the I.G. An exclusion determination will be held to
be reasonable where, given the evidence in the case, it is shown to fairly comport with legislative intent.
"The word `reasonable' conveys the meaning that . . . [the I.G.] is required at the hearing only to show that
the length of the [exclusion] determined . . . was not extreme or excessive." (Emphasis added.) 48 Fed.
Reg. 3744.

The determination of when an individual should be trusted and allowed to reapply to the I.G. for
reinstatement as a provider in the Medicare and Medicaid programs is a difficult issue. It involves
consideration of multiple factual circumstances. The appellate panel in Matesic provided a listing of some
of these factors, which include:

the nature of the offenses committed by the provider, the circumstances surrounding the offense,
whether and when the provider sought help to correct the behavior which led to the offense, how far the
provider has come toward rehabilitation, and any other factors relating to the provider's character and
trustworthiness.

Matesic, DAB 1327 at 12.

It is evident that in evaluating these factors I must attempt to balance the seriousness and impact of the
offense with existing factors which may demonstrate trustworthiness. The totality of the circumstances of
each case must be evaluated in order to reach a determination regarding the appropriate length of an
exclusion.

The uncontroverted evidence in this case establishes that on November 17, 1989, the Iowa Board filed a
Statement of Charges alleging that Petitioner sexually abused children who were patients in his dental
practice. Although Petitioner was entitled to a hearing on these charges before his license could be
revoked, he chose not to contest the allegations against him. Instead, he admitted to sexually abusing four
of the five children described in the Statement of Charges. I.G. Exs. 1, 2. Petitioner surrendered his Iowa
dental license, and agreed not to reapply for licensure in the State of Iowa. The fact that Petitioner
surrendered his dental license in the face of charges of wrongdoing, and in circumstances where he had the
opportunity to defend himself, raises a presumption that he cannot be trusted to care for Medicare and
Medicaid beneficiaries and recipients. John W. Foderick, M.D., DAB CR43 at 5 (1990).

The nature and gravity of Petitioner's offenses is also reflected in actions taken by licensing authorities in
the States of California and Washington. In a decision which became effective on March 1, 1991, the
California Board revoked Petitioner's dental license, but stayed the revocation for five years under certain
conditions, including the condition that Petitioner successfully comply with the probation program
established by the California Board for at least five years. These conditions also include the requirements
that Petitioner undergo a psychiatric examination by a psychiatrist approved by the California Board for
the purpose of evaluating Petitioner's ability to function as a dentist in accordance with safety to the public
and that Petitioner undergo psychiatric treatment if the evaluating psychiatrist determines that this is
necessary. These requirements show that, in the eyes of the California Board, Petitioner suffered from a
mental condition which needed to be monitored. The California Board also prohibited Petitioner from
treating children under eight years of age and required that a third party be present during the treatment of
all patients between the ages of eight and eighteen. These requirements show that the California Board
perceived Petitioner to be threat to his minor patients. I.G. Ex. 8.

Similarly, on September 13, 1991, the Washington Board issued a decision revoking Petitioner's dental
license, but staying the revocation indefinitely and placing Petitioner on probation with certain conditions,
including that he comply with the conditions established by the California Board. This decision shows that
the Washington Board concurred with the California Board's opinion that Petitioner's offenses were serious
and that he requires continuing supervision. I.G. Ex. 17.

Petitioner admits that he sexually abused four children during the period from 1978 to 1981. I.G. Ex. 2.
Petitioner also admits that the children he abused were 12, 13, or 14 years old. Tr. 195-196.

According to the American Psychiatric Association's diagnostic criteria for the sexual disorder of
pedophilia, the essential feature of this disorder is recurrent, intense, sexual urges and sexually arousing
fantasies, of at least six months duration, involving sexual activity with a prepubescent child. The age of
the child is generally 13 or younger. The age of the person with pedophilia is set at age 16 years or older
and at least five years older that the child. People with pedophilia who are attracted to girls usually prefer
eight-to-ten-year old children and those attracted to boys usually prefer slightly older children. The
disorder usually begins in adolescence, although some people with pedophilia report that they did not
become aroused by children until middle age. 1987 Diagnostic and Statistical Manual of Mental Disorders,
Third Edition-Revised (DSM-III-R) at 284-285. [I.G. Ex. 15.]

It is evident from Petitioner's admissions of sexual misconduct that Petitioner repeatedly engaged in sexual
misconduct with four different children aged 12, 13, or 14, over a protracted period of several years. This
pattern of behavior meets the 1987 DSM-III-R diagnostic criteria for pedophilia. In addition, the 1987
DSM-III-R states that a predisposing factor for pedophilia is that many people with pedophilia were
themselves victims of sexual abuse in childhood. The evidence shows that Petitioner was molested as a
child by older children and that he was molested by an adult when he was in the eighth or ninth grade. I.G.
Ex. 11/4; Tr. 160.

The fact that Petitioner's conduct meets the diagnostic criteria for pedophilia is disturbing because the
course of this disorder is usually chronic, especially in those attracted to the same sex. The DSM-III-R
states that the recidivism rate for people with pedophilia involving a preference for the same sex is roughly
twice that of those who prefer the opposite sex. I.G. Ex. 15. Based on information contained in the DSM-
III-R, Petitioner is at risk for repeating his sexual misconduct because of the chronic nature of pedophilia
and the fact that Petitioner's abuse involved children of the same sex.

During the October 8, 1991 hearing, Petitioner testified that the four children he admitted to abusing when
he signed the Iowa Consent Order were children of his close friends. Petitioner stated that his friendship
with the parents of two of the children went back to his days in graduate school, before the children were
born. He knew one of the boys since he was three or four years old, and the other boy he had known for
three to four years before the sexual misconduct took place. Petitioner stated that the children were "like
family" and that he was "like an uncle" to them. Tr. 158, 183, 241-242. This is troubling because it shows
that Petitioner is capable of taking advantage of the trust a child feels towards a close family friend in order
to gain sexual access to that child. Petitioner also violated the trust inherent in the longstanding and close
friendship between him and the parents of the children. His conduct shows that he is capable of placing the
satisfaction of his sexual desires above the health and safety of the children of his close friends.

Petitioner testified that his consumption of alcohol was a contributing factor in these incidents of abuse.
Petitioner stated that during the period these incidents took place between 1978 and 1981, he was a
"borderline alcoholic". Tr. 156-157. Petitioner testified that while he has "wine at dinner" and "a
Margarita after a round of golf", he no longer engages in the "binge drinking" that he has done in the past.
Tr. 242-244. Although there is no evidence that Petitioner abuses alcohol at present, his history of alcohol
abuse is disturbing. Given his history of problems with controlling his drinking in the past, Petitioner is at
risk for abusing alcohol in the future. Were Petitioner to relapse and again engage in drinking binges, he
would also be at risk for repeating his sexual misconduct.

Petitioner did not on his own initiative seek help to end the sexual abuse of his friends' children. Petitioner
testified that in December of 1981 he was "confronted" by the parents of some of the victims regarding his
sexual encounters with their children. To his credit, Petitioner admitted his behavior to the parents at that
time. Tr. 151. For the next year and a half, Petitioner and the families of the victims decided to keep the
matter "private". It was not until May of 1983, when one of the families "decided that I needed to seek
some professional help with regards to my problem", that Petitioner actually sought professional
counseling for his condition. Tr. 152.

The record shows that in May of 1983 Petitioner began receiving psychiatric treatment with a family
therapist referred to him by one of the parents involved in the matter. Tr. 151. This therapist then brought
the matter to the attention of the Department of Social Services, and an investigation ensued. Tr. 159-160.
Petitioner stated that this investigation turned out to be a "God-awful situation" because many of his friends
were shocked at learning about his misconduct when the authorities started interviewing them. I.G. Ex.
11/3. During this period, Petitioner began to exhibit "all the classic signs" of manic episodes. He was not
sleeping, had grandiose ideas, and was saying wild things. Tr. 163. As a result, in July 1983, his friends
involuntarily committed him to a mental institution, where he was diagnosed as having a manic-depressive
illness (bipolar disorder). Tr. 162, I.G. Ex. 11/3.

Petitioner testified that the day before he was committed to the mental institution, there was another
incident of sexual misconduct involving a 12-year-old boy who lived in his neighborhood. Petitioner
admitted that he asked this boy to pull his swim trunks down, but stated that he did not sexually manipulate
him. Tr. 203-204. In describing this incident, Petitioner stated that he "was definitely not in a normal state
at that time". Tr. 196-197; 203-204. This occurrence of sexual misconduct is troubling because it
happened two and a half years after the incidents involving the four other boys during the period from
1978 to 1981. This incident suggests that Petitioner's sexual misconduct is episodic in nature, and that
Petitioner has a propensity to repeat this misconduct even after relatively long periods when he kept his
sexual impulses under control. This incident also suggests that Petitioner is particularly at risk for
engaging in this type of misconduct in the event that he ever experiences another manic phase of his
bipolar disorder.

Petitioner was discharged from the hospital in August 1983, and he returned to his Iowa dental practice.
However, in February of 1984, an adolescent he met while he was in the hospital accused him of molesting
him. Petitioner vehemently denied the allegation, and the case was never prosecuted. Tr. 167-169. The
record does not contain sufficient evidence to prove that Petitioner actually perpetrated this sexual abuse as
alleged, and I am not convinced that these allegations are true. Therefore, it is not possible for me to draw
meaningful inferences as to Petitioner's trustworthiness from this alleged episode.

Petitioner's partner in his dental practice told Petitioner that he no longer wanted to associate with
Petitioner professionally after he heard about these allegations in 1984. This prompted Petitioner to sell his
practice, and from 1984 to 1988 he was on medical disability for his manic depressive illness. During this
period, Petitioner left Iowa, and he obtained his license to practice dentistry in the States of Washington
and California. Petitioner eventually settled down in California, and he began practicing as an orthodontist
in California in 1988. Tr. 169, 171, 172, 175, 224; I.G. Ex. 2.

The record shows that after Petitioner was released from the hospital in 1983, he continued to receive
psychiatric care from a physician named Dr. Plekenbrock. During his hospitalization, Petitioner was
treated with lithium, an antimanic drug, and he continued to take this medication from 1983 to 1986.
Petitioner testified that, in the fall of 1984, he learned that one of the boys he had abused had been
committed to a mental institution. Petitioner stated that he felt responsible for this boy's mental problems,
and that this impressed on him the importance of treating his mental condition so that he would not hurt
other children. Even after he sold his practice and relocated, Petitioner testified that he continued to return
to Iowa every few weeks to receive treatment from Dr. Plekenbrock and he regularly consulted with him
by telephone. Petitioner was subsequently evaluated by Stephen C. Hansen, Ph.D., in September 1989, at
the request of the Iowa Board, and he began to regularly receive psychotherapy from him up until the
present. I.G. Ex. 11/3; P. Ex. 4; Tr. 171, 179-180, 221-223, 230.

These facts show that Petitioner has a history of serious mental illness. His condition was so serious in
1983 that he was involuntarily committed to a mental institution for approximately a month. Subsequent to
his hospitalization, Petitioner took lithium for three years to control his condition. He was also disabled
from working for four years due to his mental illness, and he has remained under psychiatric care from
1983 to the present.

While Petitioner acknowledges that his sexual misconduct was serious and that it is related to serious
psychological problems, he contends that "he has done everything possible to come to terms with what he
did and to rehabilitate himself." P. Posth. Br. 4. Petitioner argues that the incidents of sexual abuse were
the result of an unusual set of circumstances, which included a difficult breakup of a relationship that he
had with a woman for three years, alcohol abuse, and psychological problems. Petitioner contends that he
has addressed these problems and that the exclusion imposed by the I.G. is excessive in view of the fact
that there have been no recurrences of sexual incidents with minors since Petitioner's hospitalization in
1983. In addition, Petitioner contends that the psychological evidence establishes that he is not now a
danger to the patients he treats. P. Posth. Br. 1-2, 10.

Dr. Hansen, Petitioner's treating psychologist, testified at the hearing that while Petitioner's sexual
misconduct technically falls within the 1987 DSM-III-R diagnostic criteria for pedophilia, there are factors
which would militate against defining Petitioner as a "true" pedophile. According to Dr. Hansen,
pedophiles typically do not express remorse for their actions, and they do not feel concern for their victims.
In addition, pedophiles typically exhibit pedophilia in adolescence and this is a pattern of behavior that
continues throughout adulthood. Dr. Hansen also stated that the primary sexual preference for a pedophile
is prepubescent children. Tr. 68-69, 108, 114, 121-123.

Dr. Hansen opined that Petitioner did not fit this profile because he has expressed guilt for his misconduct
and concern for the victims' welfare. Dr. Hansen also stated that there is no evidence that Petitioner
engaged in sexual misconduct before he reached middle age and that this misconduct was not a long term
pattern that continued throughout Petitioner's lifetime. Dr. Hansen characterized Petitioner's misconduct as
being "episodic" in nature, and he expressed the view that the primary cause of Petitioner's sexual
misconduct was his manic depressive illness. Tr. 68-69, 109, 117, 127. Dr. Hansen stated that he does not
believe that Petitioner has a sexual interest in boys at this time. He testified that since Petitioner's manic
depressive illness has been in remission for several years, he does not believe that it is likely that there will
be a recurrence of Petitioner's sexual misconduct with boys. Tr. 127.

John E. Hannon, Ph.D., administered psychological tests on Petitioner in conjunction with Dr. Hansen's
initial evaluation of Petitioner in 1989. In a report dated November 7, 1989, Dr. Hannon agreed with Dr.
Hansen's assessment that there is no longer a "significant risk" that Petitioner will molest children. P. Ex.
2/8.

Dr. Bruce T. Kaldor, a board-certified psychiatrist, evaluated Petitioner in 1991, at the request of the
California Board. In a report dated April 3, 1991, Dr. Kaldor agreed with Dr. Hansen that Petitioner
suffered from a manic depressive illness which is now in remission. Dr. Kaldor concluded that Petitioner
is not now suffering from a mental disorder which would impair his ability to practice dentistry safely. He
stated that Petitioner has insight into his sexual deviance, "which had multiple determinants of which many
are no longer present." I.G. Ex. 11/8-9.

The expert medical opinion in this case is consistent in stating that Petitioner has suffered from serious
mental illness, but that he has benefitted from psychiatric treatment. The medical evidence is also
consistent in stating that Petitioner has been rehabilitated to the degree that he is now unlikely to molest
boys under his care. However, Drs. Hansen, Hannon, and Kaldor all qualify this assertion by
recommending that Petitioner continue to remain under psychiatric care. Dr. Hansen recommended that
Petitioner continue to receive psychiatric treatment for "a minimum" of two years. Tr. 144. Dr. Hannon
stated that it was important for Petitioner "to enter into a longstanding psychotherapy experience". P. Ex.
2/8. Dr. Kaldor recommended that Petitioner receive psychotherapy "over the next two years" to "reduce
the unlikely risk of emotional regression accompanied by inappropriate sexual behavior." I.G. Ex. 11/9.

Implicit in these repeated recommendations that Petitioner continue to receive psychiatric care is a tacit
admission that Petitioner has not been completely cured of his mental problem. I infer from this that while
the risk that Petitioner will molest children in the future may be low, there is still some risk that this
behavior will recur in the future. In fact, Dr. Hansen testified that he could not guarantee that Petitioner
would not sexually abuse children again. He stated that there is still a "good possibility" that Petitioner will
again sexually abuse children if he has another manic episode. While Dr. Hansen stated that it is unlikely
that Petitioner will have another manic episode, he could not guarantee that this would be the case. Tr.
139, 144.

I have evaluated the evidence before me and I conclude that an exclusion for at least five years is
reasonably related to the exclusion law's goal to protect federally-funded health care beneficiaries and
recipients from untrustworthy providers.

Petitioner was the victim of sexual abuse as a child on repeated occasions. Childhood victims of sexual
abuse are predisposed to perpetrate sexual abuse on other children when they reach adulthood. In fact,
Petitioner admitted that he repeatedly sexually abused four 12 to 14 year old boys who were children of
close friends. This abuse occurred over a lengthy period spanning from 1978 to 1981. During this period,
Petitioner also admitted that he abused alcohol. Petitioner did not stop the abuse until the parents of the
victims intervened and confronted him. While there appears to be a cessation of Petitioner's sexual
misconduct for a period after the latter part of 1981, Petitioner admitted that he again engaged in sexually
inappropriate behavior with a neighborhood child in July of 1983. Thus, Petitioner has admitted to
engaging in repeated incidents of sexual misconduct involving five different 12 to 14 year old boys over a
five year period.

As I noted earlier in my Rationale, this pattern of behavior meets the diagnostic criteria for pedophilia
established by the American Psychiatric Association. According to the American Psychiatric Association,
pedophilia is usually a chronic condition and the recidivism rate is particularly high for individuals who
have perpetrated abuse against the same sex. It is reasonable to infer from the nature of Petitioner's
offenses, and from the circumstances under which they occurred, that Petitioner is untrustworthy. In
reaching this conclusion, I am mindful that Dr. Hansen, Petitioner's treating physician, presented extensive
testimony articulating why he believes that Petitioner does not fit the profile of a "true" pedophile.
However, even Dr. Hansen conceded that Petitioner's conduct fits the diagnostic criteria for pedophilia
established by the American Psychiatric Association. In view of the fact that this condition is known to
have a high recidivism rate, a substantial period of time is necessary to establish that Petitioner no longer
poses a threat to federally-funded health care programs.

Petitioner's conduct is the type of conduct that has the potential for causing devastating harm to the
psychological health of others. The majority of Petitioner's patients are minors. Approximately 20 to 25
percent of his patients are aged 11 to 13. Tr. 230. Petitioner has molested boys in this age group in the
past. Should Petitioner resume his sexual misconduct, the victims of his abuse would also probably be in
this age group. The psyches of children are fragile, and they can suffer severe psychological damage
throughout their lives if they are victims of sexual abuse. Tr. 143. In view of the incalculable damage
Petitioner could cause were he to engage in similar offenses against his minor patients in the future, it is
appropriate to build a margin of safety into any exclusion imposed on Petitioner.

I recognize that the evidence shows that, since 1983, Petitioner has recognized the need for psychiatric
treatment to stabilize his mental condition and that he has been cooperative in this treatment. There is no
evidence that Petitioner is now abusing alcohol and, by all accounts, his manic depressive illness is now in
remission. The expert medical opinion evidence also consistently states that Petitioner is now unlikely to
molest adolescent boys. I am also cognizant that the record is devoid of any allegation that Petitioner
engaged in sexual misconduct since 1984. I have also considered the character evidence from Petitioner's
coworkers, presented by Petitioner in support of his contention that he no longer poses a threat to Medicare
and Medicaid beneficiaries and recipients. These factors all militate in favor of a finding that Petitioner is
at low risk for repeating his sexual misconduct in the future. If any of these factors were not present, the
absence of that factor might have been a reason to increase the period of exclusion.

While I accept that there is a low likelihood that Petitioner will sexually abuse patients under his care, I
find that the evidence establishes that there is still some chance that this could occur. The medical opinion
evidence consistently states that Petitioner continues to need psychiatric care. This suggests that Petitioner
still has psychological problems which must be addressed. In addition, Dr. Hansen stated that the nature of
manic depressive illness is episodic and that there is some risk that Petitioner could have a recurrence of a
manic episode in the future, particularly if he is under stress. If such a recurrence occurs, then, according
to Dr. Hansen, there is a "good possibility" that Petitioner's sexual misconduct will recur. Tr. 144. In view
of the serious damage which can result from sexual abuse, I find that a lengthy exclusion is reasonable
even if there is a slight possibility that Petitioner will engage in this conduct. See Norman C. Barber,
D.D.S., DAB CR123 (1991).

Petitioner practices dentistry in the State of California. The State of California therefore has a substantial
interest in protecting its citizenry from untrustworthy health care providers. The evidence shows that the
California Board made a thorough inquiry into the facts of this case, and I find the conclusions reached by
the licensing authorities to be persuasive.

The California Board revoked Petitioner's dental license, but stayed the revocation for a period of five
years. The stayed revocation was subject to certain conditions, including that Petitioner successfully
comply with the probation program established by the California Board. While the California Board
contemplates that the period of probation will be at least five years, it may extend the probation period
under certain circumstances, such as the filing of an accusation against Petitioner's license. The California
Board also contemplates that Petitioner's dental license will be fully restored upon successful completion of
the probation period. I.G. Ex. 8.

The I.G. seeks to exclude Petitioner until such time as Petitioner has satisfied the State of California that he
has successfully completed his probation and has his license to practice dentistry in California fully
restored. Since the California Board contemplates that Petitioner's probation will be for at least five years,
the I.G. seeks to exclude Petitioner for a minimum of five years. The evidence in this case provides strong
justification for an exclusion for a period of at least five years. I find that a minimum exclusion of five
years is, in this case, consistent with the purpose of protecting federally-financed health care beneficiaries
and recipients and it is not extreme or excessive as a length of time necessary to establish that Petitioner is
no longer a danger to those beneficiaries and recipients.

However, the California Board may also extend the probation period for an indefinite period beyond five
years in the event that it deems this to be necessary to protect the citizens of California. In past cases under
section 1128(b)(4), the I.G. has sought and been upheld by appellate panels of the DAB in obtaining
exclusions of an indefinite duration based on relicensure in the State where the original license was
revoked, suspended or surrendered. See, Leonard R. Friedman, M.D., DAB 1281 (1991) and John W.
Foderick, M.D., DAB 1125 (1990). As the appellate panel concluded in Friedman, such a remedy is
reasonable since that State, in exercising its decision on relicensure, would act in a careful and prudent
manner in the best interest of its citizens. Friedman at 7. In such circumstances, it is appropriate for the
Secretary, in discharging his responsibilities to the Medicare and Medicaid programs, to defer to such State
in determining that a health care provider has demonstrated sufficient trustworthiness to justify seeking
application for admission into the program.

Here, Petitioner's original license was revoked in Iowa. The State of Iowa has no further interest in
Petitioner because he does not intend to practice there, and the citizens of Iowa are not presently patients of
his medical practice. Recognizing this, the I.G. modified his original exclusion, which was coterminous
with Petitioner's relicensure in Iowa, to be coterminous with Petitioner's relicensure in California, where he
now lives and works. Assuming that Petitioner continues to live and work in California upon the
expiration of the five years which I have found to be the minimum length of time necessary to establish his
trustworthiness, an indefinite exclusion until Petitioner's California license is fully restored is reasonable.
This is particularly evident since it is conceivable that the State of California could conclude, based on
evidence that Petitioner's mental illness is not completely resolved, to continue his probationary status and
restrictions beyond the original five year period. Alternatively, if Petitioner practices in another State
before his license in California is fully restored, then Petitioner's exclusion will last until the minimum five
year period expires and until the new State licensing agency grants Petitioner a license without restriction
after conducting a full review of all the legal and factual issues which were before the State of California.

CONCLUSION

Based on the material facts and the law, I conclude that the I.G.'s determination to exclude Petitioner from
participation in the Medicare and Medicaid programs was authorized by section 1128(b)(4)(B) of the Act.
In addition, I conclude that the remedial purpose of section 1128 is satisfied by the following exclusion:
Petitioner is excluded not less than five years. If at the end of that time California has given him an
unrestricted dental license, or at any time thereafter that California gives him an unrestricted dental license,
he may apply for reinstatement as a Medicare/Medicaid provider. Or, if at the end of the five years another
State has given him an unrestricted dental license, or at any time after the five years that a State gives him
an unrestricted dental license, and 1) he is practicing there; and 2) prior to giving him an unrestricted dental
license, that State had examined all of the legal and factual issues considered by the California Board, then
he may apply for reinstatement as a Medicare/Medicaid provider.

____________________________
Edward D. Steinman
Administrative Law Judge