Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
In the Case of: DJP, M.D., Petitioner,
- v -
The Inspector General.
DATE: July 16, 1993
Docket No. C-93-050
Decision No. CR276
DECISION
I. PROCEDURAL OVERVIEW
On November 20, 1992, the Inspector General (I.G.) for the
Department of Health and Human Services
(DHHS) notified Petitioner that he was to be excluded from
participation in various federally-funded health
care programs, including the Medicare and Medicaid programs, until
he regains his license to practice
medicine in the State of Colorado. The asserted basis for the
exclusion is section 1128(b)(4)(A) of the
Social Security Act (Act). Section 1128(b)(4)(A) of the Act
permits the Secretary of DHHS to exclude an
individual
whose license to provide health care has been revoked or
suspended by any State licensing authority ...
for reasons bearing on the individual's ... professional
competence, professional performance, or financial
integrity
Act, section 1128(b)(4)(A).
On January 14, 1993, Petitioner requested a hearing on the
propriety of his exclusion. He stated, as his
basis, "[m]y license to practice medicine in Colorado was not
revoked for reasons relating to my Œprofessional competence, professional
performance, or financial
integrity, but because of an illness I am
recovering from."
During the prehearing conference of February 25, 1993, the parties
agreed to submit the case for summary
disposition. In accordance with my briefing order, the I.G. filed
a motion for summary disposition with
supporting brief (to be referred to herein as I.G. Br. at (page))
and four attached exhibits (to be referred to
herein as I.G. Ex. (number) at (page)). Petitioner filed his brief
in opposition (P. Br. at (page)), which was
followed by the I.G.'s reply brief (I.G. R. Br. at (page)).
Petitioner did not submit any exhibits.
The parties' submissions establish that they disagree on whether
Petitioner's medical license was revoked
for reasons bearing on his professional competence or performance.
The dispute exists because the
Colorado State Board of Medical Examiners (Medical Board) had
revoked Petitioner's license under a part
of the Colorado statutes that refers to the use of fraud,
misrepresenta-tion, or deception in applying for,
securing, or renewing a license. I.G. Ex. 3 at 23, 24. The
Medical Board specifically declined to revoke
Petitioner's license under the statutory section that refers to a
practitioner's inability to render medical
services with reasonable safety and skill due to a mental or
physical disability. Id. Even though Petitioner
was found to have a mental disability that adversely affects his
ability to practice medicine, the Medical
Board concluded -- in considering the discipline warranted by
Petitioner's mental disability alone -- that
Petitioner could be allowed to practice medicine with safety to his
patients, under certain restrictions. Id. at
29; I.G. Ex. 4.
For the reasons that follow, I affirm the exclusion imposed and
directed against Petitioner by the I.G. I
affirm the exclusion even though the Medical Board found that
Petitioner received consistently good
ratings throughout his medical career and that, had Petitioner not
given false statements in his license
application and license renewal form, he would have been allowed to
retain his medical license.
II. FINDINGS OF FACT AND CONCLUSIONS OF LAW
A. Findings of Fact and Conclusions of Law by Agreement of the
PartiesΠ1. Petitioner was licensed to practice medicine in the State
of Colorado on March 16, 1990.
2. Petitioner specialized in internal medicine during his
medical residency.
3. The Colorado State Board of Medical Examiners (Medical
Board) is the State agency responsible for
the licensure of and discipline of physicians in Colorado.
4. The Medical Board determined that Petitioner is suffering
from a severe and chronic mental
disability relating to a psychosexual disorder.
5. The Medical Board determined that Petitioner acted with
reckless disregard for the truth when he
answered "no" to question 20 on his initial application for
licensure in Colorado that asked "Do you now
have, or have you ever had, a physical or mental condition which
might affect your ability to practice
medicine?"
6. The Medical Board determined that "[b]ased on the record
as a whole, [Petitioner's] false answer to
question 20 on his application demonstrates that he is not
qualified to practice medicine in Colorado at this
time" and revoked Petitioner's license to practice medicine.
7. Upon review, on June 19, 1992, Hearing Panel B of the
Medical Board rendered a "Final Board
Order" affirming the initial decision to revoke Petitioner's
license to practice medicine in the State of
Colorado.
8. On November 20, 1992, the I.G. notified Petitioner that,
effective December 10, 1992, he was being
excluded from the Medicare and Medicaid programs pursuant to
section 1128(b)(4) of the Act, 42 U.S.C.
1320-7(b)(4).
9. The I.G.'s exclusion was predicated upon the Medical
Board's revocation of Petitioner's license,
which was for unprofessional conduct, namely for recklessly
disregarding the truth when completing his
licensure application.
10. The I.G. excluded Petitioner from the Medicare and
Medicaid programs until he regains a valid
license to practice medicine in Colorado.
Π11. The regulations require that the length of an exclusion
imposed under section 1128(b)(4) will never
be for a period of time less than the period during which an
individual's license is revoked, unless
paragraph (c) applies. 42 C.F.R. 1001.501(b)(1) (1992).
Paragraph (c) allows for a lesser period of
exclusion when a second State licensing board, after being fully
apprised of all the circumstances
surrounding the revocation, suspension, or loss of the individual's
license, decides to grant that individual a
license or decides not to take any significant adverse action
relating to a currently held license.
12. The regulations at 42 C.F.R. 1001.501(b)(1) are binding
upon the ALJs, the Departmental Appeals
Board, and federal courts. 58 Fed. Reg. 5618 (1993) (to be
codified at 42 C.F.R. 1001.1(b)).
B. Other Findings of Fact And Conclusions of Law.
13. The Secretary of DHHS delegated to the I.G. the authority
to determine, impose, and direct
exclusions pursuant to section 1128 of the Act. 53 Fed. Reg. 12993
(1988).
14. Petitioner cannot avail himself of the two
exceptions found at 42 C.F.R. 1001.501(c).
15. With regard to section 1001.501(c)(1),
there is no evidence that Petitioner holds a
medical license outside of Colorado.
16. With regard to section 1001.501(c)(2),
Petitioner is not entitled to an ALJ hearing
on the possibility of reinstatement into the
programs if he should secure a license from
another State.
17. In deciding whether to revoke Petitioner's medical
license, the Medical Board determined, inter
alia, that:
a. Petitioner's psychosexual disorder (see finding 4,
above) has affected him in his dealings with
patients, including having caused him to be sexually aroused by his
patients, impaired his ability to make
differential diagnosis during October of 1990, and caused him to
have sexual intimacies with a patient.
I.G. Ex. 3 at 7, 13.
Πb. There exists a risk that Petitioner will act out
sexually in the context of the physician-patient
relationship. Id. at 13.
c. Various incidents, including Petitioner's giving a
false answer to question 20 on his application
form for a medical license in Colorado, demonstrate that Petitioner
engages in a pattern of trying to conceal
his sexual disorder by telling half-truths or lies. Id. at 18 -
21.
d. Petitioner has suffered from denial, which is
a fundamental
symptom of his sexual addiction.
Id. at 21.
e. With treatment, Petitioner is in the early stage of
recovery, which is a lifetime process. Id. at 12.
f. Petitioner is at risk for relapse, which is a typical
feature of any addictive illness. Id. at 12 - 13.
g. Petitioner's disorder renders him unable to perform
medical services with safety to patients. Id. at
24.
18. In addition to having found that on his initial
application form for a medical license in Colorado
Petitioner had answered question 20 with reckless disregard for the
truth (finding 5), the Medical Board
found also that Petitioner had given a "knowingly false" answer to
the same question on his license renewal
application during the Spring of 1991. Id. at 19.
19. Question 20 on the initial application and renewal
application forms bears on Petitioner's
professional competence and performance in that it asks about his
ability to practice medicine. Findings 5
and 18.
20. By falsely denying on his initial application form and
his renewal application form that he had any
mental condition that might affect his ability to practice
medicine, Petitioner misrepresented his
professional competence and performance. Findings 5, 18, 19.
21. The decision to revoke Petitioner's medical license due
to his false answer to question 20 (finding
6) was made for reasons bearing on his professional competence and
performance. Findings 17, 19, and
20.Π22. The I.G. acted within the scope of the I.G.'s authority
in directing and imposing the permissive
exclusion under section 1128(b)(4)(A) of the Act, for the
protection of the programs' beneficiaries and
recipients. Findings 17, 19 - 21.
23. Both parties agree that the provisions of 42 C.F.R.
1001.501(b)(1) are binding and, therefore, that
the exclusion must be for the period during which Petitioner's
license remains revoked in Colorado.
Findings 10, 11, 14, 15, 16.
24. There exists no dispute concerning thereasonableness of
Petitioner's period of
exclusion. Finding 23.
25. The law and facts of record clearly establish
that there is a proper basis for Petitioner's
exclusion under section 1128(b)(4)(A) of the Act.
Findings 1 - 24.
III. ANALYSIS
A. My Decision centers on why the Medical Board revoked
Petitioner's license.
The sole issue of material fact before me is whether the I.G. had
a basis for excluding Petitioner from
participating in the Medicare and Medicaid programs under section
1128(b)(4)(A) of the Act. Petitioner
and the I.G. agree that summary disposition is appropriate. P. Br.
at 8, 10. Both parties acknowledge that
the I.G.'s authority to exclude Petitioner can arise only from
section 1128(b)(4)(A) of the Act. Assuming
there exists a basis for the exclusion, the regulatory requirements
of 42 C.F.R. 1001.501(b)(1) control all
adjudications on the issue of whether the period of exclusion is
reasonable. I.G. Br. at 7, 18 - 19; P. Brief
at 4 (referring to the I.G.'s proposed finding number 21).
The regulations require that, unless the enumerated exceptions
apply, the length of an exclusion imposed
pursuant to section 1001.501(b)(1) "will never be for a period of
time less than the period during which an
individual's or entity's license is revoked, suspended or otherwise
not in effect as a result of, or in
connection with, a State licensing agency action." 42 C.F.R.
1001.501(b)(1). Here the State's revocation
of Petitioner's license is to remain in effect indefinitely and the I.G. imposed
a minimum coterminous
exclusion pursuant to said regulation. The I.G. did not give any
consideration to the existence of any of the
aggravating factors listed in 42 C.F.R. 1001.501(b)(2) for
lengthening the exclusion. See the I.G.'s
November 20, 1992 exclusion letter. Thus, none of the mitigating
circumstances enumerated in the
regulation applies because they may be considered "[o]nly if any of
the aggravating factors listed ...
justifies a longer exclusion." 42 C.F.R. 1001.501(b)(3).
Even though the facts of this case do not necessitate my reaching
the issue of what factors can mitigate the
length of Petitioner's exclusion, I note that Petitioner has
proposed several findings of fact that are
inconsistent with 42 C.F.R. 1001.501(b)(3). The absence of
alcohol or drug related problems (P. Br. at 9,
proposed finding 6), the Medical Board's ability to limit a
physician's practice (id., proposed finding 12),
the absence of an obligation to tell Petitioner's medical school of
his arrest (id., proposed finding 13), the
absence of patient complaints during Petitioner's residency (id.,
proposed finding 14), and praise by
Petitioner's supervisors (id., proposed finding 16) are not among
the enumerated mitigating factors that can
be considered under 42 C.F.R. 1001.501(b)(3) for reducing
Petitioner's exclusion period. I have therefore
rejected the use of these assertions as formal findings even though
they are not refuted. To the extent I
discuss these or like facts, I do so for background purposes only.
Petitioner objected to the I.G.'s proposed finding number 20 that
"the exception found at 42 C.F.R.
1001.501(c) (1992) is inapplicable to the case at bar." I.G. Br.
at 7; P. Br. at 7. Petitioner argued that the
exception "should be afforded to Petitioner at any time." P. Br.
at 7. Petitioner further argued that he has
the option of securing a license in another State, that he is not
limited to regaining his Colorado license,
and that, therefore, his exclusion should remain in effect only
until he obtains a valid license to practice
medicine in any State. Id. at 8. Even though Petitioner has not
indicated to which of the two possible
exceptions listed in subsection (c) he is directing his various
arguments, all aspects of his propositions lack
legal or factual support in the proceedings before me.
The first exception in subsection (c) refers to determining the
length of the exclusion where, "prior to the Œnotice of exclusion
by the OIG," the licensing authority of a
different State has granted an individual a
license or refrained from taking any adverse action against an
individual's license after having been fully
apprised of circumstances that gave rise to the individual's
license suspension or revocation in another
State. 42 C.F.R. 1001.501(c)(1) (emphasis added). This
regulatory exception, by its unequivocal terms,
is not available to Petitioner at any time as he argues. It was
available to Petitioner only prior to his receipt
of the I.G.'s November 20, 1992 letter notifying him of his
exclusion. Petitioner has never alleged that he
holds a license outside Colorado. In the record before me, there
is evidence only concerning the actions
taken by Colorado's licensing authority. Having agreed with the
I.G. that I should decide this case by
summary disposition on the present record (P. Br. at 8), Petitioner
has waived the submission of any
evidence he might have had relating to any valid license he may
hold elsewhere. This regulatory exception
is not available to Petitioner now or later.
The second exception in subsection (c) relates to the I.G.'s
discretionary authority to permit early
reinstatement of an excluded individual where another State's
licensing authority either grants the
individual a license or refrains from taking adverse action against
an individual's current license after being
fully apprised of the circumstances that gave rise to a license
suspension or revocation. 42 C.F.R.
1001.501(c)(2). Here, not only has the delegation been made to
the I.G., the regulation limits the
Petitioner's rights under this subsection to having the I.G.
"consider a request for early reinstatement"
(emphasis added). Id. I have no authority to adjudicate the issue
of whether Petitioner can or should
receive early reinstatement at the I.G.'s discretion. See, 42
C.F.R. 1001.2007. Moreover, Petitioner is not
entitled to an advisory opinion concerning the possibility that he
might be able to obtain a license from
another State.
On the issue of the I.G.'s basis for excluding Petitioner under
section 1128(b)(4)(A) of the Act, the parties
agree that the principal question of fact is whether Petitioner's
license was revoked for reasons bearing on
his professional competence or performance. P. Br. at 8.
The license revocation proceedings arose after Petitioner informed
the Medical Board, by letter dated ŒDecember 31, 1990, that he had pled
guilty to a charge of indecent
exposure and was receiving treatment
for what he described as his sex addiction. I.G. Ex. 2 at 2; I.G.
Ex. 3 at 1 - 2. On July 25, 1991, Inquiry
Panel A of the Medical Board, upon reviewing Petitioner's file,
summarily suspended Petitioner's license to
practice medicine. Panel A's conclusion was that, due to
Petitioner's mental disability, his continued
practice of medicine constituted "an imminent threat to the public
health, safety and welfare of the People
of Colorado..." I.G. Ex. 2 at 4. Also, Panel A further directed
the Office of Attorney General to request
revocation of Petitioner's license at a hearing. Id.
An evidentiary hearing was held before State Administrative Law
Judge Nancy Connick, during September
and October 1991, on the issue of whether Petitioner's license to
practice medicine should be revoked
pursuant to Colo. Rev. Stat. 12-36-101 to 126 (1985, 1991).
I.G. Ex. 3. The State Attorney General
charged Petitioner with two separate counts of "unprofessional
conduct" which, under Colorado law,
subjects a licensee to discipline. Count I alleged that Petitioner
had violated Colo. Rev. Stat. 12-36-
117(1)(o) (1985), which defines "unprofessional conduct" as "[s]uch
physical or mental disability as to
render the licensee unable to perform medical services with
reasonable skill and with safety to the
patients." I.G. Ex. 3 at 23, 24. Count II alleged that Petitioner
had violated Colo. Rev. Stat. 12-36-
117(1)(a) (1985), which defines "unprofessional conduct" as
"[r]esorting to fraud, misrepresentation or
deception in applying for, securing, renewing, or seeking
reinstatement of a license ...." Id. On the basis of
the evidence before her, Judge Connick concluded that violations
had been established under both counts;
however, revocation of Petitioner's medical license was warranted
only under Count II. Id. at 23 - 31.
Pursuant to exceptions filed by Petitioner, Judge Connick's Initial
Decision, dated November 18, 1991, was
reviewed by the Medical Board's Hearing Panel B. I.G. Ex. 4. In
a Final Board Order, Panel B
incorporated Judge Connick's hearing decision in full and affirmed
and adopted her findings of fact and
conclusions of law. Id. at 1. However, Panel B specifically
rejected that part of Judge Connick's decision
that serious consideration be given to any motion for
reconsideration Petitioner might file after the passage
of three or more years. Id. at 2. Panel B said it did not wish to create any
expectation of reinstatement. Id.
There was no further appeal of the Medical Board's decision to
revoke Petitioner's license.
In addressing the present issue of whether Petitioner's license was
revoked by the Medical Board for
reasons bearing on his professional competence or performance, I
have analyzed the relevant parts of Judge
Connick's decision as affirmed, adopted, and incorporated in the
Medical Board's Final Board Order. In
my Decision, I refer to the findings and conclusions as Judge
Connick's for convenience.
It is well settled that, in contesting their exclusions, parties
may not collaterally attack the findings made
against them in other forums by other adjudicators of competent
jurisdiction. Petitioner herein, while
urging me to decide this case on the basis of an evidentiary record
consisting solely of the administrative
decisions issued in his license revocation proceedings and parts of
the Colorado Revised Statutes (see, e.g.,
P. Br. at 10 (proposed finding 19)), also urges me to draw
conclusions about his honesty and his fitness to
practice medicine that are not in total accord with Judge Connick's
findings (see, e.g., P. Br. at 8 - 10
(proposed findings 4, 5, 9, 15)). Moreover, Petitioner reasserted
parts of his defense that had failed in the
license revocation proceedings. In deciding whether the I.G. had
a proper basis for excluding Petitioner
under section 1128(b)(4)(A) of the Act, I am not altering Judge
Connick's findings or conclusions on the
issues before her. Instead, I am rejecting Petitioner's proposed
findings and arguments that are at variance
with Judge Connick's decision.
B. The progression of Petitioner's disorder has caused him to deny
its impact on his ability to safely
practice medicine.
Judge Connick found that Petitioner suffers from a mental disorder
that has intensified over time and has
persisted despite treatment. I.G. Ex. 3 at 24. Judge Connick
adopted the diagnosis of various mental
health experts that Petitioner clearly suffers from a psychosexual
disorder, including the paraphilia of
exhibitionism and other paraphilia not otherwise specified, which
is characterized by significant addictive
features. In addition, Petitioner has suffered from depression at times, as
well as from a personality
disorder that includes narcissistic, passive/dependent, and
obsessive/compulsive traits. His disorder is
chronic, severe, and compulsive because it has lasted more than six
months and he "exhibits a
preoccupation with sexual behavior which becomes so strong that it
overrides the adverse consequences of
such behavior." Id. at 11, 16, 33.
In addition, Petitioner has suffered from denial as a part of his
addictive disorder, and he has engaged in a
pattern of trying to conceal his sexual disorder by telling
half-truths or lies to authorities. Id. at 21.
Petitioner's actions in this regard "constitute[s] unprofessional
conduct by resorting to fraud,
misrepresentation, or deception in applying for and in securing his
license ...." Id. at 29.
The record shows the impact Petitioner's disorder has had on his
dealings with patients and on his
willingness to tell the truth about the consequences of his
disorder.
When Petitioner was very young, he began to manifest symptoms of
what would later be diagnosed as his
sexual disorder. Id. at 2. His early symptoms included
exhibitionism, compulsive masturbation, and
attempts to participate in voyeurism. Id. The symptoms persisted
through his adolescence and college
years. Id.
After Petitioner enrolled in Northwestern University's School of
Medicine in September of 1984, the rate
of his exhibitionism increased. Id. The victims of his
exhibitionism were all unknown to him and tended
to be small groups of teenage girls -- although Petitioner has
exhibited himself to older women as well. Id.
at 2 - 3. Petitioner admitted to having been sexually aroused by
female patients while in medical school.
Id. at 13.
From 1985 to 1988, Petitioner obtained professional counselling for
his sexual disorder. Id. at 3. For two
of those years, 1986 to 1988, Petitioner also attended Sex Addicts
Anonymous (SAA) meetings on the
recommenda-tion of his counsellor. Id.
On March 10, 1988, during his last year of medical school and while
still attending SAA meetings,
Petitioner exited naked from his car in a residential neighborhood of Cook County,
Illinois, and exposed
himself to three teenage girls. Id.
During April 1988, shortly after his arrest, Petitioner completed
a form that was used by the Air Force in
financing his medical education. Id. at 19. In this form, and
also in other forms he had previously
completed for the Air Force, Petitioner had answered "no" to the
question "[h]ave you ever been treated for
a mental condition?" Id. at 19 - 20. Due to the nature of
Petitioner's counselling sessions and SAA
meetings at that time, Judge Connick found the record insufficient
to establish that Petitioner's answers on
these forms were false. Id.
On April 11, 1988, Petitioner pled guilty to the charge of public
indecency for having exposed himself to
the three teenage girls. Id. at 3 - 4. Under the sentence that
was imposed, Petitioner was to receive
psychological and psychiatric counselling until the court
discharged him from its supervision on April 10,
1990. Id. During his residency at the University of Colorado
Health Science Center, Petitioner received
treatment at RSA, Inc., from late August 1988 to mid-January 1990.
Id. at 4 - 6.
During May 1989, while under continuing court ordered supervision
and treatment, Petitioner completed
another financial aid form for the Air Force. This time, in answer
to the question of whether he had been
treated for a mental condition, Petitioner answered "[n]o meds
given, only counsel. `General Anxiety' --
seen by private non-M.D. psychologist/ordained minister, Denver CO
10/88-4/89." Id. at 20. Later, at his
license revocation proceedings, Petitioner tried to assert that he
did not believe he was being treated for a
mental condition and viewed his exhibitionism as akin to a traffic
violation. Id. Judge Connick found his
answer of May 1989 to be inaccurate. Id.
During November 1989, while still being treated at RSA pursuant to
court order, Petitioner applied for a
Colorado medical license. In an application form dated November
14, 1989, Petitioner answered "no" to
the question (number 20) "[d]o you now have, or have you ever had,
a physical or mental disability which
might affect your ability to practice medicine ?" Id. at 19. The
Medical Board issued him a license on
March 16, 1991, in reliance upon his answers on this application.
Id. at 1, 19. It later found that Petitioner
had given his answer on the application form in reckless disregard of the truth.
Id. at 28.
In RSA Petitioner was being taught, inter alia, the behavior
modification techniques that would reduce his
inappropriate arousal. Id. at 4. However, even during this court
supervised treatment course, Petitioner
continued to exhibit symptoms of his disorder while appearing to
progress in treatment. Id. at 3, 6.
After completing the RSA program in late January, 1990,
Petitioner's sexual compulsions escalated to the
point where he again exposed himself several times during the
ensuing months. Id.
In April 1990, during his last year of residency and about the time
he was being released from his legal
obligations under the court's order, Petitioner exhibited symptoms
of his sexual disorder by having a sexual
encounter with a patient who performed oral sex on him. Id. at 7.
Ethical standards prohibit a physician
from having a sexual relationship with a current or former patient.
Id. Petitioner's behavior towards this
patient (e.g., accepting a card with her phone number, interpreting
the giving of her card as a sexual
overture, initiating a visit to her several weeks after examining
her as a patient, and having the sexual
encounter with her) was "symptomatic of his sexual disorder." Id.
In June 1990, in filing another renewal form for financial aid from
the Air Force, Petitioner answered the
question of whether he had ever been treated for a mental condition
by stating: "General Anxiety (Isolated
incident resulting from a patient's death) spring 1989." Id. at
20. Petitioner's answer was inaccurate and
affirmatively misleading. Id. He had actually completed a
treatment course of many months at RSA and
was continuing other regular treatment under a mental health
professional. Id.
In August 1990, Petitioner exposed himself to two eight year old
girls in a residential area of Arapaho
County, Colorado. Id. at 7. One of the victims suffered an
adjustment disorder and anxiety as a result. Id
at 7 - 8.
On August 28, 1990, Petitioner was arrested and charged with
indecent exposure for having shown himself
to the eight year old girls. Id. at 7. After having been informed
that he had the right to remain silent,
Petitioner lied and denied the behavior to the police. Id. at 20.
He subsequently sought to justify his lying Œwith the explanation that
he made his false statement in an effort
to see an attorney and have due process.
Id.
Around Labor Day of 1990, Petitioner drove to California intending
to kill himself. Id. at 8. He returned
to Denver after having had "anonymous" sex and resolved to obtain
help for his disorder. Id.
By October 3, 1990, Petitioner's preoccupation with sexual behavior
was interfering with his professional
concentration to the point where it was causing him to have
problems in making differential diagnoses. Id.
at 13.
On October 4, 1990, Petitioner purchased a gun and alerted his wife
that he wished to commit suicide. Id.
at 8. He was hospitalized for depression until October 16, 1990.
Id. He was then transferred to another
facility, where during the period October 16, 1990 to November 20,
1990, he received five weeks of
intensive, inpatient treatment for his psychosexual disorder. Id.
In November 1990, after the hospital released him to resume work
without restrictions, Petitioner began
monthly sessions with a psychiatrist. Id. On November 21, 1990,
Petitioner began receiving outpatient
treatment with a pastoral counsellor and also began attending SAA
meetings as well. Id. at 8 - 9.
Also on November 21, 1990, Petitioner reported his sexual disorder
to the director of his internal medicine
residency program. Id. at 9. From the lateness of this report,
from Petitioner's failure to voluntarily
disclose his arrest in Chicago to the Northwestern University
School of Medicine, and from the inaccurate
or misleading answer Petitioner had provided to the Air Force,
Judge Connick inferred that Petitioner may
have been actively concealing his sexual disorder. Id. at 20.
Upon being told of Petitioner's sexual disorder, the director of
Petitioner's residency program referred him
to the Colorado Physician Health Program (CPHP). Id. at 9. CPHP
is an independent organization that
evaluates, refers for treatment, and monitors Colorado physicians
with health problems. Id.
Dr. Michael Gendel, a CPHP staff psychiatrist, evaluated Petitioner
in November and December of 1990.
During these evaluations Petitioner initially denied having exhibited symptoms
of his disorder in the
workplace. Id. at 9, 21. It was not until Dr. Gendel probed the
subject further that Petitioner admitted the
sexual encounter with his patient and said he had become cognizant
of its inappropriateness. Id. at 21.
Dr. Gendel found in his preliminary assessment as well as in his
completed analysis that Petitioner could
resume his residency in internal medicine with reasonable skill and
safety -- especially since he had agreed
to a complex treatment schedule and monitoring. Id. at 9 - 10.
Petitioner was then permitted to resume his
residency in December 1990. However, because Petitioner had
revealed his prior sexual relationship with
a patient, Dr. Gendel told Petitioner that either he (Dr. Gendel)
or Petitioner must report Petitioner's sexual
disorder to the Medical Board. Id. at 10.
On December 13, 1990, Petitioner pled guilty to the indecent
exposure charge involving his behavior
before the two eight year old girls. Id. at 7.
On December 31, 1990, Petitioner notified the Medical Board of his
sexual disorder and treatment. Id. at
1.
On January 10, 1991, Petitioner signed a Participation Agreement
with CPHP. Id. at 10. The agreement
required Petitioner to attend three SAA or similar meetings a week,
to participate in weekly psychotherapy
sessions, to continue psychotherapy in order to address
work-related stress issues, and to refrain from
exposing himself, having "anonymous" sex, or having sex with
present or former patients. Id.
As a result of his August 1990 arrest for indecent exposure, on
February 28, 1991, the Arapaho County
court sentenced Petitioner to 60 days of incarceration -- which he
served during April and May of 1991.
The sentencing order entered by the court on February 28, 1991 also
barred Petitioner from treating anyone
under the age of 18 and required Petitioner to verify, in writing
to the Probation Office, that he had made
his supervisors aware of the court imposed restriction. Id. at 7.
Petitioner, who was present at the hearing, heard the sentence, and
later received a copy of it, never
notified his supervisors that he was prohibited from treating
anyone under the age of 18. Id. As a result,
none of his supervisors was aware of the court-imposed limitation. Id. Petitioner
tried to use the excuse of
emotional stress to justify his silence. Id. He later conceded at
the hearing before Judge Connick that he
had no good reason for having violated the court's order. Id.
During the Spring of 1991, when Petitioner applied for renewal of
his Colorado medical license, he again
answered "no" to the question "[d]o you now have or have you
ever
had, a physical or mental disability
which might affect your ability to practice medicine?" Id. at 19.
Judge Connick found this answer
"knowingly false" in light of Petitioner's prior criminal offenses,
his having already received intensive
treatment from several professionals, his having been twice
informed (and having professed to understand)
that his sexual encounter with a patient was inappropriate and
symptomatic of his disorder, his having
entered into a participation agreement with the CPHP in the prior
months, and his having alerted the
Medical Board to his sex addiction and arrests. Id.
Until approximately July 1991, when Petitioner left Colorado to
begin orientation for his Air Force service,
he continued to attend meetings and treatment sessions pursuant to
his Participation Agreement with
CPHP. Id. at 10 - 11. However, between November 1990 and July
1991, Petitioner had several affairs
symptomatic of his sexual disorder. This was contrary to one
counsellor's instructions to remain celibate
for self-improvement. Id. One of Petitioner's affairs was with a
woman he met during an SAA meeting.
Petitioner had the affair, even though he had been told that sexual
relationships between group members
were strictly forbidden. Id.
In September 1991, Petitioner lied when he was being evaluated in
connection with his Colorado license
revocation proceedings. Richard Irons, M.D., headed a team of
professionals who evaluated Petitioner
prior to the hearing before Judge Connick in order to determine
whether, or under what conditions,
Petitioner could practice medicine with reasonable skill and
safety. Id. at 15. Even though Petitioner had
previously told other medical professionals that he knew his sexual
relationship with a patient had been
inappropriate and violated professional boundaries, he initially
told Dr. Irons that he had never had a sexual
contact with a patient. Id. at 21. He later indicated that he did
not see what this sexual relationship with
the patient had to do with the practice of medicine. Id. ŒSexual addiction
has three levels of increasing severity: 1)
victimless behavior such as excessive
masturbation, use of pornography, frequenting topless bars, and
calling sexually oriented recorded
messages; 2) behavior involving legal problems such as
exhibitionism, voyeurism, excessive obscene
telephone conversations, prostitution, and taking indecent
liberties; and 3) more extreme behavior such as
child molestation, incest, or rape. Id. at 11 - 12. Judge Connick
was of the view that Petitioner had never
exhibited behavior beyond level 2, and he has maintained his
behavior at level 1 since November 1990, for
reasons that are due, at least in part, to his legal problems. Id.
at 12. Events such as an arrest and the
proceedings to revoke a medical license can reduce the sex drive of
an individual suffering from a chronic,
psychosexual, addictive disorder. Id.
At the time of his license revocation hearing, Petitioner had
successfully completed primary treatment and
was in the early stage of a life-long recovery process. Id.
According to the experts, the early stage of
recovery can last several years; in addition, it takes typically
five to ten years before recovery from sex
addiction becomes self-sustaining. Id. Petitioner remains at risk
of a relapse, since relapse is a significant
problem during the early stage of recovery and a feature of any
addictive illness. Id. at 12 - 13. There
exists a risk to his acting out sexually in the physician-patient
relationship. Id. at 13.
C. Petitioner's license was revoked for reasons bearing on his
professional competence or performance.
The I.G. asks that I find:
Revoking petitioner's license for recklessly disregarding the
truth when completing his licensure
application is a revocation of petitioner's license for reasons
bearing on his professional performance.
I.G. Br. at 6 (proposed finding 16). The I.G. relies on Eric
Kranz, M.D., DAB CR148 (1991), aff'd DAB
1286 (1991). The I.G. notes that the license revocation at issue
in the Kranz case was also partially caused
by false statements on a license application form. I.G. Br. at 17.
The I.G. quotes language from the
appellate panel's decision and suggests that Kranz is controlling.
ŒPetitioner, like the I.G., looks at the false answer as an
abstraction and asks that I find:
Revoking Petitioner's license for recklessly disregarding the
truth when completing his licensure
application is not a revocation of petitioner's license for reasons
bearing on his professional performance.
P. Br. at 10 (proposed finding 18). Petitioner repeatedly argues
that his license was revoked "for medical
reasons" and because he "suffered from an illness, and not that he
lacked professional competence." P. Br.
at 3, 12. I find, however, that both the I.G.'s proposed finding
quoted above and the Petitioner's
propositions are overly broad and not fully appropriate to the
facts of this case.
Petitioner's medical license was not revoked merely because his
application contained a false statement.
Neither the Kranz decision nor any other legal precedent directs a
conclusion that any statement on a
license application form that is false or given with reckless
disregard for the truth and causes an
individual's license to be revoked or suspended constitutes
authority for the I.G. to direct and impose an
exclusion against an individual based upon the individual's
professional competence or performance. In
Kranz, the basis of the I.G.'s exclusion under section
1128(b)(4)(A) of the Act was that West Virginia had
revoked the physician's license because he had perpetrated a
criminal act upon a hospital employee in a
hospital setting and had falsely denied in his licensure
application to West Virginia that another state
(Ohio) had rejected his application to practice medicine. Ohio
denied Dr. Kranz a medical license because
he had offered to sell questions and answers to medical
examinations, because he had falsely claimed in his
Ohio application that he was licensed to practice in Canada, and
because he had failed to disclose that
Pennsylvania and Oklahoma had denied him licenses as well. It is
the totality of these very case-specific
facts that led the administrative law judge and the appellate panel
to conclude that the license revocation in
Kranz was for reasons bearing on the doctor's professional
competence and performance.
I reject the I.G.'s broad proposition that "`professional
competence' and `professional performance' clearly
include the requirement that health care providers honestly respond
to questions in their licensing Œapplication." I.G. R. Br. at 3. There
is no per se rule that
whenever a license revocation action involves a
false answer on an application form, the resultant revocation is
due to a reason bearing on professional
competence or performance. Some false or incorrect answers on
application forms may have no bearing
on professional competence or performance. There is no evidence
that a state licensing authority is
prohibited from establishing rules that would authorize sanctions
for false answers of any type on an
application form -- even answers having nothing to do with
professional competence or performance.
However, on the facts of this case, Petitioner's license was
revoked for reasons bearing on his professional
competence or performance because he had twice given a false answer
to a question concerning his ability
to practice medicine. The import of his false answers, and the
facts he sought to conceal, form the basis of
his exclusion under section 1128(b)(4)(A) of the Act.
Question 20 asked, "Do you now have, or have you ever had, a
physical or mental disability which might
affect your ability to practice medicine?" Judge Connick found
that Petitioner's "response to question no.
20 inferred [sic] facts about the relationship between [his] mental
disability and his medical practice." I.G.
Ex. 3 at 26. By answering "no," Petitioner had made himself appear
more professionally competent than
he was -- that is, he gave the impression that he could practice
medicine with safety to his patients even
though "[t]he possibility of his mental condition's affecting his
medical practice was a feature of his
disability which existed at the time he completed the license
application." Id. at 26 - 27. After the true
extent of his psychosexual disorder came to light in the license
revocation hearing, there was not one
medical expert or Medical Board adjudicator who found Petitioner
capable of practicing medicine without
significant restrictions. I.G. Ex. 2, 3, 4.
Judge Connick found the false answer provided by Petitioner to be
part of the denial that is symptomatic of
Petitioner's addictive psychosexual disorder. Id. at 21. As
already discussed, Petitioner's false answers on
the license application and license renewal application are
intertwined with the progression of his disorder
and its impact on his practice of medicine. See also, id. at 28.
In addition, Judge Connick had especially
remarked on the falsity of Petitioner's answer to question 20 in light of his
unprofessional sexual
relationship with a patient, his arousal by female patients, and
his difficulties in making differential
diagnosis by October, 1990. Those problems were of a professional
nature and resulted from Petitioner's
mental disorder.
The Medical Board did not modify Judge Connick's reasoning that:
Based on the record as a whole, [Petitioner's] false answer to
question no. 20 on his application
demonstrates that he is not qualified to practice medicine in
Colorado at this time. In addition, revocation
is the only discipline which would allow the Board the initial
opportunity missed to judge [Petitioner's]
conduct.
I.G. Ex. 3 at 31. This language indicates that the revocation
action was not merely intended to punish
Petitioner for a false answer on his application form. Rather,
the revocation was intended to restore the
Medical Board's opportunity to decide in the first instance
whether, based on a true answer to question 20,
Petitioner is qualified to practice medicine in the State. From
this statement, the I.G. may properly infer
that "[m]aintaining the integrity of the licensing process is
integral to insuring that only qualified
practitioners are allowed to practice medicine." I.G. R. Br. at 3.
However, given the record before her and
her findings, Judge Connick was not using the phrase "not qualified
to practice medicine" to say that an
individual is unfit to practice medicine unless he has been
truthful in all matters on his application form.
For all these interrelated reasons, Petitioner's license was
revoked "for reasons bearing on [his] professional
competence [or] professional performance" within the meaning of
section 1128(b)(4)(A) of the Act.
I am aware that the Medical Board, in adopting Judge Connick's
decision, found nothing lacking in
Petitioner's technical skills. I.G. Ex. 3 at 22. He was, by all
accounts, a superior medical resident. Id.
Petitioner relies on the good quality of care he has delivered in
the past to define his professional
competence and performance. P. Br. at 7. He especially notes that
the Medical Board was not critical of
the professional care that he has administered. Id. I am aware
also that Petitioner may be able to practice
medicine with safety to his patients under certain restrictive circumstances.
See, e.g., I.G. Ex. 3 at 16 - 18,
29 - 31. However, these and like factors do not alter my finding
that Petitioner was properly excluded
under section 1128(b)(4)(A) of the Act.
Section 1128(b)(4)(A) of the Act does not permit the use of a "but
for" test when examining the reasons for
a license revocation. That is, the federal statute does not
require that Petitioner's license be revoked as a
direct consequence of, or solely because of, his professional
competence or performance. The revocation
decision need only have been for reasons "bearing on" the
enumerated factors. Here, there is adequate and
incontrovertible evidence that satisfies the "bearing on" standard
of section 1128(b)(4)(A).
With respect to Petitioner's observations that he had provided good
medical services to his patients, I note
that section 1128(b)(4)(A) does not limit exclusions to those
individuals whose licenses have been revoked
on specific findings of professional incompetence or on past
delivery of poor health care services. The
terms "professional competence" and "professional performance"
connote what has occurred in the past as
well as what may occur in the future. As already noted, despite
some very superior professional
accomplishments, Petitioner has experienced problems in the
physician-patient context, and the experts
were in agreement that his continued practice of medicine poses
risks to patients. The Act is satisfied
when, as here, the reason an individual's license was revoked has
to do with professional competence or
performance.
Additionally, I am unable to give weight to Judge Connick's opinion
that, in the absence of the false
answers to Question 20, Petitioner should be allowed to practice
medicine under certain restrictions and
probationary conditions. I.G. Ex. 3 at 29 - 31. Section 1128(b)
of the Act provides the Secretary with only
two choices: either to exclude or not to exclude health care
providers. The Secretary, in delegating to the
I.G. this discretionary authority, announced that the I.G. will
always consider on a case-by-case basis
whether an individual presents a risk to the programs or their
beneficiaries. 57 Fed. Reg. 3303 (1992).
Here, the Medical Board has already concluded that the
"overwhelming evidence in the record ... supports
the conclusion that [Petitioner] suffers from a mental disability which renders
him unable to perform
medical services with safety to the patient." I.G. Ex. 3 at 24.
The Medical Board, which had the authority
to set limitations or impose conditions on Petitioner's medical
practice, did not do so because it chose to
revoke his license instead. The I.G., by contrast, is not
authorized to limit medical practices, to require
female chaperones for physicians, or to impose any conditions for
health care providers' continued
participation in the programs. The I.G. may only exclude (or not
exclude) health care providers. In
challenging the I.G.'s decision to exclude him from further
participation in the programs, Petitioner has not
shown that the I.G. deviated from the Act or the regulations.
IV. CONCLUSION
For the foregoing reasons, the I.G. is entitled to summary judgment
in the I.G.'s favor.
Mimi Hwang Leahy
Administrative Law Judge