Maria Cristina Gotoc Joshi, DAB No. 3184 (2025)

FINAL DECISION ON REVIEW OF ADMINISTRATIVE LAW JUDGE DECISION

Maria Cristina Gotoc Joshi (Petitioner) appeals a decision by an administrative law judge upholding the Inspector General’s (I.G.) exclusion of Petitioner from participation in all federal health care programs for the mandatory minimum period of five years under section 1128(a)(1) of the Social Security Act (Act), based on Petitioner’s conviction of a criminal offense related to the delivery of an item or service under Medicare. Maria Cristina Gotoc Joshi a.k.a. Maria Christina Gotoc Mathur, DAB CR6592 (2024) (ALJ Decision). For the reasons set forth below, we affirm the ALJ Decision.

Legal Background

Section 1128(a)(1) of the Act (42 U.S.C. § 1320a-7(a)) requires the Secretary of the Department of Health and Human Services (Secretary) to exclude from participation in all federal health care programs any individual who has been “convicted of a criminal offense related to the delivery of an item or service under [Medicare] or under any State health care program.”¹ As the Act permits, the Secretary delegated the exclusion authority to the I.G., who implemented the exclusion authority in regulations at 42 C.F.R. Part 1001. Act § 1128A(j)(2); 53 Fed. Reg. 12,993 (Apr. 20, 1988); 48 Fed. Reg. 21,662 (May 13, 1983); see 42 C.F.R. § 1001.1, 1001.101(a) (implementing the exclusion authority at Act § 1128(a)(1)). Those regulations apply to and bind the I.G. in imposing exclusions, and they also apply to and bind ALJs and the Departmental Appeals Board (Board) in reviewing exclusions the I.G. imposes. 42 C.F.R. § 1001.1(b).

Exclusions imposed under section 1128(a) are referred to as “mandatory” exclusions. The minimum period of a mandatory exclusion under section 1128(a) is five years, the period imposed here (which the I.G. may extend through application of “aggravating factors” listed in the regulations). Act § 1128(c)(3)(B); 42 C.F.R. § 1001.102(a).

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An excluded individual may request a hearing before an ALJ, but only on the issues of: (i) whether the I.G. had a basis for the exclusion; and (ii) whether an exclusion longer than the required minimum period is “unreasonable.” 42 C.F.R. §§ 1001.2007(a)(1), 1005.2(a). When, as here, the I.G. imposes a mandatory exclusion for the statutory minimum five-year period, the excluded individual may not challenge the length of the exclusion as unreasonable. Id. § 1001.2007(a)(2). When, also as here, the exclusion is based on the existence of a criminal conviction (or a civil judgment imposing liability by Federal, State or local court, or “other prior determination where the facts were adjudicated and a final decision was made”), the basis for the conviction, judgment, or determination “is not reviewable” and the individual “may not collaterally attack it either on substantive or procedural grounds in this appeal.” Id. § 1001.2007(d). “Except as provided in” the Part 1005 appeal regulations, “the ALJ will not be bound by the Federal Rules of Evidence” but “may apply the Federal Rules of Evidence where appropriate, for example, to exclude unreliable evidence.” Id. § 1005.17(b).

The ALJ issues an “initial decision” based on the record developed before the ALJ. 42 C.F.R. § 1005.20(a). A party dissatisfied with the ALJ’s “initial decision” may appeal that decision to the Board. Id. § 1005.21(a). The Board “will not consider any issue not raised in the parties’ briefs, nor any issue in the briefs that could have been raised before the ALJ but was not.” Id. § 1005.21(e). A petitioner found liable may seek judicial review of the Board’s decision in a U.S. Court of Appeals. Id. § 1005.21(i), (k).

Case Background²

On January 9, 2023, the California Department of Justice, Division of Medi-Cal Fraud & Elder Abuse, filed an “amended felony complaint” in the Superior Court of California, County of Los Angeles (state court) charging Petitioner with one count of felony insurance fraud, and charging three other individuals and two hospices with either insurance fraud or making false and fraudulent claims. I.G. Ex. 2. Count 4 of the complaint alleged that from February 5, 2019, to July 17, 2020, Petitioner and Victory Hospice “assisted, conspired with another to and did conceal and knowingly fail to disclose the occurrence of an event that affected a person’s initial and continued right and entitlement to an insurance benefit and payment, and the amount of any benefit and payment to which the person” – identified as a patient named John S. – “was entitled, in violation of Penal Code § 550(b)(3), a felony.” Id. at 2; ALJ Decision at 6. The complaint also ordered that “[a]ll previously issued warrants for arrest for co-defendants issued on December 2, 2022, shall remain in effect[.]” I.G. Ex. 2, at 6.

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On September 15, 2023, the state court permitted the prosecution to amend the count against Petitioner to a misdemeanor violation of Penal Code § 550(b)(3), to which Petitioner pleaded nolo contendere. ALJ Decision at 6; I.G. Ex. 3, at 1. The court sentenced Petitioner to one day in jail, one year of summary probation, and to pay $370 in fines and assessments to the court. ALJ Decision at 6; I.G. Ex. 3, at 2-3.The court also ordered Petitioner to pay $42,106.62 in victim restitution, which Petitioner paid to the Center for Medicare & Medicaid Services (CMS), which administers the Medicare program, and $6,315.99 in investigative costs, which Petitioner paid to the Division of Medi-Cal Fraud & Elder Abuse of the California Department of Justice. I.G. Ex. 3, at 2-3; I.G. Ex. 6, at 2; ALJ Decision at 6.

By letter dated April 30, 2024, the I.G. notified Petitioner that she was excluded under section 1128(a)(1) of the Act from participation in Medicare, Medicaid and all federal health programs for the minimum statutory period of five years, effective 20 days from the date of the letter, due to her “conviction . . . of a criminal offense related to the delivery of an item or service under Medicare or a State health care program, including the performance of management or administrative services relating to the delivery of items or services under any such program.” I.G. Ex. 1; ALJ Decision at 1-2.

ALJ Proceedings and Decision

Petitioner timely requested ALJ review. Notice of Appeal and Request for Hearing, CRD Dkt. 1 (RFH). Before the ALJ, Petitioner acknowledged that in a “moment of weakness” she had accepted an offer to exchange money to accept patients at her clinic which set in motion the “chain of events” that led to her conviction under California Penal Code § 550(b)(3). RFH at 2-3. Following a pre-hearing conference, the I.G. filed a brief and six proposed exhibits (I.G. Exs. 1-6), Petitioner filed a brief with no proposed exhibits, and the I.G. filed a reply brief. ALJ Decision at 1-2. As “[n]either party requested a hearing,” the ALJ decided this case “on the briefs submitted and the exhibits of record.” Id. at 4.

Petitioner objected to portions of I.G. Exhibit 4, the declaration of Special Agent (SA) Davis of the I.G. Office of Investigations, and to I.G. Exhibit 5, a partially redacted spreadsheet of Medicare contractor data Special Agent Davis reviewed in determining that Victory Hospice submitted Medicare claims for services provided to a Medicare beneficiary who is the patient (John S.) described in Count 4 of the amended felony complaint against Petitioner. I.G. Ex. 2, at 2. Citing the Federal Rules of Evidence, Petitioner objected to portions of the declaration on the grounds that the special agent lacked personal knowledge sufficient to provide a foundation as to the source of the contractor’s claims data and how it was prepared – noting that the declaration at one point refers to Victory Hospice as Viceroy Hospice and to the spreadsheet as “Exhibit XX.” ALJ Decision at 2; P. ALJ Br. at 2 (citing Fed. R. Evid. 602). Petitioner also objected to the spreadsheet on the ground that Special Agent Davis could not authenticate

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it based on personal knowledge, rendering those materials and her testimony in reliance on them inadmissible hearsay.

The ALJ agreed Special Agent Davis “lacked sufficient knowledge to authenticate the data summarized in IG Exhibit 5” as the contractor’s business records, but overruled Petitioner’s objections because the evidence is “sufficiently reliable to warrant admission.” ALJ Decision at 3-4. The ALJ found that the special agent, who signed a sworn declaration, “established through personal knowledge how she obtained the data, from where she received it, and the nature of the data itself,” and also noted that the hearing “regulations . . . do not contemplate application of the Federal Rules of Evidence” except as necessary to determine whether the exhibits “are so unreliable as to preclude their admission.” Id. at 3-4 (citing 42 C.F.R. § 1005.17(b)). The ALJ also found the data on the spreadsheet “relevant for purposes of admissibility” based on the special agent’s “reliance on that data to conduct her investigation” that resulted in Petitioner’s conviction and obligation to pay restitution to CMS. Id. (We further address Petitioner’s evidentiary objections in the analysis below).

Turning to the elements required to support an exclusion under section 1128(a) of the Act, the ALJ first found Petitioner “was convicted of a criminal offense” as defined in the Act, as she “pleaded nolo contendere to a misdemeanor violation of section 550(b)(3) of California’s Penal Code, which [the state court] accepted to find her guilty,” where the Act “explicitly defines convictions for purposes of exclusion to include those based on acceptance by a federal, state, or local court of a plea of nolo contendere.” Id. at 7 (citing Act § 1128(i)(3)).³ The ALJ next concluded that “Petitioner’s criminal offense is related to the delivery of an item or service under the Medicare program,” rejecting as unpersuasive Petitioner’s argument that the I.G.’s exhibits “fail to demonstrate a connection between Petitioner’s misdemeanor conviction and the delivery of a healthcare item or service under Medicare or a state healthcare program.” Id. at 7. The ALJ cited the well-established principle in exclusion appeals that “[t]he term ‘related to’ simply means there must be a nexus or common-sense connection between the offense of conviction and the delivery of a healthcare item or service,” and posited that “inquiry into that issue therefore requires a broad and expansive review of the record.” Id. at 7‑8 (quoting Friedman v. Sebelius, 686 F.3d 813, 820 (D.C. Cir. 2012) for its descriptions of the phrase “related to” in another part of Act § 1128(a) as “deliberately expansive words,” “the ordinary meaning of [which] is a broad one,” and one that is not subject to “crabbed and formalistic interpretation”) (court’s internal quotation marks omitted).

The ALJ also rejected Petitioner’s argument that only a permissive exclusion should have been imposed under section 1128(b)(1) of the Act, which permits, but does not require, an exclusion for a minimum of three years for “a misdemeanor relating to fraud, theft, embezzlement, breach of fiduciary responsibility, or other financial misconduct” in

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connection with the delivery of a health care item or service. The ALJ concluded that the Act obliges the Secretary to impose a mandatory exclusion on covered offenses that fall “under both the Act’s permissive and mandatory exclusion provisions.” Id. at 9-10. The ALJ thus had no authority to impose an exclusion for less than the five-year exclusion period which, being the mandatory minimum period for exclusions under section 1128(a)(1), “is therefore reasonable as a matter of law.” Id. at 10 (bold removed). Petitioner timely requested review of the ALJ Decision.

Standard of Review

The Board reviews a disputed issue of fact as to whether the ALJ’s decision is “supported by substantial evidence on the whole record.” 42 C.F.R. § 1005.21(h). We review a disputed issue of law as to whether the ALJ’s decision is “erroneous.” Id.; see also Guidelines – Appellate Review of Decisions of Administrative Law Judges in Cases to Which Procedures in 42 C.F.R. Part 1005 Apply (Guidelines), “Completion of the Review Process, ¶ c.⁴ “Substantial evidence is ‘more than a mere scintilla of evidence.’” Shelia Ann Reed, DAB No. 3059, at 6 (2022) (quoting Ellen L. Morand, DAB No. 2436, at 3 (2012)). “It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971) (in turn quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938))) (citation omitted).

Analysis

I. The ALJ’s determination that the I.G. had a basis to exclude Petitioner under section1128(a)(1) of the Act is supported by substantial evidence and free of legal error.

Petitioner on appeal argues (1) that “the ALJ relied on woefully inadequate, inadmissible and unreliable evidence that lacked proper foundation, authentication, and relevance”; (2) that “the [I.G.] failed to establish by a preponderance of the evidence that Petitioner’s conviction was sufficiently related to the delivery of an item or service under Medicare or Medicaid as required by” section 1128(a) of the Act; and (3) that “the ALJ failed to consider significant mitigating circumstances, including Petitioner’s decades of ethical service in the healthcare field, her prompt payment of restitution, and the absence of aggravating factors.” Petitioner’s Notice of Appeal and Brief (NA) at 1-2. Petitioner primarily reiterates her objections to admission of Special Agent Davis’s testimony, argues that the amended felony complaint describing Petitioner’s conduct is not related to Petitioner’s conviction, and that Petitioner’s court-ordered payment of restitution is not evidence that her conviction was related to Medicare or a state healthcare program. None

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of these arguments demonstrate that substantial evidence does not support the ALJ Decision or that it is legally erroneous.

A. Petitioner has shown no error in the ALJ’s admission of I.G. Exhibits 4 and 5.

As below, Petitioner primarily argues that the I.G. “presented no admissible evidence to establish the requisite connection between Petitioner’s conviction and Medicare.” NA at 8 (emphasis added); ALJ Decision at 2-4, 7-9. Petitioner “acknowledges that Administrative Law Judges are not strictly limited to the bounds imposed by the Federal Rules of Evidence” but relies on the rules regarding hearsay, authentication and witness statements to cast the evidence here as “woefully inadequate” and inadmissible. NA at 1, 3. The ALJ rejected those argument and Petitioner has provided no compelling reasons to overturn the ALJ’s evidentiary rulings. See Reed at 6 (“[T]he Board defers to the evidentiary rulings of ALJs unless there is a compelling reason not to do so.”).

Petitioner renews her objections to the Special Agent Davis’s declaration (I.G. Ex. 4) as well as the spreadsheet of Medicare claims data she obtained from a Medicare contractor and reviewed as part of her investigation (I.G. Ex. 5). In the declaration, Special Agent Davis testified “based on personal knowledge and information” and under penalty of perjury, that she:

• has been a Special Agent with the I.G.’s Office of Investigations since September 2001;
• investigated Petitioner’s case;
• reviewed “Medicare claims data . . . derived from data used to process and pay Medicare claims” on an Excel spreadsheet from the Medicare contractor, that included beneficiary names, claim numbers, amounts submitted, and amounts paid, for “claims that Victory Hospice either submitted or caused to be submitted to Medicare for the time period of January 1, 2008 through October 31, 2022”;
• determined based on the claims data that the hospice “billed Medicare, and was paid by Medicare, for purportedly providing hospice services to” the Medicare beneficiary she identified as J.S. (which are the initials of the “Patient” identified by first name and last initial in the count against Petitioner and Victory Hospice in the amended felony complaint, I.G. Ex. 2).

I.G. Ex. 4 ¶¶ 1-6, I.G. Ex. 2, at 2; I.G. Ex. 5 (40-page spreadsheet). Special Agent Davis further testified that “[a]s a result of the investigation, on January 10, 2023 an Amended Criminal Complaint [the amended felony complaint] was filed in the Superior Court of the State of California, County of Los Angeles, charging [Petitioner] with Insurance Fraud in violation of Penal Code section 550(b)(3).” I.G. Ex. 4 ¶ 7.

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Petitioner, as before the ALJ, argues that Special Agent Davis’s testimony “lacked foundation, relied on hearsay, and did not meet the requirements of personal knowledge under Federal Rule of Evidence 602” and “lacks sufficient indicia of reliability.” NA at 4 (also stating that “Petitioner hereby reincorporates and reasserts her arguments made in her Brief and Objections to the Inspector General’s Exhibits”). Petitioner again argues that Special Agent Davis’s declaration testimony was “conclusory,” not based on personal knowledge about preparation of the spreadsheet of Medicare claims data, and relied on inadmissible hearsay. Id. at 4-5. Petitioner again cites an error in one of the declaration’s two uses of the name of the hospice (Viceroy instead of Victory) as undermining the reliability of the special agent’s testimony, and “reincorporates and reasserts” the objections to the spreadsheet of contractor Medicare claims data (I.G. Ex. 5). Id. at 5-6.

The ALJ overruled those objections in part because (as noted above) Special Agent Davis “established through personal knowledge how she obtained the data, from where she received it, and the nature of the data itself.” ALJ Decision at 3 (citing I.G. Ex. 4, at 1-2). The ALJ found the special agent’s lack of “sufficient knowledge to authenticate the data summarized” in the spreadsheet did not require its exclusion, as the ALJ hearing regulations do not adopt the FRE “except to consider whether such evidence is unreliable.” Id. at 3 (citing 42 C.F.R. § 1005.17(b)).

“The relevant question,” the ALJ thus concluded, “is whether the [special agent]’s statements in [I.G. Ex. 4, the special agent’s declaration] or the data she relied on [I.G. Ex. 5] are so unreliable as to preclude their admission.” Id. The ALJ saw “no basis to make such a finding,” because “Petitioner’s objections ultimately go to the weight I should give these exhibits, not their admissibility.” Id. at 3-4. And “while the apparent lack of review by [I.G.] counsel of a witness’ declaration for typographic errors and omissions does not inspire confidence,” the ALJ found such “scrivener’s errors” an “equally unpersuasive” basis to question the reliability of the special agent’s testimony. Id. The ALJ also noted that Petitioner, “aside from invoking the technical requirements for admissibility under the Federal Rules . . . does not actually dispute the specific facts” in Special Agent Davis’s declaration. Id. at 3.

The ALJ did not err in declining Petitioner’s demand to exclude I.G. exhibits based on the Federal Rules of Evidence, as “the applicable regulations specifically provide that the ALJ is not bound by the FRE in an appeal challenging an I.G. exclusion.” Ellen L. Morand at 8; see also Grason v. Burwell, 659 F. App’x 899, 901, 2016 WL 4533407 (7th Cir. Aug. 30, 2016) (“in administrative adjudications such as this one, an administrative law judge may receive evidence that is not admissible in federal court under the” federal rules), aff’g Grason v. Burwell, No. 2:14-cv-2267 (C.D. Ill. Feb. 23, 2016), aff’g Ronald J. Grason, M.D., No. 2592 (2014). Thus, “[t]he Board has long held that hearsay is admissible in administrative proceedings generally and can be probative on the issue of the truth of the matter asserted, where sufficient indicia of reliability are present.”

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Summit S.Shah, DAB No. 2836, at 5-6 (2017) (citing Britthaven, Inc., d/b/a Britthaven of Smithfield, DAB No. 2018, at 3 (2006), citing Pacific Regency Arvin, DAB No. 1823, at 14 n.6 (2002) and Richardson v. Perales, 402 U.S. 389, 402 (1971)).

The ALJ did not err in according weight to Special Agent Davis’s testimony. The ALJ essentially deemed that testimony reliable, relevant and probative based on her “experience over 20 years investigating these types of cases and reviewing the type of data at issue,” which he found “sufficient to establish her credentials” as a witness. ALJ Decision at 4. The ALJ found that the special agent’s “uncontested declaration, made under penalty of perjury, establishes she . . . obtained data from [the Medicare] contractor,” and that the her analysis of that Medicare claims data led to “an investigation that resulted in Petitioner’s subsequent charging, conviction, and court-imposed obligation to repay restitution to the Medicare program.” ALJ Decision at 4. The ALJ cited California’s use of the data “to prosecute Petitioner, [who] then decided – with the aid of competent counsel, who presumably reviewed the state’s discovery – to resolve the criminal charge against her by plea rather than trial.” Id. Finally, the ALJ observed that Petitioner could have, but did not, seek to cross-examine Special Agent Davis or to obtain discovery of contractor data “to verify the completeness of the data” or “to contest the veracity or foundation of SA Davis’s statements, the authenticity of the claims data,” or her “capacity to interpret that data[.]” ALJ Decision at 4 (citing ALJ Summary Order at § 9; Civ. Remedies Div. Procedures § 16(b); 42 C.F.R. §§ 1005.7(b), 1005.9(b)). Petitioner has not rebutted or alleged any errors in the ALJ’s explication of his reasons for admitting and relying on Special Agent Davis’s testimony.

Prior decisions support the ALJ’s denial of Petitioner’s demands to ignore the special agent’s testimony (and thus the information she cited). In Nancy L. Clark, DAB No. 2989 (2020), a five-year mandatory exclusion under section 1128(a)(2) of the Act, the Board similarly rejected the petitioner’s argument that the ALJ should have excluded, as hearsay, an internal memorandum by a state Assistant Attorney General (AAG) summarizing the Attorney General’s investigation findings and recommending the petitioner’s referral to local authorities for prosecution in the criminal case underlying the exclusion (AG Memo), and the AAG’s declaration about the AG Memo. As here, the petitioner in Clark “has not specifically explained how the admission of evidence that includes hearsay statements – which is allowed in this forum – unfairly prejudiced her case.” Clark at 9.

Also as here, the ALJ in Clark found that the petitioner’s objections to the AG Memo and its author’s declaration “concerned the weight to be accorded to the hearsay evidence, not its admissibility,” and the Board agreed with that assessment. Id. at 4, 9; see ALJ Decision at 4 (“Petitioner’s objections” to I.G. Exhibits 4 and 5 “ultimately go to the weight I should give these exhibits, not their admissibility.”). As recognized in Clark, “the ALJ has broad discretionary authority to admit or exclude evidence under 42 C.F.R. § 1005.17” and “it is well-settled that the Board defers to the evidentiary rulings of ALJs

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unless there is a compelling reason not to do so.” Reed at 8-9 (citing HeartFlow, Inc., DAB No. 2781, at 19 (2017)); see also Barry D. Garfinkel, M.D., DAB No. 1572, at 6 (1996) (The Board “generally accord[s] considerable deference to an ALJ’s judgment when it depends on weighing the evidence presented and assessing the credibility of witnesses[.]”), aff’d, No. 3-96-604 (D. Minn. June 25, 1997)). The Board also upheld the ALJ’s finding that “any defect in foundation” regarding the AG Memo “was cured by submitting the declaration of the AAG, who asserted under penalty of perjury that the facts outlined in [the memo] resulted from an investigation . . . that led to Petitioner’s conviction.” Clark at 10 (internal quotation marks removed).

Petitioner here “presents no compelling reason why the ALJ – acting fully within the scope of his authority granted by the regulations – erred or abused his discretion by admitting relevant and material” evidence in the form of Special Agent Davis’s testimony and the materials she reviewed. Clark at 9. Petitioner’s continued reliance on strictures of the Federal Rules of Evidence to exclude or disregard the special agent’s testimony is, in effect, an end run around the principle that those rules are not binding here and demonstrates no error in the ALJ’s determination to admit, and rely on, the special agent’s testimony and the materials she reviewed as part of her investigation.

B. Substantial evidence supports the ALJ’s determination that Petitioner was convicted of a criminal offense “related to” the delivery of an item or service under Medicare.

Petitioner next argues that “the IG failed to establish by a preponderance of the evidence that Petitioner’s conviction was sufficiently related to the delivery of an item or service under Medicare or Medicaid as required by 42 U.S.C. § 1320a-7(a)(1)” (i.e. Act § 1128(a)(1)) and thus “failed to meet its burden of proof in showing a nexus between Petitioner’s conviction and state related programs.” NA at 1-2, 7 (capitalization, emphasis removed). Petitioner’s arguments do not show that the ALJ Decision is erroneous or unsupported by substantial evidence.

The ALJ found that the I.G. established by a preponderance of the evidence the required elements for an exclusion under section 1128(a)(1), including the “nexus or common-sense connection between the offense of conviction and the delivery of a healthcare item or service” under Medicare. ALJ Decision at 6-9. The ALJ found that connection or nexus established by Special Agent Davis’s testimony (that Victory Hospice billed Medicare for services provided to the patient, a Medicare beneficiary, named in the criminal count against Petitioner), by evidence (I.G. Ex. 2) that her investigation resulted in Petitioner being criminally charged for conspiring to commit insurance fraud with the hospice, and by Petitioner’s plea of nolo contendere to a “misdemeanor version of the same offense.” Id. at 8-9 (citing I.G. Exs. 2, 3). The ALJ also relied on evidence of Petitioner’s payment of crime victim restitution to CMS pursuant to the state court’s order in the criminal case. Id. at 9 (citing I.G. Exs. 2, 3, 6). The ALJ noted that

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Petitioner’s restitution check to CMS was “for the exact same amount” as the court ordered and “identified the funds as ‘Restitution Payment’ and referenced the case caption and docket number of the criminal charge to which she pleaded nolo contendere.” Id. (citing I.G. Ex. 3, at 1-3; I.G. Ex. 6, at 2). The ALJ found the “connection between these undisputed facts underlying Petitioner’s offense of conviction and the delivery of services to the Medicare program . . . more than sufficient to establish Petitioner’s offense of conviction – conspiring to commit insurance fraud – related to the submission of fraudulent claims to the Medicare program.” Id. at 8‑9; see also at 3 (“Petitioner does not actually dispute the specific facts in” the special agent’s declaration).

“In sum,” the ALJ concluded,

the evidence of record establishes SA Davis requested Medicare claims data from a CMS contractor to initiate an investigation. That investigation culminated in the filing of a criminal complaint against Petitioner by California’s Attorney General. Petitioner resolved the charge against her by pleading nolo contendere to a misdemeanor version of the same offense and agreeing to pay restitution to the Medicare program. These undisputed facts are sufficient for me to conclude Petitioner was convicted of a criminal offense related to the delivery of an item or service under Medicare requiring exclusion pursuant to 42 U.S.C. § 1320a-7(a)(1).

Id. at 9.

Before the Board, Petitioner does not disagree that the ALJ’s account of Petitioner’s criminal case comprises “undisputed facts,” as the ALJ held, but argues that “apart from the inadmissibility of IG Exhibits 4 and 5,” the argument we rejected above, “the remaining evidence relied upon by the ALJ—specifically IG Exhibits 2 and 6—also failed to establish the necessary nexus between Petitioner’s conviction and Medicare.” NA at 8. In other words, Petitioner contends that I.G. Exhibits 2 and 6, by themselves, do not establish the requisite nexus between Petitioner’s conviction and Medicare. Id. We need not reach that question because we do not view those exhibits in isolation but in connection with all of the record evidence, including I.G. Exhibits 4 and 5.

We further reject Petitioner’s arguments about purported deficiencies in I.G. Exhibits 2 and 6. Petitioner argues that I.G. Exhibit 2, the amended felony complaint charging Petitioner and the hospice with felony insurance fraud, “cannot serve as evidence of a nexus” between her offense and delivery of health care under Medicare because it “does not contain factual findings or admissions of guilt,” does not “identify any specific Medicare claims or beneficiaries or demonstrate that Petitioner’s actions involved Medicare funds” and “cannot substitute for admissible evidence connecting Petitioner’s conviction to Medicare.” NA at 8. Petitioner dismisses I.G. Exhibit 6, Petitioner’s restitution checks to CMS ($42,106.62) and the Division of Medi-Cal Fraud & Elder

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Abuse of the California Department of Justice ($6,315.99), on the ground that “[r]estitution is often part of a negotiated plea agreement and does not necessarily reflect the scope or nature of the offense.” Id.

As an initial matter, Petitioner before the ALJ did not object to admission of the amended felony complaint, I.G. Exhibit 2, and thus may not do so now. See ALJ Decision at 2-3; 42 C.F.R. § 1005.21(e); NA at 8 (“Allegations in a complaint ... cannot substitute for admissible evidence.”).

Next, that Petitioner was convicted of a misdemeanor instead of the felony count charged in the amended felony complaint does not render the complaint immaterial or undermine its probative value in establishing the requisite elements for an exclusion. The Board has long held that “in evaluating the nature of the offense and predicate for the underlying conviction, ALJs are not limited to considering only those facts established in the underlying criminal proceedings” and “may, among other things, look to ‘the factual allegations underpinning the offense with which a petitioner was charged and which form the basis for the requisite conviction.’” Reed at 15 (citing Narendra M. Patel, M.D., DAB No. 1736, at 10 (2000), aff’d, 319 F.3d 1317 (11th Cir. 2003); and quoting Robert C. Hartnett, DAB No. 2740, at 7 (2016)). As stated in Patel, a mandatory exclusion under section 1128(a)(2), “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.” Patel at 10, see also at 9 n.3 (the admission of “extrinsic 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 the petitioner’s criminal conduct) (citing Bruce Lindberg, D.C., DAB No. 1280, at 3-4 (1991). This principle “has led to a body of case law in which the convicted charges displayed no explicit link to a protected health care program, but where additional extrinsic evidence established a nexus under section 1128(a)(l).” Shah at 8 (collecting cites).

Thus, “[t]he Board has made clear . . . that ‘evidence that is extrinsic to the criminal court process (regardless of whether or not the evidence or its content were presented at the grand jury, trial, plea or sentencing phases) is admissible to show that the conduct underlying the offense met the elements of the exclusion law.’” Shah at 5 (quoting Patel at 14); see also Chaim Charles Steg, DAB No. 3115, at 8 (2023) (“ALJs may consider the allegations in documentary evidence, such as an arrest warrant affidavit, prosecution memorandum, or criminal complaint to determine whether the conduct underlying the offense met the elements of the exclusion law.”) (emphasis added); see also Reed at 5, 12 (noting with approval ALJ’s finding that “‘[r]egardless of the initial [felony neglect] charge being amended to the stipulated lesser offense of Disorderly Conduct, Petitioner’s conviction stems from the facts and circumstances detailed above’ relating to the neglect

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of a patient,” and holding that the original criminal information is “relevant to examining the nature of Petitioner’s criminal offense”). The ALJ thus did not err in considering the amended felony complaint, along with all of the other record evidence, in finding Petitioner’s offense of conviction related to the delivery of an item or service under Medicare.

The record evidence, moreover, including exhibits to which Petitioner did not object, demonstrates that the misdemeanor offense to which Petitioner pleaded nolo contendere was based on the same conduct described in the amended felony complaint charging Petitioner with felony insurance fraud. Petitioner’s arguments do not accurately depict the I.G. exhibits the ALJ cited.

I.G. Exhibit 3, which the I.G. identified as “Judgement and Sentencing” in Petitioner’s criminal case, is a “Minute Order” of the state court in “Case No. BA498401”; the amended felony complaint was issued by the same court under Case Nos. BA498401-01, -02 and -03, one for each of the three persons charged. I.G. Ex. 3, at 1; I.G. Ex. 2, at 1. The Minute Order states it was based on “Count 04” of a complaint charging Petitioner with having committed a felony offense under section 550(b)(3) of the Penal Code on or about February 5, 2019. I.G. Ex, 3, at 1-3. It further “orders complaint deemed amended to allege Count 04 as a misdemeanor pursuant to . . . the penal code and count shall proceed as a misdemeanor” and that Petitioner thereby “pleads nolo contendere to Count 04 a violation of section 550(b)(3)” of the penal code. I.G. Ex. 3, at 1-2 (capitalization removed).

Substantial evidence supports the ALJ’s finding that Petitioner was convicted of “a misdemeanor version of the same offense” that the amended felony complaint charged against Petitioner. ALJ Decision at 9, see id. at 8 (“Petitioner pleaded nolo contendere to a misdemeanor version of that same offense.”). Substantial evidence is “more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” James O. Boothe, DAB No. 2530, at 3 (2013) (citing Richardson v. Perales, 402 U.S. 389, 401 (1971), quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). Apart from passing that test, the evidence discussed above permits no reasonable doubt that Petitioner pleaded to an offense based on the allegations in the amended felony complaint. Petitioner does not suggest that the Minute Order cites a different complaint alleging a different violation of the same statute on the day same under a different count 4, and to do so would strain credulity. And contrary to Petitioner’s claim that the complaint does not identify any specific Medicare claims or beneficiaries, it names a patient whom Special Agent Davis determined was a Medicare beneficiary. ALJ Decision at 6, 8.

Additionally, the ALJ’s finding that Petitioner’s court-ordered payment of restitution to CMS, as the victim of Petitioner’s insurance fraud offense, further supports the ALJ’s reasonable finding of the required “nexus or common-sense connection” between

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Petitioner’s offense and Medicare. ALJ Decision at 7; I.G. Ex. 3, at 3; I.G. Ex. 2, at 1, 4; I.G. Ex. 6, at 2; see Roji Esha, DAB No. 3076, at 4 (2022). Petitioner did not cite evidence validating its claims about the nature of restitution generally, and provided no evidence showing that the payment of restitution to the HHS agency that administers Medicare was for anything other than reimbursing Medicare for the insurance fraud offense of which Petitioner was convicted.

There is also no basis for Petitioner’s argument that “the ALJ improperly shifted the burden [of proof from the I.G.] to Petitioner by faulting her for failing to rebut the assertions of [Special Agent] Davis], despite those assertions being inadmissible.” NA at 7-8; see ALJ Decision at 3 (Petitioner “does not actually dispute” the special agent’s testimony), 4 (Petitioner “could have exercised her right to cross-examine SA Davis” to “contest the veracity or foundation” of the her “uncontested declaration”). This argument misapprehends the nature of our review. Per regulation, our standard of review on a disputed issue of fact is whether the ALJ’s decision “is supported by substantial evidence on the whole record.” 42 C.F.R. § 1005.21(h). “Under the substantial evidence standard, the reviewer must examine the record as a whole and consider whatever in the record fairly detracts from the weight of the evidence relied on in the decision below.” Morand at 3-4 (emphasis added, internal quote marks deleted) (citing Longwood Healthcare Ctr., DAB No. 2394, at 2 (2011) (citing Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951)); Boothe at 2-3.

Here, the I.G. presented evidence showing that (i) the patient identified in Count 4 of the felony amended complaint, John S., was a Medicare beneficiary (I.G. Exs. 2, 4, 5), and (ii) that CMS, as the administrator and payor of Medicare benefits, was a victim of Petitioner’s insurance fraud offense (I.G. Exs. 3, 6). The ALJ did not “shift” the burden of proof from the I.G. to Petitioner but recognized that Petitioner provided no alternative explanation, much less any evidence, that would undercut the conclusion that Petitioner’s offense related to the delivery of an item or service under Medicare.

In noting Petitioner’s failure to dispute or rebut Special Agent Davis’s assertions or seek to cross-examine here – and Petitioner’s determination not to submit exhibits or to dispute any facts in the record – the ALJ appropriately noted the absence of any evidence that detracts from the weight of the I.G.’s evidence. And on appeal, Petitioner again cites no evidence in the record that detracts from the weight of that undisputed evidence. See, e.g., El Jardin Pharmacy, Inc., DAB No. 2438, at 6 (2012) (“Petitioner failed to point to any evidence in the record that fairly detracts from the ALJ’s finding”); Gary Grossman, DAB No. 2267, at 7 (2009) (“Petitioner has pointed to no inconsistency between the ALJ’s inferences and the evidence, and we see none.”). Petitioner cites nothing in the record that undermines the ALJ’s finding that a preponderance of the evidence shows that the patient identified in the amended felony complaint as a subject of Petitioner’s acts of conviction was a Medicare beneficiary, or the ALJ’s resulting conclusion that there was a common sense connection between the acts of conviction and the Medicare program.

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The ALJ did not err in holding that “undisputed facts” in the entire record “are sufficient for me to conclude Petitioner was convicted of a criminal offense related to the delivery of an item or service” under Medicare. ALJ Decision at 9.

C. Petitioner’s other arguments provide no grounds to reverse the ALJ Decision.

Petitioner states that the ALJ Decision “failed to account for significant mitigating factors that weigh against the mandatory exclusion,” including that “Petitioner has dedicated over 20 years to providing compassionate and ethical care in the palliative care field . . . has promptly paid all restitution and investigative costs, complied fully with probation requirements, and demonstrated a commitment to rehabilitation,” and that “[t]he offense, a misdemeanor, involved no patient harm or systemic fraud, and no aggravating factors were present.” NA at 9. Petitioner thus argues that “[t]hese mitigating circumstances should have been considered in determining whether exclusion was appropriate or in modifying its duration.” Id. Petitioner is wrong on both counts.

Section 1128(a) of the Act (stating that the Secretary “shall exclude” covered individuals) prevents the Board or the ALJ from granting the Petitioner’s request, regardless of the validity of the mitigating circumstances Petitioner cites. As the ALJ recognized, “if an offense falls under the mandatory exclusion statute, ‘courts have repeatedly held that the I.G. is then required to impose a mandatory exclusion even if an individual’s conduct also falls within the scope of a permissive exclusion provision.’” ALJ Decision at 9-10 (citing Gregory J. Salko, M.D., DAB No. 2437, at 4 (2012) (quoting Timothy Wayne Hensley, DAB No. 2044, at 16 (2006)). Thus, “[o]nce a conviction is determined to be within the scope of section 1128(a)(1), the I.G. is required by the Act to impose a mandatory exclusion.” Dr. Timothy Baxter, DAB No. 3074, at 24 (2022). For the reasons discussed above, “the ALJ correctly concluded that Petitioner’s misdemeanor criminal offense was a program-related offense triggering mandatory exclusion under section 1128(a)(1).” Id. Moreover, “[w]here, as here, the legal basis for an exclusion under section 1128(a)(1) is established, Petitioner must be excluded for a minimum of five years, and mitigation is not at issue.” Sylvie Wamba, DAB No. 3068, at 13 (2022). The regulation, moreover, allows consideration of mitigating factors only when the I.G. has applied aggravating factors listed in the regulation to increase the length of the exclusion beyond that mandatory minimum that the I.G. imposed here. 42 C.F.R. § 1001.102.

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Conclusion

For the reasons stated above, we affirm the ALJ Decision

Endnotes

¹ The current version of the Act is at https://www.ssa.gov/OP_Home/ssact/ssact-toc.htm. Each section of the Act on that website contains a reference to the corresponding United States Code chapter and section, and cross-reference tables for the Act and the United States Code are at https://www.ssa.gov/OP_Home/comp2/G-APP-H.html.

² Background information is from the ALJ Decision and the record before the ALJ and is not intended to substitute for the ALJ’s findings.

³ Petitioner does not challenge the ALJ’s determination that Petitioner was “convicted” of a criminal offense and, therefore, we summarily affirm that determination.

⁴ The Guidelines are available at https://www.hhs.gov/about/agencies/dab/different-appeals-at-dab/appeals-to-board/guidelines/procedures/index.html?language=en)