Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Appellate Division
In the Case of:
Jerry D. Harrison, D.D.S.,
Petitioner,
- v. -
The Inspector General.
DATE: October 16, 1992
Docket No. C-281
Decision No. 1365
FINAL DECISION ON REVIEW OF ADMINISTRATIVE LAW JUDGE DECISION
Jerry D. Harrison, D.D.S. (Petitioner) appealed a May 29, 1992 decision
by
Administrative Law Judge (ALJ) Edward D. Steinman. See Jerry
D.
Harrison, D.D.S., DAB CR203 (1992) (ALJ Decision). The ALJ affirmed
the
Inspector General's (I.G.'s) determination to impose and direct
an
exclusion against Petitioner under section 1128(b)(4) of the
Social
Security Act (Act). The period of exclusion was no less than
five
years. (The full terms of the exclusion are set out on page 3,
below.)
Based on the following analysis, we affirm the ALJ Decision.
Background
Petitioner was licensed to practice dentistry in Iowa in 1968.
Petitioner
was also licensed in California and Washington in 1984. In
November
1989, the Iowa Board of Dental Examiners (Iowa Board) filed a
Statement of
Charges alleging that, between 1978 and 1984, Petitioner
had sexually abused
five children who were patients in his dental
practice. In April 1990,
Petitioner signed a Consent Order in which he
admitted abusing four children
between 1978 and 1981. Under the terms
of the Consent Order, Petitioner
surrendered his Iowa dental license.
Effective August 21, 1990, the I.G. excluded Petitioner from
participation
in Medicare and State health care programs (Medicaid)
until he obtained a
valid license to practice medicine in Iowa.
Subsequently, the California Board of Dental Examiners (California
Board)
conducted an investigation of Petitioner based on the charges
against him in
Iowa. Effective March 1, 1991, the California Board
revoked
Petitioner's California dental license and stayed the revocation
for five
years based on his compliance with certain restrictions
including successful
completion of a probation period. Based on the
action of the California
Board, the I.G. modified the length of
Petitioner's exclusion to be until
Petitioner successfully completes his
California probation and has his
California dental license restored.
In September 1991, the Washington State Dental Disciplinary
Board
(Washington Board) revoked Petitioner's Washington dental
license.
However, the revocation was stayed indefinitely and
Petitioner was
placed on probation with certain conditions including that he
comply the
conditions established by the California Board. (Those
conditions
included a prohibition from treating children under eight years of
age
and a requirement that a third party be present during treatment of
all
patients between the ages of eight and eighteen.)
Petitioner's exclusion was a "permissive exclusion" under section
1128(b)
of the Act. Specifically, that section provides --
The Secretary may exclude the following individuals and
entities
from participation in any program under title XVIII
[Medicare]
and may direct that the following individuals and entities
be
excluded from participation in any State health care program:
* * *
(4) LICENSE REVOCATION OR SUSPENSION. -- Any individual
or
entity --
(A) whose license to provide health care has been revoked
or
suspended by any State licensing authority, or who
otherwise
lost such a license, for reasons bearing on the individual's
or
entity's professional competence, professional performance,
or
financial integrity, or
(B) who surrendered such a license while a formal
disciplinary
proceeding was pending before such an authority and
the
proceeding concerned the individual's or entity's
professional
competence, professional performance, or financial
integrity.
Petitioner timely requested a hearing before an ALJ.
The ALJ Decision was based on 51 findings of fact and conclusions of
law
(FFCLs). The ALJ determined that an exclusion was warranted in
this
case. However, he modified the exclusion imposed by the I.G. as
follows
--
Petitioner is excluded for not less than five years. If at
the
end of that time California has given him an unrestricted
dental
license, or at any time thereafter that California gives him
an
unrestricted dental license, he may apply for reinstatement as
a
Medicare/Medicaid provider. Or, if at the end of the five
years
another State has given him an unrestricted dental license,
or
at any time after the five years that a State gives him
an
unrestricted dental license, and 1) he is practicing there;
and
2) prior to giving him an unrestricted dental license,
that
State had examined all of the legal and factual
issues
considered by the California Board, then he may apply
for
reinstatement as a Medicare/Medicaid provider.
ALJ Decision at 29.
Issues on appeal
On appeal, Petitioner raised two major issues:
o Whether the ALJ erred by diagnosing Petitioner as
a
pedophile, contrary to the medical evidence; and
o Whether the ALJ erred by concluding that Petitioner
had
surrendered his Iowa license during a formal
disciplinary
proceeding.
Petitioner took exception to FFCLs 14-21, 24, 25, 37 and 38.
Analysis
I. Whether the ALJ erred by diagnosing Petitioner as a
pedophile,
contrary to the medical evidence
Petitioner challenged the following FFCLs:
21. The four boys Petitioner admitted abusing during the period
from
1978 to 1981 were 12, 13, or 14 years old.
* * *
24. Petitioner did not stop abusing the children of his close
friends
until he was confronted by the parents of some of the victims.
25. Petitioner did not seek professional psychological treatment
for
his problem until May 1983, when parents of some of the victims
decided
that it was necessary that he do so.
* * *
37. Petitioner admits to engaging in repeated incidents of
sexual
misconduct involving five different boys, aged 12 to 14 years, over
a
period of five years.
38. Petitioner's pattern of sexual misconduct during the period
from
1978 to 1983 meets the diagnostic criteria for the mental disorder
known
as pedophilia, established by the American Psychiatric Association,
as
set forth in the 1987 Diagnostic and Statistical Manual of
Mental
Disorders.
ALJ Decision at 6-7 (citations omitted).
Petitioner alleged that these FFCLs formed the basis of the
ALJ's
"diagnosis" of Petitioner's condition as pedophilia.
Petitioner
contended that this "diagnosis" was inconsistent with the
medical
evidence in the record. Petitioner cited the testimony or
reports of
the three doctors involved in his case and indicated that none of
them
had diagnosed him as a pedophile. Petitioner noted that the I.G.
had
entered into evidence a discussion of pedophilia contained in
DSM-III-R.
1/ Petitioner asserted that the I.G. had taken the DSM-III-R
discussion
"out of context" and that the ALJ had simply adopted this
discussion as
a diagnosis of Petitioner's condition. Petitioner's Br.
at 1-4.
Petitioner conceded that he sexually abused four "teenage boys . .
.
between 1978 and 1981 (not 83) whose ages may have ranged" from 12
to
14. Id. at 1. However, he asserted that these were sexually
mature
boys, not prepubescent as the I.G. had alleged. 2/ FFCL 24
stated that
Petitioner did not stop sexually abusing children until
confronted by
parents of the children in 1981. However, Petitioner
asserted that all
the sexual abuse at issue here occurred before December
1980.
Petitioner also asserted that, contrary to FFCL 25, he had
sought
professional help on his own prior to May 1983, but had not done
so
publicly. Rather, he indicated that he had been discussing his
problems
weekly with a parent of one of the abused boys who was a high
school
vice-principal and guidance counselor.
Petitioner claimed that several additional factors justified a reversal
of
the ALJ Decision. He noted that he has undergone years
of
psychotherapy, the manic-depressive disorder (which he was diagnosed
in
1983 as having) is in remission and he has not needed to rely
on
medication (lithium) to control it since 1986, and the testimony of
his
current therapist shows that he no longer poses a significant risk
to
abuse children.
Petitioner's exceptions to these FFCLs do not warrant modification
or
reversal of any of the FFCLs. While the ALJ, in his
analysis,
improperly relied on the DSM-III-R concerning the risk of
Petitioner
repeating his misconduct, the ALJ's finding that Petitioner did
pose
such a risk is amply supported by other evidence in the record.
The ALJ
correctly concluded (in FFCL 50) that a lengthy exclusion is
reasonable
to protect program beneficiaries and recipients, even if there is
only a
slight risk that Petitioner might sexually abuse patients, because
such
abuse, if it occurred, would greatly endanger the welfare and safety
of
such persons.
We agree with Petitioner that the ALJ is not qualified to make his
own
medical or psychiatric diagnoses, and must rely for diagnostic
opinions
on evidence adduced at the hearing based on the expertise of
others.
See section 205(b)(1) of the Act. The ALJ did not specifically
diagnose
Petitioner as a pedophile. Instead, the ALJ found that
Petitioner's
"pattern of sexual misconduct meets the . . . diagnostic
criteria for
pedophilia." FFCL 38; ALJ Decision at 19 (emphasis
added). This
finding was not based solely on the DSM-III-R, but was
based on
testimony by Petitioner's treating psychotherapist, Dr. Steven
Hansen,
which could reasonably be viewed as supporting this finding.
Tr. at
114; see generally Tr. at 93-114. In spite of carefully wording
this
finding, however, the ALJ nonetheless in his analysis treated
Dr.
Hansen's concession that the diagnostic criteria were met as
equivalent
to a concession that Petitioner's disorder is properly diagnosed
as
pedophilia.
The ALJ noted that the DSM-III-R states that pedophilia is usually
a
chronic condition and that people with pedophilia involving a
preference
for the same sex have approximately twice the recidivism rate as
that of
people who prefer children of the opposite sex. Based on
this
information, the ALJ said that Petitioner was at risk for repeating
his
sexual misconduct. ALJ Decision at 19, 25. This information
is
relevant, however, only if Petitioner has the disorder of
pedophilia.
There is no expert opinion to support such a finding.
Treating Dr.
Hansen's concession that Petitioner's conduct met the
diagnostic
criteria for pedophilia as support improperly disregards Dr.
Hansen's
expert opinion concerning why such a diagnosis was not appropriate
for
Petitioner's condition. In effect, the ALJ was drawing a
conclusion
from application of diagnostic criteria which requires the
exercise of
expert clinical judgement.
The I.G. defended the ALJ's reliance on the DSM-III-R by pointing out
that
Dr. Hansen's diagnostic opinion and a similar opinion by Dr. Hannon
(who
administered psychological tests on Petitioner and also did not
diagnose his
disorder as pedophilia) were based on Petitioner's
representations to them
about the ages of his victims. These statements
indicated ages slightly
older than those Petitioner admitted here (12 to
14). This was pointed
out to Dr. Hansen at the hearing, however, and
did not change his opinion
that a diagnosis of pedophilia was
inappropriate. Tr. at 101-109.
While the I.G. raised other questions
about the validity of Dr. Hansen's
opinion, the I.G. pointed to no
expert opinion that pedophilia is an accurate
diagnosis for Petitioner.
Moreover, the I.G. did not present any evidence
that Petitioner's
victims were prepubescent, rather than postpubescent as
Petitioner
testified. 3/ The I.G. relied solely on the DSM-III-R
statement that
prepubescent children are "generally age 13 or younger."
That such
children are generally 13 or under does not necessarily mean that
all
children 13 or under are prepubescent.
Although we conclude therefore that the ALJ's reliance on the
DSM-III-R
was improper, we nonetheless find substantial evidence to support
the
ALJ's findings on the risk Petitioner poses. As noted above, the
ALJ
found that only a slight risk of a repeat of Petitioner's
sexual
misconduct was sufficient to justify the exclusion imposed, in view
of
the potential for devastating harm to the psychological health
of
others. There is ample evidence in the record (other than
the
DSM-III-R) to support a finding that there is some risk that
Petitioner
will repeat his misconduct. (See generally the evidence
discussed in
the ALJ Decision at 17-27.)
Although the experts who treated or evaluated Petitioner indicated
there
was no "significant" risk of repeat behavior, as the ALJ noted,
these
individuals consistently found that Petitioner suffered from a
serious
mental illness and would benefit from continued psychotherapy to
ensure
that he did not repeat his misconduct. Additionally, both
the
California and Washington Dental Boards placed conditions
on
Petitioner's probation which indicated that these Boards
perceived
Petitioner to be a threat to his minor patients.
Finally, Petitioner's exceptions to FFCLs 24 and 25, regarding when
he
last engaged in sexual misconduct and when he sought professional
help,
have no merit. Petitioner's assertion that he last abused a child
in
December 1980 is inconsistent with his admission in the Iowa
Consent
Order that he sexually abused five children from the period 1978
to
1981. I.G. Ex. 2. Petitioner also admitted, in the proceedings
before
the ALJ, that he engaged in sexually inappropriate behavior with
another
boy, who was approximately 12 years old, on the day before
his
hospitalization in 1983. Tr. at 203-204. In his exceptions,
Petitioner
sought to distinguish between the incidents of sexual abuse which
were
the basis of the Iowa proceedings and the July 1983
incident.
Petitioner's Br. at 1. Although the 1983 incident was not the
basis of
any action against him, Petitioner's admission to engaging in
this
behavior undercuts his argument that his last incident of
inappropriate
behavior was so remote that he is no longer a threat.
Moreover, Petitioner's assertion that he sought "professional help"
before
December 1981 (when he was confronted by the parents of one of
the children)
is not convincing. While the parties agree that
Petitioner was
discussing his problem with a high school
vice-principal/guidance counselor
(who was also a parent of one of the
abused children), there is no evidence
that these discussions fell
within the generally accepted understanding of
"professional
psychological treatment." In fact, Petitioner indicated
that this
person had urged him to see a psychologist. Petitioner Ex. 2
at 5.
Thus, the ALJ could reasonably conclude that the discussions did
not
qualify as professional psychological treatment. In any event, the
key
point made by the ALJ was that Petitioner had sought help only
when
pressured to do so by the parents of his victims.
Based on the preceding analysis, we affirm and adopt FFCLs 21, 24, 25,
37,
and 38.
II. Whether the ALJ erred by concluding that Petitioner had
surrendered
his Iowa license during a formal disciplinary proceeding
Petitioner also raised arguments concerning the circumstances
and
consequences of the Consent Order Petitioner signed in Iowa and
the
I.G.'s authority to exclude Petitioner under section 1128(b) of the
Act.
Specifically, he challenged the following FFCLs:
14. Petitioner admitted that he surrendered his license to
provide
health care while a formal disciplinary proceeding was pending before
a
State licensing authority, within the meaning of section
1128(b)(4)(B)
of the Act.
15. The formal disciplinary proceeding concerned
Petitioner's
professional competence and his professional performance within
the
meaning of section 1128(b)(4)(B) of the Act.
16. The I.G. had authority to exclude Petitioner pursuant to
section
1128(b)(4)(B) of the Act.
17. Section 1128(b)(4)(B) of the Act does not establish a minimum or
a
maximum term of exclusion.
18. The Secretary did not intend that the regulations promulgated
on
January 29, 1992, concerning permissive exclusions under section
1128(b)
of the Act, 42 C.F.R. .. 1001 Subpart C, apply retroactively to
appeals
of I.G. exclusion determinations that were pending before ALJs at
the
time the regulations were promulgated.
19. The remedial purpose of section 1128 of the Act is to protect
the
integrity of federally-funded health care programs and the welfare
of
beneficiaries and recipients of such programs from individuals
and
entities who have been shown to be untrustworthy.
20. Petitioner's surrender of his dental license in the face
of
charges, and where he had the opportunity to defend himself against
such
charges, creates a presumption that he is as untrustworthy as
an
individual who loses his or her license after litigating the issue
of
his or her professional competence or professional performance.
ALJ Decision at 5-6 (citations omitted).
Petitioner offered general exceptions to these FFCLs. His most
direct
arguments were aimed at FFCLs 14 and 15 which state that he
surrendered
his dental license in the course of a formal disciplinary
proceeding
concerning his competence and professional performance within
section
1128(b)(4)(B) of the Act. Petitioner argued that he signed the
Iowa
Consent Order to avoid a hearing. He noted that if the Iowa Board
had
revisited his misconduct all parties affected by his actions would
have
suffered needless embarrassment. Petitioner suggested that he
had
received "poor legal advice" regarding his decision to sign the
Iowa
Consent Order. Petitioner's Br. at 2. Petitioner asserted
that his
counsel had been disqualified "due to conflicts" and he had been
denied
an extension to obtain new counsel. Id. at 3.
Additionally, he
described the Order as "too vague" and containing
"inaccurate
accusations." Id. Petitioner noted that his Iowa
license had expired
in 1986. He indicated that he had been advised that
there was no
purpose in renewing that license since he was neither living nor
working
in Iowa and had valid licenses in California and Washington.
Thus,
Petitioner contended that his only recourse, at the time, was to
sign
the Order and explain the issues to the California and
Washington
Boards.
Petitioner's arguments are without merit. Petitioner admitted that
he
had surrendered his Iowa license while formal proceedings were
pending.
January 7, 1991 Prehearing Order; see also I.G. Ex. 2 at 3.
The charges
brought against Petitioner in Iowa clearly focused on his
professional
competence and performance. The Statement of Charges
against him and
the Consent Order which he signed recounted the following
undisputed
facts: Petitioner had sexually abused several young boys who
were
patients in his practice (although the abuse did not occur in the
course
of his practice), had been involuntarily committed to a
mental
institution in 1983, had stopped practicing dentistry from 1984 to
1988,
and had received disability payments during this period. See I.G.
Exs.
1 and 2.
The ALJ found that Petitioner's mental illness affected his
professional
competence and performance. The ALJ noted --
The terms "professional competence" and
"professional
performance" are not defined in section
1128(b)(4)(B). However,
the plain meaning of the terms
encompasses the ability to
practice a licensed service with reasonable
skill and safety.
Petitioner's mental illness jeopardizes the
well-being and
safety of children who are his patients, and it impairs
his
ability to practice dentistry with reasonable skill and safety.
ALJ Decision at 12.
Petitioner's arguments on the Iowa proceedings, his reasons for
signing
the Consent Order, and the quality of the legal advice
Petitioner
received are irrelevant to the issue of whether section
1128(b)(4)(B)
applies. As we concluded in Bernardo G. Bilang, M.D., DAB
1295 (1992),
it is the fact of a petitioner's surrender of his license while
a formal
disciplinary proceeding was pending before a State licensing
authority
concerning his professional competence or performance that is a
basis
for exclusion. Bilang at 8; see also Leonard R. Friedman, M.D.,
DAB
1281 (1991). Moreover, Petitioner's arguments here do not overcome
the
presumption of untrustworthiness which arises from the surrender of
his
license since they do not go to the issue of whether he in fact has
a
mental illness which caused him to engage in sexual misconduct.
Petitioner is apparently complaining that he did not know that his
actions
in Iowa would subject him to an exclusion. The plain terms of
the
statute, however, were sufficient notice that surrendering his
license in the
existing circumstances could lead to an exclusion. The
ALJ's conclusion
that surrender of a license in such circumstances gives
rise to a presumption
that Petitioner is as untrustworthy as someone
whose license is revoked is
consistent with the Board's decisions in
Bilang and John W. Foderick, M.D.,
DAB 1125 (1990). These decisions
were based on the legislative history
of section 1128(b)(4)(B) cited by
the ALJ. Bilang at 8; Foderick at
10-11, citing S. Rep. No. 109, 100th
Cong., 1st Sess. 7, reprinted in 1987
U.S. Code Cong. & Admin. News 682,
688.
Moreover, we affirm the following FFCLs to which Petitioner
generally
excepted: that the Act authorizes the I.G. to exclude a
petitioner who
surrenders a license during a disciplinary proceeding (FFCL
16), that
section 1128(b)(4)(B) does not set a minimum or maximum period
of
exclusion (FFCL 17), and that the remedial purpose of section 1128
of
the Act is to protect the integrity of federally-funded health
care
programs, the welfare of beneficiaries and recipients from
untrustworthy
individuals and entities (FFCL 19). Petitioner did not
offer any basis
for challenging the ALJ's conclusions, which are supported by
the plain
language of the Act and its legislative history. See, e.g.,
Foderick.
Finally, Petitioner's exception to FFCL 18 has no merit. There, the
ALJ
rejected the I.G.'s argument that the regulations promulgated on
January
29, 1992, concerning permissive exclusions under section 1128(b) of
the
Act, 42 C.F.R. .. 1001 Subpart C, apply retroactively to appeals of
I.G.
exclusion determinations that were pending before ALJs at the time
the
regulations were promulgated.
Before the ALJ, Petitioner contended that the new regulations did
not
apply since they were not in effect at the time the I.G. made
his
exclusion determination. ALJ Decision at 14. The ALJ
effectively ruled
in Petitioner's favor on this issue. We have held
that portions of the
1992 regulations which change substantive law may
permissibly be applied
only to cases in which the I.G.'s Notice of Intent to
Exclude, Notice of
Exclusion, or Notice of Proposal to Exclude is dated on or
after January
29, 1992. Behrooz Bassim, M.D., DAB 1333 at 7-9
(1992). Consequently,
we affirm FFCL 18 without further comment.
For the reasons stated above, we affirm and adopt FFCLs 14-20.
Conclusion
Based on the preceding analysis, we affirm and adopt FFCLs 14-21, 24,
25,
37, and 38, to which Petitioner excepted. We also affirm and
adopt
those FFCLs to which Petitioner did not take exception.
Consequently,
we affirm the ALJ Decision in its entirety.
_________________________
Donald
F. Garrett
_________________________
M.
Terry Johnson
_________________________
Judith
A. Ballard
Presiding Board Member
1. DSM-III-R is the 1987 Diagnostic and Statistical Manual of
Mental
Disorders, Third Edition-Revised, published by the American
Psychiatric
Association. See ALJ Decision at 19, Hearing Transcript
(Tr.) at 31-32.
I.G. Exhibit 15 contains section 302.20 of that Manual which
addresses
pedophilia. Petitioner submitted with his brief introductory
material
to the DSM-III-R which Petitioner said pointed out that "the
diagnosis
should be made by an experienced clinician on an individual basis
as he
analyzes the underlying clinical manifestations of each
individual
case." Petitioner's Brief (Br.) at 2.
2. Apparently, Petitioner's reference here is to an allegation made
by
the I.G. before the ALJ.
3. The DSM-III-R states that "[t]he essential feature of pedophilia
is
recurrent, intense, sexual urges and sexually arousing fantasies, of
at
least six months duration, involving sexual activity with a
prepubescent
child." I.G. Exhibit (Ex.) 15, DSM-III-R
at