[Federal Register Volume 87, Number 69 (Monday, April 11, 2022)]
[Notices]
[Pages 21139-21145]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-07717]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration

[Docket No. 21-17]


Gilbert Y. Kim, D.D.S.; Decision and Order

    On May 26, 2021, a former Assistant Administrator, Diversion 
Control Division, of the Drug Enforcement Administration (hereinafter, 
DEA or Government), issued an Order to Show Cause (hereinafter, OSC) to 
Gilbert Y. Kim, D.D.S. (hereinafter, Respondent) of Oakland Gardens, 
New York. Administrative Law Judge Exhibit (hereinafter, ALJX) 1 (OSC), 
at 1 and 3. The OSC proposed the denial of Respondent's application for 
DEA Certificate of Registration No. W20055916C (hereinafter, COR or 
registration) and the denial of any applications for any other DEA 
registrations pursuant to 21 U.S.C. 824(a)(5) because Respondent has 
been excluded from participation in Medicare, Medicaid, and all federal 
health care programs pursuant to 42 U.S.C. 1320a-7(a). Id. at 1.
    On June 7, 2021, Respondent timely requested a hearing, which 
commenced (and ended) on August 17, 2021, at the DEA Hearing Facility 
in Arlington, Virginia with the parties, counsel, and witnesses 
participating via video teleconference (VTC). On October 12, 2021, 
Administrative Law Judge Teresa A. Wallbaum (hereinafter, the ALJ) 
issued her Recommended Rulings, Findings of Fact, Conclusions of Law, 
and Decision of the Administrative Law Judge (hereinafter, Recommended 
Decision or RD). By letter dated November 8, 2021, the ALJ certified 
and transmitted the record to me for final Agency action. In the 
letter, the ALJ advised that neither party filed exceptions. Having 
reviewed the entire record, I adopt the ALJ's rulings, findings of 
fact, as modified, conclusions of law, and recommended sanction with 
minor modifications, where noted herein.*\A\
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    *\A\ I have made minor modifications to the RD. I have 
substituted initials or titles for the names of witnesses and 
patients to protect their privacy and I have made minor, 
nonsubstantive, grammatical changes and nonsubstantive, conforming 
edits. Where I have made substantive changes, omitted language for 
brevity or relevance, or where I have added to or modified the ALJ's 
opinion, I have noted the edits with an asterisk, and I have 
included specific descriptions of the modifications in brackets 
following the asterisk or in footnotes marked with a letter and an 
asterisk. Within those brackets and footnotes, the use of the 
personal pronoun ``I'' refers to myself--the Administrator.
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Recommended Rulings, Findings of Fact, Conclusions of Law, and Decision 
of the Administrative Law Judge

Teresa A. Wallbaum, Administrative Law Judge, October 12, 2021

    *\B\ Respondent proceeded pro se throughout the entire case.\1\ 
Respondent timely filed a Request for Hearing. ALJ Ex. 2 at 1. A 
Prehearing Conference was conducted on July 13, 2021, by video 
teleconference (VTC). A Merits Hearing of the OSC allegations was 
conducted on August 17, 2021, via VTC at the DEA Hearing Facility in 
Arlington, Virginia. The Government filed a Post-Hearing Brief on 
October 6, 2021.
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    *\B\ I have omitted a section of the RD's discussion of the 
procedural history to avoid repetition with my introduction.
    \1\ Respondent was advised during the Prehearing Conference 
that, under 21 CFR 1316.50, he had the right to seek representation 
by a qualified attorney at his own expense. Respondent was also 
advised that, if he continued to represent himself, he would be held 
to the same standards and procedural requirements of an attorney, 
including adherence to the procedural orders and rulings of this 
tribunal and to the procedural rules set forth in 21 CFR 1316.41-
1316.68. ALJ Ex. 6 at 1, n.1. During the merits hearing, Respondent 
acknowledged that he had been so advised and confirmed that he 
wanted to proceed pro se. Tr. 8-9.
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    The ultimate issue in these proceedings is whether Respondent's 
application should be denied pursuant to 21 U.S.C. 823 and 824(a)(5) 
based upon his exclusion from participation in Medicare, Medicaid, and 
all federal health care programs pursuant to 42 U.S.C. 1320a-7(a). 
After carefully considering the testimony elicited at the hearing, the 
admitted exhibits, the arguments of counsel, and the record as a whole, 
I have set forth my recommended findings of fact and conclusions of law 
below.

I. Findings of Fact

A. Allegations

    The Government alleges that the denial of Respondent's application 
is supported by incontrovertible record evidence that he has been 
excluded from participation in Medicare, Medicaid, and all federal 
health care programs. ALJ Ex. 1 at 1. Specifically, the Government 
alleges that judgment was entered against Respondent in the United 
States District Court for the Eastern District of New York (the 
District Court) after pleading guilty to one count of Conspiracy to 
Commit Health Care Fraud in violation of 18 U.S.C. 1349. Id. at 1-2 
(citing United States v. Gilbert Kim, No. 1:11-CR-073 (E.D.N.Y. May 12, 
2014)). The Government alleges that, due to this conviction, the U.S. 
Department of Health and Human Services, Office of Inspector General 
(HHS/OIG) mandatorily excluded Respondent from participation in 
Medicare, Medicaid, and all federal health care programs pursuant to 42 
U.S.C. 1320a-7(a).\2\ ALJ Ex. 1 at 2. According to the Government, this 
exclusion was effective as of August 29, 2014,\3\ and runs for a period 
of ten years.\4\ ALJ Ex. 1 at 2.
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    \2\ Respondent has stipulated to the factual basis underlying 
this allegation. See Stip. 6.
    \3\ The OSC states that the exclusion was effective on August 
29, 2014; however, per the HHS/OIG letter, the exclusion was 
effective on September 18, 2014. See Gov. Ex. 6.
    \4\ Respondent has stipulated to the factual basis underlying 
this allegation. See Stip. 7.
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B. Stipulations

    The parties mutually agreed upon the following stipulations, and 
they were conclusively accepted as fact in the proceedings:

    1. On or about June 9, 2020, Respondent applied to DEA for 
registration as a practitioner in Schedules II through V with a 
proposed registered address of 22902 Horace Harding Expressway, Fl. 
2, Oakland Gardens, New York 11364.
    2. Respondent's Application was assigned Control Number 
W20055916C.
    3. Respondent was previously registered with DEA as a 
practitioner under DEA Certificate of Registration No. AK2569284.
    4. DEA Certificate of Registration No. AK2569284 was surrendered 
for cause on or about August 15, 2018.
    5. On or about May 12, 2014, judgment was entered against 
Respondent in the United States District Court for the Eastern 
District of New York based on his conviction on one count of 
``Conspiracy to Commit Health Care Fraud,'' in violation of 18 
U.S.C. 1349.
    6. By letter dated August 29, 2014, the U.S. Department of 
Health and Human Services, Office of Inspector General (HHS/OIG), 
mandatorily excluded Respondent from participation in Medicare, 
Medicaid, and all federal health care programs pursuant to 42 U.S.C. 
1320a-7(a).
    7. Respondent's exclusion under 42 U.S.C. 1320a-7(a) was 
effective on September 18, 2014, and runs for a period of ten years.
    8. Respondent is currently excluded from participation in a 
program pursuant to 42 U.S.C. 1320a-7(a).
    9. By letter dated March 23, 2020, the Office of Professional 
Discipline of the New York State Education Department informed 
Respondent that he may resume the practice of Dentistry in the State 
of New York no earlier than March 29, 2020.

[[Page 21140]]

C. Government's Case-in-Chief

    The Government's case-in-chief consisted of the testimony of a 
single witness, a DEA Diversion Group Supervisor (hereinafter, the GS). 
The GS testified that her duty station is the New York Field Division, 
located in New York City, where she has served in her capacity as a 
Group Supervisor for approximately one year. Tr. 24-25. Before the GS 
became a Group Supervisor, she was a Diversion Investigator for 
approximately six-and-a-half years. Id. at 25. As a Diversion 
Investigator, the GS's responsibilities included preventing and 
detecting the diversion of controlled substances through 
administrative, civil, and criminal investigations. Id. at 26. 
Additionally, the GS conducted scheduled investigations of DEA 
registrants. Id.
    Respondent came to the GS's attention when a Diversion Investigator 
under her supervision was assigned his application for DEA 
registration. Id. at 29. Through the GS's testimony, the Government 
laid the foundation for introducing multiple exhibits in support of its 
allegations.\5\ The parties agree, and the evidence demonstrates, that 
on April 25, 2014, Respondent pleaded guilty to one count of Conspiracy 
to Commit Health Care Fraud in violation of 18 U.S.C. 1349. Gov. Ex. 5; 
Stip. 5; Tr. 68. The HHS/OIG sent Respondent a letter informing him 
that he had been excluded from Medicare, Medicaid, and all federal 
health care programs for a period beginning on September 18, 2014 and 
lasting a minimum of ten years. Gov. Ex. 6; Tr. 31.
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    \5\ Specifically, the GS's testimony laid the foundation for 
Government Exhibits 2 and 4-7. Id. at 26-28, 34-36, 36-38, 31-33, 
38-40. Prior to the GS's testimony, the Government moved for the 
admission of Government Exhibits 1 and 3 as self-authenticating 
documents certifying the accuracy of DEA records regarding 
Respondent's DEA registration status and history. Id. at 17.
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    The GS testified that, on June 16, 2021, she ran a new search on a 
web page of the HHS/OIG and confirmed through that search that 
Respondent was excluded from Medicare, Medicaid, and all federal health 
care programs. Gov. Ex. 7; Tr. 38-39. The GS again searched the 
database the morning before her testimony and confirmed that Respondent 
was still excluded from Medicare, Medicaid, and all federal health care 
programs. Tr. 39.
    The GS presented as an objective investigator, with no discernable 
motive to mislead, fabricate, or exaggerate. The testimony of this 
witness was primarily focused on the uncontroversial and unopposed 
introduction of documentary evidence and her contact with this case.\6\ 
Her testimony was sufficiently detailed, plausible, and internally 
consistent to be afforded full credibility.
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    \6\ Respondent did not object to the admission of any exhibit 
offered by the Government. Tr. 20-21, 28, 33, 36-37, 40.
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D. Respondent's Case

    Respondent, proceeding pro se, presented his own testimony and 
offered eight exhibits in support of his case.\7\ According to 
Respondent, he graduated from the University of Illinois College of 
Dentistry in 1983. Id. at 55. He obtained a license to practice 
dentistry in Illinois in 1983 and then a license in New York on or 
around 1986; however, Respondent only ever practiced in New York City. 
Id. at 55-56. Respondent practiced general dentistry and primarily did 
so in a solo practice. Id. at 57. Respondent is not board-certified. 
Id.
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    \7\ Respondent's exhibits 1, 3, and 4-7 were admitted. Tr. 77-
93. Respondent's exhibits 2 and 8 were excluded. Id. at 82 and 93.
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    Respondent testified that prior to 2014, he had no criminal 
convictions. Id. Additionally, prior to 2014, Respondent had no 
disciplinary proceedings for his Illinois license, but he was 
disciplined once in New York. Id. Specifically, Respondent was 
disciplined in or around 1993 for using a dirty cup while doing mobile 
dentistry for a nonprofit. Id. at 57-58. Respondent blamed the incident 
on a child and explained that the child had taken a dirty cup from the 
garbage and returned it to the cuspidor. Id. Respondent received one 
year of probation and twenty-five hours of community service as 
discipline. Id. at 58.
    Respondent admitted that he pleaded guilty to one count of 
Conspiracy to Commit Health Care Fraud in violation of 18 U.S.C. 1349. 
Kim, No. 1:11-CR-073; Stip. 5. Respondent was sentenced to one year of 
home confinement, three years of supervised release, and 300 hours of 
community service and ordered to pay $5,991,417.13 in restitution. Tr. 
71-73; Gov. Ex. 5 at 2-5. Respondent's New York Dentistry license was 
suspended for three years and was reinstated on March 29, 2020. Stip. 
9; Resp't Ex. 1 at 2.
    According to Respondent's own exhibits from his criminal case, 
Respondent was a manager in the conspiracy. Prior to Respondent's 
sentencing, he was described as ``an active manager at the clinics with 
deep involvement in the planning and execution of the scheme.'' Resp't 
Ex. 3 at 4.\8\ ``For example, [Respondent] was present at a meeting 
with other managers at the clinic where they discussed how to bill 
Medicare for lesion removals, when, in fact, they would only provide 
cosmetic facial services that would entice beneficiaries to come to the 
clinic.'' Id.; see also Resp't Ex. 4 at 8. Additionally, Respondent's 
Presentence Report (PSR) stated that he was a manager of the clinics 
and that he managed employees involved in the conspiracy. Resp't. Ex. 4 
at 7. During his criminal proceedings, Respondent did not object to 
these statements in his PSR. Id.
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    \8\ Respondent's Exhibit 3 is the letter submitted by the 
prosecutor in his criminal case pursuant to Sec.  5K1.1 of the 
United States Sentencing Guidelines. While Respondent did not sign 
the letter, he accepted the benefit of the letter, which was a 
sentence reduction for providing substantial assistance to the 
government. Moreover, the Sec.  5K1.1 letter is based upon, and 
repeatedly cites, ] 20 of the Presentence Report, to which 
Respondent did not object during his sentencing proceedings. Resp't. 
Ex. 4 at 7.
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    During these administrative proceedings, Respondent's description 
of the events behind his conviction was unclear and, at times, 
internally inconsistent and inconsistent with his own exhibits. 
Respondent stated that he had to help his father with the clinic, so he 
assisted with signing checks for rent and electrical bills, while also 
contributing his own money to keep the business solvent. Tr. 60-62; see 
also Resp't Ex. 4 at 10 (``[There] was a shortage of money. I had to 
give the money to the operating'' expenses) (cleaned up). Despite the 
record from his criminal trial, however, Respondent maintained that he 
was not a manager at the clinic. Tr. 60 (denying prosecutor's unopposed 
claim at sentencing that Kim was a manager--``I had no idea'') and 61-
62 (``I was not in payroll on management, so called management''). 
Respondent explained the discrepancy between his trial documents and 
his hearing testimony by stating that he ``was not 100 percent truthful 
on [being a manager],'' when he pleaded guilty. Id. at 100. Respondent 
further stated that he was practicing dentistry outside of the clinic 
while his wife, E.K., and sister, M.L., were responsible for the 
management work at the clinic. Id. at 61.
    While acknowledging his guilty plea, Respondent nonetheless denied 
any direct role in the conspiracy. Rather, when asked about his 
culpability, he responded: ``I don't know what conspiracy meant, but I 
think I was a--you know, I hear it, what's going on. I didn't stop 
them.'' Id. at 70; see also id. at 64 (``I was aware what's going on, 
but I was not actively involved at meetings.''); but see id. at 68 
(``I'm not an attorney, but I'm assuming that I was a manager, on that 
indictment, I was a

[[Page 21141]]

manager.''). He repeatedly denied understanding the Medicare fraud. Id. 
at 53 (``I was not involved in the billing. I don't know what the 
medical billing was.''); 60 (``And then also the Medicare billing. And 
that, I have no idea.''); 62-66 (``I don't know completely'' about 
billing practices of other members at the clinic); 69 (``to this day, I 
don't know what Medicare, you know, medical billing is about'') 
(``still I--scratching my head'' about the billing); 101 (``Again, I 
said, you know, even medical billing, I, to this day I have no idea 
what, you know, the billing code is, I have no idea.''); 109 (``. . . 
but Medicare billing, and you know, that part, I have no idea up to 
this point'').
    When asked whether he was ``present during management meetings 
where the scheme was discussed,'' Respondent answered: ``I have to say 
no, little bit yes.'' Id. at 64. When asked to clarify that answer, 
Respondent testified that he ``knew what's going on.'' Id. at 65. 
Specifically, he testified that he learned about the fraud from 
conversations with his wife and sister. Id. at 66. Later in his 
testimony, however, Respondent stated that he had pleaded guilty 
because at ``the early meeting, I was a participant, fully participant 
on that.'' Id. at 69.
    Respondent pleaded guilty to health care fraud involving luring 
Medicare beneficiaries to the clinics for massages, facials, lunches, 
dancing classes, and other services, inducing those beneficiaries to 
provide their Medicare numbers, and billing Medicare for services that 
were not provided or medically necessary (Gov. Ex. 4 at 5); however, at 
the hearing, Respondent defined the fraud as narrowly involving a 
decision to save money by not hiring enough physical therapists to 
justify the treatment. Tr. 63-67. He testified that he tried to 
convince his family members to do the billing correctly but they 
refused. Id. at 66-67 (``I said do it correctly, you know . . . That's 
what I was trying to tell them, but they did not listen. So I did not 
stop them.''). Because he was ``very concerned,'' Respondent also spoke 
to his father about the billing practices and suggested the clinic use 
a third-party billing company. Id. at 67-68. According to Respondent, 
his wife and sister--the managers of the clinic--``never listened to 
[his] advice.'' Id. at 68.
    Respondent repeatedly explained that he pleaded guilty because of 
his family. Id. at 19 (``I had to plead guilty to minimize any 
trauma.'') (cleaned up); 53 (``I should have stopped the business' so-
called rehab. However, you know, I have to admit that I'm part of it, 
because if I had not done that I would have pointed out my wife, my 
sister, and would traumatize all the family. So I had to plead 
guilty.''); 54 (``I pled guilty to minimize the financial and 
emotional, you know, trauma to my family. And I decided that I, you 
know, needed to avoid a costly and lengthy trial.''). The only 
wrongdoing to which Respondent admitted throughout his testimony was 
that he should have stopped his family, not that he was a manager in 
the clinic, consistent with his guilty plea. Id. at 63 (``I was trying 
to stop them''); 65 (``I knew what's going on. I couldn't stop them''); 
71-72 (``I don't know what conspiracy meant, but I think I was a--you 
know, I hear it, what's going on. I didn't stop them . . . I should 
have stopped them, but I didn't--I couldn't stop them, you know. That 
was my involvement'').
    On cross-examination, Respondent admitted that he failed to 
disclose that the New York State Dental Board placed him on probation 
in 1993 on two of his DEA applications for registration. Id. at 106-
108. Respondent confirmed that he submitted an application in 2016 and 
in 2020 for DEA registration and that he did not disclose his probation 
in 1993 in response to the following question on both applications: 
``Has the applicant ever surrendered (for cause) or had a state 
professional license or controlled substance registration revoked, 
suspended, denied, restricted, or placed on probation, or is any such 
action pending?'' Id.; Gov. Ex. 1 at 1; Gov. Ex. 3 at 2. Respondent 
acknowledged that he provided false responses on both applications and 
attempted to excuse his responses by stating that he misunderstood the 
question. Tr. 107-108.
    Additionally, Respondent admitted that he did not object to being 
classified as a manager in his PSR and during his sentencing hearing. 
Id. at 109-110. Respondent insisted that he was telling the truth now, 
i.e., that he was not actually a manager at the clinic. Id. at 110-111. 
He explained that he was classified as a manager and given a role 
enhancement as a part of his sentence because he was ``not 100 percent 
truthful'' during his sentencing hearing. Id.; Resp't Ex. 4 at 9.
    According to Respondent, he has been practicing dentistry part-time 
and seeing many pro-bono patients since his dentistry license was 
reinstated in March 2020. Tr. 77. While he acknowledged that it is 
possible to continue practicing without a DEA registration, he compared 
it to sending a solider to war without any bullets. Id. at 104.\9\
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    \9\ Respondent also suggested that he was being denied a COR 
because of his race. Respondent's claim was premised on two 
arguments. First, Respondent offered a motion filed by a co-
defendant alleging selective prosecution based on race. Resp't Ex. 8 
for identification. That motion--which was not accepted into 
evidence--did not relate to Respondent and was apparently never 
ruled upon by the court handling the criminal proceedings. Second, 
Respondent referenced an unnamed ``Caucasian'' dentist who he 
claimed was banned for life from participation in Medicare and 
Medicaid but was able to obtain a new DEA registration number. Tr. 
90. This claim had no relationship to Respondent's Exhibit 8 for 
identification, which did not reference the unnamed dentist, nor was 
Respondent able to identify the unnamed dentist or provide any 
documentary evidence to support his claim.
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    As for remedial measures, Respondent testified that his wife and 
family are not involved in his dental practice since they were ``the 
biggest issue.'' Tr. 101. He is the sole manager and is ``in total 
control'' of the finances and billing practices. Id. at 101-102. He 
stated that if it were not for his family at the clinic, he would have 
done the billing 100 percent correctly,\10\ so his sole remedial 
measure is not working with his family. Id.
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    \10\ As previously discussed, Respondent testified multiple 
times that he has no understanding of medical billing. Tr. 60, 69, 
101, 109.
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II. Discussion

    The Government opposes Respondent's COR application on the ground 
that he has been excluded from participating in Medicare, Medicaid, and 
all federal health care programs. ALJ Ex. 1 at 1. *\C\ [In its OSC, the 
Government relies upon grounds Congress provided to support revocation/
suspension, not denial of an application. Prior Agency decisions have 
addressed whether it is appropriate to consider a provision of 21 
U.S.C. 824(a) when determining whether or not to grant a practitioner 
registration application. For over forty-five years, Agency decisions 
have concluded that it is. Robert Wayne Locklear, M.D., 86 FR at 33744-
45 (collecting cases); see also, William Ralph Kincaid. In Robert Wayne 
Locklear, M.D., the former Acting Administrator stated his agreement 
with the results of these past decisions and reaffirmed that a 
provision of section 824 may be the basis for the denial of a 
practitioner registration application. 86 FR at 33745. He also 
clarified that allegations related to section 823 remain relevant to 
the adjudication of a practitioner registration application when a 
provision of section 824 is involved. Id.
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    *\C\ I have substituted the RD's language assessing the 
application of the revocation grounds to my assessment of an 
application under 21 U.S.C. 823(f) in accordance with recent 
decisions.
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    Accordingly, when considering an application for a registration, I 
will

[[Page 21142]]

consider any actionable allegations related to the grounds for denial 
of an application under 823 and will also consider any allegations that 
the applicant meets one of the five grounds for revocation or 
suspension of a registration under section 824. Id. See also Dinorah 
Drug Store, Inc., 61 FR 15972, 15973-74 (1996).

A. 21 U.S.C. 823(f): The Five Public Interest Factors

    Pursuant to section 303(f) of the Controlled Substances Act 
(hereinafter, CSA), ``[t]he Attorney General shall register 
practitioners . . . to dispense . . . controlled substances . . . if 
the applicant is authorized to dispense . . . controlled substances 
under the laws of the State in which he practices.'' 21 U.S.C. 823(f). 
Section 303(f) further provides that an application for a 
practitioner's registration may be denied upon a determination that 
``the issuance of such registration . . . would be inconsistent with 
the public interest.'' Id. In making the public interest determination, 
the CSA requires consideration of the following factors:

    (1) The recommendation of the appropriate State licensing board 
or professional disciplinary authority.
    (2) The applicant's experience in dispensing, or conducting 
research with respect to controlled substances.
    (3) The applicant's conviction record under Federal or State 
laws relating to the manufacture, distribution, or dispensing of 
controlled substances.
    (4) Compliance with applicable State, Federal, or local laws 
relating to controlled substances.
    (5) Such other conduct which may threaten the public health and 
safety.

21 U.S.C. 823(f).

    In this case, it is undisputed that Respondent holds a valid state 
dentistry license and is authorized to dispense controlled substances 
in the State of New York where he practices.
    Because the Government has not alleged that Respondent's 
registration is inconsistent with the public interest under section 
823, and although I have considered 823, I will not analyze 
Respondent's application under the public interest factors. Therefore, 
in accordance with prior agency decisions, I will move to assess 
whether the Government has proven by substantial evidence that a ground 
for revocation exists under 21 U.S.C. 824(a).
    Regarding the revocation/suspension grounds alleged in the OSC, the 
CSA provides, in pertinent part: ``A registration pursuant to section 
824 of this title to . . . dispense a controlled substance . . . may be 
suspended or revoked by the Attorney General upon a finding that the 
registrant: . . . (5) has been excluded (or directed to be excluded) 
from participation in a program pursuant to section 1320a-7(a) of Title 
42.'' 21 U.S.C. 824(a)(5).]\11\
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    \11\ [To avoid repetition, I have omitted the RD's footnote 
which briefly discussed how, in accordance with prior Agency 
decisions, analysis of the public interest factors is unnecessary 
when the Government has not alleged that Respondent's registration 
is inconsistent with the public interest under section 823.]
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B. Exclusion From Participation in a Federal Health Care Program

    The CSA grants the Agency discretion to [revoke a respondent's 
registration] if he ``has been excluded (or directed to be excluded) 
from participation in a program pursuant to [42 U.S.C. 1320a-7(a)].'' 
21 U.S.C. 824(a)(5) (2012). See supra. Section 1320a-7 comprises the 
exclusion of individuals or entities by the Secretary of the U.S. 
Department of Health and Human Services HHS from participating in 
federal health care programs. 42 U.S.C. 1320a-7 (2012). A federal 
health care program is (1) a plan or program providing health benefits 
and which is funded in some way by the U.S. Government (42 U.S.C. 
1320a-7b(f)); or (2) a state health care program or plan receiving 
certain approval or funding from the U.S. Government (42 U.S.C. 1320a-
7(h)). Under clear DEA precedent, Medicare and Medicaid programs 
qualify as ``federal health care programs,'' exclusion from which can 
constitute a basis for revocation of a registration. See, e.g., Daniel 
Ortiz-Vargas, M.D., 69 FR 62095, 62095-96 (2004); Joseph M. Piacentile, 
M.D., 62 FR 35527, 35527-28 (1997); Anibal P. Herrera, M.D., 61 FR 
65075, 65077 (1996); Suresh Gandotra, M.D., 58 FR 64781, 64782 (1993); 
George D. Osafo, M.D., 58 FR 37508, 37509 (1993).
    Specifically, subsection (a) of Sec.  1320a-7, the part of the 
statute referenced by 21 U.S.C. 824(a)(5), dictates when HHS is 
required to exclude individuals or entities.\12\ Id. Sec.  1320a-7(a) 
(``The Secretary shall exclude the following individuals and entities 
from participation in any [f]ederal health care program . . . .'') 
(emphasis added). There are four instances requiring mandatory 
exclusion: (1) Conviction of a criminal offense ``related to the 
delivery of an item or services under [42 U.S.C. 1395 et seq.] or under 
any [s]tate health care program''; (2) conviction, ``under [f]ederal or 
[s]tate law,'' related to patient ``neglect or abuse'' connected ``with 
the delivery of a health care item or service[;] (3) [f]elony 
conviction related to health care fraud''; and ``(4) [f]elony 
conviction related to . . . the unlawful manufacture, distribution, 
prescription, or dispensing of a controlled substance.'' Id. The 
unambiguous words of the CSA in 21 U.S.C. 824(a)(5) provide that a 
practitioner's registration ``may be suspended or revoked'' if the 
practitioner ``has been excluded'' from participating in a program 
pursuant to 42 U.S.C. 1320a-7(a). 21 U.S.C. 824(a)(5). DEA has strictly 
interpreted this provision and acknowledged that the Administrator has 
discretionary power to suspend or revoke a registration only when the 
practitioner has been mandatorily excluded from a federal health care 
program under subsection (a) of 42 U.S.C. 1320a-7. See, e.g., Terese, 
Inc., d/b/a Peach Orchard Drugs, 76 FR 46843, 46847 (2011); Herrera, 61 
FR at 65077; Gandotra, 58 FR at 64782; Nelson Ramirez-Gonzalez, M.D., 
58 FR 52787, 52788 (1993). [The Agency has consistently found that] the 
misconduct mandating exclusion need not relate to controlled substances 
in order to provide the Administrator with the power to suspend or 
revoke (or in this case deny an application for) a COR. Ibrahim Al-
Qawaqneh, D.D.S., 86 FR 10354, 10356 (2021) (registrant excluded due to 
a conviction for illegal remuneration); Jeffrey Stein, M.D., 84 FR 
46968, 46973 (2019) (registrant excluded due to a conviction for tax 
evasion); Melvin N. Seglin, M.D., 63 FR 70431, 70433 (1998) (registrant 
excluded due to a conviction for vendor fraud); Osafo, 58 FR at 37508 
(registrant excluded due to conviction for second degree larceny). 
Additionally, the Agency is generally unwilling to consider the impact 
of revocation or suspension on the community when exercising the 
discretionary authority to grant/deny/revoke/suspend a practitioner COR 
under the CSA. Linda Sue Cheek, M.D., 76 FR 66972, 66972 (2011); see 
also, Gregory D. Owens, D.D.S., 74 FR 36751, 36757 (2009).
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    \12\ In contrast to subsection (a), subsection (b) of 42 U.S.C. 
1320a-7 provides sixteen discretionary grounds of exclusion from 
health care programs. 42 U.S.C. 1320a-7(b) (2012).
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    When DEA alleges that a practitioner has been mandatorily excluded 
from a federal health care program under 42 U.S.C. 1320a-7a, and thus 
seeks to impose a COR sanction, the Government bears the burden to 
prove that such an exclusion occurred. Jin, 77 FR at 35023; see also, 
21 CFR 1301.44(d) (2018) (``At [a] hearing for the denial of a [COR], 
the [Government] shall have the burden of proving that the requirements 
for such registration . . . are not satisfied.''). A mandatory 
exclusion, however, does not mandate revocation/suspension or denial of 
an application; the Agency

[[Page 21143]]

retains authority to independently weigh the evidence presented and 
exercise discretion. Stein, 84 FR at 46970 [ ]. Accordingly, DEA is not 
required to deny Respondent's COR application merely because he is 
subject to a mandatory exclusion. Id.
    In the instant case, it is undisputed that Respondent was excluded 
from participation in Medicare, Medicaid, and all federal health care 
programs under the mandatory authority of 42 U.S.C. 1320a-7a. Stip. 6; 
Gov. Ex. 6. Consequently, under Sec.  824(a)(5), it is within the 
discretion of the Agency to determine, based on the entire record, [the 
consequence of] his exclusion from federal health care programs [on his 
registration or application for a registration]. See Narcisco A. Reyes, 
M.D., 83 FR 61678, 61681 (2018) (holding that where the Government has 
demonstrated the requisite mandatory federal health care program 
exclusion(s), it has satisfied its prima facie case, shifting the 
burden to the respondent).
    Accordingly, in review of the evidence of record, including the 
stipulations of the parties, OSC Allegations 1, 2, and 3 are 
sustained.*\D\
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    *\D\ Moved conclusion and added headings.
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III. Sanction

    Because the Government has met its prima facie burden, the 
Respondent now has the burden to show that registration should be 
granted as a matter of discretion, i.e., he must show that he can be 
entrusted with a registration due to his unequivocal acceptance of 
responsibility and remedial measures to ensure the misconduct will not 
recur. See, e.g., Salvatore Cavaliere, D.O., 85 FR 45657, 45666 (2020); 
Al-Qawaqneh, 86 FR at 10356; George Pursley, M.D., 85 FR 80162, 80187 
(2020); Garrett Howard Smith, M.D., 83 FR 18882, 18910 (2018); Heavenly 
Care Pharmacy, 85 FR 53402, 53420 (2020); Suntree Pharmacy and Suntree 
Medical Equipment, LLC, 85 FR 73753, 73776 (2020); Stein, 84 FR at 
49972; Fred Samimi, M.D., 79 FR 18698, 18713 (2014). He must do so by 
unequivocally acknowledging his misconduct and accepting 
responsibility. Al-Qawaqneh, 86 FR at 10356 (collecting cases); Stein, 
84 FR at 49972-73; Mohammed Asgar, M.D., 83 FR 29569, 29572 (2018); Lon 
F. Alexander, M.D., 82 FR 49704, 49728 (2017) (collecting cases); 
Jeffery M. Freesemann, M.D., 76 FR 60873, 60888 (2011) (collecting 
cases); Ronald Lynch, M.D., 75 FR 78745, 78749 (2010); Medicine Shoppe-
Jonesborough, 73 FR 364, 387 (2008).
    ``The degree of acceptance of responsibility that is required does 
not hinge on the respondent uttering `magic words' of repentance, but 
rather on whether the respondent has credibly and candidly demonstrated 
that he will not repeat the same behavior and endanger the public in a 
manner that instills confidence in the Administrator.'' Stein, 84 FR at 
49973. Mere stipulation to facts without admitting to misconduct does 
not amount to an acceptance of responsibility. Ajay S. Ahuja, M.D., 84 
FR 5479, 5498 n.32 (2019); see also Kaniz F. Khan-Jaffery, M.D., FR 
45667, 45690 (2020) (holding that it was not enough for the respondent 
to simply acknowledge that she ``should have written more''). 
Minimization of misconduct undermines any acceptance of responsibility. 
See Pursley, 85 FR at 80188 (registrant acknowledged his unfamiliarity 
with governing regulations, but stated ``I don't think I left a lot of 
dead bodies laying around.''); Arvinder Singh, M.D., 81 FR 8247, 8249-
51 (2016) (registrant minimized conduct when he claimed he overbilled 
patients only 15 to 20 times, but District Court ordered him to pay 
more than $227,000 in restitution to approximately 250 payees); Stein, 
84 FR at 46972-73 (respondent's assertion that his misdeeds had no 
effect on his patients held to indicate a minimization of his 
acceptance of responsibility rendering it less than unequivocal); 
Lynch, 75 FR at 78749 (Respondent's attempts to minimize misconduct 
held to undermine acceptance of responsibility); Rose Mary Jacinta 
Lewis, M.D., 72 FR 4035, 4042 (2007) (registrant's dishonesty under 
oath undermined registrant's acceptance of responsibility). Blaming 
others for misconduct does not constitute acceptance of responsibility. 
The Pharmacy Place, 86 FR 21008, 21016 (2021) (no acceptance when 
registrant blamed computer software for her inability to have ``readily 
retrievable documents'' and failed to correct her conduct ``by 
providing DEA with accurate and complete log within a reasonable time 
following the inspection''); Michael W. Carlton, M.D., 86 FR 10337, 
10353 (2021) (no acceptance of responsibility when registrant blamed 
another member of the practice); Hamada Makarita, D.D.S., 85 FR 45691, 
45699 (2020) (no acceptance of responsibility when registrant blamed 
his conviction on false testimony of his former office manager and 
denied he ever wrote a prescription without a valid dental purpose). 
But see Michele L. Martinho, M.D., 86 FR 24012, 24014, 24019-20 (2021) 
(Respondent met burden when she testified she accepted responsibility 
100%, always referred to herself as a felon, repaid the bribes, amended 
her tax returns, paid the taxes on the money she took, and embarked 
upon an effort of ``restorative justice'' by engaging in 69 speaking 
engagements focused on real-world ethical decisions).

A. Acceptance of Responsibility

    In the instant case, Respondent's testimony was not candid on the 
key issue of culpability.\13\ His testimony was, at times, non-
responsive, internally inconsistent, and inconsistent with his own 
exhibits. Importantly, this tribunal cannot ignore that Respondent 
pleaded guilty to conspiracy to commit health fraud that included a 
scheme to submit false and fraudulent claims to Medicare. In his 
criminal proceedings, Respondent did not object to his PSR's 
description of the fraudulent scheme, which was broader than merely 
hiring insufficient physical therapists. Resp't Ex. 3 at 3-4 (no 
physical therapy provided at the clinic; rather, patients were 
``lured'' to the clinic and would ``receive medically unnecessary 
chiropractic services,'' facial treatments, free lunches, and classes). 
In these proceedings, however, he cast the scheme as merely a desire to 
save money by not hiring physical therapists. See Tr. 63 (``they were 
not doing all the fraud, but I think for the rehab, I think it was some 
of them were doing--bypassing--you know, trying to save money.''); id. 
(``I said to do it correctly, . . . you have to hire more physical 
therapists to justify the treatment.''). I may treat Respondent's 
failure to dispute these facts at a sentencing hearing as an admission 
of those specific facts. See Uvienome Linda Sakor, N.P., 86 FR 50173, 
50176 (2021).
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    \13\ During his testimony, Respondent also acknowledged that he 
had twice failed to disclose a 1993 disciplinary action in New York 
that resulted in his license being placed on probation. 
Specifically, Respondent failed to answer the question on the 
application form which asks: ``Has the applicant ever surrendered 
(for cause) or had a state professional license or controlled 
substance registration revoked, suspended, denied, restricted, or 
placed on probation, or is any such action pending? '' Tr. 106; Gov. 
Ex. 2 at 1. Respondent claimed that he did not understand the 
question (Tr. 106), although he did correctly answer that same 
question on his 2020 application. Gov. Ex. 2 at 1. While 
Respondent's false answers are not the focus of this inquiry, his 
failure to disclose the 1993 disciplinary proceeding [by his own 
admission] certainly gives this tribunal pause when evaluating 
whether he can be entrusted with a DEA registration.
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    Nor, in his criminal proceedings, did Respondent object to the 
assertion in the PSR that he was a manager who actively participated in 
the scheme, which resulted in the application of a

[[Page 21144]]

sentencing enhancement based on that managerial role. See Resp't Ex. 3 
at 4; Resp't Ex. 4 at 7-8; see also Tr. 96 (stating this assertion was 
inaccurate). According to the PSR, that active participation included a 
meeting with other managers ``where they discussed how to bill Medicare 
for lesion removals, when, in fact, they would only provide cosmetic 
facial services that would entice beneficiaries to come to the 
clinic.'' Resp't Ex. 3 at 4 (citing PSR ] 20); see also Resp't Ex. 4 at 
7 (sentencing transcript, noting Respondent had not objected to nor did 
he object to PSR ] 20). But in these proceedings, Respondent repeatedly 
denied being in any meetings (Tr. 64-66; 98-99), although he 
subsequently admitted, at least obliquely, that he had participated in 
the ``early meeting.'' Tr. 69. On this point, Respondent testified that 
he was ``not 100 percent truthful'' in his criminal proceedings about 
his managerial role. Id. at 100 and 110-111. That admission alone--that 
he lied under oath in his criminal proceedings--strongly supports the 
conclusion that the Agency cannot entrust Respondent with a DEA COR.
    More generally, it is worth noting that, by pleading guilty, 
Respondent obtained a benefit of acceptance of responsibility and, 
ultimately, a sentence of one year of home confinement despite facing a 
Guideline Sentence of 63 to 78 months. Tr. 71; Resp't Ex. 4 at 9. His 
guilty plea in federal court saved him from significant prison time. In 
these proceedings, however, Respondent has attempted to distance 
himself from some of his admissions in the criminal proceedings--in 
particular, his failure to object to the PSR's description of him as a 
manager and active participant in the scheme. Tr. 110. Respondent's 
approach is inconsistent with acceptance of responsibility.
    Indeed, throughout his testimony, Respondent had ample opportunity 
to take full and unequivocal responsibility for his misconduct. Yet 
repeatedly, when pressed on the details of his conviction, Respondent 
failed to do so and, instead, made excuses and blamed others. He 
portrayed himself as simply a good son who was only trying to help his 
family run the clinic and so he began signing checks. Tr. 52. He 
claimed that he tried to stop his family when he realized they were 
defrauding federal health care programs, but did little more than have 
a few conversations with his family members and then gave up when they 
failed to listen. Id. at 67. Finally, he pleaded guilty to spare his 
family the emotional and financial trauma of a trial. Id. at 108-109. 
Overall, Respondent has seriously minimized his role in the conspiracy, 
portrayed himself as an innocent party who was protecting his family, 
and blamed others, including his wife. Thus, Respondent's statements 
fall far short of unequivocal acceptance of responsibility. See 
Pursley, 85 FR at 80188; Singh, 81 FR at 8249-51; Stein, 84 FR at 
46972-73; Lynch, 75 FR at 78749; Jacinta Lewis, 72 FR at 4042.\14\
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    \14\ At the hearing, Respondent--for the first time and with no 
prior notice--suggested that DEA had an improper racial motive for 
denying his application for a COR. Tr. 90-92. Notably, Respondent 
provided no evidence to support his accusation. Respondent's Exhibit 
8 for Identification (which was not admitted), was simply a motion 
filed by a co-defendant in Respondent's criminal case, alleging that 
non-Asian clinic practitioners were not prosecuted while Asian 
clinic practitioners were prosecuted. There is no court order 
granting this motion. Thus, this exhibit, at best, is an unproven 
allegation about the criminal case. Respondent's second claim--
unrelated to Respondent's Exhibit 8 for Identification--alleged that 
there was a ``Caucasian'' registrant--whose name and specific 
circumstances are unknown--who received a COR. This is not 
admissible evidence. In any event, even if Respondent had presented 
evidence that he was selectively prosecuted by the Government, which 
he has not done, selective prosecution is not a defense on the 
merits. See, e.g., United States v. Armstrong, 517 U.S. 456, 463 
(1996) (``Our cases delineating the necessary elements to prove a 
claim of selective prosecution have taken great pains to explain 
that the standard is a demanding one.''); Wayte v. United States, 
470 U.S. 598, 607 (1985) (``In our criminal justice system, the 
Government retains `broad discretion' as to whom to prosecute.''); 
Martex Farms, SE v. EPA, 559 F.3d 29, 32-33 (1st Cir. 2009) 
(applying criminal law principles to reject selective prosecution 
arguments in EPA enforcement action). Because I find that the Agency 
met its prima facie case, and because Respondent has failed to 
unequivocally accept responsibility, his unsupported claim cannot 
alter the outcome here.
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    Thus, based on the evidence as detailed supra, I find that, in the 
face of the Government's prima facie case, Respondent has failed to 
unequivocally accept responsibility for his past misconduct; therefore, 
he cannot be trusted with a DEA COR. See Singh, 81 FR at 8250.
    Having concluded that Respondent has failed to prove an unequivocal 
acceptance of responsibility, I need not address remedial measures. 
Ahuja, 84 FR at 5498 n.33; Daniel A. Glick, D.D.S., 80 FR 74800, 74801 
(2015); Perry County Food & Drug, 80 FR 70084, 70090-91 (2015); Jones 
Total Health Care Pharmacy, LLC v. DEA, 881 F.3d 823, 833 (2018). 
Nevertheless, even if remedial measures were considered, they would not 
change the result.
    The burden is on Respondent to present sufficient evidence of his 
remedial measures. See Scott D. Fedosky, M.D., 76 FR 71375, 71378 
(2011) (declining to give weight to remedial measures where the 
respondent testified about them but did not present any corroborating 
evidence to support his claim). And even if Respondent does introduce 
specific evidence of remedial measures, registration will not be 
granted unless such measures demonstrate that he can be entrusted with 
a COR. Jeri Hassman. M.D., 75 FR 8194, 8237 (2010) (denying a COR where 
the Agency found that the respondent had learned nothing from the 
remedial steps she had taken).
    Here, Respondent's only claimed remedial measure is that he no 
longer works with his family and he will handle his own billing as he 
practices dentistry. But this is not a remedial measure; it is a 
promise that Respondent will not work with his family. It is not a 
particularly persuasive promise given Respondent's emphasis that his 
wife and sister never listened to him and his past history--by his own 
admission--that he simply acquiesces to them. See, e.g., Tr. 67. 
Notably absent is any true remedial measure, such as hiring a third-
party billing company or taking courses to improve his understanding of 
Medicare billing, to ensure he does not defraud federal health care 
programs again. Tr. 101-103. Thus, his promise to not work with his 
family again is unpersuasive and insufficient. Simply put, Respondent 
has not made an adequate showing that he can be trusted with a COR.

B. Specific and General Deterrence

    *\E\ In determining whether and to what extent imposing a sanction 
is appropriate, the Agency considers specific and general deterrence as 
well as the egregiousness of the offenses established by the 
Government's evidence. David A. Ruben, 78 FR 38363, 38384, 38385 
(2013). The Agency has previously found [based on specific 
circumstances] that criminal convictions and sanctions by state 
licensing authorities can sufficiently deter physicians from engaging 
in misconduct, making the denial or of an application for, or 
revocation of, a COR unnecessary to achieve the goal of general 
deterrence. Kansky J. Delisma, M.D., 85 FR 23845, 23854 (2020). 
Likewise, such punitive measures can suffice to deter the registrant or 
applicant from future misconduct, making revocation or denial of an 
application unnecessary to achieve specific deterrence. Id.
---------------------------------------------------------------------------

    *\E\ Language omitted.
---------------------------------------------------------------------------

    With respect to specific deterrence, Respondent failed in these 
proceedings to accept responsibility for his role in a four-year health 
care fraud conspiracy. He has minimized his responsibility,

[[Page 21145]]

blamed others, and has no concrete remedial plan. Given these facts, 
the tribunal can only conclude that granting Respondent a COR would put 
the public at risk of Respondent's previous fraudulent behavior. 
Moreover, with respect to general deterrence, the Agency bears the 
responsibility to deter conduct similar to Respondent's past 
misconduct. Ruben, 78 FR at 38385. Granting a COR to an applicant who 
has neither unequivocally taken responsibility for his misconduct, nor 
demonstrated sufficient remedial measures to ensure such conduct will 
not happen again, would send a message to all that there will be few 
consequences to defrauding federal health care programs.

C. Egregiousness

    Finally, this tribunal finds that Respondent's behavior was 
egregious. While Respondent did not divert controlled substances, 
defrauding federal health care programs is egregious. See Stein, 84 FR 
at 46973 (finding that the respondent's actions were egregious because 
he defrauded the government of taxes and misused his position of 
trust); Ramirez-Gonzalez, 58 FR at 52788 (``fraud perpetrated by the 
respondent casts doubt upon his integrity, and as such supports an 
action against his registration''); Osafo, 58 FR at 37509 
(``Respondent's submission of fraudulent medical claims and subsequent 
convictions of larceny indicated that Respondent placed monetary gain 
above the welfare of his patients, and in so doing, endangered the 
public health and safety.''). Respondent engaged in a four-year 
conspiracy to defraud federal health care programs and the cost of that 
fraud, as reflected in the restitution amount imposed at his 
sentencing, was $5,991,417.13. Tr. 71-73; Gov. Ex. 5 at 2-5.
    Moreover, the Agency ``relies heavily on a registrant's honesty and 
integrity `to complete its mission of preventing diversion within such 
a large regulated population.' '' Michael Jones, M.D., 86 FR 20728, 
20731 (2021) (quoting Stein, 84 FR at 46974). ``Because DEA depends on 
the integrity of those it entrusts with controlled substance 
privileges, it takes a close look at a registrant's fraudulent 
activity.'' Jones, 86 FR at 20731 (citing Ramirez-Gonzalez, 58 FR at 
52788). Even if the fraud does not involve controlled substances, 
``fraudulent activity indicates that a registrant places monetary gain 
above the welfare of his patients, and in so doing, endangers the 
public health and safety.'' Jones, 86 FR at 20731-32 (internal 
quotations omitted); see also Osafo, 58 FR at 37509. Respondent's 
behavior demonstrates that he lacks integrity and cannot be trusted. In 
particular, his admission that he ``was not 100 percent truthful on 
[being a manager]'' when he pleaded guilty under oath (Tr. 100) is 
stark proof that the Agency cannot rely on Respondent's honesty as a 
registrant. His lack of remorse and acceptance of responsibility 
further shows that he does not recognize the seriousness of his 
actions, so he should not be entrusted with a COR.
    Accordingly, it is herein respectfully recommended that 
Respondent's application for a DEA registration be denied.

Dated: October 12, 2021.

Teresa A. Wallbaum,
Administrative Law Judge.

Order

    Pursuant to 28 CFR 0.100(b) and the authority vested in me by 21 
U.S.C. 824 and 823(f), I hereby deny the pending application for a 
Certificate of Registration, Control Number W20055916C, submitted by 
Gilbert Y. Kim, D.D.S. as well as any other pending application of 
Gilbert Y. Kim, D.D.S. for additional registration in New York. This 
Order is effective May 9, 2022.

Anne Milgram,
Administrator.
[FR Doc. 2022-07717 Filed 4-8-22; 8:45 am]
BILLING CODE 4410-09-P