Federal Register / Vol. 87, No. 69 / Monday, April 11, 2022 / Notices 21139 

*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. 

*B I have omitted a section of the RD’s discussion 

of the procedural history to avoid repetition with 

my introduction. 

1Respondent 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. 

2Respondent has stipulated to the factual basis 

underlying this allegation. See Stip. 6. 

3The 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. 

4Respondent has stipulated to the factual basis 

underlying this allegation. See Stip. 7. 

Jennifer Smith, M.D. to renew or modify 

this registration, as well as any other 

pending application of Jennifer Smith, 

M.D., for additional registration in New 

York. This Order is effective May 11, 

2022. 

Anne Milgram, 

Administrator. 

[FR Doc. 2022–07700 Filed 4–8–22; 8:45 am] 

BILLING CODE 4410–09–P 

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

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. 

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. 

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. 


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5Specifically, 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 selfauthenticating documents certifying the accuracy of 

DEA records regarding Respondent’s DEA 

registration status and history. Id. at 17. 

6Respondent did not object to the admission of 

any exhibit offered by the Government. Tr. 20–21, 

28, 33, 36–37, 40. 

7Respondent’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. 

8Respondent’s Exhibit 3 is the letter submitted by 

the prosecutor in his criminal case pursuant to 

§ 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 § 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. 

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-anda-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. 

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. 

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. 

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. 

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 


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9Respondent 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 codefendant 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. 

10As previously discussed, Respondent testified 

multiple times that he has no understanding of 

medical billing. Tr. 60, 69, 101, 109. 

*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. 

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

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. 

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 fortyfive 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. 

Accordingly, when considering an 

application for a registration, I will 


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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.] 

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). 

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

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 OrtizVargas, 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 

§ 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. 

§ 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). 

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 


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*DMoved conclusion and added headings. 

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. 

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 § 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

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). 

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 


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14At 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. *E Language omitted. 

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

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. 

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, 


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1Although Registrant’s COR has expired, the 

Agency has discretion to adjudicate this Order to 

Show Cause to finality. See Jeffrey D. Olsen, M.D., 

84 FR 68474, 68479 (2019) (declining to dismiss an 

immediate suspension order as moot when the 

registrant allowed the subject registration to expire 

before final adjudication). As my predecessor 

identified in Olsen, ‘‘[b]ecause nothing in the CSA 

Continued 

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 

DEPARTMENT OF JUSTICE 

Drug Enforcement Administration 

George Pharmacy, Inc.; Decision and 

Order 

On August 1, 2019, a former Acting 

Administrator of the Drug Enforcement 

Administration (hereinafter, DEA or 

Government), issued an Order to Show 

Cause and Immediate Suspension of 

Registration (hereinafter, OSC) to George 

Pharmacy, Inc. (hereinafter, Registrant) 

of Dayton Beach, Florida. Government’s 

Request for Final Agency Action 

(hereinafter, RFAA) Exhibit 1 (OSC). 

The OSC informed Registrant of the 

immediate suspension of its DEA 

Certificate of Registration Number 

FG5612127 (hereinafter, registration or 

COR) and proposed its revocation, the 

denial of any pending applications for 

renewal or modification of such 

registration, and the denial of any 

pending applications for additional DEA 

registrations pursuant to 21 U.S.C. 

824(a)(4) and 823(f), because 

Registrant’s ‘‘continued registration is 

inconsistent with the public interest.’’ 

Id. (citing 21 U.S.C. 824(a)(4) and 

823(f)). 

The OSC notified Registrant of its 

right to request a hearing on the 

allegations or to submit a written 

statement while waiving its right to a 

hearing, the procedures for electing 

either option, and the consequence of 

failing to elect either option. Id. at 10– 

11 (citing 21 CFR 1301.43). 

In response to the OSC, Registrant 

filed a timely request for an 

administrative hearing. RFAAX 3 

(Request for Hearing). After both parties 

filed prehearing statements, and 

Registrant moved to continue the 

hearing, the Chief Administrative Law 

Judge (hereinafter, Chief ALJ), set a 

hearing date of December 17, 2019, in 

Arlington, Virginia. RFAAX 4. On 

December 12, 2019, Registrant filed a 

motion to terminate proceedings, stating 

that Registrant ‘‘respectfully withdraws 

its prior request for hearing and desires 

that the administrative hearing 

presently scheduled be cancelled, and 

the proceedings terminated.’’ RFAAX 5. 

On the same day, the Chief ALJ granted 

Registrant’s motion and cancelled the 

hearing. RFAAX 6. 

On March 12, 2020, the Government 

forwarded an RFAA, along with the 

evidentiary record for this matter, to my 

office. Having considered the record in 

its entirety, I find that the record 

establishes, by substantial evidence, that 

Registrant committed acts rendering its 

continued registration inconsistent with 

the public interest. I further find that 

Registrant’s conduct was egregious, and 

that Registrant’s failure to respond to 

the Government’s allegations weighs 

strongly against continuation of its 

registration. Accordingly, I conclude 

that the appropriate sanction is the 

revocation of Registrant’s DEA 

registration. 

I. Findings of Fact 

A. Registrant’s DEA Registration 

Registrant was registered with DEA as 

a retail pharmacy in Schedules II 

through V under DEA registration 

number FG5612127, at the registered 

address of 948 Orange Avenue, Dayton 

Beach, Florida 32114–0000. RFAAX 8 

(DEA Certificate of Registration). 

According to Agency records, this 

registration expired on February 28, 

2019. Id.1


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