Ibrahim Al-Qawaqneh, D.D.S.; Decision and Order, 10354-10357 [2021-03360]

Download as PDF 10354 Federal Register / Vol. 86, No. 32 / Friday, February 19, 2021 / Notices DEPARTMENT OF JUSTICE Drug Enforcement Administration Ibrahim Al-Qawaqneh, D.D.S.; Decision and Order On November 20, 2018, the Assistant Administrator, Diversion Control Division, Drug Enforcement Administration (hereinafter, DEA or Government), issued an Order to Show Cause to Ibrahim Al-Qawaqneh, D.D.S. (hereinafter, Respondent), of Anaheim, California. Administrative Law Judge Exhibit (ALJX) 1 (Order to Show Cause (hereinafter, OSC)), at 1. The OSC proposes the revocation of Respondent’s Certificate of Registration No. BA6641472 and denial of any pending application to renew 1 such registration pursuant to 21 U.S.C. 824(a)(5). I. Procedural History tkelley on DSKBCP9HB2PROD with NOTICES The OSC alleged that on July 2, 2014, Respondent ‘‘entered a plea of nolo contendere in the Superior Court of California, County of Orange, to a charge of Offering Unlawful Medi-Cal Remuneration, a felony. . . .’’ OSC, at 1. The OSC further alleged that as a result of Respondent’s conviction, on September 30, 2015, the United States 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)’’ (hereinafter, Exclusion Letter); and that ‘‘[m]andatory exclusion from Medicare is an independent ground for revoking a DEA registration pursuant to 21 U.S.C. 824(a)(5).’’ OSC, at 2. The OSC notified Respondent of the right to either request a hearing on the allegations or submit a written statement in lieu of exercising the right to a hearing, the procedures for electing each option, and the consequences for failing to elect either option. Id. at 2 (citing 21 CFR 1301.43). The OSC also notified Respondent of the opportunity to submit a corrective action plan. OSC, at 3 (citing 21 U.S.C. 824(c)(2)(C)). By letter dated December 21, 2018, Respondent timely requested a hearing.2 1 The OSC also proposed denial of any pending application to modify a DEA registration. Because there is no evidence in the record of a pending application to modify a DEA registration, and because the Government made no arguments regarding the factors in 21 U.S.C. 823(f), I will not address this proposal herein. 2 I find that service of the OSC was proper. See ALJX 4 (Government’s Notice Regarding Service of Order to Show Cause and Position on Motion for Termination of Proceedings), Attachment 2 (Form VerDate Sep<11>2014 21:07 Feb 18, 2021 Jkt 253001 ALJX 2 (Request for Hearing), at 1. The matter was placed on the docket of the Office of Administrative Law Judges and was assigned to Administrative Law Judge Charles Wm. Dorman (hereinafter, the ALJ). On December 28, 2018, the ALJ established a schedule for the filing of prehearing statements. ALJX 3 (Order for Prehearing Statements), at 1. The Government filed its prehearing statement timely on January 14, 2019. ALJX 5 (Government’s Prehearing Statement), at 1. Respondent twice missed the deadline for filing his prehearing statement and was granted two extensions. ALJX 6 (Order Rescheduling Prehearing Conference and Order to Respondent to File Prehearing Statement and to Show Good Cause Why Case should not be Terminated); ALJX 7 (Prehearing Ruling). Respondent filed his prehearing statement within the extended deadline on February 26, 2019, and supplemented the prehearing statement on March 7, 2019. ALJX 8 (Resp Prehearing), ALJX 10 (Resp Supp Prehearing). On February 28, 2019, the ALJ issued a prehearing ruling that, among other things, set out four agreed upon stipulations and established schedules for the remaining prehearing activities and for the hearing. ALJX 9 (Second Prehearing Ruling). The hearing in this matter took place in Los Angeles, California, and spanned two days. See ALJX 11 (Ruling Regarding Hearing Location); ALJX 12 (Notice of Hearing); and Transcript of Proceedings in the Matter of Ibrahim Al-Qawaqneh, D.D.S. (hereinafter, Tr.). The Government filed a posthearing brief, but Respondent did not. ALJX 16 (Government’s Proposed Findings of Fact, Conclusions of Law and Argument (hereinafter, Govt Posthearing)). The ALJ’s Recommended Rulings, Findings of Fact, Conclusions of Law, and Decision (hereinafter, RD) is dated June 21, 2019. See RD. According to the ALJ, neither party filed exceptions to the RD and the deadline for doing so has passed. See Transmittal Letter from the ALJ, dated July 15, 2019. I have reviewed and agree with the procedural rulings of the ALJ during the administration of the hearing. Having considered the record in its entirety, I agree with the ALJ and find that the Government established ‘‘that HHS mandatorily excluded [Respondent] from Federal health care programs based on a program-related conviction.’’ RD, at 17. I also agree with the ALJ that the Respondent failed to accept responsibility for his DEA–12 (8–02) ‘‘Receipt for Cash or Other Items,’’ dated November 27, 2018). PO 00000 Frm 00122 Fmt 4703 Sfmt 4703 misconduct, and that revocation is the appropriate sanction. See RD, at 28. I make the following findings of fact. II. Findings of Fact A. Respondent’s DEA Registration The parties stipulated that Respondent is registered with the DEA ‘‘as a dentist practitioner in Schedules II–V 3 under DEA registration number BA6641472 at 1719 W. Romneya Drive, Anaheim, California 92801.’’ ALJX 9, at 1; Government Exhibit (hereinafter, GX) 1 (Controlled Substance Registration Certificate); and GX 2 (Certified Registration History of Respondent). According to Agency records, Respondent did not submit a renewal application and his registration expired on June 30, 2020.4 See also GX 1, GX 2. B. Government’s Case The Government’s documentary evidence consisted primarily of records from the Superior Court of California, County of Orange, regarding Respondent’s conviction; documents regarding the Dental Board of California’s accusation against and settlement with Respondent; and the HHS/OIG exclusion letter notifying Respondent of his Medicare and Medicaid exclusion. See GX 1–6. Additionally, the Government called the Diversion Investigator (hereinafter DI) as a witness both in the Government’s case-in-chief and in rebuttal. Tr. 15–20, 82–86. DI testified regarding his professional background and about his involvement in the investigation into Respondent. Tr. 17–18. DI testified that he obtained the HHS/OIG exclusion letter regarding Respondent’s five-year minimum exclusion from Medicare and Medicaid as part of his investigation. Id. at 18. He also testified that DEA has not received any information that the five-year minimum exclusion HHS/OIG imposed on Respondent has been modified, lifted, or otherwise rescinded. Id. at 18– 19. On rebuttal, DI testified that he searched the Controlled Substance Utilization Review and Evaluation System for the 18 months prior to his testimony (approximately November 2017 to May 7, 2019) and found just one controlled substance prescription issued by Respondent. Id. at 84–85. Having read and analyzed all of the record 3 As the ALJ noted in his decision, the Respondent is actually only registered in Schedules II–III. RD, at 6; GX 1; GX 2. 4 The fact that a respondent allows his registration to expire during the pendency of an OSC does not impact my jurisdiction or prerogative under the Controlled Substances Act (hereinafter, CSA) to adjudicate the OSC to finality. Jeffrey D. Olsen, M.D., 84 FR 68474 (2019). E:\FR\FM\19FEN1.SGM 19FEN1 Federal Register / Vol. 86, No. 32 / Friday, February 19, 2021 / Notices evidence, I agree with the ALJ that DI’s testimony was straightforward and professional, and I likewise ‘‘give his testimony full credit.’’ RD, at 3. C. Respondent’s Case tkelley on DSKBCP9HB2PROD with NOTICES Respondent’s documentary evidence consisted of Respondent’s resume and a list of continuing dental education courses that Respondent has recently taken. Respondent’s Exhibits (hereinafter RX), 1–2. Respondent testified on his own behalf and presented no other testimony in support of his case. Respondent testified regarding his professional background, experience, and education; and regarding his dental practice. Tr. 22–28, 38, 52–54. Respondent testified that he has had his dental practice for over twenty years, and that he has never had any malpractice claims filed against him, DEA has not expressed any concerns regarding his prescribing practices, and that the matters at issue in this case resulted in the only time the Respondent was ever called before the Dental Board of California (hereinafter, Board).5 Id. at 22–23, 37–38, 42. Respondent also testified that, although he does not often prescribe controlled substances, he needs his DEA registration to be able to provide quality care to his patients.6 Id. at 24–26. Respondent testified that he might prescribe controlled substances three or four times a month,7 but that 95 percent of his prescriptions are for noncontrolled substances. Id. at 52–53. Respondent also testified regarding the event that led to his criminal conviction. See infra II.D. He testified that in December 2013, an undercover 5 Due to the conviction, on January 13, 2017, the Dental Board of California (hereinafter, Board) filed an accusation against Respondent. GX 5 (Accusation from the Board, dated January 13, 2017), at 1. The parties stipulated that Respondent and the Board agreed, ‘‘inter alia, that Respondent’s dental license would be revoked; however, the revocation was stayed, and Respondent’s dental license was placed on probation for three years subject to several terms and conditions.’’ ALJX 9, at 2; RD, at 6; see also GX 6 (Board Decision and Stipulated Settlement and Disciplinary Order). In the settlement, Respondent ‘‘admit[ted] the truth of each and every charge and allegation in [the Board’s] Accusation.’’ GX 6, at 3. 6 The Government argued that Respondent’s registration should be revoked because he ‘‘has not demonstrated a need for a DEA [registration] in order to continue his practice of dentistry.’’ ALJX 16, at 19; RD, at 26. The ALJ assessed and rejected this argument, and I agree. RD, at 26–27. Respondent’s need for a registration is not relevant to my determination of whether or not Respondent can be entrusted with a registration. See infra IV. 7 The ALJ found that this testimony was rebutted by DI’s testimony that Respondent had issued only one controlled substance prescription in the year and a half prior to the hearing. RD, at 4; and see supra II.B. Thus, the ALJ did not find Respondent’s testimony on this issue to be credible. RD, at 4. VerDate Sep<11>2014 21:07 Feb 18, 2021 Jkt 253001 agent from the Medi-Cal fraud department going by the name of Mr. Gonzales came to Respondent’s dental office to talk to him. Tr. 28–29; RD, at 9, GX 5, at 5. According to Respondent, Mr. Gonzales informed Respondent that he did ‘‘marketing’’ and that he could bring Respondent a lot of medical patients for $90–$120 per patient. Tr. 29; RD, at 9. Respondent stated, ‘‘I told [Mr. Gonzales], that’s a lot. I wouldn’t do that. And I won’t pay more than $80.’’ 8 Tr. 29. Respondent stated, ‘‘I did tell [Mr. Gonzales] that is illegal . . . like paying per patient. And I was telling him . . . it’s legal to do marketing if you get paid like, an hourly or salary but not per patient. That’s the law.’’ Id. at 29. Respondent testified that his conversation with Mr. Gonzales lasted approximately fifteen minutes. Id. at 30; RD, at 9. Respondent admitted that during the conversation he offered Mr. Gonzales: $20 for patients who had their teeth cleaned; $40 for patients who had sealants put on their teeth; $50 for patients for who received three to four fillings; and $100 for patients who received six or more fillings. Tr. 75–78; GX 5, at 5; RD, at 9. In addition, Respondent warned Mr. Gonzales not to tell anyone about getting paid for bringing patients. Tr. at 75–78. At times, Respondent appeared to accept responsibility for his actions and acknowledge that what he did was wrong.9 Id. at 33, 39, 67–68, 79, 80–81.10 However, more frequently, Respondent 8 Respondent repeatedly testified that Mr. Gonzales misunderstood what he had said. He testified that ‘‘[t]he conversation was in general about just marketing’’ and that Mr. Gonzales put his words together in a way that made it seem like Respondent was offering to pay for patients. Tr. 78– 79. Respondent testified that what he really meant was: ‘‘when I say I spent $80 on a patient, like if you put an ad in the newspaper . . . let’s say you spent $1,000, and you got, like, maybe 10 patients or 12 patients, roughly, you’re spending about $80 per patient.’’ Tr. 30. At one point, Respondent testified, Mr. Gonzales was ‘‘talking to me and—and trying to trick my tongue in saying things like, wrong.’’ Tr. 69. I agree with the ALJ that ‘‘[i]n comparing [Respondent’s] testimony on direct examination about his conversation with the undercover agent with the detailed facts contained in Government Exhibit 5, I do not find it credible that the agent misunderstood what [Respondent] had said.’’ RD, at 5. Ultimately, whether Respondent intended to get patients from Mr. Gonzales for a fee or the conversation was in fact a misunderstanding is irrelevant to determining whether or not Respondent was excluded from participation in Medicare, Medicaid, or other Federal health care program. However, the mitigation of his crime is relevant to his acceptance of responsibility. See infra IV. 9 Respondent’s testimony where he accepted responsibility most often was in response to a leading question from his attorney. See Tr. 33, 67– 68, 79, 80–81. 10 When asked by his attorney what caused his conviction, Respondent answered ‘‘. . . that talking about—offering someone money to refer you patients, that’s considered a crime.’’ Tr. 80. PO 00000 Frm 00123 Fmt 4703 Sfmt 4703 10355 clearly denied doing anything wrong. See id. at 29, 31, 68–69, 76–78. I did not do anything. It’s just like talking to this person. But I—I felt bad because, you know, this happened to me. And I feel like, sorry, and it’s really, like, you know, the— the judgment on [sic] the Court with the final decision will affect my life and my practice and my family, you know. But I never gave him any money. I never gave any checks. He brought no patients to me at all. Id. at 31. Respondent also testified that he was unfairly charged, that he is innocent, and that the judgment was unfair. Id. at 56, 68. I agree with the ALJ that ‘‘it is obvious that during [Respondent’s] testimony on direct examination, he was downplaying his criminal conduct.’’ RD, at 5. Respondent testified that because of his conversation with the undercover agent he entered a nolo contendere plea in state court to a misdemeanor charge of offering to pay for patients. Tr. 33, 35; RD, at 9–10. Respondent testified that he was sentenced to informal probation, to perform 40 hours of community service, and to pay some minimal fees. Tr. 33, 36–37; RD, at 10. He testified that he has satisfied the terms of his probation. Tr. 37, 74; RD, at 10. The ALJ found that Respondent generally presented his testimony in a clear, candid, and convincing manner, but found that Respondent’s testimony lacked credibility on two points (see supra n.7 and n.8), and was concerning or evasive on four other points.11 RD, at 4–5. I agree with the ALJ and adopt all of his credibility findings in this matter. D. Respondent’s Exclusion The evidence in the record demonstrates that on July 2, 2014, Respondent signed a Superior Court of California, County of Orange, General Misdemeanor 12 Guilty Plea Form 11 (1) Respondent neglected to mention in his testimony that the Board had revoked his dental license and then stayed the revocation, but Respondent had stipulated to that fact prior to the hearing. RD, at 4. (2) Respondent’s testimony regarding his continuing education courses was evasive. RD, at 4–5. (3) Respondent was reluctant to acknowledge that his agreement with the Board stated that he was convicted of a felony. RD, at 5. (4) Respondent claimed to not understand the ALJ’s question when the ALJ asked him why he pled nolo contendere instead of guilty. Id. 12 There is evidence in the record that Respondent plead nolo contendere to and was convicted of a felony, not a misdemeanor. See GX 5, at 5; Resp Prehearing, at 2; Resp Supp Prehearing, at 2. The testimony at the hearing, however, clarified that Respondent was originally charged with a felony violation, but ultimately plead nolo contendere to and was convicted of a misdemeanor. Tr. 19, 35. Ultimately whether he was convicted of a felony or a misdemeanor is irrelevant to determining whether or not Respondent was excluded from participation in Medicare, Medicaid, or other Federal health care program, which is the E:\FR\FM\19FEN1.SGM Continued 19FEN1 10356 Federal Register / Vol. 86, No. 32 / Friday, February 19, 2021 / Notices tkelley on DSKBCP9HB2PROD with NOTICES (hereinafter, Plea Agreement). GX 3, at 1. In the Plea Agreement, Respondent plead nolo contendere to the charge of violating Welfare and Institution Code 14107.2(b) offering unlawful Medi-Cal remuneration. GX 3, at 1; Tr. 33; GX 5, at 5. Upon his conviction, Respondent’s sentencing terms stated: ‘‘imposition . . . of sentence is suspended 3 years’’; ‘‘[i]nformal PROBATION as to Count(s) 1’’; and ‘‘[p]robation to termination . . . upon 18 months no violation.’’ GX 3, at 4–5. The parties stipulated that on September 30, 2015, Respondent was notified by 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). ALJX 9, at 2; GX 4 (hereinafter, Exclusion Letter), at 1. The Exclusion Letter stated, ‘‘[t]his exclusion is due to your conviction . . . in the Superior Court of California, County of Orange, of a criminal offense related to the delivery of an item or service under the Medicare or a State health care program, including the performance of management or administrative services relating to the delivery of items or services, under any such program.’’ GX 4, at 1. The Exclusion Letter stated that the exclusion would become effective twenty days from the date of the letter, and notified Respondent of his appeal rights. Id. Accordingly, I find that the HHS/OIG excluded Respondent from Medicare, Medicaid, and all federal health care programs under 42 U.S.C. 1320a–7(a) for a minimum of five years effective twenty days after September 30, 2015, based on Respondent’s conviction. III. 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. 21 U.S.C. 824. 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.’’ Id. 42 U.S.C. 1320a–7(a) provides a list of four predicate offenses for which exclusion from Medicare, Medicaid, and federal health care programs is mandatory and sets out mandatory timeframes for such exclusion. Id. The undisputed record evidence demonstrates that HHS/OIG mandatorily excluded Respondent. GX 4, ALJX 9, at 2; RD, at 6. grounds for revocation under the Controlled Substances Act, and the record evidence clearly demonstrates that he was so excluded. VerDate Sep<11>2014 21:07 Feb 18, 2021 Jkt 253001 Each subsection of Section 824(a) provides an independent and adequate 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. [§ ] 824(a)(5).’’). Further, this Agency has concluded repeatedly that the underlying crime requiring exclusion from federal health care programs under Section 1320a–7(a) of Title 42 does not require a nexus to controlled substances in order to be used as a ground for revocation or suspension of a registration. Narciso Reyes, M.D., 83 FR 61678, 61681 (2018); KK Pharmacy, 64 FR at 49510 (collecting cases); Melvin N. Seglin, M.D., 63 FR 70431, 70433 (1998); Stanley Dubin, D.D.S., 61 FR 60727, 60728 (1996). In this case, HHS/OIG excluded Respondent due to his conviction in state court related to the delivery of an item or service under a state health care program, including the performance of management or administrative services relating to the delivery of items or services such as offering unlawful Medi-Cal remuneration. GX 4, at 1. ‘‘There 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 46968, 46972 (2019). Here, the crime of illegal remuneration does not have a nexus to controlled substances; however the crime occurred in the context of Respondent’s medical practice, and Respondent knew that paying per patient was illegal. Respondent’s knowing deceit and failure to credibly accept responsibility, as discussed below, weigh against my ability to entrust Respondent with a registration and in favor of revocation. IV. Sanction There is no dispute in the record that Respondent is mandatorily excluded pursuant to Section 1320a–7(a) of Title 42 and, therefore, the Government has met its prima facie burden of showing that a ground for the revocation or suspension of Respondent’s registration exists. GX 4, ALJX 9, at 2; RD, at 6. Now, the burden shifts to the Respondent to show why he can be entrusted with a registration. Garrett Howard Smith, M.D., 83 FR 18882, 18910 (2018) (collecting cases). The CSA authorizes the Attorney General to ‘‘promulgate and enforce any rules, regulations, and procedures PO 00000 Frm 00124 Fmt 4703 Sfmt 4703 which he may deem necessary and appropriate for the efficient execution of his functions under this subchapter.’’ 21 U.S.C. 871(b). This authority specifically relates ‘‘to ‘registration’ and ‘control,’ and ‘for the efficient execution of his functions’ under the statute.’’ Gonzales v. Oregon, 546 U.S. 243, 259 (2006). A clear purpose of this authority is to ‘‘bar[ ] doctors from using their prescription-writing powers as a means to engage in illicit drug dealing and trafficking.’’ Id. at 270. In efficiently executing the revocation and suspension authority delegated to me under the CSA for the aforementioned purposes, I review the evidence and arguments Respondent submitted to determine whether or not he has presented ‘‘sufficient mitigating evidence to assure the Administrator that he can be trusted with the responsibility carried by such a registration.’’ Samuel S. Jackson, D.D.S., 72 FR 23848, 23853 (2007) (quoting Leo R. Miller, M.D., 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), [the Agency] has repeatedly held that where a registrant has committed acts inconsistent with the public interest, the registrant must accept responsibility for [the registrant’s] actions and demonstrate that [registrant] 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. Kennnedy, M.D., 71 FR 35705, 35709 (2006); Prince George Daniels, D.D.S., 60 FR 62884, 62887 (1995). While there are places in Respondent’s testimony where he claims to accept responsibility,13 I agree with the ALJ’s statement that ‘‘[Respondent’s] acceptance of responsibility was, at best, equivocal.’’ RD, at 23. Ultimately I agree with the ALJ’s finding ‘‘that [Respondent] has not accepted responsibility for offering to pay for patients.’’ Id. Respondent testified repeatedly that he believed that he did not do anything wrong—he was just talking to a person. Tr. 29, 31, 68– 69, 76–78. Respondent also testified that he was unfairly charged, that he is innocent, and that the judgment was unfair. Tr. 56, 68. Moreover, Respondent made statements that minimized his misconduct, which weighs against finding that Respondent accepted 13 Respondent, in the opening statement, argued that ‘‘he certainly has done everything he could try to take responsibility for this. . . .’’ Tr. 14. I disagree. E:\FR\FM\19FEN1.SGM 19FEN1 10357 Federal Register / Vol. 86, No. 32 / Friday, February 19, 2021 / Notices responsibility. See supra II.C; RD, at 21 (citing Arvinder Singh, M.D., 81 FR 8247, 8249–51 (2016)); Stein, 84 FR 46973. Additionally, Respondent plead nolo contendere instead of guilty to the charge of offering unlawful Medi-Cal remuneration. GX 3. ‘‘In general, however, a plea of nolo contendere is inconsistent with the acceptance of responsibility.’’ RD, at 21 (citing United States v. Gordon, 979 F. Supp. 337, 342 (E.D. Pa. 1997) (internal citations omitted)). Finding that a respondent has failed to accept responsibility is warranted where, as here, the respondent pled nolo contendere and minimized his role in the crime. See Jeffery M. Freesemann, M.D., 76 FR 60873, 60888 (2011); see also RD, at 22. Respondent must convince the Administrator that his acceptance of responsibility and remorse are sufficiently credible to demonstrate that the misconduct will not recur. Respondent, in his opening statement, argued that his testimony would show ‘‘his genuine remorse . . . .’’ Tr. 14. But the record indicates that Respondent was not remorseful for what he did; instead that he regretted the consequences that flowed from his conviction.14 Id. at 31, 39, 68. This lack of remorse goes hand-in-hand with Respondent’s failure to accept responsibility and further supports the revocation of his registration. In sanction determinations, the Agency has historically considered its interest in deterring similar acts, both with respect to the respondent in a particular case and the community of registrants. See Joseph Gaudio, M.D., 74 FR 10083, 10095 (2009); Singh, 81 FR at 8248. In this case, the Respondent knew at the time that he committed the crime that his actions were illegal—he even told Mr. Gonzales that the actions were illegal and advised him not to tell anyone. Deterring such deceit and knowing criminal behavior both in Respondent and the general registrant community is relevant to ensuring compliance with the CSA. Although I would not characterize Respondent’s underlying crime as particularly egregious, Respondent has not convinced me that he will not repeat such deceitful behavior in using his CSA registration. Respondent has argued, among other things, that he can be entrusted with a registration because he has seen over 15,000 patients in twenty years and has never had any issues with prescribing, he has never had a malpractice complaint, he is very mindful of the opioid crisis, and he has satisfied the terms of his probation. Tr. 13–14, 37, 74. Even assuming, arguendo, all of this to be true, Respondent needed to present evidence of a credible and persuasive acceptance of responsibility. Respondent has not. Based on Respondent’s failure to accept responsibility for his criminal misconduct and lack of demonstrated remorse, I cannot find that Respondent can be entrusted with a DEA registration; and therefore, I find that revocation is the appropriate sanction I will therefore order that Respondent’s registration be revoked 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. BA6641472 issued to Ibrahim Al-Qawaqneh, D.D.S. This Order is effective March 22, 2021. D. Christopher Evans, Acting Administrator. ACTION: Notice of application. VHG Labs DBA LGC Standards has applied to be registered as an importer of basic class(es) of controlled substance(s). Refer to Supplemental Information listed below for further drug information. SUMMARY: Registered bulk manufacturers of the affected basic class(es), and applicants therefore, may file written comments on or objections to the issuance of the proposed registration on or before March 22, 2021. Such persons may also file a written request for a hearing on the application on or before March 22, 2021. DATES: Written comments should be sent to: Drug Enforcement Administration, Attention: DEA Federal Register Representative/DPW, 8701 Morrissette Drive, Springfield, Virginia 22152. All requests for a hearing must be sent to: Drug Enforcement Administration, Attn: Administrator, 8701 Morrissette Drive, Springfield, Virginia 22152. All requests for a hearing should also be sent to: (1) Drug Enforcement Administration, Attn: Hearing Clerk/OALJ, 8701 Morrissette Drive, Springfield, Virginia 22152; and (2) Drug Enforcement Administration, Attn: DEA Federal Register Representative/DPW, 8701 Morrissette Drive, Springfield, Virginia 22152. ADDRESSES: In accordance with 21 CFR 1301.34(a), this is notice that on February 2, 2021, VHG Labs DBA LGC Standards, 3 Perimeter Road, Manchester, New Hampshire 03103, applied to be registered as an importer of the following basic class(es) of controlled substance(s): SUPPLEMENTARY INFORMATION: [FR Doc. 2021–03360 Filed 2–18–21; 8:45 am] BILLING CODE 4410–09–P DEPARTMENT OF JUSTICE Drug Enforcement Administration [Docket No. DEA–793] Importer of Controlled Substances Application: VHG Labs DBA LGC Standards Drug Enforcement Administration, Justice. AGENCY: tkelley on DSKBCP9HB2PROD with NOTICES Controlled substance Drug code Cathinone ........................................................................................................................................................................ Methcathinone ................................................................................................................................................................. Naphyrone ....................................................................................................................................................................... N-Ethylamphetamine ....................................................................................................................................................... JWH-250 (1-Pentyl-3-(2-methoxyphenylacetyl) indole) ................................................................................................... SR-18 (Also known as RCS-–8) (1-Cyclohexylethyl-3-(2-methoxyphenylacetyl) indole) ............................................... APINACA and AKB48 N-(1-Adamantyl)-1-pentyl-1H-indazole-3-carboxamide .............................................................. JWH-081 (1-Pentyl-3-(1-(4-methoxynaphthoyl) indole) ................................................................................................... SR-19 (Also known as RCS-4) (1-Pentyl-3-[(4-methoxy)-benzoyl] indole ...................................................................... 14 For example, Respondent testified ‘‘I really suffered going through these things—something I didn’t do . . . [I] lost most—most of my patients, VerDate Sep<11>2014 21:07 Feb 18, 2021 Jkt 253001 lost a lot of PPO insurances. I have to pay a lot of employees, and so many things for something that happened—someone faking like, you know, PO 00000 Frm 00125 Fmt 4703 Sfmt 4703 1235 1237 1258 1475 6250 7008 7048 7081 7104 Schedule I I I I I I I I I accusing you of doing something, but there’s no 100 percent proof.’’ Tr. 68. E:\FR\FM\19FEN1.SGM 19FEN1

Agencies

[Federal Register Volume 86, Number 32 (Friday, February 19, 2021)]
[Notices]
[Pages 10354-10357]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-03360]



[[Page 10354]]

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DEPARTMENT OF JUSTICE

Drug Enforcement Administration


Ibrahim Al-Qawaqneh, D.D.S.; Decision and Order

    On November 20, 2018, the Assistant Administrator, Diversion 
Control Division, Drug Enforcement Administration (hereinafter, DEA or 
Government), issued an Order to Show Cause to Ibrahim Al-Qawaqneh, 
D.D.S. (hereinafter, Respondent), of Anaheim, California. 
Administrative Law Judge Exhibit (ALJX) 1 (Order to Show Cause 
(hereinafter, OSC)), at 1. The OSC proposes the revocation of 
Respondent's Certificate of Registration No. BA6641472 and denial of 
any pending application to renew \1\ such registration pursuant to 21 
U.S.C. 824(a)(5).
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    \1\ The OSC also proposed denial of any pending application to 
modify a DEA registration. Because there is no evidence in the 
record of a pending application to modify a DEA registration, and 
because the Government made no arguments regarding the factors in 21 
U.S.C. 823(f), I will not address this proposal herein.
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I. Procedural History

    The OSC alleged that on July 2, 2014, Respondent ``entered a plea 
of nolo contendere in the Superior Court of California, County of 
Orange, to a charge of Offering Unlawful Medi-Cal Remuneration, a 
felony. . . .'' OSC, at 1. The OSC further alleged that as a result of 
Respondent's conviction, on September 30, 2015, the United States 
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)'' 
(hereinafter, Exclusion Letter); and that ``[m]andatory exclusion from 
Medicare is an independent ground for revoking a DEA registration 
pursuant to 21 U.S.C. 824(a)(5).'' OSC, at 2.
    The OSC notified Respondent of the right to either request a 
hearing on the allegations or submit a written statement in lieu of 
exercising the right to a hearing, the procedures for electing each 
option, and the consequences for failing to elect either option. Id. at 
2 (citing 21 CFR 1301.43). The OSC also notified Respondent of the 
opportunity to submit a corrective action plan. OSC, at 3 (citing 21 
U.S.C. 824(c)(2)(C)).
    By letter dated December 21, 2018, Respondent timely requested a 
hearing.\2\ ALJX 2 (Request for Hearing), at 1. The matter was placed 
on the docket of the Office of Administrative Law Judges and was 
assigned to Administrative Law Judge Charles Wm. Dorman (hereinafter, 
the ALJ). On December 28, 2018, the ALJ established a schedule for the 
filing of prehearing statements. ALJX 3 (Order for Prehearing 
Statements), at 1. The Government filed its prehearing statement timely 
on January 14, 2019. ALJX 5 (Government's Prehearing Statement), at 1. 
Respondent twice missed the deadline for filing his prehearing 
statement and was granted two extensions. ALJX 6 (Order Rescheduling 
Prehearing Conference and Order to Respondent to File Prehearing 
Statement and to Show Good Cause Why Case should not be Terminated); 
ALJX 7 (Prehearing Ruling). Respondent filed his prehearing statement 
within the extended deadline on February 26, 2019, and supplemented the 
prehearing statement on March 7, 2019. ALJX 8 (Resp Prehearing), ALJX 
10 (Resp Supp Prehearing).
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    \2\ I find that service of the OSC was proper. See ALJX 4 
(Government's Notice Regarding Service of Order to Show Cause and 
Position on Motion for Termination of Proceedings), Attachment 2 
(Form DEA-12 (8-02) ``Receipt for Cash or Other Items,'' dated 
November 27, 2018).
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    On February 28, 2019, the ALJ issued a prehearing ruling that, 
among other things, set out four agreed upon stipulations and 
established schedules for the remaining prehearing activities and for 
the hearing. ALJX 9 (Second Prehearing Ruling). The hearing in this 
matter took place in Los Angeles, California, and spanned two days. See 
ALJX 11 (Ruling Regarding Hearing Location); ALJX 12 (Notice of 
Hearing); and Transcript of Proceedings in the Matter of Ibrahim Al-
Qawaqneh, D.D.S. (hereinafter, Tr.). The Government filed a posthearing 
brief, but Respondent did not. ALJX 16 (Government's Proposed Findings 
of Fact, Conclusions of Law and Argument (hereinafter, Govt 
Posthearing)). The ALJ's Recommended Rulings, Findings of Fact, 
Conclusions of Law, and Decision (hereinafter, RD) is dated June 21, 
2019. See RD. According to the ALJ, neither party filed exceptions to 
the RD and the deadline for doing so has passed. See Transmittal Letter 
from the ALJ, dated July 15, 2019. I have reviewed and agree with the 
procedural rulings of the ALJ during the administration of the hearing.
    Having considered the record in its entirety, I agree with the ALJ 
and find that the Government established ``that HHS mandatorily 
excluded [Respondent] from Federal health care programs based on a 
program-related conviction.'' RD, at 17. I also agree with the ALJ that 
the Respondent failed to accept responsibility for his misconduct, and 
that revocation is the appropriate sanction. See RD, at 28. I make the 
following findings of fact.

II. Findings of Fact

A. Respondent's DEA Registration

    The parties stipulated that Respondent is registered with the DEA 
``as a dentist practitioner in Schedules II-V \3\ under DEA 
registration number BA6641472 at 1719 W. Romneya Drive, Anaheim, 
California 92801.'' ALJX 9, at 1; Government Exhibit (hereinafter, GX) 
1 (Controlled Substance Registration Certificate); and GX 2 (Certified 
Registration History of Respondent). According to Agency records, 
Respondent did not submit a renewal application and his registration 
expired on June 30, 2020.\4\ See also GX 1, GX 2.
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    \3\ As the ALJ noted in his decision, the Respondent is actually 
only registered in Schedules II-III. RD, at 6; GX 1; GX 2.
    \4\ The fact that a respondent allows his registration to expire 
during the pendency of an OSC does not impact my jurisdiction or 
prerogative under the Controlled Substances Act (hereinafter, CSA) 
to adjudicate the OSC to finality. Jeffrey D. Olsen, M.D., 84 FR 
68474 (2019).
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B. Government's Case

    The Government's documentary evidence consisted primarily of 
records from the Superior Court of California, County of Orange, 
regarding Respondent's conviction; documents regarding the Dental Board 
of California's accusation against and settlement with Respondent; and 
the HHS/OIG exclusion letter notifying Respondent of his Medicare and 
Medicaid exclusion. See GX 1-6. Additionally, the Government called the 
Diversion Investigator (hereinafter DI) as a witness both in the 
Government's case-in-chief and in rebuttal. Tr. 15-20, 82-86.
    DI testified regarding his professional background and about his 
involvement in the investigation into Respondent. Tr. 17-18. DI 
testified that he obtained the HHS/OIG exclusion letter regarding 
Respondent's five-year minimum exclusion from Medicare and Medicaid as 
part of his investigation. Id. at 18. He also testified that DEA has 
not received any information that the five-year minimum exclusion HHS/
OIG imposed on Respondent has been modified, lifted, or otherwise 
rescinded. Id. at 18-19. On rebuttal, DI testified that he searched the 
Controlled Substance Utilization Review and Evaluation System for the 
18 months prior to his testimony (approximately November 2017 to May 7, 
2019) and found just one controlled substance prescription issued by 
Respondent. Id. at 84-85. Having read and analyzed all of the record

[[Page 10355]]

evidence, I agree with the ALJ that DI's testimony was straightforward 
and professional, and I likewise ``give his testimony full credit.'' 
RD, at 3.

C. Respondent's Case

    Respondent's documentary evidence consisted of Respondent's resume 
and a list of continuing dental education courses that Respondent has 
recently taken. Respondent's Exhibits (hereinafter RX), 1-2. Respondent 
testified on his own behalf and presented no other testimony in support 
of his case. Respondent testified regarding his professional 
background, experience, and education; and regarding his dental 
practice. Tr. 22-28, 38, 52-54. Respondent testified that he has had 
his dental practice for over twenty years, and that he has never had 
any malpractice claims filed against him, DEA has not expressed any 
concerns regarding his prescribing practices, and that the matters at 
issue in this case resulted in the only time the Respondent was ever 
called before the Dental Board of California (hereinafter, Board).\5\ 
Id. at 22-23, 37-38, 42. Respondent also testified that, although he 
does not often prescribe controlled substances, he needs his DEA 
registration to be able to provide quality care to his patients.\6\ Id. 
at 24-26. Respondent testified that he might prescribe controlled 
substances three or four times a month,\7\ but that 95 percent of his 
prescriptions are for non-controlled substances. Id. at 52-53.
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    \5\ Due to the conviction, on January 13, 2017, the Dental Board 
of California (hereinafter, Board) filed an accusation against 
Respondent. GX 5 (Accusation from the Board, dated January 13, 
2017), at 1. The parties stipulated that Respondent and the Board 
agreed, ``inter alia, that Respondent's dental license would be 
revoked; however, the revocation was stayed, and Respondent's dental 
license was placed on probation for three years subject to several 
terms and conditions.'' ALJX 9, at 2; RD, at 6; see also GX 6 (Board 
Decision and Stipulated Settlement and Disciplinary Order). In the 
settlement, Respondent ``admit[ted] the truth of each and every 
charge and allegation in [the Board's] Accusation.'' GX 6, at 3.
    \6\ The Government argued that Respondent's registration should 
be revoked because he ``has not demonstrated a need for a DEA 
[registration] in order to continue his practice of dentistry.'' 
ALJX 16, at 19; RD, at 26. The ALJ assessed and rejected this 
argument, and I agree. RD, at 26-27. Respondent's need for a 
registration is not relevant to my determination of whether or not 
Respondent can be entrusted with a registration. See infra IV.
    \7\ The ALJ found that this testimony was rebutted by DI's 
testimony that Respondent had issued only one controlled substance 
prescription in the year and a half prior to the hearing. RD, at 4; 
and see supra II.B. Thus, the ALJ did not find Respondent's 
testimony on this issue to be credible. RD, at 4.
---------------------------------------------------------------------------

    Respondent also testified regarding the event that led to his 
criminal conviction. See infra II.D. He testified that in December 
2013, an undercover agent from the Medi-Cal fraud department going by 
the name of Mr. Gonzales came to Respondent's dental office to talk to 
him. Tr. 28-29; RD, at 9, GX 5, at 5. According to Respondent, Mr. 
Gonzales informed Respondent that he did ``marketing'' and that he 
could bring Respondent a lot of medical patients for $90-$120 per 
patient. Tr. 29; RD, at 9. Respondent stated, ``I told [Mr. Gonzales], 
that's a lot. I wouldn't do that. And I won't pay more than $80.'' \8\ 
Tr. 29. Respondent stated, ``I did tell [Mr. Gonzales] that is illegal 
. . . like paying per patient. And I was telling him . . . it's legal 
to do marketing if you get paid like, an hourly or salary but not per 
patient. That's the law.'' Id. at 29. Respondent testified that his 
conversation with Mr. Gonzales lasted approximately fifteen minutes. 
Id. at 30; RD, at 9. Respondent admitted that during the conversation 
he offered Mr. Gonzales: $20 for patients who had their teeth cleaned; 
$40 for patients who had sealants put on their teeth; $50 for patients 
for who received three to four fillings; and $100 for patients who 
received six or more fillings. Tr. 75-78; GX 5, at 5; RD, at 9. In 
addition, Respondent warned Mr. Gonzales not to tell anyone about 
getting paid for bringing patients. Tr. at 75-78.
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    \8\ Respondent repeatedly testified that Mr. Gonzales 
misunderstood what he had said. He testified that ``[t]he 
conversation was in general about just marketing'' and that Mr. 
Gonzales put his words together in a way that made it seem like 
Respondent was offering to pay for patients. Tr. 78-79. Respondent 
testified that what he really meant was: ``when I say I spent $80 on 
a patient, like if you put an ad in the newspaper . . . let's say 
you spent $1,000, and you got, like, maybe 10 patients or 12 
patients, roughly, you're spending about $80 per patient.'' Tr. 30. 
At one point, Respondent testified, Mr. Gonzales was ``talking to me 
and--and trying to trick my tongue in saying things like, wrong.'' 
Tr. 69. I agree with the ALJ that ``[i]n comparing [Respondent's] 
testimony on direct examination about his conversation with the 
undercover agent with the detailed facts contained in Government 
Exhibit 5, I do not find it credible that the agent misunderstood 
what [Respondent] had said.'' RD, at 5. Ultimately, whether 
Respondent intended to get patients from Mr. Gonzales for a fee or 
the conversation was in fact a misunderstanding is irrelevant to 
determining whether or not Respondent was excluded from 
participation in Medicare, Medicaid, or other Federal health care 
program. However, the mitigation of his crime is relevant to his 
acceptance of responsibility. See infra IV.
---------------------------------------------------------------------------

    At times, Respondent appeared to accept responsibility for his 
actions and acknowledge that what he did was wrong.\9\ Id. at 33, 39, 
67-68, 79, 80-81.\10\ However, more frequently, Respondent clearly 
denied doing anything wrong. See id. at 29, 31, 68-69, 76-78.
---------------------------------------------------------------------------

    \9\ Respondent's testimony where he accepted responsibility most 
often was in response to a leading question from his attorney. See 
Tr. 33, 67-68, 79, 80-81.
    \10\ When asked by his attorney what caused his conviction, 
Respondent answered ``. . . that talking about--offering someone 
money to refer you patients, that's considered a crime.'' Tr. 80.

    I did not do anything. It's just like talking to this person. 
But I--I felt bad because, you know, this happened to me. And I feel 
like, sorry, and it's really, like, you know, the--the judgment on 
[sic] the Court with the final decision will affect my life and my 
practice and my family, you know. But I never gave him any money. I 
---------------------------------------------------------------------------
never gave any checks. He brought no patients to me at all.

Id. at 31. Respondent also testified that he was unfairly charged, that 
he is innocent, and that the judgment was unfair. Id. at 56, 68. I 
agree with the ALJ that ``it is obvious that during [Respondent's] 
testimony on direct examination, he was downplaying his criminal 
conduct.'' RD, at 5.
    Respondent testified that because of his conversation with the 
undercover agent he entered a nolo contendere plea in state court to a 
misdemeanor charge of offering to pay for patients. Tr. 33, 35; RD, at 
9-10. Respondent testified that he was sentenced to informal probation, 
to perform 40 hours of community service, and to pay some minimal fees. 
Tr. 33, 36-37; RD, at 10. He testified that he has satisfied the terms 
of his probation. Tr. 37, 74; RD, at 10.
    The ALJ found that Respondent generally presented his testimony in 
a clear, candid, and convincing manner, but found that Respondent's 
testimony lacked credibility on two points (see supra n.7 and n.8), and 
was concerning or evasive on four other points.\11\ RD, at 4-5. I agree 
with the ALJ and adopt all of his credibility findings in this matter.
---------------------------------------------------------------------------

    \11\ (1) Respondent neglected to mention in his testimony that 
the Board had revoked his dental license and then stayed the 
revocation, but Respondent had stipulated to that fact prior to the 
hearing. RD, at 4. (2) Respondent's testimony regarding his 
continuing education courses was evasive. RD, at 4-5. (3) Respondent 
was reluctant to acknowledge that his agreement with the Board 
stated that he was convicted of a felony. RD, at 5. (4) Respondent 
claimed to not understand the ALJ's question when the ALJ asked him 
why he pled nolo contendere instead of guilty. Id.
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D. Respondent's Exclusion

    The evidence in the record demonstrates that on July 2, 2014, 
Respondent signed a Superior Court of California, County of Orange, 
General Misdemeanor \12\ Guilty Plea Form

[[Page 10356]]

(hereinafter, Plea Agreement). GX 3, at 1. In the Plea Agreement, 
Respondent plead nolo contendere to the charge of violating Welfare and 
Institution Code 14107.2(b) offering unlawful Medi-Cal remuneration. GX 
3, at 1; Tr. 33; GX 5, at 5. Upon his conviction, Respondent's 
sentencing terms stated: ``imposition . . . of sentence is suspended 3 
years''; ``[i]nformal PROBATION as to Count(s) 1''; and ``[p]robation 
to termination . . . upon 18 months no violation.'' GX 3, at 4-5.
---------------------------------------------------------------------------

    \12\ There is evidence in the record that Respondent plead nolo 
contendere to and was convicted of a felony, not a misdemeanor. See 
GX 5, at 5; Resp Prehearing, at 2; Resp Supp Prehearing, at 2. The 
testimony at the hearing, however, clarified that Respondent was 
originally charged with a felony violation, but ultimately plead 
nolo contendere to and was convicted of a misdemeanor. Tr. 19, 35. 
Ultimately whether he was convicted of a felony or a misdemeanor is 
irrelevant to determining whether or not Respondent was excluded 
from participation in Medicare, Medicaid, or other Federal health 
care program, which is the grounds for revocation under the 
Controlled Substances Act, and the record evidence clearly 
demonstrates that he was so excluded.
---------------------------------------------------------------------------

    The parties stipulated that on September 30, 2015, Respondent was 
notified by 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). ALJX 9, at 2; GX 4 (hereinafter, 
Exclusion Letter), at 1. The Exclusion Letter stated, ``[t]his 
exclusion is due to your conviction . . . in the Superior Court of 
California, County of Orange, of a criminal offense related to the 
delivery of an item or service under the Medicare or a State health 
care program, including the performance of management or administrative 
services relating to the delivery of items or services, under any such 
program.'' GX 4, at 1. The Exclusion Letter stated that the exclusion 
would become effective twenty days from the date of the letter, and 
notified Respondent of his appeal rights. Id.
    Accordingly, I find that the HHS/OIG excluded Respondent from 
Medicare, Medicaid, and all federal health care programs under 42 
U.S.C. 1320a-7(a) for a minimum of five years effective twenty days 
after September 30, 2015, based on Respondent's conviction.

III. 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. 21 U.S.C. 824. 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.'' Id. 42 U.S.C. 1320a-7(a) provides a list of 
four predicate offenses for which exclusion from Medicare, Medicaid, 
and federal health care programs is mandatory and sets out mandatory 
timeframes for such exclusion. Id. The undisputed record evidence 
demonstrates that HHS/OIG mandatorily excluded Respondent. GX 4, ALJX 
9, at 2; RD, at 6.
    Each subsection of Section 824(a) provides an independent and 
adequate 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).'').
    Further, this Agency has concluded repeatedly that the underlying 
crime requiring exclusion from federal health care programs under 
Section 1320a-7(a) of Title 42 does not require a nexus to controlled 
substances in order to be used as a ground for revocation or suspension 
of a registration. Narciso Reyes, M.D., 83 FR 61678, 61681 (2018); KK 
Pharmacy, 64 FR at 49510 (collecting cases); Melvin N. Seglin, M.D., 63 
FR 70431, 70433 (1998); Stanley Dubin, D.D.S., 61 FR 60727, 60728 
(1996). In this case, HHS/OIG excluded Respondent due to his conviction 
in state court related to the delivery of an item or service under a 
state health care program, including the performance of management or 
administrative services relating to the delivery of items or services 
such as offering unlawful Medi-Cal remuneration. GX 4, at 1. ``There 
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 46968, 46972 (2019). Here, the crime of illegal remuneration does 
not have a nexus to controlled substances; however the crime occurred 
in the context of Respondent's medical practice, and Respondent knew 
that paying per patient was illegal. Respondent's knowing deceit and 
failure to credibly accept responsibility, as discussed below, weigh 
against my ability to entrust Respondent with a registration and in 
favor of revocation.

IV. Sanction

    There is no dispute in the record that Respondent is mandatorily 
excluded pursuant to Section 1320a-7(a) of Title 42 and, therefore, the 
Government has met its prima facie burden of showing that a ground for 
the revocation or suspension of Respondent's registration exists. GX 4, 
ALJX 9, at 2; RD, at 6. Now, the burden shifts to the Respondent to 
show why he can be entrusted with a registration. Garrett Howard Smith, 
M.D., 83 FR 18882, 18910 (2018) (collecting cases).
    The CSA authorizes the Attorney General to ``promulgate and enforce 
any rules, regulations, and procedures which he may deem necessary and 
appropriate for the efficient execution of his functions under this 
subchapter.'' 21 U.S.C. 871(b). This authority specifically relates 
``to `registration' and `control,' and `for the efficient execution of 
his functions' under the statute.'' Gonzales v. Oregon, 546 U.S. 243, 
259 (2006). A clear purpose of this authority is to ``bar[ ] doctors 
from using their prescription-writing powers as a means to engage in 
illicit drug dealing and trafficking.'' Id. at 270.
    In efficiently executing the revocation and suspension authority 
delegated to me under the CSA for the aforementioned purposes, I review 
the evidence and arguments Respondent submitted to determine whether or 
not he has presented ``sufficient mitigating evidence to assure the 
Administrator that he can be trusted with the responsibility carried by 
such a registration.'' Samuel S. Jackson, D.D.S., 72 FR 23848, 23853 
(2007) (quoting Leo R. Miller, M.D., 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), [the Agency] has repeatedly held that where a registrant has 
committed acts inconsistent with the public interest, the registrant 
must accept responsibility for [the registrant's] actions and 
demonstrate that [registrant] 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. 
Kennnedy, M.D., 71 FR 35705, 35709 (2006); Prince George Daniels, 
D.D.S., 60 FR 62884, 62887 (1995).
    While there are places in Respondent's testimony where he claims to 
accept responsibility,\13\ I agree with the ALJ's statement that 
``[Respondent's] acceptance of responsibility was, at best, 
equivocal.'' RD, at 23. Ultimately I agree with the ALJ's finding 
``that [Respondent] has not accepted responsibility for offering to pay 
for patients.'' Id. Respondent testified repeatedly that he believed 
that he did not do anything wrong--he was just talking to a person. Tr. 
29, 31, 68-69, 76-78. Respondent also testified that he was unfairly 
charged, that he is innocent, and that the judgment was unfair. Tr. 56, 
68. Moreover, Respondent made statements that minimized his misconduct, 
which weighs against finding that Respondent accepted

[[Page 10357]]

responsibility. See supra II.C; RD, at 21 (citing Arvinder Singh, M.D., 
81 FR 8247, 8249-51 (2016)); Stein, 84 FR 46973. Additionally, 
Respondent plead nolo contendere instead of guilty to the charge of 
offering unlawful Medi-Cal remuneration. GX 3. ``In general, however, a 
plea of nolo contendere is inconsistent with the acceptance of 
responsibility.'' RD, at 21 (citing United States v. Gordon, 979 F. 
Supp. 337, 342 (E.D. Pa. 1997) (internal citations omitted)). Finding 
that a respondent has failed to accept responsibility is warranted 
where, as here, the respondent pled nolo contendere and minimized his 
role in the crime. See Jeffery M. Freesemann, M.D., 76 FR 60873, 60888 
(2011); see also RD, at 22.
---------------------------------------------------------------------------

    \13\ Respondent, in the opening statement, argued that ``he 
certainly has done everything he could try to take responsibility 
for this. . . .'' Tr. 14. I disagree.
---------------------------------------------------------------------------

    Respondent must convince the Administrator that his acceptance of 
responsibility and remorse are sufficiently credible to demonstrate 
that the misconduct will not recur. Respondent, in his opening 
statement, argued that his testimony would show ``his genuine remorse . 
. . .'' Tr. 14. But the record indicates that Respondent was not 
remorseful for what he did; instead that he regretted the consequences 
that flowed from his conviction.\14\ Id. at 31, 39, 68. This lack of 
remorse goes hand-in-hand with Respondent's failure to accept 
responsibility and further supports the revocation of his registration.
---------------------------------------------------------------------------

    \14\ For example, Respondent testified ``I really suffered going 
through these things--something I didn't do . . . [I] lost most--
most of my patients, lost a lot of PPO insurances. I have to pay a 
lot of employees, and so many things for something that happened--
someone faking like, you know, accusing you of doing something, but 
there's no 100 percent proof.'' Tr. 68.
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    In sanction determinations, the Agency has historically considered 
its interest in deterring similar acts, both with respect to the 
respondent in a particular case and the community of registrants. See 
Joseph Gaudio, M.D., 74 FR 10083, 10095 (2009); Singh, 81 FR at 8248. 
In this case, the Respondent knew at the time that he committed the 
crime that his actions were illegal--he even told Mr. Gonzales that the 
actions were illegal and advised him not to tell anyone. Deterring such 
deceit and knowing criminal behavior both in Respondent and the general 
registrant community is relevant to ensuring compliance with the CSA. 
Although I would not characterize Respondent's underlying crime as 
particularly egregious, Respondent has not convinced me that he will 
not repeat such deceitful behavior in using his CSA registration.
    Respondent has argued, among other things, that he can be entrusted 
with a registration because he has seen over 15,000 patients in twenty 
years and has never had any issues with prescribing, he has never had a 
malpractice complaint, he is very mindful of the opioid crisis, and he 
has satisfied the terms of his probation. Tr. 13-14, 37, 74. Even 
assuming, arguendo, all of this to be true, Respondent needed to 
present evidence of a credible and persuasive acceptance of 
responsibility. Respondent has not.
    Based on Respondent's failure to accept responsibility for his 
criminal misconduct and lack of demonstrated remorse, I cannot find 
that Respondent can be entrusted with a DEA registration; and 
therefore, I find that revocation is the appropriate sanction
    I will therefore order that Respondent's registration be revoked 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. 
BA6641472 issued to Ibrahim Al-Qawaqneh, D.D.S. This Order is effective 
March 22, 2021.

D. Christopher Evans,
Acting Administrator.
[FR Doc. 2021-03360 Filed 2-18-21; 8:45 am]
BILLING CODE 4410-09-P