I sustain the determination by the Inspector General (I.G.) to exclude Petitioner, Narendra M. Patel, M.D., from participating in the Medicare program and other federally financed health care programs for a period of ten years. I find that a basis exists to exclude Petitioner for a period of at least five years pursuant to section 1128(a)(2) of the Social Security Act (Act) inasmuch as Petitioner was convicted of a criminal offense relating to the abuse of a patient in connection with the delivery of a health care item or service. Furthermore, I find that the I.G. established the presence of aggravating factors in this case which, when measured against the mitigating factor established by Petitioner, show Petitioner to be so untrustworthy as to make reasonable a ten-year exclusion. The most telling of these aggravating factors is that Petitioner perpetrated a non-consensual sexual battery against a patient. 42 C.F.R. § 1001.102(b)(4).

Background

On October 30, 1998, the I.G. notified Petitioner that he was being excluded for a period of ten years pursuant to section 1128(a)(2) of the Act. Petitioner requested a hearing and the case was assigned to me for a hearing and a decision. The parties advised me that the case could be heard and decided based on their written submissions. The parties submitted briefs and proposed exhibits. The I.G. submitted nine proposed exhibits (I.G. Ex. 1 - I.G. Ex. 9). Petitioner submitted 12 proposed exhibits (P. Ex. 1 - P. Ex. 12). Petitioner requested oral argument. On September 2, 1999, I heard oral argument by telephone. Petitioner subsequently submitted a written transcript of the oral argument which had been prepared at Petitioner's expense. In a letter dated October 22, 1999, Petitioner noted a minor error in the transcript. I have made the correction requested by Petitioner, and I mark the corrected transcript as ALJ Ex. 1.

Petitioner objects to I.G. Ex. 5, I.G. Ex. 8, and I.G. Ex. 9. The I.G. objects to P. Ex. 2, P. Ex. 4, P. Ex. 5, P. Ex. 6, P. Ex. 11, and P. Ex. 12. I overrule all of the parties' objections to the proposed exhibits, and I am receiving into evidence I.G. Ex. 1 - I.G. Ex. 9 and P. Ex. 1 - P. Ex. 12. In light of its significance, below I specifically address Petitioner's objections to my receiving into evidence I.G. Ex. 5. The I.G. did not object to making the corrected transcript of the oral argument part of the record, and I accept ALJ Ex. 1 into the record. I base my decision in this case on the applicable law, the exhibits that I received into evidence, and the parties' arguments.

Issues

The issues in this case are whether:

Findings of fact and conclusions of law

I make findings of fact and conclusions of law (Findings) to support my decision in this case. I set forth each Finding below as a separate heading. I discuss each Finding in detail.

1. A basis exists to exclude Petitioner pursuant to section 1128(a)(2) of the Act.

Petitioner is a physician who resides in Dalton, Georgia. I.G. Ex. 7. In January 1997, a grand jury in Whitfield County, Georgia issued a special presentment against Petitioner. I.G. Ex. 2. The first count of the special presentment charged that, on or about August 20, 1996, Petitioner committed the criminal offense of sexual battery against an individual by intentionally making physical contact with the individual's breast. Id. at 2. While the special presentment used a complete name to refer to this individual, I will refer to her in this decision by the initials K.T. in order to protect her privacy.

On February 5, 1997, Petitioner entered a plea of not guilty to the special presentment. On June 16, 1997, Petitioner changed his plea to the first count of the special presentment from not guilty to nolo contendere. I.G. Ex. 2 at 1.

The I.G. asserts that Petitioner's nolo contendere plea to the first count of the special presentment constitutes a conviction of a criminal offense within the meaning of section 1128(a)(2) of the Act. Petitioner denies this assertion.

Section 1128(a)(2) of the Act provides for the exclusion of any individual:

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.

In order to establish a basis for excluding an individual pursuant to section 1128(a)(2), the I.G. must establish the presence of four elements. These are that: (1) the individual whose exclusion is sought must be "convicted" of a criminal offense under federal or State law; (2) the crime of which the individual is convicted must relate to neglect or abuse; (3) the neglect or abuse must be of a patient; and (4) the neglect or abuse must have been committed in connection with the delivery of a health care item or service.

The actual guilt or innocence of the individual who is convicted of an offense as is described in section 1128(a)(2) is not relevant to establishing the I.G.'s authority to exclude pursuant to that section. That is because the authority to impose an exclusion pursuant to section 1128(a)(2) of the Act derives from a conviction for the offense as described in that section and not from the individual's actual guilt or innocence of the conduct which is alleged as the basis for the criminal charges which led to the conviction.

I have analyzed the evidence of this case in the context of the applicable law to decide whether the I.G. established the presence in this case of the four statutory elements. I find that each element is established.

a. Petitioner was convicted of a criminal offense.

Petitioner's nolo contendere plea to the first count of the special presentment was a conviction within the meaning of the Act. The word "convicted" is defined at section 1128(i) of the Act. For purposes of an exclusion that is imposed pursuant to the Act a conviction includes any circumstance where a plea of guilty or nolo contendere has been accepted by a federal, State, or local court. Act, section 1128(i)(3).

Petitioner's nolo contendere plea was accepted by a Georgia State court. I.G. Ex. 2 at 3 - 4. I note that, under Georgia law, the nolo contendere plea that Petitioner entered carries with it the same consequences as does a guilty plea. I. G. Ex. 6 at 3 - 4.

b. Petitioner was convicted of a criminal offense relating to abuse.

The word "abuse" is not defined in section 1128(a)(2) of the Act. The setting of the word in the statute suggests that Congress intended that it be given its common and ordinary meaning. I take notice that the common and ordinary meaning of "abuse" includes the treatment in a harmful and offensive way by an individual of another individual.

Petitioner pled nolo contendere to sexual battery. I. G. Ex. 2. Sexual battery plainly constitutes harmful or offensive treatment of another individual by the perpetrator.

c. Petitioner was convicted of a criminal offense relating to abuse of a patient.

Petitioner argues that, even if he was convicted of a criminal offense relating to abuse, the record of his criminal case does not establish that the abuse involved a patient. It is true that neither the special presentment nor the court documents which record Petitioner's nolo contendere plea contains anything which establishes that K.T. was a patient.

See I.G. Ex. 2 at 2 - 4. However, another document which is part of the criminal proceeding against Petitioner establishes that K.T. was Petitioner's patient. The transcript of Petitioner's plea and sentencing hearing establishes that Petitioner was convicted of an offense relating to abuse of a patient. I.G. Ex. 6. The judge who accepted Petitioner's plea explicitly asked Petitioner whether K.T. was a patient. I.G. Ex. 6 at 4. Petitioner acknowledged that K.T. was his patient. Id.

d. The abuse of which Petitioner was convicted occurred in
connection with the delivery of a health care item or service.

Petitioner contends that there is nothing in the record of his indictment or his nolo contendere plea which establishes that he was convicted of an offense relating to abuse committed in connection with the delivery of a health care item or service. Petitioner argues that the fact that K.T. may have been his patient is not, in and of itself, sufficient to establish that the sexual battery of which Petitioner was convicted occurred in connection with the delivery of a health care item or service.

I agree with Petitioner that the official record of his indictment and plea do not document the setting in which his crime occurred. However, I find that I may infer reasonably from evidence that is extrinsic to the official record that Petitioner's crime was committed in connection with the delivery of a health care item or service.

The record of Petitioner's indictment for sexual battery and subsequent conviction contains no evidence which establishes explicitly that Petitioner's offense was committed in connection with the delivery of a health care item or service. The first count of the special presentment describes a sexual battery but it does not recite the setting of the sexual battery. I.G. Ex. 2 at 2. The court record of Petitioner's nolo contendere plea does not record the setting of the sexual battery. Id. at 3 - 4. The transcript of Petitioner's plea and sentencing contains an admission by Petitioner that K.T. was his patient but it does not document that the sexual battery took place in the course of, or was related to, the delivery of a health care item or service by Petitioner to K.T. I.G. Ex. 6 at 4.

The I.G. contends that there is evidence which is extrinsic to the record of Petitioner's indictment and conviction that establishes that Petitioner's offense was committed in connection with the delivery of a health care item or service. This evidence consists of a notarized statement authored by K.T. I.G. Ex. 5. K.T.'s statement is dated August 21, 1996, the day after the date on which Petitioner engaged in the conduct which is the basis for his conviction. I.G. Ex. 5.

K.T. addressed her statement to a physician who was associated with the Composite State Board of Medical Examiners of the State of Georgia (Georgia Board of Medical Examiners). Id.; see I.G. Ex. 8. The statement describes an incident of sexual battery of K.T. by Petitioner occurring on August 20, 1996 that is related to the delivery of a health care item or service. K.T. asserts that she had an appointment with Petitioner on that date. Id. She avers that, in the course of examining her, Petitioner placed his mouth on her breast. Id.

Petitioner asserts that I.G. Ex. 5 is inadmissible on the question of whether a basis exists to exclude Petitioner. Petitioner objects to the admissibility of I.G. Ex. 5 on the grounds that it is not credible. Petitioner asserts that this document is not credible because it was not taken under oath under penalty of perjury, and that Petitioner had no opportunity to test the veracity of the statement by confronting and cross-examining K.T. in the course of the underlying criminal proceedings. While it is true that there is no evidence that Petitioner has confronted and cross-examined K.T. in either the criminal proceeding or in the proceeding before the Georgia Board of Medical Examiners, he did have the opportunity to test the veracity of K.T.'s statement in this tribunal by requesting a subpoena of K.T. and confronting K.T. in an in-person hearing before me.

Petitioner chose not to do this. Petitioner's objection to I.G. Ex. 5 on the grounds that it is not credible is without merit in light of the fact that Petitioner did not avail himself of the opportunity to test the credibility of I.G. Ex. 5 in a hearing before me. Petitioner argues that there is nothing of record in this case to show that I.G. Ex. 5 was made part of the record which resulted in the issuance of the special presentment against Petitioner and which led to Petitioner's plea of nolo contendere to the first count of that special presentment. Petitioner argues that K.T. sent her statement to the Georgia Board of Medical Examiners and not to the grand jury that indicted Petitioner. Nor, according to Petitioner, does I.G. Ex. 5 or anything else in evidence establish that the grand jury knew of all of the facts alleged by K.T. and that the grand jury based its special presentment on those facts.

I addressed the issue of when extrinsic evidence is admissible on the question of whether a basis exists for an exclusion under section 1128(a)(2) of the Act in Norman C. Barber, D.D.S., DAB CR123 (1991). In that case, I held that limited extrinsic evidence is admissible to decide the issue of whether the statutory elements for a section 1128(a)(2) exclusion are present in the circumstance where a criminal complaint and a conviction do not, on their face, reveal all of the facts necessary to decide whether the elements are present. The distinction which I drew in Barber – which I find to be applicable here as well – was between extrinsic evidence that was part of the process that resulted in a conviction and extrinsic evidence that was unrelated to the criminal process.

Evidence which tends to show that a sexual assault took place in a specific setting such as the delivery of health care is not per se admissible on the issue of whether the excluded individual was convicted of an assault that was related to the delivery of a health care item or service. The authority to exclude pursuant to section 1128(a)(2) of the Act derives from a conviction and not from the underlying facts which relate to the conduct that might be the basis for a conviction. In order to be relevant to the issue of authority to exclude, evidence which tends to show that a sexual assault took place in a specific setting must be evidence which is part of the process that led to the excluded individual's conviction. If it is not part of that process, then the evidence is not relevant to the excluded individual's conviction and is not admissible on the issue of whether the authority exists to exclude that individual. As I held in Barber:

DAB CR123 at 11 - 12 (footnote omitted).

In order to be admissible on the issue of whether a basis exists to exclude Petitioner, the statements in I.G. Ex. 5 must address the statutory elements for an exclusion and the allegations in that statement must have been known to the grand jury which issued the special presentment that led to Petitioner's nolo contendere plea. If the facts as alleged in I.G. Ex. 5 were known to the grand jury when it issued its special presentment, and if those facts were unstated but implied in the grand jury's special presentment against Petitioner, then the allegations contained in I.G. Ex. 5 fairly may be concluded to have been part of the process leading to Petitioner's conviction. On the other hand, if the grand jury did not know about the facts as alleged in I.G. Ex 5, and if those facts were not implied in the grand jury's special presentment, then those facts were not part of the process and I.G. Ex. 5 is not admissible on the issue of whether the statutory elements for an exclusion pursuant to section 1128(a)(2) are present here.

I find I.G. Ex. 5 to be relevant to the issue of whether Petitioner was convicted of an offense related to the delivery of a health care item or service and, therefore, admissible on the issue of whether the I.G. has the authority to exclude Petitioner. The I.G. did not prove that I.G. Ex. 5 was shown to the grand jury which issued the special presentment against Petitioner. But, a reasonable inference can be drawn from the face of I.G. Ex. 5 that either the exhibit was shown to the grand jury or that all of the facts that were alleged by K.T. in that exhibit were made known to the grand jury. K.T.'s assertion that a sexual battery was perpetrated against her by Petitioner during the course of providing care is an implied aspect of the grand jury's special presentment.

I infer that the grand jury must have known about K.T.'s additional allegation that the sexual assault occurred during the course of a medical examination of K.T. from the high degree of coincidence between the facts averred by K.T. in her statement and those which are averred by the grand jury in its special presentment. Both K.T.'s statement and the grand jury's special presentment assert that: (1) Petitioner sexually abused K.T.; (2) on August 20, 1996; and, (3) the assault consisted of Petitioner placing his mouth on K.T.'s breast without K.T.'s consent. I.G. Ex. 2 at 2; I.G. Ex. 5. The only assertion in K.T.'s statement that is not in the grand jury's special presentment is K.T.'s assertion that the sexual abuse occurred in the context of Petitioner examining K.T.

It is likely that the grand jury omitted to mention that the sexual battery of K.T. occurred during the course of Petitioner's providing care because that fact was not necessary to state a basis for indicting Petitioner. However, the setting in which the sexual battery occurred would have been a necessary element of any criminal case against Petitioner. The special presentment was not drafted as a bill of particulars that was intended to describe every evidentiary element of the case against Petitioner. It stated in minimal format the essentials of the criminal charges against him. I.G. Ex. 2 at 2. But, ultimately, had the case against Petitioner been tried, evidence of the setting in which the sexual battery occurred would have been introduced into evidence.

2. An exclusion of ten years is reasonable.

An exclusion that is imposed pursuant to section 1128(a)(2) of the Act must be for a period of at least five years. Act, section 1128(c)(3)(B). In this case, the I.G. determined to exclude Petitioner for a period of ten years.

Section 1128 of the Act, of which section 1128(a)(2) is a subpart, is a remedial statute. The remedial intent of an exclusion is to protect federally funded health care programs, and the beneficiaries and recipients of those programs, from an individual who has demonstrated by his or her conduct that he or she is untrustworthy. Ultimately, an exclusion will be found to be reasonable if can be shown to accomplish the statutory intent.

The Secretary has published regulations which establish the evidentiary criteria which must be used to determine what is a reasonable length for an exclusion in any case. In the case of an exclusion imposed pursuant to section 1128(a)(2) of the Act, these criteria are set forth at 42 C.F.R. § 1001.102. The criteria are described in the regulation as consisting of aggravating and mitigating factors. 42 C.F.R. § 1001.102(b), (c). These aggravating and mitigating factors comprise the exclusive factors that may be considered in determining the length of an exclusion to be imposed pursuant to section 1128(a)(2). Evidence which does not relate to an aggravating factor or to a mitigating factor is not relevant to determining the length of an exclusion.

An administrative hearing that is conducted pursuant to section 1128 of the Act and to regulations contained in 42 C.F.R. Parts 1001 and 1005 is a de novo hearing. Act, section 205(b); Howard Schreibstein, D.P.M., DAB CR517 (1998). Where the length of an exclusion is at issue, the administrative law judge must decide independently from any determination that has been made by the I.G. whether the exclusion is unreasonable in light of evidence that is relevant to the factors pertaining to the length of the exclusion as are set forth in applicable regulations. An administrative law judge will sustain an exclusion as being reasonable if, after independently reviewing the evidence pertaining to the factors set forth in the regulations, he or she finds that the exclusion falls within a reasonable range of possible exclusions that might have been imposed by the I.G. An exclusion will be found to fall within a reasonable range of possible exclusions if there is not a substantial difference between what the administrative law judge might independently decide to be reasonable and what the I.G. has determined to be reasonable.

The regulations which govern the length of exclusions do not prescribe the weight that must be given to evidence which relates to aggravating or mitigating factors. They merely describe what evidence is relevant. Ultimately, the weight that is assigned to any evidence which is relevant to the issue of the length of an exclusion depends on what that evidence shows about the trustworthiness of an excluded individual to provide care or to claim reimbursement from federally funded health care programs.

I have independently evaluated the evidence in this case which pertains to the aggravating and mitigating factors described in 42 C.F.R. § 1001.102. I conclude that this evidence establishes Petitioner to be a highly untrustworthy individual. Based on that, I find an exclusion of ten years to be reasonable.

a. This case is governed by the version of 42 C.F.R. §
1001.102 which became effective on October 2, 1998.

The Secretary published a revised version of 42 C.F.R. § 1001.102 which became effective on October 2, 1998. The revised version identified aggravating factors at 42 C.F.R. § 1001.102(b) which are in addition to those that were contained in the previous version of the regulation.

Petitioner was excluded by the I.G. on October 30, 1998, after the effective date of the revised regulation. However, the Georgia court accepted Petitioner's nolo contendere plea – which is the basis for the exclusion that the I.G. imposed against Petitioner – on June 16, 1997. Thus, Petitioner was convicted prior to the effective date of the revised regulation and excluded after the effective date of the revised regulation.

The timing of Petitioner's conviction, his exclusion, and the effective date of the new regulation, raises the question of which version of 42 C.F.R. § 1001.102 governs this case. The I.G. argues that the case is governed by the version of the regulation which became effective on October 2, 1998. Petitioner argues that the case is governed by the prior version of the regulation.

The question of which version of 42 C.F.R. § 1001.102 governs is not an academic question because, in this case, the existence of aggravating factors depends on the version which governs. The version of 42 C.F.R. § 1001.102 which became effective on October 2, 1998 contains an aggravating factor which applies explicitly to cases involving convictions for crimes related to abuse or neglect. 42 C.F.R. § 1001.102(b)(4). This factor was not present in the prior version of the regulation.

I decide that this case is governed by the version of 42 C.F.R. § 1001.102 that became effective on October 2, 1998. I do so for the following reasons.

Petitioner also points out that the revised regulation was promulgated several months after he received his initial notice of proposed exclusion dated April 10, 1998. He argues that the revised regulation should not apply to his case because it unfairly burdens him with issues as to which he was not given notice in the I.G.'s initial notice letter. While it is true that the revised regulations had not been issued as of the date of the April 10, 1998 initial notice, it is plain that the revised regulation was in effect at the time the final notice of exclusion was issued on October 30, 1998. Petitioner's argument that the revised regulation does not apply to his case because the notice was defective fails because the final notice fully notified Petitioner that the I.G. was relying on the revised regulation in reaching its exclusion determination.

b. The I.G. proved the presence of two aggravating factors.

The I.G. asserts that there are two aggravating factors present in this case. These are that:

The weight of the evidence establishes that both of these factors are present in this case.

i. The act that resulted in Petitioner's conviction
consisted of a non-consensual sexual act.

The I.G. contends that Petitioner engaged in both a pattern of sexual abuse and that the act which resulted in Petitioner's conviction consisted of a non-consensual sexual act. I conclude that there is not credible evidence in the record of this case to prove that Petitioner engaged in a pattern of sexual abuse. However, there is credible evidence, consisting of Petitioner's admission, that the act that resulted in his conviction consisted of a non-consensual sexual act.

It is not necessary for the I.G. to prove both a pattern of sexual abuse and that Petitioner perpetrated a non-consensual sexual act in order to establish the presence of an aggravating factor. Proof of either a pattern of sexual abuse or perpetration of a non-consensual sexual act is sufficient to establish the presence of an aggravating factor as is described in 42 C.F.R. § 1001.102(b)(4).

The evidence that the I.G. relies on as proof that Petitioner engaged in a pattern of sexual abuse consists of an order of summary suspension of Petitioner's license to practice medicine that was issued by the Georgia Board of Medical Examiners dated July 11, 1997. I.G. Ex. 8. The Georgia Board of Medical Examiners recites as one of the reasons for issuing its order that it received information and evidence regarding eight other female patients of Petitioner in addition to K.T. Id. at 2. This evidence, according to the Georgia Board of Medical Examiners:

Id.

I do not find this evidence to be credible proof that Petitioner engaged in a pattern of sexual misconduct. Petitioner has admitted to none of the aforesaid allegations. See I.G. Ex. 4 at 1. The evidence on which the Georgia Board of Medical Examiners relied to assert that Petitioner engaged in a pattern of sexual abuse consists of untested and anonymous allegations. None of the information or evidence on which the Georgia Board of Medical Examiners relied to make its allegation of a pattern of sexual abuse has been made a part of the record of this case. The identities of the eight patients who are referred to by the Georgia Board of Medical Examiners are not part of the record of this case either. Moreover, Petitioner denies the allegations of sexual misconduct that were made about the eight patients other than K.T. P. Ex. 11.

On the other hand, there is credible and persuasive evidence that Petitioner perpetrated abuse consisting of a non-consensual sexual act. Petitioner admitted as much when he entered his nolo contendere plea to the first count of the special presentment. His admission is contained in the following colloquy between Petitioner and the judge who accepted Petitioner's plea:

I.G. Ex. 6 at 4.

The I.G. has offered persuasive evidence that Petitioner has been the subject of adverse actions before State regulatory agencies which result directly from Petitioner's sexual abuse of K.T. These adverse actions include the action taken by the Georgia Board of Medical Examiners against Petitioner's Georgia State license to practice medicine. I.G. Ex. 4; I.G. Ex. 8. These adverse actions also include a disciplinary action instituted against Petitioner's license to practice medicine in California by the Division of Medical Quality of the Medical Board of California (California State Medical Board). I.G. Ex. 9. The consent order which concluded the disciplinary proceedings against Petitioner before the California State Medical Board expressly refers to Petitioner's nolo contendere plea in Georgia to a charge of sexual battery. Id. at 4.

c. Petitioner proved the presence of a mitigating factor.

Petitioner proved the presence of a mitigating factor as is described at 42 C.F.R. § 1001.102(c)(1). He demonstrated that he was convicted of fewer than three misdemeanor offenses and that his offenses caused no financial loss to Medicare or to State health care programs.

Petitioner was convicted of a single misdemeanor offense under Georgia law. I.G. Ex. 6 at 3. His crime was not of a financial nature. Nor did it cause any financial consequences to Medicare or to State health care programs. The I.G. argues that the mitigating factor that is described at 42 C.F.R. § 1001.102(c)(1) applies only to financial offenses for which exclusion may be imposed pursuant to sections 1128(a)(1) and (a)(3) of the Act. The I.G. argues that this is apparent because the portion of the regulation which refers to financial loss plainly is written to address program-related crimes of a financial nature.

I disagree with the I.G.'s characterization of 42 C.F.R. § 1001.102(c)(1) as applying only to "financial" offenses. It is possible to read 42 C.F.R. § 1001.102(c)(1) as applying only to program-related crimes of a financial nature. However, it is also possible to read this section as applying to all crimes which fall under sections 1128(a)(1), (a)(2), and (a)(3) of the Act. Some crimes that result from neglect or abuse of a patient may indeed have a financial impact on a federally-funded health care program. For example, if a provider neglects to provide care to a patient but then claims reimbursement from Medicare for a service that he or she did not provide, that provider may be charged with a crime that is related to "neglect" that falls under section 1128(a)(2) of the Act. But still, the crime had a financial impact. Therefore, it is consistent with the plain language of the regulation that any crime which falls within the ambit of section 1128(a) of the Act may be evaluated pursuant to 42 C.F.R. § 1001.102(c)(1) to determine whether a mitigating factor exists.

Moreover, where the Secretary has decided that a factor should be applicable only to a certain type of offense, she has specifically said so in the regulation. The Secretary has seen fit to limit the factor that is identified as an aggravating factor at 42 C.F.R. § 1001.102(b)(4) only to convictions involving patient abuse or neglect. She did not draw such a distinction with the mitigating factor that is described in 42 C.F.R. § 1001.102(c)(1).

d. Petitioner did not prove the presence of any other mitigating factor.

Petitioner asserts that he established the presence of an additional mitigating factor. That is the mitigating factor that is described at 42 C.F.R. § 1001.102(c)(2). The regulation states this mitigating factor as follows:

Petitioner argues that the judge who accepted Petitioner's nolo contendere plea determined that Petitioner had a mental or emotional condition that reduced Petitioner's culpability for his crime. For this assertion, Petitioner relies on the official record of the disposition of Petitioner's criminal case and on the transcript of Petitioner's plea and sentencing. I.G. Ex. 2; I.G. Ex. 6.

I am not persuaded by Petitioner's argument or on the evidence relied on by Petitioner that the judge who accepted Petitioner's nolo contendere plea found that Petitioner's culpability was reduced due to a mental or emotional condition. Petitioner's sentence included the requirement that Petitioner receive treatment for his "behavioral disorders." I.G. Ex. 2 at 4. That condition of sentencing is stated also in the transcript of Petitioner's plea and sentencing. I.G. Ex. 6 at 6. However, at no place in the record is there any finding that Petitioner's culpability was reduced as a consequence of his suffering from a mental or emotional condition.

e. Additional "mitigating" evidence that Petitioner offered is not
relevant to deciding whether a ten-year exclusion is reasonable.

As I discuss above, the aggravating and mitigating factors that are set forth at 42 C.F.R. § 1001.102 describe completely the evidence which may be considered in deciding the trustworthiness of an excluded individual. Evidence which does not relate to an aggravating or to a mitigating factor may not be considered as evidence of the excluded individual's trustworthiness to provide care. Even evidence which would tend to show that an individual is "trustworthy" or "untrustworthy" in common parlance is not relevant to deciding whether an exclusion is reasonable if that evidence does not relate to one of the aggravating or mitigating factors that is described at 42 C.F.R. § 1001.102.

Petitioner has offered evidence which relates to his trustworthiness in common parlance but which does not relate to any of the mitigating factors that is described at 42 C.F.R. § 1001.102. For that reason, I find this evidence to be irrelevant to deciding whether a ten-year exclusion of Petitioner is reasonable. This evidence includes the following.

f. A ten-year exclusion is reasonable based on a weighing of the evidence that
relates to the aggravating and mitigating factors that are present in this case.

I have considered the evidence which relates to the two specific aggravating factors that the I.G. established and the one mitigating factor that Petitioner established. I conclude that this evidence establishes Petitioner to be highly untrustworthy to provide care to beneficiaries and recipients of federally funded health care programs. For this reason, I find a ten-year exclusion to be reasonable.

The most persuasive evidence in this case is Petitioner's admission that he sexually abused a patient. I.G. Ex. 6 at 4. That evidence relates to the first aggravating factor established by the I.G. that Petitioner engaged in a non-consensual sexual abuse of a patient. 42 C.F.R. § 1001.102(b)(4). When an individual submits to an examination by a health care provider that individual is highly vulnerable to abusive conduct. In the normal course of the examination, the individual must submit to the most intimate conceivable scrutiny. The patient must rely on the provider's judgment and good faith. The doctor-patient relationship embodies a bond of trust that transcends all but the closest of personal relationships.

I am aware that a ten-year exclusion is a very lengthy exclusion. However, I find it not to be unreasonable in light of the egregiousness of Petitioner's conduct and given even a slight possibility that such conduct might recur at some time in the future. A ten-year exclusion is reasonable given the way in which Petitioner breached his relationship of trust with K.T. Petitioner's actions might damage irretrievably the doctor-patient relationship between Petitioner and any of his patients. Petitioner's conduct towards K.T. suggests that others might be vulnerable if similarly situated. Given Petitioner's conduct, his continued participation in federally funded health care programs would be a legitimate reason for beneficiaries and recipients to suspect the integrity of both Petitioner and the programs themselves.

I have considered evidence relating to the other aggravating factor established by the I.G. The State actions against Petitioner show that other entities consider Petitioner to be untrustworthy. However, I do not find these actions to provide a strong additional reason to exclude Petitioner for ten years inasmuch as they derive essentially from Petitioner's conviction. The facts relating to the State administrative actions against Petitioner are not strong independent evidence of Petitioner's lack of trustworthiness. I note, however, that the I.G. could have excluded Petitioner pursuant to section 1128(a)(4) of the Act based on the suspension imposed in Georgia or on Petitioner's surrender of his license in California. And, the I.G. could maintain against Petitioner the exclusion imposed under section 1128(a)(4) at least until Petitioner regained his license to practice medicine in California.

Nor do I find that evidence relating to the mitigating factor established by Petitioner shows Petitioner to be more trustworthy than I find him to be. The fact that Petitioner was convicted of a misdemeanor and not a felony does bear on the seriousness of Petitioner's crime. That is to say that, in Georgia, there evidently are crimes involving sexual battery that are more serious than the offense to which Petitioner pleaded. But, the facts of Petitioner's case which show that Petitioner perpetrated a non-consensual sexual act against a patient are sufficient to establish the degree of Petitioner's untrustworthiness whether or not these facts justified a misdemeanor conviction of Petitioner.

Steven T. Kessel
Administrative Law Judge