Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
In the Case of: Thieu Lenh Nghiem, M.D., Petitioner,
- v. -
The Inspector General.
DATE: December 23, 1992
Docket No. C-372
Decision No. CR248
DECISION
On March 5, 1991, the Inspector General (I.G.) notified Petitioner that he
was being excluded from
participation in the Medicare and State health care programs pursuant to section
1128(b)(4) of the Social
Security Act (Act). 1/ The I.G. advised Petitioner that he was basing his decision
to exclude him on a
determination by the Washington State Medical Disciplinary Board (Washington
Board) to revoke
Petitioner's license to practice medicine. The I.G. further advised Petitioner
that he had determined to
exclude Petitioner until Petitioner obtains a valid license to practice medicine
in the State of Washington.
By letter dated April 22, 1991, Petitioner requested a hearing, and the case
was assigned to me for hearing
and decision.
The I.G. subsequently filed a Motion To Dismiss, or, in the alternative, for
Summary Judgment. The I.G.
argued that Petitioner's request for a hearing should be dismissed because Petitioner's
letter requesting a
hearing failed to raise any cognizable issues. In addition, the I.G. contended
that even if I determined that
Petitioner's request for a hearing was not fatally defective on its face, the
matters raised by Petitioner could
be resolved against Petitioner as a matter of law. Petitioner opposed this motion.
On July 30, 1991, I issued a Ruling in which I found that Petitioner's hearing
request was not fatally
defective, and I denied the I.G.'s Motion to Dismiss. In addition, I made a
preliminary finding that the I.G.
has the authority to exclude Petitioner pursuant to section 1128(b)(4)(A) of
the Act. I concluded also 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 medicine in Washington. I found that
there were genuine issues of
material fact concerning the issue of Petitioner's alleged untrustworthiness.
At Petitioner's request, I stayed the proceedings in this case pending the
outcome of various proceedings in
the States of Washington and California related to Petitioner's medical licensure
in those States. In a
prehearing status conference on February 28, 1992, Petitioner admitted that
the I.G. had the authority to
exclude him. The parties stipulated that the only issue before me is whether
the length of the exclusion
imposed by the I.G. is reasonable. On July 14, 1992, I held a hearing in Seattle,
Washington. The parties
subsequently submitted posthearing briefs.
I have carefully considered the evidence, the applicable law, and the parties'
arguments. I conclude that the
remedial purpose of section 1128 of the Act will be served in this case by the
following exclusion:
Petitioner is excluded for not less than nine years. At any time thereafter
that Washington gives him an
unrestricted medical license, he may apply for reinstatement as a Medicare/Medicaid
provider. Or, at any
time after the nine years that another State gives, or has given him, an unrestricted
medical license, and,
prior to giving him an unrestricted medical license, that State examined all
of the legal and factual issues
considered by the Washington Board and determined that Petitioner has provided
proof of his
rehabilitation, then he may apply for reinstatement as a Medicare/Medicaid provider.
ADMISSION
Petitioner admits that the I.G. has the authority to exclude him. March 5,
1992 Order and Notice of
Hearing at 2; Petitioner's Posthearing Brief at 2.
ISSUE
The sole remaining issue is whether the length of the exclusion imposed and
directed against Petitioner is
reasonable.
FINDINGS OF FACT AND CONCLUSIONS OF LAW (FFCLs)
1. Petitioner is a medical doctor. Tr. 35-36. 2/
2. Petitioner has advanced degrees in public health and he has an expertise
in preventive medicine. P. Ex.
6/2.
3. Petitioner worked in the position of State epidemiologist for the State
of Washington from 1973 to
1980. Tr. 39.
4. In 1980, Petitioner began practicing as a sole private medical practitioner
in Olympia, Washington, and
he continued to practice in this capacity until October 1989. Tr. 45.
5. On June 28, 1982, Petitioner obtained a medical license in California. P. Ex. 6.
6. On October 26, 1989, the Washington Board filed a Statement of Charges alleging
that in 1988
Petitioner engaged in sexual misconduct with four of his patients, as follows:
a. The Washington Board alleged that Petitioner had inappropriate sexual contact,
including
digital penetration of the vagina, and inappropriate questioning of a sexual
nature with Patient One while
evaluating her for high cholesterol. I.G. Ex. 2.
b. The Washington Board alleged that Petitioner inappropriately examined the
genital area and
asked inappropriate sexual questions of Patient Two while evaluating her for
high cholesterol. I.G. Ex. 2.
c. The Washington Board alleged that Petitioner inappropriately examined Patient
Three by
having her sit partially clothed without a patient gown for a prolonged period
of time. I.G. Ex. 2.
d. The Washington Board alleged that Petitioner inappropriately asked Patient
Four explicit
sexual questions on the telephone which were unrelated to her medical complaints.
I.G. Ex. 2.
7. The Washington Board conducted an in-person evidentiary hearing. Patients
One, Two, and Three
testified as to the allegations against Petitioner. Petitioner, who was represented
by legal counsel, testified
at the hearing. Expert medical opinion evidence of Petitioner's mental condition
was presented at the
hearing. In addition, character witnesses testified on Petitioner's behalf,
both live and by deposition. I.G.
Ex. 3; P. Exs. 3, 4, 5.
8. At the request of the Washington Board, Leslie H. Rawlings, Ph.D., conducted
a psychological
evaluation of Petitioner in the fall of 1989. P. Ex. 4/164.
9. In the course of Dr. Rawlings' evaluation, Petitioner described the events
surrounding the charges of
sexual misconduct. Petitioner's account of these events contained several contradictions.
This suggests
that Petitioner was less than forthright in describing these events to Dr. Rawlings
and it undermines
Petitioner's credibility. These inconsistent statements are also evidence of
Petitioner's untrustworhthiness.
P. Ex. 4/165-167, 171-172.
10. Results of psychological tests performed by Dr. Rawlings suggest that Petitioner
is an individual who
tends to be self-centered and who experiences considerable underlying resentment
toward obligations and
responsibilities. Dr. Rawlings' evaluation revealed that Petitioner suffers
from a personality disorder
characterized by obsessive compulsive and narcissistic features. P. Ex. 4/171-172.
11. At Petitioner's attorney's request, S. Harvard Kaufman, M.D., a psychiatrist,
conducted an evaluation
of Petitioner in the fall of 1989. Dr. Kaufman's evaluation revealed that Petitioner
suffers from a
hypomanic reaction, probably with a bipolar disease and from serious narcissistic
and dependent
personality disorders. P. Ex. 4/82-85, 87, 94, 103.
12. Petitioner had needed treatment for the diagnosed conditions for a long
period of time prior to Dr.
Kaufman's 1989 evaluation. P. Ex. 4/88.
13. On February 28, 1990, the Washington Board issued its decision and made
findings of fact which were
substantially identical to the allegations in the Statement of Charges relating
to Patients One, Two, and
Three. The Washington Board dismissed the charges relating to Patient Four on
the grounds that no
evidence in support of these charges was presented. The Washington Board concluded
that Petitioner's
conduct with respect to Patients One, Two, and Three constituted unprofessional
conduct. I.G. Ex. 3.
14. Based on its findings of fact and conclusions of law, the Washington Board
revoked Petitioner's
license to practice medicine in Washington. The Washington Board determined
that: 1) no license to
practice medicine may be issued to Petitioner unless he provides proof of his
rehabilitation; and 2) it will
not consider an application for the restoration of Petitioner's license until
after a ten year period has elapsed
from the date of its February 28, 1990 decision. I.G. Ex. 3.
15. The Secretary delegated to the I.G. the authority to determine, impose,
and direct exclusions, pursuant
to section 1128 of the Act. 48 Fed. Reg. 21661 (May 13, 1983).
16. Section 1128(b)(4)(A) of the Act authorizes exclusions from the Medicare
and Medicaid programs of
any individual whose license to provide health care has been revoked by a State
licensing authority for
reasons bearing on the individual's professional competence, professional performance,
or financial
integrity.
17. On March 5, 1991, pursuant to section 1128(b)(4)(A) 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 in Washington.
18. Petitioner's medical license was revoked by a State licensing authority
for reasons bearing on his
professional competence or performance. FFCLs 6, 13, 14.
19. The I.G. had authority to exclude Petitioner pursuant to section 1128(b)(4)(A)
of the Act. FFCLs 15,
16, 18.
20. Section 1128(b)(4)(A) of the Act does not establish a minimum or a maximum term of exclusion.
21. Regulations published on January 29, 1992 do not apply retroactively to
establish a standard for
adjudicating the reasonableness of the exclusion in this case. Behrooz Bassim,
M.D., DAB 1333 (1992).
22. 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.
23. The findings of the Washington Board create the presumption that Petitioner is untrustworthy.
24. On March 28, 1990, Petitioner filed an appeal in the Washington Superior
Court in and for Thurston
County challenging the Washington Board's license revocation.
The Washington Superior Court fully reviewed the record before the Washington
Board, and, on
December 6, 1991, it issued a decision affirming the Washington Board's license
revocation decision. P.
Exs. 1, 2.
25. The fact that the Washington Superior Court upheld the Washington Board's
decision is persuasive
evidence of Petitioner's untrustworthiness and the seriousness of his offenses.
FFCL 24.
26. On January 15, 1992, a California administrative law judge issued a proposed
decision revoking
Petitioner's license to practice medicine in California. This decision was based
on the findings of the
Washington Board. P. Ex. 6.
27. Prior to reaching the decision to revoke Petitioner's medical license in
California, the administrative
law judge held an evidentiary hearing at which Petitioner appeared and represented
himself. The
administrative law judge found that Petitioner offered no evidence to establish
that he had been
rehabilitated. P. Ex. 6.
28. On March 5, 1992, the Medical Board of California (California Board) adopted
the administrative law
judge's January 15, 1992 proposed decision. P. Ex. 6.
29. The January 15, 1992 proposed decision to revoke Petitioner's California
medical license, and the
California Board's adoption of this decision on March 5, 1992, are persuasive
evidence of Petitioner's
untrustworthiness and the seriousness of his offenses. FFCLs 26-28.
30. Petitioner asked the patients who brought the charges which resulted in
his license revocation
questions about the distribution of their pubic hair. Tr. 71-72.
31. Petitioner's rationale for asking questions about his patients' pubic hair
distribution is that the
distribution of pubic hair provides information about an individual's endocrine
function. Tr. 72-74.
32. Petitioner's unsubstantiated rationale for asking about pubic hair patterns
is not sufficient to overcome
the findings of the Washington Board that Petitioner asked his patients questions
of a sexual nature that
were not medically justified. Tr. 72-74.
33. Petitioner denies asking the patients who brought the charges which resulted
in his license revocation
inappropriate questions about their sexual habits and their orgasmic responses.
Tr. 71-72, 77.
34. Petitioner denies performing inappropriate physical examinations of his patients. Tr. 90.
35. Petitioner's unsupported denials of culpability are not credible, and they
are additional evidence of his
lack of trustworthiness.
36. Petitioner exploited the trust his patients felt towards him in order to
satisfy his own sexual desires.
Sexual misconduct of this nature poses a serious threat to the welfare of patients.
P. Ex. 4/16-21, 128.
37. The serious nature of the sexual misconduct which formed the basis of the
Washington Board's
revocation decision is reflected in the fact that the Washington Board determined
that Petitioner should not
be allowed to practice medicine in Washington for at least 10 years. FFCL 14.
38. Instead of accepting responsibility for his conduct, Petitioner has exhibited
a consistent pattern of
making unsupported allegations of wrongdoing against the complaining witnesses,
the medical experts, and
the members of the Washington Board who made the revocation decision. Tr. 57,
60, 62-66, 81, 87-89, 91,
93-94.
39. Petitioner has not sought psychotherapy for his mental disorders. Tr. 68-69.
40. Petitioner has demonstrated a disturbing tendency to excuse and rationalize
his misconduct. FFCLs
30-32.
41. The record is devoid of any credible evidence that Petitioner is rehabilitated.
42. Character evidence presented to the Washington Board by Petitioner's patients
and friends attests to
Petitioner's skills as a physician and his honesty in personal relationships.
P. Exs. 3, 4/138 - 162.
43. The character evidence of record does not derogate from the strong evidence
in this case showing that
Petitioner cannot be trusted to participate in Medicare and Medicaid programs.
FFCL 42.
44. Where the danger of harm to patients is great, a lengthy exclusion is justified
to protect beneficiaries
and recipients from even a slight possibility that they will be exposed to such
danger. Norman C. Barber,
D.D.S., DAB CR123 (1991). An even longer exclusion is justified where, as in
this case, there is evidence
that the excluded provider is likely to engage in the misconduct in the future.
45. A lengthy exclusion is needed in this case to satisfy the remedial purposes of the Act.
46. The remedial purpose of section 1128 is satisfied by the following exclusion:
Petitioner is excluded
for not less than nine years. At any time thereafter that Washington gives him
an unrestricted medical
license, he may apply for reinstatement as a Medicare/Medicaid provider. Or,
at any time after the nine
years that another State gives, or has given him, an unrestricted medical license,
and, prior to giving him an
unrestricted medical license, that State examined all of the legal and factual
issues considered by the
Washington Board and determined that Petitioner has provided proof of his rehabilitation,
then he may
apply for reinstatement as a Medicare/Medicaid provider.
RATIONALE
On February 28, 1990, the Washington Board revoked Petitioner's license to
practice medicine in
Washington based on findings that Petitioner had engaged in sexual misconduct
with three of his patients.
The I.G., pursuant to section 1128(b)(4)(A) of the Act, then excluded Petitioner
from participation in the
Medicare and Medicaid programs until Petitioner regains his license to practice
medicine in Washington.
Petitioner does not dispute that the I.G. had authority to impose and direct
an exclusion against him
pursuant to section 1128(b)(4)(A) of the Act. He disagrees as to the reasonableness
of the length of the
exclusion imposed and directed by the I.G.
I. Regulations published on January 29, 1992, do not apply retroactively to
I.G. determinations made prior
to the regulations' publication date.
A threshold issue in this case is whether regulations published by the Secretary
on January 29, 1992
establish criteria by which I must adjudicate the reasonableness of the exclusion
which the I.G. imposed
and directed against Petitioner. 57 Fed. Reg. 3298, 3330-41 (to be codified
at 42 C.F.R. Part 1001.)
During the February 28, 1992 prehearing conference, counsel for the I.G. asserted
that the new regulations
require that I sustain the exclusion imposed by the I.G. without considering
evidence offered by Petitioner
as to the exclusion's reasonableness. Counsel for the I.G. stated that there
would be no need for a hearing
if I decided that the regulations published on January 29, 1992 applied to this
case. During that
conference, I informed the parties that I was not inclined to rule that the
new regulations apply here, and I
stated that the case would proceed to hearing. March 5, 1992 Order and Notice
of Hearing at 2-3.
In his posthearing brief, Petitioner argued that the new regulations do not
apply to this case because they
were not in effect at the time these proceedings commenced. Petitioner's Posthearing
Brief at 3.
An appellate panel of the DAB addressed this issue in the decision Behrooz
Bassim, M.D., DAB 1333
(1992). In that case, the appellate panel held that, as interpreted by the I.G.,
the new regulations effected a
substantive change in the right of a petitioner to a de novo hearing to challenge
an exclusion pursuant to
section 1128(b)(4) of the Act. For that reason, the panel held that retroactive
application of the new
regulations would deprive petitioner of due process. The exclusion determination
in this case was made on
March 5, 1991. Therefore, under Bassim, the Part 1001 regulations, published
on January 29, 1992, do not
apply retroactively to establish a standard for adjudicating the reasonableness
of the exclusion in this case.
3/
II. The Reasonableness of the Exclusion
A. The remedial purpose of section 1128 of the Act is to protect federally-funded
health care programs
and their beneficiaries and recipients.
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 is 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 includes also neglectful or abusive conduct against program beneficiaries
and recipients. See S. Rep.
No. 109, 100th Cong., 1st Sess. 1, reprinted in 1987 U.S.C.C.A.N. 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
who have 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.
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. An appellate panel 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.
Robert M. Matesic, R.Ph., d/b/a Northway Pharmacy, DAB 1327, at 12 (1992).
It is evident that in evaluating these factors I must 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.
B. The revocation decisions of the State licensing authorities in Washington
and California are persuasive
evidence of Petitioner's untrustworthiness.
In this case, the State licensing authority in Washington revoked Petitioner's
license to practice medicine in
that State based on findings that Petitioner engaged in sexual misconduct with
three of his patients. The
Washington Board found that Petitioner had asked these patients questions of
a sexual nature which were
unrelated to their medical complaints. In addition, the Washington Board found
that Petitioner had
inappropriate sexual contact, including digital penetration of the vagina, with
one of the patients and that
he inappropriately examined the other two patients. FFCLs 6, 13. The Washington
Board determined that
it would not consider an application to reinstate Petitioner's medical license
for at least ten years and that it
would reinstate Petitioner's license after that period only if Petitioner provided
proof of rehabilitation.
FFCL 14.
Prior to reaching its decision, the Washington Board conducted an evidentiary
hearing. Petitioner was
represented by legal counsel at that hearing. The three women who brought the
complaints upon which the
Board based its revocation decision testified. In addition, Petitioner testified
and character witnesses
testified on Petitioner's behalf. Also, expert medical opinion evidence concerning
Petitioner's mental
condition was presented. FFCL 7.
In assessing Petitioner's trustworthiness to participate in the Medicare and
Medicaid programs, I place great
reliance on the Washington Board's decision to revoke Petitioner's medical license.
The Washington Board
had the opportunity to observe and judge the credibility of all the witnesses.
It concluded that, for reasons
related to his professional competence or performance, Petitioner is not sufficiently
trustworthy to be
allowed to engage in the practice of medicine for at least ten years. The decision
of the Washington Board
is convincing evidence that Petitioner is untrustworthy. See Behrooz Bassim,
M.D., DAB 1333, at 10-11
(1992).
My reliance on the Washington Board's revocation decision is further justified
by the fact that it has
withstood the rigors of judicial review. The Washington Superior Court fully
reviewed the record before
the Washington Board and affirmed the Washington Board's decision to revoke
Petitioner's medical license
for a minimum period of ten years. FFCL 24, 25.
As recently as March 1992, the licensing authority in California revoked Petitioner's
medical license in that
State for an indefinite period based on the findings of the Washington Board.
Prior to the issuance of this
decision, Petitioner was provided an evidentiary hearing conducted by an administrative
law judge.
Petitioner was present at this hearing. The administrative law judge issued
a proposed decision finding that
Petitioner had not offered any evidence to show that he had been rehabilitated.
The California Board
adopted the findings of the administrative law judge and revoked Petitioner's
license. The findings and
conclusions of the California licensing authority are additional persuasive
evidence of Petitioner's
untrustworthiness. FFCL 26-29.
The findings of the Washington Board create the presumption that Petitioner
is untrustworthy. Narinder
Saini, M.D., DAB 1371, at 6 (1992). In this proceeding, Petitioner has not provided
any credible evidence
to rebut the findings of the Washington Board. Petitioner's challenge to these
findings has consisted
principally of unsubstantiated denials of sexual misconduct and unsubstantiated
attacks on the motives and
integrity of the complaining witnesses, the medical experts, and the members
of the Washington Board
who made the revocation decision. Such unsupported assertions are not sufficient
to shift the burden to the
I.G. to prove the accuracy of the Washington Board's findings. Bernardo G. Bilang,
M.D., DAB 1295, at
10-11 (1992).
Petitioner admits that he questioned his patients about the distribution of
their pubic hair. However, he
denies that this line of questioning to his patients constitutes sexual misconduct.
According to Petitioner,
these questions were medically justified because the distribution of pubic hair
provides information about
an individual's endocrine function. Petitioner justified obtaining information
of this nature from
individuals who complained of high cholesterol on the grounds that a "good
physician doesn't isolate the
symptom from the rest of the patient." Tr. 74.
Petitioner stated that "[a]ny textbook of endocrinology worth its name"
would support his claim that pubic
hair distribution provides information about endocrine function. Tr. 73. However,
he did not provide
copies of any medical literature to substantiate this claim. In addition, during
the hearing before the
Washington Board, Petitioner offered the same explanation about the relationship
between endocrine
function and hair patterns to justify his questions. P. Ex. 5/89-90. The fact
that the Washington Board
concluded that Petitioner asked inappropriate questions suggests that the Washington
Board was not
persuaded by this explanation. In view of this, I conclude that Petitioner's
unsubstantiated rationale for
asking about pubic hair patterns is not sufficient to overcome the findings
of the Washington Board that
Petitioner asked his patients questions of a sexual nature that were not medically
justified.
Petitioner denied also that he asked his patients inappropriately intrusive
questions about their sexual habits
and their orgasmic responses. FFCL 33. He denied also performing inappropriate
physical examinations
of his patients. FFCL 34. In fact, Petitioner categorically denied performing
vaginal examinations of any
of his patients since 1986, two years before the alleged inappropriate examinations
took place. Tr. 90.
Again, Petitioner did not rebut the evidence of sexual misconduct relied on
by the Washington Board.
Mere unsubstantiated denials of misconduct are not sufficient to rebut the findings
of the Washington
Board. In addition, it is noteworthy that Petitioner made contradictory statements
about the events
surrounding the charges of sexual misconduct in the course of a psychological
evaluation performed at the
request of the Washington Board. FFCL 8-9. The fact that Petitioner's account
of these events contains
inconsistences suggests that he was less than forthright in describing these
events to the evaluating
psychologist and it undermines Petitioner's credibility. These inconsistent
statements are also evidence of
Petitioner's untrustworthiness.
I find that Petitioner's unsupported denials of culpability are not credible
and they are additional evidence
of his lack of trustworthiness.
C. The charges of sexual misconduct which formed the basis of the revocation decisions are serious.
When I evaluate the evidence in this case regarding Petitioner's trustworthiness,
I find that the charges of
sexual misconduct which formed the basis of the Washington Board's revocation
decision are serious.
The Washington Board found that Petitioner engaged in serious acts of inappropriate
and improper sexual
contact with three patients. The Washington Board based this on the testimony
of three female patients of
Petitioner. According to this testimony, Petitioner asked these patients personal
questions about their
sexual habits and desires. One patient testified that Petitioner asked her whether
she had double climaxes
and whether she had erotic dreams. P. Ex. 4/21. Another patient testified that
Petitioner asked her
whether she ever had group sex and how many men could she handle at one time.
P. Ex. 4/128. One of
the patients stated that Petitioner performed a physical examination of her
genitals on the pretext that he
needed to see her pubic hair pattern. P. Ex. 4/16. This patient stated that
after he conducted the
examination, he watched her get dressed, and told her that she was a desirable
woman. This patient stated
that during the same appointment, Petitioner gave her a big hug "to feel
the energy", and told her that he
could control his sexual energy for six hours. P. Ex. 4/18-19. When the appointment
was over, this patient
stated that Petitioner walked her to her car and said that he would like to
put a flower in her hair. P. Ex.
4/19-20.
The evidence in this case shows that Petitioner exploited the trust his patients
felt towards him in order to
gratify his own sexual desires. A physician owes a high duty of care to his
patients. A physician who
takes advantage of his patients for his own sexual gratification breaches this
duty of care and violates the
trust between physician and patient. 4/ Actions of this type pose a serious
threat to the welfare of patients.
See Leonard R. Friedman, M.D., DAB 1281, at 10-11 (1991). The seriousness of
this type of misconduct
is reflected in the fact that the Washington Board determined that Petitioner
should not be allowed to
practice medicine in Washington for at least 10 years.
D. The medical evidence of record establishes that Petitioner suffers from mental disorders.
The record contains medical opinion evidence showing that Petitioner has significant
psychological
disorders. Dr. S. Harvard Kaufman, a psychiatrist who examined Petitioner at
the request of Petitioner's
own attorney in connection with the proceeding before the Washington Board,
found that Petitioner suffers
from a hypomanic reaction, probably with a bipolar disease and from serious
narcissistic and dependent
personality disorders. FFCL 11. Dr. Kaufman concluded also that Petitioner had
needed treatment for the
diagnosed conditions for a long period of time prior to his evaluation, which
was performed in 1989.
FFCL 12.
Petitioner was examined also by Leslie H. Rawlings, a psychologist, at the
request of the Washington
Board. Dr. Rawlings reported that results of psychological tests performed by
him suggest that Petitioner
is an individual who tends to be self-centered and who experiences considerable
underlying resentment
toward obligations and responsibilities. Dr. Rawlings concluded that Petitioner
suffers from a personality
disorder characterized by obsessive compulsive and narcissistic features. FFCL
10. Dr. Rawlings noted
that Petitioner denied engaging in inappropriate behavior and he opined that
"[w]ithout assuming
responsibility for his behavior there is no basis upon which to pursue a psychotherapeutic
intervention." P.
Ex. 4/173. This conclusion implies that Petitioner needs psychotherapy, but
it shows that such therapy will
not be effective unless Petitioner assumes responsibility for his conduct. As
I discuss below, the evidence
fails to establish that Petitioner has confronted his problems and that he has
taken any steps towards
rehabilitation.
E. The record is devoid of credible evidence that Petitioner is rehabilitated.
What most disturbs me about this case is Petitioner's stubborn refusal to admit
or accept responsibility for
any wrongdoing, even when confronted with overwhelming evidence to the contrary.
Petitioner has not
demonstrated to me the slightest ability or inclination to recognize past mistakes
and to take action to
rehabilitate himself. I have no assurance that Petitioner would not in the future
repeat this conduct if he
were afforded an opportunity to do so.
Instead of accepting responsibility for his conduct, Petitioner has exhibited
a consistent pattern of making
unsupported allegations of wrongdoing against others. FFCL 38. Petitioner responded
to the allegations of
the three complaining witnesses by questioning their integrity and motives.
Tr. 57, 60, 81, 91. However,
the record is devoid of evidence showing that Petitioner is justified in raising
such questions.
Petitioner also raised the possibility of bias against him by members of the
Washington Board. Petitioner
made the unsubstantiated allegation that his medical license was revoked as
a result of a vendetta by
members of the Washington Board, based on his job performance as an epidemiologist
during the period
from 1973 to 1980. Petitioner advanced a rather bizarre and incoherent theory
that the Washington Board
viewed him as a liability because of his success in controlling measles. Petitioner
also made the
unsubstantiated assertion that the Washington Board saw him as a threat to the
power and financial health
of the established medical community because of his unconventional medical practices.
Tr. 87-89, 93-94.
These unsupported allegations of misconduct against individuals involved in
the Washington Board's
decision to revoke Petitioner's medical license is additional evidence of Petitioner's
lack of trustworthiness.
Petitioner testified at the July 14, 1992 hearing that he has not sought psychotherapy
treatment for the
conditions diagnosed by Dr. Kaufman. FFCL 39. Instead of accepting Dr. Kaufman's
recommendation
that he needs psychiatric treatment, Petitioner explained his lack of treatment
with an unpersuasive attack
on the ethics and professionalism of Dr. Kaufman. Tr. 62-66.
Petitioner has consistently refused to confront and correct the behavior which
led to the revocation of his
medical license. Rather than admitting to his own misconduct, Petitioner has
repeatedly attempted to shift
the blame for the loss of his medical license to other individuals involved
in the Washington license
proceeding by making unjust accusations of misconduct against them.
Not only has Petitioner refused to admit to wrongdoing, but he has demonstrated
a disturbing tendency to
excuse and rationalize his misconduct. This is evident in his explanation for
asking his patients about their
pubic hair patterns. This testimony shows that Petitioner not only refused to
recognize the inappropriate
nature of his questions, but he was able also to convince himself that asking
these questions was helpful to
his patients. Tr. 72-74.
Petitioner testified before me that it was his belief that the Washington Board
revoked his medical license
because it wanted to penalize him for his unconventional medical practices.
Tr. 93-94. He testified at the
California license revocation proceeding that he considers himself to be a "medical
deviate" because he
believes in holistic medicine, and he is not interested in financial success.
He indicated that he wished to
practice in California because he believes that Californians are open to unorthodox
medical practices. P.
Ex. 6/2. The picture that emerges from the record is that Petitioner sees himself
as an enlightened
physician who engages in unorthodox medical practices which are superior to
conventional treatment
protocols. Petitioner has demonstrated a dangerous tendency to engage in inappropriate
medical practices
and then self-righteously promote these practices as being proper. Petitioner's
propensity to be an advocate
for his own medical philosophy even when it collides with the dictates of acceptable
medical practices is a
serious threat to program beneficiaries and recipients because it shows that
he is likely to engage in
inappropriate conduct in the future.
In light of the absence of any evidence of rehabilitation, I conclude that
Petitioner is untrustworthy and that
he poses a threat to the welfare of program beneficiaries and recipients.
In reaching this conclusion, I have considered the character evidence Petitioner
offered at the proceeding
before the Washington Board. This evidence, provided by Petitioner's patients
and friends, attests to
Petitioner's skills as a physician and his honesty in his personal relationships.
FFCL 42. This testimony
shows that Petitioner has had patients who have been satisfied with his medical
skills and that Petitioner
has displayed honesty in his social relationships. However, it offers little
in the way of probative evidence
regarding the trustworthiness of Petitioner with respect to the sexual misconduct
which formed the basis of
the Washington Board's revocation decision. Accordingly, I find that the character
evidence of record does
not derogate from the strong evidence in this case showing that Petitioner cannot
be trusted to participate in
the Medicare and Medicaid programs.
F. A minimum exclusion of nine years is consistent with the remedial purpose of the Act.
By the terms of its revocation decision, the Washington Board will not even
consider an application for
restoration of Petitioner's medical license for a period of ten years from the
date of its February 28, 1990
decision. The I.G. issued its exclusion decision on March 5, 1991, approximately
a year after the
Washington Board issued its revocation decision. Under these facts, the Washington
Board will be willing
to consider an application to restore Petitioner's medical license approximately
nine years after the I.G.
excluded Petitioner.
The term of the exclusion imposed and directed by the I.G. against Petitioner
is coterminous with
Petitioner's license revocation in Washington. Petitioner will be eligible to
apply to the I.G. for
reinstatement as a provider of Medicare and Medicaid upon reinstatement of his
Washington license to
practice medicine. Since the Washington Board refuses to consider an application
to restore Petitioner's
license prior to February 28, 2000, the effect of the I.G.'s March 5, 1991 exclusion
decision is to bar
Petitioner from participating in the Medicare and Medicaid programs for a minimum
period of
approximately nine years.
The evidence in this case provides strong justification for an exclusion of
at least nine years. 5/ In view of
the serious nature of the offenses of sexual misconduct which formed the basis
of the Washington
revocation decision and the absence of assurances that Petitioner will not engage
in this misconduct in the
future, I find that a minimum exclusion of nine years is not extreme or excessive
as a length of time
necessary to establish that Petitioner is no longer a danger to Medicare and
Medicaid beneficiaries and
recipients.
It is instructive that under section 1128(a)(2) of the Act, Congress has made
a legislative determination that
an exclusion be imposed for a minimum of five years in cases where a provider
has been convicted of a
criminal offense relating to abuse of patients in connection with the delivery
of a health care item or
service. While the Petitioner in this case has not been convicted of a criminal
offense, his misconduct was
similar to the type of behavior Congress intended to cover in enacting section
1128(a)(2). This analysis
provides a framework that can be used to determine the appropriate length of
exclusion needed in this case.
In my judgment, sexual abuse of patients where the patients' trust in their
physicians is exploited to enable
such physicians to satisfy sexual desires is a compelling justification to support
a lengthy exclusion. Under
circumstances such as this, where the danger of harm to patients is great, a
lengthy exclusion is justified to
protect beneficiaries and recipients from even a slight possibility that they
will be exposed to such danger.
Norman C. Barber, D.D.S., DAB CR123 (1991). An even longer exclusion is justified
where, as in this
case, there is evidence that the excluded provider is likely to engage in the
misconduct in the future.
Although Petitioner may be eligible to apply for reinstatement of his license
to practice medicine in
Washington on February 28, 2000, his eligibility for reinstatement of his medical
license is conditioned
also on his proving that he has been rehabilitated. There is no guarantee that
Petitioner will meet this
requirement. The Washington Board may refuse to reinstate Petitioner's medical
license for an indefinite
period in the event that it deems this to be necessary to protect the citizens
of Washington.
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, DAB 1281, at 7. In such
circumstances, it is
appropriate for the I.G., 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.
In his posthearing brief, Petitioner does not contend that the I.G.'s exclusion
is unreasonable because it is
indefinite. In addition, he does not argue that the I.G.'s exclusion is excessive
because there is convincing
evidence of his trustworthiness in this case. Instead, he takes issue with the
I.G.'s exclusion because it
ignores the possibility that his medical license might be reinstated in California
before his license is
reinstated in Washington.
Petitioner states that, under California law, he is precluded from filing an
application for reinstatement of
his California medical license for three years and that the California Board
must be satisfied that he is
rehabilitated before such an application for reinstatement can be granted. Petitioner
asserts also that since
California revoked his medical license based on the Washington Board's revocation
decision, the California
Board is fully aware of the concerns of the Washington Board. Petitioner contends
that, under these
circumstances, it is appropriate for the I.G. to defer to the California Board
in determining that he has
demonstrated sufficient trustworthiness to seek reinstatement into the Medicare
and Medicaid programs.
Petitioner contends that the length of the exclusion in this case should be
until he obtains his license to
practice medicine in either Washington or California, whichever happens first.
Petitioner's Posthearing
Brief at 3-4.
The effect of the exclusion imposed by the I.G. is to exclude Petitioner for
a minimum period of
approximately nine years. Assuming that Petitioner's characterization of California
law is correct, it is
possible Petitioner could be relicensed in California as early as three years
from the California Board's
1992 revocation decision. Were I to modify the exclusion period in the manner
proposed by Petitioner, it
is possible that Petitioner's exclusion from the Medicare and Medicaid programs
could end several years
before the nine year minimum exclusion contemplated by the I.G.'s exclusion.
The I.G. argues that adopting Petitioner's proposal to make the exclusion coterminous
with the
reinstatement of Petitioner's medical license in California (if California restores
his license before
Washington) would frustrate one of Congress' primary goals in enacting section
1128(b)(4). According to
the I.G., the legislative history of section 1128(b)(4) demonstrates that one
of the main problems Congress
sought to address was the phenomenon of a doctor losing his license in one State
and then using a license
in another State to continue or reestablish participation in federally-funded
health care programs. S. Rep.
No. 109, 100th Cong., 1st Sess. 1, reprinted in 1987 U.S.C.C.A.N. 684. I.G.
Posthearing Brief at 14.
The evidence in this case shows that Petitioner is an individual who is manifestly
untrustworthy. His
license to practice medicine has been revoked in Washington and California based
on findings that he
engaged in sexual misconduct with three different patients. The decision of
the State licensing authority in
Washington has been upheld on appeal. Petitioner's misconduct is serious and
I infer from the nature of
these offenses that Petitioner poses a threat to the welfare of his patients.
Petitioner persists in refusing to
admit that he engaged in sexual misconduct, but instead has responded to the
Washington Board's findings
with unsubstantiated denials, false accusations against others, and a propensity
to justify and legitimize
inappropriate medical treatment practices. Petitioner's unsubstantiated assertions
are not credible, and this
is evidence of his untrustworthiness. The evidence shows also that Petitioner
suffers from mental
disorders, and that he has not sought treatment for these disorders. Under these
circumstances, I am
unwilling to leave to the determination of another State, including Washington,
the question of when the
exclusion should end, at least until a minimum nine year period has expired,
during which time Petitioner
can demonstrate he is trustworthy to resume his participation as a provider.
Upon the expiration of the nine years which I have found to be the minimum
length of time necessary to
establish his trustworthiness, an indefinite exclusion until Petitioner's Washington
license is fully restored
is reasonable. 6/ Alternatively, if Petitioner is able to practice in another
State before his license in
Washington is fully restored, then Petitioner's exclusion will last until the
minimum nine year period
expires, provided that the new State licensing authority has granted Petitioner
a license without restriction
after conducting a full review of all the legal and factual issues which were
before the State of Washington
and has determined that Petitioner is rehabilitated. 7/
In view of the length of the nine year minimum exclusion which I have determined
is necessary in this
case, it would not be fair to Petitioner to condition the termination of his
exclusion on the reinstatement of
his license in Washington. During the course of the nine years, Petitioner may
choose to relocate to
another State for reasons that are unrelated to his trustworthiness. In that
event, it would be unreasonable
to require that Petitioner obtain a medical license in Washington as a condition
for terminating the
exclusion period. Walter J. Mikolinski, Jr., DAB 1156 (1990). In addition, an
exclusion of at least nine
years would dissipate the I.G.'s concerns about forum shopping.
In Jerry D. Harrison, D.D.S., DAB CR203 (1992), aff'd DAB 1365 (1992), I fashioned
a similar exclusion,
with the difference that I excluded the health care provider in Harrison for
a minimum period of five years
rather than nine years. Harrison, like this case, was brought under section
1128(b)(4) and involved a
provider who lost his license based on sexual misconduct and who suffered from
diagnosed mental
disorders requiring treatment. However, Harrison is distinguishable from this
case because the excluded
provider provided affirmative evidence of trustworthiness that is not present
in this case. In Harrison, the
provider, unlike Petitioner, admitted that he had engaged in sexual misconduct,
recognized that it was
wrong, and was under active treatment for his mental disorders. The State of
California in Harrison, upon
full review of the facts, allowed Petitioner to practice in California, based
on certain restrictions, including
the successful completion of a period of probation lasting five years. Based
on the fact that Petitioner was
unable to apply for an unrestricted license for at least five years, I excluded
him for at least that period.
The evidence in this case shows that Petitioner poses a more serious threat
to the safety of program
beneficiaries and recipients than the excluded provider in Harrison, justifying
an exclusion that is
substantially longer than the five year minimum period that I determined was
reasonable in Harrison. In
this case, the State licensing authority prohibited Petitioner from applying
for reinstatement of his license
for a period of nine years from the date of the exclusion. Petitioner refuses
to acknowledge any
wrongdoing, even when confronted with overwhelming evidence to the contrary,
and the record is devoid
or any evidence that Petitioner has taken even the first step towards rehabilitation.
I have no assurance that
Petitioner will not repeat this misconduct if afforded the opportunity to do
so.
CONCLUSION
Based on the material facts and the law, I conclude that the remedial purpose
of section 1128 is satisfied by
the following exclusion: Petitioner is excluded for not less than nine years.
At any time thereafter that
Washington gives him an unrestricted medical license, he may apply for reinstatement
as a
Medicare/Medicaid provider. Or, at any time after the nine years that another
State gives, or has given
him, an unrestricted medical license, and, prior to giving him an unrestricted
medical license, that State
examined all of the legal and factual issue
considered by the Washington Board and determined that Petitioner has provided
proof of his
rehabilitation, then he may apply for reinstatement as a Medicare/Medicaid provider.
____________________________
Edward D. Steinman
Administrative Law Judge
1. "State health care program" is defined by section 1128(h) of the
Act, 42 U.S.C. 1320a-7(h), to cover
three types of federally-assisted programs, including State plans approved under
Title XIX (Medicaid) of
the Act. Unless the context indicates otherwise, I use the term "Medicaid"
hereafter to represent all State
health care programs from which Petitioner was excluded.
2. The transcript of the hearing and exhibits will be referred to as follows:
Hearing Tr. Tr. (page)
I.G. Exhibits I.G. Ex. (number/page)
Petitioner Exhibits P. Ex. (number/page)
3. In light of the Bassim decision, I do not need to decide the issue of whether
the regulations establish
criteria which govern administrative law judges' review of exclusion cases.
I note, however, that in Charles
J. Barranco, M.D., DAB CR187 (1992), I reasoned that the regulations cited by
the I.G. establish criteria to
be used by the I.G. in making exclusion determinations, but do not establish
criteria binding on an
administrative law judge in conducting a de novo review of the reasonableness
of an exclusion.
4. In this regard, I point out that one of the complaining witnesses testified
at the hearing before the
Washington Board that because she trusted him she was slow to realize that Petitioner's
sexual questions
and his examination of her genitals was inappropriate. This is evidence that
Petitioner took advantage of
the trust inherent in the physician/patient relationship in order to gain sexual
access to his patient. P. Ex.
4/17-18. See Bruce Lindberg, D.C., DAB CR233 (1992).
5. Petitioner is approximately 70 years old. Tr. 35-36. I recognize that in
view of Petitioner's age, he
has only a limited number of years left to practice medicine. I did not, however,
consider Petitioner's age
in determining the reasonableness of the length of the exclusion in this case.
Age is not a factor which
bears directly on the issues of Petitioner's trustworthiness and whether the
program's interests can be
sufficiently protected by a shorter exclusion. See Francis Shaenboen, R.Ph.,
DAB 1249, at fn. 8 (1991).
The remedial considerations of the Act must take precedence over any adverse
impact a lengthy exclusion
would have on Petitioner's ability to practice medicine in the future.
6. Petitioner's attorney represented that the Washington Superior Court's decision
upholding the
Washington Board's revocation decision is currently on appeal. Tr. 19. In the
event that the Washington
Board's revocation decision is reversed or vacated, he would be reinstated retroactive
to the date of the
exclusion. 42 C.F.R. 1001.3005(a) (57 Fed. Reg. at 3343).
7. At the expiration of the exclusion period, Petitioner may apply for, but
is not guaranteed,
reinstatement pursuant to Subpart F of Part 1001 of the 1992 Regulations. In
the event that Petitioner
applies for reinstatement into the Medicare and Medicaid programs, the I.G.,
in determining whether
Petitioner has successfully undergone rehabilitation, should consider whether
Petitioner has recognized his
wrongdoing, has engaged in no further sexual misconduct, and has undergone appropriate
treatment for
mental disorders.