Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Appellate Division
In the Case of:
Bruce Lindberg, D.C.,
Petitioner,
- v. -
The Inspector General.
DATE: January 28, 1993
Docket No. C-92-020
Decision No. 1386
FINAL DECISION ON REVIEW OF
ADMINISTRATIVE LAW JUDGE
REMAND DECISION
Bruce Lindberg, D.C. (Petitioner) appealed a decision by
Administrative
Law Judge (ALJ) Edward D. Steinman issued September 30, 1992,
on remand
from our decision in DAB 1280 (1991). See Bruce Lindberg,
D.C., CR233
(1992) (ALJ Remand Decision). The ALJ Remand Decision
concluded that
Petitioner was properly excluded by the Inspector General
(I.G.) from
participation in Medicare and State health care programs for a
period of
five years, based on sections 1128(a)(2) and 1128(c)(2) of the
Social
Security Act (Act).
In DAB 1280, we addressed Petitioner's challenges to the ALJ's
earlier
determination that the offenses of which Petitioner was convicted
were
related to abuse of a patient in connection with delivery of a
health
care item or service, within the meaning of section 1128(a)(2) of
the
Act. We affirmed the ALJ's conclusion that Petitioner's
conviction,
after he pled guilty to two counts of Indecent Contact and two
counts of
Indecent Exposure was a conviction related to abuse. We
concluded,
however, that Petitioner had raised a genuine dispute concerning
facts
material to determining whether the abuse of which he was convicted
was
patient abuse and whether that abuse occurred in connection with
the
delivery of chiropractic services. We rejected Petitioner's
argument
that the only evidence the ALJ .could properly consider was
specific
court documents (the Judgment Entry and plea transcript). We
concluded,
however, that there was no evidence in the record before us from
which
it could reasonably be inferred that either child referred to in
the
counts was a patient of Petitioner or that the abuse occurred
in
connection with the delivery of health care services. Accordingly,
we
vacated the ALJ's finding of fact and conclusion of law (FFCL) 10,
which
concluded that section 1128(a)(2) applied, and remanded to the ALJ
to
make new findings concerning the two statutory elements which
were
unsupported. Since Petitioner had not excepted to FFCLs 1-9 and
11-25,
we affirmed those FFCLs.
On remand, the ALJ received new documentary evidence and held a hearing
to
address the factual disputes. He reinstated FFCL 10 and made
additional
findings, set out in FFCLs 26 to 50. On appeal from the ALJ
Remand
Decision, Petitioner challenged these FFCLs primarily on two
grounds:
1) that the ALJ improperly used a transcript of a sworn
statement made by
K.L. (the child with whom Petitioner admitted having
indecent contact); 1/
and 2) that the ALJ then used the statement to
make additional assumptions
and hypotheses, not supported by the record.
Petitioner argued that the
evidence showed that K.L. was not a current
patient of Petitioner at the time
of the indecent contact and that the
indecent contact to which Petitioner
admitted had occurred in a
non-clinical setting. Petitioner requested
that we "examine the
applicable evidence . . . , considering the facts de
novo, and reverse
the [ALJ's] decision, or in the alternative remand the case
. . . for
appropriate .action." Petitioner's Appellate Brief and
Argument to
Administrative Law Judge's Decision on Remand (P. app. br.) at
7-8.
Our review is not a de novo review, however. The standard for
our
review of a finding of fact is whether it is based on
substantial
evidence in the record. The standard for our review of a
legal
conclusion is whether the ALJ erred. Applying these standards,
we
conclude that Petitioner's challenges have no merit. Accordingly,
we
affirm the ALJ Remand Decision, and affirm and adopt FFCL 10 and
FFCLs
26-50.
ANALYSIS
I. The ALJ did not err in his use of K.L.'s statement.
Petitioner argued that the ALJ's use of K.L.'s statement (I.G. Exhibit
30)
was erroneous. Petitioner argued that, in pleading guilty, he
had
admitted only to the statements in the Minutes of Evidence (now
included
with I.G. Exhibit 17), not to the allegations in K.L.'s
statement.
While it may be proper to use extrinsic evidence to fill in
missing
details concerning section 1128(a), Petitioner argued, it is not
proper
to use such evidence "to create a new offense or offenses for
which
Petitioner was not charged or convicted." P. app. br. at
4.
Specifically, Petitioner argued that the ALJ "departed from the
charged
conduct to include allegations of abuse in a clinical setting (FFCL
36,
42), and the creation of a longstanding illicit intent on the part
of
Petitioner (FFCL 31, 40)" and that Petitioner had not admitted to
these
allegations. P. app. br. at 7. Petitioner also argued that
there was
no finding that the allegations made by K.L. in the statement
were
accurate.
The I.G. responded that in DAB 1280 the Board had anticipated that, if
it
were established that one of the sworn statements in the record was
made by
K.L., the ALJ could consider that statement in determining that
section
1128(a)(2) applied. This is an overbroad reading of the
Board's
previous decision. We agreed with the ALJ that evidence other
than the
Judgment Entry and plea transcript could be considered, and
suggested
that the relevant issues could be resolved without a hearing
if
Petitioner could be deemed under state law to have admitted to
the
allegations in the statements or did not dispute these
allegations.
Nothing in our decision implies that we would uphold findings
based on
one of the statements if that statement were unreliable.
Contrary to what Petitioner argued, however, the ALJ did find that
the
allegations in the statement were accurate. This finding is
implicit in
the ALJ's citation to the statement to support his findings and
is clear
from his analysis. Specifically, the ALJ found that,
notwithstanding
the fact that Petitioner had not admitted to the allegations
in the
statement, the statement was reliable because: 1) the statement
was
taken under oath; 2) K.L. had little motivation to lie to
authorities
about these events; 3) Petitioner did not object to the veracity
of
K.L.'s sworn statement although he had the opportunity to do so; and
4)
Petitioner had an opportunity to confront K.L. at the hearing and
chose
not to do so. ALJ Remand Decision at 22.
The ALJ did not cite to any support for his evaluation of
K.L.'s
motivation. However, Petitioner did not cite to any evidence
which
indicates that K.L. had a motive to lie. In any event, the
other
indicia of reliability of K.L.'s statement are sufficient, even if
the
record contains no evidence regarding whether K.L. had a motive to
lie.
We also note that Petitioner did not point to any evidence in the
record
directly contradicting the key parts of K.L.'s statement
(including
K.L.'s assertion that Petitioner had rubbed K.L.'s neck prior to
the
indecent contact). Yet, Petitioner testified at the hearing and had
an
opportunity to present his version of the facts if they differed
from
K.L.'s. Moreover, nothing in K.L.'s statement conflicts with
the
Minutes of Evidence, to which Petitioner admitted. Finally, we
note
that some of the allegations in the statement are corroborated by
other
evidence in the record, discussed in the ALJ Decision on Remand.
In sum, we conclude that the ALJ did not err in finding K.L.'s
sworn
statement to be reliable, and the allegations in that statement to
be
accurate.
We further conclude that the ALJ's use of the statement was
not
improper. Contrary to what Petitioner argued, the ALJ did not use
the
statement to create a new set of offenses. The ALJ merely used
the
statement as a basis for making findings relevant to determining
whether
section 1128(a)(2) applies to the offense of which Petitioner
was
convicted.
II. The inferences the ALJ drew from K.L.'s statement are reasonable.
Petitioner argued that the ALJ used K.L.'s statement in the transcript
to
make "additional assumptions and .hypotheses, not supported by
the
record." P. app. br. at 3. Specifically, Petitioner said that
the ALJ
had used the statement "to make insinuations that Petitioner used
his
former physician/patient relationship with K.L. in order to commit
the
charged abuse (FFCL 31, 40)." P. app. br. at 4.
As noted above, the standard for our review of the ALJ's findings of
fact
is whether they are supported by substantial evidence.
Substantial
evidence is such relevant evidence as a reasonable mind might
accept as
adequate to support a conclusion. Universal Camera Corp. v.
NLRB, 340
U.S. 474, 477 (1951). In reviewing the substantiality of the
evidence,
we must consider the record as a whole. 340 U.S. at
487-8.
In FFCL 31, the ALJ found that "Petitioner used his status as
a
chiropractor to initiate a relationship with K.L." The ALJ based
this
finding on FFCLs 28-30, in which he found:
28. It was at McDonald's after a school sporting event in 1987
that
Petitioner and K.L. first discussed the possibility that
Petitioner
would provide chiropractic services to K.L.
29. Prior to the discussion at McDonald's, Petitioner and K.L. had
no
more than a passing acquaintance.
30. During the discussion at McDonald's, Petitioner offered to
give
K.L. three chiropractic treatments free of charge, as an inducement
for
K.L. to become his patient.
ALJ Remand Decision at 5 (citations omitted).
Each of these FFCLs was based on K.L.'s statement (I.G. Exhibit 30),
and
FFCL 29 was also supported by reference to the hearing transcript.
As
discussed above, the ALJ did not err in concluding that K.L.'s
statement
was reliable evidence. Although Petitioner characterized what
K.L. said
in his statement as mere "allegations," Petitioner pointed to
no
evidence in the record directly contradicting what K.L. said.
Moreover,
the reference to the hearing transcript supporting FFCL 29 is
to
testimony by Petitioner which is generally consistent with what
K.L.
said on this point. Hearing transcript (Tr.) at 66-67.
While
Petitioner testified that K.L.'s sister used to date
Petitioner's
brother and that he "knew [K.L.] and his family" before
Petitioner saw
K.L. at McDonald's, Petitioner's testimony was vague on
whether he had
himself had any direct interaction with K.L. prior to this
time. Tr.
66-67; 72-73. The finding in FFCL 31 that Petitioner
used his status as
a chiropractor to initiate a relationship with K.L. is
based on a
reasonable inference from what K.L. said about Petitioner offering
free
chiropractic treatments when they met at McDonald's. Thus, FFCL 31
is
supported by relevant evidence in the record which a reasonable
mind
might consider adequate to support the conclusion.
Similarly, the ALJ's finding in FFCL 40 (that Petitioner
repeatedly
engaged in conduct which blurred the distinctions between a
professional
relationship and a social relationship) is based on a
reasonable
inference from FFCL 39. In that FFCL, the ALJ found, based
on K.L.'s
statement, that Petitioner continued to provide chiropractic
services to
K.L. in non-clinical settings, such as Petitioner's home and car,
after
he stopped treating K.L. at his office, and that Petitioner did
not
charge K.L. for these services. Petitioner pointed to nothing in
the
record to contradict K.L.'s statement regarding Petitioner's
actions.
Thus, FFCL 40 is supported by substantial evidence.
Petitioner did not specifically cite to FFCLs other than FFCLs 31 and
40
as FFCLs allegedly based on mere "assumptions and hypotheses." We
note
that other FFCLs, such as FFCLs 35 and 48, are based on inferences
from
findings based on K.L.'s statement and/or on other evidence in
the
record. Since these inferences are reasonable, these FFCLs
are
supported by the record and are not mere assumptions and hypotheses.
III. The ALJ did not err in concluding that section 1128(a)(2)
applies.
Petitioner challenged the ALJ's conclusion that section
1128(a)(2)
applies. Petitioner argued primarily that K.L. was not a
current
patient at the time of the offense and that the offense did not occur
in
a clinical setting. Neither of these challenges has merit.
The ALJ concluded that K.L. was a "patient" within the meaning of
section
1128(a)(2) since Petitioner's professional relationship with
K.L. had not
ended at the time the abuse of which Petitioner was
convicted occurred.
FFCL 45. The ALJ based FFCL 45 in part on his
findings that Petitioner
had continued to provide chiropractic services
to K.L. in non-clinical
settings after he stopped treating K.L. at his
office and that, at the
beginning of the relevant incident, Petitioner
began by rubbing K.L.'s
neck. FFCLs 39, 44. The ALJ also based FFCL 45
on his finding
that Petitioner did not, prior to the incident, notify
K.L. that he was
terminating the chiropractor/patient relationship and
did not transfer copies
of K.L.'s records to either K.L. or another
chiropractor, as required by the
applicable code of conduct. FFCLs 38,
44; see ALJ Remand Decision at
12-13.
Petitioner argued that, although he had acknowledged at the hearing
that
K.L. had been his patient, he had also testified that K.L. was not
a
patient at the time when the charged crimes occurred. Petitioner
argued
that the ALJ's finding in FFCL 38 (that K.L.'s case file was seized
from
Petitioner's office by law enforcement officials subsequent to
the
charged abuse) did not support FFCL 45. According to Petitioner,
his
uncontradicted testimony that both active and inactive files were
kept
together "establishes that the presence of K.L.'s file in his
office
means only that K.L. had at one point been [Petitioner's]
patient." P.
app. br. at 5.
We agree with the ALJ that Petitioner's testimony is not sufficient
to
rebut the evidence establishing that Petitioner had not ended
his
chiropractor/patient relationship with K.L. at the time of the
offense.
Even if it is true that Petitioner kept active and inactive
files
together, he did not deny that he had not formally terminated
the
relationship through notice to K.L. or transfer of his records.
Most
important, however, Petitioner pointed to no evidence in the record
to
rebut K.L.'s statement that Petitioner had continued to
provide
chiropractic services to K.L. outside of the office and had begun
the
incident of abuse by rubbing K.L.'s neck. Nor did Petitioner
directly
challenge the ALJ's finding that Petitioner's massage of K.L.'s
neck
constituted the delivery of a health care service. Thus, even
if
Petitioner considered K.L.'s office file to be inactive, he continued
to
treat K.L. as a patient and K.L. could have reasonably perceived
himself
as a patient under the particular circumstances.
Petitioner's arguments are premised on a view that section
1128(a)(2)
should apply only if Petitioner considered K.L. to be an active
(or
current) patient at the time of the abuse. This view is not
supported
by any reference to the language of the statute or its
legislative
history. We agree with the ALJ that reading the section
this narrowly
would be contrary to the intent of the section to protect
program
beneficiaries and recipients. 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. A
practitioner who may take advantage of such vulnerability is
not
trustworthy.
We also reject Petitioner's challenges to the ALJ's conclusion that
the
abuse here was in connection with the delivery of a health care
service.
The words "in connection with" in section 1128(a)(2) require only
a
minimal nexus between the abuse and the delivery of a health
care
service. The requisite nexus here is established by either of
the
alternative bases used by the ALJ: 1) that Petitioner's massage
of
K.L.'s neck was delivery of a health care service; and 2)
that
Petitioner's treatment of K.L. in a clinical setting had enabled him
to
perpetrate the abuse of which he was convicted.
Petitioner did not deny that his massage of K.L.'s neck was a
chiropractic
service. Rather, Petitioner relied primarily on evidence
showing that
the charged abuse occurred in Petitioner's automobile,
after a social visit
at Petitioner's home. Petitioner's challenge is
premised on his
erroneous view that section 1128(a)(2) applies only to
delivery of a health
care service in a clinical setting. Nothing in the
statutory wording,
history or purpose supports this view. On the
contrary, the Act
specifically covers, as health care services, some
services which are by
definition provided in non-clinical settings (for
example, home health care
services under sections 1832(a)(2)(A) and
1905(a)(7) of the Act).
Individuals receiving such services are as much
in need of the protection of
section 1128 as individuals receiving
services in clinical settings.
Even if section 1128(a)(2) applied only when the health care service
was
delivered in a clinical setting, this would not avail Petitioner
here.
The ALJ concluded, as an alternative basis for applying the
section,
that Petitioner had exploited the relationship he had developed
with
K.L. in the clinical setting for the purpose of perpetrating the
abuse
at a later date outside of the clinical setting. FFCLs 48-50;
ALJ
Remand Decision at 28. Petitioner attacked the findings supporting
this
conclusion by arguing that the ALJ had improperly relied on
K.L.'s
statement and on assumptions and hypotheses derived from that
statement.
As discussed above, this challenge has no merit.
.CONCLUSION
For the reasons stated above, we affirm the ALJ Remand Decision.
We
affirm and adopt each of the FFCLs in that decision.
_______________________________ Donald F. Garrett
_______________________________ M. Terry Johnson
_______________________________ Judith A. Ballard
Presiding
Board Member
1. Another child, I.J., was also mentioned in the counts of
which
Petitioner was convicted. The ALJ found no evidence that I.J. was
a
patient. FFCL 27. On appeal, Petitioner pointed out that the
Minutes
of Evidence setting forth the charges against Petitioner contained
a
statement regarding I.J.'s relationship to K.L. that was
virtually
identical to the statement regarding K.L.'s relationship.
Petitioner
suggested that this undercut the ALJ's finding that K.L. was a
patient.
While the Minutes of Evidence (I.G. Exhibit 17) do provide evidence
that
I.J. was, at least at one time, a patient of Petitioner's, the
ALJ's
error, if any, was harmless. Apparently, the ALJ did not
examine
whether I.J. was a patient since the I.G. did not contend that I.J.
was
a patient. ALJ Remand Decision at 12,