Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Appellate Division
In the Case of:
Bruce Lindberg, D.C.,
Petitioner,
- v. -
The Inspector General.
DATE: November 15, 1991
DAB CR145 (C-348)
Decision No. 1280
FINAL DECISION ON REVIEW OF ADMINISTRATIVE LAW JUDGE
DECISION
Bruce Lindberg (Petitioner) requested review by the Appellate Panel of
a
decision by Administrative Law Judge (ALJ) Edward D. Steinman issued
on
July 22, 1991 (ALJ Decision). The decision sustained the
determination
of the Inspector General (I.G.) to exclude Petitioner from
participation
in the Medicare program for five years and to direct his
exclusion from
state health care programs (Medicaid) for the same length of
time.
Petitioner's exclusions were based on section 1128(a)(2) of the
Social
Security Act (Act), which provides as follows:
(a) Mandatory Exclusion.--The Secretary shall exclude
the
following individuals and entities from participation in
any
program under title XVIII and shall direct that the
following
individuals and entities be excluded from participation in
any
State health care program . . . .
* * * (2) Conviction relating
to
patient abuse.-- Any individual or entity that has
been
convicted, under Federal or State law, of a
criminal
offense relating to neglect or abuse of patients
in
connection with the delivery of a health care item
or
service.
Further, section 1128(c)(3)(B) provides:
In the case of an exclusion under subsection (a), the
minimum
period of exclusion shall be not less than five years . . .
.
Petitioner, a chiropractor, pled guilty to two counts of Indecent
Contact
with a Child and two counts of Indecent Exposure, violations of
sections
709.12(2) and 709.9 of the Iowa Criminal Code, respectively.
He was convicted
on all four counts and was sentenced to six years'
probation, subject to a
number of conditions including that he was to
provide an annuity for eight
children who allegedly had been abused by
Petitioner.
On appeal to the Appellate Panel, Petitioner disputed the ALJ's
finding
that the offenses of which he was convicted related to abuse or
neglect
of patients in connection with the delivery of a health care item
or
service (Finding of Fact and Conclusion of Law (FFCL) No. 10). 1/
The
ALJ characterized Petitioner's arguments in this case as
primarily
"procedural" arguments, regarding whether evidence related to
applying
section 1128(a)(2) was limited to the Judgment Entry and a
plea
transcript or whether "extrinsic evidence" could also be
considered.
ALJ Decision at 7-8, 10. However, it is clear from
Petitioner's
submissions to the ALJ that Petitioner intended to raise a
dispute
concerning facts material to determining whether he was convicted of
an
offense relating to patient abuse in connection with his delivery
of
chiropractic services. See, e.g., Petitioner's Proposed Findings
of
Fact and Conclusions of Law, number 8.
Petitioner argued specifically before us that neither the counts
of
Indecent Contact nor the counts of Indecent Exposure involved abuse
or
neglect. He also argued that the offenses of which he was convicted
did
not involve patients. 2/ Petitioner argued further that since
patients
were not involved, there could not have been any abuse "in
connection
with" his delivery of chiropractic services. Petitioner also
argued
before us that the ALJ deprived him of his constitutional rights in
not
granting a hearing on these disputed facts.
Based on our review of the ALJ Decision, the record below, and
the
parties' written submissions before us, we conclude that the ALJ did
not
err in relying on documents in addition to court documents pertaining
to
Petitioner's conviction nor in concluding that the four counts of
which
Petitioner was convicted related to abuse. We also determine,
however,
that there is no evidence in the record before us from which it
can
reasonably be inferred that either child referred to in these counts
was
a patient of Petitioner or that the abuse occurred in connection
with
the delivery of health care services by Petitioner. Where the
I.G.
invokes section 1128(a)(2), the I.G. must establish that these
elements
are present. We therefore conclude that the ALJ improperly
proceeded to
decision based on the I.G.'s motion for summary disposition
and,
accordingly, we remand this case to the ALJ to resolve these
disputed
facts based on further development of the record.
1. The ALJ properly found that extrinsic evidence was admissible
to
establish that section 1128(a)(2) applied.
The ALJ Decision acknowleged that --
[t]he Trial Information upon which . . .
[Petitioner's]
conviction was based contains only a skeletal recital of
the
essential elements of the criminal offenses of which he
was
charged. . . . There is no description of where, under
what
circumstances, and who were the recipients of
Petitioner's
criminal sexual misconduct (other than a generic reference
to
two individuals). This was obviously done to protect
the
identity of the children who were the victims of
Petitioner's
criminal conduct.
ALJ Decision at 9. However, the ALJ further found that he had
"the
authority to examine the full circumstances surrounding a conviction
to
determine whether the statutory elements of section 1128(a)(2) are
met.
. . ." Id. Proceeding to examine the circumstances here, the
ALJ
stated that --
it is evident from the discussion in the transcript
of
Petitioner's guilty plea that Petitioner's conduct involved
more
than the two children mentioned in the Trial Information.
In
return for dropping certain charges, Petitioner agreed to set
up
an annuity in the amount of $5,000 for each of the
"eight
different children . . . involved in the original two
charges."
P. Ex. 7 at 12-13. The Plan of Restitution clearly
reflects
that it was for the purpose of compensating these eight
children
for "pecuniary damages caused by [Petitioner] as a result
of
criminal activities." I.G. Ex. 29. There is no doubt
that all
the parties involved in Petitioner's criminal conviction
were
aware of the details of his criminal activities. That
same
information can properly be examined for purposes of
section
1128(a)(2).
Id. at 10.
We agree with the ALJ that evidence other than the Judgment Entry and
plea
transcript may properly be considered in order to determine whether
section
1128(a)(2) applies. As the ALJ noted, the use of the term
"relating to"
in section 1128(a)(2) indicates that the question --
is whether the criminal offense which formed the basis for
the
conviction related to neglect or abuse of patients, not
whether
the court convicted Petitioner of an offense called
"patient
abuse" or "patient neglect."
Id. at 8-9, quoting Norman C. Barber, D.D.S., DAB CR123 (1991)
(C-198).
Thus, even if there is nothing on the face of the counts of
which
Petitioner was convicted or in related court documents which
establishes
that section 1128(a)(2) applies, other evidence is certainly
admissible
to establish this.
2. The ALJ's conclusion that Petitioner was convicted of a
criminal
offense related to neglect or abuse is not erroneous.
In determining whether the offenses in question involved neglect or
abuse,
the ALJ looked at the "common and ordinary meaning" of the words,
defined in
an earlier ALJ decision as follows:
"Neglect" is defined in Webster's Third New
International
Dictionary, 1976 Edition as "1: to give little or no
attention
or respect to: . . . 2: to carelessly omit doing (something
that
should be done) either altogether or almost altogether . . .
."
"Abuse" is defined as "4: to use or treat so as to injure,
hurt
or damage; MALTREAT . . . ." I conclude from these
common
definitions that Congress intended the statutory term
"neglect"
to include failure by a party to satisfy a duty of care
to
another person. "Abuse" is intended to include those
situations
where a party willfully mistreats another person. Id.
at 4-5.
See Summit Health Limited, dba Marina Convalescent Hospital,
DAB
App. 1173 at 8.
ALJ Decision at 10, quoting Thomas M. Cook, DAB CR51 (1989) (C-106)
at
4-5.
The ALJ concluded that abuse was involved. He based his conclusion
that
this element of section 1128(a)(2) was satisfied in part on the
ground
that Petitioner's agreement to provide eight "recipients of his
sexual
misconduct" with a $5,000 annuity each to use for personal
counseling
showed that the children had been harmed by Petitioner's
conduct. ALJ
Decision at 13. The ALJ also stated that "the
damaging impact"
Petitioner's sexual misconduct had on his patients was
reflected in the
suspension of his license by the Iowa Board with the
resumption
conditioned on the successful completion of therapy and a
three-year
probationary period during which he would not be allowed to treat
male
children under the age of 18 without the presence of their parents or
a
staff member. Id.
Whether the offenses of which Petitioner was convicted related to
neglect
or abuse is primarily a legal issue. As explained below, we do
not
expressly adopt the ALJ's reasoning on this issue, which we find to
be
flawed, but nevertheless determine that the ALJ's conclusion that
the
offenses in question related to abuse was not erroneous. As
previously
indicated, the ALJ relied on dictionary definitions of the word
"abuse"
cited in Cook, a prior ALJ decision. However, the definitions
are of
the verb rather than the noun form of "abuse" and thus are not
directly
applicable. In addition, Cook introduces willfulness as an
element of
abuse even though these definitions do not refer to it.
Moreover,
although the ALJ purported to be following Cook, he did not in
fact
consider whether Petitioner's conduct was willful. 3/ Finally, the
ALJ
relied on evidence that Petitioner's conduct caused actual harm
without
indicating why he viewed this as necessary to a conclusion that
a
conviction related to abuse.
Notwithstanding these flaws in the ALJ's reasoning, we affirm
his
conclusion that the offenses in question related to abuse. To
the
extent that the ALJ's view of what constituted abuse was
more
restrictive than is required by the statute, Petitioner clearly was
not
prejudiced by the application of this standard. Moreover, the fact
that
the counts of which Petitioner was convicted identified the offenses
as
"Indecent Contact" and "Indecent Exposure" and specified that
this
conduct was directed at a child is sufficient to raise a
presumption
that Petitioner was convicted of an offense relating to abuse.
4/ The
underlying purpose of section 1128(a)(2) is to protect patients;
the
offenses as described here on their face seem to constitute conduct
from
which patients, particularly children, should be protected.
Since
Petitioner pointed to nothing in any common definition of abuse or
in
the language of the statutes under which he was convicted
indicating
that abuse was not involved, we conclude that the ALJ did not err
in
determining that the offenses here constituted abuse within the
meaning
of section 1128(a)(2).
3. The ALJ's finding that Petitioner was convicted of a
criminal
offense relating to a patient is not supported by substantial
evidence
in the record.
We further conclude that it cannot reasonably be inferred from
the
evidence considered by the ALJ that the children referred to in the
four
counts of which Petitioner was convicted were patients. The ALJ
relied
on the uncontested fact that, as part of a plea bargain
agreement,
Petitioner agreed to set up annuities for the eight children
involved in
the two original charges against Petitioner. The ALJ also
relied on
what he took as Petitioner's admission that two of these children
were
his patients.
However, in order to support a finding that section 1128(a)(2)
applies
here, it is not sufficient to show that Petitioner was charged with
a
criminal offense "relating to . . . abuse of patients . . . ."
5/
Instead, it must be established that Petitioner was convicted of such
an
offense. Petitioner was convicted only of the four counts to which
he
pled guilty, regardless of the fact that the remaining charges
were
dropped based on his agreement to plead guilty to the four counts.
In
the absence of a showing that either K.L. or I.J., the children
referred
to in the counts of which Petitioner was actually convicted, was
his
patient, the ALJ improperly found that section 1128(a)(2) applied.
We see no basis in the record before us from which the ALJ
could
reasonably infer that either K.L. or I.J. was a patient. The
record
contains a letter from the insurance company with which the
annuities
were established naming the recipients of the annuities as well as
a log
of Petitioner's patients (prepared by the local police) which
includes
six of the same names. 6/ I.G. ex. 29, p. 1; I.G. ex.
11. Petitioner
did not dispute the authenticity of either
document. The record also
shows that K.L. was one of the children who
was to receive an annuity,
since it is undisputed that the restitution plan
covered the children
referred to in the original charges against Petitioner
7/ and the
original charges included a count of indecent contact with a
child
referred to as K.L. I.G. ex. 16. However, there is nothing
in the
record which links K.L. to one of the six children who were
identified
as patients. 8/ Moreover, there is no evidence in the record
that I.J.
was one of the children covered by the restitution plan, since
the
original charges against Petitioner do not include any count
referring
to I.J. Finally, there is no evidence indicating the basis on
which the
counts to which Petitioner pled guilty were selected, and it is
possible
they were selcted because the children involved were not
patients.
4. The ALJ's finding that Petitioner was convicted of a
criminal
offense which occurred in connection with the delivery of a health
care
service is not supported by substantial evidence in the record.
The ALJ's finding that the offenses of which Petitioner was
convicted
occurred in connection with the delivery of a health care service
is
similarly flawed. The ALJ's finding is based primarily upon the
sworn
statements of six children taken by the County Attorney's office.
9/
The ALJ found that Petitioner illicitly touched each of the six
children
during the course of providing chiropractic treatment at his
office.
ALJ Decision at 11. This clearly constitutes an offense
committed in
connection with the delivery of a health care service; however,
there is
nothing which ties the evidence on which the ALJ relied to either
K.L.
or I.J. The sworn statements relied on by the ALJ include
statements of
five of the eight children covered by the restitution
agreement, all
five of whom were patients. I.G. ex. 8, 13, 30, 31, and
32. As
discussed above, the record shows only that K.L. was one of the
eight
children covered by the restitution agreement and does not
specifically
identify him. Since it is possible that neither K.L. nor
I.J. was one
of the five children who made the sworn statements, this
evidence does
not establish that Petitioner was convicted of an offense
committed in
connection with the delivery of a health care service. 10/
5. A remand
to the ALJ is required.
As discussed above, we find that the record does not support the
ALJ's
findings, which Petitioner disputed, that the offenses of
which
Petitioner was convicted related to individuals who were his
patients
and that these offenses were committed in connection with the
delivery
of a health care service. Since the ALJ did not fully develop
the
record in light of his misconception about whether Petitioner
was
disputing material facts, we must remand the case to the ALJ to make
new
findings.
This does not mean that Petitioner is necessarily entitled to a hearing
in
this case. Petitioner contended that he has a constitutional right
to
confront his accusers by cross-examining persons making statements
against
him. What is at issue here, however, is not whether their
allegations
are true but whether the preponderance of the evidence shows
that an offense
of which Petitioner was convicted (1) related to a
patient and (2) occurred
in connection with the delivery of a health
care service. It is
possible that the first issue can be resolved
without a hearing if the I.G.
submits additional documents (which
Petitioner does not deny are authentic),
such as a document which shows
how the letters K.L. and I.J. used in the
counts against Petitioner
related to particular children. The second
issue might be resolved by
determining the relationship under State law of
the statements in
question to the offenses to which Petitioner pled guilty
(i.e., whether
Petitioner was deemed to have admitted all of the allegations
in the
statements in pleading guilty to counts arising out of
these
statements). Thus, the ALJ may determine on remand that a hearing
is
unnecessary.
We disagree with the I.G., however, that Petitioner waived his right to
a
hearing when he pled guilty to a total of four counts of Indecent
Contact and
Indecent Exposure or when he entered into a stipulation with
the Iowa Board
of Chiropractic Examiners instead of proceeding with a
disciplinary
hearing. The I.G. asserted that since Petitioner "chose
not to confront
his accusers when he had the opportunity to do so, he
cannot come forward now
and allege that he was harmed by his own
choice." I.G. Response to
Petitioner's exceptions, p. 4 (emphasis in
the original). However, the
elements of the offenses of Indecent
Contact and Indecent Exposure to which
Petitioner pled guilty are
clearly different from the elements of section
1128(a)(2). Section
1128(a)(2) requires proof that the conduct related
to a patient and that
it occurred in connection with the delivery of a health
care service,
while the former offenses do not. See I.G. ex. 17;
Petitioner's ex. 7,
pp. 16-18. Similarly, the rules of the Board of
Chiropractic Examiners
which Petitioner was charged with violating do not
specifically require
that the prohibited "improper conduct or advances to a
patient" be in
connection with the delivery of a health care service, as does
section
1128(a)(2). See I.G. ex. 23. Thus, in pleading guilty .to
the counts
of Indecent Contact and Indecent Exposure or in stipulating to
a
violation of the rules of the Iowa Board of Chiropractic
Examiners,
Petitioner cannot reasonably be said to have waived his right to
contest
allegations which went beyond what was necessary to support
these
charges. Accordingly, if the I.G. relies on such allegations on
remand,
Petitioner would be entitled to a hearing on the limited issues
relevant
to determining whether section 1128(a)(2) applies. 11/
Conclusion
Based on the foregoing, we vacate FFCL No. 10 and remand the case to
the
ALJ to make new findings concerning whether the children referred to
in
the counts of which Petitioner was convicted were patients of
Petitioner
and whether the conduct which gave rise to the counts occurred
in
connection with the delivery of a health care service by Petitioner.
_____________________________ Donald F. Garrett
_____________________________ Theodore J. Roumel U.S.
Public
Health Services
_____________________________ Judith A. Ballard Presiding
Panel
Member
1. We affirm and adopt without further discussion the other
FFCLs,
which Petitioner did not challenge: FFCL Nos. 1 - 9 and FFCL
Nos. 11 -
25.
2. Petitioner mistakenly stated in his exceptions to the ALJ
Decision
that all four counts referred to one child, identified by the
initials
K.L. Petitioner's exceptions, dated 9/6/91, p. 4. In
fact, the two
counts of Indecent Contact refer to a child identified as K.L.
while the
two counts of Indecent Exposure refer to a child identified as
I.J.
I.G. ex. 17. Notwithstanding Petitioner's confusion as to what
the
record actually shows, we treat Petitioner's exceptions as raising
the
issue of whether either child was a patient. Petitioner did
not
expressly concede that I.J. was a patient, and argued generally that
the
offenses of which he was convicted did not involve patients.
3. However, the counts to which Petitioner pled guilty
specifically
allege that Petitioner's conduct was willful. I.G. ex.
17.
4. The ALJ stated that the record did not contain "statutory
language
adequate . . . to conclude that violation of the criminal
code
provisions per se amounts to 'neglect or abuse' under
section
1128(a)(2). . . ," (ALJ Decision at 10), but did not consider
the
probative value of the descriptions of the offenses in the
criminal
counts.
5. The amended judgment entry signed by the court refers to the
eight
children who were to receive annuities as "the victims of
[Petitioner's]
crime." I.G. ex. 29, p. 2. The court might have
believed that crimes
were committed against all eight children even though
the charges
pertaining to some of the children were dropped as a result of
the plea
bargain agreement. However, this is not tantamount to a
conviction for
the charges which were dropped.
6. As noted previously, the ALJ indicated that Petitioner had
admitted
that the restitution plan included two of his patients. ALJ
Decision at
8. However, Petitioner argued before this Panel that he
never made such
an admission, and it appears that the statement in
Petitioner's brief
which the ALJ took as an admission was simply a
restatement by
Petitioner of the I.G.'s argument in the case. Even if
it could be
construed as an admission, Petitioner never identified which two
of the
eight children included in the plan were his patients.
7. The prosecuting attorney, with the apparent assent of
Petitioner's
attorney, described the restitution plan as covering all of the
eight
children involved in the original two charges. Petitioner's ex.
7, p.
12. This description is not entirely accurate, however, since the
first
two trial informations prepared by the State contain eight counts
but
refer only to six different children, including K.L. Petitioner's
ex.
15 and 16. The third trial information, which contains the four
counts
of which Petitioner was convicted, refers to a seventh child,
I.J.
Petitioner's ex. 17.
8. On the other hand, K.L. cannot be ruled out as a patient on
the
ground that his initials do not correspond to the initials of one of
the
six patients. As the ALJ noted, K.L. is a generic reference to
an
individual used to protect his identity. In fact, the counts in
the
three trial informations prepared by the State refer to the
children
involved in an alphabetic sequence, i.e., A.B., C.D., etc.
9. The ALJ also relied on a local police department report regarding
a
"Sexual Abuse Investigation" concerning Petitioner. I.G. ex. 5.
The
portion of the report cited by the ALJ appears to confirm an
allegation
made by one of the children in his sworn statement.
10. The ALJ also found that Petitioner invited the children to his
home
or to other locations for recreational activities, and that he
illicitly
touched the children under these circumstances, although at his
home the
touching sometimes occurred under the guise of providing
chiropractic
treatments. ALJ Decision at 11. The ALJ concluded
that the illicit
touching described here occurred in connection with the
delivery of a
health care service because "Petitioner utilized his
doctor-patient
relationship to foster the children's confidence and trust,"
enabling
him "to engage in the illicit sexual misconduct . . . ." ALJ
Decision
at 12. We need not determine here whether this conclusion is
correct,
however, since the evidence on which the ALJ relied consists of the
same
sworn statements discussed above and is similarly flawed.
11. Petitioner's argument that he has a right to confront his
accusers
implies that he disputes the sworn statements in the record.
However,
Petitioner may nevertheless determine upon further consideration of
this
matter not to dispute these statements, thus obviating the need for
a
hearing even if these statements are used to establish that
section
1128(a)(2)