SUBJECT:

Cheryl Elizabeth Richardson, M.D.,

Petitioner,

The Inspector General

This case is before me pursuant to a request for hearing filed on September 28, 1999, by Cheryl Elizabeth Richardson, M.D. (Petitioner).

By letter dated July 30, 1999, the Inspector General (I.G.) notified Petitioner that she was being excluded from participation in the Medicare, Medicaid, and all other federal health care programs as defined in section 1128B(f) of the Social Security Act (Act) for a minimum period of 10 years. The I.G. informed Petitioner that her exclusion was imposed under section 1128(a)(1) of the Act, due to her conviction of a criminal offense (as defined in section 1128(i) of the Act) related to the delivery of an item or service under the Medicaid program.

The parties, through their respective counsel, agreed that the case could be decided based on written arguments and documentary evidence and that an in-person evidentiary hearing was unnecessary. Each party submitted written briefs and proposed exhibits. The I.G. filed nine proposed exhibits on December 23, 1999. These have been identified as I.G. Exhibits (I.G. Exs.) 1-9. Petitioner filed four proposed exhibits on December 21, 1999. These have been identified as Petitioner Exhibits (P. Exs.) 1-4. On December 22, 1999, the I.G. filed a motion objecting to Petitioner's exhibits. For the reasons outlined in my Ruling of January 11, 2000, I denied the I.G.'s objection. That Ruling is incorporated here by reference. On February 28, 2000, Petitioner requested leave to supplement her final exhibit list with the transcript from the criminal sentencing hearing which served as the basis for her exclusion. I granted Petitioner's unopposed motion.⁽¹⁾ I am, therefore, admitting I.G. Exs. 1-9 and P. Exs. 1-5 into evidence.

It is my decision to sustain the determination of the I.G. to exclude Petitioner, Cheryl Elizabeth Richardson, M.D., from participating in the Medicare, Medicaid, and all other federal health care programs, for a period of 10 years. I base my decision on the documentary evidence, the applicable law and regulations, and the arguments of the parties. It is my finding that Petitioner was convicted of a criminal offense related to the delivery of an item or service under the Medicaid program. Additionally, I find that her 10-year exclusion is not unreasonable.

ISSUES

1. Whether the I.G. had a basis upon which to exclude Petitioner from participation in the Medicare, Medicaid, and all other health care programs.

2. Whether the 10-year exclusion imposed by the I.G. is unreasonable.

Section 1128(a)(1) of the Act authorizes the Secretary of the U.S. Department of Health and Human Services (Secretary) to exclude from participation in any federal health care program (as defined in section 1128B(f) of the Act), any individual convicted under federal or State law, of a criminal offense relating to the delivery of a health care item or service.

An exclusion under section 1128(a)(1) of the Act must be for a minimum period of five years. Section 1128(c)(3)(B) of the Act. Aggravating factors can serve as a basis for lengthening the period of exclusion. 42 C.F.R. § 1001.102(b). If aggravating factors justify an exclusion longer than five years, mitigating factors may be considered as a basis for reducing the period of exclusion to no less than five years. 42 C.F.R. § 1001.102(c).

Pursuant to 42 C.F.R. § 1001.2007, a person excluded under section 1128(a)(1) of the Act may file a request for hearing before an administrative law judge (ALJ).

The findings of fact and conclusions of law noted below in bold face are followed by a discussion of each finding.

1. Petitioner's conviction of a criminal offense related to the delivery of an item or service under the Medicaid program justified her exclusion by the I.G. from participation in the Medicare, Medicaid, and all other federal health care programs.

Petitioner is a physician who practiced psychiatry in the State of Mississippi. On or about August 14, 1996, she directed her staff to submit a claim to the Mississippi Division of Medicaid representing that she had provided approximately one hour a day of in-patient individual medical psychotherapy to a Medicaid patient for 22 consecutive days, from June 17, 1996 through July 8, 1996. This claim resulted in payment to Petitioner from the Mississippi Division of Medicaid in the amount of $1,623.60. Petitioner made this claim knowing the same to be false, inasmuch as it was not based on services actually rendered. This false claim prompted the Attorney General of the State of Mississippi to file a Criminal Information⁽²⁾ against Petitioner on January 11, 1999, pursuant to Section 43-13-221 of the Mississippi Code of 1972, as amended. On that same date, Petitioner appeared before the Circuit Court of the First Judicial District of Hinds County, Mississippi, and entered a plea of guilty to a charge of Medicaid Fraud. She specifically admitted to presenting, on August 14, 1996, a false claim for certain services provided to a Medicaid recipient knowing the claim to be false, fictitious, and fraudulent, because those services were not provided. I.G. Exs. 4, 5.

On April 2, 1999, Petitioner received a five-year suspended sentence and two years of supervised probation. She was also ordered to pay a $30,000 fine, and barred from the practice of psychiatry in the State of Mississippi for a period of one year. I.G. Ex. 8. It has been established, and Petitioner concedes, that she was convicted of a criminal offense related to the delivery of an item or service under a State health care program. I.G. Exs. 5, 8.

2. Petitioner's exclusion for a period of 10 years is not unreasonable.

On July 30, 1999, the I.G. notified Petitioner that she was being excluded from participation in the Medicare, Medicaid, and all federal health care programs for a minimum period of 10 years. I.G. Ex. 1. That action was taken pursuant to section 1128(a)(1) of the Act due to her conviction as defined in section 1128(i). An exclusion under section 1128(a)(1) must be for a minimum mandatory period of five years as set forth in section 1128(c)(3)(B) of the Act:

[s]ubject to subparagraph (G), in the case of an exclusion under subsection (a), the minimum period of exclusion shall not be less than five years . . .

When the I.G. imposes an exclusion for the mandatory five- year period, the issue of the length of such exclusion is not considered. 42 C.F.R. § 1001.2007(a)(2). Aggravating factors that justify enlarging the exclusion period may be taken into account, but the five-year term will not be shortened. Petitioner admits that she was convicted of a criminal offense related to the delivery of an item or service under the Mississippi Medicaid program, and that the I.G. was required to exclude her pursuant to section 1128(a)(1) of the Act for at least five years. Consequently, the only issue in controversy is whether the 10-year exclusion imposed and directed against Petitioner is unreasonable.

The I.G. has discretion to impose an exclusion of more than five years in appropriate circumstances. In Petitioner's case, the I.G. added five years to the statutory five year minimum.

The aggravating factors that the I.G. may consider in lengthening a period of exclusion are found at 42 C.F.R. § 1001.102(b). In the case at hand, the I.G. contends that a basis exists for enlarging the period of exclusion in view of these two factors:

1. The acts resulting in Petitioner's conviction or similar acts resulted in a loss to a State health care program of more than $1,500;

2. Petitioner has a prior criminal, civil, or administrative sanction record.

With regard to the first factor, 42 C.F.R. § 1001.102(b)(1) provides for enlarging the period of exclusion if "the acts resulting in the conviction, or similar acts (emphasis added), resulted in financial loss to a government program or to one or more entities of $1,500.00 or more." In a civil proceeding brought by the State of Mississippi through its Medicaid Fraud Control Unit, Petitioner confessed to owing $223,474 to the Division of Medicaid, and agreed to make restitution. A consent judgment was issued to that effect on January 25, 1999. I.G. Ex. 7. The recovery action by the State of Mississippi arose from acts similar to those which resulted in the criminal charges against Petitioner and led to Petitioner's guilty plea on January 11, 1999. At that time, after plea bargaining, Petitioner pled guilty to submitting and being paid for fraudulent Medicaid claims in the amount of $1,623.60. I.G. Exs. 4, 5.

Petitioner does not dispute the existence of an aggravating factor under 42 C.F.R. § 1001.102(b)(1) and concedes that she engaged in crimes resulting in financial loss to the Mississippi Medicaid program in excess of $1,500. Petitioner's reply brief in opposition to the I.G.'s 10-year exclusion (Petitioner's reply brief), paragraph 14, at 4. However, Petitioner asserts that this is the only aggravating factor present in this case. Petitioner contends that the other aggravating factor claimed by the I.G., based on 42 C.F.R. § 1001.102(b)(6), is inapplicable in her case because she does not have a "prior criminal, civil or administrative sanction record." Petitioner claims that the November 19, 1998 Consent Order that she entered into with the Mississippi State Board of Medical Licensure (State Board) does not constitute an administrative record. The sole aggravating factor, Petitioner argues, is offset by mitigating circumstances that reduced her culpability, because she had a mental condition during the commission of the crime. 42 C.F.R. § 1001.102(c)(2).

In sum, Petitioner opposes the reasonableness of the length of the exclusion based on three arguments:

1. The November 19, 1998 Consent Order was not a "sanction;"

2. The November 19, 1998, Consent Order was not a "prior" sanction;

3. Petitioner had a mental condition during the commission of the offense that reduced her culpability.

Petitioner contends that the Consent Order of November 19, 1998, does not fit the definition of a sanction.⁽³⁾ Furthermore, she entered into the Consent Order solely to avoid disciplinary proceedings before the State Board. I find Petitioner's reasoning to be faulty.

An investigation by the State Board found that Petitioner had prescribed controlled substances and other drugs having addiction-forming and addiction-sustaining liability otherwise than in the course of her legitimate professional practice. It was further determined that Petitioner's certificate to practice medicine in the State of Mississippi had lapsed due to her failure to renew it. I.G. Ex. 2, at 2.

In lieu of being subjected to disciplinary proceedings before the State Board, on November 14, 1998, Petitioner agreed never to seek renewal of her license to practice medicine in Mississippi. I.G. Ex. 2. The Consent Order signed by Petitioner was accepted and approved by the State Board on November 19, 1998. I.G. Ex. 2, at 4.

Regulations pertaining to the prescribing, administering, and dispensing of medication promulgated pursuant to Chapters 25 and 27, Title 73, and Chapter 29, Title 41, Mississippi Code (1972), as amended, provide as follows:

[t]he prescribing, administration, or dispensing of any controlled substance in violation of the [above] rules and regulations shall constitute the administering, dispensing, or prescribing of any narcotic drug or other drug having addiction forming or addiction sustaining liability otherwise than in the legitimate professional practice, in violation of Miss. Code § 73.25-29(3), as amended.

The prescribing, administering, or dispensing of any legend drug or other medication in violation of the [above] rules and regulations shall constitute unprofessional conduct, dishonorable or unethical conduct likely to deceive, defraud or harm the public in violation of Miss. Code Ann. § 73-2529(8)(d), as amended." Article XIII, A & B.

The record is clear that the Investigative Staff of the State Board conducted a comprehensive investigation into Petitioner's medical practice regarding the prescribing of controlled substances and other drugs having addiction-sustaining liability otherwise than in the course of legitimate professional practice. I.G. Ex. 2, at 2. As a result of that investigation, the State Board was poised to initiate disciplinary proceedings against Petitioner. Had the State Board determined, after a hearing, that Petitioner abused her medication prescription privileges, the maximum penalty would have been permanent revocation of her license. Because Petitioner agreed to what was tantamount to the most severe penalty that could be imposed, it became obvious that further action was unnecessary. The transcript from the criminal sentencing hearing (court record) clearly illustrates that Petitioner agreed to relinquish her Mississippi medical license in order to avoid having it revoked by the State Board. P. Ex. 5, at 8. Consequently, Petitioner's agreement to be forever barred from seeking a Mississippi medical license to avoid disciplinary proceedings, and the State Board's acceptance of that agreement, evinces her untrustworthiness and amounts to a sanction.

This situation is analogous to an exclusion by the I.G. when a physician surrenders a medical license to avoid revocation proceedings. In that case, the exclusion sanction, pursuant to section 1128(b)(4)(B) of the Act, cannot be avoided by such surrender. Relinquishing one's license under these circumstances gives rise to the presumption that the findings by the licensing authority upon which the revocation proceedings would be based are accurate. Likewise, I can infer in this case that the Investigative Staff of the State Board arrived at findings that were sufficient to bring disciplinary charges against Petitioner.

Petitioner's argument that the November 19, 1998 Consent Order is not a "prior" sanction is also without merit. Petitioner contends that it cannot be a prior sanction because she committed Medicaid fraud in 1996 and the Consent Order was signed in November 1998. Petitioner relies on the case of Chris Spierer, DAB CR360 (1995) to argue that the Consent Order was signed prior to the Medicaid fraud guilty plea only as a product of timing. In the Spierer case, the I.G. excluded the petitioner for a 10-year period based on a criminal conviction in Colorado. The I.G. argued that petitioner had a prior administrative sanction record as a result of a five-year exclusion previously imposed and directed against him by the Inspector General.⁽⁴⁾ Id. at 1, 5, 9-10. The ALJ found that the length of the exclusion period was unreasonable on the basis of the petitioner's prior administrative sanction record. Id. at 16. The ALJ stated that the existence of the prior administrative sanction record only reflected the I.G.'s timing of its exclusion notices to the petitioner. Id. In order words, the only reason the petitioner had a prior administrative sanction record was due to the fact that the I.G. had delayed excluding the petitioner based on a 1991 Colorado criminal conviction and chose first to exclude the petitioner for five years from the Medicare and Medicaid programs based a 1992 California criminal conviction. Thus, the ALJ concluded that at the time the petitioner was convicted in Colorado, the petitioner had no prior criminal or civil sanction record within the meaning of 42 C.F.R. § 1001.102(b)(5). This, according to the ALJ, was inconsistent with the remedial purpose of the Act. Id. at 17-18.

Presumably, the thrust of Petitioner's contention here is that if she had been convicted prior to November 19, 1998, the issue of the Consent Order as a prior sanction may never have been at issue. That may be true, but that does not negate the fact that she became a "convicted individual" within the meaning of 42 C.F.R. § 1001.102(b)(6) in January 1999. At the time the I.G. imposed the exclusion on July 30, 1999, Petitioner had a prior administrative sanction record that the I.G. had discretion to consider.

I find that the Spierer decision does not stand for the proposition that aggravating factors pursuant to 42 C.F.R. § 1001.102(b)(6) may only be present if they predate the commission of acts that eventually lead to conviction. I also note that the administrative sanction dealt with here, would have been proper for an independent exclusion action. The I.G., however, chose to consolidate the matter in one single proceeding. That is consistent with procedural economy. In Spierer, that was not possible because the petitioner in that case had already been sanctioned by the I.G. for the California criminal conviction. Furthermore, I find that the exclusion by the I.G. in this case is remedial in nature, as opposed to the ALJ's finding in the Spierer decision.

Additionally, Petitioner cites the case of Gerald A. Snider, M.D., DAB CR484 (1997) in its reply brief, at 10. In that case, the I.G. excluded the petitioner for a 10-year period in 1996, based on a 1995 Oklahoma criminal conviction. Id. at 1, 4. The I.G. asserted that the petitioner had a prior administrative sanction record based on a 1993 reprimand by the Oklahoma State Board of Medical Licensure and Supervision. Id. at 12-13. The petitioner claimed that the 1993 reprimand was not a prior administrative sanction record because the criminal acts resulting in the petitioner's exclusion occurred between January 1991 and August 1992. Id. at 14. The ALJ rejected the petitioner's argument, finding that the I.G.'s purpose in excluding the petitioner was remedial in nature, not punitive. Id. The ALJ further held that the word "prior" contained in the regulation referred to a time period before the I.G. determined the length of exclusion, and did not mean that the offense on which the administrative sanction record is based (the acts related to the 1993 administrative sanction record) must have occurred prior to the offense (the acts leading to the 1995 Oklahoma criminal conviction). Id. at 15.

In this case, Petitioner makes a similar argument to the one made by the petitioner and rejected by the ALJ in Snider. Here, Petitioner claims that her November 19, 1998 Consent Order is not a prior administrative sanction record because the criminal acts resulting in Petitioner's exclusion (Medicaid Fraud) occurred in 1996. I find Petitioner's reliance on Snider unpersuasive. The focal point to determine whether an individual excluded pursuant to section 1128(a)(I) of the Act and 42 C.F.R. § 1001.101 satisfies the requirements of the aggravating factors set out in 42 C.F.R. § 1001.102(b)(6) is the date the I.G. excluded the petitioner, not the date of the underlying criminal conviction or the time period of the criminal acts which led to the conviction. Therefore, I find the word "prior" contained in the regulation refers to a time period before the I.G. excluded Petitioner here. Thus, I reject Petitioner's argument that the November 19, 1998, Consent Order is not a prior administrative sanction record.

Finally, Petitioner contends that a mitigating factor exists, in that the sentencing record shows that she had a mental condition during the commission of the offense that reduced her culpability. In her defense, Petitioner claims that at the time she defrauded the Medicaid program her judgment was severely impaired as a direct result of an undiagnosed bipolar disorder. P. Ex. 3. Additionally, she contends that because of her extreme fear of incarceration, she had no recourse but to admit guilt. P. Exs. 1, 4.

To establish a mitigating factor under 42 C.F.R. § 1001.102(c)(2) a petitioner must show that the record in the criminal proceedings demonstrates that the court determined that the individual had a mental, emotional, or physical condition before or during the commission of the offense that reduced the individual's culpability. Thus, an ALJ's analysis involves two separate steps: 1) a determination of whether a condition exists and that the condition was responsible for or contributed to a petitioner's criminal conduct; and, 2) a determination of whether the court record demonstrates that the condition reduced a petitioner's culpability. See Paul G. Klein, D.P.M., DAB CR317 (1994).

A critical analysis of the pertinent documents does not demonstrate that Petitioner had a mental impairment before or during the commission of the offense. To the contrary, in the "Petition to Enter a Plea of Guilty," Petitioner specifically declared that she was not suffering from any mental disease at the time of the crime for which she was being charged, nor at the time of her change of plea on January 11, 1999. I.G. Ex. 5, at 2. An ALJ may not consider as mitigating evidence concerning a party's mental state and culpability unless the party first proves that the condition existed and related to his or her criminal offense. Klein, DAB CR317, at 19. Nevertheless, the transcript from Petitioner's court record indicates that, at sentencing on April 2, 1999, the judge did not address Petitioner's mental condition at the time of the commission of the offense. His remarks regarding Petitioner's mental condition were made in the context of the sentence he was about to impose. Particularly, he was concerned that, if given a suspended sentence, Petitioner would continue to practice medicine. P. Ex. 5, at 4-6, 13.

Additionally, the regulatory requirements for shortening an exclusion period are not met by Petitioner's assertion that she entered a plea of guilty for fear of incarceration. Faced with the evidence of her misconduct, Petitioner appeared to be caught in a dilemma. She could enter into a plea bargain agreement and hope for a suspended sentence or plead insanity. She chose the former, and thus avoided a jail term. Even if she had successfully pleaded insanity, according to Mississippi law, she faced the possibility of being committed to a State insane asylum. Mississippi Code of 1972, as amended, § 99-13-7. Thus, the latter option appeared to be a no win situation for her.

At the time of her guilty plea, Petitioner was employed as a psychiatrist with excellent decision making ability. Dr. Clyde C. Rouse, an associate of Petitioner's for the year preceding February 1999, in a written declaration, stated:

I have worked closely with Dr. Richardson for the preceding year, ending I believe, in February 1999. It is my professional opinion that Dr. Richardson is an excellent psychiatrist. I frequently reviewed her progress notes on some of my patients at the Mental Health center. Her clinical decision making was excellent, and she always treated her patients well.

P. Ex. 2.

It is evident that when Petitioner entered her plea of guilty in January 1999 she possessed excellent professional decision making ability. Moreover, there is an absence of evidence in the court record of a mental impairment before or at the time of the commission of the offense, and the affidavits submitted by Petitioner are only speculative in nature as to her medical condition during the commission of the offense. P. Exs. 1-4.

An objective view of the options available to Petitioner in January 1999, lends support to the belief that her chosen course of action was not unwise. It appears she made the best of a bleak situation. She must come before me now, however, with complete acceptance and recognition of the alternatives for which she opted in the criminal proceedings. She cannot expect me, at this juncture, to consider the possible existence and effects of an unsubstantiated and unclaimed mental impairment. If it behooved her to deny the existence of a mental impairment when she pled guilty, and created a record consistent with that denial, she must also be willing to accept the unfolding consequences.

Obviously, Petitioner's conduct is the type that Congress sought to deter for the protection of the fiscal integrity of the Medicare, Medicaid, and all other federal health care programs. It follows that since Petitioner poses a risk to the financial soundness of all federal health care programs, her untrustworthiness makes her unfit to participate in any of these.

Petitioner cites the case of Steven Herlich, DAB CR197 (1992), at 6-7, in support of the proposition that the regulations do not establish criteria for evaluating the reasonableness of exclusions, and that ALJs must use the criteria established by the appellate panel to evaluate the reasonableness of exclusions. She further suggests that the application of such criteria in Herlich, led to a reduction of a 20-year exclusion imposed by the I.G. to 10 years. Petitioner's reply brief, at 5. I find Petitioner's argument unpersuasive.

In Herlich, the ALJ held that the regulations contained in Part 1001 of the new regulations, particularly 42 C.F.R. § 1001.102, were not intended by the Secretary to govern hearings as to the reasonableness of exclusion determinations⁽⁵⁾. Id. at 8. The ALJ further stated that even if the new regulations governed such hearings, they did not apply in cases involving exclusion determinations made prior to the regulations' publication date⁽⁶⁾. Id. Thus, the ALJ considered the regulatory criteria included in 42 C.F.R. § 1001.114 (1991) in making his determination. The ALJ further considered the criteria established by the appellate panel to evaluate the reasonableness of the length of the exclusion imposed by the IG⁽⁷⁾. Id. As a result, the ALJ concluded that the 20-year exclusion imposed by the IG was excessive and reduced the exclusion to 10 years. Id. at 1.

The regulatory criteria and appellate panel's criteria for evaluating the reasonableness of the IG's determination established in Herlich is no longer relevant and thus not applicable to this case. Here, the IG's exclusion occurred in 1999. The current regulatory criteria to be employed by the IG in determining the length of exclusions is contained in 42 C.F.R. § 1001.102 (1999). Additionally, since Herlich, the appellate panel has established new criteria for evaluating the reasonableness of the IG's determination regarding the length of exclusion. See Joann Fletcher Cash, DAB No. 1725 (2000). The ALJ must determine whether the length of exclusion is unreasonable based on the facts as found by the ALJ. Id. at 17, n.9. In order to make that determination, an ALJ must consider whether the amount of time (length of the exclusion) chosen by the IG is within a reasonable range. Id. Thus, to determine if the IG's length of exclusion is unreasonable, an ALJ must consider evidence submitted by the parties pertaining to the aggravating and mitigating factors contained in 42 C.F.R. § 1001.102, and if the IG's decision is within a reasonable range, given the facts found by the ALJ.

For the reasons previously stated above and in light of my consideration of the current regulatory criteria and the appellate panel's criteria, I find that the 10-year exclusion imposed by the I.G. was within a reasonable range of possible exclusion periods given the circumstances of this case, in which two aggravating factors were present and no mitigating factors. The 10-year exclusion is a legitimate remedial remedy consistent with the purpose of section 1128 of the Act. That purpose is to protect federally funded health care programs and their beneficiaries and recipients from untrustworthy individuals.

Sections 1128(a)(1) and 1128(c)(3)(B) of the Act mandate that Petitioner be excluded from Medicare, Medicaid, and all other federal health care programs for a period of at least five years because she was convicted of a criminal offense related to the delivery of an item or service under Medicare or under any State health care program. The I.G. was also justified in lengthening the period of exclusion due to the existence of aggravating factors. The 10-year exclusion is therefore sustained.

Jose A. Anglada

Administrative Law Judge

1. The transcript from the criminal sentencing hearing was offered as P. Ex. 5.

2. Petitioner consented to a waiver of indictment and agreed to prosecution by Criminal Information.

3. ". . . [a] penalty or coercive measure that results from failure to comply with a law, rule, or order." Petitioner's reply brief, at 7.

4. The petitioner's California criminal conviction occurred in 1992 and the I.G. excluded the petitioner in 1993. The petitioner's Colorado criminal conviction occurred in 1991; however, the I.G. didn't exclude the petitioner based on the underlying conviction in Colorado until 1994.

5. On January 29, 1992, the Secretary published new regulations which established criteria, to be employed by the IG, to determine the length of exclusions to be imposed pursuant to sections 1128(a) and (b) of the Act. 42 C.F.R. Part 1001; 57 Fed. Reg. 3298, 3330-3341. These regulations included a section establishing criteria to be employed by the IG to determine the length of exclusions to be imposed pursuant to section 1128(a)(1). 42 C.F.R. § 1001.102; 57 Fed. Reg. 3331.

6. The IG notified Petitioner of his 20-year exclusion on February 15, 1991; prior to the effective date (January 29, 1992) of the new regulations. Id. at 1.

7. The criteria established by the appellate panel in Robert Matesic, R. Ph., d/b/a/ Northway Pharmacy, DAB No. 1327 (1992) included: (1) the nature of the offenses committed by the provider, (2) the circumstances surrounding the offense, (3) whether and when the provider sought help to correct the behavior which led to the offense, (4) how far the provider has come toward rehabilitation, and (5) any other factors relating to the provider's character and trustworthiness.