2021-03360. Ibrahim Al-Qawaqneh, D.D.S.; Decision and Order

On November 20, 2018, the Assistant Administrator, Diversion Control Division, Drug Enforcement Administration (hereinafter, DEA or Government), issued an Order to Show Cause to Ibrahim Al-Qawaqneh, D.D.S. (hereinafter, Respondent), of Anaheim, California. Administrative Law Judge Exhibit (ALJX) 1 (Order to Show Cause (hereinafter, OSC)), at 1. The OSC proposes the revocation of Respondent's Certificate of Registration No. BA6641472 and denial of any pending application to renew ^[1] such registration pursuant to 21 U.S.C. 824(a)(5).

I. Procedural History

The OSC alleged that on July 2, 2014, Respondent “entered a plea of nolo contendere in the Superior Court of California, County of Orange, to a charge of Offering Unlawful Medi-Cal Remuneration, a felony. . . .” OSC, at 1. The OSC further alleged that as a result of Respondent's conviction, on September 30, 2015, the United States Department of Health and Human Services, Office of Inspector General (hereinafter, HHS/OIG), notified Respondent “of [his] mandatory exclusion from participation in all Federal health care programs for a minimum period of five years pursuant to 42 U.S.C. 1320a-7(a)” (hereinafter, Exclusion Letter); and that “[m]andatory exclusion from Medicare is an independent ground for revoking a DEA registration pursuant to 21 U.S.C. 824(a)(5).” OSC, at 2.

The OSC notified Respondent of the right to either request a hearing on the allegations or submit a written statement in lieu of exercising the right to a hearing, the procedures for electing each option, and the consequences for failing to elect either option. Id. at 2 (citing 21 CFR 1301.43). The OSC also notified Respondent of the opportunity to submit a corrective action plan. OSC, at 3 (citing 21 U.S.C. 824(c)(2)(C)).

By letter dated December 21, 2018, Respondent timely requested a hearing.^[2] ALJX 2 (Request for Hearing), at 1. The matter was placed on the docket of the Office of Administrative Law Judges and was assigned to Administrative Law Judge Charles Wm. Dorman (hereinafter, the ALJ). On December 28, 2018, the ALJ established a schedule for the filing of prehearing statements. ALJX 3 (Order for Prehearing Statements), at 1. The Government filed its prehearing statement timely on January 14, 2019. ALJX 5 (Government's Prehearing Statement), at 1. Respondent twice missed the deadline for filing his prehearing statement and was granted two extensions. ALJX 6 (Order Rescheduling Prehearing Conference and Order to Respondent to File Prehearing Statement and to Show Good Cause Why Case should not be Terminated); ALJX 7 (Prehearing Ruling). Respondent filed his prehearing statement within the extended deadline on February 26, 2019, and supplemented the prehearing statement on March 7, 2019. ALJX 8 (Resp Prehearing), ALJX 10 (Resp Supp Prehearing).

On February 28, 2019, the ALJ issued a prehearing ruling that, among other things, set out four agreed upon stipulations and established schedules for the remaining prehearing activities and for the hearing. ALJX 9 (Second Prehearing Ruling). The hearing in this matter took place in Los Angeles, California, and spanned two days. See ALJX 11 (Ruling Regarding Hearing Location); ALJX 12 (Notice of Hearing); and Transcript of Proceedings in the Matter of Ibrahim Al-Qawaqneh, D.D.S. (hereinafter, Tr.). The Government filed a posthearing brief, but Respondent did not. ALJX 16 (Government's Proposed Findings of Fact, Conclusions of Law and Argument (hereinafter, Govt Posthearing)). The ALJ's Recommended Rulings, Findings of Fact, Conclusions of Law, and Decision (hereinafter, RD) is dated June 21, 2019. See RD. According to the ALJ, neither party filed exceptions to the RD and the deadline for doing so has passed. See Transmittal Letter from the ALJ, dated July 15, 2019. I have reviewed and agree with the procedural rulings of the ALJ during the administration of the hearing.

Having considered the record in its entirety, I agree with the ALJ and find that the Government established “that HHS mandatorily excluded [Respondent] from Federal health care programs based on a program-related conviction.” RD, at 17. I also agree with the ALJ that the Respondent failed to accept responsibility for his misconduct, and that revocation is the appropriate sanction. See RD, at 28. I make the following findings of fact.

II. Findings of Fact

A. Respondent's DEA Registration

The parties stipulated that Respondent is registered with the DEA “as a dentist practitioner in Schedules II-V ^[3] under DEA registration number BA6641472 at 1719 W. Romneya Drive, Anaheim, California 92801.” ALJX 9, at 1; Government Exhibit (hereinafter, GX) 1 (Controlled Substance Registration Certificate); and GX 2 (Certified Registration History of Respondent). According to Agency records, Respondent did not submit a renewal application and his registration expired on June 30, 2020.^[4] See also GX 1, GX 2.

B. Government's Case

The Government's documentary evidence consisted primarily of records from the Superior Court of California, County of Orange, regarding Respondent's conviction; documents regarding the Dental Board of California's accusation against and settlement with Respondent; and the HHS/OIG exclusion letter notifying Respondent of his Medicare and Medicaid exclusion. See GX 1-6. Additionally, the Government called the Diversion Investigator (hereinafter DI) as a witness both in the Government's case-in-chief and in rebuttal. Tr. 15-20, 82-86.

DI testified regarding his professional background and about his involvement in the investigation into Respondent. Tr. 17-18. DI testified that he obtained the HHS/OIG exclusion letter regarding Respondent's five-year minimum exclusion from Medicare and Medicaid as part of his investigation. Id. at 18. He also testified that DEA has not received any information that the five-year minimum exclusion HHS/OIG imposed on Respondent has been modified, lifted, or otherwise rescinded. Id. at 18-19. On rebuttal, DI testified that he searched the Controlled Substance Utilization Review and Evaluation System for the 18 months prior to his testimony (approximately November 2017 to May 7, 2019) and found just one controlled substance prescription issued by Respondent. Id. at 84-85. Having read and analyzed all of the record evidence, I agree with the ALJ that DI's testimony was straightforward and professional, and I likewise “give his testimony full credit.” RD, at 3.

C. Respondent's Case

Respondent's documentary evidence consisted of Respondent's resume and a list of continuing dental education courses that Respondent has recently taken. Respondent's Exhibits (hereinafter RX), 1-2. Respondent testified on his own behalf and presented no other testimony in support of his case. Respondent testified regarding his professional background, experience, and education; and regarding his dental practice. Tr. 22-28, 38, 52-54. Respondent testified that he has had his dental practice for over twenty years, and that he has never had any malpractice claims filed against him, DEA has not expressed any concerns regarding his prescribing practices, and that the matters at issue in this case resulted in the only time the Respondent was ever called before the Dental Board of California (hereinafter, Board).^[5] Id. at 22-23, 37-38, 42. Respondent also testified that, although he does not often prescribe controlled substances, he needs his DEA registration to be able to provide quality care to his patients.^[6] Id. at 24-26. Respondent testified that he might prescribe controlled substances three or four times a month,^[7] but that 95 percent of his prescriptions are for non-controlled substances. Id. at 52-53.

Respondent also testified regarding the event that led to his criminal conviction. See infra II.D. He testified that in December 2013, an undercover agent from the Medi-Cal fraud department going by the name of Mr. Gonzales came to Respondent's dental office to talk to him. Tr. 28-29; RD, at 9, GX 5, at 5. According to Respondent, Mr. Gonzales informed Respondent that he did “marketing” and that he could bring Respondent a lot of medical patients for $90-$120 per patient. Tr. 29; RD, at 9. Respondent stated, “I told [Mr. Gonzales], that's a lot. I wouldn't do that. And I won't pay more than $80.” ^[8] Tr. 29. Respondent stated, “I did tell [Mr. Gonzales] that is illegal . . . like paying per patient. And I was telling him . . . it's legal to do marketing if you get paid like, an hourly or salary but not per patient. That's the law.” Id. at 29. Respondent testified that his conversation with Mr. Gonzales lasted approximately fifteen minutes. Id. at 30; RD, at 9. Respondent admitted that during the conversation he offered Mr. Gonzales: $20 for patients who had their teeth cleaned; $40 for patients who had sealants put on their teeth; $50 for patients for who received three to four fillings; and $100 for patients who received six or more fillings. Tr. 75-78; GX 5, at 5; RD, at 9. In addition, Respondent warned Mr. Gonzales not to tell anyone about getting paid for bringing patients. Tr. at 75-78.

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

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

Id. at 31. Respondent also testified that he was unfairly charged, that he is innocent, and that the judgment was unfair. Id. at 56, 68. I agree with the ALJ that “it is obvious that during [Respondent's] testimony on direct examination, he was downplaying his criminal conduct.” RD, at 5.

Respondent testified that because of his conversation with the undercover agent he entered a nolo contendere plea in state court to a misdemeanor charge of offering to pay for patients. Tr. 33, 35; RD, at 9-10. Respondent testified that he was sentenced to informal probation, to perform 40 hours of community service, and to pay some minimal fees. Tr. 33, 36-37; RD, at 10. He testified that he has satisfied the terms of his probation. Tr. 37, 74; RD, at 10.

The ALJ found that Respondent generally presented his testimony in a clear, candid, and convincing manner, but found that Respondent's testimony lacked credibility on two points (see supra n.7 and n.8), and was concerning or evasive on four other points.^[11] RD, at 4-5. I agree with the ALJ and adopt all of his credibility findings in this matter.

D. Respondent's Exclusion

The evidence in the record demonstrates that on July 2, 2014, Respondent signed a Superior Court of California, County of Orange, General Misdemeanor ^[12] Guilty Plea Form (hereinafter, Plea Agreement). GX 3, at 1. In the Plea Agreement, Respondent plead nolo contendere to the charge of violating Welfare and Institution Code 14107.2(b) offering unlawful Medi-Cal remuneration. GX 3, at 1; Tr. 33; GX 5, at 5. Upon his conviction, Respondent's sentencing terms stated: “imposition . . . of sentence is suspended 3 years”; “[i]nformal PROBATION as to Count(s) 1”; and “[p]robation to termination . . . upon 18 months no violation.” GX 3, at 4-5.

The parties stipulated that on September 30, 2015, Respondent was notified by HHS/OIG of his mandatory exclusion from participation in all federal health care programs for a minimum period of five years pursuant to 42 U.S.C. 1320a-7(a). ALJX 9, at 2; GX 4 (hereinafter, Exclusion Letter), at 1. The Exclusion Letter stated, “[t]his exclusion is due to your conviction . . . in the Superior Court of California, County of Orange, of a criminal offense related to the delivery of an item or service under the Medicare or a State health care program, including the performance of management or administrative services relating to the delivery of items or services, under any such program.” GX 4, at 1. The Exclusion Letter stated that the exclusion would become effective twenty days from the date of the letter, and notified Respondent of his appeal rights. Id.

Accordingly, I find that the HHS/OIG excluded Respondent from Medicare, Medicaid, and all federal health care programs under 42 U.S.C. 1320a-7(a) for a minimum of five years effective twenty days after September 30, 2015, based on Respondent's conviction.

III. Discussion

Under Section 824(a) of the Controlled Substances Act (hereinafter, CSA), a registration “may be suspended or revoked” upon a finding of one or more of five grounds. 21 U.S.C. 824. The ground in 21 U.S.C. 824(a)(5) requires that the registrant “has been excluded (or directed to be excluded) from participation in a program pursuant to section 1320a-7(a) of Title 42.” Id. 42 U.S.C. 1320a-7(a) provides a list of four predicate offenses for which exclusion from Medicare, Medicaid, and federal health care programs is mandatory and sets out mandatory timeframes for such exclusion. Id. The undisputed record evidence demonstrates that HHS/OIG mandatorily excluded Respondent. GX 4, ALJX 9, at 2; RD, at 6.

Each subsection of Section 824(a) provides an independent and adequate ground to impose a sanction on a registrant. Arnold E. Feldman, M.D., 82 FR 39614, 39617 (2017)); see also Gilbert L. Franklin, D.D.S., 57 FR 3441 (1992) (“[M]andatory exclusion from participation in the Medicare program constitutes an independent ground for revocation pursuant to 21 U.S.C. [§ ] 824(a)(5).”).

Further, this Agency has concluded repeatedly that the underlying crime requiring exclusion from federal health care programs under Section 1320a-7(a) of Title 42 does not require a nexus to controlled substances in order to be used as a ground for revocation or suspension of a registration. Narciso Reyes, M.D., 83 FR 61678, 61681 (2018); KK Pharmacy, 64 FR at 49510 (collecting cases); Melvin N. Seglin, M.D., 63 FR 70431, 70433 (1998); Stanley Dubin, D.D.S., 61 FR 60727, 60728 (1996). In this case, HHS/OIG excluded Respondent due to his conviction in state court related to the delivery of an item or service under a state health care program, including the performance of management or administrative services relating to the delivery of items or services such as offering unlawful Medi-Cal remuneration. GX 4, at 1. “There does not need to be a nexus to controlled substances to make a connection between the activity that caused the mandatory exclusion and the potential for abuse of a DEA registration.” Jeffrey Stein, M.D., 84 FR 46968, 46972 (2019). Here, the crime of illegal remuneration does not have a nexus to controlled substances; however the crime occurred in the context of Respondent's medical practice, and Respondent knew that paying per patient was illegal. Respondent's knowing deceit and failure to credibly accept responsibility, as discussed below, weigh against my ability to entrust Respondent with a registration and in favor of revocation.

IV. Sanction

There is no dispute in the record that Respondent is mandatorily excluded pursuant to Section 1320a-7(a) of Title 42 and, therefore, the Government has met its prima facie burden of showing that a ground for the revocation or suspension of Respondent's registration exists. GX 4, ALJX 9, at 2; RD, at 6. Now, the burden shifts to the Respondent to show why he can be entrusted with a registration. Garrett Howard Smith, M.D., 83 FR 18882, 18910 (2018) (collecting cases).

The CSA authorizes the Attorney General to “promulgate and enforce any rules, regulations, and procedures which he may deem necessary and appropriate for the efficient execution of his functions under this subchapter.” 21 U.S.C. 871(b). This authority specifically relates “to `registration' and `control,' and `for the efficient execution of his functions' under the statute.” Gonzales v. Oregon, 546 U.S. 243, 259 (2006). A clear purpose of this authority is to “bar[ ] doctors from using their prescription-writing powers as a means to engage in illicit drug dealing and trafficking.” Id. at 270.

In efficiently executing the revocation and suspension authority delegated to me under the CSA for the aforementioned purposes, I review the evidence and arguments Respondent submitted to determine whether or not he has presented “sufficient mitigating evidence to assure the Administrator that he can be trusted with the responsibility carried by such a registration.” Samuel S. Jackson, D.D.S., 72 FR 23848, 23853 (2007) (quoting Leo R. Miller, M.D., 53 FR 21931, 21932 (1988)). “ `Moreover, because “past performance is the best predictor of future performance,” ALRA Labs, Inc. v. DEA, 54 F.3d 450, 452 (7th Cir. 1995), [the Agency] has repeatedly held that where a registrant has committed acts inconsistent with the public interest, the registrant must accept responsibility for [the registrant's] actions and demonstrate that [registrant] will not engage in future misconduct.' ” Jayam Krishna-Iyer, 74 FR 459, 463 (2009) (quoting Medicine Shoppe, 73 FR 364, 387 (2008)); see also Jackson, 72 FR at 23853; John H. Kennnedy, M.D., 71 FR 35705, 35709 (2006); Prince George Daniels, D.D.S., 60 FR 62884, 62887 (1995).

While there are places in Respondent's testimony where he claims to accept responsibility,^[13] I agree with the ALJ's statement that “[Respondent's] acceptance of responsibility was, at best, equivocal.” RD, at 23. Ultimately I agree with the ALJ's finding “that [Respondent] has not accepted responsibility for offering to pay for patients.” Id. Respondent testified repeatedly that he believed that he did not do anything wrong—he was just talking to a person. Tr. 29, 31, 68-69, 76-78. Respondent also testified that he was unfairly charged, that he is innocent, and that the judgment was unfair. Tr. 56, 68. Moreover, Respondent made statements that minimized his misconduct, which weighs against finding that Respondent accepted responsibility. See supra II.C; RD, at 21 (citing Arvinder Singh, M.D., 81 FR 8247, 8249-51 (2016)); Stein, 84 FR 46973. Additionally, Respondent plead nolo contendere instead of guilty to the charge of offering unlawful Medi-Cal remuneration. GX 3. “In general, however, a plea of nolo contendere is inconsistent with the acceptance of responsibility.” RD, at 21 (citing United States v. Gordon, 979 F. Supp. 337, 342 (E.D. Pa. 1997) (internal citations omitted)). Finding that a respondent has failed to accept responsibility is warranted where, as here, the respondent pled nolo contendere and minimized his role in the crime. See Jeffery M. Freesemann, M.D., 76 FR 60873, 60888 (2011); see also RD, at 22.

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

In sanction determinations, the Agency has historically considered its interest in deterring similar acts, both with respect to the respondent in a particular case and the community of registrants. See Joseph Gaudio, M.D., 74 FR 10083, 10095 (2009); Singh, 81 FR at 8248. In this case, the Respondent knew at the time that he committed the crime that his actions were illegal—he even told Mr. Gonzales that the actions were illegal and advised him not to tell anyone. Deterring such deceit and knowing criminal behavior both in Respondent and the general registrant community is relevant to ensuring compliance with the CSA. Although I would not characterize Respondent's underlying crime as particularly egregious, Respondent has not convinced me that he will not repeat such deceitful behavior in using his CSA registration.

Respondent has argued, among other things, that he can be entrusted with a registration because he has seen over 15,000 patients in twenty years and has never had any issues with prescribing, he has never had a malpractice complaint, he is very mindful of the opioid crisis, and he has satisfied the terms of his probation. Tr. 13-14, 37, 74. Even assuming, arguendo, all of this to be true, Respondent needed to present evidence of a credible and persuasive acceptance of responsibility. Respondent has not.

Based on Respondent's failure to accept responsibility for his criminal misconduct and lack of demonstrated remorse, I cannot find that Respondent can be entrusted with a DEA registration; and therefore, I find that revocation is the appropriate sanction

I will therefore order that Respondent's registration be revoked as contained in the Order below.

Order

Pursuant to 28 CFR 0.100(b) and the authority vested in me by 21 U.S.C. 824(a), I hereby revoke DEA Certificate of Registration No. BA6641472 issued to Ibrahim Al-Qawaqneh, D.D.S. This Order is effective March 22, 2021.

D. Christopher Evans,

Acting Administrator.

Footnotes

1.  The OSC also proposed denial of any pending application to modify a DEA registration. Because there is no evidence in the record of a pending application to modify a DEA registration, and because the Government made no arguments regarding the factors in 21 U.S.C. 823(f), I will not address this proposal herein.

2.  I find that service of the OSC was proper. See ALJX 4 (Government's Notice Regarding Service of Order to Show Cause and Position on Motion for Termination of Proceedings), Attachment 2 (Form DEA-12 (8-02) “Receipt for Cash or Other Items,” dated November 27, 2018).

3.  As the ALJ noted in his decision, the Respondent is actually only registered in Schedules II-III. RD, at 6; GX 1; GX 2.

4.  The fact that a respondent allows his registration to expire during the pendency of an OSC does not impact my jurisdiction or prerogative under the Controlled Substances Act (hereinafter, CSA) to adjudicate the OSC to finality. Jeffrey D. Olsen, M.D., 84 FR 68474 (2019).

5.  Due to the conviction, on January 13, 2017, the Dental Board of California (hereinafter, Board) filed an accusation against Respondent. GX 5 (Accusation from the Board, dated January 13, 2017), at 1. The parties stipulated that Respondent and the Board agreed, “inter alia, that Respondent's dental license would be revoked; however, the revocation was stayed, and Respondent's dental license was placed on probation for three years subject to several terms and conditions.” ALJX 9, at 2; RD, at 6; see also GX 6 (Board Decision and Stipulated Settlement and Disciplinary Order). In the settlement, Respondent “admit[ted] the truth of each and every charge and allegation in [the Board's] Accusation.” GX 6, at 3.

6.  The Government argued that Respondent's registration should be revoked because he “has not demonstrated a need for a DEA [registration] in order to continue his practice of dentistry.” ALJX 16, at 19; RD, at 26. The ALJ assessed and rejected this argument, and I agree. RD, at 26-27. Respondent's need for a registration is not relevant to my determination of whether or not Respondent can be entrusted with a registration. See infra IV.

7.  The ALJ found that this testimony was rebutted by DI's testimony that Respondent had issued only one controlled substance prescription in the year and a half prior to the hearing. RD, at 4; and see supra II.B. Thus, the ALJ did not find Respondent's testimony on this issue to be credible. RD, at 4.

8.  Respondent repeatedly testified that Mr. Gonzales misunderstood what he had said. He testified that “[t]he conversation was in general about just marketing” and that Mr. Gonzales put his words together in a way that made it seem like Respondent was offering to pay for patients. Tr. 78-79. Respondent testified that what he really meant was: “when I say I spent $80 on a patient, like if you put an ad in the newspaper . . . let's say you spent $1,000, and you got, like, maybe 10 patients or 12 patients, roughly, you're spending about $80 per patient.” Tr. 30. At one point, Respondent testified, Mr. Gonzales was “talking to me and—and trying to trick my tongue in saying things like, wrong.” Tr. 69. I agree with the ALJ that “[i]n comparing [Respondent's] testimony on direct examination about his conversation with the undercover agent with the detailed facts contained in Government Exhibit 5, I do not find it credible that the agent misunderstood what [Respondent] had said.” RD, at 5. Ultimately, whether Respondent intended to get patients from Mr. Gonzales for a fee or the conversation was in fact a misunderstanding is irrelevant to determining whether or not Respondent was excluded from participation in Medicare, Medicaid, or other Federal health care program. However, the mitigation of his crime is relevant to his acceptance of responsibility. See infra IV.

9.  Respondent's testimony where he accepted responsibility most often was in response to a leading question from his attorney. See Tr. 33, 67-68, 79, 80-81.

10.  When asked by his attorney what caused his conviction, Respondent answered “. . . that talking about—offering someone money to refer you patients, that's considered a crime.” Tr. 80.

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

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

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

14.  For example, Respondent testified “I really suffered going through these things—something I didn't do . . . [I] lost most—most of my patients, lost a lot of PPO insurances. I have to pay a lot of employees, and so many things for something that happened—someone faking like, you know, accusing you of doing something, but there's no 100 percent proof.” Tr. 68.