Registrant Actions - 2010
FR Doc 2010-20209[Federal Register: August 16, 2010 (Volume 75, Number 157)]
[Notices]
[Page 49955-49956]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr16au10-99]
DEPARTMENT OF JUSTICE
Drug Enforcement Administration
Hung Thien Ly, M.D.; Revocation of Registration
On August 28, 2009, the Deputy Assistant Administrator, Office of
Diversion Control, Drug Enforcement Administration, issued an Order to
Show Cause to Hung Thien Ly, M.D. (Respondent), of McRae, Georgia. The
Show Cause Order proposed the revocation of Respondent's DEA
Certificate of Registration, BL8586147, which authorizes him to
dispense controlled substances as a practitioner, and the denial of any
pending applications to renew or modify his registration on two
grounds. Show Cause Order at 1-2.
First, the Order alleged that, on August 6, 2009, the Georgia
Composite Medical Board (Board) revoked his license to practice
medicine in Georgia, the State in which he holds his DEA registration,
and that therefore, he is not entitled to maintain his registration.
Id. (citing 21 U.S.C. 824(a)(3)). Second, the Order alleged that on
August 14, 2008, Respondent was convicted of 129 counts of violating 21
U.S.C. 841(a)(1), by dispensing controlled substances "outside the
usual course of professional practice and for no legitimate medical
purpose." Id. at 2; see also id. at 1 (citing 21 U.S.C. 824(a)(2)).
On September 30, 2009, Respondent was served with a copy of the
Order to Show Cause. Thereafter, on November 2, 2009, Respondent filed
letter waiving his right to a hearing and responding to the Show Cause
Order. Waiver of Hearing and Written Response to Order to Show Cause at
1. Therein, Respondent does not dispute either that he has been
convicted by a United States District Court of violations of 21 U.S.C.
841 or that the Board has revoked his medical license. Id. Rather, he
maintains that the Board's action "was based entirely" on his
conviction and that his "trial was fundamentally flawed" because he
was "denied appointed counsel by the District Court and represented
himself at trial." Moreover, he "is confident that the Eleventh
Circuit will grant a new trial with appointed counsel and expert
medical testimony that will demonstrate that his practice was
consistent with the good faith treatment of chronic pain." Id. at 1-2.
Accordingly, he "requests that good cause is shown to suspend his
registration [rather than revoke it] * * * until such time as the
appeal [of his conviction] and any subsequent proceedings are
complete." Id.
[[Page 49956]]
Thereafter, the Government forwarded the record to me for final
agency action. Having considered the record, I conclude that it
establishes two separate grounds for revoking Respondent's
registration. I further reject Respondent's request that his
registration should be suspended and not revoked pending the completion
of his appeal. I make the following findings.
Findings
Respondent is the holder of DEA Certificate of Registration,
BL8586147, which authorizes him to dispense controlled substances in
schedules II through V. Respondent's registration was last renewed on
March 6, 2006, and was to expire on March 31, 2009. However, on
February 13, 2009, Respondent submitted an application to renew the
registration. I therefore find that Respondent's registration has
remained in effect pending the issuance of this Decision and Final
Order. See 5 U.S.C. 558(c).
I further find that on May 13, 2009, the United States District
Court for the Southern District of Georgia entered a judgment in which
it found Respondent guilty on 129 counts of violating 21 U.S.C.
841(a)(1), which prohibits "knowingly or intentionally * * *
distribut[ing], or dispens[ing] * * * a controlled substance" except
as authorized by the Controlled Substances Act (CSA). See United States
v. Ly, No. CR407-00286-001 (S.D. Ga. May 13, 2009) (judgment).
According to the indictment, the counts were for distributing
hydrocodone (combined with acetaminophen), a schedule III controlled
substance; alprazolam, a schedule IV controlled substance; and
amphetamine sulfate, a schedule II controlled substance. For his
crimes, the District Court sentenced Respondent to 97 months in prison;
the Court also imposed an assessment of $12,900, a fine of $200,000,
and a term of supervised release of five years following his release
from prison.
I further find that on August 6, 2009, the Georgia Composite
Medical Board issued a final decision which revoked Respondent's State
medical license based on his convictions.
Discussion
Under Section 304(a) of the CSA, "[a] registration * * * to
dispense a controlled substance * * * may be suspended or revoked by
the Attorney General upon a finding that the registrant * * * has been
convicted of a felony under this subchapter." 21 U.S.C. 824(a)(2). The
Attorney General may also revoke a registration "upon a finding that
the registrant * * * 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 * * * dispensing of
controlled substances." Id. Sec. 824(a)(3).
As found above, Respondent has been convicted of 129 counts of
violating 21 U.S.C. 841(a)(1), a felony under subchapter I (the CSA).
See id. Sec. 801 (note). These convictions provide reason alone to
revoke his registration.
Moreover, under the CSA, a practitioner must be currently
authorized to handle controlled substances in "the jurisdiction in
which he practices" in order to maintain a DEA registration. See 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").
See also id. Sec. 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."). As these provisions make plain, possessing authority
under State law to handle controlled substances is an essential
condition for holding a DEA registration.
Accordingly, DEA has held repeatedly that the CSA requires the
revocation of a registration issued to a practitioner whose State
license has been suspended or revoked. David W. Wang, 72 FR 54297,
54298 (2007); Sheran Arden Yeates, 71 FR 39130, 39131 (2006); Dominick
A. Ricci, 58 FR 51104, 51105 (1993); Bobby Watts, 53 FR 11919, 11920
(1988). Respondent's loss of his State authority thus provides an
additional ground for revoking his DEA registration.
I further reject Respondent's request that his registration only be
suspended during the pendency of his appeal. As explained above,
because Respondent does not have authority under Georgia law to
prescribe controlled substances, he no longer meets the statutory
requirement for holding a registration. Moreover, in the event that
Respondent's confidence in the merits of his appeal is borne out, he
can apply for a new registration upon persuading the Board to re-
license him. However, given that it is entirely speculative whether
both of these events will occur, there is no reason to continue his
registration in the interim. Accordingly, Respondent's registration
will be revoked and his pending application to renew his registration
will be denied.
Order
Pursuant to the authority vested in me by 21 U.S.C. 823(f) &
824(a), as well as 28 CFR 0.100(b) & 0.104, I order that DEA
Certificate of Registration, BL8586147, issued to Hung Thien Ly, M.D.,
be, and it hereby is, revoked. I further order that any pending
application of Hung Thien Ly, M.D., to renew or modify his
registration, be, and it hereby is, denied. This Order is effective
September 15, 2010.
Dated: August 3, 2010.
Michele M. Leonhart,
Deputy Administrator.
[FR Doc. 2010-20209 Filed 8-13-10; 8:45 am]
BILLING CODE 4410-09-P
NOTICE: This is an unofficial version. An official version of this publication may be obtained
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