SUBJECT:

Jairo Rendon, D.D.S,

Petitioner,

The Inspector General.

DECISION

Jairo Rendon, D.D.S. (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)), effective August 20, 2003, based upon his conviction of a criminal offense related to the sex abuse of a patient 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 mandatory pursuant to section 1128(c)(3)(B) of the Act (42 U.S.C. � 1320a-7(c)(3)(B)). Further, extension of the minimum period of exclusion by 15 years, for a total period of 20 years, is not unreasonable given the presence of three aggravating factors.

I. PROCEDURAL HISTORY

Petitioner was notified by the Inspector General (I.G.), by letter dated July 31, 2003, that he was being excluded from participation in Medicare, Medicaid and all federal health care programs for a minimum of 20 years pursuant to section 1128(a)(2) of the Act, for abuse of a patient in connection with the delivery of a health care item or service. The I.G. advised Petitioner that the minimum period of exclusion under the Act is five years, but that his period of exclusion was being extended based on the presence of three aggravating factors, including that Petitioner engaged in non-consensual sex acts with an incapacitated patient, Petitioner's sentence included incarceration, and Petitioner was subject to adverse action by the State of New York. I.G. Exhibits (I.G. Exs.) 1, 2. ⁽¹⁾

Petitioner requested a hearing by an administrative law judge (ALJ) by letter dated September 29, 2003. The case was assigned to me for hearing and decision on October 20, 2003. On January 9, 2004, I convened a prehearing conference by telephone, the substance of which is recorded in my Order dated January 20, 2004. During that conference, Petitioner agreed that the only issue in this case is whether the 20-year period of exclusion is reasonable. The parties agreed that this matter may be resolved on written pleadings and that there is no need for an oral hearing. I established an extended briefing schedule recognizing that Petitioner's incarceration would make his preparation of a brief, and the collection of any documentary evidence, difficult. The I.G. timely filed its motion for summary judgment (I.G. Br.), with supporting brief and exhibits 1 through 9, on February 9, 2004.

Petitioner's response to the I.G. motion was due March 12, 2004. Petitioner requested an extension of time to file by letters dated February 24, 2004 and March 5, 2004. The I.G. did not oppose the requested extension. By Order dated March 11, 2004, I granted Petitioner until May 10, 2004, to file his response brief. Petitioner requested a second extension of time to file by letter dated May 5, 2004. No opposition was filed by the I.G. and, by Order dated June 7, 2004, I granted Petitioner an extension of time until July 2, 2004 to file his response brief. I indicated in my Order of June 7, 2004 that no further extensions would be granted.

On June 29, 2004, Petitioner filed a third request for an extension with a supporting affidavit. On July 9, 2004, the I.G. filed an opposition to Petitioner's third request for an extension of time. Petitioner averred in his affidavit that responding to the I.G. motion is difficult as he is incarcerated with limited access to the law library; he is also pursuing post-conviction relief that has required his time; and he is waiting for a response to a New York freedom of information law request that he asserts will contain "information of sufficient 'mitigating circumstances' that will contradict the aggravating factors now being asserted by Respondent." Petitioner concluded his affidavit by requesting an additional extension of at least 90 days. I denied Petitioner's third request for an extension in my Order of July 19, 2004. Petitioner had already been granted more than five months to respond to the I.G.'s motion in a case where there is a single issue related to the reasonableness of the 20-year exclusion. Further, the regulation at 42 C.F.R. � 1001.102, which governs the length of exclusion, only permits limited grounds for challenging the I.G.'s proposed period of exclusion. I pointed out to Petitioner that he was limited to attacking the aggravating factors cited by the I.G. by showing that the factors considered by the I.G. were untrue or in error, or that he could attempt to show one of the three mitigating factors specified at 42 C.F.R. � 1001.102(c); arguably only one of which, related to Petitioner's mental, emotional or physical condition, might be applicable in this case. I also pointed out that no other grounds for challenging the length of the period of exclusion are permissible under the Act or regulations, and no evidence is relevant except as it relates to one of the acceptable grounds for challenge.

Petitioner's assertions in his various motions for extensions, and related affidavits, revealed that he was aware of his theory for attacking the reasonableness of the period of exclusion. Further delay, for a state agency response to a request for information which may include grand jury testimony, was not warranted given the issue and status of this case. I offered that Petitioner could support his response to the I.G. motion and brief with an affidavit in which he stated under oath what evidence he believes exists that supports his challenge to the aggravating factors cited by the I.G. or goes to establish the existence of a mitigating factor. ⁽²⁾ I advised Petitioner that his affidavit could be treated as an offer of proof and, if it was not disputed by the I.G., the affidavit/proffer would be treated as good evidence of the facts asserted. I advised Petitioner that if the I.G. objected to the proffer then I would undertake such other action as I deemed necessary to obtain the evidence Petitioner represented existed that was necessary for his case. I gave Petitioner until August 21, 2004 to respond to the I.G. motion and to submit his supporting affidavit or evidence. I advised Petitioner in my Order that failure to file a response would be treated as an affirmative waiver of the right to do so. By granting Petitioner until August 21^st, he effectively received a 50-day extension of the prior July 2, 2004 deadline. Nothing was received from Petitioner and, on October 6, 2004, I ordered that the record was closed as of August 21, 2004, and the case ready for decision.

No objections have been made to any of the nine I.G. exhibits and they are admitted.

II. FINDINGS OF FACT AND CONCLUSIONS OF LAW

A. Findings of Fact

The following findings of fact are based upon the uncontested and undisputed assertions of fact in the pleadings and the exhibits admitted. Citations may be found in the analysis section of this decision.

1. On June 8, 2001, Petitioner was convicted by a jury in the Supreme Court of the State of New York, County of Queens, of four counts of sex abuse in the first degree, which offense includes the element that the victim was rendered unable to resist.

2. The victim of Petitioner's sex abuse was a patient and the abuse occurred while the victim was in Petitioner's office for dental treatment.

3. The acts for which Petitioner was convicted were non-consensual sex acts.

4. Petitioner was sentenced to incarceration for six years.

5. Petitioner was subject to adverse action by New York state agencies, including exclusion from Medicaid and Petitioner's surrender of his dentistry license, based upon his conviction.

6. The I.G. notified Petitioner by letters dated July 31 and December 23, 2003, that he was being excluded from participation in Medicare, Medicaid and all federal health care programs for a minimum of 20 years pursuant to the section 1128(a)(2) of the Act).

7. Petitioner requested a hearing by letter dated September 29, 2003.

B. Conclusions of Law

1. Petitioner's request for hearing was timely and I have jurisdiction.

2. Petitioner was convicted of an offense of sex abuse in connection with the delivery of a health care item or service within the meaning of section 1128(a)(2) of the Act, and there is a basis for his exclusion.

3. A preponderance of the evidence establishes the aggravating factor recognized by 42 C.F.R. � 1001.102(b)(4).

4. A preponderance of the evidence establishes the aggravating factor recognized by 42 C.F.R. � 1001.102(b)(5).

5. A preponderance of the evidence establishes the aggravating factor recognized by 42 C.F.R. � 1001.102(b)(9).

6. No mitigating factors have been proven.

7. Petitioner must be excluded for the minimum period of five years.

8. It is not unreasonable to extend Petitioner's period of exclusion by 15 years for a total period of exclusion of 20 years.

9. The period of exclusion begins to run on August 20, 2003, the 20^th day after the I.G.'s July 31, 2003 notice of exclusion. 42 C.F.R. � 1001.2002.

III. 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 minimum period of five years. Pursuant to 42 C.F.R. � 1001.102(b), the period of exclusion may be extended based on the presence of specified aggravating factors. Only if the aggravating factors justify an exclusion of longer than five years may mitigating factors be considered as a basis for reducing the period of exclusion to no less than five years. 42 C.F.R. � 1001.102(c).

C. Discussion

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. Pursuant to section 1128(f) of the Act, an individual or entity subject to exclusion is entitled to notice and hearing to the same extent as provided by section 205(b) of the Act. An oral hearing is contemplated. See Act, section 205(b); 42 C.F.R. �� 1005.2(a), 1005.3(a), 1005.4(a) and (b), 1005.9, 1005.15, 1005.16. However, an oral hearing is not required where the parties agree to submit the case for my decision on a stipulated record, or where both parties waive appearance at an oral hearing and submit the case on documentary evidence and written argument. 42 C.F.R. �� 1005.6(b)(4), (b)(5). Further, no hearing is necessary where all issues may be resolved on a motion for summary judgment as authorized by 42 C.F.R. � 1005.4(b)(12). Summary judgment is appropriate and no hearing is required, where either: there are no disputed issues of material fact and the only questions that must be decided involve application of law to the undisputed facts; or, the moving party must prevail as a matter of law even if all disputed facts are resolved in favor of the party against whom the motion is made. A party opposing summary judgment must allege facts which, if true, would refute the facts relied upon by the moving party. The party opposing summary judgement must support their allegations of fact with affidavits or other evidence and mere allegations are not enough. See, e.g., Fed. R. Civ. P. 56(c); Garden City Medical Clinic, DAB No. 1763 (2001); Everett Rehabilitation and Medical Center, DAB No. 1628, at 2 (1997) (in-person hearing required where non-movant shows there are material facts in dispute that require testimony); see also, New Millennium CMHC, Inc., DAB CR672 (2000); New Life Plus Center, CMHC, DAB CR700 (2000).

In this case, the parties agreed during the January 9, 2004 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. No opposition has been filed, and I identify no issues of material fact in dispute. I conclude that no oral hearing is necessary for the taking of additional evidence and I decide this case based on the evidence and brief presently before me.

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

Petitioner has never disputed that, on June 8, 2001, he was convicted by a jury in the Supreme Court of the State of New York, County of Queens, of four counts of sex abuse in the first degree. ⁽³⁾ I.G. Ex. 5; Petitioner's Request for Hearing dated September 29, 2003. The victim of Petitioner's sex abuse was a patient, and the abuse occurred while the victim was in Petitioner's office for dental treatment. I.G. Ex. 3. 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 sex 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 5 years is mandated by the Act and extension of the period of exclusion by 15 years is not unreasonable in this case.

a. The aggravating and mitigating factors.

Petitioner does not deny that he was convicted of sex abuse of a patient in connection with the delivery of a health care item or service. Thus, the Act requires that Petitioner be excluded for the minimum period of five years. Petitioner has indicated in his request for hearing, and his motions for extensions and affidavits, that he is challenging his conviction. However, his action in state court to challenge his conviction does not provide grounds for delay of the case before me. If, after issuance of this decision, Petitioner obtains relief on appeal of his criminal conviction, then that may be addressed by a request for reinstatement to the I. G. pursuant to 42 C.F.R. � 1001.3005.

The real issue to be resolved is whether Petitioner should be excluded from participation in Medicare, Medicaid and all federal health care programs for the minimum period of five years, plus an additional 15 years as proposed by the I.G. The I.G. may extend the period of exclusion upon finding aggravating factors. In this case, the I.G. alleges there are three aggravating factors:

�The acts for which Petitioner was convicted were non-consensual sex acts. I.G. Br. at 5.

�Petitioner was sentenced to incarceration. Id. at 6.

�Petitioner was subject to adverse action by New York state agencies, including exclusion from Medicaid and Petitioner's surrender of his dentistry license, based upon his conviction. Id.

These aggravating factors are established by 42 C.F.R. �� 1001.102(b)(4), (5), and (9), respectively.

In his request for hearing dated September 29, 2003, Petitioner indicates that he disagrees with the I.G.'s allegation that his crime was premeditated or involved a pattern of behavior; but he has never denied that his conviction was for non-consensual sex acts. Petitioner also denied that he had any history of any prior criminal, civil or administrative sanction records. The I.G. accepted Petitioner's representation on the second point and issued the amendment of December 30, 2003 (I.G. Ex. 2) advising that the aggravating factor was that Petitioner was subject to adverse action by the state agency that excluded him from Medicaid based on his conviction. Petitioner conceded that he was sentenced to six years incarceration and that he surrendered his license to practice dentistry in New York. Thus, I conclude that Petitioner has conceded all three aggravating factors cited by the I.G.

I gave Petitioner the opportunity to submit an affidavit or other evidence in support of a brief in which he explained what, if any, mitigating factors might exist for me to consider under 42 C.F.R. � 1001.102(c). Petitioner did not take the opportunity. I note however, that the regulation only authorizes consideration of three mitigating factors. The first mitigating factor could not be established because Petitioner was convicted of felonies under New York State law. The third factor is inapplicable because it permits consideration of Petitioner's assistance or cooperation in investigating others. The second mitigating factor allows consideration that one had diminished culpability due to a mental, emotional, or physical conditions. However, in this case, the I.G. has submitted the transcript of the sentencing proceeding, and it is abundantly clear that there is no evidence that might support finding diminished culpability in this case. I.G. Ex. 3.

I conclude that there are three aggravating factors and no mitigating factors to be considered in determining the period of exclusion to be imposed.

b. Reasonable period of exclusion.

An appellate panel of the Departmental Appeals Board (the Board) has made clear that the role of the ALJ in cases such as this is to conduct a "de novo" review as to the facts related to the basis for the exclusion, and the facts related to the existence of aggravating and mitigating factors identified at 42 C.F.R. � 1001.102. See JoAnn Fletcher Cash, DAB No. 1725 (2000), at 17-18 n. 9, and cases cited therein. The regulation specifies that I must determine whether the length of exclusion imposed is "unreasonable." 42 C.F.R. � 1001.2007(a)(1). The Board has explained that, in determining whether a period of exclusion is "unreasonable," I am to consider whether such period falls "within a reasonable range." Cash at 17, n. 9. The Board cautions that whether I think the period of exclusion too long or too short is not the issue. I am not to substitute my judgment for that of the I.G., and may only change the period of exclusion in limited circumstances. In John (Juan) Urquijo, DAB No. 1735 (2000), the Board made it clear that if the I.G. considers an aggravating factor to extend the period of exclusion, and that factor is not later shown to exist on appeal, or if the I.G. fails to consider a mitigating factor that is shown to exist, then the ALJ may make a decision as to the appropriate extension of the period of exclusion beyond the minimum. In Gary Alan Katz, R.Ph., DAB No. 1842 (2002), the Board suggests that, when it is found that an aggravating factor considered by the I.G. is not proved before the ALJ, some downward adjustment of the period of exclusion should be expected absent some circumstances that indicate no such adjustment is appropriate. The Katz panel did not elaborate upon the weight to be given to individual aggravating factors, or how my de novo review and assessment of the weight to be given to proven aggravating factors is related to the weight the I.G. assigned those same factors.

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). Pursuant to 42 C.F.R. � 1001.102(d), one prior conviction, for conduct that would cause mandatory exclusion under section 1128(a) of the Act, increases the minimum period of exclusion to 10 years and two prior convictions automatically causes permanent exclusion. The five-year and 10-year minimum exclusions may only be extended if one or more of the aggravating factors specified at 42 C.F.R. � 1001.102(b) are present. The regulations do not limit the additional period of exclusion that may be imposed based upon the presence of aggravating factors. The regulations also do not specify how much of an extension is warranted by the existence of an aggravating factor. The Board has indicated that it is not the number of aggravating factors that is determinative; rather, it is the quality of the circumstances, whether aggravating or mitigating, which is controlling in analyzing these factors. Barry D. Garfinkel, M.D., DAB No. 1572 (1996).

In this case, I consider the three aggravating factors which have been shown to exist and the absence of any mitigating factors. As the Board stated in Jeremy Robinson, DAB No. 1905 (2004):

The exclusion remedy serves twin congressional purposes: the protection of federal funds and program beneficiaries from untrustworthy individuals and the deterrence of health care fraud. S. Rep. No. 109, 100^th Cong., 1^st Sess. (1987), reprinted in 1987 U.S.C.C.A.N. 682, 686 ("clear and strong deterrent"); Joann Fletcher Cash, DAB No. 1725, at 18, 15 (2000) (discussing trustworthiness and deterrence). When Congress added section 1128(a)(3) in 1996, it again focused upon the desired deterrent effect: "greater deterrence was needed to protect the Medicare program from providers who have been convicted of health care fraud felonies . . . ." H.R. Rep. 496(I), 104^th Cong., 2^nd Sess. (1996), reprinted in 1996 U.S.C.C.A.N. 1865, 1886.

Robinson at 3-4.

I conclude that the remedial purpose of deterrence will be served by Petitioner's 20-year exclusion. Details related to Petitioner's offenses were discussed during the sentencing proceeding. The transcript reflects that the victim knew Petitioner, possibly considering him a friend, and asked Petitioner to treat her toothache after regular business hours. Petitioner used nitrous oxide to render his victim unable to resist. Petitioner exposed and fondled his victim's breasts, exposed his penis, and touched her with it including near or on her mouth, and ejaculated on his victim. Petitioner made a statement during sentencing that the sentencing judge took to be a proclamation of innocence, despite the fact that the judge read the probation report to state that Petitioner had admitted to some of the conduct. The sentencing judge was concerned that Petitioner had little chance for rehabilitation as a sex offender, without first accepting what he did was wrong. The sentencing judge stated that he believed Petitioner to be a sexual predator and a danger to the community before sentencing Petitioner to serve six years. I.G. Ex. 3, at 20-25.

Given all the facts, Petitioner's exclusion for 20 years is not unreasonable. Petitioner has proven himself untrustworthy by his conduct. While a permanent exclusion might be consistent with protecting others from Petitioner given serious concern about his potential for rehabilitation, I will not further extend the period that the I.G. proposes in this case.

IV. CONCLUSION

For the foregoing reasons, Petitioner is excluded from participation in Medicare, Medicaid and all federal health care programs for a period of 20 years effective August 20, 2003.

KEITH W. SICKENDICK

Administrative Law Judge

1. The original I.G. notice is dated July 31, 2003. The original notice was amended by a notice of December 23, 2003, in which the I.G. clarified that the action of the State of New York was considered an aggravating factor under 42 C.F.R. � 1001.102(b)(9) rather than 42 C.F.R. � 1001.102(b)(6). The amendment did not change the period of exclusion announced in the original notice.

2. I note from Petitioner's requests for extension that he has ready access to a notary public.

3. A person is guilty of sexual abuse in the first degree when he subjects another to sexual contact by forcible compulsion or when the victim is incapable of consent by reason of being physically helpless or less than 11 years old. This is a Class D Felony. N.Y. Penal Law � 130.65.