Decision and Order: Mohammed Asgar, M.D., 29569-29573 [2018-13531]

Agencies

• Drug Enforcement Administration
• Department of Justice

[Federal Register Volume 83, Number 122 (Monday, June 25, 2018)]
[Notices]
[Pages 29569-29573]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-13531]


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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.
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    \1\ The Show Cause Order caption also listed an address in 
Posen, Illinois for Respondent.
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    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.
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    \2\ DEA does not challenge this assertion.
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    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\
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    \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.
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    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