Michael Jones, M.D.; Decision and Order, 20728-20732 [2021-08169]

Agencies

• Drug Enforcement Administration
• Department of Justice

[Federal Register Volume 86, Number 75 (Wednesday, April 21, 2021)]
[Notices]
[Pages 20728-20732]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-08169]


-----------------------------------------------------------------------

DEPARTMENT OF JUSTICE

Drug Enforcement Administration


Michael Jones, M.D.; Decision and Order

    On September 19, 2019, the Drug Enforcement Administration 
(hereinafter, DEA or Government) Administrative Law Judge Charles Wm. 
Dorman (hereinafter, ALJ), issued an Order Granting Government's Motion 
for Summary Disposition and Recommended Rulings, Findings of Fact, 
Conclusions of Law, and Decision (hereinafter, RD) on the action to 
revoke the DEA Certificate of Registration Number BJ5665281 of Michael 
Jones, M.D. The ALJ transmitted the record to me on October 15, 2019, 
and asserted that no exceptions were filed by either party. ALJ 
Transmittal Letter, at 1. Having reviewed and considered the entire 
administrative record before me, I adopt the ALJ's RD with minor 
modifications, where noted herein.*A
---------------------------------------------------------------------------

    \*A\ I have made minor, nonsubstantive, grammatical changes to 
the RD. Where I have made more substantive changes, I have marked 
the changes with an asterisk, brackets and explanatory footnotes.
---------------------------------------------------------------------------

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. 
BJ5665281 issued to Michael Jones, M.D. Further, pursuant to 28 CFR 
0.100(b) and the authority vested in me by 21 U.S.C. 823(f), I hereby 
deny any pending application of Michael Jones to renew or modify this 
registration, as well as any other pending application of Michael 
Jones, for additional registration in Louisiana. This Order is 
effective May 21, 2021.

D. Christopher Evans,
Acting Administrator.
Paul E. Soeffing, Esq., for the Government
Robert C. Jenkins, Esq., for the Respondent

Order Granting Government's Motion for Summary Disposition and 
Recommended Rulings, Findings of Fact, Conclusions of Law, and Decision 
of the Administrative Law Judge

    The Assistant Administrator, Diversion Control Division, Drug 
Enforcement Administration (``DEA''), issued an Order to Show Cause 
(``OSC''), dated June 19, 2019, proposing to revoke the Certificate of 
Registration (``COR''), Number BJ5665281, of Michael Jones, M.D. (``Dr. 
Jones'' or ``Respondent''), and to deny any applications for renewal or 
modification of such registration, and any applications for any other 
DEA registrations, pursuant to 21 U.S.C. 824(a)(5). The OSC alleges 
that revocation is warranted because Respondent has been mandatorily 
excluded from all federal health care programs under 42 U.S.C. 1320a-
7(a).
    The Office of Administrative Law Judges (``OALJ'') received a copy 
of the OSC on June 19, 2019. OSC, at 1. Dr. Jones, through counsel, 
filed a hearing request on July 19, 2019, the 30th day from the date of 
the OSC. Thus, Dr. Jones's hearing request was timely filed.
    On July 19, 2019, I issued an Order for Prehearing Statements 
(``OPHS''), directing the parties to file prehearing statements and 
establishing a date for a telephonic prehearing conference. OPHS, at 1-
2. The Government timely filed its prehearing statement on August 2, 
2019. Dr. Jones did not file a prehearing statement by his deadline for 
doing so.
    I conducted a telephonic prehearing conference with the parties on 
August 21, 2019. Following the conference, I issued a Prehearing Ruling 
(``PHR''), in which I directed Dr. Jones to file a prehearing statement 
and a motion for leave to file his prehearing statement out of time.
    On August 26, 2019, Dr. Jones filed his prehearing statement along 
with a motion for leave to file his prehearing statement out of time. 
Because the Government did not file an opposition to Respondent's 
motion for out-of-time filing, on September 10, 2019, I issued an Order 
Granting Respondent's Motion for Out of Time Prehearing Statement and 
Notice Concerning Summary Disposition (``Order Concerning Summary 
Disposition''), which granted Respondent's motion for out-of-time 
filing as unopposed. My Order Concerning Summary Disposition also 
established a deadline for the Government to file a motion for summary 
disposition and for Dr. Jones to respond to the Government's motion for 
summary disposition.
    The Government timely filed its Motion for Summary Disposition on 
September 13, 2019. Dr. Jones timely filed his Opposition to 
Government's Motion for Summary Disposition on September 18, 2019 
(``Respondent's Opposition''). Accordingly, I base this ruling and 
Recommended Decision on the Government's Motion for Summary 
Disposition, Dr. Jones's Opposition, and the Administrative Record 
before me.
    The issue in this case is whether the record as a whole establishes 
by a preponderance of the evidence that the DEA should revoke the 
Certificate of Registration of Michael Jones, M.D., No. BJ5665281/
XJ5665281, and deny any applications for renewal or modification of 
such registration, and deny any applications for any other DEA 
registrations, pursuant to 21 U.S.C. 824(a)(5), because he has been 
excluded from federal health care programs under 42 U.S.C. 1320a-7(a).

The Facts

I. Stipulations

    During the telephonic prehearing conference, the parties agreed to 
the following stipulations (``Stip.''), which are accepted as facts in 
this proceeding:
    1. Respondent is registered with the DEA as a practitioner-DW/30 in 
Schedules II through V under DEA Certificate of Registration BJ5665281/
XJ5665281 with a registered address of 3405 Saint Claude Ave., New 
Orleans, LA 70117-6144, and a mailing address of 2433 Bedford Dr., New 
Orleans, LA 70131-4703. Respondent's registration expires by its terms 
on December 31, 2021.
    2. On or about September 25, 2018, Judgment was entered against 
Respondent based on Respondent'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, and seven counts of 
``Health Care Fraud,'' in violation of 18 U.S.C. 1347 and 2. U.S. v. 
Michael Jones, No. 2:15-cr-00061-SM-JCW (E.D. La. filed Sept. 28, 
2018).
    3. Based on Respondent's conviction, the U.S. Department of Health 
and Human Services, Office of Inspector

[[Page 20729]]

General (``HHS/OIG''), by letter dated March 29, 2019, mandatorily 
excluded Respondent from participation in Medicare, Medicaid, and all 
federal health care programs for a minimum period of ten years pursuant 
to 42 U.S.C. 1320a-7(a), effective April 18, 2019.
    4. Reinstatement of eligibility to participate in Medicare, 
Medicaid and all federal health care programs after exclusion by HHS/
OIG is not automatic.
    5. Respondent is currently excluded from participation in Medicare, 
Medicaid and all federal health care programs.
    6. Respondent stipulates to the admissibility of Government 
Exhibits 1-4.

I. Government's Position

    In its Motion for Summary Disposition, the Government argues that 
there is no dispute of material fact requiring an adversarial hearing. 
Gov't Summ. Disp., at 1, 5-6. Specifically, the Government notes that 
Dr. Jones does not dispute that he is currently excluded from federal 
health care programs under 42 U.S.C. 1320a-7(a). Id. at 5. After 
quoting the entirety of Dr. Jones's proposed testimony from his 
Prehearing Statement and noting his single proposed exhibit, the 
Government argues that based on his Prehearing Statement, Dr. Jones 
``does not intend to provide any testimony or documentary evidence as 
to why his registration should not be revoked.'' Id. at 4-5. 
Continuing, the Government argues that Dr. Jones's Prehearing Statement 
``makes no proffer as to why, in the face of his exclusion, he should 
be allowed to retain his registration.'' Id. Consequently, the 
Government argues that granting summary disposition in the Government's 
favor is consistent with DEA precedent because Dr. Jones has failed 
``to identify any issue of material fact in his Prehearing Statement 
that would warrant the holding of a hearing or the presentation of 
testimony.'' Id. at 1. In conclusion, the Government requests that Dr. 
Jones's COR be revoked. Id. at 6.

II. Respondent's Position

    In his Opposition, Dr. Jones argues that summary disposition is 
inappropriate because he appealed his conviction to the United States 
Court of Appeals for the Fifth Circuit (``Fifth Circuit''). Resp't 
Opposition, at 1. Although the Fifth Circuit has not yet ruled on Dr. 
Jones's appeal, his Opposition states that he believes his appeal has 
merit on the ground that the prosecution ``failed to present sufficient 
evidence at trial to sustain his convictions.'' Id. The Opposition 
further states that Dr. Jones's counsel intends to ``outline the 
relevant issues in that appeal at his [DEA] hearing.'' Id. Respondent's 
Opposition reiterates the substance of the testimony that is contained 
in his Prehearing Statement concerning his appeal pending before the 
Fifth Circuit, but adds for the first time that the DEA proceeding 
should be ``deferred until after the Fifth Circuit resolves the 
appeal.'' Id.

Analysis

    Under DEA precedent, ``it is well-settled that when no question of 
material fact is involved, a plenary, adversary administrative 
proceeding involving evidence and cross-examination of witnesses is not 
obligatory.'' Michael G. Dolin, M.D., 65 FR 5661, 5662 (2000). This 
precedent is based on the principle that ``Congress did not intend 
administrative agencies to perform meaningless tasks.'' Sandra J.S. 
Tyner, M.D., 63 FR 56223, 56223 (1998). `` `[C]ommon sense suggests the 
futility of hearings where there is no factual dispute of substance.' 
'' Richard Jay Blackburn, D.O., 82 FR 18669, 18672 (2017) (quoting Veg-
Mix, Inc. v. U.S. Dep't of Agric., 832 F.2d 601, 607 (D.C. Cir. 1987)). 
The central inquiry when deciding a motion for summary disposition is 
whether there is ``a genuine issue for trial.'' Anderson v. Liberty 
Lobby, Inc., 477 U.S. 242, 249 (1986).
    The ``party moving for summary disposition `must show, with 
materials of appropriate evidentiary quality, that every state of facts 
is excluded save that which entitles [it] to relief.' '' Bio Diagnostic 
Int'l, 78 FR 39327, 39328-29 (2013). The underlying facts are `` 
`viewed in the light most favorable to the' '' non-moving party. 
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 
587 (1986) (quoting United States v. Diebold, Inc., 369 U.S. 654, 655 
(1962)). Once the moving party satisfies its burden to show that there 
is no genuine dispute of material fact, the non-movant is tasked with 
presenting `` `competent evidence that could be presented at trial 
showing that there is a genuine dispute as to a material fact.' '' 
William J. O'Brien, III, D.O., 82 FR 46527, 46529 (2017) (quoting 10B 
Charles Allen Wright, et al., Federal Practice and Procedure Civ. Sec.  
2727.2 (4th ed. April 2017)).
    ``A fact is `material' if it `might affect the outcome of the suit 
under the governing law.' '' Bazan v. Hidalgo Cty., 246 F.3d 481, 489 
(5th Cir. 2001) (emphasis in original) (quoting Liberty Lobby, Inc., 
477 U.S. at 248). To be considered material, a fact must be ``outcome 
determinative.'' Int'l Shortstop, Inc. v. Rally's, Inc., 939 F.2d 1257, 
1264 (5th Cir. 1991). In other words, a material fact is a fact that 
has the potential to affect the outcome of the case. Failure to present 
material evidence that could impact the outcome of the case is fatal to 
the non-moving party. William J. O'Brien, III, D.O., 82 FR at 46529. An 
issue is genuine if the evidence resolving the issue is sufficient to 
support a ruling in favor of the party opposing summary judgment. 
Prof'l Managers, Inc. v. Fawer, Brian, Hardy & Zatzkis, 799 F.2d 218, 
222 (5th Cir. 1986). An issue must be ``real and substantial'' to be 
considered genuine. Bazan, 246 F.3d at 489.
    The Administrative Record contains ``reliable and probative 
evidence'' to support the conclusion that there is no genuine issue of 
material fact requiring an adversarial hearing. Richard Jay Blackburn, 
D.O., 82 FR at 18672-73. To begin, at the prehearing conference, the 
Government and Respondent entered into all the relevant factual 
stipulations necessary to establish a prima facie case for sanction 
under 21 U.S.C. 824(a)(5). Specifically, the Parties stipulated that 
Dr. Jones was convicted of federal offenses involving health care fraud 
in the United States District Court for the Eastern District of 
Louisiana (``District Court'') (Stip. 2); that as a result of his 
convictions the HHS/OIG mandatorily excluded Dr. Jones from 
participating in Medicare, Medicaid, and all federal health care 
programs for ten years beginning on April 18, 2019 (Stip. 3); that 
reinstatement in federal health care programs is not automatic (Stip. 
4); and that Dr. Jones is currently excluded from participating in 
federal health care programs (Stip. 5). PHR, at 1-2. Lastly, Respondent 
stipulated to the admissibility of the Government's exhibits (Stip. 6). 
Id. at 2.
    The Government attached evidence to its Motion for Summary 
Disposition corroborating the factual stipulations. Specifically, the 
Government attached a notarized Certification of Registration History 
(Exh. 1); a copy of the judgment entered by the District Court against 
Dr. Jones (Exh. 2); a copy of the HHS/OIG exclusion letter (Exh. 3); 
and a printout from the HHS/OIG website (Exh. 4).
    The notarized Certification of Registration History, dated June 24, 
2019, is signed by the Associate Chief of DEA's Registration and 
Program Support Section. Gov't Summ. Disp., Exh. 1, at 1. The 
Certification states that Dr. Jones is registered with the DEA as a 
practitioner-DW/30 to handle controlled substances in Schedules 2-5 
under COR No. BJ5665281 and that DEA last approved the renewal of this 
registration on November 29, 2018. Id.

[[Page 20730]]

The Certification further states that this registration expires on 
December 31, 2021, and that it is currently under active pending 
status. Id. The Certification additionally states that this 
registration number is the only DEA registration associated with Dr. 
Jones. Id.
    The Government's next exhibit is the judgment entered by the 
District Court against Dr. Jones on September 25, 2018. The District 
Court's judgment form shows that Dr. Jones was found guilty of one 
count of conspiracy to commit health care fraud (18 U.S.C. 1349); one 
count of conspiracy to pay and receive illegal health care kickbacks 
(18 U.S.C. 371); and seven counts of health care fraud (18 U.S.C. 
1347). Gov't Summ. Disp., Exh. 2, at 1. The judgment further ordered 
Dr. Jones to pay $347,525 in restitution to Medicare, and sentenced him 
to serve three years in prison followed by two years of supervised 
release. Id. at 2-3, 6.
    Next, the Government attached a copy of the HHS/OIG exclusion 
letter, dated March 29, 2019. That letter shows that as a result of Dr. 
Jones's convictions, HHS excluded him from participating in Medicare, 
Medicaid, and all federal health care programs for ten years. Gov't 
Summ. Disp., Exh. 3, at 1. The letter explains that Dr. Jones's ten-
year exclusion would become effective twenty days from the date of the 
letter. Id. The letter further explains that Dr. Jones's exclusion is 
based on his conviction of a program-related crime. Id.; 42 U.S.C. 
1320a-7(a)(1). In addition, the letter explains that reinstatement in 
federal health care programs is not automatic. Id. at 3. Lastly, the 
Government attached a printout from the HHS/OIG website, which shows 
that Dr. Jones has been excluded from federal health care programs 
since April 18, 2019, for a program-related conviction. Gov't Summ. 
Disp., Exh. 4, at 1.
    The four exhibits attached to the Government's Motion are the same 
exhibits the Government identified in its prehearing statement. See 
Gov't PHS, at 3 (describing each of the Government's four exhibits 
intended for use at the hearing). Respondent stipulated to the 
information that is contained in each of those exhibits (Stips. 2-5) as 
well as the admissibility of those exhibits if they were offered at 
trial (Stip. 6). Based on the Government's exhibits and the Parties' 
factual stipulations to the contents of those exhibits, as well as 
their admissibility, I find that the Administrative Record contains 
``reliable and probative evidence'' that Dr. Jones is currently 
excluded from Medicare, Medicaid, and all federal health care programs 
pursuant to a program-related conviction. Richard Jay Blackburn, D.O., 
82 FR at 18672-73. The Administrative Record further establishes that 
Dr. Jones's ten-year exclusion from all federal health care programs is 
the result of his convictions related to health care fraud. The 
Administrative Record also shows that Dr. Jones's exclusion began on 
April 18, 2019. And based on the Parties' factual stipulations, 
Respondent does not dispute that he was convicted of fraud-related 
crimes and then excluded by HHS/OIG from all federal health care 
programs.
    To meet its burden for sanction under 21 U.S.C. 824(a)(5), the 
Government must show that Respondent is excluded from participating in 
Medicare, Medicaid, and all federal health care programs under one of 
the four bases for mandatory exclusion in 42 U.S.C. 1320a-7(a). 
Mandatory exclusion from a federal health care program under 42 U.S.C. 
1320a-7(a) serves as an independent basis for revoking a DEA 
registration. 21 U.S.C. 824(a)(5); Terese, Inc., d/b/a Peach Orchard 
Drugs, 76 FR 46843, 46847 (2011); Dinorah Drug Store, Inc., 61 FR 
15972, 15973 (1996).
    Once the Government meets its burden, the issue becomes which 
sanction should DEA impose in light of considerations concerning 
acceptance of responsibility, mitigation, egregiousness, and 
deterrence. Jeffrey Stein, M.D., 84 FR 46968, 46972 (2019). To resolve 
this issue, the DEA considers whether the respondent ``has presented 
`sufficient mitigating evidence to assure the Administrator that [he] 
can be trusted with the responsibility carried by' '' a DEA 
registration. Id. (alteration in original) (quoting Samuel S. Jackson, 
D.D.S., 72 FR 23848, 23853 (2007)); see also Kwan Bo Jin, M.D., 77 FR 
35021, 35023-25 (2012) (concluding the Government ``met its burden of 
proving its Section 824(a)(5) claim'' and then considering the five 
public interest factors to determine whether respondent met his burden 
``to show that . . . granting him a COR would not be contrary to the 
public interest.''). The material issues in this case are, therefore, 
quite simple: Is Dr. Jones excluded under 42 U.S.C. 1320a-7(a), and, if 
so, does the evidentiary record support the Government's requested 
sanction?
    As discussed above, there is no dispute that Dr. Jones is currently 
excluded from all federal health care programs under 42 U.S.C. 1320a-
7(a)(1). There is no dispute because Dr. Jones does not contest the 
fact that HHS/OIG excluded him from eligibility to participate in all 
federal health care programs for ten years beginning on April 18, 2019. 
Stips. 3, 5. Thus, to defeat the Government's Motion, Dr. Jones must 
present `` `competent evidence that could be presented at trial' '' 
relevant to the issue of which sanction should DEA impose. William J. 
O'Brien, III, D.O., 82 FR at 46529 (quoting 10B Charles Allen Wright, 
et al., Federal Practice and Procedure Civ. Sec.  2727.2 (4th ed. April 
2017)). In other words, to raise an issue of material fact, Dr. Jones 
would need to present evidence relevant to acceptance of 
responsibility, mitigation, egregiousness, or deterrence. Jeffrey 
Stein, M.D., 84 FR at 46972. He has failed to do so.
    Instead, Dr. Jones responded to the Government's Motion with the 
same proposed evidence he raised in his Prehearing Statement. And 
despite the fact that Dr. Jones was allowed to file a prehearing 
statement after the original deadline for doing so, and despite my 
advice to him at the prehearing conference concerning the level of 
detail that his prehearing statement should contain, Dr. Jones filed a 
prehearing statement with only a single sentence of proposed testimony. 
That single sentence previewed that Dr. Jones would testify that he 
appealed his criminal sentence to the Fifth Circuit and he believes his 
conviction will be overturned.\1\ Resp't PHS, at 3. Dr. Jones's 
Prehearing Statement noticed only one exhibit: A copy of the certified 
notice of his appeal to the Fifth Circuit. Id. In his Opposition to the 
Government's Motion, Dr. Jones states that he appealed his conviction 
to the Fifth Circuit and that he believes his appeal has merit.\2\ 
Resp't Opposition, at 1. Dr. Jones's Opposition further previews that 
his counsel intends to ``outline'' at the DEA hearing the issues he has 
appealed to the Fifth Circuit.\3\ Id.
---------------------------------------------------------------------------

    \1\ Notwithstanding the irrelevance of this proposed testimony, 
it is unclear how an appeal of his sentence would affect the 
underlying conviction.
    \2\ Again, notwithstanding the irrelevance of this statement, 
the basis for this belief is unclear.
    \3\ Again, notwithstanding the irrelevance of his appeal, it is 
unclear how Respondent's counsel intends to ``outline'' the issues 
of that appeal at the hearing since he failed to disclose in his 
prehearing statement, or his Opposition, what issues he intends to 
``outline.''
---------------------------------------------------------------------------

    Dr. Jones's appeal of his conviction has no bearing on the issues 
relevant to this case. First, the appeal of his conviction does not 
change the fact that beginning on April 18, 2019, HHS/OIG excluded him 
from federal health care programs for ten years. Furthermore, Dr. 
Jones's pending appeal does not change the fact that he is currently 
excluded

[[Page 20731]]

from all federal health care programs for a program-related conviction 
under 42 U.S.C. 1320a-7(a)(1). Because it is Dr. Jones's mandatory 
exclusion and not his underlying conviction that forms the basis for 
sanction in this case, his appeal of the conviction is not a relevant 
consideration. Second, the appeal does not bear in any way on the issue 
of whether Dr. Jones can be trusted with handling controlled substances 
during his ten-year exclusion. In other words, the existence of a 
pending appeal is not mitigating evidence that is probative of Dr. 
Jones's ability to responsibly discharge the duties of a DEA registrant 
and to comply with controlled substance laws. Third, whether Dr. 
Jones's appeal will be successful and, if so, whether HHS/OIG will 
reinstate his eligibility to participate in federal health care 
programs, is pure speculation. Even if his appeal is successful, and 
his convictions are erased, it is speculative at this time to predict 
whether and when HHS/OIG will reinstate Dr. Jones's eligibility to 
participate in federal health care programs. And ``unsupported 
speculation [is] not sufficient to defeat a motion for summary 
judgment.'' Brown v. City of Houston, 337 F.3d 539, 541 (5th Cir. 
2003).
    Rather than respond to the Government's Motion with probative 
evidence that bears on the issue of whether he can be trusted to handle 
controlled substances, Dr. Jones has collaterally attacked the criminal 
proceedings underlying his mandatory exclusion. A respondent cannot use 
DEA proceedings to collaterally attack proceedings litigated in another 
forum. Kristen Lee Raines, A.P.R.N., 81 FR 14890, 14891-92 (2016); see 
also Hicham K. Riba, D.D.S., 73 FR 75773, 75774 (2008) (same); Brenton 
D. Glisson, M.D., 72 FR 54296, 54297 (2007) (same). There is a proper 
forum for Dr. Jones to litigate his criminal convictions, and the DEA 
is not that forum. In addition, there is a proper forum to litigate his 
mandatory exclusion, and the procedures for doing so are provided on 
page 4 of the HHS/OIG exclusion letter in a section titled, ``How to 
Appeal Your Exclusion.'' Gov't Summ. Disp., Exh. 3, at 4. Dr. Jones may 
disagree with his conviction and exclusion, but a DEA proceeding is not 
the proper place to voice that disagreement.
    In sum, the Administrative Record contains substantial, undisputed 
evidence to establish a prima facie case for sanction under 21 U.S.C. 
824(a)(5). Specifically, the evidence proves that Dr. Jones is 
currently excluded from Medicare, Medicaid, and all federal health care 
programs under 42 U.S.C. 1320a-7(a)(1) pursuant to a program-related 
conviction involving fraudulent activity. Dr. Jones's exclusion from 
federal health care programs under 42 U.S.C. 1320a-7(a)(1) is an 
independent basis for sanction under 21 U.S.C. 824(a)(5). Furthermore, 
the evidence that Dr. Jones has presented in response to the 
Government's Motion fails to raise a genuine issue of material fact 
necessitating an adversarial hearing. The only evidence Dr. Jones has 
presented concerns a pending appeal and pure speculation about the 
appeal's chance of success. The evidence of Dr. Jones's appeal bears no 
relevance to the issue of whether Dr. Jones can be trusted with a DEA 
Certificate of Registration in light of the fact that the Government 
has satisfied its burden for sanction under 21 U.S.C. 824(a)(5). 
Because Dr. Jones's pending appeal cannot affect `` `the outcome of 
[this case] under the governing law,' '' it is not a material fact, and 
therefore, it is insufficient to defeat the Government's Motion. Bazan, 
246 F.3d at 489 (quoting Liberty Lobby, Inc., 477 U.S. at 248).
    Accordingly, the Government's Motion for Summary Disposition is 
granted, and the scheduled hearing in this matter is, therefore, 
cancelled.
    With respect to Dr. Jones's request in his Opposition to stay these 
proceedings until the resolution of his appeal, that request is denied. 
Dr. Jones cites no case law to support the proposition that he is 
entitled to a stay of these proceedings pending his appeal. 
Furthermore, staying this case pending Dr. Jones's appeal would 
significantly diverge from well-established DEA precedent. [See Grider 
Drug #1 & Grider Drug #2, 77 FR 44070, 44104 n.97 (2012); see also 
Newcare Home Health Servs., 72 FR 42126, 42127 (2007).] *B 
Dr. Jones has not pointed to any legal authority, and provided no legal 
argument, to justify diverging from DEA's consistent precedent against 
granting stays pending the outcome of other proceedings, *[and as noted 
herein, the outcome of his appeal does not directly affect this 
proceeding.]
---------------------------------------------------------------------------

    \*B\ Omitted parts of citation for clarity.
---------------------------------------------------------------------------

Sanction

    Once the Government makes a prima facie case for sanction, the 
burden shifts to the respondent to demonstrate that despite the proven 
allegations, maintaining his DEA registration would not be inconsistent 
with the public interest. Kwan Bo Jin, M.D., 77 FR at 35023. This would 
require the respondent to credibly accept responsibility for his 
misconduct or point to evidence mitigating the gravity of his offense. 
Id. at 35026. Here, because the Administrative Record establishes a 
prima facie case for sanction, the next question is ``whether 
revocation . . . is the appropriate sanction in light of the facts'' 
and Respondent's evidence. Samuel Arnold, D.D.S., 63 FR at 8688.
    Revoking a registration on the ground that the registrant has been 
mandatorily excluded from federal health care programs is 
discretionary. Dinorah Drug Store, Inc., 61 FR at 15973. Since 
revocation is a matter of discretion, the DEA has advised that the 
public interest factors outlined in 21 U.S.C. 823(f) may be consulted 
in determining the appropriate sanction, although the ALJ is not 
obligated to analyze them. Id.; see, e.g., Johnnie Melvin Turner, M.D., 
67 FR at 71203-04 (revoking registration based on mandatory exclusion 
without conducting public interest inquiry). It is not required that 
the underlying misconduct involved controlled substances, but that can 
be a relevant consideration.\4\ Dinorah Drug Store, Inc., 61 FR at 
15974.
---------------------------------------------------------------------------

    \4\ DEA has reiterated its well-established precedent in 
numerous final orders that the underlying conviction that led to 
mandatory exclusion does not need to involve controlled substances 
to support sanction. See, e.g., Jeffrey Stein, M.D., 84 FR 46968, 
46971 (2019); Mohammed Asgar, M.D., 83 FR 29569, 29571 (2018); 
Narciso A. Reyes, M.D., 83 FR 61678, 61681 (2018); Richard Hauser, 
M.D., 83 FR 26308, 26310 (2018); Orlando Ortega-Ortiz, M.D., 70 FR 
15122, 15123 (2005); Juan Pillot-Costas, M.D., 69 FR 62084, 62085 
(2004); Daniel Ortiz-Vargas, M.D., 69 FR 62095, 62095-96 (2004); KK 
Pharmacy, 64 FR 49507, 49510 (1999); Melvin N. Seglin, M.D., 63 FR 
70431, 70433 (1998); Anibal P. Herrera, M.D., 61 FR 65075, 65078 
(1996); Stanley Dubin, D.D.S., 61 FR 60727, 60728 (1996); Richard M. 
Koenig, M.D., 60 FR 65069, 65071 (1995); George D. Osafo, M.D., 58 
FR 37508, 37509 (1993); Nelson Ramirez-Gonzalez, M.D., 58 FR 52787, 
52788 (1993); Gilbert L. Franklin, D.D.S., 57 FR 3441, 3441 (1992).
---------------------------------------------------------------------------

    *C The Administrator has explained that because DEA 
employs roughly 1,625 individuals to regulate over 1.8 million 
registrants, the Administration relies heavily on a registrant's 
honesty and integrity ``to complete its mission of preventing diversion 
within such a large regulated population.'' Jeffrey Stein, M.D., 84 FR 
at 46974. Because DEA depends on the integrity of those it entrusts 
with controlled substance privileges, it takes a close look at a 
registrant's fraudulent activity. See Nelson Ramirez-Gonzalez, M.D., 58 
FR 52787, 52788 (1993) (noting fraudulent activity ``casts doubt upon 
[a registrant's] integrity''). Although a registrant's fraud may not 
involve controlled substances, fraudulent activity indicates that a 
registrant ``place[s] monetary gain above the welfare of his patients, 
and in so doing,

[[Page 20732]]

endanger[s] the public health and safety.'' George D. Osafo, M.D., 58 
FR 37508, 37509 (1993).
---------------------------------------------------------------------------

    \*C\ Omitted sentence for clarity.
---------------------------------------------------------------------------

    The Government's evidence does not provide details concerning Dr. 
Jones's criminal misconduct; however, the District Court's judgment 
offers sufficient information to find that Dr. Jones committed 
fraudulent activity related to medical services. Dr. Jones was 
convicted of seven counts of violating 18 U.S.C. 1347 (``Health care 
fraud''). Gov't Summ. Disp., Exh. 2, at 1. The elements of this statute 
require proof that an individual knowingly or willfully executed a 
scheme ``to defraud any health care benefit program,'' or ``to obtain, 
by means of false or fraudulent pretenses, representations, or 
promises, any of the money or property owned by, or under the custody 
or control of, any health care benefit program.'' 18 U.S.C. 1347(a). 
Dr. Jones was further convicted of one count of violating 18 U.S.C. 371 
(``Conspiracy to commit offense or to defraud United States''), which 
subjects persons who conspire ``to commit any offense against the 
United States, or to defraud the United States,'' to a maximum prison 
sentence of five years, or to payment of a fine, or both. The District 
Court's judgment specifies that Dr. Jones's violation of 18 U.S.C. 371 
involved conspiracy to pay and receive illegal health care kickbacks. 
Gov't Summ. Disp., Exh. 2, at 1. The District Court sentenced Dr. Jones 
to three years' imprisonment, to be served, if practicable, after the 
term of imprisonment of his co-defendant. Id. at 2. The District Court 
further imposed two years of supervised release after Dr. Jones serves 
his prison term, and ordered him to pay $347,525 to Medicare in 
restitution. Id. at 3, 6.
    Despite the lack of evidence that Dr. Jones's criminal misconduct 
involved controlled substances, the District Court's judgment shows 
that Dr. Jones defrauded Medicare of hundreds of thousands of dollars. 
This type of criminal misconduct raises serious concerns about Dr. 
Jones's integrity and honesty, especially in his dealings with 
government agencies, and justifies revocation even if his misconduct 
did not involve controlled substances. Anibal P. Herrera, M.D., 61 FR 
at 65078; Nelson Ramirez-Gonzalez, M.D., 58 FR at 52788; George D. 
Osafo, M.D., 58 FR at 37509; see also Jeffrey Stein, M.D., 84 FR at 
46972.
    In fact, DEA has previously revoked registrations for misconduct 
comparable to Respondent's. See Dan E. Hale, D.O., 69 FR 69402, 69406 
(2004) (denying application based on material falsification and 
mandatory exclusion which resulted from fraud convictions); Johnnie 
Melvin Turner, M.D., 67 FR at 71204 (revocation based on exclusion from 
Medicare program after federal fraud conviction); Stanley Dubin, 
D.D.S., 61 FR 60727, 60727 (1996) (revocation for exclusion from 
federal health care programs after state fraud conviction).
    Furthermore, the exclusion letter notes that HHS/OIG deemed Dr. 
Jones's criminal misconduct to be egregious enough to warrant an 
exclusion period in excess of the statutory minimum. Gov't Summ. Disp., 
Exh. 3, at 1-2. The exclusion letter explains that HHS/OIG excluded Dr. 
Jones for ten years instead of the statutory minimum of five years, 
because (1) Dr. Jones's fraudulent activity was intended to cause 
financial loss to a government agency of more than $50,000; (2) he 
committed the fraudulent activity over a period of six years; and (3) 
the District Court's sentence included imprisonment. Id. at 2.
    The DEA ``carefully consider[s] mitigating evidence provided by the 
respondent'' when deciding the appropriate sanction in a Medicare 
exclusion case. Jeffrey Stein, M.D., 84 FR at 46970. Dr. Jones, 
however, has failed to provide any mitigating evidence for the DEA to 
consider. Dr. Jones's failure to present mitigating evidence is the 
reason why granting summary disposition in the Government's favor is 
appropriate. It is also the reason why, in light of the egregiousness 
of his fraudulent activity, revocation is the appropriate sanction.
    In the face of Dr. Jones's exclusion, he has not presented any 
evidence to convince DEA that it can trust him with the privilege and 
responsibility to handle controlled substances. Dr. Jones fraudulently 
obtained hundreds of thousands of dollars from a United States 
government agency over a period of six years. Based on several 
aggravating circumstances, HHS/OIG found Dr. Jones's criminal activity 
to be sufficiently egregious to justify imposing a longer exclusion 
period than statutorily required. Dr. Jones has not responded with any 
indication that he intends to accept responsibility at the DEA hearing 
or that he feels remorse for his misconduct. In fact, Dr. Jones pled 
not guilty to the criminal charges and his position on appeal is that 
the prosecution failed to present enough evidence at trial. Gov't Summ. 
Disp., Exh. 2, at 1; Resp't Opposition, at 1. Pleading not guilty and 
then attacking the conviction on appeal is inconsistent with a 
respondent who accepts responsibility and feels remorse for his 
misconduct. Furthermore, Dr. Jones has not presented any mitigation 
evidence, to include evidence that he has taken steps to assure DEA 
that he will not engage in fraudulent activity in the future. In the 
absence of mitigation evidence demonstrating that DEA can entrust Dr. 
Jones with a registration, revocation is appropriate.

Recommendation

    For these reasons, it is recommended that Dr. Jones's DEA 
Certificate of Registration, Number BJ5665281/XJ5665281, be revoked, 
and that any of Dr. Jones's applications for renewal or modification of 
such registration, and any application by Dr. Jones for any other DEA 
registration, be denied.\5\
---------------------------------------------------------------------------

    \5\ Pursuant to 21 CFR 1316.66, a party may file exceptions to 
this Recommended Decision ``[w]ithin twenty days after the date upon 
which a party is served a copy of'' this Recommended Decision. * [No 
exceptions were timely filed.]

---------------------------------------------------------------------------
    Dated: September 19, 2019.

Charles Wm. Dorman,

U.S. Administrative Law Judge.

[FR Doc. 2021-08169 Filed 4-20-21; 8:45 am]
BILLING CODE 4410-09-P