Michele L. Martinho, M.D.; Decision and Order, 24012-24020 [2021-09464]

Agencies

• Drug Enforcement Administration
• Department of Justice

[Federal Register Volume 86, Number 85 (Wednesday, May 5, 2021)]
[Notices]
[Pages 24012-24020]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-09464]


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

DEPARTMENT OF JUSTICE

Drug Enforcement Administration


Michele L. Martinho, M.D.; Decision and Order

    On December 4, 2019, the Drug Enforcement Administration 
(hereinafter, DEA or Government) Administrative Law Judge Mark M. Dowd 
(hereinafter, ALJ), issued a Recommended Rulings, Findings of Fact, 
Conclusions of Law, and Decision of the Administrative Law Judge 
(hereinafter, RD) on the action to revoke the DEA Certificate of 
Registration Number BM9434440 of Michele L. Martinho, M.D. The ALJ 
transmitted the record to me on January 7, 2020, 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\ I have made minor, nonsubstantive, grammatical changes to 
the RD. Where I have made any substantive changes, omitted language 
for brevity or relevance, or where I have added to or modified the 
ALJ's opinion, I have bracketed the modified language and explained 
the edit in a footnote marked with an asterisk and a letter in 
alphabetical order.
---------------------------------------------------------------------------

Order

    Pursuant to 28 CFR 0.100(b) and the authority vested in me by 21 
U.S.C. 824(a), I hereby dismiss the Order to Show Cause issued to 
Michele L. Martinho, M.D. This Order is effective immediately.

D. Christopher Evans,
Acting Administrator.

Paul E. Soeffing, Esq., for the Government
Douglas M. Nadjari, Esq. and David Durso, Esq., for the Respondent

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),\1\ dated February 26, 2019, seeking to revoke the Respondent's 
Certificate of Registration (COR), number BM9434440, pursuant to 21 
U.S.C. 824(a)(5), and 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), because the Respondent 
has been excluded from participation in a program pursuant to section 
1320a-7(a) of Title 42. The Respondent requested a hearing on March 13, 
2019,\2\ and prehearing proceedings were initiated.\3\ A hearing was 
conducted in this matter on October 3, 2019, at the DEA Hearing 
Facility in Arlington, Virginia.
---------------------------------------------------------------------------

    \1\ ALJ Ex. 1.
    \2\ ALJ Ex. 2.
    \3\ ALJ Ex. 3.
---------------------------------------------------------------------------

    The issue ultimately to be adjudicated by the Acting Administrator, 
with the assistance of this recommended decision, is whether the record 
as a whole establishes by a preponderance of the evidence that the 
Respondent's subject registration with the DEA should be revoked 
pursuant to 21 U.S.C. 824(a)(5).
    After carefully considering the testimony elicited at the hearing, 
the admitted exhibits, the arguments of counsel, and the record as a 
whole, I have set forth my recommended findings of fact and conclusions 
of law below.

The Allegations

    In the OSC, the Government contends that the DEA should revoke the 
Respondent's DEA COR because she has been excluded from participation 
in a program pursuant to section 1320a-7(a) of Title 42.
    Specifically, the Government alleges the following:
    1. The Respondent is registered with the DEA as a practitioner in 
Schedules II through V under DEA COR BM9434440. The Respondent's COR 
expires by its terms on January 31, 2020.
    2. On June 14, 2017, the Respondent was found guilty in the United 
States District Court for the District of New Jersey of ``Transporting 
in Aid of-Travel Act-Accepting Bribes in Violation of the Travel Act.'' 
Judgment was entered in U.S. v. Michele Martinho, No. 2:14-CR-00271-
SRC-1 (D.N.J. filed June 14, 2017).
    3. Based on the Respondent's conviction, the U.S. Department of 
Health and
    Human Services, Office of Inspector General (``HHS/OIG''), by 
letter dated July 31, 2018, mandatorily excluded the Respondent from 
participation in Medicare, Medicaid, and all federal health care 
programs for a minimum period of five years pursuant to 42 U.S.C. 
1320a-7(a), effective August 20, 2018. Notwithstanding the fact that 
the underlying conduct for which the Respondent was convicted had no 
nexus to controlled substances, mandatory exclusion from Medicare, 
Medicaid, and all federal health care programs by HHS/OIG warrants 
revocation of the Respondent's registration pursuant to 21 U.S.C. 
824(a)(5).

The Hearing

Government's Opening Statement

    In the Government's Opening Statement, the Government indicated 
that revocation is sought for the Respondent's COR involving Schedules 
II through V, pursuant to 21 U.S.C. 824(a)(5). Tr. 10. The facts in 
this matter are undisputed and have been stipulated to by the parties. 
Id. The Respondent was found guilty in U.S. District Court of 
transporting in aid of the Travel Act and accepting bribes in violation 
of the Travel Act. Id. The following year, HHS/OIG mandatorily excluded 
the Respondent from participation in Medicare, Medicaid, and all 
federal health care programs. Id. at 10-11. Pursuant to 42 U.S.C. 
1320a-7(a), the Respondent's exclusion remains in effect, which is the 
basis upon which the DEA seeks to revoke the Respondent's COR. Id. at 
11.

Respondent's Opening Statement

    The Respondent asserted in her opening statement that this matter 
is not about controlled substances, and it has nothing to do with the 
issuance of prescriptions or record keeping for controlled substances. 
Id. at 11. The Respondent admitted that the Government is correct that 
she accepted cash payments in exchange for referring blood work to a 
particular lab, that she pleaded guilty to a single count violation of 
the Travel Act, and that she has been excluded by HHS/OIG from 
participation in Medicare, Medicaid, and all federal health care 
programs. Id. at 11-12. The Respondent maintained that the evidence 
will show that the she can be entrusted to maintain and properly use 
her DEA COR. Id. at 12. Revocation in this matter is not mandatory. Id. 
at 12. The Respondent

[[Page 24013]]

asserted that she has accepted responsibility and has demonstrated that 
she will not engage in misconduct again. Id. at 12.
    Dr. Martinho completed courses of study in medical ethics before 
her criminal proceedings began. Id. at 12-13. She also began to lecture 
other doctors and medical students about her experiences to help 
prevent them from making the same choices she did. Id. at 13-14. She 
has given over 60 lectures during her own time and at her own expense. 
Id. at 14. During her sentencing hearing at the U.S. District Court, 
the presiding judge said that ``he felt that her talks had a greater 
deterrent impact than anything that the court or the U.S. Attorney 
could have done to prevent other people--to deter other people from 
engaging in this kind of conduct.'' Id. at 14. Dr. Martinho's efforts 
have been featured in the Washington Post, the Wall Street Journal, and 
on NPR. Id. at 14. The Respondent submitted that the evidence will show 
that she can be entrusted to maintain her DEA COR. Id. at 15. She has 
used her COR properly throughout her life. Id. The Respondent argued 
that the evidence will demonstrate that the Government's application to 
revoke the Respondent's COR should be denied. Id.

Government's Case in Chief

    Before presenting witnesses, the Government offered the sworn and 
notarized COR history for the Respondent, which was admitted without 
objection.\4\ See GX 1.\5\ The Government otherwise presented its case 
in chief through the testimony of a single witness. The Government 
presented the testimony of a Diversion Investigator (hereinafter, the 
DI).\6\
---------------------------------------------------------------------------

    \4\ The Respondent noted that all of the Government's evidence 
had been stipulated to and that there were no objections to any of 
the Government's exhibits. Tr. 18.
    \5\ GX--Government Exhibit
    \6\ The DI was called to sponsor the Government's exhibits. Tr. 
18-19.
---------------------------------------------------------------------------

The DI

    The DI is a Diversion Investigator for the DEA and has been 
employed by the DEA for two years, currently assigned to the New York 
Division. Tr. 20. He previously served with the New York City Police 
Department for 23 years, retiring as a Detective Sergeant. Id. at 20. 
He also served in the U.S. Army Reserves, retiring as a Lieutenant 
Colonel. Id. at 20. He additionally served for four years in the United 
Nations International Police Task Force in Kosovo, including one year 
as a Regional Security Officer in Liberia and six months in Iraq 
working with the Iraqi Police Department. Id. at 20. He has a 
Bachelor's Degree from City College of New York. Id. at 21. The DI 
indicated that he was assigned this matter by his group supervisor. Id. 
at 22. The DI identified the criminal judgment in the criminal case of 
U.S. v. Michele Martinho from the U.S. District Court in Newark, New 
Jersey. Id. at 23; GX 2. He obtained a copy of the judgment via email 
from the District Court. Tr. 23. Next, he identified a letter from the 
HHS/OIG regarding the exclusion of the Respondent from all federal 
health care programs. Id. at 24; GX 3. He obtained it via email from 
the OIG. Tr. 25.
    The DI identified a screenshot from the OIG's website that 
demonstrated that the Respondent was still excluded from all federal 
health care programs as of the morning of October 3, 2019, the date of 
the hearing in this matter. Tr. 25-26; GX 4. He obtained this document 
by going to the OIG's website and taking a screenshot of the 
Respondent's information. Tr. 26. He verified the information on the 
morning of the hearing by going to the OIG's website, entering the 
Respondent's name, and confirmed that she was still excluded. Id. at 
27.

Respondent's Case in Chief

Dr. Michele Martinho, M.D.

    The Respondent currently lives in New York, where she has been 
licensed to practice medicine since 2005. Id. at 29. The Respondent is 
forty-five years old and has two children for whom the Respondent is 
the primary caretaker. Id. at 45. She is first generation American, 
with both of her parents being Portuguese immigrants. Id. She went to 
Catholic school from grades K-12 and received her undergraduate degree 
in psychology from New York University. She went on to attend Ross 
University for medical school for two years in the Caribbean and 
returned to the United States for her clinical rotations for the last 
two years, from which she graduated in 2002. Id. at 47. She completed 
her residency at Mount Sinai Elmhurst Hospital with a focus in internal 
medicine, which lasted another three years. Id. After completing her 
residency, she worked at a satellite clinic for the hospital for almost 
three years in preparation for private practice. Id. at 48. She then 
went into private practice and eventually purchased the practice. Id. 
at 48-49. Her practice is located in the Lower East Side of Manhattan. 
Id. at 49. It is surrounded by a significant amount of government 
public housing whose tenants make up a large portion of her practice. 
Id. Over the years, as the population of Manhattan has changed, her 
patients have transitioned to younger patients. Id.
    The Respondent explained the genesis of her involvement in the 
criminal activity for which she was convicted. Id. at 50. Prior to her 
purchasing the practice, the Respondent was introduced by a lab testing 
representative to K.K., a sales representative for Biodiagnostic 
Testing Laboratories (BIL), a blood testing lab. Id. at 29-30, 50. BIL 
was located in New Jersey, but was looking to gain business in New 
York. Id. at 50-51. The unnamed lab testing representative introduced 
the Respondent to the owner of BIL. The three of them had dinner 
together where they offered the Respondent what amounted to a referral 
fee for referring bloodwork to their lab, to which the Respondent 
conceded that such financial arrangement does not exist in the medical 
field. Id. at 51.
    She was paid every month by the laboratory's representative with an 
envelope of cash. Id. Over the course of two and a half years, she 
received $155,000. Id. at 51-52. When asked about the process that 
resulted in the bribes, the Respondent explained that patients would 
come into her office and she would conduct a blood draw on the patients 
who needed it, including new patients. Id. at 80. She decided which lab 
would get the blood depending on which insurance company the patient 
had. Id. She testified that BTL lied to her and said they took all 
insurances. When she found out that they did not take certain 
insurances, she stopped sending certain patients' blood work to that 
lab, because she did not want patients getting a bill. Id. She said 
that either she or a member of her staff would conduct the draw and a 
note would be placed in the patient's file designating the blood 
testing lab. Id. at 80-81. She had billing software set up with the lab 
so she could order the lab tests online. Id. at 81.
    The Respondent stopped taking the cash payments once the laboratory 
owner and a few laboratory representatives were arrested on April 13, 
2013, for bribery. Id. at 53. The Respondent explained that while she 
did not know that the referral fee was illegal, she did know that what 
she was doing in taking the cash was wrong and admitted ``[t]hat I own 
100 percent.'' Id. at 53-54. The Respondent admitted that she knew it 
was wrong to accept the payments at the time she accepted them. Id. at 
52. Although the Respondent did not realize that the referral fees 
would be considered bribes under the law, she admitted that she 
accepted the money and now realizes they constituted illegal

[[Page 24014]]

bribes. Id. at 51. The Respondent understood what she did was also 
wrong from a moral standpoint. Id. at 56. She claimed that she 
understood that she violated her fiduciary responsibility to her 
patients, and that she had been questioned by patients at her practice 
when they learned about the allegations. Id. She found that when she 
was questioned by patients as to the medical necessity of the blood 
draws and whether she had only done it for the money, it was a ``big 
moment'' for her. Id. at 56-57, 58. She explained that a moderator at 
one of the health care courses she has attended explained this 
violation of patient trust aspect to her, and it has affected how she 
has attempted to remediate herself. Id. at 57. She again claimed full 
responsibility for her actions and did not place blame on the 
laboratory or the laboratory representative. Id. When asked pointedly 
by the Government whether she accepted responsibility for the acts that 
led to her criminal conviction, the Respondent answered, ``[o]ne 
hundred percent, yes.'' Id. at 74. She further confirmed that she 
considers those criminal actions to be serious violations of the law 
and that she is remorseful. Id. at 74-75. Apart from copays, she had 
not ever taken cash payments before that time, and has not since. Id. 
at 52.
    The Respondent asserted that while she now understands that 
ignorance of the law is no excuse, at the time, she did not fully 
understand what bribery meant. Id. at 54-55. The Respondent ultimately 
amended her tax returns and paid the taxes on the cash payments. As 
part of her criminal sentence, the Respondent paid back the $155,000. 
Id. at 52, 55-56. She stated that she never conducted medically 
unnecessary blood draws. Id. at 55. As developed in her criminal case, 
there was never any allegation by the Government that the blood testing 
lacked medical necessity. Id. at 58.
    The Government's investigation into BTL resulted in the prosecution 
and conviction of a large number of physicians, including the 
Respondent. Id. at 30. The Respondent cooperated with the Government in 
the investigation and prosecution involving BTL. The Respondent 
ultimately pled guilty to violating the federal Travel Act by accepting 
bribes for sending some of her blood work to BTL. Id. at 30. The 
Respondent continued to lawfully send blood work to two other 
laboratories, including Quest Diagnostics and Bio Reference. Id. at 30-
31.
    The Respondent testified that her federal criminal case did not 
involve controlled substances, prescriptions for controlled substances, 
or record keeping for controlled substances. Id. at 31. She has never 
before been disciplined or sanctioned for her prescribing methods with 
respect to controlled substances or her record keeping practices. Id. 
The Respondent discussed each of her proposed documentary evidentiary 
exhibits.\7\ Id. at 31-32. The Respondent identified a presentencing 
memorandum given to the District Court judge before her sentencing in 
2017. Id. at 32; RX 1.\8\ The Respondent identified a flyer for Boston 
Medical Center, which advertised an event, in which she was the keynote 
speaker for their Ethics and Compliance Week in 2017. Tr. 33; RX 2. The 
Respondent indicated that this was an example of the type of lectures 
she has given and continues to give, as discussed in her opening 
statement. The flyer included a picture, a description of the crime of 
conviction and the purpose of the lecture. Id. at 33.
---------------------------------------------------------------------------

    \7\ The Government did not object to any of the Respondent's 
proposed documentary evidence.
    \8\ RX--Respondent's Exhibit
---------------------------------------------------------------------------

    The Respondent offered a letter from Dr. B.F., who is an orthopedic 
surgeon at MD Anderson. Tr. 34; RX 3. Dr. B.F. invited the Respondent 
to speak with his orthopedic fellows to tell her story and hopefully 
deter them from engaging in similar behavior for which she had been 
convicted. Tr. 34. It was submitted to the District Court in 
conjunction with the presentencing memorandum. Id.; see RX 1. The 
Respondent offered a letter from Dr. J.E., a professor of philosophy at 
Marin University. Tr. 35-36; RX 4. The Respondent contacted him and 
offered to give her presentation to his medical students, which he 
accepted. Tr. 36. It was also submitted to the District Court in 
conjunction with the presentencing memorandum. Id.
    The Respondent offered a letter from J.W., an ethics professor from 
Ohio University. Tr. 36-37; RX 5. J.W. arranged for the Respondent to 
provide a radio presentation on NPR regarding her crime. Tr. 37. The 
Respondent offered a newspaper article from the Washington Post, 
featuring the Respondent and her presentation at Georgetown University. 
Tr. 38; RX 6. The Respondent offered certificates for completion of 
programs in health care ethics. Tr. 39-41; RX 7, 8. The Respondent 
offered the transcript of her sentencing hearing before the U.S. 
District Court conducted on June 14, 2017. Tr. 41; RX 9.
    Finally, the Respondent offered a consent agreement between her and 
the New York State Department of Health State Board for Professional 
Medical Conduct. Tr. 42; RX 10. The Respondent explained that after her 
sentencing in the District Court, a pre-hearing was conducted with the 
New York State Department of Health, Office of Professional and Medical 
Conduct, and based upon her efforts at remediation, the Respondent was 
allowed to continue practicing medicine with no interruptions or 
restrictions placed on her state license. Tr. 44-45.
    Following completion of her ethical course of study at Creighton 
University, the Respondent discovered that the prosecutor on her 
criminal case was going to law schools to discuss health care fraud. 
She offered to go with the prosecutor and tell her side of the story to 
the students. Tr. 60-61. While the prosecutor declined her invitation, 
she began to research medical schools, law schools, ethics societies, 
and medical societies to share her story to whomever would listen and 
would benefit from her presentation. Id. at 61-62. She sent out a cold 
email and offered to pay her own travel and expenses for the 
opportunity to share her story, which has cost approximately $20,000, 
in addition to taking her away from her current practice. Id. at 62, 
68, 74. As of the date of the instant hearing, the Respondent indicated 
that she had completed sixty-nine of these speaking engagements and 
continues to do them. Id. at 62-63.
    The Respondent discovered ``restorative justice'' during one of her 
medical ethics courses and began to focus on that. Id. at 63-64. She 
found it was not just about being sorry for your conduct, but how she 
could do better and correct her mistake. Id. at 64. She explained that 
she understood her crime had affected her patients, other physicians, 
and the community. Id. at 64-65. The Respondent indicated that medical 
school does not adequately prepare students for these real-life issues 
and that she wanted to share her experience as an example. Id. at 65. 
The Respondent reported that J.W. (see RX 5) was an educator of health 
care ethics, and that J.W. told the Respondent that she was changing 
her curriculum to include scenarios such as the Respondent's 
experience. Id. The Respondent further advised that at one of the 
schools she spoke, New York Medical College, they established a medical 
legal course for their law students and medical students to discuss 
situations similar to the Respondent's in order to better prepare their 
students. Id. at 66.
    The Respondent opened her presentation by giving her name, 
explaining that she is an internal medicine physician from New York, 
and that she was convicted of a crime in 2014, referring to herself as 
a felon. Id. at 67. She testified that she always refers

[[Page 24015]]

to herself as a felon as that is part of her story. Id. The Respondent 
noted statements made by the prosecutor, the sentencing judge, and 
probation department during her sentencing hearing in support of the 
Respondent and her remedial actions taken since pleading guilty. Tr. 
68-71; RX 9, pp. 9, 13-14.
    The Respondent was questioned regarding whether the underlying 
criminal conduct was ``aberrational'' and how she can be entrusted to 
maintain her DEA COR. Id. at 71-72. The Respondent testified that for 
the past six years, she has been able to reach thousands of medical 
students and physicians. Id. at 72. She said that some of her 
presentations at universities have been recorded and are required to be 
watched by students, so she knows she is making an impact on medicine 
in this way. Id. She stated that she wants to continue in her 
profession because it is what she has wanted for her entire life. Id.
    When questioned, she indicated that while she had been ordered to 
complete thirty lectures by the sentencing judge, she had already 
completed twenty-six speaking engagements by the date of the sentencing 
hearing. Id. at 73. She was ordered to complete thirty presentations 
within two years of sentencing, which she completed in only six months. 
Id. She further indicated that she has no plans to stop doing her 
speaking engagements, even though her probation term ended on June 14, 
2019. Id. at 73-77, 90.
    She further offered her cooperation to a number of government 
agencies as part of her remedial efforts. Tr. 85-87; RX 1, p. 463. She 
testified that she brought information concerning other potential 
criminal activity to approximately seven other state and federal law 
enforcement agencies across the federal government and two states, for 
which she received a 5K reduction letter for those efforts.\9\ Tr. 87. 
The Respondent scored a level 19 of the sentencing guidelines, which 
would normally carry a punishment of thirty to thirty-seven months in 
prison. Id. at 88. The prosecutors in the criminal case filed a 5K1 
recommendation letter, which recommended that she be sentenced within a 
guideline level which would make her probation eligible. Id. at 88-89. 
She stated that every other physician involved in the matter went to 
prison. Id. at 89.
---------------------------------------------------------------------------

    \9\ A ``5K reduction'' refers to USSG Sec.  5Kl.l--Substantial 
Assistance to Authorities. Upon motion of the Government stating 
that the defendant has provided substantial assistance in the 
investigation or prosecution of another person who has committed an 
offense, the court may depart from the guidelines.
---------------------------------------------------------------------------

    The Respondent indicated that she plans to reapply to participate 
in Medicare and Medicaid when her exclusion is over. Id. at 77. She 
explained that she had been excluded from Medicare, Medicaid, and the 
State of New York's Medicaid program, which she appealed and had 
rescinded. Id. at 77-78. She stated that she had been excluded from the 
state program even though she hadn't been participating in the program 
following her residency. Id. at 78-79.
    When I asked the Respondent if she had ever before taken the 
position that she did not commit the bribery, she responded, no, she 
had never taken that position, nor the position that bribery was not a 
serious offense warranting punishment. Id. at 83. She testified that 
after she had found out she had committed a crime, she had her office 
manager pick a random selection of patients to determine whether the 
rate of ordering bloodwork had increased at all based on the bribes. 
Id. at 84. The office manager picked one-hundred random patients 
established before the Respondent purchased the practice, one-hundred 
new patients before using BTL, and one-hundred new patients after 
starting to use BTL. Id. The office manager found that there was 
essentially no difference in the rate or frequency of ordering or what 
types of tests were ordered. Id. at 84.
    I asked why she believed that the Acting Administrator should trust 
her with her COR. Id. at 121. The Respondent asserted credibly that her 
efforts over the past six years is evidence of her contrition and 
trying to ``pay it forward to the next generation of physicians.'' Id. 
at 121-22. She cannot imagine repeating any part of her life from the 
past six years due to fear of going to jail, not being able to support 
her children, or not being able to take care of them. Id. at 122. She 
expressed that she would ``never do anything to compromise [her] 
license ever again.'' Id.

P.R., J.D., M.S.W., M.Bioethics

    P.R. is currently a professor at Temple University's Lewis Katz 
School of Medicine and the Center for Bioethics Urban Health and 
Policy. Id. at 94. She also serves as the Assistant Director of the 
Master's program in Urban Bioethics. Id. She received her bachelor's 
degree in political science, a master's degree in social work from the 
University of Pennsylvania, School of Social Policy and Practice, and a 
law degree from Temple University's law school. Id. at 93. She has 
previously taught at Drexel University, Simmons College, and previously 
worked as a geriatric social worker for approximately five years. Id. 
at 94.
    P.R. met the Respondent through an email the Respondent sent to the 
Center for Urban Bioethics approximately one year before P.R. started 
at the Center. Id. at 95. After a review of the Respondent's email, 
P.R. contacted the Respondent to hear more about her experiences and to 
determine if it would be appropriate for the Respondent to come to the 
University and speak to the students. Id. at 95. P.R. found that the 
Respondent's experience ``would be a good fit for their program'' and 
she invited the Respondent to come and talk to her class of physician 
assistants in the summer of 2017. Id. at 96. Since that time, the 
Respondent has spoken to several classes at Temple University. P.R. 
also invited her to speak to her students at Simmons College, including 
social work students, and undergraduate health care administration 
students at Drexel University. Id. at 97.
    P.R. described the Respondent's lecture and her presentation to the 
students. Id. at 97-98. She found the Respondent's story very ``honest, 
raw, and compelling.'' Id. at 97. The Respondent did not minimize her 
actions or try to make excuses, but explained what she had done and how 
it had happened. Id. at 98-99. The Respondent explained that apart from 
the medical knowledge required of health care professionals, it is also 
important to ``have a sense of how to run a business'' and other 
necessary considerations before entering the health care field. Id. at 
98.
    P.R. expressed that the Respondent showed contrition during her 
presentation. Id. at 100. She also expressed that the Respondent 
``[a]bsolutely'' accepted responsibility for her actions. Id.. She 
found that the Respondent's reputation among the students was one of 
respect for being candid about her story, and that the students found 
her talk to be very relevant to their education, and what it looks like 
to be confronted with ethical decisions in the field. Id. at 100-01.
    I asked P.R. if the Respondent appeared sincere in her 
presentations to students. Id. at 101. P.R. indicated that the 
Respondent ``could not have been more sincere.'' Id. P.R. expressed 
that it was clear from the Respondent's demeanor that she was being 
truthful and honest about her story. Id. at 102. There was no doubt in 
P.R.'s mind that she was absolutely sincere in her presentations. Id. 
The Respondent gave live presentations twice at the Center for Urban 
Bioethics. She gave four live

[[Page 24016]]

presentations for P.R. in total. Id. at 102-03. She found that the 
Respondent's talk was beneficial to the students as it demonstrated 
what a real-world ethical dilemma looks like and not only showed the 
consequences of making a bad decision, but also what a person can do to 
correct their mistake. Id. at 103-04. P.R. explained what she perceived 
to be a lack of ethical training in medical school, and found that the 
Respondent's presentations provided a bridge between this gap. Id. at 
104-06. P.R. stated that the Respondent is ``exactly the type of doctor 
I would want to have'' and that ``we're wanting our students to be.'' 
Id. at 105.

Dr. J.G., M.D.

    Dr. J.G. received her undergraduate degree from Stony Brook, her 
master's degree from Brooklyn College, and finally her medical degree 
at Ross University. Id. at 108. She completed her residency in 
obstetrics and gynecology at George Washington University. Tr. Id. 
Afterwards, she began working at Columbia University, Columbia 
Presbyterian in the Allen Pavilion for two years. Id. at 109. She then 
joined Mt. Sinai Hospital and Icahn School of Medicine as an Assistant 
Professor in obstetrics, gynecology, reproduction, endocrine and 
fertility, and minimally invasive surgery, where she worked until the 
end of 2013. Id. She went on to BronxCare Health System as an Assistant 
Professor in obstetrics and gynecology. Id. After her time in academia, 
she moved into private practice at Maiden Lane Medical before presently 
moving to join the Respondent at the Respondent's practice as a 
gynecologist. Id. at 110.
    Dr. J.G. met the Respondent during medical school and they became 
close friends. Id. They have been friends for about 21 years. Id. at 
118. She has referred patients to the Respondent and the Respondent has 
referred patients to her. Id. at 111. Dr. J.G. opined that the 
Respondent provides excellent care to her patients, is a very thorough 
and excellent clinician, and that she trusts the Respondent with their 
care. Id. at 111. Dr. J.G. has found that her patients greatly enjoy 
being treated by the Respondent. Id. at 111-12. Despite being aware of 
the Respondent's conviction and the circumstances surrounding it, Dr. 
J.G. continues to refer patients to the Respondent. Id. at 112. From 
her observations, she found that one particular patient was 
``remarkably healthier'' after being treated by the Respondent. Id.
    Dr. J.G. says that she has personally observed that the Respondent 
has accepted responsibility for the conduct which led to her 
conviction. Id. at 113-14. She has observed the Respondent not only 
show remorse for her conduct and to try and better understand what she 
did wrong, but that the Respondent has gone out to share her 
experiences with medical students and residents. Id. at 114-15. Dr. 
J.G. reiterated that ethics education is lacking in medical school, and 
she found the Respondent's lectures to be ``beyond remarkable.'' Id. at 
115. Based upon her professional and personal interactions with the 
Respondent, Dr. J.G. has found that the Respondent is an excellent 
judge of medical treatment. Id. at 115. The Respondent is a thorough 
clinician and takes her time with each patient to provide thorough 
treatment. Id. at 115-16. Although Dr. J.G. is preparing to join the 
Respondent's practice, she does not currently have a financial 
relationship with the Respondent. Tr. 116. When she refers patients to 
the Respondent, there is no referral fee or fee sharing and Dr. J.G. 
noted that that is illegal within the profession. Id. at 117. When Dr. 
J.G. enters into a practice arrangement with the Respondent, she 
expects they will share expenses equally for staff, rent and utilities. 
Id. at 116-17.
    Dr. J.G. holds a DEA Certificate of Registration and is familiar 
with the responsibilities of being a registration holder. Id. at 117-
18. She believes that the Respondent possesses all of the necessary 
requirements, ethics, judgment, and aptitude to hold a DEA COR. Id. at 
118.

The Facts

Stipulations of Fact

    The Government and the Respondent have agreed to five stipulations, 
which I recommend be accepted as fact in these proceedings:
    1. Respondent is registered with the DEA as a practitioner in 
Schedules II through V under DEA Certificate of Registration BM9434440 
with a registered address of 308A East 15 Street, New York, NY 10003, 
and a mailing address of 20 River Terrace, Apt. 23E, New York, NY 
10282. Respondent's registration expired by its terms on January 31, 
2020.
    2. On June 14, 2017, Respondent was found guilty in the United 
States District Court for the District of New Jersey of ``Transporting 
in Aid of Travel Act-Accepting Bribes in Violation of the Travel Act,'' 
in violation of 18 U.S.C. 1952(a)(3) and 18 U.S.C. 2. Judgment was 
entered against Respondent in U.S. v. Michele Martinho, No. 2:14-CR-
00271-SRC-1 (D.N.J. filed June 14, 2017).
    3. Based on Respondent's conviction, the U.S. Department of Health 
and Human Services, Office of Inspector General (``HHS/OIG''), by 
letter dated July 31, 2018, mandatorily excluded Respondent from 
participation in Medicare, Medicaid and all federal health care 
programs for the minimum period of five years pursuant to 42 U.S.C. 
1320a-7(a), effective August 20, 2018.
    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.

Findings of Fact

    The factual findings (FoF) below are based on a preponderance of 
the evidence, including the detailed, credible, and competent testimony 
of the aforementioned witnesses, the exhibits entered into evidence, 
and the record before me.
    1. The Respondent currently holds DEA COR BM9434440 in Schedules II 
through V with a registered address of 308A East 15 Street, New York, 
NY 10003, and a mailing address of 20 River Terrace, Apt. 23E, New 
York, NY 10282. The Respondent's COR expires by its terms on January 
31, 2020. ALJ Ex. 1, 9.
    2. The Respondent received her undergraduate degree in psychology 
from New York University. Id. at 47.
    3. The Respondent attended Ross University for medical school and 
returned to the United States for her clinical rotations, from which 
she graduated in 2002. Id. at 47.
    4. The Respondent completed her residency at Mount Sinai Elmhurst 
Hospital with a focus in internal medicine. Id. at 47.
    5. The Respondent worked at a satellite clinic for the hospital for 
almost three years after her residency. Id. at 48.
    6. The Respondent went into private practice and eventually 
purchased the practice, which is an internal medicine practice on the 
Lower East Side of Manhattan. Id. at 48-49.
    7. The Respondent has been licensed to practice medicine in the 
state of New York since 2005. Id. at 29; RX 10.

Respondent's Criminal Act, Conviction, and Exclusion

    1. The Respondent pled guilty to ``[v]iolating the federal Travel 
Act for accepting bribes for sending [her patients'] blood work to a 
laboratory.'' Tr. 30. She was sentenced to probation for a period of 
two years, of which the

[[Page 24017]]

first twelve months were served in home confinement. RX 9.
    2. The Respondent has never been disciplined or sanctioned 
concerning her prescribing of controlled substances. Tr. 30.
    3. The Respondent's conviction did not involve any controlled 
substances. Id. at 31.
    4. After her sentencing in her criminal case, the New York State 
Department of Health, Office of Professional and Medical Conduct, 
allowed the Respondent ``to continue to practice medicine with no 
interruption and no restriction.'' Id. at 44-45; RX 10.
    5. The Respondent accepted a referral fee or bribe to send her 
patients' blood work to Biodiagnostic Testing Labs. Tr. 50-51.
    6. Every month the lab test representative would give the 
Respondent an envelope of cash as payment for her use of the lab. Id. 
at 51.
    7. Over the course of two and a half years, the Respondent received 
$155,000 in payments from the testing lab. Id.
    8. The Respondent knew it was wrong to take these payments at the 
time that she accepted them. Id. at 52.
    9. The Respondent eventually paid taxes on these payments and 
forfeited them. Id.
    10. The Respondent continued to accept the referral fees until the 
lab owner and some of the lab representatives were arrested on April 
13, 2013. Id. at 53.
    11. When the lab owner was arrested, the Respondent knew that she 
was in trouble for accepting the cash payments, but that she did not 
know at the time that the referral fees were illegal. Id. at 53-54.
    12. The Respondent ``never put a needle in anyone's arm to draw 
their blood for any reason except for medical necessity.'' Id. at 55, 
58. The Respondent continued to send bloodwork to other labs in the 
area, without receiving a kickback from those labs. Id. at 29-30.
    13. The Respondent knew accepting the cash payments was wrong as a 
tax issue. Id. at 56.
    14. The rate of blood work the Respondent ordered was either less 
than before or ``there was essentially no difference in the rate of 
ordering, in the types of tests'' after she started taking the 
payments. Id. at -84.
    15. There were 29 doctors prosecuted in the Respondent's criminal 
case. Tr. 65.

Respondent's Acceptance of Responsibility and Corrective Action

    1. The Respondent testified that ``I blame myself only'' and that 
``I was responsible for all of it.'' Id. at 57.
    2. The Respondent admits that she violated her fiduciary duty to 
her patients. Id. at 56.
    3. The Respondent presented her cautionary story to medical 
students, practicing physicians, health care ethics students and 
educators. Id. at 61-62.
    4. The Respondent was ordered by the District Court to complete 
thirty speaking engagements as community service work over a period of 
two years. GX 2, p. 2.
    5. The Respondent completed the thirty speaking engagements within 
six months. Tr. 73.
    6. The Respondent has completed sixty-nine of these speaking 
engagements as of the date of the DEA hearing and continues to perform 
them. Id. at 62-63, 66, 73.
    7. The Respondent makes her presentations to provide ``restorative 
justice'' and ``to try to make it up to my community.'' Id. at 63-64.
    8. The Respondent refers to herself as a felon because it is part 
of her story and will never go away. Id. at 67, 75-76.
    9. The Respondent accepts ``one hundred percent'' responsibility 
for the acts that led to her criminal conviction. Id. at 74, 83.
    10. The Respondent has never taken the position that she did not 
commit the crime to which she eventually pled guilty. Id. at 83.
    11. The Respondent believes her criminal acts were serious 
violations of the law. Id. at 74, 83.
    12. The Respondent is remorseful for her crime. Id. at 75.
    13. The Respondent has been excluded from Medicare and the State of 
New York's Medicaid program. Id. at 77-78.
    14. The Respondent plans to reapply to participate with Medicare 
and Medicaid when her exclusion is over. Id. at 77, 87.
    15. Every doctor in the Respondent's criminal case went to prison 
except for her and she believes her speaking engagements made the 
difference in her avoiding jail time. Id. at 88-89.
    16. The Respondent completed her probation on June 14, 2019. Id. at 
89- 90.

P.R.

    1. P.R. is a professor at Temple University's Lewis Katz School of 
Medicine and the Center for Bioethics Urban Health and Policy and also 
the Assistant Director of the master's program in Urban Bioethics. Id. 
at 94.
    2. The Respondent has spoken to several of P.R.'s classes including 
a PA class, a class at Temple University that included a variety of 
students, two MSW classes and two classes of undergraduate health care 
administration students at Drexel University. Id. at 96-97. Four of 
these lectures were live, and not recorded. Id. at 103.
    3. The Respondent told these classes her cautionary story and 
shared that she is a convicted felon. Id. at 98.

Dr. J.G.

    1. Dr. J.G. is a physician who practices in obstetrics and 
gynecology. Id. at 108-09.
    2. The Respondent is Dr. J.G.'s best friend and colleague, having 
met in medical school. Id. at 108, 118.
    3. Dr. J.G. plans to join the Respondent in her office to practice 
gynecology. Id. at 110.
    4. The Respondent and Dr. J.G. refer many patients to each other. 
Id. at 111.
    5. When Dr. J.G. enters into a practice arrangement with 
Respondent, she expects they will share expenses equally for staff, 
rent and utilities. Id. at 116-17.
    6. According to Dr. J.G., the Respondent has accepted 
responsibility for her conduct. She is remorseful and has made 
remarkable efforts to correct her mistakes by cautioning others about 
these real pitfalls. Id. at 114-115.
    7. Dr. J.G. believes that the Respondent possesses the necessary 
ethics, intelligence and aptitude to properly hold a registration and 
administer and prescribe controlled substances. Id. at 118.

Analysis

Credibility Analysis of Fact Witness: The DI

    The DI's uncontroverted testimony, while generally limited to the 
initiation of the investigation and authentication of the Government's 
exhibits in this matter, was consistent, genuine and credible. The DI 
effectively explained how the investigation of the Respondent began, 
and how the DI verified the fact of the Respondent's exclusion from all 
federal health care programs.
    The DI, as a public servant, typically has no personal stake in the 
outcome of the instant investigation or in the revocation of the 
Respondent's registration. I noted no animus on the DI's part as to the 
Respondent. Although he may be viewed as being part of the prosecution 
team, I saw no indication from his testimony that any partiality 
interfered with his reliable testimony. Based on a complete review of 
the DI's presentation of testimony, I find his testimony to be entirely 
credible.

[[Page 24018]]

Credibility Analysis of Fact Witness: P.R.

    P.R. is currently a professor at Temple University's Lewis Katz 
School of Medicine and the Center for Bioethics Urban Health and 
Policy. Tr. 94. She also serves as the Assistant Director of the 
Master's program in Urban Bioethics. Id. She met the Respondent through 
an email the Respondent sent to the Center for Urban Bioethics about a 
year before P.R. started at the Center. Id. at 95.
    She has gotten to know the Respondent throughout the course of the 
Respondent's presentations to P.R.'s students. P.R. expressed that the 
Respondent showed contrition during her presentation. Id. at 100. She 
also expressed that the Respondent ``[a]bsolutely'' accepted 
responsibility for her actions. Id. at 100. P.R. indicated that the 
Respondent ``could not have been more sincere.'' Id. at 101. P.R. 
expressed that it was clear from the Respondent's demeanor that she was 
being truthful and honest about her story. Id. at 102. There was no 
doubt in P.R.'s mind that the Respondent was absolutely sincere in her 
presentations. Id.
    P.R. presented clear and candid testimony. She shared only a 
professional relationship with the Respondent. She appeared to be 
sincere in her description of the Respondent's presentations and 
corroborated the Respondent's testimony. I find her testimony to be 
entirely credible.

Credibility Analysis of Fact Witness: Dr. J.G.

    Dr. J.G. has prepared to move into the Respondent's private 
practice as a gynecologist after a career working in hospitals and 
academia. Id. at 108-10. She met the Respondent during medical school 
and they became close friends. Id. at 110. They have been friends for 
about 21 years. Id. at 118. She has referred patients to the Respondent 
and the Respondent has referred patients to her. Id. at 111.
    Dr. J.G. reports that she has observed that the Respondent has 
accepted responsibility for her conduct leading to her conviction. Id. 
at 113-14. She has observed the Respondent not only show remorse for 
her conduct and try to better understand what she did wrong, but also 
go out to share her cautionary tale to medical students and residents. 
Id. at 114-15. Based upon her professional and personal interactions 
with the Respondent, Dr. J.G. has found that the Respondent is an 
excellent medical diagnostician. Id. at 115. The Respondent is a 
thorough clinician and takes her time with each patient to provide 
thorough medical care. Id. at 115-16. Dr. J.G. holds a DEA Certificate 
of Registration and is familiar with the responsibilities of being a 
registration holder. Id. at 117-18. She believes that the Respondent 
possesses all of the necessary requirements, ethics, judgment, and 
aptitude to hold a DEA COR. Id. at 118.
    Dr. J.G. presented clear and candid testimony. She appeared to be 
sincere in her description of the Respondent's remorse and acceptance 
of responsibility, and corroborated the Respondent's testimony. 
Although they have been lifelong friends and soon-to-be business 
partners, I do not find that Dr. J.G. was unduly influenced by any 
personal relationship, or financial gain, or overt loyalty to the 
Respondent such that it interfered with her testimony. I find her 
testimony to be entirely credible.

Credibility Analysis of Fact Witness: Dr. Michele Martinho

    The Respondent explained the circumstances leading up to her 
underlying criminal conviction. She met with a lab testing 
representative who offered the Respondent referral fees to send their 
laboratory bloodwork. Tr. 50-51. The Respondent was paid every month in 
cash by the representative. Id. at 51. Over the course of two-and-a-
half years, she was paid $155,000, which the Respondent indicated has 
been forfeited, and the taxes paid. Id. at 51-52, 55-56. On June 14, 
2017, the Respondent was found guilty in the United States District 
Court for the District of New Jersey of ``Transporting in Aid of Travel 
Act-Accepting Bribes in Violation of the Travel Act,'' in violation of 
18 U.S.C. 1952(a)(3) and 18 U.S.C. 2. See Stipulation 2.
    The Respondent admitted that she knew it was wrong to accept the 
payments at the time she accepted them. Id. at 52. Apart from copays, 
she had not ever taken cash payments before that time, and has not 
since. Id. The Respondent asserted that while she now understands that 
ignorance of the law is no excuse, at the time, she did not fully 
understand what bribery meant. Id. at 54-55. She stated that she never 
conducted medically unnecessary blood draws. Id. at 55. The Respondent 
provided lengthy testimony that she has fully accepted responsibility 
for her conduct. She further testified as to her remedial efforts and 
how she has continued speaking engagements on her own in order to share 
her story and help prevent others from making the same decisions that 
she made that resulted in her criminal conviction and exclusion from 
all federal health care programs.
    The Respondent presented clear and candid testimony. She appeared 
to be sincere in her remorse and acceptance of responsibility. Although 
the stakes are very high in this proceeding, as the Agency's 
investigation and prosecution could effectively preclude the Respondent 
from practicing medicine, the Respondent did not appear to color her 
testimony. She appeared sincere and authentic. Her commitment to 
remedial efforts in the form of numerous cautionary lectures to health 
care professionals and to medical students is probably the most 
convincing evidence of the Respondent's acceptance of responsibility, 
remorse, and evidence she is trustworthy of her responsibilities as a 
possessor of a DEA COR. She presented her testimony in a consistent and 
convincing manner, and I find her testimony to be entirely credible.

Findings as to Allegations

    The Government alleges that the Respondent's COR should be revoked 
and any pending applications be denied because the Respondent has been 
excluded from all federal health care programs, pursuant to 21 U.S.C. 
824(a)(5). The Agency has held that section 824(a)(5) authorizes the 
revocation of existing registrations, as well as the denial of 
applications. Dinorah Drug Store, Inc., 61 FR 15972 (1996); Kuen H 
Chen, MD., 58 FR 65401 (1993).
    In the adjudication of a revocation or suspension of a DEA COR, DEA 
has the burden of proving that the requirements for such revocation or 
suspension are satisfied. 21 CFR 1301.44(e) (2010). Where the 
Government has sustained its burden and made its prima facie case, a 
respondent must both accept responsibility for her actions and 
demonstrate that she will not engage in future misconduct. Patrick W 
Stodola, MD., 74 FR 20727, 20734 (2009). Acceptance of responsibility 
and remedial measures are assessed in the context of the 
``egregiousness of the violations and the [DEA's] interest in deterring 
similar misconduct by [the] Respondent in the future as well as on the 
part of others.'' David A. Ruben, M.D., 78 FR 38363, 38364 (2013). 
Where the Government has sustained its burden, that registrant must 
present sufficient mitigating evidence to assure the Acting 
Administrator that he/she can be entrusted with the responsibility 
commensurate with such a registration. Medicine Shoppe-Jonesborough, 73 
FR 364387 (2008).\*B\
---------------------------------------------------------------------------

    \*B\ [Text omitted for brevity].

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

[[Page 24019]]

Exclusion Under U.S.C. 1320a-7(a)

    The Government has alleged that the Respondent has been excluded 
from participation in a program pursuant to section 1320a-7(a) of Title 
42. The Government can meet its burden under Sec.  824(a)(5) simply by 
advancing evidence that the registrant has been excluded from a federal 
health care program under 42 U.S.C. 1320a-7(a). Johnnie Melvin Turner, 
MD., 67 FR 71203 (2002); Dinorah Drug Store, Inc., 61 FR at 15973. The 
Administrator has sanctioned registrants where the Government 
introduced evidence of a registrant/applicant's plea agreement and 
judgment, and the resulting letter of exclusion from the U.S. 
Department of Health and Human Services, Office of Inspector General, 
imposing mandatory exclusion under section 1320a-7(a). See Richard 
Hauser, MD., 83 FR 26308 (2018).
    Additionally, the Agency has consistently held that the underlying 
conviction that led to mandatory exclusion does not need to involve 
controlled substances to support a revocation or denial. See, e.g., 
Mohammed Asgar, MD., 83 FR 29569 (2018); Narciso A. Reyes, MD., 83 FR 
61678 (2018); Richard Hauser, M.D., 83 FR at 26308; Orlando Ortega-
Ortiz, M.D., 70 FR 15122 (2005); Juan Pillot-Costas, MD., 69 FR 62804 
(2004). However, evidence that the underlying conviction does not 
relate to controlled substances can be used in mitigation. Mohammed 
Asgar, MD., 83 FR at 29573 (noting respondent's conviction ``did not 
involve the misuse of his registration to handle controlled 
substances''); Kwan Bo Jin, M.D., 77 FR 35021, 35027 (2012) (showing a 
lack of evidence concerning respondent's ``prescribing practices''). 
The Agency must determine if a sanction is appropriate where the record 
demonstrates ``questions as to the'' registrant's integrity. Anibal P. 
Herrera, MD., 61 FR 65075, 65078 (1996).

Government's Burden of Proof and Establishment of a Prima Facie Case

    Based upon my review of the allegations by the Government, it is 
necessary to determine if it has met its prima facie burden of proving 
the requirements for a sanction pursuant to 21 U.S.C. 824(a).
    It is clear from the stipulations, the Government's evidence, and 
the Respondent's position in this matter that there is no controversy 
between the parties that the Respondent was convicted of the underlying 
criminal charge in the U.S. District Court for the District of New 
Jersey, and was subsequently mandatorily excluded from all federal 
health care programs by HHS/OIG, pursuant to 42 U.S.C. 1320a-7(a). The 
Government's evidence clearly demonstrates the necessary elements of 
proof under 21 U.S.C. 824(a)(5) and I find that the Government has 
established a prima facie case for revocation of the Respondent's COR 
and denial of any pending applications.
    Therefore, the remaining issue, and the central focus for 
determination in this matter, is whether the Respondent has 
sufficiently demonstrated that she has accepted responsibility for her 
actions, has demonstrated remorse, and has taken sufficient 
rehabilitative and remedial steps to demonstrate to the Acting 
Administrator that she can be entrusted to maintain her COR. Kwan Bo 
Jin, MD., 77 FR at 35021. The Agency must determine whether revocation 
is the appropriate sanction ``to protect the public from individuals 
who have misused controlled substances or their DEA Certificate of 
Registration and who have not presented sufficient mitigating evidence 
to assure the Administrative that they can be trusted with the 
responsibility carried by such a registration.'' Jeffrey Stein, M.D., 
84 FR 46968, 46973 (2019) (quoting Leo R. Miller, MD., 53 FR 21931, 
21932 (1988)). ``The Agency also looks to the nature of the crime in 
determining the likelihood of recidivism and the need for deterrence.'' 
Id. In determining whether and to what extent a sanction is 
appropriate, consideration must be given to both the egregiousness of 
the offenses established by the Government's evidence and the Agency's 
interest in both specific and general deterrence. David A. Ruben, M.D., 
78 FR 38363, 38364, 38385 (2013).\*C\
---------------------------------------------------------------------------

    \*C\ Analysis of public interest factors omitted for relevance.
---------------------------------------------------------------------------

Acceptance of Responsibility and Rehabilitative Measures

    The Government's prima facie burden having been met, [ ]\*D\ the 
Respondent must present sufficient mitigating evidence to assure the 
Administrator that she can be entrusted with the responsibility 
incumbent with such registration. Medicine Shoppe, 73 FR at 387; Samuel 
S. Jackson, 72 FR 23848, 23853 (2007). *[ ]The egregiousness and extent 
of an applicant's misconduct are significant factors in determining the 
appropriate sanction. See Jacobo Dreszer, 76 FR 19386, 19387-88 (2011) 
(explaining that a respondent can ``argue that even though the 
Government has made out a prima facie case, his conduct was not so 
egregious as to warrant revocation''); Paul H. Vollanan, 73 FR 30630, 
30644 (2008); Gregory D. Owens, 74 FR 36751, 36757 n.22 (2009).
---------------------------------------------------------------------------

    \*D\ Omitted text for clarity and omitted text throughout this 
section where noted with an asterisk to remove the public interest 
analysis.
---------------------------------------------------------------------------

    Since the exposure of the ``kick-back'' scheme, the Respondent has 
maintained a consistent posture of acknowledging the impropriety and 
illegality of her actions, of cooperation with the Government and of 
truly commendable and extensive remedial efforts toward her goal of 
``restorative justice.'' She has fully accepted responsibility for her 
conduct, which led to the underlying criminal conviction, both in her 
criminal prosecution, as well as in the instant proceeding. Tr. 83; FoF 
33. The Respondent testified credibly during the hearing that ``I blame 
myself only'' and that ``I was responsible for all of it.'' Tr. 57; FoF 
24. When directly asked by Government counsel during cross-examination 
if she accepted responsibility, she stated that she accepts ``one-
hundred percent'' responsibility for the acts that led to her criminal 
conviction. Tr. 74, 83; FoF 32. The Respondent has further demonstrated 
remorse for her crime. Tr. 75; FoF 35. She has repaid the bribes, 
amended her tax returns, and paid the taxes on the money she took. Tr. 
52; FoF 17. As for her speaking engagements, the Respondent has 
completed sixty-nine speaking engagements, far beyond the required 
thirty speaking engagements ordered by the District Court, and 
continues to complete speaking engagements even though she is no longer 
required to do so. Tr. 61-63, 66, 73; GX 2, p.2; FoF 26-29. She 
completed all requirements for her probation on June 14, 2019. Tr. 89-
90; FoF 39. She has consistently demonstrated that she has taken the 
necessary steps to rehabilitate herself and has demonstrated contrition 
for her conduct that led to her underlying conviction.
    During the underlying criminal proceedings, both the Assistant 
United States Attorney (AUSA) and the sentencing U.S. District Court 
Judge believed that the Respondent had accepted responsibility for her 
conduct. The AUSA stated during the Respondent's sentencing hearing 
that the Respondent ``had demonstrated a level of contrition that has 
been unique among the many, many doctors that we've dealt with in this 
case.'' Tr. 68-69; RX 9. Further, U.S. District Court Judge Stanley R. 
Chesler found that the

[[Page 24020]]

Respondent had accepted responsibility. RX 9.\*E\
---------------------------------------------------------------------------

    \*E\ Removed text. I agree with the Government that the District 
Court's findings on acceptance of responsibility are not binding on 
this agency, see Govt Posthearing Brief, at 9; however, I also agree 
with the ALJ that these findings are relevant in that they further 
support the ALJ's finding of Respondent's credible acceptance of 
responsibility. See Mohammed Asgar, MD., 83 FR at 29573 n.3.
---------------------------------------------------------------------------

    Although correcting improper behavior and practices is very 
important to establish acceptance of responsibility, conceding 
wrongdoing is critical to reestablishing trust with the Agency. Holiday 
CVS, L.L.C., 77 FR 62316, 62346 (2012); Daniel A. Glick, D.D.S., 80 FR 
at 74801. Based upon the evidence presented, I find that the Respondent 
has demonstrated the full measure of acceptance of responsibility, and 
has fully demonstrated that she is remorseful of her actions and has 
taken considerable rehabilitative steps to ensure that this conduct 
will not be repeated.

Loss of Trust

    Where the Government has sustained its burden and established that 
a registrant has committed acts inconsistent with the public interest, 
that registrant must present sufficient mitigating evidence to assure 
the Acting Administrator that he can be entrusted with the 
responsibility commensurate with such a registration. Medicine Shoppe, 
73 FR at 387.
    As demonstrated by the evidence presented in this matter, it is 
clear to me that the Respondent has unequivocally accepted 
responsibility for her conduct. She continues to not only improve 
herself, but works to ensure that current and future practitioners 
learn from her past criminal conduct and will not make the same 
choices. [I also find credible Respondent's statement that she would 
``never do anything to compromise [her] license ever again.'' Tr. 122.] 
Her underlying criminal conduct did not relate to her handling of 
controlled substances and the Government has not alleged any 
deficiencies by the Respondent related to controlled substances. The 
Government argues that revocation in this matter is appropriate for its 
deterrent effect. *[ ]*[Further, although I am not bound by them in 
this case, I agree with the statements of] U.S. District Court Judge 
Chesler found that ``in many ways your efforts may have as much, if not 
more, impact than the prosecutions per se because it sends out a 
message and it sends out a message from someone who has personally 
impacted by having made the wrong decision.'' RX 9. It appears the 
Respondent's outreach to physicians, medical staff and to students has 
provided and continues to provide valuable deterrence to the medical 
community. The Respondent's efforts have greatly satisfied the need for 
deterrence. At sentencing, the AUSA stated that the Respondent's 
``efforts have been substantial, including the speaking engagements 
that she's been involved with. I can tell you, your Honor, that I have 
heard unsolicited from folks in the medical field about the work that 
she has been doing and folks who are involved in educating physicians 
and supervising physicians have reported to me that her efforts have 
made an impact in educating the community, which is meaningful thing 
from the government's perspective.'' RX 9. *[In this case,] the 
Respondent has clearly demonstrated that she can be entrusted to 
properly maintain her COR.

Recommendation

    Considering the entire record before me, the conduct of the 
hearing, and observation of the testimony of the witnesses presented, I 
find that the Government has met its burden of proof and has 
established a prima facie case for revocation. However, *[ ] the 
evidence overwhelmingly suggests that the Respondent has unequivocally 
accepted responsibility, is remorseful for her conduct, has worked to 
rehabilitate herself, has taken extraordinary steps to educate medical 
personnel and students, and has presented convincing evidence 
demonstrating that the Agency can entrust her to maintain her COR.

Therefore, I recommend the Respondent's DEA COR BM9434440 should Not be 
Revoked and any pending applications for renewal or modification of 
such registration, or for additional DEA registrations, be Granted

    December 4, 2019

Mark M. Dowd,

U.S. Administrative Law Judge.

[FR Doc. 2021-09464 Filed 5-4-21; 8:45 am]
BILLING CODE 4410-09-P