David Ward, DAB CR5486 (2019)

DECISION

The Inspector General of the United States Department of Health and Human Services (the IG) excluded David Ward (Petitioner) from participation in Medicare, Medicaid, and all other federal health care programs for five years based on his criminal conviction for a criminal offense related to neglect or abuse of patients, in connection with the delivery of a health care item or service.  Petitioner sought review of his exclusion.  For the reasons stated below, I affirm the IG’s exclusion determination.

I. Background and Procedural History

By letter dated April 30, 2019, the IG notified Petitioner that he was being excluded, effective 20 days from the date of the letter, from participation in Medicare, Medicaid, and all federal health programs under section 1128(a)(2) of the Social Security Act (Act) (42 U.S.C. § 1320a-7(a)(2)) for a minimum statutory period of five years.  The IG explained she took this action based on Petitioner’s conviction in a Pennsylvania

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state court for a criminal offense related to neglect or abuse of patients, in connection with the delivery of a health care item or service.  IG Ex. 1 at 1.1

Petitioner timely requested a hearing before an administrative law judge and I was designated to hear and decide this case.  On June 10, 2019, I held a pre-hearing telephone conference, the substance of which is summarized in my June 11, 2019 Order Summarizing Pre-hearing Conference and Setting Briefing Schedule (Summary Order).  Among other things, I directed the parties to file pre-hearing submissions articulating their respective arguments and identifying witnesses and documentary evidence in support thereof. Summary Order at 3-4.

The IG filed a brief (IG Br.) and six proposed exhibits (IG Exs. 1-6).  Petitioner submitted a series of images that contain his filings.  These items are not labeled or numbered in accordance with the instructions I provided to the parties in my Summary Order.  However, given Petitioner’s pro se status, I will excuse his non-compliance.  Petitioner’s proposed exhibits comprise Doc. Nos. 9 and 9a through 9s in the DAB E-file system.2 The IG subsequently filed a reply brief (IG Reply).

II. Admission of Exhibits and Decision on the Record

Neither party objects to the opposing party’s proposed exhibits; I therefore enter IG Exs. 1 through 6 and DAB E-file Doc. Nos. 9 and 9a through 9s into the record.

Similarly, neither party believes an in-person hearing is necessary.  IG Br. at 5; DAB E-file Doc. No. 9a.  Accordingly, I find it unnecessary to hold an in-person hearing in this matter and issue this decision on the basis of the record before me.  Civ. Remedies Div. P. § 19(d).

III. Issue

Whether the IG had a basis to exclude Petitioner from participating in Medicare, Medicaid, and all other federal health care programs for the statutory minimum period of five years under 42 U.S.C. § 1320a-7(a)(2).  See 42 C.F.R. § 1001.2007(a)(1).

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IV. Applicable Law

Section 1128(f) of the Act (42 U.S.C. § 1320a-7(f)) provides Petitioner with rights to an Administrative Law Judge (ALJ) hearing and judicial review of the final action of the Secretary of Health and Human Services (Secretary).  The right to a hearing before an ALJ is set forth in 42 C.F.R. §§ 1001.2007(a) and 1005.2, and the rights of the sanctioned party and the IG to participate in a hearing are specified by 42 C.F.R. § 1005.3.  The parties may choose to waive appearance at an oral hearing and to submit only documentary evidence and written argument for my consideration.  See 42 C.F.R. § 1005.6(b)(5).

The Secretary must exclude from participation in federal health care programs “[a]ny 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.”  42 U.S.C. § 1320a-7(a)(2); see also 42 C.F.R. § 1001.101(b).

Pursuant to section 1128(i) of the Act (42 U.S.C. § 1320a-7(i)), an individual is convicted of a criminal offense when:  (1) a judgment of conviction has been entered against him or her by a federal, state, or local court whether an appeal is pending or the record of the conviction is expunged; (2) there is a finding of guilt by a court; (3) a plea of guilty or no contest is accepted by a court; or (4) the individual has entered into any arrangement or program where judgment of conviction is withheld.  The statute does not distinguish between misdemeanor and felony convictions.  The excluded party may not collaterally attack the conviction that provides the basis of the exclusion.  42 C.F.R. § 1001.2007(d).

Section 1128(c)(3)(B) of the Act (42 U.S.C. § 1320a-7(c)(3)(B)) provides that an exclusion imposed under section 1128(a) of the Act (42 U.S.C. § 1320a-7(a)) shall be for a minimum period of five years.  The exclusion is effective twenty days from the date of the notice of exclusion.  42 C.F.R. § 1001.2002(b). The period of exclusion may be extended based on the presence of specified aggravating factors. 42 C.F.R. § 1001.102(b). Mitigating factors are considered as a basis for reducing the period of exclusion only if aggravating factors justify an exclusion of longer than five years.  42 C.F.R. § 1001.102(c).

The standard of proof is a preponderance of the evidence. 42 C.F.R. § 1001.2007(c).  Petitioner bears the burden of proof and the burden of persuasion on any affirmative defenses or mitigating factors; the IG bears the burden on all other issues.  42 C.F.R. § 1005.15(c); Summary Order at 3.

V. Findings of Fact, Conclusions of Law, and Analysis

My conclusions of law are set forth in bold and followed by pertinent findings of fact and analysis.

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A. Petitioner’s request for hearing was timely, and I have jurisdiction.

Petitioner timely requested a hearing and there is no dispute I have jurisdiction to hear and decide this case.  See 42 C.F.R. §§ 1001.2007(a)(1)-(2), 1005.2(a); see also 42 U.S.C. § 1320a-7(f)(1).

B. There is a basis for Petitioner’s exclusion pursuant to section 1128(a)(2) of the Act.

Exclusion from participation in Medicare, Medicaid, and all federal health care programs is mandated by section 1128(a)(2) of the Act where an individual 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.  42 U.S.C. § 1320a-7(a)(2); 42 C.F.R. § 1001.101(b).  The IG has established these elements by a preponderance of the evidence.

1. Petitioner was convicted under federal or state law of a criminal offense.

The IG has submitted documentation conclusively demonstrating Petitioner was convicted of a criminal offense.  On December 13, 2016, the District Attorney for Bucks County, Pennsylvania charged Petitioner by information with three counts of indecent assault without consent, one of which was aggravated.  IG Ex. 3 at 1.  On April 21, 2017, Petitioner was found guilty of two misdemeanor counts of indecent assault without consent.  IG Ex. 2 at 3-4.  On August 14, 2017, the state court imposed judgment and sentenced Petitioner to a term of incarceration of 11 ½ months.  IG Ex. 4.

Petitioner nevertheless contends he was not convicted of a criminal offense.  DAB E-file Doc. No. 9.  In support of that assertion, he argues the court and jury misapprehended Pennsylvania law concerning the adequacy of uncorroborated witness testimony.  Id.  He also claims, inaccurately, that the jury did not reach a verdict in his case, citing trial transcripts showing that they were sent home after a day of deliberation and instructed to return.  Id., citing DAB E-file Doc. Nos. 9l-9p.  He also appears to believe his DNA was improperly procured by law enforcement and planted to frame him.  DAB E-file Doc. No. 9a.

These arguments have no merit, and in any case, plainly amount to an attempt to attack the legitimacy of Petitioner’s conviction.  But such collateral attacks are impermissible in this forum.  42 C.F.R. § 1001.2007(d).  It is not my role to inquire into the circumstances or validity of Petitioner’s conviction.  For purposes of this proceeding, the IG need only establish that Petitioner was convicted of a criminal offense under federal or state law.  She has done so.

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2. Petitioner’s offense of conviction related to neglect or abuse.

Petitioner disputes the IG’s assertion that his conviction related to abuse or neglect of a patient within the meaning of section 1128(a)(2) of the Act.  DAB E-file Doc. Nos. 9, 9a; IG Br. at 2-3.  The term “related to” simply means that there must be a nexus or common sense connection.  See Quayum v. U.S. Dep’t of Health & Human Servs., 34 F. Supp. 2d 141, 143 (E.D.N.Y. 1998); see also Friedman v. Sebelius, 686 F.3d 813, 820 (D.C. Cir. 2012) (describing the phrase “related to” in another part of section 1320a-7 as “deliberately expansive words,” “the ordinary meaning of [which] is a broad one,” and one that is not subject to “crabbed and formalistic interpretation”) (internal quotation marks omitted).

In the context of assessing relatedness of an excluded individual’s conviction under section 1128(a)(2) of the Act, the Departmental Appeals Board (Board) has applied the common definitions of the terms “abuse” and “neglect.”  Janet Wallace, L.P.N., DAB No. 1326 at 10 (1992), citing Summit Health Ltd., dba Marina Convalescent Hosp., DAB No. 1173 at 8 (1990).  The Board has also observed that inappropriate touching of a sexual nature “constitutes ‘abuse’ under any reasonable definition of that term.”  Michael S. Rudman, M.D., DAB No. 2171 at 8 (2008).

Here, Petitioner was found guilty of two counts of indecent assault without consent; the criminal information specified that he was charged with two counts of causing another “to have indecent contact with [him] . . . for the purpose of arousing sexual desire . . . and did so without the complainant’s consent.”  IG Ex. 3 at 1.  The conduct for which Petitioner was convicted clearly constitutes inappropriate touching of a sexual nature; I agree that such conduct constitutes “abuse” under any reasonable understanding of that term.  Rudman, DAB No. 2171 at 8.

3. Petitioner’s offense of conviction occurred in connection with the delivery of a health care item or service to a patient.

The IG argues Petitioner’s offense of conviction took place in connection with the delivery of a health care item or service because Petitioner was a licensed massage therapist and committed his criminal acts while providing massages to two individuals.  IG Br. at 3.  Petitioner responds that he did not provide medical treatment, per se, because he was not a “medical massage therapist” and therefore his services were rendered to “clients” not “patients.”  DAB E-file Doc. Nos. 9, 9a.  He likens the services he provided to those provided by estheticians and asserts he provided no medical treatment.  DAB E-file Doc. No. 9.

Petitioner’s formalistic effort to distinguish between clients and patients is meritless.  For purposes of exclusion, the Secretary’s regulations define a patient as “any individual who

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is receiving health care items or services, including any item or service provided to meet his or her physical, mental or emotional needs or well-being…”  42 C.F.R. § 1001.2 (emphasis added). Consistent with that regulation’s broad scope, the Board observed that narrowly defining a patient under section 1128(a)(2) of the Act “would be contrary to the intent of the section to protect program beneficiaries and recipients.”  Bruce Lindberg, D.C., DAB No. 1386 at 7 (1993). The Board reasoned, “If a potential victim of abuse reasonably considers her/himself as a patient, the victim may be more vulnerable than otherwise no matter how the abuser perceives the victim.”  Id. at 7-8.  The recipient of a typical massage service is usually in a state of undress and lying prostrate, and therefore uniquely vulnerable to potential abuse.  And, as I discuss below, the service itself is clearly therapeutic in nature. Therefore, I find the recipient of a massage to be a patient within the meaning of section 1128(a)(2) of the Act.

Petitioner’s claim that he did not deliver a health care service is equally unpersuasive.  In defining the scope of practice for massage therapists, the state of Pennsylvania, where Petitioner was licensed, provides, “Massage therapists apply a system of structured touch, pressure, movement, holding and treatment of the soft tissue manifestations of the human body in which the primary intent is to enhance the health and well-being of the client.  49 Pa. Code § 20.41(a) (emphasis added).

In addition, Pennsylvania required Petitioner to undergo 600 hours of training; aside from 250 hours of massage therapy and bodywork assessment, this included 175 hours of instructions in anatomy, physiology, kinesiology, pathology, and training in HIV risk awareness.  Id. § 20.11(a)(1).  Petitioner was also required to learn cardiopulmonary resuscitation.  Id. § 20.11(a)(4).  Contrary to his own claim, the state of Pennsylvania appears to have anticipated Petitioner would be providing health care services.

The Board has broadly defined the parameters under which a massage is considered a health care item or service delivered to a patient.  The petitioner in Lindberg was convicted of indecent contact for providing a neck massage to a client in his car after a social visit to the client’s home; the Board noted that either the neck rub itself was sufficient to constitute delivery of a health care item or service, or that Petitioner Lindberg’s prior treatment of his client in a clinical setting created a sufficient nexus with his subsequent abusive act to exclude him.  DAB No. 1386 at 8.

Here, the service provided was more clearly akin to a health care service delivered in a clinical setting than the neck rub at issue in Lindberg.  Petitioner was a licensed massage therapist who provided massage therapy service to clients at a spa.  While putatively providing that service, he engaged in inappropriate touching of a sexual nature without consent, conduct that resulted in his conviction.  Because Petitioner’s abusive conduct took place while delivering a health care service to a patient, the connection is direct; I therefore have no difficulty concluding Petitioner’s criminal conduct took place in connection with the delivery of a health care item or service.

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4. Petitioner must be excluded for a minimum of five years; the period of exclusion is therefore reasonable as a matter of law.

Because I have concluded that the IG had a reasonable basis to exclude Petitioner under 42 U.S.C. § 1320a-7(a)(2), Petitioner must be excluded for a minimum period of five years. 42 U.S.C. § 1320a-7(c)(3)(B); 42 C.F.R. §§ 1001.102(a), 1001.2007(a)(2).  The IG has no discretion to impose a lesser period of exclusion, and I may not reduce the period of exclusion below five years.

VI. Conclusion

For the foregoing reasons, Petitioner is excluded from participation in Medicare, Medicaid, and all federal health care programs for five years pursuant to section 1128(a)(2) of the Act (42 U.S.C. § 1320a-7(a)(2)), as of the effective date of exclusion provided in the IG’s initial notice to him.

• 1. Document 7b in the official case file maintained in the DAB E-File system; for clarity and simplicity, whenever possible I will cite to the exhibits attached to the parties’ respective briefs by the exhibit numbers therein, not the document numbers assigned by DAB E-file.
• 2. Doc. Nos. 9 and 9a appear to constitute Petitioner’s short-form brief narrative responses. Because Petitioner’s submissions are not identified with exhibit numbers, I will refer to them using their DAB E-file document numbers.