Shelton W. Barnes, M.D.; Decision and Order, 5983-5984 [2020-01967]

Agencies

• Drug Enforcement Administration
• Department of Justice

[Federal Register Volume 85, Number 22 (Monday, February 3, 2020)]
[Notices]
[Pages 5983-5984]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-01967]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration


Shelton W. Barnes, M.D.; Decision and Order

    On June 28, 2019, the Assistant Administrator, Diversion Control 
Division, Drug Enforcement Administration (hereinafter, DEA or 
Government), issued an Order to Show Cause to Shelton W. Barnes, M.D., 
(hereinafter, Registrant), of New Orleans, Louisiana. Order to Show 
Cause (hereinafter, OSC), at 1. The OSC proposed the revocation of 
Registrant's Certificate of Registration No. BB1040269, because the 
United States Department of Health and Human Services, Office of 
Inspector General (hereinafter, HHS OIG) ``mandatorily excluded 
[Registrant] from participation in Medicare, Medicaid, and all Federal 
health care programs for a minimum period of twenty-five years pursuant 
to 42 U.S.C. 1320a-7(a)''; and such exclusion ``warrants revocation of 
[Registrant's] registration pursuant to 21 U.S.C. 824(a)(5).'' Id. at 
2.
    Specifically, the OSC alleged that, on September 25, 2018, Judgment 
was entered against Registrant in the United States District Court for 
the Eastern District of Louisiana (hereinafter, E.D. La.) ``based on 
[Registrant's] conviction on one count of `Conspiracy to Commit Health 
Care Fraud,' in violation of 18 U.S.C. 1349, one count of `Conspiracy 
to Pay and Receive Illegal Health Care Kickbacks,' in violation of 18 
U.S.C. 371, fifteen counts of `Health Care Fraud,' in violation of 18 
U.S.C. 1347 and 2,\1\ and one count of `Obstruction of a Federal 
Audit,' in violation of 18 U.S.C. 1516 and 2.'' \2\ Id. at 2 (citing 
United States v. Barnes, No. 2:15-cr-0061-SM-JCW (E.D. La. 2018)). The 
OSC further alleged that ``based on [such] conviction, HHS OIG, by 
letter dated March 29, 2019, mandatorily excluded [Registrant] from 
participation in Medicare, Medicaid, and all Federal health care 
programs for a minimum period of twenty-five years pursuant to 42 
U.S.C. 1320a-7(a), effective April 18, 2019.'' Id.
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    \1\ The Court's notation of 18 U.S.C. 2 appears in this format, 
which was replicated in the OSC.
    \2\ See n.1.
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    The Show Cause Order notified Registrant of the right to request a 
hearing on the allegations or to submit a written statement, while 
waiving the right to 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 OSC also notified Registrant of the 
opportunity to submit a corrective action plan. Id. at 3-4 (citing 21 
U.S.C. 824(c)(2)(C)).

Adequacy of Service

    In a Declaration, dated October 24, 2019, a Diversion Investigator 
(hereinafter, DI) assigned to the New Orleans Field Division stated 
that she and another DI traveled to the Federal Prison Camp Pensacola, 
110 Raby Ave., Pensacola, Florida 32509, where Registrant was 
incarcerated, on July 10, 2019. Request for Final Agency Action 
(hereinafter, RFAA), EX 6 (Declaration of Service). The DI stated that 
they were taken to a room where correctional officers brought in 
Registrant, who ``was wearing an inmate nametag with his name on it,'' 
and she further ``recognized him based on his driver's license photo.'' 
Id. The DI then ``handed the [OSC] to [Registrant] and explained it to 
him, including his options to request a hearing or surrender his 
registration.'' Id.
    The Government submitted its RFAA, along with the evidentiary 
record, for adjudication on December 4, 2019. In its RFAA, the 
Government represented that ``at least thirty days have passed since 
the . . . [OSC] was served on Registrant. Registrant has not requested 
a hearing and has not otherwise corresponded or communicated with DEA 
regarding the Order served on him, including the filing of any written 
statement in lieu of a hearing.'' RFAA, at 2. The Government requested 
that Registrant's Certificate of Registration be revoked and his 
pending application for renewal be denied ``because Registrant lacks 
state authority and because Registrant has been excluded from Medicare, 
Medicaid and all Federal health care programs, either of which alone is 
a sufficient basis to revoke Registrant's registration . . . .'' \3\ 
Id. at 7.
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    \3\ In the RFAA, the Government argued for revocation based on a 
ground that does not appear in the OSC--that the Registrant 
currently lacks authority to practice medicine in Louisiana, the 
state in which he is registered with the DEA, and his registration 
is thus also subject to revocation pursuant to 21 U.S.C. 824(a)(3). 
Although state authority is a prerequisite to holding (or having) a 
DEA registration, see 21 U.S.C. 823, I see no evidence in the record 
that Registrant was notified of this additional charge. As such, he 
has had no opportunity to determine whether to address the status of 
his state authority. See Hatem M. Ataya, M.D., 81 FR 8221, 8245 
(2016) (permitting the consideration of 21 U.S.C. 824(a)(3), because 
the respondent had a ``meaningful opportunity to show that he 
retains his state authority.''). In this case, I decline to allow 
the Government to add the lack of state authority charge.
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    Based on the Government's representations and my review of the 
record, I find that the Government served the OSC on Registrant on July 
10, 2019. I also find that more than thirty days have now passed since 
the date of service. Further, based on the Government's 
representations, I find that neither Registrant, nor anyone purporting 
to represent the Registrant, requested a hearing, submitted a written 
statement while waiving Registrant's right to a hearing, or submitted a 
corrective action plan. Accordingly, I find that Registrant has waived 
the right to a hearing and the right to submit a written statement and 
corrective action plan. 21 CFR Sec.  1301.43(d) and 21 U.S.C. 
824(c)(2)(C). I, therefore, issue this Decision and Order based on the 
record submitted by the Government, which constitutes the entire record 
before me. 21 CFR 1301.43(e).

Findings of Fact

Registrant's DEA Registration

    Registrant is the holder of DEA Certificate of Registration No. 
BB1040269 at the registered address of 3600 Prytania, Suite 50, New 
Orleans, LA 70115. RFAA, EX 1 (Certificate of Registration History), at 
1. Pursuant to this registration, Registrant is authorized to dispense 
controlled substances in schedules II through V as a practitioner. Id. 
Registrant's registration was set to expire on July 31, 2018, but on 
that date, Registrant submitted an online renewal application for 10555 
Lake Forest Blvd., Ste. 5J, New Orleans, LA 70127-5208,

[[Page 5984]]

and his registration is currently ``in a renewal pending status.'' Id.

Registrant's Exclusion

    The evidence in the record demonstrates that, on September 25, 
2018, Judgment was entered against Registrant in E.D. La. ``based on 
[Registrant's] conviction on one count of `Conspiracy to Commit Health 
Care Fraud,' in violation of 18 U.S.C. 1349, one count of `Conspiracy 
to Pay and Receive Illegal Health Care Kickbacks,' in violation of 18 
U.S.C. 371, fifteen counts of `Health Care Fraud,' in violation of 18 
U.S.C. 1347 and 2, and one count of `Obstruction of a Federal Audit,' 
in violation of 18 U.S.C. 1516 and 2.'' RFAA EX 3 (Judgment in a 
Criminal Case at 1, United States v. Barnes, No. 2:15-cr-61-SM-JCW 
(E.D. La. September 28, 2018).
    By letter dated March 29, 2019, HHS OIG notified Registrant of his 
exclusion from Medicare, Medicaid, and all federal health care programs 
under 42 U.S.C. 1320a-7(a) for a minimum period of twenty-five years 
based on Registrant's felony convictions in E.D. La. RFAA, EX 4 
(hereinafter, Exclusion Letter), at 1. The Exclusion Letter stated that 
the period of exclusion was greater than the minimum of five years, 
because the acts resulting in conviction ``caused a financial loss to a 
government agency or program or to one or more entities of $50,000 or 
more,'' and specifically, the court ordered Registrant ``to pay 
approximately $10,850,200 in restitution.'' Id. at 2. Further, the HHS 
OIG reasoned that ``the acts were committed over a period of one year 
or more,'' and specifically, that ``the acts occurred from November 
2008 to about May 2014.'' Id. Finally, the HHS OIG considered whether 
the Registrant was incarcerated and found that the ``court sentenced 
[Registrant] to 60 months of incarceration.'' Id. Per the Exclusion 
Letter, the exclusion became effective twenty days from the date of the 
letter, or April 18, 2019. Id. at 1. The Exclusion Letter notified 
Registrant of his appeal rights. Id. at 2-4.
    Accordingly, I find that the HHS OIG excluded Registrant from 
Medicare, Medicaid, and all federal health care programs under 42 
U.S.C. 1320a-7(a) for twenty-five years, effective April 18, 2019, 
based on Registrant's convictions in the E.D. La.

Discussion

    Under Section 824(a) of the Controlled Substances Act (hereinafter, 
CSA), a registration may be suspended or revoked upon a finding of one 
or more of five grounds. Each subsection of Section 824(a) provides an 
independent ground to impose a sanction on a registrant. Arnold E. 
Feldman, M.D., 82 FR 39614, 39617 (2017); see also Gilbert L. Franklin, 
D.D.S., 57 FR 3441 (1992) (``[M]andatory exclusion from participation 
in the Medicare program constitutes an independent ground for 
revocation pursuant to 21 U.S.C. [Sec.  ] 824(a)(5).''). The ground in 
21 U.S.C. 824(a)(5) requires that the registrant ``has been excluded 
(or directed to be excluded) from participation in a program pursuant 
to section 1320a-7(a) of Title 42.'' 42 U.S.C. 1320a-7(a) provides a 
list of four predicate offenses for which exclusion from Medicare, 
Medicaid, and other federal health care programs is mandatory and sets 
out mandatory timeframes for such exclusion. Id.
    When a registrant facing a sanction under 21 U.S.C. 824(a)(5) 
offers no mitigating evidence for the Administrator to consider, ``it 
is reasonable that the Administrator might revoke or suspend.'' Jeffrey 
Stein, M.D., 84 FR 46968, 46971 (2019); see, e.g., Narciso A. Reyes, 
M.D., 83 FR 61678, 61681 (2018); Richard Hauser, M.D., 83 FR 26308, 
26310 (2018). Further, ``[t]here does not need to be a nexus to 
controlled substances to make a connection between the activity that 
caused the mandatory exclusion and the potential for abuse of a DEA 
registration.'' Jeffrey Stein, M.D., 84 FR at 46972; Narciso Reyes, 
M.D., 83 FR at 61681; KKK Pharmacy, 64 FR 49507, 49510 (1999) 
(collecting cases); Melvin N. Seglin, M.D., 63 Red. Reg. 70431, 70433 
(1998); Stanley Dubin, D.D.S., 61 FR 60727, 60728 (1996).
    Here, there is no dispute in the record that Registrant is 
mandatorily excluded pursuant to Section 1320a-7(a) of Title 42 and, 
therefore, that a ground for the revocation or suspension of 
Registrant's registration exists. 21 U.S.C. 824(a)(5). Indeed, 
Registrant was convicted of multiple counts involving fraud, kickbacks, 
and obstruction of a federal audit. The HHS OIG estimated that 
Registrant's criminality spanned six years and resulted in a financial 
loss of approximately $10,850,200. RFAA, EX 4, at 2.
    Where, as here, the Government has met its prima facie burden of 
showing that a ground for revocation exists, the burden shifts to the 
Registrant to show why he can be entrusted with a registration. See 
Jeffrey Stein, M.D., 84 FR at 46972. Registrant, as already discussed, 
failed to respond in any way to the OSC. See RFAA, at 6. Therefore, 
among other things, Registrant has not accepted responsibility for his 
criminality, shown any remorse for it, or provided any assurance that 
he would not repeat it. See Jeffrey Stein, M.D., 84 FR at 46972-74. 
Such silence weighs against the Registrant's continued registration. 
Zvi H. Perper, M.D., 77 FR 64131, 64142 (2012) (citing Medicine Shoppe-
Jonesborough, 73 FR 264, 387 (2008); Samuel S. Jackson, 72 FR 23848, 
23853 (2007)); see also Jones Total Health Care Pharmacy, LLC v. Drug 
Enf't Admin., 881 F.3d 823, 831 (11th Cir. 2018) (`` `An agency 
rationally may conclude that past performance is the best predictor of 
future performance.' '' (quoting Alra Laboratories, Inc. v. Drug Enf't 
Admin., 54 F.3d 450, 452 (7th Cir. 1995))).
    Based on the record before me, I conclude that Registrant's founded 
criminality involving dishonesty and obstruction, resulting in his 
exclusion from Medicare, Medicaid, and all federal health care 
programs, makes him ineligible for a DEA registration at this time. 
Accordingly, I shall order the sanctions the Government requested, as 
contained in the Order below.

Order

    Pursuant to 28 CFR 0.100(b) and the authority vested in me by 21 
U.S.C. 824(a), I hereby revoke DEA Certificate of Registration No. 
BB1040269 issued to Shelton W. Barnes, M.D. Further, I hereby deny any 
pending application of Shelton W. Barnes, M.D., to renew or modify this 
registration, as well as any pending application of Shelton W. Barnes, 
M.D., for registration in Louisiana. This Order is effective March 4, 
2020.

    Dated: January 3, 2020.
Uttam Dhillon,
Acting Administrator.
[FR Doc. 2020-01967 Filed 1-31-20; 8:45 am]
 BILLING CODE 4410-09-P