Megan Nicole Crnarich, DAB No. 3212 (2025)

FINAL DECISION ON REVIEW OF ADMINISTRATIVE LAW JUDGE DECISION

Meagan Nicole Crnarich (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)(2) of the Social Security Act (Act). Megan Nicole Crnarich, DAB CR6698 (2025) (ALJ Decision).1 The ALJ concluded that the I.G. had a lawful basis to exclude Petitioner based on her 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 (42 U.S.C. + 1320a-7(a)(2)) 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, 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.”2 Act § 1128(a)(2); see also 42 C.F.R. § 1001.101(b). 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 mandatory minimum period of an exclusion imposed under section 1128(a) is five

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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).

If the I.G. determines exclusion is warranted, the I.G. will send written notice to the excluded individual or entity identifying, among other things, the basis for the exclusion, the length of the exclusion, and the factors, if any, that the I.G. considered in determining the length of the exclusion period. 42 C.F.R. § 1001.2002(a), (c).

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.” Id. §§ 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).

The ALJ issues an “initial decision” based on the record developed before the ALJ. Id. § 1005.20(a). A party dissatisfied with an ALJ decision may appeal the decision to the Board. Id. § 1005.21(a). The Board may, among other actions, affirm, reverse, or remand any exclusion determined by the ALJ. Id. § 1005.21(g).

Case Background3

Petitioner was a Registered Nurse and Assistant Director of Nursing (ADON) at Canfield Healthcare Center (facility) in Youngstown, Ohio. I.G. Ex. 4, at 1, 4; I.G. Ex. 5, at 2; ALJ Decision at 4. In that capacity, Petitioner supervised facility staff and was responsible for the well-being of residents. I.G. Ex. 4, at 4. Criminal charges were brought against Petitioner following the death on October 8, 2021, of a resident (C.G.) who was observed in bed with “extremely soiled pillows and bedsheets, severe lice infestation, and an open wound with puss on the resident’s right ear.” ALJ Decision at 4 (citing I.G. Ex. 5, at 4, internal quotation marks removed).

A Referral Memo from the Medicaid Fraud Control Unit of the Ohio Attorney General’s Office stated that based on an investigation into the resident’s death at the facility, Petitioner:

[F]ailed to ensure and provide resident [C.G.] with the requisite standard of care during the lice infestation from September 14, 2021 to October 8, 2021. [Petitioner] also provided the Ohio Department of Health [ODH] with false documentation regarding the lice during their administrative

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investigation that began on October 19, 2021 and ended on October 21, 2021.

I.G. Ex. 5, at 2. The investigation found that Petitioner had not documented the lice infestation upon its discovery and, after the resident’s death, created backdated documentation of treatment to mislead ODH. Id. at 5, 7-8; see ALJ Decision at 4 (“The presence of lice was never documented in the resident’s progress notes; the problem was never addressed in the resident’s care plan.”; “In an attempt to deceive the surveyors, Petitioner wrote new statements and backdated information.”).

Based on the findings of the investigation by the Medicaid Fraud Control Unit, Petitioner was charged on September 28, 2023, with three misdemeanor counts: (1) Falsification, in violation of Ohio Rev. Code § 2921.13(A)(3), for “knowingly making a false statement” by “creating documents to give to the Ohio Department of Health to mislead them in their investigation”; (2) Gross Patient Neglect, in violation of Ohio Rev. Code § 2903.34(A)(2), for committing “gross patient neglect when she knowingly failed to provide proper care” to a resident “with the known lice infestation and ear wound . . . leading to physical harm and serious physical harm to [the resident]”; and (3) Patient Neglect, in violation of Ohio Rev. Code § 2903.34(A)(3), for “recklessly fail[ing] to provide proper care” to a resident “with the known lice infestation and ear wound . . . leading to serious physical harm to [C.G.].” I.G. Ex. 3, at 1-2; I.G. Ex. 4, at 1-2; ALJ Decision at 5.

In a Probable Cause Affidavit, a Special Agent of the Ohio Attorney General’s Office, Medicaid Fraud Control Unit stated that Petitioner became aware of a resident having a lice infestation on or before September 14, 2021. I.G. Ex. 4, at 4; ALJ Decision at 4. Despite this knowledge, Petitioner “purposefully did not document the infestation of C.G., leading to continuity of care issues until the death of C.G. on October 8, 2021.” I.G. Ex. 4, at 4.4 During the lice infestation, staff notified Petitioner of C.G.’s worsening condition and ear wound but Petitioner did not take additional steps to address C.G.’s condition. Id. The Special Agent also reported that during the investigation into the resident’s death, Petitioner “admit[ted] to creating documents to provide to [the Ohio Department of Health] as if they were made concurrently with care provided for C.G.” Id.

On October 4, 2024, Petitioner pleaded guilty to two misdemeanor counts of an amended charge, Obstructing Official Business, in violation of Ohio Rev. Code § 2921.31(A). I.G.

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Ex. 2, at 1; ALJ Decision at 5.5 The municipal court accepted Petitioner’s guilty plea and sentenced Petitioner to 90 days of incarceration, suspended, and two years of “Reporting Probation.” I.G. Ex. 2, at 2; I.G. Ex. 3, at 1-2; ALJ Decision at 5. The municipal court also ordered Petitioner to pay a $150 probation fee and complete 40 hours of community service. I.G. Ex. 2, at 2, 3; ALJ Decision at 5.

By letter dated December 31, 2024, the I.G. notified Petitioner that she was being excluded under section 1128(a)(2) of the Act from participation in Medicare, Medicaid and all federal health programs because of her “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.” I.G. Ex. 1, at 1; ALJ Decision at 2.

ALJ Proceedings and Decision

Petitioner timely requested ALJ review. Request for Hearing, E-File Document No. 1 (RFH); ALJ Decision at 2. After a pre-hearing conference, the I.G. submitted a brief and five exhibits (I.G. Exs. 1-5), while Petitioner submitted a brief (P. ALJ Br.). ALJ Decision at 2. The I.G. submitted a reply brief. Id. The parties agreed that an in-person hearing was not necessary. Id. at 3.

Petitioner objected to I.G. Ex. 4, the Criminal Complaint and attached Probable Cause Affidavit, because Petitioner “did not plead to, nor was she found guilty of any charges in the original Complaint.” P. ALJ Br. at 4-5. The ALJ overruled Petitioner’s objection, noting that an ALJ admits relevant and material evidence so long as it is not privileged or unduly prejudicial. ALJ Decision at 2 (citing 42 C.F.R. § 1005.17(c), (d), (e)). The ALJ found the Criminal Complaint and Probable Cause Affidavit were relevant and material because “[t]hey directly address the question of how [Petitioner’s] crimes were related to the neglect or abuse of patients, in connection with the delivery of a health care item of service.” Id. at 3. The ALJ further found the evidence to be reliable. Id. at 6 (“[T]he IG documents have the indicia of reliability. The drafters are identified. They were unbiased professionals and had no interest in the result.”).

Petitioner did not dispute that she was convicted of two criminal offenses but argued that the I.G. failed to meet its burden to show that the conviction related to patient neglect or abuse. P. ALJ Br. at 1-2, 9-16; ALJ Decision at 5. Petitioner argued the conviction had no nexus to patient abuse or neglect because the resident died before Petitioner created the postdated documentation of prior treatment and care of the resident’s lice infestation, the basis for Petitioner’s conviction. P. ALJ Br. at 9; ALJ Decision at 5. Petitioner also argued her conviction was not related to patient neglect or abuse because her offenses entailed only “an effort to recreate accurate records of treatment” and she did not

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specifically admit to the facts underlying the charges against her (as stated in the Probable Cause Affidavit) and the I.G. did not establish by a preponderance of the evidence that patient neglect occurred. P. ALJ Br. at 9-14; ALJ Decision at 5.

The ALJ affirmed the exclusion, finding that Petitioner was convicted of criminal offenses related to the neglect of a patient in connection with the delivery of a health care item or service and must be excluded from program participation. ALJ Decision at 5-7. The ALJ concluded that although Petitioner argued her conviction was not related to the neglect or abuse of a resident and that no patient neglect or abuse occurred in connection with the delivery of a healthcare item or service, Petitioner offered no alternative explanation for her conduct and “presented no evidence to contradict the information included in the [I.G.’s] documents.” Id. at 5, 6. The ALJ noted that the I.G. exhibits “have the indicia of reliability” and found that Petitioner did not testify or submit any evidence, including her own written declaration, challenging the Probable Cause Affidavit (I.G. Ex. 4) or the Referral Memo from the Ohio Attorney General’s office (I.G. Ex. 5). Id. at 6. The ALJ further determined that Petitioner could have obtained the documents cited in the I.G.’s exhibits, such as the emergency medical services (EMS) report, police report, and coroner’s report, to verify the accuracy of the I.G.’s information. Id.

The ALJ also rejected Petitioner’s suggestion that no patient neglect occurred, explaining that “neglect is broadly defined” to “fulfill the purposes of section 1128(a)(2).” Id. (applying the “common and ordinary meaning of the word ‘neglect’”) (citing Robert C. Hartnett, DAB No. 2740, at 9 n.7 (2016)). The ALJ found that the evidence established the resident was “unquestionably neglected” as she “was infested with lice, had a serious ear infection, and was found in ‘deplorable conditions,’” and Petitioner, as the ADON, “carried some responsibility for ensuring” the resident received adequate care. Id. at 6. (quoting I.G. Ex. 5, at 4). In further connecting Petitioner’s obstruction offense to patient neglect, the ALJ stated: “Even putting aside Petitioner’s personal responsibilities for the resident’s welfare, she falsified treatment records in order to cover up the resident’s condition and staff’s response, or lack of response.” Id. The ALJ further determined that Petitioner’s conviction related to patient neglect because “accurate and precise documentation is critical for ensuring resident safety.” Id. The ALJ concluded that Petitioner must be excluded from program participation for five years because Petitioner was convicted of criminal offenses related to the neglect of a patient in connection with the delivery of a health care item or service. Id. at 7.

Petitioner timely requested Board 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). The Board reviews a disputed issue of law as to whether the ALJ’s decision is “erroneous.” Id.; see

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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.6 “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 conclusion that there is a basis to exclude Petitioner pursuant to section 1128(a)(2) of the Act for the statutory minimum of five years is supported by substantial evidence and free of legal error.

On appeal, Petitioner does not dispute being “convicted of a criminal offense” within the meaning of the Act but denies the offense was “related to” neglect of a resident. Petitioner argues that the ALJ “adopted a lay dictionary definition of ‘neglect’ rather than the clinical and regulatory standard applicable to long-term care” at 42 C.F.R. § 488.301 and that the I.G.’s evidence does not support a finding of neglect. P. Br. at 7-9. Petitioner argues the ALJ improperly shifted the evidentiary burden to her by noting that Petitioner did not submit any evidence or alternative explanation for her criminal conviction. P. Br. at 5-6. Petitioner also argues the ALJ erred in relying on I.G. Exhibit 5, the Referral Memo, to determine the conviction related to patient neglect while having “discounted” the memo’s “detailed description of the treatments provided and measures taken to address the lice infestation.” Id. at 6-7. Petitioner further argues her conviction does not relate to the resident’s ear wound. Id. at 9-10.

None of Petitioner’s arguments demonstrate that substantial evidence does not support the ALJ decision or that it is legally erroneous.

A. Substantial evidence supports the ALJ’s determination that Petitioner was convicted of a criminal offense “related to” neglect of a patient in connection with the delivery of a health care item or service.

1. The ALJ applied the correct definition of neglect.

As an initial matter, the ALJ did not apply an incorrect definition of neglect to determine that Petitioner’s conviction related to patient neglect. Neither section 1128(a)(2) nor 42 C.F.R. Part 1001 defines “neglect.” Hartnett at 9 n.7. However, “[t]he Board has never applied the section 488.301 definition of neglect in reviewing an exclusion under

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section 1128(a)(2) of the Act.” Reed at 14.7 Instead, consistent with the purpose of section 1128(a)(2), the Board has applied the common and ordinary meaning of “neglect.” See, e.g., Hartnett at 9 n.7 (applying the “common and ordinary meaning” of neglect, which is “to give little attention or respect to” or “to leave undone or unattended to especially through carelessness”) (quoting http://www.merriam-webster.com/dictionary/neglect); Janet Wallace, L.P.N., DAB No. 1326, at 10 (1992) (upholding exclusion based, in part, on the common definition of “neglect,” meaning “to fail to care for or attend to sufficiently or properly”) (citing Webster’s New World Dictionary, 3d College Ed. (1988)); see also Summit Health Ltd., dba Marina Convalescent Hosp., DAB No. 1173, at 8 (1990) (“The exclusion law is a federal law designed to protect the integrity of the Medicare and Medicaid programs. Giving these unambiguous terms their common and ordinary meaning reasonably fulfills that purpose.”). Therefore, the ALJ did not err in applying the common and ordinary meaning of neglect in reviewing Petitioner’s exclusion. See Reed at 14.

2. Substantial evidence demonstrates the resident suffered neglect.

Under the definition of neglect applicable to I.G. exclusions, the ALJ did not err in determining that “the evidence establishes that the resident was unquestionably neglected.” ALJ Decision at 6. Substantial evidence supports the ALJ’s conclusion that Petitioner’s offenses related to the neglect of the resident.

According to the Referral Memo (but not, Petitioner has conceded, contemporaneous records of the resident’s care), on approximately September 14, 2021, a nurse aide (NA J.B.) discovered lice on C.G. when giving her a shower. I.G. Ex. 5, at 2, 3, 5, 8. NA J.B. notified multiple facility staff, including Petitioner. Id. at 3. The facility purchased an over-the-counter medication because the original prescription the facility called in was outdated and was not filled. Id. Petitioner represented that NA J.B. assisted her with administering the first lice treatment on the day the lice was found but NA J.B. claimed he administered the medication himself and Petitioner came into the room at some point to observe. Id. at 3-4. NA J.B. also noticed that C.G. had an ear wound when the first lice treatment was provided to C.G. and mentioned the ear wound to Petitioner. Id. at 4. Throughout the course of the lice infestation, other facility staff also reported C.G.’s ear wound to Petitioner. Id. However, Petitioner claimed that she was unaware of the ear wound until after C.G. passed away on October 8, 2021. Id. at 2, 4.

Petitioner and other staff administered a second treatment approximately seven to ten days after the first treatment, and Petitioner stated that at some point, she administered a third lice treatment. Id. Petitioner stated she “believed [C.G.] was given Benadryl for the scratching” and represented that she and another staff member cut the resident’s hair. Id. (emphasis in original). Without any first-hand knowledge, Petitioner indicated the

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facility did not shave C.G’s hair because C.G.’s guardian refused to allow it; however, C.G.’s guardian denied ever being asked about shaving C.G.’s head. Id. The Referral Memo also indicated that at some point the facility sprayed the resident’s room with an over-the-counter lice treatment, removed and changed the resident’s bed, and deep cleaned the room, although there was no formal record of these measures being completed. Id.

On October 8, 2021, a shift floor nurse who went into C.G.’s room to administer medications and two nurse aides who had been wiping blood off C.G.’s arms, hands, and face discovered the resident was a “full code.” Id. One of the nurse aides reported that C.G.’s sheets were soiled and C.G. had scabs and “a lot of dried blood under her nails.” Id. Staff started CPR but were unable to get a pulse and called EMS. Id. The EMS report noted the resident had “blood coming from both ears and there was blood on the bed covering both pillows” and the blood appeared to be “hours old and not fresh.” Id. The report stated that C.G. “‘was in deplorable conditions and covered in bugs’” and the resident’s “hair was moving due to the ‘significant lice infestation.’” Id. (emphasis in original). EMS called the police department because of the resident’s condition. Id. The resident was pronounced dead and taken to the coroner’s office, which reported that C.G.’s body had “extremely soiled pillows and bedsheets, severe lice infestation, and right ear open wound/sore with puss.” Id. C.G.’s body was then taken to a funeral home. Id. at 5. The funeral home owner stated that C.G.’s body “was so infested with bugs, that they had to hire an exterminator and used two bug bombs to bomb the embalming room.” Id. (further commenting that he had not seen a body in that state in 42 years).

Petitioner admitted she did not document the lice infestation in the resident’s record when it was discovered. Id. at 5, 8. Petitioner stated: “‘I never documented it, it seems like nothing was ever done and therefore other people couldn’t do their stuff accurately because I didn’t document it.’” Id. at 5. Petitioner explained that a regional nurse “instructed” her not to document that the resident “had lice on the day it was found because [ODH] happened to be at the facility regarding an unrelated complaint.” Id. In other words, Petitioner failed to document the lice infestation to prevent or obstruct ODH surveyors from discovering a new problem while they were investigating an unrelated complaint. Petitioner also admitted that after C.G.’s death, she provided backdated statements to ODH and had “wr[itten] them the day ODH was in the building.” Id. at 7. Petitioner “acknowledged it was wrong to complete the statements after the fact but she did it anyway.” Id. Again, the falsified treatment records were created to mislead the ODH surveyors because the facility had “minimal documentation” about the treatment of C.G. Id. at 8. Petitioner further conceded that C.G. was neglected and told investigators that “residents should not have been in the condition that [C.G.] was in and that ‘it’s basically inhumane[;] they should be taken care of.’” ALJ Decision at 4 (quoting I.G. Ex. 5, at 7).

As the ALJ found, this record demonstrates that the resident “was infested with lice, had a serious ear infection, and was found in ‘deplorable conditions,’” that “[t]he presence of

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lice was never documented in the resident’s progress notes; the problem was never addressed in the resident’s care plan,” and that Petitioner “falsified treatment records in order to cover up the resident’s condition and staff’s response, or lack of response.” ALJ Decision at 4, 6.

Petitioner disputes the neglect finding, claiming that “the reality from the evidence is that the Petitioner ensured that the prescribed treatment was administered” – though not with the prescription medication the physician ordered – “and everyone involved with [C.G.’s] care was aware of the infestation despite it not appearing in her records.” P. Br. at 8. Yet, the disturbing conditions observed upon the resident’s death by EMS, the coroner, and the funeral home owner undermine Petitioner’s claims that she or anyone else adequately addressed C.G.’s lice infestation and provided all necessary care. C.G.’s sheets were extremely soiled, she had “hours old” dried blood under her nails and on her pillows, her hair was moving due to the significant lice infestation, and EMS staff felt obliged to call law enforcement. I.G. Ex. 5, at 4-5. Those undisputed facts cast doubt on staff claims that the resident or her room and bedding were treated for lice and in any event demonstrate that whatever care was provided was markedly inadequate. This record establishes that C.G. suffered from neglect under any reasonable definition of that term.

Additionally, Petitioner’s failure to even document that C.G. had lice when it was first discovered supports a finding of patient neglect. The ALJ reasonably determined that “accurate and precise documentation is critical for ensuring resident safety” and Petitioner herself admitted that her failure to document the infestation prevented others from “do[ing] their stuff accurately.” ALJ Decision at 6; I.G. Ex. 5, at 5. Petitioner admittedly failed to document the lice infestation – a change in C.G.’s condition – because ODH surveyors were at the facility investigating a different complaint. See I.G. Ex. 5, at 5. Petitioner’s failure to document a change in the resident’s condition so that others could appropriately treat the condition further supports a finding of patient neglect. See Hartnett at 9 (finding that a petitioner’s failure to review a resident’s laboratory test result was “patient neglect by omission”).

Petitioner takes issue with the ALJ’s citation, as evidence of neglect, of Petitioner’s statement that staff and other professionals could not “do their stuff accurately,” which Petitioner dismisses as “an emotional comment made in response to the resident’s death, not an admission of substandard care.” P. Br. at 8 (citing ALJ Decision at 6). Petitioner argues her statement “does not specify what treatments were omitted that were required” and that the ALJ did not link Petitioner’s statement to an actual act or omission of necessary care. Id. Petitioner also dismisses her description of the resident’s condition as “basically inhumane” as having been made “[o]ut of a sense of guilt.” Id. at 5. Before the ALJ, Petitioner did not dispute having made those statements, and her claim on appeal that “no one involved in the care” of the resident was “impact[ed] in any way” by her failure to document the infestation contradicts her prior admission that her failure to document the lice infestation and treatment while the resident was still alive prevented

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staff from rendering needed care. Id. at 8. As the ALJ found, weighing the statement in conjunction with the rest of the evidence in the record, Petitioner’s statement refers specifically to her failure to document the lice infestation in C.G.’s record and reliably establishes a finding of patient neglect. Finally, Petitioner has offered no testimony to support the explanations in her brief (which are not evidence) of why she made the statements reported in the Referral Memo and why they are not incriminating.

Petitioner also argues the I.G. failed to establish a breach of any standard of care. Id. Section 1128(a)(2) does not mandate exclusion based on a breach of the standard of care but requires only a conviction of a criminal offense related to neglect or abuse of patients in connection with the delivery of a health care item or service. Applying the common and ordinary meaning of neglect, substantial evidence in the record supports the ALJ’s conclusion that the resident suffered neglect while under Petitioner’s care.

3. Substantial evidence demonstrates that Petitioner’s conviction was for offenses related to the neglect the resident suffered.

As Petitioner acknowledges, section 1128(a)(2) “simply states that the offense involved must ‘be related’ to the neglect or abuse of a patient.” Reed at 15 (quoting Narendra M. Patel, M.D., DAB No. 1736, at 10 (2000), aff’d, 319 F.3d 1317 (11th Cir. 2003)); P. Br. at 7. “[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.” Reed at 15 (emphasis in original). The basic question is “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.” Hartnett at 7 (emphasis in original).

To determine 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) (quoting Summit S. Shah, DAB No. 2836, at 7 (2017)). ALJs are not limited to considering only those facts established in the underlying criminal proceedings. See Patel at 10 (“[N]othing in section 1128(a)(2) . . . requires that the necessary elements of the criminal offense must mirror the elements of the exclusion authority, nor that all statutory elements required for an exclusion must be contained in the findings or record of the state criminal court.”). 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. Chaim Charles Steg, DAB No. 3115, at 8 (2023); Nancy L. Clark, DAB No. 2989, at 8-10 (2020) (affirming ALJ’s reliance on prosecution memorandum and declaration summarizing investigative findings of an assistant attorney general in finding the requisite nexus between petitioner’s offense and patient neglect or abuse).

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Where a petitioner pleaded guilty to an amended lesser charge, the Board has concluded that an ALJ may consider all the record evidence to find the requisite nexus between the conviction and patient neglect. See Maria Cristina Gotoc Joshi, DAB No. 3184, at 11 (2025) (“[T]hat 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.”); 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 of a patient,” and holding that the original criminal information is “relevant to examining the nature of Petitioner’s criminal offense”); Hartnett at 7-9 (affirming ALJ’s finding that petitioner’s conviction of an unclassified misdemeanor related to neglect of a patient based on allegations in the criminal complaint).

The record demonstrates that the two counts of Obstructing Official Business to which Petitioner pleaded guilty stemmed from conduct described in the Complaint and Probable Cause Affidavit and Referral Memo. I.G. Exhibit 3, which the I.G. identified as “Court Docket,” shows that the offense of Obstructing Official Business was amended from the original charges of Falsification and Gross Patient Neglect. I.G. Ex. 3, at 1-2. Here there is no indication that the obstructing official business charges were based on facts or circumstances different from those set forth in the charging documents and Referral Memo, particularly with respect to Petitioner’s conduct in omitting information from and falsifying facility treatment records. See Reed at 18. The ALJ thus properly considered the Complaint and Probable Cause Affidavit and Referral Memo in finding that Petitioner’s conviction was for offenses related to patient neglect. See Joshi at 12.

Petitioner also argues there is no nexus or common-sense connection between her conviction and neglect of the resident’s ear wound because the “obstruction was based solely upon the backdating of records” by her during the Ohio Department of Health’s investigation beginning October 19, 2021 and the Referral Memo “indicates that these statements” admitting to creating backdated records “only addressed the lice infestation . . . and had nothing to do with the ear wound.” P. Br. at 9-10.

As discussed above, however, the ALJ properly relied on documents relating to the original charges (Complaint and Probable Cause Affidavit, Referral Memo), which establish the connection or nexus between the obstruction charges to which she pleaded guilty and the neglect the resident suffered that Petitioner attempted to cover up. The ALJ properly considered “all evidence of the nature of and circumstances surrounding the offense” to determine that Petitioner’s conduct “included the elements necessary for mandatory exclusion.” Hartnett at 10 (quoting Patel at 10). Even absent information

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about the ear wound, the record concerning the lice infestation alone is sufficient to support the exclusion.

For all these reasons, we find that the ALJ’s conclusion that Petitioner was convicted of criminal offenses relating to the neglect of a patient in connection with the delivery of a health care item or service is supported by substantial evidence and free of legal error.8

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

Petitioner argues that the ALJ improperly shifted the evidentiary burden to her because the ALJ noted that Petitioner did not submit any evidence or alternative explanation for the facts the I.G. presented. P. Br. at 6; see ALJ Decision at 4. Petitioner claims that “instead of focusing on the evidence offered by the [I.G.], the ALJ used the Petitioner’s failure to offer any new evidence to counter the [I.G.]’s evidence” to establish that neglect of a patient occurred. P. Br. at 6.

Petitioner’s argument misapprehends the ALJ’s findings and analysis. The ALJ did not improperly shift the burden of proof to Petitioner. The ALJ correctly determined that Petitioner did not provide any evidence to refute the evidence in the I.G.’s exhibits. On appeal, Petitioner did not challenge the ALJ’s admission of I.G. Exhibit 4 (Complaint and Probable Cause Affidavit). The ALJ correctly found the Complaint and Probable Cause Affidavit relevant and reliable. ALJ Decision at 4, 6. The ALJ noted the I.G.’s evidence was reliable because it identified the drafters, who were “unbiased professionals and had no interest in the result.” Id. at 6. The ALJ found that the I.G. met its burden to show that Petitioner was convicted of an offense that related to neglect by establishing, as discussed above, that (i) Petitioner did not document the lice infestation in the resident’s record, and (ii) Petitioner falsified treatment records to cover up the resident’s condition and the staff’s lack of response. Id. at 5-6. Petitioner failed to rebut the I.G.’s showing with any evidence as she did not submit any proposed exhibits with her brief, and no written direct testimony such as an affidavit, to challenge the facts set forth in the I.G.’s documents. See Joshi at 13. Moreover, Petitioner made no showing that her conviction for obstruction was based on anything other than the conduct described in the I.G.’s exhibits, particularly as it relates to omitting information from and falsifying facility treatment records. 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

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evidence, that would undercut the conclusion that Petitioner’s offense related to patient neglect.

Petitioner also asserts the “ALJ’s reliance on silence or lack of counterproof constitutes legal error.” Id. (citing Joanne Fletcher Cash, DAB No. 1725 (2000)). As the I.G. pointed out (I.G. Br. at 6), the Board in Cash did not consider the argument that the ALJ improperly relied on the petitioner’s failure to submit any evidence rebutting the facts the I.G. presented. In Cash, the Board found only that the ALJ’s finding that the petitioner objected to was not necessary to the ALJ’s determination that the petitioner was properly excluded pursuant to section 1128(a)(1). Cash at 6-7.

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)); James O. Boothe, DAB No. 2530, at 2-3 (2013). On appeal, Petitioner again does not cite any evidence in the record that detracts from the weight of the I.G.’s evidence. See Joshi at 13.Petitioner cites nothing in the record that undermines the ALJ’s finding that a preponderance of the evidence shows that Petitioner’s conviction related to the neglect of a patient in connection with the delivery of a health care item or service.

C. The ALJ appropriately weighed the evidence in I.G. Exhibit 5.

Petitioner argues the ALJ erred by inconsistently relying on I.G. Exhibit 5 (Referral Memo). Petitioner contends the ALJ erred by relying on the Referral Memo in finding that Petitioner’s offenses related to patient neglect and that “staff did not document the lice infestation nor treatments staff provided (if any),” while ignoring that the Referral Memo “outline[s] the history of care administered for the lice infestation,” as Petitioner argued to the ALJ. ALJ Decision at 4; P. Br. at 6. Petitioner argues that her creation of after-the-fact documentation of lice treatment does not the undermine the veracity of that documentation because the Referral Memo “contained a history of these treatments and there was nothing to indicate that the records created by [Petitioner] falsified anything in relation to which treatments were provided, only that the records were created after the fact.” P. Br. at 7.

It is well-settled that the Board defers to an ALJ’s evidentiary rulings unless there is a compelling reason not to do so. Clark at 8-9 (citing HeartFlow, Inc., DAB No. 2781, at 19 (2017)); see also Adel A. Kallini, MD, DAB No. 3021, at 11 (2020) (“The Board will also defer to the ALJ’s determinations of the credibility accorded to witness testimony and of the weight given to evidence, absent a compelling reason to do otherwise.”); Barry D. Garfinkel, M.D., DAB No. 1572, at 6 (1996) (The Board “generally accord[s]

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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)).

Petitioner has not shown that the ALJ improperly weighed the record evidence and presents no compelling reason not to defer to the ALJ’s assessment of that evidence. Given the condition of the resident noted in the EMS and coroner reports and the statements by the owner of the funeral home (including that EMS found the resident’s condition so alarming they called the police), the ALJ reasonably questioned whether facility staff provided any meaningful treatment of the resident’s lice infestation. The ALJ also found the Referral Memo reliable as the drafters of the memo “had no interest in the result” and Petitioner “presented no evidence to contradict the information included in the [I.G.]’s documents.” ALJ Decision at 6. As noted earlier, the ALJ also cited Petitioner’s admission to investigators that “residents should not have been in the condition that [C.G.] was in and that ‘it’s basically inhumane[;] they should be taken care of.’” ALJ Decision at 4 (citing I.G. Ex. 5 at 7). Moreover, even if facility staff did attempt to treat the lice infestation, the ALJ concluded that Petitioner’s conviction related to neglect because Petitioner’s undisputed failure to document the lice infestation and any treatments (to avoid ODH scrutiny) prevented other facility staff from providing appropriate care to the resident. Id. at 6 (“Because accurate and precise documentation is critical for ensuring resident safety, her crimes were, in fact, related to patient neglect.”). Additionally, Petitioner’s creation of falsified treatment records to mislead ODH investigators following the death of C.G. plainly related to patient neglect because it was done, as the ALJ found, “to cover up the resident’s condition and staff’s response, or lack of response.” Id.

Therefore, we defer to the ALJ’s evidentiary determination as to the credibility of the evidence regarding the purported measures the facility took to address the lice infestation given the other evidence presented in the Referral Memo and the Complaint and Probable Cause Affidavit. See HeartFlow at 19 (“In general, the Board does not disturb the ALJ’s evidentiary determinations unless there is compelling reason to do so.”).

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Conclusion

We affirm the ALJ Decision.