Dr. Arash Padidar Arrested for Opioid Prescription Violations

We suggest that you consider that Dr. Padidar was the victim of overzealous and politically driven investigations.  We have represented many physicians in similar circumstances who have suffered greatly as the supposed war on opiates takes honest physicians as their victims.

On August 11, 2023, Dr. Arash Padidar, a Santa Clara County doctor was arrested on accusations that he prescribed opioids illegally to patients. California Attorney General Bonta called Dr. Padidar’s arrest a warning.  This was a joint Attorney General and Medical Board investigation and this blog warns of how a board investigation can be a stalking horse for criminal charges.

"When a bad actor exploits their position for personal gain, they not only shatter our trust, they harm vulnerable patients. Let today’s arrest serve as a warning: The California Department of Justice will not tolerate abuses of power and will hold perpetrators accountable."

The claim is that Dr. Padidar (between October 2018 and October 2020) prescribed Norco improperly. Criminal charges are rarely simply and the way the doctor was charged involved seven felony counts. He was alleged to have provided opioids by fraud, deceit and misrepresentation, issuing prescriptions without a legitimate medical purpose, forging and issuing a prescription, unlawful use of personal information and conspiracy to commit a crime

Medical Board Accusation Filed One Week Later

But it doesn’t stop there. A review of the California Medical Board website shows that one week later an Accusation was filed against Dr. Padidar. The Accusation claims that Dr. Padidar had been interviewed by the Medical Board on March 28, 2023. Now the same entity conducting that interview (the Medical Board which is ultimately controlled by the Attorney General), brought the criminal charges. The Accusation claims that Dr. Padidar discussed his prescribing practice to
patients, including family members, stating in part:

"I wrote prescriptions for them which may have been appropriate at that time. However, as you know, we are here because I became dependent on codeine product and I then asked some of these folks who were family members, some were friends, would they help me, and you know, fill prescriptions for me on my behalf. And so, it was wrong of me, I did a stupid thing and a non-responsible thing, definitely, and I'm ashamed of it. But that's the explanation for why there is so many Norcos in the CURES that you see."

This is an example of an attack on two fronts against a doctor. The medical board inquiry seems to be purely administrative but it is recorded and shared with the public and law enforcement. The doctor sought medical help and the Accusation states that he had an opioid use disorder. Again, these proceedings are painfully public. One cannot dispute the wisdom of having such an examination in order to explain conduct but the public nature of these disclosures is incredibly difficult for the affected doctor.

How Did the DEA Deal with Dr. Padidar?

The DEA can limit a doctor's ability to prescribe controlled substances and separate from any criminal investigation or medical board investigation a doctor may have to deal with a DEA administrative hearing and investigation.   We have taken a large excerpt from the findings of the administrative law judge in Dr. Padidar's case.  As you read it, imagine being the doctor and attempting to find compromise or make your points.  It feels loaded against the doctor from the start.  In most cases the legal findings (we left in the footnotes) are prewritten and cut and pasted by the administrative law judge.   The impact on the doctor will be severe even if not justified.

Further in defense of the doctor, remember that the administrative law judges are appointed and often very politically influenced.  This is not to say you can NEVER win these hearings but do not for a minute presume that because Dr. Padidar or any other MD loses these hearings that they are wrong or a danger to their patients!

Major excerpt from Administrative Law Judge Finding

A hearing was held before DEA Administrative Law Judge Teresa A. Wallbaum (the ALJ), who on May 24, 2023, issued her Recommended Rulings, Findings of Fact, Conclusions of Law, and Decision (RD). The RD recommended denial of Applicant's application for registration. RD, at 26. Applicant did not file exceptions to the RD. Having reviewed the entire record, the Agency adopts and hereby incorporates by reference the entirety of the ALJ's rulings, credibility findings,[1]

findings of fact, conclusions of law, sanctions analysis, and recommended sanction as found in the RD and as summarized herein.

I. Findings of Fact

Search of Applicant's Residence and Surrender of Applicant's Previous COR

On October 7, 2020, at approximately 7:00 a.m., DEA and local law enforcement executed a search of Applicant's residence based on a criminal search warrant.[2]

RD, at 8; Tr.

30, 93, 145.[3]

According to Applicant, law enforcement entered the house, handcuffed both Applicant, who was unclothed, and his wife, and took Applicant downstairs to the kitchen. RD, at 8; Tr. 148-49, 152. According to Applicant, he remained in the kitchen with an unarmed Diversion Program Manager (DPM), mostly alone, until 1:00 p.m. RD, at 9; Tr. 150-52. Applicant testified that the DPM showed him the search warrant while other law enforcement officers began searching the house. RD, at 9; Tr. 155.

Testifying for the Government, the Diversion Investigator (DI) recalled that she waited in her car when law enforcement first entered the house but that she entered and began participating in the search at around 7:20. RD, at 9, 18; Tr. 30-31, 66-67, 75-78.[4]

Sometime between 1:00 p.m. and 2:00 p.m., DEA personnel spoke with Applicant in the living room; there were five DEA personnel present, including the DI, a second Diversion Investigator (DI2), a Group Supervisor (GS), the DPM, and a Task Force Officer (TFO). RD, at 10; Tr. 31-32, 61, 88, 151-53, 156, 165. DI2 and the TFO conducted the interview of Applicant. RD, at 10; Tr. 32-33, 162. According to the DI, DI2 presented Applicant with a Form DEA-104, which is titled “SURRENDER FOR CAUSE OF DEA CERTIFICATE OF REGISTRATION,” (emphasis in original) and allows registrants to surrender their DEA registration for cause and immediately terminates their registration. RD, at 10-11; Tr. 34, 36; Government Exhibit (GX) 2, at 1.[5]

Applicant had been given his

Miranda

rights and was not in handcuffs during the interview. RD, at 11; Tr. 81, 98-99, 162-63, 170, 194. The DI testified that it appeared to her that Applicant “read the form a little bit and then eventually signed the form”; she did not recall Applicant asking any questions or refusing to sign the form, nor did she recall DI2 explaining the word “cause” to Applicant. RD, at 11; Tr. 35, 38, 69, 78, 80, 82, 85, 100. According to Applicant, he was told repeatedly that the surrender was voluntary and he “could apply again.” RD, at 10 n.8; Tr. 164. According to Applicant, he had the opportunity to read the form but did not do so, though he confirmed looking over the form “quickly”; Applicant testified, “all I remember it was such a blur because my hands were shaking. I looked where my signature area [was]. I signed it and they asked me to date it.” RD, at 11; Tr. 163-165, 262. Nonetheless, Applicant acknowledged that he did sign the form and did not challenge the surrender of his registration as being under duress. RD, at 10 n.8; Tr. 161, 258, 261. DEA did not leave Applicant a copy of the Form DEA-104 (consistent with DEA practice) nor did DEA explain the meaning of “for cause” to Applicant. RD, at 11; Tr. 42, 69-70, 83, 85, 164. According to the DI, at the end of the interview, the DPM and DI2 both provided their business cards to Applicant, and then the DI and the others moved on to execute the search warrant at Applicant's clinic. RD, at 11; Tr. 41-42.[6]

Applicant's August 12, 2022 Application

According to Applicant, when he read the application, he “saw certain questions that became very concerning, [ ] especially the same question that we're here for” (referring to Liability Question 2) [7]

and he tried to obtain a copy of the Form DEA-104 to resolve his concerns. RD, at 12; Tr. 172-73, 200. Applicant testified that he called DEA multiple times to get the form but was never able to reach anyone.[8]

Applicant also tried to find the form online (both before and after completing the application) and found what he thought was an older form with the title “voluntary surrender.” RD, at 12; Tr. 173-74, 176-78. On August 10, 2022, Applicant emailed DI2, who forwarded the email to the DI. RD, at 12; Tr. 45. Applicant's email read: “It has been almost two years since you asked me to surrender my DEA [COR] and c[a]me to my office. I would like to ask if you have concluded your investigation or closed it? Any word you can give me would be appreciated.” RD, at 12; RX 6.[9]

On August 11, 2022, the DI responded [10]

with the following email: “Please apply for a new DEA Registration. A new registration is required because the previous registration was surrendered and is no longer valid. The application forms can be found at Registration (

usdoj.gov

) under `New Application.' ” RD, at 12-13; Tr. 45, 265; RX 6. Applicant testified that he emailed DEA before filling out his application because he “wanted to clarify, and get copies of what [he] had signed” but he admitted that he did not ask whether his registration had been surrendered for cause nor did he ask for a copy of his signed Form DEA-104. RD, at 13; Tr. 266-67; RX 6.[11]

According to Applicant, he interpreted the DI's reply email as an “invitation” to apply and noted that it only said “surrendered,” not “surrendered for cause.” RD, at 13; Tr. 197, 203; RX 6.

On August 12, 2022, Applicant electronically signed and submitted an application for a new DEA registration through the DEA website. RD, at 13; Tr. 51-53; GX 3.[12]

Liability Question 2 on

the application asks: “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? ” RD, at 13; Tr. 53; GX 3, at 1. On his application, Applicant answered Liability Question 2 with “N” for “no.” RD, at 13; Tr. 53; GX 3, at 1. Additionally, the bottom of the application reads: “By typing my full name in the space below, I hereby certify the foregoing information furnished on this electronic DEA application is true and correct and understand that this constitutes an electronic signature,” and Applicant's name, as an e-signature, is at the bottom of his application. RD, at 13; Tr. 54; GX 3, at 2.

Here, the ALJ found, and the Agency agrees, that “it is beyond dispute that [Applicant] surrendered his registration for cause and [thus] falsely answered Liability Question 2 on his application for a new COR.” RD, at 14.[13]

Regarding his false answer, Applicant asserted that he did not intentionally submit a false statement and that it was instead a misunderstanding resulting from multiple factors. Tr. 209, 254. According to Applicant, he misunderstood because: (1) DEA did not provide him with a copy of the Form DEA-104 and he could not reach anyone by phone to ask about it so he was going by memory (Tr. 163, 172-73, 194-96, 202, 255-56); (2) he searched on Google and found a form stating that surrender was voluntary (Tr. 173, 177-78, 268-69); (3) he considered voluntary surrender “for cause” to be an oxymoron, problematic, and to not make sense (Tr. 201, 255, 256); (4) his experience from medical disciplinary boards led him to believe that voluntary surrender would not be “for cause” (Tr. 177-178, 201-202, 272-73); [14]

(5) he thought that DEA would already have the information about his surrender because DEA was the body that he surrendered to (Tr. 204); (6) English is his second language so he sometimes interprets things incorrectly (Tr. 209); and (7) he surrendered his registration under duress after an excessive search and had he obtained advice, he would not have surrendered (Tr. 161, 258, 261). RD, at 6. Applicant asserted that he did not understand that when he surrendered his registration he was surrendering for cause and testified, “[u]ntil [now], I would have still answered it no. But now that I understand what is meant in your world, I would answer very differently.”

Id.;

Tr. 203, 211.[15]

II. Discussion

The Administrator is authorized to revoke a registration or deny an application if the registrant/applicant has materially falsified an application for registration. 21 U.S.C. 824(a)(1);

Farmacia Yani,80 FR 29053, 29058 (2015) (“[J]ust as materially falsifying an application provides a basis for revoking an existing registration without proof of any other misconduct . . . it also provides an independent and adequate ground for denying an application.”).[16]

Agency decisions have repeatedly held that false responses to the liability questions on an application for registration are material.

Kevin J. Dobi, APRN,87 FR 38184, 38184 (2022) (collecting cases).[17]

Regarding proof of material falsification, Agency precedent has found that the Government must prove an allegation of material falsification “by evidence that is clear, unequivocal, and convincing.”

Richard J. Settles, D.O.,81 FR 64940, 64946 (2016) (quoting

Kungys

v.

United States,

485 U.S. 759, 772 (1998)). Agency precedent has also established that the Government need not show that an applicant

actually knew

that his response to a liability question was false. Rather, it is sufficient that the Government shows that an applicant

should have known

that his response to a liability question was false.

Reyes,83 FR 61680 (citing

Samuel S. Jackson, D.D.S.,72 FR 23848, 23852 (2007)). When the Government has made such a showing,

i.e.,

that an applicant should have known that his response to a liability question was false, an applicant's claim that he actually misunderstood a liability question, or otherwise inadvertently provided a false answer to a liability question, is not a defense.

Id.

(citing

Alvin Darby, M.D.,75 FR 26993, 26999 (2010)). Indeed, the applicant bears the responsibility to carefully read the liability questions and to answer them honestly; “[a]llegedly misunderstanding or misinterpreting liability questions does not relieve the applicant of this responsibility.”

Zelideh I. Cordova-Velazco, M.D.,83 FR 62902, 62906 (2018) (internal citations omitted).

Here, the ALJ found, and the Agency agrees, that the Government has met its burden of proving by clear, unequivocal, and convincing evidence that Applicant surrendered his previous registration for cause, that Applicant should have known that the surrender was for cause, and thus that Applicant's answer to a liability question (Liability Question 2) was false. RD, at 16; Tr. 40; GX 2, at 1. The ALJ found, and the Agency agrees, that Applicant knew or should have known that his answer was incorrect because the Form DEA-104 that he signed on October 7, 2020, clearly stated in multiple places that he was surrendering his registration for cause and because Applicant surrendered his registration amidst what he knew or should have known, by his own testimony and submitted evidence, was a criminal investigation against him. RD, at 16-18; Tr. 40, 155, 162-63, 170, 194; GX 2, at 1; RX 6.[18]

Regarding any

purported confusion on Applicant's part, the ALJ found, and the Agency agrees, that “Applicant had ample opportunity to ask questions and clarify his confusion” but did not do so; moreover, as discussed above, misunderstanding a liability question is not a defense when the Government has established that the applicant knew or should have known that his answer was false.[19]

RD, at 19.[20]

Having read and analyzed the record, the Agency finds from clear, unequivocal, convincing, and unrebutted evidence that Applicant's application for a new registration, submitted on August 12, 2022, contains a material falsification because Applicant gave a false answer to a liability question when he knew or should have known that his answer was false. Moreover, even if it is true that Applicant's false answer to Liability Question 2 was actually caused by confusion or was otherwise inadvertent, it is inconsequential under the facts of this case, as Applicant failed to take reasonable care to ensure he answered the liability questions honestly.

See

Reyes, 83 FR 61680. Accordingly, the Agency finds that the Government has established a

prima facie case for denial of Applicant's application pursuant to 21 U.S.C. 824(a)(1).

Daniel Horowitz has decades of experience representing doctors in medical board and criminal matters. In cases where both are involved, you need expert assistance. Please call our office if you have any medical board or physician related criminal matters. We take cases throughout California.

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