Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
In the Case of:
Norman C. Barber, D.D.S.,
Petitioner,
- v. -
The Inspector General.
DATE: April 3, 1991
Docket No. C-198
DECISION
On December 13, 1989, the Inspector General (I.G.) notified
Petitioner Norman C. Barber, D.D.S. (Petitioner) that he was being
excluded pursuant to section 1128(a)(2) of the Social Security Act
(Act) from participation in the Medicare and State health care
programs for eight years. 1/ The I.G. advised Petitioner that he
was being excluded as a result of his conviction for a criminal
offense related to neglect or abuse of patients in connection with
the delivery of a health care item or service.
By letter dated January 5, 1990, Petitioner requested a hearing, and
the case was assigned to me. Prior to the hearing, both parties
submitted motions for partial summary disposition on the issue of
whether the I.G. has the authority to exclude Petitioner under
section 1128(a)(2) of the Act. Petitioner also objected to the
I.G.'s offering as evidence in this case documents which contain
hearsay. On June 13, 1990, I issued a Ruling which denied both
parties' motions for summary disposition. I also ruled that hearsay
evidence was admissible. However, I stated that I would provide the
party against whom hearsay evidence is offered for the truth of its
contents with the opportunity to cross-examine the declarant of such
evidence under oath, if such a request was made. On June 27, 1990,
I conducted a hearing in this case in Salt Lake City, Utah. 2/
I have considered the evidence of record, the parties' arguments,
and the applicable laws and regulations. I conclude that Petitioner
was convicted of a criminal offense relating to abuse of a patient
in connection with the delivery of a health care item or service
within the meaning of section 1128(a)(2) of the Act. I find that
the I.G.'s determination to exclude Petitioner from participation in
the Medicare and Medicaid programs for eight years is reasonable.
Therefore, I sustain the eight-year exclusion which the I.G. imposed
and directed against Petitioner.
ISSUES
The issues in this case are:
1. Whether Petitioner was convicted of a criminal offense relating
to the neglect or abuse of a patient in connection with the delivery
of a health care item or service within the meaning of section
1128(a)(2) of the Act; and
2. If the I.G. has the authority to exclude Petitioner under
section 1128(a)(2) of the Act, whether the length of the eight year
exclusion imposed and directed by the I.G. is reasonable under the
circumstances of this case.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. Petitioner is a dentist who has specialized in pedodontistry.
I.G. Ex. 9/6. 3/
2. On February 29, 1988, in a document entitled "Information",
Petitioner was charged in the District Court of Davis County, Utah
with two counts of aggravated sexual abuse of a child and five
counts of forcible sexual abuse. I.G. Ex. 3.
3. Count three of the Information referred to an episode of
forcible sexual abuse which allegedly occurred during September or
October, 1986. Count four of the Information referred to an episode
of sexual abuse which allegedly occurred between December 1986 and
February 1987. I.G. Ex. 3.
4. Attached to the Information was a probable cause statement,
attested to by a police officer. The probable cause statement
asserts that the allegations against Petitioner are based on
interviews of two juvenile females, both 16 years old at the time of
the interviews. I.G. Ex. 3.
5. The two juveniles who provided the information which formed the
basis of the probable cause statement were Petitioner's twin
daughters. I.G. Ex. 4; Tr. 83-89.
6. Paragraph four of the probable cause statement alleges that in
about September or October of 1986, Petitioner sexually abused the
first juvenile after he had anesthetized her in his dentist office,
ostensibly in order to perform dental services. Paragraph five of
the probable cause statement alleges that in about December 1986, or
January or February of 1987, Petitioner sexually abused the first
juvenile after he had anesthetized her in his dental office,
ostensibly in order to perform dental services. The probable cause
statement also alleges that Petitioner sexually abused both
juveniles on other occasions. I.G. Ex. 3.
7. Subsequent to the issuing of the Information and the
accompanying probable cause statement, the parties entered into a
plea agreement in which they agreed that the Information would be
amended to charge Petitioner with three counts rather than seven
counts, and that these counts would include two second degree
felonies and one third degree felony. Tr. 51, 61-62.
8. On May 3, 1988, in a document entitled "Amended Information",
Petitioner was charged with three counts of forcible sexual abuse.
Counts one and two were second degree felonies and count three was a
third degree
felony. I.G. Ex. 5.
9. Count one of the Amended Information referred to an episode of
forcible sexual abuse which allegedly occurred during September or
October 1986. Count two referred to an episode of forcible sexual
abuse which allegedly occurred between December 1986 and February
1987. I.G. Ex. 5.
10. The Amended Information was not accompanied by a probable cause
statement, and counts one and two of the Amended Information do not
identify the females against whom the forcible sexual abuse was
perpetrated. I.G. Ex. 5.
11. In drafting the Amended Information, the prosecuting attorney
selected counts three and four from the Information and put them in
the Amended Information as counts one and two. Count one of the
Amended Information was based on Paragraph four of the probable
cause statement alleging an episode of sexual abuse perpetrated by
Petitioner in his dental office and count two of the Amended
Information was based on paragraph five of the probable cause
statement alleging sexual abuse perpetrated by Petitioner in his
dental office. Tr. 51-53.
12. At an arraignment occurring on May 17, 1988, Petitioner pleaded
guilty to counts one and two of the Amended Information. I.G. Ex.
7. Petitioner also admitted in a sworn affidavit that, with respect
to both counts, his daughter was the victim of the criminal conduct.
I.G. Ex. 6.
13. In pleading guilty to counts one and two of the Amended
Information, Petitioner admitted to using anesthesia to perpetrate
sexual abuse against a dental patient, as described in paragraphs
four and five of the probable cause statement. Findings 2-12.
14. On May 17, 1988, the court found that the facts supported
Petitioner's guilty plea, and accepted these pleas on counts one and
two of the Amended Information. I.G. Ex. 8.
15. Petitioner was convicted of a criminal offense within the
meaning of section 1128(a)(2) and 1128(i) of the Act.
16. Petitioner was convicted of a criminal offense relating to 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 Act.
17. Sections 1128(a)(2) and 1128(c)(3)(B) of the Act provide that
the minimum mandatory exclusion period is five years for an
individual who has been convicted of a criminal offense relating to
abuse of patients in connection with the delivery of a health care
item or service.
18. The Secretary of the United States Department of Health and
Human Services (the Secretary) delegated to the I.G. the authority
to determine, impose, and direct exclusions pursuant to section 1128
of the Act. 48 Fed. Reg. 21661 (May 13, 1983).
19. On December 13, 1989, the I.G. excluded Petitioner from
participating in the Medicare program, and directed that he be
excluded from participating in Medicaid, for eight years, pursuant
to section 1128(a)(2) of the Act.
20. The I.G. properly excluded Petitioner from participation in the
Medicare and Medicaid programs for a period of at least five years
as required by the minimum mandatory exclusion provisions of
sections 1128(a)(2) and 1128(c)(3)(B) of the Act.
21. The remedial purpose of section 1128 of the Act is to protect
federally-funded health care programs and their
beneficiaries and recipients from providers who have demonstrated by
their conduct that they cannot be trusted to handle program funds or
to treat beneficiaries and recipients.
22. Felonies are serious criminal violations. Petitioner was
convicted of two felonies.
23. The serious nature of Petitioner's offenses is reflected in the
sentence fashioned by the court. I.G. Ex. 10.
24. The serious nature of Petitioner's offense is also reflected in
the fact that the state licensing board revoked Petitioner's
licenses to practice dentistry and to administer controlled
substances as a result of his criminal misconduct. I.G. Ex. 20;
I.G. Ex. 11.
25. The two felony counts underlying Petitioner's conviction did not
occur in isolation. Petitioner sexually molested his twin daughters
in the course of providing dental care to them over a two year
period. This is a lengthy period of time. In addition, the abuse
which occurred in Petitioner's dental office was part of a larger
pattern of abuse which had begun two years earlier when his
daughters were as young as 12 years of age. I.G. Ex. 21/148.
26. The synergistic effect of administering chloral hydrate and
nitrous oxide in combination is an exaggerated degree of sedation.
I.G. Ex. 11/8.
27. Petitioner admitted that he administered nitrous oxide and
chloral hydrate in combination to his twin daughters on repeated
occasions with the intent to induce a deep level of sedation in
order to gain sexual access to them without their knowledge and
consent. I.G. Ex. 21/190-194.
28. Petitioner's conduct jeopardized the health and well-being of
his daughters. I.G. Ex. 21/87.
29. Petitioner has demonstrated that he is capable of using his
licenses to practice dentistry and to administer controlled
substances to perpetrate criminal sexual assaults on others.
Petitioner has repeatedly placed the gratification of his own urges
above the welfare of his own children. Findings 25-28.
30. Petitioner continued to sexually assault his twin daughters for
approximately a year after his wife and officers of his church
became aware of this conduct. I.G. Ex. 21/161, 272. He did not
stop the abuse until it was reported to the police, and he did not
seek professional psychological help until after criminal charges
were formally filed against him. I.G. Ex. 21/180,186; I.G. Ex.
16/1. These actions show that Petitioner possessed a stubborn
resistance to stopping his criminal misconduct.
31. The psychological evidence shows that although Petitioner
admitted that he had sexual contact with his daughters, he had
difficulty perceiving that this conduct was inappropriate and that
it was harmful. I.G. Ex. 16.
32. Petitioner cannot be trusted to restrain himself from acting on
impulses that would be harmful to the welfare and safety of others,
including his patients. Findings 25-31.
33. The opinion of Petitioner's treating psychologists that
Petitioner is unlikely to sexually abuse children outside of his
family is unreliable because it is based primarily on information
provided by Petitioner. I.G. Ex. 16; I.G. Ex. 21/53-60, 216, 240,
256, 264.
34. Petitioner has progressed satisfactorily in his psychological
treatment. I.G. Ex. 21/221; Tr. 194.
35. Although they expressed the opinion that Petitioner was unlikely
to abuse children outside of his family, Petitioner's treating
psychologists were unable to guarantee that he would not assault
children outside of his family in the course of his dental practice.
I.G. Ex. 16/6; I.G. Ex. 21/56, 221-223.
36. A lengthy exclusion is reasonable in this case to protect
program beneficiaries and recipients, even if there is only a slight
risk that Petitioner might sexually abuse patients, because such
abuse, if it occurred, would greatly endanger the welfare and safety
of patients.
37. The eight year exclusion imposed and directed against Petitioner
by the I.G. is reasonable. Findings 1-36.
ANALYSIS
I. Petitioner was convicted of a criminal offense relating to
neglect or abuse of patients in connection with the delivery of a
health care item or service.
A. Four statutory requirements must be satisfied in order for the
I.G. to have authority to impose an exclusion under section
1128(a)(2) of the Act.
The I.G. excluded Petitioner from participating in Medicare and
directed that Petitioner be excluded from participating in Medicaid,
pursuant to section 1128(a)(2) of the Social Security Act. This
section mandates the exclusion from participating in Medicare and
Medicaid of individuals who are:
[C]onvicted, 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.
The I.G.'s authority to impose and direct an exclusion under
1128(a)(2) is based on fulfillment of the following statutory
criteria: (1) conviction of a criminal offense, (2) relating to
neglect or abuse, (3) of patients, (4) in connection with the
delivery of a health care item or service.
The first criterion that must be satisfied in order to establish
that the I.G. had the authority to exclude Petitioner under section
1128(a)(2) is that Petitioner must be convicted of a criminal
offense. I find that the undisputed facts satisfy this criterion.
Neither party to this case disagrees that Petitioner was convicted
of a criminal offense within the meaning of section 1128. The
undisputed facts establish that Petitioner entered a guilty plea to
two counts of forcible sexual abuse in the District Court for the
County of Davis, Utah, and the court accepted Petitioner's plea.
I.G. Ex. 8. The exclusion law defines the term "convicted of a
criminal offense" to include those circumstances in which a plea of
guilty by an individual has been accepted by a federal, state, or
local court. Act, section 1128(i)(3). I therefore conclude that
Petitioner was "convicted of a criminal offense" within the meaning
of sections 1128(a)(2) and 1128(i) of the Act.
The second criterion that must be satisfied in order to find that
the I.G. had the authority to exclude Petitioner under section
1128(a)(2) is that the criminal offense must relate to neglect or
abuse of another individual. The undisputed facts establish that
Petitioner was convicted of two felony counts of forcible sexual
abuse. I.G. Ex. 8. As I found in my June 13, 1990 Ruling [Ruling]
in this case, the criminal offense of forcible sexual abuse on its
face constitutes "abuse" within the meaning of section 1128(a)(2)
of
the Act. The undisputed facts therefore satisfy the requirement
that the criminal offense relates to neglect or abuse.
What remains to be determined is whether the abuse of which
Petitioner was convicted was abuse of a patient and whether it was
abuse in connection with the delivery of a health care item or
service.
B. Nothing in Petitioner's plea or in the charges to which he
pleaded establishes that the victim of his criminal offense was a
patient or that the abuse occurred in connection with the delivery
of a health care item or service.
A review of the relevant documents pertaining to the criminal
proceeding before the District Court of Davis County, Utah
establishes that on February 29, 1988, Petitioner was charged, in a
document entitled "Information", with two felony counts of
aggravated sexual abuse of a child and five felony counts of
forcible sexual abuse. I.G. Ex. 3. Counts three and four of this
Information referred to episodes of forcible sexual abuse which
allegedly occurred during September or October of 1986 and between
December 1986 and February 1987. I.G. Ex. 3.
The Information was accompanied by a probable cause statement,
attested to by a police officer. The probable cause statement
asserts that the allegations against Petitioner are based on
interviews of two female juveniles who were 16 years old at the time
of the interviews. I.G. Ex. 3. Transcripts of the interviews which
formed the basis for the probable cause statement show that the two
juveniles were Petitioner's twin daughters. I.G. Ex. 4; Tr. 83-89.
The probable cause statement alleges that on two occasions, in
about September or October of 1986, and in about December 1986, or
January or February of 1987, Petitioner sexually abused the first
juvenile after he had anesthetized her in his dentist office,
ostensibly in order to perform dental services. The probable cause
statement also alleges that Petitioner sexually abused both
juveniles on other occasions. I.G. Ex. 3.
On May 3, 1988, a document entitled "Amended Information" was filed.
This Amended Information charged Petitioner with three felony
counts of forcible sexual abuse, and it no longer charged Petitioner
with aggravated sexual abuse of a child. Count one alleged that
Petitioner had committed the crime in September or October 1986.
Count two alleged that Petitioner had committed the crime between
December 1986, and February 1987. No probable cause statement
accompanied the Amended Information. I.G. Ex. 5.
In a sworn affidavit dated April 17, 1989, Petitioner admitted that,
with respect to counts one and two of the Amended Information, his
daughter was the victim of his criminal conduct. Petitioner also
stated that it was his understanding that the State would move to
dismiss count three of the Amended Information in exchange for his
pleas of guilty to counts one and two. I.G. Ex. 6. At an
arraignment occurring on May 17, 1988, Petitioner pleaded guilty to
counts one and two of the Amended Information. I. G. Ex. 7. On May
17, 1988, the court found that the facts supported Petitioner's
guilty pleas, and accepted these pleas on counts one and two of the
Amended Information. I.G. Ex. 8.
It is apparent from the exhibits submitted by the I.G. that at one
time Petitioner was charged with sexually abusing his daughters in
the course of providing them with dental treatment. However, the
document which contained the charges to which Petitioner actually
pled guilty, the Amended Information dated May 3, 1988, does not
contain these allegations. In addition, statements made by
Petitioner at the time he pleaded guilty do not contain any facts
establishing that these criminal offenses related to incidents
occurring in Petitioner's dentist office. In my Ruling in this
case, I found that nothing in Petitioner's plea or in the charges to
which he pleaded establishes that the victim of his criminal abuse
was a patient or that the abuse occurred in connection with the
delivery of a health care item or service. I therefore concluded
that the issue of whether the abuse of which Petitioner was
convicted was abuse of a patient in connection with the delivery of
a health care item or service was a question which could not be
resolved by the facts before me at that time.
C. It is consistent with congressional intent to admit extrinsic
evidence concerning the circumstances of a conviction to determine
whether the statutory requirements of section 1128(a)(2) have been
satisfied.
Petitioner argues that no extrinsic evidence should be considered to
decide whether his guilty plea constitutes a conviction within the
meaning of section 1128(a)(2). He asserts that if this is not
evident from the face of the documents which comprise the conviction
(in this case, the Amended Information and Petitioner's plea), then
there cannot be a conviction within the meaning of the section.
I disagree. It is consistent with congressional intent to admit
limited evidence concerning the facts upon which the conviction was
predicated in order to determine whether the statutory criteria of
section 1128(a)(2) have been satisfied.
Congress could have conditioned imposition of the exclusion remedy
on conviction of criminal offenses consisting of patient neglect or
abuse. Had it used the term "of" instead of the term "relating
to"
in section 1128(a)(2), that intent would have been apparent. Had
Congress done so, then, arguably, no extrinsic evidence would be
permitted in a given case to explain the relationship between the
criminal conviction and the underlying conduct. However, Congress
intended that the exclusion authority under section 1128(a)(2) apply
to a broader array of circumstances. It mandated that the Secretary
exclude providers who are convicted of criminal offenses "relating
to" patient neglect or abuse in connection with the delivery of a
health care item or service. The question before me is whether the
criminal offense which formed the basis for the conviction relates
to neglect or abuse of patients, not whether the court convicted
Petitioner of an offense called "patient abuse" or "patient
neglect".
It is consistent with congressional intent to admit evidence which
explains the circumstances of the offense of which a party is
convicted. One of my tasks in hearing and deciding this case is to
examine all relevant facts to determine if there is a relationship
between the Petitioner's criminal offenses and neglect or abuse of
patients in connection with the delivery of a health care item or
service. In Thomas M. Cook, DAB Civ. Rem. 106 (1989), I found that
I could admit extrinsic evidence to establish the identity of the
victim and to establish that this victim was a "patient" when it was
clear that the conviction was based on these facts. 4/
An exclusion cannot be based on allegations which are not within the
ambit of the charge to which Petitioner pleaded. 5/ This would be
inconsistent with the deriva-tive nature of section 1128(a)(2)
exclusions. Just as section 1128(a)(2) does not empower me to
question a conviction when a petitioner denies that he or she
committed the underlying criminal offense, similarly, section
1128(a)(2) does not empower me to broaden a conviction beyond the
scope of the allegations which are the basis of the charge of which
a petitioner is convicted. Extrinsic evidence therefore is not
admissible to add elements of a charge in order to bring a
conviction within the scope of the exclusion law. However, under
Cook, supra and Blankenship, supra, extrinsic evidence is admissible
to explain ambiguities in criminal complaints or pleas. It is
admissible to explain unstated but necessarily implied elements of
the offense to which a party pleads.
In this case, it is apparent from the exhibits offered by the I.G.
that the allegations upon which the Amended Information was based,
and to which Petitioner pleaded guilty, were broad enough to include
allegations that Petitioner sexually abused one of his daughters
while she was his patient and in connection with the delivery of a
health care item or service. Therefore, it was appropri-ate to
allow the I.G. to offer evidence to establish that such allegations
were subsumed in the criminal charges filed against Petitioner. It
would not, however, have been appropriate for the I.G. to offer
evidence to show that such allegations could have been made or that
the criminal charges to which Petitioner pleaded were broadly worded
so as to encompass allegations which were not made as a precursor to
the issuing of the Amended Information.
In my Ruling, I stated that the I.G. had not established the
requisite factual link between the allegations in the probable cause
statement attached to the Information and the counts to which
Petitioner pleaded guilty in the Amended Information. I stated that
there was some ambiguity which must be resolved, since the Amended
Information does not incorporate or refer to the probable cause
statement. I therefore informed the parties that they would be
permitted to present evidence at an in-person hearing on the issue
of whether counts one and two of the Amended Information were based
on allegations which were made in the probable cause statement.
D. The I.G. brought forward evidence establishing the requisite
factual link between the Amended Information and the probable cause
statement.
At the hearing held before me, Mr. John Mark Andrus, deputy county
attorney, provided extensive testimony regarding the circumstances
surrounding the drafting of the Information, the probable cause
statement attached to the Information, and the Amended Information
in this case. I find that this testimony establishes the requisite
link between the Amended Information and the allegations in the
probable cause statement.
Mr. Andrus testified that he drafted the Information, the attached
probable cause statement, and the Amended Information. Tr. 48, 50.
Mr. Andrus stated that counts three and four of the Information
were based on allegations of sexual abuse committed by Petitioner in
his dental office. Mr. Andrus stated that count three was based on
paragraph four of the probable cause statement and count four was
based on paragraph five of the probable cause statement. Tr. 50.
Paragraphs four and five of the probable cause statement describe
specific instances where Petitioner allegedly anesthe-tized and
sexually assaulted one of his twin daughters in the course of
providing dental treatment to her. I.G. Ex. 3.
Mr. Andrus testified that subsequent to the drafting of the
Information and the attached probable cause statement, he entered
into a plea agreement with Petitioner's attorney in which the
parties agreed that the Information would be amended to charge
Petitioner with three counts rather than seven counts and that these
counts would include two second degree felonies and one third degree
felony. Tr. 51, 61-62. Mr. Andrus also testified that in drafting
the Amended Information, he was concerned with charging Petitioner
with offenses which complied with the statutory requirements for
felonies in the second and third degrees pursuant to the parties'
plea bargain. He stated that he was not concerned at that time with
prosecuting Petitioner with sexual abuse which occurred at his
dental office. Mr. Andrus stated that he picked counts three and
four from the Information, which were based on the allegations of
sexual abuse in the dental office, and put them in the Amended
Information as counts one and two because they were second degree
felonies. According to Mr. Andrus, it was "an accident or fate"
that he prosecuted Petitioner for the specific incidents of sexual
abuse that occurred in the dental office. Tr. 56, 77-79. Although
Mr. Andrus did not pick counts three and four from the Information
because they were related to sexual abuse in the dental office, he
stated that these counts, which eventually became counts one and two
of the Amended Information, were definitely based on the sexual
abuse in the dental office. Tr. 51.
Mr. Andrus also testified that the dates in counts one and two of
the Amended Information correlate with the dates of paragraphs four
and five of the probable cause statement. He also stated that when
these documents are read together, it could be reasonably inferred
that counts one and two of the Amended Information were based on the
allegations regarding sexual abuse in the dentist office set forth
in paragraphs four and five of the probable cause statement. Tr.
52-53.
Mr. Andrus also stated that as part of the plea bargain, the parties
agreed that Petitioner would not be formally arrested, but that he
would voluntarily appear in court. He explained that he did not
attach the relevant portion of the probable cause statement to the
Amended Informa-tion because it was agreed that Petitioner would not
be arrested and this obviated the need to show the basis for an
arrest. Tr. 55.
E. Petitioner has failed to bring forward any factual evidence or
legal arguments that are persuasive in rebutting the I.G.'s position
that section 1128(a)(2) applies to this case.
Mr. Andrus' testimony establishes that the allegations that
Petitioner sexually abused his daughter after he had anesthetized
her set forth in paragraphs four and five of the probable cause
statement formed the basis for counts one and two of the Amended
Information. Petitioner has not brought forth any evidence to rebut
this finding. Instead, Petitioner responds to this damaging
evidence with several unpersuasive arguments.
Petitioner points out that in a hearing before the state licensing
board which was held to determine whether his licenses to practice
dentistry and to administer controlled substances would be revoked,
he admitted that the sexual abuse took place after he performed
dental procedures on his daughters. Petitioner therefore contends
that his sexual abuse did not occur "in connec-tion with the
delivery of a health care item or service" because the sexual abuse
did not occur until the dental services had been completed.
This argument is unpersuasive because the admissions made by
Petitioner at his license revocation hearing are irrelevant for the
purpose of determining the actions which formed the basis for his
criminal conviction. In fact, this argument is disingenuous in
light of the fact that Petitioner argued in his prehearing brief
that the I.G. could not rely on findings made by the licensing board
to support a conclusion regarding the underlying basis for his
criminal conviction. As Petitioner correctly pointed out in his
prehearing brief, the licensing hearing is an entirely different
proceeding from the criminal proceeding. The admissions Petitioner
made before the licensing board therefore are not proba-tive on the
issue of the underlying basis for the criminal conviction. 6/
Paragraphs four and five of the probable cause statement describe
the incidents which form the basis for Petitioner's conviction.
Both of these paragraphs indicate that Petitioner's daughter was at
the dental office for the purpose of receiving dental treatment,
that Petitioner anesthetized her, and that he sexually abused her
while she was under the influence of anesthe-sia. These allegations
formed the basis of Petitioner's conviction, and they show that
Petitioner used the dentist-patient relationship and his access to
anesthesia to perpetrate the sexual abuse. This description of the
facts underlying the conviction leads to the conclusion that
Petitioner's conviction was related to abuse of a patient in
connection with the delivery of a health care item or service.
Petitioner also contends that his conviction did not relate to abuse
of a patient in connection with the delivery of a health care item
or service because there has been no showing that the dental
procedures performed by him were inadequate. Section 1128(a)(2)
does not condition imposition of the exclusion on the provision
of incompetent or inadequate medical care, but instead contemplates
an exclusion where a provider has been convicted of a criminal
offense relating to abuse of a patient in connection with the
delivery of a health care item or service. Petitioner used
anesthesia to perpetrate sexual abuse against a dental patient. The
fact that he may have also adequately performed a dental procedure
on the victim does not undermine the conclusion that he was
convicted for an offense related to abuse of a patient in connection
with the delivery of a health care item or service.
Petitioner also elicited testimony from Mr. Andrus which establishes
that in the course of the criminal proceed-ings, Petitioner refused
to sign an affidavit which expressly referred to the incidents of
sexual abuse in the dental office. Mr. Andrus subsequently prepared
an affidavit which did not contain any explicit reference to sexual
abuse in his dental office and this is the document that Petitioner
ultimately signed. Tr. 66. At page four of his post-hearing brief,
Petitioner admits that sexual abuse took place in the dental office
as well as at home during the time period set forth in the Amended
Information. Petitioner also points out in his post-hearing brief
that the Amended Information does not on its face indicate the
location of the abuse. He argues that his refusal to sign a
criminal affidavit which explicitly stated that he abused his
daughter at his dental office supports the conclusion that he pled
guilty to, and was convicted for, the sexual abuse which occurred at
home.
I am not persuaded by this argument. The evidence of record
establishes that Petitioner pleaded guilty to counts one and two of
the Amended Information. The evidence further establishes that
these counts are based on incidents of sexual abuse perpetrated by
Petitioner in the course of providing dental treatment as set forth
in the probable cause statement attached to the Information. In
pleading guilty to counts one and two of the Amended Information,
Petitioner admitted to using anesthesia to perpetrate sexual abuse
of a dental patient as described in paragraphs four and five of the
probable cause state-ment. In accepting this guilty plea, the court
convicted Petitioner for these criminal offenses.
These findings are not disturbed by the fact that there is evidence
showing that Petitioner did not intend to plead guilty to incidents
of sexual abuse occurring in his dental office and that he refused
to sign an affida-vit which explicitly referred to these incidents
of sexual abuse. Similarly, these findings are not disturbed by the
fact that the prosecuting attorney did not consciously choose to
prosecute these particular offenses for the reason that they
occurred in the dental office. The task before me is to determine
whether, objectively, the underlying basis of Petitioner's
conviction were the incidents of criminal sexual abuse perpetrated
by Petitioner in the course of providing dental treatment described
in the probable cause state-ment. I conclude that the testimony of
Mr. Andrus regarding the basis for counts one and two of the Amended
Information establishes that Petitioner was convicted of criminal
offenses which were related to abuse of a patient in connection with
the delivery of a health care item.
In view of the foregoing, I find that all four statutory
requirements necessary to find that the I.G. has authority to impose
and direct an exclusion pursuant to section 1128(a)(2) have been
satisfied in this case. The I.G. is therefore required to exclude
Petitioner for a minimum of five years under sections 1128(a)(2) and
1128(c)(3)(B) of the Act.
II. An eight year exclusion is appropriate and reasonable in this
case.
A. The remedial purpose of section 1128 of the Act is to protect
federally-funded health care programs and their beneficiaries and
recipients from untrustworthy providers.
The I.G. excluded Petitioner from participating in the Medicare and
Medicaid programs for eight years. While the exclusion provisions
of sections 1128(a)(2) and 1128(c)(3)(B) of the Act require that an
individual or entity who has been convicted of a criminal offense
relating to neglect or abuse of patients in connection with the
delivery of a health care item or service be excluded for a minimum
period of five years, there is no mandated maximum period for
exclusions imposed pursuant to section 1128. The remaining issue in
this case is whether the I.G. is justified in excluding Petitioner
for eight years. Since there is no statutory provision which sets
the maximum exclusion period for exclusions imposed under the
authority of section 1128(a)(2), it is reason-able to conclude that
Congress intended that resolution of this issue be based on analysis
of the evidence in a particular case in light of the legislative
purposes of the exclusion statute. See Frank J. Haney, DAB Civ.
Rem. C-156 (1990).
The exclusion law is not a penal statute enacted by Congress for the
purpose of imposing punishment. Section 1128 is a civil statute,
and Congress intended it to be remedial in application. The
remedial purpose of the exclusion law is to enable the Secretary to
protect the trust funds of federally-funded health care programs
from misconduct. Such misconduct includes fraud or theft against
federally-funded health care programs. It also includes neglectful
or abusive conduct against program recipients and beneficiaries.
See, S. Rep. No. 109, 100th Cong., 1st Sess. 1; reprinted 1987 U.S.
Code Cong. and Admin. News 682.
This policy was evident in Congress' original enactment of the
exclusion law in 1977. Successive revisions of the law have
continued to express this legislative purpose in progressively
stronger terms. In fact, the title of the most recent amendments to
the exclusion law, the Medicare and Medicaid Patient and Program
Protection Act of 1987, clearly signals that Congress intended the
law to protect federally-funded health care programs and the
beneficiaries and recipients of those programs. Prior to 1987, the
Secretary did not have the authority to exclude persons who had been
convicted of criminal offenses which were not related to Medicare or
other State health care programs. One of the amendments enacted in
1987 was the provision at issue in this case, section 1128(a)(2).
The purpose of this amendment was to "give the Secretary the
authority to protect Medicare and the State health care program
beneficiaries from individ-uals or entities that have already been
tried and convicted of offenses which the Secretary concludes
entailed or resulted in neglect or abuse of other patients and whose
continued participation in Medicare and the State health programs
would therefore constitute a risk to the health and safety of
patients in those programs." S. Rep. No. 109, 100th Cong., 1st
Sess. 6; reprinted 1987 U.S. Code Cong. and Admin. News 682, 686.
The key term to keep in mind is "protection", the prevention of
harm. See, Webster's II New Riverside University Dictionary 946
(1984). As a means of protecting the Medicare and Medicaid programs
and their beneficiaries and recipients, Congress chose to mandate,
and in other instances to permit, the exclusion of untrustworthy
providers. Through exclusion, individuals who have caused harm, or
demonstrated that they may cause harm, to the federally funded
health care programs or its beneficiaries or recipients are no
longer permitted to receive reimbursement for items or services
which they provide to Medicare beneficiaries or Medicaid recipients.
Thus, untrustworthy providers are removed from a position which
provides a potential avenue for causing harm to the program or to
its beneficiaries or recipients. See Charles J. Burks, M.D., DAB
Civ. Rem. C-111 (1989).
Federally-funded health care programs are no more obligated to
continue to deal with dishonest or untrust-worthy providers than any
purchaser of goods or services would be obligated to deal with a
dishonest or untrust-worthy supplier. The exclusion remedy allows
the Secretary to suspend his contractual relationship with those
providers of items or services who are dishonest or untrustworthy.
The remedy therefore enables the Secretary to assure that federally-
funded health care programs will not continue to be harmed by
dishonest or untrustworthy providers of items or services. The
exclusion remedy is therefore closely analogous to the civil remedy
of termination or suspension of a contract to forestall future
damages from a continuing breach of that contract. See Hanlester
Network, et al., DAB Civ. Rem. 186, et al. (1991).
Congress has not mandated that exclusions from participation in the
federally-funded health care programs be permanent. Instead,
section 1128(g) provides that an excluded provider may apply for
reinstatement into the program at the end of the exclusion period.
The Secretary may then terminate the exclusion if there is no basis
for a continuation of the exclusion, and there are reasonable
assurances that the types of actions which formed the basis for the
original exclusion have not recurred and will not recur. 7/
By not mandating that exclusions from participation in federally-
funded health care programs be permanent, Congress has allowed the
I.G. the opportunity to give individuals a "second chance". The
placement of a limit on the period of exclusion allows an excluded
individual or entity the opportunity to demonstrate that he or she
can and should be trusted to participate in the federally-funded
health care programs as a provider of items and services to
beneficiaries and recipients. See Thomas J. Depietro, R. Ph., DAB
Civ. Rem. C-282 at 8 (1991).
The ultimate issue to be determined at a hearing pertaining to an
exclusion imposed pursuant to section
1128 of the Act is whether the exclusion is reasonable. 42 C.F.R.
1001.128(a)(3). In adopting this regulation, the Secretary stated
that:
The word `reasonable' conveys the meaning that .
. . [the I.G.] is required at the hearing only to
show that the length of the [exclusion]
determined . . . was not extreme or excessive.
48 Fed. Reg. 3744 (January 27, 1983). An exclusion determination
will be held to be reasonable where, given the evidence of the case,
it is consistent with the legislative purpose of protecting
federally-funded health care programs and their beneficiaries and
recipients and it is not extreme or excessive as a length of time
necessary to establish that the excluded provider no longer poses a
risk to covered programs and their beneficiaries and recipients.
See Basem F. Kandah, R. Ph., DAB Civ. Rem. C-155 at 5 (1990).
An exclusion may have the ancillary benefit of deterring providers
of items or services from engaging in the same or similar misconduct
as that engaged in by excluded providers. However, the primary
purpose of an exclusion is the remedial purpose of protecting the
trust funds and beneficiaries and recipients of those funds.
Deterrence cannot be a primary purpose for imposing an exclusion.
Where deterrence becomes the primary purpose, section 1128 no longer
accomplishes the civil remedies objectives intended by Congress.
Punishment, rather than remedy, becomes the end. As stated by the
United States Supreme Court:
[A] civil sanction that cannot fairly be 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.
United States v. Halper, 440 U.S. 435, 448 (1989).
In order to be adjudged reasonable under section 1128, an exclusion
must satisfy the remedial objective of protecting federally-funded
health care programs and their beneficiaries and recipients from
untrustworthy providers of items or services. An exclusion which
satisfies this purpose may also have the ancillary benefit of
deterring wrongdoing. However, an exclusion fashioned solely to
achieve the objective of deterrence is punitive if it does not
reasonably serve the Act's remedial objective. See Hanlester
Network, et al., DAB Civ. Rem. C-186, et al. (1991).
B. The fact finder must evaluate the totality of the circumstances
of each case in light of the remedial purpose of the exclusion law
in order to determine the appropriate length of an exclusion.
There is no precise formula which can be applied to calculate when a
provider should be trusted and allowed to reapply for participation
in the federally-funded health care programs. Each case has unique
facts which must be weighed in determining the appropriate length of
an exclusion.
Guidance in determining the appropriate length of an exclusion is
found in regulations contained in 42 C.F.R. 1001.125(b). These
regulations were adopted by the Secretary prior to the enactment of
the 1987 amendments to the Act, and specifically apply only to
exclusions for convictions for criminal offenses related to Medicare
and Medicaid. While these regulations are not specifically
applicable to cases under 1128(a)(2), they are entirely consistent
with congressional intent to exclude untrustworthy providers from
participation in federally-funded health care programs. Thus, to
the extent that they have not been repealed or modified, these
regulations are instructive as broad guidelines for determining the
appropriate length of exclusions in cases such as this one, which
have arisen after the enactment of the 1987 revisions and where the
Secretary has authority to exclude individuals for convictions
relating to patient abuse. 8/
The regulations enumerate a number of factors which should be
considered in deciding how long an exclusion will be reasonable.
They include: (1) the number and nature of the offenses, (2) the
nature and extent of any adverse impact the violations have had on
beneficiaries, (3) the amount of the damages incurred by the
Medicare, Medicaid, and social services programs, (4) the existence
of mitigating circumstances, (5) the length of sentence imposed by
the court, (6) any other facts bearing on the nature and seriousness
of the violations, and (7) the previous sanction record of the
excluded party. 42 C.F.R. 1001.125(b).
Section 1128 is not a criminal statute and the exclusion remedy is
not intended to be a punishment for wrongdoing. The regulations
therefore should not be applied as sentencing guidelines to the
facts of a case to determine the degree of a provider's culpability
with a view to determining the punishment he "deserves". Instead,
the regulations provide guidance as to the factors that should be
considered in order to make inferences about a provider's
trustworthiness and the length of time a provider should be excluded
to provide the Secretary adequate opportunity to determine that a
provider no longer poses a risk to the covered programs and to their
beneficiaries and recipients. For example, in most cases,
inferences as to a provider's trustworthiness can be drawn from the
conduct that the provider is found to have committed. In most
circumstances, where a provider is found to have committed a serious
offense, the inference can be drawn that the provider is
untrustworthy and that a lengthy exclusion is necessary to show that
the provider will not repeat his misconduct.
The regulations do not define what factors may be considered as
"mitigating." However, given congressional intent to exclude
untrustworthy individuals from partici-pation in federally-funded
programs, it is reasonable to conclude that such factors would
constitute those factors which would lead to the conclusion that an
excluded individual is trustworthy and no longer poses a danger to
covered programs and beneficiaries and recipients of program funds.
Leonard N. Schwartz, R. Ph., DAB Civ. Rem. C-62 at 14 (1989).
Thus, for example, factors pertaining to a provider's rehabilitation
efforts should be considered in determining the length of the
exclusion. 9/
In order to achieve the remedial objectives of the exclusion law,
the regulations must not be mechanically applied to the facts of a
case. Instead, the totality of the circumstances of each case must
be evaluated in order to reach a determination regarding the
appropriate length of an exclusion. For example, it is possible to
have a case where there is strong evidence that an excluded provider
has been rehabilitated. However, the harm which resulted from the
offense committed by that provider may have been so serious that
even a slight chance for repetition of the offense would justify the
imposition of a lengthy exclusion. See Bernard Lerner, M.D., DAB
Civ. Rem. C-48 (1989); and Michael D. Reiner, R.M.D., DAB Civ. Rem.
C-197 (1990).
This hearing is, by law, de novo. Act, section 205(b). Evidence
which is relevant to the reasonableness of an exclusion is
admissible in a hearing on an exclusion whether or not that evidence
was available to the I.G. at the time the I.G. made his exclusion
determination. Moreover, evidence which relates to a petitioner's
trustworthiness or to the remedial objectives of the exclusion law
is admissible at an exclusion hearing, even if that evidence is of
conduct other than that which establishes statutory authority to
exclude petitioner. The purpose of the hearing is not to determine
how accurately the I.G. applied the law to the facts before him, but
whether, based on all relevant evidence, the exclusion comports with
the legislative purpose of protecting federally-funded health care
programs and their beneficiaries and recipients from untrustworthy
providers.
In this case, I received evidence which included investigative
reports, documents pertaining to Petitioner's criminal proceedings,
documents pertaining to Petitioner's license revocation proceedings
before the Utah State licensing board, reports of psychological
evaluations of Petitioner, and transcripts of interviews of the
victims of Petitioner's crimes, as well as Petitioner's former wife.
My purpose in admitting such evidence was to create as full a
record as possible about the gravity and effect of Petitioner's
offenses, Petitioner's rehabilitation efforts, Petitioner's
character and trustworthiness, and other factors related to the
issue of whether an eight year exclusion is reasonable.
I conclude that the evidence of record establishes that the eight
year exclusion imposed and directed against Petitioner is consistent
with the exclusion law's remedial purpose. My conclusion is based
on the grave and serious misconduct engaged in by Petitioner, the
absence of definite assurances that he will not at some time in the
near future engage in similar misconduct, and the potential for harm
should Petitioner engage in such misconduct. I find that
Petitioner's misconduct is so serious and the threat of harm to his
patients is so great that even a slight possibility that Petitioner
may resume his unlawful conduct justifies imposition of a lengthy
exclusion to ensure that program beneficiaries and recipients are
protected from exposure to such danger.
C. The nature and gravity of Petitioner's criminal misconduct is
serious.
Petitioner pled guilty to, and was convicted of, two felony counts
of forcible sexual abuse. I.G. Ex. 8. These are serious criminal
violations. Petitioner admitted that the victim of these offenses
was his daughter. I.G. Ex. 6. The factual circumstances which
formed the basis for these criminal offenses involved incidents in
which Petitioner sexually abused his daughter after he had
anesthetized her in his dentist office, ostensibly to perform dental
services. Petitioner has shown by his actions that he is capable of
using his ability to practice dentistry and his access to medication
to facilitate criminal sexual assaults on others. Most disturbing,
Petitioner's actions demonstrate that he is an individual who can
consciously place the gratification of his sexual urges above the
health and well-being of his own daughter.
The nature and gravity of these offenses is in some measure
reflected in the comprehensive sentence fashioned by the criminal
court. The court determined that Petitioner's wrongdoing was
serious enough to justify a punishment which included incarceration.
The court sentenced Petitioner to 1-15 years in the Utah State
Prison and suspended this sentence on the condition that Petitioner
serve one year in the Davis County Jail. The court also determined
that Petitioner's criminal offenses were grave enough to merit the
imposition of a fine in addition to a jail sentence. The court
sentenced Petitioner to a $10,000 fine on each count and suspended
all but $1,000 of the fine, plus a 25 percent surcharge, on each
count. The court also ordered Petitioner to complete sexual
dysfunction therapy as part of its sentence, showing a recognition
that Petitioner's sexual offenses were symptoms of an emotional
condition which requires psychological therapy. In addition, the
court ordered Petitioner to pay the costs of psychological treatment
of the victims, acknowledging that Petitioner's criminal offenses
were psychologically damaging to the victims. 10/ The court also
placed Petitioner on proba-tion, showing a recognition that
Petitioner required continuing supervision. The court granted
Petitioner a work release, but placed restrictions on Petitioner's
dental practice. These restrictions show that the court perceived
Petitioner to be a threat to his patients. The court required that
Petitioner submit to inspection at his place of business without
notice, prohibited Petitioner from using nitrous oxide in his dental
practice, and required that he treat patients only during business
hours when an assistant is present. I.G. Ex. 10.
Following Petitioner's conviction for the criminal offenses of
forcible sexual abuse, a hearing was held before the state licensing
board regarding his licenses to practice dentistry and to administer
controlled substances in Utah. The seriousness of Petitioner's
criminal misconduct is also reflected in the fact that the state
licensing board determined that Petitioner's licenses to practice
dentistry and to administer controlled substances should be revoked.
I.G. Ex. 11. This revocation was stayed after Petitioner and the
state licensing board entered into an agreement which permits
Petitioner to practice dentistry on a restricted basis pending a
decision on Petitioner's appeal of the order of revocation. I.G.
Ex. 12.
It is evident from Petitioner's admissions of criminal misconduct
that he has committed, and is capable of committing, offenses that
pose a grave threat to the safety and welfare of others. It is
therefore reasonable to infer from Petitioner's admissions that he
is an untrustworthy individual with serious psychological problems.
The evidence, however, establishes that these admitted offenses did
not occur in isolation. Instead, they were part of a pervasive
pattern of similar misconduct which occurred over a lengthy period
of time. This evidence shows that Petitioner is capable of
repeatedly engaging in abusive behavior over a protracted period of
time, and it provides additional confirmation for a finding that he
is untrustworthy.
The record contains a transcript of the hearing before the state
licensing board held on June 7, 1989. During the course of that
hearing, Petitioner admitted that he sexually molested his twin
daughters from the time they reached the age of 12 until they were
16 years old. This is a period of four years, a lengthy period of
time. I.G. Ex. 21/148.
During the latter two years of the four year period, the incidents
of sexual abuse occurred at Petitioner's dental office as well as at
home. The later incidents of abuse in the dental office are
particularly chilling because Petitioner used drugs to isolate and
gain sexual access to his daughters. These actions were
premeditated, and they were calculated to impair the victims'
ability to defend themselves against Petitioner's sexual assaults.
I.G. Ex. 4, 14, 15, & 16.
The transcript of the Petitioner's hearing before the Utah State
licensing board contains extensive testimony by Petitioner in which
he describes the incidents of sexual molestation which occurred in
his dental office. Petitioner testified that on several occasions
when he sexually molested his daughters at his office, he
administered chloral hydrate in combination with nitrous oxide.
I.G. Ex. 21/169. Petitioner also testified that during the course
of his dental training he had been cautioned about the synergistic
effects of choral hydrate and nitrous oxide. I.G. Ex. 21/173.
Petitioner stated that after administering the anesthesia, he would
perform dental procedures on his daughters which were generally from
30 to 60 minutes in duration. Petitioner testified that there were
occasions when his daughters were unconscious for 45-60 minutes. On
some occasions when the sexual abuse occurred, Petitioner testified
that he had been able to dress his daughters before they awoke and
they were unaware of what occurred. On other occasions,
Petitioner's daughters awoke prematurely, and Petitioner
acknowledged that this was an "accident". Petitioner admitted that
he administered the anesthesia for the dual purposes of dental
treatment and facilitating the sexual assaults of his daughters.
I.G. Ex. 21/190-194.
The record contains evidence that an "exaggerated degree of
sedation" results when nitrous oxide and chloral hydrate are
administered together. I.G. Ex. 11/8. Petitioner, by his own
admission, purposely administered these medications in combination
with the intent to induce a deep level of sedation in his daughters
in order to obtain sexual access to them. Not only did he obtain
sexual access to his daughters without their consent, but he
intended to obtain sexual access to them without their knowledge.
This conduct leads to the inescapable conclusion that Petitioner is
manifestly untrustworthy. Petitioner has shown himself to be
capable of violating the fundamental trust inherent in both the
relationship between parent and child and the relationship between
health care provider and patient.
Petitioner also testified at the hearing before the Utah State
licensing board that he had not sexually abused any children other
than his twin daughters. I.G. Ex. 21/159. Other evidence rebuts
this assertion. Petitioner's former wife testified at the same
hearing that she had observed Petitioner engaging in sexual
misconduct with another daughter, then aged 18 months. I.G. Ex.
21/270; See also I.G. Ex. 13/4; Tr. 91. This testimony is troubling
because it is evidence that Petitioner has unnatural sexual
attractions to very young children which he is capable of acting
upon.
Petitioner's former wife also testified at the hearing before the
Utah State licensing board that two of her younger sisters reported
to her that Petitioner had engaged in kissing and other
inappropriate sexual activities when they were between the ages of
ten and fourteen. I.G. Ex. 21/270-271. This is disturbing
testimony because it shows a propensity on Petitioner's part to
engage in sexually inappropriate behavior with children who are
outside of his nuclear family.
It is also telling that Petitioner did not on his own initiative
seek help to end the sexual abuse of his twin daughters. The first
time that he received counseling for this problem was in 1986 after
his wife and daughters reported the sexual abuse to officials of
their church. The record shows that the church officials did not
report the abuse to the police at that time, but instead attempted
to counsel members of the family. These efforts were unsuccessful
because Petitioner admits that he continued the sexual assaults for
approximately a year after it came to the attention of the church
officials. I.G. Ex. 21/161, 272. This evidence is damaging to
Petitioner because it shows that Petitioner possessed an entrenched
resistance to stopping his criminal behavior, even in the face of
external pressures to do so. This refusal to change his behavior
even after he had been "discovered" is indicative of Petitioner's
capacity to engage in self-destructive and destructive behavior.
Petitioner did not stop the sexual abuse of his daughters until it
was reported to the police by a neighbor who learned about it from
one of Petitioner's daughters. I.G. Ex. 21/180, 186. He did not
seek professional psychological help until after he was charged with
forcible sexual abuse. I.G. Ex. 16/1. Thus, Petitioner sought to
correct his criminal behavior only when all the pressures of the
criminal justice system came to bear upon him.
D. The psychological evidence of record fails to establish that
Petitioner is trustworthy.
The record shows that Petitioner's attorney referred Petitioner to
Dr. Doris A. Read, a clinical psychologist, for a psychological
evaluation at the time he was charged with his criminal offenses.
Dr. Read evaluated Petitioner in March of 1988, and a report of that
evaluation is contained in the record. I.G. Ex. 16. This report
indicates that, at the time of the March 1988 evaluation, Petitioner
evinced a willingness to openly admit that he had sexual contact
with his twin daughters, but he had difficulty perceiving that this
conduct was inappropriate. Instead, Petitioner perceived his
daughters to be "mature ladies, not minors" who were active and
willing participants in a sexual relationship with him. He
described his relationship with one of his daughters as being "a
romance and not a perversion", and had difficulty characterizing his
sexual contacts with his daughters as being "forcible." Rather than
taking responsibility for his abusive behavior, Petitioner attempted
to shift responsibility for his molestations to his daughters. He
believed that they wanted a sexual relationship with him, and he
reported "falling for it".
This psychological report also indicates that Petitioner had
difficulty perceiving that his molestations could result in harm to
his daughters. Instead, Petitioner indicated that he believed that
one of his daughters was using the abuse as an "excuse for the other
problems she is having". According to the report, Petitioner
appeared to be greatly concerned about the consequences his abuse
would have on his career and his reputation and he showed relatively
little concern for the harm his abuse may have on his daughters.
This evidence shows that Petitioner is capable of being profoundly
narcissistic and self-centered, and that he is capable of building a
dangerously distorted psychological reality that conforms to how he
needs the world to be rather than to how it actually is. Petitioner
has demonstrated that he is an individual that is capable of
monumental denial of reality and that he is impaired in his ability
to perceive the consequences of his actions. Since Petitioner has
demonstrated that he is capable of being completely unaware of the
impact his actions have on others, it is difficult to trust his
ability to restrain himself from acting on impulses that could
result in harm to others.
Petitioner continued to be treated by Dr. Read for seven months,
until September 1988. Dr. Read subsequently testified at the
hearing before the state licensing board that Petitioner claimed
that he had no attraction to or sexual experience with non-sexually
mature children. In fact, Petitioner expressed repulsion for people
who have such an attraction. Based on these statements as well as
police reports made available to her, Dr. Read stated that, to her
knowledge, Petitioner had not sexually abused any children other
than his own daughters as they approached sexual maturity. Dr. Read
expressed the opinion that, based on this pattern of sexual abuse,
it is unlikely that Petitioner would go outside his family and abuse
children in his dental practice. Instead, Dr. Read opined that
Petitioner's history of sexual behavior and abuse were consistent
with that of a typical incest offender. She pointed out that
Petitioner reported that he was unhappy in his marriage, and she
theorized that he came to see his daughters as "pseudoadults" who
could meet his sexual and emotional needs which were not being met
in his marriage. Dr. Read concluded that while Petitioner may pose
a threat to other female children in his family as they approach
sexual maturity, she did not believe that he would abuse children
outside his family. I.G. Ex. 16/6-7; I.G. Ex. 21/53-60.
Dr. Read based her opinion that Petitioner is not a threat to
children in his dental practice on Petitioner's own reports of his
sexual proclivities. Although Petitioner avers that he is not
sexually attracted to young children, it is difficult to rely on
these representations in light of his demonstrated ability to delude
himself in self-serving ways. Dr. Read herself testified that
sexual offenders typically have little insight into their actions,
and they distort reality in order to justify their actions. I.G.
Ex. 21/138-139. Dr. Read also observed that Petitioner in
particular was unable to accurately perceive the nature and
seriousness of his behavior. Further doubt is cast on Petitioner's
claim that he is repulsed by sexual activity with young children in
light of his former wife's testimony that she observed him engaging
in sexual misconduct with his 18 month old daughter.
It is also significant that Dr. Read repeatedly stated both in her
written report and in the testimony before the Utah State licensing
board that it is impossible to state with certainty that Petitioner
is not a danger to children in his dental practice. Dr. Read stated
that it is "worrisome" that Petitioner used his professional office
and anesthesia as part of the sexual abuse pattern. In addition,
she stated that a psychological evaluation such as the one she
performed on Petitioner "cannot accurately predict whether someone
will engage in future abuse, or will regress under emotional strain
in the future." She therefore recommended that Petitioner should be
allowed to continue to practice dentistry under certain restrictions
designed to monitor his behavior. I.G. Ex. 16/6; I.G. Ex. 21/56.
Dr. Read also reported that during the seven months that she treated
Petitioner, he had begun to make some progress in what she stated
often is for sex offenders a slow process of breaking down patterns
of denial. She stated that Petitioner had begun to recognize the
impact his actions had on his children. In order to accelerate this
therapeutic process, Dr. Read referred Petitioner to the
Intermountain Sexual Abuse Treatment Center for more comprehensive
treatment which would include group therapy as well as individual
counseling sessions. I.G. Ex. 21/138-139.
Dr. Larry Fox, clinical director of the Intermountain Sexual Abuse
Treatment Center, subsequently treated Petitioner, and he testified
as to his findings and conclusions regarding Petitioner's
psychological condition at both the hearing before the Utah State
licensing board and the hearing before me. Dr. Fox testified that
he possesses a doctorate degree in counseling psychology and that he
has several years of experience in treating sex offenders. Tr. 186.
Dr. Fox also testified that Petitioner had made satisfactory
progress in his treatment, and that at the time of the hearing
before me, he was beginning to "phase out" Petitioner's therapy.
I.G. Ex. 21/221; Tr. 194.
Dr. Fox also reported on the results of a plethysmograph performed
on Petitioner. A plethysmograph is a test designed to determine the
sexual arousal patterns of male patients through measuring the
degree of penile erection to various sexual stimuli. I.G. Ex.
21/262. Dr. Fox testified that the results of this test showed that
Petitioner showed most sexual arousal to appropriate sexual stimuli
involving adult women, and that he showed substantial sexual arousal
to stimuli involving consenting 12 year old females. I.G. Ex.
21/218.
Dr. Fox expressed the opinion that even though the plethysmograph
showed that Petitioner was sexually aroused by 12 year old females,
he was of the opinion that Petitioner would not act on that arousal
and assault 12 year old females who were not his own children.
Dr. Fox agreed with Dr. Read's view that while Petitioner might pose
an increased threat to his own female children as they approach the
age of sexual maturity, Petitioner was unlikely to sexually abuse
children outside of his family who were his dental patients. In
view of this, Dr. Fox testified that five years would be an adequate
period of time to exclude Petitioner from participation in the
federally-funded health care programs. Dr. Fox based this opinion
on the fact that Petitioner did not have a history of abusing
patients that are not his children, and on his assessment of the
dynamics of Petitioner's family life as reported to him by
Petitioner. Dr. Fox set forth the theory that Petitioner's marital
discord combined with his daughter's nurturing behaviors created a
climate which operated to psychologically motivate him to engage in
incestuous behavior. I.G. Ex. 21/216, 240, 256, 264; Tr. 194.
Dr. Fox essentially agreed with the opinion expressed by Dr. Read,
and his opinion suffers from the same shortcoming of Dr. Read's
opinion. His theory explaining why he believed Petitioner was a
threat only to his own children was largely based on information
reported to him by Petitioner. Since Petitioner's perception of
reality is demonstrably unreliable, any conclusions based on those
perceptions is unreliable.
Dr. Fox admitted that his explanation for Petitioner's incestuous
behavior was only a working hypothesis, and he stated repeatedly
that he could provide no guarantees that Petitioner would refrain
from abusing children outside of his family in the course of his
dental practice. He, like Dr. Read, recommended that certain
restrictions be placed on Petitioner's dental practice to provide a
margin of safety to Petitioner's patients. I.G. Ex. 21/223-225.
E. An eight year exclusion in this case is not extreme or
excessive.
Petitioner contends at page seven of his post-hearing brief that the
imposition of an eight year exclusion in this case is "arbitrary and
capricious" because " there "was no reason or basis presented
. . .
as to why the exclusion should be for a longer time than five (5)
years". I disagree. I have evaluated the evidence of record before
me, and conclude that an eight year exclusion imposed against
Petitioner is reasonably related to the exclusion law's goal to
protect federally-funded health care program beneficiaries and
recipients from untrustworthy health care providers.
Petitioner was convicted of sexually abusing his daughters in the
course of providing them dental care. He perpetrated the criminal
offenses which formed the basis of his conviction under the guise of
his profession and with the assistance of anesthesia he had access
to because of his profession. Petitioner admitted that he sedated
his daughters for the dual purposes of performing dental procedures
on them and gaining sexual access to them. It is also clear from
Petitioner's admissions that he intended to gain sexual access to
his daughters without their consent or even their knowledge.
Petitioner's sexual abuse of his daughters in his dental office
occurred over a two year period, a lengthy period of time. In
addition, the abuse in his dental office was part of a larger
pattern of sexual abuse which had begun two years earlier when the
victims were as young as 12 years old. The record also shows that
Petitioner had great difficulty in recognizing that his behavior was
abusive and little appreciation for the harmful effects of his
actions. He did not, on his own initiative, seek help to overcome
his abusive behavior, and he stubbornly persisted in his conduct
even after it came to the attention of his wife and officials in his
church.
The evidence of record overwhelmingly demonstrates that Petitioner
is an individual who has been driven by compulsions and disturbed
psychological processes. It is reasonable to infer from the nature
of Petitioner's offenses, and from the circumstances under which
they occurred, that Petitioner is manifestly untrustworthy.
Therefore, a substantial period of time is necessary to establish
that Petitioner no longer poses a threat to federally-funded health
care programs and their beneficiaries and recipients.
Petitioner's conduct was not only merely unlawful, but it was the
type of conduct that has the potential for causing incalculable
damage to the well-being and psychological health of others.
Petitioner's dental practice is predominantly a pediatric practice.
I.G. Ex. 21/146. Petitioner has preyed upon children in the past.
It is likely that should Petitioner resume his abusive conduct in
the future, the victims of the conduct would be children. Children
are a vulnerable segment of the population. Their dependency on
adults impairs their ability to defend themselves against abusive
behavior. In addition, they are impressionable and are likely to
suffer emotional scars throughout their lifetime as a result of
abuse of this kind. It is reasonable to infer from the nature of
Petitioner's offenses that should Petitioner perpetrate similar
offenses against patients in his dental practice in the future,
there is a strong likelihood that those patients would be seriously
harmed. The misconduct engaged in by Petitioner poses a grave
threat to the welfare of the beneficiaries and recipients of
federally-funded health care programs. In view of the damage
Petitioner could cause should he perpetrate similar offenses against
patients of his in the future, a margin of safety should be built
into any exclusion imposed on Petitioner.
I recognize that the record contains expert testimony offered by
Petitioner's treating psychologists which suggests that Petitioner
would be unlikely to sexually abuse children outside of his
immediate family and therefore he would not be a danger to
beneficiaries and recipients of the federally-funded health care
programs. Petitioner's treating psychologists, however, consis-
tently qualified this assertion by acknowledging that they were
unable to guarantee that Petitioner would not sexually abuse
patients outside of his family in the future. Both of Petitioner's
treating psychologists recommended that Petitioner be allowed to
continue to practice dentistry only on the condition that he comply
with restrictions designed to protect the public. This leads to the
conclusion that Petitioner's treating psychologists did in fact
believe that Petitioner posed a threat to his patients, at least to
some degree. In view of the serious damage which can result from
sexual assaults, I find that an eight year exclusion is reasonable
if there is even a slight possibility that Petitioner will sexually
abuse dental patients outside of his immediate family. See Bernard
Lerner, M.D., DAB Civ. Rem. C-48 (1989); and Michael D. Reiner,
R.M.D., DAB Civ. Rem. C-197 (1990).
In reaching this conclusion, I am taking into account expert
testimony showing that Petitioner has cooperated in the treatment
process and that he has progressed to the point that his therapy had
begun to be phased out. However, in view of the absence of definite
assurances that Petitioner will not sexually abuse his dental
patients in the future, this evidence is not sufficient to persuade
me that an eight year exclusion is extreme or excessive. Had
Petitioner not progressed satisfactorily in a sexual offenders
treatment program, it might have been a reason to increase the
period of exclusion.
I am also aware that Petitioner has already suffered extensive
financial losses as a result of the related criminal and license
revocation proceedings, and that this exclusion may have a severe
financial impact on Petitioner. However, the remedial
considerations of the exclusion law must take precedence over the
financial consequences that an exclusion may have on Petitioner.
The evidence in this case provides strong justification for the
exclusion imposed by the I.G. An eight year exclusion is, in this
case, consistent with the purpose of protecting federally-funded
health care beneficiaries and recipients and it is not extreme or
excessive as a length of time necessary to establish that Petitioner
is no longer a danger to these beneficiaries and recipients.
CONCLUSION
Based on the evidence in this case and the law, I conclude the I.G.
properly excluded Petitioner from federally-funded health care
programs pursuant to section 1128(a)(2) of the Act, and that a
minimum period of exclusion of five years is mandated by federal
law. In addition, I conclude that the I.G.'s determination to
exclude Petitioner from participation in federally-funded health
care programs for eight years is reasonable. Therefore, I sustain
the exclusion imposed against Petitioner, and I enter a decision in
favor of the I.G.
________________________
Steven T. Kessel
Aministrative Law Judge
* * * Footnotes * * *
1. "State health care program" is defined by section
1128(h) of the Act to cover three types of federally-assisted
programs, including State plans approved under Title XIX (Medicaid)
of the Act. I use the term "Medicaid" hereafter to represent all
State health care programs from which Petitioner was excluded.
2. At the conclusion of the hearing, counsel for
Petitioner indicated that due to other work commitments, he would
need a generous amount of time to submit his post-hearing brief.
Counsel for the I.G. did not object to this request, and I gave the
parties 60 days from the date they received a copy of the transcript
of the hearing to file their post-hearing briefs. The I.G.
subsequently timely filed his post-hearing brief by October 1, 1990.
Petitioner requested several extensions of time to file his post-
hearing brief, and I received it on January 2, 1991. On February 8,
1991, the I.G. filed a reply.
3. The exhibits and transcript of the hearing will be
referred to as follows:
I.G.'s Exhibits I.G. Ex. (number)/(page)
Transcript Tr. (page)
4. See also H. G. Blankenship, DAB Civ. Rem. 67 (1989)
(In construing the language "related to" in the context of the
delivery of a program-related item or service under section
1128(a)(1) of the Act, the administrative law judge found that the
I.G. could use evidence extrinsic to the final judgment to establish
that criminal activities which formed the basis of the conviction
were related to the Medicaid program.)
5. I may consider such alleged criminal actions in
determining whether an exclusion in excess of the minimum mandatory
period would be extreme or excessive.
6. Facts developed by the licensing board might be
relevant in determining whether an exclusion in excess of the
minimum mandatory period would be extreme or excessive.
7. This is also the standard that Congress used in
making the legislative finding that providers who are convicted of
program-related offenses must be excluded for a minimum of five
years. In discussing the mandatory minimum five year exclusion for
convictions of program-related offenses, the Senate Finance
Committee stated in its report that five years is the minimum amount
of time necessary to provide the Secretary "with adequate
opportunity to determine whether there is a reasonable assurance
that the types of offenses for which the individual or entity was
excluded have not recurred and are not likely to do so." S. Rep.
No. 109, 100th Cong., 1st Sess. 5 (1987), reprinted in 1987 U.S.
Code Cong. & Admin. News 682, 686.
8. There are proposed regulations which, if adopted by
the Secretary, would establish his policy for exclusions imposed
pursuant section 1128. See 55 Fed. Reg. 12205 (April 2, 1990).
These proposed regulations have not been adopted. It would not be
appropriate for me to consider them as guidelines because they may
not be finally adopted in their current form. Additionally, it is
not clear that, assuming these proposed regulations are adopted,
they would apply retroactively to exclusion cases heard prior to the
date of their adoption. See Joyce Faye Hughey, DAB App. 1221
(1991).
9. I use the term "mitigating" with some trepidation
here, because I do not intend that it connote "mitigation" as used
in determining a criminal sentence. All of the factors considered
in evaluating the reasonableness of an exclusion must relate to the
question of trustworthiness, and not to punitive considerations.
Evidence which might serve to mitigate against imposition of a
punishment would not necessarily be relevant to the issue of
trustworthiness.
10. The charges to which Petitioner actually pled guilty
involve only one of Petitioner's daughters. The court, however,
referred to the "victims" of the offenses in its sentence.