[Federal Register Volume 62, Number 126 (Tuesday, July 1, 1997)] [Notices] [Pages 35527-35529] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: 97-17152] ----------------------------------------------------------------------- DEPARTMENT OF JUSTICE Drug Enforcement Administration [Docket No. 96-37] Joseph M. Piacentile, M.D.; Revocation of Registration On June 25, 1996, the Deputy Assistant Administrator, Office of Diversion Control, Drug Enforcement Administration (DEA), issued an Order to Show Cause to Joseph M. Piacentile, M.D., (Respondent) of Yardley, Pennsylvania and Basking Ridge, New Jersey, notifying him of an opportunity to show cause as to why DEA should not revoke his DEA Certificates of Registration, BP1786853 and BP2526056, pursuant to 21 U.S.C. 824 (a)(4) and (a)(5), and deny any pending applications for renewal of such registrations as a practitioner under 21 U.S.C. 823(f). By letter dated July 15, 1996, Respondent, proceeding pro se, filed a request for a hearing, and following prehearing procedures, a hearing was held in New York, New York on November 20, 1996, before Administrative Law Judge Gail A. Randall. At the hearing, the Government called a witness to testify and introduced documentary evidence. Respondent made a brief opening statement, but did not testify under oath nor offer any documentary evidence. After the hearing, Government counsel and Respondent submitted proposed findings of fact, conclusions of law and argument. On March 26, 1997, Judge Randall issued her Opinion and Recommended Ruling, recommending that Respondent's DEA Certificates of Registration be revoked. Neither party filed exceptions to her decision, and on May 5, 1997, Judge Randall transmitted the record of these proceedings to the Acting Deputy Administrator. The Acting Deputy Administrator has considered the record in its entirety, and pursuant to 21 CFR 1316.67, hereby issues his final order based upon findings of fact and conclusions of law as hereinafter set forth. The Acting Deputy Administrator adopts, in full, the Opinion and Recommended Ruling of the Administrative Law Judge, and his adoption is in no manner diminished by any recitation of facts, issues and conclusions herein, or of any failure to mention a matter of fact or law. The Acting Deputy Administrator finds that Respondent is currently registered with DEA in both Pennsylvania and New Jersey. In January 1985, the Department of Health and Human Services, Office of the Inspector General initiated an investigation of Electro Therapeutics (ETI) after receiving hundreds of complaints from Medicare patients concerning medical equipment they had received from ETI. Respondent was the President of ETI and was responsible for ETI's sales force. ETI distributed transcutaneous electrical nerve stimulator units (TENS units), TENS accessory kits, and lymphedema pumps. Both the TENS unit and the lymphedema pump must be prescribed by a physician in order for Medicare to pay for the equipment. Further, Medicare requires that a physician assess a patient's use of a TENS unit for 30 days prior to authorizing the purchase of the device. In addition, Medicare had very specific diagnoses criteria. If a patient did not have a condition covered by one of these criteria, Medicare would not authorize the purchase of the unit. TENS accessory kits also required a prescription, and were only authorized for distribution every three months. Between 1984 and September 1987, ETI billed Medicare $49 million for this equipment, $22 million of which was actually paid to ETI for over 22,000 separate beneficiaries. In an attempt to verify the validity of claims submitted by ETI to Medicare, agents interviewed a number of the Medicare beneficiaries who had received equipment from ETI and physicians whose signatures had served as authorization for the distribution of the medical equipment. The investigation revealed that ETI distributed these units by either sending out sales representatives to ``health fairs'' held at supermarkets, senior citizen centers or banks, or through arrangements with specific geriatric physicians whereby the sales representatives would demonstrate the use of the equipment at the physicians' offices. ETI would then obtain a physicians's signature on a prescription, telling the physician that the patient wanted the equipment. However, the patients were told that the equipment was a free gift from Medicare. After learning that Medicare was in fact billed for the equipment, the patients complained because they stated that had they known there would be a charge for the equipment, they would not have accepted it. The investigation [[Page 35528]] further revealed that the patients were not assessed for 30 days by a physician before ETI submitted a claim to Medicare for the purchase of the equipment, but that ETI personnel were altering the dates on the prescriptions. It was also determined that ETI personnel were giving patients three to four TENS accessary kits at a time, and altering the dates on the prescriptions that accompanied the Medicare claim forms. Given the volume of claims, the agents were unable to investigate the validity of each and every claim. It was determined however, that $3.7 million of the $22 million that was reimbursed by Medicare were false claims that had been altered by ETI personnel. It was the case agent's opinion that 99% of the $22 million in claims were medically unnecessary, as the equipment was provided to patients who did not have a condition that would have caused reimbursement by Medicare. Following the investigation, Respondent pled guilty in the United States District Court for the Southern District of New York to one count of conspiracy to make false statements in claims against Medicare, in violation of 18 U.S.C. 371, and to one count of income tax evasion, in violation of 26 U.S.C. 7201. As a result of his conviction, by letter dated December 15, 1994, the Department of Health and Human Services, Office of Inspector General, notified Respondent that he was excluded from participating in the Medicare, Medicaid, Maternal and Child Health Services Block Grant and Block Grants to States for Social Services programs for a period of fifteen years pursuant to 42 U.S.C. 1320a-7(a). Subsequently, on May 28, 1996, Respondent and the Inspector General of the Department of Health and Human Services entered into a stipulation, whereby Respondent would be excluded, effective January 4, 1995, from participation in the Medicare and Medicaid programs for a period of thirteen years, or until January 4, 2008. In addition, the stipulation included a provision whereby Respondent agreed not to further contest ``now or in the future'' his exclusion from the Medicare and Medicaid programs. On October 31, 1995, Respondent entered into a Consent Order with the State of New Jersey, Department of Law and Public Safety, Division of Consumer Affairs, State Board of Medical Examiners (New Jersey Board). The new Jersey Board found that Respondent had engaged in conduct which represented ``crimes of moral turpitude,'' and ordered that Respondent's license to practice medicine and surgery in New Jersey be suspended for 21 months, the first three months to be served as an active suspension, and the remaining 18 months to be served as a period of probation. On May 11, 1995, the Commonwealth of Pennsylvania, Department of State, State Board of Medicine (Pennsylvania Board) and Respondent entered into a Consent Agreement. The Pennsylvania Board ordered, among other things, that Respondent's license to practice medicine and surgery in Pennsylvania be suspended for a period of two years, six months of which to be an active suspension, and the remaining 18 months suspension to be stayed in favor of probation subject to various conditions. The Deputy Administrator may revoke or suspend a DEA Certificate of Registration under 21 U.S.C. 824(a), upon a finding that the registrant: (1) Has materially falsified any application filed pursuant to or required by this subchapter or subchapter II of this chapter; (2) Has been convicted of a felony under this subchapter or subchapter II of this chapter or any other law of the United States, or of any State relating to any substance defined in this subchapter as a controlled substance; (3) Has had his State license or registration suspended, revoked, or denied by competent State authority and is no longer authorized by State law to engage in the manufacturing, distribution, or dispensing of controlled substances or has had the suspension, revocation, or denial of his registration recommended by competent State authority; (4) Has committed such acts as would render his registration under section 823 of this title inconsistent with the public interest as determined under such section; or (5) Has been excluded (or directed to be excluded) from participation in a program pursuant to section 1320a-7(a) of Title 42. As noted by Judge Randall, the Order to Show Cause and the statement of the issue agreed to by the parties both alleged that subsections (4) and (5) of 21 U.S.C. 824(a) provide the basis for the revocation of Respondent's DEA Certificates of Registration. However, the Government did not present any evidence nor argue in its post- hearing filing that Respondent's continued registration would be inconsistent with public interest pursuant to 21 U.S.C. 824(a)(4). Therefore, the Acting Deputy Administrator agrees with Judge Randall's conclusion ``that the Government has waived the position that a basis for revocation exists under 21 U.S.C. Sec. 824(a)(4) in this matter.'' Consequently, subsection (5) of 21 U.S.C. 824(a) provides the sole basis for the revocation of Respondent's DEA Certificates of Registration. Pursuant to 42 U.S.C. 1320a-7(a), Respondent has been excluded from the Medicare and Medicaid programs for 13 years, or until January 4, 2008. The Government argues that based upon this exclusion, Respondent's registrations should be revoked. Respondent did not dispute that he has been excluded from the Medicare and Medicaid programs. He did not offer any evidence into the record regarding why his registration should not be revoked. Instead, Respondent argued that the Government had failed to meet its burden of proof that Respondent's continued registration would be inconsistent with the public interest. As discussed above, the issue of whether Respondent's continued registration would be inconsistent with the public interest was not pursued by the Government as a basis for revocation. Instead, the Government has presented evidence that Respondent has been excluded from the Medicaid and Medicare programs pursuant to 42 U.S.C. 1320a- 7(a). Therefore, the Government has met its burden of proving that grounds exist under 21 U.S.C. 824(a)(5) for revoking Respondent's DEA Certificates of Registration. Respondent did not present any evidence as to why his registrations should not be revoked based upon his exclusion from such programs. Respondent did argue that ``DEA had effectually suspended his prescribing privileges, by withholding his renewal, without the benefit of a Court ruling, to the detriment of his patients and their well-being. This constitutes punishment without due process and should be considered by the Court.'' However, as Judge Randall noted, ``the record contains no evidence, such as a denied application for renewal, to support this factual assertion.'' Judge Randall stated that ``given the lack of rehabilitation evidence, I conclude that circumstances do not exist to deviate from the statutory purpose in this case,'' and recommended that Respondent's DEA Certificates of Registration be revoked. The Acting Deputy Administrator concludes that given the serious nature of the offenses which led to Respondent's convictions, and ultimately to his exclusion from the Medicare and Medicaid programs, and the lack of any evidence of Respondent's rehabilitation or remorse, [[Page 35529]] Respondent's registrations should be revoked. Accordingly, the Acting Deputy Administrator of the Drug Enforcement Administration, pursuant to the authority vested in him by 21 U.S.C. 823 and 824 and 28 CFR 0.100(b) and 0.104, hereby orders that DEA Certificates of Registration BP1786853 and BP2526056, issued to Joseph M. Piacentile, M.D., be, and they hereby are, revoked. The Acting Deputy Administrator further orders that any pending applications for renewal of such registrations, be, and they hereby are, denied. This order is effective July 31, 1997. Dated: June 24, 1997. James S. Milford, Acting Deputy Administrator. [FR Doc. 97-17152 Filed 6-30-97; 8:45 am] BILLING CODE 4410-09-M