Shafeeq T. Sheikh, M.D., DAB CR5489 (2019)

DECISION

The Inspector General of the United States Department of Health and Human Services (the IG) excluded Shafeeq T. Sheikh, M.D., (Petitioner) from participation in Medicare, Medicaid, and all other federal health care programs for ten years based on his 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 March 29, 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 period of ten years. The IG explained she took this action based on Petitioner's conviction in a Texas state court for a criminal offense

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related to neglect or abuse of patients in connection with the delivery of a health care item or service. IG Exhibit (Ex.) 1 at 1.1

Petitioner timely requested a hearing before an administrative law judge (P. Hrng. Req.) and I was designated to hear and decide this case. On July 1, 2019, I held a pre-hearing telephone conference, the substance of which is summarized in my July 1, 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 4-6.

The IG filed a brief (IG Br.) and six proposed exhibits (IG Exs. 1-6). Petitioner filed a response (P. Br.) with no proposed exhibits. The IG then filed a reply brief (IG Reply).

II. Admission of Exhibits and Decision on the Record

Petitioner did not object to the IG's proposed exhibits. I therefore enter IG Exs. 1 through 6 into the record.

Neither party believes an in-person hearing is necessary. IG Br. at 10; P. Br. at 4. 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 ten years under 42 U.S.C. § 1320a-7(a)(2). See 42 C.F.R. § 1001.2007(a)(1).

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).

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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 4.

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.

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).

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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 demonstrating Petitioner was convicted of a criminal offense. IG Exs. 2-4. Petitioner concedes he was convicted of a criminal offense within the meaning of the Act. P. Br. at 1-2. I therefore conclude that this element for exclusion under 42 U.S.C. § 1320a-7(a)(2) is met.

2. Petitioner's offense of conviction related to neglect or abuse of a patient in connection with the delivery of a health care item or service.

The IG asserts Petitioner's offense of conviction related to neglect or abuse of patients in connection with the delivery of a health care item or service. IG Br. at 3-4; IG Reply at 1-2. 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).

Here, Petitioner was charged with sexual assault of an adult after a 27-year old female patient admitted to Ben Taub Hospital in Houston, Texas complained that on or about November 2, 2013, an individual entered her room on three occasions and engaged in unwanted sexual contact. IG Ex. 4 at 1. The peace officer who swore out the complaint noted Petitioner, a hospital employee, had been identified through surveillance video, records of the use of his access card, and DNA testing. Id. at 1-2. Petitioner was subsequently found guilty of sexual assault in a Texas state court on August 17, 2018. IG Ex. 3 at 1. Petitioner's offense of conviction on its face clearly relates to patient abuse. Michael S. Rudman, M.D., DAB No. 2171 at 8 (2008) (providing inappropriate touching of a sexual nature "constitutes 'abuse' under any reasonable definition of that term.").

Petitioner does not appear to contest his conviction related to abuse. P. Br. at 2. He does argue his victim was not a patient within the meaning of section 1128(a)(2) of the Act

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because he never treated her or participated in her care, and that as a result, his conviction did not relate to the delivery of a health care item or service. P. Hrng. Req. at 2; P. Br. at 2. This argument is altogether without merit. The Act does not require the victim of an excluded individual to be a patient of that individual. It instead only requires that individual's offense of conviction be related to abuse or neglect of a patient. 42 U.S.C. § 1320a-7(a)(2); Narendra M. Patel, M.D., DAB No. 1736 at 8 (2000) ("[T]he conviction is not required to be for patient neglect or abuse, but rather the circumstances that surrounded the actual offense need only show a relation to the neglect or abuse of a patient.").

In this case, Petitioner was a physician employed at the same hospital where his victim was admitted as a patient. The criminal complaint against him provides that Petitioner used his hospital identification card to access doors between locked units twelve times on the day of the assault in order to access the victim's room. IG Ex. 4 at 2. The fact that Petitioner did not technically treat his victim or participate in her care is irrelevant. But for his employment at the same hospital where his victim was a patient, he would not have been able to sexually assault her. His offense of conviction clearly relates to abuse of a patient within the meaning of section 1128(a)(2) of the Act.

Similarly, Petitioner's victim would not have been susceptible to his sexual assault but for the fact that she was admitted as a patient to receive a health care item or service in the same hospital where Petitioner worked. Patel, DAB No. 1736 at 8 ("[T]he conviction need not be for misconduct in delivering health care, but surrounding facts need only show that the conduct occurred 'in connection with' the delivery of a health care item or service."). I therefore have no difficulty finding a nexus sufficient to meet the requirements of section 1128(a)(2) between Petitioner's conviction and the delivery of a health item or service.

C. Petitioner must be excluded for a minimum of five years.

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.

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D. The IG has established two aggravating factors which together justify exclusion beyond the five-year statutory minimum.

1. The IG established Petitioner's criminal offense conduct was premeditated, part of a continuing pattern of behavior, or consisted of non-consensual sexual acts, as required by 42 C.F.R. § 1001.102(b)(4).

Petitioner concedes the aggravating factors identified by the IG would apply if I determined his conviction related to abuse of a patient in connection with the delivery of a health care item or service. P. Br. at 3. Nevertheless, I note that he was convicted of sexual assault, described in the complaint against him as "intentionally and knowingly [causing] the sexual organ of [his victim] to contact [Petitioner's sexual organ] without the consent of [his victim]." IG Ex. 4 at 1. The plain language of the complaint clearly demonstrates Petitioner's criminal conduct consisted of non-consensual sexual acts. The IG properly applied the aggravating factor present at 42 C.F.R. § 1001.102(b)(4).

2. The IG established Petitioner was the subject of an adverse action by a federal, state, or local government agency or board based on the same set of circumstances serving as the basis for exclusion, as required by 42 C.F.R. § 1001.102(b)(9).

As a result of Petitioner's criminal conduct for which the IG has sought exclusion, both the Texas and New Mexico Medical Boards took adverse actions against him. The Texas Medical Board suspended Petitioner's medical license while the New Mexico Medical Board revoked it. IG Exs. 5, 6. The IG properly applied the aggravating factor present at 42 C.F.R. § 1001.102(b)(9).

E. There are no mitigating factors in this case that form a basis to reduce the exclusion period.

Where the IG has properly exercised her discretion to increase the exclusionary period, as she has done here, I may only reduce that period after considering the specific mitigating factors found at 42 C.F.R. § 1001.102(c). Petitioner concedes none of the factors listed at that regulation are applicable here. P. Br. at 3.

F. A ten-year period of exclusion is not unreasonable.

I must uphold the IG's determination as to the length of exclusion unless it is unreasonable. 42 C.F.R. § 1001.2007(a)(1)(ii). It is important to note that it is the quality of the aggravating (or mitigating) factors that is most important when considering the length of exclusion and not the sheer number of aggravating factors that are present in

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a given case. As the Secretary of Health and Human Services stated in the preamble to the final rule establishing the exclusion regulations:

We do not intend for the aggravating and mitigating factors to have specific values; rather, these factors must be evaluated based on the circumstances of a particular case. For example, in one case many aggravating factors may exist, but the subject's cooperation with the OIG may be so significant that it is appropriate to give that one mitigating factor more weight than all of the aggravating. Similarly, many mitigating factors may exist in a case, but the acts could have had such a significant physical impact on program beneficiaries that the existence of that one aggravating factor must be given more weight than all of the mitigating. The weight accorded to each mitigating and aggravating factor cannot be established according to a rigid formula, but must be determined in the context of the particular case at issue.

57 Fed. Reg. 3298, 3314-15 (Jan. 29, 1992).

Here, the quality of the aggravating factors proven by the IG demonstrates a longer exclusion period to be reasonable. Petitioner's conviction for sexual assault is egregious, particularly for a physician. While his victim was not his patient, Petitioner abused his authority and position within the hospital to access her and engage in sexual acts without her consent. The nature and circumstances of his offense clearly militate towards a longer period of exclusion.

Two different boards of medicine found Petitioner's offense of conviction made him too untrustworthy to see patients. The New Mexico Board of Medicine summarily suspended Petitioner's license to practice medicine, characterizing his offense conduct as "a continuing threat to the public welfare." IG Ex. 6 at 5. That Board ultimately revoked Petitioner's license to practice medicine altogether. Id. at 1-3. The Texas Board of Medicine also summarily suspended Petitioner's medical license in order to "protect the health and public interest of the citizens of the State of Texas" and found the nature of Petitioner's criminal acts merited characterization as aggravating factors because of the severity of patient harm, the increased potential for harm to the public, and attempted concealment. IG Ex. 5 at 2, 4. These reactions from Petitioner's supervising boards of medicine clearly support the conclusion that a longer period of exclusion is appropriate here.

Given the nature of Petitioner's offense, and the well-established aggravating factors arising therefrom, I cannot say the IG's decision to impose a ten-year exclusion against Petitioner is unreasonable.

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VI. Conclusion

For the foregoing reasons, Petitioner is excluded from participation in Medicare, Medicaid, and all federal health care programs for ten 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 6b 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.