Gavin Patrick Meany, DAB CR6090 (2022)

DECISION

I sustain the determination of the Inspector General (IG) to exclude Petitioner, Gavin Patrick Meany, from participation in Medicare and other federally funded health care programs for a minimum period of 25 years.

I.  Background

The IG filed a brief, a reply brief, and exhibits that are identified as IG Ex. 1-IG Ex. 8.  Petitioner filed a brief and a supplemental argument pursuant to my direction, plus exhibits that he identified as P. Ex. 1-P. Ex. 3.  Neither party offered the testimony of a witness.

I receive the parties' exhibits into the record and decide this case based on the exhibits and arguments.  There is no need for me to convene an in-person hearing as there are no witnesses.

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II.  Issues, Findings of Fact and Conclusions of Law

A. Issues

The issues are:

• whether Petitioner is convicted of a criminal offense;
• whether the IG must exclude Petitioner from participating in Medicare and other federally funded health care programs; and
• whether the length of the exclusion – 25 years in this case – is reasonable.

B. Findings of Fact and Conclusions of Law

This case is before me in a somewhat unusual procedural posture.

The IG excluded Petitioner pursuant to section 1128(a)(2) of the Social Security Act (Act).  This section of the Act mandates the exclusion of any individual who is convicted of a criminal offense under either federal or state law relating to the neglect or abuse of patients in connection with the delivery of a health care item or service.  Act § 1128(a)(2).  The IG alleges that Petitioner pled guilty to a crime that falls within the reach of section 1128(a)(2).  In most instances, proof of that plea would end the inquiry as to whether a party is convicted of a crime for which exclusion is mandated.

The IG established that on January 23, 2020, Petitioner pled guilty in a state court in Minnesota to four felony counts of criminal sexual conduct.  IG Ex. 3 at 5.  Subsequently, the court sentenced Petitioner to 90 months' incarceration.  IG Ex. 4.

Petitioner replied to the IG's evidence by proving that on February 28, 2022, the Minnesota Court of Appeals ordered that the conviction be reversed and that his case be remanded to a trial court.  P. Ex. 1.  The appeals court found that Petitioner had not been effectively represented by counsel when he pled guilty and ordered that the plea be vacated for that reason.

However, that did not end the story.  I granted leave to Petitioner to file formal proof that his conviction was vacated at the trial court level.  Petitioner did not provide such proof.  As Petitioner acknowledges, the prosecution has appealed the Court of Appeals' decision to the Minnesota Supreme Court where the case currently is pending review and a decision by that court.  As things stand, Petitioner's conviction has not been vacated.  Petitioner, who was incarcerated based on his conviction, remains incarcerated.

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I find that Petitioner remains "convicted" of a crime as that term is defined at section 1128(a)(2) of the Act.  Although a court has ordered that his guilty plea be vacated, that hasn't happened as of now.  He remains incarcerated and, evidently, will continue to be incarcerated until the Minnesota Supreme Court takes final action on his appeal.  It is conceivable that the Supreme Court might sustain the Court of Appeals' decision, in which event Petitioner's conviction would presumably be vacated, but it is also conceivable that the Supreme Court might take some other action that leaves Petitioner convicted.1

The remaining issues are whether the crime of which Petitioner was convicted falls within the reach of section 1128(a)(2) and whether the minimum 25-year exclusion that the IG determined to impose is reasonable.

The evidence unequivocally proves that Petitioner was convicted of a section 1128(a)(2) crime.  Petitioner is a psychotherapist.  He pled guilty to violating a Minnesota statute that makes it a felony for a psychotherapist to have sexual relations with a patient either during a psychotherapy session or outside of a psychotherapy session if there is an ongoing psychotherapist-patient relationship.  Minn. Stat. § 609.344(1)(h) (2018); IG Ex. 3 at 5.  That crime plainly is a criminal offense constituting patient abuse relating to the delivery of a health care item or service.  Act § 1128(a)(2).

Petitioner argues that while the conduct that is the basis for the charges filed against him may have occurred in the context of health care delivery, "it had nothing to do with health care services."  Informal Brief of Petitioner at 2.  I find this argument to be unconvincing.  First, the Minnesota law of which Petitioner was convicted does not condition violation on proof that actual psychotherapy was being provided at the moment that unlawful sexual relations occurred.  Second, the therapist-patient relationship that Petitioner had with his victim plainly linked his crimes to the delivery of health care items or services.  As is evident from Petitioner's plea, his crimes did not occur in a vacuum.  There would have been no crimes but for the therapist-patient relationship and the delivery of health care items or services.

Individuals who are convicted of crimes falling within the reach of section 1128(a)(2) of the Act must be excluded for a minimum period of five years.  Act § 1128(c)(3)(B).  The

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IG may exclude for longer than the minimum five-year period premised on the existence of aggravating factors that are not offset by mitigating factors.  42 C.F.R. § 1001.102.

The aggravating and mitigating factors function as rules of evidence for deciding the reasonableness of a length of an exclusion.  Evidence relating to one or more of the factors is relevant to deciding the length of an exclusion.  Evidence that does not relate to one or more of the factors is irrelevant and may not be considered.  Like rules of evidence, the factors do not prescribe an exclusion of any length beyond a minimum period.  Evidence relating to one or more factors must be weighed to decide what that evidence says about the trustworthiness of an excluded individual to provide care to program beneficiaries and the recipients of program funds.

The IG established the presence of three aggravating factors.  First, Petitioner pled guilty to conduct that was premeditated, was part of a continuing pattern of behavior, or consisted of non-consensual sexual acts.  42 C.F.R. § 1001.102(b)(4).  Petitioner pled guilty to deliberate sex with a patient on four separate occasions.  That plea was made in the context of the victim's complaint that Petitioner had abused her during numerous psychotherapy sessions.  IG Ex. 2 at 4-6.  In pleading guilty Petitioner admitted to regularly having sex with his victim during psychotherapy sessions.  Id. at 6-7.

Second, Petitioner was sentenced to a period of incarceration.  42 C.F.R. § 1001.102(b)(5).  Petitioner was sentenced to 90 months' imprisonment.  IG Ex. 4 at 2-5.

Third, Petitioner has been the subject of additional adverse action by a government agency that is based on the same circumstances on which Petitioner's conviction is grounded.  42 C.F.R. § 1001.102(b)(9).  The Minnesota Board of Medical Practice revoked Petitioner's license based on his conviction.  IG Ex. 6.

I find that the evidence relating to aggravating factors establishes the IG's exclusion determination to be reasonable.  That evidence proves that Petitioner is an extraordinarily untrustworthy individual and a potential danger to his patients.  Petitioner grievously abused a relationship of trust, the psychotherapist-patient relationship, to gratify himself.  The very long period of incarceration to which Petitioner was sentenced leads only to the inference that the sentencing court found Petitioner to be a highly untrustworthy – indeed dangerous – individual.  Finally, the fact that a state agency revoked Petitioner's license proves that other authorities consider him to be a danger to patients as well.

I have considered Petitioner's arguments and find them without merit.  Petitioner asserts that the relationship that he had with his patient was not coerced or induced.  Informal Brief of Petitioner at 2.  However, that is belied, not only by his plea, but by his victim's complaint that he abused his psychotherapist-patient relationship to induce sex on multiple occasions.  Petitioner argues also that his victim has a history of filing false

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reports of sexual abuse, thereby implying that she is not a credible complainant.  Informal Brief of Petitioner at 3.  However, the court that sentenced Petitioner to 90 months' incarceration plainly found that victim's complaints of abuse to be credible.

Petitioner has offered no evidence that relates to mitigating factors.  He argues that there is a need for his services and that it is unreasonable to exclude him from providing care for that reason.  Informal Brief of Petitioner at 6.  "Need for services" is not a mitigating factor, and I may not consider it to evaluate the reasonableness of the IG's exclusion determination.  Moreover, Petitioner offered no evidence to substantiate his claim.

1. The IG implicitly acknowledges that if Petitioner's plea is vacated then the IG would be without authority to exclude Petitioner pursuant to section 1128(a)(2) of the Act.  IG Reply Brief at 3.  In that event, the IG would withdraw the exclusion pursuant to 42 C.F.R. § 1001.3005.  That would not necessarily end this matter permanently, however.  The Court of Appeals decision allowed Petitioner to withdraw his plea.  It did not free him from jeopardy, including, possibly, a trial.  If Petitioner is at some future date convicted of any of the charges to which he pled guilty the IG would then again be mandated to exclude Petitioner pursuant to section 1128(a)(2) of the Act.
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