[Federal Register Volume 81, Number 141 (Friday, July 22, 2016)]
[Notices]
[Pages 47826-47829]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-17394]
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DEPARTMENT OF JUSTICE
Drug Enforcement Administration
Mikhayl Soliman, M.D.: Decision and Order
On March 27, 2015, the Deputy Assistant Administrator, Office of
Diversion Control, Drug Enforcement Administration, issued an Order to
Show Cause to Mikhayl Soliman, M.D. (hereinafter, Applicant), of both
Wayne, Michigan and Los Angeles, California. The Show Cause Order
proposed the denial of Applicant's applications for DEA Certificates of
Registration in the States of Michigan and California on multiple
grounds. GX 7, at 1.
First, the Show Cause Order alleged that Applicant had previously
been registered to handle controlled substances in only Schedule III
and IIIN, at the registered address of 3152 South Wayne Road, Wayne,
Michigan. Id. The Show Cause Order alleged that on September 14, 2012,
Applicant was issued an Order to Show Cause and Immediate Suspension of
Registration and that he subsequently voluntarily surrendered his
registration.
The Show Cause Order alleged that on September 24, 2012, Applicant
applied for a new DEA practitioner's registration at his previous
registered location in Wayne, Michigan, and that on October 2, 2012, he
applied for a new practitioner's registration at a proposed location in
Los Angeles, California. Id. The Order then alleged that on both
applications, Applicant had failed to disclose that he had voluntarily
surrendered his registration and had materially falsified both
applications. Id. at 1-2 (citing 21 U.S.C. 843(a)(4)(A)).
Second, the Show Cause Order alleged that as a result of actions
taken by the medical boards of California and Michigan, Applicant is
``without authority to practice in the States . . . in which [he]
applied for'' DEA registrations. Id. at 2. Specifically, the Show Cause
Order alleged that on January 15, 2014, the Michigan Board of Medicine
issued a Consent Order which found that he ``had prescribed controlled
substances . . . in a manner which demonstrated negligence,
incompetence, and a lack of good moral character'' and that he
``prescribed, gave away or administered drugs for other than lawful
diagnostic or therapeutic purposes.'' Id. The Order also alleged that
the Michigan Board had suspended his medical license for six months and
one day and required that he petition the Board for reinstatement; the
Order then alleged that Applicant's Michigan medical license remains
suspended. Id. The Order further alleged that based on the Michigan
Board's findings, the Medical Board of California revoked his
California license effective October 10, 2014. Id.
Finally, the Show Cause Order alleged that on May 16, 2012, DEA
Investigators had seized 323 patient files which Applicant had
discarded in the trash at his residence, and that the files showed that
Applicant had prescribed both hydrocodone (then a Schedule III
controlled substance) and alprazolam (a Schedule IV drug) ``to the
majority of these patients.'' Id. The Order then alleged that DEA
Investigators obtained information from the Michigan Automated
Prescriptions System which showed that ``between January 1, 2007 and
August 20, 1012, [Applicant] prescribed at least 19,409 dosage units of
[s]chedule II [drugs], 725,760 dosage units of [s]chedule IV [drugs],
and 246,397 dosage units of [s]chedule V [drugs], without the
registered authority to do so.'' Id.\1\
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\1\ The Show Cause Order also notified Applicant of his right to
either request a hearing on the allegations of the Order to Show
Cause or to submit a written statement while waiving his right to a
hearing, the procedure for electing either option, and the
consequence of failing to elect either option. GX 7, at 3.
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Thereafter, the Government attempted to serve the Show Cause Order
by FedEx delivered to the proposed business address Applicant used when
he applied for a registration in Los Angeles. GX 9, at 1. The
Government did not, however, require a signature. Id. at 1-2. Moreover,
the Government does not point to any precedent of either the courts or
this Agency which allows for the use of FedEx to serve a charging
document or complaint (as opposed to post-service filings) on a
person.\2\ Thus, this attempt was deemed inadequate to accomplish
service.
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\2\ Nor am I aware of any rules of procedure which allow for a
charging document or complaint to be served in this manner.
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The Government also noted that it emailed a lawyer who was
representing Applicant ``in a pending criminal matter'' and asked him
if he could confirm Applicant's current address or accept service on
Applicant's behalf. GX 10. The lawyer, however, did not respond.
Request for Final Agency Action, at 3. Moreover, according to the
Government, a Supervisory Diversion Investigator phoned the attorney
and asked for Applicant's address in order to serve the Show Cause
Order. Id. According to the Government, while the attorney stated that
he would contact the Government's counsel, he did not.\3\ Id.
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\3\ Given that Applicant had been criminally charged and
released on bond, the Pre-Trial Services Office would likely have
been a more fruitful source for obtaining his residence address.
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The Government then mailed the Show Cause Order by certified mail,
return receipt requested, addressed to Applicant at his proposed
business address in Wayne, Michigan. GX 11, 12, and 13. Several weeks
later the mailing was returned unclaimed, with the Post Office
indicating that it was ``unable to forward'' the mailing. GX 13. The
Government did not, however, send the Show Cause Order to Applicant by
First Class Mail. See Jones v. Flowers, 547 U.S. 220 (2006).
Subsequently, the Government submitted a Request for Final Agency
Action along with the Investigative File. Upon review of the record, I
found that service was inadequate and directed that the Request for
Final Agency Action be returned.
On November 9, 2015, the Government again mailed the Show Cause
Order by certified mail, return receipt requested, addressed to
Applicant at his proposed registered location. Here again, several
weeks later the mailing was returned by the Post Office as
undeliverable. GX 18.
Also on November 9, 2015, the same day the Government had re-mailed
the Show Cause Order, it emailed the Order to Applicant at the email
address he had provided to the Agency on his applications. According to
an affidavit submitted by the Government, it ``did not receive any
bounce-back email or other indication that the email . . . was
undeliverable or otherwise not received.'' GX 19.
Upon re-submission of its Request for Final Agency Action, the
Government advised that on September 24, 2015, Applicant was found
guilty in the United States District Court for the Eastern District of
Michigan on multiple counts of health care fraud and aiding and
abetting the unlawful distribution of controlled substances. Request
for Final Agency Action, at 4; see also GX 15, at 5). The Government
further advised that on October 5, 2015,
[[Page 47827]]
Applicant failed to appear for a bond hearing leading the District
Court to issue a bench warrant for his arrest.
Based on the above, I find that the Government has satisfied its
obligation under the Due Process Clause ``to provide `notice reasonably
calculated, under all the circumstances, to apprise interested parties
of the pendency of the action and afford them an opportunity to present
their objections.' '' Jones, 547 U.S. at 226 (quoting Mullane v.
Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950)). Due
process does not, however, require actual notice, Jones, 547 U.S. at
226 (quoting Dusenbery v. United States, 534 U.S. 161, 170 (2002)), but
rather, only `` `notice reasonably calculated, under all the
circumstances, to apprise interested parties of the pendency of the
action and afford them an opportunity to present their objections.' ''
Id. (quoting Mullane, 339 U.S. at 314). Moreover, the Government is not
required to undertake ``heroic efforts'' to find an applicant.
Dusenbery, 534 U.S. at 170 (2002).
Here, I conclude that Applicant's secreting himself rendered the
Government's use of the traditional means of service futile, and that
therefore, the Government was entitled to attempt to serve the Show
Cause Order by emailing it to him at the email address he had
previously provided to the Agency. See Rio Properties, Inc. v. Rio
Int'l Interlink, 284 F.3d 1007, 1017-18 (9th Cir. 2002); see also
Snyder, et al. v. Alternate Energy Inc., 857 N.Y.S. 2d 442, 447-449
(N.Y. Civ. Ct. 2008); In re International Telemedia Associates, Inc.,
245 B.R. 713, 721-22 (Bankr. N.D. Ga. 2000).
To be sure, courts have recognized that the use of email to serve
process has ``its limitations,'' including that ``[i]n most instances,
there is no way to confirm receipt of an email message.'' Rio
Properties, 284 F.3d at 1018. Here, however, I conclude that the use of
email to serve Applicant satisfied due process because service was made
to an email address he had previously provided to the Agency and the
Government did not receive back either an error or undeliverable
message. See Richard C. Quigley, D.O., 79 FR 50945 (2014); Emilio Luna,
M.D., 77 FR 4829 (2012), see also Robert Leigh Kale, 76 FR 48898,
48899-900 (2011). Thus, I am satisfied that the Government has provided
Applicant with notice ``reasonably calculated . . . to apprise [him] of
the pendency of the action'' and to present his objections.\4\ Jones,
547 U.S. at 226 (quoting Mullane, 339 U.S. at 314).
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\4\ Because Applicant is a fugitive, I need not decide whether
the Government could have satisfied its constitutional obligation by
simply re-mailing the Show Cause Order to him by regular first class
mail as the Supreme Court's decision in Jones v. Flowers suggests.
Jones, 547 U.S. at 234-35.
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Having found that the service of the Show Cause Order was
constitutionally adequate, I turn to whether Applicant has waived his
right to a hearing or to submit a written statement in lieu of a
hearing. According to the Government, since the re-service of the Show
Cause Order, neither Applicant, nor anyone purporting to represent him,
has requested a hearing or submitted a written statement of position.
Accordingly, as more than 30 days have now passed since the date of
service, I find that Applicant has waived his right to a hearing or to
submit a written statement. 21 CFR 1301.43(d). I therefore issue this
Decision and Final Order based on relevant evidence contained in the
Investigative Record submitted by the Government. Id. 1301.43(d) & (e).
I make the following additional findings of fact.
Findings of Fact
Applicant previously held DEA Certificate of Registration
BS9471309, pursuant to which he was authorized to dispense controlled
substances in Schedules III and IIIN, at the registered address of
Soliman Medical Center, 3152 South Wayne Road, Wayne, Michigan. GX 2,
at 1. However, on September 14, 2012, the former Administrator issued
an Order to Show Cause and Immediate Suspension of Registration to
Applicant, based on allegations that he was prescribing controlled
substances in Schedules II, IV, and V, for which he lacked authority,
and that he also issued prescriptions for drug cocktails of hydrocodone
(then Schedule III) and alprazolam (Schedule IV) which lacked a
legitimate medical purpose. GX 3, at 1-2. The former Administrator also
noted that of the 323 patient files DEA Investigators found in his
trash, 143 of the patients had ``criminal histories involving
controlled substance violations.'' Id. at 2. The same day, Applicant
voluntarily surrendered his registration ``in view of [his] alleged
failure to comply with the Federal requirements pertaining to
controlled substances.'' GX 4, at 1.
Four days later, on September 21, 2012, Applicant submitted an
application for a new registration as a practitioner in Schedules IIN,
III, IIIN and IV at the registered address of 3152 South Wayne Road,
Wayne, Michigan. The DEA Chief of Registration certified that on his
application, Applicant answered ``No'' to question 3, which asks:
``[h]as the applicant ever surrendered (for cause) or had a federal
controlled substance registration revoked, suspended, restricted or
denied, or is any such action pending?'' GX 1, at 1, 3. This
application remains pending before the Agency. Id. at 1.
On October 1, 2012, Applicant submitted a second application for
registration as a practitioner in Schedules III, IIIN, IV, and V, at
the registered address of 3844 Wasatch Ave #4, Los Angeles, California.
GX 8. The DEA Chief of Registration certified that on his application,
Applicant answered ``No'' to the question, ``Has the applicant ever
surrendered (for cause) or had a federal controlled substance
registration revoked, suspended, restricted or denied, or is any such
action pending?'' GX 8, at 2, 4.
On February 25, 2013, the Michigan Board of Medicine's Disciplinary
Subcommittee filed an Administrative Complaint against Applicant. GX 5,
at 13. Based on a review of 20 patient charts, the Board alleged that
his charting was lacking:
(1) ``information pertaining to past medical history or current
treating clinicians'';
(2) ``any findings pertaining to pain assessment, level of
dysfunction from pain, treatment plan, or diagnostic testing'';
(3) ``any documentation pertaining to patient informed consents,
prescribing agreements, pain assessments, clinical documentation,
drug analysis screens, lab test results, patient risk assessments,
copies of previous medical records, or the implementation of a pain
management program''; and
(4) ``any documentation that [he] monitored the patients' use of
the controlled substances for drug dependency or diversion, or that
he verified the efficacy of the long term use of the controlled
substances in treating the diagnoses of the patients.''
Id. at 10-11. The Board also alleged that the charts ``lack[ed]
documentation that [he] counselled the patients about the risk
associated with being prescribed a combination of hydrocodone and
alprazolam, or the long term effects of continued consumption of
acetaminophen.'' Id. Based on its findings, the Board alleged that
Applicant had violated various provisions of Michigan law, and had
engaged in ``selling, prescribing, giving away, or administering drugs
for other than lawful diagnostic or therapeutic purposes.'' Id. at 12
(quoting Mich. Comp. Laws section 162221(c)(iv)).
On January 15, 2014, Applicant stipulated with the Board to the
entry of a Consent Order, pursuant to which his medical license was
suspended for six months and one day, effective February
[[Page 47828]]
15, 2014.\5\ GX 5, at 1-3. However, the Consent Order also provided
that the reinstatement of Applicant's medical license ``is not
automatic and that he will have to petition for reinstatement'' and
show that he is of ``good moral character,'' that he has ``the ability
to practice . . . with reasonable skill and safety,'' that he has
satisfied ``the guidelines on reinstatement,'' and that the
reinstatement of his license ``is in the public interest.'' Id. at 2.
See also M.C.L.A. 333.16221.
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\5\ Applicant was not required to admit that the allegations
were true. GX 5, at 3.
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To date, Applicant has not been reinstated. I therefore find that
Applicant is currently without authority to dispense controlled
substances in Michigan, one of the States in which he seeks
registration.
Applicant also formerly held a Physician's and Surgeon's
Certificate issued by the Medical Board of California. However, on
October 10, 2014, the Medical Board revoked his Physician's and
Surgeon's Certificate based on the Michigan Board of Medicine's
suspension of his Michigan medical license.
In its Request for Final Agency Action, the Government notes that
the Order to Show Cause also sought to deny Applicant's application for
a DEA registration in California on the basis that the California
Medical Board had revoked his medical license. Request for Final Agency
Action, at 2 n.1. The Government, however, now advises that
``subsequent to the issuance of the [Show Cause Order], the undersigned
counsel learned that the . . . Los Angeles Field Division . . .
withdrew [Applicant]'s application pursuant to 21 CFR 1301.16(b), which
provides that `failure of the applicant to respond to official
correspondence regarding the application, when sent by registered or
certified mail, return receipt requested, shall be deemed to be a
withdrawal of the application.' '' Id. (quoting 21 CFR 1301.16(b)). The
Government further explains that in December 2014, the Los Angeles
Field Division ``attempted to reach [Applicant] via certified mail at
his application addresses in California and Michigan, [but] the
certified letters were returned as unclaimed and undeliverable, and
consequently, [his] application for a DEA Registration in California
was `deemed' a withdrawal and terminated in the registration
database.'' Id. at 2-3.
The Agency's registration records (of which I take official notice,
see 5 U.S.C. 556(e)), show that on December 5, 2014, Applicant was sent
a letter requesting that he provide a valid California Medical Board
license number in order to process his pending application for
registration. According to the affidavit of the then-chief of the
Agency's registration unit, on February 27, 2015, Applicant's October
1, 2012, application for his proposed Los Angeles, California address
was deemed ``withdrawn and retired from the DEA computer system.'' GX
8, at 1.
Discussion
Pursuant to section 303(f) of the Controlled Substances Act,
``[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 the 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 . . . 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.
Id.
``These factors are . . . considered in the disjunctive.'' Robert
A. Leslie, M.D., 68 FR 15227, 15230 (2003). I ``may rely on any one or
a combination of factors, and may give each factor the weight [I] deem[
] appropriate in determining whether . . . an application for
registration [should be] denied.'' Id. Moreover, while I am required to
consider each of the factors, I ``need not make explicit findings as to
each one.'' MacKay v. DEA, 664 F.3d 808, 816 (10th Cir. 2011) (quoting
Volkman, 567 F.3d 215, 222 (6th Cir. 2009) (quoting Hoxie, 419 F.3d
477, 482 (6th Cir. 2005))).\6\
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\6\ ``In short, this is not a contest in which score is kept;
the Agency is not required to mechanically count up the factors and
determine how many favor the Government and how many favor the
[applicant]. Rather, it is an inquiry which focuses on protecting
the public interest; what matters is the seriousness of the
[applicant's] misconduct.'' Jayam Krishna-Iyer, 74 FR 459, 462
(2009).
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In this case, I conclude that the record supports two independent
grounds for denying Applicant's application for a DEA registration.
First, Applicant does not possess authority under the laws of Michigan,
the State in which he seeks registration with the Agency. Second,
Applicant materially falsified his application for a DEA registration.
Applicant's Lack of State Authority
Under the Controlled Substances Act (CSA), a practitioner must be
currently authorized to handle controlled substances in ``the
jurisdiction in which he practices'' in order to obtain a DEA
registration. See 21 U.S.C. 823(f) (``The Attorney General shall
register practitioners . . . if the applicant is authorized to dispense
. . . controlled substances under the laws of the State in which he
practices.''). See also 21 U.S.C. 802(21) (``[t]he term `practitioner'
means a physician . . . licensed, registered, or otherwise permitted,
by . . . the jurisdiction in which he practices . . . to distribute,
dispense, [or] administer . . . a controlled substance in the course of
professional practice''). Moreover, the CSA authorizes the revocation
of a registration ``upon a finding that the registrant . . . has had
his State license or registration suspended [or] revoked . . . and is
no longer authorized by State law to engage in the . . . distribution
[or] dispensing of controlled substances.'' Id. section 824(a)(3). As
the Supreme Court has explained, ``[i]n the case of a physician, this
scheme contemplates that he is authorized by the State to practice
medicine and to dispense drugs in connection with his professional
practice.'' United States v. Moore, 423 U.S. 122, 140-41 (1975).
Based on these provisions, DEA has long and repeatedly held that
the possession of state authority is a prerequisite for obtaining and
maintaining a practitioner's registration. See Frederick Marsh Blanton,
M.D., 43 FR 27616, 27617 (1978) (``State authorization to dispense or
otherwise handle controlled substances is a prerequisite to the
issuance and maintenance of a Federal controlled substances
registration.''). See also Sheran Arden Yeates, 71 FR 39130, 39131
(2006); Dominick A. Ricci, 58 FR 51104, 51105 (1993); Bobby Watts, 53
FR 11919, 11920 (1988).
Here, the investigative file establishes that the Michigan Board
suspended applicant's medical license on February 15, 2014. Moreover,
as found above, Applicant's Michigan medical license remains suspended
as of the date of this Decision and Order. I therefore find that
Applicant is without authority to dispense controlled substances in
[[Page 47829]]
Michigan, the State in which he seeks registration. Because he does not
meet this prerequisite for obtaining a DEA registration, I will deny
his application on this basis.
Material Falsification
Pursuant to section 304(a)(1), the Attorney General is also
authorized to suspend or revoke a registration ``upon a finding that
the registrant . . . has materially falsified any application filed
pursuant to or required by this subchapter.'' 21 U.S.C. 824(a)(1). It
is well established that the various grounds for revocation or
suspension of an existing registration that Congress enumerated in
section 304(a), 21 U.S.C. 824(a), are also properly considered in
deciding whether to grant or deny an application under section 303. See
The Lawsons, Inc., 72 FR 74334, 74337 (2007); Anthony D. Funches, 64 FR
14267, 14268 (1999); Alan R. Schankman, 63 FR 45260 (1998); Kuen H.
Chen, 58 FR 65401, 65402 (1993).
Thus, the allegation that Applicant materially falsified his
application is properly considered in this proceeding. See Samuel S.
Jackson, 72 FR 23848, 23852 (2007). Moreover, just as materially
falsifying an application provides a basis for revoking an existing
registration without proof of any other misconduct, see 21 U.S.C.
824(a)(1), it also provides an independent and adequate ground for
denying an application. The Lawsons, 72 FR 74338; cf. Bobby Watts,
M.D., 58 FR 46995 (1993).
Here, the Government's evidence shows that upon being served with
an Order to Show Cause and Immediate Suspension of Registration which
alleged that he had prescribed controlled substances in violation of
the CSA, Applicant surrendered his registration. GXs 3 & 4. Moreover,
on the Voluntary Surrender form, Applicant acknowledged that he was
doing so ``[i]n view of my alleged failure to comply with the Federal
requirements pertaining to controlled substances.'' GX 4. Yet days
later, Applicant applied for a new registration and provided a ``no''
answer to the question: ``[h]as the applicant ever surrendered (for
cause) or had a federal controlled substance registration revoked,
suspended, restricted or denied, or is any such action pending?'' GX 1,
at 1, 3.
Applicant's answer was false as he had clearly surrendered his
registration for cause. His false answer was also material as ``it
`ha[d] a natural tendency to influence, or was capable of influencing,
the decision of' the decisionmaking body to which it was addressed.''
Kungys v. United States, 485 U.S. 759, 770 (1988) (quoting Weinstock v.
United States, 231 F.2d 699, 701 (D.C. Cir. 1956)) (other citation
omitted); see also United States v. Wells, 519 U.S. 482, 489 (1997)
(quoting Kungys, 485 U.S. at 770). As the Supreme Court has further
explained, ``it has never been the test of materiality that the
misrepresentation or concealment would more likely than not have
produced an erroneous decision, or even that it would more likely than
not have triggered an investigation, but rather, whether the
misrepresentation or concealment was predictably capable of affecting,
i.e., had a natural tendency to affect, the official decision.''
Kungys, 485 U.S. at 771. While the evidence must be ``clear,
unequivocal, and convincing,'' the ``ultimate finding of materiality
turns on an interpretation of the substantive law.'' Id. at 772 (int.
quotations and citations omitted).
Applicant's false answer to the question of whether he had ever
surrendered his federal registration was clearly ``capable of
affecting'' the decision of whether to grant his application. As the
evidence shows, Applicant surrendered his registration in response to
allegations that he violated the CSA and DEA regulations by prescribing
controlled substances that were in schedules for which he lacked
authorization, as well as allegations that he issued prescriptions that
lacked a legitimate medical purpose. GX 3, at 2 (Sept. 24, 2012
Immediate Suspension Order) (citing 21 U.S.C. 822(b) and 841(a)(1); 21
CFR 1301.12(a) and 1306.04(a)). Notably, under the public interest
standard, the Agency is required to consider both the Applicant's
``experience in dispensing . . . controlled substances'' and his
``[c]ompliance with applicable State, Federal, or local laws relating
to controlled substances.'' 21 U.S.C. 823(f)(2) & (4). See also Shannon
L. Gallentine, D.P.M., 76 FR 45864, 45866 (2011).
Thus, notwithstanding that the Agency did not grant his
application, his false answer was still material as it was capable of
influencing the decision as to whether to grant his application. See
United States v. Alemany Rivera, 781 F.2d 229, 234 (1st Cir. 1985)
(``It makes no difference that a specific falsification did not exert
influence so long as it had the capacity to do so.''); United States v.
Norris, 749 F.2d 1116, 1121 (4th Cir. 1984) (``There is no requirement
that the false statement influence or effect the decision making
process of a department of the United States Government.'').
Accordingly, I conclude that Applicant materially falsified his
September 2012 application for registration. This provides a further
reason to deny his pending application.
Order
Pursuant to the authority vested in me by 21 U.S.C. 823(f) and 28
CFR 0.100(b), I order that the application of Mikhayl Soliman, M.D.,
for a DEA Certificate of Registration as a practitioner, be, and it
hereby is, denied. This Order is effective immediately.
Dated: July 15, 2016.
Chuck Rosenberg,
Acting Administrator.
[FR Doc. 2016-17394 Filed 7-21-16; 8:45 am]
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