Albert Alex Hazzouri Jr., DAB No. 3189 (2025)

FINAL DECISION ON REVIEW OF ADMINISTRATIVE LAW JUDGE DECISION

Petitioner Albert Alex Hazzouri Jr. appeals the decision of an Administrative Law Judge (ALJ), Albert Alex Hazzouri Jr., DAB CR6597 (2025) (ALJ Decision).  The ALJ affirmed the determination of the Inspector General (I.G.) to exclude Petitioner from participation in all federal health care programs for a mandatory minimum period of five years pursuant to section 1128(a)(2) of the Social Security Act (Act).¹  The ALJ concluded that the I.G. had a lawful basis to exclude Petitioner based on his conviction for a criminal offense related to the neglect or abuse of a patient in connection with the delivery of a health care item or service.  For the reasons set forth below, we affirm the ALJ Decision.

Legal Background

Section 1128(a)(2) of the Act requires the Secretary of Health and Human Services to exclude from participation in federal health care programs (as defined in section 1128B(f) of the Act) an 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.”  Act § 1128(a)(2); see also 42 C.F.R. § 1001.101(b).

As relevant here, an individual is “convicted” of a criminal offense “when a plea of guilty . . . by the individual . . . has been accepted by a Federal, State, or local court . . . .”  Act § 1128(i)(3); see also 42 C.F.R. § 1001.2(c) (similarly defining “convicted”).  “It is the fact of the conviction which causes the exclusion.”  Chaim Charles Steg, DAB No. 3115, at 2 (2023) (emphasis in original) (quoting Peter J. Edmonson, DAB No. 1330, at 4 (1992)).  The general purpose of section 1128 is to provide “protection for federally funded programs and their beneficiaries and recipients” by excluding “potentially

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untrustworthy individuals or entities based on criminal convictions.”  Id. (quoting Edmonson at 4).

An exclusion imposed under section 1128(a)(2) must be for a minimum period of five years.  Act § 1128(c)(3)(B); 42 C.F.R. § 1001.102(a).  The I.G. may extend the five-year exclusion period based on the presence of any aggravating factors listed in 42 C.F.R. § 1001.102(b).  The I.G. may also consider the mitigating factors listed in section 1001.102(c) to reduce the exclusion period to no less than five years, but only if the I.G. extends a mandatory minimum exclusion period based on the application of one or more aggravating factors in section 1001.102(b).  42 C.F.R. § 1001.102.

An excluded individual may request a hearing before an ALJ to challenge the exclusion, but only on the issues of whether the “basis for” the exclusion exists and whether “[t]he length of exclusion is unreasonable.”  42 C.F.R. §§ 1001.2007(a), 1005.2(a).  The underlying conviction is not reviewable or subject to collateral attack on substantive or procedural grounds.  Id. § 1001.2007(d).  Where, as here, the exclusion is mandatory and is imposed for the minimum five-year period, the excluded individual may not challenge the length of the exclusion as unreasonable.  Id. § 1001.2007(a)(1)-(2).  An ALJ is authorized to, among other things, schedule a hearing, examine witnesses, and to receive, rule on, and exclude or limit evidence.  Id. § 1005.4(b).  An ALJ must exclude evidence that is “irrelevant or immaterial,” and may exclude relevant evidence if its “probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or by considerations of undue delay or needless presentation of cumulative evidence.”  Id. § 1005.17(c), (d).  The ALJ issues an initial decision based on the record developed before the ALJ.  Id. § 1005.20(a).

A party dissatisfied with the ALJ’s 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).  In general, Board review of an ALJ decision is based on the evidentiary record developed before the ALJ.  See id. § 1005.21(f); Nabil Mohsen Mohsen Al-Subari, DAB No. 3162, at 3 (2024) (citations omitted), appeal filed, No. 2:25-cv-10166-LVP-KGA (E.D. Mich. Jan. 16, 2025).

Case Background²

Petitioner in this case is a dentist practicing in Scranton, Pennsylvania.  The evidence is undisputed that A.H. had a scheduled dental appointment with Petitioner on May 19, 2021.  On May 20, 2021, A.H. reported Petitioner’s conduct after the dental procedure to the Scranton Police Department.  I.G. Ex. 5, at 5 (Affidavit of Probable Cause submitted

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by D.A., a Detective with Scranton Police Department ).³  On June 28, 2021, a Police Criminal Complaint (Complaint) was filed by Detective D.A. in Scranton, Pennsylvania, under penalty of perjury, listing three counts of indecent assault (one count each for Petitioner touching A.H.’s vaginal area, breasts and buttocks over her clothes) and one count of harassment (Petitioner grabbed A.H.’s vaginal area, breasts and buttocks without her permission).  Id. at 1-4 (citing 18 Pa. Cons. Stat. §§ 3126(a)(1), 2709(a)(3), and 4904).  The Complaint was accepted by an attorney for the Commonwealth and signed by a Magistrate.  Id. at 1, 4.

Detective D.A.’s affidavit of probable cause stated that the victim, A.H., underwent a dental procedure performed by Petitioner at his office in Scranton, Pennsylvania.  ALJ Decision at 2; I.G. Ex. 5 at 5.  Petitioner then walked A.H. downstairs to her vehicle after the procedure, and while walking down the stairs, Petitioner told A.H. to “get onto his back.”  Id.  D.A. further alleged A.H. “told [Petitioner] no,” and Petitioner then “backed up into her, wrapped his hands around her[,] and grabbed her buttocks and squeezed them.”  Id.  Additionally, the affidavit states A.H. and Petitioner “continued to walk down the stairs” and that when they arrived at the bottom, “[Petitioner] grabbed [A.H.’s] breasts and squeezed them with both hands and then grabbed her vaginal area.”  Id.  A.H. was “upset and went to her vehicle and drove away.”  Id.  The affiant conducted a recorded phone call with A.H. and Petitioner, during which Petitioner “apologized for inappropriately touching [A.H.],” stated he “didn’t realize he did it until after it was over,” and “offered her free dental needs as long as she lives.”  Id.

On January 28, 2022, a criminal Information was filed in the Court of Common Pleas charging one count of misdemeanor simple assault under 18 Pa. Cons. Stat. § 2701(a)(1) (2014).  ALJ Decision at 2; I.G. Ex. 4.  The Information stated Petitioner did “attempt to cause or did intentionally, knowingly, or recklessly cause 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 [his dental office], causing physical impairment or substantial pain.”  ALJ Decision at 2; I.G. Exs. 2, 4.  On the same day the Information was filed, Petitioner and his defense counsel signed a guilty plea colloquy and Petitioner pleaded guilty to the stated charge of simple assault.  ALJ Decision at 2; P. Ex. A at 2-13.  In doing so, Petitioner acknowledged that by pleading guilty, he was “admitting that [he] did the things [he was] charged with . . . .”  I.G. Ex. 2, at ¶11.  The state court accepted the plea and sentenced Petitioner to one year of probation and ordered he pay $5,000 in costs and fines and undergo a mental health evaluation.  ALJ Decision at 2; I.G. Ex. 3.

By letter dated July 31, 2024, the I.G. notified Petitioner that he was being excluded from participation in all federal health care programs for the minimum statutory period of 5

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years.  I.G. Ex. 1, at 1.  The I.G. explained that Petitioner was being excluded under the mandatory exclusion provision in section 1128(a)(2) of the Act due to his conviction “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.

ALJ Proceedings and Decision

Petitioner timely filed a request for an ALJ hearing, contesting the I.G.’s five-year exclusion.  ALJ Decision at 3.  Following a telephone prehearing conference, the I.G. filed a brief (I.G. Br.) and five exhibits (I.G. Exs. 1-5) but did not proffer any witness testimony.  Petitioner filed a reply brief (P. Reply Br.) and three exhibits (P. Ex. A-C), summarized testimony of two proposed witnesses, and a separate brief objecting to I.G. Exhibit 5 (criminal complaint and affidavit) (P. Obj.).  ALJ Decision at 3.  The I.G. subsequently filed a reply brief (I.G. Reply Br.), and Petitioner requested permission to file a surreply, which was granted (P. Surreply).  Id.  Petitioner objected to I.G. Exhibit 5 on the basis that it constituted hearsay under the Federal Rules of Evidence and was unfairly prejudicial.  Id. at 3; P. Obj. at 3-5.⁴  The I.G. argued in response that I.G. Exhibit 5 was admissible because it was relevant and material to Petitioner’s arguments against the I.G.’s legal basis for the exclusion.  ALJ Decision at 3; I.G. Reply Br. at 4.  The ALJ overruled Petitioner’s objections in the written Decision and admitted all exhibits proffered by the parties.  ALJ Decision at 3-4.

Petitioner submitted a brief summary of proposed testimony of two witnesses:  his criminal defense attorney, P.W., and Petitioner’s dental assistant, B.S.  Petitioner offered P.W.’s testimony to “confirm” that the factual basis of Petitioner’s plea was non-sexual, that Petitioner’s conduct occurred in a lot adjacent to Petitioner’s dental office, and that the conduct was not in connection with the delivery of a healthcare item or service.  Proposed Testimony (Prop. Test.) at 1.  In addition, Petitioner offered a summary of proposed testimony from B.S., asserting 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.”  Id. at 1-2.

The ALJ concluded that “the anticipated testimony of [] Petitioner’s proposed witnesses would only serve to collaterally attack Petitioner’s conviction,” which is precluded under 42 C.F.R. § 1001.2007(d), to “duplicate existing factual evidence already in the record, or [to] call for a legal conclusion . . . .”  ALJ Decision at 5.  Thus, the ALJ determined an in-person hearing was unnecessary and issued a decision based on the written record.  Id. at 4-5.

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The ALJ found there was a basis to exclude Petitioner in that he 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 section 1128(a)(2) of the Act.  ALJ Decision at 7.  The ALJ explained that A.H. was Petitioner’s patient at the time of the inappropriate touching that formed the basis of his underlying conviction, and that the conduct occurred in connection with the delivery of a healthcare item or service.  Id. at 7-10.  The ALJ concluded that, because a basis exists to exclude Petitioner pursuant to section 1128(a)(2), he must be excluded for a minimum of five years.  Id. at 10.  We address the ALJ’s findings, conclusions, and rationale in more detail below.

Standard of Review

The Board reviews a disputed issue of fact as to whether the ALJ “decision is supported by substantial evidence on the whole record.”  42 C.F.R. § 1005.21(h).  The Board reviews a disputed issue of law to determine whether the ALJ decision “is erroneous.”  Id.  The term “substantial evidence” means “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”  Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)).

Analysis

Before the Board, Petitioner raises two questions, which we reorder for clarity.  Request for Review (RR) at 6.  Petitioner’s first question is “[w]hether the ALJ’s denial of Petitioner’s request for a hearing deprived him of his right to present testimony and evidence, thereby denying him due process and rendering the exclusion decision legally deficient?”  Id.  Petitioner’s second question is “[w]hether the ALJ erred in concluding that Petitioner’s conduct occurred ‘in connection with the delivery of a healthcare item or service’ when the alleged conduct took place outside the dental office, in an adjacent parking lot, and bore no substantive connection to the provision of healthcare services, thereby warranting reversal of the exclusion under Section 1128(a)(2) of the Social Security Act?”  Id.  (emphasis omitted).

Regarding the first question presented, Petitioner argues that the ALJ deprived him of his right to a hearing, which precluded testimony of his proposed witnesses, and shifted the evidentiary burden from the I.G. to Petitioner.  RR at 6, 12-28.

Regarding the second question presented, Petitioner contends that the ALJ erred in finding A.H. was a patient at the time of the conduct and that the conduct was in connection with the delivery of a healthcare item or service.  Id. at 11-21.  Petitioner argues that the ALJ Decision “relies entirely on a misreading of the statutory intent underlying the Act.”  Id. at 22 (emphasis omitted).  Petitioner further contends that the ALJ Decision improperly “relies on inadmissible and prejudicial evidence” (I.G. Ex. 5).

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Id. at 6, 26.  On the legal basis for exclusion, Petitioner does not dispute that he pleaded guilty to simple assault, the conviction of which was the basis for his exclusion.  Petitioner acknowledged the fact of his guilty plea and conviction before the ALJ and does so again before the Board.  Id. at 7; P. Reply Br. at 5.  Broadly speaking, Petitioner challenges the ALJ’s conclusion that there was a basis to exclude him pursuant to section 1128(a)(2) of the Act.  While Petitioner asserts that he does not dispute any of the ALJ’s factual findings, he argues that the ALJ erred as a matter of law in concluding that the conduct underlying his conviction was related to patient neglect or abuse and that it occurred in connection with the delivery of a healthcare item or service.  RR at 10 n.2, 11-25.

We discuss below, and ultimately reject, each of Petitioner’s contentions.  In section I, we find the ALJ did not err in issuing a written decision without holding an in-person hearing.  Moreover, we reject Petitioner’s assertion that the ALJ’s decision to issue a decision on the written record resulted in the ALJ not allowing the testimony of his proposed witnesses.  We also reject Petitioner’s contention that the ALJ’s decision not to convene an in-person hearing violated Petitioner’s due process rights.  In section II, we find that the ALJ did not err or abuse her discretion in admitting I.G. Exhibit 5 into the record.  Finally, in section III, we, like the ALJ, determine that the record evidence establishes a basis for exclusion under section 1128(a)(2) of the Act, and, by law, the exclusion must be imposed for a minimum of five years.  We further determine that the ALJ properly placed the burden of proof on the I.G., Petitioner’s conviction was related to the abuse of a patient that occurred in connection with delivery of a health care item or service, and the ALJ correctly interpreted section 1128(a)(2) of the Act.  In summary, we affirm the ALJ Decision.

I. The ALJ did not err in issuing a decision based on the written record.

An individual subject to an I.G. exclusion is entitled to an opportunity for a hearing in which the individual and the I.G. have a right to participate, unless waived.  Act § 1128(f); 42 C.F.R. §§ 1005.2, 1005.3, 1005.6(b)(5), 1005.15; see also Sylvie Wamba, DAB No. 3068, at 7, 7 n.9 (2022) (citing Michael W. Lawrence, DPM, DAB No. 2983, at 7-8 (2020) and Olandis Moore, DAB No. 2963, at 7 (2019)).  Here, the I.G. notified the ALJ that an in-person hearing was not necessary and that the matter was “ripe for adjudication on the written record.”  I.G. Br. at 5.  Petitioner asserts the ALJ’s decision to forego a live hearing constitutes a violation of his fundamental due process rights, denying him the opportunity to cross-examine witnesses, provide direct testimony that could have fundamentally altered the outcome, and shifted the evidentiary burden to Petitioner.  RR at 25-28.  We will address each of these assertions in turn.

In accordance with 42 C.F.R. § 1005.8(a), the ALJ provided Petitioner with a Standing Prehearing Order (PHO) and a copy of the Civil Remedies Division Procedures (CRDP)

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with the acknowledgment of Petitioner’s hearing request.  The PHO provided, in part:

I will provide a schedule for the parties to file their prehearing exchanges. . . .  If a party will be presenting witnesses, the party’s prehearing exchange will include a list of all proposed fact and expert witnesses along with a brief summary of the testimony that the party anticipates each proposed witness will provide.

PHO ¶ 6.

The CDRP provided, in part:

The ALJ may determine that an oral hearing is unnecessary and not in the overall interest of judicial economy if the parties do not identify any proposed witnesses, do not offer the written direct testimony of any witnesses when ordered to do so, or do not request an opportunity to cross-examine a witness whose written direct testimony has been offered.  Under these circumstances, the ALJ may decide the case based on the written record.

CRDP § 19(d).

The I.G. noted that it did not have any testimony it wished to offer.  I.G. Br. at 5-6.  As indicated above, Petitioner submitted a brief summary of proposed testimony of two witnesses.  ALJ Decision at 5; P. Prop. Test.  Petitioner did not offer any prior written statement from his witnesses.  The I.G. maintained its position that a hearing was unnecessary but reserved the right to cross examine Petitioner’s witnesses.  I.G. Reply Br. at 5.  After concluding the proposed testimony from Petitioner’s witnesses was not relevant or admissible for reasons discussed below, the ALJ determined a hearing was not necessary.

We find that the ALJ did not err or abuse her discretion in issuing a decision based on the written record without convening an in-person hearing after providing “clear notice” that she would do so if “a hearing is not necessary.”  See James Brian Joyner, M.D., DAB No. 2902, at 12 (2018).  Accordingly, we next address the ALJ’s determination to exclude Petitioner’s proffered witnesses.

A. The ALJ’s denial of Petitioner’s proposed witnesses was not erroneous.

Petitioner argues that the ALJ’s determination not to hold an in-person hearing precluded testimony from his two witnesses, P.W., his criminal defense attorney, and B.S., his dental assistant.  RR at 26.  Petitioner argues that the testimony was necessary to

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determine whether his conduct occurred in connection with the delivery of a health care item or service.  Id.  Petitioner conflates the issue, as the ALJ found the witness testimony proffered by Petitioner was irrelevant, which negated the need for a hearing as no other witnesses were identified by either party.  ALJ Decision at 5.

“The governing regulations grant ALJs broad authority to determine the admissibility of evidence.’”  Nancy L. Clark, DAB No. 2989, at 8 (2020)) (citing 42 C.F.R. § 1005.17(a)).  ALJs are not “bound by the Federal Rules of Evidence” but “may apply the Federal Rules of Evidence where appropriate, for example, to exclude unreliable evidence.”  42 C.F.R. § 1005.17.  Further, ALJs not only may but “must exclude irrelevant or immaterial evidence.”  Id. § 1005.17(b), (c).  Even if relevant, “evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or by considerations of undue delay or needless presentation of cumulative evidence.”  Id. § 1005.17(d).  The Board defers to the evidentiary rulings of ALJs unless there is a compelling reason not to do so.  Clark at 8-9 (citing HeartFlow, Inc., DAB No. 2781, at 19 (2017)).

Here, the ALJ found that the “precise history” of P.W.’s guilty plea negotiations was irrelevant to the issue of whether the I.G. had a basis for excluding Petitioner under section 1128(a)(2) of the Act.  ALJ Decision at 4-5 (citing I.G. Ex. 4 and 42 C.F.R. § 1001.2007(a)(1)-(2)).  Additionally, the ALJ also found that testimony regarding whether Petitioner’s conduct was in connection with the delivery of a healthcare item or service was a “legal conclusion” that P.W. could not “confirm” and which the ALJ is not required to accept.  ALJ Decision at 5; 42 C.F.R. § 1005.17(d); see also Dumas Nursing and Rehab., L.P., DAB No. 2347, at 19 (2010) (“[A]n administrative law judge is not bound by a witness’s legal conclusions.”).  Finally, the ALJ found that the location of the offense was established in the record and would amount to “needless presentation of cumulative evidence.”  Id. (citing 42 C.F.R. § 1005.17(d)).

The ALJ did not err in concluding that P.W.’s negotiations regarding Petitioner’s guilty plea are irrelevant to the only issue on appeal, which is whether the I.G. had a basis for excluding Petitioner under section 1128(a)(2) of the Act based on his conviction.  ALJ Decision at 5.  Petitioner does not dispute his conviction, which was the basis for his exclusion, or the ALJ’s findings of fact.  See RR at 7, 10 n.2, 26 n.10; P. Reply Br. at 5; I.G. Ex. 1, at 1; see also 42 C.F.R. § 1001.2007(a)(1)-(2); Carolyn Westin, DAB No. 1381, at 10 (1993) (quoting Edmonson at 4) (“It is the fact of the conviction which causes the exclusion.”) (emphasis omitted), aff'd, 845 F. Supp. 1446 (D. Kan. 1994).

As for the proposed testimony of the dental assistant B.S. that Petitioner’s interaction with A.H. was “uneventful,” the ALJ held it contradicted Petitioner’s guilty plea.  ALJ Decision at 2.  Petitioner concedes that he pleaded guilty to simple assault for grabbing A.H. without her consent in an offensive manner.  RR at 12 n.5; I.G. Ex. 2, at 2

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(acknowledging that, by pleading guilty, Petitioner was “admitting that [he] did the things [he was] charged with”); I.G. Ex. 4.  Testimony that B.S. did not observe Petitioner assault A.H. would contradict the facts underlying his criminal conviction, constituting an impermissible collateral attack on his conviction in this case.  42 C.F.R. § 1001.2007(d) (“When the exclusion is based on the existence of a criminal conviction . . . the basis for the underlying conviction . . . is not reviewable and the individual or entity may not collaterally attack it either on substantive or procedural grounds . . . .”); see also Steg at 12 (citing 42 C.F.R. § 1001.2007(d) and Adel A. Kallini, M.D., DAB No. 2944, at 6 n.3 (2019)) (“Having been convicted, [a petitioner] is precluded from re-litigating the criminal charges in administrative proceedings before the ALJ or the Board.”).

Petitioner has not persuasively explained how the proposed testimony is relevant and material to any issue before the ALJ or the Board.  42 C.F.R. § 1005.17(a) (providing that irrelevant or immaterial evidence must be excluded); see also Shelia Ann Reed, DAB No. 3059, at 10 (2022) (upholding ALJ decision to deny a petitioner’s request to cross-examine a witness and finding that the testimony sought was not relevant to any issue before the ALJ).  Thus, the ALJ’s determination that the proffered testimony from Petitioner’s witnesses was irrelevant is not erroneous.

B. The ALJ’s decision on the written record did not violate due process.

The Board has observed that the federal courts “have allowed, and even strongly encouraged, written direct testimony in a variety of proceedings.  Since it is offered under oath, [written direct testimony] is generally no less credible in most instances than oral testimony in the hearing room, as long as the witness is subject to cross-examination.”   Joyner at 11 (quoting Pacific Regency Arvin, DAB No. 1823, at 7-8 (2002)).  The Board has held that, “where neither party seeks to cross-examine any witness for whom the opposing party has submitted written direct testimony, the ALJ’s decision to forego an in-person hearing does not generally pose a due process concern.”  Joyner at 11 (citing Lena Lasher, aka Lena Contang, aka Lena Congtang, DAB No. 2800, at 4 (2017), aff’d, 369 F.Supp.3d 243 (D.D.C. 2019), aff’d,  No. 19-5114, 2020 WL 9256389 (D.C. Cir. Nov. 12, 2020) and Igor Mitreski, M.D., DAB No. 2665, at 7 (2015)); see also Janice Cassandra Wrenn, DAB No. 3118, at 12 (2023) (citing Clark at 6) (finding that due process was not denied when petitioner was “afforded the opportunity to present witnesses and request subpoenas but did not do so”).

The ALJ notified the parties that an oral hearing may be unnecessary and that the case may be decided on the written record “if the parties do not identify any proposed witnesses . . . or do not request an opportunity to cross-examine a witness whose written direct testimony has been offered.”  CRDP § 19(d); see also PHO at 2 (informing parties that the CRDP “supplement the provisions in Part 1005”); 42 C.F.R. § 1005.3(a)(7) (providing that parties may “[p]resent oral arguments at the hearing as permitted by the

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ALJ”).  The I.G. did not offer any witnesses for Petitioner to cross-examine and maintained that a hearing was unnecessary throughout the proceedings.  Thus, Petitioner cannot show that he was prejudiced by not being allowed cross-examination as there were no I.G. witnesses to cross-examine.  Moreover, Petitioner has not shown that he was prejudiced by the ALJ’s determination not to convene an in-person hearing after the exclusion of Petitioner’s proposed witness testimony as irrelevant.

Petitioner alleges that the question of whether his conduct occurred in connection with the delivery of a health care item or service is a “mixed question of fact and law that cannot be resolved solely through written submissions.”  RR at 26.  We are not persuaded.  In discussing the factual component of the alleged “mixed question,” Petitioner alleges that the ALJ “opt[ed] for a conclusory analysis that relied heavily on the I.G.’s assertions[,]” but this contradicts Petitioner’s contention that he only disputes the ALJ’s conclusions of law and “does not dispute any of the ALJ’s findings of fact.”  Id. at 10 n.2, 26, 26 n.10 (“Petitioner makes no allegations as to collaterally attack the conduct engaged in which forms the basis of this action.”), 27.  In discussing the legal component of the alleged “mixed question,” Petitioner incorrectly claims that the ALJ relied on Narendra M. Patel, M.D., DAB No. 1736 (2000), aff’d, 319 F.3d 1317 (11th Cir. 2003), cert. denied, 539 U.S. 959 (2003), “as a basis for denying a hearing” and “for the proposition that extrinsic evidence may be considered in exclusion cases.”  See RR at 27-28.  Contrary to Petitioner’s assertions, the ALJ did not cite to Patel when determining whether a hearing was necessary or what evidence was admissible.  See ALJ Decision at 4-5.  Instead, the ALJ cited Patel in the separate context of discussing “the prospective and remedial purpose of the statute,” its scope, and its proper construction.  Id. at 7, 9.

We reject Petitioner’s contention that the ALJ’s decision not to convene an in-person hearing violates his constitutional right to due process.  RR at 2, 6, 25, 27-28.  Petitioner cites to Mathews v. Eldridge, 424 U.S. 319 (1976), to support his contention that “[t]he fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner.”  RR at 28 (citing Mathews at 333).  The decision in Mathews explains that “[p]rocedural due process imposes constraints on governmental decisions which deprive individuals of ‘liberty’ or ‘property’ interests within the meaning of the Due Process Clause of the Fifth or Fourteenth Amendment.”  Mathews at 332; Reed at 10 (quoting Shaun Thaxter, DAB No. 3053, at 37 (2021)) (“Procedural due process prohibits government action that deprives one of life, liberty, or property, without adequate process of law.”).  We find that Petitioner received adequate procedural protections and notice consistent with due process.  There is no dispute that Petitioner was given notice of his pending exclusion through the I.G.’s exclusion notice, which apprised him of the factual and legal basis for the exclusion and opportunities to challenge it.  I.G. Ex. 1.  The I.G.’s mandatory exclusion notice issued under 42 C.F.R. § 1001.2002 – which states, among other things, an exclusion’s basis, length, and effect

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and any available appeal rights – has been held to comport with the notice requirements of procedural due process.  See, e.g., Thaxter at 38 n.31 (citing Lasher, 369 F.Supp.3d 243, 251 and Cathy Statler, DAB No. 2241, at 11 (2009), aff’d, No. 7:09-CV-00387, 2011 WL 972584 (W.D. Va. Mar. 16, 2011)).  Petitioner availed himself of the full administrative appeal process before the ALJ and now the Board.

We also reject Petitioner’s further assertion that he was denied “the opportunity to present critical evidence, cross-examine witnesses, and provide direct testimony essential to his defense.”  See RR at 25.  As discussed above, Petitioner failed to provide any compelling reason to disturb the ALJ’s findings regarding his witness’s proposed testimony.  See ALJ Decision at 5; see also Lasher, 369 F.Supp.3d 243, at 251 (rejecting procedural due process argument based on the lack of an in-person hearing where the Board declined to consider evidence only relevant to an impermissible collateral attack on petitioner’s conviction).  As the Board has stated in response to a comparable argument, “[w]e see no lack of due process in the exclusion of irrelevant evidence.”  Mohamad Ahmad Bazzi, DAB No. 2917, at 10 (2018).Further, the I.G. did not offer any witnesses for Petitioner to cross-examine.  See I.G. Br. at 5.  On these bases, we find that the ALJ’s decision to forgo an in-person hearing does not raise any due process concerns.

II. The ALJ did not err or abuse her discretion in admitting I.G. Exhibit 5.

Petitioner contends that the ALJ’s determination to rely on the written record, including I.G. Exhibit 5, which was admitted “over [his] objections[,]” prevented him from “meaningfully” challenging the evidence used to justify his exclusion.  RR at 26.  As noted above, I.G. Exhibit 5 contains the Complaint and affidavit from the Detective summarizing A.H.’s allegations against Petitioner.  I.G. Ex. 5.  To the extent Petitioner is arguing that the ALJ erred by admitting I.G. Exhibit 5 into the record, we find no merit to Petitioner’s arguments.

Petitioner argues that the Complaint was “ultimately withdrawn by the prosecutor” in his criminal case, arguing that its withdrawal renders it inadmissible.   RR at 26, 26 n.10 (asserting that Petitioner “nevertheless avers that this action should be founded upon proper and admissible evidence,” the Information, and that “[t]o do otherwise – i.e., to rely on inadmissible evidence – is patently unfair to Petitioner and prevents him from fully and wholly . . . defending himself in this matter”).

In support, Petitioner asserts that the Board’s decision in Patel “underscores the importance of ensuring that all evidence relied upon is subject to rigorous scrutiny, which cannot occur without the procedural protections of a live hearing.”  RR at 27-28.  Petitioner misinterprets the Board’s holding in Patel, which involved a physician’s exclusion under section 1128(a)(2) of the Act based on his criminal conviction for sexual battery.  Patel at 1-2.  The Board made clear that “the statutory language says nothing”

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about what evidence of the nature 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.  Id. at 10.  Additionally, the Board held “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.”  Id. at 14 (determining that the victim’s statement was admissible as evidence extrinsic to the criminal court proceeding to prove whether the elements of section 1128(a)(2) were met); see also Summit S. Shah, M.D., DAB No. 2836, at 5-6 (2017) (upholding ALJ’s admission of evidence “prepared in reference to . . . dismissed charges” for the “limited purpose” of showing a nexus between a petitioner’s conviction and a state Medicaid program).

The ALJ determined that there was no basis to exclude I.G. Exhibit 5 because it was “relevant and material, not outweighed by the risk of unfair prejudice, or otherwise inadmissible.”  ALJ Decision at 3 (citing 42 C.F.R. § 1005.17(e)-(g)).  The ALJ found that the facts alleged in I.G. Exhibit 5 were “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.”  Id. at 4.  Therefore, the ALJ found the evidence was “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,” which Petitioner disputed.  Id.  Moreover, the ALJ found that the probative value of the alleged facts was not substantially outweighed by the danger of unfair prejudice, and that if Petitioner “had concerns about the veracity” of facts alleged in the Complaint, he could have “requested a subpoena” to compel the appearance of A.H. or the detective.  Id.  The ALJ concluded that Petitioner’s objections went to the weight of the evidence rather than its admissibility.  Id.

Thus, while the Complaint and accompanying Affidavit in this case was withdrawn from evidence in the criminal proceeding, the ALJ correctly determined that it is admissible to show whether the elements of exclusion other than a conviction are met – that is, whether Petitioner’s conduct was related to the abuse of a patient in connection with the delivery of a health care item or service.  See Clark at 8 (“The ALJ has broad discretionary authority to admit or exclude evidence under 42 C.F.R. § 1005.17.”).  As for the probative value of the extrinsic evidence, the Board has further held that it is probative “only if it is reliable and credible.”  Id. (quoting Shah at 5).

While Petitioner does not make any specific arguments regarding the reliability and credibility of I.G. Exhibit 5, he argues that the statements within it contain prejudicial hearsay, and that the ALJ’s reliance on such implicates the “fairness of the proceedings” and the “credibility of the evidentiary record.”   RR at 9, 26, 26 n.10; P. Obj. at 3-5.  As explained above, an ALJ is not bound by the federal rules of evidence.  42 C.F.R.

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§ 1005.17(b).  Further, it is well-settled 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.”  Reed at 6 (quoting Clark at 8); see also Shah at 6 (citing Gateway Nursing Ctr., DAB No. 2283, at 6 (2009)) (“The question facing an ALJ presented with hearsay evidence is not whether it is admissible, but what weight it should be accorded.”).  Thus, we construe Petitioner’s arguments regarding the reliability of hearsay as going to the weight and credibility of the statements within the Complaint.

We find that the ALJ did not abuse her discretion in relying on the statements in the Complaint and the accompanying Affidavit, as there are adequate indicia of reliability to support its probative value.  As the ALJ explained, the Complaint is “reliable and directly related to the charge of which Petitioner was ultimately convicted.”  ALJ Decision at 4.  Indeed, “[t]he [C]omplaint 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.”  Id. at 4; see also Patel at 14-16 (finding “adequate indicia of reliability” to support admissibility of a victim’s statement, in part, because the victim “had good reason to be aware” that it could have serious consequences).  Moreover, the Complaint “served as the basis” of the assault charge to which Petitioner ultimately pled guilty.  ALJ Decision at 4; I.G. Ex. 2; I.G. Ex. 4; see also Reed at 8 (finding an arrest warrant affidavit properly admitted where “[t]he State Court judge issued an arrest warrant based on the sworn allegations in the affidavit”).  As for the Complaint’s credibility, it contains “substantially similar facts” to those in the Information charging Petitioner with simple assault.  ALJ Decision at 4.  Further, the ALJ specifically found the Complaint’s statements probative as they are “reliable and directly related to the charge of which Petitioner was ultimately convicted.”  ALJ Decision at 4.  The ALJ’s determinations indicate that she weighed the probative value of the Complaint against concerns of unfair prejudice to Petitioner.  See e.g., Shah at 5-6.  We have no reason not to defer to the weight and credibility the ALJ accorded to any hearsay statements.  See Reed at 6, 11 (citing Clark at 8-9) (“We defer to the ALJ’s evidentiary rulings in the absence of a compelling reason not to do so.”).  Finally, as the ALJ explained, Petitioner did not request a subpoena to compel the appearance of either the Detective or A.H. for cross-examination.  ALJ Decision at 4; 42 C.F.R. § 1005.9(a); CRDP § 17; see also Patel at 21 n.9 (citing Richardson v. Perales, 402 U.S. 389, 407 (1971) and Thelma Walley, DAB No. 1367, at 11 n.9 (1992)) (finding the admission of hearsay “particularly appropriate” where an opposing party voluntarily relinquished their right to subpoena and cross-examine the declarant).  We defer to the ALJ’s evidentiary determination to admit (and rely on) I.G. Exhibit 5 in the absence of compelling reason not to do so.  See Clark at 8-9 (citing HeartFlow at 19).

In sum, Petitioner presents no compelling reason why the ALJ erred or abused her discretion by admitting and relying on I.G. Exhibit 5.  See Clark at 7-9.  The ALJ acted

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“fully within the scope of [her] authority granted by the regulations” in admitting relevant and material evidence for the purpose of determining if the elements of Petitioner’s exclusion were met.  See id.  Thus, we conclude that the ALJ properly admitted I.G. Exhibit 5 into the record.

III. The ALJ determination that the I.G. had a basis to exclude Petitioner is supported by substantial evidence and free of legal error.

On the merits of the exclusion, the only issue before the ALJ was whether the I.G. had a basis to exclude Petitioner under section 1128(a)(2) of the Act.  See 42 C.F.R. § 1001.2007(a)(1); see also ALJ Decision at 5; Reed at 13.  An individual meets the criteria for exclusion under section 1128(a)(2) when: (1) the individual was convicted of a criminal offense under state or federal law; (2) the offense relates to the neglect or abuse of patients; and (3) the offense was committed in connection with the delivery of a health care item or service.  Reed at 13; Act § 1128(a)(2).

Petitioner concedes that he was “convicted” of a criminal offense within the meaning of section 1128(i) of the Act when he entered a plea of guilty to the simple assault charge under Pennsylvania law.  ALJ Decision at 7 (citing P. Reply Br. at 5); RR at 12 n.5; see also I.G. Ex. 2.  Petitioner contends that the record evidence does not show that his conviction relates to the neglect or abuse of a patient in connection with the delivery of a health care item or service.  ALJ Decision at 7 (citing P. Reply Br. at 7); RR at 11-21.  As explained below, we reject Petitioner’s arguments and find that substantial evidence in the record supports the ALJ’s conclusion that Petitioner’s simple assault conviction relates to the abuse of a patient in connection with the delivery of a health care item or service.

A. The ALJ properly placed the burden of proof on the I.G.

Petitioner argues that “the ALJ’s refusal to hold a hearing improperly shifted the evidentiary burden onto [Petitioner.]”  RR at 27.  In support, Petitioner reasons that, by “denying [Petitioner] the opportunity to present evidence or challenge the I.G.’s claims through live testimony, the ALJ effectively placed the onus on him to disprove the I.G.’s allegations.”  Id.

We reject this argument.  For reasons explained above, the Complaint was admissible, reliable, and credible evidence as to whether Petitioner’s conviction involved neglect or abuse of a patient in connection with the delivery of a healthcare item or service.  By presenting that (and other) evidence, the I.G. met its burden by establishing that the assault occurred while A.H. was a patient of Petitioner in connection with the delivery of a healthcare item or service.  See Patel at 20.  Moreover, Petitioner failed to rebut the I.G.’s showing with any evidence of record.  See id.

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Petitioner points to the I.G.’s reliance on “untested” extrinsic evidence, including the Complaint, to support its case, which Petitioner contends “eroded the I.G.’s burden of proof” in contravention with “governing regulations and principles of administrative law.”  RR at 27.  Petitioner does not point to any authority, and we find none, to support his contentions.  In these proceedings, extrinsic evidence refers to “evidence that is presented from outside the criminal record to elucidate the underlying facts of the offense.”  Patel at 21; see also Shah at 5 (“The Board has made clear . . . that evidence that is extrinsic to the criminal court process . . . is admissible to show that the conduct underlying the offense met the elements of the exclusion law.”) (internal quotation marks omitted).  The extent to which extrinsic evidence is probative of the proposition which it is offered to prove depends on its “relevance, reliability, and credibility.”  Patel at 21.

As discussed above, the Complaint is credible, reliable, and relevant to the charge for which Petitioner was ultimately convicted, and for which his exclusion was based.  See ALJ Decision at 4.  We thus reject Petitioner’s contention that the burden of proof was improperly shifted to Petitioner.

B. Petitioner’s conviction was related to the abuse of a patient.

Petitioner disputes the I.G.’s conclusion that his conviction was related to patient neglect or abuse.  RR at 12 n.5.  In support, Petitioner reasons that A.H. “was no longer under [his] professional care or control” and that the “doctor-patient relationship had effectively concluded” when the conduct underlying his conviction occurred.  Id. at 20-21.  In examining the facts and circumstances underlying Petitioner's conviction, we find that substantial evidence in the record supports the ALJ’s conclusion that Petitioner's conviction related to the neglect or abuse of a patient.

Section 1128(a)(2) “states that the offense involved must ‘be related’ to the neglect or abuse of a patient.”  Reed at 15 (quoting Patel at 8).  “[T]he 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.”  Id; see also Westin at 5 (finding that the I.G. met its burden of proof “by establishing that . . . the offense of which [a petitioner] was convicted was related to patient neglect”).  In determining whether a conviction is related to patient neglect or abuse, an ALJ may look at “evidence as to the nature of an offense such as facts upon which the conviction was predicated.” Funmilola Mary Taiwo, DAB No. 2995, at 8 (2020) (internal quotation marks omitted) (quoting Shah at 7 and citing Patel at 10 and Michael S. Rudman, M.D., DAB No. 2171, at 9 (2008), aff’d, 578 F.Supp.2d 812, (D. Md. 2008)).

Moreover, the ALJ is permitted to look beyond the facts established in the underlying criminal proceedings and may consider the “the factual allegations underpinning the offense with which a petitioner was charged and which form the basis for the requisite

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conviction.”  Robert C. Hartnett, DAB No. 2740, at 7-9 (2016)) (examining the record of the criminal proceeding below, including the Misdemeanor Information, to determine whether there is a nexus between the underlying offense and patient neglect or abuse);  Reed at 11-12, 15-17 (considering allegations in the arrest warrant affidavit and criminal Information in finding that Petitioner’s conviction related to the neglect of a patient); Taiwo at 7-9 (relying, in part, on allegations in the criminal complaint in finding that Petitioner’s criminal offense related to the neglect of a patient).

In this case, the evidence of record – including the original Complaint and subsequent Information – establishes that Petitioner’s offense was related to the abuse of a patient.  Petitioner’s Complaint alleged that on or about May 19, 2021, A.H. presented to Petitioner’s dental office for a procedure.  I.G. Ex. 5, at 5.  After the procedure Petitioner walked A.H. to her vehicle.  Id.  Moreover, in the recorded phone call with A.H., Petitioner indicated a continuing practitioner-patient relationship when he “apologized for inappropriately touching [A.H.]” and “offered her free dental needs as long as she lives.”  Id.   Petitioner contends that he does not dispute any of the ALJ’s factual findings, which include the facts alleged in the Complaint.  See ALJ Decision at 3-4, 7-10; RR at 10 n.2, 26, 26 n.10.  Nevertheless, he cites to witness testimony that was excluded by the ALJ to challenge the ALJ’s determination that the conduct involved a patient, and the assault was in connection with the delivery of a healthcare item or service.  RR at 7.  Moreover, by pleading guilty to the stated charge of simple assault based on the factual allegations in the Information, Petitioner admitted to those facts - that he assaulted a patient after completing a dental procedure when he left the dental office with her and walked her to her car.  I.G. Ex. 2, at 2 (acknowledging that Petitioner “did the things [he was] charged with . . . .”).

Petitioner’s arguments stem from the view that section 1128(a)(2) is only applicable if Petitioner perceived A.H. as an active patient at the time of the abuse.  See Bruce Lindberg, D.C., DAB No. 1386, at 7 (1993). However, we agree with the ALJ that this narrow interpretation would be contrary to the intent of section 1128, which is to protect federally funded programs and their beneficiaries and recipients by excluding potentially untrustworthy individuals based on criminal convictions.  Thaxter at 2 (quoting Edmonson at 4); Patel at 11 (“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 . . . .”); Lindberg at 7-8 (rejecting the argument that section  1128(a)(2) is only applicable if a petitioner viewed their victim to be a patient at the time of the abuse); see also ALJ Decision at 7.  A “potential victim” of neglect or abuse that “reasonably considers” themself a patient may be vulnerable no matter how the practitioner perceives the victim.  Lindberg at 7.  Any practitioner “who may take advantage of such vulnerability is not trustworthy.”  Id.

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In this case, there is no indication that Petitioner formally ended the dentist-patient relationship prior to the conduct underlying his offense.  See id. (finding that petitioner had not ended his chiropractor-patient relationship where he did not formally terminate the relationship through notice or transfer of records).  Rather, the record evidence shows that the conduct occurred immediately after A.H.’s dental procedure, as Petitioner accompanied A.H. out of the dental office to her parked car nearby.  I.G. Ex. 5, at 5; P. Ex. A (Guilty Plea transcript).  Despite Petitioner’s contentions, concluding A.H.’s dental procedure and leaving the office did not automatically end the dentist-patient relationship, and A.H. could have “reasonably consider[ed]” herself a patient at the time of the offense.  See ALJ Decision at 8 n. 4.  Also, as the ALJ pointed out, the evidence shows that Petitioner later, in a recorded telephone call, “sought to continue the dentist/patient relationship by offering free dental care for life.”  Id. at 7-8 (citing I.G. Ex. 5, at 5).  Accepting Petitioner’s argument would require accepting the absurd premise that an individual ceases to be a dentist’s patient, and her dentist may assault her with impunity from exclusion under the Act, each time she steps outside the dentist’s office building.  “We reject regulatory interpretations, such as Petitioner’s here, which would have . . . illogical results and be inconsistent with the purpose of the pertinent regulatory and statutory scheme.”  EI Medical, Inc., DAB No. 3117, at 24 (2023).  Thus, the ALJ did not err in determining that the offense was related to the neglect or abuse of a patient.

Petitioner’s contention that the Information “makes no mention” of the sexual conduct alleged in the Complaint is irrelevant.  Petitioner was convicted of simple assault on a patient that came to him for dental treatment.  The facts alleged in the Complaint do not conflict with the basis for the assault charge listed in the Information, that Petitioner grabbed A.H. without her consent in an offensive manner in a parking lot adjacent to his dental office.  Compare I.G. Ex. 4, with I.G. Ex. 5, at 5.  Such an assault constitutes abuse of a patient.  See Rudman at 8-9 (finding that a petitioner’s conviction for second degree assault of a patient constituted abuse where sexual offense charges were dropped).  We find the ALJ’s conclusion that Petitioner was convicted of a misdemeanor offense relating to the abuse of a patient is supported by substantial evidence and free of legal error.

C. Petitioner's abuse of a patient occurred in connection with the delivery of a health care item or service.

The ALJ found that the requisite connection between Petitioner’s assault and the delivery of a health care item or service was established because the offense, related to patient neglect or abuse, was committed in connection with Petitioner’s overall delivery of dental services to A.H.  ALJ Decision at 10.  Petitioner contends that the ALJ failed to demonstrate that Petitioner’s conduct “sufficiently satisfies” the requirement for the conduct to be in connection with a healthcare item or service.  RR at 13, 20.

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The Board has held that the words “in connection with” in section 1128(a)(2) require only a “minimal nexus” between the neglect or abuse and the delivery of a healthcare item or service.  Hartnett at 10 (quoting Lindberg at 8); Kamron Hakhamimi, M.D., DAB No. 2408, at 8 (2011), appeal dismissed per stipulation, No. 2:11-cv-08836 GHK (JEMx) (C.D. Cal May 10, 2012); see also Steg at 7 (quoting Hartnett at 7) (“[T]he basic question in a section 1128(a)(2) exclusion case is simply whether there is a common sense nexus between the underlying offense and potential or actual harm to the health and well-being of a patient in the course of health care delivery.”).  In determining whether the requisite nexus exists, the ALJs and the Board may look at “the nature of the criminal offense” and to the “facts underlying the conviction.”  Reed at 20 (internal quotation marks omitted) (quoting Esohe Agbonkpolor, DAB No. 3002, at 8 (2020)).

Petitioner asserts that the decisions to which the I.G. cites, including Bruce Lindberg, D.C., DAB No. 1386 (1993), and Kamron Hakhamimi, M.D., Decision No. 2408 (2011), all “clearly demonstrated an abuse of their position of power over the victim” and “provide a more compelling demonstration of the nexus requirement . . . .”  RR at 14, 24 n. 9.⁵  However, the fact that precedential cases involve different examples of abuse to satisfy the requisite nexus element does not support a more limited view of section  1128(a)(2).

Petitioner also argues that the ALJ’s reliance on Patel, to “conclusively determine that [Petitioner]’s conduct falls within the definition of the Act” was “a misapplication of its holding.”  RR at 19.  Petitioner contends that Patel “presents radically different facts” from this case and addressed distinguishable claims.  Id. at 19.  Petitioner argues that, in relying on Patel, the ALJ failed to analyze how Petitioner’s conduct relates to the delivery of a healthcare item or service and how “the parking lot setting maintains the professional power dynamic inherent in the doctor patient relationship.”  Id. at 21.  Notwithstanding Petitioner’s contentions, we find that the ALJ sufficiently analyzed Petitioner’s underlying conduct and supported her findings in determining that his offense was in connection with delivery of a healthcare service.

Based on the evidence, Petitioner’s criminal offense related to his abuse of a patient in close connection – both temporally and spatially – with the delivery of a health care item or service.  At the time of the offense, Petitioner had just performed a dental procedure on A.H.  Petitioner accompanied A.H. out of the dental office and out of the building, and upon reaching A.H.’s car parked in the lot adjacent to Petitioner’s office, Petitioner grabbed her without consent in an offensive manner, causing bodily injury.  See ALJ Decision at 8; I.G. Ex. 4; I.G. Ex. 5, at 5.  We agree with the ALJ that these facts alone

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are sufficient to establish a minimal nexus between Petitioner’s assault conviction and the delivery of a healthcare service.  ALJ Decision at 8.
The Board’s decision in Patel explained that the plain language of section 1128(a)(2) does 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.”  Patel at 8 (emphasis omitted).  Thus, the Board found, a conviction is “not required to be for neglectful or abusive health care delivery” and the connection “need not be for misconduct in delivering health care . . . .”  Id. at 8, 8 n.2; see also 42 C.F.R. § 1001.101(b) (defining “delivery of a health care item or service” to include “the provision of any item or service to an individual to meet his or her physical, mental or emotional needs or well-being[,]” without requiring a clinical setting).

We find the ALJ correctly applied Patel and adequately addressed the requirement of a connection between the Petitioner’s offense and the delivery of a healthcare service.  The Board’s holding in Patel clearly explains that section 1128(a)(2) is not limited to instances where the conduct underlying the conviction took place during the provision of medical care.  Id. at 8.  As noted above, the Board has applied its holding in Patel in other instances where patient neglect or abuse occurred outside the delivery of a health care service.

In this case, the ALJ appropriately examined the nature of Petitioner’s criminal offense and the underlying facts in establishing a minimal nexus between Petitioner’s assault conviction and the delivery of a healthcare service.  Specifically, the ALJ found that Petitioner’s dentist-patient relationship with A.H. “placed him in a position of trust and authority that facilitated the assault” and that “A.H. would not have gone with Petitioner to the parking lot  . . . 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.”  ALJ Decision at 8; see also Scott D. Augustine, DAB No. 2043, at 5-6 (2006) (citing Salvacion Lee, M.D., DAB No. 1850 (2002) and collecting cases) (explaining that, in the context of section 1128(a)(1), an offense could be related to the delivery of an item or service under Medicare even if it did not directly involve the delivery of items or services).  We agree with the ALJ that these facts establish at least a minimal nexus between Petitioner’s offense and the delivery of a healthcare service.

D. The ALJ correctly interpreted section 1128(a)(2) of the Act.

Petitioner argues that the ALJ misinterpreted the statutory intent of section 1128(a)(2).  RR at 22-25.  Petitioner contends that the ALJ’s “broad interpretation” of the statute “undermines” its purpose which, petitioner argues is “to address specific abuses tied to the misuse of a provider’s power.”   RR at 23-25.  In support, Petitioner argues that the principals in Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984)

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apply.  RR at 22.  Chevron held that a federal agency’s interpretation of a statute should be accorded deference if the statute is ambiguous with respect to the specific issue.  Chevron at 842-43, 864-66.  Petitioner reasons that only a single interpretation of section 1128(a)(2) is supported, which is “to deter and prevent criminal behavior arising from a healthcare provider’s misuse of their position of power within the doctor-patient relationship.”  RR at 23 (emphasis omitted).

We note, and Petitioner acknowledges, that Chevron was overturned in Loper Bright Enters. v. Raimondo, 603 U.S. 369 (2024).  The Supreme Court held in Loper Bright that courts are required to exercise their independent judgment in deciding whether an agency acted within its statutory authority and proscribes courts from deferring to an agency interpretation of the law simply because a statute is ambiguous.  Loper Bright at 369.  Neither Petitioner nor the I.G. discusses or cites to Loper Bright.  In light of Petitioner’s arguments, however, we briefly address the issue.  The Board is not a federal court, it is an “appellate adjudicative body in an administrative appeal process.”  Arizona Health Care Cost Containment Sys., DAB No. 2824, at 8 (2017), aff’d, No. CV-17-04462, 2020 WL 805235 (D. Ariz. Feb. 18, 2020).  Thus, “[w]hile the various court approaches to reviewing agency action inform [the Board’s] thinking, they do not directly apply to our role.”  Missouri Dep’t of Soc. Servs., DAB No. 3156, at 22 (2024) (quoting Orton Motor Co., DAB No. 2717, at 6 (2016), aff’d, 884 F.3d 1205 (D.C. Cir. 2018) and citing Arizona at 8).  The Board’s analytical approach to deference is as follows:

When the language of a statute or regulation is clear, the Board will apply it by its terms.  [N.J. Dep’t of Hum. Servs., DAB No. 2780, at 5 (2017).]  When the language of a statute or regulation is ambiguous, the Board generally defers to the [federal] agency’s interpretation of the text if it is reasonable and the nonfederal party had timely and adequate notice of that interpretation or did not rely to its detriment on another reasonable interpretation.  Meindert Niemeyer, M.D., DAB No. 2865, at 8 (2018).

Missouri at 22 (internal quotation marks omitted).

Despite Petitioner’s contentions, the Board has held that the plain language of section 1128(a)(2) does not limit the I.G.’s exclusion authority to only individuals convicted of a crime of neglectful or abusive health care delivery.  See Patel at 8 (“The plain language of the statute clearly covers a broader reach.”); see also Reed at 20 (finding the requisite nexus where a petitioner’s disorderly conduct charge was “related to” allegations that she failed to identify a patient’s head injury and start a neurological check); Steg at 8-9 (finding the requisite nexus established where an Affidavit of Probable Cause “ma[de] it clear that the neglect suffered by the three residents was the direct consequence of [p]etitioner’s decisions”); Hartnett at 9-11 (finding that petitioner’s conviction arising

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from “alleged failure” to report a laboratory result related to patient neglect in connection with the delivery of a health care service).

Further, as the ALJ explained, Congress’s use of the phrase “in connection with” is consistent with its stated purpose of section 1128(a)(2), which is to protect Federal programs “from fraud and abuse, and to protect the beneficiaries of those programs from incompetent practitioners and from inappropriate or inadequate care.”  S. Rep. No. 100-109, at 2, 5 (1987), reprinted in 1987 U.S.C.C.A.N. 682, 682, 686; ALJ Decision at 9; see also Bohner v. Burwell, No. 15-4088, 2016 WL 8716339, at 10 (E.D. Pa. Dec. 2, 2016) (indicating that Congress granted the Department of Health and Human Services “broad authority to protect federal health care programs and their beneficiaries”), aff’g, Richard E. Bohner, DAB No. 2638 (2015); Harkonen v. Sebelius, No. C 13-0071 PJH, 2013 WL 5734918, at 7 (N.D. Cal. Oct. 22, 2013)(affirming the Board’s upholding of the I.G.’s exclusion of a practitioner under section  1128(a)(3) and noting that the phrase “in connection with” is “generally interpreted expansively”), aff’g, W. Scott Harkonen, M.D., DAB No. 2485 (2012).⁶

We find that the ALJ appropriately interpreted section 1128(a)(2) in determining that the facts upon which Petitioner’s conviction was based show that Petitioner’s exclusion is consistent with the purpose and intent of the Act.  Thus, we find Petitioner’s assertion that the “statutory nexus is absent” because he did not exert any “control or influence” over A.H. has no merit.  RR at 24-25.

Conclusion

For the reasons stated above, we affirm the ALJ Decision.

Endnotes

¹ Section 1128 of the Act is codified at 42 U.S.C. § 1320a–7.  The current version of the Act can be found 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.  Cross-reference tables for the Act and the United States Code can be found at https://www.ssa.gov/OP_Home/comp2/G-APP-H.html.

² The facts in this section are drawn from the record evidence on which the ALJ made her decision.

³ The Affidavit states that the crimes were committed on May 20, 2021, and the complaint cites to both on or about May 19, 2021, and on or about May 20, 2021, but the subsequent Information (I.G. Ex. 4) charges the offense as “on or about” May 19, 2021.

⁴ Several of Petitioner’s submissions before the ALJ do not contain page numbers.  For uniformity and clarity, we cite to the Microsoft Word document page numbers of Petitioner’s submissions where internal page numbers were omitted.  See, e.g., P. Obj.

⁵ Petitioner also addressed the I.G.’s citation to Peter C. Loeser, M.D., DAB CR1596 (2007).  ALJ decisions (such as DAB CR1596), however, are not precedent binding on the Board.  Maysville Nursing & Rehab. Facility, DAB No. 2317, at 13 n.10 (2010).

⁶ We note the District Court’s Harkonen decision declined to adopt Plaintiff’s interpretation of section 1128(a)(3), in part, because it “depart[ed] from [Board] precedent.”  Harkonen, 2013 WL 5734918, at 8.