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Federal Register / Vol. 86, No. 125 / Friday, July 2, 2021 / Notices system failed to disclose an improper billing to Medicaid. Once the initiation of a patients treatment is entered into the Electronic Medical Record EMR, which triggers automatic billing, in this case to Medicaid, that billing continues until a treatment report noting cessation of treatment triggers the termination of billing. Here, the patients guardian refused treatment for the patient. So, no treatment reports were ever generated and automatic billing to Medicaid continued, despite no treatment being provided. Id. at 48, 71, 74.
27. Respondent testified that it was a huge gap on our end or my end, really, that let that slip through. Id. at 49.
28. Respondent testified that the fault was mine and that it was my responsibility. Id.
29. Respondent testified that he entered an Alford plea regarding this incident. Id. at 29; GX 3.
30. Respondent testified that he entered the Alford plea because I did not personally go enter these claims, but I am responsible for it as the administrator. Tr. 50.
31. Respondent testified that he was sentenced to three years, but it was suspended and he served no time in jail.
Id. at 51.
32. Respondent testified that he was put on probation for three years, which remains in effect for another year. Id. at 5152.
33. Respondent testified that the clinic paid restitution of $83,027.67. Id.
at 42; GX 3.
34. Respondent testified that his Alford plea resulted in his conviction of a felony for a false statement to Medicaid. Tr. 52.
35. Respondent testified that he was excluded by the HHS/OIG from Medicare and Medicaid. Id. at 54, 57;
GX 5.
36. Respondent testified that his false statement to Medicaid was an isolated incident, wasnt intentional but that as administrator it is my responsibility. Tr. 58.
37. Respondent testified that the Board of Nursing did not deem me a threat to public welfare and safety and that he has no criminal background at all with substances. Id.
38. Respondent testified that he absolutely accepts responsibility for the misconduct. Id. at 58, 67.
39. Respondent testified that he considers his criminal conviction to be a serious violation. Id. at 67.
40. Respondent testified that he is remorseful for his violation. Id. at 58, 67.
41. Respondent testified that this violation will not happen again because he no longer works in administrative
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roles, but instead provides direct patient care and does no billing. Id. at 58.
42. Respondent testified that he also has a physician supervisor who provides oversight. Id. at 5859.
Respondent testified that, under Tennessee law, his physician supervisor must sign off on every controlled substance prescription that he writes.
Id. at 59, 65.
43. Respondent testified that his Tennessee nursing license is on probation, but that he has no restrictions on his practice or on prescribing. Id. at 60.
44. Respondent testified that none of the allegations against him from the home health agency involved controlled substances. Id.
45. Respondent testified that his probation is scheduled to end in August 2020. Id. at 64; GX 4.
Analysis Findings as to Allegations The Government alleges that the Respondents COR should be revoked and any pending applications be denied because the Respondent has been excluded from all federal health care programs, pursuant to 21 U.S.C.
824a5. The Agency has held that section 824a5 authorizes the revocation of existing registrations, as well as the denial of applications.
Dinorah Drug Store, Inc., 61 FR 15,972
1996; Kuen H. Chen, M.D., 58 FR
65,401 1993.
In the adjudication of a revocation or suspension of a DEA COR, DEA has the burden of proving that the requirements for such revocation or suspension are satisfied. 21 CFR 1301.44e 2010.
Where the Government has sustained its burden and made its prima facie case, a respondent must both accept responsibility for his actions and demonstrate that he will not engage in future misconduct. Patrick W. Stodola, M.D., 74 FR 20,727, 20,734 2009.
Acceptance of responsibility and remedial measures are assessed in the context of the egregiousness of the violations and the DEAs interest in deterring similar misconduct by the Respondent in the future as well as on the part of others. David A. Ruben, M.D., 78 FR 38,363, 38,364 2013.
Where the Government has sustained its burden, that registrant must present sufficient mitigating evidence to assure the Acting Administrator that he/she can be entrusted with the responsibility commensurate with such a registration.
Medicine Shoppe-Jonesborough, 73 FR
364, 387 2008.
The burden of proof at this administrative hearing is a
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preponderance-of-the-evidence standard. Steadman v. SEC, 450 U.S. 91, 10001 1981. The Acting Administrators factual findings will be sustained on review to the extent they are supported by substantial evidence. Hoxie v. DEA, 419 F.3d 477, 481 6th Cir. 2005. The Supreme Court has defined substantial evidence as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Consolidated Edison Co. of New York v. National Labor Relations Board, 305 U.S. 197, 229 1938. While the possibility of drawing two inconsistent conclusions from the evidence does not limit the Acting Administrators ability to find facts on either side of the contested issues in the case, Shatz v. U.S. Dept of Justice, 873 F.2d 1089, 1092 8th Cir.
1989; Trawick v. DEA, 861 F.2d 72, 77
4th Cir. 1988, all important aspects of the problem, such as a respondents defense or explanation that runs counter to the Governments evidence must be considered. Wedgewood Vill. Pharmacy v. DEA, 509 F.3d 541, 549 D.C. Cir.
2007; Humphreys v. DEA, 96 F.3d 658, 663 3rd Cir. 1996. The ultimate disposition of the case must be in accordance with the weight of the evidence, not simply supported by enough evidence to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion sought to be drawn from it is one of fact for the jury. Steadman, 450 U.S. at 99 internal quotation marks omitted.
Regarding the exercise of discretionary authority, the courts have recognized that gross deviations from past agency precedent must be adequately supported, Morall v. DEA, 412 F.3d 165, 183 D.C. Cir. 2005, but mere unevenness in application does not, standing alone, render a particular discretionary action unwarranted. Chein v. DEA, 533 F.3d 828, 835 D.C. Cir.
2008 citing Butz v. Glover Livestock Commn Co., 411 U.S. 182, 188 1973.
It is well-settled that since the Administrative Law Judge has had the opportunity to observe the demeanor and conduct of hearing witnesses, the factual findings set forth in this recommended decision are entitled to significant deference, Universal Camera Corp. v. NLRB, 340 U.S. 474, 496 1951, and that this recommended decision constitutes an important part of the record that must be considered in the Acting Administrators decision. Morall, 412 F.3d at 179. However, any recommendations set forth herein regarding the exercise of discretion are by no means binding on the Acting Administrator and do not limit the
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