Richard Hauser, M.D.; Decision and Order, 26308-26310 [2018-12138]
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26308
Federal Register / Vol. 83, No. 109 / Wednesday, June 6, 2018 / Notices
INTERNATIONAL TRADE
COMMISSION
[Investigation Nos. 731–TA–1369–1372
(Final)]
Fine Denier Polyester Staple Fiber
From China, India, Korea, and Taiwan;
Supplemental Schedule for the Subject
Investigations
United States International
Trade Commission.
ACTION: Notice.
AGENCY:
DATES:
May 30, 2018.
FOR FURTHER INFORMATION CONTACT:
daltland on DSKBBV9HB2PROD with NOTICES
Jordan Harriman (202–205–2610), Office
of Investigations, U.S. International
Trade Commission, 500 E Street SW,
Washington, DC 20436. Hearingimpaired persons can obtain
information on this matter by contacting
the Commission’s TDD terminal on 202–
205–1810. Persons with mobility
impairments who will need special
assistance in gaining access to the
Commission should contact the Office
of the Secretary at 202–205–2000.
General information concerning the
Commission may also be obtained by
accessing its internet server (https://
www.usitc.gov). The public record for
these investigations may be viewed on
the Commission’s electronic docket
(EDIS) at https://edis.usitc.gov.
SUPPLEMENTARY INFORMATION: Effective
November 6, 2017, the Commission
established a general schedule for the
conduct of the final phase of its
investigations on fine denier polyester
staple fiber (‘‘fine denier PSF’’) from
China, India, Korea, and Taiwan,1
following preliminary determinations
by the U.S. Department of Commerce
(‘‘Commerce’’) that imports of fine
denier PSF were subsidized by the
governments of China and India. To
date, Commerce has issued final
affirmative countervailing duty
determinations with respect to fine
denier PSF from China and India 2 and
most recently final affirmative
antidumping duty determinations with
respect to China, India, Korea, and
Taiwan.3 The Commission, therefore, is
1 Fine Denier Polyester Staple Fiber From China,
India, Korea, and Taiwan; Scheduling of the Final
Phase of Countervailing Duty and Antidumping
Duty Investigations, 82 FR 56050, November 27,
2017.
2 Countervailing Duty Investigation of Fine Denier
Polyester Staple Fiber From the People’s Republic
of China: Final Affirmative Determination, 83 FR
3120, January 23, 2018; and Countervailing Duty
Investigation of Fine Denier Polyester Staple Fiber
From India: Final Affirmative Determination, 83 FR
3122, January 23, 2018.
3 Fine Denier Polyester Staple Fiber from the
People’s Republic of China: Final Affirmative
Determination of Sales at Less Than Fair Value, 83
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17:35 Jun 05, 2018
Jkt 244001
issuing a supplemental schedule for its
antidumping duty investigations on
imports of fine denier PSF from China,
India, Korea, and Taiwan.
The Commission’s supplemental
schedule is as follows: The deadline for
filing supplemental party comments on
Commerce’s final determinations is June
12, 2018; the staff report in the final
phase of these investigations will be
placed in the nonpublic record on June
21, 2018; and a public version will be
issued thereafter.
Supplemental party comments may
address only Commerce’s final
antidumping duty determinations
regarding fine denier PSF from China,
India, Korea, and Taiwan. These
supplemental final comments may not
contain new factual information and
may not exceed five (5) pages in length.
For further information concerning
these investigations see the
Commission’s notice cited above and
the Commission’s Rules of Practice and
Procedure, part 201, subparts A and B
(19 CFR part 201), and part 207,
subparts A and C (19 CFR part 207).
Authority: These investigations are
being conducted under authority of title
VII of the Tariff Act of 1930; this notice
is published pursuant to section 207.21
of the Commission’s rules.
By order of the Commission.
Issued: June 1, 2018.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2018–12169 Filed 6–5–18; 8:45 am]
BILLING CODE 7020–02–P
DEPARTMENT OF JUSTICE
Drug Enforcement Administration
Richard Hauser, M.D.; Decision and
Order
On September 26, 2017, the Acting
Assistant Administrator, Diversion
Control Division, Drug Enforcement
Administration (DEA), issued an Order
to Show Cause to Richard Hauser, M.D.
(Registrant), of Clear Lake, Iowa. The
Show Cause Order proposed the
revocation of Registrant’s DEA
Certificate of Registration No.
BH2140692 ‘‘pursuant to 21 U.S.C.
824(a)(5).’’ Government Exhibit (GX) 2
FR 24740, May 30, 2018; Fine Denier Polyester
Staple Fiber from the India: Final Affirmative
Determination of Sales at Less Than Fair Value, 83
FR 24737, May 30, 2018; Fine Denier Polyester
Staple Fiber from the Republic of Korea: Final
Affirmative Determination of Sales at Less Than
Fair Value, 83 FR 24743, May 30, 2018; and Fine
Denier Polyester Staple Fiber from Taiwan: Final
Affirmative Determination of Sales at Less Than
Fair Value, 83 FR 24745, May 30, 2018.
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to Government’s Request for Final
Agency Action (RFAA), at 1. For the
same reason, the Order also proposed
the denial of ‘‘any pending application
to modify or renew such registration.’’
Id.
With respect to the Agency’s
jurisdiction, the Show Cause Order
alleged that Registrant is the holder of
Certificate of Registration No.
BH2140692, pursuant to which he is
authorized to dispense controlled
substances as a practitioner in schedules
II through V, at the registered address of
Hauser Clinic Consultation Services,
308 14th Street, Clear Lake, Iowa. Id.
Regarding the substantive ground for
the proceeding, the Show Cause Order
alleged that on April 28, 2017, the
Office of the Inspector General for the
U.S. Department of Health and Human
Services (HHS) notified Registrant 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)’’
as a result of his guilty plea in the
United States District Court for the
Southern District of Iowa to two counts
of Health Care Fraud in violation of 18
U.S.C. 1347. Id. at 2. As a result, the
Order asserted that Registrant’s
‘‘[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 Order further
contended that, although Registrant’s
underlying conviction is ‘‘unrelated to
[Registrant’s] 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).’’ Id. (citations omitted).
The Show Cause Order notified
Registrant of (1) his right to request a
hearing on the allegations or to submit
a written statement in lieu of a hearing,
(2) the procedure for electing either
option, and (3) the consequence for
failing to elect either option. Id. at 2–3
(citing 21 CFR 1301.43). The Show
Cause Order also notified Applicant of
his right to submit a corrective action
plan. Id. at 3–4 (citing 21 U.S.C.
824(c)(2)(C)).
The Government states that on
October 4, 2017, a DEA Diversion
Investigator (DI) served Registrant with
a copy of the Show Cause Order. RFAA,
at 3 (citing Declaration of DI attached as
GX 4). Specifically, a DI assigned to the
St. Louis Field Division’s Des Moines
Resident Office stated in a declaration
that he was advised by Registrant’s
Attorney that Registrant could be served
at his residence at 2310 20th Street, SW,
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Federal Register / Vol. 83, No. 109 / Wednesday, June 6, 2018 / Notices
Mason City, Iowa. GX 4, at 1–2. The DI
then stated that he traveled to that
location, verified Registrant’s identity,
and ‘‘handed him a copy of the
September 26, 2017 Order to Show
Cause on October 4, 2017.’’ Id. at 2.
On February 9, 2018, the Government
forwarded its Request for Final Agency
Action and evidentiary record to my
Office. In its Request, the Government
represents that Registrant ‘‘has not
requested a hearing or made any other
filings in this matter.’’ RFAA, at 3.
Based on the Government’s
representation and the record, I find that
more than 30 days have passed since the
Order to Show Cause was served on
Registrant, and he has neither requested
a hearing nor submitted a written
statement in lieu of a hearing. See 21
CFR 1301.43(d). Accordingly, I find that
Registrant has waived his right to a
hearing or to submit a written statement
and issue this Decision and Order based
on relevant evidence submitted by the
Government. See id. I make the
following findings.
Findings of Fact
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Registrant is a physician who is
registered with the DEA as a practitioner
in schedules II–V pursuant to Certificate
of Registration BH2140692, at the
registered address of Hauser Clinic
Consultation Services, 308 14th Street,
Clear Lake, Iowa.1 Respondent’s DEA
Certificate of Registration (attached to
RFAA as GX 1). Although not alleged in
the Show Cause Order, I also find that
Registrant is the holder of DATA-Waiver
Identification Number XH2140692, see
id., which authorizes Registrant to
dispense or prescribe schedule III–V
narcotic controlled substances which
‘‘have been approved by the Food and
Drug Administration . . . specifically
for use in maintenance or detoxification
treatment’’ for up to 100 patients. 21
CFR 1301.28(a) & (b)(1)(iii). Registrant’s
DEA registration and DATA-Waiver
authority do not expire until October 31,
2019. Id.
On October 19, 2016, Registrant
entered a guilty plea in the United
States District Court for the Southern
District of Iowa to a criminal
information charging him with two
counts of Health Care Fraud in violation
1 In his January 24, 2018 Declaration, the DI
stated that Registrant ‘‘indicated that he would
surrender his DEA Certificate of Registration, but
has thus far failed to do so.’’ GX 4, at 2. Likewise,
the Government stated in its RFAA (dated Feb. 8,
2018) that Registrant had not surrendered his DEA
registration. RFAA, at 2. Thus, I find that the record
reflects that Registrant has not surrendered his DEA
registration, despite any prior statement by him of
his intention to do so.
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of 18 U.S.C. 1347.2 As part of his plea,
Registrant entered into a plea agreement
in which he admitted to knowingly
executing a scheme with the intent to
defraud the State of Iowa Medicaid
program (hereinafter ‘‘Iowa Medicaid’’)
and Wellmark Blue Cross and Blue
Shield (hereinafter ‘‘Wellmark’’) into
paying him for the delivery of
healthcare services that he did not
actually perform between November
2011 and December 2012. See GX 3, at
2–6. Specifically, in his role as a boardcertified psychiatrist, Registrant ‘‘upcoded’’ his billing to a more expensive
(and unperformed) service than the
service he actually performed for the
purpose of receiving a higher
reimbursement from Iowa Medicaid and
Wellmark. See id. at 4–6. In his plea
agreement, Registrant admitted that
Wellmark ‘‘over-reimbursed’’ him ‘‘as a
result of his [fraudulent] conduct’’ by a
net amount of $25,965.72. Id. at 6. Due
to similarly fraudulent conduct,
Registrant also admitted that Iowa
Medicaid ‘‘over-reimbursed’’ him by
$4,913.60. Id. In exchange for his guilty
plea, the Government agreed to
recommend that Registrant receive
credit for acceptance of responsibility
pursuant to United States Sentencing
Guideline § 3E1.1. Id. at 8.
On February 28, 2017, a federal court
entered judgment and sentenced
Registrant to a term of imprisonment of
two months on each count, but provided
that the sentences would ‘‘be served
concurrently.’’ United States v. Hauser,
No. 16–CR–00157, ‘‘Judgment in
Criminal Case’’ (S.D. Iowa filed Feb. 28,
2017), at 2.3 The sentencing judge also
2 See
Oct. 19, 2016 Plea Agreement, attached as
GX 3 to RFAA, at 1. In its RFAA, the Government
states that Registrant ‘‘entered a guilty plea’’ on
October 19, 2016, citing ‘‘Exhibit 3 (October 19,
2016 Guilty Plea).’’ However, Exhibit 3 to the RFAA
is only the plea agreement, establishing Registrant’s
agreement to enter into a guilty plea but not when
he entered the plea nor when the court accepted it.
I have reviewed the publicly available docket for
this case, and it states that the plea agreement was
accepted on October 19, 2016. Thus, I take official
notice that Registrant in fact entered his guilty plea
(and that the court accepted the plea) on October
19, 2016.
Under the Administrative Procedure Act (APA),
an agency ‘‘may take official notice of facts at any
stage in a proceeding—even in the final decision.’’
U.S. Dept. of Justice, Attorney General’s Manual on
the Administrative Procedure Act 80 (1947) (Wm.
W. Gaunt & Sons, Inc., Reprint 1979). In accordance
with the APA and DEA’s regulations, Registrant is
‘‘entitled on timely request to an opportunity to
show to the contrary.’’ 5 U.S.C. 556(e); see also 21
CFR 1316.59(e). To allow Registrant the opportunity
to refute the facts of which I take official notice,
Registrant may file a motion for reconsideration
within 15 calendar days of service of this order
which shall commence on the date this order is
mailed.
3 The Government did not include a copy of the
final judgment in Registrant’s criminal case.
Consequently, I take official notice of the facts set
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26309
ordered Registrant to make restitution
payments in the amounts of $25,965.72
and $4,913.60 to Wellmark and to Iowa
Medicaid, respectively, in addition to a
$200 assessment. Id. at 5–7. The judge
further imposed on Registrant a term of
supervised release for three years after
the conclusion of his sentence. Id. at 3.
The record also includes an April 28,
2017 letter from HHS notifying
Applicant 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 SSA ‘‘for the
minimum statutory period of five
years.’’ Attachment to GX 4 (hereinafter
HHS Letter or HHS Ltr), at 1 (emphasis
in original). The letter explained that
Registrant was being excluded ‘‘due to
[his] conviction . . . in the United
States District Court for the Southern
District of Iowa, of a criminal offense
related to the delivery of an item or
service under the Medicare or a State
health care program.’’ Id. The letter
states that ‘‘[t]his action is being taken
under section 1128(a)(1) of the [SSA] 4
and is effective’’ on May 18, 2017. Id.
(citing 42 U.S.C. 1320a–7(a)).5
Discussion
Pursuant to 21 U.S.C. 824(a)(5), the
Attorney General is authorized to
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.’’ Under § 1320a–7(a)(1), HHS
is required to exclude from participation
forth in this publicly available final judgment under
the authority already set forth supra in footnote 2.
4 Section 1128(a)(1) of the SSA is codified at 42
U.S.C. 1320a–7(a)(1).
5 In his Declaration, the DI stated that when he
took over the investigation, he noticed that ‘‘the
case file contained an April 28, 2017 letter from’’
HHS to Registrant. GX 4, at 1. To authenticate the
HHS Letter, the DI ‘‘verified with the prior case
agent that this was a true and correct copy of the
exclusion letter that he received’’ and then attached
it to his Declaration. Id. The Declaration in the
record reflects no other statements establishing the
authenticity or accuracy of the HHS Letter. Nor
does the record contain a declaration from the DI
who actually received the HHS Letter. However, I
have reviewed the official website of HHS, which
contains a publicly available verification of
mandatory exclusions that reflects the same (1)
Registrant name, (2) address, (3) exclusion type
(‘‘1128(a)(1)—Program-Related Conviction’’), and
(4) exclusion date (May 18, 2017) as in the HHS
Letter attached to the Declaration. I take official
notice of the foregoing facts set forth on the HHS
official website regarding Registrant’s mandatory
exclusion (pursuant to the authority set forth supra
in footnote 2), and I find that it sufficiently
corroborates the HHS Letter attached to the DI’s
Declaration for me to accept the HHS Letter into the
record as a true and correct copy of the HHS Letter
sent to Registrant and as an accurate reflection of
the mandatory exclusion that HHS imposed on
Registrant.
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Federal Register / Vol. 83, No. 109 / Wednesday, June 6, 2018 / Notices
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.’’ The Agency has long
held that the underlying conviction
forming the basis for a registrant’s
mandatory exclusion from participation
in federal health care programs need not
involve controlled substances for the
Agency to revoke a DEA registration
pursuant to § 824(a)(5). E.g., Orlando
Ortega–Ortiz, M.D., 70 FR 15122, 15123
(2005); Juan Pillot-Costas, M.D., 69 FR
62084, 62085 (2004); Daniel OrtizVargas, M.D., 69 FR 62095, 62095–
62096 (2004); KK Pharmacy, 64 FR
49507, 49510 (1999); Stanley Dubin,
D.D.S., 61 FR 60727, 60728 (1996);
Nelson Ramirez-Gonzalez, M.D., 58 FR
52787, 52788 (1993).
Here, Registrant was convicted of two
counts of felony Health Care Fraud
related to billing for services that were
not rendered. The Agency has
previously held that a mandatory
exclusion based on a felony fraud
conviction for overbilling warranted
revocation of a Registrant’s registration
pursuant to 21 U.S.C. 824(a)(5). E.g.,
Johnnie Melvin Turner, M.D., 67 FR
71203, 71203–71204 (2002) (revocation
where mandatory exclusion was based
on guilty plea to one felony count of
mail fraud ‘‘by billing for services that
were not rendered’’); Dubin, 61 FR at
60728 (revocation where mandatory
exclusion ‘‘based upon fraudulent
billing’’); Ramirez-Gonzalez, 58 FR at
52788 (revocation where mandatory
exclusion based on submission of false
claims). Moreover, Registrant has failed
to come forward with any evidence
explaining or mitigating his overbilling
conduct or otherwise explaining why
his registration should not be revoked,
and the record reflects no such
evidence. See Joseph M. Piacentile,
M.D., 62 FR 35527, 35528 (1997)
(revoking DEA registration where
Registrant ‘‘did not offer any evidence
into the record regarding why his
registration should not be revoked’’
pursuant to § 824(a)(5)).
Based on the 2017 HHS letter, I find
that the evidence shows that HHS
excluded Registrant from participation
in any federal health care program based
on his federal convictions for health
care fraud related to overbilling.
Registrant has thus been excluded
pursuant to the mandatory exclusion
provisions of 42 U.S.C. 1320a–7(a), and
I hold that this unchallenged basis for
his mandatory exclusion is sufficient to
warrant revocation of his DEA
registration pursuant to 21 U.S.C.
824(a)(5).
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Accordingly, I will order that his
registration be revoked and deny any
pending applications to renew or to
modify his registration, as requested in
the Show Cause Order. Order to Show
Cause, at 1. Finally, because Registrant’s
DATA-Waiver authority is contingent
on Registrant being a practitioner with
a valid DEA registration, see 21 U.S.C.
823(g)(2)(A); 21 CFR 1301.28(a), I will
revoke his DATA-Waiver authority as
well.
Order
Pursuant to the authority vested in me
by 21 U.S.C. 823(f) and 824(a), as well
as 28 CFR 0.100(b), I order that DEA
Certificate of Registration No.
BH2140692 and DATA-Waiver
Identification Number XH2140692,
issued to Richard Hauser, M.D., be, and
they hereby are, revoked. I further order
that any pending application of Richard
Hauser to renew or to modify the above
registration, be, and it hereby is, denied.
This Order is effective July 6, 2018.
Dated: May 25, 2018.
Robert W. Patterson,
Acting Administrator.
[FR Doc. 2018–12138 Filed 6–5–18; 8:45 am]
BILLING CODE 4410–09–P
NEIGHBORHOOD REINVESTMENT
CORPORATION
Annual Board of Directors Meeting;
Sunshine Act
9:00 a.m., Wednesday,
June 20, 2018.
PLACE: NonProfit HR, 1400 Eye Street
NW, Suite 500, Washington, DC 20005.
STATUS: Open (with the exception of
Executive Sessions).
CONTACT PERSON: Rutledge Simmons,
Acting EVP & General Counsel/
Secretary, (202) 760–4105; RSimmons@
nw.org.
TIME AND DATE:
Agenda
I. Call to Order
II. Approval of Minutes
III. Report from Interim CEO
IV. Board Elections
V. Executive Session: Internal Audit
Report
VI. Adjournment
The General Counsel of the
Corporation has certified that in his
opinion, one or more of the exemptions
set forth in 5 U.S.C. 552(b)(2) and (4)
permit closure of the following
portion(s) of this meeting:
• Report from CEO
PO 00000
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Fmt 4703
Sfmt 4703
• Internal Audit Report
Rutledge Simmons,
Acting EVP & General Counsel/Corporate
Secretary.
[FR Doc. 2018–12309 Filed 6–4–18; 4:15 pm]
BILLING CODE 7570–02–P
NUCLEAR REGULATORY
COMMISSION
[Docket No. 50–458; NRC–2017–0141]
Entergy Operations, Inc.; River Bend
Station, Unit 1
Nuclear Regulatory
Commission.
ACTION: Draft supplemental
environmental impact statement;
request for comment.
AGENCY:
The U.S. Nuclear Regulatory
Commission (NRC) is issuing for public
comment a draft plant-specific
Supplement 58 to the Generic
Environmental Impact Statement (GEIS)
for License Renewal of Nuclear Plants,
NUREG–1437, regarding the renewal of
operating license NPF–47 for an
additional 20 years of operation for
River Bend Station (RBS), Unit 1. The
RBS is located in West Feliciana Parish,
Louisiana. Possible alternatives to the
proposed action (license renewal)
include no action and reasonable
alternative energy sources.
DATES: Submit comments by July 23,
2018. Comments received after this date
will be considered, if it is practical to do
so, but the NRC staff is able to ensure
consideration only for comments
received on or before this date.
ADDRESSES: You may submit comments
by any of the following methods:
• Federal Rulemaking website: Go to
https://www.regulations.gov and search
for Docket ID NRC–2017–0141. Address
questions about NRC dockets to Jennifer
Borges; telephone: 301 287–9127:
Jennifer.Borges@nrc.gov. For technical
questions, contact the individual listed
in the FOR FURTHER INFORMATION
CONTACT section of this document.
• Mail comments to: May Ma, Chief,
Office of Administration, Mail Stop:
TWFN–7–A60M, U.S. Nuclear
Regulatory Commission, Washington,
DC 20555–0001.
For additional direction on obtaining
information and submitting comments,
see ‘‘Obtaining Information and
Submitting Comments’’ in the
SUPPLEMENTARY INFORMATION section of
this document.
FOR FURTHER INFORMATION CONTACT:
David Drucker, Office of Nuclear
Reactor Regulation, U.S. Nuclear
SUMMARY:
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06JNN1
Agencies
[Federal Register Volume 83, Number 109 (Wednesday, June 6, 2018)]
[Notices]
[Pages 26308-26310]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-12138]
=======================================================================
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DEPARTMENT OF JUSTICE
Drug Enforcement Administration
Richard Hauser, M.D.; Decision and Order
On September 26, 2017, the Acting Assistant Administrator,
Diversion Control Division, Drug Enforcement Administration (DEA),
issued an Order to Show Cause to Richard Hauser, M.D. (Registrant), of
Clear Lake, Iowa. The Show Cause Order proposed the revocation of
Registrant's DEA Certificate of Registration No. BH2140692 ``pursuant
to 21 U.S.C. 824(a)(5).'' Government Exhibit (GX) 2 to Government's
Request for Final Agency Action (RFAA), at 1. For the same reason, the
Order also proposed the denial of ``any pending application to modify
or renew such registration.'' Id.
With respect to the Agency's jurisdiction, the Show Cause Order
alleged that Registrant is the holder of Certificate of Registration
No. BH2140692, pursuant to which he is authorized to dispense
controlled substances as a practitioner in schedules II through V, at
the registered address of Hauser Clinic Consultation Services, 308 14th
Street, Clear Lake, Iowa. Id.
Regarding the substantive ground for the proceeding, the Show Cause
Order alleged that on April 28, 2017, the Office of the Inspector
General for the U.S. Department of Health and Human Services (HHS)
notified Registrant 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)'' as a result of his guilty plea in
the United States District Court for the Southern District of Iowa to
two counts of Health Care Fraud in violation of 18 U.S.C. 1347. Id. at
2. As a result, the Order asserted that Registrant's ``[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 Order further
contended that, although Registrant's underlying conviction is
``unrelated to [Registrant's] 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).'' Id. (citations omitted).
The Show Cause Order notified Registrant of (1) his right to
request a hearing on the allegations or to submit a written statement
in lieu of a hearing, (2) the procedure for electing either option, and
(3) the consequence for failing to elect either option. Id. at 2-3
(citing 21 CFR 1301.43). The Show Cause Order also notified Applicant
of his right to submit a corrective action plan. Id. at 3-4 (citing 21
U.S.C. 824(c)(2)(C)).
The Government states that on October 4, 2017, a DEA Diversion
Investigator (DI) served Registrant with a copy of the Show Cause
Order. RFAA, at 3 (citing Declaration of DI attached as GX 4).
Specifically, a DI assigned to the St. Louis Field Division's Des
Moines Resident Office stated in a declaration that he was advised by
Registrant's Attorney that Registrant could be served at his residence
at 2310 20th Street, SW,
[[Page 26309]]
Mason City, Iowa. GX 4, at 1-2. The DI then stated that he traveled to
that location, verified Registrant's identity, and ``handed him a copy
of the September 26, 2017 Order to Show Cause on October 4, 2017.'' Id.
at 2.
On February 9, 2018, the Government forwarded its Request for Final
Agency Action and evidentiary record to my Office. In its Request, the
Government represents that Registrant ``has not requested a hearing or
made any other filings in this matter.'' RFAA, at 3. Based on the
Government's representation and the record, I find that more than 30
days have passed since the Order to Show Cause was served on
Registrant, and he has neither requested a hearing nor submitted a
written statement in lieu of a hearing. See 21 CFR 1301.43(d).
Accordingly, I find that Registrant has waived his right to a hearing
or to submit a written statement and issue this Decision and Order
based on relevant evidence submitted by the Government. See id. I make
the following findings.
Findings of Fact
Registrant is a physician who is registered with the DEA as a
practitioner in schedules II-V pursuant to Certificate of Registration
BH2140692, at the registered address of Hauser Clinic Consultation
Services, 308 14th Street, Clear Lake, Iowa.\1\ Respondent's DEA
Certificate of Registration (attached to RFAA as GX 1). Although not
alleged in the Show Cause Order, I also find that Registrant is the
holder of DATA-Waiver Identification Number XH2140692, see id., which
authorizes Registrant to dispense or prescribe schedule III-V narcotic
controlled substances which ``have been approved by the Food and Drug
Administration . . . specifically for use in maintenance or
detoxification treatment'' for up to 100 patients. 21 CFR 1301.28(a) &
(b)(1)(iii). Registrant's DEA registration and DATA-Waiver authority do
not expire until October 31, 2019. Id.
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\1\ In his January 24, 2018 Declaration, the DI stated that
Registrant ``indicated that he would surrender his DEA Certificate
of Registration, but has thus far failed to do so.'' GX 4, at 2.
Likewise, the Government stated in its RFAA (dated Feb. 8, 2018)
that Registrant had not surrendered his DEA registration. RFAA, at
2. Thus, I find that the record reflects that Registrant has not
surrendered his DEA registration, despite any prior statement by him
of his intention to do so.
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On October 19, 2016, Registrant entered a guilty plea in the United
States District Court for the Southern District of Iowa to a criminal
information charging him with two counts of Health Care Fraud in
violation of 18 U.S.C. 1347.\2\ As part of his plea, Registrant entered
into a plea agreement in which he admitted to knowingly executing a
scheme with the intent to defraud the State of Iowa Medicaid program
(hereinafter ``Iowa Medicaid'') and Wellmark Blue Cross and Blue Shield
(hereinafter ``Wellmark'') into paying him for the delivery of
healthcare services that he did not actually perform between November
2011 and December 2012. See GX 3, at 2-6. Specifically, in his role as
a board-certified psychiatrist, Registrant ``up-coded'' his billing to
a more expensive (and unperformed) service than the service he actually
performed for the purpose of receiving a higher reimbursement from Iowa
Medicaid and Wellmark. See id. at 4-6. In his plea agreement,
Registrant admitted that Wellmark ``over-reimbursed'' him ``as a result
of his [fraudulent] conduct'' by a net amount of $25,965.72. Id. at 6.
Due to similarly fraudulent conduct, Registrant also admitted that Iowa
Medicaid ``over-reimbursed'' him by $4,913.60. Id. In exchange for his
guilty plea, the Government agreed to recommend that Registrant receive
credit for acceptance of responsibility pursuant to United States
Sentencing Guideline Sec. 3E1.1. Id. at 8.
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\2\ See Oct. 19, 2016 Plea Agreement, attached as GX 3 to RFAA,
at 1. In its RFAA, the Government states that Registrant ``entered a
guilty plea'' on October 19, 2016, citing ``Exhibit 3 (October 19,
2016 Guilty Plea).'' However, Exhibit 3 to the RFAA is only the plea
agreement, establishing Registrant's agreement to enter into a
guilty plea but not when he entered the plea nor when the court
accepted it. I have reviewed the publicly available docket for this
case, and it states that the plea agreement was accepted on October
19, 2016. Thus, I take official notice that Registrant in fact
entered his guilty plea (and that the court accepted the plea) on
October 19, 2016.
Under the Administrative Procedure Act (APA), an agency ``may
take official notice of facts at any stage in a proceeding--even in
the final decision.'' U.S. Dept. of Justice, Attorney General's
Manual on the Administrative Procedure Act 80 (1947) (Wm. W. Gaunt &
Sons, Inc., Reprint 1979). In accordance with the APA and DEA's
regulations, Registrant is ``entitled on timely request to an
opportunity to show to the contrary.'' 5 U.S.C. 556(e); see also 21
CFR 1316.59(e). To allow Registrant the opportunity to refute the
facts of which I take official notice, Registrant may file a motion
for reconsideration within 15 calendar days of service of this order
which shall commence on the date this order is mailed.
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On February 28, 2017, a federal court entered judgment and
sentenced Registrant to a term of imprisonment of two months on each
count, but provided that the sentences would ``be served
concurrently.'' United States v. Hauser, No. 16-CR-00157, ``Judgment in
Criminal Case'' (S.D. Iowa filed Feb. 28, 2017), at 2.\3\ The
sentencing judge also ordered Registrant to make restitution payments
in the amounts of $25,965.72 and $4,913.60 to Wellmark and to Iowa
Medicaid, respectively, in addition to a $200 assessment. Id. at 5-7.
The judge further imposed on Registrant a term of supervised release
for three years after the conclusion of his sentence. Id. at 3.
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\3\ The Government did not include a copy of the final judgment
in Registrant's criminal case. Consequently, I take official notice
of the facts set forth in this publicly available final judgment
under the authority already set forth supra in footnote 2.
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The record also includes an April 28, 2017 letter from HHS
notifying Applicant 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 SSA ``for the minimum
statutory period of five years.'' Attachment to GX 4 (hereinafter HHS
Letter or HHS Ltr), at 1 (emphasis in original). The letter explained
that Registrant was being excluded ``due to [his] conviction . . . in
the United States District Court for the Southern District of Iowa, of
a criminal offense related to the delivery of an item or service under
the Medicare or a State health care program.'' Id. The letter states
that ``[t]his action is being taken under section 1128(a)(1) of the
[SSA] \4\ and is effective'' on May 18, 2017. Id. (citing 42 U.S.C.
1320a-7(a)).\5\
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\4\ Section 1128(a)(1) of the SSA is codified at 42 U.S.C.
1320a-7(a)(1).
\5\ In his Declaration, the DI stated that when he took over the
investigation, he noticed that ``the case file contained an April
28, 2017 letter from'' HHS to Registrant. GX 4, at 1. To
authenticate the HHS Letter, the DI ``verified with the prior case
agent that this was a true and correct copy of the exclusion letter
that he received'' and then attached it to his Declaration. Id. The
Declaration in the record reflects no other statements establishing
the authenticity or accuracy of the HHS Letter. Nor does the record
contain a declaration from the DI who actually received the HHS
Letter. However, I have reviewed the official website of HHS, which
contains a publicly available verification of mandatory exclusions
that reflects the same (1) Registrant name, (2) address, (3)
exclusion type (``1128(a)(1)--Program-Related Conviction''), and (4)
exclusion date (May 18, 2017) as in the HHS Letter attached to the
Declaration. I take official notice of the foregoing facts set forth
on the HHS official website regarding Registrant's mandatory
exclusion (pursuant to the authority set forth supra in footnote 2),
and I find that it sufficiently corroborates the HHS Letter attached
to the DI's Declaration for me to accept the HHS Letter into the
record as a true and correct copy of the HHS Letter sent to
Registrant and as an accurate reflection of the mandatory exclusion
that HHS imposed on Registrant.
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Discussion
Pursuant to 21 U.S.C. 824(a)(5), the Attorney General is authorized
to 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.'' Under Sec. 1320a-7(a)(1), HHS is required to exclude from
participation
[[Page 26310]]
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.'' The Agency has long held that the underlying conviction
forming the basis for a registrant's mandatory exclusion from
participation in federal health care programs need not involve
controlled substances for the Agency to revoke a DEA registration
pursuant to Sec. 824(a)(5). E.g., Orlando Ortega-Ortiz, M.D., 70 FR
15122, 15123 (2005); Juan Pillot-Costas, M.D., 69 FR 62084, 62085
(2004); Daniel Ortiz-Vargas, M.D., 69 FR 62095, 62095-62096 (2004); KK
Pharmacy, 64 FR 49507, 49510 (1999); Stanley Dubin, D.D.S., 61 FR
60727, 60728 (1996); Nelson Ramirez-Gonzalez, M.D., 58 FR 52787, 52788
(1993).
Here, Registrant was convicted of two counts of felony Health Care
Fraud related to billing for services that were not rendered. The
Agency has previously held that a mandatory exclusion based on a felony
fraud conviction for overbilling warranted revocation of a Registrant's
registration pursuant to 21 U.S.C. 824(a)(5). E.g., Johnnie Melvin
Turner, M.D., 67 FR 71203, 71203-71204 (2002) (revocation where
mandatory exclusion was based on guilty plea to one felony count of
mail fraud ``by billing for services that were not rendered''); Dubin,
61 FR at 60728 (revocation where mandatory exclusion ``based upon
fraudulent billing''); Ramirez-Gonzalez, 58 FR at 52788 (revocation
where mandatory exclusion based on submission of false claims).
Moreover, Registrant has failed to come forward with any evidence
explaining or mitigating his overbilling conduct or otherwise
explaining why his registration should not be revoked, and the record
reflects no such evidence. See Joseph M. Piacentile, M.D., 62 FR 35527,
35528 (1997) (revoking DEA registration where Registrant ``did not
offer any evidence into the record regarding why his registration
should not be revoked'' pursuant to Sec. 824(a)(5)).
Based on the 2017 HHS letter, I find that the evidence shows that
HHS excluded Registrant from participation in any federal health care
program based on his federal convictions for health care fraud related
to overbilling. Registrant has thus been excluded pursuant to the
mandatory exclusion provisions of 42 U.S.C. 1320a-7(a), and I hold that
this unchallenged basis for his mandatory exclusion is sufficient to
warrant revocation of his DEA registration pursuant to 21 U.S.C.
824(a)(5).
Accordingly, I will order that his registration be revoked and deny
any pending applications to renew or to modify his registration, as
requested in the Show Cause Order. Order to Show Cause, at 1. Finally,
because Registrant's DATA-Waiver authority is contingent on Registrant
being a practitioner with a valid DEA registration, see 21 U.S.C.
823(g)(2)(A); 21 CFR 1301.28(a), I will revoke his DATA-Waiver
authority as well.
Order
Pursuant to the authority vested in me by 21 U.S.C. 823(f) and
824(a), as well as 28 CFR 0.100(b), I order that DEA Certificate of
Registration No. BH2140692 and DATA-Waiver Identification Number
XH2140692, issued to Richard Hauser, M.D., be, and they hereby are,
revoked. I further order that any pending application of Richard Hauser
to renew or to modify the above registration, be, and it hereby is,
denied. This Order is effective July 6, 2018.
Dated: May 25, 2018.
Robert W. Patterson,
Acting Administrator.
[FR Doc. 2018-12138 Filed 6-5-18; 8:45 am]
BILLING CODE 4410-09-P