Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
In the Case of: Alan R. Bonebrake, D.C., Petitioner,
- v. -
The Inspector General.
DATE: August 6, 1993
Docket No. C-92-003
Decision No. CR279
DECISION
On July 22, 1991, the Inspector General (I.G.) notified Alan R. Bonebrake,
D.C., (Petitioner), that he was
being excluded from participation in the Medicare program and certain federally
assisted State health care
programs as defined in section 1128(h) of the Social Security Act (Act). 1/
The I.G. alleged that this action was being taken because Petitioner's license
to provide health care in
Kansas was surrendered during formal disciplinary proceedings before the Kansas
State Board of Healing
Arts (KSBHA). Petitioner was informed that he was being excluded under the authority
of section
1128(b)(4) of the Act for an indefinite time, until he obtained a valid license
to practice chiropractic in
Kansas. In a letter dated September 28, 1991, Petitioner challenged the exclusion
and requested a hearing
before an administrative law judge (ALJ).
I have considered the evidence of record, the parties' arguments, and the applicable
laws and regulations. I
conclude that the I.G. was authorized to impose and direct an exclusion against
Petitioner by section
1128(b)(4) of the Act. I conclude also that the regulations at 42 C.F.R. Part
1001, published and effective
on January 29, 1992, and as clarified on January 22, 1993, do not apply retroactively
to establish a standard
for adjudicating the length of the exclusion in this case. In addition, I conclude
that the three-year
exclusion imposed by the I.G. is excessive. I conclude that the remedial purpose
of section 1128 of the Act
will be served in this case by excluding Petitioner for two years. Alternatively,
Petitioner's exclusion may
be for less than two years if another State licensing authority, after Petitioner
has fully and accurately
disclosed to it the circumstances surrounding his license surrender in Kansas,
grants Petitioner a new
license or takes no significant adverse action as to a currently held license.
See Tajammul H. Bhatti, M.D.,
DAB 1415, at 12 (1993).
PROCEDURAL BACKGROUND
I convened a prehearing conference with the parties on November 15, 1991. During
the prehearing
conference, the parties jointly requested that the proceedings be stayed so
that they could pursue settlement
negotiations. Subsequently, the parties informed this tribunal that their attempts
to settle the case had been
unsuccessful, and I held a prehearing conference on February 13, 1992.
At the February 13th prehearing conference, Petitioner contended that his indefinite
exclusion from the
Medicare program was unreasonable but conceded the I.G.'s authority to exclude
him. The I.G. informed
Petitioner that in light of information which Petitioner had supplied to the
I.G., the indefinite exclusion was
being modified to a term of three years. The I.G. modified the term of the exclusion
based on the fact that
Petitioner was licensed to practice chiropractic in Texas and Oklahoma. The
I.G. then moved for summary
disposition and Petitioner agreed to respond. The parties timely filed their
motions and briefs on the issue
of whether the I.G. was entitled to summary disposition.
On July 24, 1992, I issued a Ruling in which I granted in part and denied in
part the I.G.'s motion for
summary disposition. I concluded that, based on the undisputed material facts
and the law, the I.G. had the
authority to exclude Petitioner pursuant to section 1128(b)(4) of the Act. I
concluded also that the new
regulations published on January 29, 1992 did not govern my decision regarding
the reasonableness of the
exclusion. See 57 Fed. Reg. 3298 - 3358 (1992). I decided that there remained
disputed material facts as
to the reasonableness of the three-year exclusion imposed and directed against
Petitioner by the I.G. I then
scheduled an in-person hearing on this issue. On November 5, 1992, I held an
in-person hearing in St.
Louis, Missouri.
On January 22, 1993, the Secretary of the Department of Health and Human Services
published a final rule
clarifying the scope and purpose of the final regulations published on January
29, 1992. The parties
submitted briefs regarding the effect, if any, the clarifying regulations have
on this case. As stated more
fully hereinafter, I concluded that such regulations did not have the effect
of substantially revising the
retroactive application of the January 29, 1992 regulations to this case.
On February 13, 1993, Petitioner filed a motion to supplement the record, and
proffered a letter from an
individual that he contended demonstrated the lack of credibility of an affiant
relied on by the I.G. to show
Petitioner did not utilize proper chiropractic techniques. The I.G. filed an
objection to Petitioner's motion.
On March 4, 1993, I issued a Ruling in which I denied Petitioner's motion to
supplement the record. In
denying Petitioner's motion, I concluded that Petitioner had a full opportunity
to present his case, and,
given the extensive and voluminous evidence he had already presented to show
that he comported with
valid chiropractic techniques, there would be potential prejudice to the I.G.
if I were to allow Petitioner's
untimely and cumulative evidence into the record.
On April 9, 1993, I held a posthearing telephone conference with the parties.
The parties were given a
final opportunity to submit additional evidence relevant to the standards established
by 42 C.F.R.
1001.505(c)(1) and (2), so that the record would be complete if I decided that
this case is governed by the
new regulations and the clarifying regulations. During the conference, counsel
for the I.G. stated that she
would offer no further evidence in the event that I decided this case under
the new regulations and the
clarifying regulations. Petitioner stated that he would offer no further evidence
pursuant to 42 C.F.R.
1001.501(c)(1). However, with regard to 42 C.F.R. 1001.501(c)(2), Petitioner
wanted the opportunity to
submit additional documents. Petitioner filed an additional exhibit and brief.
I marked the exhibit as
Petitioner's Exhibit (P. Ex.) III/7. 2/ The I.G. filed a response.
ISSUES
The issues in this case are:
1. Whether regulations published by the Secretary on January 29, 1992 and the
clarifying regulations
published on January 22, 1993 are applicable to this case.
2. Whether the three-year exclusion imposed and directed against Petitioner
by the I.G. is
reasonable.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
Background of case
1. Petitioner, Alan R. Bonebrake, D.C., was licensed to practice chiropractic
in Kansas, having been issued
License No. 3524. Tr. at 179; I.G. Ex. 3 at 2. 3/
2. On April 21, 1990, KSBHA found probable cause to suspect Petitioner had
committed acts of
unprofessional or dishonorable conduct, was professionally incompetent, or had
committed other acts
which were violations of the Kansas Healing Arts Act, K.S.A. 65-2801 et seq.
(1989 Supp.), and
requested the disciplinary counsel to prosecute an action against Petitioner.
I.G. Ex. 3 at 2.
3. On May 17, 1990, a petition on behalf of KSBHA was filed against Petitioner,
case no. 90-DC-0198,
which is incorporated as if fully set out herein. I.G. Ex. 3.
4. The petition filed by KSBHA alleged that Petitioner had committed acts of
unprofessional conduct in
violation of K.S.A. 65-1836(b), to wit: over a period of years, Petitioner had
engaged in unprofessional
conduct; conduct likely to harm the public; sexual abuse, misconduct, or exploitation
related to his
professional practice and serving no legitimate medical purpose, including breast
examinations and other
inappropriate touching; and that Petitioner had repeatedly failed to practice
the healing arts with that level
of care, skill, and treatment which is recognized by a reasonably prudent similar
practitioner as being
acceptable under similar conditions and circumstances. I.G. Ex. 3 at 3 - 8.
5. The petition on behalf of KSBHA found probable cause that Petitioner had
altered the medical records
of one patient in that he used false, fraudulent, or deceptive statements in
such patient's record, and as to
this patient he also failed to keep written medical records describing services,
including pertinent findings
and examination results, such conduct being unprofessional conduct as defined
in K.S.A. 65-2837(b)(17)
and (25); and that Petitioner used newspaper and radio advertising, which KSBHA
concluded were acts of
unprofessional conduct in violation of K.S.A. 65-2836(b), 65-2837(b)(7), (b)(8),
65-2885. I.G. Exs. 3 at
7 - 8; 4 at 23 - 24.
6. Petitioner filed an Answer to KSBHA's petition. He admitted to performing
breast examinations on
four female patients -- namely, A, B, C, and D -- but he denied that such examinations
constituted
unprofessional conduct. I.G. Ex. 3.
7. In his Answer, Petitioner admitted to making additions to the records of
patient D, but denied that the
conduct was false, fraudulent, or deceptive, or that it constituted unprofessional
conduct. I.G. Ex. 3 at 12 -
14.
8. In his Answer, Petitioner admitted advertising, but denied that the advertising
was misleading or
constituted unprofessional conduct. I.G. Ex. 3 at 12 - 14.
9. In a letter to KSBHA dated August 5, 1990, Petitioner voluntarily surrendered
his license to practice
chiropractic in Kansas. Petitioner stated also that he planned to participate
in the Kansas Chiropractic
Association's impaired-physicians program for two years. I.G. Ex. 5.
10. On October 13, 1990, a Final Order was entered before KSBHA. KSBHA considered
Petitioner's
voluntary surrender of his license to practice chiropractic as (1) a "plea
of no contest" and as a
"suspension" of his license; and (2) a disciplinary sanction for reporting
purposes to any State or national
medical federation or clearing house for disciplinary sanctions of health care
providers and licensees. I.G.
Ex. 3 at 16 - 22.
11. Petitioner approved and signed the Final Order of KSBHA. I.G. Ex. 3 at 21.
12. On July 15, 1991, Petitioner removed himself from the Kansas Chiropractic
Association's impaired-
physicians program without completing the program. I.G. Ex. 8.
13. Prior to withdrawing from the impaired-physicians program, Petitioner was
referred to a psychologist
for an evaluation and treatment. The psychologist found no significant psychopathology
but recommended
ongoing therapy to assist Petitioner in dealing with his feelings and to relate
more appropriately to people,
particularly female patients. Petitioner stated that the psychologist advised
him that he had no chance of
regaining his license unless he admitted his guilt. I.G. Ex. 8.
14. Petitioner's premature removal from the impaired physicians program when
(1) he had no
psychopathology and (2) he would have to admit that he engaged in sexual misconduct
with his patients, an
allegation that was never proven, is not in itself a indication that Petitioner
is untrustworthy to be a
program provider. FFCL 12 - 13, 17.
15. The charges filed against Petitioner by KSBHA constituted a formal disciplinary
proceeding by a State
licensing authority concerning Petitioner's professional competence or performance.
FFCL 4 - 5; Social
Security Act, section 1128(b)(4)(B).
16. Petitioner surrendered his Kansas license to practice chiropractic while
a formal disciplinary
proceeding was pending before the State licensing authority and the proceeding
concerned his professional
competence or professional performance. FFCL 1 - 15; Social Security Act, section
1128(b)(4)(B).
17. Since Petitioner did not contest the charges against him in Kansas, no
licensing authority or court has
evaluated the evidence against him and determined his guilt or innocence.
Alteration of a patient's medical record
18. As a matter of standard conduct of practice, chiropractors like other health
care providers, are required
to keep complete and accurate records of their examination and treatment of
patients. K.S.A. 65-
2837(b)(25); I.G. Ex. 19 at 4.
19. Petitioner admitted to altering the record of patient D by putting in supplemental
information, but
contends that such alteration was an act of inadvertence and not a falsification
of the record. Tr. 139.
20. Petitioner admitted that he failed to put into patient D's record that
"when I walked in the room she was
slouched forward and that I did a chest/breast exam." He further admitted
this addition to the patient
record occurred approximately five to six months after the examination and after
the patient's father
accused him of "kissing his daughter on the neck after a breast exam .
. ." Tr. 140 - 143.
21. Although Petitioner denies that the alteration of patient D's record was
self-serving, it is apparent that
the alteration of the patient record provided petitioner with a purported medical
basis in response to the
accusation of sexual misconduct. Tr. 144; FFCL 20.
22. Petitioner's failure to create a complete and accurate record of his examination
and treatment of patient
D was not in accord with standard professional chiropractic practice. FFCL 18.
23. Petitioner's failure to adhere to professional chiropractic practice relating
to patient records and his
belated modification of patient D's record to provide a purported medical basis
in response to an accusation
of sexual misconduct are indications of his lack of trustworthiness to be a
program provider. FFCL 21 -
22.
24. The record is devoid of any evidence that (1) Petitioner's failure to maintain
accurate and complete
records of his examination and treatment of patients and (2) his belated alteration
of patient D's record in
response to an accusation of sexual misconduct were part of a pattern; rather
it appears to have been an
isolated transaction, with no other incidents having been reported since 1989.
25. Petitioner's threat to the program arising from circumstances described
in FFCL 20 - 23 has been
minimized by the absence of any evidence in the record establishing a continuing
pattern or practice of
such conduct. Moreover, the exclusion imposed in this case has provided sufficient
time for Petitioner to
demonstrate whether any propensity to alter records poses a danger or threat
to program beneficiaries and
recipients.
Newspaper and radio advertisements
26. Petitioner placed an advertisement in a Wichita, Kansas newspaper on June
22, 1989, which was
construed to advertise professional superiority or the performance of professional
services in a superior
manner or to guarantee a professional service contrary to K.S.A. 65-2837(b)(7),
and (8). I.G. Ex. 4 at 29
- 30.
27. The advertisement was placed by the National Institute of Clinical Acupuncture
(Institute); the address
and phone number given for the Institute was the same as Petitioner's; he was
the only member of the
Institute; the advertisement did not mention Petitioner's name or the branch
of the healing arts in which he
was licensed. I.G. Ex. 4 at 30; see also, I.G. Ex. 4 at 66 - 74.
28. On August 24, 1989, KSBHA received an audiotape recording of a radio advertisement
placed by
Petitioner, which did not identify him as a doctor of chiropractic using the
words chiropractor, chiropractic
physician, or D.C. Such failure was construed as a violation of K.S.A. 65-2885.
I.G. Ex. 4 at 30.
29. On April 10, 1990, Petitioner signed a "Stipulation" with KSBHA
regarding the aforementioned
advertising matters, and, in return for proceedings not being brought against
him, he agreed among other
things: (1) not to publish in any medium any advertising which may constitute
false, misleading,
deceptive, or unlawful advertising; (2) to identify himself in all advertisements
as a Doctor of Chiropractic;
(3) for a period of two years from the date of the Stipulation, any advertisement
which he published would
be submitted before publication to KSBHA's representatives, for the purpose
of advice and comment on the
form and content; and (4) a violation of the Stipulation would be prima facie
evidence that a violation of
the Healing Arts Act had occurred for which KSBHA could suspend, revoke, or
limit the license of
Petitioner. I.G. Ex. 4 at 31 - 34.
30. The petition filed by KSBHA on May 17, 1990, alleged that Petitioner used
newspaper and radio
advertising in such a manner as to constitute unprofessional conduct, and appears
to contain the same
charges as set forth in the Stipulation. FFCL 5.
31. The record contains no indication that Petitioner engaged in such improper
advertising after 1989 or
that he has violated the Stipulation. While such advertising is an indicia of
a lack of trustworthiness by
Petitioner, his threat to the program resulting from such advertising is minimal.
Moreover, any such
untrustworthiness will be fully resolved with the passage of the two-year exclusion
imposed by my
decision.
General chiropractic practice 4/
32. Dr. Bonebrake, Petitioner, is an acupuncturist, a certified receptor-tonus
instructor, chiropractic
orthopedist, and has a degree in biology, emphasizing human nutrition. Tr. 135.
33. Dr. Fiscella is a doctor of chiropractic and a Board Certified Chiropractic
Orthopedist and his practice
is limited to myofascial (muscle and connective tissues) trigger-point therapy;
he is a qualified expert in
chiropractic. Tr. 22 - 24.
34. Dr. Lowe is a chiropractor with degrees in psychology and biology and an
expert in the diagnosis and
treatment of myofascial problems; he is a qualified expert in chiropractic.
Tr. 108 - 109.
35. Dr. Hill was the Kansas Chiropractic Association's 1992 doctor of the year.
He has (1) served on
KSBHA's Chiropractic Review Committee for three years and on the Board of the
Governor's Healthcare
Stabilization Fund for Kansas for seven years, (2) been past president of the
Kansas Chiropractic
Association, and (3) practiced chiropractic in Kansas for twelve years. Dr.
Hill is a qualified expert in
chiropractic. I.G. Exs. 17 - 18.
36. Dr. Jaggers specializes in orthopedics, neurology, acupuncture, chiropractic,
and stress management.
He is a qualified expert in chiropractic and acupuncture. 5/ Tr. 53 - 54; P.
Ex. III/6.
37. In Kansas, the following persons shall be deemed to be engaged in the practice of chiropractic:
(a) Persons who examine, analyze and diagnose the human living body, and its
diseases by the use
of any physical, thermal or manual method and use the X-ray diagnosis and analysis
taught in any
accredited chiropractic school or college and
(b) persons who adjust any misplaced tissue of any kind or nature, manipulate
or treat the human
body by manual, mechanical, electrical or natural methods or by the use of physical
means, physiotherapy
(including light, heat, water or exercise), or by the use of foods, food concentrates,
or food extract, or who
apply first aid and hygiene but chiropractors are expressly prohibited from
prescribing or administering to
any person medicine or drugs in materia medica, or from performing any surgery,
as hereinabove stated, or
from practicing obstetrics. K.S.A. 65-2871.
P. Ex. II/3 at 2.
38. Chiropractors in Kansas may perform general physical examinations, which
could include a breast
examination, pelvic examination, and rectal examination. Such examinations are
a part of the training
received by students studying chiropractic medicine. I.G. Ex. 17 at 1; P. Ex.
II/2 at 6 - 8.
39. Chiropractors may also perform blood tests, hair analysis, urinalysis,
and saliva tests in the office. Tr.
87 - 88.
40. Chiropractic students in Kansas are instructed in the professional and
proper manner in which to
perform breast examinations on male and female patients. I.G. Ex. 17.
41. Chiropractors who include myofascial work in their practice could perform
breast examinations more
often than chiropractors who do not include myofascial work. Tr. 130.
42. Dr. Fiscella performed breast examinations on less than one percent of his patients. Tr. 40.
43. Dr. Jaggers does not always examine a patient's breasts; breast examinations
are done based on the
patient's complaints and other circumstances that might be involved. Tr. 67,
100.
44. The evidence in the record does establish that other chiropractors having
similar background and
experience as Petitioner do not engage in breast examinations to the same extent
as Petitioner. FFCL 42 -
43.
45. The expert opinion establishes that a chiropractor who performs a breast
examination or treats the
pelvic or anal areas of female patients should (1) inform the patient that the
practitioner is going to perform
a breast examination or treat the pelvic or anal areas and the purpose for such
examination or treatment; (2)
ask the patient if she consents to such an examination or treatment; and (3)
ask the patient if she wants a
third person to be present during such procedures. Tr. 42 - 44, 102 - 104, 130
- 131; I.G. Ex. 17.
Sexual misconduct: (a) breast examinations
46. Patient A had sought treatment from Petitioner in February 1988 for lower
back pain and did not
return after that visit. She had been to one other chiropractor for lower back
pain. I.G. Ex. 14 at 3 - 4.
47. Patient B had sought treatment from Petitioner in September 1988 for back
problems; during the
three-month period that he treated her, she saw him approximately 20 times.
Her back problems had
existed for about four years. I.G. Ex. 15 at 4 - 5.
48. Patient C had sought treatment from Petitioner for a slipped or herniated
disc; she had
approximately 14 or 15 visits. She was treated by a number of different doctors
and chiropractors before
seeing Petitioner. I.G. Ex. 16 at 11, 35 - 36, 38, 42.
49. Patient D was Petitioner's patient from 1986 until mid-1989; she had sought
treatment because of
tendinitis in her hands and neck problems. She was treated by a neurologist
and chiropractor prior to being
treated by Petitioner. I.G. Ex. 4 at 40.
50. The allegations against Petitioner included accusations that he (1) looked
for "knots" in a patient's
breasts; (2) massaged or kneaded a patient's breasts; (3) while patient was
lying on her side, he examined
her breast against the examining table; (4) examined "cupped" another
patient's breasts; and (5) pinched a
patient's nipple and asked if it hurt. I.G. Exs. 4, 14 - 16.
51. Patient B alleged that before she could respond to Petitioner's statement
that he was going to do a
breast examination, he pulled down the paper gown that she had on and examined
her breasts. I.G. Ex. 15
at 5.
52. Most female patients who seek examination and treatment from chiropractors
do so without an
expectation that they will undergo a breast examination. I.G. Exs. 4, 14 - 16.
53. Dr. Hill, a member of KSBHA's Chiropractic Review Committee, opined that
squeezing a patient's
breast or nipple and asking "does that hurt" did not constitute a
professional or a proper complete breast
examination. 6/ I.G. Ex. 17.
54. Chiropractic expert opinion establishes that if a chiropractor pinched
a patient's breast and asked "does
that hurt" without further examination, that "could very well be good
enough" to constitute a complete
examination or part of an examination. Tr. 35, 97.
55. Dr. Lowe testified that he would customarily perform a breast examination
if the pectoralis muscle was
involved and he would examine the two pectoralis muscles. He would "use
pincer palpation to lift and
palpate the fatty tissue of the breast and would manipulate the nipple briefly."
Tr. 130.
56. Petitioner testified that he had cupped a patient's breasts as part of
a breast examination and that
"[t]here are several things that are part of a normal medical breast exam
and part of a myofascial breast
exam." Tr. 163.
57. Expert chiropractic opinion establishes that cupping a patient's breasts
is a legitimate procedure used
by chiropractors. Tr. 42 - 43; I.G. Ex. 16.
58. The breast examinations performed by Petitioner on patients A, B, C, and
D had a legitimate medical
purpose and reflect a level of care, skill and treatment in accord with recognized
standards of chiropractic
care. FFCL 50.
59. Petitioner has treated over 4,000 patients in ten years with upper body
complaints and he has
performed about 3,000 breast examinations on both female and male patients during
that period. Tr. 156.
60. Compared to the number of breast examinations that Petitioner has performed,
he has had relatively
few complaints. I.G. Ex. 3 at 2 - 7; I.G. Ex. 4 at 74 - 77.
61. Some of the examinations that Petitioner performed were done in connection
with acupuncture
treatment and his advanced training in other areas; he used adjustment techniques
based on this training --
sitting on the table behind patient with his leg up and patient leaning into
his leg -- which less well-trained
chiropractors would not use. Tr. 53; I.G. Ex. 17 at 2.
62. By letter dated April 28, 1988, KSBHA informed Petitioner that the charges
of unprofessional conduct
while treating patient C were thoroughly investigated and presented to the Chiropractic
Review
Committee, which recommended that the case be closed. P. Ex. I/7 at 8.
63. Petitioner was informed that complaints involving breast examinations,
which were previously closed,
could be reopened if additional complaints were received against Petitioner.
Tr. 173 - 174.
64. The Chiropractic Review Committee recommended also that, in the future,
Petitioner should have a
female assistant present when giving examinations to female patients. P. Ex.
I/7 at 8.
65. Prior to April 1988, generally, there was no nurse or other third party
present when Petitioner
examined his female patients. I.G. Exs. 4, 14 - 16.
66. Petitioner admitted that in 1988 he first put signs up in his office advising
female patients that a third
party could be present during examinations. Tr. 174.
67. Petitioner engaged in breast examinations of patients after KSBHA had conducted
earlier
investigations regarding Petitioner's treatment of his patients, which included
complaints regarding breast
examinations. I.G. Ex. 4 at 73 - 77.
68. Petitioner was on notice by KSBHA that any additional complaints could
reopen the earlier records
which were closed. FFCL 63.
69. Most of Petitioner's patients had been treated by other chiropractors or
doctors before coming to him
and their chiropractic problems had not been resolved by those other practitioners.
I.G. Exs. 4 at 40 - 41;
14 at 4; 16 at 35 - 36, 42.
70. Petitioner testified that he always gives a patient an explanation of what
he is going to do before he
does it; if the patient does not understand, he explains the procedure again
or gives the patient the
opportunity to accept or reject the procedure. 7/ This testimony is contradicted
by the statements made by
the patients. Tr. 136, 153; I.G. Exs. 4, 14, 16.
71. Petitioner treated patient D approximately 42 times, performing two breast
examinations during that
period, despite his alleged misconduct during the first breast examination.
An allegation of misconduct in
such circumstances is suspect, considering the continuation of extensive treatment
after the initial alleged
misconduct arose. Tr. 153 - 154.
72. Petitioner filed a lawsuit against a patient D because she failed to pay
her bill, and the patient in turn
filed a counter lawsuit against Petitioner alleging that he made sexual advances
toward her. Tr. 170.
73. The reliability of patient D's allegations that Petitioner committed sexual
misconduct is questionable,
considering the pending litigation and the continuation of treatment after the
initial breast examination.
The I.G. did not produce this patient at the in-person hearing where her credibility
and demeanor could be
evaluated.
Petitioner violated his duty of care as a chiropractor, especially since his
practice specializes in
acupuncture and myofascial treatments, by not properly (1) advising female patients
of an impending
breast examination and its purpose; (2) advising such persons that they had
the right to accept or reject
such examination or treatment; and (3) informing them that a third person could
be present during the
procedure. FFCL 45.
75. In performing breast examinations on female patients who were not given
an adequate opportunity to
refuse such treatment or to have a third person present, Petitioner's conduct
established that he is
untrustworthy to provide health care to program recipients or beneficiaries.
76. There is nothing in the record to show that Petitioner performed breast
examinations for his own
sexual gratification. Such examinations were conducted in accordance with Petitioner's
past training and
experience and in an attempt to provide relief to patient's complaints of pain
and discomfort. FFCL 54, 56
- 61.
Sexual misconduct: (b) other physical contact with patients
77. Patient A indicated that Petitioner's examination was rough and that he
"hit every pressure point on my
body," including her thighs, and that "my arms and legs were all bruises."
I.G. Ex. 14 at 5 - 6.
78. Petitioner massaged patient C's Caesarean scar and massaged in the area
of her anus and the patient
was afraid to complain because she did not want to seem naive, childish, or
insulting. I.G. Ex. 16.
79. For three weeks, three times a week, Petitioner performed deep muscle massages
on patient D's outer
and inner thighs and buttocks, sometimes getting close to the pubic bone, but
the patient never complained
about his treatment. I.G. Ex. 4 at 44.
80. Expert chiropractic opinion establishes that acupuncturists may use massage
therapy to break up
adhesions around surgery scars. Tr. 53 - 54; FFCL 78.
81. The expert chiropractic opinion establishes that whether a person bruises
easily depends on the type of
examination being done as well as on the nutritional tolerances of the patient.
A patient deficient in
vitamin B-12, iron, vitamin C, and other nutrients will have a tendency to bruise
easily. Females bruise
more easily than males. Tr. 86; FFCL 77.
82. Receptor-tonus practitioners, such as Petitioner, locate trigger points
or myofascial areas by
examination or palpitation of the soft tissues of the body. Tr. 24; FFCL 77
- 80; P. Ex. I/7 at 24 - 29, 41 -
57, 66 - 69.
83. After identifying an area of hypertonicity, receptor-tonus practitioners
may apply deliberate pressure
on that region in order to eliminate sensitivity and ultimately to relax the
area. This technique should
always be done at a level that the patient can tolerate. Tr. 25; FFCL 77 - 79.
84. Expert chiropractic opinion establishes that, if a patient came to a practitioner's
office complaining of
tendinitis of both wrists, neck pain, and had a history of menstrual cramping
and recurrent yeast infections,
it would be proper for the practitioner to examine the patient's inner thigh
area, the pubic bone, the coccyx
area, and the breast area. Tr. 73 - 74; FFCL 79.
85. Petitioner's use of myofascial and trigger point therapy on the patients
alleging sexual misconduct was
done in a manner consistent with appropriate and professional chiropractic care
administered by
chiropractors having his experience and training. FFCL 80 - 84; Tr. 176.
86. Most female patients who seek treatment from chiropractors do so without
an expectation that such
treatment may involve massage or trigger point therapy of the pelvic or anal
areas. I.G. Exs. 4, 4 - 16.
Petitioner's performance of pelvic or anal trigger point or myofascial examinations
or treatment on
female patients without (1) informing them that he was going to treat or examine
the pelvic or anal areas
and the purpose for actions; (2) asking them if they consent to such procedures;
and (3) inquiring whether
they want a third person to be present is inconsistent with accepted professional
chiropractic practice.
FFCL 45.
88. In performing such pelvic or anal examinations or treatment on female patients
who were not given an
adequate explanation or opportunity to refuse such procedures or to have a third
person present, Petitioner's
conduct established that he is untrustworthy to provide health care to program
recipients and beneficiaries.
89. Petitioner admitted that he had hugged patient D and kissed her on the
cheek to congratulate her on her
engagement. Tr. 142.
90. Patient B complained that Petitioner's behavior was a little strange, in
that every time he would come
into the treating room, he would put his arm around her from behind, squeeze
her, and ask her how she was
doing. I.G. Ex. 15 at 7.
91. Petitioner has provided an adequate explanation for his behavior. While
he may have been somewhat
exuberant in his socialization with patients, the record does not support he
acted in this manner for sexual
gratification or as a result of any mental disorder. Tr. 136 - 182.
92. Petitioner now recognizes that his past effusive socialization and mannerisms
could interfere with his
professional relationships with patients. He has indicated that he will be more
restrained in his future
dealings with his patients. P. Posthearing Br. at 6.
93. Petitioner's socialization and mannerisms with his patients do not pose
a threat or danger to program
beneficiaries or recipients and do not warrant his exclusion as a program provider.
Petitioner's other chiropractic licenses
94. Petitioner has the burden of proof in establishing the factual elements
of 42 C.F.R. 1001.501
(c)(2) of the regulations. 42 C.F.R. 1005.15(c).
95. Petitioner is currently licensed to practice chiropractic in Texas and
was issued a license there on
August 18, 1989. I.G. Ex. 9.
96. On October 8, 1991, the Texas Board of Chiropractic Examiners (Texas Board)
wrote Petitioner that
its Enforcement Committee "received and reviewed all information available
on the complaint filed against
you. After extensive investigation, the Enforcement Committee has determined
that this does not
constitute a violation of the Chiropractic Act of Texas. Therefore, this complaint
is dismissed." I.G. Ex. 9
at 4.
97. Petitioner submitted a letter dated April 16, 1993 from the Texas Board
which states that Petitioner
assisted the Enforcement Committee of the Texas Board during an investigation
of allegations against his
license in Kansas. Petitioner "presented a volume of documents on our request,
that included but was not
limited to committee reports and transcripts from [KSBHA], patient files, advertising
documents, etc,[.]
etc. After this Committee's investigation the Texas Board of Chiropractic Examiners
did not discipline Dr.
Bonebrake[r]." P. Ex. III/7.
98. The I.G. did not rebut the information contained in the April 16th letter,
but instead noted that this
letter was in conflict with earlier correspondence from the Texas Board. I.G.
Response to Petitioner's
Additional Posthearing Br. at 2 - 3.
99. Petitioner submitted extensive information, both orally in writing, to
the Texas Board. P. Ex.
III/7; I.G. Ex. 9 at 11.
100. Petitioner fully and accurately disclosed to the Texas Board the circumstances
surrounding his license
surrender in Kansas and, based on such information, including information received
from KSBHA, the
Texas Board took no significant adverse action against Petitioner's license.
FFCL 96 - 99.
101. Petitioner is currently licensed to practice chiropractic in Oklahoma
and has been since June 4, 1980.
Tr. at 179; I.G. Exs. 11 - 12; P. Ex. I/7 at 97.
102. In a letter dated February 4, 1992 to the I.G., the Oklahoma Board of
Chiropractic Examiners
(Oklahoma Board) stated that it "took no action against Dr. Bonebrake in
regards to his surrendered Kansas
license due to the fact there appeared to be no violations of Oklahoma Statute.
He was merely required to
provide proof of continuing education taken during 1991 and the renewal fee
in order to receive his 1992
license. The Board did in fact investigate this issue and was satisfied that
there were no violations." I.G.
Ex. 12.
103. The February 4, 1992 letter from the Oklahoma Board is ambiguous as to
extent of information it
received from Petitioner or KSBHA concerning Petitioner's license surrender
in Kansas. FFCL 102.
104. Petitioner failed to meet his burden of proof with regard to the action
by the Oklahoma Board
because the documents he submitted do not reveal the extent of the disclosure
made by Petitioner
concerning his license surrender in Kansas and whether the Oklahoma Board was
fully apprised of the
circumstances surrounding such surrender when it decided to take no action against
Petitioner's license.
FFCL 102 - 103.
105. Petitioner is also currently licensed to practice chiropractic in Colorado. Tr. at 179.
106. In a letter dated October 19, 1992, the State Board of Chiropractic Examiners
in Colorado (Colorado
Board) wrote to KSBHA indicating that, based on the information provided, the
Colorado Board voted to
dismiss KSBHA's complaint against Petitioner. The file on this matter was closed.
P. Ex. III/6 at 5.
107. In a report dated August 18, 1992, the Complaints and Investigations unit
of the Department of
Regulatory Agencies in Colorado conducted an investigation based on the complaint
filed with KSBHA.
Petitioner provided information which included a written documents which support
his examination of the
breast (pectoral area) for diagnosis and treatment of referred pain from myofascial
and non-myofascial
trigger points. Id. at 8.
108. The report of investigation specifically requested from KSBHA: a certified
copy of the Final
Agency Order; a copy of the investigative report detailing the allegations,
findings, and other matters in the
case; and confirmation of Petitioner's compliance with such sanctions. Id.
109. Petitioner fully and accurately disclosed to the Colorado Board the circumstances
surrounding his
license surrender in Kansas and based on such information, including information
received from KSBHA,
the Board took no significant adverse action against Petitioner's license. FFCL
106 - 108.
110. On March 12, 1992, the Indiana Board of Chiropractic Examiners (Indiana
Board) denied Petitioner's
application for a license to practice chiropractic because (1) he did not pass
an examination in orthopedic
testing, neurological testing, and chiropractic technique with a score of 75;
and (2) his license was
disciplined in Kansas for a violation which bears on his ability to practice
competently in Indiana. P. Ex.
III/3 at 11.
111. On June 4, 1992, the Indiana Board issued findings of fact and an order
pursuant to Petitioner's
petition for review of the Indiana Board's denial of his application for licensure.
The order stated that
Petitioner's application for license was denied because of his failure to pass
an oral/practical examination.
The Indiana Board overruled its prior determination that Petitioner's Kansas
chiropractic license was
disciplined for a violation which would have a direct bearing on Petitioner's
ability to practice competently
in Indiana. P. Exs. III/6 at 1 - 4; III/3 at 11.
112. Based on information provided to the Indiana Board by Petitioner concerning
his license surrender in
Kansas, the Indiana Board determined that such surrender would not be a basis
to deny him a license in
Indiana but chose not to grant him a chiropractic license due to his failure
to pass an oral/practical
examination. FFCL 111.
113. Since Petitioner was not granted a license, the factual predicate of 42
C.F.R. 1001.501(c)(2) is not
met. FFCL 112.
114. The recent actions by the licensing boards of Texas, Oklahoma, Colorado,
and Indiana to either take
no adverse action against Petitioner's existing chiropractic licenses or to
conclude that his license surrender
in Kansas would not provide a basis to deny him a new license further demonstrates
that a two-year
exclusion is an adequate time period to ensure that Petitioner is trustworthy
to provide items or services to
beneficiaries and recipients of the Medicare and Medicaid programs. FFCL 95
- 112.
Other Findings of Fact and Conclusions of Law
115. The charges upon which Petitioner's license surrender are based are very
serious, directly relating to
Petitioner's ability to adequately care for beneficiaries and recipients of
the Medicare and Medicaid
programs.
116. Section 1128(b)(4)(B) of the Act authorizes exclusions from the Medicare
and Medicaid programs
for any individual or entity who surrendered a license while a formal disciplinary
proceeding was pending
before a State licensing agency and the proceeding concerned the individual's
or entity's professional
competence, professional performance, or financial integrity.
117. 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. 21,662 (1983).
118. The I.G. had authority to impose and direct an exclusion against Petitioner
pursuant to section
1128(b)(4)(B) of the Act. FFCL 2 - 11, 120.
119. On July 22, 1991, pursuant to section 1128(b)(4)(B) of the Act, the I.G.
notified Petitioner that he
was being excluded from participating in the Medicare program and directed that
he be excluded from
participating in Medicaid until he obtained a valid license to practice medicine
in Kansas.
120. On November 4, 1991, Petitioner conceded that the I.G. had authority under
section 1128(b)(4)(B) of
the Act to exclude him from the Medicare and Medicaid programs. Confirmation
of Stay of Proceedings
dated November 15, 1991.
121. Subsequently, the I.G. modified the exclusion to three years. Prehearing
Order and Schedule for
Filing Submissions for Summary Disposition dated February 26, 1992.
122. 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.
123. The regulations published on January 29, 1992 establish criteria to be
used by the I.G. in determining
to impose and direct exclusions pursuant to sections 1128(a) and (b) of the
Act. 58 Fed. Reg. 3298 (1992);
42 C.F.R. Part 1001 (1992).
124. On January 22, 1993, the Secretary published a clarifying regulation which
directs that the criteria to
be used by the I.G. in determining to impose and direct exclusions pursuant
to sections 1128(a) and (b) of
the Act are binding also on administrative law judges, appellate panels of the
Departmental Appeals Board,
and federal courts in reviewing the imposition of exclusions by the I.G. 58
Fed. Reg. 5618 (1993) (to be
codified at 42 C.F.R. 1001.1(b)).
125. The regulations published on January 29, 1992 and the clarifying regulations
published on January
22, 1993 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).
126. My adjudication of the length of the exclusion in this case is not governed
by the criteria contained in
42 C.F.R. 1001.501(b).
127. The three-year exclusion which the I.G. imposed and directed against Petitioner is excessive.
128. To achieve the Act's remedial purpose, it is sufficient in this case to
exclude Petitioner for a period of
two years. Alternatively, Petitioner's exclusion may be for less than two years
if another State licensing
authority, after Petitioner has fully and accurately disclosed to it the circumstances
surrounding his license
surrender in Kansas, grants Petitioner a new license or takes no significant
adverse action as to a currently
held license.
RATIONALE
Petitioner represented himself in this proceeding, and the record contains
numerous submissions by
Petitioner in which he sets forth his position. In many instances, Petitioner's
contentions were repetitive
and overlapping, and I have attempted to paraphrase and summarize Petitioner's
position in this discussion.
Even if not expressly mentioned, I have considered each and every one of the
arguments made in the briefs
and attachments and other documents submitted by Petitioner.
Petitioner surrendered his license in response to KSBHA's petition, which stated
that he had committed acts
of unprofessional conduct with regard to four different female patients by inappropriately
touching and
performing breast examinations on them for no legitimate medical purpose. I.G.
Exs. 3, 4. KSBHA
alleged that Petitioner's conduct was likely to harm the public, served no legitimate
medical purpose, and
constituted acts of sexual abuse, misconduct, or exploitation relating to his
professional practice of
chiropractic. I.G. Ex. 3 at 3 - 9. KSBHA alleged that Petitioner had repeatedly
failed to practice the
healing arts with that level of care, skill, and treatment which is recognized
by a reasonably prudent
similarly situated practitioner as being acceptable under similar conditions
and circumstances. Id. KSBHA
found probable cause that Petitioner had altered a patient's record and that
he used false, fraudulent, or
deceptive statements in the patient's record; he failed also to keep written
medical records describing
services for this patient, including pertinent findings and examination results.
Id. KSBHA found that
Petitioner had placed in a newspaper an advertisement which could be construed
to advertise professional
superiority or the performance of professional services in a superior manner
and/or to guarantee a
professional service. Id. KSBHA alleged also that in a radio advertisement,
Petitioner was not identified
as a doctor of chiropractic.
When Petitioner filed his Answer to KSBHA's petition, he denied the allegations
relating to breast
examinations, to the extent that it was alleged that such examinations constituted
unprofessional conduct.
I.G. Ex. 3 at 13. Petitioner asserted that the breast examinations of patients
A, B, C, and D served a
legitimate medical purpose; did not harm any members of the public; did not
constitute an act of sexual
abuse, misconduct, or exploitation. Petitioner asserted that, at all times,
he practiced the healing arts with
that level of care, skill, and treatment required under the Kansas Healing Arts
Act. I.G. Ex. 3 at 13.
Petitioner admitted that he placed an advertisement in a newspaper but denied
that such conduct constituted
unprofessional conduct. I.G. Ex. 3 at 14. He admitted also that the radio advertisement
did not specifically
identify him as a doctor of chiropractic. However, Petitioner denied that the
radio advertisement was
misleading to the public so as to constitute a violation of the law. I.G. Ex.
3 at 14.
On August 5, 1990, Petitioner wrote a letter to KSBHA and offered to voluntarily
surrender his license to
practice chiropractic in Kansas while a formal disciplinary hearing was pending.
Petitioner said that he
planned to cooperate with the Kansas Chiropractic Association's impaired-physicians
program for two
years. I.G. Ex. 5 at 2. On October 18, 1990, a Final Order was entered before
KSBHA. Petitioner's
voluntary surrender of his license to practice chiropractic in Kansas was treated
as a "plea of no contest"
and as a "suspension" of his license. It was reported as such to any
state or national medical federation or
clearing house for disciplinary sanctions of health care providers and licensees.
Petitioner approved and
signed the Final Order. I.G. Ex. 3 at 16 - 22.
On February 19, 1991, the I.G. advised Petitioner that he was being considered
for exclusion from
participation in the Medicare and Medicaid programs, based on the surrender
of his license to practice
chiropractic in Kansas while a formal disciplinary proceeding was pending before
KSBHA concerning his
professional competence, professional performance, or financial integrity. This
letter provided Petitioner
with an opportunity to present mitigating factors that he believed should be
relevant in determining the
period of his exclusion. On April 10, 1991, Petitioner submitted mitigating
information to the I.G.
Petitioner asserted that he was "stressed out by finances and divorce and
the unfairness of the [licensing]
Board," and he had surrendered his license because he "felt [he] would
lose even if [he] won[.]" I.G. Ex. 7.
On July 15, 1991, Petitioner removed himself from the Kansas Chiropractic Association's
impaired-
physicians program without completing it. I.G. Ex. 8 at 2, 6.
On July 22, 1991, pursuant to section 1128(b)(4)(B) of the Act, the I.G. excluded
Petitioner from
participation in the Medicare and Medicaid programs indefinitely. Petitioner
timely requested a hearing on
his exclusion from the Medicare and Medicaid programs. 8/ Subsequently, the
I.G. modified the length of
the exclusion to a three-year period. Petitioner does not dispute that the I.G.
had authority to impose and
direct an exclusion against him pursuant to section 1128(b)(4)(B) of the Act.
He disagrees as to the
reasonableness of the length of the exclusion imposed and directed by the I.G.
I. A two-year exclusion is reasonable in this case.
A. The Part 1001 regulations do not establish criteria which govern review
of the reasonableness of
exclusions.
On January 29, 1992, the Secretary published regulations (42 C.F.R. Parts 1001
- 1007) pertaining to the
authority under the Medicare and Medicaid Patient and Program Protection Act
(MMPPPA), Public Law
100-93, to exclude individuals and entities from reimbursement for services
rendered in connection with
the Medicare and Medicaid programs. 9/ These new regulations also included amendments
to the civil
money penalty authority of the Secretary under the MMPPPA. For purposes of this
proceeding, the
specific regulatory provisions relating to permissive exclusions under section
1128(b)(4) of the Act (42
C.F.R. 1001.501) and appeals of such exclusions (42 C.F.R. Part 1005) must be
considered in terms of
their applicability to this case.
Prior to the January 29, 1992 regulations, when determining whether the length
of an exclusion imposed
and directed against a party by the I.G. was reasonable, ALJs usually evaluated
an excluded party's
"trustworthiness" in order to gauge the risk that party might pose
in terms of the harm Congress sought to
prevent. Appellate panels of the DAB have concurred in the appropriateness of
using the term
"trustworthiness" as a shorthand term for those cumulative factors
which govern the assessment of whether
a period of exclusion imposed by the I.G. is reasonable. See Hanlester Network,
et al., DAB 1347, at 45 -
46 (1992); Behrooz Bassim, M.D., DAB 1333 (1992).
The January 29, 1992 regulations effect procedural and substantive changes
with respect to the imposition
of exclusions. For example, under the criteria contained in 42 C.F.R. 1001.501(b),
with the exception of
circumstances enumerated in 42 C.F.R. 1001.501(c), an exclusion 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 action. In addition,
the new regulations
provide that exclusions imposed pursuant to section 1128(b)(4) are subject to
being lengthened based on
the specific "aggravating" factors enumerated in 42 C.F.R. 1001.501(b)(2).
Only if one or more of the
aggravating factors listed in 42 C.F.R. 1001.501(b)(2) justifies a longer exclusion
can the specific
mitigating factors listed in 42 C.F.R. 1001.501(b)(3) be considered. It is undisputed
that the new
regulations alter the substantive rights of Petitioner, because they limit the
mitigating factors that can be
considered in Petitioner's favor and would bar Petitioner from presenting evidence
which is relevant to his
trustworthiness to provide care. 10/
Administrative law judges have held consistently that the January 29, 1992
regulations were not intended
by the Secretary to strip parties retroactively of rights vested prior to January
29, 1992 and, therefore, the
regulations do not apply to any cases arising from exclusion determinations
made prior to that date. Bruce
G. Livingston, D.O., DAB CR202 (1992); Charles J. Barranco, M.D., DAB CR187
(1992); Syed Hussaini,
DAB CR193 (1992); Steven Herlich, DAB CR197 (1992); Stephen J. Willig, DAB CR192
(1992);
Sukumar Roy, M.D., DAB CR205 (1992); Aloysius Murcko, D.M.D., DAB CR189 (1992);
Narinder
Saini, M.D., DAB CR217 (1992); Tajammul H. Bhatti, M.D., DAB CR245 (1992); Anthony
Accaputo, Jr.,
DAB CR249 (1993), aff'd, DAB 1416 (1993). In addition, an appellate panel of
the DAB addressed the
applicability of the new regulations to an exclusion effected prior to January
29, 1992, under section
1128(b)(4) of the Act. The panel held that the January 29, 1992 regulations
do not apply retroactively in
cases involving exclusion determinations made prior to the regulations' publication
date. Bassim at 5 - 9.
This view was recently reaffirmed by an appellate panel of the DAB in Bhatti
at 12.
The appellate panel in Bassim noted the distinction between the effective date
of a new regulation and the
permissible effect of a regulation. Bassim at 6. It held that the January 29,
1992 regulations were
inconsistent with prior DAB decisions on the scope of review and the length
of an exclusion, and that the
January 29, 1992 regulations represented substantive changes in the law. Id.
at 6 - 7. The panel
determined that the Secretary did not intend to alter the substantive rights
of petitioners with the January
29, 1992 regulations. Id. at 8 - 9.
The panel cited several rationales to support its determination that the new
regulations were not to be
applied retroactively to cases where a petitioner had been excluded prior to
January 29, 1992. The panel
noted that the concept of retroactivity is not favored in law and that an agency's
authority to promulgate
rules having a retroactive effect must be expressly granted by Congress. Id.
at 6. Moreover, the panel
noted also that, even with such a statutory grant of authority, an agency's
rules will not be applied
retroactively unless its language clearly requires this result. Id. at 6.
Congress did not authorize the Secretary to promulgate rules having a retroactive
effect, and there was no
statement by the Secretary that the new regulations were intended to apply retroactively
to achieve
substantive changes. In the panel's view, if the Secretary had intended to effect
substantive changes in
pending cases, this intent would have been expressly stated given the resultant
administrative
complications in the appeals process as well as the potential prejudice to petitioners.
Id. at 7. The panel
held that parts of the new regulations which affect substantive changes may
be applied only to cases in
which the I.G.'s Notice of Intent to Exclude, Notice of Exclusion, or Notice
of Proposal to Exclude is dated
on or after January 29, 1992. Id. at 9.
I conclude that it was not the Secretary's intent to apply the new regulations
retroactively to unlawfully
strip parties, including Petitioner, of previously vested rights. Therefore,
the new Part 1001 regulations
were not intended to apply to cases pending as of the date of their publication.
I have previously addressed
this issue in depth in my decisions in Barranco at 16 - 27 and Livingston at
8 - 10. Administrative Law
Judge Steven T. Kessel has addressed this issue in depth in his decision in
Saini at 11 - 19. For purposes of
this case, I incorporate the rationale in Barranco, Livingston, and Saini that
Petitioner's de novo hearing
rights would be substantially adversely affected and it would be manifestly
unjust to apply the January 29,
1992 regulations.
On January 22, 1993, the Secretary published a clarification of the January
29, 1992 regulations (hereafter
referred to as clarification) that purported to make the regulations of Part
1001:
applicable and binding on the Office of Inspector General (OIG) in imposing
and proposing
exclusions, as well as to Administrative Law Judges (ALJs), the Departmental
Appeals Board (DAB), and
federal courts in reviewing the imposition of exclusions by the OIG (and, where
applicable, in imposing
exclusions proposed by the OIG).
42 C.F.R. 1001.1; 58 Fed. Reg. 5618 (1993).
This clarification was to be applied to "all pending and future cases
under this authority." 58 Fed. Reg.
5618. The Secretary waived the proposed notice and public comment period specified
by the
Administrative Procedure Act pursuant to the exception for "interpretive
rules, general statements of policy
or rules of agency organization, procedure or practice" at 5 U.S.C. 553(b)(A).
Id. Moreover, the Secretary
stated that this clarification "does not promulgate any substantive changes
to the scope of the January 29,
1992 final rule, but rather seeks only to clarify the text of that rulemaking
to better achieve our original
intent". Id.
At the time he signed the clarification on December 18, 1992, Secretary Sullivan,
or those to whom he
entrusted the drafting of the clarification, must be assumed to have been aware
of the DAB appellate
panel's decision in Bassim, which was issued on May 28, 1992. More importantly,
the DAB is delegated
authority to make final interpretations of law on behalf of the Secretary upon
review of ALJs' decisions.
Gideon M. Kioko, M.D., DAB CR256 (1993). Thus, the DAB appellate panel was in
effect speaking for
the Secretary when it concluded that the January 29, 1992 regulations were not
to apply retroactively to
cases pending prior to promulgation of the new regulations.
The appellate panel in Bassim went on to say:
In sum, absent specific instructions in the Act or the preamble to the 1992
Regulations directing
that they apply to pending cases, we conclude that the Secretary did not intend
to alter a petitioner's
substantive rights in such fundamental ways as suggested by the I.G. We also
conclude that portions of the
1992 Regulations which change substantive law may permissibly be applied only
to cases in which the
I.G.'s Notice of Intent to Exclude, Notice of Exclusion, or Notice of Proposal
to Exclude is dated on or
after January 29, 1992.
Id. at 8 - 9.
In this clarification, the Secretary did not expressly state his intent or
provide specific instructions directing
that the new regulations apply retroactively to cases pending prior to January
29, 1992. Rather, the
Secretary emphasized that such regulation did not make "any substantive
changes" to the "scope" of the
new regulations. 58 Fed. Reg. 5618. No other conclusion can be reached but that,
in publishing the
January 22, 1993 clarification, the Secretary did not modify the appellate panel
decision in Bassim, which
held that the January 29, 1992 regulations do not apply to cases pending prior
to January 29, 1992. This
case was pending as of that date.
The January 22, 1993 clarification was published during the period that the
posthearing briefing schedule
was in progress in this case. I specifically invited the parties to address
the applicability and impact of the
new regulations. I deemed this especially necessary since the parties had prepared
for this hearing under
the assumption that the case would be heard and decided under the trustworthiness
standard. It was not
until several months after the November 5, 1992 hearing that the January 22,
1993 clarification was
published. Also, I convened a posthearing conference in which I specifically
asked the parties whether
they wished to submit additional evidence in light of the clarification. Both
parties addressed the issues of
the impact of the new regulations and the clarifying regulations on this case.
The I.G. argues that, pursuant to the clarifying regulations, the reasonableness
of the length of the
exclusion must be adjudicated in accordance with 42 C.F.R. 1001.501(b). The
I.G. notes that the I.G.
reduced the exclusion to three years from its original indefinite term and that,
as a matter of law, the
indefinite exclusion originally imposed was reasonable. The I.G. avers that
there is no legal or factual
basis for consideration of the administrative hearing testimony, since no aggravating
circumstances were
considered in imposing Petitioner's exclusion, under the new regulations no
mitigating circumstances may
be considered. 42 C.F.R. 1001.501(b). Moreover, the I.G. argues that, although
it may have been
appropriate under DAB precedent for ALJs and the I.G. to inquire into a petitioner's
culpability and
trustworthiness prior to the Secretary's enactment of the new regulations, this
inquiry is no longer
appropriate for establishing the reasonableness of the length of an exclusion
pursuant to Part 1001. The
I.G. contends that 42 C.F.R. 501(b) is controlling, since the subsequent clarifying
regulation indicates that
the new regulations apply to all pending and future cases. I.G. Posthearing
Br. 2, 5 - 11, 20.
Petitioner argues that the application of the new regulations is a retroactive
application and would be unfair
to him and that any period of exclusion would be extreme or excessive. P. Posthearing
Br. at 104.
Since the January 29, 1992 regulations lacked retroactive effect, for the reasons
stated in Bassim, they
could not have acquired such effect with subsequent textual clarifications that
do not purport to modify the
scope of the January 29, 1992 regulations and which have been published without
satisfying the procedures
necessary under the Administrative Procedure Act for effecting substantive changes.
Accordingly, neither
the January 29, 1992 regulations nor the subsequent January 22, 1993 clarification
is controlling upon my
determination of the length of the exclusion in this case, where the notice
of exclusion was issued on July
22, 1991, well in advance of the publication of the new regulations on January
29, 1992 or the clarification
on January 22, 1993. Instead, Petitioner's trustworthiness is the applicable
standard for evaluating the
reasonableness of the length of the exclusion in this case.
II. Trustworthiness is the applicable standard for evaluating the reasonableness
of the exclusion in this
case.
The DAB and its ALJs long have held that section 1128 is a remedial statute.
Exclusions imposed under
section 1128(b) cannot be imposed for other than remedial reasons. See United
States v. Halper, 490 U.S.
435, 448 (1990). The Halper case decided the question of whether a punitive
sanction imposed under the
False Claims Act in addition to a criminal punishment for the same offense constituted
a "second
punishment" which violated the Double Jeopardy Clause of the United States
Constitution. The Supreme
Court's decision subsumes the broader questions of what constitutes a civil
remedy and what constitutes a
punishment. The Supreme Court observed in Halper that the aims of retribution
and deterrence are not
legitimate nonpunitive government objectives. It concluded that:
[A] civil sanction that cannot be fairly said solely to serve a remedial purpose,
but rather can be
explained only as also serving either retributive or deterrent purposes, is
punishment, as we have come to
understand the term.
490 U.S. at 448.
Civil remedy statutes cannot be applied constitutionally to produce punitive
results in the absence of
traditional constitutional guarantees, such as the right to counsel, the right
to a trial by jury, or the right
against self-incrimination. Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168 -
169 (1963). Labelling a
statute as a "civil remedies" statute will not serve to insulate acts
taken pursuant to that statute from
analysis as to whether they are remedial or punitive. Id.
The legitimate remedial purpose for any exclusion imposed pursuant to section
1128(b) of the Act is to
protect federally funded health care programs and their beneficiaries and recipients
from parties who are
not trustworthy to provide care. Robert Matesic, R.Ph., d/b/a Northway Pharmacy,
DAB 1327, at 7 - 8
(1992); Stephen J. Willig, M.D., DAB CR192 (1992); Hanlester Network, et al.,
DAB CR181, at 37 - 38
(1992), aff'd in part and rev'd in part, DAB 1347 (1992), aff'd, no. CV92-4552-LHM
(C.D. Cal. 1993); see
H.R. Rep. No. 393, Part II, 95th Cong., 1st Sess. 69 (1977), reprinted in 1977
U.S.C.C.A.N. 3072.
Section 205(b) of the Act guarantees parties who are excluded pursuant to section
1128(b), and who
request hearings, full administrative review of the reasonableness of the length
of the exclusions imposed
against them, measured by the remedial criteria implicit in section 1128(b).
Bernardo G. Bilang, M.D.,
DAB 1295, at 9 (1992); Eric Kranz, M.D., DAB 1286, at 7 - 8 (1991); Hanlester,
DAB CR181, at 39 - 43.
Section 1128(b) does not require the I.G. to impose an exclusion in every case
in which he finds that an
individual has engaged in conduct that would authorize an exclusion. Bilang
at 8; Kranz at 9; Hanlester,
DAB CR181, at 36 - 37. Such an interpretation was made clear when an appellate
panel Bilang held that:
The scheme Congress established in section 1128 permits the Secretary to conserve
program
resources by relying where possible on other federal or state court or administrative
findings. However,
Congress did not require imposition of an exclusion [under section 1128(b)(4)]
on all providers who
surrendered their licenses, nor mandate any particular period of exclusion in
such circumstances. This
grant of discretion to the Secretary is inconsistent with the I.G.'s apparent
position that the surrender of a
license creates a presumption of culpability which cannot be rebutted for any
purpose.
Bilang at 8. The appellate panel held further that "[i]f Congress had
intended the state action to be
determinative for federal purposes, Congress would not have made the exclusion
permissive, nor have
provided for de novo review." Id. at 9.
Thus, whether or not an exclusion should be imposed in a particular case depends
on the facts of that case
in light of the Act's remedial purpose. Moreover, in circumstances where section
1128(b) authorizes the
I.G. to impose an exclusion and where an exclusion is determined remedially
to be necessary, section
1128(b) does not set a minimum length of exclusion. As with the question of
whether to impose a
permissive exclusion at all, the issue of the length of any exclusion that is
imposed turns on the remedial
basis for the exclusion and the evidence which is unique to each case.
Section 205(b) of the Act guarantees an excluded party the right to a de novo
hearing as to the
reasonableness of the length of an exclusion imposed under section 1128(b).
Bilang at 9; Kranz at 7 - 8;
Hanlester, DAB CR181, at 39 - 43. The de novo hearing granted by section 205(b)
contemplates a full
administrative review of whether an exclusion comports with the Act's remedial
purpose. As the appellate
panels affirmed in Bilang and Kranz, an administrative law judge who conducts
a hearing as to the
reasonableness of an exclusion may consider all evidence which is relevant to
the issue of reasonableness.
Kranz at 8; see Joel Davids, DAB 1283, at 7 (1991); Vincent Baratta, M.D., DAB
1172, at 11 (1990).
Where the petitioner surrenders his license in response to a disciplinary proceeding
covered by section
1128(b)(4)(B) of the Act, as was the case herein, such surrender can be used
by the I.G. to establish the
authority to exclude and to raise a presumption of the Petitioner's culpability
for the actions alleged in the
disciplinary proceeding. However, this presumption may be rebutted by an excluded
party, at a hearing
before an ALJ. Bilang at 7 - 9, 12; see also Christino Enriquez, M.D., DAB CR119
(1991). The
legislative history of section 1128(b)(4) of the Act supports the creation of
the presumption of
untrustworthiness when there is a license surrender. See S. Rep. No. 109, 10th
Cong., 1st Sess. 3 (1987),
reprinted in 1987 U.S.C.C.A.N. 682, 688.
III. I deny the I.G.'s motion for reconsideration of ruling granting in part
and denying in part the I.G.'s
motion for summary disposition.
The I.G.'s posthearing brief contained also a "Motion for Reconsideration
of Ruling Granting in Part and
Denying in Part the Inspector General's Motion for Summary Disposition."
The I.G. argued that the three-
year exclusion was not only reasonable but that there is no legal or factual
basis for consideration of the
testimony taken during the administrative hearing. I.G. Posthearing Br. at 10.
To the extent that the I.G. is
attempting to reargue his position regarding the new regulations, I have already
ruled that such regulations
are not applicable to this case. Therefore, I deny the I.G.'s motion for reconsideration.
IV. Petitioner's chiropractic practices were the subject of the disciplinary
proceeding brought by KSBHA.
A. Petitioner's alteration of a patient's medical record is an indication that he is untrustworthy.
KSBHA's petition against Petitioner concluded that there was probable cause
that Petitioner had altered the
medical record of patient D, and that such conduct was unprofessional. The petition
found that (1) he used
false, fraudulent, or deceptive statements in the patient's record and (2) he
failed to keep written medical
records describing services rendered to this patient. FFCL 5. Although the petition
stated that Petitioner
altered the records of patient D, no description was given of what entries were
considered false, fraudulent,
or deceptive, nor did the petition describe the medical services omitted from
the patient's record. The I.G.
offered no affirmative evidence on these allegations other than relying on the
petition itself. In fact, in
response to my question of the I.G.'s counsel at the hearing regarding this
issue, counsel for the I.G. stated
"I'm not prepared to state what the Inspector General's position is on
altering a record." Tr. 145. Counsel
for the I.G. merely recited that KSBHA had probable cause to make such findings
in the petition. Id. Such
reliance on KSBHA's petition alone is insufficient to prove a lack of trustworthiness
of Petitioner,
especially where he offers evidence here to rebut the findings.
The record was clarified through testimony supplied by Petitioner. He admitted
that he altered the record
by adding supplemental information, contending that it was lawful to supplement
a medical record. Tr.
139. He testified that patient D was slouched over when he came into the room
and his treatment included
a breast/chest examination. Petitioner explained that he "inadvertently
left off" this information from the
patient's record. Id. He admitted that five to six months after the examination
he inserted in the patient's
record a notation that he had conducted a breast examination, after an accusation
of sexual misconduct by
the patient's father. FFCL 19 -20.
Such conduct makes Petitioner less trustworthy. First, it is accepted professional
practice by chiropractors
and other health care providers to keep complete and accurate records of their
examination and treatment
of patients. FFCL 18. Second, not only does Petitioner's conduct fail to adhere
to such professional
practice, it can be construed also as a self-serving attempt to justify his
actions with patient D in response
to an accusation of sexual misconduct. FFCL 21. Petitioner's claim to the contrary
is inconsistent with his
own description of the circumstances of altering patient D's records.
Beneficiaries and recipients of the program should be able to expect that health
care providers who treat
them will maintain full and accurate records of such treatment in compliance
with normal professional
standards of conduct. Nor should they receive treatment from providers who alter
or modify patient
records when accused of professional misconduct as a means of responding to
such accusation.
Petitioner's contention at the hearing that the addition to the patient record
was not in his best interest
misses the point. Tr. 144. Even assuming that the inserted information could
have been used against
Petitioner, this does not excuse him from the responsibility to maintain complete
and accurate treatment
records of his patients. The fact that he still may not realize the significance
of his actions also makes him
less trustworthy. However to his credit, the evidence on this issue came directly
from Petitioner without
hesitation or obfuscation. He readily admitted his actions, although he contended
they were lawful.
The I.G. has not offered any evidence to show that Petitioner has repeated
this conduct since 1989. It
appears to be an isolated event, rather than a pattern or practice. Moreover,
the two-year exclusion
imposed against Petitioner is a sufficient period of time for him to demonstrate
whether any propensity to
alter records poses a danger or threat to the program.
B. Petitioner's newspaper and radio advertisements are an indication of his untrustworthiness.
Petitioner allegedly placed an advertisement in a Wichita, Kansas, newspaper
on June 22, 1989, which
KSBHA construed as an attempt to advertise professional superiority or the performance
of professional
services in a superior manner and/or to guarantee a professional service contrary
to K.S.A. 65-2837(b)(7),
and (8). I.G. Ex. 3 at 7 - 8. This advertisement allegedly was placed by the
National Institute of Clinical
Acupuncture (Institute); the address and phone number given for the Institute
is the same as Petitioner's;
Petitioner is the only member of the Institute; and the advertisement does not
mention Petitioner's name or
the branch of the healing arts in which he is licensed. I.G. Ex. 4 at 30; see
also I.G. Ex. 4 at 66 - 74. On
August 24, 1989, KSBHA received an audiotape recording of a radio advertisement
placed by Petitioner,
which did not identify him as a doctor of chiropractic using the words chiropractor,
chiropractic physician,
or D.C.
On April 10, 1990, Petitioner signed a "Stipulation" with KSBHA,
and, in return for proceedings not being
brought against him, he agreed among other things: (1) not to publish in any
medium any advertising
which may constitute false, misleading, deceptive, or unlawful advertising;
(2) to identify himself in all
advertisements as a Doctor of Chiropractic; (3) for a period of two years from
the date of the Stipulation,
any advertisement which he published would be submitted before publication to
KSBHA's representatives,
for the purpose of advice and comment on the form and content; and (4) a violation
of the Stipulation
would be prima facie evidence that a violation of the Healing Arts Act had occurred
for which KSBHA
could suspend, revoke, or limit the license of Petitioner. I.G. Ex. 4 at 28
- 34.
The I.G. offered no affirmative proof on this issue, relying instead on the
investigative record from
KSBHA. The petition filed by KSBHA appears to contain the same findings as set
forth in the Stipulation.
FFCL 5, 30. The record contains no indication that Petitioner engaged in improper
advertising after 1989
or that he has violated the Stipulation. This is especially significant since
Petitioner was required to submit
to KSBHA for review prior to publication all of his advertising during a two-year
period. While such past
advertising arguably is indicative of untrustworthiness by Petitioner, I am
impressed that KSBHA was
willing to resolve the matter by stipulation without formal disciplinary proceeding.
I give no particular
weight to the fact that KSBHA chose to incorporate the same charges in its subsequent
petition that led to
Petitioner's surrender of his license. It is evident at the time the petition
was written that KSBHA included
all past and pending investigative matters that it believed supported revocation
of Petitioner's chiropractic
license. Whatever indicia of a lack of trustworthiness which arises from such
advertising has been
dissipated with the passage of time since Petitioner was excluded by the I.G.
Consequently, I conclude that
based on such advertising Petitioner no longer presents a danger or threat to
the program.
C. Breast examinations performed on Petitioner's chiropractic patients served
a legitimate medical
purpose.
Petitioner testified at the hearing that he was an acupuncturist, a certified
receptor-tonus instructor, a
chiropractic orthopedist, and that he had a degree in biology, emphasizing human
nutrition. FFCL 32. He
has performed about 3,000 breast examinations on both female and male patients
in the past ten years.
FFCL 59. Petitioner stated that some of the examinations that he performed which
were questioned by
KSBHA were done in connection with acupuncture treatment. 11/ FFCL 61.
The allegations against Petitioner included accusations that he (1) looked
for "knots" in a patient's breasts;
(2) massaged or kneaded a patient's breasts; (3) while a patient was lying on
her side, he examined her
breast against the examining table; (4) "cupped" another patient's
breasts; and (5) pinched a patient's nipple
and asked if it hurt. FFCL 50. These patients also contended that Petitioner
did not mention that a nurse or
other third party could be present during an examination and there was no sign
in his office indicating this
information. FFCL 64 - 66.
Patient D reported that she had neither asked Petitioner to perform a breast
examination nor had she
consented to a breast examination. I.G. Ex. 4 at 35 - 65. Patient A alleged
that Petitioner did not tell her
that he was going to do a breast examination. I.G. Ex. 14 at 11 - 12. Patient
D contended that although
Petitioner advised her that he going to do a breast examination, before she
could respond he pulled down
her gown and examined her breasts. I.G. Ex. 15 at 5 - 7.
Generally, most female patients who seek chiropractic treatment do so without
an expectation that such
treatment might include breast examinations. FFCL 52. Chiropractors in Kansas
are given a wide latitude
to perform general physical examinations, which may include breast, pelvic,
and rectal examinations.
FFCL 38. They are expressly prohibited from administering medicine or drugs,
performing surgery or
practicing obstetrics. FFCL 37. Chiropractors who engage in myofascial or trigger
point therapy are likely
to perform more breast examinations than general chiropractors. FFCL 41. Petitioner
admitted that he has
performed about 3,000 breast examinations on both female and male patients out
of 4,000 patients during
the past ten years. FFCL 59. This is in contrast to other chiropractors having
similar background and
experience as Petitioner who do not perform breast examinations with the same
frequency. For example,
Dr. Fiscella performed breast examinations on less than one percent of his patients
and Dr. Jaggers does
not perform them on a routine basis. FFCL 42 - 43.
Petitioner's practice of conducting breast examinations on most of his patients
as part of his general
examination of them prior to administering treatment, while clearly being more
extensive than other
chiropractors, is not in itself indicative of an improper chiropractic practice.
Such examinations do not
violate any Kansas chiropractic regulations. In fact, they are part of the training
received by students
studying chiropractic medicine. FFCL 40.
The I.G. relied on KSBHA's petition, the interviews or depositions of patients
A through D, and the
affidavit of Dr. John H. Hill, II, to support the contention that Petitioner
improperly performed breast
examinations. Dr. Hill confirms in his affidavit that chiropractic students
in Kansas are trained to conduct
breast examinations on male and female patients. I.G. Ex. 17 at 1. He and the
I.G. challenge the manner in
which such examinations were conducted and the absence of a third person in
the room. Id. Particularly,
Dr. Hill opines that "[s]queezing a patient's breast or nipple and asking
'does that hurt' does not describe a
professional or proper complete examination." Id.
Such opinion was contradicted by Petitioner's experts. Dr. Fiscella testified
that when a physician "is
examining the breast tissue itself, a pinching, a pressing on, an observation,
a touching thereof, is a normal
procedure." Tr. 34 - 35. Dr. Fiscella stated that a pinching of the breast
and saying "does that hurt" would
be part of a breast examination. Tr. 35. Dr. Jaggers stated that if a chiropractor
pinched a patient's breast
and asked "does that hurt" without further examination, that "could
very well be good enough" to constitute
a complete examination. Tr. 97. Dr. Lowe testified that he would customarily
perform a breast
examination if the pectoralis muscle was involved and he would "use pincer
palpation to lift and palpate
the fatty tissue of the breast and would manipulate the nipple briefly."
Tr. 130. These experts must be
given more weight than the single expert relied on by the I.G. They were subject
to cross-examination.
Dr. Hill did not testify and the I.G. chose not to rebut Petitioner's experts'
testimony. Also, some of the
breast examinations or manipulation techniques performed by Petitioner were
done based on his advanced
training; training that most general chiropractors do not receive. 12/ Tr. 102
- 104.
While it is clear that Petitioner may in fact have conducted breast examinations
more extensively than other
chiropractors, the I.G. has failed to prove that such examinations were done
for his sexual gratification and
not for medical purposes. Petitioner, if anything, aggressively used his advanced
training and techniques to
resolve the medical problems of his patients. Many patients came to Petitioner
after they had been treated
unsuccessfully by other chiropractors. When considering the number of breast
examinations that Petitioner
has performed, he has had relatively few complaints. 13/ Moreover, the credibility
of patient D, whose
description of Petitioner's conduct is relied on heavily by the KSBHA to establish
its case, has been placed
in doubt by her continuation of extensive treatment after the initial breast
examination and her litigation
against Petitioner. 14/ Therefore, based on the record before me, I am unable
to conclude that Petitioner's
breast examinations of patients A - D served no legitimate medical purpose or
were below the recognized
level of care for chiropractors. This conclusion is supported further by KSBHA's
prior review of
Petitioner's breast examination of patients, including that of patient C, who
was included in the petition,
and the closure of such cases without formal action being taken. FFCL 62 - 63.
Although Petitioner's conduct of breast examinations served a legitimate medical
purpose, the "cupping" of
a female's breast is an unusual act for a chiropractor. It is apparent that
many of his female patients were
surprised by the examination since they did not anticipate that such examination
would be performed by a
chiropractor. Nor did Petitioner provide them with an adequate explanation of
the procedure or its
purpose. 15/ Thus, Petitioner owes a higher duty of care to a patient who must
undergo such treatment and
should fully explain the procedure and why the procedure is necessary. It is
ultimately the patient who
must decide whether or not to undergo such treatment. All of Petitioner's experts
agreed that a chiropractor
should inform a patient prior to a breast examination that he intends to do
such an examination, make sure
the patient consents, and have a third party present, especially if the patient
is new to the chiropractic
practice. FFCL 45. KSBHA advised Petitioner in April 1988 to notify his female
patients that a third
person could be present if the patient so desired. FFCL 64. It is evident that
Petitioner did not always
provide such an opportunity to his patients subsequent to the admonition of
KSBHA in April 1988. 16/
FFCL 65. He contended that he did follow KSBHA's advice, but this is not borne
out by the information
provided to KSBHA concerning his patient care. Id.
The evidence demonstrates that Petitioner's extensive use of breast examinations
was not characteristic of
what most chiropractors generally do and was contrary to the reasonable expectation
of most of his female
patients. In such circumstances, he had a duty to inform his patients of the
specifics regarding his
methodology. Petitioner should have explained why he needed to do the breast
examinations, what he
hoped to accomplish, inquired whether the patients agreed to his undertaking
such examinations, and
whether the patients wanted a third person present. Petitioner is less trustworthy
because he did not
routinely follow such procedures with his patients, especially considering his
past difficulties with KSBHA
and the admonitions he received from this licensing board regarding his use
of breast examinations in his
practice. Failure to undertake such measures with his patients on a uniform
basis is contrary to accepted
chiropractic standards of conduct, even for persons having similar training
and experience as Petitioner.
The I.G. has concluded that a three-year exclusion is appropriate, but I find
it excessive. A two-year
exclusion is of sufficient length for Petitioner to demonstrate that he no longer
poses a threat or danger to
the program from his failure to fully inform his female patients of (1) the
nature and purpose of his breast
examinations and (2) the opportunity to refuse such examinations or have a third
person present.
D. Petitioner's other physical contact with patients is not a basis for an exclusion.
Petitioner's patients alleged that he was rough when he examined them and that
his treatments were painful
and often left bruises on their body. FFCL 77 - 79. Patient C, who received
massage treatment on her
Caesarean scar and in the area of her anus, felt uncomfortable about complaining
because she might be
considered naive, childish, or insulting. FFCL 78. Even though Petitioner, for
three weeks, three times a
week, performed deep muscle massage on patient D's outer and inner thighs and
buttocks, sometimes
getting close to the pubic bone, she never indicated that he was too rough or
that she felt that he was
getting too close to her pubic bone at times. FFCL 79. Dr. Fiscella testified
that once the trigger points at
the pubic bone are found, the chiropractor can brush back and forth across that
until the trigger point is
released. Tr. 26 - 27.
The I.G. and Dr. Hill contested Petitioner's use of deep massage or breast
examination as not normally
being indicated when a patient presents symptoms of tendinitis of the hands
and wrists. I.G. Ex. 17 at 2.
Such procedures were validated by the opinion of the chiropractic experts who
testified on behalf of
Petitioner. FFCL 82 - 84. Apparently, the support for use of these chiropractic
measures was based on the
advance training Petitioner received in myofascial and trigger point therapy.
FFCL 80 - 85. The I.G. did
not challenge the legitimacy of the therapy, only the manner in which it was
performed by Petitioner. Tr.
71. However, based on the record before me, I have no evidence that Petitioner
applied these techniques
incorrectly. As he did when conducting the breast examinations, Petitioner failed
to inform his female
patients prior to performing myofascial or trigger point therapy in the pelvic
or anal areas that (1) he was
going to conduct such examinations or therapy and the purpose for it, (2) they
had the right to refuse such
procedures, and (3) they could have a third person present. FFCL 87. Such conduct
was contrary to
accepted standards of chiropractic practice and is an indication of Petitioner's
lack of trustworthiness to be
a program provider. FFCL 86 - 89. The I.G.'s only expert -- Dr. Hill -- merely
said he was "not familiar"
with a particular manipulation or adjustment technique used by Petitioner. FFCL
61; I.G. Ex. 17 at 2.
Such evidence is overcome by the opinion of Petitioner's experts, who apparently
had more extensive
training than Dr. Hill in advanced chiropractic techniques and procedures.
Petitioner studied the receptor-tonus method of chiropractic under Dr. Fiscella.
17/ The receptor-tonus
practitioner locates trigger points or myofascial areas by examination or palpitation
of the soft tissues of the
body. Tr. 24. After identifying an area of hypertonicity, the practitioner may
apply a deliberate pressure
on that region in order to eliminate sensitivity and ultimately to relax the
area. Tr. 25. This technique
should always be done at a level that the patient can tolerate. Tr. 25. Whether
or not a person bruises
easily depends on the type of examination being done as well as on the nutritional
tolerances of the patient.
A patient deficient in vitamin B-12, iron, vitamin C, and other nutrients will
have a tendency to bruise
easily. Females bruise more easily than males. Tr. 86. Acupuncturists may use
massage therapy to break
up adhesions around surgery scars. Tr. 53 - 54.
I conclude that Petitioner provided legitimate acupuncture or myofascial trigger
point therapy when using
massage therapy on his patients. As one of the experts pointed out, females
tend to bruise more easily than
males. Additionally, it appears that females might be more sensitive to so called
"rough" treatment -- i.e.,
the amount of pressure that the chiropractor applies during a treatment. Unfortunately,
Petitioner's
techniques resulted in his application of deep massage which resulted in some
discomfort to some of his
female patients. Such discomfort in such circumstances does not support an allegation
of improper
chiropractic practice.
It is undisputed that Petitioner is a highly intelligent individual. It is
also undisputed that Petitioner has a
propensity to give his patients the best care he can and his goal is to make
them better than they were
before they sought treatment with him. The evidence in this record shows that
Petitioner is not a typical
chiropractor. FFCL 58, 61. Petitioner's practice seems to go beyond the typical
examinations, analyses,
diagnoses, and adjustments practiced by most chiropractors. Petitioner is not
only a chiropractic
orthopedist, he also has a degree in biology, which emphasizes human nutrition,
and he is an acupuncturist,
as well as a certified receptor-tonus instructor. FFCL 32. Petitioner's patient
population seems to be
composed of people who are in extreme need of a practitioner who is willing
to use methods beyond that of
a typical chiropractor. FFCL 69. Patients A, C, and D indicated that they had
gone to other chiropractors
for treatment, but were not satisfied that the treatment improved or alleviated
their conditions. Patients B,
C, and D had a significant number of treatments with Petitioner, which seems
to indicate that the expertise
and level of care that these patients obtained from Petitioner was worth continuing
even though they filed
complaints against him. For example, patient D had approximately 42 visits with
Petitioner over three and
one half years, although Petitioner's alleged misconduct occurred during the
first and last visits, in which
he conducted breast examinations.
I disagree with the I.G.'s contention that Petitioner's experts' testimony
about particular chiropractic,
acupuncture, or myofascial therapy techniques was not relevant to the issue
of Petitioner's trustworthiness.
I.G. Posthearing Br. 42. The I.G. did not rebut Petitioner's experts' testimony.
The only evidence that the
I.G. put in regarding an expert's opinion was the affidavit of Dr. Hill. The
remainder of the I.G.'s case
consisted of exhibits which were admitted at the hearing. This evidence, especially
the testimony of
Petitioner's expert witnesses, shows that Petitioner's chiropractic techniques
incorporated not only the
traditional chiropractic methodology, but also included acupuncture and myofascial
therapy techniques.
Petitioner prided himself on being able to treat complicated conditions that
had not been successfully
treated by other chiropractors or doctors.
Patient B complained that Petitioner's behavior was a little strange, in that
every time he would come into
the treating room, he would put his arm around her from behind, squeeze her,
and ask her how she was
doing. I.G. Ex. 15 at 7. On another occasion, and allegedly without warning,
Petitioner felt around patient
D's breast area and kissed her on the neck. I.G. Ex. 4 at 41 - 42. Patient D
contended also that Petitioner
was always a friendly type of person and he would come into the room and "give
you a big squeeze . . . and
often say, oh, you smell good, or, hi beautiful, hi gorgeous . . .." Id.
at 43.
Patient C reported that Petitioner invited her to a soccer game, told her where
he would be sitting, and said
that he would be alone. I.G. Ex. 16 at 23. Another time he told her, "don't
be surprised if I call you up and
ask you to the movie." Id. at 24. Petitioner admitted that he had invited
patient C to sit with him and his
son at an indoor soccer game and that he had offered to work out with her, but
he denied that either
constituted a sexual advance or was intended to be a date. Tr. 162 - 170.
As to these allegations of unprofessional conduct, Petitioner testified that
"this is his normal demeanor, and
that he [Petitioner] comes from an affectionate family where hugging and kissing
is a matter of course."
Tr. 179. Petitioner contends that as a normal social gesture, he has received
"good marks for this type of
conduct before" and never thought that his behavior was offensive to anyone.
However, he claims that "he
realizes now that not everyone appreciates this mannerism, and he will discontinue
it with future patients,
as it may offend some, and it isn't worth a misunderstanding." P. Posthearing
Br. at 6. He claims that
several of his patients stated their support for this type of affection. See
P. Ex. I/12 at 2; id. at 8; I.G. Ex.
15 at 7; P. Ex. II/7 at 5; P. Ex. II/7 at 6.
Certainly, the records supports the conclusion that some of his patients found
his overt socialization
offensive, while others were supportive of his conduct. Considering the record
before me, I find that
Petitioner provided an adequate explanation for his behavior. I cannot conclude
that his conduct with
patient C concerning his invitations to a movie and a soccer game provide a
basis to impose his exclusion
from the Medicare and Medicaid programs. The record does not support that these
invitations ever led to
an improper social relationship with this patient. It is evident, that he should
have maintained a more
distant relationship with his patients to ensure proper mutual respect and contact,
but the record does not
support that he acted in this manner for sexual gratification or as a result
of any mental disorder. FFCL 76.
Petitioner now recognizes that his past effusive socialization and mannerisms
could be misconstrued and
interfere with his professional relationship with his patients and he has indicated
that he will be more
restrained in the future dealings with patients. Consequently, the record does
not support the need for any
remedial action based on this type of conduct engaged in by Petitioner.
V. Petitioner possesses chiropractic licenses in other States, which considered
the circumstances of his
license surrender in Kansas.
In the event that a subsequent appellate body may determine that 42 C.F.R.
1001.501 is binding on this
case and to give Petitioner every opportunity to establish his trustworthiness,
I gave Petitioner the
opportunity to present evidence on the status of his chiropractic licenses in
other states. The I.G. has
already modified the exclusion to three years, from an indefinite exclusion
until Petitioner could regain his
license in Kansas. This length of exclusion is based on the three-year floor
that exists in other section
1128(b) exclusions under the new regulations. See 42 C.F.R. 1001.301, 401, 601
- 701. The change was
motivated by Petitioner's then existing licenses in Texas, Oklahoma, and Colorado.
I.G. Posthearing Br. at
10 - 11, 18.
With regard to the issue of mitigation of the three-year exclusion, the I.G.
never argued that any of the
aggravating factors set forth in 42 C.F.R. 1001.501(b)(2) are applicable to
this case and, absent such
aggravating factors, Petitioner is given no opportunity to offer proof of mitigating
factors. 42 C.F.R.
1001.501(b)(3). The only issue that arguably remains is whether the factual
predicate for the exception
under 42 C.F.R. 1001.501(c)(2) of the new regulations is applicable to this
case based on any of the
recent State licensing actions involving Petitioner.
I have already concluded that 42 C.F.R. 1001.501 does not apply to this proceeding
since, the date of
Petitioner's notice of exclusion was prior to the effective date of the new
regulations on January 29, 1992.
This determination was predicated on the fact that I found that application
of 42 C.F.R. 1001.501(b)(3)
would deprive Petitioner of substantive rights. Under existing DAB precedent,
Petitioner would have the
opportunity to establish his trustworthiness relying any factors relevant to
that issue, whereas 42 C.F.R.
1001.501(b)(3) would limit him to proving the factors specifically enumerated.
See supra pp. 21 - 22. In
contrast, 42 C.F.R. 1001.501(c)(2) provides Petitioner with a substantive right
that did not exist prior to
the effective date of the new regulations. Also, section 1001.501(c)(2) applies
prospectively to the issue of
consideration of early reinstatement in the program and does not involve criteria
that the I.G. used in
determining the original length of Petitioner's exclusion. Thus, there is no
concern of unlawful retroactive
application depriving Petitioner of existing substantive rights. Even if section
1001.501(c)(2) is construed
as a procedural right rather than substantive, ALJs have regularly applied the
procedural portions of the
new regulations -- 42 C.F.R. 1005.1 - 1001.23 -- to cases pending prior to the
effective date of the new
regulations. See 58 Fed. Reg. 3350 - 3354. Accordingly, I hold that 42 C.F.R.
1001.501(c)(2) is
applicable to this case and is not governed by the appellate decision in Bassim.
18/
The I.G. argues that I have no authority to consider the exception set forth
in 42 C.F.R. 1001.501(c)(2).
I.G. Posthearing Br. at 10 - 11; I.G.'s Response to Petitioner's Additional
Posthearing Br. at 4 - 5. I
disagree. I am only making findings on whether, based on the record before me,
Petitioner has satisfied the
predicate contained in this exception to warrant consideration by the I.G. of
a request for early
reinstatement pursuant to 42 C.F.R. 1001.3001. Whether such reinstatement is
granted is governed by 42
C.F.R. 1001.3002 and I have no authority to intervene in that process. 42 C.F.R.
1001.3002(f).
Similarly, when I reduce an exclusion, as done here from three to two years,
absent an appeal, Petitioner is
in the same position of seeking reinstatement under 42 C.F.R. 1001.3001. Since
I have authority in the
latter instance to require consideration of early reinstatement, the same authority
applies to the exception
granted pursuant to 42 C.F.R. 1001.501(c)(2).
Dicta in the recent decision of Douglas J. Pousma, M.D., DAB CR276, at 9 (1993),
arguably suggests an
opposite result. That case is distinguishable. The ALJ had no evidence of the
existence of any State
license other than the license revocation which was the basis for the I.G.'s
derivative exclusion. Thus, there
were no factual circumstances under 42 C.F.R. 1001.501(c)(2) to consider. In
essence, the petitioner in
Pousma was seeking an advisory opinion from the ALJ on a speculated future State
licensing event. The
ALJ correctly declined to give such an advisory opinion.
If the circumstances warranting early consideration of reinstatement exist
in the record before the ALJ,
namely Petitioner can establish that he has fully and accurately disclosed the
circumstances surrounding his
license revocation or surrender to another licensing authority and that authority
has taken no significant
adverse action as to his currently held license or grants a new license, then
the exception would mandate
early consideration of reinstatement by the I.G. 19/ This regulatory provision
directs that such a
determination by a State licensing authority provides a basis for the conclusion
that (1) Petitioner is now
apparently trustworthy to be a program provider, (2) consideration should be
given to ending his exclusion,
and (3) the I.G. must consider his reinstatement into the program. It mandates
only that the I.G. give
consideration to reinstatement, not that Petitioner be reinstated. As I indicated
earlier, the same situation
arises when the ALJ reduces the Petitioner's period of exclusion and that time
period has lapsed. In short,
this regulatory provision defines for the purpose of 42 C.F.R. 1001.501 exclusions
what is a reasonable
period of exclusion and any period of exclusion beyond the licensing authority's
recent action would
arguably then be excessive or unreasonable. 20/ My authority to decide the reasonableness
of Petitioner's
exclusion is found in the Act and its implementing regulations. See Section
205(b) of the Act; 42 C.F.R.
1001.2007(a)(1)(ii) and 1005.20(b) of the regulations.
In this case, Petitioner has offered proof that he qualifies for the exception
contained 42 C.F.R.
1001.501(c)(2). Three states -- Texas, Oklahoma, and Colorado -- investigated
the circumstances
surrounding Petitioner's voluntary surrender of his license in Kansas and decided
to reinstate Petitioner's
license. A fourth state, Indiana, investigated his license surrender in Kansas
and will grant him a new
license once he successfully completes a qualifying test. Indiana specifically
found that the circumstances
surrounding his license surrender in Kansas did not create a bar to his obtaining
a license once he passes
the examination.
In deciding whether, in each of these State actions, the requirements of 42
C.F.R. 1001.501(c)(2) have
been met, a number of preliminary considerations must be addressed. First, Petitioner,
as the moving party
seeking application of this exception, has the burden of proof in showing that
the circumstances envisioned
in the exception have been met. Such a showing is similar to the burden of proof
required when a
Petitioner is arguing the applicability of one the mitigating factors in order
to justify the reduction of an
exclusion. James H. Holmes, M.D., DAB CR270 (1993); Jose Ramon Castro, M.D.,
DAB CR259 (1993);
42 C.F.R. 1005.15(c). Second, a determination must be made as to whether the
factual predicate for
applying 42 C.F.R. 1001.501(c)(2) is present in Petitioner's case. There is
no existing case precedent
interpreting this section. Consequently, I must rely on the plain meaning of
the language of the provision.
The exception turns on what information the excluded individual or entity provides
to the State licensing
authority. There must be a full and accurate disclosure of the circumstances
surrounding the prior license
surrender, revocation, or loss to the new licensing authority.
Thus, I must examine the record and determine what information Petitioner supplied
to each of the States
that considered the prior action of KSBHA in determining whether to take action
against Petitioner's
existing license or grant him a new license. I further conclude that where the
Petitioner has made a good
faith attempt to supply such States with all of the information in his possession
concerning the prior
licensing disciplinary action of KSBHA, such as the petition and the order accepting
the surrender of his
license, and where he responds to all reasonable requests from the new State
licensing authority for
information about his surrender, the requirements of this section have been
met.
I have considered the preamble to this regulatory exception. There, the commentators
couched the test not
on what information the Petitioner supplies to the State licensing authority,
but whether such authority is
"fully apprised of the circumstances surrounding the loss of the license."
57 Fed. Reg. 3305 - 3306. This
is a subtle but significant difference from the regulation itself. Even where
there is full and accurate
disclosure by Petitioner, the State licensing authority still may not be "fully
apprised," especially where
such State does not want to expend the time or funds to follow up on the information
supplied by Petitioner
or the original State chooses to not be responsive to requests for information
about its investigation. Again
applying the reasonable, fair, and plain meaning of the regulatory exception,
if Petitioner has supplied to
the new State licensing authorities sufficient information that, with reasonable
diligence and effort such
States can be fully apprised of the circumstances surrounding his license surrender
in Kansas, then he has
met the requirement of the exception. Depending on the nature of the circumstances
surrounding the loss
of license, each State licensing authority will decide how much additional information
it needs to
adequately protect its citizens from a potentially untrustworthy medical practitioner.
The I.G., by relying
on these derivative agencies to trigger early consideration of reinstatement,
has given latitude to them in
the scope of the investigation of a practitioner whose license was previously
lost, surrendered, or revoked.
Now, under the guidelines set forth above, I will examine each of the actions
taken by the states who have
reviewed Petitioner's license surrender in Kansas.
A. Petitioner is licensed to practice chiropractic in Texas after Texas reviewed
his license surrender
in Kansas.
Petitioner was first issued a license in Texas on August 18, 1989. I.G. Ex.
10 at 2. In letters dated January
19, 1991 and December 19, 1990, the Texas Board of Chiropractic Examiners (Texas
Board) wrote to
Petitioner indicating that they were enclosing a copy of an Answer, Petition,
and Final Order from
KSBHA. I.G. Ex. 9 at 14, 16. Petitioner was given an opportunity to respond,
in writing, to the alleged
complaint and offer any evidence that he believed the Texas Board should consider
in evaluating the
complaint. In a letter dated April 5, 1991, the Texas Board again wrote to Petitioner
seeking information
about the complaint filed against him in Kansas and the complaint was enclosed.
I.G. Ex. 9 at 13.
Petitioner responded to the letters on April 10, 1991 and requested an opportunity
to present his defense.
I.G. Ex. 9 at 12. By letter faxed on July 8, 1991, Petitioner wrote the Texas
Board and wanted more
information pertaining to the patient files they requested. By letter dated
July 31, 1991, the Texas Board
wrote to KSBHA requesting information concerning licensure in that State and
KSBHA responded in a
letter dated October 1, 1991.
By letter dated October 8, 1991, the Texas Board wrote Petitioner, stating
that its Enforcement Committee
"received and reviewed all information available on the complaint filed
against you. After extensive
investigation, the Enforcement Committee has determined that this does not constitute
a violation of the
Chiropractic Act of Texas. Therefore, this complaint is dismissed." I.G.
Ex. 9 at 4. By letter dated
February 3, 1992, which was in response to the I.G.'s letter concerning Petitioner,
the Texas Board stated
that it had received information from KSBHA, which showed that Petitioner had
voluntarily surrendered
his license during the pendency of a disciplinary proceeding. The Texas Board
made numerous attempts to
obtain additional information on Petitioner's case, and the information was
not provided; without the
additional information -- such as numbers of complaints, copies of complaints,
patient records -- the Texas
Board could not take disciplinary action. I.G. Ex. 9 at 2. In a note to the
file, counsel for the I.G. observed
that the letter Petitioner received, indicating that the Texas Board had made
an "extensive investigation" of
the KSBHA complaint, was a form letter. I.G. Ex. 10. The note also said: "Texas
only looked at Kansas
public records and talked with Dr. Bonebrake." Id.
Petitioner submitted a letter dated April 16, 1993 from the Texas Board which
states that Petitioner assisted
the Enforcement Committee of the Texas Board during an investigation of allegations
against his license in
Kansas. Petitioner "presented a volume of documents on our request, that
included but was not limited to
committee reports and transcripts from [KSBHA], patient files, advertising documents,
etc,[.] etc. After
this Committee's investigation the Texas Board of Chiropractic Examiners did
not discipline Dr.
Bonebrake[r]." P. Ex. III/7. The I.G. made no effort to rebut the information
contained in the April 16th
letter, choosing instead to point out that this latest letter from the Texas
Board conflicted with earlier
correspondence. I.G.'s Response to Petitioner's Additional Posthearing Br. at
2 - 3.
Review of the record demonstrates that Petitioner submitted extensive information,
both orally in writing,
to the Texas Board. The Texas Board made attempts to secure additional information
from KSBHA, with
questionable results. I am satisfied that Petitioner fully and accurately disclosed
to the Texas Board the
circumstances surrounding his license surrender in Kansas. Moreover, based on
the latest letter from the
Texas Board, which was not rebutted by the I.G., the Texas Board was fully apprised
of such
circumstances and took no significant adverse action against Petitioner's Texas
chiropractic license.
Consequently, I conclude the record supports a finding that the factual predicate
of 42 C.F.R.
1001.501(c)(2) has been met with regard to Petitioner's Texas license.
B. Although Petitioner is licensed to practice in Oklahoma, I am unable to
conclude what
information this State looked at regarding Petitioner's license surrender in
Kansas.
Petitioner has been licensed in Oklahoma since June 4, 1980. Tr. 179; I.G.
Exs. 11 - 12; P. Ex. I/7 at 97.
In a letter dated February 4, 1992, from the Oklahoma Board of Chiropractic
Examiners (Oklahoma Board)
to counsel for the I.G., Oklahoma did not take any action against Petitioner's
license to practice chiropractic
because there were no violations of Oklahoma's statute. In order to receive
his 1992 license in Oklahoma,
Petitioner was required to provide proof of continuing education and pay his
renewal fee. I.G. Ex. 12 at 1.
The letter stated that "[t]he Board did in fact investigate this issue
[the surrendered Kansas license] and was
satisfied that there were no violations [of Oklahoma statute]." I.G. Ex.
12.
Contrary to the Oklahoma's Board's letter, the I.G. contends that Oklahoma
did not investigate the
underlying complaints by Kansas patients. See I.G. Ex. 11. Petitioner stated
that he authorized the
Oklahoma Board to receive the same documents that the I.G. was authorized to
receive, thereby fulfilling
the requirements of taking "no significant action as to a currently held
license," and "fully and accurately
disclosing the circumstances surrounding this action to a licensing authority
for a different State . . . " P.
Motion for Relief at 4.
The February 4, 1992 letter from the Oklahoma Board is ambiguous as to extent
of information it received
from Petitioner or KSBHA concerning Petitioner's license surrender in Kansas.
The parties make opposite
contentions regarding this issue. I am unable to determine from the record the
extent of the disclosure
made by Petitioner to the Oklahoma Board concerning his license surrender in
Kansas and whether the
Oklahoma Board was fully apprised of the circumstances surrounding such surrender
when it decided to
take no action against Petitioner's license. The Petitioner has the burden of
proof to establish that he met
the factual predicate in 1001.501(c)(2) and he has failed to do so.
Consequently, the factual predicate of 42 C.F.R. 1001.501(c)(2) has not been
met with regard to
Petitioner's Oklahoma license.
C. Petitioner is licensed to practice in Colorado after this State reviewed
his license surrender in
Kansas.
Petitioner is also currently licensed to practice chiropractic in Colorado.
In a letter dated October 19, 1992,
the State Board of Chiropractic Examiners in Colorado (Colorado Board) wrote
to KSBHA indicating that,
based on the information provided, the Colorado Board voted to dismiss KSBHA's
complaint against
Petitioner. "The facts presented in this case do not appear to be a violation
of the Chiropractic Statutes that
would warrant disciplinary action." P. Ex. III/6 at 5. The file on this
matter was closed.
In a report dated August 18, 1992, the Complaints and Investigations unit of
the Department of Regulatory
Agencies in Colorado conducted an investigation based on the complaint filed
with KSBHA. Petitioner
provided information which included a written document which "supports
his examination of the breast
(pectoral area) for diagnosis and treatment of referred pain from myofascial
and non-myofascial trigger
points." Id. at 8. The report of investigation specifically requested from
KSBHA: a certified copy of the
Final Agency Order; a copy of the investigative report detailing the allegations,
findings, and other matters
in the case; and, confirmation of Petitioner's compliance with such sanctions.
The general counsel for
KSBHA responded to the investigator's request in a letter dated June 2, 1992.
The report of investigation
stated that Petitioner submitted a copy of a letter written by Dr. Paul Mullin,
D.C., Chairman of the
Department of Diagnosis, Palmer College of Chiropractic and in that letter Dr.
Mullin indicated that
Petitioner was taught "'breast exam' skills relative to trigger point therapy,
while a chiropractic student."
Dr. Mullin points out also "that such 'breast examination' skills differ
from the traditional 'breast exam'
females receive from practitioners such as OB/GYN's." Id. at 9.
The Colorado Board received extensive information, both orally in writing,
concerning the allegations
against Petitioner, including but not limited to, a copy of KSBHA's final order,
petition, and findings.
Here, Petitioner made extensive efforts to provide the Colorado Board with information
of the
circumstances surrounding his surrender of his Kansas license and it appears
from the record that the Board
was fully apprised of such circumstances. Therefore, I am satisfied that Petitioner
fully and accurately
disclosed to the Colorado Board the circumstances surrounding his license surrender
in Kansas and, based
on such information, including information received from KSBHA, the Board took
no significant adverse
action against Petitioner's license.
Consequently, I conclude the record supports a finding that the factual predicate
of 42 C.F.R.
1001.501(c)(2) has been met with regard to Petitioner's Colorado license.
D. Petitioner is not licensed to practice chiropractic in Indiana but this
State reviewed his license
surrender in Kansas and found no violation of Indiana's laws.
On March 12, 1992, the Indiana Board of Chiropractic Examiners (Indiana Board)
denied Petitioner's
license to practice chiropractic because (1) he did not pass an examination
in orthopedic testing,
neurological testing, and chiropractic technique with a score of 75; and (2)
because his license was
disciplined in Kansas for a violation which bears on his ability to practice
competently in Indiana. P. Ex.
III/3 at 11. On June 4, 1992, the Indiana Board issued Findings of Fact and
Order pursuant to Petitioner's
petition for review of the Indiana Board's denial of his application for licensure.
Petitioner's application for
license was denied because of his failure to pass an oral/practical examination.
The Indiana Board
concluded that its "prior determination that Petitioner's Kansas chiropractic
license was disciplined for a
violation which would have a direct bearing on Petitioner's ability to practice
competently in Indiana is
hereby OVERRULED." P. Exs. III/6 at 1 - 4; III/3 at 11.
Petitioner retook his Oklahoma chiropractic examination and scored a 97 percent.
He indicates that he will
be applying again for a chiropractic license in Indiana based on reciprocity
in Oklahoma. P. Ex. III/6 at 8.
Based on information provided to the Indiana Board by Petitioner concerning
his license surrender in
Kansas, the Board determined that such surrender would not be a basis to deny
him a license in Indiana but
chose not to grant him a chiropractic license due to his failure to pass the
required oral/practical
examination. Since Indiana decided that the complaint against Petitioner in
Kansas would not have a direct
bearing on his ability to practice in Indiana, I am satisfied from the evidence
of record that Petitioner has
fully and accurately disclosed to the Indiana Board the circumstances surrounding
his license surrender in
Kansas. However, since Petitioner was not granted a license the factual predicate
of 42 C.F.R.
1001.501(c)(2) is not met.
VI. Petitioner is trustworthy.
Through his expert witnesses, Petitioner has satisfactorily rebutted, in part,
the presumption of
untrustworthiness which arose from his surrender of his license in Kansas under
circumstances meeting the
statutory requirements of section 1128(b)(4)(B) of the Act. Specifically, the
record does not support a
finding that he performed breast examinations or myofasical and trigger point
treatments in a manner
inconsistent with accepted chiropractic practice for individuals having similar
training and experience as
Petitioner. See FFCL 50. The record also does not support the conclusion that
Petitioner employed such
examinations for his own sexual gratification rather than for appropriate and
legitimate chiropractic
purposes in response to the medical needs of his patients. FFCL 76. Also, I
conclude from the record that
while at times Petitioner may have been overly effusive in his socialization
with his patients, such conduct
occurred in the past, there is no evidence of its continuation, and Petitioner
recognizes that his conduct can
be misconstrued by some of his patients and has indicated that he will alter
such behavior in the future. P.
Posthearing Br. at 6. Thus, as to these matters, the record does not support
the need for an exclusion of
Petitioner as a program provider. The I.G. argues that Petitioner's premature
withdrawal from the Kansas
Chiropractic Association's impaired-physicians program is an indication of his
lack of trustworthiness to be
a program provider. I.G. Posthearing Br. at 41 - 42. I do not draw such an inference.
Petitioner left the
program before its completion, but only after he was told that he had no psychological
impairment.
Moreover, in adjusting his behavior with female patients, he had to admit that
he previously engaged in
sexual improprieties with such patients. Considering that Petitioner never admitted
to the allegations
contained in KSBHA's petition, his withdrawal from the impaired-physicians program
under the above
circumstances does not reflect his untrustworthiness to be a program provider.
See FFCL 13 - 14.
Petitioner did not successfully rebut other elements of KSBHA's petition, creating
the presumption of
untrustworthiness. KSBHA was concerned about his performing breast examinations
and therapies in the
pelvic and anal areas on his female patients without full disclosure beforehand
of the purpose of such
therapy and without inquiring whether such patients wanted a third person present
in the examination
room. FFCL 57. Even Petitioner's own chiropractic experts confirmed that appropriate
practice and
procedure would warrant such disclosures to female patients prior to performing
breast examinations or
therapies involving the pelvic or anal areas. FFCL 45, 74. Contrary to accepted
standards of chiropractic
practice and being aware of such admonition of the Kansas licensing board, Petitioner
continued to
perform such examinations or therapies without providing to each of his female
patients the required
disclosures. FFCL 65 - 68. In addition, Petitioner failed to rebut the presumption
of untrustworthiness
arising from KSBHA's allegation that he altered a patient's treating record.
FFCL 5. Petitioner readily
admitted supplementing the record of patient D five to six months after the
patient's treatment and, more
importantly, after an accusation of sexual misconduct involving this patient.
FFCL 21. Such alteration
was not in accord with standard professional chiropractic conduct in that it
showed that Petitioner failed to
complete accurate treatment records for his patients. FFCL 18. Moreover, such
alteration in the context of
an accusation of sexual misconduct would suggest that Petitioner was supplementing
the record to provide
a medical basis for his conduct with patient D which was, in part, the subject
of the accusation. FFCL 22.
From each of these practices of Petitioner, I conclude that Petitioner poses
a risk or threat to program
beneficiaries and recipients.
The I.G. has imposed a three-year exclusion. Petitioner argues that none is
warranted. From my review of
the record, I conclude that the three-year exclusion is excessive and a two-year
exclusion will satisfactorily
comport with the remedial requirements of the Act. Petitioner has no mental
impairment, nor did he
engage in the challenged conduct for purposes of sexual gratification. Thus
this case differs from my
decisions in Jerry D. Harrison, D.D.S., DAB CR203 (1992), aff'd, DAB 1365 (1992)
and Thieu Lenh
Nghiem, M.D., DAB CR248 (1992). Nor does this appear to be the type of case
where Petitioner took
advantage of the trust inherent in the physician/patient relationship in order
to gain sexual access to his
patient. See Bruce Lindberg, D.C., DAB CR233 (1992).
The evidence in this case shows that Petitioner poses a less serious threat
to the safety of program
beneficiaries and recipients than the excluded providers in Harrison and Nghiem,
justifying an exclusion
that is substantially shorter than the five-year or nine-year minimum period,
respectively, that I determined
was reasonable in those cases. This case is similar to my decision in Charles
J. Barranco, M.D., DAB
CR187 (1992). Dr. Barranco had surrendered his license in New York in response
to a disciplinary
proceeding and the I.G. imposed an exclusion until he regained his license in
New York. I reduced the
exclusion to three years, or, in the alternative, until a State licensing agency
reviewed the factual and legal
issues involved in the New York proceeding and neither took significant adverse
action against an existing
license nor refused to grant a new one. Id. at 38 - 39. I reduced the exclusion
based on Dr. Barranco's
successful rebuttal of some of the elements of untrustworthiness arising from
his license surrender in New
York. Id. at 31 - 36. As here, I considered the passage of time since the occurrence
the practices
challenged by the licensing board and that Dr. Barranco made efforts to correct
such conduct in the future.
Id. at 35. A factor in Barranco not present in this case is that the I.G. presented
current evidence that Dr.
Barranco's medical office was billing the program after he was excluded and
he misstated his qualifications
on an application for staff privileges at a local hospital. Id. This record
contains no such recent misdeeds
of Petitioner which might warrant a three-year exclusion.
The record reflects that Dr. Bonebrake is a highly skilled chiropractor who
treats patients who have
complicated and lingering chiropractic disorders. He thrives on learning and
performing all the latest
techniques related not only to the chiropractic field but also as it relates
to acupuncture and myofascial
treatment. Petitioner is very aggressive in his attempt to provide patients
with the benefit of his advanced
training and experience by his utilization of such techniques and procedures
in their treatment. At times,
he forgets that his chiropractic practice is not typical and that some of his
female patients would not expect
such examinations or treatment procedures from a chiropractor. Clearly, such
factors coupled with (1)
Petitioner's failure to fully apprise his female patients of the nature and
extent of his treatment and (2)
effusive socialization with some of his patients has led to the accusations
of sexual misconduct.
KSBHA was of the belief that his performance of breast examinations and use
of myofascial or trigger
point techniques in treating pelvic and anal areas were contrary to professional
chiropractic standards. This
clearly was the major element of the licensing board's case against Petitioner.
The I.G. relied on this in
supporting its three-year exclusion. Petitioner never challenged the case when
the disciplinary proceeding
was pending. He apparently had his reasons. He did offer expert evidence in
this proceeding to contest
KSBHA's allegations and the I.G. has failed to rebut his experts. Moreover,
two states -- Texas and
Colorado -- have reviewed the allegations surrounding his surrender of his license
in Kansas and have not
taken any adverse action against his chiropractic licenses. A third state, Oklahoma,
has indicated that it
took no adverse action against Petitioner's license. However, Petitioner was
unable to meet his burden of
proof demonstrating that he fully and accurately disclosed to the Oklahoma Board
the circumstances
surrounding the surrender of his license in Kansas. A fourth state, Indiana,
has refused to grant him a new
license until he successfully completes an examination, but specifically concluded
that his surrender of his
license in Kansas would not be a bar to his obtaining a new license. Such circumstances
render a three-
year exclusion in this case to be excessive. It is these circumstances that
warrant the reduction of his
exclusion to two years.
CONCLUSION
I conclude that the I.G. had authority to impose and direct an exclusion against
Petitioner pursuant to
section 1128(b)(4)(B) of the Act. In addition, I conclude that ta three-year
exclusion would be excessive
and that the remedial purpose of the Act will be satisfied by a two-year exclusion,
or, alternatively, until
another State licensing authority, after Petitioner has fully and accurately
disclosed to it the circumstances
surrounding his license surrender i
Kansas, grants Petitioner a new license or takes no significant adverse action as to a currently held license.
_________________________
Edward D. Steinman
Administrative Law Judge
1. "State health care program" is defined by section 1128(h) of the
Social Security Act to cover three
types of federally financed health care programs, including Medicaid. Unless
the context indicates
otherwise, I use the term "Medicaid" hereafter to represent all State
health care programs from which
Petitioner was excluded.
2. Petitioner submitted his exhibits in three separate volumes. The volume
number of Petitioner's
exhibits will be referred to by the use of Roman numerals (I, II, or III). Accordingly,
I received into
evidence P. Exs. I/1 - 12; II/1 - 10; III/1 - 7. When no page number is used
in reference to an exhibit, for
example, P. Ex. I/1, the reference is to the entire exhibit. I admitted into
evidence P. Exs. I, II, and III. I
admitted also into evidence I.G. Exs. 1 - 20.
3. Citations to the record in this case are as follows:
I.G.'s Exhibits I.G. Ex. (number at page)
I.G.'s Motion and Brief I.G. Brief (page)
for Summary Disposition
I.G.'s Reply I.G. Reply (page)
I.G.'s Posthearing brief I.G. Posthearing Br. (page)
and Motion for Recon-
sideration
I.G.'s Posthearing Reply I.G. Posthearing Reply
(page)
Petitioner's Exhibits P. Ex. (volume/number at
page)
Petitioner's Motion and P. Brief (page)
Brief for Summary
Disposition
Petitioner's Reply Brief P. Reply (page)
Petitioner's Posthearing P. Posthearing Reply (page)
Reply Brief
Transcript Tr. (page)
Findings of Fact and FFCL
Conclusions of Law
4. At the in-person hearing held on November 5, 1992, Petitioner and three
witnesses for Petitioner
testified -- Michael Joseph Fiscella, D.C. (Tr. 22 - 48); Lawrence E. Jaggers,
D.C. (Tr. 49 - 104); John C.
Lowe, D.C. (Tr. 107 - 133); and Petitioner (Tr. 134 - 187). The I.G. offered
no evidence of chiropractic
practice other than the affidavit of Dr. John H. Hill, II, a generalist not
having the extensive background
and training possessed by Petitioner. See I.G. Ex. 17.
5. Dr. Jaggers' curriculum vitae is set out in P. Ex. III/6.
6. At the request of the I.G., John H. Hill, II, D.C., submitted an affidavit
after reviewing the statement by
patient D concerning Petitioner's treatment of her. I.G. Ex. 17.
7. As to other points contained in Petitioner's testimony, I have no evidence
of record to dispute the
veracity of his statements. I have considered Petitioner's conduct with regard
to failing to disclose
pertinent information to his patients and his contradictory testimony on this
issue. The two-year exclusion
imposed shall provide sufficient time for him to no longer pose a danger or
threat to program recipients or
beneficiaries.
8. Petitioner authorized KSBHA and the Kansas Chiropractic Association to release
to the I.G. any and all
documents, records, or other information reflecting upon his professional competence
and performance and
the bases for the suspension of his Kansas license, including but not limited
to such information pertaining
to case no. 90-DC-0198. I.G. Posthearing Br. at 16.
9. These regulations can be found at 42 C.F.R. 1001 - 1007; 57 Fed. Reg. 3298 - 3358.
10. Moreover, 42 C.F.R. 1001.501 limits my consideration of aggravating factors
to those specifically
mentioned therein, and so could, under the appropriate scenario, impair the
I.G.'s ability to demonstrate
that a petitioner is deserving of a lengthy exclusion.
11. Petitioner testified that at least two complaints lodged against him had
been closed by KSBHA and
that he had never had an opportunity to respond to the complaint by patient
B. Tr. 137 -138. He had been
advised that various complaints which were filed against him and that were previously
closed could be
reopened if additional complaints were received. Tr. 173 - 174.
12. While the curriculum vitae of Dr. Hill is not part of this record, I do
note that he indicated that he
was not familiar with Petitioner's technique of applying treatment by placing
himself on the examination
table behind the patient. I.G. Ex. 17 at 2. Testimony from Petitioner's experts
on this procedure
demonstrates that it has a legitimate medical purpose. Tr. 102 - 104.
13. He admits to performing approximately 3,000 breast examinations on male
and female patients over
a ten-year period. FFCL 59. Based on the record before me, he has had less than
10 complaints. Several
of those complaints were previously closed by KSBHA based on Petitioner's agreement
to provide a third
party in the examination room. FFCL 62 - 64.
14. The evidence in the record indicates that patient D had filed a lawsuit
against Petitioner because she
felt that he had taken advantage of her physically and because of how he handled
the financial matters
related to her account. She contended that Petitioner "intentionally made
sexual advances" during office
visits. I.G. Ex. 16 at 11. Petitioner stated that he filed a lawsuit against
the patient because she had failed
to pay her bill and that the patient in turn filed a counter lawsuit against
him alleging the sexual advance.
Tr. 170.
15. In response to an inquiry from his patient who was undergoing a breast examination,
Petitioner
merely said "he's the doctor, he knows what he's doing." I.G. Ex.
14 at 4. No third party was present when
the examination was conducted. Id. at 4 - 5. Nor was there a sign informing
patients that they could have
a third party present. Id. at 5.
16. Patient B indicated that Petitioner performed a breast examination on the
initial visit while she was
wearing a "green cover-up" after "explaining some things"
and before she "could say anything, the top [of
the gown] was down," and he did the breast examination. I.G. Ex. 15 at
5. Petitioner did not explain that
she had the option to have a third person present, but the patient admitted
that there was a sign explaining
the availability of this option. Id. at 21 - 22.
17. This method is also known as the "Nimmo Technique," after its
developer, Dr. Raymond L. Nimmo.
Certification as an instructor of the technique is granted after attendance
at four classes by a certified
instructor, work as a teaching assistant during three seminars, and favorable
recommendations by three
different instructors. See P. Ex. I/7 at 2.
18. I am cognizant of an appellate panel's recent decision in Bhatti at pages
11 - 12, where concern was
raised about the applicability of this exception to a case pending prior to
the effective date of the new
regulations. As that panel did, I have incorporated the exception as part of
my modification of Petitioner's
exclusion from three to two years.
19. The language of 42 C.F.R. 1001.501(c)(2), assuming the factual predicate
is met, is clear: "the OIG
will consider a request for early reinstatement" (emphasis added), and
is mandatory. If the requirement
was to be permissive, then the drafter of this provision would have used the
word "may" or a similar word.
Even though early reconsideration is mandatory where the factual predicate is
established, the program is
protected, since in evaluating a Petitioner's reinstatement application, the
I.G. is given full opportunity to
determine his trustworthiness after an extensive review of his past and current
activities. See 42 C.F.R.
1001.3002(b).
20. It is clear from the preamble to 42 C.F.R. 1001.501 that the I.G. considers
its authority to exclude
pursuant to this section to be based on actions of "derivative agencies,"
agencies other than the Department
of Health and Human Services. 57 Fed. Reg. 3304. Also, it is clear that by relying
on subsequent actions
of these "derivative agencies" in granting or not taking significant
adverse action as to a current license, the
I.G. treats the State agency's action as a surrogate determination that the
Petitioner no longer poses a threat
to the program. Id. at 3304 - 3305.