Albert Alex Hazzouri Jr., DAB CR6597 (2025)

DECISION

The Inspector General of the United States Department of Health and Human Services (the IG) excluded Petitioner, Albert Alex Hazzouri Jr., from participation in Medicare, Medicaid, and all other federal health care programs for five years pursuant to section 1128(a)(2) of the Social Security Act (Act) (42 U.S.C. § 1320a-7(a)(2)).  Petitioner challenges the imposition of the exclusion.  For the reasons stated below, I affirm the IG’s exclusion determination. 

I. Background and Procedural History

Petitioner is a dentist in Scranton, Pennsylvania.  On June 28, 2021, a police criminal complaint was filed in Lackawanna County, Pennsylvania alleging that Petitioner had committed indecent assault against and harassed A.H. without her permission in violation of 18 Pa. C.S. §§ 3126(a)(1) and 2709(a)(3).  IG Ex. 5 at 2-3.  Petitioner had performed a dental procedure on A.H. at his office at 600 Lackawanna Ave., Scranton, PA on or about May 19, 2021.  IG Ex. 5 at 5; see also IG Ex. 4.  The criminal complaint contains a 

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probable cause affidavit from Detective Albanesi of the Scranton Police Department alleging the following based on the victim A.H.’s May 20, 2021 statement at the Scranton Police Headquarters:  

• After the procedure, Petitioner offered to walk A.H. to her vehicle; on the way down the stairs, Petitioner told her to get onto his back, which she refused. IG Ex. 5 at 5.
• Petitioner subsequently backed into A.H. and touched her buttocks without her consent as they walked down the stairs. Id.
• At the bottom of the stairs, Petitioner proceeded to grab her breasts and vaginal area without consent. Id.

Detective Albanesi had interviewed A.H. and obtained agreement from A.H. to do a recorded phone call with Petitioner.  Id.  During the recorded phone call, the affidavit states, Petitioner apologized for “inappropriately touching” A.H., stated that it was a mistake, and offered A.H. free dental care for life.  Id.1 

Petitioner was subsequently charged by criminal information with Simple Assault for “attempt[ing] to cause or [] intentionally, knowingly, or recklessly caus[ing] bodily injury to another, to wit:  that [Petitioner] did grab A.H. without her consent in an offensive manner, in the parking lot adjacent to 600 Lackawanna Avenue, City of Scranton, causing physical impairment or substantial pain.”  IG Ex. 4.  On January 28, 2022, Petitioner pleaded guilty in the Court of Common Pleas of Lackawanna County, Pennsylvania to Simple Assault, as charged in the information, in violation of 18 PA. CONS. STATE. § 2701.  IG Ex. 2; P. Ex. A.2   The state court accepted the plea and sentenced Petitioner to one year of probation and ordered Petitioner to pay $5,000 in fees and costs and obtain a mental health evaluation.  IG Ex. 3; see also P. Ex. A at 13. 

On July 31, 2024, the IG issued a notice to Petitioner that he would be excluded from participation in Medicare, Medicaid, and all federal health care programs for five years under section 1128(a)(2) of the Act effective August 20, 2024.  IG Ex. 1 at 1.  The IG 

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specified that Petitioner’s exclusion was due to his conviction, as the term is defined in section 1128(i) of the Act (42 U.S.C. § 1320a-7(i)), in the Court of Common Pleas of Lackawanna County, Pennsylvania, of a criminal offense related to the neglect or abuse of a patient, in connection with the delivery of a health care item or service.  Id. 

Petitioner timely requested a hearing, and I was designated to hear and decide this case.  The Civil Remedies Division issued my Standing Order on August 15, 2024, as well as an acknowledgment letter notifying the parties that I had scheduled a telephonic pre-hearing conference in this matter. 

I conducted the pre-hearing telephone conference on September 4, 2024, the substance of which is memorialized in my September 4, 2024 Order (Summary Order), including a schedule for submission of arguments and evidence by the parties.  The IG submitted a brief (IG Br.) and five exhibits (IG Exs. 1-5).  Petitioner submitted a brief (P. Br.), three exhibits labeled alphabetically (P. Exs. A-C), and a separate brief in which he explained his objections (P. Objections) to IG Exhibit 5.  The IG subsequently filed a reply (IG Reply).  Petitioner filed a request seeking leave to file a surreply in conjunction with his surreply (P. Surreply).  In my November 20, 2024 Order, I granted Petitioner’s request and accepted Petitioner’s surreply. 

II. Admission of Exhibits

The IG did not object to Petitioner’s exhibits.  Therefore, I admit Petitioner Exhibits A-C into evidence. 

Petitioner objects to IG Exhibit 5 on the grounds that it constitutes hearsay, which Petitioner argues renders its contents unreliable and untrustworthy, and is unfairly prejudicial.  P. Objections at 3-4.  IG Exhibit 5 is a police criminal complaint filed in Lackawanna County, Pennsylvania on June 28, 2021.  The complaint alleges that Petitioner committed indecent assault and harassment against Petitioner’s patient A.H.  The IG replies that IG Exhibit 5 should be admitted, because Petitioner disputes certain aspects of the legal basis of the IG’s exclusion, and the exhibit is therefore relevant and material.  IG Reply at 4. 

I find no basis to exclude IG Exhibit 5, because the exhibit is relevant and material, not outweighed by the risk of unfair prejudice, or otherwise inadmissible.  See 42 C.F.R. § 1005.17(e)-(g).3  First, to the extent Petitioner invokes Federal Rules of Evidence 403 and 801(c)(2) as grounds for excluding IG Exhibit 5, I may apply these rules as guidance where appropriate, but I am not bound to apply them.  42 C.F.R. § 1005.17(b), (c).  

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Second, IG Exhibit 5 alleges facts relevant to the specific relationship between Petitioner and A.H., as well as the chain of events leading to the conduct which formed the basis of Petitioner’s conviction.  Therefore, it is relevant and material to establishing whether Petitioner’s conviction involved neglect or abuse of a patient and whether that conduct was in connection with the delivery of a healthcare item or service, both of which Petitioner disputes.  See 42 C.F.R. § 1005.17(c).  

The probative value of these alleged facts is not substantially outweighed by the danger of unfair prejudice, because the evidence shows IG Exhibit 5 is reliable and directly related to the charge of which Petitioner was ultimately convicted.  The complaint was approved by an attorney of the Commonwealth of Pennsylvania, sworn by a detective of the Scranton Police Department, and issued pursuant to the authority of a magisterial district judge.  IG Ex. 5 at 1, 4-5.  Petitioner was charged by criminal information with Simple Assault for conduct that occurred on or about May 19, 2021, at 600 Lackawanna Ave., City of Scranton, which are substantially similar facts as those alleged in the criminal complaint only with less specificity.  IG Ex. 4.  Petitioner pleaded guilty to and was convicted of Simple Assault on January 28, 2022 on these bases.  IG Exs. 2, 3.  In other words, IG Exhibit 5 served as the basis of the criminal information which formally charged Petitioner with assault and to which Petitioner ultimately pled guilty.  

If Petitioner had concerns about the veracity of Detective Albanesi’s or A.H.’s statements, he could have requested a subpoena to compel the appearance of either individual, but he did not do so.  See 42 C.F.R. § 1005.9(a); CRD Procedures § 17.  Petitioner does not otherwise explain how admission of Exhibit 5 would result in unfair prejudice.  P. Objections.  I therefore find no basis to exclude IG Exhibit 5 based on hearsay or the risk of unfair prejudice.  Petitioner’s objections ultimately go to the weight I should give to IG Exhibit 5, not its admissibility, and no other bases for excluding this Exhibit apply.  See 42 C.F.R. § 1005.17(d)-(f).  Therefore, Petitioner’s objection is overruled, and I admit IG Exhibits 1-5 into evidence.  

III. Decision on the Record

The IG indicated an in-person hearing is not necessary in this matter.  IG Br. at 5.  Petitioner stated his intention to call two witnesses, his criminal defense attorney and his dental assistant, and provided a summary of the proposed testimony of each.  P. Br. at 7, n.2; P. Testimony (E-file #13).  I construe Petitioner’s filing of proposed fact witness testimony as a request for an in-person hearing. 

Petitioner offers the testimony of his criminal defense attorney as to the circumstances leading to the factual basis of Petitioner’s plea being non-sexual assault, to “confirm” that Petitioner’s conduct was not in connection with the delivery of a healthcare item or service, and to confirm that the conduct occurred in a lot adjacent to Petitioner’s dental office.  P. Testimony at 1.  The precise history of the defense attorney’s negotiations with 

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state prosecutors to obtain a plea to non-sexual assault is irrelevant, because the only issue I may decide in this case is whether the IG had a basis for excluding Petitioner under section 1128(a)(2) of the Act based on the factual basis underlying the conviction, e.g., “attempt[ing] to cause or [] intentionally, knowingly, or recklessly caus[ing] bodily injury to another, to wit:  that [Petitioner] did grab A.H. without her consent in an offensive manner, in the parking lot adjacent to 600 Lackawanna Avenue, City of Scranton, causing physical impairment or substantial pain.”  IG Ex. 4; see 42 C.F.R. § 1001.2007(a)(1)-(2).  Furthermore, determining whether Petitioner’s conduct was in connection with the delivery of a healthcare item or service is a legal conclusion that Petitioner’s criminal defense attorney cannot “confirm,” and the location of the offense is already established in the record and would be needless presentation of cumulative evidence.  See 42 C.F.R. § 1005.17(d). 

Petitioner’s dental assistant would testify that she did not observe any conduct from Petitioner that could be construed as neglect or abuse of a patient in connection with the delivery of a healthcare item or service.  P. Testimony at 2.  The dental assistant’s testimony also calls for a legal conclusion regarding whether the IG had a basis for excluding Petitioner under section 1128(a)(2) of the Act.  Furthermore, that the dental assistant did not personally observe behavior that she would consider harmful to the patient is not material where Petitioner had pled guilty to such behavior, and at best, it is an attempt to collaterally attack Petitioner’s conviction.  However, the regulations preclude Petitioner from collaterally attacking (and me from reviewing) the basis for a conviction where, as here, that conviction forms the basis for the IG’s exclusion.  42 C.F.R. § 1001.2007(d).  

As the anticipated testimony of the Petitioner’s proposed witnesses would only serve to collaterally attack Petitioner’s conviction, duplicate existing factual evidence already in the record, or call for a legal conclusion, I find that a hearing with live oral testimony is unnecessary and proceed to a decision based on the record before me.  See Civ. Remedies Div. P. § 19(d). 

IV. Issues

The Secretary of Health and Human Services (the Secretary) has by regulation limited my scope of review to two issues in mandatory exclusions cases:  whether the IG has a basis for excluding Petitioner from participating in Medicare, Medicaid, and all other federal health care programs and, if so, whether an exclusionary period greater than five years imposed by the IG is unreasonable.  See 42 C.F.R. § 1001.2007(a)(1).  Because Petitioner was excluded for the mandatory minimum period of five years, only the basis for the exclusion is at issue and not the reasonableness of the exclusion duration. 

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V. Applicable Law

Section 1128(f) of the Act (42 U.S.C. § 1320a-7(f)) establishes Petitioner’s right to a hearing by an administrative law judge (ALJ) and judicial review of the final action of the Secretary.  The right to a hearing before an ALJ is set forth in 42 C.F.R. §§ 1001.2007(a) and 1005.2, while the rights of both the sanctioned party and the IG to participate in a hearing are specified at 42 C.F.R. § 1005.3. 

Pursuant to section 1128(a)(2) of the Act, the Secretary must exclude from participation in any federal health care program any individual convicted under federal or state law of a criminal offense related to neglect or abuse of patients in connection with the delivery of a healthcare item or service. 

Pursuant to section 1128(i) of the Act (42 U.S.C. § 1320a-7(i)), an individual is convicted of a criminal offense when, among other things, a plea of guilty or no contest is accepted by a court.  The Secretary has promulgated regulations implementing these provisions of the Act.  42 C.F.R. § 1001.101(b).  There may be no collateral attack of the conviction that is the basis for the exclusion.  42 C.F.R. § 1001.2007(d). 

Exclusion for a minimum period of five years is mandatory for any individual or entity convicted of a criminal offense for which exclusion is required by section 1128(a) of the Act.  Act § 1128(c)(3)(B) (42 U.S.C. § 1320a-7(c)(3)(B)).  Pursuant to 42 C.F.R. § 1001.102(b), an individual’s period of exclusion may be extended based on the presence of specified aggravating factors.  Only if the aggravating factors justify an exclusion of longer than five years, however, are mitigating factors considered as a basis for reducing the period of exclusion to no less than five years.  42 C.F.R. § 1001.102(c). 

In this proceeding, the standard of proof is a preponderance of the evidence.  42 C.F.R. § 1001.2007(c).  Petitioner bears the burden of proof and the burden of persuasion on any affirmative defenses or mitigating factors, and the IG bears the burden on all other issues.  42 C.F.R. § 1005.15(b), (c); Prehearing Order ¶ 5. 

VI. Findings of Fact, Conclusions of Law, and Analysis

My conclusions of law are set forth in bold and followed by pertinent findings of fact and analysis. 

1. A. I have jurisdiction to hear this case.

Petitioner timely requested a hearing.  I therefore have jurisdiction to hear and decide this case.  See 42 C.F.R. §§ 1001.2007(a)(1)-(2), 1005.2(a); see also 42 U.S.C. § 1320a-7(f)(1). 

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1. B. Petitioner was convicted of a criminal offense related to the neglect or abuse of a patient, in connection with the delivery of a healthcare item or service, requiring exclusion under 42 U.S.C. § 1320a-7(a)(2).

The IG must exclude an individual from participation in federal health care programs if the individual was convicted of a criminal offense related to neglect or abuse of patients in connection with the delivery of a healthcare item or service.  42 U.S.C. § 1320a-7(a)(2). 

Petitioner concedes he was “convicted” as that term is defined in section 1128(i) of the Act.  P. Br. at 5.  The state court’s acceptance of Petitioner’s guilty plea, as well as the court’s entry of a judgment of conviction against him, constitute a “conviction” under section 1128(i) of the Act.  42 U.S.C. § 1320a-7(i)(1), (3); see also 42 C.F.R. § 1001.2 (subsections (a) and (c) under the definition of “Convicted”).  Petitioner further concedes that his conviction for simple assault constitutes abuse or neglect.  P. Br. at 6.  However, Petitioner contends that his conviction was not for an offense related to the neglect or abuse of a “patient” and was not “in connection with the delivery of a healthcare item or service.”  P. Br. at 6-9. 

1. 1. A.H. was a patient of Petitioner at the time of the offensive touching that forms the basis of Petitioner’s underlying conviction.

Petitioner contends that his conviction did not involve a patient, because A.H. ceased to be a “patient” for purposes of exclusion under section 1128(a)(2) as soon as Petitioner concluded the specific dental procedure he performed on A.H. on May 19, 2021, and A.H. left Petitioner’s office.  P. Br. at 6.  Petitioner’s argument is without merit.  Petitioner fails to cite any authority for such a narrow interpretation of the term “patient” in this statutory provision – an interpretation far narrower than the plain meaning of the term as commonly used.  Petitioner’s narrow interpretation of the “patient” status would directly contravene the prospective and remedial purpose of the statute to guard against individuals who demonstrate a threat to federal programs.  See Narendra M. Patel, M.D., DAB No. 1736 (2000).  Otherwise, any provider would be able to evade exclusion for abuse or neglect against patients as soon as a single procedure is complete and the patient leaves the immediate premises of their practice.  Moreover, no evidence shows that Petitioner terminated the dentist/patient relationship prior to the assault, such as by transferring A.H.’s records to another dentist or reasonably notifying A.H. that the relationship had been terminated.  See Bruce Lindberg, D.C., DAB No. 1386 at *5 (1993 WL 742637).  In fact, the evidence suggests that Petitioner specifically, and perhaps self-servingly, sought to continue the dentist/patient relationship by offering free dental care 

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for life.  IG Ex. 5 at 5.  As such, Petitioner’s conviction plainly involved abuse of a “patient.”4  

2. 2. Petitioner’s offensive touching of A.H. that forms the basis of Petitioner’s underlying conviction occurred in connection with the delivery of a healthcare item or service for purposes of 42 U.S.C. § 1320a-7(a)(2).

Petitioner next avers his conviction was not in connection with the delivery of a healthcare item or service, because it occurred after the provision of dental work and outside his dental office.  Petitioner argues such an interpretation is mandated by the plain language of the Act and cites as support an email from a state deputy district attorney confirming that the basis of Petitioner’s plea would be to non-sexual conduct outside the dental practice, as well as the IG’s admission to the same in her brief.  P. Br. at 7-9. 

Petitioner’s interpretation is erroneous.  It is well-established that the “words ‘in connection with’ in section 1128(a)(2) require only a minimal nexus between the abuse and the delivery of a health care service.”  Lindberg, DAB No. 1386 at 8 (emphasis added).  In determining whether there is a minimal nexus, ALJs may look at evidence as to the nature of an offense, such as facts upon which the conviction was predicated.  See Funmilola Mary Taiwo, DAB No. 2995 at 8 (2020).  The facts here establish that Petitioner provided dental care to A.H., after which he followed her to her car in the parking lot adjacent to his practice and touched her offensively without her consent.  IG Exs. 4, 5. 

Petitioner’s relationship with A.H. as her dentist placed him in a position of trust and authority that facilitated the assault:  A.H. would not have gone with Petitioner to the parking lot or been in the stairwell where the assault occurred but for the fact that she was Petitioner’s patient, had just received dental care, and was walking to her car where she had parked in a lot adjacent to Petitioner’s practice for the purpose of obtaining the dental procedure.  These facts alone are reasonably sufficient to establish a minimal nexus between Petitioner’s assault conviction and the delivery of a healthcare service (dental care).  This nexus is not eliminated by the mere fact that the conduct occurred just outside the dental practice building and only moments after rendering dental care.  This interpretation is consistent with the plain meaning of section 1128(a)(2). 

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Had Congress intended to limit the scope of exclusions under section 1128(a)(2) only to situations where abuse or neglect of a patient occurred during the delivery of healthcare services and at a specific physical location, as Petitioner suggests, it would have done so.  However, Congress deliberately used the phrase “in connection with,” which is necessarily broader in scope and consistent with the overall legislative history of the Secretary’s exclusionary authority:  to protect federal programs from untrustworthy individuals and to “provide a clear and strong deterrent against the commission of criminal acts.”  S. Rep. 100-109, at 5 (1987), reprinted in 1987 U.S.C.C.A.N. 682, 686; Morgan v. Sebelius, 694 F.3d 535, 538 (4th Cir. 2012) (footnote omitted); see also Manocchio v. Kusserow, 961 F.2d 1539, 1541-1542 (11th Cir. 1992); see also Patel, DAB No. 1736 at 8 (explaining that “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” and that “[t]he plain language of the statute clearly covers a broader reach.”).  The Board’s construction of the statutory language further confirms that a conviction “need not be for misconduct in delivering health care” and misconduct need not even take place in a clinical setting to be “in connection with” the delivery of a health care item or service.  Patel, DAB No. 1736 at 8, 8 n.2.  The facts upon which Petitioner’s conviction was predicated, discussed above, demonstrate that Petitioner’s exclusion is consistent with the purpose of the Act and, at the very least, there is a minimal nexus between Petitioner’s conviction and the delivery of a healthcare item or service. 

Petitioner further argues that the IG’s interpretation of section 1128(a)(2) is incorrect, because it would be “sufficient if any abuse occurred between a patient and their healthcare practitioner, irrespective of any further details regarding the conduct itself,” thus rendering “the distinct requirements of Section 1128(a)(2) into mere surplusage.”  P. Surreply at 5.  Petitioner’s argument overstates the interpretation of section 1128(a)(2) necessary to find Petitioner’s conduct within its scope:  I am not concluding that the mere fact that A.H. was a patient of Petitioner at the time of the offensive touching per se renders the conduct “in connection with the delivery of a health care item of service.” 5  To the contrary, I find that the context in which the offensive touching occurred – as addressed above – satisfies the minimal nexus necessary to fulfill this element of the statute.  Put differently, my decision does not require a statutory interpretation that any abuse or neglect of a patient is deemed to have a minimal nexus sufficient to be in connection with the delivery of a healthcare item or service solely due to the nature of the patient-provider relationship.  I find here that Petitioner’s conduct meets the minimal nexus requirement due to the timing of the offensive touching, the location of the 

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touching, the reason why Petitioner was with the patient, and that Petitioner and A.H.’s sole relationship was that of dentist/patient. 

Petitioner, in his surreply, also attempts to factually distinguish several of the cases cited in the IG’s briefs.  I need not find that Petitioner’s conduct factually matches the circumstances underlying the convictions in those cases.  I need only determine whether there is a minimal nexus between Petitioner’s conduct and the delivery of healthcare services.  As set forth above, the record clearly establishes that Petitioner pleaded guilty to simple assault, which was related to patient A.H., and in connection with Petitioner’s overall delivery of dental services to A.H.  Thus, Petitioner was convicted of a criminal offense related to abuse of a patient in connection with the delivery of a healthcare service requiring exclusion under 42 U.S.C. § 1320a-7(a)(2).  The IG was therefore required to exclude Petitioner pursuant to 42 U.S.C. § 1320a-7(a)(2). 

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

Because I have concluded that a basis exists to exclude Petitioner pursuant to 42 U.S.C. § 1320a-7(a)(2), he must be excluded for a minimum of five years.  42 U.S.C. § 1320a-7(c)(3)(B).  The exclusionary period is reasonable as a matter of law. 

VII. Conclusion

I affirm the IG’s determination to exclude Petitioner from participating in Medicare, Medicaid, and all other federal health care programs for five years.