Ingolf K. Bartels, D.C., CR No. 339 (1994)

$05:Exclusion Case

Department of Health and Human Services

DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

In the Case of: Ingolf K. Bartels, D.C., Petitioner,
- v. -
The Inspector General.

DATE: October 28, 1994

Docket No. C-94-335
Decision No. CR339

DECISION

By letter dated April 15, 1994, Ingolf K. Bartels, D.C., Petitioner
herein, was notified by the Inspector General (I.G.) of the U.S.
Department of Health & Human Services (HHS), that it had been
decided to exclude Petitioner for a period of five years from
participation in the Medicare, Medicaid, Maternal and Child Health
Services Block Grant and Block Grants to States for Social Services
programs. 1/ The I.G.'s rationale was that exclusion, for at least
five years, is mandated by sections 1128(a)(2) and 1128(c)(3)(B) of
the Social Security Act (Act) because Petitioner had been convicted
of a criminal offense related to the neglect or abuse of patients
in connection with the delivery of a health care item or service.

Petitioner filed a timely request for review of the I.G.'s action,
and the case was assigned to me for hearing and decision. During
a June 1, 1994 prehearing conference, the parties agreed that, to
the extent that there were no genuine issues of material fact,
there was no need for an in-person hearing. Thus, I set up a
schedule for the parties to file briefs supported by documentary
evidence.

I have considered the parties' written submissions, exhibits, and
the applicable statutes and regulations. I have determined that
there are no facts of decisional significance genuinely in dispute,
and that the only matters to be decided are the legal implications
of the undisputed facts.

I affirm the I.G.'s determination to exclude Petitioner from
participation in the Medicare and Medicaid programs for a period of
five years.


APPLICABLE LAW

Sections 1128(a)(2) and 1128(c)(3)(B) of the Act make it mandatory
for any individual who has been convicted of a criminal offense
related to the neglect or abuse of patients in connection with the
delivery of a health care item or service to be excluded from
participation in the Medicare and Medicaid programs for a period of
at least five years.


FINDINGS OF FACT AND CONCLUSIONS OF LAW 2/

1. During the period relevant to this case, Petitioner was a
chiropractor practicing in Wisconsin. I.G. Ex. 1.

2. A female patient of Petitioner's reported to the police that,
in May and June of 1990, Petitioner, who was treating her for a
back and neck injury, had molested her. I.G. Ex. 1.


3. On March 12, 1991, the State of Wisconsin filed in Sheboygan
Circuit Court (court) a criminal complaint (Complaint) charging
Petitioner with two counts of sexual contact with a person without
the consent of that person (sexual assault), in violation of
section 940.225 (3M) of the Wisconsin Statutes, arising out of the
facts set forth supra. FFCL 1-2.

4. Specifically, the Complaint alleged that Petitioner fondled the
female patient sexually without her consent when she came to his
office for regular, scheduled appointments for chiropractic
treatment. I.G. Ex. 1.

5. On December 5, 1991, a jury convicted Petitioner of two counts
of sexual assault in violation of section 940.225 (3M) of the
Wisconsin Statutes. I.G. Ex. 2; FFCL 3-4.

6. The court sentenced Petitioner to two concurrent prison terms
of six months each and two years probation. Petitioner was also
ordered to undergo psychosexual evaluation and to pay court costs,
witness fees, and victim/witness surcharges. I.G. Ex. 2.

7. It is clear that the two counts of sexual assault that
Petitioner was found guilty of committing were identical to the two
counts set forth in the Complaint which the State filed against
him. FFCL 1-5.

8. The Wisconsin Chiropractic Examining Board (CEB) determined
that Petitioner's criminal conduct warranted disciplinary action
against his chiropractic license. I.G. Ex. 5.

9. The CEB concluded that Petitioner's conviction "substantially
relate[d] to the practice of chiropractic" medicine and showed him
to have been unprofessional in such regard. The Board suspended
Petitioner's license for one year and ruled that, to be reinstated,
Petitioner had to undergo a psychosexual examination and pass
courses in boundary training and ethics. Furthermore, the Board
ruled that it had the discretion to impose conditions relating to,
among other things, monitoring and supervision. I.G. Ex. 5.

10. Petitioner stipulated to the findings of fact, conclusions of
law, and conditions of the CEB's Final Decision and Order. I.G.
Ex. 4; see I.G. Ex. 5.

11. In determining whether a particular conviction meets the
criteria of section 1128(a)(2) of the Act, an administrative law
judge is not bound by the title that a State or other governmental
body may have put on the law which was violated.

12. It is not erroneous to consider the Complaint pursuant to
which Petitioner was charged in determining whether Petitioner's
conviction meets the criteria of section 1128(a)(2) of the Act.

13. The individual whom Petitioner was convicted of sexually
assaulting was a "patient" within the meaning of section 1128(a)(2)
of the Act. FFCL 2, 4, 7.

14. Petitioner's conviction related to patient abuse, within the
meaning of section 1128(a)(2) of the Act. FFCL 1-7.

15. The fact that the sexual assault for which Petitioner was
convicted took place at Petitioner's office during the victim's
scheduled appointments for chiropractic treatment with Petitioner
establishes that Petitioner's criminal conviction was in connection
with the delivery of a health care item or service. I.G. Ex. 1.

16. The Secretary delegated to the I.G. the authority to determine
and impose exclusions pursuant to section 1128 of the Act. 48 Fed.
Reg. 21662 (1983).

17. The I.G. properly excluded Petitioner from participation in
the Medicare and Medicaid programs for five years, as required by
the minimum mandatory exclusion provisions of sections 1128(a)(2)
and 1128(c)(3)(B) of the Act. FFCL 1-16.


PETITIONER'S ARGUMENT

Petitioner acknowledges that he was convicted in a Wisconsin court
of two counts of sexual assault in violation of section 940.225
(3M) of the Wisconsin Statutes. He argues, though, that, inasmuch
as Wisconsin has statutes expressly addressing sexual exploitation
by health care providers, his conviction under a general statute
(section 940.225 (3M)) dealing only with sexual assault suggests
that his criminal conduct did not constitute an offense involving
patient abuse in connection with the delivery of a health care item
or service.

Petitioner contends also that, when determining the exact nature of
his misconduct, it is erroneous to consider the Complaint pursuant
to which he was charged, inasmuch as it has not been shown that the
prosecution proved, and the jury accepted, every allegation in the
Complaint.

Lastly, Petitioner maintains that, if, after all, he must be
excluded, it should be under the permissive exclusion provisions of
section 1128(b) of the Act, rather than the mandatory exclusion
provisions of section 1128(a).


DISCUSSION

The first requirement for excluding an individual or entity
pursuant to section 1128(a)(2) of the Act is that such individual
or entity must have been convicted of a criminal offense under
federal or State law. In the case at hand, Petitioner concedes
that he was convicted of two counts of sexual assault in violation
of Wisconsin law. P. Br. at 1; see I.G. Ex. 2.

The second statutory requirement for invoking section 1128(a)(2) is
that the criminal offense must relate to the neglect or abuse of
patients, in connection with the delivery of a health care item or
service. I find that this requirement also has been satisfied.

I am not persuaded by Petitioner's argument that he was convicted
only under a general statute (section 940.225 (3M) of the Wisconsin
Statutes) dealing with sexual assault, and that this suggests that
his criminal conduct did not constitute an offense involving
patient abuse in connection with the delivery of a health care item
or service since Wisconsin has statutes expressly addressing sexual
exploitation by health care providers. Petitioner's Request for
Hearing, dated April 21, 1994; P. Br. at 1-2. It is well
established that, when determining whether a particular conviction
meets the criteria of section 1128(a)(2) of the Act, an
administrative law judge is not bound by the title that a State or
other governmental body may have put on the law which was violated.
FFCL 11. An appellate panel of the Departmental Appeals Board has
held that the question before an administrative law judge "is
whether the criminal offense which formed the basis for the
conviction related to neglect or abuse of patients, not whether the
court convicted Petitioner of an offense called 'patient abuse' or
'patient neglect.'" Bruce Lindberg, D.C., DAB 1280, at 4 (1991).
The appellate panel stated further that "even if there is nothing
on the face of the counts of which Petitioner was convicted or in
related court documents which establishes that section 1128(a)(2)
applies, other evidence is certainly admissible to establish this."
Id. Accordingly, in assessing whether section 1128(a)(2) is
applicable in this case, I am permitted to consider extrinsic
evidence concerning the circumstances of Petitioner's conviction.
Norman C. Barber, D.D.S., DAB CR123, at 10-11 (1991). My
adjudication of this case includes an examination of "all relevant
facts to determine if there is a relationship" between Petitioner's
conviction and patient neglect or abuse in connection with the
delivery of a health care item or service. Id. at 11. Thus, the
fact that the State statute Petitioner violated did not mention
patient abuse or health care workers is irrelevant. Id. at 10-11;
Lindberg, at 4.

I also cannot agree with Petitioner's contention that, when
determining the exact nature of his misconduct, it is erroneous to
consider the Complaint pursuant to which he was charged, inasmuch
as it has not been shown that the prosecution proved, and the jury
accepted, every allegation in such document. Comparing the
Complaint (I.G. Ex. 1) with another court document, the judgment of
conviction (I.G. Ex. 2), one sees that the docket number(s) of the
case(s) being referred to are identical and that the statute(s)
violated are the same, as are the dates of the offenses. This data
indicates that the two counts of sexual assault that Petitioner was
found guilty of committing were identical to the two counts set
forth in the Complaint which the State filed against him and that
it is, therefore, not erroneous to consider the substance of the
Complaint. FFCL 7, 12.

It is apparent from the Complaint that the individual victimized by
Petitioner was one of his patients. I.G. Ex. 1. In the Complaint,
which describes the incidents of Petitioner's alleged sexual
misconduct, the female victim is reported as being a patient of
Petitioner who was molested in the course of her receipt of
chiropractic treatment from Petitioner for a back and neck injury.
Id. FFCL 2, 4. Petitioner, moreover, has never denied that the
female victim was one of his patients. In a letter dated February
24, 1994, which Petitioner enclosed with his Request for Hearing,
Petitioner admitted that "[t]he complaining witness, . . . , was a
patient" of his and that the "nature of the crime, generally, was
an illegal touching by" Petitioner of the aforementioned witness.
3/ Thus, the individual whom Petitioner was convicted of sexually
assaulting was a "patient" within the meaning of section 1128(a)(2)
of the Act. FFCL 13. Accordingly, Petitioner's conviction related
to patient abuse, within the meaning of section 1128(a)(2) of the
Act. FFCL 14.

I conclude further that the fact that the sexual assault for which
Petitioner was convicted took place at Petitioner's office during
the victim's scheduled appointments for chiropractic treatment with
Petitioner establishes that Petitioner's criminal conviction was in
connection with the delivery of a health care item or service.
I.G. Ex. 1; FFCL 15.

Moreover, the CEB concluded that Petitioner's conviction
"substantially relate[d] to the practice of chiropractic" medicine
and showed him to have been unprofessional in such regard. I.G.
Ex. 5 at 2; FFCL 9. The CEB suspended Petitioner's license for one
year and ruled that, to be reinstated, Petitioner had to undergo a
psychosexual examination and pass courses in boundary training and
ethics. Id. at 2-3. Furthermore, the CEB ruled that it had the
discretion to impose conditions relating to, among other things,
monitoring and supervision. Id. at 3; FFCL 9. Petitioner
stipulated to the findings of fact, conclusions of law, and
conditions of the CEB's Final Decision and Order. I.G. Ex. 4; see
I.G. Ex. 5; FFCL 10.

Proceeding to Petitioner's final point -- that, if he must be
excluded, it should be under the pcermissive exclusion provisions
of section 1128(b) of the Act, rather than the mandatory exclusion
provisions of section 1128(a) -- I note, first, that Petitioner has
offered no reason why this should be so. Second, this is not a
matter in which the I.G. has unfettered discretion. The I.G. is
required to exclude an individual whenever the I.G. has conclusive
information that the individual has been convicted of a criminal
offense meeting the factual predicate for mandatory exclusion under
section 1128(a)(2) of the Act. 42 CFR 1001.101(b); Ronald E.
Jones, DAB CR257 (1993).


CONCLUSION

Sections 1128(a)(2) and 1128(c)(3)(B) of the Act mandate that
Petitioner be excluded from the Medicare and Medicaid programs for
a period of at least five years because of his criminal conviction
for an offense relating to the neglect or abuse of patients, in
connection with the delivery of a health care item or service.
FFCL 17. Neither the I.G. nor an administrative law judge is
authorized to reduce the five-year minimum mandatory exclusion.
Jack W. Greene, DAB CR19, at 12 - 14, aff'd, DAB 1078 (1989), aff'd
sub nom. Greene v. Sullivan, 731 F.Supp. 835 (E.D. Tenn. 1990).

The five-year exclusion is, therefore, sustained.



Joseph K. Riotto
Administrative Law Judge

1. In this decision, I refer to all programs from which
Petitioner has been excluded, other than Medicare, as "Medicaid."


2. The parties' briefs and my findings of fact and conclusions
of law will be cited as follows:

I.G.'s brief I.G. Br. at (page)

Petitioner's brief P. Br. at (page)

I.G.'s reply brief I.G. R. Br. at (page)

My Findings of Fact FFCL
and Conclusions of Law

The I.G. submitted three exhibits with her initial brief, and two
supplemental exhibits with her reply brief. I admit I.G. exhibits
1-5 into evidence. I cite the I.G.'s exhibits as "I.G. Ex.
(number) at (page). Petitioner submitted no exhibits.

3. Although the victim's name was mentioned, it is omitted here
out of respect for her privacy.