Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
In the Case of:
Dillard P. Enright,
Petitioner,
- v. -
The Inspector General.
DATE: June 19, 1991
Docket No. C-320
DECISION
By letter dated September 10, 1990, the Inspector General (I.G.) notified Petitioner
that he was being
excluded from participation in the Medicare and State health care programs until
he obtained a valid
license to provide health care in the State of South Dakota. Petitioner was
advised that his exclusion
resulted from his surrender of his license to provide health care while a formal
disciplinary proceeding was
pending before the South Dakota Board of Nursing. Petitioner was further advised
that his exclusion was
authorized by section 1128(b)(4)(B) of the Social Security Act (Act).
By letter of October 23, 1990, Petitioner requested a hearing, and the case
was initially assigned to
Administrative Law Judge (ALJ) Steven T. Kessel for hearing and decision. Judge
Kessel held a
prehearing conference in this case on January 4, 1991, at which time he set
a hearing date for the case of
March 12, 1991. On March 1, 1991, this case was reassigned to me for hearing
and decision.
On March 12, 1991, I conducted an evidentiary hearing in Rapid City, South
Dakota. Based on the
evidence introduced by both parties at the hearing, and on the applicable law,
I conclude that the I.G. had
authority to exclude Petitioner and that the exclusion imposed and directed
against Petitioner by the I.G. is
reasonable under the circumstances of this case.
ISSUES
The issues in this case are:
1. whether Petitioner's license to provide healthcare was surrendered while
a
formaldisciplinaryproceeding was pending before aState licensingagency and the
proceedingconcerned his
professionalcompetence, professional performance, orfinancial
integrity;
2. whether the indefinite exclusion imposed anddirected by the I.G. against
Petitioner is
reasonable and appropriate.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. At all relevant times until October 11, 1989, Petitioner was a licensed
(by South Dakota) practical
nurse (L.P.N.) employed by the Sturgis Community Health Care Center (Sturgis).
P. Br. 2, I.G. Ex. 11.
2. Petitioner is now, and was at all relevant times, a certified laboratory
technician. Petitioner's
certification is through the "Credentialing Commission," which is
not a State agency, but an independent,
autonomous, credentialing agency. The State of South
Dakota does not license laboratory technicians. P. Ex. C; P. Br. 7.
3. On August 16, 1989, Petitioner was terminated by Sturgis for unprofessional
conduct, as a result
of two incidents of inappropriately touching male patients in the genital area.
P. Br. 2; I.G. Ex. 5, 6, 7.
4. On May 31, 1989, Michael Penticoff (Penticoff), Sturgis' Administrator,
received a letter from an
attorney indicating that her client had been sexually molested in the early
morning hours of March 25 and
26, 1989, while a patient at Sturgis. The attorney alleged that her client had
been receiving counseling and
had been "somewhat affected" by the incident. I.G. Ex. 5, 6; Tr. 19
- 20.
5. Petitioner and Sturgis' Director of Nursing, Sinnet Gorman Bestgen (Bestgen),
met with Petitioner
on June 5, 1989, to discuss this letter. Petitioner denied the accusations at
this meeting, and at a later
meeting on June 21, 1989, attended by Penticoff, Bestgen, and an adjustor from
Sturgis' insurance carrier.
At this time, Penticoff, after contacting Sturgis' attorney, elected to do nothing
about the complaint, as he
had doubts about the allegations in the letter. I.G. Ex. 5; Tr. 20 - 21.
6. On August 12, 1989, Penticoff was called by a physician whose patient had
just been discharged
from Sturgis. This second patient claimed that he had awakened while he was
a patient at Sturgis and a
male nurse was standing next to his bed. The male nurse had his hand in the
patient's genital area. I.G. Ex.
5; Tr. 21 - 22.
7. Bestgen first became aware of the second incident when a nurse working with
the patient told her
the patient had made allegations concerning the male nurse on the night shift.
Bestgen visited the patient,
who told her that he awoke to find a male nurse standing over him, with his
hand in the patient's genital
area. Bestgen called Petitioner into her office to discuss the allegations.
Petitioner denied them. Tr. 62 -
63.
8. Penticoff interviewed the patient, who informed Penticoff that when he woke
up the nurse quickly
removed his hands and grabbed the patient's arm. The nurse asked how the patient's
arm was, and
indicated to the patient that he was "checking the I.V." I.G. Ex.
5, 6; Tr. 22 -23.
9. Penticoff called Petitioner at home that day. Petitioner denied the allegations.
Petitioner told
Penticoff that he had gone into the patient's room to complete a paper report.
He thought the "I.V. had
infiltrated", and all he did was check the I.V. Penticoff suspended Petitioner
with pay, pending an
investigation. I.G. Ex. 5; Tr. 22 - 23.
10. During this telephone conversation, Petitioner volunteered that he seemed
to be having quite a few
problems, particularly with his foster children, one of whom he had struck.
Penticoff suggested Petitioner
see a psychologist, Dr. Arnio. I.G. Ex. 5; Tr. 23 - 26.
11. On August 15, 1989, Petitioner met with Penticoff, Sturgis' Assistant Administrator
Roger Heidt
(Heidt) , and Bestgen. Penticoff reviewed the allegations with Petitioner and
Petitioner initially denied
them. I.G. Ex. 5; Tr. 27 - 28.
12. Penticoff and Heidt left the room. Bestgen was left alone with Petitioner.
Bestgen asked
Petitioner if the second patient's allegation was true and he said yes, that
he had done something very
unprofessional to that patient. Bestgen then asked if the first patient's allegation
was true. Petitioner told
her it was true and that he could have touched the first patient "through
the covers". Tr. 64; I.G. Ex. 5, 7.
13. Penticoff was called into the room and Petitioner admitted that the allegations
made by both
patients were true. Penticoff indicated to Petitioner that one of the most important
things that could be
done is for him to get help for himself. Tr. 28; I.G. Ex. 5.
14. On August 16, 1989 Penticoff terminated Petitioner's employment at Sturgis,
based on Petitioner's
admission of unprofessional conduct. I.G. Ex. 5, 6, 7; 28 - 29.
15. Penticoff informed the South Dakota Board of Nursing (Nursing Board) about
Petitioner's
unprofessional conduct and about Petitioner's subsequent employment in a nursing
home, the Wesleyan
Methodist Care Center. Penticoff was concerned about nursing home patients being
alone with Petitioner.
Petitioner had begun the job with the nursing home job on Labor Day, 1989. I.G.
Ex. 4, 5; Tr. 29 - 32,
122.
16. The Nursing Board investigated Petitioner's unprofessional conduct and
in its Notice to Petitioner of
October 11, 1989, summarily suspended his nursing license, after finding that
his conduct "constitutes an
immediate threat to the public welfare and safety, and that it imperatively
requires emergency action by the
Board." I.G. Ex. 8, 9.
17. The Nursing Board, in its Notice to Petitioner of October 11, 1989, ordered
an "informal meeting" to
be held October 25, 1989, at which meeting Petitioner was requested to show
compliance with the
requirements for licensure in South Dakota. The Nursing Board informed Petitioner
that it had information
from independent sources that he had been involved in the conduct described
in affidavits from Penticoff
and Bestgen. I.G. Ex. 6, 7, 9.
18. The Nursing Board specifically informed Petitioner in its October 11, 1989
Notice that Petitioner had
the right to appear at the meeting with an attorney. If Petitioner did not appear,
his right to the "informal
meeting" would be waived and more formal proceedings would be held. I.G.
Ex. 9.
19. The "informal meeting" was held on October 25, 1989, between
Petitioner, the Nursing Board's
attorney, and a nurse consultant to the Nursing Board. Petitioner announced
that he did not want to contest
the allegations as reflected in the affidavits. He asserted that at the time
of the incidents he had been under
a lot of pressure. I.G. Ex. 10.
20. Petitioner stated at the meeting that he had seen a Dr. Arnio after his
termination, and that Dr. Arnio
had referred Petitioner to a mental health center. Petitioner saw a psychologist
there three times, but did
not return to see the psychologist after early September 1989. The only other
time Petitioner saw a mental
health professional was in the week preceeding the March 12, 1991 hearing. I.G.
Ex. 10; Tr. 134 - 137.
21. On November 15, 1989, the Nursing Board approved and entered a Stipulation
and Order, signed by
Petitioner on November 3, 1989, in which Petitioner voluntarily surrendered
his nursing license. I.G. Ex.
11.
22. The Stipulation states that: 1) the parties desired to come to a professionally
responsible solution and
resolve the issues without the requirement of further formal hearings and disciplinary
proceedings; and 2)
Petitioner had been given ample opportunity to address the matters with an attorney
and had entered into
the Stipulation fully understanding its consequences and not being under any
duress. I.G. Ex. 11.
23. In the Stipulation, the parties agreed that: 1) Petitioner would: 1) surrender
his license to practice
nursing; 2) if Petitioner should ever seek reinstatement as a L.P.N. in South
Dakota, Petitioner would have
the right to present a petition to the Nursing Board, in which he would "provide
satisfactory evidence to the
Board, that the conduct and source of the problems noted in this disciplinary
matter were being dealt with
in a sound and professional manner and that in all respects he would be a proper
candidate for licensure
again in South Dakota"; 3) the Nursing Board would not guarantee reinstatement
and the Nursing Board
might "reasonably require Mr. Enright to file with the Board such reports
and evaluations by appropriate
counselors and professionals, as the Board may deem reasonably appropriate."
I.G. Ex. 11.
24. In a letter of November 21, 1989 to Petitioner, enclosing a copy of the
settlement agreement as
accepted by the Nursing Board, Petitioner was told that Nursing Board staff
encouraged him to seek further
assistance in dealing with the difficulties he had experienced in the past months.
The letter suggested that
Petitioner's concerns went beyond nursing practice and employment and that Nursing
Board staff hoped he
would find ways to deal with these matters. P. Ex. A-31.
25. The Secretary of the Department of Health and Human Services (the Secretary)
delegated to the I.G.
the authority to determine, impose, and direct exclusions pursuant to section
1128 of the Act. 48 Fed. Reg.
21661 (May 13, 1983).
26. Section 1128(b)(4)(B) authorizes the I.G. to impose and direct exclusions
of individuals who have
surrendered their licenses to provide health care before a State licensing authority
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.
27. Petitioner surrendered his license while a formal disciplinary proceeding
was pending before a State
licensing authority in a proceeding concerning his professional performance.
28. The I.G. had the authority to exclude Petitioner under section 1128(b)(4)(B)
of the Act.
29. On September 20, 1990, the I.G. excluded Petitioner from participation
in the Medicare program and
directed that he be excluded from participation in the Medicaid program, pursuant
to section 1128(b)(4)(B)
of the Act.
30. The I.G. excluded Petitioner until such time as he received a license to
provide health care in the State
of South Dakota.
31. The requirement that Petitioner obtain a valid license to provide health
care in the State of South
Dakota means that Petitioner must obtain a valid L.P.N. license from the Nursing
Board.
32. At first Petitioner denied the two allegations of misconduct and admitted
them only after he was
suspended following the second incident. Tr. 63 - 64; I.G. Ex. 5, 8.
33. Petitioner has not actively participated in a counseling program for the
conduct that was the subject of
the disciplinary matter; such counseling program is the prerequisite for relicensure
as an L.P.N., and was
strongly suggested to him by Penticoff, the Nursing Board staff, and Dr. Jenter.
Tr. 134 - 137, 152 - 153;
I.G. Ex. 11; FFCL 20.
34. The professions of nursing and laboratory technician both involve patient
contact and patient trust. Tr.
33, 65 - 66, 125 - 127.
35. Petitioner has not demonstrated that he is trustworthy to work as either
an L.P.N. or a lab technician.
FFCL 32 - 34.
36. The exclusion imposed and directed against Petitioner by the I.G. is reasonable. FFCL 1 - 35.
DISCUSSION
Petitioner was both a practicing L.P.N. and lab technician in the State of
South Dakota. In November
1989, Petitioner surrendered his L.P.N. license in the State of South Dakota
in the face of charges that he
had improperly fondled two male patients in their genital area in the course
of his duties as an L.P.N.
Petitioner has no current plans to seek reinstatement as a L.P.N., but he would
like to provide services to
the Medicare and Medicaid programs as a lab technician. Petitioner argues that:
1) The proceeding in
which he surrendered his nursing license was not a formal proceeding and that
he was not advised that
surrender of his license would lead to his exclusion from participation in the
Medicare and Medicaid
programs in any capacity; and 2) conditioning Petitioner's exclusion on reissuance
of his L.P.N. license by
the Nursing Board is unreasonable. I disagree.
1. Petitioner surrendered his L.P.N. license in South Dakota while a formal
disciplinary proceeding was
pending before the Nursing Board, which concerned Petitioner's professional
performance, within the
meaning of section 1128(b)(4)(B).
The term "formal disciplinary proceeding" in section 1128(b)(4)(B)
refers to "a license proceeding which
places a party's license in jeopardy and which provides that party with an opportunity
to defend against
charges which might result in a license suspension or revocation." John
W. Foderick M.D., DAB Civ.
Rem. C-113 at 6 (1989), aff'd DAB App. 1125 at 5 (1990). This interpretation
is consistent with the
legislative purpose behind section 1128(b)(4)(B), which "presumes that
an individual or entity who
surrenders a health care license in the face of charges, and in the circumstance
where he has the
opportunity to defend himself, is as likely to be untrustworthy as the individual
or entity who loses a
license after litigating the issue of his or her professional competence, performance,
or financial integrity."
Foderick, DAB Civ. Rem. C-113 at 6 - 7.
In this case, Petitioner argues that: 1) under regulations of the South Dakota
Board of Nursing (P. Br. 29 -
32), the informal meeting Petitioner attended is not a step in a disciplinary
proceeding; 2) the informal
meeting was conducted only by a staff representative of the Nursing Board and
Nursing Board counsel;
and 3) no discipline or action could have been taken by the Nursing Board which
would result in denial,
revocation, suspension, annulment, withdrawal, or amendment of any application
license or certificate. If a
complaint was to be initiated, specific action was required by the Nursing Board
after the informal
meeting. Only the filing of a complaint would give the Board authority to place
Petitioner's license in
jeopardy. P. Br. 4 - 6.
I do not agree with Petitioner's interpretation that the informal meeting at
which Petitioner surrendered his
license was not a "formal disciplinary proceeding" within the meaning
of the Act. As I interpret the phrase,
such "formal disciplinary proceeding" in Petitioner's case began when
he received his October 11, 1989,
Notice of Informal Meeting and Order of Summary Suspension (I.G. Ex. 9); his
license to practice nursing
in South Dakota was, therein, summarily suspended. The Nursing Board suspended
Petitioner's license
"pending resolution of these matters," which matters concerned the
affidavits of Penticoff and Bestgen
recounting the unprofessional conduct at Sturgis for which Petitioner's employment
was terminated. I.G.
Ex. 6, 7, 9. If proven, these allegations could have resulted in the Nursing
Board's revocation of
Petitioner's license. As stated in Chester A. Bennett, M.D., DAB Civ. Rem. C-133
at 7 (1990), "it is
reasonable to conclude that 'during a formal disciplinary proceeding' encompasses
more than just a hearing
on the matter." A proceeding "entails a succession of events taking
place, rather than just one event, such
as a hearing." Id.
If Petitioner had not surrendered his license, the Nursing Board would have
had a responsibility to resolve
the issues raised by the claims. See I.G. Ex. 10. The Stipulation and Order
signed by the Nursing Board
on November 15, 1989, specifically stated that the parties decided to resolve
the issues set forth in the
affidavits and Order of Summary Suspension, without the requirement of further
formal hearings and
disciplinary proceedings . I.G. Ex. 11. The Nursing Board, in the absence of
Petitioner's surrender of his
license, was fully prepared to go forward.
Furthermore, whether or not this meeting was referred to as "informal"
by the Nursing Board, is not
definitive or meaningful in interpreting section 1128(b)(4)(B). This case is
governed by federal law, and
the interpretation of a federal statute or regulation is a question of federal,
not state, law. Bennett, supra, at
7, United States v. Allegheny County, 322 U.S. 174, 183 (1944).
Thus, I find that Petitioner surrendered his license to provide health care
to the South Dakota licensing
authority, the Nursing Board while a formal disciplinary proceeding was pending,
within the meaning of
section 1128(b)(4)(B). I further find that he surrendered his license for reasons
bearing on his professional
performance, those being the incidents of unprofessional conduct alleged in
the affidavits of Penticoff and
Bestgen, and which formed the basis for the summary suspension of Petitioner's
license. I also find that a
determination of whether Petitioner was told that surrendering his license might
result in his exclusion
from the Medicare and Medicaid programs is irrelevant to the question of whether
or not the I.G. had a
basis upon which to exclude him. In Foderick, the appellate panel stated:
The authority given to the I.G. to impose and
direct exclusions pursuant to section 1128(b)(4)(B)
is based on actions taken by state licensing boards.
The statute clearly intended that the I.G. was to
rely on the state board actions . . .
Foderick, DAB App. at 10; Also See, Andy E. Bailey, C.T., DAB App. 1131 (1990);
Roosevelt A.
Striggles, DAB Civ. Rem. C-301 (1991).
2. It is reasonable to exclude Petitioner from participating in the Medicare
and Medicaid programs until he
regains his L.P.N. license from the Nursing Board.
In deciding whether or not an exclusion under section 1128(b)(4)(B) is reasonable,
I must review the
evidence with regard to the exclusion law's remedial purpose.
Congress enacted the exclusion law to protect the integrity of federally funded
health care programs.
Among other things, the law was designed to protect program recipients and beneficiaries
from individuals
who have demonstrated by their behavior that they threatened the integrity of
federally funded health care
programs or that they could not be entrusted with the well-being and safety
of beneficiaries and recipients.
There are two ways that an exclusion imposed and directed pursuant to the law
advances this remedial
purpose. First, an exclusion protects programs and their beneficiaries and recipients
from untrustworthy
providers until they demonstrate that they can be trusted to deal with program
funds and to serve
beneficiaries and recipients. Second, an exclusion deters providers of items
or services from engaging in
conduct which threatens the integrity of programs or the well-being and safety
of beneficiaries and
recipients. See H.R. Rep. No. 393, Part II, 95th Cong. 1st Sess., reprinted
in 1977 U.S. Code Cong. &
Admin. News 3072.
An exclusion imposed and directed pursuant to section 1128 will likely have
an adverse financial impact
on the person against whom the exclusion is imposed. However, the law places
program integrity and the
well-being of beneficiaries and recipients ahead of the pecuniary interests
of providers. An exclusion is not
punitive if it reasonably serves the law's remedial objectives, even if the
exclusion has a severe adverse
financial impact on the person against whom it is imposed.
No statutory minimum mandatory exclusion period exists in cases where the I.G.'s
authority arises from
section 1128(b)(4)(B), nor is there a requirement that a petitioner is to be
excluded until he or she obtains a
license from the state where their license was revoked, surrendered or suspended.
See Lakshmi N. Murty
Achalla, M.D., DAB App. 1231 at 9 (1991). By not mandating that exclusions from
participation in the
programs be permanent, Congress has allowed the I.G. the opportunity to give
individuals a "second
chance." An excluded individual or entity has the opportunity to demonstrate
that he or she can and should
be trusted to participate in the Medicare and Medicaid programs as a provider.
The determination of when an individual should be trusted and allowed to reapply
for reinstatement as a
provider in the federal programs is a difficult issue. It is subject to discretion
without application of any
mechanical formula. The federal regulations at 42 C.F.R. 1001.125(b) guide me
in making this
determination. This hearing is, by reason of section 205(b) of the Act, de novo.
Evidence which is
relevant to the reasonableness of an exclusion is admissible whether or not
that evidence was available to
the I.G. at the time the I.G. made his exclusion determination.
Given congressional intent to exclude untrustworthy providers, I also consider
those circumstances which
indicate the extent of an individual's or entity's trustworthiness. Essentially,
I evaluate the evidence to
determine whether the exclusion comports with the legislative purpose outlined
above. I do not, however,
simply substitute my judgment for that of the I.G. I evaluate the evidence in
order to decide whether the
exclusion imposed and directed against a petitioner is so extreme or excessive
as to be unreasonable.
A determination of an individual's trustworthiness in section 1128(b)(4)(B)
cases thus necessitates the
following considerations: 1) the nature of the license surrender, the circumstances
surrounding it, and its
impact on the federal programs; 2) whether and when that individual sought help
to correct the behavior
leading to his license surrender; and 3) the extent to which the individual
has succeeded in rehabilitation.
See Thomas J. DePietro, R.Ph., DAB Civ. Rem. C-282 (1991).
Petitioner argues that he has now been excluded for a sufficient length of
time to satisfy all legitimate
concerns and questions that the I.G. may have. Petitioner also believes that
any further exclusion would be
punitive. P.Br. p. 12. Petitioner bases his argument on the following: 1) Petitioner
wants to practice as a
laboratory technician, and South Dakota does not license laboratory technicians;
2) it is unreasonable to
base Petitioner's ability to provide services to the Medicare and Medicaid programs
as a laboratory
technician on his regaining his L.P.N. license, as the two professions are separate;
3) while what Petitioner
did in the two incidents involving improper touching of male patients' genitalia
through the covers (I.G.
Ex. 5/3) was not proper, it cannot be characterized as sexual molestation or
sexual abuse; 4) Petitioner had
practiced for over ten years as a laboratory technician before pursuing his
L.P.N. and was employed as a
lab technician while employed as an L.P.N.; 5) Petitioner had been a loyal,
reliable, professional, and
dependable employee throughout his Sturgis employment; 6) Petitioner has had
an otherwise unblemished
23 year employment history; and 7) no criminal conduct, fraud or financial abuse
of the system was
involved in Petitioner's case. P. Br. 6 - 11.
Petitioner has argued that earlier Departmental Appeals Board (DAB) decisions
support his conclusion,
principally the cases of Foderick, supra.; Walter J. Mikolinski, DAB Civ. Rem.
C-166 (1989), rev'd DAB
App. 1156 (1990); and Lakshmi N. Murty Achalla, M.D., DAB Civ. Rem. C-146 (1990),
aff'd DAB App.
1231 (1991). I do not agree.
In Foderick, Dr. Foderick surrendered his license to practice medicine after
the Minnesota Board of
Medical Examiners' Discipline Committee concluded that a physical examination
established that Dr.
Foderick suffered from serious physical impairments and deteriorating mental
abilities rendering him
unable to practice medicine and surgery safely. In Foderick, both the ALJ and
the appellate panel held that
it was reasonable to exclude Dr. Foderick until such time as he regained his
license to practice medicine.
In contrast, in Mikolinski, Mr. Mikolinski, a pharmacist and a nursing home
operator, had his pharmacy
license suspended by the Pharmacy Board for two years after the Pharmacy Board
found that Mr.
Mikolinski had violated a state law by knowingly possessing, with intent to
distribute, a Class E controlled
substance, and that he had conspired to divert drugs from Massachusetts General
Hospital, thus not
conducting his professional activities in conformance with law. The Pharmacy
Board conditioned Mr.
Mikolinski's reinstatement on maintaining his continuing education requirements
and on taking a pharmacy
law examination and passing with a grade of no less than 75 percent. The I.G.
excluded him until he
regained his pharmacy license. In deciding Mr. Mikolinski's appeal of this exclusion,
the ALJ sustained
the exclusion as it applied to his participation as a pharmacist, but modified
it to a definite term of two
years as it applied to Mr. Mikolinski's participation as a nursing home operator,
administrator, or employee.
The appellate panel reversed the ALJ and concluded that the ALJ had erred in
setting different exclusion
periods for different functions. They stated, however, that section 1128(b)(4)
did not require an indefinite
exclusion for all section 1128(b)(4) exclusions. Instead, the ALJ could modify
the exclusion and set an
exclusion for a term of years.
In Achalla, the Florida Board of Medicine revoked Dr. Achalla's license to
practice medicine based on his
delivery to another individual of 100 tablets of a Schedule II narcotic controlled
substance, including
telephoning a false prescription for a controlled substance, and on his subsequent
conviction. Based on the
license revocation, the I.G. excluded Dr. Achalla until he regained his license.
On appeal, I found the
length of Dr. Achalla's exclusion to be unreasonable and modified it to a three
year exclusion. The
appellate panel affirmed, specifically finding that there was no explicit statement
in section 1128(b)(4) or
in its legislative history that the exclusion period should be coterminous with
the period of license
revocation on which it was based. This was because Congress had expressed an
intent that the exclusion
period should be set taking into consideration factors including the seriousness
of the offense, the impact of
the offense and the exclusion on beneficiaries, and any mitigating circumstances.
The appellate panel
stated that consideration of those factors would not be necessary if the exclusion
period was intended to be
tied automatically to the length of the license revocation. DAB App. 1231 at
9.
Petitioner asserts that these DAB decisions do not apply, because Petitioner:
1) was not specifically found
to be suffering from serious physical and mental impairments (as was Dr. Foderick),
and 2) had not been
convicted in a criminal court nor was he guilty of fraud or financial abuse
of the system (as were Mr.
Mikolinski and Dr. Achalla). Petitioner argues that the indefinite length of
his exclusion was unreasonable,
and that Petitioner's exclusion should be limited to "time served,"
as any legitimate function and purpose
for the exclusion had already been fulfilled. Petitioner states that his conduct,
while improper, does not
even approach the fraudulent criminal conduct of the decisions cited above.
P. Br. 9 - 10.
Petitioner has stated that he wants to participate in the programs as a laboratory
technician, a profession
which is different than that of licensed practical nurse. Petitioner appears
to compare his situation to that
of Mr. Mikolinski, who desired to participate in the programs as a nursing home
operator, not a pharmacist.
Thus, Petitioner argues, the indefinite exclusion imposed against him is unreasonable.
The decisions in
Mikolinski and Achalla, however, never held that an indefinite exclusion was
per se unreasonable for all
1128(b)(4) exclusions. Rather, they held that it was up to the ALJ to assess
the reasonableness of the
exclusion in light of all the circumstances detailed above.
In the case of Dr. Foderick, the DAB found that his physical and mental impairments
made it reasonable
that he remain excluded until the Minnesota licensing board found him competent.
In the case of Dr.
Achalla, in modifying Dr. Achalla's exclusion from an indefinite exclusion to
a three year exclusion, I
specifically found that Dr. Achalla's conduct subsequent to his conviction demonstrated
that he was
unlikely to again abuse his privileges as a physician, and that he did not pose
a substantial risk of harm to
beneficiaries or recipients or to the integrity of the Medicare and Medicaid
programs. DAB App. at 5. It
was the ALJ's task in each of these cases to determine when these individuals
would be trustworthy to
participate as providers in the Medicare and Medicaid programs. In this case,
I do not find that Petitioner
is as yet trustworthy to participate in the Medicare and Medicaid programs.
When Petitioner fondled those two patients, he broke a high duty of care and
trust. In a hospital, a patient
may be completely helpless and totally dependent on the professional care of
the hospital staff. Patients
need to believe that when hospital personnel touch their bodies, it is for professional
reasons, not to gratify
the sexual desires of the hospital staff. There is testimony that one of the
patients Petitioner fondled
needed therapy to deal with the consequences of Petitioner's conduct. FFCL 4.
Petitioner's breach of those
patients' trust and the duty he owed them is serious and extensive. Mr. Penticoff,
Sturgis' administrator,
realized this, and this concern was a factor in his determination to terminate
Petitioner. Penticoff stated:
"[t]he patients in the hospital basically give us their life and soul and
put a lot of trust in us, and that trust
had been violated, so I then terminated Mr. Enright." Tr. 29.
Petitioner has urged that, rather than focus on these two incidents, I should
look at his prior unblemished
employment history. I have taken that into consideration. I am more concerned,
however, with Petitioner's
present condition and any future danger he might pose to program beneficiaries
and recipients. Petitioner
has not as yet made any real efforts to deal with his problems. When confronted
with the allegations of
professional misconduct, Petitioner at first repeatedly denied that he had fondled
either patient. Penticoff,
the Nursing Board, and its staff, all urged Petitioner to get therapy for his
problems, but as yet he has made
no serious attempt to do so. Petitioner only saw a therapist a few times immediately
after the incidents in
question, and once during the week prior to the hearing in this case. FFCL 20,
33. Petitioner testified
during the hearing that he planned to continue with counseling, and that given
all he has gone through,
incidents such as the ones at Sturgis are not likely to recur. Tr. 112, 137.
He testified that at the time of
the incidents he was under stress due to problems with foster children at home,
and that stress is now gone.
Tr. 118 - 123. Petitioner's explanation, however, is simply not sufficient,
given his prior lack of
commitment to counseling and working out his problems. I see no indication that
Petitioner has actively
sought help to correct the behavior leading to his license surrender, or that
he has made significant progress
towards rehabilitation of the behavior which led him to surrender his license.
There is no evidence that if
stress recurred in his life he would deal with it in a more appropriate manner.
Petitioner's current employer, Dr. Jenter, testified that he has no reservations
concerning Petitioner working
with patients. Tr. 148 - 149. Jenter feels that Petitioner today is a more "mellow
person" than he was two
years ago. Tr. 149. However, Jenter was not aware until February 19, 1991, when
Petitioner's counsel told
him, that Petitioner had surrendered his license voluntarily because of two
cases of sexual misconduct at
Sturgis. Jenter had previously been led to believe that there was a problem
with Petitioner and a couple of
male patients, but Jenter had no knowledge of the exact nature of the problems.
When Jenter was informed
of the nature of the problems, Jenter, as Penticoff and the Nursing Board staff
had done previously, urged
Petitioner to go for counseling. Tr. 152 - 154.
Petitioner asserts that it is unreasonable to preclude him from providing his
services to the Medicare and
Medicaid programs as a laboratory technician until he regains his L.P.N. license.
However, while nursing
would likely involve a greater amount of patient contact, Petitioner might also
have a considerable amount
of patient contact as a laboratory technician. Both Penticoff and Bestgen testified
that, like nursing, the
profession of laboratory technician involves patient contact and trust. Tr.
33, 66. Bestgen testified that, at
Sturgis, laboratory technicians act as phlebotomists, which means that they
directly draw blood from the
patients for testing, in open and closed door situations, in the patient's room
or in the emergency room. Tr.
66. Petitioner himself indicated that as a laboratory technician he has had
patient contact. Tr. 126 - 127.
Thus, I find that the two professions are not so different that the same standards
of trustworthiness would
not be applicable to both. This situation is unlike Mr. Mikolinski's, where
his program participation as a
nursing home operator became conditioned upon his receiving a passing score
of 75 percent or better on a
pharmacy exam. In Petitioner's case, a determination of his trustworthiness
to work with patients is the
same whether he functions as a laboratory technician or a nurse.
Before Petitioner can regain his L.P.N. license, the Nursing Board wants Petitioner
to show them that his
problems have been dealt with in a sound and professional manner. Once Petitioner
can do this, the
Nursing Board stipulated that it would entertain Petitioner's petition to regain
his license. FFCL 23. Such
evidence that Petitioner is dealing with his problems, soundly and professionally,
is precisely what I need
to see before I can consider modifying the I.G.'s exclusion. I have not seen
it in this proceeding.
Petitioner argues that he has attempted to contact the Nursing Board and that
they have not been
encouraging. Petitioner states that one Nursing Board staff member told him,
"your chances of getting it
[Petitioner's L.P.N. license] back are nearly not at all because you surrendered
your license," and that
Petitioner, "might as well forget trying to do it [regain his license]."
Tr. 127 - 128. The Nursing Board's
attorney, in a letter to Petitioner's counsel, indicated that Petitioner, "does
have the option, I suppose, of
coming back before the Board for licensure, but I would anticipate that under
the circumstances of this
case, this would be a difficult course for him to be successful in." P.
Ex. A/11. However, Petitioner has
never applied for relicensure (Tr. 128) and does not know what the Nursing Board
would do if he
reapplied. I realize that, since Petitioner has done nothing to seriously address
the conduct for which he
was excluded, it may be true that at this time he will not be able to regain
his license. However, Petitioner
has not permanently surrendered his nursing license. While Petitioner may not
now be ready to regain his
license, that does not mean that the Nursing Board will never consider his application.
Before he can say
convincingly that he cannot regain his nursing license, Petitioner needs to
show the Nursing Board that he
has professionally dealt with his problems.
In order to modify an exclusion imposed and directed against a petitioner by
the I.G., I must find that the
exclusion is so extreme or excessive as to be unreasonable. Because of the similarity
of patient contact
between the professions of licensed practical nurse and laboratory technician,
and because the very
conditions upon which the Nursing Board has stipulated it will consider Petitioner's
application for
relicensure are the same as those I need to see in order to consider modifying
Petitioner's exclusion, I find
that the exclusion imposed and directed against Petitioner by the I.G. is reasonable.
Petitioner has not
seriously sought help to correct the behavior which led to his license surrender
and has not yet made
significant steps on the road to rehabilitation.
CONCLUSION
Based on the evidence in the record of this case, the arguments of the parties,
and federal law and
regulations, I conclude that the I.G.'s determination to exclude Petitioner
from participation in the Medicare
and Medicaid programs until he obtains a valid L.P.N. license in South Dakota
is reasonable and
appropriate. There-fore, I am entering a decision in favor of the I.G. in this
case.
IT IS SO ORDERED
Charles E. Stratton
Administrative Law Judge