SUBJECT:

Narendra M. Patel, M.D.,

Petitioner,

The Inspector General

FINAL DECISION ON REVIEW OF

ADMINISTRATIVE LAW JUDGE DECISION

Narendra M. Patel, M.D., Petitioner, appealed the November 22, 1999 decision of Administrative Law Judge (ALJ) Steven T. Kessel sustaining the determination of the Inspector General (I.G.) to exclude Dr. Patel from participating in Medicare, Medicaid and other federally-funded programs for a period of ten years. Narendra M. Patel, M.D., DAB CR631 (1999) (ALJ Decision). The ALJ concluded that the I.G. had proven the existence of a basis for the exclusion under section 1128(a)(2) of the Social Security Act (Act). The I.G.'s authority to impose the exclusion derived from Dr. Patel's conviction of a criminal offense relating to abuse of a patient in connection with the delivery of a health care item or service, specifically non-consensual sexual battery against a patient. The ALJ further concluded that the length of the exclusion was reasonable under the circumstances here, in light of the two aggravating factors proven by the I.G. and the single mitigating factor proven by Dr. Patel. We affirm the exclusion and sustain the ALJ's findings for the reasons discussed in detail below.

Factual Background

The following facts are not in dispute. Dr. Patel practiced as a gastroenterologist in Dalton, Georgia. He was charged with sexual battery in the Superior Court of Whitfield County in Georgia. He pled nolo contendere based on a plea bargain and was placed in a first offender diversion program. The victim in the sexual battery offense (referred to in the ALJ Decision and here as K.T. to protect her privacy) was a patient of Dr. Patel. I.G. Ex. 6, at 4. Dr. Patel placed his mouth on her breast without her consent. I.G. Ex. 2.

The victim of the offense for which Dr. Patel was convicted made a notarized, written statement to the Georgia Composite State Board of Medical Examiners (Georgia Board). I.G. Ex. 5. The statement recited that the sexual battery occurred while K.T. was being examined in Dr. Patel's office during her medical care. The Georgia Board suspended Dr. Patel from medical practice. I.G. Ex. 8.

On October 30, 1998, Dr. Patel was notified by the I.G. that he would be excluded for ten years effective 20 days thereafter. I.G. Ex. 1. He sought administrative review of his exclusion before the ALJ. He waived in writing the opportunity for an in-person hearing and asked that the case be decided on the written record. Letter to ALJ from Counsel for Dr. Patel, dated May 17, 1999.

Legal Authorities

The I.G. relied, as the basis for Dr. Patel's exclusion, on section 1128(a)(2) of the Act, which requires the Secretary of the Department of Health and Human Services to exclude any individual who "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." See also 42 C.F.R. � 1001.101(b).

The Act defines the term "conviction" in this regard to include the following relevant situations:

(3) when a plea of guilty or nolo contendere by the individual . . . has been accepted by a Federal, State, or local court; or

(4) when an individual . . . has entered into participation in a first offender, deferred adjudication, or other arrangement or program where judgment of conviction has been withheld.

Section 1128(i)(3) and (4) of the Act.

The Act generally requires that mandatory exclusions under section 1128(a)(2) must be for a minimum period of not less than five years. Section 1128(c)(3)(B) of the Act; see also 42 C.F.R. � 1001.102(a). The I.G. retained discretion to set a longer period and has adopted regulations which provide that "any of the following factors may be considered to be aggravating and a basis for lengthening the period of exclusion," then listing various potentially aggravating factors to be considered in determining whether to lengthen the exclusion period. 42 C.F.R. � 1001.102(b). The regulation identifies the relevant factors but does not specify the weight to be assigned to each, which thus depends on the particular evidence in an individual case. This regulation was amended, effective October 2, 1998, to add two additional aggravating factors. 63 Fed. Reg. 46,686 (Sept. 2, 1998). These two added factors were the ones relied on by the I.G. to increase the length of Dr. Patel's exclusion from five to ten years. They were:

(4) In convictions involving patient abuse or neglect, the action that resulted in the conviction was premeditated, was part of a continuing pattern of behavior, or consisted of non-consensual sexual acts;

* * *

(8) Whether the individual . . . has been the subject of any other adverse action by any Federal, State or local government agency or board, if the adverse action is based on the same set of circumstances that serves as the basis for the imposition of the exclusion.

42 C.F.R. � 1001.102(b)(4) and (8) (emphasis added).⁽¹⁾

Issues and Exceptions

Dr. Patel specified the following findings of fact and conclusions of law (FFCLs) to which he took exception:

FFCL 1.d - The abuse of which Petitioner was convicted occurred in connection with the delivery of a health care item or service.

FFCL 2.a - This case is governed by the version of 42 C.F.R. � 1001.102 which became effective on October 2, 1998.

FFCL 2.b (i) and (ii) -

(i) The act that resulted in Petitioner's conviction consisted of a non-consensual sexual act.

(ii) Petitioner has been the subject of other adverse actions by State regulatory agencies and these actions are based on the same set of circumstances that serve as the basis for the imposition of an exclusion.

FFCL 2.f - A ten-year exclusion is reasonable based on a weighing of the evidence that relates to the aggravating and mitigating factors that are present in this case.

ALJ Decision at 4, 9, 11, 13 and 16 (FFCLs extracted from body of decision) (emphasis in original); Patel Br. at 2.

Dr. Patel objected to the legal analysis in the ALJ Decision underpinning these findings on a number of grounds. Specifically, Dr. Patel contended that the ALJ erred in the following ways --

• �inferring without foundation that certain evidence which was not in the criminal court record must nevertheless have been seen by the grand jury or included in the presentment in the criminal case;



• �failing to focus on evidence presented to the criminal court judge rather than to the grand jury;



• �relying on a victim statement that was not credible;

• �accepting extrinsic evidence when Dr. Patel pled nolo contendere rather than going to trial; and

• �effectively shifting the burden of proof for a necessary element of the exclusion authority to Dr. Patel.

Patel Br. at 2.

In addition, Dr. Patel challenged the length of the exclusion on two grounds. First, he argued that the I.G. and the ALJ erred by applying the revised rule governing the applicable aggravating factors in determining the appropriate length of his exclusion. Dr. Patel's misconduct occurred on August 20, 1996; he was convicted on June 12, 1997; professional boards in Georgia and California took actions against him on July 11, 1997 (I.G.'s Ex. 8)and December 17, 1997 (I.G. Ex. 9) respectively; the revised regulations took effect on October 2, 1998; the I.G. notified him of his exclusion on October 30, 1998; and the exclusion took effect on November 19, 1998. Dr. Patel argued that application of the new rule was impermissibly retroactive and violated the normal rule that laws should be applied prospectively (and raised constitutional problems). Second, Dr. Patel disputed the factual basis on which the ALJ relied in applying one of the aggravating factors in his case.

Standard of Review

Our standard of review on disputed issues of fact is whether the ALJ Decision is supported by substantial evidence on the record as a whole. 42 C.F.R. � 1005.21(h). Our standard of review as to disputed issues of law is whether the ALJ Decision is erroneous. Id.

Conclusion

For the reasons set out above, we affirm the exclusion determined by the ALJ and sustain the ALJ Decision.

As a preliminary matter, we summarily affirm those FFCLs to which Dr. Patel did not take exception. The unchallenged FFCLs establish that Dr. Patel was convicted of a criminal offense relating to sexual abuse of a patient and that he proved the existence of a sole mitigating factor, in that he was convicted of fewer than three misdemeanor offenses and his offense caused no financial loss to the federal health care programs. ALJ Decision at 3-4, 13-15; 42 C.F.R. � 1001.102(c)(1).

We address first the issue of whether the I.G. proved that the offense occurred in connection with health care delivery. In that regard, we consider whether the ALJ erred in his treatment of extrinsic evidence offered by the I.G., specifically the victim's statement, and whether any such error resulted in improperly shifting the burden of proof. We next discuss Dr. Patel's arguments relating to the length of his exclusion. In that regard, we consider whether the application of the revised version of the regulations to permit the I.G. to weigh two new aggravating factors was retroactive and, if so, whether the application was permissible. We find no basis to consider whether the revision amounted to unconstitutional ex post facto legislation. We then address Dr. Patel's arguments that the factual evidence relating to the aggravating and mitigating factors does not support a ten-year exclusion.

1. The ALJ did not err in concluding that the evidence presented by the I.G. proved that the abuse of which Petitioner was convicted occurred in connection with the delivery of a health care item or service.

The I.G.'s authority to exclude under section 1128(a)(2) derives from the fact of a conviction where the underlying offense meets the criteria set out in the Act. The I.G. had to prove four elements in the present case: (1) a conviction; (2) of an offense relating to abuse; (3) of a patient; and (4) in connection with delivery of a health care service. Dr. Patel did not except to the ALJ's findings that the first three elements had been proven.

The crux of the dispute in this case is whether the I.G. proved the fourth element, i.e., that the underlying offense took place "in connection with the delivery of a health care item or service." Section 1128(a)(2). The I.G. relied for this purpose on a statement made by K.T. that she was in Dr. Patel's office as his patient for treatment when he touched her breast with his mouth inappropriately, on the same date named in the presentment in Dr. Patel's criminal case. The statement was included in a sworn notarized statement to the Georgia Medical Board but was not made part of the criminal court record. Dr. Patel did not dispute that the same K.T. was both the victim of the criminal offense of which he was convicted and the source of the statement to the Georgia Board. The criminal court record, however, does not document the setting in which the offense occurred, although it does document Dr. Patel's admission that K.T. was his patient. I.G. Ex. 6, at 4 (sentencing colloquy). Hence, whether the I.G. proved this necessary element depends on what treatment should be accorded to this extrinsic evidence in determining whether the offense occurred in connection with health care delivery.

A. K.T.'s statement was admissible as evidence extrinsic to the criminal court proceeding to prove an element of the I.G.'s exclusion authority.

Dr. Patel argued that only certain extrinsic evidence should be considered by the I.G. in making exclusion decisions and by the ALJ in reviewing them. At various times, he suggested that the document itself (or, at the least, the facts recited therein) must be proven to have been known to the grand jury in drafting the presentment, or to have been relied on or at least known by the state criminal judge, or must have been part of the criminal case record. See, e.g., Transcript of Appellate Oral Argument at 12-13 (Tr.).

Dr. Patel does not rely on any prior Board decision to support his assertions about the prerequisites to admissibility for extrinsic evidence, and we have found none. In fact, in a prior case, the Board rejected the petitioner's argument that a victim's statement should not be admissible because it went beyond the allegations in the specific charges to which he had pled. Bruce Lindberg, D.C., DAB No. 1386, at 3 (1993) (on appeal from ALJ decision on remand) (Lindberg II). Instead, the Board held that whether the statement was admissible depended on how reliable it was, and the Board proceeded to evaluate whether sufficient indicia of reliability were present. Id. at 4. The Board concluded that the ALJ did not err in using the extra-judicial statement to make findings analogous to those contested in this case, i.e., whether the offense occurred in a clinical setting (as a basis for applying section 1128(a)(2)). Id. The Board did not require that evidence of the setting be shown to have been included in the criminal proceeding. Id. The Board held that such use of extrinsic evidence does not constitute "creat[ing] a new set of offenses," but rather filling in the circumstances surrounding the events which formed the basis for the offense of which Petitioner was convicted. Id. Applying the reasoning of Lindberg II to the facts here, we find no blanket requirement that all the elements of section 1128(a)(2) must be established on the face of the charges of which an individual is convicted or by some kind of documentation in the criminal record.

The criteria proposed by Dr. Patel for admitting extrinsic evidence would be impractical and would likely frustrate the purpose of the law by preventing the imposition of mandatory exclusions in many situations in which Congress clearly determined that the federal health programs required protection. The purpose of adding the instant basis for mandatory exclusion was "to protect beneficiaries under the health care programs of that Act from unfit health care practitioners" and "from incompetent practitioners and from inappropriate or inadequate care." S. Rep. No. 100-109. at 1, reprinted in 1987 U.S.C.C.A.N. 682. Prohibiting the I.G.'s use of evidence extrinsic to the criminal court process might well expose the federal programs and those dependent on them to an individual who was in fact criminally convicted for the very kind of conduct that Congress defined as so inherently problematic that it compelled rather than permitted the Secretary to take protective action against it. The result in this case, for example, would be to risk the federal government paying to reimburse care that subjects patients to potential repetition of the inappropriate acts for which Dr. Patel was criminally convicted.

Congress did not limit the I.G.'s authority and duty to exclude to only those individuals convicted of the crime of abusing a patient while under medical care. The plain language of the statute clearly covers a broader reach. The individual must indeed be convicted of a criminal offense. The statute then simply states that the offense involved must "be related" to the neglect or abuse of a patient. Hence, the 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. Further, the 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. Again, the conviction is thus not required to be for neglectful or abusive health care delivery.⁽²⁾ In a prior decision, the same ALJ pointed out the implication of Congress's choice of words:

Congress could have conditioned imposition of the exclusion remedy on conviction of criminal offenses consisting of patient neglect or abuse. Had it used the term "of" instead of the term "relating to" in section 1128(a)(2), that intent would have been apparent. Had Congress done so, then, arguably, no extrinsic evidence would be permitted in a given case to explain the relationship between the criminal conviction and the underlying conduct. However, Congress intended that the exclusion authority under section 1128(a)(2) apply to a broader array of circumstances. It mandated the Secretary exclude providers who are convicted of criminal offenses "relating to" patient neglect or abuse in connection with the delivery of a health care item or service. The question  .  .  .  is whether the criminal offense which formed the basis for the conviction related to neglect or abuse of patients, not whether the court convicted Petitioner of an offense called "patient abuse" or "patient neglect." It is consistent with congressional intent to admit evidence which explains the circumstances of the offense of which a party is convicted. One of my tasks in hearing and deciding this case is to examine all relevant facts to determine if there is a relationship between the Petitioner's criminal offenses and neglect or abuse of patients in connection with the delivery of a health care item or service.

Norman C. Barber, D.D.S., DAB CR123, at 10-11 (1991); see also Bruce Lindberg, D.C., DAB No. 1280, at 4 (1991) (Lindberg I); Dewayne Franzen, DAB No. 1165, at 6 (1990) (holding that the ALJ may "look beyond the findings of the state court to determine if a conviction was related to Medicaid").⁽³⁾

We thus see nothing in section 1128(a)(2) that requires that the necessary elements of the criminal offense must mirror the elements of the exclusion authority, nor that all statutory elements required for an exclusion must be contained in the findings or record of the state criminal court. We see no reason to assume that Congress intended to narrowly proscribe the I.G.'s exclusion authority by dependence on the vagaries of state criminal law definitions or record development. On the contrary, the statutory language says nothing about what evidence of the nature of and circumstances surrounding the offense itself may be considered to determine if the individual's criminal conduct included the elements necessary for a mandatory exclusion.

We conclude that the language of section 1128(a)(2) applies to all convictions of criminal offenses, where the underlying conduct which led to the individual's conviction is proven both to have related to a patient and to have occurred in connection with health care delivery. This still means, of course, that the conviction must be shown to be for the same conduct or events to which the extrinsic evidence relates, and does not imply that the I.G. can bring together a conviction based on one set of facts with an unrelated set of facts that show abuse of a patient in connection with health care delivery and somehow join them to authorize an exclusion.⁽⁴⁾

To interpret the statute otherwise would mean that two providers might be engaged in identical conduct at the same time and be convicted of identical offenses, but only one might be subject to a federal exclusion based on such variables as how the elements of the offense are defined in a state law or what questions a judge happens to ask during a plea or sentencing proceeding. State criminal laws, and hence state judges, do not have interests coextensive with the federal health programs. The elements required to support a particular state criminal offense (such as various forms of abuse, neglect or fraud) frequently address only the state's concerns, and may make no reference to factors critical to the statutory assessment of whether the individual committing the offense thereby demonstrates a threat to federal programs. Federal exclusion law is prospective and remedial, aiming at guarding both patients and the federal fisc from criminals whose conduct demonstrates their lack of trustworthiness, while the state criminal laws generally aim primarily at punishing the wrongdoers for the offense committed and deterring further violations. Thus, the elements relevant to an exclusion are not necessarily the same as those relevant to a conviction; and the ALJ has broad discretion to allow probative evidence relevant to the elements of the exclusion. Hence, the Board has repeatedly held that the basis for the federal exclusion authority need not appear in the charges or associated court documents, but may be demonstrated by extrinsic evidence of the underlying facts and circumstances of the offense. Chuoke at 6; see also Berton Siegel, D.O., DAB No. 1467 (1994); Carolyn Westin, DAB No. 1381 (1993); DeWayne Franzen, DAB No. 1165 (1990).

The ALJ here, however, imposed narrow limits in weighing what extrinsic evidence should be admitted. He applied a distinction "between extrinsic evidence that was part of the process that resulted in a conviction and extrinsic evidence that was unrelated to the criminal process." ALJ Decision at 6, citing Barber. The ALJ based this distinction on his reasoning that:

(1) evidence of the setting in which a sexual assault took place is not per se admissible to determine whether the conviction for the assault was related to health care delivery; (2) the I.G.'s exclusion authority derives from a conviction "and not from the underlying facts which relate to the conduct that might be the basis for a conviction;" and (3) the relevance of the evidence therefore depends on whether it "was part of the process that led to the excluded individual's conviction." ALJ Decision at 6. The ALJ concluded that the derivative nature of a section 1128(a)(2) exclusion precluded any use of extrinsic evidence that would add elements to the criminal charges, or serve any function beyond explaining ambiguities in charges or pleas and explaining unstated but necessarily implied elements of the offense. Id.

We disagree. As we have explained, the I.G.'s exclusion authority is indeed derivative from the fact of a conviction, and therefore the individual may not collaterally reopen the question of guilt in a later exclusion proceeding. See, e.g., Behrooz Bassim, M.D., DAB No. 1333, at 9-10 (1992). However, we have specifically held that the bar to relitigating the action from which the exclusion derives does not preclude review of the circumstances upon which that action was based. Id. at 11-12. It thus does not follow from the derivative nature of the exclusion that all elements of the exclusion must be contained in the necessary elements of the criminal offense or referenced in the process leading to the conviction. The statutory language and legislative history cited above lead to the conclusion that whether a particular conviction meets all the elements required for exclusion depends instead on the facts and circumstances surrounding the underlying conduct which constituted the offense leading to the actual conviction. Thus, extrinsic evidence is indeed not admissible "per se" to show health care delivery as part of the underlying fact that "might be the basis" of the conviction, as the ALJ found. Such evidence is admissible where reliable and credible to show the underlying facts of the specific conduct which did in fact form the basis of the conviction from which the exclusion authority derives, regardless of whether that evidence (or evidence of all the facts and circumstances relevant to the exclusion authority) formed part of the criminal process.

Because the ALJ considered it necessary that the statement or its contents have been "part of the process" in the criminal proceedings in some way, much attention was directed below to ascertaining whether the contents of K.T.'s statement were known to the grand jury or the sentencing judge. See ALJ Decision at 7. The ALJ inferred that K.T.'s statement was admissible because her allegations must have played some role in the criminal process given the large overlap with the admitted facts in the criminal proceeding. ALJ Decision at 8. The I.G. argued to us that she need not and cannot prove what evidence was before the grand jury. I.G. Br. at 14-15. Dr. Patel acknowledged that grand jury proceedings are conducted under and remain protected by secrecy requirements. Patel Br. at 6-7. Therefore, it is difficult in any case, and was not possible here, to find any evidentiary foundation for drawing an inference as to what evidence was before any grand jury. We thus disagree with the ALJ's premises that such an inference was necessary or supported by the evidence. Nevertheless, we find that the error is essentially harmless. The ALJ properly admitted and considered K.T.'s statement in determining that the I.G. met her burden in proving her authority to exclude Dr. Patel.

B. The standards for admission of extrinsic evidence do not depend on whether the conviction occurred after trial or through a plea.

Dr. Patel also argued that the ALJ failed to address Dr. Patel's argument that the legislative history of the 1987 act creating this basis for mandatory exclusion somehow suggested that the use of extrinsic evidence was proper only in the case of individuals "tried and convicted" of offenses, and hence not as to individuals who entered into nolo contendere pleas as did Dr. Patel. Patel Br. at 5, n.1. Dr. Patel cited the Senate Report's statement that the bill --

would give the Secretary the authority to protect Medicare and the State health care program beneficiaries from individuals or entities that have already been tried and convicted of offenses which the Secretary concludes entailed or resulted in neglect or abuse of other patients and whose continued participation in Medicare and the State health programs would therefore constitute a risk to the health and safety of patients in those programs.

S. Rep. No. 100-109, reprinted at 1987 U.S.C.C.A.N 682.

The ALJ implicitly rejected this argument in admitting K.T.'s statement. We find no error in that conclusion. The same report makes clear that the bill --

broadly defines the term 'conviction' for the purposes of both the mandatory and permissive exclusions . . . and encompasses all dispositions of criminal matters in which (1) a judgment of conviction has been entered in a Federal, State, or local court, regardless of whether there is an appeal pending or whether the judgment of or other record of conviction has been expunged; (2) there has been a finding of guilt by a Federal, State, or local court; (3) a plea of guilty or nolo contendere has been accepted by a Federal, State or local court; or (4) the individual has entered into participation in a first offender, deferred adjudication, or other program where judgment of conviction has been withheld, regardless of whether that individual entered a formal plea of guilty or nolo contendere.

Id. We see no basis to conclude that the reference to "tried and convicted" individuals was intended to carve out the subset of convicted individuals who waived their rights to adjudication by trial for application of a stricter evidentiary standard in later exclusion proceedings.

However, the language cited by Dr. Patel from the Senate Report further supports our interpretation of the proper treatment of evidence from outside the criminal process to flesh out the circumstances of the offense in order to ascertain whether the conduct meets the elements needed for an exclusion. The Report states that the law would apply to all "offenses which the Secretary concludes entailed or resulted in neglect or abuse of other patients and whose continued participation in Medicare and the State health programs would therefore constitute a risk to the health and safety of patients in those programs." Id. (emphasis added). Thus, Congress intended to place in the hands of the Secretary the responsibility for drawing conclusions about whether a particular offense by an individual "entailed or resulted in" the requisite elements showing that he or she is untrustworthy. The Congress relied on the various state and federal courts to make the determination whether the course of conduct constituted a criminal offense, but not whether that course of conduct met the other elements required to show untrustworthiness and a risk to patients.

C. The record contains adequate indicia of reliability to support the admissibility of K.T.'s statement.

The ALJ accepted K.T.'s statement at I.G. Ex. 5 as reliable and relied on it to find that the I.G. satisfied the fourth necessary element of Dr. Patel's exclusion. See generally ALJ Decision at 5-8. The ALJ noted that on its face the statement showed that it was contemporaneous, dated only one day after the events which it recounts. Id. Further, as the ALJ observed, the statement was signed and sworn to before a notary public, and was addressed to a physician associated with the state medical licensing authority in the context of an investigation. Id. In addition, as the ALJ noted, the events recounted in the statement exactly track the facts set out in the presentment as to the fact and nature of the misconduct, as well as the date it occurred. Nothing in the statement conflicts with any information available from the criminal process, but the statement simply adds the additional information that the misconduct occurred during the course of health care treatment in Dr. Patel's office. ALJ Decision at 8.

We find adequate indicia of reliability to support admissibility of the statement in the administrative proceeding here. The factors noted by the ALJ suggest that K.T. had good reason to be aware that the statement she was making could have very serious consequences, that she made it in a formal way with the intent that it be relied upon by the medical authorities, and that the proceedings in which it was to be used were solemn. In addition, many of the assertions in the letter are corroborated by Dr. Patel's own admissions about his offense. See I.G. Ex. 6, at 4.

Dr. Patel argued that the Board's decision in Lindberg II spelled out four prerequisites to admissibility, and argued that they were not met in the case of K.T.'s statement. Patel Br. at 8. A close reading of the decision makes clear, however, that these were case-specific facts set out by the ALJ and reviewed by the Board, and in no way established any universal four-prong test for admissibility of statements extrinsic to a criminal proceeding. See, e.g., Lindberg II, at 4. The four ALJ findings relevant to reliability of the victim's statement in that case were the following:

(1) The statement was taken under oath.

(2) The victim had little motivation to lie to authorities about these events.

(3) Petitioner did not object to the veracity of the statement despite having an opportunity to do so.

(4) Petitioner had an opportunity to confront the victim at the hearing and chose not to do so.

See Lindberg II, at 4; see also Bruce Lindberg, D.C., DAB CR233, at 22 (1992) (ALJ decision on remand). The Board found that the record did not contain any evidence either way about the victim's potential motivation to lie. Lindberg II at 4. However, the Board also concluded that sufficient other indicia of reliability existed, even without evidence on that point, to make the statement admissible, including the high coincidence of the allegations in the statement with the information in the court record. Id. Notably, in Lindberg II, as in the present case, the petitioner did not present any evidence directly contradicting the key parts of the statement, did not choose to testify to any alternative version of the events at issue, and did not choose to exercise his right to confront or cross-examine the victim. The Board did not hold that the indicia of reliability present in the Lindberg II case were the only ones which could be considered in weighing the reliability of a statement offered in another case, but we find that the indicia of reliability present in regard to K.T.'s statement track quite closely those which were accepted in Lindberg II.

We further reject Dr. Patel's reasons for asserting that K.T.'s statement would fail to meet the indicia he cited from the Lindberg II case. Dr. Patel stated that a critical difference is that K.T.'s statement was merely notarized while the statement in Lindberg II was made under oath, and therefore subject to penalties of perjury. We find that the fact that the statement was sworn and subscribed to before a notary and presented to a state licensing body was sufficient to alert the affiant to the risk that a lie would subject her to potential legal consequences. An oath with explicit warnings about perjury might well further impress this point and thereby enhance the reliability of the statement, but nowhere has such an oath been held to be a minimum criterion for reliability.

Dr. Patel asserted that, unlike Dr. Lindberg, he was not shown to have been presented with the statement in the criminal proceedings, and that he had no opportunity to cross-examine the affiant since no trial was held. The reason no trial was held is that Dr. Patel elected to waive explicitly his right to trial and his right to confront and cross-examine the witnesses. I.G. Ex. 6. Thus, he had an opportunity which he declined. Dr. Patel also attributed significance to the fact that the victim whose statement was admitted in Dr. Lindberg's case was a child, whereas K.T. is an adult who might have more interest in potential monetary recovery. We discuss the question of a motivation to lie in relation to credibility below, but note here that as a matter of reliability the statement of an adult may often present fewer difficulties than that of a child.

Dr. Patel also asserted that the statement is not reliable because it recites allegations but does not constitute proof of the truth of the allegations. See Tr. at 13. The same argument was rejected in Lindberg II, since Dr. Lindberg there, like Dr. Patel here, "pointed to no evidence in the record directly contradicting what" the victim said. Lindberg II, at 5. The statements submitted in each case by the I.G. were found reliable and therefore established a prima facie case showing that the allegations therein were true. While that evidence was indeed not incontrovertible proof, it was sufficient proof to support a finding absent the presentation of any conflicting evidence. Therefore, we proceed to discuss the evidence of record on the credibility of the allegations in K.T.'s statement.

D. The record contains substantial evidence supporting the credibility of K.T.'s statement.

We find in this case, as in Lindberg II, that virtually no persuasive evidence has been adduced that would allow us to speculate as to whether K.T.'s actual motivation in making her statement was anything other than simply reporting her complaint to the appropriate medical authorities. Dr. Patel suggests that K.T. might have had financial motives to lie in order to later seek monetary recovery from him. Patel Br. at 8-9. However, we note that Dr. Patel has admitted that she was his patient and that he made inappropriate sexual contact with her. It is rather difficult to see what motivation K.T. would thus have had to lie only about the setting in which this abuse occurred, while being truthful about the essential facts that might create liability. Dr. Patel offered no evidence to suggest that any potential civil recovery would be enhanced by this additional detail. On the other hand, the I.G. asserted that Dr. Patel's allegations in this regard were raised "in bad faith" because he presented no evidence that K.T. in fact had any financial interest in the matter. I.G. Br. at 8. Dr. Patel asserted that a potential financial interest in future litigation could have motivated false statements, not that K.T. in fact had acted to realize any actual financial interest. We therefore conclude that Dr. Patel did not prove a motive that would undercut the credibility of the statement, but we do not determine that Dr. Patel raised the issue in bad faith.

The most telling evidence of the reliability and credibility of the statement, however, is Dr. Patel's consistent unwillingness, despite multiple opportunities, to challenge its truthfulness. First, at the Georgia Board proceedings, the consent order approved on October 1, 1997, which was produced in evidence by Dr. Patel, shows that he offered no contest to the charges against him (while not admitting their truth) and offered only a supplemental statement "in explanation and mitigation." Patel Ex. 3, at 1-2. Dr. Patel also submitted that supplemental statement into evidence before the ALJ. Patel Ex. 11. In it, he stated that he "has admitted certain of the allegations made by K.T." Id. at 5. He then adopted the summary report of a therapist to whose treatment he submitted as part of the consent order.⁽⁵⁾ That report stated that Dr. Patel "inappropriately touched K.T." only because of his own family stress and that he immediately regretted having done so and did not repeat it. Id. Thus, Dr. Patel's statement to the Georgia Board did not challenge K.T.'s allegations and admitted his inappropriate sexual conduct with her.

Second, at the criminal level too, Dr. Patel chose not to confront the witnesses or put the prosecutor to the proof of the charges against him. The transcript of his plea and sentencing show that the judge instructed him that, by pleading nolo contendere, he was giving up the opportunity to cross-examine the witnesses against him and also the chance "to tell your side of it, if you have a side that you want heard." I.G. Ex. 6, at 3. The judge instructed him that he was charged with placing his mouth on K.T.'s breast, without her consent and that she was a patient of his (all facts included in K.T.'s statement), and the following colloquy then transpired:

THE COURT: . . . Did you do that?

THE DEFENDANT: Yes.

THE COURT: Is that the truth?

THE DEFENDANT: Yes.

Id. at 4.⁽⁶⁾ Clearly, Dr. Patel again understood what K.T. was accusing him of, expressly admitted the underlying allegations, and chose consciously not to either confront her or present any opposing version of events. Again, in requesting an administrative hearing, Dr. Patel had an opportunity to challenge the veracity of K.T.'s statement or to present himself an alternative version of the circumstances surrounding his offense.⁽⁷⁾ However, he expressly waived this opportunity and asked that the ALJ decide the case on the written record.

Dr. Patel argued that no inferences should be drawn from his decision not to confront his accuser at any of these opportunities. His counsel suggested that he did not have the opportunity at the criminal court because he was convicted based on a plea bargain which was "in some ways an artificial construct" that was "carefully crafted". Tr. at 8-9. Plea bargains may well reflect negotiations and strategic decisions by a defendant about his best interest. That fact does not oblige us to ignore the implication that a reiterated choice not to challenge an allegation suggests either an inability or unwillingness to offer credible contradiction.

Counsel further explained that Dr. Patel did not choose to have an in-person hearing on the evidence as to the fourth necessary element for exclusion because "it was not our burden to . . . disprove what had never been proven before." Tr. at 22. We consider next whether drawing a negative inference against Dr. Patel from the victim's allegations and his silence in response amounted to shifting the burden of proof improperly.

E. The ALJ properly placed the burden of proof for all elements of the exclusion authority on the I.G.

Dr. Patel also argued that the ALJ's admission of K.T.'s statement amounted to improperly shifting the burden of proof on the "missing" element from the I.G. to Dr. Patel. Patel Br. at 4-6. In support, Dr. Patel pointed to the ALJ's statements that the I.G. did not prove (1) that the presentment or plea transcript recorded the setting of the sexual battery or (2) that the statement was shown to the grand jury, as showing that the ALJ twice found that the I.G. failed to meet her burden of proof. Patel Br. at 5, citing ALJ Decision at 5, 7. In light of our conclusion above that K.T.'s statement was admissible, reliable, and credible evidence as to whether the offense of which Dr. Patel was convicted occurred in connection with health care delivery, it is clear that the I.G. met her burden as to the "missing" element by establishing that the sexual battery occurred in Dr. Patel's office in the course of his examination of K.T. for health-related complaints. As noted above, Dr. Patel failed to rebut this showing with testimony of his own as to the events, cross-examination of K.T., or any other evidence.

Dr. Patel nevertheless pointed to the requirement that the necessary elements of the exclusion authority must be demonstrated by the I.G. through "actual proof" as a basis for his claim that the admission of extrinsic evidence by the ALJ was improper and amounted to shifting the burden of proof to Dr. Patel. Patel Br. at 4⁽⁸⁾. Dr. Patel described the ALJ as permitting the I.G. to introduce extrinsic evidence "[i]n the absence of actual proof of the required element." Id. at 5. The dichotomy created by Dr. Patel between extrinsic evidence and actual proof is a false one.

Extrinsic evidence can have two meanings in the law. The phrase is sometimes used to describe evidence "not legitimately before the tribunal," i.e., evidence that should not have been admitted by a tribunal on a question before it. See Black's Law Dictionary, 6^th Ed. The second meaning of extrinsic evidence is any evidence "which does not appear on the face of a document, but which is available from other sources such as statements by the parties and other circumstances surrounding the transaction or that which is not contained in the body of an agreement, contract, and the like." Id. It is that latter sense in which the term is used in these proceedings, and the usage merely refers to evidence that is presented from outside the criminal record to elucidate the underlying facts of the offense. The extent to which that evidence is probative of the proposition which it is offered to prove, that is to say, whether it constitutes actual proof, depends on its relevance, reliability, and credibility.⁽⁹⁾

We thus reject the contention that the burden of proof was shifted to Dr. Patel.

2. Substantial evidence supported the ALJ's finding that the ten-year exclusion was reasonable.

Under the mandatory exclusion law, the I.G. was obligated to exclude Dr. Patel for at least five years. Section 1128(c)(3)(B) of the Act. The I.G. lengthened Dr. Patel's exclusion from the minimum of five years to ten years based on two aggravating factors. Dr. Patel challenged the use of these factors in his case. Patel Br. at 12-21.

As to the first aggravating factor, under 42 C.F.R. � 1001.102(b)(4), the I.G. determined that Dr. Patel committed a non-consensual sexual act.⁽¹⁰⁾ See I.G. Ex. 1, at 1. Dr. Patel appealed the ALJ's finding that the conduct that resulted in his conviction consisted of a non-consensual sexual act, but set forth no factual basis for his exception, relying instead on legal arguments. See ALJ Decision at 11, FFCL 2.b (i); Patel Br. at 12-15. Dr. Patel did not deny that his offense was non-consensual; the presentment on which he was convicted specifically stated that it was without consent; and Dr. Patel admitted that fact at the sentencing colloquy. I.G. Ex. 2 at 2; I.G. Ex. 6, at 4. As explained above in relation to K.T.'s statement, Dr. Patel did not contest the inappropriately sexual nature of the actions and, in any case, the conviction on its face consisted of sexual battery.

Dr. Patel asserted as to this aggravating factor, however, that he lacked notice of the implications of pleading to non-consensual sexual acts in terms of a potential future exclusion. Patel Br. at 18. Consequently, the only issue raised as to this aggravating factor is whether it can properly be applied to lengthen Dr. Patel's exclusion or whether such application is impermissibly retroactive or amounts to unconstitutional ex post facto legislation.

As to the second aggravating factor, under 42 C.F.R. � 1001.102(b)(8), the I.G. determined that Dr. Patel was the subject of another adverse action by a State agency or board, in which "the adverse action is based on the same set of circumstances that serves as the basis for imposition of the exclusion," as required by the regulation. I.G. Ex. 1, at 1. The I.G. based this conclusion on the December 17, 1997 revocation of Dr. Patel's medical license by the Medical Board of California. Id.; I.G. Ex. 9. Dr. Patel raised the same retroactivity issue as with the first aggravating factor mentioned above. In addition, Dr. Patel contended that even if the regulation properly applied to him, the use of this aggravating factor by the I.G. was unsupported because California's action was simply based on Georgia's action without additional investigation. Dr. Patel asserted that he decided to surrender his license in California on merely "expedient" grounds because he had no plans to return to practice in California. Patel Br. at 20. Hence, Dr. Patel contended, the I.G. acted unreasonably in "blindly" treating this adverse action as relevant; instead, since "nothing new or additional happened" in California, the action there cannot logically be aggravating. Id.

A. The application of the aggravating factors in 42 C.F.R. � 1001.102 to Dr. Patel is not improperly retroactive.

The parties disputed whether the I.G.'s use here of aggravating factors to increase the exclusion from five to ten years was impermissibly retroactive. The aggravating factors considered by the I.G. were added after Dr. Patel's offense, conviction, and the resolution of state medical board actions (by consent order in Georgia and license surrender in California). Dr. Patel argued that all regulations adopted under the Administrative Procedure Act must operate only prospectively absent express legislative direction to the contrary. Patel Br. at 17, citing Bowen v. Georgetown Univ. Hosp., 488 U.S. 204 (1988). He argued that the laws creating the relevant exclusion authority expressly limited the application of mandatory minimum exclusions to convictions or offenses occurring after their enactment, evidencing a legislative intent that implementing rules apply prospectively only. Id. at 17-18.⁽¹¹⁾ He contended, the regulatory change, as applied to him, was retroactive and negatively impacted Dr. Patel's substantive rights. Id. at 18-19.

The I.G. responded that no true retroactive application took place in this case. Rather, she was "merely applying the current law" in effect when she made the actual exclusion determination. I.G. Br. at 18. The I.G. agreed that a regulation must be presumed to operate only prospectively unless retroactive application is expressly required, but contended this application did not violate that principle. Instead, the I.G. argued, the regulation was applied prospectively to an exclusion imposed after its issuance and simply drew on antecedent facts. Id. at 19-20.

Dr. Patel's argument that the statutory enactments from which the I.G. derived the authority to exclude here themselves explicitly applied only to offenses or convictions after their enactment is not helpful in determining whether the application of this particular regulatory provision to Dr. Patel is truly retroactive in nature. Cf. Patel Br. at 17-18; see Health Insurance Patient Protection Act of 1996, Pub. L. No. 104-161 and Medicare and Medicaid Patient Protection Act of 1987, Pub. L. No. 100-93. The earlier statute made the conduct at issue subject to mandatory exclusion and the latter imposed a minimum five-year period for such mandatory exclusions. It is not self-evident that such newly-granted authority is equivalent to the application of additional aggravating factors to guide the I.G.'s pre-existing discretion in setting the length of already-authorized exclusions. The statutes made substantive changes in the law by removing first the I.G.'s discretion to decide not to impose an exclusion and then the I.G.'s discretion to limit the exclusion to less than five years. Thus, an affected practitioner lost any opportunity to present argument or evidence to the I.G. to suggest that an exclusion would not be appropriate or should be less than the minimum. The regulatory change did not arise directly from any statutory directive to add additional aggravating circumstances and represented the I.G.'s effort to guide the exercise of her existing discretion in a way better attuned to both her acquired experience with exclusions and expressed congressional concerns.

The I.G. has long been vested with the discretion to impose a period of exclusion more than the minimum period, so long as the period remains within a reasonable range. 42 C.F.R. � 1001.102; see Jo Ann Fletcher Cash, DAB No. 1725, at 16-17 (2000), citing 57 Fed. Reg. 3298, 3321 (1992). The use of I.G. discretion to increase the length of an exclusion beyond the minimum mandatory period has been found to be reasonable where a longer period is needed to accomplish the statutory purposes. See DAB No. 1725, at 15. The regulations merely list factors "any" of which "may be considered to be aggravating and a basis for lengthening the period of exclusion."⁽¹²⁾ 42 C.F.R. � 1001.102(b). The added aggravating factors considered by the I.G. under the current regulation are by nature well-suited to evaluate future trustworthiness and future threat, which are the central concerns of the exclusion provisions. Cash at 15.

Section 1128(a)(2) of the Act is a civil, remedial statute. Numerous decisions both by this Board and by federal courts establish that because the purpose of an exclusion is to protect the public, an exclusion is remedial. See, e.g., Manocchio v. Kusserow, 961 F.2d 1539, 1542 (11th Cir. 1992); Kahn v. I.G., 848 F. Supp. 432, 437 (S.D.N.Y. 1994); and DAB No. 1725, at 9-14 and cases cited therein. It is thus well-established that the purpose of an exclusion is not to punish the individual excluded but rather to protect the federally-funded health care programs, as well as those served by the programs, from an individual who has demonstrated by his or her conduct that he or she is untrustworthy. Thus, the Board has held, in affirming a 15-year exclusion, that the mere fact that an exclusion may have a "dramatic impact on . . . future employment opportunities" may indeed be a logical consequence of a lengthy exclusion, but does not itself "undercut a determination about the period of time needed to protect" federal programs and their beneficiaries from potential harm. Cash at 19.

Since the focus of the regulation is channeling the I.G.'s exercise of her pre-existing discretion, we conclude that a prospective application is one which requires the I.G. to apply the law at the time she acts. See generally Bradley v. School Board of City of Richmond, 416 U.S. 696 (1974); see also Garner v. Jones, __ U.S. __, 120 S.Ct. 1362, at 1367-68 (2000) (no retroactive application where action was within pre-existing discretion). Were it otherwise, exclusions considered and imposed on the same date would be subject to differing criteria for administrative decision-making. Notably, the regulation was in effect at the outset of the administrative proceedings, rather than being applied to a case that was already pending.

Setting the actual length of a particular exclusion is best viewed not as the direct result of the original offense and conviction, which simply trigger a non-discretionary imposition of an exclusion. The increase beyond the minimum mandatory period is discretionary, based on an evaluation of future trustworthiness as of the time of exclusion, and should therefore be governed by the regulatory bounds set on that discretion when exercised, not on those bounds in effect as of the date of the prior offense or of the conviction. The factors to be considered do not all relate to the events surrounding the conviction. See, e.g., 42 C.F.R. � 1001.102(b)(6)-(8). The nature of the offense and the collateral license actions are antecedent facts here that are relevant to the particular factors considered in this case in the discretionary determination of the length of the exclusion, but are not the events to which the regulation actually applies. See Landgraf v. USI Film Products, 511 U.S. 244, at 265-269 (1994); see also U.S. EPA v. New Orleans, 826 F.2d 361, at 365 (5^th Cir. 1987) ("A law is not made retroactive because it alters the existing classification of a thing. Nor is a law retroactive if it draws upon antecedent facts for its operation."). Further, an exclusion is by nature a future-oriented and remedial form of relief, rather than a backward-looking consequence for a past act. See, e.g., Landgraf at 273-74.

The question of notice or fairness is not really presented in this case. Dr. Patel knew (or should have known) that the I.G. had authority under preexisting regulations to impose an exclusion longer than the minimum. The Supreme Court has explained that - -

[a] statute does not operate "retrospectively" merely because it is applied in a case arising from conduct antedating the statute's enactment, see Republic Nat. Bank of Miami v. United States, 506 U.S. 80, 100, 113 S.Ct. 554, 565-566, 121 L.Ed.2d 474 (1992) (THOMAS, J., concurring in part and concurring in judgment), or upsets expectations based in prior law. Rather, the court must ask whether the new provision attaches new legal consequences to events completed before its enactment.

Landgraf at 269-70. The regulations here plainly did not provide for novel legal consequences to attach to conduct innocent at the time it was undertaken.⁽¹³⁾ Had Dr. Patel known that the I.G. "may" consider these aggravating factors in determining an eventual exclusion period, Dr. Patel would have had no basis to conclude which factors the I.G. would consider, what weight she would give them, or what impact they would have on the eventual length of any exclusion imposed. As a practical matter, it strains credulity to imagine that such notice would have provided any meaningful information to Dr. Patel in choosing a course of action that was undeterred by the prospect of either criminal punishment or professional sanctions. Dr. Patel can hardly assert that he had any "vested right" in a particular outcome from the I.G.'s exercise of her discretion.

We conclude that the ALJ did not err in deciding that the revised version of the regulation is properly applicable to determining the length of the exclusion in this case. See ALJ Decision at 10.

B. Dr. Patel did not seek resolution by us of his argument that the application of the aggravating factors in the regulation to him constituted ex post facto legislation.

As a preliminary matter, the I.G. moved this Board to strike from Dr. Patel's brief and oral argument the portions which contend that the application to his case of 42 C.F.R. �� 1001.102(b)(4) and 1001.12(b)(8) was unconstitutional and arbitrary and capricious. I.G. Motion to Strike at 1. The I.G. contended that Dr. Patel had failed to raise these issues before the ALJ and could not now be heard to raise them for the first time.

The I.G.'s motion is denied because we find that Dr. Patel adequately, even if not expansively, raised the issues in his briefing below. For example, Dr. Patel challenged as arbitrary and capricious the ALJ's decision to affirm the length of exclusion whereas Dr. Patel below had attacked the length of exclusion as "completely unreasonable and punitive" and "outside the range of reason." Patel Resp. to I.G. Motion to Strike, at 2-3. Similarly, before the ALJ, Dr. Patel did not use the term "ex post facto" but did argue that the I.G. incorrectly relied on regulations which could not be applied retroactively without unfairly burdening him. Patel ALJ Br. at 12-13. Consequently, we consider these arguments as properly before us.

Dr. Patel argued that the purported retroactive application of these aggravating factors to his case was ex post facto legislation in violation of the United States Constitution. See U.S. Const., Art. I, � 9, cl. 3. An ex post facto law is one that is "passed after the occurrence of a fact or commission of an act, which retroactively changes the legal consequences or relations of such fact or deed." See Black's Law Dictionary (6^th ed.). The I.G. responded that this argument raised constitutional questions that the ALJ had no authority to reach. I.G. Motion to Strike at 2.

The regulations governing these appeals state that the ALJ does not have the authority to "[f]ind invalid or refuse to follow Federal statutes or regulations or secretarial delegation of authorities." 43 C.F.R. � 1005.4(c)(1). Dr. Patel conceded that the regulation removed the ALJ's authority to "resolve constitutional questions" as to the validity of regulations, and stated that he simply wished to preserve this issue for possible court appeal. Patel Resp. to I.G. Motion to Strike, at 2-3. We therefore need not address either whether resolving this question would violate the regulatory restriction on ALJ authority nor consider the merits of the issue.

In any case, we note in passing that the constitutional ex post facto prohibition has been held repeatedly not to apply to remedial sanctions, but only to punitive sanctions. See Flemming v. Nestor, 363 U.S. 603, 613 (1960). As we discussed above, it is well-established that program exclusions are remedial not punitive. Federal courts have already held that the ex post facto prohibition does not apply to exclusions for this very reason. See, e.g., Manocchio, 961 F.2d at 1542; Kahn, 848 F. Supp. at 437 (S.D.N.Y. 1994).

C. The ALJ did not err in finding that the aggravating factor relied on by the I.G. under 42 C.F.R. � 1000.102(b)(8) was present.

Dr. Patel's contention that the California revocation cannot be used as an aggravating factor because it arose as a result of the same facts as the Georgia suspension without adding anything "new" is without merit.

Dr. Patel's analysis of what should be considered under this aggravating factor simply ignores the text of the regulation at 42 C.F.R. � 1000.102(b)(8). The regulation expressly provides that the adverse action to be considered as aggravating must be "based on the same set of circumstances" as those on which the exclusion is based. It was thus contemplated that the fact of additional adverse action beyond the criminal conviction could be considered as additional evidence of the seriousness of the underlying conduct. We do not find this unreasonable, since adverse actions by professional regulatory bodies, for example, may well be relevant to assessing how serious a risk a practitioner presents to patients or to payors.

Furthermore, the California action did in fact add something new. At the very least, Dr. Patel's choice to surrender his license there rather than fight the revocation offers additional evidence that he himself again declined yet another opportunity to "tell his side." In addition, it demonstrated that a second professional licensing body considered the conduct underlying his conviction and his Georgia suspension to involve a derogation of professional responsibility serious enough to demand such action.⁽¹⁴⁾

D. The ALJ did not err in finding that the ten-year exclusion was reasonable.

The ALJ's role in reviewing the length of the exclusion imposed, beyond the mandatory minimum, is to evaluate whether it falls within a range of exclusion periods that would be reasonable under the circumstances. Dr. Patel offered no persuasive reason for us to find that the ALJ erred in that assessment.

Marc R. Hillson

M. Terry Johnson

Donald F. Garrett
Presiding Board Member

1. The parties use the numbering of the subsections that was in effect at the time of the I.G.'s action, and we follow that practice as well. We note, however, that the regulations were further amended in 1999 to add another aggravating factor which is not relevant in this case. 64 Fed. Reg. 39,426 (July 22, 1999). Consequently, the second aggravating factor involved here is currently denominated 42 C.F.R. � 1001.102 (b)(9).

2. The regulations further emphasize that the terms used in the statute have been interpreted broadly by the Secretary to carry out the remedial purpose of the law. Thus, the offenses which will trigger I.G. authority under this provision include "any offense that the [I.G.] concludes entailed, or resulted in, neglect or abuse of patients." 42 C.F.R. � 1001.101(b). In addition, the regulations provide that delivery of a health care item or service includes "the provision of any item or service to an individual to meet his or her physical, mental or emotional needs or well-being" regardless of the source of reimbursement and without specifying a clinical setting. Id.

3. However, the ALJ in Barber concluded only that extrinsic evidence was admissible "to explain unstated but necessarily implied elements of the offense to which a party pleads." The Board in Lindberg I went further in agreeing with the ALJ that the admission of such evidence was particularly appropriate in situations in which the petitioner had avoided a criminal trial by a plea to a skeletal information which omitted mention of most of the facts about "where, under what circumstances, and who were the recipients of Petitioner's criminal sexual misconduct," thereby precluding development of an evidentiary record of the surrounding circumstances. Lindberg I at 3-4, quoting in part from Bruce Lindberg, D.C., DAB CR145, at 9 (1991). The Board further agreed that, where the documents evidencing the conviction do not record the relevant circumstances of the criminal conduct, and the criminal statute does not on its face require all the elements needed to support exclusion, so that the fact of conviction in itself cannot establish whether the I.G. is authorized to exclude, extrinsic evidence is admissible for that purpose. Lindberg I at 4. "[T]he use of the term 'relating to'" in the Act suggests that evidence other than the conviction itself, or in other related court documents, is admissible to establish a basis to examine "the full circumstances of Petitioner's criminal offenses" to determine if they show the required relation to patient abuse. Lindberg I at 4, quoting in part from Bruce Lindberg, D.C., DAB CR145, at 8-9 (1991).

4. In prior cases, the Board made clear that the I.G. must establish that the proffered evidence corresponds to the underlying facts of the offense for which the individual was convicted. For example, it is not sufficient to proffer evidence that the individual committed multiple acts or had multiple victims and was convicted for one or more of the offenses, where only some of the conduct would meet the requirements for exclusion, unless the I.G. can prove that the conviction included at least one of the acts (or one of the victims) that met the requirements for exclusion. See, e.g., Catherine L. Dodd, R.N., DAB No. 1345 (1992); Lindberg I. Similarly, only extrinsic evidence which elucidates the conduct on which the conviction at issue was actually based has been held to be relevant, not evidence "relating to some other misconduct . . . , however egregious." Tanya A. Chuoke, R.N., DAB No. 1721, at 6-7 (2000). That is to say, the I.G. must show that the evidence proffered had something to do with the actual conviction on which the I.G. relied. Id.

5. Dr. Patel submitted as exhibits selected later monthly reports and letters of this therapist but did not submit the referenced letter dated September 3, 1997 that preceded the consent order. See Patel Exs. 2, 4, 5, and 12. Thus, he chose not to present the contemporaneous statement which he adopted as to which allegations of K.T. he did not admit. His supplemental statement does imply his acknowledgment that she was his patient in stating that he "did not engage in any subsequent improper touching or sexual misconduct, either with K.T., or with any other patient." Patel Ex. 11, at 5.

6. Dr. Patel at times contended that this colloquy left some residual ambiguity about whether he was agreeing only to the fact that he placed his mouth on K.T.'s breast and not the additional statements of the judge that he did so without her consent and that she was a patient. However, before us, he did not challenge the ALJ's findings that the evidence showed that she was a patient. Further, at the oral argument, Dr. Patel's counsel conceded that "it is fair to say that the judge knew that the lady was a patient." Tr. at 11. We therefore do not discuss this issue further.

7. One could also consider that Dr. Patel was offered yet another opportunity to "tell his side" or offer evidence that section 1128(a)(2) was not properly applicable when the I.G. sent him notice on June 12, 1998 that she proposed to exclude him and gave him an opportunity to respond, which he did on August 21, 1998. Patel Br. at 16. Yet, Dr. Patel made no showing that he proffered any different version or evidence of the events at issue at that opportunity, either.

8. In support of this claim, Dr. Patel cited Aetna Ins. Co. of Hartford v. Taylor, 86 F.2d 225 (5^th Cir. 1936). Dr. Patel misread the decision. The case, involving a claim on an insurance policy, holds that a party's burden of proof is satisfied by actual proof of the facts of which proof is necessary, regardless of which party introduces the evidence; but "by introducing such evidence the party does not assume an additional burden, nor does such burden shift to him." Id. at 227. In other words, a party's burden may be satisfied based on evidence originally put in the record by the opposing party. The I.G. relied here on a statement which was introduced into the record as an I.G. exhibit, and hence the cited case is inapposite.

9. We note further that hearsay has repeatedly been found to be admissible and to constitute substantial evidence in administrative proceedings under the Social Security Act in some circumstances. See, e.g., Richardson v. Perales, 402 U.S. 389, 410 (1971). In the present case, as in Perales, this outcome is particularly appropriate where the opposing party has voluntarily relinquished his right to subpoena and cross-examine the declarant. Id. at 407; see also Thelma Walley, DAB No. 1367, at n.9 (1992).

10. The July 11, 1997 order suspending Dr. Patel issued by the Georgia Board recited that it received evidence regarding eight other women, besides K.T., finding "a pattern of sexual misconduct towards female patients, as including, fondling these patients and examining these patients without the presence of a nurse or other chaperone present in the examination room." I.G. Ex. 8, at 2. The I.G. initially pressed the claim that Dr. Patel had therefore been shown to have engaged in a pattern of behavior as an additional reason for applying the aggravating factor at 42 C.F.R. � 1001.102(b)(4). See I.G. Ex. 1, at 2. The ALJ rejected that evidence because the other women were not identified in the record before the ALJ, Dr. Patel admitted to none of their allegations apart from K.T.'s, and Dr. Patel did not have an opportunity to test their credibility. ALJ Decision at 12. The I.G. did not appeal the ALJ's conclusion and therefore we sustain it without discussion.

11. For example, section 15(b) of Public Law No. 100-93, which enacted the amended exclusion provision, provided that the mandatory minimum would "not apply to exclusions based on convictions occurring before the date of enactment of this Act [August 18, 1987]." The corresponding legislative history specified that "[t]he five year minimum exclusion . . . would apply to convictions occurring on or after the date of enactment." S. Rep. No. 109, 100^th Cong., 1st Sess. 27 (1987), reprinted in 1987 U.S.C.C.A.N 682, 708.

12. This language, which merely sets out a variety of factors which may be considered aggravating at the I.G.'s discretion, contrasts with the language in the following section of the regulation which states that "only the [listed] . . . may be considered mitigating." 42 C.F.R. � 1001.102(c).

13. Effectively, the regulatory change here was merely a procedural one, affecting the powers of the I.G. rather than the rights of the parties. See Lindh v. Murphy, 521 U.S. 320, at 341-43 (1997).

14. We note that the Georgia Board action in itself might well have sufficed to trigger the aggravating factor, had the I.G. chosen to rely on it. It represented a professional board's assessment that the conduct in which Dr. Patel engaged with his patients was not only criminal but also constituted a serious violation of professional standards in providing care to patients.