$05:Exclusion Case
Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
In the Case of:
William B. Barham, M.D.,
Petitioner,
- v. -
The Inspector General.
DATE: August 23, 1996
Docket No. C-96-025
Decision No. CR432
DECISION
By letter dated October 27, 1995 (Notice), the Inspector General (I.G.) notified
Petitioner that he was being
excluded for five years from participation in the Medicare, Medicaid, Maternal
and Child Health Services
Block Grant, and Block Grants to States for Social Services programs. The I.G.
alleged that Petitioner was
convicted, in the United States Navy, by General Court Martial, of a criminal
offense related to neglect or
abuse of patients in connection with the delivery of a health care item or service,
within the meaning of
section 1128(a)(2) of the Social Security Act (Act). The Notice informed Petitioner
that section
1128(c)(3)(B) of the Act requires that individuals convicted of such offenses
be excluded for at least five
years.
On November 13, 1995, Petitioner requested a hearing before an administrative
law judge of the
Departmental Appeals Board (DAB) to contest his exclusion. In his hearing request,
Petitioner argued that
he should not be excluded for three reasons: 1) a court martial is not a "conviction"
within the meaning of
section 1128(i) of the Act; 2) even if a court martial were a conviction, Petitioner's
conviction was not
related to neglect or abuse of patients, within the meaning of section 1128(a)(2)
of the Act; and 3)
Petitioner does not pose a threat to patient health or safety.
During the January 24, 1996 telephone prehearing conference, the parties agreed
that there were no
material facts in dispute. Accordingly, Petitioner waived his right to an in-person
hearing and I set a
schedule for the parties to file briefs supported by documentary evidence. The
I.G. filed a Brief (I.G. Br.)
and four exhibits (I.G. Exs. 1-4). Petitioner filed a Brief (P. Br.) and three
exhibits (P. Exs. 1-3). Neither
party objected to the admission of the offered exhibits. I admit into evidence
I.G. Exs. 1-4 and P. Exs. 1-3.
I find no reason to disturb the I.G.'s determination to exclude Petitioner
from participation in the Medicare
and Medicaid programs for a period of five years.
APPLICABLE LAW
Section 1128(a)(2) of the Act provides that any individual or entity that has
been convicted, under federal
or State law, of a criminal offense relating to neglect or abuse of patients
in connection with the delivery of
a health care item or service, must be excluded from participation in any program
under title XVIII,
including any State health care program as defined in section 1128(h). Section
1128(c)(3)(B) of the Act
makes mandatory an exclusion of at least five years for individuals convicted
of such crimes.
Section 1128(i) of the Act provides that an individual will be deemed convicted
under any of the following
circumstances:
(1) when a judgment of conviction has been entered against the individual
or entity by a Federal,
State, or local court, regardless of whether there is an appeal pending or whether
the judgment of
conviction or other record relating to the criminal conduct has been expunged;
(2) when there has been a finding of guilt against the individual or entity
by a Federal, State, or
local court;
(3) when a plea of guilty or nolo contendere by the individual or entity has
been accepted by a
Federal, State, or local court; or
(4) when the individual or entity has entered into participation in a first
offender, deferred
adjudication, or other arrangement or program where judgment of conviction has
been withheld.
PETITIONER'S ARGUMENT
Petitioner contends that his conviction in the U.S. Navy, by General Court
Martial, does not meet the
requirements of section 1128(i) of the Act because courts martial are not part
of the federal judiciary, but
are legislative courts with jurisdiction independent of the judicial power created
and defined by Article III
of the Constitution. He maintains that mandatory exclusion is limited to those
persons who have been
convicted by an Article III federal court, so that each person so excluded is
afforded those rights and
protections offered by the federal judiciary system. He asserts also that he
could not even have been
charged with "indecent assault" in the federal system, since no similar
charge exists under federal or
applicable State law.
The Petitioner contends also that the offense of which he was convicted did
not relate to the abuse or
neglect of patients. He asserts that the incidents underlying the offense of
which he was convicted were
not abuse but were consensual acts between adults, and that the alleged victims
made no claim of injury or
abuse. Petitioner contends further that he was not convicted of an offense related
to the neglect or abuse of
patients, since he was charged and convicted under Article 134 of the Uniform
Code of Miliary Justice
which applies to sexual acts generally.
Finally, Petitioner contends that he does not present a threat to the health
or safety of patients. He points
out that he has undergone intensive psychotherapy and claims that he has resolved
those issues which
triggered the violations. In this regard he asserts that it is the opinion of
his psychotherapist that he has
been fully rehabilitated and no longer presents a threat to his patients. Petitioner
maintains that this
conclusion is supported by the decision of the Virginia Board of Medicine not
to suspend or revoke his
medical license, and by the testimony of his current mentor, who has observed
Petitioner for over one year.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. During the period relevant herein, Petitioner was a physician and lieutenant
commander in the United
States Navy Medical Corps.
2. Petitioner was charged with five counts of having committed indecent assaults
upon patients in his care.
I.G. Ex. 1 at 229-230.
3. Following a court martial, the Petitioner was found guilty on June 30, 1993,
of five counts of indecent
assault under Article 134 of the Uniform Code of Military Justice, 10 U.S.C.
section 934. I.G. Ex. 1 at 13-
14, 483.
4. As a result of his conviction, Petitioner was removed from the Navy, fined,
and imprisoned. I.G. Ex. 1
at 2, 501.
5. Conviction by court martial is a conviction by a federal court within the
meaning of section 1128(i) of
the Act.
6. Petitioner was convicted of criminal offenses relating to abuse of patients. Findings 1-3.
7. The offenses for which Petitioner was convicted occurred in connection with
the delivery of a health
care item or service. Findings 2, 3.
8. Petitioner's exclusion is mandatory pursuant to section 1128(a)(2) of the Act. Findings 5-7.
9. It is irrelevant that the offenses of which Petitioner was convicted do
not have a civilian analogue,
because the offenses clearly involve the abuse of patients.
10. The I.G. was required to exclude Petitioner from participating in the Medicare
and Medicaid programs
for a minimum of five years. Act, section 1128(c)(3)(B).
11. Petitioner's alleged rehabilitation and psychotherapy are irrelevant to
the statutory requirement that he
be excluded for five years.
DISCUSSION
Under the statutory scheme of sections 1128(a)(2) and 1128(c)(3)(B) of the
Act, I must uphold Petitioner's
five-year exclusion if the I.G. proves the following elements:
1) Petitioner was convicted of a criminal offense, within the meaning of section
1128(i) of the
Act; and
2) Petitioner's conviction was for a criminal offense related to neglect or
abuse of patients in
connection with the delivery of a health care item or service.
Petitioner denies that he was convicted within the meaning of the Act. He further
denies that his
conviction related to neglect or abuse of patients. Finally, Petitioner argues
that he should not be excluded
for five years because he has been rehabilitated. I conclude that the I.G. has
proved each required element.
I have no authority to reduce to less than five years the length of a mandatory
exclusion. Therefore, I
uphold Petitioner's exclusion.
A. Petitioner was convicted of a criminal offense.
I find that Petitioner was convicted of a criminal offense, within the meaning
of sections 1128(i)(1) and (2)
of the Act. Petitioner acknowledges that he was convicted of indecent assault,
after trial by general court
martial. P. Br. at 1, 10. Petitioner argues, however, that a court martial is
not a federal court within the
meaning of section 1128(i). I disagree.
Petitioner argues that Congress did not intend to include courts martial when
it used the term "federal
court" in section 1128(i). According to Petitioner, Congress intended to
limit the term "federal court" to
courts established pursuant to Article III of the Constitution. Therefore, Petitioner
contends, section
1128(i) does not apply to courts martial because they are established under
Article I of the Constitution,
rather than under Article III. I reject this argument. Neither the plain language
of section 1128 nor its
legislative history makes any distinction between Article I and Article III
federal courts. I do not share
Petitioner's view that, because the statute does not specifically include Article
I courts, it should be
construed as excluding them from consideration as federal courts. On the contrary,
the legislative history
of section 1128(i) makes clear that Congress intended to define the term "conviction"
broadly. See S. Rep.
No. 109, 100th Cong., 1st Sess. 2, reprinted in 1987 U.S.C.C.A.N. 682, 694-95.
Indeed, a broad
interpretation of the term "conviction" is consistent with the remedial
purpose of section 1128, which is to
protect federal programs and their beneficiaries and recipients from persons
who have been shown to be
untrustworthy. Thus, the legislative history and purpose of section 1128 favor
a broad and inclusive
interpretation of the term "federal court."
My conclusion that courts martial are federal courts within the meaning of
section 1128(i) is further
reinforced by decisions of the Supreme Court and United States Courts of Appeals.
The Supreme Court
has held that the judgment of a court martial having jurisdiction to try an
officer or soldier for a crime is
entitled to the same finality and conclusiveness as are the judgments of a civil
court. Grafton v. U.S., 206
U.S. 333, 345 (1907); see also U.S. v. Price, 258 F.2d 918 (3d Cir. 1958); U.S.
v. Lee, 428 F.2d 917, 920
(6th Cir. 1970). Indeed, U.S. v. Lee involved facts analogous to those in this
case.
The defendant in Lee argued that a conviction by court martial should not subject
him to prosecution under
a criminal statute prohibiting a person convicted of a crime punishable by imprisonment
for a term
exceeding one year for transporting a firearm in interstate commerce. As Petitioner
argues here, the
defendant in Lee argued that, because a court martial was not part of the judicial
branch of the federal
government, its judgment was not a "conviction." The court of appeals
rejected that argument:
The language of the statute is not limited to judgments rendered by Article
III courts. Courts
martial are authorized under Article I of the Constitution. [Citations omitted]
In cases in which courts
martial have jurisdiction, their judgments are to 'be accorded the finality
and conclusiveness of a civil court
in a case of which it may legally take cognizance.' [Citing Grafton] Jurisdiction
of the military court is not
challenged in this case.... The finding of the court martial that Lee had committed
a crime, and the
judgment of sentence in excess of one year are entitled to the conclusiveness
of the judgment of an Article
III court.
428 F.2d at 920. The court's statements in Lee are equally applicable here.
The language of section
1128(i) is not limited to Article III courts. 1/ Petitioner has made no suggestion
that the court martial
which convicted him lacked jurisdiction. Here, I find that it is appropriate
to accord the judgment of the
court martial in Petitioner's case the same finality and conclusiveness that
I would accord the judgment of a
civil court.
Additional support for this view is found in Article 76 of the Uniform Code
of Military Justice (UCMJ), 10
U.S.C. 876, which provides:
[T]he proceedings, findings, and sentences of courts-martial as approved,
reviewed, or affirmed . .
. are final and conclusive. Orders publishing the proceedings of courts-martial
and all action taken
pursuant to those proceedings are binding upon all departments, courts, agencies,
and officers of the United
States....
This statute underscores that the Petitioner's conviction by court martial
is sufficient to bind the
Department of Health and Human Services to a determination that Petitioner stands
convicted of a criminal
offense under section 1128(i) of the Act.
I reject as unfounded also Petitioner's argument that it is unfair to exclude
him on the ground that he was
not afforded in the court martial procedure all of the constitutional protections
granted defendants in
federal or State criminal proceedings. It is well-established that petitioners
cannot use these administrative
proceedings to collaterally attack the substantive determinations or procedural
safeguards of their criminal
proceedings. Peter J. Edmonson, DAB 1330, at 4-5 (1992).
Even if I could consider such an equitable argument, I would find no merit in
it. Clearly Petitioner was
afforded substantial protection of his constitutional rights in the trial phase
of the court martial. For
example, he was represented by counsel (both civilian and military)(I.G. Ex.
1 at 86, 225-26), he had the
opportunity to cross-examine the witnesses against him (e.g. I.G. Ex. 1 at 327,
376), and the members of
the court martial were instructed that they could not convict unless each element
of Petitioner's offenses
were proved beyond a reasonable doubt (I.G. Ex. 1 at 472-73).
Moreover, an elaborate post-trial procedure and review process has been established
by Congress to review
courts martial and assure their fairness, as detailed in the UCMJ at 10 U.S.C.
859-876a. A court martial
conviction receives an intermediate level of review by the Court of Criminal
Appeals under Article 66 of
the UCMJ, 10 U.S.C. section 866. Sections 867 and 941 of the UCMJ provide that
courts martial
convictions receive an additional level of review by the United States Court
of Appeals for the Armed
Forces. Section 867a provides for review of decisions of the United States Court
of Appeals for the Armed
Forces by the United States Supreme Court on writ of certiorari. Part of the
responsibility of the court in
conducting the post-trial review process of courts martial includes the protection
and preservation of the
constitutional rights of persons in the armed forces. U.S. v. Frischholz, 16
U.S.C.M.A. 150, 152, 36
C.M.R. 306, 308 (1966). After conviction, Petitioner was advised of and exercised
his rights to appellate
review of his court martial conviction. I.G. Ex. 1 at 6-12. The Court of Criminal
Appeals issued a
decision on December 19, 1994 affirming his conviction. I.G. Ex 1 at 4-5.
For the reasons just discussed, I conclude that a court martial is a federal
court within the meaning of
section 1128(i). Petitioner admits that the court martial convicted him. P.
Br. at 1, 10. Therefore, I find
that he was convicted within the meaning of section 1128(i)(1). Additionally,
the court martial found him
guilty of the offenses with which he was charged. I.G. Ex. 1 at 483. Accordingly,
Petitioner was convicted
also of a criminal offense within the meaning of section 1128(i)(2).
B. Petitioner's conviction was for a criminal offense related to neglect or
abuse of patients in connection
with the delivery of a health care item or service.
Petitioner contends that the incidents for which he was convicted did not relate
to neglect or abuse, but
involved consensual acts between adult males. Petitioner implies that he was
prosecuted for engaging in
homosexual conduct to the discredit of the Navy, rather than for assault. P.
Br. at 11. Petitioner points out
that one element of the offenses of which he was convicted was that his conduct
must be prejudicial to the
order and discipline of the service. Because this element would not be present
if he had been charged in a
non-military court, Petitioner suggests that his conviction cannot be viewed
as relating to neglect or abuse
of patients, but rather as an offense against military discipline only. Id.
This argument ignores the fact that
the element involving military discipline was only one of eight elements which
the court martial was
required to find in order to convict Petitioner. I.G. Ex. 1 at 470. The remaining
seven elements of each
charge relate solely to Petitioner's unlawful sexual assaults on his victims.
2/ There is nothing unique to
the military about the crime of sexual abuse of patients.
Moreover, to the extent that Petitioner is asserting that his victims consented
to his conduct, this amounts to
a claim that Petitioner did not, in fact, commit the acts of which he was convicted.
3/ As I have already
stated, Petitioner may not collaterally attack his conviction in this forum.
Furthermore, even were I to
examine the facts underlying Petitioner's conviction, I would conclude that
there is ample evidence that the
encounters between Petitioner and his victims were not consensual. The statements
of Petitioner's victims
clearly show that they did not anticipate Petitioner's improper behavior and
that they felt it was humiliating
and degrading. I.G. Ex. 1 at 94-109, 321, 323-24, 372-74. The record further
reflects that in at least one
instance the victim complained immediately thereafter regarding the Petitioner's
improper conduct. I.G.
Ex. 1 at 375-76.
An appellate panel of the DAB has recognized that a conviction for unwanted
sexual advances of the sort
committed by Petitioner is "related to abuse" within the meaning of
section 1128(a)(2) of the Act and, thus,
forms a basis for exclusion from the Medicare and Medicaid programs. Bruce Lindberg,
D.C., DAB 1280,
at 6 (1991).
I find further that the record establishes that the offenses for which Petitioner
was convicted involved
patients in his care. The record reflects that the victims were enlisted men
in the Marines who came to
Petitioner for medical treatment of venereal disease, thus establishing a doctor-patient
relationship. I.G.
Ex. 1 at 94-109, 321, 323-24, 372-74. The record also shows that the assaults
were committed in the
course of medical examinations by the Petitioner and therefore were in connection
with the delivery of a
health care item or service under section 1128(a)(2). Id.
The I.G. has proved that Petitioner was convicted of a criminal offense related
to neglect or abuse of
patients in connection with the delivery of a health care item or service. Section
1128(c)(3)(B) of the Act
mandates that individuals convicted of such crimes be excluded from participation
in Medicare and
Medicaid for at least five years. Here, the I.G. has excluded Petitioner for
the minimum mandatory period.
Petitioner nevertheless argues that he should not be excluded because he has
been rehabilitated through
psychotherapy and other means and, thus, no longer presents a danger to his
patients. Because Petitioner's
exclusion is for the minimum mandatory period, I cannot consider mitigating
factors. Peter J. Edmonson,
DAB 1330 (1992).
CONCLUSION
The I.G.'s determination that Petitioner's exclusion for at least five years
is mandated by section 1128(a)(2)
of the Act and is supported by the applicable law and regulations.
________________________
Joseph K. Riotto
Administrative Law Judge
1. Petitioner argues that section 1128(i) is distinguishable from the statute
at issue in Lee. According to
Petitioner, the phrase "by a Federal, State, or local court" is meant
to limit the types of convictions covered
by section 1128. As I have discussed above, I do not agree that the phrase is
meant to limit the definition
of conviction.
2. I note that an element of each offense of which Petitioner was convicted
was that the acts were done
without the victim's consent and against his will. I.G. Ex. 1 at 470-71.
3. In fact, Petitioner's claim that the acts he was convicted of engaging in
were consensual is inconsistent
with his own statement, made to the Maryland Board of Physician Quality Assurance
in his application for
a medical license. In his license application he stated:
On June 30, 1993, I was convicted at a general court-martial of 5 counts of
indecent
assault involving two different patients. This became an issue when I fondled
and ultimately orally
sodomized a patient who was under my care.... Subsequent investigation revealed
one other patient who I
had fondled and masturbated.... I realize that the behavior that I engaged in
with these two patients is
repulsive, illegal, unprofessional, and unethical. It can be condoned under
no circumstances, and I have
taken steps to ensure that it never happens again.
I.G. Ex. 2 at 3.