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: September 30, 1992
Docket No. C-92-020
Decision No. CR233
DECISION ON REMAND
Petitioner requested a hearing on a February 15, 1991 determination by the
Inspector General (I.G.) to
exclude him from participation in the Medicare and State health care programs
1/ for five years pursuant to
section 1128(a)(2) of the Social Security Act (Act). On July 22, 1991, I issued
a decision in which I
sustained the determination of the I.G. to exclude Petitioner for five years.
Bruce Lindberg, D.C., DAB
CR145 (1991). I found that the I.G. had the authority to exclude Petitioner
under section 1128(a)(2) of the
Act because the undisputed material facts established that he 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. I further found
that Petitioner is subject to the federal minimum mandatory provisions of sections
1128(a)(2) and
1128(c)(3)(B) of the Act, and that Petitioner's exclusion for five years is
the minimum period mandated by
federal law.
Petitioner appealed my decision to an appellate panel of the Departmental Appeals
Board (DAB). My July
22, 1991 decision contained 25 Findings of Fact and Conclusions of Law (FFCLs).
Petitioner filed
exception to my FFCL 10 in which I found that the offenses which formed the
basis of Petitioner's
conviction were related to abuse of patients in connection with the delivery
of a health care item or service.
Petitioner did not challenge my other FFCLs.
On November 15, 1991, the appellate panel issued its decision. The appellate
panel affirmed and adopted
without further discussion the FFCLs which Petitioner did not dispute: FFCLs
1 - 9 and FFCLs 11 - 25. In
addition, the appellate panel concluded that I did not err in considering evidence
other than court
documents pertaining to Petitioner's conviction to determine whether the statutory
requirements of section
1128(a)(2) have been satisfied.
With regard to the statutory requirements of section 1128(a)(2), the appellate
panel concluded that I did not
err in finding that the criminal offenses of which Petitioner was convicted
related to "abuse" within the
meaning of section 1128(a)(2). However, the appellate panel determined that
my finding that such abuse
was of a "patient" was not supported by substantial evidence in the
record. The appellate panel determined
also that my finding that such abuse was "in connection with the delivery
of a health care item or service"
was not supported by substantial evidence of record. The appellate panel therefore
vacated FFCL 10 and
remanded the case to me for reconsideration of this FFCL. The appellate panel
directed me to make new
findings "concerning whether the children referred to in the counts of
which Petitioner was convicted were
patients of Petitioner and whether the conduct which gave rise to the counts
occurred in connection with
the delivery of a health care service by Petitioner." Appellate Panel Decision
at 11.
On November 21, 1991, I issued an Order on Remand in which I invited the parties
to file statements of
their positions on certain specified questions. On January 13, 1992, I held
a prehearing conference by
telephone. Counsel for Petitioner asserted at that time that there were factual
issues remaining to be
resolved, and he requested an in-person evidentiary hearing. I granted this
request.
Petitioner subsequently submitted six proposed exhibits for admittance into
evidence at the hearing. The
I.G. submitted 11 proposed exhibits. By letter dated February 7, 1992, I informed
the parties that my
review of the proposed exhibits revealed that, except for the I.G.'s proposed
exhibits numbered 2, 3, and 5,
all of the other proposed exhibits submitted by both the I.G. and Petitioner
had previously been admitted
into the record when I issued my July 22, 1991 decision. Bruce Lindberg, D.C.,
DAB CR145 at 2 (1991).
I stated that documents already admitted into evidence did not have to be received
into evidence again on
remand.
On February 19, 1992, I conducted a hearing in this case. During the hearing,
I noted that the last I.G.
exhibit of record was numbered 32. 2/ I therefore redesignated the newly proposed
I.G. exhibit numbered
2 to be I.G Ex. 33. 3/ I identified this document as a letter from James Kivi
to Mary Dey Purcell dated
December 13, 1991, and admitted it into evidence. I also noted that the newly
proposed I.G. exhibit
numbered 3 included a document which was already part of the record at I.G.
Ex. 17. The only newly
submitted material in this proposed exhibit was a document entitled Minutes
of Evidence, accompanied by
a calendar sheet. I redesignated the Minutes of Evidence and accompanying calendar
sheet to be I.G. Ex.
17 and I added this material to the April 11, 1990 Trial Information and Presentence
Investigation which
had already been admitted into evidence as I.G. Ex. 17. I admitted the Minutes
of Evidence and the
accompanying calendar sheet into evidence as supplemental pages to I.G. Ex.
17. In addition, I
redesignated the newly proposed I.G. exhibit numbered 5 to be I.G. Ex. 34. I
identified this document as a
receipt of items taken from Petitioner's office in May 1989 by Officer Larry
Jones, and I admitted it into
evidence. Tr. 11-13.
The parties submitted posthearing briefs and reply briefs. By letter dated
June 26, 1992, I invited them to
submit supplemental briefs on the issue of how the canons of ethics and other
codes of professional
conduct for health care professionals define "patient" and the scope
of the doctor-patient relationship. 4/
The parties briefed this issue. 5/
I base this decision on remand on the applicable law, the documentary evidence,
those FFCLs which I
issued in my July 22, 1991 decision, and which were accepted and affirmed by
the appellate panel, the
analysis in the appellate panel's decision, the evidence adduced at the February
19, 1992 hearing, and the
parties' arguments. I find that Petitioner was convicted of a criminal offense
relating to abuse of a patient
in connection with the delivery of a health care item or service within the
meaning of section 1128(a)(2) of
the Act. I conclude that Petitioner is subject to the minimum mandatory provisions
of sections 1128(a)(2)
and 1128(c)(3)(B) of the Act, and that the I.G. is required to exclude Petitioner
for a minimum of five
years. Therefore, I sustain the five-year exclusion imposed and directed against
Petitioner.
ISSUES
The issues to be decided on remand are:
1. Whether the children referred to in the counts of which Petitioner was convicted
were "patients" of
Petitioner, within the meaning of section 1128(a)(2) of the Act.
2. Whether the conduct which gave rise to the counts of which Petitioner was
convicted occurred "in
connection with the delivery of a health care item or service" by Petitioner,
within the meaning of section
1128(a)(2) of the Act.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The appellate panel vacated FFCL 10 and remanded the case to me for reconsideration
of this FFCL.
Based on my evaluation of the evidence submitted on remand, I am reinstating
FFCL 10, in which I find:
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.
Based on the newly submitted evidence, I make the following additional FFCLs on remand:
26. Petitioner was convicted of sexually abusing children identified as I.J. and K.L.. I.G. Ex. 17.
27. There is no evidence that I.J. was a patient of Petitioner.
28. It was at McDonald's after a school sporting event in 1987 that Petitioner
and K.L. first discussed the
possibility that Petitioner would provide chiropractic services to K.L.. I.G.
Ex. 30/5.
29. Prior to the discussion at McDonald's, Petitioner and K.L. had no more
than a passing acquaintance.
Tr. 66 - 67; I.G. Ex. 30/5.
30. During the discussion at McDonald's, Petitioner offered to give K.L. three
chiropractic treatments free
of charge, as an inducement for K.L. to become his patient. I.G. Ex. 30/5.
31. Petitioner used his status as a chiropractor to initiate a relationship with K.L.. FFCLs 28 - 30.
32. K.L.'s first medical appointment with K.L. occurred in the latter part
of 1987, when K.L. was in eighth
grade. I.G. Ex. 30/6.
33. Petitioner provided appropriate chiropractic services during K.L.'s first
three appointments which
occurred over a three-week period. I.G. Ex. 30/6 - 8.
34. K.L.'s mother or grandmother brought him to some of his appointments at
Petitioner's office. I.G. Ex.
30/6, 8, 28.
35. Petitioner took some time to establish a relationship of trust between K.L. and him. FFCLs 32 - 34.
36. During the course of an appointment which occurred some time after the
third appointment, Petitioner
treated K.L.'s back complaint by rubbing an electrical instrument on K.L.'s
legs and buttocks instead of
using it on his back. I.G. Ex. 30/9.
37. K.L. had at least ten to fifteen appointments with Petitioner, occurring
over at least a six-month period.
Tr. 74 - 75.
38. K.L.'s case file was seized from Petitioner's office by law enforcement
officials in May 1989. I.G.
Exs. 6, 11, 34.
39. Petitioner continued to provide chiropractic services to K.L. in non-clinical
settings, such as
Petitioner's home and car, after he stopped treating K.L. at his office. Petitioner
did not charge K.L. for
these services. I.G. Ex. 30/10, 14, 16, 25 - 28.
40. Petitioner repeatedly engaged in conduct which blurred the distinctions
between a professional
relationship and a social relationship. FFCL 39.
41. The established medical community recognizes that sexual activity between
physicians and patients is
unprofessional and unethical because it exploits the trust and dependency of
patients. In particular, the
American Chiropractic Association (ACA) has stated that chiropractors should
avoid "dual relationships"
which could lead to the exploitation of a patient. ACA, CODE OF ETHICS at 17
(1991-1992). See
American Medical Association, CODE OF MEDICAL ETHICS at 40 (1992); American
Psychiatric
Association, OPINIONS OF THE ETHICS COMMITTEE ON THE PRINCIPLES OF MEDICAL
ETHICS at 9 (1989).
42. In the course of providing chiropractic services to K.L., Petitioner sometimes
attempted to illicitly
touch K.L. by trying to get his hands under K.L.'s pants. I.G. Ex. 30/23.
43. The incident which was the basis of Petitioner's conviction occurred prior
to May 1989 in Petitioner's
car while Petitioner was driving K.L. home after K.L. visited Petitioner at
his house. Petitioner began by
rubbing K.L.'s neck and then gradually worked his way down to rub K.L.'s genitals
over his clothes. I.G.
Ex. 30/10, 14 - 16, 24.
44. Prior to the incident which was the basis of Petitioner's conviction, Petitioner
did not notify K.L. that
he was terminating the chiropractor/patient relationship and he did not transfer
copies of his records to
either K.L. or to another chiropractor. FFCLs 38, 39.
45. Petitioner's professional relationship with K.L. had not ended at the time
the abuse of which Petitioner
was convicted occurred. FFCLs 38, 39, 43, 44.
46. The rubbing of K.L 's neck at the time of the incident which was the basis
of Petitioner's conviction
was similar to physical contact Petitioner had with K.L. during the course of
chiropractic treatment in his
office. I.G. Ex. 30/7, 9.
47. Petitioner's massage of K.L.'s neck in the car at the time the abuse occurred
constitutes the delivery of
a health care service within the meaning of section 1128(a)(2).
48. Petitioner used the chiropractic adjustment with which he had treated K.L.
in the past as a prelude to
perpetrating the abuse of which he was convicted. FFCLs 46 - 47.
49. Petitioner's treatment of K.L. in his office over a period of at least
six months beginning in 1987
constitutes the delivery of a health care service within the meaning of section
1128(a)(2).
50. Petitioner exploited the therapeutic relationship he developed with K.L.
in the course of providing
chiropractic treatments to him for the purpose of perpetrating the sexual abuse
of which he was convicted.
RATIONALE
The I.G. excluded Petitioner from participating in Medicare and directed that
Petitioner be excluded from
participating in Medicaid pursuant to section 1128(a)(2) of the Act. This section
mandates the exclusion
from participating in Medicare and Medicaid of individuals who are:
[C]onvicted, under Federal or State law, of a criminal offense relating to
neglect or abuse
of patients in connection with the delivery of a health care item or service.
The I.G.'s authority to impose and direct an exclusion under 1128(a)(2) is
based on the fulfillment of the
following statutory criteria: (1) conviction of a criminal offense, (2) relating
to neglect or abuse, (3) of
patients, (4) in connection with the delivery of a health care item or service.
Neither party to this case disagrees that Petitioner was convicted of a criminal
offense within the meaning
of the Act, and the undisputed facts satisfy this criterion. The second criterion
that must be satisfied in
order to find that the I.G. had the authority to exclude Petitioner under section
1128(a)(2) is that the
criminal offense must relate to neglect or abuse of another individual. In my
July 22, 1991 decision, I
found that Petitioner was convicted of a criminal offense related to abuse,
and the appellate panel upheld
this determination. What remains to be determined is whether such abuse was
of a patient and whether it
was in connection with the delivery of a health care item or service.
1. Petitioner was convicted of a criminal offense relating to a "patient,"
within the meaning of section
1128(a)(2) of the Act.
On June 16, 1989, Petitioner, a chiropractor, was charged with five counts
of Lascivious Acts with a Child,
in violation of section 709.8(1) of the Iowa Criminal Code, in a Trial Information
filed in the Iowa District
Court for Monroe County. FFCLs 1, 2. These five counts involved three children
referred to as A.B.,
C.D., and E.F.. I.G. Ex. 15. 6/ 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(1) of the Iowa Criminal Code. FFCL 3. The Indecent Contact with
a Child involved a child
referred to as K.L., and the two Lascivious Acts with a Child counts involved
two children referred to as
M.N. and O.P.. I.G. Ex. 16.
On April 11, 1990, Petitioner entered into a plea agreement in which he 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, respectively. FFCL 5. The two counts of Indecent
Contact with a Child
both involved one child referred to as K.L., and the two counts of Indecent
Exposure both involved one
child referred to as I.J.. I.G. Ex. 17. In a Judgment Entry dated July 20, 1990,
Petitioner was convicted of
all four counts. FFCL 6. Petitioner was sentenced to six years' probation, subject
to several conditions,
including that he finance an annuity for eight children who had allegedly been
victims of Petitioner's abuse.
FFCL 8, 13 - 15.
Petitioner was convicted of the four counts to which he pled guilty, involving
two different individuals
referred to as K.L. and I.J. The appellate panel stated that I improperly concluded
that section 1128(a)(2)
applied to this case because there was no basis in the record before me at the
time that I issued my July 22,
1991 decision that supported a finding that either K.L. or I.J. was a "patient."
Appellate Panel Decision at
7.
The appellate panel pointed out that the record contained some limited information
about the individual
referred to as K.L. According to the appellate panel, the record established
that K.L. was one of the
children who was to receive an annuity. 7/ The appellate panel also pointed
out that the record contained a
letter from the insurance company with which the annuities were established
which names the recipients of
the annuities. In addition, the record contained a log of Petitioner's patients
aged 16 and under which was
prepared by the local police. The appellate panel noted that six of the eight
recipients of the annuities were
identified as being patients of Petitioner on the patient list compiled by the
local police. While the record
showed that K.L. was one of the eight recipients of the annuities, the appellate
panel stated that "there is
nothing in the record which links K.L. to one of the six children who were identified
as patients."
Appellate Panel Decision at 8. The appellate panel concluded that there was
no basis in the record for
finding that K.L. was a patient.
The appellate panel pointed out that the record contained even less information
about the individual
referred to as I.J. According to the appellate panel, there was no evidence
of record that I.J. was one of the
recipients of the annuities, since the first two Trial Informations do not include
any count involving a child
referred to as I.J. Appellate Panel Decision at 8. The appellate panel concluded
that there was no basis in
the record for finding that I.J. was a patient.
Moreover, the appellate panel stated that the record was devoid of evidence
showing the basis on which the
counts to which Petitioner pled guilty were selected. According to the appellate
panel, it was within the
realm of reasonable possibility that the four counts which formed the basis
of Petitioner's conviction were
selected because the two children involved were not patients. Appellate Panel
Decision at 8. Since there
was nothing in the record before me which shed light on the question of whether
or not either K.L. or I.J.
was a patient of Petitioner, the appellate panel concluded that the issue of
whether the abuse of which
Petitioner was convicted was abuse of a patient was an issue which could not
be resolved by the facts
before me at the time I made my July 22, 1991 decision. The appellate panel
remanded the case for further
development of the record on this issue, and suggested that this question might
be resolved by the
submission of documentary evidence showing "how the letters K.L. and I.J.
used in the counts against
Petitioner related to particular children." Appellate Panel Decision at
10.
On remand, the I.G. submitted a document entitled "Minutes of Evidence"
which identifies the names of
the children referred to as K.L. and I.J. in the counts to which Petitioner
pled guilty. 8/ This document also
provides a summary of what K.L.'s and I.J.'s testimony would have been in the
event that the criminal
proceeding went to trial. With regards to K.L.'s potential testimony, the Minutes
of Evidence states that
K.L.:
will testify that he has known [Petitioner] for approximately two years. He
will testify that he has
been a patient of [Petitioner's] a number of times at [Petitioner's] clinic
in Albia and that he has been a
visitor at [Petitioner's] house in Albia. He will testify that during 1989 he
was at [Petitioner's] house with a
friend and [Petitioner] offered to drive them home and that while in [Petitioner's]
car [Petitioner] placed his
hands on the witness['] genitals over his clothes.
I.G. Ex. 17.
The I.G. pointed out that during Petitioner's April 11, 1990 plea hearing,
Petitioner admitted that the
information contained in the Minutes of Evidence was accurate. P. Ex. 7/7. The
I.G. contended that by
admitting to the accuracy of the Minutes of Evidence at the plea hearing, Petitioner
admitted that K.L. was
a patient of his at the time the abuse of which he was convicted occurred. Tr.
20, 77.
Petitioner does not dispute that the Minutes of Evidence were accurate. However,
he does dispute the
I.G.'s interpretation of the Minutes of Evidence. Petitioner argues that the
Minutes of Evidence merely
state that K.L. was a patient of Petitioner's at one point in time. While Petitioner
admits that a
chiropractor/patient relationship had existed between Petitioner and K.L., he
contends that this document
does not establish that K.L. was Petitioner's patient at the time the abuse
of which Petitioner was convicted
occurred. Petitioner contends that K.L. is a "patient" within the
meaning of section 1128(a)(2) only if it
can be established the he was a patient at the time the abuse occurred. Petitioner's
Posthearing Brief at 5 -
7. The parties do not dispute, and I find, that the Minutes of Evidence definitively
establish that K.L., one
of the two victims of the abuse of which Petitioner was convicted, had been
a patient of Petitioner. 9/
While it is undisputed that the Minutes of Evidence establish that K.L. had
been Petitioner's patient,
Petitioner contends that this is not sufficient to show that K.L. was a "patient"
within the meaning of the
Act. According to Petitioner, the statutory requirement that the criminal offense
relates to abuse of patients
encompasses only patients who are under active treatment by a health care provider
at the time that the
abuse occurs. Petitioner asserts that while K.L. had been a patient of his,
he was no longer an "active"
patient at the time the abuse occurred. Petitioner reasons that since K.L. was
not an "active" patient of his
at the time the abuse occurred, then I must find that K.L. was not a patient
within the meaning of section
1128(a)(2).
Petitioner's argument is unpersuasive. He admits that a "patient"
relationship existed with K.L., but
contends it was no longer "active" at the time the abusive conduct
occurred. Apparently, Petitioner limits
the "patient" relationship to the period that K.L. received ongoing
chiropractic treatment in Petitioner's
office. Petitioner ignores the record evidence that K.L. received chiropractic
services from Petitioner in
other settings, including his home and car. FFCL 39. In fact, at the time of
the abusive conduct which was
the basis for Petitioner's conviction, Petitioner began touching K.L. in a manner
which mimicked a
chiropractic massage or manipulation. FFCL 43, 46 - 48.
The term "patient" is not defined in the Act. 10/ The common sense
definition of being under the care of a
medical practitioner is a reasonable interpretation of the term "patient"
for purposes of section 1128(a)(2)
of the Act. Petitioner admits that K.L. was his patient. I do not accept his
assertion that K.L. was no
longer an "active" patient. The record does not support such a finding.
It is undisputed that K.L.'s medical
records were still maintained by Petitioner in his office during the time period
in which the abuse occurred.
FFCL 38, 43. Moreover, the record is devoid of any indication that Petitioner
advised K.L. that he was
terminating the chiropractor/patient relationship with K.L. FFCL 44. The Code
of Ethics for
Chiropractors in effect at the time Petitioner committed the offense of which
he was convicted mandates
specified actions when a chiropractor seeks to terminate the chiropractor/patient
relationship, including
notification of termination and providing the patient with the right to have
his or her records transferred to
another doctor. 11/ There is no evidence that Petitioner either gave K.L. notice
that he was withdrawing
his services or transferred copies of his records to either K.L. or another
chiropractor. FFCL 44.
Thus, contrary to Petitioner's assertion that K.L. was no longer an "active"
patient, the record supports a
finding that Petitioner purposely blurred the chiropractor/patient relationship
by providing chiropractic
treatment in both office and social settings. FFCLs 39 - 40. To satisfy his
own sexual urges, Petitioner
purposefully extended the chiropractor/patient relationship beyond the traditional
boundaries. FFCLs 39 -
40, 46 - 50. He exploited the trust and confidence arising from such relationship
to more easily induce
K.L. into accepting illicit sexual contacts. FFCL 50.
In sum, the "patient" requirement of section 1128(a)(2) is met here
because: (1) K.L. was a patient of
Petitioner and Petitioner never expressly ended such relationship prior to the
occurrence of the unlawful
abuse of K.L.; (2) Petitioner continued to provide chiropractic treatment to
K.L. in social settings after he
completed a course of treatment in Petitioner's medical office and was applying
such treatment
immediately prior to engaging in the unlawful abusive conduct; and (3) Petitioner
established a pattern of
practice where he purposefully expanded the boundaries of the chiropractor/patient
relationship and
exploited such relationship to satisfy his sexual needs.
Even if I were to accept Petitioner's argument that K.L. was not an "active"
patient at the time the criminal
offense which gave rise to the conviction occurred, this would not result in
my finding that K.L. was not a
"patient" for purposes of the Act. The language of section 1128(a)(2)
refers to abuse of patients and it does
not distinguish between "current" patients and "former"
patients or "active" patients and "inactive" patients,
as Petitioner asserts. The evidence must show only that K.L. had been Petitioner's
patient in order to
support a finding that he is a "patient" within the meaning of the
statute.
For reasons discussed below, I do not agree with Petitioner that the occurrence
of abuse after the
termination of the health care provider-patient relationship necessarily precludes
finding that the abuse
involved a patient. 12/ Perpetration of abuse against former patients does not
insulate a health care
provider from the reach of section 1128(a)(2). It is undisputed that Petitioner
was convicted of sexually
abusing K.L. and that a chiropractor/patient relationship between Petitioner
and K.L. existed at some point
in time. Where it can be established that the abusive conduct arose from such
relationship and Petitioner
used that relationship to achieve such conduct, a finding that K.L. was a patient
at the time Petitioner
abused him is not a necessary prerequisite for concluding that K.L. was a "patient"
within the meaning of
section 1128(a)(2). It is necessary to find only that K.L., the victim of the
abuse which was the basis for
Petitioner's conviction, had been a patient of Petitioner, a fact that is undisputed.
Thus, for the reasons set forth above, I conclude that Petitioner was convicted
of a criminal offense relating
to a patient, within the meaning of section 1128(a)(2).
2. Petitioner was convicted of a criminal offense which occurred in connection
with the delivery of a
health care service, within the meaning of section 1128(a)(2) of the Act.
Having concluded that the first three criteria for finding that section 1128(a)(2)
applies to this case are
satisfied, I must determine whether the fourth criterion is satisfied.
Section 1128(a)(2) specifically requires that, as a basis for an exclusion,
a health care provider must be
convicted of a criminal offense relating to patient abuse or neglect in connection
with the delivery of a
health care item or service. In order for me to find that the I.G. has the authority
to exclude Petitioner
under section 1128(a)(2), there must be some nexus between the criminal offense
and the delivery of a
health care item or service. As stated in Peter J. Edmonson, DAB CR163 at 7
(1991), the phrase "in
connection with" is very broad language and "suggests that Congress
required only a minimal nexus
between the offense and the delivery of a health care item or service as a prerequisite
to meeting the
statutory test." I find that the requisite nexus is satisfied where the
delivery of a health care item or service
is an element in the chain of events giving rise to the criminal offense. 13/
Petitioner argues that in order to establish the requisite nexus between the
criminal offense and the delivery
of a health care item or service, it must be established that abuse occurred
in the course of active treatment
of a patient in a clinical setting. According to Petitioner, the statutory requirement
that the criminal offense
is in connection with the delivery of a health care item or service encompasses
only those situations where
a health care provider abuses a patient while he is actively treating him in
a clinical setting. Petitioner
admits that K.L. had been a patient of his and that he had repeatedly provided
chiropractic treatment to him
in a clinical setting. However, he points out that the Minutes of Evidence indicate
that the incident which
formed the basis of his conviction occurred in a car while he was driving K.L.
home after a social visit.
Petitioner argues that he was not convicted for abuse "in connection with
the delivery of a health care item
or service" pursuant to section 1128(a)(2) because the abuse did not occur
at a time that he was providing
chiropractic services to K.L. in a clinical setting. Petitioner's Posthearing
Brief at 8 - 10.
I am not persuaded by Petitioner's argument. The purpose of section 1128(a)(2)
is to "give the Secretary
the authority to protect Medicare and the State health care program beneficiaries
from individuals or
entities that have already been tried and convicted of offenses which the Secretary
concludes entailed or
resulted in neglect or abuse of other patients and whose continued participation
in Medicare and State
health care programs would therefore constitute a risk to the health and safety
of patients in those
programs." S. Rep. No. 109, 100th Cong., 1st Sess. 6; reprinted in 1987
U.S.C.C.A.N. 682, 686 - 687. It
is true that health care providers who have been convicted of abusing their
patients while they are treating
them in a clinical setting are a risk to the health and safety of other patients,
and Congress intended to
protect program beneficiaries and recipients by excluding abusive providers.
However, this is not to
suggest that the only criminal offenses which fall into the ambit of section
1128(a)(2) are criminal offenses
which occurred in the course of the provision of medical treatment in a clinical
setting. There are other
situations which are covered by section 1128(a)(2). For example, health care
providers who abuse patients
in the course of delivering health care items or services outside a medical
office pose a risk to program
beneficiaries and recipients. In addition, health care providers who exploit
the relationships they develop
with patients in the course of treating them in a clinical setting for the purpose
of abusing them at a later
date in a non-clinical setting also pose a risk to program beneficiaries and
recipients.
The statutory test for finding that the criminal offense is in connection with
the delivery of a health care
item or service is satisfied as long as it can be shown that a provider used
his treatment of a patient to
perpetrate the criminal offense at some point in the chain of events leading
to the abuse. If it can be shown
that a provider abused his patient at the time that he was providing treatment
in a clinical setting, then this
would likely result in a finding that the abuse occurred in connection with
the delivery of a health care item
or service. However, it is possible to find that the abuse occurred in connection
with the delivery of a
health care item or service even if it occurred in the course of social activities
after the professional
relationship ended. While factors such as the victim's status as a patient at
the time the abuse occurred and
the location of the abuse are relevant in an analysis of whether the abuse occurred
in connection with the
delivery of an item or service, these factors are not always dispositive of
this issue.
Support for this analysis is found in various codes of professional behavior
for health care professionals.
The medical community recognizes that the relationship between health care providers
and patients is
inherently a dependency relationship. Typically, health care providers are respected
authority figures, and
patients are vulnerable because they are in need of professional advice and
treatment in areas pertaining to
their health. The relationship induces the patient to place great faith in the
health care provider and to
believe that the health care provider is the patient's ally who is committed
to act in his best interests. As
reflected in the codes of ethics of the mental health professions, sexual contact
between health care
providers and patients is a betrayal of the patient's trust and is a breach
of the fiduciary relationship
between health care provider and patient. The Council on Ethical and Judicial
Affairs of the American
Medical Association looks with disfavor on sexual activity between physicians
and patients, regardless of
whether the patients are patients at the time the sexual contact occurs or are
former patients at the time the
sexual contact occurred. The Code of Medical Ethics authored by the council
states the following:
Sexual contact that occurs concurrent with the physician-patient relationship
constitutes sexual
misconduct. Sexual or romantic interactions between physicians and patients
detract from the goals of the
physician-patient relationship, may exploit the vulnerability of the patient,
may obscure the physician's
objective judgment concerning the patient's health care, and ultimately may
be detrimental to the patient's
well-being.
* * *
Sexual or romantic relationships between a physician and a former patient
may be unduly
influenced by the previous physician-patient relationship. Sexual or romantic
relationships with former
patients are unethical if the physician uses or exploits trust, knowledge, emotions
or influence derived from
the previous professional relationship.
American Medical Association, CODE OF MEDICAL ETHICS at 40 (1992) (emphasis added).
Similarly, the American Psychiatric Association has stated:
Sexual activity with a patient is unethical. Sexual involvement with one's
former patients
generally exploits emotions deriving from treatment and therefore almost always
is unethical.
American Psychiatric Association, OPINIONS OF THE ETHICS COMMITTEE ON THE PRINCIPLES
OF MEDICAL ETHICS at 9 (1989) (emphasis added).
More directly applicable to Petitioner, the ACA has expressed its view regarding
sexual intimacies with
patients:
This advisory opinion is intended to resolve any misunderstanding and to state
that it is the
opinion of the Committee that sexual intimacies with a patient is unprofessional
and unethical based on the
existing ethical provisions in the ACA Code of Ethics: A(6), A(7), A(10) andC(2).
The physician-patient relationship requires the doctor of chiropractic to
exercise utmost care that
he or she will do nothing to `exploit the trust and dependency of the patient.'Doctors
of chiropractic should
make every effort to avoid dualrelationships that could impair their professional
judgementor risk the
possibility of exploiting the confidence placed in them by the patient. 14/
ACA, CODE OF ETHICS at 17 (1991-1992) (emphasis added).
Thus, the established medical community, including chiropractors, recognizes
that sexual contact with
patients is likely to be exploitative of them, and it holds this view even when
the sexual contact takes place
outside the clinical setting and with former patients. 15/
In this case, the appellate panel found that the evidence did not establish
that the offenses of which
Petitioner was convicted occurred in connection with the delivery of a health
care item or service. The I.G.
had submitted sworn statements of several children whose complaints formed the
basis of the criminal
charges against Petitioner which asserted that the abuse which Petitioner allegedly
committed were
committed in connection with the delivery of a health care item or service.
However, since the record did
not identify either K.L. or I.J. at the time that I issued my July 22, 1991
decision, the appellate panel found
that it was possible that neither K.L. nor I.J. were one of the children who
made these sworn statements.
Since it was possible that neither K.L. or I.J. were one of the children who
made the sworn statements, the
appellate panel found that the evidence did not establish that the offenses
to which Petitioner pled guilty
necessarily consisted of the offenses which were asserted as having been committed
in connection with the
delivery of a health care item or service. Appellate Panel Decision at 8 - 9.
The fact that such could have
been the case was not sufficient to establish the requisite nexus under the
Act.
An examination of the Minutes of Evidence submitted by the I.G. on remand contains
skeletal information
on its face regarding the circumstances underlying the abuse of which Petitioner
was convicted. The
Minutes of Evidence states that Petitioner had provided chiropractic treatment
at his clinic "a number of
times," but it does not state how long or over what period of time K.L.
was a patient of Petitioner. The
Minutes of Evidence also indicate that the abuse of which Petitioner was convicted
occurred in a car while
Petitioner was driving K.L. home after K.L. had visited Petitioner at his house.
16/ There is nothing in this
document which links Petitioner's and K.L.'s therapeutic relationship with the
sexual abuse which took
place in the car after K.L. visited Petitioner at his house. The description
of the circumstances underlying
the criminal offense contained in the Minutes of Evidence is therefore not sufficient
to support a finding
that Petitioner was convicted of criminal abuse which occurred in connection
with the delivery of a health
care service.
Since the Minutes of Evidence identify K.L. by name, it is possible to determine
whether K.L. made any of
the sworn statements contained in the record. A review of the evidence establishes
that K.L. made one of
the sworn statements in the record. In order to gain additional information
about the circumstances
underlying the criminal offense, I must look to K.L.'s sworn statement, as well
as other evidence of record.
Petitioner argues that a sworn statement made by K.L. in the course of the
investigation which led to
Petitioner's conviction cannot be relied on to determine whether the abuse of
which Petitioner was
convicted was related to the delivery of a health care item or service. According
to Petitioner, he did not
admit all of the allegations in K.L.'s sworn statement when he pled guilty to
counts arising out of these
statements. Petitioner states that he pled guilty to the charges in the April
11, 1990 Trial Information based
on the facts contained in the Minutes of Evidence. Since he admitted only the
allegations contained in the
Minutes of Evidence when he entered his guilty plea, Petitioner contends that
I may examine only the
Minutes of Evidence to determine the factual basis for the guilty plea. Petitioner's
Posthearing Brief at 5 -
6.
The fact that Petitioner did not plead guilty to all of the allegations in
K.L.'s sworn statement does not
mean that I am prohibited from considering the evidence contained in K.L.'s
sworn statement. The
appellate panel has already found in its decision that extrinsic evidence is
admissible for the purpose of
determining whether section 1128(a)(2) applies. Appellate Panel Decision at
3 - 4.
In evaluating the probative value of K.L.'s sworn statement, I recognize that
Petitioner has not admitted to
all of the allegations contained in it. Notwith-standing this, I find that K.L.'s
statement is reliable evidence
which provides useful information about the factual basis of the abuse of which
Petitioner was convicted.
This statement was taken under oath and K.L. had little motivation to lie to
authorities about these events.
Moreover, Petitioner has never objected to the veracity of K.L.'s sworn statement,
although he has had the
opportunity to do so. I conducted an in-person hearing in which Petitioner had
the opportunity to confront
K.L., and he chose not to do so. 17/
Based on my review of the entire record, including K.L.'s sworn statement,
I find that Petitioner was
convicted of a criminal offense which occurred in connection with the delivery
of a health care item or
service.
The record shows that Albia, Iowa, the town where the parties lived at the
time the criminal offense
occurred, is a small community with a population of approximately 4,000 inhabitants.
Tr. 74. There is no
evidence that, prior to the time that Petitioner began treating K.L., the parties
had any more than a passing
acquaintance. Petitioner testified that, prior to treating K.L., he knew K.L.
by name because K.L.'s sister
used to date Petitioner's younger brother. He also stated that while he was
not sure that K.L. had visited his
house prior to the time that he began treating him, it was possible. Tr. 66
- 67. In any event, the contact
between the parties prior to the time that Petitioner began treating K.L. appears
to be minimal, and there is
no evidence that there was any significant personal or social relationship between
the parties at this time.
K.L. stated that the first time he recalled that he actually met Petitioner
was when he was in seventh grade,
approximately two years before he gave his May 18, 1989 sworn statement. This
meeting occurred at
McDonald's after a track meet. K.L. stated that he talked to Petitioner about
his back because it was "all
messed up." Petitioner encouraged K.L. to come to his office for chiropractic
treatment, and he offered to
provide the first three treatments free of charge. I.G. Ex. 30/5.
K.L.'s first medical appointment with Petitioner occurred approximately two
and a half months later, in the
fall of the year K.L. was in eighth grade. I.G. Ex. 30/6. Petitioner's grandmother
brought him to that and
other appointments. Sometimes his mother brought him to Petitioner's office.
I.G. Ex. 30/6, 8, 28.
Nothing inappropriate happened at that appointment or at the second or third
appointments, which occurred
over the course of the following three weeks. I.G. Ex. 30/6 - 8. In another
appointment which occurred
some time after that, K.L. stated that Petitioner rubbed an electrical instrument
on his legs and buttocks
instead of using it to rub his back. K.L. indicated that at the time that this
happened, he wondered whether
this was appropriate treatment for his back complaint. I.G. Ex. 30/9.
I infer from this evidence that Petitioner used his status as a chiropractor
to initiate a relationship with K.L..
He strongly encouraged K.L. to come to his office for chiropractic treatment,
even to the point of offering
the first three treatments without cost, as an inducement to have K.L. begin
treatment with him. By
providing appropriate chiropractic treatment during K.L.'s initial appointments,
Petitioner took some time
to establish a relationship of trust between him and K.L.. The fact that K.L.
was brought to these
appointments by a close family member also served to provide an aura of legitimacy
to the relationship.
Typically, health care providers, such as chiropractors, are respected authority
figures in a community, and
it is evident that Petitioner used his status as a chiropractor to encourage
K.L. to place his confidence in
him. It was only after K.L. became comfortable with him that Petitioner attempted
to provide unusual or
unexpected treatment.
The I.G. submitted documents showing that K.L.'s case file was seized from
Petitioner's office by law
enforcement officials on May 8, 1989. I.G. Exs. 6, 11, 34. From this, the I.G.
argued that the
chiropractor/patient relationship between Petitioner and K.L. lasted from 1987
to 1989, far longer than the
six-month period that Petitioner claimed. I.G. Posthearing Brief at 8.
K.L.'s statement does not indicate how long the chiropractic treatments at
Petitioner's office continued. At
the hearing, Petitioner testified that he could not recall the number of appointments
K.L. had with him.
However, to the best of his recollection, he estimated that there were ten to
fifteen appointments which
occurred over a six-month period. Tr. 74 - 75.
Petitioner also testified that he kept all of his patients' files together,
regardless of whether the patients are
actively receiving chiropractic services or not. Tr. 76 - 77. Petitioner argued
that the seizure of K.L.'s file
in 1989 by law enforcement officials does not mean that K.L. was still receiving
chiropractic treatments in
his office at that time. Petitioner's Posthearing Brief at 7.
There is no evidence that Petitioner and K.L. formally terminated their professional
relationship prior to the
seizure of K.L.'s records in 1989. Thus, even if I were to accept Petitioner's
estimate that he actively
stopped providing chiropractic treatment at his office six months after these
treatments began in the latter
part of 1987, this does not mean that the professional relationship between
the parties ceased at that time.
Even if K.L. no longer was an active patient of Petitioner's in 1989 in the
sense that he was receiving
ongoing chiropractic treatment at Petitioner's medical office, it is still reasonable
to infer that K.L.
continued to consider Petitioner to be his chiropractor in the event that he
needed additional treatment.
Petitioner did not give K.L. notice that he was withdrawing his services and
he did not transfer copies of
his records to either K.L. or another chiropractor.
This conclusion is supported by the evidence showing that even if K.L. was
not receiving chiropractic
services in a formal clinical setting, Petitioner continued to provide chiropractic
services to K.L. in social
and other non-office settings. According to K.L.'s sworn statement, K.L. and
Petitioner took a sauna
together at Petitioner's residence on more than one occasion in 1989. On one
of these occasions, Petitioner
gave K.L. a free chiropractic adjustment after they took a sauna bath together.
I.G. Ex. 30/10 -13, 25, 28.
Petitioner also allowed K.L. to use his weight equipment at his fitness center,
and he gave K.L. free
chiropractic adjustments after K.L. lifted weights at his fitness center. I.G.
Ex. 30/27 - 28. Petitioner also
went skating with K.L., and Petitioner massaged K.L.'s shoulder during these
outings. I.G. Ex. 30/26.
By providing chiropractic massage and adjustment outside the clinical setting,
Petitioner, through his
conduct, expanded the boundaries of the chiropractor/patient relationship with
K.L. to non-clinical settings.
The picture that emerges from the record is that throughout the history of his
relationship with K.L.,
Petitioner consistently engaged in conduct which blurred the traditional distinctions
between a professional
relationship and a social relationship. He initially spoke to K.L. about commencing
a professional
relationship at a fast food restaurant. This shows that he actively used his
professional status to initiate a
relationship with K.L.. Once he entered into a professional relationship with
K.L., he used this relationship
to induce K.L. to trust his motives and conduct. As the trust developed, he
exploited it to continue the
relationship to extend to non-clinical settings. Then, in the non-clinical settings,
he continued to provide
chiropractic services to build on the dependency and trust inherent in the chiropractor/patient
relationship.
It is noteworthy that the street address for Petitioner's office, house, and
fitness center were all 909 S.
Clinton in Albia, Iowa. Tr. 64, 66; I.G. Ex. 6. K.L. repeatedly saw Petitioner
in all three settings, and the
geographical proximity of Petitioner's office, residence, and fitness center
made it more likely that K.L.
would perceive his professional relationship with Petitioner as being inseparable
from his social
relationship with him. 18/
K.L. stated that sometimes in the course of giving him a chiropractic adjustment,
Petitioner would try to get
his hands under K.L.'s pants. On these occasions, K.L. would say something which
would cause Petitioner
to move his hands away from his pants. I.G. Ex. 30/23. K.L. did not specify
whether these attempts to
touch him illicitly occurred during the course of chiropractic treatment in
a clinical or a non-clinical setting
or both. The setting where these attempts to illicitly touch K.L. occurred is
of little significance. What is
significant is that this evidence shows that once Petitioner had gained the
trust of K.L., he tried to use the
chiropractic adjustment with which he had treated K.L. in the past as a prelude
to satisfy his own sexual
needs.
K.L. stated that, on one occasion approximately two months before he made his
May 18, 1989 statement,
Petitioner drove him home after K.L. had visited Petitioner at his house. While
they were in the car,
Petitioner started to rub the back of K.L.'s neck. K.L. stated that he "didn't
think nothing of it." Petitioner
then started gradually to work his massaging motions downward. He rubbed K.L.'s
back, and then,
working his way down, he began to rub K.L.'s genitals with his hand over K.L.'s
pants. I.G. Ex. 30/10, 14 -
16. K.L. stated that the only time that Petitioner touched his genitals over
his clothes was this occasion in
the car in 1989. I.G. Ex. 30/16, 24.
The abbreviated description in the Minutes of Evidence of the incident of illicit
touching which occurred in
a car, which was the basis for Petitioner's conviction, closely resembles the
more detailed description of
this incident contained in K.L.'s sworn statement. Since K.L. stated that this
was the only time that
Petitioner placed his hands on his genitals over his clothes, it is reasonable
to infer that Petitioner's
conviction emanated from this incident.
The sexual abuse of which Petitioner was convicted involved the touching and
rubbing of K.L.'s genitals.
Rubbing and massage of a patient's body parts is what chiropractors do in the
course of providing
chiropractic treatment. In fact, the illicit touching in this instance was preceded
by the massage of K.L.'s
neck and back, something Petitioner had repeatedly done to K.L. in the past,
in the course of providing
legitimate chiropractic services for K.L.'s benefit. When Petitioner began to
massage K.L.'s neck in the
car, K.L. offered no resistance because he thought that Petitioner was doing
it for his benefit.
At the time of the abuse, K.L. was young, impressionable, and probably sexually
inexperienced. Due to his
youth and lack of sophistication, K.L. had little reason to question Petitioner's
behavior. K.L. trusted
Petitioner because of the therapeutic relationship he had with Petitioner. Petitioner
took advantage of
K.L.'s trust and inexperience to gratify his own sexual urges with a minimum
of resistance.
Petitioner now tries to hide behind the fact that the abuse of which he was
convicted occurred in a car,
rather than a clinical setting, to support his contention that it was not in
connection with the delivery of a
health care item or service. In evaluating the totality of the circumstances
of this case, I am not persuaded
by this argument. The record is replete with examples of Petitioner's efforts
to extend his professional
relationship with K.L. outside the usual treatment parameters. The incident
of which Petitioner was
convicted is one example where Petitioner touched and massaged K.L. under the
guise of providing a
legitimate chiropractic service in a non-clinical setting. Petitioner massaged
K.L.'s neck in the car for the
purpose of perpetrating sexual abuse with a minimum of resistance from K.L..
In this specific instance, the
sexual abuse was inseparably related to Petitioner's provision of chiropractic
treatment. Petitioner engaged
in conduct in which he extended the boundaries of his therapeutic relationship
to a non-clinical setting, and
he must be held accountable for this conduct. Under these circumstances, his
argument that the abuse of
which he was convicted was unrelated to the delivery of a health care service
because it occurred in a car
rather than a medical office is without merit.
As I discussed in my July 22, 1991 decision, the record contains substantial
evidence showing that the
criminal offenses to which Petitioner pled guilty did not occur in isolation.
Instead, these criminal offenses
were but a small part of a larger, more pervasive, pattern of sexually abusing
children. On appeal,
Petitioner took exception only to my FFCL 10, in which I found that he was convicted
of a criminal
offense within the meaning of section 1128(a)(2), and he did not challenge my
other findings. Petitioner
did not dispute my findings that he exploited his professional relationships
with several different children
for the purpose of gaining sexual access to them. Petitioner did not dispute
that in some of these instances,
he illicitly touched the victims' genitalia in the course of providing chiropractic
treatment in a clinical
setting. I recognize that Petitioner was not convicted of these offenses. Nevertheless,
the fact that there is
substantial undisputed evidence showing that Petitioner repeatedly exploited
his therapeutic relationships
with children other than K.L. to perpetrate sexual abuse is additional support
for my finding that he
exploited his therapeutic relationship with K.L. for the purpose of perpetrating
the abuse which occurred in
the car. In a very calculated fashion, Petitioner repeatedly used his status
as a chiropractor and his
chiropractic practice as a vehicle for abusing young male children. I find that
the sexual abuse of K.L.
which occurred in Petitioner's car in 1989, which was the basis for Petitioner's
conviction, is another
example of this.
Based on the circumstances of this case, I find that the evidence overwhelmingly
establishes that the abuse
of which Petitioner was convicted occurred "in connection with the delivery
of a health care item or
service," even though the location of the abuse was a car rather than a
clinical setting. I reach this
conclusion for two reasons. First, the illicit touching in Petitioner's car
which formed the basis of
Petitioner's conviction was preceded by the massage of K.L.'s neck and back.
Petitioner had repeatedly
massaged K.L. in this manner in the past in the course of providing legitimate
chiropractic services to K.L.
K.L. did not think that Petitioner's massage of his neck and back on this occasion
was inappropriate. At the
time the abuse occurred, Petitioner was performing a chiropractic massage on
K.L. which K.L. perceived
to be for his benefit. Based on this, I find that the massage of K.L.'s neck
and back in Petitioner's car
constitutes the delivery of a health care service within the meaning of the
Act. Since Petitioner initiated the
massage for the purpose of lowering K.L.'s resistance to the sexual abuse which
followed, I find that the
abuse occurred "in connection with" the delivery of a health care
service.
In addition, even if I concluded that the neck and back massage at the time
of the abuse did not constitute
the delivery of a health care service, I would still find that the abuse occurred
in connection with the
delivery of a health care service, for a different reason. It is undisputed
that, prior to the time the abuse
occurred, Petitioner delivered chiropractic services to K.L. in a clinical setting.
I find that these services
constitute the delivery of a health care service within the meaning of the Act.
The evidence establishes that
in a premeditated manner, Petitioner schemed to exploit the professional relationship
he developed with
K.L. in the course of delivering these health care services for the purpose
of perpetrating the abuse at a
later date outside of the clinical setting. These facts more than satisfy the
minimal nexus required by the
"in connection with" language in section 1128(a)(2). The abuse of
which Petitioner was convicted arose
from Petitioner's provision of chiropractic services to K.L. in his office,
and it occurred "in connection
with" the delivery of a health care service.
For the reasons set forth above, I conclude that Petitioner was convicted of
a criminal offense which
occurred in connection with the delivery of health care service, within the
meaning of section 1128(a)(2).
CONCLUSION
On remand, the I.G. provided documentary evidence establishing the identity
of K.L.. Based on my
evaluation of this evidence, in conjunction with the other evidence of record,
I conclude that Petitioner was
convicted of abuse relating to a patient and that the conduct which gave rise
to his conviction occurred in
connection with the delivery of a health care item or service. The I.G. therefore
had the authority to
exclude Petitioner under section 1128(a)(2) of the Act, and Petitioner's exclusion
for five years is the
minimum period mandated by federal law under 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. Due to a typographical error, footnote 2 of my July 22, 1991 decision incorrectly
states that I admitted
33 exhibits offered by the I.G. when, in fact, only 32 exhibits were admitted
into evidence.
3. The exhibits and transcript of the hearing will be referred to as follows:
I.G.'s Exhibits I.G. Ex. (number)/(page)
Petitioner's Exhibits P. Ex. (number)/(page)
Transcript of Hearing Tr. (page)
4. The regulations allow me to apply the Federal Rules of Evidence "where
appropriate." 42 C.F.R.
1005.17(b). The Federal Rules of Evidence provide that a court may take judicial
notice of adjudicative
facts "capable of accurate and ready determination by resort to sources
whose accuracy cannot reasonably
be questioned." FED. R. EVID. 201(b). The codes of professional conduct
for health care professionals
meet this requirement. As required by Rule 201(e), I notified the parties that
I was considering how the
codes of professional conduct for health care professionals affected the issues
before me in this case, and I
provided an opportunity for the parties to comment on this. I take judicial
notice of the codes of
professional conduct quoted in this decision, pursuant to Rule 201 of the Federal
Rules of Evidence.
5. Petitioner filed a supplemental brief on this issue, and the I.G. filed
a response to Petitioner's
supplemental brief. I afforded Petitioner an opportunity to file a reply brief,
but he did not take advantage
of this opportunity. By letter dated September 10, 1992, I notified the parties
that I had closed the record
in this case.
6. As I noted at page 9 of my July 22, 1991 decision, the Trial Information
referred to the alleged
victims of the criminal conduct by letter designations, rather than by name,
presumably to protect the
identities of these children.
7. The appellate panel based this conclusion on the undisputed evidence showing
that the annuities
covered the children referred to in the original two Trial Informations prepared
by the State. Since the
second Trial Information included a count of Indecent Contact with a Child who
was referred to as K.L.,
the appellate panel reasoned that the record supports a finding that K.L. was
one of the children who was to
receive an annuity.
8. In order to protect the confidentiality of the children who were the victims
of the criminal offenses of
which Petitioner was convicted, in this decision I will continue to refer to
them as K.L. and I.J..
9. The parties do not contend, and I do not find, that I.J., the other victim
of the abuse which formed the
basis of the conviction, was a patient of Petitioner.
10. The general dictionary definition of "patient" is someone "under
medical treatment." AMERICAN
HERITAGE DICTIONARY 910 (2d College ed. 1982). Such definition is not limited
by requiring that the
person be under active treatment. Moreover, review of the Canons of Ethics for
Chiropractors and other
medical practitioners demonstrates that the practitioner/patient relationship
with regard to the
responsibilities imposed on practitioners to protect their patients goes beyond
"active" medical treatment.
11. Section A(3) of the Code of Ethics published by the ACA states that:
Doctors of chiropractic should not terminate their professional services to
patients
without taking reasonable steps to protect such patients, including due notice
to them allowing a reasonable
time for obtaining professional services of others, delivering to their patients
all papers and documents in
compliance with A(5) of this Code of Ethics.
ACA, CODE OF ETHICS at 3 (June 22, 1988).
12. I want to make it clear that I am not concluding that the abuse of K.L.
occurred after the
doctor/patient relationship had ended. To the contrary, I made the opposite
finding.
13. In reaching this conclusion, I am guided by cases arising under section
1128(a)(1) of the Act. For
example, in the case Larry W. Dabbs, R.Ph., et al., DAB CR151 at 6 (1991), the
ALJ stated that "a criminal
offense is an offense which is related to the delivery of an item or service
under Medicare or Medicaid
where the delivery of a Medicare or Medicaid item or service is an element in
the chain of events giving
rise to the offense." The relevant language of section 1128(a)(1) mandates
the exclusion of individuals or
entities convicted of criminal offenses "related to" the delivery
of an item or service under Medicare or
Medicaid. Section 1128(a)(2), the applicable provision to this case, mandates
the exclusion of individuals
or entities convicted of criminal offenses relating to abuse of patients "in
connection with" the delivery of a
health care item or service. I recognize that the operative language of the
two provisions is not identical.
However, the ordinary meaning of "related to" and "in connection
with" is sufficiently similar to be
accorded a similar interpretation. See Chander Kachoria, R.Ph., DAB CR220 (1992).
Cf. Peter J.
Edmonson, DAB CR163 at 7 (1991) where the ALJ stated that the phrase "related
to" in section 1128(a)(1)
"may suggest a somewhat narrower meaning" than the phrase "in
connection with."
14. Petitioner attempts to use the ACA Code of Ethics to support his position
that his contacts with K.L.
outside the clinical settings were social and not part of the chiropractor/patient
relationship. Petitioner
Supplemental Brief at 2. While the ACA imposes separate responsibilities on
chiropractors regarding
patients, the public, and the profession, there is nothing in the Code of Ethics
to support Petitioner's
conclusion that the ACA separates the patient relationship from the social relationship.
In fact, the ACA
specifically recognizes that a "dual relationship," like the one Petitioner
established purposely with K.L.,
could lead to the type of exploitation of a patient that is present in this
case.
15. Courts have long relied on the codes of ethics of the medical community
to hold that health care
providers are responsible for sexual activity arising out of the professional
relationship with patients. See
L.L. v. Medical Protective Co., 362 N.W. 2d 174 (Wis. App. 1984), where the
court held that such conduct
may be the basis of a malpractice suit. While the Codes of Ethics of health
care professional groups such
as the American Psychiatric Association have a long history of articulating
the view that sexual contact
between clinicians and patients is unethical, the ACA did not explicitly state
this until 1991 when the
above-quoted addendum on sexual intimacies with a patient was adopted. As the
addendum itself states,
the view that sexual activity with patients is unethical could be inferred from
the ACA's ethical provisions
already in existence in 1991, and this addendum served to merely reaffirm the
view already held by the
ACA Ethics Committee.
16. While Petitioner was convicted of two counts of Indecent Contact with a
Child involving K.L., only
one instance of abuse is described in the Minutes of Evidence.
17. See Richardson v. Perales, 402 U.S. 389 (1971), which holds that in an
administrative proceeding
written statements of persons in lieu of live testimony may be substantial evidence
supportive of a finding
adverse to a party when the party fails to exercise its right to subpoena the
witness.
18. As I stated in my July 22, 1991 decision, Petitioner's blurring of the
distinctions between the
professional relationship and the social relationship with K.L. and other patients
was particularly
treacherous because it took advantage of the vulnerability of these children.
This is illustrated by another
victim of Petitioner who was abused also in an automobile. That child stated
that when Petitioner reached
over and touched his genitals, he was thinking 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. 31/22.