83 FR 29569 - Decision and Order: Mohammed Asgar, M.D.
DEPARTMENT OF JUSTICE
Drug Enforcement Administration Federal Register Volume 83, Issue 122 (June 25, 2018)
Drug Enforcement Administration
Federal Register Volume 83, Issue 122 (June 25, 2018)
| Page Range | 29569-29573 | |
| FR Document | 2018-13531 |
[Federal Register Volume 83, Number 122 (Monday, June 25, 2018)] [Notices] [Pages 29569-29573] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2018-13531] ======================================================================= ----------------------------------------------------------------------- DEPARTMENT OF JUSTICE Drug Enforcement Administration Decision and Order: Mohammed Asgar, M.D. On March 29, 2017, the Assistant Administrator, Diversion Control Division, Drug Enforcement Administration (hereinafter, DEA), issued an Order to Show Cause to Mohammed Asgar, M.D. (hereinafter, Respondent), of Gary, Indiana.\1\ GX 6 (Order to Show Cause), at 1. The Show Cause Order proposed the revocation of Respondent's DEA Certificate of Registration as a practitioner, on the ground that the U.S. Department of Health and Human Services, Office of Inspector General (hereinafter, HHS OIG) notified Respondent of his ``mandatory exclusion from participation in all Federal health care programs for a minimum period of five years pursuant to 42 U.S.C. 1320a-7(a).'' Id. at 2 (citing 21 U.S.C. 824(a)(5)). The Show Cause Order also proposed the denial of any pending application by Respondent to modify or renew his registration. Id. at 1. --------------------------------------------------------------------------- \1\ The Show Cause Order caption also listed an address in Posen, Illinois for Respondent. --------------------------------------------------------------------------- As for the Agency's jurisdiction, the Show Cause Order alleged that Respondent holds DEA Certificate of Registration No. FA3926055, which authorizes him to dispense controlled substances in schedules II through V as a practitioner, at the registered address of 600 Grant Street, Gary, Indiana 46402. Id. The Show Cause Order alleged that this registration expires on June 30, 2019. GX 6, at 2. As to the substantive ground for the proceeding, the Show Cause Order specifically alleged that Respondent was ``notified by . . . [the HHS OIG] of . . . [his] mandatory exclusion from participation in all Federal health care programs for a minimum period of five years pursuant to 42 U.S.C. 1320a-7(a).'' GX 6, at 2. It asserted that, ``[m]andatory exclusion from Medicare is an independent ground for revoking a DEA registration pursuant to 21 U.S.C. 824(a)(5).'' Id. The Show Cause Order further asserted that ``although your conviction was unrelated to your handling of controlled substances, DEA has nevertheless found that the underlying conviction forming the basis for a registrant's exclusion from participating in federal health care programs need not involve controlled substances for revocation under 21 U.S.C. 824(a)(5)'' to be warranted. Id. The Show Cause Order notified Respondent of his right to request a hearing on the allegations, or to submit a written statement in lieu of a hearing, the procedures for electing each option, and the consequences for failing to elect either option. Id. at 2-3 (citing 21 CFR 1301.43). The Show Cause Order also notified Respondent of his right to submit a corrective action plan under 21 U.S.C. 824(c)(2)(C). Id. at 3. By letter dated April 27, 2017, Respondent's counsel acknowledged service of the Show Cause Order on April 4, 2017, waived Respondent's right to a hearing, and stated that he was filing Respondent's written response to the Show Cause Order. GX 7 (Written Statement), at 1. Attached to the Written Statement are the Show Cause Order, 22 letters ``submitted voluntarily by patients and colleagues'' of Respondent, the transcript of Respondent's Sentencing Hearing, and the Government's Sentencing Memorandum concerning Respondent. Id. at 2. On October 13, 2017, DEA submitted a Request for Final Agency Action (RFAA) including an evidentiary record to support the Show Cause Order's allegations and Respondent's Written Statement and attachments. I issue this Decision and Order based on the entire record before me. 21 CFR 1301.43(e). I make the following findings of fact. Findings of Fact Respondent's DEA Registration Respondent is the holder of DEA Certificate of Registration No. FA3926055, pursuant to which he is authorized to dispense controlled substances in schedules II through V as a practitioner, at the registered address of 600 Grant Street, Gary, Indiana 46402. GX 1 (copy of registration); GX 2 (Certification of Registration Status), at 1. This registration expires on June 30, 2019. GX 1; GX 2, at 1. The Nature and Scope of Respondent's Criminality Respondent's criminal conduct began in Chicago in or about 2005. GX 3 (Plea Agreement, United States v. Asgar, No. 12 CR 491-10 (N.D. Ill. Dec. 18, 2014) (hereinafter, Plea Agreement)), at 2. At this time, Respondent and another medical doctor, Dr. Farzana Begum, ``conspired with each other to knowingly and willfully refer Medicare beneficiaries to Grand Home Health for the provision of home health care services in exchange for illegal cash kickback payments.'' Id. at 2-3. Each Medicare patient that the doctors referred resulted in a cash payment of $400 to Dr. Begum. Id. at 3. According to the Plea Agreement, Respondent ``knew that it was illegal to solicit and receive kickbacks . . . in exchange for . . . referrals of Medicare patients.'' Id. ``From in or about January 2006 through May 2008,'' Dr. Begum received about ``$141,100 in kickbacks in exchange for [Respondent's] referral of Medicare beneficiaries to Grand Home Health.'' Id. The relationship between Respondent and Dr. Begum ended in approximately May 2008. Id. As a result, Respondent ended the arrangement under which Dr. Begum received cash kickbacks in exchange for Respondent's Medicare patient referrals. Id. About six months later, however, the cash kickback payments resumed. This time, Respondent received cash kickbacks in exchange for his referral of Medicare patients to Grand Home Health. Id. On or about February 9, 2011, for example, Respondent received $1,500 in cash for his referral of three patients to Grand Home Health ``for the furnishing of home health care services for which payment may be made in whole and in part under Medicare.'' Id. at 3-4. For the two-year period between about February 2009 and February 2011, Respondent received about $15,900 in exchange for his referral of Medicare beneficiaries to Grand Home Health. Id. at 4. By May 2011, the Government was investigating the conspiracy. Id. On or about May 3, 2011, Respondent met with an individual who was cooperating with the investigation and recording the meeting. Id. During the meeting, Respondent received about $1,500 in exchange for the referral of three Medicare patients to Grand Home Health. Id. At another meeting that was recorded by a different individual, Respondent urged the individual to ``deny right away'' if anyone raised the kickback conspiracy. Id. Respondent said, ``So [[Page 29570]] that's the story, okay?'' as he apparently sought to confirm that the individual would call such a claim a lie and say ``nothing . . . happened.'' Id.; see also GX 7 (Government's Sentencing Memorandum, United States v. Asgar, No.-12 CR 491-10 (N.D. Ill June 7, 2016) (hereinafter, Government Sentencing Memo), at 2-3 (After law enforcement discovered the Grand Home Health Care scheme, Asgar was recorded cautioning the owner of Grand Home Health Care about keeping records of the kickback payments, probing for information related to law enforcement's discovery of the scheme, and assuring the owner that, ``I have to be a little careful now, listen when you're cleared, I will start [referring patients], ok?''). In total, from about January 1, 2006 through March 31, 2011, Medicare paid about $201,635 for claims submitted for home health services provided to the Medicare patients that Respondent referred to Grand Home Health in exchange for illegal kickbacks. GX 3, at 5. From about January 1, 2006 through May 31, 2008, Medicare paid about $1,002,728 for claims submitted for home health services provided to the Medicare beneficiaries that Dr. Begum referred to Grand Home Health in exchange for illegal kickbacks. Id. Thus, ``Grand Home Health earned approximately $317,952 in net proceeds from these illegally referred patients.'' Id. According to the Plea Agreement, Respondent acknowledged these facts. Id. In addition to the above, beginning in or about 2008, Respondent agreed to refer Medicare beneficiaries to ``Company A'' for home health care services in exchange for illegal cash kickbacks from ``Individual A.'' Id. at 6. Pursuant to this conspiracy, Respondent typically received about $500 per patient referral. Id. In total, Respondent solicited and received about $74,000 in cash kickbacks in exchange for his referral of Medicare patients to Company A between about 2008 and August 2011. Id. Medicare paid about $1,725,762 for claims submitted by Company A for home health services provided to the Medicare patients whom Respondent referred in exchange for illegal kickbacks. Id. Company A received about $146,689 in net proceeds from the patients Respondent illegally referred. Id. According to the Plea Agreement, Respondent acknowledged the amounts Medicare paid to Company A during this phase of the illegal cash kickback conspiracy in which he participated. Id. The Plea Agreement: On December 18, 2014, Respondent, Respondent's attorney, the United States Attorney for the Northern District of Illinois, and an Assistant U.S. Attorney signed a Plea Agreement. GX 3, at 22. Respondent agreed to plead guilty to ``conspiracy to commit an offense against the United States, namely, conspiring to solicit and receive kickbacks, in violation of Title 42, United States Code, Section 1320a-7b(b)(1)(A), all in violation of Title 18, United States Code, Section 371.'' Id. at 1. In sum, Respondent's criminality consisted of a multi-year conspiracy involving more than $2.9 million of Medicare payments to two home health care companies and the netting of hundreds of thousands of dollars in kickbacks by doctors involved in this conspiracy. GX 3, at 2-6. According to the Plea Agreement, Respondent ``has clearly demonstrated a recognition and affirmative acceptance of personal responsibility for his criminal conduct.'' Id. at 9. Moreover, the Plea Agreement includes language giving Respondent credit for acceptance of responsibility pursuant to the United States Sentencing Guidelines, Sec. 3E1.1(b). Id. at 10. This provision of the Plea Agreement provides that ``if the Court determines that the defendant is entitled to a two-level reduction for acceptance of responsibility, the government will move for an additional one-level reduction in the offense level.'' Id. Further, in the Plea Agreement, Respondent agreed to full and truthful cooperation ``in any matter in which he is called upon to cooperate'' by the Chicago U.S. Attorney's Office. Id. at 12. The expected cooperation included ``providing complete and truthful information in any investigation and pre-trial preparation and complete and truthful testimony in any criminal, civil, or administrative proceeding.'' Id. At some point, Respondent appeared before the United States District Court and pled guilty to the charge. The District Court accepted his plea. The Government Sentencing Memo: Respondent's counsel attached the Government's Sentencing Memo to his Written Statement. According to the Government's Sentencing Memo, Respondent ``took advantage of the faith and commitment of his patients in order to extract benefits for himself to which he knew he was not entitled. In doing so, he abused his position as their trusted doctor for his own pecuniary advantage, knowing that it was wrong all along.'' GX 7, Government's Sentencing Memo, at 6. According to the Government's Sentencing Memo, Respondent treated his ``patients as a commodity to be traded . . . for additional, secret profits,'' id. at 7, subjugating his patients' interests to his own greed, since he did not need the money given he ``was earning more than half a million dollars per year,'' according to ``what was actually reported on . . . [Respondent's] tax returns.'' Id. at 6. The Government's Sentencing Memo states that, while Respondent ``appeared to have no plans to stop committing his crime prior to being approached by law enforcement, he did accept responsibility for his actions immediately.'' Id. at 5. Elsewhere, the Government's Sentencing Memo states that Respondent ``has unquestionably taken full responsibility for his action [sic] going so far as to provide significant cooperation to the [G]overnment after his arrest.'' Id. at 7. Respondent's ``significant cooperation,'' according to the Sentencing Memo, consisted of ``conduct[ing] two recordings that were ultimately used . . . in the investigation and prosecution of administrators and physicians,'' testifying at two trials ``over the course of multiple days and participat[ing] in numerous preparation sessions during the course of his cooperation,'' and providing law enforcement with ``information regarding other corrupt home health entities and doctors that the [G]overnment was able to use'' in other investigations. Id. at 5-6. The Sentencing Memo states that Respondent's ``significant cooperation'' was the reason it was recommending a lower sentence than it otherwise would have recommended, given that Respondent ``took advantage of the faith and commitment of his patients in order to extract benefits for himself to which he knew he was not entitled.'' Id. at 6. Respondent's Sentencing Hearing: Respondent also attached the Transcript of Sentencing Hearing to the Written Statement. When Respondent took advantage of his right to speak at his Sentencing Hearing, he stated that ``it has been a long, rough and stressful five years for me and my family.'' GX 7 (Transcript of Proceedings-- Sentencing Hearing at 38-39, United States v. Asgar, No.-12 CR 491-10 (N.D. Ill. June 15, 2016) (hereinafter, Transcript of Sentencing Hearing). Regarding acceptance of responsibility, Respondent stated that, ``Over this period my character and reputation that was at the peak slid down to the bottom as a consequence of my wrongdoing, for which I deeply regret, and accept full responsibilities.'' Id. at 39. He emphasized that he ``cooperated and helped the [G]overnment in every way possible to successfully bring to an end one of the biggest and high profile [[Page 29571]] medical scandals in Illinois history.'' Id. Respondent stated that his cooperation with the investigation included ``recording of conversation [sic] with medical personnel, administrative officers, meeting with prosecutors, federal agents, lengthy trial, trial preparations and testifying at trials.'' Id. An Assistant United States Attorney (hereinafter, AUSA) also addressed the Court at Respondent's Sentencing Hearing. He agreed that Respondent cooperated with the criminal investigation and reiterated that Respondent's cooperation was ``one of the essential factors in mitigation.'' Id. at 31. He stated that Respondent ``has also undertaken significant steps to make amends.'' Id. at 37. The AUSA also addressed aggravating factors. He stated that Respondent's crime involved ``betrayal of patients' trust[, and] . . . betrayal of larger society, which places trust in doctors to do the right thing [-] to put the patients over their own personal pecuniary gains.'' Id. at 34. The AUSA stated that, ``for reasons that may be simply greed,'' Respondent was among those ``willing to trade off the trust that their patients and their society placed in them and trade that for financial gain.'' Id. at 36. The AUSA stated that doctors ``occupy a special place in our society'' and criminal sentences ``do have a real deterrent effect.'' Id. He urged the Court to ``send a message'' that ``[i]f you violate the anti-kick back [sic] statute, if you conspire to turn your patients into chips to be turned in, there are repercussions.'' Id. During the sentencing hearing, the Court repeatedly referenced Respondent's greed and obstruction of justice. The Court pointed out that Respondent ``probably . . . had the most lucrative practice going at the time.'' Id. at 33. Yet, the Court stated, ``on top of that,'' Respondent was ``helping himself to the kickbacks.'' Id. Further, the Court stated, agreeing with the AUSA, that despite ``inflection points, . . . times when someone would have caught themselves maybe and said, `Eh, I'm out,' '' Respondent, instead, wanted to ``cover it up.'' Id. at 33-34. The ``obstruction piece on top of it,'' the Court stated, ``compounds that a little bit.'' Id. at 34. Based on the uncontroverted evidence in the record, I find that Respondent participated in multi-year illegal kickback conspiracies involving the payment of about $230,900 in illegal kickbacks to himself and his co-conspirator, and of Medicare claims of over $2.9 million. In addition, I find that, during the criminal investigation, Respondent urged another doctor ``to lie if asked whether that doctor had ever provided patients in return for money.'' GX 7 (Government Sentencing Memo) at 3; see also GX 3, at 4. Thus, I find, as the District Judge found, that Respondent sought to obstruct justice. While Respondent, according to the Government Sentencing Memo, ``appeared to have no plans to stop committing his crime prior to being approached by law enforcement, he did accept responsibility for his actions immediately.'' GX 7 (Sentencing Memo, at 5); see also id. at 8- 9 (Respondent's ``cooperation in this case and his immediate acceptance of responsibility demonstrate not only an acknowledgement of his wrongdoing, but a sincere effort to take steps to make amends for the crime that [he] has committed.''). Thus, I find, based on the record as a whole, including the plea agreement; the statements by the prosecutor handling the criminal case, both in the Government's Sentencing Memo (stating that Respondent had ``acknowledged the full scope of his lengthy criminal conduct,'' GX 7 (Sentencing Memo, at 3) and at the sentencing hearing; and the District Court's acceptance of the guilty plea, the plea agreement, and application of the sentencing guidelines reductions based on his acceptance of responsibility; that Respondent accepted responsibility for his criminality. Respondent's Mandatory Exclusion From Participation in All Federal Health Care Programs By letter dated September 30, 2016, a Health Care Program Exclusions Reviewing Official of the HHS OIG notified Respondent that he was ``being excluded from participation in any capacity in the Medicare, Medicaid, and all Federal health care programs as defined in section 1128B(f) of the Social Security Act . . . for a minimum period of 5 years.'' GX 5, at 1 (hereinafter, HHS Exclusion Letter), also citing 42 U.S.C. 1320a-7(a). The HHS Exclusion Letter explained that Respondent's exclusion was ``due to . . . [his] conviction . . . of a criminal offense related to the delivery of an item or service under the Medicare or a State health care program.'' Id. It stated that Respondent's exclusion is ``effective 20 days from the date of this letter.'' Id. As 42 U.S.C. 1320a-7(a) makes clear, Respondent's conviction subjected him to the mandatory exclusion provision, and in his Written Statement, Respondent admits that he has been mandatorily excluded under 42 U.S.C. 1320a-7(a). I find, therefore, that Respondent has been excluded under the mandatory exclusion provisions of 42 U.S.C. 1320a- 7(a). Based on the terms of the HHS Exclusion Letter, uncontroverted by evidence in the record, I further find that Respondent's period of exclusion is still in effect. Discussion Pursuant to 21 U.S.C. 824(a)(5), the Attorney General may suspend or revoke a registration issued under section 823 of Title 21, ``upon a finding that the registrant . . . has been excluded . . . from participation in a program pursuant to section 1320a-7(a) of Title 42.'' Further, ``It is well established that the various grounds for revocation or suspension of an existing registration that Congress enumerated in [Sec. 824(a)] are also properly considered in deciding whether to grant or deny an application under [Sec. 823].'' Arthur H. Bell, D.O., 80 FR 50035, 50037 (2015) (citing The Lawsons, Inc., 72 FR 74334, 74337 (2007); Anthony D. Funches, 64 FR 14267, 14268 (1999); Alan R. Schankman, M.D., 63 FR 45260 (1998); Kuen H. Chen, M.D., 58 FR 65401, 65402 (1993)); see also Serling Drug Co. and Detroit Prescription Wholesaler, Inc., 40 FR 11918, 11919 (1975) (consistent Agency precedent has held that the CSA does not require the Agency to indulge in the useless act of granting a license on one day only to withdraw it on the next). Agency precedent has made clear that revocation under 21 U.S.C. 824(a)(5) may be appropriate regardless of whether or not the misconduct that led to the mandatory exclusion involved controlled substances. KK Pharmacy, 64 FR 49507, 49510 (1999) (collecting cases) (The Agency ``has previously held that misconduct which does not involve controlled substances may constitute grounds, under 21 U.S.C. 824(a)(5), for the revocation of a DEA Certificate of Registration.''); Melvin N. Seglin, M.D., 63 FR 70431, 70433 (1998) (``[M]isconduct which does not involve controlled substances may constitute grounds for the revocation of a DEA registration pursuant to 21 U.S.C. 824(a)(5).''), Stanley Dubin, D.D.S., 61 FR 60727, 60728 (1996) (Registration revoked and pending applications for renewal denied when registrant's ``actions cast substantial doubt on . . . [his] integrity.''); George D. Osafo, M.D., 58 FR 37508, 37,509 (1993) (Submission of fraudulent medical claims and larceny convictions indicated that registrant ``placed monetary gain above the welfare of his patients, and in so doing, endangered the public health and safety.''). Under 42 U.S.C. 1320a-7(a)(1), the HHS OIG is required to exclude from [[Page 29572]] participation in any Federal health care program any individual who has been convicted of a criminal offense ``related to the delivery of an item or service under . . . [42 U.S.C. 1395 et seq.] or under any State health care program.'' As found above, Respondent has been excluded from participation in any Federal health care program based on his ``conviction . . . of a criminal offense related to the delivery of an item or service under the Medicare or a State health care program,'' GX 5, at 1, and this is a mandatory exclusion subject to 21 U.S.C. 824(a)(5). Accordingly, I hold that DEA's evidence satisfies its prima facie burden to support revocation of Respondent's registration. Sanction Where, as here, DEA has established grounds to revoke a registration or deny an application, a respondent must then ``present[ ] sufficient mitigating evidence'' to show why he can be entrusted with a registration. Samuel S. Jackson, 72 FR 23848, 23853 (2007) (quoting Leo R. Miller, 53 FR 21931, 21932 (1988)). `` `Moreover, because ``past performance is the best predictor of future performance,'' ALRA Labs, Inc. v. DEA, 54 F.3d 450, 452 (7th Cir. 1995), [DEA] has repeatedly held that where [an applicant] has committed acts inconsistent with the public interest, the [applicant] must accept responsibility for [his] actions and demonstrate that [he] will not engage in future misconduct.' '' Jayam Krishna-Iyer, 74 FR 459, 463 (2009) (quoting Medicine Shoppe, 73 FR 364, 387 (2008)); see also Jackson, 72 FR at 23853; John H. Kennedy, 71 FR 35705, 35709 (2006); Cuong Tron Tran, 63 FR 64280, 64283 (1998); Prince George Daniels, 60 FR 62884, 62887 (1995). The same rule applies to the other grounds for sanctioning a registrant where the Agency has discretion as to the choice of sanction such as section 824(a)(5). See Arvinder Singh, 81 FR 8247, 8248 (2016) (denying application based, in part, on practitioner's mandatory exclusion, where practitioner ``failed to adequately acknowledge his misconduct''). While a registrant must accept responsibility for his misconduct and demonstrate that he will not engage in future misconduct in order to establish that he is entitled to retain his registration, DEA has repeatedly held that these are not the only factors that are relevant in determining the appropriate disposition of the matter. See, e.g., Joseph Gaudio, 74 FR 10083, 10094 (2009); Southwood Pharmaceuticals, Inc., 72 FR 36487, 36504 (2007). Obviously, the egregiousness and extent of an applicant's misconduct are significant factors in determining the appropriate sanction. See Singh, 81 FR at 8248 (denying application based, in part, on mandatory exclusion, noting that the practitioner's ``misconduct was egregious''); Jacobo Dreszer, 76 FR 19386, 19387-88 (2011) (explaining that a respondent can ``argue that even though the Government has made out a prima facie case, his conduct was not so egregious as to warrant revocation''); see also Paul Weir Battershell, 76 FR 44359, 44369 (2011) (imposing six-month suspension, noting that the evidence was not limited to security and recordkeeping violations found at first inspection and ``manifested a disturbing pattern of indifference on the part of [r]espondent to his obligations as a registrant''); Annibal P. Herrera, 61 FR 65075, 65078 (1996) (declining to revoke registration in mandatory exclusion case). So too, the Agency can consider the need to deter similar acts, both with respect to the respondent in a particular case and the community of registrants. See Gaudio, 74 FR at 10095 (quoting Southwood, 71 FR at 36503); Singh, 81 FR at 8248 (adopting ALJ's finding that ``agency's interest in specific deterrence support[ed] denial of'' application); Cf. McCarthy v. SEC, 406 F.3d 179, 188-89 (2d Cir. 2005) (upholding SEC's express adoption of ``deterrence, both specific and general, as a component in analyzing the remedial efficacy of sanctions''). In his Written Statement, Respondent argues that ``[i]t is doubtful there is a better example of a situation where a physician has earned the opportunity to retain his . . . [registration].'' GX 7 (Written Statement, at 4). The Written Statement supports this claim by stating that Respondent ``admitted throughout this entire process . . . that he made a regrettable error in judgment.'' Id. at 3. It also asserts that Respondent ``took complete responsibility for his actions, cooperated fully with authorities, went above and beyond to assist the government in charging and convicting health care providers engaged in wrongdoing, made restitution, completed his incarceration and has never had any aspersions cast upon his ability to practice medicine or manage prescriptions.'' Id. The Written Statement, however, does not include documentary evidence that Respondent made restitution or completed his incarceration. The Written Statement also asserts that Respondent ``continues to comply with all conditions of his probation.'' \2\ GX 7 (Written Statement, at 1). It states that, ``[d]uring the . . . 5 . . . year period prior to his sentencing, . . . [Respondent] worked diligently to assist the government in identifying and investigating cases against persons involved in health care fraud.'' Id. According to the Written Statement, Respondent's ``cooperation and testimony were instrumental in securing the conviction and sentencing of multiple health care providers,'' id., and the record shows that the Federal prosecutors and the District Judge agreed with the value and completeness of Respondent's eventual cooperation. --------------------------------------------------------------------------- \2\ DEA does not challenge this assertion. --------------------------------------------------------------------------- In his Written Statement, Respondent stated that he is ``a caring, compassionate and skilled physician'' whose ``colleagues regard him as skilled, hardworking, dependable, sought after by patients, thorough and exceedingly competent.'' GX 7 (Written Statement, at 2). It states that Respondent ``provides services to an historically underserved and indigent community in Gary, Indiana.'' Id. It also asserts that the District Judge who presided over Respondent's sentencing and the Assistant United States Attorney ``involved in'' Respondent's prosecution ``recognized . . . [his] contribution to the practice of medicine and noted the important role he has in the community as a physician.'' Id. According to the Written Statement, the District Judge ``hoped'' Respondent ``could continue to practice medicine in his community.'' Id. As support for his argument, Respondent relies on Kwan Bo Jin, M.D., 77 FR 35021 (2012). However, Respondent's reliance on Kwan Bo Jin for the proposition that the Agency has considered such community impact regarding prescribing practitioners is misplaced. In fact, the case stands for the opposite proposition in all types of prescribing practitioner revocation proceedings, not just in mandatory exclusion revocation proceedings under 21 U.S.C. 824(a)(5). See 77 FR at 35021 (``I have decided to adopt the ALJ's findings of fact and conclusions of law, except for his discussion of the role of community impact evidence in agency proceedings . . . which is contrary to agency precedent.''). See also Michael W. White, M.D., 79 FR 62957, 62964 (2014) (Holding that hundreds of letters written by Respondent's patients vouching for the quality of care Respondent provided them are ``irrelevant. The Agency has consistently held that so-called `community impact evidence' is not relevant in these proceedings.''); [[Page 29573]] Gregory D. Owens, D.D.S., 74 FR 36751, 36757 and n.22 (2009) (``The residents of this Nation's poorer areas are as deserving of protection from diverters as are the citizens of its wealthier communities, and there is no legitimate reason why practitioners should be treated any differently because of where they practice or the socioeconomic status of their patients.'' Considering community impact evidence would ``inject a new level of complexity into already complex proceedings and take the Agency far afield of the purpose of the . . . registration provisions, which is to prevent diversion.'').\3\ --------------------------------------------------------------------------- \3\ DEA's brief appears to agree with Respondent's reading of Kwan Bo Jin while distinguishing it on the facts. RFAA, at 5-6. As recognized in 21 CFR 1301.43, a written statement ``shall be considered in light of the lack of opportunity for cross-examination in determining the weight to be attached to matters of fact asserted therein.'' In this case, other credible evidence, such as the District Court's acceptance of the Respondent's guilty plea, the application of the Sentencing Guidelines provision crediting Respondent with accepting responsibility, and the concession by the AUSA in the criminal case that Respondent accepted responsibility, supports Respondent's contention that he has accepted responsibility. --------------------------------------------------------------------------- Counsel's Written Statement suggests that Respondent, like the respondent in Seglin, ``did not `attempt to conceal his misconduct and in fact was quite straightforward with the investigators.' '' GX 7 (Written Statement, at 3, citing Melvin N. Seglin, M.D., 63 FR at 70,433). As already discussed, Respondent's obstruction of justice was recorded on more than one occasion. Thus, although I will not revoke Respondent's registration, I reject Counsel's argument that Respondent did not attempt to conceal his misconduct. As for acceptance of responsibility, Agency precedent requires unequivocal acceptance of responsibility when a respondent has committed knowing or intentional misconduct. Lon F. Alexander, M.D., 82 FR 49704, 49728 (2017) (collecting cases) (A respondent who committed knowing or intentional misconduct must unequivocally acknowledge his misconduct.). Cf. Melvin N. Seglin, 63 FR at 70433 (Respondent thought the billing method he used was acceptable). Respondent's participation in the multi-year illegal cash kickback payment conspiracy was just that, knowing and intentional. See, e.g., GX 3, at 2-3 (Respondent's admissions in the Plea Agreement to knowing and willful criminality); GX 7 (Government Sentencing Memo, at 2-3) (describing the recorded acts forming the basis for the obstruction of justice enhancement); GX 7 (Transcript of Sentencing Hearing, at 37) (AUSA's description of Respondent's knowing and willful acts). I find, however, that the record as a whole shows the requisite acceptance of responsibility. According to the Plea Agreement, Respondent ``has clearly demonstrated a recognition and affirmative acceptance of personal responsibility for his criminal conduct.'' GX 3, at 9. While Respondent ``appeared to have no plans to stop committing his crime prior to being approached by law enforcement,'' the AUSA acknowledged that ``he did accept responsibility for his actions immediately.'' GX 7 (Government Sentencing Memo, at 5). The AUSA also stated that Respondent ``has unquestionably taken full responsibility for his action going so far as to provide significant cooperation to the government after his arrest.'' Id. at 7. Moreover, at the sentencing hearing, in addressing the need for specific deterrence, the AUSA concluded there was ``no need'' for it, stating that Respondent's ``immediate acceptance of responsibility demonstrate[s] not only an acknowledgement of his wrongdoing, but a sincere effort to take steps to make amends for the crime that [he] has committed.'' Id. at 8-9. Notably, DEA has put forward no evidence challenging the sincerity of Respondent's acceptance of responsibility. As for evidence in the record regarding whether Respondent should continue to be entrusted with a registration, the District Judge was troubled by Respondent's greed and the fact that Respondent took affirmative steps to obstruct justice. I, too, am troubled by the same facts. I do note, however, that Respondent's criminality did not directly involve his registration or controlled substances. There is nothing in the record addressing, let alone impugning, Respondent's use of his registration. As for the Agency's interest in deterrence, I adopt the District Judge's conclusion that specific deterrence is not a concern. GX 7 (Transcript of Sentencing Hearing, at 8). I agree with the District Judge that ``[g]eneral deterrence is the question.'' Id. at 30. While not issuing some sanction due to Respondent's outrageous misconduct sends the wrong message to the registrant community, not acknowledging the prosecutors' unqualified satisfaction with Respondent's significant cooperation likewise sends the wrong message. On the whole, while I find that the Respondent was involved in knowing and willful criminal conduct, I also find that this conduct did not involve the misuse of his registration to handle controlled substances. I further find, as the District Judge did, that the Respondent has accepted responsibility for his conduct. In sum, this case is factually unique, and, as such, I will impose a unique sanction. Based on all of the evidence in the record, I shall suspend Respondent's registration for a minimum period of two years. Said suspension shall terminate upon Respondent's providing evidence that he has satisfied the judgment of the District Court by paying the entire amount due pursuant to the District Court's Judgment. Order Pursuant to the authority vested in me by 21 U.S.C. 824(a), as well as 28 CFR 0.100(b), I order that DEA Certificate of Registration FA3926055 issued to Mohammed Asgar, M.D., be, and it hereby is, suspended for a minimum period of two years and that said suspension shall terminate upon Respondent's providing evidence that he has satisfied the judgment of the District Court by paying the amount he was ordered to pay pursuant to the Court's judgment. This Order is effective July 25, 2018. Dated: June 11, 2018. Robert W. Patterson, Acting Administrator. [FR Doc. 2018-13531 Filed 6-22-18; 8:45 am] BILLING CODE 4410-09-P
![Federal Register / Vol. 83, No. 122 / Monday, June 25, 2018 / Notices 29569
The Commission made this programs for a minimum period of five The Nature and Scope of Respondent’s
determination pursuant to section years pursuant to 42 U.S.C. 1320a–7(a).’’ Criminality
751(c) of the Act (19 U.S.C. 1675(c)). It GX 6, at 2. It asserted that, ‘‘[m]andatory Respondent’s criminal conduct began
completed and filed its determination in exclusion from Medicare is an in Chicago in or about 2005. GX 3 (Plea
this review on June 19, 2018. The views independent ground for revoking a DEA Agreement, United States v. Asgar, No.
of the Commission are contained in registration pursuant to 21 U.S.C. 12 CR 491–10 (N.D. Ill. Dec. 18, 2014)
USITC Publication 4795 (June 2018), 824(a)(5).’’ Id. The Show Cause Order (hereinafter, Plea Agreement)), at 2. At
entitled Tin- and Chromium-Coated further asserted that ‘‘although your this time, Respondent and another
Steel Sheet from Japan: Investigation conviction was unrelated to your medical doctor, Dr. Farzana Begum,
No. 731–TA–860 (Third Review). handling of controlled substances, DEA ‘‘conspired with each other to
By order of the Commission. has nevertheless found that the knowingly and willfully refer Medicare
Issued: June 19, 2018. underlying conviction forming the basis beneficiaries to Grand Home Health for
Lisa Barton, for a registrant’s exclusion from the provision of home health care
Secretary to the Commission.
participating in federal health care services in exchange for illegal cash
programs need not involve controlled kickback payments.’’ Id. at 2–3. Each
[FR Doc. 2018–13504 Filed 6–22–18; 8:45 am]
substances for revocation under 21 Medicare patient that the doctors
BILLING CODE 7020–02–P
U.S.C. 824(a)(5)’’ to be warranted. Id. referred resulted in a cash payment of
The Show Cause Order notified $400 to Dr. Begum. Id. at 3. According
Respondent of his right to request a to the Plea Agreement, Respondent
DEPARTMENT OF JUSTICE
hearing on the allegations, or to submit ‘‘knew that it was illegal to solicit and
Drug Enforcement Administration a written statement in lieu of a hearing, receive kickbacks . . . in exchange for
the procedures for electing each option, . . . referrals of Medicare patients.’’ Id.
Decision and Order: Mohammed and the consequences for failing to elect ‘‘From in or about January 2006 through
Asgar, M.D. either option. Id. at 2–3 (citing 21 CFR May 2008,’’ Dr. Begum received about
1301.43). The Show Cause Order also ‘‘$141,100 in kickbacks in exchange for
On March 29, 2017, the Assistant notified Respondent of his right to
Administrator, Diversion Control [Respondent’s] referral of Medicare
submit a corrective action plan under 21 beneficiaries to Grand Home Health.’’
Division, Drug Enforcement U.S.C. 824(c)(2)(C). Id. at 3.
Administration (hereinafter, DEA), Id.
issued an Order to Show Cause to By letter dated April 27, 2017, The relationship between Respondent
Mohammed Asgar, M.D. (hereinafter, Respondent’s counsel acknowledged and Dr. Begum ended in approximately
Respondent), of Gary, Indiana.1 GX 6 service of the Show Cause Order on May 2008. Id. As a result, Respondent
(Order to Show Cause), at 1. The Show April 4, 2017, waived Respondent’s ended the arrangement under which Dr.
Cause Order proposed the revocation of right to a hearing, and stated that he was Begum received cash kickbacks in
Respondent’s DEA Certificate of filing Respondent’s written response to exchange for Respondent’s Medicare
Registration as a practitioner, on the the Show Cause Order. GX 7 (Written patient referrals. Id.
ground that the U.S. Department of Statement), at 1. Attached to the Written About six months later, however, the
Health and Human Services, Office of Statement are the Show Cause Order, 22 cash kickback payments resumed. This
Inspector General (hereinafter, HHS letters ‘‘submitted voluntarily by time, Respondent received cash
OIG) notified Respondent of his patients and colleagues’’ of Respondent, kickbacks in exchange for his referral of
‘‘mandatory exclusion from the transcript of Respondent’s Medicare patients to Grand Home
participation in all Federal health care Sentencing Hearing, and the Health. Id. On or about February 9,
programs for a minimum period of five Government’s Sentencing Memorandum 2011, for example, Respondent received
years pursuant to 42 U.S.C. 1320a–7(a).’’ concerning Respondent. Id. at 2. $1,500 in cash for his referral of three
Id. at 2 (citing 21 U.S.C. 824(a)(5)). The On October 13, 2017, DEA submitted patients to Grand Home Health ‘‘for the
Show Cause Order also proposed the a Request for Final Agency Action furnishing of home health care services
denial of any pending application by (RFAA) including an evidentiary record for which payment may be made in
Respondent to modify or renew his to support the Show Cause Order’s whole and in part under Medicare.’’ Id.
registration. Id. at 1. allegations and Respondent’s Written at 3–4. For the two-year period between
As for the Agency’s jurisdiction, the Statement and attachments. about February 2009 and February 2011,
Show Cause Order alleged that I issue this Decision and Order based Respondent received about $15,900 in
Respondent holds DEA Certificate of on the entire record before me. 21 CFR exchange for his referral of Medicare
Registration No. FA3926055, which 1301.43(e). I make the following beneficiaries to Grand Home Health. Id.
authorizes him to dispense controlled findings of fact. at 4.
substances in schedules II through V as By May 2011, the Government was
a practitioner, at the registered address Findings of Fact investigating the conspiracy. Id. On or
of 600 Grant Street, Gary, Indiana Respondent’s DEA Registration about May 3, 2011, Respondent met
46402. Id. The Show Cause Order with an individual who was cooperating
alleged that this registration expires on Respondent is the holder of DEA with the investigation and recording the
June 30, 2019. GX 6, at 2. Certificate of Registration No. meeting. Id. During the meeting,
As to the substantive ground for the FA3926055, pursuant to which he is Respondent received about $1,500 in
proceeding, the Show Cause Order authorized to dispense controlled exchange for the referral of three
amozie on DSK3GDR082PROD with NOTICES1
specifically alleged that Respondent was substances in schedules II through V as Medicare patients to Grand Home
‘‘notified by . . . [the HHS OIG] of . . . a practitioner, at the registered address Health. Id.
[his] mandatory exclusion from of 600 Grant Street, Gary, Indiana At another meeting that was recorded
participation in all Federal health care 46402. GX 1 (copy of registration); GX by a different individual, Respondent
2 (Certification of Registration Status), at urged the individual to ‘‘deny right
1 The Show Cause Order caption also listed an 1. This registration expires on June 30, away’’ if anyone raised the kickback
address in Posen, Illinois for Respondent. 2019. GX 1; GX 2, at 1. conspiracy. Id. Respondent said, ‘‘So
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that’s the story, okay?’’ as he apparently attorney, the United States Attorney for subjugating his patients’ interests to his
sought to confirm that the individual the Northern District of Illinois, and an own greed, since he did not need the
would call such a claim a lie and say Assistant U.S. Attorney signed a Plea money given he ‘‘was earning more than
‘‘nothing . . . happened.’’ Id.; see also Agreement. GX 3, at 22. Respondent half a million dollars per year,’’
GX 7 (Government’s Sentencing agreed to plead guilty to ‘‘conspiracy to according to ‘‘what was actually
Memorandum, United States v. Asgar, commit an offense against the United reported on . . . [Respondent’s] tax
No.–12 CR 491–10 (N.D. Ill June 7, States, namely, conspiring to solicit and returns.’’ Id. at 6.
2016) (hereinafter, Government receive kickbacks, in violation of Title The Government’s Sentencing Memo
Sentencing Memo), at 2–3 (After law 42, United States Code, Section 1320a– states that, while Respondent ‘‘appeared
enforcement discovered the Grand 7b(b)(1)(A), all in violation of Title 18, to have no plans to stop committing his
Home Health Care scheme, Asgar was United States Code, Section 371.’’ Id. at crime prior to being approached by law
recorded cautioning the owner of Grand 1. In sum, Respondent’s criminality enforcement, he did accept
Home Health Care about keeping consisted of a multi-year conspiracy responsibility for his actions
records of the kickback payments, involving more than $2.9 million of immediately.’’ Id. at 5. Elsewhere, the
probing for information related to law Medicare payments to two home health Government’s Sentencing Memo states
enforcement’s discovery of the scheme, care companies and the netting of that Respondent ‘‘has unquestionably
and assuring the owner that, ‘‘I have to hundreds of thousands of dollars in taken full responsibility for his action
be a little careful now, listen when kickbacks by doctors involved in this [sic] going so far as to provide
you’re cleared, I will start [referring conspiracy. GX 3, at 2–6. significant cooperation to the
patients], ok?’’). According to the Plea Agreement, [G]overnment after his arrest.’’ Id. at 7.
In total, from about January 1, 2006 Respondent ‘‘has clearly demonstrated a Respondent’s ‘‘significant cooperation,’’
through March 31, 2011, Medicare paid recognition and affirmative acceptance according to the Sentencing Memo,
about $201,635 for claims submitted for of personal responsibility for his consisted of ‘‘conduct[ing] two
home health services provided to the criminal conduct.’’ Id. at 9. Moreover, recordings that were ultimately used
Medicare patients that Respondent the Plea Agreement includes language . . . in the investigation and
referred to Grand Home Health in giving Respondent credit for acceptance prosecution of administrators and
exchange for illegal kickbacks. GX 3, at of responsibility pursuant to the United physicians,’’ testifying at two trials
5. From about January 1, 2006 through States Sentencing Guidelines, ‘‘over the course of multiple days and
May 31, 2008, Medicare paid about § 3E1.1(b). Id. at 10. This provision of participat[ing] in numerous preparation
$1,002,728 for claims submitted for the Plea Agreement provides that ‘‘if the sessions during the course of his
home health services provided to the Court determines that the defendant is cooperation,’’ and providing law
Medicare beneficiaries that Dr. Begum entitled to a two-level reduction for enforcement with ‘‘information
referred to Grand Home Health in acceptance of responsibility, the regarding other corrupt home health
exchange for illegal kickbacks. Id. Thus, government will move for an additional entities and doctors that the
‘‘Grand Home Health earned one-level reduction in the offense [G]overnment was able to use’’ in other
approximately $317,952 in net proceeds level.’’ Id. Further, in the Plea investigations. Id. at 5–6. The
from these illegally referred patients.’’ Agreement, Respondent agreed to full Sentencing Memo states that
Id. According to the Plea Agreement, and truthful cooperation ‘‘in any matter Respondent’s ‘‘significant cooperation’’
Respondent acknowledged these facts. in which he is called upon to was the reason it was recommending a
Id. cooperate’’ by the Chicago U.S. lower sentence than it otherwise would
In addition to the above, beginning in Attorney’s Office. Id. at 12. The have recommended, given that
or about 2008, Respondent agreed to expected cooperation included Respondent ‘‘took advantage of the faith
refer Medicare beneficiaries to ‘‘providing complete and truthful and commitment of his patients in order
‘‘Company A’’ for home health care information in any investigation and to extract benefits for himself to which
services in exchange for illegal cash pre-trial preparation and complete and he knew he was not entitled.’’ Id. at 6.
kickbacks from ‘‘Individual A.’’ Id. at 6. truthful testimony in any criminal, civil, Respondent’s Sentencing Hearing:
Pursuant to this conspiracy, Respondent or administrative proceeding.’’ Id. Respondent also attached the Transcript
typically received about $500 per At some point, Respondent appeared of Sentencing Hearing to the Written
patient referral. Id. In total, Respondent before the United States District Court Statement. When Respondent took
solicited and received about $74,000 in and pled guilty to the charge. The advantage of his right to speak at his
cash kickbacks in exchange for his District Court accepted his plea. Sentencing Hearing, he stated that ‘‘it
referral of Medicare patients to The Government Sentencing Memo: has been a long, rough and stressful five
Company A between about 2008 and Respondent’s counsel attached the years for me and my family.’’ GX 7
August 2011. Id. Medicare paid about Government’s Sentencing Memo to his (Transcript of Proceedings—Sentencing
$1,725,762 for claims submitted by Written Statement. According to the Hearing at 38–39, United States v.
Company A for home health services Government’s Sentencing Memo, Asgar, No.–12 CR 491–10 (N.D. Ill. June
provided to the Medicare patients Respondent ‘‘took advantage of the faith 15, 2016) (hereinafter, Transcript of
whom Respondent referred in exchange and commitment of his patients in order Sentencing Hearing). Regarding
for illegal kickbacks. Id. Company A to extract benefits for himself to which acceptance of responsibility,
received about $146,689 in net proceeds he knew he was not entitled. In doing Respondent stated that, ‘‘Over this
from the patients Respondent illegally so, he abused his position as their period my character and reputation that
referred. Id. According to the Plea trusted doctor for his own pecuniary was at the peak slid down to the bottom
amozie on DSK3GDR082PROD with NOTICES1
Agreement, Respondent acknowledged advantage, knowing that it was wrong as a consequence of my wrongdoing, for
the amounts Medicare paid to Company all along.’’ GX 7, Government’s which I deeply regret, and accept full
A during this phase of the illegal cash Sentencing Memo, at 6. According to responsibilities.’’ Id. at 39. He
kickback conspiracy in which he the Government’s Sentencing Memo, emphasized that he ‘‘cooperated and
participated. Id. Respondent treated his ‘‘patients as a helped the [G]overnment in every way
The Plea Agreement: On December commodity to be traded . . . for possible to successfully bring to an end
18, 2014, Respondent, Respondent’s additional, secret profits,’’ id. at 7, one of the biggest and high profile
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medical scandals in Illinois history.’’ Id. urged another doctor ‘‘to lie if asked the mandatory exclusion provisions of
Respondent stated that his cooperation whether that doctor had ever provided 42 U.S.C. 1320a–7(a). Based on the
with the investigation included patients in return for money.’’ GX 7 terms of the HHS Exclusion Letter,
‘‘recording of conversation [sic] with (Government Sentencing Memo) at 3; uncontroverted by evidence in the
medical personnel, administrative see also GX 3, at 4. Thus, I find, as the record, I further find that Respondent’s
officers, meeting with prosecutors, District Judge found, that Respondent period of exclusion is still in effect.
federal agents, lengthy trial, trial sought to obstruct justice.
While Respondent, according to the Discussion
preparations and testifying at trials.’’ Id.
An Assistant United States Attorney Government Sentencing Memo, Pursuant to 21 U.S.C. 824(a)(5), the
(hereinafter, AUSA) also addressed the ‘‘appeared to have no plans to stop Attorney General may suspend or
Court at Respondent’s Sentencing committing his crime prior to being revoke a registration issued under
Hearing. He agreed that Respondent approached by law enforcement, he did section 823 of Title 21, ‘‘upon a finding
cooperated with the criminal accept responsibility for his actions that the registrant . . . has been
investigation and reiterated that immediately.’’ GX 7 (Sentencing Memo, excluded . . . from participation in a
Respondent’s cooperation was ‘‘one of at 5); see also id. at 8–9 (Respondent’s program pursuant to section 1320a–7(a)
the essential factors in mitigation.’’ Id. ‘‘cooperation in this case and his of Title 42.’’ Further, ‘‘It is well
at 31. He stated that Respondent ‘‘has immediate acceptance of responsibility established that the various grounds for
also undertaken significant steps to demonstrate not only an revocation or suspension of an existing
make amends.’’ Id. at 37. acknowledgement of his wrongdoing, registration that Congress enumerated in
The AUSA also addressed aggravating but a sincere effort to take steps to make [§ 824(a)] are also properly considered
factors. He stated that Respondent’s amends for the crime that [he] has in deciding whether to grant or deny an
crime involved ‘‘betrayal of patients’ committed.’’). Thus, I find, based on the application under [§ 823].’’ Arthur H.
trust[, and] . . . betrayal of larger record as a whole, including the plea Bell, D.O., 80 FR 50035, 50037 (2015)
society, which places trust in doctors to agreement; the statements by the (citing The Lawsons, Inc., 72 FR 74334,
do the right thing [–] to put the patients prosecutor handling the criminal case, 74337 (2007); Anthony D. Funches, 64
over their own personal pecuniary both in the Government’s Sentencing FR 14267, 14268 (1999); Alan R.
gains.’’ Id. at 34. The AUSA stated that, Memo (stating that Respondent had Schankman, M.D., 63 FR 45260 (1998);
‘‘for reasons that may be simply greed,’’ ‘‘acknowledged the full scope of his Kuen H. Chen, M.D., 58 FR 65401,
Respondent was among those ‘‘willing lengthy criminal conduct,’’ GX 7 65402 (1993)); see also Serling Drug Co.
to trade off the trust that their patients (Sentencing Memo, at 3) and at the and Detroit Prescription Wholesaler,
and their society placed in them and sentencing hearing; and the District Inc., 40 FR 11918, 11919 (1975)
trade that for financial gain.’’ Id. at 36. Court’s acceptance of the guilty plea, the (consistent Agency precedent has held
The AUSA stated that doctors ‘‘occupy plea agreement, and application of the that the CSA does not require the
a special place in our society’’ and sentencing guidelines reductions based Agency to indulge in the useless act of
criminal sentences ‘‘do have a real on his acceptance of responsibility; that granting a license on one day only to
deterrent effect.’’ Id. He urged the Court Respondent accepted responsibility for withdraw it on the next).
to ‘‘send a message’’ that ‘‘[i]f you his criminality. Agency precedent has made clear that
violate the anti-kick back [sic] statute, if revocation under 21 U.S.C. 824(a)(5)
you conspire to turn your patients into Respondent’s Mandatory Exclusion may be appropriate regardless of
chips to be turned in, there are From Participation in All Federal Health whether or not the misconduct that led
repercussions.’’ Id. Care Programs to the mandatory exclusion involved
During the sentencing hearing, the By letter dated September 30, 2016, a controlled substances. KK Pharmacy, 64
Court repeatedly referenced Health Care Program Exclusions FR 49507, 49510 (1999) (collecting
Respondent’s greed and obstruction of Reviewing Official of the HHS OIG cases) (The Agency ‘‘has previously
justice. The Court pointed out that notified Respondent that he was ‘‘being held that misconduct which does not
Respondent ‘‘probably . . . had the excluded from participation in any involve controlled substances may
most lucrative practice going at the capacity in the Medicare, Medicaid, and constitute grounds, under 21 U.S.C.
time.’’ Id. at 33. Yet, the Court stated, all Federal health care programs as 824(a)(5), for the revocation of a DEA
‘‘on top of that,’’ Respondent was defined in section 1128B(f) of the Social Certificate of Registration.’’); Melvin N.
‘‘helping himself to the kickbacks.’’ Id. Security Act . . . for a minimum period Seglin, M.D., 63 FR 70431, 70433 (1998)
Further, the Court stated, agreeing with of 5 years.’’ GX 5, at 1 (hereinafter, HHS (‘‘[M]isconduct which does not involve
the AUSA, that despite ‘‘inflection Exclusion Letter), also citing 42 U.S.C. controlled substances may constitute
points, . . . times when someone would 1320a–7(a). The HHS Exclusion Letter grounds for the revocation of a DEA
have caught themselves maybe and said, explained that Respondent’s exclusion registration pursuant to 21 U.S.C.
‘Eh, I’m out,’ ’’ Respondent, instead, was ‘‘due to . . . [his] conviction . . . 824(a)(5).’’), Stanley Dubin, D.D.S., 61
wanted to ‘‘cover it up.’’ Id. at 33–34. of a criminal offense related to the FR 60727, 60728 (1996) (Registration
The ‘‘obstruction piece on top of it,’’ the delivery of an item or service under the revoked and pending applications for
Court stated, ‘‘compounds that a little Medicare or a State health care renewal denied when registrant’s
bit.’’ Id. at 34. program.’’ Id. It stated that Respondent’s ‘‘actions cast substantial doubt on . . .
Based on the uncontroverted evidence exclusion is ‘‘effective 20 days from the [his] integrity.’’); George D. Osafo, M.D.,
in the record, I find that Respondent date of this letter.’’ Id. 58 FR 37508, 37,509 (1993) (Submission
participated in multi-year illegal As 42 U.S.C. 1320a–7(a) makes clear, of fraudulent medical claims and
amozie on DSK3GDR082PROD with NOTICES1
kickback conspiracies involving the Respondent’s conviction subjected him larceny convictions indicated that
payment of about $230,900 in illegal to the mandatory exclusion provision, registrant ‘‘placed monetary gain above
kickbacks to himself and his co- and in his Written Statement, the welfare of his patients, and in so
conspirator, and of Medicare claims of Respondent admits that he has been doing, endangered the public health and
over $2.9 million. mandatorily excluded under 42 U.S.C. safety.’’).
In addition, I find that, during the 1320a–7(a). I find, therefore, that Under 42 U.S.C. 1320a–7(a)(1), the
criminal investigation, Respondent Respondent has been excluded under HHS OIG is required to exclude from
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![29572 Federal Register / Vol. 83, No. 122 / Monday, June 25, 2018 / Notices
participation in any Federal health care egregiousness and extent of an with all conditions of his probation.’’ 2
program any individual who has been applicant’s misconduct are significant GX 7 (Written Statement, at 1). It states
convicted of a criminal offense ‘‘related factors in determining the appropriate that, ‘‘[d]uring the . . . 5 . . . year
to the delivery of an item or service sanction. See Singh, 81 FR at 8248 period prior to his sentencing, . . .
under . . . [42 U.S.C. 1395 et seq.] or (denying application based, in part, on [Respondent] worked diligently to assist
under any State health care program.’’ mandatory exclusion, noting that the the government in identifying and
As found above, Respondent has been practitioner’s ‘‘misconduct was investigating cases against persons
excluded from participation in any egregious’’); Jacobo Dreszer, 76 FR involved in health care fraud.’’ Id.
Federal health care program based on 19386, 19387–88 (2011) (explaining that According to the Written Statement,
his ‘‘conviction . . . of a criminal a respondent can ‘‘argue that even Respondent’s ‘‘cooperation and
offense related to the delivery of an item though the Government has made out a testimony were instrumental in securing
or service under the Medicare or a State prima facie case, his conduct was not so the conviction and sentencing of
health care program,’’ GX 5, at 1, and egregious as to warrant revocation’’); see multiple health care providers,’’ id., and
this is a mandatory exclusion subject to also Paul Weir Battershell, 76 FR 44359, the record shows that the Federal
21 U.S.C. 824(a)(5). Accordingly, I hold 44369 (2011) (imposing six-month prosecutors and the District Judge
that DEA’s evidence satisfies its prima suspension, noting that the evidence agreed with the value and completeness
facie burden to support revocation of was not limited to security and of Respondent’s eventual cooperation.
Respondent’s registration. recordkeeping violations found at first In his Written Statement, Respondent
inspection and ‘‘manifested a disturbing stated that he is ‘‘a caring,
Sanction compassionate and skilled physician’’
pattern of indifference on the part of
Where, as here, DEA has established [r]espondent to his obligations as a whose ‘‘colleagues regard him as
grounds to revoke a registration or deny registrant’’); Annibal P. Herrera, 61 FR skilled, hardworking, dependable,
an application, a respondent must then 65075, 65078 (1996) (declining to sought after by patients, thorough and
‘‘present[ ] sufficient mitigating revoke registration in mandatory exceedingly competent.’’ GX 7 (Written
evidence’’ to show why he can be exclusion case). Statement, at 2). It states that
entrusted with a registration. Samuel S. Respondent ‘‘provides services to an
Jackson, 72 FR 23848, 23853 (2007) So too, the Agency can consider the historically underserved and indigent
(quoting Leo R. Miller, 53 FR 21931, need to deter similar acts, both with community in Gary, Indiana.’’ Id. It also
21932 (1988)). ‘‘ ‘Moreover, because respect to the respondent in a particular asserts that the District Judge who
‘‘past performance is the best predictor case and the community of registrants. presided over Respondent’s sentencing
of future performance,’’ ALRA Labs, Inc. See Gaudio, 74 FR at 10095 (quoting and the Assistant United States
v. DEA, 54 F.3d 450, 452 (7th Cir. 1995), Southwood, 71 FR at 36503); Singh, 81 Attorney ‘‘involved in’’ Respondent’s
[DEA] has repeatedly held that where FR at 8248 (adopting ALJ’s finding that prosecution ‘‘recognized . . . [his]
[an applicant] has committed acts ‘‘agency’s interest in specific deterrence contribution to the practice of medicine
inconsistent with the public interest, the support[ed] denial of’’ application); Cf. and noted the important role he has in
[applicant] must accept responsibility McCarthy v. SEC, 406 F.3d 179, 188–89 the community as a physician.’’ Id.
for [his] actions and demonstrate that (2d Cir. 2005) (upholding SEC’s express According to the Written Statement, the
[he] will not engage in future adoption of ‘‘deterrence, both specific District Judge ‘‘hoped’’ Respondent
misconduct.’ ’’ Jayam Krishna-Iyer, 74 and general, as a component in ‘‘could continue to practice medicine in
FR 459, 463 (2009) (quoting Medicine analyzing the remedial efficacy of his community.’’ Id. As support for his
Shoppe, 73 FR 364, 387 (2008)); see also sanctions’’). argument, Respondent relies on Kwan
Jackson, 72 FR at 23853; John H. In his Written Statement, Respondent Bo Jin, M.D., 77 FR 35021 (2012).
Kennedy, 71 FR 35705, 35709 (2006); argues that ‘‘[i]t is doubtful there is a However, Respondent’s reliance on
Cuong Tron Tran, 63 FR 64280, 64283 better example of a situation where a Kwan Bo Jin for the proposition that the
(1998); Prince George Daniels, 60 FR physician has earned the opportunity to Agency has considered such community
62884, 62887 (1995). The same rule retain his . . . [registration].’’ GX 7 impact regarding prescribing
applies to the other grounds for (Written Statement, at 4). The Written practitioners is misplaced. In fact, the
sanctioning a registrant where the Statement supports this claim by stating case stands for the opposite proposition
Agency has discretion as to the choice that Respondent ‘‘admitted throughout in all types of prescribing practitioner
of sanction such as section 824(a)(5). this entire process . . . that he made a revocation proceedings, not just in
See Arvinder Singh, 81 FR 8247, 8248 regrettable error in judgment.’’ Id. at 3. mandatory exclusion revocation
(2016) (denying application based, in It also asserts that Respondent ‘‘took proceedings under 21 U.S.C. 824(a)(5).
part, on practitioner’s mandatory complete responsibility for his actions, See 77 FR at 35021 (‘‘I have decided to
exclusion, where practitioner ‘‘failed to cooperated fully with authorities, went adopt the ALJ’s findings of fact and
adequately acknowledge his above and beyond to assist the conclusions of law, except for his
misconduct’’). government in charging and convicting discussion of the role of community
While a registrant must accept impact evidence in agency proceedings
health care providers engaged in
responsibility for his misconduct and . . . which is contrary to agency
wrongdoing, made restitution,
demonstrate that he will not engage in precedent.’’). See also Michael W.
completed his incarceration and has
future misconduct in order to establish White, M.D., 79 FR 62957, 62964 (2014)
never had any aspersions cast upon his
that he is entitled to retain his (Holding that hundreds of letters written
ability to practice medicine or manage
registration, DEA has repeatedly held by Respondent’s patients vouching for
amozie on DSK3GDR082PROD with NOTICES1
prescriptions.’’ Id. The Written
that these are not the only factors that the quality of care Respondent provided
Statement, however, does not include
are relevant in determining the them are ‘‘irrelevant. The Agency has
documentary evidence that Respondent
appropriate disposition of the matter. consistently held that so-called
made restitution or completed his
See, e.g., Joseph Gaudio, 74 FR 10083, ‘community impact evidence’ is not
incarceration.
10094 (2009); Southwood relevant in these proceedings.’’);
Pharmaceuticals, Inc., 72 FR 36487, The Written Statement also asserts
36504 (2007). Obviously, the that Respondent ‘‘continues to comply 2 DEA does not challenge this assertion.
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Gregory D. Owens, D.D.S., 74 FR 36751, I find, however, that the record as a Respondent has accepted responsibility
36757 and n.22 (2009) (‘‘The residents whole shows the requisite acceptance of for his conduct. In sum, this case is
of this Nation’s poorer areas are as responsibility. According to the Plea factually unique, and, as such, I will
deserving of protection from diverters as Agreement, Respondent ‘‘has clearly impose a unique sanction.
are the citizens of its wealthier demonstrated a recognition and Based on all of the evidence in the
communities, and there is no legitimate affirmative acceptance of personal record, I shall suspend Respondent’s
reason why practitioners should be responsibility for his criminal conduct.’’ registration for a minimum period of
treated any differently because of where GX 3, at 9. While Respondent ‘‘appeared two years. Said suspension shall
they practice or the socioeconomic to have no plans to stop committing his terminate upon Respondent’s providing
status of their patients.’’ Considering crime prior to being approached by law evidence that he has satisfied the
community impact evidence would enforcement,’’ the AUSA acknowledged judgment of the District Court by paying
‘‘inject a new level of complexity into that ‘‘he did accept responsibility for his the entire amount due pursuant to the
already complex proceedings and take actions immediately.’’ GX 7 District Court’s Judgment.
the Agency far afield of the purpose of (Government Sentencing Memo, at 5).
the . . . registration provisions, which The AUSA also stated that Respondent Order
is to prevent diversion.’’).3 ‘‘has unquestionably taken full Pursuant to the authority vested in me
Counsel’s Written Statement suggests responsibility for his action going so far by 21 U.S.C. 824(a), as well as 28 CFR
that Respondent, like the respondent in as to provide significant cooperation to 0.100(b), I order that DEA Certificate of
Seglin, ‘‘did not ‘attempt to conceal his the government after his arrest.’’ Id. at Registration FA3926055 issued to
misconduct and in fact was quite 7. Moreover, at the sentencing hearing, Mohammed Asgar, M.D., be, and it
straightforward with the investigators.’ ’’ in addressing the need for specific hereby is, suspended for a minimum
GX 7 (Written Statement, at 3, citing deterrence, the AUSA concluded there period of two years and that said
Melvin N. Seglin, M.D., 63 FR at 70,433). was ‘‘no need’’ for it, stating that suspension shall terminate upon
As already discussed, Respondent’s Respondent’s ‘‘immediate acceptance of Respondent’s providing evidence that
obstruction of justice was recorded on responsibility demonstrate[s] not only he has satisfied the judgment of the
more than one occasion. Thus, although an acknowledgement of his wrongdoing, District Court by paying the amount he
I will not revoke Respondent’s but a sincere effort to take steps to make was ordered to pay pursuant to the
registration, I reject Counsel’s argument amends for the crime that [he] has Court’s judgment. This Order is effective
that Respondent did not attempt to committed.’’ Id. at 8–9. Notably, DEA July 25, 2018.
conceal his misconduct. has put forward no evidence
As for acceptance of responsibility, Dated: June 11, 2018.
challenging the sincerity of
Agency precedent requires unequivocal Respondent’s acceptance of Robert W. Patterson,
acceptance of responsibility when a responsibility. Acting Administrator.
respondent has committed knowing or As for evidence in the record [FR Doc. 2018–13531 Filed 6–22–18; 8:45 am]
intentional misconduct. Lon F. regarding whether Respondent should BILLING CODE 4410–09–P
Alexander, M.D., 82 FR 49704, 49728 continue to be entrusted with a
(2017) (collecting cases) (A respondent registration, the District Judge was
who committed knowing or intentional troubled by Respondent’s greed and the DEPARTMENT OF JUSTICE
misconduct must unequivocally fact that Respondent took affirmative
acknowledge his misconduct.). Cf. steps to obstruct justice. I, too, am Drug Enforcement Administration
Melvin N. Seglin, 63 FR at 70433 troubled by the same facts. I do note, [Docket No. 18–15]
(Respondent thought the billing method however, that Respondent’s criminality
he used was acceptable). Respondent’s did not directly involve his registration Decision and Order: Kevin G. Morgan,
participation in the multi-year illegal or controlled substances. There is RN/APN
cash kickback payment conspiracy was nothing in the record addressing, let
just that, knowing and intentional. See, alone impugning, Respondent’s use of On December 22, 2017, the Acting
e.g., GX 3, at 2–3 (Respondent’s his registration. Assistant Administrator, Diversion
admissions in the Plea Agreement to As for the Agency’s interest in Control Division, Drug Enforcement
knowing and willful criminality); GX 7 deterrence, I adopt the District Judge’s Administration (DEA), issued an Order
(Government Sentencing Memo, at 2–3) conclusion that specific deterrence is to Show Cause to Kevin G. Morgan, RN/
(describing the recorded acts forming not a concern. GX 7 (Transcript of APN (Respondent), of Nederland, Texas.
the basis for the obstruction of justice Sentencing Hearing, at 8). I agree with The Show Cause Order proposed the
enhancement); GX 7 (Transcript of the District Judge that ‘‘[g]eneral revocation of Respondent’s DEA
Sentencing Hearing, at 37) (AUSA’s deterrence is the question.’’ Id. at 30. Certificate of Registration No.
description of Respondent’s knowing While not issuing some sanction due to MM2890312 on the ground that he does
and willful acts). Respondent’s outrageous misconduct ‘‘not have authority to handle controlled
sends the wrong message to the substances in the state of Texas, the
3 DEA’s brief appears to agree with Respondent’s registrant community, not state in which [Respondent is]
reading of Kwan Bo Jin while distinguishing it on acknowledging the prosecutors’ registered with the DEA.’’ Order to
the facts. RFAA, at 5–6. As recognized in 21 CFR
1301.43, a written statement ‘‘shall be considered unqualified satisfaction with Show Cause, at 1 (citing 21 U.S.C.
in light of the lack of opportunity for cross- Respondent’s significant cooperation 823(f), 824(a)(3)).
examination in determining the weight to be likewise sends the wrong message. With respect to the Agency’s
amozie on DSK3GDR082PROD with NOTICES1
attached to matters of fact asserted therein.’’ In this On the whole, while I find that the jurisdiction, the Show Cause Order
case, other credible evidence, such as the District
Court’s acceptance of the Respondent’s guilty plea, Respondent was involved in knowing alleged that Respondent is the holder of
the application of the Sentencing Guidelines and willful criminal conduct, I also find Certificate of Registration No.
provision crediting Respondent with accepting that this conduct did not involve the MM2890312, pursuant to which he is
responsibility, and the concession by the AUSA in
the criminal case that Respondent accepted
misuse of his registration to handle authorized to dispense controlled
responsibility, supports Respondent’s contention controlled substances. I further find, as substances as a practitioner in schedules
that he has accepted responsibility. the District Judge did, that the III through V, at the registered address
VerDate Sep<11>2014 17:58 Jun 22, 2018 Jkt 244001 PO 00000 Frm 00046 Fmt 4703 Sfmt 4703 E:\FR\FM\25JNN1.SGM 25JNN1](https://thefederalregister.org/doc/83_FR_29691/page/5.svg)
Document Created: 2018-06-23 02:28:53
Document Modified: 2018-06-23 02:28:53
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| FR Citation | 83 FR 29569 |
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