Arash M. Padidar, M.D.; Decision and Order, 54061-54065 [2024-14201]

Download as PDF Federal Register / Vol. 89, No. 125 / Friday, June 28, 2024 / Notices registration.9 See, e.g., James L. Hooper, M.D., 76 FR 71371, 71372 (2011), pet. for rev. denied, 481 F. App’x 826 (4th Cir. 2012); Frederick Marsh Blanton, M.D., 43 FR 27616, 27617 (1978). According to Missouri statute, ‘‘dispense’’ means ‘‘to deliver a narcotic or controlled dangerous drug to an ultimate user or research subject by or pursuant to the lawful order of a practitioner including the prescribing, administering, packaging, labeling, or compounding necessary to prepare the substance for such delivery.’’ Mo. Rev. Stat. section 195.010 (12) (2018). Under the same Missouri statute, ‘‘practitioner’’ means a ‘‘physician . . . or other person licensed, registered or otherwise permitted by this state to distribute, dispense, conduct research with respect to or administer . . . a controlled substance in the course of professional practice . . . in this state.’’ Id. section 195.010 (39). Further, in Missouri, ‘‘[n]o person shall . . . dispense . . . any controlled substance . . . without having first obtained a registration issued by the department of health and senior services.’’ Id. section 195.030 (2); see also id. section 195.030 (3) (‘‘Persons registered by the department of health and senior services pursuant to this chapter to . . . dispense . . . controlled substances are authorized to . . . dispense such substances . . . to the extent authorized by their registration and in conformity with other provisions of this chapter and chapter 579.’’). Here, the undisputed record evidence is that, as of August 31, 2023, and continuing to the present, Respondent is not registered in Missouri to dispense controlled substances. Supra section III. As explained above, a physician in Missouri must be registered with the state to dispense controlled substances. Supra. Thus, because Respondent lacks authority to dispense controlled substances in Missouri, Respondent is not eligible to maintain his DEA registration addressed in that State. Supra; see also RD, at 3. Accordingly, the Agency orders that Respondent’s registration be revoked. 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. BN7853864 issued to Abdul Naushad, M.D. Further, pursuant to 28 CFR 0.100(b) and the authority vested in me by 21 U.S.C. 823(g)(1), I hereby deny any pending applications of Abdul Naushad, M.D., to renew or modify this registration, as well as any other pending application of Abdul Naushad, M.D., for additional registration in Missouri. This Order is effective July 29, 2024. Signing Authority This document of the Drug Enforcement Administration was signed on June 21, 2024, by Administrator Anne Milgram. That document with the original signature and date is maintained by DEA. For administrative purposes only, and in compliance with requirements of the Office of the Federal Register, the undersigned DEA Federal Register Liaison Officer has been authorized to sign and submit the document in electronic format for publication, as an official document of DEA. This administrative process in no way alters the legal effect of this document upon publication in the Federal Register. Heather Achbach, Federal Register Liaison Officer, Drug Enforcement Administration. [FR Doc. 2024–14207 Filed 6–27–24; 8:45 am] khammond on DSKJM1Z7X2PROD with NOTICES 9 This rule derives from the text of two provisions of the CSA. First, Congress defined the term ‘‘practitioner’’ to mean ‘‘a physician . . . or other person licensed, registered, or otherwise permitted, by . . . the jurisdiction in which he practices . . . , to distribute, dispense, . . . [or] administer . . . a controlled substance in the course of professional practice.’’ 21 U.S.C. 802(21). Second, in setting the requirements for obtaining a practitioner’s registration, Congress directed that ‘‘[t]he Attorney General shall register practitioners . . . if the applicant is authorized to dispense . . . controlled substances under the laws of the State in which he practices.’’ 21 U.S.C. 823(g)(1). Because Congress has clearly mandated that a practitioner possess state authority in order to be deemed a practitioner under the CSA, the Agency has held repeatedly that revocation of a practitioner’s registration is the appropriate sanction whenever he is no longer authorized to dispense controlled substances under the laws of the state in which he practices. See, e.g., James L. Hooper, 76 FR 71371–72; Sheran Arden Yeates, M.D., 71 FR 39130, 39131 (2006); Dominick A. Ricci, M.D., 58 FR 51104, 51105 (1993); Bobby Watts, M.D., 53 FR 11919, 11920 (1988); Frederick Marsh Blanton, M.D., 43 FR 27617. VerDate Sep<11>2014 19:25 Jun 27, 2024 Jkt 262001 BILLING CODE 4410–09–P DEPARTMENT OF JUSTICE Drug Enforcement Administration [Docket No. 23–14] Arash M. Padidar, M.D.; Decision and Order On December 5, 2022, the Drug Enforcement Administration (DEA or Government) issued an Order to Show Cause (OSC) to Arash M. Padidar, M.D. (Applicant) of San Jose, California. OSC, at 1, 3. The OSC proposed the denial of Applicant’s application for a DEA Certificate of Registration (COR or registration), Control No. W22106685C, alleging that Applicant materially PO 00000 Frm 00124 Fmt 4703 Sfmt 4703 54061 falsified his application for registration. Id. at 1 (citing 21 U.S.C. 824(a)(1)). A hearing was held before DEA Administrative Law Judge Teresa A. Wallbaum (the ALJ), who on May 24, 2023, issued her Recommended Rulings, Findings of Fact, Conclusions of Law, and Decision (RD). The RD recommended denial of Applicant’s application for registration. RD, at 26. Applicant did not file exceptions to the RD. Having reviewed the entire record, the Agency adopts and hereby incorporates by reference the entirety of the ALJ’s rulings, credibility findings,1 findings of fact, conclusions of law, sanctions analysis, and recommended sanction as found in the RD and as summarized herein. I. Findings of Fact Search of Applicant’s Residence and Surrender of Applicant’s Previous COR On October 7, 2020, at approximately 7:00 a.m., DEA and local law enforcement executed a search of Applicant’s residence based on a criminal search warrant.2 RD, at 8; Tr. 1 The Agency adopts the ALJ’s summary of each of the witnesses’ testimonies as well as the ALJ’s assessment of each of the witnesses’ credibility. See RD, at 3–14. The Agency agrees with the ALJ that the Diversion Investigator (DI) ‘‘presented as an objective witness, with no motive to fabricate’’; however, as noted by the ALJ, the DI was unable to recall some details regarding the relevant events and at times gave inconsistent answers. The ALJ found, and the Agency agrees, that the DI ‘‘was consistent on key issues and her core testimony was corroborated by the documentary evidence and, in many respects, by [Applicant] himself.’’ Id. at 4–5. Accordingly, the Agency agrees with the ALJ that the DI was credible and her testimony warrants full weight on the key, corroborated issues. Id. at 5. Regarding Applicant, the ALJ found, and the Agency agrees, that Applicant’s testimony was acceptable to the extent that it was corroborated by the DI’s testimony and documentary evidence; however, the ALJ also found, and the Agency agrees, that Applicant’s testimony as to his mental state during the relevant events was self-serving and internally inconsistent. Id. at 7. Specifically, the ALJ noted that Applicant’s recollection of events tended to be either extremely clear or extremely murky depending on which better suited a particular purpose, and Applicant’s various explanations for his false application answer were inconsistent to each other as well as inconsistent to Applicant’s other statements and actions. Id. at 7– 8. Accordingly, the Agency agrees with the ALJ that Applicant’s testimony that is consistent with the DI’s testimony or documentary evidence warrants acceptance, while Applicant’s testimony regarding his mental state during the relevant events warrants only limited weight. Id. at 8. 2 Applicant testified that law enforcement began investigating him after a former employee alleged Applicant was writing codeine prescriptions for himself; Applicant testified that he had been addicted to codeine, which he took to treat pain from knee injuries, but denied ever selling codeine to third parties. RD, at 6; Tr. 145, 211–13, 215. Applicant asserted that the execution of the search warrant was a ‘‘wake-up call’’ and the next day he voluntarily entered a treatment program. RD, at 6; Tr. 212–13. E:\FR\FM\28JNN1.SGM 28JNN1 54062 Federal Register / Vol. 89, No. 125 / Friday, June 28, 2024 / Notices 30, 93, 145.3 According to Applicant, law enforcement entered the house, handcuffed both Applicant, who was unclothed, and his wife, and took Applicant downstairs to the kitchen. RD, at 8; Tr. 148–49, 152. According to Applicant, he remained in the kitchen with an unarmed Diversion Program Manager (DPM), mostly alone, until 1:00 p.m. RD, at 9; Tr. 150–52. Applicant testified that the DPM showed him the search warrant while other law enforcement officers began searching the house. RD, at 9; Tr. 155. Testifying for the Government, the Diversion Investigator (DI) recalled that she waited in her car when law enforcement first entered the house but that she entered and began participating in the search at around 7:20. RD, at 9, 18; Tr. 30–31, 66–67, 75–78.4 Sometime between 1:00 p.m. and 2:00 p.m., DEA personnel spoke with Applicant in the living room; there were five DEA personnel present, including the DI, a second Diversion Investigator (DI2), a Group Supervisor (GS), the DPM, and a Task Force Officer (TFO). RD, at 10; Tr. 31–32, 61, 88, 151–53, 156, 165. DI2 and the TFO conducted the interview of Applicant. RD, at 10; Tr. 32–33, 162. According to the DI, DI2 presented Applicant with a Form DEA–104, which is titled ‘‘SURRENDER FOR CAUSE OF DEA CERTIFICATE OF REGISTRATION,’’ (emphasis in original) and allows registrants to surrender their DEA registration for cause and immediately terminates their registration. RD, at 10–11; Tr. 34, 36; Government Exhibit (GX) 2, at 1.5 khammond on DSKJM1Z7X2PROD with NOTICES 3 Applicant testified that his memory of the execution of the search warrant ‘‘was extremely vivid,’’ and the experience was ‘‘scary’’; however, his memory of the interview was weaker and because he was so scared, he ‘‘couldn’t even think straight.’’ RD, at 6; Tr. 145, 148, 161, 164, 257, 260. Applicant testified that the police had flashlights, wore military clothing, and had weapons with lasers attached. Applicant also testified that he saw two police cars outside as well as a SWAT van and estimated that there were eighteen officers on his property (including outside), with the majority of the officers carrying weapons. RD, at 8; Tr. 147, 149–50. 4 By the time the DI entered the house, she saw two police vehicles and was not sure how many officers were surrounding the house or inside the house. RD, at 9; Tr. 75–77. The DI testified that some of the officers did have weapons but she could not recall if they were holstered. RD, at 9; Tr. 75–76. 5 Paragraph one of the Form DEA–104 signed by Applicant on October 7, 2020, reads: ‘‘In view of my alleged failure to comply with the Federal requirements pertaining to controlled substances or listed 1 chemicals and as an indication of my good faith in desiring to remedy any incorrect or unlawful practices on my part, I hereby surrender for cause my Drug Enforcement Administration (DEA) Certificate of Registration’’; paragraph two reads: ‘‘I understand that submission of this document to DEA, including any employee of DEA, VerDate Sep<11>2014 19:25 Jun 27, 2024 Jkt 262001 Applicant had been given his Miranda rights and was not in handcuffs during the interview. RD, at 11; Tr. 81, 98–99, 162–63, 170, 194. The DI testified that it appeared to her that Applicant ‘‘read the form a little bit and then eventually signed the form’’; she did not recall Applicant asking any questions or refusing to sign the form, nor did she recall DI2 explaining the word ‘‘cause’’ to Applicant. RD, at 11; Tr. 35, 38, 69, 78, 80, 82, 85, 100. According to Applicant, he was told repeatedly that the surrender was voluntary and he ‘‘could apply again.’’ RD, at 10 n.8; Tr. 164. According to Applicant, he had the opportunity to read the form but did not do so, though he confirmed looking over the form ‘‘quickly’’; Applicant testified, ‘‘all I remember it was such a blur because my hands were shaking. I looked where my signature area [was]. I signed it and they asked me to date it.’’ RD, at 11; Tr. 163–165, 262. Nonetheless, Applicant acknowledged that he did sign the form and did not challenge the surrender of his registration as being under duress. RD, at 10 n.8; Tr. 161, 258, 261. DEA did not leave Applicant a copy of the Form DEA–104 (consistent with DEA practice) nor did DEA explain the meaning of ‘‘for cause’’ to Applicant. RD, at 11; Tr. 42, 69–70, 83, 85, 164. According to the DI, at the end of the interview, the DPM and DI2 both provided their business cards to Applicant, and then the DI and the others moved on to execute the search warrant at Applicant’s clinic. RD, at 11; Tr. 41–42.6 Applicant’s August 12, 2022 Application According to Applicant, when he read the application, he ‘‘saw certain questions that became very concerning, [ ] especially the same question that we’re here for’’ (referring to Liability Question 2) 7 and he tried to obtain a shall result in the immediate termination of my registration.’’ RD, at 11; Tr. 40–41; GX 2, at 1. 6 Applicant initially testified that only the DPM provided a business card, but later acknowledged that he also had DI2’s ‘‘name’’ from the search; Applicant also emailed DI2 directly at her email address, suggesting that he had her business card. RD, at 11–12; Tr. 163, 196; Respondent (Applicant) Exhibit (RX) 6. 7 The application contains four ‘‘liability questions,’’ which require a ‘‘yes’’ or ‘‘no’’ answer and ask an applicant whether he: (1) has a criminal background; (2) has previously surrendered a registration for cause; (3) has any issues with his state licenses; or (4) has any affiliations with any entities or corporations that have criminal histories. RD, at 13; Tr. 46–47. If an applicant answers ‘‘yes’’ to any of these questions, the application provides a box that allows the applicant to explain his answer. RD, at 13; Tr. 47; GX 3, at 1. If an applicant has any other questions, he may contact the registration support section at the phone number or PO 00000 Frm 00125 Fmt 4703 Sfmt 4703 copy of the Form DEA–104 to resolve his concerns. RD, at 12; Tr. 172–73, 200. Applicant testified that he called DEA multiple times to get the form but was never able to reach anyone.8 Applicant also tried to find the form online (both before and after completing the application) and found what he thought was an older form with the title ‘‘voluntary surrender.’’ RD, at 12; Tr. 173–74, 176–78. On August 10, 2022, Applicant emailed DI2, who forwarded the email to the DI. RD, at 12; Tr. 45. Applicant’s email read: ‘‘It has been almost two years since you asked me to surrender my DEA [COR] and c[a]me to my office. I would like to ask if you have concluded your investigation or closed it? Any word you can give me would be appreciated.’’ RD, at 12; RX 6.9 On August 11, 2022, the DI responded 10 with the following email: ‘‘Please apply for a new DEA Registration. A new registration is required because the previous registration was surrendered and is no longer valid. The application forms can be found at Registration (usdoj.gov) under ‘New Application.’ ’’ RD, at 12– 13; Tr. 45, 265; RX 6. Applicant testified that he emailed DEA before filling out his application because he ‘‘wanted to clarify, and get copies of what [he] had signed’’ but he admitted that he did not ask whether his registration had been surrendered for cause nor did he ask for a copy of his signed Form DEA–104. RD, at 13; Tr. 266–67; RX 6.11 According to Applicant, he interpreted the DI’s reply email as an ‘‘invitation’’ to apply and noted that it only said ‘‘surrendered,’’ not ‘‘surrendered for cause.’’ RD, at 13; Tr. 197, 203; RX 6. On August 12, 2022, Applicant electronically signed and submitted an application for a new DEA registration through the DEA website. RD, at 13; Tr. 51–53; GX 3.12 Liability Question 2 on email address provided on the DEA Diversion website homepage. RD, at 13; Tr. 47–48. 8 According to the DI, the first time she knew of Applicant attempting to contact DEA was July 2022 when Applicant emailed the DPM. RD, at 12; Tr. 43–45. When asked whether anyone from DEA replied to Applicant’s email, the DI stated ‘‘[n]ot that I know of.’’ Tr. 44–45. 9 Applicant’s exhibit does not include the date of the email, but Applicant testified that he sent the email in August before submitting his application. RD, at 12; Tr. 265. 10 The DI responded to Applicant’s email using the general San Jose Resident Office email. RD, at 12; Tr. 45; RX 6. 11 Applicant also admitted that he never reached out to DEA to challenge the surrender of his COR. RD, at 13; Tr. 264–67. 12 The Registration Specialist assigned to review Applicant’s application knew that Applicant had previously surrendered his registration for cause, so she informed the GS of the application and the GS assigned the investigation to the DI. RD, at 13; Tr. 48, 50. E:\FR\FM\28JNN1.SGM 28JNN1 Federal Register / Vol. 89, No. 125 / Friday, June 28, 2024 / Notices khammond on DSKJM1Z7X2PROD with NOTICES the application asks: ‘‘Has the applicant ever surrendered for cause or had a federal controlled substance registration revoked, suspended, restricted or denied or is any such action pending? ’’ RD, at 13; Tr. 53; GX 3, at 1. On his application, Applicant answered Liability Question 2 with ‘‘N’’ for ‘‘no.’’ RD, at 13; Tr. 53; GX 3, at 1. Additionally, the bottom of the application reads: ‘‘By typing my full name in the space below, I hereby certify the foregoing information furnished on this electronic DEA application is true and correct and understand that this constitutes an electronic signature,’’ and Applicant’s name, as an e-signature, is at the bottom of his application. RD, at 13; Tr. 54; GX 3, at 2. Here, the ALJ found, and the Agency agrees, that ‘‘it is beyond dispute that [Applicant] surrendered his registration for cause and [thus] falsely answered Liability Question 2 on his application for a new COR.’’ RD, at 14.13 Regarding his false answer, Applicant asserted that he did not intentionally submit a false statement and that it was instead a misunderstanding resulting from multiple factors. Tr. 209, 254. According to Applicant, he misunderstood because: (1) DEA did not provide him with a copy of the Form DEA–104 and he could not reach anyone by phone to ask about it so he was going by memory (Tr. 163, 172–73, 194–96, 202, 255–56); (2) he searched on Google and found a form stating that surrender was voluntary (Tr. 173, 177–78, 268–69); (3) he considered voluntary surrender ‘‘for cause’’ to be an oxymoron, problematic, and to not make sense (Tr. 201, 255, 256); (4) his experience from medical disciplinary boards led him to believe that voluntary surrender would not be ‘‘for cause’’ (Tr. 177–178, 201–202, 272– 73); 14 (5) he thought that DEA would already have the information about his surrender because DEA was the body that he surrendered to (Tr. 204); (6) 13 Regarding the phrase ‘‘for cause,’’ as noted by the ALJ, ‘‘[w]hile the phrase ‘for cause’ is not defined by federal regulations, Agency decisions have held that a [registrant] surrendered for cause when he voluntarily surrendered in the wake of allegations of misconduct or after the execution of a criminal search warrant.’’ RD, at 16 (citing JM Pharmacy Grp., Inc., 80 FR 28667, 28668–69 (2015); Shannon L. Gallentine, D.P.M., 76 FR 45864, 45866 (2011)). ‘‘Moreover, in this case, the Form DEA–104 [Applicant] signed specifically use[d] the phrase ‘for cause.’’’ Id.; GX 2. 14 Applicant testified that in the ‘‘medical staff world,’’ ‘‘for cause’’ means ‘‘an individual has caused some act . . . that they shouldn’t have,’’ and the disciplinary authority ‘‘would revoke that privilege for that cause.’’ RD, at 6 n.5; Tr. 201. Applicant testified, ‘‘[i]f a physician wants to voluntarily surrender their privilege just to leave, and it wasn’t being revoked for a reason, that would be a voluntary surrender.’’ Id. VerDate Sep<11>2014 19:25 Jun 27, 2024 Jkt 262001 English is his second language so he sometimes interprets things incorrectly (Tr. 209); and (7) he surrendered his registration under duress after an excessive search and had he obtained advice, he would not have surrendered (Tr. 161, 258, 261). RD, at 6. Applicant asserted that he did not understand that when he surrendered his registration he was surrendering for cause and testified, ‘‘[u]ntil [now], I would have still answered it no. But now that I understand what is meant in your world, I would answer very differently.’’ Id.; Tr. 203, 211.15 II. Discussion The Administrator is authorized to revoke a registration or deny an application if the registrant/applicant has materially falsified an application for registration. 21 U.S.C. 824(a)(1); Farmacia Yani, 80 FR 29053, 29058 (2015) (‘‘[J]ust as materially falsifying an application provides a basis for revoking an existing registration without proof of any other misconduct . . . it also provides an independent and adequate ground for denying an application.’’).16 Agency decisions have repeatedly held that false responses to the liability questions on an application for registration are material. Kevin J. Dobi, APRN, 87 FR 38184, 38184 (2022) (collecting cases).17 Regarding proof of material falsification, Agency precedent has found that the Government must prove an allegation of material falsification ‘‘by evidence that is clear, unequivocal, and convincing.’’ Richard J. Settles, D.O., 81 FR 64940, 64946 (2016) (quoting Kungys v. United States, 485 U.S. 759, 772 (1998)). Agency precedent has also established that the Government need not show that an 15 Applicant also noted that he cannot practice medicine without a registration and that his practice provides an important service to the community. RD, at 7; Tr. 206–208, 214. 16 See also RD, at 14 n.12 (explaining that the grounds for revocation of a registration under 21 U.S.C. 824(a) can also be grounds for denying an application for registration under 21 U.S.C. 823). 17 Even so, the Agency agrees with the ALJ’s conclusion rejecting Applicant’s arguments that his false statement was not material. See RD, at 20–21. Applicant argues that his false statement was not material because in reviewing his application, the Agency would have checked his history with DEA anyway, and the Registration Specialist who processed Applicant’s application knew that Applicant had surrendered his previous registration. RD, at 20. However, as noted by the ALJ, the standard regarding materiality ‘‘does not require proof that the Government actually relied on or believed the false statement; it is sufficient that the false statement could have influenced the decisionmaker.’’ Id. at 20–21. Further, ‘‘the mere fact that someone caught [Applicant’s] misstatement does not make it immaterial.’’ Id. at 21; see Narciso A. Reyes, M.D., 83 FR 61678, 61680 (2018). PO 00000 Frm 00126 Fmt 4703 Sfmt 4703 54063 applicant actually knew that his response to a liability question was false. Rather, it is sufficient that the Government shows that an applicant should have known that his response to a liability question was false. Reyes, 83 FR 61680 (citing Samuel S. Jackson, D.D.S., 72 FR 23848, 23852 (2007)). When the Government has made such a showing, i.e., that an applicant should have known that his response to a liability question was false, an applicant’s claim that he actually misunderstood a liability question, or otherwise inadvertently provided a false answer to a liability question, is not a defense. Id. (citing Alvin Darby, M.D., 75 FR 26993, 26999 (2010)). Indeed, the applicant bears the responsibility to carefully read the liability questions and to answer them honestly; ‘‘[a]llegedly misunderstanding or misinterpreting liability questions does not relieve the applicant of this responsibility.’’ Zelideh I. Cordova-Velazco, M.D., 83 FR 62902, 62906 (2018) (internal citations omitted). Here, the ALJ found, and the Agency agrees, that the Government has met its burden of proving by clear, unequivocal, and convincing evidence that Applicant surrendered his previous registration for cause, that Applicant should have known that the surrender was for cause, and thus that Applicant’s answer to a liability question (Liability Question 2) was false. RD, at 16; Tr. 40; GX 2, at 1. The ALJ found, and the Agency agrees, that Applicant knew or should have known that his answer was incorrect because the Form DEA–104 that he signed on October 7, 2020, clearly stated in multiple places that he was surrendering his registration for cause and because Applicant surrendered his registration amidst what he knew or should have known, by his own testimony and submitted evidence, was a criminal investigation against him. RD, at 16–18; Tr. 40, 155, 162–63, 170, 194; GX 2, at 1; RX 6.18 Regarding any 18 The RD also noted, and the Agency agrees, that Applicant’s own testimony establishes that he knew or should have known during the application process that he had surrendered his previous registration for cause because Applicant recognized a potential issue for himself concerning Liability Question 2; he testified that he called DEA to ask for a copy of the Form DEA–104 and even searched the form on Google in an attempt to clarify its terminology, suggesting that Applicant at the very least suspected that he may have surrendered his previous registration for cause. RD, at 18; Tr. 163, 173, 194–196, 202, 255–256, 269. The RD adds, ‘‘[e]ven if it was merely a suspicion at that point, [Applicant] could have easily asked DEA whether he had surrendered for cause, but he did not do so.’’ RD, at 18; RX 6. ‘‘[A]n applicant has an obligation to clarify any confusion[] if he has an opportunity to speak with DEA.’’ RD, at 16 (citing Ester Mark, M.D., 88 FR 7,106, 7,108 n.8 (2023)). Here, ‘‘when E:\FR\FM\28JNN1.SGM Continued 28JNN1 54064 Federal Register / Vol. 89, No. 125 / Friday, June 28, 2024 / Notices purported confusion on Applicant’s part, the ALJ found, and the Agency agrees, that ‘‘Applicant had ample opportunity to ask questions and clarify his confusion’’ but did not do so; moreover, as discussed above, misunderstanding a liability question is not a defense when the Government has established that the applicant knew or should have known that his answer was false.19 RD, at 19.20 Having read and analyzed the record, the Agency finds from clear, unequivocal, convincing, and unrebutted evidence that Applicant’s application for a new registration, submitted on August 12, 2022, contains a material falsification because Applicant gave a false answer to a liability question when he knew or should have known that his answer was false. Moreover, even if it is true that Applicant’s false answer to Liability Question 2 was actually caused by confusion or was otherwise inadvertent, it is inconsequential under the facts of this case, as Applicant failed to take reasonable care to ensure he answered the liability questions honestly. See Reyes, 83 FR 61680. Accordingly, the Agency finds that the Government has established a prima facie case for denial of Applicant’s application pursuant to 21 U.S.C. 824(a)(1). khammond on DSKJM1Z7X2PROD with NOTICES III. Sanction Where, as here, the Government has established sufficient grounds to deny Applicant’s application, the burden shifts to Applicant to show why he can be entrusted with the responsibility carried by a registration. Garret Howard Smith, M.D., 83 FR 18882, 18910 (2018). When a respondent (Applicant) has committed acts inconsistent with the presented with a clear opportunity to resolve his confusion’’ via his email exchange with the DI, Applicant failed to initiate clarification. RD, at 18; RX 6. As such, the ALJ also found, and the Agency agrees, that Applicant’s arguments regarding DI’s ‘‘minimalist responsive email’’ are unpersuasive. RD, at 18–19. 19 The ALJ also noted that Applicant’s claims of confusion themselves were contradictory and implausible, such as how Applicant claimed to be confused about Liability Question 2 but did not seek clarification when given a clear opportunity, and how Applicant claimed to have incorrectly thought that he had surrendered his previous registration ‘‘voluntarily’’ (purportedly as opposed to ‘‘for cause’’), while also arguing that he had surrendered his previous registration under duress. RD, at 19–20; see also id. at 21. 20 Applicant also argues that his application should be granted due to the benefit to society of allowing him to continue prescribing controlled substances as part of his medical practice. RD, at 22; Tr. 206–208, 214. As noted by the RD, ‘‘such ‘community impact’ evidence has been rejected as irrelevant by the Agency.’’ RD, at 22 (citing Heavenly Care Pharmacy, 85 FR 53402, 53420 (2020); Linda Sue Cheek, M.D., 76 FR 66972, 66972–73 (2011)). VerDate Sep<11>2014 19:25 Jun 27, 2024 Jkt 262001 public interest, he must both accept responsibility and demonstrate that he has undertaken corrective measures. Holiday CVS, L.L.C., dba CVS Pharmacy Nos 219 and 5195, 77 FR 62316, 62339 (2012) (internal quotations omitted). Trust is necessarily a fact-dependent determination based on individual circumstances; therefore, the Agency looks at factors such as the acceptance of responsibility, the credibility of that acceptance as it relates to the probability of repeat violations or behavior, the nature of the misconduct that forms the basis for sanction, and the Agency’s interest in deterring similar acts. See, e.g., Robert Wayne Locklear, M.D., 86 FR 33738, 33746 (2021). In the current matter, the Agency agrees with the ALJ that Applicant failed to unequivocally accept responsibility. RD, at 23. While Applicant said multiple times that he accepted responsibility (Tr. 208–09, 254), ‘‘his other testimony made it very clear that he had a series of reasons why he did not, in fact, think he was to blame,’’ such as that DEA did not give him proper guidance, he surrendered his registration under duress, and his false statement did not matter anyway. RD, at 23; Tr. 161, 172–73, 194–96, 202, 204, 258, 261. As noted by the ALJ, ‘‘Agency precedent requires that a respondent [ ] unequivocally accept responsibility for all of his misconduct.’’ RD, at 22 (citing Jeffrey Stein, M.D., 84 FR 46968, 46972–73 (2019); Mohammed Asgar, M.D., 83 FR 29569, 29572 (2018); Lon F. Alexander, 82 FR 49704, 49728 (2017)). Here, Applicant’s statements went beyond explaining his actions and were instead ‘‘an attempt to shift blame that undermines an unequivocal acceptance of responsibility.’’ RD, at 23.21 In addition to acceptance of responsibility, the Agency considers both specific and general deterrence when determining an appropriate 21 When a respondent (Applicant) fails to make the threshold showing of acceptance of responsibility, the Agency need not address the respondent’s remedial measures. Ajay S. Ahuja, M.D., 84 FR 5479, 5498 n.33 (2019) (citing Jones Total Health Care Pharmacy, L.L.C. & SND Health Care, L.L.C., 81 FR 79188, 79202–03 (2016)); Daniel A. Glick, D.D.S., 80 FR 74800, 74801, 74,810 (2015). Even so, in the current matter, Applicant offered no testimony or evidence of any remedial measures, other than stating that he now understands the meaning of ‘‘for cause’’ and will not make the same mistake again. RD, at 24; Tr. 203. Because Applicant has not offered evidence of any additional measures that he has taken to ensure that he will correctly answer any liability questions in the future—such as promising to clarify any future misunderstandings before submitting a signed document to a federal agency—Applicant has not sufficiently demonstrated that he is ready to be entrusted with the responsibility of registration. RD, at 24. PO 00000 Frm 00127 Fmt 4703 Sfmt 4703 sanction. Daniel A. Glick, D.D.S., 80 FR 74810. In this case, the Agency agrees with the ALJ that denial of Applicant’s application would deter Applicant and the general registrant community from failing to meet their obligations to provide accurate and truthful responses on an application for a DEA registration and to seek clarification when needed prior to submitting an application. Kareem Hubbard, M.D., 87 FR 21156, 21164 (2022); RD, at 25. As noted by the ALJ, ‘‘[m]aking a false statement on the registration application goes ‘to the heart of the CSA.’’’ RD, at 24 (quoting Crosby Pharmacy and Wellness, 87 FR 21,212, 21,215 (2022)). ‘‘[T]he liability questions are critical to the closed system of distribution, as the Agency must rely upon the candor of its applicants and registrants.’’ Id. (citing The Lawsons, Inc., 72 FR 74334, 74377 (2007); Kuen H. Chen, M.D., 58 FR 65401, 65402 (1993); Bobby Watts, M.D., 58 FR 46995, 46995 (1993)). And even if Applicant’s claim that his incident was inadvertent and the result of a misunderstanding was true, ‘‘[Applicant’s] actions were at the very least negligent and careless’’; he had clear reasons to know that he had surrendered his previous registration for cause and had various opportunities– which he did not take—to clarify any lingering confusion that may have remained. RD, at 24–25. In sum, Applicant has not offered any credible evidence on the record to rebut the Government’s case for denial of his application and Applicant has not demonstrated that he can be entrusted with the responsibility of registration. RD, at 26. Accordingly, the Agency will order that Applicant’s application for registration be denied. Order Pursuant to 28 CFR 0.100(b) and the authority vested in me by 21 U.S.C. 823(g)(1), I hereby deny the pending application for a Certificate of Registration, Control Number W22106685C, submitted by Arash M. Padidar, M.D., as well as any other pending application of Arash M. Padidar, M.D., for additional registration in California. This Order is effective July 29, 2024. Signing Authority This document of the Drug Enforcement Administration was signed on June 21, 2024, by Administrator Anne Milgram. That document with the original signature and date is maintained by DEA. For administrative purposes only, and in compliance with requirements of the Office of the Federal Register, the undersigned DEA Federal E:\FR\FM\28JNN1.SGM 28JNN1 Federal Register / Vol. 89, No. 125 / Friday, June 28, 2024 / Notices Register Liaison Officer has been authorized to sign and submit the document in electronic format for publication, as an official document of DEA. This administrative process in no way alters the legal effect of this document upon publication in the Federal Register. Heather Achbach, Federal Register Liaison Officer, Drug Enforcement Administration. [FR Doc. 2024–14201 Filed 6–27–24; 8:45 am] BILLING CODE 4410–09–P DEPARTMENT OF JUSTICE [OMB Number 1122–0007] Agency Information Collection Activities; Proposed eCollection eComments Requested; Extension of a Previously Approved Collection; SemiAnnual Progress Report for the Legal Assistance for Victims Program (LAV Program) Office on Violence Against Women, Department of Justice. ACTION: 60-Day notice. AGENCY: The Office on Violence Against Women, Department of Justice (DOJ), will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995. DATES: Comments are encouraged and will be accepted for 60 days until August 27, 2024. FOR FURTHER INFORMATION CONTACT: If you have additional comments especially on the estimated public burden or associated response time, suggestions, or need a copy of the proposed information collection instrument with instructions or additional information, please contact Catherine Poston, Office on Violence Against Women, at 202–514–5430 or Catherine.poston@usdoj.gov. SUPPLEMENTARY INFORMATION: Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points: —Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the Bureau of Justice khammond on DSKJM1Z7X2PROD with NOTICES SUMMARY: VerDate Sep<11>2014 19:25 Jun 27, 2024 Jkt 262001 Statistics, including whether the information will have practical utility; —Evaluate the accuracy of the agency’s estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; —Evaluate whether and if so how the quality, utility, and clarity of the information to be collected can be enhanced; and —Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses. Abstract: Authorized by 34 U.S.C. 20121, the Legal Assistance for Victims (LAV) Grant Program is intended to increase the availability of civil and criminal legal assistance needed to effectively aid victims (ages 11 and older) of domestic violence, dating violence, sexual assault, and stalking by providing funds for comprehensive direct legal services to victims in legal matters relating to or arising out of that abuse or violence. ‘‘Legal assistance’’ includes assistance to victims of domestic violence, dating violence, sexual assault, and stalking in: (a) family, tribal, territorial, immigration, employment, administrative agency, housing matters, campus administrative, or protection or stay away order proceedings, and other similar matters; (b) criminal justice investigations, prosecutions, and post-trial matters (including sentencing, parole, and probation) that impact the victim’s safety and privacy; (c) alternative dispute resolution, restorative practices, or other processes intended to promote victim safety, privacy, and autonomy; and (d) post-conviction relief proceedings in state, local, Tribal, or territorial court where the conviction of a victim is related to or arising from domestic violence, dating violence, sexual assault, stalking, or sex trafficking. 34 U.S.C. 12291(a)(24)(C) and (D). Overview of This Information Collection 1. Type of Information Collection: Extension of a previously approved collection. 2. The Title of the Form/Collection: Semi-Annual Progress Report for PO 00000 Frm 00128 Fmt 4703 Sfmt 4703 54065 Grantees of the Legal Assistance for Victims Grant Program. 3. The agency form number, if any, and the applicable component of the Department sponsoring the collection: 1122–0007. Affected public who will be asked or required to respond, as well as the obligation to respond: The affected public includes the approximately 200 grantees of the LAV Program whose eligibility is determined by statute. The LAV Program awards grants to law school legal clinics, legal aid or legal services programs, domestic violence victims shelters, bar associations, sexual assault programs, private nonprofit entities, and Indian tribal governments. The obligation to respond is required to obtain/retain a benefit. 4. An estimate of the total number of respondents and the amount of time estimated for an average respondent to respond: It is estimated that it will take the approximately 200 respondents (LAV Program grantees) approximately one hour to complete a semi-annual progress report. The semi-annual progress report is divided into sections that pertain to the different types of activities in which grantees may engage. An LAV Program grantee will only be required to complete the sections of the form that pertain to its own specific activities. 5. An estimate of the total annual burden (in hours) associated with the collection: It is estimated that it will take the approximately 200 respondents (LAV Program grantees) approximately one hour to complete a semi-annual progress report. The semi-annual progress report is divided into sections that pertain to the different types of activities in which grantees may engage. An LAV grantee will only be required to complete the sections of the form that pertain to its own specific activities. 6. The total annual hour burden to complete the data collection forms is 400 hours, that is 200 grantees completing a form twice a year with an estimated completion time for the form being one hour. 7. An estimate of the total annual cost burden associated with the collection, if applicable: The annualized costs to the Federal Government resulting from the OVW staff review of the progress reports submitted by grantees are estimated to be $22,400. 8. E:\FR\FM\28JNN1.SGM 28JNN1

Agencies

[Federal Register Volume 89, Number 125 (Friday, June 28, 2024)]
[Notices]
[Pages 54061-54065]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-14201]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration

[Docket No. 23-14]


Arash M. Padidar, M.D.; Decision and Order

    On December 5, 2022, the Drug Enforcement Administration (DEA or 
Government) issued an Order to Show Cause (OSC) to Arash M. Padidar, 
M.D. (Applicant) of San Jose, California. OSC, at 1, 3. The OSC 
proposed the denial of Applicant's application for a DEA Certificate of 
Registration (COR or registration), Control No. W22106685C, alleging 
that Applicant materially falsified his application for registration. 
Id. at 1 (citing 21 U.S.C. 824(a)(1)).
    A hearing was held before DEA Administrative Law Judge Teresa A. 
Wallbaum (the ALJ), who on May 24, 2023, issued her Recommended 
Rulings, Findings of Fact, Conclusions of Law, and Decision (RD). The 
RD recommended denial of Applicant's application for registration. RD, 
at 26. Applicant did not file exceptions to the RD. Having reviewed the 
entire record, the Agency adopts and hereby incorporates by reference 
the entirety of the ALJ's rulings, credibility findings,\1\ findings of 
fact, conclusions of law, sanctions analysis, and recommended sanction 
as found in the RD and as summarized herein.
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    \1\ The Agency adopts the ALJ's summary of each of the 
witnesses' testimonies as well as the ALJ's assessment of each of 
the witnesses' credibility. See RD, at 3-14. The Agency agrees with 
the ALJ that the Diversion Investigator (DI) ``presented as an 
objective witness, with no motive to fabricate''; however, as noted 
by the ALJ, the DI was unable to recall some details regarding the 
relevant events and at times gave inconsistent answers. The ALJ 
found, and the Agency agrees, that the DI ``was consistent on key 
issues and her core testimony was corroborated by the documentary 
evidence and, in many respects, by [Applicant] himself.'' Id. at 4-
5. Accordingly, the Agency agrees with the ALJ that the DI was 
credible and her testimony warrants full weight on the key, 
corroborated issues. Id. at 5. Regarding Applicant, the ALJ found, 
and the Agency agrees, that Applicant's testimony was acceptable to 
the extent that it was corroborated by the DI's testimony and 
documentary evidence; however, the ALJ also found, and the Agency 
agrees, that Applicant's testimony as to his mental state during the 
relevant events was self-serving and internally inconsistent. Id. at 
7. Specifically, the ALJ noted that Applicant's recollection of 
events tended to be either extremely clear or extremely murky 
depending on which better suited a particular purpose, and 
Applicant's various explanations for his false application answer 
were inconsistent to each other as well as inconsistent to 
Applicant's other statements and actions. Id. at 7-8. Accordingly, 
the Agency agrees with the ALJ that Applicant's testimony that is 
consistent with the DI's testimony or documentary evidence warrants 
acceptance, while Applicant's testimony regarding his mental state 
during the relevant events warrants only limited weight. Id. at 8.
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I. Findings of Fact

Search of Applicant's Residence and Surrender of Applicant's Previous 
COR

    On October 7, 2020, at approximately 7:00 a.m., DEA and local law 
enforcement executed a search of Applicant's residence based on a 
criminal search warrant.\2\ RD, at 8; Tr.

[[Page 54062]]

30, 93, 145.\3\ According to Applicant, law enforcement entered the 
house, handcuffed both Applicant, who was unclothed, and his wife, and 
took Applicant downstairs to the kitchen. RD, at 8; Tr. 148-49, 152. 
According to Applicant, he remained in the kitchen with an unarmed 
Diversion Program Manager (DPM), mostly alone, until 1:00 p.m. RD, at 
9; Tr. 150-52. Applicant testified that the DPM showed him the search 
warrant while other law enforcement officers began searching the house. 
RD, at 9; Tr. 155.
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    \2\ Applicant testified that law enforcement began investigating 
him after a former employee alleged Applicant was writing codeine 
prescriptions for himself; Applicant testified that he had been 
addicted to codeine, which he took to treat pain from knee injuries, 
but denied ever selling codeine to third parties. RD, at 6; Tr. 145, 
211-13, 215. Applicant asserted that the execution of the search 
warrant was a ``wake-up call'' and the next day he voluntarily 
entered a treatment program. RD, at 6; Tr. 212-13.
    \3\ Applicant testified that his memory of the execution of the 
search warrant ``was extremely vivid,'' and the experience was 
``scary''; however, his memory of the interview was weaker and 
because he was so scared, he ``couldn't even think straight.'' RD, 
at 6; Tr. 145, 148, 161, 164, 257, 260. Applicant testified that the 
police had flashlights, wore military clothing, and had weapons with 
lasers attached. Applicant also testified that he saw two police 
cars outside as well as a SWAT van and estimated that there were 
eighteen officers on his property (including outside), with the 
majority of the officers carrying weapons. RD, at 8; Tr. 147, 149-
50.
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    Testifying for the Government, the Diversion Investigator (DI) 
recalled that she waited in her car when law enforcement first entered 
the house but that she entered and began participating in the search at 
around 7:20. RD, at 9, 18; Tr. 30-31, 66-67, 75-78.\4\ Sometime between 
1:00 p.m. and 2:00 p.m., DEA personnel spoke with Applicant in the 
living room; there were five DEA personnel present, including the DI, a 
second Diversion Investigator (DI2), a Group Supervisor (GS), the DPM, 
and a Task Force Officer (TFO). RD, at 10; Tr. 31-32, 61, 88, 151-53, 
156, 165. DI2 and the TFO conducted the interview of Applicant. RD, at 
10; Tr. 32-33, 162. According to the DI, DI2 presented Applicant with a 
Form DEA-104, which is titled ``SURRENDER FOR CAUSE OF DEA CERTIFICATE 
OF REGISTRATION,'' (emphasis in original) and allows registrants to 
surrender their DEA registration for cause and immediately terminates 
their registration. RD, at 10-11; Tr. 34, 36; Government Exhibit (GX) 
2, at 1.\5\ Applicant had been given his Miranda rights and was not in 
handcuffs during the interview. RD, at 11; Tr. 81, 98-99, 162-63, 170, 
194. The DI testified that it appeared to her that Applicant ``read the 
form a little bit and then eventually signed the form''; she did not 
recall Applicant asking any questions or refusing to sign the form, nor 
did she recall DI2 explaining the word ``cause'' to Applicant. RD, at 
11; Tr. 35, 38, 69, 78, 80, 82, 85, 100. According to Applicant, he was 
told repeatedly that the surrender was voluntary and he ``could apply 
again.'' RD, at 10 n.8; Tr. 164. According to Applicant, he had the 
opportunity to read the form but did not do so, though he confirmed 
looking over the form ``quickly''; Applicant testified, ``all I 
remember it was such a blur because my hands were shaking. I looked 
where my signature area [was]. I signed it and they asked me to date 
it.'' RD, at 11; Tr. 163-165, 262. Nonetheless, Applicant acknowledged 
that he did sign the form and did not challenge the surrender of his 
registration as being under duress. RD, at 10 n.8; Tr. 161, 258, 261. 
DEA did not leave Applicant a copy of the Form DEA-104 (consistent with 
DEA practice) nor did DEA explain the meaning of ``for cause'' to 
Applicant. RD, at 11; Tr. 42, 69-70, 83, 85, 164. According to the DI, 
at the end of the interview, the DPM and DI2 both provided their 
business cards to Applicant, and then the DI and the others moved on to 
execute the search warrant at Applicant's clinic. RD, at 11; Tr. 41-
42.\6\
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    \4\ By the time the DI entered the house, she saw two police 
vehicles and was not sure how many officers were surrounding the 
house or inside the house. RD, at 9; Tr. 75-77. The DI testified 
that some of the officers did have weapons but she could not recall 
if they were holstered. RD, at 9; Tr. 75-76.
    \5\ Paragraph one of the Form DEA-104 signed by Applicant on 
October 7, 2020, reads: ``In view of my alleged failure to comply 
with the Federal requirements pertaining to controlled substances or 
listed 1 chemicals and as an indication of my good faith in desiring 
to remedy any incorrect or unlawful practices on my part, I hereby 
surrender for cause my Drug Enforcement Administration (DEA) 
Certificate of Registration''; paragraph two reads: ``I understand 
that submission of this document to DEA, including any employee of 
DEA, shall result in the immediate termination of my registration.'' 
RD, at 11; Tr. 40-41; GX 2, at 1.
    \6\ Applicant initially testified that only the DPM provided a 
business card, but later acknowledged that he also had DI2's 
``name'' from the search; Applicant also emailed DI2 directly at her 
email address, suggesting that he had her business card. RD, at 11-
12; Tr. 163, 196; Respondent (Applicant) Exhibit (RX) 6.
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Applicant's August 12, 2022 Application

    According to Applicant, when he read the application, he ``saw 
certain questions that became very concerning, [ ] especially the same 
question that we're here for'' (referring to Liability Question 2) \7\ 
and he tried to obtain a copy of the Form DEA-104 to resolve his 
concerns. RD, at 12; Tr. 172-73, 200. Applicant testified that he 
called DEA multiple times to get the form but was never able to reach 
anyone.\8\ Applicant also tried to find the form online (both before 
and after completing the application) and found what he thought was an 
older form with the title ``voluntary surrender.'' RD, at 12; Tr. 173-
74, 176-78. On August 10, 2022, Applicant emailed DI2, who forwarded 
the email to the DI. RD, at 12; Tr. 45. Applicant's email read: ``It 
has been almost two years since you asked me to surrender my DEA [COR] 
and c[a]me to my office. I would like to ask if you have concluded your 
investigation or closed it? Any word you can give me would be 
appreciated.'' RD, at 12; RX 6.\9\ On August 11, 2022, the DI responded 
\10\ with the following email: ``Please apply for a new DEA 
Registration. A new registration is required because the previous 
registration was surrendered and is no longer valid. The application 
forms can be found at Registration (usdoj.gov) under `New Application.' 
'' RD, at 12-13; Tr. 45, 265; RX 6. Applicant testified that he emailed 
DEA before filling out his application because he ``wanted to clarify, 
and get copies of what [he] had signed'' but he admitted that he did 
not ask whether his registration had been surrendered for cause nor did 
he ask for a copy of his signed Form DEA-104. RD, at 13; Tr. 266-67; RX 
6.\11\ According to Applicant, he interpreted the DI's reply email as 
an ``invitation'' to apply and noted that it only said ``surrendered,'' 
not ``surrendered for cause.'' RD, at 13; Tr. 197, 203; RX 6.
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    \7\ The application contains four ``liability questions,'' which 
require a ``yes'' or ``no'' answer and ask an applicant whether he: 
(1) has a criminal background; (2) has previously surrendered a 
registration for cause; (3) has any issues with his state licenses; 
or (4) has any affiliations with any entities or corporations that 
have criminal histories. RD, at 13; Tr. 46-47. If an applicant 
answers ``yes'' to any of these questions, the application provides 
a box that allows the applicant to explain his answer. RD, at 13; 
Tr. 47; GX 3, at 1. If an applicant has any other questions, he may 
contact the registration support section at the phone number or 
email address provided on the DEA Diversion website homepage. RD, at 
13; Tr. 47-48.
    \8\ According to the DI, the first time she knew of Applicant 
attempting to contact DEA was July 2022 when Applicant emailed the 
DPM. RD, at 12; Tr. 43-45. When asked whether anyone from DEA 
replied to Applicant's email, the DI stated ``[n]ot that I know 
of.'' Tr. 44-45.
    \9\ Applicant's exhibit does not include the date of the email, 
but Applicant testified that he sent the email in August before 
submitting his application. RD, at 12; Tr. 265.
    \10\ The DI responded to Applicant's email using the general San 
Jose Resident Office email. RD, at 12; Tr. 45; RX 6.
    \11\ Applicant also admitted that he never reached out to DEA to 
challenge the surrender of his COR. RD, at 13; Tr. 264-67.
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    On August 12, 2022, Applicant electronically signed and submitted 
an application for a new DEA registration through the DEA website. RD, 
at 13; Tr. 51-53; GX 3.\12\ Liability Question 2 on

[[Page 54063]]

the application asks: ``Has the applicant ever surrendered for cause or 
had a federal controlled substance registration revoked, suspended, 
restricted or denied or is any such action pending? '' RD, at 13; Tr. 
53; GX 3, at 1. On his application, Applicant answered Liability 
Question 2 with ``N'' for ``no.'' RD, at 13; Tr. 53; GX 3, at 1. 
Additionally, the bottom of the application reads: ``By typing my full 
name in the space below, I hereby certify the foregoing information 
furnished on this electronic DEA application is true and correct and 
understand that this constitutes an electronic signature,'' and 
Applicant's name, as an e-signature, is at the bottom of his 
application. RD, at 13; Tr. 54; GX 3, at 2.
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    \12\ The Registration Specialist assigned to review Applicant's 
application knew that Applicant had previously surrendered his 
registration for cause, so she informed the GS of the application 
and the GS assigned the investigation to the DI. RD, at 13; Tr. 48, 
50.
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    Here, the ALJ found, and the Agency agrees, that ``it is beyond 
dispute that [Applicant] surrendered his registration for cause and 
[thus] falsely answered Liability Question 2 on his application for a 
new COR.'' RD, at 14.\13\ Regarding his false answer, Applicant 
asserted that he did not intentionally submit a false statement and 
that it was instead a misunderstanding resulting from multiple factors. 
Tr. 209, 254. According to Applicant, he misunderstood because: (1) DEA 
did not provide him with a copy of the Form DEA-104 and he could not 
reach anyone by phone to ask about it so he was going by memory (Tr. 
163, 172-73, 194-96, 202, 255-56); (2) he searched on Google and found 
a form stating that surrender was voluntary (Tr. 173, 177-78, 268-69); 
(3) he considered voluntary surrender ``for cause'' to be an oxymoron, 
problematic, and to not make sense (Tr. 201, 255, 256); (4) his 
experience from medical disciplinary boards led him to believe that 
voluntary surrender would not be ``for cause'' (Tr. 177-178, 201-202, 
272-73); \14\ (5) he thought that DEA would already have the 
information about his surrender because DEA was the body that he 
surrendered to (Tr. 204); (6) English is his second language so he 
sometimes interprets things incorrectly (Tr. 209); and (7) he 
surrendered his registration under duress after an excessive search and 
had he obtained advice, he would not have surrendered (Tr. 161, 258, 
261). RD, at 6. Applicant asserted that he did not understand that when 
he surrendered his registration he was surrendering for cause and 
testified, ``[u]ntil [now], I would have still answered it no. But now 
that I understand what is meant in your world, I would answer very 
differently.'' Id.; Tr. 203, 211.\15\
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    \13\ Regarding the phrase ``for cause,'' as noted by the ALJ, 
``[w]hile the phrase `for cause' is not defined by federal 
regulations, Agency decisions have held that a [registrant] 
surrendered for cause when he voluntarily surrendered in the wake of 
allegations of misconduct or after the execution of a criminal 
search warrant.'' RD, at 16 (citing JM Pharmacy Grp., Inc., 80 FR 
28667, 28668-69 (2015); Shannon L. Gallentine, D.P.M., 76 FR 45864, 
45866 (2011)). ``Moreover, in this case, the Form DEA-104 
[Applicant] signed specifically use[d] the phrase `for cause.''' 
Id.; GX 2.
    \14\ Applicant testified that in the ``medical staff world,'' 
``for cause'' means ``an individual has caused some act . . . that 
they shouldn't have,'' and the disciplinary authority ``would revoke 
that privilege for that cause.'' RD, at 6 n.5; Tr. 201. Applicant 
testified, ``[i]f a physician wants to voluntarily surrender their 
privilege just to leave, and it wasn't being revoked for a reason, 
that would be a voluntary surrender.'' Id.
    \15\ Applicant also noted that he cannot practice medicine 
without a registration and that his practice provides an important 
service to the community. RD, at 7; Tr. 206-208, 214.
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II. Discussion

    The Administrator is authorized to revoke a registration or deny an 
application if the registrant/applicant has materially falsified an 
application for registration. 21 U.S.C. 824(a)(1); Farmacia Yani, 80 FR 
29053, 29058 (2015) (``[J]ust as materially falsifying an application 
provides a basis for revoking an existing registration without proof of 
any other misconduct . . . it also provides an independent and adequate 
ground for denying an application.'').\16\ Agency decisions have 
repeatedly held that false responses to the liability questions on an 
application for registration are material. Kevin J. Dobi, APRN, 87 FR 
38184, 38184 (2022) (collecting cases).\17\
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    \16\ See also RD, at 14 n.12 (explaining that the grounds for 
revocation of a registration under 21 U.S.C. 824(a) can also be 
grounds for denying an application for registration under 21 U.S.C. 
823).
    \17\ Even so, the Agency agrees with the ALJ's conclusion 
rejecting Applicant's arguments that his false statement was not 
material. See RD, at 20-21. Applicant argues that his false 
statement was not material because in reviewing his application, the 
Agency would have checked his history with DEA anyway, and the 
Registration Specialist who processed Applicant's application knew 
that Applicant had surrendered his previous registration. RD, at 20. 
However, as noted by the ALJ, the standard regarding materiality 
``does not require proof that the Government actually relied on or 
believed the false statement; it is sufficient that the false 
statement could have influenced the decisionmaker.'' Id. at 20-21. 
Further, ``the mere fact that someone caught [Applicant's] 
misstatement does not make it immaterial.'' Id. at 21; see Narciso 
A. Reyes, M.D., 83 FR 61678, 61680 (2018).
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    Regarding proof of material falsification, Agency precedent has 
found that the Government must prove an allegation of material 
falsification ``by evidence that is clear, unequivocal, and 
convincing.'' Richard J. Settles, D.O., 81 FR 64940, 64946 (2016) 
(quoting Kungys v. United States, 485 U.S. 759, 772 (1998)). Agency 
precedent has also established that the Government need not show that 
an applicant actually knew that his response to a liability question 
was false. Rather, it is sufficient that the Government shows that an 
applicant should have known that his response to a liability question 
was false. Reyes, 83 FR 61680 (citing Samuel S. Jackson, D.D.S., 72 FR 
23848, 23852 (2007)). When the Government has made such a showing, 
i.e., that an applicant should have known that his response to a 
liability question was false, an applicant's claim that he actually 
misunderstood a liability question, or otherwise inadvertently provided 
a false answer to a liability question, is not a defense. Id. (citing 
Alvin Darby, M.D., 75 FR 26993, 26999 (2010)). Indeed, the applicant 
bears the responsibility to carefully read the liability questions and 
to answer them honestly; ``[a]llegedly misunderstanding or 
misinterpreting liability questions does not relieve the applicant of 
this responsibility.'' Zelideh I. Cordova-Velazco, M.D., 83 FR 62902, 
62906 (2018) (internal citations omitted).
    Here, the ALJ found, and the Agency agrees, that the Government has 
met its burden of proving by clear, unequivocal, and convincing 
evidence that Applicant surrendered his previous registration for 
cause, that Applicant should have known that the surrender was for 
cause, and thus that Applicant's answer to a liability question 
(Liability Question 2) was false. RD, at 16; Tr. 40; GX 2, at 1. The 
ALJ found, and the Agency agrees, that Applicant knew or should have 
known that his answer was incorrect because the Form DEA-104 that he 
signed on October 7, 2020, clearly stated in multiple places that he 
was surrendering his registration for cause and because Applicant 
surrendered his registration amidst what he knew or should have known, 
by his own testimony and submitted evidence, was a criminal 
investigation against him. RD, at 16-18; Tr. 40, 155, 162-63, 170, 194; 
GX 2, at 1; RX 6.\18\ Regarding any

[[Page 54064]]

purported confusion on Applicant's part, the ALJ found, and the Agency 
agrees, that ``Applicant had ample opportunity to ask questions and 
clarify his confusion'' but did not do so; moreover, as discussed 
above, misunderstanding a liability question is not a defense when the 
Government has established that the applicant knew or should have known 
that his answer was false.\19\ RD, at 19.\20\
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    \18\ The RD also noted, and the Agency agrees, that Applicant's 
own testimony establishes that he knew or should have known during 
the application process that he had surrendered his previous 
registration for cause because Applicant recognized a potential 
issue for himself concerning Liability Question 2; he testified that 
he called DEA to ask for a copy of the Form DEA-104 and even 
searched the form on Google in an attempt to clarify its 
terminology, suggesting that Applicant at the very least suspected 
that he may have surrendered his previous registration for cause. 
RD, at 18; Tr. 163, 173, 194-196, 202, 255-256, 269. The RD adds, 
``[e]ven if it was merely a suspicion at that point, [Applicant] 
could have easily asked DEA whether he had surrendered for cause, 
but he did not do so.'' RD, at 18; RX 6. ``[A]n applicant has an 
obligation to clarify any confusion[] if he has an opportunity to 
speak with DEA.'' RD, at 16 (citing Ester Mark, M.D., 88 FR 7,106, 
7,108 n.8 (2023)). Here, ``when presented with a clear opportunity 
to resolve his confusion'' via his email exchange with the DI, 
Applicant failed to initiate clarification. RD, at 18; RX 6. As 
such, the ALJ also found, and the Agency agrees, that Applicant's 
arguments regarding DI's ``minimalist responsive email'' are 
unpersuasive. RD, at 18-19.
    \19\ The ALJ also noted that Applicant's claims of confusion 
themselves were contradictory and implausible, such as how Applicant 
claimed to be confused about Liability Question 2 but did not seek 
clarification when given a clear opportunity, and how Applicant 
claimed to have incorrectly thought that he had surrendered his 
previous registration ``voluntarily'' (purportedly as opposed to 
``for cause''), while also arguing that he had surrendered his 
previous registration under duress. RD, at 19-20; see also id. at 
21.
    \20\ Applicant also argues that his application should be 
granted due to the benefit to society of allowing him to continue 
prescribing controlled substances as part of his medical practice. 
RD, at 22; Tr. 206-208, 214. As noted by the RD, ``such `community 
impact' evidence has been rejected as irrelevant by the Agency.'' 
RD, at 22 (citing Heavenly Care Pharmacy, 85 FR 53402, 53420 (2020); 
Linda Sue Cheek, M.D., 76 FR 66972, 66972-73 (2011)).
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    Having read and analyzed the record, the Agency finds from clear, 
unequivocal, convincing, and unrebutted evidence that Applicant's 
application for a new registration, submitted on August 12, 2022, 
contains a material falsification because Applicant gave a false answer 
to a liability question when he knew or should have known that his 
answer was false. Moreover, even if it is true that Applicant's false 
answer to Liability Question 2 was actually caused by confusion or was 
otherwise inadvertent, it is inconsequential under the facts of this 
case, as Applicant failed to take reasonable care to ensure he answered 
the liability questions honestly. See Reyes, 83 FR 61680. Accordingly, 
the Agency finds that the Government has established a prima facie case 
for denial of Applicant's application pursuant to 21 U.S.C. 824(a)(1).

III. Sanction

    Where, as here, the Government has established sufficient grounds 
to deny Applicant's application, the burden shifts to Applicant to show 
why he can be entrusted with the responsibility carried by a 
registration. Garret Howard Smith, M.D., 83 FR 18882, 18910 (2018). 
When a respondent (Applicant) has committed acts inconsistent with the 
public interest, he must both accept responsibility and demonstrate 
that he has undertaken corrective measures. Holiday CVS, L.L.C., dba 
CVS Pharmacy Nos 219 and 5195, 77 FR 62316, 62339 (2012) (internal 
quotations omitted). Trust is necessarily a fact-dependent 
determination based on individual circumstances; therefore, the Agency 
looks at factors such as the acceptance of responsibility, the 
credibility of that acceptance as it relates to the probability of 
repeat violations or behavior, the nature of the misconduct that forms 
the basis for sanction, and the Agency's interest in deterring similar 
acts. See, e.g., Robert Wayne Locklear, M.D., 86 FR 33738, 33746 
(2021).
    In the current matter, the Agency agrees with the ALJ that 
Applicant failed to unequivocally accept responsibility. RD, at 23. 
While Applicant said multiple times that he accepted responsibility 
(Tr. 208-09, 254), ``his other testimony made it very clear that he had 
a series of reasons why he did not, in fact, think he was to blame,'' 
such as that DEA did not give him proper guidance, he surrendered his 
registration under duress, and his false statement did not matter 
anyway. RD, at 23; Tr. 161, 172-73, 194-96, 202, 204, 258, 261. As 
noted by the ALJ, ``Agency precedent requires that a respondent [ ] 
unequivocally accept responsibility for all of his misconduct.'' RD, at 
22 (citing Jeffrey Stein, M.D., 84 FR 46968, 46972-73 (2019); Mohammed 
Asgar, M.D., 83 FR 29569, 29572 (2018); Lon F. Alexander, 82 FR 49704, 
49728 (2017)). Here, Applicant's statements went beyond explaining his 
actions and were instead ``an attempt to shift blame that undermines an 
unequivocal acceptance of responsibility.'' RD, at 23.\21\
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    \21\ When a respondent (Applicant) fails to make the threshold 
showing of acceptance of responsibility, the Agency need not address 
the respondent's remedial measures. Ajay S. Ahuja, M.D., 84 FR 5479, 
5498 n.33 (2019) (citing Jones Total Health Care Pharmacy, L.L.C. & 
SND Health Care, L.L.C., 81 FR 79188, 79202-03 (2016)); Daniel A. 
Glick, D.D.S., 80 FR 74800, 74801, 74,810 (2015). Even so, in the 
current matter, Applicant offered no testimony or evidence of any 
remedial measures, other than stating that he now understands the 
meaning of ``for cause'' and will not make the same mistake again. 
RD, at 24; Tr. 203. Because Applicant has not offered evidence of 
any additional measures that he has taken to ensure that he will 
correctly answer any liability questions in the future--such as 
promising to clarify any future misunderstandings before submitting 
a signed document to a federal agency--Applicant has not 
sufficiently demonstrated that he is ready to be entrusted with the 
responsibility of registration. RD, at 24.
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    In addition to acceptance of responsibility, the Agency considers 
both specific and general deterrence when determining an appropriate 
sanction. Daniel A. Glick, D.D.S., 80 FR 74810. In this case, the 
Agency agrees with the ALJ that denial of Applicant's application would 
deter Applicant and the general registrant community from failing to 
meet their obligations to provide accurate and truthful responses on an 
application for a DEA registration and to seek clarification when 
needed prior to submitting an application. Kareem Hubbard, M.D., 87 FR 
21156, 21164 (2022); RD, at 25.
    As noted by the ALJ, ``[m]aking a false statement on the 
registration application goes `to the heart of the CSA.''' RD, at 24 
(quoting Crosby Pharmacy and Wellness, 87 FR 21,212, 21,215 (2022)). 
``[T]he liability questions are critical to the closed system of 
distribution, as the Agency must rely upon the candor of its applicants 
and registrants.'' Id. (citing The Lawsons, Inc., 72 FR 74334, 74377 
(2007); Kuen H. Chen, M.D., 58 FR 65401, 65402 (1993); Bobby Watts, 
M.D., 58 FR 46995, 46995 (1993)). And even if Applicant's claim that 
his incident was inadvertent and the result of a misunderstanding was 
true, ``[Applicant's] actions were at the very least negligent and 
careless''; he had clear reasons to know that he had surrendered his 
previous registration for cause and had various opportunities-which he 
did not take--to clarify any lingering confusion that may have 
remained. RD, at 24-25.
    In sum, Applicant has not offered any credible evidence on the 
record to rebut the Government's case for denial of his application and 
Applicant has not demonstrated that he can be entrusted with the 
responsibility of registration. RD, at 26. Accordingly, the Agency will 
order that Applicant's application for registration be denied.

Order

    Pursuant to 28 CFR 0.100(b) and the authority vested in me by 21 
U.S.C. 823(g)(1), I hereby deny the pending application for a 
Certificate of Registration, Control Number W22106685C, submitted by 
Arash M. Padidar, M.D., as well as any other pending application of 
Arash M. Padidar, M.D., for additional registration in California. This 
Order is effective July 29, 2024.

Signing Authority

    This document of the Drug Enforcement Administration was signed on 
June 21, 2024, by Administrator Anne Milgram. That document with the 
original signature and date is maintained by DEA. For administrative 
purposes only, and in compliance with requirements of the Office of the 
Federal Register, the undersigned DEA Federal

[[Page 54065]]

Register Liaison Officer has been authorized to sign and submit the 
document in electronic format for publication, as an official document 
of DEA. This administrative process in no way alters the legal effect 
of this document upon publication in the Federal Register.

Heather Achbach,
Federal Register Liaison Officer, Drug Enforcement Administration.
[FR Doc. 2024-14201 Filed 6-27-24; 8:45 am]
BILLING CODE 4410-09-P

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