Federal Register / Vol. 83, No. 122 / Monday, June 25, 2018 / Notices 29569 

1The Show Cause Order caption also listed an 

address in Posen, Illinois for Respondent. 

The Commission made this 

determination pursuant to section 

751(c) of the Act (19 U.S.C. 1675(c)). It 

completed and filed its determination in 

this review on June 19, 2018. The views 

of the Commission are contained in 

USITC Publication 4795 (June 2018), 

entitled Tin- and Chromium-Coated 

Steel Sheet from Japan: Investigation 

No. 731–TA–860 (Third Review). 

By order of the Commission. 

Issued: June 19, 2018. 

Lisa Barton, 

Secretary to the Commission. 

[FR Doc. 2018–13504 Filed 6–22–18; 8:45 am] 

BILLING CODE 7020–02–P 

DEPARTMENT OF JUSTICE 

Drug Enforcement Administration 

Decision and Order: Mohammed 

Asgar, M.D. 

On March 29, 2017, the Assistant 

Administrator, Diversion Control 

Division, Drug Enforcement 

Administration (hereinafter, DEA), 

issued an Order to Show Cause to 

Mohammed Asgar, M.D. (hereinafter, 

Respondent), of Gary, Indiana.1 GX 6 

(Order to Show Cause), at 1. The Show 

Cause Order proposed the revocation of 

Respondent’s DEA Certificate of 

Registration as a practitioner, on the 

ground that the U.S. 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).’’ 

Id. at 2 (citing 21 U.S.C. 824(a)(5)). The 

Show Cause Order also proposed the 

denial of any pending application by 

Respondent to modify or renew his 

registration. Id. at 1. 

As for the Agency’s jurisdiction, the 

Show Cause Order alleged that 

Respondent holds DEA Certificate of 

Registration No. FA3926055, which 

authorizes him to dispense controlled 

substances in schedules II through V as 

a practitioner, at the registered address 

of 600 Grant Street, Gary, Indiana 

46402. Id. The Show Cause Order 

alleged that this registration expires on 

June 30, 2019. GX 6, at 2. 

As to the substantive ground for the 

proceeding, the Show Cause Order 

specifically alleged that Respondent was 

‘‘notified by . . . [the 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).’’ 

GX 6, at 2. It asserted that, ‘‘[m]andatory 

exclusion from Medicare is an 

independent ground for revoking a DEA 

registration pursuant to 21 U.S.C. 

824(a)(5).’’ Id. The Show Cause Order 

further asserted that ‘‘although your 

conviction was unrelated to your 

handling of controlled substances, DEA 

has nevertheless found that the 

underlying conviction forming the basis 

for a registrant’s exclusion from 

participating in federal health care 

programs need not involve controlled 

substances for revocation under 21 

U.S.C. 824(a)(5)’’ to be warranted. Id. 

The Show Cause Order notified 

Respondent of his right to request a 

hearing on the allegations, or to submit 

a written statement in lieu of a hearing, 

the procedures for electing each option, 

and the consequences for failing to elect 

either option. Id. at 2–3 (citing 21 CFR 

1301.43). The Show Cause Order also 

notified Respondent of his right to 

submit a corrective action plan under 21 

U.S.C. 824(c)(2)(C). Id. at 3. 

By letter dated April 27, 2017, 

Respondent’s counsel acknowledged 

service of the Show Cause Order on 

April 4, 2017, waived Respondent’s 

right to a hearing, and stated that he was 

filing Respondent’s written response to 

the Show Cause Order. GX 7 (Written 

Statement), at 1. Attached to the Written 

Statement are the Show Cause Order, 22 

letters ‘‘submitted voluntarily by 

patients and colleagues’’ of Respondent, 

the transcript of Respondent’s 

Sentencing Hearing, and the 

Government’s Sentencing Memorandum 

concerning Respondent. Id. at 2. 

On October 13, 2017, DEA submitted 

a Request for Final Agency Action 

(RFAA) including an evidentiary record 

to support the Show Cause Order’s 

allegations and Respondent’s Written 

Statement and attachments. 

I issue this Decision and Order based 

on the entire record before me. 21 CFR 

1301.43(e). I make the following 

findings of fact. 

Findings of Fact 

Respondent’s DEA Registration 

Respondent is the holder of DEA 

Certificate of Registration No. 

FA3926055, pursuant to which he is 

authorized to dispense controlled 

substances in schedules II through V as 

a practitioner, at the registered address 

of 600 Grant Street, Gary, Indiana 

46402. GX 1 (copy of registration); GX 

2 (Certification of Registration Status), at 

1. This registration expires on June 30, 

2019. GX 1; GX 2, at 1. 

The Nature and Scope of Respondent’s 

Criminality 

Respondent’s criminal conduct began 

in Chicago in or about 2005. GX 3 (Plea 

Agreement, United States v. Asgar, No. 

12 CR 491–10 (N.D. Ill. Dec. 18, 2014) 

(hereinafter, Plea Agreement)), at 2. At 

this time, Respondent and another 

medical doctor, Dr. Farzana Begum, 

‘‘conspired with each other to 

knowingly and willfully refer Medicare 

beneficiaries to Grand Home Health for 

the provision of home health care 

services in exchange for illegal cash 

kickback payments.’’ Id. at 2–3. Each 

Medicare patient that the doctors 

referred resulted in a cash payment of 

$400 to Dr. Begum. Id. at 3. According 

to the Plea Agreement, Respondent 

‘‘knew that it was illegal to solicit and 

receive kickbacks . . . in exchange for 

. . . referrals of Medicare patients.’’ Id. 

‘‘From in or about January 2006 through 

May 2008,’’ Dr. Begum received about 

‘‘$141,100 in kickbacks in exchange for 

[Respondent’s] referral of Medicare 

beneficiaries to Grand Home Health.’’ 

Id. 

The relationship between Respondent 

and Dr. Begum ended in approximately 

May 2008. Id. As a result, Respondent 

ended the arrangement under which Dr. 

Begum received cash kickbacks in 

exchange for Respondent’s Medicare 

patient referrals. Id. 

About six months later, however, the 

cash kickback payments resumed. This 

time, Respondent received cash 

kickbacks in exchange for his referral of 

Medicare patients to Grand Home 

Health. Id. On or about February 9, 

2011, for example, Respondent received 

$1,500 in cash for his referral of three 

patients to Grand Home Health ‘‘for the 

furnishing of home health care services 

for which payment may be made in 

whole and in part under Medicare.’’ Id. 

at 3–4. For the two-year period between 

about February 2009 and February 2011, 

Respondent received about $15,900 in 

exchange for his referral of Medicare 

beneficiaries to Grand Home Health. Id. 

at 4. 

By May 2011, the Government was 

investigating the conspiracy. Id. On or 

about May 3, 2011, Respondent met 

with an individual who was cooperating 

with the investigation and recording the 

meeting. Id. During the meeting, 

Respondent received about $1,500 in 

exchange for the referral of three 

Medicare patients to Grand Home 

Health. Id. 

At another meeting that was recorded 

by a different individual, Respondent 

urged the individual to ‘‘deny right 

away’’ if anyone raised the kickback 

conspiracy. Id. Respondent said, ‘‘So 


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that’s the story, okay?’’ as he apparently 

sought to confirm that the individual 

would call such a claim a lie and say 

‘‘nothing . . . happened.’’ Id.; see also 

GX 7 (Government’s Sentencing 

Memorandum, United States v. Asgar, 

No.–12 CR 491–10 (N.D. Ill June 7, 

2016) (hereinafter, Government 

Sentencing Memo), at 2–3 (After law 

enforcement discovered the Grand 

Home Health Care scheme, Asgar was 

recorded cautioning the owner of Grand 

Home Health Care about keeping 

records of the kickback payments, 

probing for information related to law 

enforcement’s discovery of the scheme, 

and assuring the owner that, ‘‘I have to 

be a little careful now, listen when 

you’re cleared, I will start [referring 

patients], ok?’’). 

In total, from about January 1, 2006 

through March 31, 2011, Medicare paid 

about $201,635 for claims submitted for 

home health services provided to the 

Medicare patients that Respondent 

referred to Grand Home Health in 

exchange for illegal kickbacks. GX 3, at 

5. From about January 1, 2006 through 

May 31, 2008, Medicare paid about 

$1,002,728 for claims submitted for 

home health services provided to the 

Medicare beneficiaries that Dr. Begum 

referred to Grand Home Health in 

exchange for illegal kickbacks. Id. Thus, 

‘‘Grand Home Health earned 

approximately $317,952 in net proceeds 

from these illegally referred patients.’’ 

Id. According to the Plea Agreement, 

Respondent acknowledged these facts. 

Id. 

In addition to the above, beginning in 

or about 2008, Respondent agreed to 

refer Medicare beneficiaries to 

‘‘Company A’’ for home health care 

services in exchange for illegal cash 

kickbacks from ‘‘Individual A.’’ Id. at 6. 

Pursuant to this conspiracy, Respondent 

typically received about $500 per 

patient referral. Id. In total, Respondent 

solicited and received about $74,000 in 

cash kickbacks in exchange for his 

referral of Medicare patients to 

Company A between about 2008 and 

August 2011. Id. Medicare paid about 

$1,725,762 for claims submitted by 

Company A for home health services 

provided to the Medicare patients 

whom Respondent referred in exchange 

for illegal kickbacks. Id. Company A 

received about $146,689 in net proceeds 

from the patients Respondent illegally 

referred. Id. According to the Plea 

Agreement, Respondent acknowledged 

the amounts Medicare paid to Company 

A during this phase of the illegal cash 

kickback conspiracy in which he 

participated. Id. 

The Plea Agreement: On December 

18, 2014, Respondent, Respondent’s 

attorney, the United States Attorney for 

the Northern District of Illinois, and an 

Assistant U.S. Attorney signed a Plea 

Agreement. GX 3, at 22. Respondent 

agreed to plead guilty to ‘‘conspiracy to 

commit an offense against the United 

States, namely, conspiring to solicit and 

receive kickbacks, in violation of Title 

42, United States Code, Section 1320a– 

7b(b)(1)(A), all in violation of Title 18, 

United States Code, Section 371.’’ Id. at 

1. In sum, Respondent’s criminality 

consisted of a multi-year conspiracy 

involving more than $2.9 million of 

Medicare payments to two home health 

care companies and the netting of 

hundreds of thousands of dollars in 

kickbacks by doctors involved in this 

conspiracy. GX 3, at 2–6. 

According to the Plea Agreement, 

Respondent ‘‘has clearly demonstrated a 

recognition and affirmative acceptance 

of personal responsibility for his 

criminal conduct.’’ Id. at 9. Moreover, 

the Plea Agreement includes language 

giving Respondent credit for acceptance 

of responsibility pursuant to the United 

States Sentencing Guidelines, 

§ 3E1.1(b). Id. at 10. This provision of 

the Plea Agreement provides that ‘‘if the 

Court determines that the defendant is 

entitled to a two-level reduction for 

acceptance of responsibility, the 

government will move for an additional 

one-level reduction in the offense 

level.’’ Id. Further, in the Plea 

Agreement, Respondent agreed to full 

and truthful cooperation ‘‘in any matter 

in which he is called upon to 

cooperate’’ by the Chicago U.S. 

Attorney’s Office. Id. at 12. The 

expected cooperation included 

‘‘providing complete and truthful 

information in any investigation and 

pre-trial preparation and complete and 

truthful testimony in any criminal, civil, 

or administrative proceeding.’’ Id. 

At some point, Respondent appeared 

before the United States District Court 

and pled guilty to the charge. The 

District Court accepted his plea. 

The Government Sentencing Memo: 

Respondent’s counsel attached the 

Government’s Sentencing Memo to his 

Written Statement. According to the 

Government’s Sentencing Memo, 

Respondent ‘‘took advantage of the faith 

and commitment of his patients in order 

to extract benefits for himself to which 

he knew he was not entitled. In doing 

so, he abused his position as their 

trusted doctor for his own pecuniary 

advantage, knowing that it was wrong 

all along.’’ GX 7, Government’s 

Sentencing Memo, at 6. According to 

the Government’s Sentencing Memo, 

Respondent treated his ‘‘patients as a 

commodity to be traded . . . for 

additional, secret profits,’’ id. at 7, 

subjugating his patients’ interests to his 

own greed, since he did not need the 

money given he ‘‘was earning more than 

half a million dollars per year,’’ 

according to ‘‘what was actually 

reported on . . . [Respondent’s] tax 

returns.’’ Id. at 6. 

The Government’s Sentencing Memo 

states that, while Respondent ‘‘appeared 

to have no plans to stop committing his 

crime prior to being approached by law 

enforcement, he did accept 

responsibility for his actions 

immediately.’’ Id. at 5. Elsewhere, the 

Government’s Sentencing Memo states 

that Respondent ‘‘has unquestionably 

taken full responsibility for his action 

[sic] going so far as to provide 

significant cooperation to the 

[G]overnment after his arrest.’’ Id. at 7. 

Respondent’s ‘‘significant cooperation,’’ 

according to the Sentencing Memo, 

consisted of ‘‘conduct[ing] two 

recordings that were ultimately used 

. . . in the investigation and 

prosecution of administrators and 

physicians,’’ testifying at two trials 

‘‘over the course of multiple days and 

participat[ing] in numerous preparation 

sessions during the course of his 

cooperation,’’ and providing law 

enforcement with ‘‘information 

regarding other corrupt home health 

entities and doctors that the 

[G]overnment was able to use’’ in other 

investigations. Id. at 5–6. The 

Sentencing Memo states that 

Respondent’s ‘‘significant cooperation’’ 

was the reason it was recommending a 

lower sentence than it otherwise would 

have recommended, given that 

Respondent ‘‘took advantage of the faith 

and commitment of his patients in order 

to extract benefits for himself to which 

he knew he was not entitled.’’ Id. at 6. 

Respondent’s Sentencing Hearing: 

Respondent also attached the Transcript 

of Sentencing Hearing to the Written 

Statement. When Respondent took 

advantage of his right to speak at his 

Sentencing Hearing, he stated that ‘‘it 

has been a long, rough and stressful five 

years for me and my family.’’ GX 7 

(Transcript of Proceedings—Sentencing 

Hearing at 38–39, United States v. 

Asgar, No.–12 CR 491–10 (N.D. Ill. June 

15, 2016) (hereinafter, Transcript of 

Sentencing Hearing). Regarding 

acceptance of responsibility, 

Respondent stated that, ‘‘Over this 

period my character and reputation that 

was at the peak slid down to the bottom 

as a consequence of my wrongdoing, for 

which I deeply regret, and accept full 

responsibilities.’’ Id. at 39. He 

emphasized that he ‘‘cooperated and 

helped the [G]overnment in every way 

possible to successfully bring to an end 

one of the biggest and high profile 


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medical scandals in Illinois history.’’ Id. 

Respondent stated that his cooperation 

with the investigation included 

‘‘recording of conversation [sic] with 

medical personnel, administrative 

officers, meeting with prosecutors, 

federal agents, lengthy trial, trial 

preparations and testifying at trials.’’ Id. 

An Assistant United States Attorney 

(hereinafter, AUSA) also addressed the 

Court at Respondent’s Sentencing 

Hearing. He agreed that Respondent 

cooperated with the criminal 

investigation and reiterated that 

Respondent’s cooperation was ‘‘one of 

the essential factors in mitigation.’’ Id. 

at 31. He stated that Respondent ‘‘has 

also undertaken significant steps to 

make amends.’’ Id. at 37. 

The AUSA also addressed aggravating 

factors. He stated that Respondent’s 

crime involved ‘‘betrayal of patients’ 

trust[, and] . . . betrayal of larger 

society, which places trust in doctors to 

do the right thing [–] to put the patients 

over their own personal pecuniary 

gains.’’ Id. at 34. The AUSA stated that, 

‘‘for reasons that may be simply greed,’’ 

Respondent was among those ‘‘willing 

to trade off the trust that their patients 

and their society placed in them and 

trade that for financial gain.’’ Id. at 36. 

The AUSA stated that doctors ‘‘occupy 

a special place in our society’’ and 

criminal sentences ‘‘do have a real 

deterrent effect.’’ Id. He urged the Court 

to ‘‘send a message’’ that ‘‘[i]f you 

violate the anti-kick back [sic] statute, if 

you conspire to turn your patients into 

chips to be turned in, there are 

repercussions.’’ Id. 

During the sentencing hearing, the 

Court repeatedly referenced 

Respondent’s greed and obstruction of 

justice. The Court pointed out that 

Respondent ‘‘probably . . . had the 

most lucrative practice going at the 

time.’’ Id. at 33. Yet, the Court stated, 

‘‘on top of that,’’ Respondent was 

‘‘helping himself to the kickbacks.’’ Id. 

Further, the Court stated, agreeing with 

the AUSA, that despite ‘‘inflection 

points, . . . times when someone would 

have caught themselves maybe and said, 

‘Eh, I’m out,’ ’’ Respondent, instead, 

wanted to ‘‘cover it up.’’ Id. at 33–34. 

The ‘‘obstruction piece on top of it,’’ the 

Court stated, ‘‘compounds that a little 

bit.’’ Id. at 34. 

Based on the uncontroverted evidence 

in the record, I find that Respondent 

participated in multi-year illegal 

kickback conspiracies involving the 

payment of about $230,900 in illegal 

kickbacks to himself and his coconspirator, and of Medicare claims of 

over $2.9 million. 

In addition, I find that, during the 

criminal investigation, Respondent 

urged another doctor ‘‘to lie if asked 

whether that doctor had ever provided 

patients in return for money.’’ GX 7 

(Government Sentencing Memo) at 3; 

see also GX 3, at 4. Thus, I find, as the 

District Judge found, that Respondent 

sought to obstruct justice. 

While Respondent, according to the 

Government Sentencing Memo, 

‘‘appeared to have no plans to stop 

committing his crime prior to being 

approached by law enforcement, he did 

accept responsibility for his actions 

immediately.’’ GX 7 (Sentencing Memo, 

at 5); see also id. at 8–9 (Respondent’s 

‘‘cooperation in this case and his 

immediate acceptance of responsibility 

demonstrate not only an 

acknowledgement of his wrongdoing, 

but a sincere effort to take steps to make 

amends for the crime that [he] has 

committed.’’). Thus, I find, based on the 

record as a whole, including the plea 

agreement; the statements by the 

prosecutor handling the criminal case, 

both in the Government’s Sentencing 

Memo (stating that Respondent had 

‘‘acknowledged the full scope of his 

lengthy criminal conduct,’’ GX 7 

(Sentencing Memo, at 3) and at the 

sentencing hearing; and the District 

Court’s acceptance of the guilty plea, the 

plea agreement, and application of the 

sentencing guidelines reductions based 

on his acceptance of responsibility; that 

Respondent accepted responsibility for 

his criminality. 

Respondent’s Mandatory Exclusion 

From Participation in All Federal Health 

Care Programs 

By letter dated September 30, 2016, a 

Health Care Program Exclusions 

Reviewing Official of the HHS OIG 

notified Respondent that he was ‘‘being 

excluded from participation in any 

capacity in the Medicare, Medicaid, and 

all Federal health care programs as 

defined in section 1128B(f) of the Social 

Security Act . . . for a minimum period 

of 5 years.’’ GX 5, at 1 (hereinafter, HHS 

Exclusion Letter), also citing 42 U.S.C. 

1320a–7(a). The HHS Exclusion Letter 

explained that Respondent’s exclusion 

was ‘‘due to . . . [his] conviction . . . 

of a criminal offense related to the 

delivery of an item or service under the 

Medicare or a State health care 

program.’’ Id. It stated that Respondent’s 

exclusion is ‘‘effective 20 days from the 

date of this letter.’’ Id. 

As 42 U.S.C. 1320a–7(a) makes clear, 

Respondent’s conviction subjected him 

to the mandatory exclusion provision, 

and in his Written Statement, 

Respondent admits that he has been 

mandatorily excluded under 42 U.S.C. 

1320a–7(a). I find, therefore, that 

Respondent has been excluded under 

the mandatory exclusion provisions of 

42 U.S.C. 1320a–7(a). Based on the 

terms of the HHS Exclusion Letter, 

uncontroverted by evidence in the 

record, I further find that Respondent’s 

period of exclusion is still in effect. 

Discussion 

Pursuant to 21 U.S.C. 824(a)(5), the 

Attorney General may suspend or 

revoke a registration issued under 

section 823 of Title 21, ‘‘upon a finding 

that the registrant . . . has been 

excluded . . . from participation in a 

program pursuant to section 1320a–7(a) 

of Title 42.’’ Further, ‘‘It is well 

established that the various grounds for 

revocation or suspension of an existing 

registration that Congress enumerated in 

[§ 824(a)] are also properly considered 

in deciding whether to grant or deny an 

application under [§ 823].’’ Arthur H. 

Bell, D.O., 80 FR 50035, 50037 (2015) 

(citing The Lawsons, Inc., 72 FR 74334, 

74337 (2007); Anthony D. Funches, 64 

FR 14267, 14268 (1999); Alan R. 

Schankman, M.D., 63 FR 45260 (1998); 

Kuen H. Chen, M.D., 58 FR 65401, 

65402 (1993)); see also Serling Drug Co. 

and Detroit Prescription Wholesaler, 

Inc., 40 FR 11918, 11919 (1975) 

(consistent Agency precedent has held 

that the CSA does not require the 

Agency to indulge in the useless act of 

granting a license on one day only to 

withdraw it on the next). 

Agency precedent has made clear that 

revocation under 21 U.S.C. 824(a)(5) 

may be appropriate regardless of 

whether or not the misconduct that led 

to the mandatory exclusion involved 

controlled substances. KK Pharmacy, 64 

FR 49507, 49510 (1999) (collecting 

cases) (The Agency ‘‘has previously 

held that misconduct which does not 

involve controlled substances may 

constitute grounds, under 21 U.S.C. 

824(a)(5), for the revocation of a DEA 

Certificate of Registration.’’); Melvin N. 

Seglin, M.D., 63 FR 70431, 70433 (1998) 

(‘‘[M]isconduct which does not involve 

controlled substances may constitute 

grounds for the revocation of a DEA 

registration pursuant to 21 U.S.C. 

824(a)(5).’’), Stanley Dubin, D.D.S., 61 

FR 60727, 60728 (1996) (Registration 

revoked and pending applications for 

renewal denied when registrant’s 

‘‘actions cast substantial doubt on . . . 

[his] integrity.’’); George D. Osafo, M.D., 

58 FR 37508, 37,509 (1993) (Submission 

of fraudulent medical claims and 

larceny convictions indicated that 

registrant ‘‘placed monetary gain above 

the welfare of his patients, and in so 

doing, endangered the public health and 

safety.’’). 

Under 42 U.S.C. 1320a–7(a)(1), the 

HHS OIG is required to exclude from 


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2 DEA does not challenge this assertion. 

participation in any Federal health care 

program any individual who has been 

convicted of a criminal offense ‘‘related 

to the delivery of an item or service 

under . . . [42 U.S.C. 1395 et seq.] or 

under any State health care program.’’ 

As found above, Respondent has been 

excluded from participation in any 

Federal health care program based on 

his ‘‘conviction . . . of a criminal 

offense related to the delivery of an item 

or service under the Medicare or a State 

health care program,’’ GX 5, at 1, and 

this is a mandatory exclusion subject to 

21 U.S.C. 824(a)(5). Accordingly, I hold 

that DEA’s evidence satisfies its prima 

facie burden to support revocation of 

Respondent’s registration. 

Sanction 

Where, as here, DEA has established 

grounds to revoke a registration or deny 

an application, a respondent must then 

‘‘present[ ] sufficient mitigating 

evidence’’ to show why he can be 

entrusted with a registration. Samuel S. 

Jackson, 72 FR 23848, 23853 (2007) 

(quoting Leo R. Miller, 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), 

[DEA] has repeatedly held that where 

[an applicant] has committed acts 

inconsistent with the public interest, the 

[applicant] must accept responsibility 

for [his] actions and demonstrate that 

[he] 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. 

Kennedy, 71 FR 35705, 35709 (2006); 

Cuong Tron Tran, 63 FR 64280, 64283 

(1998); Prince George Daniels, 60 FR 

62884, 62887 (1995). The same rule 

applies to the other grounds for 

sanctioning a registrant where the 

Agency has discretion as to the choice 

of sanction such as section 824(a)(5). 

See Arvinder Singh, 81 FR 8247, 8248 

(2016) (denying application based, in 

part, on practitioner’s mandatory 

exclusion, where practitioner ‘‘failed to 

adequately acknowledge his 

misconduct’’). 

While a registrant must accept 

responsibility for his misconduct and 

demonstrate that he will not engage in 

future misconduct in order to establish 

that he is entitled to retain his 

registration, DEA has repeatedly held 

that these are not the only factors that 

are relevant in determining the 

appropriate disposition of the matter. 

See, e.g., Joseph Gaudio, 74 FR 10083, 

10094 (2009); Southwood 

Pharmaceuticals, Inc., 72 FR 36487, 

36504 (2007). Obviously, the 

egregiousness and extent of an 

applicant’s misconduct are significant 

factors in determining the appropriate 

sanction. See Singh, 81 FR at 8248 

(denying application based, in part, on 

mandatory exclusion, noting that the 

practitioner’s ‘‘misconduct was 

egregious’’); Jacobo Dreszer, 76 FR 

19386, 19387–88 (2011) (explaining that 

a respondent can ‘‘argue that even 

though the Government has made out a 

prima facie case, his conduct was not so 

egregious as to warrant revocation’’); see 

also Paul Weir Battershell, 76 FR 44359, 

44369 (2011) (imposing six-month 

suspension, noting that the evidence 

was not limited to security and 

recordkeeping violations found at first 

inspection and ‘‘manifested a disturbing 

pattern of indifference on the part of 

[r]espondent to his obligations as a 

registrant’’); Annibal P. Herrera, 61 FR 

65075, 65078 (1996) (declining to 

revoke registration in mandatory 

exclusion case). 

So too, the Agency can consider the 

need to deter similar acts, both with 

respect to the respondent in a particular 

case and the community of registrants. 

See Gaudio, 74 FR at 10095 (quoting 

Southwood, 71 FR at 36503); Singh, 81 

FR at 8248 (adopting ALJ’s finding that 

‘‘agency’s interest in specific deterrence 

support[ed] denial of’’ application); Cf. 

McCarthy v. SEC, 406 F.3d 179, 188–89 

(2d Cir. 2005) (upholding SEC’s express 

adoption of ‘‘deterrence, both specific 

and general, as a component in 

analyzing the remedial efficacy of 

sanctions’’). 

In his Written Statement, Respondent 

argues that ‘‘[i]t is doubtful there is a 

better example of a situation where a 

physician has earned the opportunity to 

retain his . . . [registration].’’ GX 7 

(Written Statement, at 4). The Written 

Statement supports this claim by stating 

that Respondent ‘‘admitted throughout 

this entire process . . . that he made a 

regrettable error in judgment.’’ Id. at 3. 

It also asserts that Respondent ‘‘took 

complete responsibility for his actions, 

cooperated fully with authorities, went 

above and beyond to assist the 

government in charging and convicting 

health care providers engaged in 

wrongdoing, made restitution, 

completed his incarceration and has 

never had any aspersions cast upon his 

ability to practice medicine or manage 

prescriptions.’’ Id. The Written 

Statement, however, does not include 

documentary evidence that Respondent 

made restitution or completed his 

incarceration. 

The Written Statement also asserts 

that Respondent ‘‘continues to comply 

with all conditions of his probation.’’ 2

GX 7 (Written Statement, at 1). It states 

that, ‘‘[d]uring the . . . 5 . . . year 

period prior to his sentencing, . . . 

[Respondent] worked diligently to assist 

the government in identifying and 

investigating cases against persons 

involved in health care fraud.’’ Id. 

According to the Written Statement, 

Respondent’s ‘‘cooperation and 

testimony were instrumental in securing 

the conviction and sentencing of 

multiple health care providers,’’ id., and 

the record shows that the Federal 

prosecutors and the District Judge 

agreed with the value and completeness 

of Respondent’s eventual cooperation. 

In his Written Statement, Respondent 

stated that he is ‘‘a caring, 

compassionate and skilled physician’’ 

whose ‘‘colleagues regard him as 

skilled, hardworking, dependable, 

sought after by patients, thorough and 

exceedingly competent.’’ GX 7 (Written 

Statement, at 2). It states that 

Respondent ‘‘provides services to an 

historically underserved and indigent 

community in Gary, Indiana.’’ Id. It also 

asserts that the District Judge who 

presided over Respondent’s sentencing 

and the Assistant United States 

Attorney ‘‘involved in’’ Respondent’s 

prosecution ‘‘recognized . . . [his] 

contribution to the practice of medicine 

and noted the important role he has in 

the community as a physician.’’ Id. 

According to the Written Statement, the 

District Judge ‘‘hoped’’ Respondent 

‘‘could continue to practice medicine in 

his community.’’ Id. As support for his 

argument, Respondent relies on Kwan 

Bo Jin, M.D., 77 FR 35021 (2012). 

However, Respondent’s reliance on 

Kwan Bo Jin for the proposition that the 

Agency has considered such community 

impact regarding prescribing 

practitioners is misplaced. In fact, the 

case stands for the opposite proposition 

in all types of prescribing practitioner 

revocation proceedings, not just in 

mandatory exclusion revocation 

proceedings under 21 U.S.C. 824(a)(5). 

See 77 FR at 35021 (‘‘I have decided to 

adopt the ALJ’s findings of fact and 

conclusions of law, except for his 

discussion of the role of community 

impact evidence in agency proceedings 

. . . which is contrary to agency 

precedent.’’). See also Michael W. 

White, M.D., 79 FR 62957, 62964 (2014) 

(Holding that hundreds of letters written 

by Respondent’s patients vouching for 

the quality of care Respondent provided 

them are ‘‘irrelevant. The Agency has 

consistently held that so-called 

‘community impact evidence’ is not 

relevant in these proceedings.’’); 


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Federal Register / Vol. 83, No. 122 / Monday, June 25, 2018 / Notices 29573 

3 DEA’s brief appears to agree with Respondent’s 

reading of Kwan Bo Jin while distinguishing it on 

the facts. RFAA, at 5–6. As recognized in 21 CFR 

1301.43, a written statement ‘‘shall be considered 

in light of the lack of opportunity for crossexamination in determining the weight to be 

attached to matters of fact asserted therein.’’ In this 

case, other credible evidence, such as the District 

Court’s acceptance of the Respondent’s guilty plea, 

the application of the Sentencing Guidelines 

provision crediting Respondent with accepting 

responsibility, and the concession by the AUSA in 

the criminal case that Respondent accepted 

responsibility, supports Respondent’s contention 

that he has accepted responsibility. 

Gregory D. Owens, D.D.S., 74 FR 36751, 

36757 and n.22 (2009) (‘‘The residents 

of this Nation’s poorer areas are as 

deserving of protection from diverters as 

are the citizens of its wealthier 

communities, and there is no legitimate 

reason why practitioners should be 

treated any differently because of where 

they practice or the socioeconomic 

status of their patients.’’ Considering 

community impact evidence would 

‘‘inject a new level of complexity into 

already complex proceedings and take 

the Agency far afield of the purpose of 

the . . . registration provisions, which 

is to prevent diversion.’’).3

Counsel’s Written Statement suggests 

that Respondent, like the respondent in 

Seglin, ‘‘did not ‘attempt to conceal his 

misconduct and in fact was quite 

straightforward with the investigators.’ ’’ 

GX 7 (Written Statement, at 3, citing 

Melvin N. Seglin, M.D., 63 FR at 70,433). 

As already discussed, Respondent’s 

obstruction of justice was recorded on 

more than one occasion. Thus, although 

I will not revoke Respondent’s 

registration, I reject Counsel’s argument 

that Respondent did not attempt to 

conceal his misconduct. 

As for acceptance of responsibility, 

Agency precedent requires unequivocal 

acceptance of responsibility when a 

respondent has committed knowing or 

intentional misconduct. Lon F. 

Alexander, M.D., 82 FR 49704, 49728 

(2017) (collecting cases) (A respondent 

who committed knowing or intentional 

misconduct must unequivocally 

acknowledge his misconduct.). Cf. 

Melvin N. Seglin, 63 FR at 70433 

(Respondent thought the billing method 

he used was acceptable). Respondent’s 

participation in the multi-year illegal 

cash kickback payment conspiracy was 

just that, knowing and intentional. See, 

e.g., GX 3, at 2–3 (Respondent’s 

admissions in the Plea Agreement to 

knowing and willful criminality); GX 7 

(Government Sentencing Memo, at 2–3) 

(describing the recorded acts forming 

the basis for the obstruction of justice 

enhancement); GX 7 (Transcript of 

Sentencing Hearing, at 37) (AUSA’s 

description of Respondent’s knowing 

and willful acts). 

I find, however, that the record as a 

whole shows the requisite acceptance of 

responsibility. According to the Plea 

Agreement, Respondent ‘‘has clearly 

demonstrated a recognition and 

affirmative acceptance of personal 

responsibility for his criminal conduct.’’ 

GX 3, at 9. While Respondent ‘‘appeared 

to have no plans to stop committing his 

crime prior to being approached by law 

enforcement,’’ the AUSA acknowledged 

that ‘‘he did accept responsibility for his 

actions immediately.’’ GX 7 

(Government Sentencing Memo, at 5). 

The AUSA also stated that Respondent 

‘‘has unquestionably taken full 

responsibility for his action going so far 

as to provide significant cooperation to 

the government after his arrest.’’ Id. at 

7. Moreover, at the sentencing hearing, 

in addressing the need for specific 

deterrence, the AUSA concluded there 

was ‘‘no need’’ for it, stating that 

Respondent’s ‘‘immediate acceptance of 

responsibility demonstrate[s] not only 

an acknowledgement of his wrongdoing, 

but a sincere effort to take steps to make 

amends for the crime that [he] has 

committed.’’ Id. at 8–9. Notably, DEA 

has put forward no evidence 

challenging the sincerity of 

Respondent’s acceptance of 

responsibility. 

As for evidence in the record 

regarding whether Respondent should 

continue to be entrusted with a 

registration, the District Judge was 

troubled by Respondent’s greed and the 

fact that Respondent took affirmative 

steps to obstruct justice. I, too, am 

troubled by the same facts. I do note, 

however, that Respondent’s criminality 

did not directly involve his registration 

or controlled substances. There is 

nothing in the record addressing, let 

alone impugning, Respondent’s use of 

his registration. 

As for the Agency’s interest in 

deterrence, I adopt the District Judge’s 

conclusion that specific deterrence is 

not a concern. GX 7 (Transcript of 

Sentencing Hearing, at 8). I agree with 

the District Judge that ‘‘[g]eneral 

deterrence is the question.’’ Id. at 30. 

While not issuing some sanction due to 

Respondent’s outrageous misconduct 

sends the wrong message to the 

registrant community, not 

acknowledging the prosecutors’ 

unqualified satisfaction with 

Respondent’s significant cooperation 

likewise sends the wrong message. 

On the whole, while I find that the 

Respondent was involved in knowing 

and willful criminal conduct, I also find 

that this conduct did not involve the 

misuse of his registration to handle 

controlled substances. I further find, as 

the District Judge did, that the 

Respondent has accepted responsibility 

for his conduct. In sum, this case is 

factually unique, and, as such, I will 

impose a unique sanction. 

Based on all of the evidence in the 

record, I shall suspend Respondent’s 

registration for a minimum period of 

two years. Said suspension shall 

terminate upon Respondent’s providing 

evidence that he has satisfied the 

judgment of the District Court by paying 

the entire amount due pursuant to the 

District Court’s Judgment. 

Order 

Pursuant to the authority vested in me 

by 21 U.S.C. 824(a), as well as 28 CFR 

0.100(b), I order that DEA Certificate of 

Registration FA3926055 issued to 

Mohammed Asgar, M.D., be, and it 

hereby is, suspended for a minimum 

period of two years and that said 

suspension shall terminate upon 

Respondent’s providing evidence that 

he has satisfied the judgment of the 

District Court by paying the amount he 

was ordered to pay pursuant to the 

Court’s judgment. This Order is effective 

July 25, 2018. 

Dated: June 11, 2018. 

Robert W. Patterson, 

Acting Administrator. 

[FR Doc. 2018–13531 Filed 6–22–18; 8:45 am] 

BILLING CODE 4410–09–P 

DEPARTMENT OF JUSTICE 

Drug Enforcement Administration 

[Docket No. 18–15] 

Decision and Order: Kevin G. Morgan, 

RN/APN 

On December 22, 2017, the Acting 

Assistant Administrator, Diversion 

Control Division, Drug Enforcement 

Administration (DEA), issued an Order 

to Show Cause to Kevin G. Morgan, RN/ 

APN (Respondent), of Nederland, Texas. 

The Show Cause Order proposed the 

revocation of Respondent’s DEA 

Certificate of Registration No. 

MM2890312 on the ground that he does 

‘‘not have authority to handle controlled 

substances in the state of Texas, the 

state in which [Respondent is] 

registered with the DEA.’’ Order to 

Show Cause, at 1 (citing 21 U.S.C. 

823(f), 824(a)(3)). 

With respect to the Agency’s 

jurisdiction, the Show Cause Order 

alleged that Respondent is the holder of 

Certificate of Registration No. 

MM2890312, pursuant to which he is 

authorized to dispense controlled 

substances as a practitioner in schedules 

III through V, at the registered address 


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