Wilton C. Calderon Jr., DAB CR5874 (2021)

DECISION

Petitioner, Wilton C. Calderon Jr., was a doctor of osteopathy, practicing in the State of Wisconsin.  The parties agree that he sexually abused his patients, was convicted on two counts of third-degree sexual assault, a felony, and that his crimes were related to the abuse of patients in connection with the delivery of health care services.  He is therefore subject to exclusion from participating in federal health care programs under section 1128(a)(2) of the Social Security Act (Act).  The sole issue in dispute is the length of his exclusion.  The Inspector General (IG) imposes a 25-year exclusion, and, for the reasons set forth below, I find that a 25-year exclusion is reasonable. 

Background

In a letter dated August 31, 2020, the IG notified Petitioner that he was excluded from participating in Medicare, Medicaid, and all federal health care programs for a period of 25 years because he had been convicted of a criminal offense related to the neglect or abuse of patients in connection with the delivery of a health care item or service.  The letter explained that section 1128(a)(2) of the Act authorizes the exclusion.  IG Ex. 1. 

Page 2

Petitioner timely requested review.

Petitioner concedes that he was convicted and is subject to exclusion under section 1128(a)(2).  P. Br. at 1-2; Order and Schedule for Filing Briefs and Documentary Evidence at 3 (¶ 3) (Jan. 25, 2021). 

The IG has submitted a written argument (IG Br.) and five exhibits (IG Exs. 1-5).  Petitioner responded to the IG’s brief (P. Br.) and submitted five exhibits (P. Exs. 1-5).  The IG submitted a reply (IG Reply).  In the absence of any objections, I admit into evidence IG Exs. 1-5 and P. Exs. 1-5.

The parties agree that an in-person hearing is not necessary.  IG Br. at 14; P. Br. at 12. 

Issue

Because the parties agree that the IG has a basis upon which to exclude Petitioner from program participation, the sole issue before me is whether the length of the exclusion (25 years) is reasonable.  42 C.F.R. § 1001.2007.

Discussion

Under section 1128(a)(2) of the Act, the Secretary of Health and Human Services must exclude an individual who has been convicted, under federal or state law, of “a criminal offense related to neglect or abuse of patients, in connection with the delivery of a health care item or service.”  42 C.F.R. § 1001.101(b).  The “delivery of a health care item or service” includes providing any item or service to an individual to meet his or her physical, mental, or emotional needs or well-being, whether or not reimbursed by Medicare, Medicaid, or any federal health care program.  Id.

Here, Petitioner Calderon was an osteopathic physician with a practice in Plover, Wisconsin.  In a criminal complaint, dated December 21, 2015, he was charged with four counts of third-degree sexual assault, a felony, and six counts of fourth-degree sexual assault, a misdemeanor, with the assaults occurring between December 2011 and December 2014.  IG Ex. 2.  The detailed facts underlying the charges are sordid and need not be repeated here.  The complaint generally sets forth allegations from seven women, each charging that Petitioner Calderon had sexually molested her while purporting to provide medical care and treatment.  The women charged that, during these assaults, Petitioner kept the lights dimmed, the door closed, and no one else was in the room.  IG Ex. 2 at 3-8. 

Page 3

On February 17, 2017, Petitioner Calderon pled guilty to two felony counts of third-degree sexual assault, in violation of Wis. Stat. § 940.225(3).  IG Ex. 4.1   On August 17, 2017, the court accepted his plea, entered judgment against him, and sentenced him to 80 months (6 years, eight months) in prison (40 months for each count), followed by 100 months of extended supervision (50 months for each count).  IG Ex. 4 at 1.  He was ordered to pay $1,938.04 in restitution.  IG Ex. 4 at 2.  Following discharge from his initial confinement, the court ordered him to undergo a mental health assessment and to comply with treatment recommendations, “including to establish treatment and engage in psychotherapy [of] the sort . . . recommended by the doctor.”  IG Ex. 4 at 2. 

Under the terms of his sentencing, Petitioner was not eligible for early release.  He was not eligible to challenge his incarceration.  He was required to comply with the Wisconsin Sex Offender Registry for a mandatory period of 15 years.  He was required to comply with sex offender treatment recommendations and any other assessments deemed appropriate by the Department of Corrections.  IG Ex. 4 at 2.

Based on the aggravating factors and the absence of mitigating factors, the 25-year exclusion is reasonable.2

Individuals excluded under section 1128(a)(2) must be excluded for a period of not less than five years.  Act § 1128(c)(3)(B); 42 C.F.R. §§ 1001.102(a), 1001.2007(a)(2).  Federal regulations set forth criteria for lengthening exclusions beyond the five-year minimum.  42 C.F.R. § 1001.102(b).  Evidence that does not pertain to one of the aggravating or mitigating factors listed in the regulations may not be used to decide whether an exclusion of a particular length is reasonable.      

So long as the period of exclusion is within a reasonable range, based on demonstrated criteria, I have no authority to change it.  Craig Richard Wilder, DAB No. 2416 at 8 (2011); Joann Fletcher Cash, DAB No. 1725 at 17 (2000) (citing 57 Fed. Reg. 3298, 3321 (Jan. 29, 1992) (finding it appropriate to defer to the IG’s “broad discretion” in setting the length of an exclusion, “given the [IG’s] vast experience in implementing exclusions”). 

Among the factors that may serve as a basis for lengthening the period of exclusion are the three that the I.G. relies on in this case:  1) in convictions involving patient abuse or neglect, the action that resulted in the conviction was premediated, was part of a

Page 4

continuing pattern of behavior, or consisted of non-consensual sexual acts; 2) the sentence imposed by the court included incarceration; and 3) the convicted individual has a prior criminal, civil, or administrative sanction record.  42 C.F.R. § 1001.102(b).  The presence of an aggravating factor or factors, not offset by any mitigating factor or factors, justifies lengthening the mandatory period of exclusion.

Non-consensual sexual acts (42 C.F.R. § 1001.102(b)(4)).  There is no question that the actions for which Petitioner was convicted involved non-consensual sexual acts, and that factor, by itself, justifies significantly increasing the period of his exclusion.  As a physician, he was entrusted with caring for patients who trusted him.  He betrayed that trust when he assaulted them under the guise of providing care.  Few actions could demonstrate more dramatically that an individual simply cannot be trusted and should therefore be excluded for a substantial period of time (if not permanently). 

The finding of sexual abuse is sufficient to establish an aggravating factor under section 1001.102(b)(4).  The IG also points out that, based on the convictions alone, Petitioner’s assaults were not isolated incidents, but were part of a continuing pattern of behavior, occurring between December 3, 2012, and May 29, 2013 for one patient, and occurring on December 29, 2014, for the other.  IG Br. at 6 (citing IG Ex. 2 at 1, 2, 4-6). 

In addition, Petitioner himself submits evidence showing that his misconduct was more extensive than the convictions, or even the criminal complaint, suggest.  At the behest of his criminal attorney, a Board-certified clinical psychologist evaluated Petitioner, issuing her report on October 16, 2016.  According to the report, after Petitioner left Wisconsin (in January 2015), and began to practice medicine in Connecticut, other women complained of his “inappropriate sexual behavior during physical examinations.”  P. Ex. 1 at 3.  According to the psychologist, Petitioner’s “use of [Osteopathic] manipulations appeared to be a way of physically touching his patients as a prelude to initiating sexualized behaviors (and had nothing to do with good medical practice).”  P. Ex. 1 at 11.  The psychologist also cited “evidence of a history of multiple offense types, and probably emotional harm to victims. . . .  Prior to treatment, he engaged in extreme minimization, rationalization or denial of the offenses and attitudes that support or condone offenses.” P. Ex. 1 at 12.3

Petitioner denies that his conduct was premeditated, and the IG does not argue that it was.4

Page 5

Incarceration (42 C.F.R. § 1001.102(b)(5).  The court sentenced Petitioner to a very substantial period of incarceration – 80 months (six years and eight months).  IG Ex. 4.  While any period of incarceration justifies increasing the period of exclusion, the Board has repeatedly held that longer periods of incarceration are relevant in determining whether a period of exclusion is reasonable.  Generally, the longer the jail time, the longer the exclusion, because a lengthy sentence evidences a more serious offense.  Gracia L. Mayard, M.D., DAB No. 2767 at 8 (2017) (characterizing as “substantial” a 54-month sentence of incarceration that “justifies an exclusion considerably longer than the statutory minimum,” because such a “sentence is ‘an unmistakable reflection of the District Court’s assessment of Petitioner’s untrustworthiness.’”); Juan de Leon, Jr., DAB No. 2533 at 6 (2013) (reiterating that a nine-month incarceration is “relatively substantial.”); Eugene Goldman, M.D., DAB No. 2635 at 6 (2015); see also Jeremy Robinson, DAB No. 1905 at 12 (2004) (characterizing a nine-month incarceration as “relatively substantial.”); Jason Hollady, M.D., DAB No. 1855 at 12 (2002); Stacy Ann Battle, DDS, DAB No. 1843 (2002) (finding that four months in a halfway house, followed by four months home confinement justifies lengthening the period of exclusion); Brenda Mills, M.D., DAB CR1461, aff’d, DAB No. 2061 (2007) (finding that six months home confinement justifies increasing the length of exclusion). 

Prior administrative sanction (42 C.F.R. § 1001.102(b)(6)).  As noted above, Petitioner relocated his practice to New London, Connecticut, in January 2015.  On July 31, 2015, the Wisconsin Medical Examining Board received a complaint, alleging that he had engaged in unprofessional conduct, and opened an investigation.  Petitioner denied the allegations.  However, while the Board’s investigation was pending, he agreed not to practice medicine in Wisconsin and voluntarily surrendered his license.  IG Ex. 3 at 2-3.5

Surrendering one’s medical license in the face of the licensing Board’s investigation of unprofessional conduct must be considered an administrative sanction.

Page 6

Mitigating factors.  The regulations consider mitigating just three factors:  1) a petitioner was convicted of three or fewer misdemeanor offenses and the resulting financial loss to the program was less than $5,000; 2) the record in the criminal proceedings demonstrates that a petitioner had a mental, physical, or emotional condition that reduced his culpability; and 3) a petitioner’s cooperation with federal or state officials resulted in others being convicted or excluded, or additional cases being investigated, or a civil money penalty being imposed.  42 C.F.R. § 1001.102(c).  Petitioner bears the burden of proving any mitigating factor by a preponderance of the evidence.  42 C.F.R. § 1005.15(c); Barry D. Garfinkel, DAB No. 1572 at 8 (1996); see Order and Schedule for Filing Briefs and Documentary Evidence at 3-4 (¶ 4). 

Petitioner maintains that his psychiatric diagnoses reduced his culpability and argues that, because the court was aware of the diagnoses, he is entitled to mitigation.  P. Br. at 8; P. Ex. 1.  He produces a psychological evaluation, discussed above, which his attorney commissioned and purportedly presented to the court.  According to the evaluation, Petitioner suffers from a variety of disorders, including depression, bipolar disorder, a personality disorder, a fetishistic disorder, and an impulse control and conduct disorder.  P. Ex. 1 at 13-14.  The psychologist opined that Petitioner’s “reduced mental capacity . . . contributed significantly to the commission of the alleged offenses that led to his being unable to control behaviors that he otherwise knew were wrong and harmful.”  She also thought that he would benefit from intense psychotherapy.  P. Ex. 1 at 16.

That Petitioner suffers from psychological disorders is insufficient to establish a mitigating factor.  That the court was aware of his disorders and ordered him to undergo treatment following his release from prison is insufficient.  Petitioner must demonstrate that the court determined that his mental and emotional disorders reduced his culpability.  Patel v. Shalala, 17 F. Supp. 2d 662, 667 (W.D. Ky. 1998); Spyros N. Panos, DAB No. 2709 at 5, 10 (2016); Christopher Switlyk, DAB No. 2600 (2014).  Documentation from a psychiatrist may be pertinent to establish that Petitioner suffered from psychological problems at the time he committed his offenses, but it is “not evidence that the court determined Petitioner suffered from psychological problems that reduced his criminal culpability.”  Switlyk, DAB No. 2600 at 6.  Nor does evidence of a court-ordered treatment program establish that the court determined reduced culpability.  Russell Mark Posner, DAB No. 2033 at 9 (2006); see Ilya Kogan, DAB No. 3034 at 8 (2021).

Here, Petitioner has not established that the court determined that his culpability was reduced.  The IG questions whether the sentencing court even received the psychologist’s report.  I assume that the sentencing court was aware of the psychological assessment; however, the court did not determine, explicitly or implicitly, that Petitioner’s culpability should be reduced.  To the contrary, the fact that the court imposed such a severe sentence – a lengthy period of incarceration followed by an even longer period of

Page 7

extended supervision – shows that it found Petitioner culpable for his crimes.  IG Ex. 4 at 1.6

Thus, no mitigating factor justifies reducing the period of Petitioner’s exclusion. 

Effective date of exclusion.  Finally, Petitioner asks that his exclusion be made effective as of the date of his conviction, August 17, 2017.  P. Br. at 2, 14-15.  As a matter of law, an exclusion becomes effective 20 days after the date of the IG’s notice of exclusion, in this case August 31, 2020.  42 C.F.R. § 1001.2002; see IG Ex. 1.  I have no authority to review the timing of the IG’s determination to impose an exclusion or to alter retroactively its effective date.  Anthony Joseph Moschetto, D.O., DAB No. 3030 at 12-13 (2021); Robert Kolbusz, M.D., DAB No. 2759 at12 (2017); Sushil Aniruddh Sheth, DAB No. 2491 at 19 (2012).

Conclusion

For these reasons, I conclude that the IG properly excluded Petitioner from participating in Medicare, Medicaid and all federal health care programs, and I sustain the 25-year exclusion.

1. Petitioner was also convicted of violating Wis. Stat. § 961.41(1)(b), a felony involving the manufacture and delivery of non-narcotics.  IG Ex. 4 at 1; see P. Ex. 1 at 3.  That conviction is not a basis for this exclusion. 
• back to note 1
2. I make this one finding of fact/conclusion of law.
• back to note 2
3. The psychologist also opined that Petitioner’s attitudes improved with treatment.  P. Ex. 1 at 12. 
• back to note 3
4. According to Petitioner, his actions were “impulsive” rather than premeditated.  I see significant flaws in this argument.  According to his psychological evaluation, “[d]uring moments of alleged compulsive sexual involvement with patients[,] he acted as though he [were] in a trance state and was unable to control behaviors that he knew were wrong and disgusted him afterwards.  P. Ex. 1 at 15 (emphasis added).  Based on this, I might accept that, as he was pretending to “treat” his patient, he became aroused and unable to control his behavior.  But the psychologist does not claim that, prior to those “moments” of compulsion, he was unable to control his behaviors.  Yet, Petitioner deliberately put himself into situations that he knew (or should have known) would likely result in his assaulting his patient:  closing the door, turning the lights down, not allowing another person in the room, beginning the “manipulations.”  This sounds like premeditation to me.  Nevertheless, I accept that the IG does not rely on premeditation as an aggravating factor.  The fact of the sexual assault, by itself, justifies increasing the period of exclusion.
• back to note 4
5. Petitioner subsequently declined to renew his license to practice in Connecticut.  P. Ex. 1 at 3.
• back to note 5
6. In sentencing a criminal defendant, who has been convicted on more than one count, courts often impose concurrent sentences.  This court imposed consecutive sentences for the sexual assault convictions, which does not suggest a finding of reduced culpability.
• back to note 6