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                              Brendon Cox, DAB No. 3130 (2024)
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Brendon Cox, DAB No. 3130 (2024)








  
  
    

  
      
Department of Health and Human Services 
    DEPARTMENTAL APPEALS BOARD
          Appellate Division





Brendon Cox
Docket No. A-24-14Decision No. 3130February 7, 2024

        
              
    

      DETERMINATION TO DECLINE REVIEW OF ADMINISTRATIVE LAW JUDGE DECISION

After reviewing the record to evaluate the issues Brendon Cox (Petitioner) presents on appeal from the November 2, 2023 Administrative Law Judge (ALJ) decision captioned *Brendon Cox*, DAB CR6388 (ALJ Decision), we have determined that we need not render a separate decision.

The ALJ Decision upheld the five-year exclusion of Petitioner, who worked as an occupational therapist, from all federal health care programs under section 1128(a)(1) of the Social Security Act (Act).  ALJ Decision at 1.  Petitioner challenged whether the Inspector General (I.G.) had a basis for imposing the exclusion and whether its length was unreasonable.  Req. for Hr’g at 1.  The ALJ concluded the I.G. had a valid basis for the exclusion under section 1128(a)(1) due to Petitioner’s 2022 guilty plea in a Utah court to a misdemeanor charge of theft from the Medicaid program.  ALJ Decision at 2-3.  The ALJ acknowledged Petitioner’s arguments “that he was not convicted because he entered a ‘plea in abeyance,’ and the charges against him were ultimately dismissed.”  *Id.* at 3.  Nevertheless, the ALJ concluded that Petitioner’s guilty plea met the statutory and regulatory definitions of a “conviction” for purposes of section 1128(a)(1), that Petitioner could not collaterally attack that conviction, and that section 1128(c)(3)(B) required Petitioner’s exclusion for at least five years.  *Id.* at 3-5.

Petitioner’s request for Board review is substantively identical to Petitioner’s request for an ALJ hearing and raises no new or unaddressed factual or legal issues.  Petitioner does not refute the ALJ’s evidence-supported factual finding that “Petitioner pleaded guilty to misdemeanor theft (of Medicaid funds), and the court accepted his plea.”  *See* ALJ Decision at 4; I.G. Ex. 4, at 1, 8; I.G. Ex. 5.  Petitioner merely repeats legal arguments that the ALJ soundly rejected as contrary to established, cited legal authorities.  *See*ALJ Decision at 2-5 (citing authorities).  The ALJ Decision is consistent with Board precedent.  *See**Stuart Alan Rockwell, D.D.S.*, DAB No. 3022 (2020) (affirming five-year exclusion under Act § 1128(a)(1), because petitioner was “convicted” per Act § 1128(i)(3) when state court accepted petitioner’s guilty plea to charge of Medicaid fraud); *Olandis Moore*, DAB No. 2963 (2019) (affirming five-year exclusion under Act

**Page 2**

§ 1128(a)(1), because petitioner was “convicted” per Act § 1128(i)(4) by pleading guilty to misdemeanor Medicaid fraud and consenting to state court arrangement that deferred further proceedings, withheld judgment, and imposed fine); *Michael Travers, M.D.*, DAB No. 1237 (1991) (upholding five-year exclusion under Act § 1128(a)(1), because petitioner was “convicted” per Act § 1128(i)(3) and (i)(4) when Utah court accepted petitioner’s “no contest” plea to filing false Medicaid claims and eventually dismissed charges after Petitioner paid restitution and complied with plea agreement terms), *aff’d*, 801 F. Supp. 394 (E.D. Wash. 1992), *aff’d*, 20 F.3d 993 (9th Cir. 1994).

Where, as here, a petitioner requesting Board review “does not allege any factual or legal error” or “attempt to raise any other issue concerning the ALJ’s handling of his case,” it is appropriate for the Board to decline review.  *See Matthew Foster*, DAB No. 2998, at 2 (2020).  Accordingly, pursuant to 42 C.F.R. § 1005.21(g), we decline review of the ALJ Decision and summarily affirm it.
  
          /s/
        Christopher S. Randolph

                      Board Member
          /s/
        Constance B. Tobias

                      Board Member
          /s/
        Kathleen E. Wherthey

                      Presiding Board Member Back to top
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