SUBJECT:

Subrata Dey, M.D.,

Petitioner,

The Inspector General.

DECISION

Subrata Dey, M.D., Petitioner, is excluded from participation in Medicare, Medicaid, and all other federal health care programs pursuant to section 1128(a)(2) of the Social Security Act (the Act) (42 U.S.C. § 1320a-7(a)(2)) based upon his conviction of a criminal offense related to neglect or abuse of patients in connection with the delivery of a health care item or service. There is a proper basis for exclusion. Petitioner's exclusion for five years is the minimum mandatory period pursuant to section 1128(c)(3)(B) of the Act (42 U.S.C. § 1320a-7(c)(3)(B)).

I. Background

Petitioner was notified by the Inspector General (I.G.), by letter dated November 30, 2004, that he was being excluded from participation in Medicare, Medicaid, and all federal health care programs for a period of five years pursuant to section 1128(a)(2) of the Act, for abuse of patients in connection with the delivery of a health care item or service. The I.G. advised Petitioner that the minimum mandatory period of exclusion under the Act is five years.

Petitioner requested a hearing by an administrative law judge (ALJ) by letter dated January 14, 2005. The case was assigned to me for hearing and decision on January 27, 2005. On March 10, 2005, I convened a prehearing conference by telephone, the substance of which is recorded in my Order dated March 18, 2005. During that conference, Petitioner argued that his conviction was not related to neglect or abuse of patients. The parties agreed that this matter may be resolved on written pleadings and that there is no need for an oral hearing. I established a briefing schedule.

The I.G. timely filed its motion for summary judgment (I.G. Br.), with supporting brief and exhibits 1 through 12 (I.G. Exs. 1 - 12), on April 15, 2005. Petitioner's response to the I.G. motion (P. Br.) was filed on May 27, 2005, accompanied by 10 exhibits (P. Exs. 1 - 10). The I.G. filed a reply brief on June 15, 2005. I admit into evidence I.G. Exs. 1 - 12 and P. Exs. 1 - 10. I discuss Petitioner's objection to I.G. Ex. 10 in the Discussion section of this decision.

II. Analysis

A. Issues

The Secretary of the Department of Health and Human Services (Secretary) has by regulation limited my scope of review to two issues:

•Whether there is a basis for the imposition of the exclusion; and,

•Whether the length of the exclusion is unreasonable.

42 C.F.R. § 1001.2007(a)(1).

The standard of proof is a preponderance of the evidence, and there may be no collateral attack of the conviction that is the basis for the exclusion. 42 C.F.R. §§ 1001.2007(c), (d). Petitioner bears the burden of proof and persuasion on any affirmative defenses or mitigating factors, and the I.G. bears the burden on all other issues. 42 C.F.R. §§ 1005.15(b), (c).

B. Applicable Law

Petitioner's right to a hearing by an ALJ, and judicial review of the final action of the Secretary, is provided by section 1128(f) of the Act (42 U.S.C. § 1230a-7(f)). Petitioner's request for a hearing was timely filed and I do have jurisdiction.

Pursuant to section 1128(a)(2) of the Act, the Secretary must exclude from participation in the Medicare and Medicaid programs any individual convicted of a criminal offense related to neglect or abuse of patients in connection with the delivery of a health care item or service.

Section 1128(c)(3)(B) of the Act provides that an exclusion imposed under section 1128(a) of the Act shall be for a mandatory minimum period of five years. Where the minimum mandatory period of exclusion is imposed, no issue of reasonableness exists.

C. Discussion

The parties agreed during the March 10, 2005 prehearing conference that this case should be decided on the written record and that there was no need for an oral hearing to receive testimony. The I.G. filed a motion for summary judgment. I conclude that no oral hearing is necessary for the taking of additional evidence and I decide this case based on the evidence and briefs presently before me.

1. There is a basis for the I.G.'s exclusion of Petitioner.

At all times relevant to this case, Petitioner was a pediatric endocrinologist licensed in Kentucky. Petitioner was indicted, on March 27, 2002, by a grand jury in Letcher County, Kentucky, on three felony counts of Use of a Minor in a Sexual Performance in violation of Kentucky Revised Statutes (Ky. Rev. Stat.), § 531.310. I.G. Exs. 1 - 3. On April 19, 2004, Petitioner pled guilty to three counts of Voyeurism in violation of Ky. Rev. Stat. § 531.090, which provides:

A person is guilty of voyeurism when: (a) He or she intentionally . . . [u]ses the unaided eye or any device designed to improve visual acuity for the purpose of observing or viewing the sexual conduct, genitals, or nipple of the female breast of another person without the person's consent; and (b) The other person is in a place where a reasonable person would believe that his or her sexual conduct, genitals, or nipple of the female breast will not be observed, viewed, photographed, filmed, or videotaped without his or her knowledge.

I.G. Exs. 4 - 7.

On April 19, 2004, Petitioner entered into a plea agreement and acknowledged that:

On or about January 8, 2001, . . . [Petitioner], in his capacity of being a physician, during a purported physical examination touched the nipples and breasts of K.M.B., a female juvenile patient who was at the time only 13 years of age. Such actions by [Petitioner] were without the permission of the minor child and/or her guardian.

I.G. Ex. 4. ⁽¹⁾

On or about January 10, 2001, . . . [Petitioner], in his capacity of being a physician, used his unaided eye during a purported medical examination to observe and view the genitals, nipples, and breasts of M.F.M., a female juvenile patient who was at the time only thirteen (13) years of age without her consent, or the consent of her guardian.

I.G. Ex. 5.

On or about December 11, 2001, . . . [Petitioner], in his capacity of being a physician, used his unaided eye during a purported medical examination to observe and view the genitals, nipples, and breasts of K.E., a female juvenile patient who was at the time only 16 years of age. Such actions by [Petitioner] were without the consent or permission of the infant or Guardian.

I.G. Ex. 6.

On June 4, 2004, the Letcher Circuit Court for the Commonwealth of Kentucky accepted Petitioner's plea agreement, entered judgment against him and sentenced Petitioner to "a period of twelve (12) months in the County jail on each indictment to run concurrently." I.G. Ex. 7. The Circuit Court withheld imposition of the sentence and ordered that Petitioner be "sentenced to probation with alternative sentencing plan for a period of two (2) years" subject to certain conditions. Id.

The Act defines "conviction" as including those circumstances "when a judgment of conviction has been entered against the individual or entity by a Federal, State, or local court" and "when a plea of guilty or nolo contendere by the individual or entity has been accepted by a Federal, State, or local court." Sections 1128(i)(1) and (3) of the Act. This definition is repeated at 42 C.F.R. § 1001.2. Petitioner does not contest that his conviction falls within the statutory and regulatory definitions.

Nor does Petitioner contest that Petitioner's conviction was "of patients in connection with the delivery of a health care item or service. The behavior on which Petitioner's conviction is based occurred while Petitioner was "in his capacity of being a physician" and during "purported medical examinations" of female juvenile patients.

Petitioner contends that he was not convicted of a criminal offense related to patient abuse. Petitioner was convicted of three counts of voyeurism and, this, according to Petitioner, is not abuse. Petitioner argues that, as a pediatric endocrinologist, he was conducting medically indicated and justified examinations, such as visual vaginal examinations and Tanner Staging, which requires the observation of the breasts and pubic area of female patients. Petitioner admits that he assumed implied consent to these examinations and failed to obtain express consent. P. Br. at 7, 8. Petitioner also argues that the details of his medical examinations were put on the patients' medical charts and that these medical chart notes are authentic. Id. at 9.

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. The common and ordinary meaning of "abuse" includes the treatment in a harmful and offensive way by an individual of another individual. Narendra M. Patel, M.D., DAB CR631 (1999), aff'd, DAB No. 1736 (2000). Petitioner states that he has no objection to this definition of abuse but claims that a better definition can be found at 42 C.F.R. § 488.301. Petitioner, however, erroneously points to a definition of abuse applicable to long term care nursing facilities and not to an individual in Petitioner's position. I, therefore, reject Petitioner's suggested definition of abuse and adopt the definition stated above.

To determine whether an offense is related to patient abuse within the meaning of section 1128(a)(2) of the Act, I must look at the facts and circumstances underlying the conviction to determine if a nexus or common sense connection links the offense of which Petitioner was convicted and the abuse of a patient. Narendra M. Patel, M.D., DAB No. 1736 (2000).

An exclusion under section 1128(a)(2) is a derivative exclusion; it is based on the fact of a criminal conviction. Excluding individuals based on criminal convictions "provides protection for federally funded programs and their beneficiaries and recipients, without expending program resources to duplicate existing criminal processes." Peter J. Edmonson, DAB No. 1330, at 4 (1992). Once a conviction is entered, "the basis for the underlying conviction . . . is not reviewable and the individual . . . may not collaterally attack it . . . ." 42 C.F.R. § 1001.2007(d).

Petitioner's arguments that he conducted medically indicated and justified examinations and that the medical chart notes were authentic are attempts to collaterally attack his conviction. He may not do so before me. I may, however, consider extrinsic evidence beyond the allegations in the specific charges to which Petitioner had pled. Bruce Lindberg, D.C., DAB No. 1386, at 3 (1993); Patel, DAB No. 1736 (2000).

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 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 . . . is whether the criminal offense which formed the basis for the conviction is related 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.

Norman C. Barber, D.D.S., DAB CR123, at 10 - 11 (1991); see also Westin v. Shalala, 845 F. Supp. 1446 (D. Kan. 1994).

As discussed above, Petitioner pled guilty to three counts of voyeurism. Petitioner admits that he viewed genitals, nipples, and breasts of three juvenile patients without the express consent or permission of the patients or their guardians. As a pediatric endocrinologist, Petitioner dealt with a particularly vulnerable patient population. At this point, it is necessary for me to look at extrinsic evidence to determine if Petitioner's conduct was harmful or offensive so that I can determine if Petitioner's conduct meets the definition of abuse.

The I.G. presented evidence on this point. An administrative hearing was conducted by the Commonwealth of Kentucky Board of Medical Licensure (Medical Board) into Petitioner's license. The hearing officer's Findings of Fact, Conclusions of Law, and Recommended Order contain the following additional information about the impact on Petitioner's three juvenile patients:

In the parking lot after leaving the clinic, [K.M.B.] said, "Mom, I'm not going back to that doctor. That was horrible," and [K.M.B.] has not returned for any further treatment from [Petitioner].

. . .

After the examination by [Petitioner], [K.M.B.] became more emotionally distant, her grades declined, and she had trouble sleeping. All of these changes were the result of the emotional trauma caused by [Petitioner's] examination.

. . .

As a result of [Petitioner's] conduct, [M.F.M.] feels like she can't trust anyone, and she quit school after the allegations were publically revealed out of fear that people would know she was involved.

. . .

[K.E.] left the room and was "completely in shock." She didn't say anything to her sister-in-law [who had accompanied her] until they got into the car to leave. Since then, she has received counseling as a result of the incident. [K.E.] felt violated and disgusted by [Petitioner's] conduct.

I.G. Ex. 10, ¶¶ 25, 51, 79, 131.

It is appropriate that I look at this extrinsic evidence to determine if the offense to which Petitioner pled guilty is related to patient abuse within the meaning of section 1128(a)(2). The Departmental Appeals Board has repeatedly held that the basis for the federal exclusion authority need not appear in the charges or associated court documents, but may be demonstrated by extrinsic evidence of the underlying facts and circumstances of the offense. Tanya A. Chuoke, R.N., DAB No. 1721 (2000); see also Berton Siegel, D.O., DAB No. 1467 (1994); Carolyn Westin, DAB No. 1381 (1993); DeWayne Franzen, DAB No. 1165 (1990).

In addition to the evidence presented in I.G. Ex. 10, I take note of the highly sensitive nature of the type of "examinations" undergone by Petitioner's patients, the vulnerable patient population being dealt with, and Petitioner's own admission that he did not obtain express consent from either the patients or their guardians. It is clear that Petitioner's conduct was indeed harmful and offensive and clearly falls within the definition of abuse.

Petitioner objects to the hearing officer's Findings of Fact, Conclusions of Law, and Recommended Order (I.G. Ex. 10) because he disputes these findings. However, as already explained, I find this exhibit material to show the connection between the conviction on its face and circumstances surrounding Petitioner's conviction to establish that the conviction related to patient abuse. I admit this exhibit into evidence. Petitioner also denies that his patients were harmed and he doubts the credibility of the statements made by his patients because "those patients sought counseling 12 - 15 months after the event and 2 of the patients had a financial [Petitioner states that two of his patients are suing him privately] motivation." P. Br. at 11. However, Petitioner's claim is self-serving. The statements made by Petitioner's patients were made to the hearing officer in the course of his investigation on behalf of the Medical Board. Making statements in such a formal setting leads me to believe that the statements are credible. Further, even if two of these three patients were privately suing Petitioner and had financial motivations for their statements, the third patient has not sued Petitioner and has no financial motivation at all. The statements and information from the hearing officer's Findings of Fact, Conclusions of Law, and Recommended Order were based on an October 2 and 22, 2002 Transcript of Evidence. I.G. Ex. 10. The two legal actions on behalf of two of Petitioner's patients were filed on January 19, 2004. P. Ex. 9. I do not give great weight to Petitioner's claim of financial motivation because of the significant time lapse between the Transcript of Evidence and the filing of legal actions against Petitioner. I find the statements included in the hearing officer's Findings of Fact, Conclusions of Law, and Recommended Order to be credible.

Petitioner also contends that the matching of identities in the Medical Board exhibits (where the patients were identified by random letters) by the I.G. to the identities in the criminal court documents (where the patients were identified by initials) is "purely speculative hence unreliable." P. Br. at 13. However, the matching of identities is reasonable given the matching of the patients' ages, dates of office visits, and descriptions of the office visits. I reject Petitioner's contention that the matching of identities is speculative and unreliable.

I conclude, based on my review of the evidence, that Petitioner was convicted within the meaning of section 1128(i) of the Act, and that the offense of which he was convicted involved the 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. Accordingly, I conclude that there is a basis for Petitioner's exclusion.

2. Exclusion for a minimum period of five years is mandated by the Act and no issue of reasonableness exists.

The Act requires that Petitioner be excluded for the minimum period of five years. Pursuant to the Act and the regulation, where there is a basis for a mandatory exclusion under section 1128(a) of the Act, there is an automatic exclusion for a minimum period of five years. Act, section 1128(c)(3)(B); 42 C.F.R. § 1001.102(a). In such a case, no issue of reasonableness exists.

III. Conclusion

For the foregoing reasons, Petitioner is excluded from participation in Medicare, Medicaid, and all federal health care programs for a period of five years.

Alfonso J. Montano

Administrative Law Judge

1. Although this count refers to Petitioner touching the nipples and breasts of K.M.B. without consent, the offense to which Petitioner pled guilty was voyeurism.