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                              Shelia Ann Reed, DAB No. 3059 (2022)
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Shelia Ann Reed, DAB No. 3059 (2022)








  
  
    

  
      
Department of Health and Human Services 
    DEPARTMENTAL APPEALS BOARD
          Appellate Division





FINAL DECISION ON REVIEW OF ADMINISTRATIVE LAW JUDGE DECISION
Docket No. A-22-28Decision No. 3059March 31, 2022

        
              
    

      Shelia Ann Reed (Petitioner) appealed the November 24, 2021 decision of an Administrative Law Judge (ALJ), affirming the determination of the Inspector General (I.G.) to exclude Petitioner from participating in all federal health care programs for a mandatory minimum period of five years under section 1128(a)(2) of the Social Security Act (Act).1
  *Shelia Ann Reed*, DAB CR5983 (ALJ Decision).  The ALJ concluded that the I.G. had a lawful basis to exclude Petitioner based on her conviction of a criminal offense relating to neglect or abuse of a patient in connection with the delivery of a health care item or service.  We affirm the ALJ Decision because it is supported by substantial evidence and free of legal error.

Legal Background

Section 1128(a)(2) of the Act requires the Secretary of Health and Human Services (the Secretary) to exclude an individual from participation in all federal health care programs if that individual has been convicted 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).2
  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).

**Page 2**

An individual is considered “convicted” within the meaning of section 1128(a) when, among other things, “a judgment of conviction has been entered against the individual . . . by a Federal, State, or local court” or “when a plea of guilty or nolo contendere by the individual . . . has been accepted by a Federal, State, or local court.”  Act § 1128(i)(1), (3);*see also* 42 C.F.R. § 1001.2 (defining “*Convicted*”).  “It is the fact of the *conviction* which causes the exclusion.”  *Peter J. Edmonson*, DAB No. 1330, at 4 (1992) (underlining replaced by italics).  The general purpose of section 1128 is to provide “protection for federally funded programs and their beneficiaries and recipients” by excluding “potentially untrustworthy individuals or entities based on criminal convictions.”  *Id*.

An excluded individual may request a hearing before an ALJ to challenge the exclusion.  42 C.F.R. §§ 1001.2007(a), 1005.2(a).  Where, as here, the exclusion is mandatory and is imposed for the minimum five-year period, the excluded individual may request a hearing only on the issue of whether the I.G. had a basis for the exclusion.  42 C.F.R. § 1001.2007(a)(1)-(2); *Robert C. Hartnett*, DAB No. 2740, at 2 (2016).  The underlying conviction is not reviewable or subject to collateral attack on substantive or procedural grounds.  42 C.F.R. § 1001.2007(d).  An ALJ has the authority to schedule a hearing; examine witnesses; and receive, rule on, and exclude or limit evidence.  *Id*. § 1005.4(b).  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 initial decision may appeal that decision to the Board.  *Id*. § 1005.21(a).  The Board “will not consider any issue not raised in the parties’ briefs, nor any issue in the briefs that could have been raised before the ALJ but was not.”  *Id*. § 1005.21(e).  Board review of an ALJ decision is, in general, based on the evidentiary record developed before the ALJ.  *See* *id*. § 1005.21(f); *Gracia L. Mayard,* *M.D.*, DAB No. 2767, at 6-8 (2017).

Case Background3

This case arises from a December 31, 2020 I.G. notice, which informed Petitioner, a registered nurse (RN) in the State of Florida, of her exclusion from participation in Medicare, Medicaid, and all federal health care programs for the required minimum period of five years, pursuant to section 1128(a)(2) of the Act.  I.G. Ex. 1, at 1.  The notice stated in pertinent part:

**Page 3**

This exclusion is due to your conviction as defined in section 1128(i) (42 U.S.C. 1320a-7(i)), in the Circuit Court of the Second Judicial Circuit, in and for Franklin County, State of Florida, of a criminal offense related to neglect or abuse of patients, in connection with the delivery of a health care item or service, including any offense that the Office of Inspector General (OIG) concludes entailed, or resulted in, neglect or abuse of patients (the delivery of a health care item or service includes the provision of any item or service to an individual to meet his or her physical, mental, or emotional needs or well-being, whether or not reimbursed under Medicare, Medicaid, or any Federal health care program).

*Id*.

Petitioner timely requested an ALJ hearing.  The ALJ held a pre-hearing conference with the parties’ respective counsel and entered an Order Summarizing Pre-Hearing Conference and Setting Briefing Schedule (Pre-Hearing Order).4
  The Pre-Hearing Order required each party to file a brief, supporting exhibits, and the written direct testimony of any witnesses.  Pre-Hearing Order § 7.  The Pre-Hearing Order further advised that the ALJ will “not hear oral direct testimony” and that written direct testimony must be submitted in the form of an affidavit or declaration.  *Id*. § 7(c)(ii).  The ALJ explained an in-person hearing would not be held unless “a party asks to cross-examine a witness for whom the opposing party has provided written direct testimony,” and the proposed testimony is “relevant and non-cumulative.”  *Id*. § 10.

The I.G. submitted a brief along with seven proposed exhibits.  Petitioner submitted a response brief and eleven proposed exhibits, including Petitioner’s written direct testimony (P. Ex. 1).  Petitioner separately filed objections to I.G. Exhibits 2, 3, and 4, a request to strike any portions of the I.G.’s brief that relied on those exhibits, and a conditional request to “cross-examine” individuals referenced in the state investigator’s affidavit in support of an arrest warrant (I.G. Ex. 2), which was filed in the underlying criminal proceedings.  The I.G. submitted a reply brief along with objections to Petitioner’s Exhibits 3, 4, 5, and 11.  The I.G. declined to cross-examine Petitioner, the only witness for whom Petitioner had submitted written direct testimony.  On September 29, 2021, the ALJ issued an order admitting I.G. Ex. 2 into evidence and denying Petitioner’s request to “cross-examine” the individuals referenced in the state investigator’s affidavit, including the state investigator.  Order Denying Request for Cross-Examination and Closing Record (Evidentiary Order).

**Page 4**

Having determined that there were no witnesses for cross-examination, the ALJ decided the case based on the written record.  ALJ Decision at 3.  In her decision, the ALJ overruled the parties’ remaining evidentiary objections and admitted into evidence all of the documentary exhibits submitted by the parties.  *Id*. at 3-4.

The ALJ concluded the I.G. had a basis for excluding Petitioner under section 1128(a)(2) of the Act because (i) Petitioner was convicted of a criminal offense (*i.e.*, disorderly conduct), (ii) that offense related to the neglect of a patient, and (iii) it was committed in connection with the delivery of a health care item or service.  *Id*. at 7-11.

The ALJ found that Petitioner, as an RN at the St. James Health and Rehabilitation Center (St. James), cared for Patient C.A. “on a routine basis.”  *Id*. at 5 (citing P. Ex. 1, at 1).  On July 5, 2018, at approximately 3:00 p.m., S.H., one of Patient C.A.’s children, visited C.A. at St. James and observed an injury to the right side of C.A.’s face.  *Id*. (citing I.G. Ex. 2, at 2; I.G. Ex. 4, at 1; I.G. Ex. 6, at 1; P. Ex 15, at 1; P. Ex. 16, at 1).  S.H. informed her sibling E.A. of the injury and, later that evening, E.A. reported to Petitioner that Patient C.A. had a head injury.  *Id*. (citing I.G. Ex. 2, at 3-5; P. Ex. 1, at 2).  Petitioner then examined Patient C.A. on two separate occasions, but failed to observe “a black eye and small abrasion on C.A.’s right eye” that a Licensed Practical Nurse at St. James discovered the following morning after speaking with E.A.  *Id*. at 5-6 (citing I.G. Ex. 2, at 3-5; P. Ex. 1, at 2; P. Ex. 5, at 1; P. Ex. 17, at 1).

On June 4, 2019, an affidavit in support of an arrest warrant for Petitioner was filed in the Circuit Court of the Second Judicial Circuit for Franklin County Florida (State Court) detailing a state investigation of the matter.  *Id*. at 6 (citing I.G. Ex. 2).5
  That same day, the State Court issued a warrant for Petitioner’s arrest, finding there was probable cause to believe, based on the arrest warrant affidavit, that Petitioner had committed the felony offense of neglect of a disabled adult.  *Id*. (citing I.G. Ex. 3).  On June 11, 2019, Petitioner was charged by criminal information with one count of neglect of a disabled adult under Florida law.  *Id*. (citing I.G. Ex. 4).6

**Page 5**

The ALJ found that, on January 17, 2020, Petitioner entered a plea of nolo contendere (no contest) to a charge of disorderly conduct, “a stipulated lesser offense of Count 1 [Neglect of a Disabled Adult].”  *Id*. at 6 (citing I.G. Ex. 5).  On January 21, 2020, an amended information was filed, amending the charge against Petitioner to one count of disorderly conduct.  *Id*. (citing I.G. Ex. 6).7
  On January 31, 2020, the State Court accepted Petitioner’s plea and sentenced Petitioner to a $100 fine, a $50 fine for the cost of prosecution, a $350 fine for the cost of investigation to the Medicaid Fraud Control Unit (MFCU), and $300 in court costs.  *Id*. (citing I.G. Ex. 7).  Petitioner acknowledged her plea of no contest (as accepted by the State Court) constitutes a conviction within the meaning of the Act § 1128(i).  *Id*. at 7 (citing Petitioner’s Request for Hearing (RFH) at 5).

With respect to whether Petitioner’s conviction “related to the neglect or abuse of a patient,” the ALJ rejected Petitioner’s argument that “there is no factual allegation nor any evidence in the Criminal Case record that [she] engaged in such conduct.”  *Id*. at 7 (citing RFH at 6).  The ALJ determined that “the underlying facts and circumstances surrounding her Disorderly Conduct conviction sufficiently ‘show a **relation** to the neglect or abuse of a patient.’”  *Id*. at 9 (citing *Narendra M. Patel*, DAB No. 1736, at 10 (2000)) (emphasis added by ALJ).  The ALJ found Petitioner was charged with neglect or abuse of a patient “based on allegations that despite examining C.A. on two separate occasions, [she] failed to identify a head injury and start a neurological check.”  *Id*.  The ALJ noted that “Petitioner herself stated that she would have taken steps to address the [patient’s] injury had she identified it.”  *Id*. (citing I.G. Ex. 2, at 5).  The ALJ found “[t]he lack of timely identification led to the injury being ‘unattended to’ and treatment steps being left ‘undone.’”  *Id*. (citing *Hartnett*, DAB No. 2740, at 9).  Thus, the ALJ concluded 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.  *Id*.

The ALJ further concluded that Petitioner’s offense was “committed in connection with the delivery of a health care item or service.”  *Id*. at 10.  The ALJ rejected Petitioner’s argument that there is no nexus between her conviction and the neglect of a patient.  *Id*.; *see also* Informal Brief of Petitioner at 8-9 (arguing that “[n]othing in the Amended Information suggests that [Petitioner’s] disorderly conduct had anything to do with delivery of a health care item of service”).  The ALJ observed that only a “‘minimal

**Page 6**

showing of a connection’ must be present to support a finding that the offense was ‘in connection with the delivery of a health care item or service’” in the context of section 1128(a)(2).  ALJ Decision at 10 (citing *Hartnett*, DAB No. 2740, at 7 n.6).  The ALJ found that, “[a]t the time of the underlying offense, Petitioner was working as an RN responsible for providing health care services to patients at St. James, including C.A.,” and that her disorderly conduct conviction related to neglect of a patient during her employment.  *Id*.  Accordingly, the ALJ concluded that “there is at least a ‘minimal showing of a connection’ between the offense and the delivery of a health care item or service.”  *Id*. (citing *Hartnett*, DAB No. 2740, at 7 n.6).

Finally, the ALJ determined that she had no authority to decide Petitioner’s constitutional arguments.  *Id*.  This appeal followed.

Standard of Review

We review a disputed issue of fact as to whether the ALJ’s decision is “supported by substantial evidence on the whole record.”  42 C.F.R. § 1005.21(h).  We review a disputed issue of law as to whether the ALJ’s decision is “erroneous.”  *Id*.  Substantial evidence is “more than a mere scintilla of evidence.”  *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) (quoting *Consolidated Edison Co. v. NLRB*, 305 U.S. 197, 229 (1938))).

Analysis

**I.       The ALJ’s evidentiary rulings are not legally erroneous.**

Petitioner challenges several of the ALJ’s evidentiary rulings, which we will address before turning to the merits.  P. Br. at 14-19.  “The governing regulations grant ALJs broad authority to ‘determine the admissibility of evidence.’”  *Nancy L. Clark*, DAB No. 2989, at 8 (2020) (quoting 42 C.F.R. § 1005.17(a)).  ALJs are not bound by the Federal Rules of Evidence, but “must exclude irrelevant or immaterial evidence.”  42 C.F.R. § 1005.17(b), (c); CRD Procedures § 20 (“The ALJ determines the admissibility of the evidence.  The ALJ is not bound by the Federal Rules of Evidence; however, the ALJ may apply the Federal Rules of Evidence where appropriate, for example, to exclude unreliable evidence.”).  Moreover, 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.”  *Clark* at 8 (citations omitted).  It is also well-settled that the Board defers to the evidentiary rulings of ALJs unless there is a compelling reason not to do so.  *Id*. at 8-9 (citing *HeartFlow, Inc.*, DAB No. 2781, at 19 (2017)).  For the reasons explained below, we find Petitioner did not provide compelling reasons to disturb the ALJ’s evidentiary rulings.

**Page 7**

***A.       The ALJ properly admitted the state investigator’s arrest warrant affidavit.***

Petitioner contends the ALJ erred by admitting into evidence the state investigator’s arrest warrant affidavit (I.G. Ex. 2).  P. Br. at 5, 14-15.  She asserts that the affidavit constitutes “written direct testimony” of the state investigator and of the individuals that gave sworn statements to the investigator (as recounted in the affidavit) and should have been excluded because the testimony was not in the form of an affidavit or declaration that complies with 28 U.S.C. § 1746.  *Id*. at 14-15 (citing Pre-Hearing Order § 7(c)(ii) (requiring that written direct testimony be submitted “in the form of an affidavit or declaration that complies with 28 U.S.C. § 1746”)).

The ALJ rejected Petitioner’s contention that the arrest warrant affidavit constitutes “written direct testimony” of any witness and admitted the affidavit as documentary evidence.  Evidentiary Order at 3 (“[T]he statements were offered for a different purpose in a different proceeding.  Namely, the statements were offered to establish probable cause that the Petitioner had committed abuse or neglect in a state criminal proceeding.”).  The ALJ determined that the arrest warrant affidavit “contains evidence of the nature of the charge against Petitioner in the underlying criminal case” and is “relevant to determining whether Petitioner was convicted of a criminal offense related to neglect or abuse of patients, in connection with the delivery of a health care item or service.”  *Id*.  Petitioner does not challenge the ALJ’s determination that the arrest warrant affidavit is relevant and material.  However, Petitioner contends the affidavit is inadmissible because it does not comply with the requirements for unsworn declarations under 28 U.S.C. § 1746.8

We find no error in the ALJ’s decision to admit into evidence the arrest warrant affidavit that had been prepared and filed as part of the underlying criminal proceedings.  *See* *Clark* at 8-9 (affirming the ALJ’s admission of an internal memorandum summarizing the investigative findings of an assistant attorney general prepared in connection with the excluded individual’s underlying criminal case); *see also* *Stuart Alan Rockwell*, *D.D.S*., DAB CR5633, at 2-3 (2020) (overruling petitioner’s objection to the I.G.’s introduction of an arrest warrant affidavit in an exclusion case and concluding that the affidavit was

**Page 8**

not witness testimony but admissible documentary evidence), *aff’d*, DAB No. 3022 (2020).9
  The I.G. did not proffer any hearing witnesses and did not submit the arrest warrant affidavit as “written direct testimony” of any witness.  The statements of the investigator in the affidavit were made in the underlying criminal case and were “duly sworn” before the State Court judge.  I.G. Ex. 2, at 1, 6.  The affidavit was signed by both the investigator and the State Court judge that considered the allegations.  *Id*. at 6.  The State Court judge issued an arrest warrant based on the sworn allegations in the affidavit.  I.G. Ex. 3 (“The Court finds that there is probable cause to believe, based on the attached Affidavits, that [Petitioner] has committed . . . one (1) count of Neglect of a Disabled Adult.”).  Thus, the ALJ properly admitted the arrest warrant affidavit, not as written direct testimony, but as documentary evidence relevant and material to determining the nature of the charges brought against Petitioner and the criminal offense of which she was convicted.  Evidentiary Order at 3.

Petitioner further asserts, for the first time, that the ALJ should have excluded the arrest warrant affidavit under 42 C.F.R. § 1005.17(b) because “there is ample evidence in the record demonstrating that [I.G. Ex. 2] lacks reliability and includes partial, self-serving information.”  P. Br. at 15.  The regulations governing this proceeding provide that the Board will not consider any issue “that could have been raised before the ALJ but was not.”  42 C.F.R. § 1005.21(e).  Before the ALJ, Petitioner objected to the admissibility of I.G. Ex. 2 based on the form of the affidavit.  Petitioner’s Objections to Respondent’s Proposed Exhibits and Request for Cross-Examination at 1-2.  Petitioner, however, did not object on grounds that it lacked “reliability” or included “partial, self-serving information.”  *Id*.  We will not consider Petitioner’s new objections to the admissibility of I.G. Ex. 2 because they could have been raised before the ALJ but were not.10

***B.       The ALJ did not err by denying Petitioner’s request to “cross-examine” the state investigator and individuals that gave sworn statements to the investigator.***

Petitioner argues that the ALJ erred by denying her request to “cross-examine” the state investigator and the individuals that gave sworn statements to the investigator.  P. Br. at 15-16.  Petitioner asserts that had she been able to “cross-examine” these individuals, “she would have likely elicited testimonial evidence undercutting the IG’s position that

**Page 9**

there was any patient neglect at all.”  *Id*. at 16.  Petitioner contends that “[b]y heavily relying on unreliable double hearsay evidence that constitutes direct written testimony without permitting [Petitioner] the opportunity to cross-examine a single witness, the ALJ erred and violated [her] right to due process.”  *Id*.11

Petitioner’s assertion that she had a right to cross-examination is premised on her contention that the arrest warrant affidavit constitutes “written direct testimony” – a contention we reject for the reasons stated above.  The ALJ advised the parties that an in-person hearing would be held “only if a party asks to cross-examine a witness for whom the opposing party had provided written direct testimony.”  Pre-Hearing Order § 10.  The I.G. did not proffer any proposed witness or provide written direct testimony for any witness.  Thus, as the ALJ concluded, there were no witnesses for Petitioner to cross-examine and no reason to convene an in-person hearing.  Evidentiary Order at 3; ALJ Decision at 3.

Moreover, to the extent Petitioner wanted to examine the state investigator or the individuals who gave sworn statements to the investigator, Petitioner would have needed to obtain a subpoena.  *See* 42 C.F.R. § 1005.9 (“A party wishing to procure the appearance and testimony of any individual at the hearing may make a motion requesting the ALJ to issue a subpoena if the appearance and testimony are reasonably necessary for the presentation of a party’s case.”).12
  Petitioner did not file a motion requesting a subpoena to compel the state investigator or anyone else to testify.  We find no error in the ALJ’s denial of Petitioner’s request to “cross-examine” individuals who were not hearing witnesses and for whom no subpoenas were sought.  *See Clark* at 5-6 (rejecting argument that petitioner should have been permitted to cross-examine assistant attorney general and other individuals, whose hearsay statements were contained in an internal memorandum that was the basis for charging petitioner with a crime, where petitioner did not request a subpoena to compel those individuals to testify); *cf*. 42 C.F.R. § 1005.16(b) (noting that the purpose of exchanging written testimony of a witness before the hearing was to allow “sufficient time for other parties to subpoena such witness for cross-examination at the hearing”).

**Page 10**

We also find no error in the ALJ’s further determination that the “cross-examination” Petitioner sought was not relevant to any issue before the ALJ.  Evidentiary Order at 3.  Petitioner argues that through cross-examination she may have been able to elicit testimony showing there was no patient neglect “at all.”  P. Br. at 16.  Petitioner misunderstands the issues that were before the ALJ.  Petitioner’s conviction for disorderly conduct—a stipulated lesser offense of the neglect of a disabled adult charge—was the basis for her exclusion.  Act § 1128(a)(2); *see also* I.G. Ex. 1.  Having been convicted, Petitioner is precluded from litigating the criminal charge in administrative proceedings before the ALJ and the Board.  *See Clark* at 6-7 (rejecting contention that petitioner was entitled to challenge veracity of statements in attorney general memorandum through “cross-examination” because such a challenge was essentially an impermissible collateral attack on the facts underlying the conviction) (citing 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 Adel A. Kallini, M.D.*, DAB No. 2944, at 6 n.3 (2019) (“[I]n challenging an exclusion or sanction based on, or derivative of, a prior criminal conviction, the respondent is precluded from collaterally attacking the factual or procedural elements of the underlying offense.”).  The question before the ALJ was not whether Petitioner, in fact, neglected a patient, but whether the offense she was convicted of related to the neglect or abuse of a patient in connection with the delivery of a health care item or service.  Act § 1128(a)(2).  Recognizing that Petitioner was not permitted to collaterally attack her conviction, the ALJ appropriately determined that the “cross-examination” Petitioner sought to conduct was not relevant to any issue before the ALJ.

Petitioner further asserts that she was prejudiced by the ALJ’s admission of I.G. Ex. 2, without being permitted to “cross-examine” the investigator or the individuals that gave statements to the investigator.  P. Br. at 15-16.  Petitioner, however, had the opportunity to confront and cross-examine those individuals in the underlying criminal proceeding.  By pleading no contest to the charge of disorderly conduct, Petitioner voluntarily waived the right to confront those witnesses and contest the allegations brought against her.  The lack of cross-examination due to Petitioner’s no contest plea does not make the arrest warrant affidavit or the statements therein inadmissible.  *See Narendra M. Patel, M.D.*, DAB No. 1736, at 16 (2000) (recognizing that petitioner had the opportunity to cross-examine the affiant of a written statement during the underlying criminal proceedings but declined to do so, and the lack of cross-examination did not render the written statement inadmissible in the subsequent ALJ proceeding).

Finally, we reject Petitioner’s contention that the ALJ’s ruling denying cross-examination violated Petitioner’s constitutional right to due process.  P. Br. at 5, 16.  “Procedural due process prohibits government action that deprives one of life, liberty, or property, without adequate process of law.”  *Shaun Thaxter*, DAB No. 3053, at 37 (2021) (citing *D.B. v. Cardall*, 826 F.3d 721, 741 (4th Cir. 2016)).  In this case, Petitioner received adequate

**Page 11**

procedural protections consistent with due process.  There is no dispute Petitioner was provided adequate notice of her exclusion through the I.G.’s exclusion notice, which apprised her of the factual and legal basis for the exclusion and her opportunities to challenge it.  I.G. Ex. 1.13
  Petitioner availed herself of the full administrative appeal process before the ALJ and now the Board.  As explained above, there were no hearing “witnesses” for Petitioner to examine because the I.G. did not proffer the written direct testimony of any witness and Petitioner did not request a subpoena for any witness.  Moreover, the ALJ did not err in concluding that the “cross-examination” Petitioner sought to conduct was not relevant to any issue before the ALJ.  Accordingly, we are satisfied that Petitioner received adequate procedural protections consistent with due process.  *See, e.g., Lasher v. Dep’t of Health & Human Servs.*, 369 F. Supp. 3d 243, 251 (D.D.C. 2019) (rejecting procedural due process argument based on the lack of an in-person hearing where neither party submitted written direct testimony making cross-examination unnecessary and where the ALJ and Board declined to consider evidence only relevant to an impermissible collateral attack on petitioner’s underlying conviction).   We defer to the ALJ’s evidentiary rulings in the absence of a compelling reason not to do so.  *See Clark* at 8-9 (citation omitted).  Petitioner has not provided any compelling reason to disturb the ALJ’s ruling denying “cross-examination” of individuals that the I.G. never proffered as witnesses (and Petitioner never sought to subpoena) concerning issues not relevant to this proceeding.

***C.       The ALJ properly admitted the arrest warrant (I.G. Ex. 3) and the original criminal information (I.G. Ex. 4) into evidence.***

Petitioner further argues that the arrest warrant (I.G. Ex. 3) and original criminal information (I.G. Ex. 4) are irrelevant and should have been excluded by the ALJ.  P. Br. at 17-19.  More specifically, Petitioner asserts that the arrest warrant “contains no facts or evidence, but is merely a statement that the state court judge found probable cause to arrest [her] based on the allegations set forth in [I.G. Ex. 2].”  *Id*. at 17.  Petitioner also asserts that the original criminal information “contains no facts or evidence, but is merely a recitation of the charge against [her],” which was later amended.  *Id*.  Petitioner further argues that the exhibits “pose a significant danger of unfair prejudice, confusion of the issues, and needless presentation of cumulative evidence.”  *Id*. at 6.

We reject Petitioner’s arguments.  The ALJ determined the arrest warrant and original criminal information are “[r]elevant to determining whether Petitioner was convicted of a

**Page 12**

criminal offense related to neglect or abuse of patients, in connection with the delivery of a health care item of service.”  ALJ Decision at 3.  The arrest warrant demonstrates that the State Court judge found probable cause to issue a warrant for Petitioner’s arrest to face a felony charge of neglect of a disabled adult, “against the peace and dignity of the State of Florida,” based on the allegations set forth in the arrest warrant affidavit.  I.G. Ex. 3.  Contrary to Petitioner’s assertion, this evidence is plainly “relevant to examining the nature of Petitioner’s criminal offense,” and we find no error in the ALJ’s decision to admit this evidence.  ALJ Decision at 4.

We also find no error in the ALJ’s decision to admit the original criminal information.  The original criminal information provides:  “COUNT 1: On or about July 5, 2018, in Franklin County Florida, [Petitioner] did willfully or by culpable negligence neglect [C.A.], a disabled adult, without causing great bodily harm . . . contrary to Florida Statute 825.102(3).”  The recitation of the original charge is not irrelevant, but must be considered in connection with Petitioner’s no contest plea, which described the disorderly conduct charge as “a stipulated lesser offense of Count I.”  I.G. Ex. 5.  The “Count I” referenced in Petitioner’s no contest plea was the felony neglect charge recited in the original criminal information (I.G. Ex. 4).  It was only *after* Petitioner entered her no contest plea, that the state prosecutors amended the criminal information to allege one count of disorderly conduct.  I.G. Ex. 6.  We agree with the ALJ that the original criminal information is “relevant to examining the nature of Petitioner’s criminal offense.”  ALJ Decision at 4.

We reject Petitioner’s contention that any of this evidence poses a significant danger of unfair prejudice, confusion of the issues, or the needless presentation of cumulative evidence.  Considered together, the arrest warrant affidavit (I.G. Ex. 2), arrest warrant (I.G. Ex. 3), original criminal information (I.G. Ex. 4), no contest plea (I.G. Ex. 5), and amended criminal information (I.G. Ex. 6) provide the necessary context for understanding the charges brought against Petitioner and are certainly “relevant to examining the nature of Petitioner’s criminal offense.”  ALJ Decision at 4.  Petitioner has provided no compelling reason to depart from the Board’s long-standing practice of deferring to ALJs as to evidentiary matters, and we find no error in the ALJ’s decision to admit into evidence the arrest warrant and original criminal information.

**Page 13**

**II.       The ALJ’s determination that the I.G. had a basis to exclude Petitioner under section 1128(a)(2) of the Act 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 4 n.1.14
  An exclusion under section 1128(a)(2) requires that the following three criteria be met:

(1)      the excluded 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.

Petitioner does not dispute that she was “convicted” of a criminal offense within the meaning of the Act § 1128(i) when she entered a plea of no contest to the disorderly conduct charge under Florida law.  ALJ Decision at 7 (citing RFH at 5); *see also* I.G. Ex. 5.  Accordingly, the first criterion is met.

Petitioner contends, however, that the second and third criteria are not satisfied.  Specifically, Petitioner argues that the record evidence does not show that her disorderly conduct conviction relates to patient neglect or abuse or was in connection with the delivery of a health care item or service.  P. Br. at 6-13.  As explained below, we reject Petitioner’s arguments and find that substantial evidence in the record supports the ALJ’s conclusion that Petitioner’s disorderly conduct conviction (a stipulated lesser offense of the felony neglect charge) relates to the neglect of a patient in connection with the delivery of a health care item or service.

***A.  Petitioner was convicted of a criminal offense relating to the neglect of a patient.***

Petitioner contends the ALJ erred by concluding that her conviction related to patient neglect when, according to Petitioner, the “totality of the evidence shows that no patient neglect occurred.”  P. Br. at 1, 6-7.  Petitioner asserts that she “always maintained” that she “did not commit neglect of an elderly or disabled adult” and “understood” that her plea of no contest to disorderly conduct “related to the way she spoke to Patient C.A.’s daughter.”  *Id*. at 3.  Petitioner further argues that the ALJ affirmed the I.G.’s exclusion

**Page 14**

determination based on “unsubstantiated” and “unreliable” allegations, which Petitioner contends the ALJ accepted “irrespective of [their] veracity.”  *Id*. at 5, 8-9.  Finally, Petitioner argues that the ALJ made factual findings unsupported by substantial evidence and failed to consider “much of the evidence presented to refute the allegations” in the arrest warrant affidavit.  *Id*. at 5, 10-13.  According to Petitioner, proper consideration of all the evidence “would have revealed the overwhelming likelihood that Patient C.A. had no visible or identifiable injury *on* *July 5, 2018*.”  *Id*. at 13 (emphasis by Petitioner).

As an initial matter, Petitioner makes much of the fact that the term “neglect” is undefined in the exclusion statute and implementing regulations and asserts, without any authority, that the definition of neglect in 42 C.F.R. § 488.301 is “binding in this case.”  P. Br. at 7.  We do not accept Petitioner’s assertion.  The definitions in 42 C.F.R. § 488.301 were developed in connection with and specifically apply to the regulations  governing Medicare participation requirements for skilled nursing facilities.15
  The Board has never applied the section 488.301 definition of neglect in reviewing an exclusion under section 1128(a)(2) of the Act.  Instead, the Board has applied the common and ordinary meaning of the word “neglect” consistent with the purpose of section 1128(a)(2).  *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.”).  Accordingly, the ALJ did not err in applying the common and ordinary meaning of neglect in reviewing Petitioner’s exclusion.  ALJ Decision at 9 (finding Petitioner’s failure to timely identify Patient C.A.’s injury “led to the injury being ‘unattended to’ and treatment steps being left ‘undone’”).16

**Page 15**

Section 1128(a)(2) “simply states that the offense involved must ‘be related’ to the neglect or abuse of a patient.”  *Patel, DAB No. 1736,* 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. (emphasis added).  I*n determining whether the requisite nexus exists, ALJs are “not limited to considering the bare elements or labels of the criminal statutes under which the individual was convicted.”  *Funmilola Mary Taiwo*, DAB No. 2995, at 8 (2020) (citing*Summit S. Shah*, DAB No. 2836, at 7 (2017) (“The Board has long held . . . that an ALJ is free to look beyond the narrow constructs of a state’s criminal statutes.”); *Patel*, DAB No. 1736, at 10 (Congress did not intend to limit the I.G.’s exclusion authority through “dependence on the vagaries of state criminal law definitions or record development”), *aff’d*, *Patel v. Thompson*, 319 F.3d 1317 (11th Cir. 2003), *cert. denied*, 539 U.S. 959 (2003)).  Rather, ALJs “may look at ‘evidence as to the nature of an offense’ such as ‘facts upon which the conviction was predicated.’”  *Taiwo* at 8 (quoting *Shah*, DAB No. 2836, at 7); *see also* *Michael S. *Rudman, M.D., DAB No. 2171,** at 9 (2008) (citing *Lyle Kai, R.Ph.*, DAB No. 1979 (2005)) (“[E]vidence regarding the nature of the offense, rather than the state’s labeling of the offense” is considered to determine whether the offense “involved conduct warranting exclusion.”).

Moreover, in evaluating the nature of the offense and predicate for the underlying conviction, *ALJs are not limited to considering only those facts established in the underlying criminal proceedings.  See Patel, DAB No. 1736, 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, among other things, look to “the factual allegations underpinning the offense with which a petitioner was charged and which form the basis for the requisite conviction.”  Hartnett at 7 (rejecting petitioner’s contention that the ALJ erred in finding the requisite nexus between his offense and patient neglect or abuse based on allegations in his criminal complaint); see also Taiwo at 8*(relying, in part, on criminal complaint allegations in finding that petitioner’s offenses, including disorderly conduct, related to the neglect of a patient).

*In examining the facts and circumstances underlying Petitioner’s conviction, we find s*ubstantial evidence in the record supports the ALJ’s fact-findings (ALJ Decision at 5-6) and conclusion that Petitioner’s conviction related to the neglect of Patient C.A. (ALJ Decision at 9).  The relevant facts underlying Petitioner’s conviction are largely uncontroverted.17
  On or about July 5, 2018, S.H., one of Patient C.A.’s daughters,

**Page 16**

observed an injury to the side of C.A.’s face, including a cut under her eyebrow and a black eye.  I.G. Ex. 2, at 2; P. Ex. 15, at 1; P. Ex. 16, at 1.  According to S.H., her mother reported that she fell in the bathroom.  I.G. Ex. 2, at 2; P. Ex. 15, at 1; P. Ex. 16, at 1.  S.H. reported the injury to her sister, E.A., who then called St. James and reported the injury to Petitioner.  I.G. Ex. 2, at 2-3, 4; P. Ex. 1, at 2.

Petitioner admits receiving the phone call from E.A. after 9:00 p.m. on July 5, 2018, and that E.A. reported an injury to C.A.’s head.  I.G. Ex. 2, at 4; P. Ex. 1, at 2.  Petitioner told the investigator that E.A. reported a “bump” on her mother’s head, and Petitioner told her supervisor (the Director of Nursing) that E.A. reported “something was wrong with her mother’s eye.”  I.G. Ex. 2, at 4.  Petitioner admitted to the investigator that she conducted a partial examination of C.A. when E.A. called, but did not want to wake C.A., who was sleeping with the right side of her face tucked in her arm.  I.G. Ex. 2, at 4-5 (admitting that she only examined “what she could see”); P. Ex. 1, at 2.  Petitioner reported to E.A. that she did not observe any injury.  I.G. Ex. 2, at 5; P. Ex. 1, at 2.  Later that night, Petitioner conducted a routine skin assessment of C.A.  I.G. Ex. 2, at 5; P. Ex. 1, at 2.  Petitioner told the investigator that she woke up C.A., conducted a “complete skin sweep,” but did not check C.A.’s head.  I.G. Ex. 2, at 5.  Petitioner documented no skin issues in her assessment.  I.G. Ex. 2, at 4; P. Ex. 2.  Petitioner told the investigator she left the facility “knowing nothing about CA sustaining a head injury,” but if she had known or suspected such in injury, she would have “taken care of the issue, by starting neurological checks, and contacting the doctor.”  I.G. Ex. 2, at 5. 
The next morning, after E.A. made additional phone calls to St. James, a different nurse conducted a “head to toe assessment” of C.A. and discovered a “black eye and a small abrasion on [C.A.’s] right eye.”  P. Ex. 5, at 1; I.G. Ex. 2, at 3.  When the nurse asked how it happened, C.A. stated that she hit her head in the bathroom.  I.G. Ex. 2, at 3.  The same nurse told the investigator that she had not seen the bruise the previous day, but it was possible the injury was there and she had not seen it.  I.G. Ex. 2, at 3-4.

Following an MFCU investigation, which is documented in the arrest warrant affidavit (I.G. Ex. 2) and other exhibits submitted by Petitioner (P. Exs. 15-19), Petitioner was arrested and charged with felony neglect of a disabled adult.  I.G. Exs. 3, 4.  The arrest warrant affidavit alleged that Petitioner “did not provide the necessary medical services” after being informed of an injury to C.A.’s head.  I.G. Ex. 2, at 5.  The original criminal information stated in “Count 1” that on or about July 5, 2018, Petitioner “did willfully or by culpable negligence neglect [C.A.], a disabled adult, without causing great bodily harm . . . contrary to Florida Statute 825.102(3).”  I.G. Ex. 4.  Petitioner subsequently entered a plea of no contest to a misdemeanor charge of disorderly conduct, “a stipulated lesser offense of Count I,” (*i.e.*, the felony charge for neglect of disabled adult).  I.G. Ex. 5.  After Petitioner entered her no contest plea, the criminal information was amended to allege one count of disorderly conduct.  I.G. Ex. 6.  Petitioner does not dispute that the allegations in the arrest warrant affidavit formed the basis of the felony neglect charge.

**Page 17**

Nor has Petitioner shown that the disorderly conduct charge (which was added in connection with her no contest plea) emanated from facts or allegations different from those set forth in the arrest warrant affidavit.  *See* *Taiwo* at 8 (affirming exclusion under section 1128(a)(2) based on disorderly conduct charge added as part of plea agreement).

Petitioner, however, argues that she “understood” the disorderly conduct charge “related to the way she spoke to Patient C.A.’s daughter, E.A.”  P. Br. at 3.  Not only is Petitioner’s purported understanding contradicted by her no contest plea (describing the disorderly conduct charge as a “stipulated lesser offense” of the felony neglect charge), but Petitioner presented no evidence from her criminal case to support her alleged “understanding.”  No allegation was made in the arrest warrant affidavit or in any other State Court filing suggesting that Petitioner’s actual crime was based on anything other than the lack of medical care provided to C.A.  The only “victim” identified in the arrest warrant affidavit is C.A.  I.G. Ex. 2, at 2.  No allegation was made by the MFCU investigator or anyone else that Petitioner committed a crime by the way she spoke to C.A.’s daughter.18
  *Id*. at 5 (alleging one count of neglect of a disabled adult based on a failure to provide necessary medical services to C.A.).  Given the totality of the evidence in the record, we will not assume, based only on Petitioner’s self-serving “understanding,” that Petitioner’s conviction for disorderly conduct was predicated on anything other than the lack of medical care she provided to C.A.

We also find no merit to Petitioner’s assertion that the ALJ affirmed the I.G.’s exclusion based on “unreliable” allegations “**irrespective of the veracity of those allegations**.”  P. Br. at 8 (quoting ALJ Decision at 3 (emphasis by Petitioner)).  Petitioner’s argument mischaracterizes the ALJ’s analysis and takes the ALJ’s language out of context.  The quoted language directly related to the ALJ’s determination that certain evidence (I.G. Exs. 2, 3, and 4) may be relevant “irrespective” of the veracity of the allegations contained therein.  *See*ALJ Decision at 3-4; Evidentiary Order at 3.  In other words, the ALJ drew a distinction between the weight of the evidence and its admissibility.  ALJ Decision at 4.  The ALJ never suggested that she may *rely* on allegations in any exhibit “irrespective” of their veracity.  We find the ALJ carefully considered the evidence in the record, including the arrest warrant affidavit, in making her findings of fact.  ALJ Decision at 5-6 (citing the arrest warrant affidavit, along with other corroborating evidence).  We defer to the ALJ’s assessment of the evidence and find no compelling
reason to vacate the ALJ’s factual findings.  *See* *E & I Med. Supply Servs., Inc.*, DAB

**Page 18**

No. 2363, at 9 (2011) (“[U]nder the substantial evidence standard applicable to findings of fact by an ALJ (or other trier-of-fact), the Board does not make credibility findings, re-weigh the evidence, or substitute its evaluation of the evidence for that of the ALJ.”).

Petitioner relies on *Nomo-Ongolo v. Secretary of U.S. Dep’t of Health & Human Servs.*, No. CV 18-523, 2018 WL 6181370 (D. Minn. Nov. 27, 2018), to further support her argument that the ALJ erred in relying on the arrest warrant affidavit.  P. Br. at 9.  The district court’s decision in *Nomo-Ongolo* is not controlling precedent and, in any event, it is inapposite.19
  *Nomo-Ongolo* involved the exclusion of a physician under section 1128(b)(5)(B) of the Act when the I.G. determined the physician had been excluded from a state Medicaid program for reasons bearing on her financial integrity.  *Id*. at 2.  According to the district court, uncontroverted evidence established that a state Medicaid agency issued a termination notice alleging that the physician improperly requested and received cash payments from patients; the physician denied any responsibility and appealed the termination notice at the state administrative level; the physician subsequently withdrew her appeal having reached an agreement with the state that her case would be dropped and she would not treat Medicaid-covered patients until reinstated; and the state administrative proceeding was dismissed without any adjudication of the underlying allegations.  *Id*. at 4.  The district court emphasized that there was “no evidence in the record that [the physician] dropped her appeal as an admission of guilt or wrongdoing,” and “there was simply no adjudicatory proceeding evaluating [the Medicaid agency’s] allegations.”  *Id*.  The district court concluded that the “vague and unsubstantiated” allegations in the termination notice alone were insufficient to establish wrongdoing bearing on the physician’s financial integrity.  *Id*. at 5.

In contrast to *Nomo-Ongolo*, Petitioner’s exclusion under section 1128(a)(2) was not based on allegations in the arrest warrant affidavit alone.  Petitioner was convicted of a crime.  She was arrested and charged initially with a felony – neglect of a disabled adult – based on the allegations in the arrest warrant affidavit.  ALJ Decision at 6 (citing I.G. Exs. 2, 3, 4).  Unlike the physician in *Nomo-Ongolo*, Petitioner entered a plea of no contest to the charge of disorderly conduct – a “stipulated lesser offense” of the felony neglect charge.  *Id*. (citing I.G. Ex. 5).  Moreover, Petitioner failed to show that the disorderly conduct charge (which was added in connection with her no contest plea) emanated from facts or allegations different from those set forth in the arrest warrant affidavit.  We find no error, therefore, in the ALJ’s reliance, in part, on the arrest warrant affidavit and affirm the ALJ’s conclusion that Petitioner’s conviction for disorderly conduct related to the neglect of a patient.  ALJ Decision at 9.

**Page 19**

Finally, we are unpersuaded by Petitioner’s arguments that the ALJ made factual findings unsupported by substantial evidence or failed to consider evidence relevant to this proceeding.  P. Br. at 10-13.  We reject Petitioner’s contention that the ALJ erred in finding that E.A. reported her mother’s “head injury” to Petitioner on July 5, 2018.  P. Br. at 10.  Whether or not E.A. used the term “head injury,” the record evidence plainly demonstrates, based on Petitioner’s own statements, that she understood E.A. reported a “bump” on her mother’s head and that “something was wrong with her mother’s eye.”  I.G. Ex. 2, at 4.

Moreover, the Board will not presume the ALJ failed to consider evidence merely because it was not specifically discussed in the decision.  *See Saadite A. Green*, DAB No. 2940, at 10 (2019).  “An ALJ is not required to discuss evidence that does not detract from the ALJ’s findings.”  *Lake Park Nursing & Rehab. Ctr*., DAB No. 2035, at 18 (2006) (citing *Estes Nursing Facility Civic Ctr.*, DAB No. 2000, at 5 (2005)).  Petitioner’s long list of omitted “facts” fails to raise any material issue.  It makes no difference that Petitioner observed no visible injury to C.A. during her “medication pass” before E.A. called and reported the injury; that another nurse did not notice any bruising before E.A. reported the injury (but acknowledged it may have been there); that E.A. did not tell Petitioner how the injury occurred; that C.A. told a different nurse that she did not fall, but “banged her head” in the bathroom; that Petitioner “questions” whether S.H. visited her mother on July 5; that S.H. denied taking the photo of C.A.’s face; that Petitioner “knew” C.A. fabricated stories about staff mistreatment; that E.A. berated staff with foul language; and that another nurse was allegedly threated by E.A.  P. Br. at 10-13.  Contrary to Petitioner’s assertions, none of this evidence detracts from the ALJ’s factual findings, nor does it establish the “overwhelming likelihood” that C.A. had “no visible or identifiable injury *on July 5, 2018*.”  P. Br. at 13 (emphasis by Petitioner).20

Even accepting the truth of this evidence, it remains uncontroverted that on the evening of July 5, 2018, E.A. advised Petitioner of an injury to her mother’s head or face, Petitioner failed to conduct a full examination or identify that injury which led to the injury being “unattended to” and treatment steps being left “undone,” until the following morning when another nurse conducted a full examination of C.A. and identified the precise injury that had been reported to Petitioner the day before.  ALJ Decision at 9.  We find the ALJ’s conclusion that Petitioner was convicted of a criminal offense relating to the neglect of a patient is supported by substantial evidence and free of legal error.

**Page 20**

***B.       Petitioner’s offense occurred in connection with the delivery of a health care item or service.***

The ALJ found the requisite connection between Petitioner’s disorderly conduct and the delivery of a health care item or service was established because the offense, which the ALJ determined related to patient neglect, was committed while Petitioner was working at St. James as a registered nurse and providing health care services to patients, including C.A.  ALJ Decision at 10.  Petitioner contends the ALJ erred because “[n]othing in the Amended Information [I.G. Ex. 6] suggests that [her] disorderly conduct had anything to do with delivery of a health care item or service.”  P. Br. at 13.  Petitioner further reiterates her chief contention that “no patient neglect occurred” and, therefore, “[t]here can be no finding of patient neglect ‘in connection with the delivery of a health care item or service.’”  *Id*.  We reject Petitioner’s contentions.

In analyzing an exclusion under section 1128(a)(2), “the nature of the criminal offense may establish the required nexus to the delivery of healthcare items or services and . . . an ALJ may look to the facts underlying the conviction when determining whether the nexus exists.”  *Esohe**Agbonkpolor*, DAB No. 3002, at 8 (2020).  Contrary to Petitioner’s assertion, the language of the amended information is not determinative.  “[T]he Board has repeatedly held that the basis for the federal exclusion authority need not appear in the charges or associated court documents, but may be demonstrated by extrinsic evidence of the underlying facts and circumstances of the offense.”  *Patel*, DAB No. 1736, at 11; *see also Hartnett* at 9-10 (rejecting petitioner’s contention that there can be no basis for finding his offense occurred in connection with the delivery of a health care item or service absent his express admission in a plea agreement or colloquy).  Thus, the ALJ was not limited to considering only the language in the amended information to which Petitioner pled no contest, “but was free to consider evidence of the facts upon which Petitioner’s conviction was based.”  *Taiwo* at 8.

Here, Petitioner’s disorderly conduct conviction related to allegations that she failed to identify a head injury and start a neurological check on Patient C.A. despite examining the patient on two separate occasions.  *See* *supra* at 15-17; *see also* ALJ Decision at 9.  We find it self-evident that this offense occurred in connection with the delivery of a health care service.  *See, e.g.*,*Hartnett* at 10-11 (concluding that nurse’s conviction arising from alleged failure to report a patient’s high potassium level related to patient neglect and occurred in connection with the delivery of a health care service).  For all of these reasons, we find the ALJ’s conclusion that Petitioner’s disorderly conduct conviction related to the neglect of a patient in connection with the delivery of a health care service is supported by substantial evidence and free of legal error.

**Page 21**

**III.       The Board has no authority to decide Petitioner’s remaining constitutional arguments.**

Petitioner contends the I.G.’s exclusion determination “effectively deprived [her] of her right to earn an honest living without due process of law.”  P. Br. at 6.  She asserts that the regulatory language “permitting” exclusion based on “any offense that the OIG concludes entailed, or resulted in, neglect or abuse of patients” is “unconstitutionally vague” in that she was not put on notice that pleading guilty to disorderly conduct would result in her exclusion.  *Id*. (quoting in part 42 C.F.R. § 1001.101(b)).  The ALJ concluded she had no authority to decide Petitioner’s constitutional arguments.  ALJ Decision at 10.21

The regulations governing this matter prohibit the ALJ (and the Board) from “[f]ind[ing] invalid or refus[ing] to follow Federal statutes or regulations or secretarial delegations of authority.”  42 C.F.R. § 1005.4(c)(1); *see also* *Thaxter*, DAB No. 3053, at 36 (holding that the Board has no authority to decide constitutional challenges to the validity of the statutes and regulations underlying the I.G.’s exclusion authority).  Petitioner’s contention that the exclusion statute and regulations are “unconstitutionally vague” is “an attack upon the Act and regulations on which neither the ALJ nor the Board may rule.”  *W. Scott Harkonen, M.D.*, DAB No. 2485, at 22 (2012), *aff’d*,*Harkonen v. Sebelius*, No. C 13-0071, 2013 WL 5734918 (N.D. Cal. Oct. 22, 2013);*see also* *Agbonkpolor* at 9 (declining to consider argument that due process rights were violated because exclusion statute is unconstitutionally overbroad); *Taiwo* at 9-10 (declining to consider argument that due process rights were violated because petitioner was not sufficiently informed of potential exclusion before entering guilty plea).  Thus, the ALJ did not err in declining to decide the constitutional arguments raised by Petitioner.22

**Page 22**

Conclusion

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


          /s/
        Christopher S. Randolph

                      Board Member
          /s/
        Constance B. Tobias

                      Board Member
          /s/
        Michael Cunningham

                      Presiding Board Member
      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 http://www.socialsecurity.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 http://uscode.house.gov/table3/1935_531.htm and https://www.ssa.gov/OP_Home/comp2/G-APP-H.html. back to note 1
                      2.   As permitted by the Act, the Secretary has delegated to the I.G. the authority to enforce section 1128’s exclusion provisions.  Act § 1128A(j)(2); 48 Fed. Reg. 21,523, 21,662 (May 13, 1983); 53 Fed. Reg. 12,909, 12,993 (Apr. 20, 1988).  The I.G. in turn has issued regulations, codified in 42 C.F.R. Parts 1001 and 1005, implementing the delegated exclusion authority.  See, e.g., 42 C.F.R. §§ 1001.101, 1005.1. back to note 2
                      3.   Background information is drawn from the ALJ Decision and the record before the ALJ and is not intended to substitute for the ALJ’s findings.  back to note 3
                      4.   The Pre-Hearing Order was issued by ALJ Bill Thomas.  The matter was subsequently reassigned to ALJ Tannisha D. Bell, who adopted the Pre-Hearing Order in her decision.  ALJ Decision at 2.  back to note 4
                      5.   The affidavit, signed by an investigator from Florida’s Medicaid Fraud Control Unit, alleged that Petitioner failed to “provide the necessary medical services after she was told from [the patient’s] family that [the patient] had a bump on her head.”  I.G. Ex. 2, at 5-6. back to note 5
                      6.   The information states:  “COUNT 1: On or about July 5, 2018, in Franklin County Florida, [Petitioner] did willfully or by culpable negligence neglect [C.A.], a disabled adult, without causing great bodily harm, permanent disability, or permanent disfigurement, contrary to Florida Statute 825.102(3).”  I.G. Ex. 4.  The alleged violation is a third-degree felony under Florida law punishable by a term of imprisonment of up to five years.  Fla. Stat. § 775.082(3)(e) (2018). back to note 6
                      7.   The amended information states:  “COUNT 1:  On or about July 5, 2018, in Franklin County Florida, [Petitioner] did commit such acts as are of a nature to corrupt the public morals, or outrage the sense of public decency, or affect the peace and quiet of persons who may witness them, or engaged in brawling or fighting, or engaged in such conduct as to constitute a breach of the peace or disorderly conduct, contrary to Florida Statute 877.03.”  I.G. Ex. 6. back to note 7
                      8.   28 U.S.C. § 1746 provides that an “unsworn” declaration will have the same “force and effect” of a sworn declaration or affidavit if made in writing and signed and dated in substantially the following form: “I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct. Executed on (date).  (Signature).”  The arrest warrant affidavit is not unsworn; rather, it was “duly sworn” before the State Court judge that issued the arrest warrant.  I.G. Ex. 2, at 1, 6.  Because we agree with the ALJ that I.G. Ex. 2 does not constitute “written direct testimony,” we do not reach the separate question of whether written direct testimony submitted in the form of a “duly sworn” affidavit would satisfy the requirements of the ALJ’s Pre-Hearing Order § 7(c)(ii). back to note 8
                      9.   The ALJ’s evidentiary determination admitting the arrest warrant affidavit in Rockwell was not challenged before the Board.  We cite the ALJ’s decision, which is not precedential or binding, only to demonstrate that the admission of such evidence is not unusual or unique in an exclusion case. back to note 9
                      10.   Even if we could consider Petitioner’s new objections, they go to the weight of the evidence, not its admissibility.  Moreover, Petitioner’s contention that I.G. Ex. 2 should have been excluded on reliability grounds is undercut by her reliance on I.G. Ex. 2 in her own briefing.  P. Br. at 11-13 (relying on the statements of Nurse Shiver contained in I.G. Ex. 2).  back to note 10
                      11.   As noted above, hearsay is admissible in administrative proceedings generally, and Petitioner did not previously object to the admissibility of I.G. Ex. 2 on grounds that it is unreliable hearsay.  In any event, we understand Petitioner to be arguing that it was the denial of cross-examination that violated her due process rights. back to note 11
                      12.   Petitioner was aware of the need to file a motion for the issuance of a subpoena to compel a witness to testify.  In her written objections, Petitioner wrote that she “reserves her right to file a motion for issuance of one or more subpoenas for the appearance and testimony of one or more” of the individuals referenced in I.G. Ex. 2.  Petitioner’s Objections to Respondent’s Proposed Exhibits and Request for Cross-Examination at 4.  Despite this statement, Petitioner did not move for a subpoena to compel any of these individuals to testify.  We express no opinion about whether Petitioner could have shown that the testimony of any of these individuals was “reasonably necessary for the presentation” of her case. back to note 12
                      13.   The mandatory notice provided by the I.G. under 42 C.F.R. § 1001.2002 has been held to comport with the notice requirements of procedural due process.  See, e.g., Lasher v. Dep’t of Health & Human Servs., 369 F. Supp. 3d 243, 251 (D.D.C. 2019); Cathy Statler, DAB No. 2241, at 11 (2009), aff’d, No. 7:09-CV-00387, 2011 WL 972584 (W.D. Va. Mar. 16, 2011).  back to note 13
                      14.   The ALJ did not have authority to review the length of the exclusion because five years is the statutory minimum exclusion period under section 1128(c)(3)(B).  See 42 C.F.R. § 1001.2007(a)(2).  Petitioner did not challenge the length of her exclusion before the ALJ or the Board.    back to note 14
                      15.   Section 488.301 specifies that the term “neglect,” as used in the regulations governing the survey and certification of long-term care facilities (Subpart E), means “the failure of the facility, its employees or service providers to provide goods and services to a resident that are necessary to avoid physical harm, pain, mental anguish, or emotional distress.”  Nothing in section 488.301 indicates that the same definition of “neglect” applies in any other regulatory context. back to note 15
                      16.   Although the ALJ applied the common and ordinary definition of “neglect,” the ALJ also acknowledged Petitioner’s argument regarding section 488.301 and found that Petitioner’s conviction related to the neglect of a patient “under either definition of neglect.”  ALJ Decision at 9.  We do not disagree with the ALJ’s conclusion but see no reason to apply the definition of neglect under section 488.301 in the context of an exclusion case. back to note 16
                      17.  We further note, contrary to Petitioner’s assertions, that most of the allegations in the arrest warrant affidavit are corroborated by other evidence, including exhibits proffered by Petitioner as cited herein. back to note 17
                      18.   E.A. told the MFCU investigator that when she called Petitioner on July 5, 2018, E.A. “became irate and [Petitioner] hung up on her” and “refused to talk to her” when E.A. called back.  I.G. Ex. 2, at 3.  None of this was cited by the MFCU investigator as a basis for charging Petitioner with a crime and, in any event, allegations about Petitioner’s refusal to speak to E.A. do not support Petitioner’s contention that she pled no contest to disorderly conduct for “the way she spoke to” E.A. back to note 18
                      19.   “The Board is not required to treat as ‘controlling precedent’ a district court holding from a federal judicial district different than the one from which the pending Board appeal arises.”  William Garner, M.D., DAB No. 3026, at 11 (2020).  Petitioner’s case and the Nomo-Ongolo case arise from different federal judicial districts and, therefore, we are not bound by the district court’s decision. back to note 19
                      20.  Petitioner’s contention that this evidence proves C.A. had no visible or identifiable injury also constitutes an impermissible collateral attack on her conviction that is not reviewable by the ALJ or the Board.  See 42 C.F.R § 1001.2007(d).  We reject Petitioner’s contentions about this evidence for that reason as well.   back to note 20
                      21.   Petitioner acknowledges the ALJ’s limited authority to decide constitutional issues, but raises these arguments to reserve her rights “in a later stage of appeal.”  P. Br. at 6 (citing 42 C.F.R. § 1005.4(c)(1)).   back to note 21
                      22.   Although we do not reach the issue, five federal circuit courts have rejected Petitioner’s contention that there is a constitutionally protected interest in remaining a health care provider in the Medicare reimbursement program.  See Shah v. Azar, 920 F.3d 987, 997-98, n.30 (5th Cir. 2019) (rejecting the contention that continued participation in the Medicare reimbursement program is a property interest entitled to due process protection based on holdings of the First, Sixth, Ninth, and Tenth Circuits) (collecting cases). back to note 22 Back to top
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