
[Federal Register: August 18, 2010 (Volume 75, Number 159)]
[Notices]               
[Page 51079-51080]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr18au10-113]                         

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DEPARTMENT OF HEALTH AND HUMAN SERVICES

Food and Drug Administration

[Docket No. FDA-2010-N-0139]

 
Seth M. Yoser: Debarment Order

AGENCY: Food and Drug Administration, HHS.

ACTION: Notice.

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SUMMARY: The Food and Drug Administration (FDA) (the Agency) is issuing 
an order under the Federal Food, Drug, and Cosmetic Act (the act) 
permanently debarring Seth M. Yoser, MD from providing services in any 
capacity to a person that has an approved or pending drug product 
application. We base this order on a finding that Dr. Yoser was 
convicted of a felony under Federal law for conduct relating to the 
regulation of a drug product under the act. Dr. Yoser was given notice 
of the proposed permanent debarment and an opportunity to request a 
hearing within the timeframe prescribed by regulation. In a May 20, 
2010, letter to FDA, Dr. Yoser, through counsel, notified FDA that he 
acquiesces to debarment and therefore he has waived his right to a 
hearing concerning this action.

DATES: This order is effective May 20, 2010.

ADDRESSES: Submit applications for special termination of debarment to 
the Division of Dockets Management (HFA-305), Food and Drug 
Administration, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852.

FOR FURTHER INFORMATION CONTACT:  Kenny Shade, Division of Compliance 
Policy (HFC-230), Office of Enforcement, Office of Regulatory Affairs, 
Food and Drug Administration, 5600 Fishers Lane, Rockville, MD 20857, 
240-632-6844.

SUPPLEMENTARY INFORMATION:

I. Background

    Section 306(a)(2)(B) of the act (21 U.S.C. 335a(a)(2)(B)) requires 
debarment of an individual if FDA finds that the individual has been 
convicted of a felony under Federal law for conduct otherwise relating 
to the regulation of any drug product under the act.
    On February 23, 2010, the U.S. District Court for the Western 
District of Tennessee entered judgment against Dr. Yoser for ten counts 
of mail fraud in violation of 21 U.S.C. 1341, twenty-three counts of 
unlicensed wholesale distribution of prescription drugs in violation of 
21 U.S.C. 331(t), 333(b)(1)(D), and 353(e)(2)(A); and two counts of 
wire fraud in violation of 18 U.S.C. 1343.
    FDA's finding that debarment is appropriate is based on the felony 
convictions referenced herein for conduct relating to the regulation of 
a drug product. The factual basis for those convictions is as follows: 
Dr. Yoser was employed by the Eye Specialty Group (ESG), formerly known 
as the Vitreorentinal Foundation, and he was a partner of ESG from on 
or about June 2005, until approximately May 12, 2008. During the course 
of his employment and partnership with ESG, he performed treatments 
which included administering the prescription drugs Visudyne, Lucentis, 
and Avastin to treat Wet Aged Macular Degeneration.
    Beginning on or about July 1, 2002, and continuing up to and 
including May 12, 2008, Dr. Yoser did knowingly devise a scheme and 
artifice to defraud ESG and Medicare in order to obtain money and 
property by means of false and fraudulent representation, billing, and 
pretense. As part of that scheme, he billed Medicare for Visudyne, 
Avastin, and Lucentis that he purportedly used to treat ESG patients 
but that he actually diverted from ESG patients and sold.
    Beginning on or about April 14, 2004, through on or about October 
2, 2007, in the Western District of Tennessee, and elsewhere, Dr. Yoser 
did knowingly engage in or cause the wholesale distribution in 
interstate commerce of the prescription drugs, Visudyne and Lucentis in 
Louisiana, Tennessee, Texas, and Arkansas without being licensed by 
those states in violation of 21 U.S.C. 331(t), 333(b)(1)(D), and 
353(e)(2)(A).
    As a result of his convictions, on April 19, 2010, FDA sent Dr. 
Yoser a notice by certified mail proposing to permanently debar him 
from providing services in any capacity to a person that has an 
approved or pending drug product application. The proposal was based on 
a finding, under section 306(a)(2)(B) of the act, that Dr. Yoser was 
convicted of felonies under Federal law for conduct relating to the 
regulation of a drug product under the act. The proposal also offered 
Dr. Yoser an opportunity to request a hearing, providing him 30 days 
from the date of receipt of the letter in which to file the request, 
and advised him that failure to request a hearing constituted a waiver 
of the opportunity for a hearing and of any contentions concerning this 
action. Dr. Yoser's attorney filed a May 20, 2010, response in which he 
stated that Dr. Yoser did not object to debarment and further clarified 
in writing that the May 20, 2010, letter intended to express Dr. 
Yoser's acquiescence to debarment. By acquiescing to debarment, as 
provided for in section 306(c)(2)(B) of the act, Dr. Yoser waived his 
opportunity for a hearing and any contentions concerning his debarment.

II. Findings and Order

    Therefore, the Director, Office of Enforcement, Office of 
Regulatory Affairs, under section 306(a)(2)(B) of the act, under 
authority delegated to the Acting Director (Staff Manual Guide 
1410.35), finds that Seth M. Yoser has been convicted of a felony under 
Federal law for conduct relating to the regulation of a drug product 
under the act.
    As a result of the foregoing finding and based on his notification 
of acquiescence, Dr. Yoser is permanently debarred from providing 
services in any capacity to a person with an approved or pending drug 
product application under sections 505, 512, or 802 of the act (21 
U.S.C. 355, 360b, or 382), or under section 351 of the Public Health 
Service Act (42 U.S.C. 262), effective May 20, 2010, the date of the 
notification of acquiesce (see DATES) (see sections 306(c)(1)(B), 
(c)(2)(A)(ii), (c)(2)(B), and 201(dd) of the act (21 U.S.C. 
335a(c)(1)(B), (c)(2)(A)(ii), (c)(2)(B), and 321(dd))). Any person with 
an approved or pending drug product application who knowingly employs 
or retains as a consultant or contractor, or otherwise uses the 
services of Dr. Yoser, in any capacity during Dr. Yoser's debarment, 
will be subject to civil money penalties (section 307(a)(6) of the act 
(21 U.S.C. 335b(a)(6))). If Dr. Yoser provides services in any capacity 
to a person with an approved or pending drug product application during 
his period of debarment he will be subject to civil money penalties 
(section 307(a)(7) of the act). In addition, FDA will not accept or 
review any abbreviated new drug applications submitted by or with the 
assistance of Dr. Yoser during his period of debarment (section 
306(c)(1)(B) of the act).
    Any application by Dr. Yoser for special termination of debarment 
under section 306(d)(4) of the act should be

[[Page 51080]]

identified with Docket No. FDA-2010-N-0139 and sent to the Division of 
Dockets Management (see ADDRESSES). All such submissions are to be 
filed in four copies. The public availability of information in these 
submissions is governed by 21 CFR 10.20(j).
    Publicly available submissions may be seen in the Division of 
Dockets Management between 9 a.m. and 4 p.m., Monday through Friday.

    Dated: August 10, 2010.
Howard R. Sklamberg,
Director, Office of Enforcement, Office of Regulatory Affairs.
[FR Doc. 2010-20418 Filed 8-17-10; 8:45 am]
BILLING CODE 4160-01-S

