Registrant Actions - 2012
[Federal Register Volume 77, Number 97 (Friday, May 18, 2012)]
[Notices]
[Pages 29694-29696]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-12121]
DEPARTMENT OF JUSTICE
Drug Enforcement Administration
[Docket No. 12-19]
Richard H. NG, D.O.; Decision and Order
On December 23, 2011, Administrative Law Judge (ALJ) Timothy D.
Wing issued the attached recommended decision. Neither party filed
exceptions to the decision. Having reviewed the entire record, I have
decided to adopt the ALJ's rulings, findings of fact, conclusions of
law, and recommended Order.
To make clear, DEA's longstanding rule that a practitioner may not
hold a registration if he lacks authority under state law to dispense
controlled substances and that the loss of such authority subjects a
practitioner's registration to revocation is not based solely on 21
U.S.C. 824(a)(3), which is a grant of authority to either suspend or
revoke a registration "upon a finding" that a 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." As explained
in numerous cases, DEA's rule derives primarily from two other
provisions of the CSA, 21 U.S.C. 802(21), which defines the term
"practitioner," and 21 U.S.C. 823(f), which sets forth the
requirements for obtaining a registration as a practitioner.
More specifically, the CSA defines "the term 'practitioner' [to]
mean [] a * * * physician * * * or other person 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." 21 U.S.C. 802(21).
Consistent with this definition, Congress, in setting the requirements
for obtaining a practitioner's registration, provided that "[t]he
Attorney General shall register practitioners * * * 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). Accordingly,
because one cannot obtain a practitioner's registration unless one
holds authority under state law to dispense controlled substances, and
because where a
[[Page 29695]]
registered practitioner's state authority has been revoked or
suspended, the practitioner no longer meets the statutory definition of
a practitioner, DEA has repeatedly held that the possession of
authority to dispense controlled substances under the laws of the State
in which a practitioner engages in professional practice is a
fundamental condition for both obtaining and maintaining a
practitioner's registration. See ALJ at 4 (citing cases).\1\ So too,
"revocation is warranted even where a practitioner's state authority
has been summarily suspended and the State has yet to provide the
practitioner with a hearing to challenge the State's action at which he
may ultimately prevail." Kamal Tiwari, M.D., 76 FR 71604, 71606
(2011); see also Bourne Pharmacy, Inc., 72 FR 18273, 18274 (2007); Anne
Lazar Thorn, 62 FR 12847 (1997). Accordingly, I adopt the ALJ's
recommended order.
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\1\ This citation is to the slip opinion as issued by the ALJ.
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Order
Pursuant to the authority vested in me by 21 U.S.C. 823(f) and
824(a), as well as 28 CFR 0.100(b), I order that DEA Certificate of
Registration AN1255733, issued to Richard H. Ng, D.O., be, and it
hereby is, revoked. I further order that any pending application of
Richard H. Ng, D.O., to renew or modify his registration, be, and it
hereby is, denied. This Order is effective immediately.\2\
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\2\ The suspension order of the Illinois Department of Financial
and Professional Regulation found that "the public interest, safety
and welfare imperatively require emergency action" and that
"Respondent's actions constitute an imminent danger to the
public." Department of Fin. & Prof. Reg. v. Richard H. Ng, D.O.,
No. 2011-08881 (Ill. Dep't of Fin. & Prof. Reg. Oct. 25, 2011)
(order imposing temporary suspension). Accordingly, I likewise
conclude that the public interest necessitates that this order be
effective immediately. See 21 CFR 1316.67.
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Dated: May 4, 2012.
Michele M. Leonhart,
Administrator.
Jonathan P. Novak, Esq., for the Government
Glen D. Crick, Esq., Lillian Walanka, Esq.,
Michael D. Monico, Esq., Jacqueline Jacobson, Esq., for the Respondent
Recommended Ruling, Findings of Fact, Conclusions of Law and Decision
of the Administrative Law Judge
Timothy D. Wing, Administrative Law Judge. This proceeding is an
adjudication governed by the Administrative Procedure Act, 5 U.S.C. 551
et seq., to determine whether a practitioner's Certificate of
Registration (COR) with the Drug Enforcement Administration (DEA,
Government or Agency) should be revoked. Without this registration,
Richard H. Ng, D.O. (Respondent) would be unable to lawfully possess,
prescribe, dispense or otherwise handle controlled substances.
I. Procedural Posture
On November 18, 2011, the Deputy Assistant Administrator, DEA,
issued an Order to Show Cause (OSC) to Respondent. The OCS provided
notice to Respondent of an opportunity to show cause as to why the DEA
should not revoke Respondent's DEA COR AN1255733, pursuant to 21 U.S.C.
824(a)(3)-(4) and 823(f), alleging that Respondent's continued
registration is inconsistent with the public interest, as that term is
used in 21 U.S.C. 823(f), and that Respondent's medical license in the
State of Illinois has been suspended.
On December 20, 2011, I issued an Order for Statements Addressing
Respondent's State Authority and Order for Prehearing Statements
(Order).
On December 20, 2011, the Government filed a Motion for Summary
Disposition. On December 21, 2011, I stayed the proceedings pending
resolution of the Government's motion. On December 22, 2011, Respondent
filed a Motion in Opposition to DEA's Motion for Summary Disposition.
II. The Parties' Contentions
A. The Government
In support of its Motion for Summary Disposition, the Government
asserts that on October 25, 2011, the Illinois Department of Financial
and Professional Regulation (IDFPR) executed an order summarily
suspending Respondent's medical license, effective immediately. (Gov't
Mot. Summ. Disp. at 1.) The Government contends that such state
authority is a necessary condition for maintaining a DEA COR and,
therefore, asks that I grant its motion and forward the matter to the
Administrator.\1\ (Id. at 1-2.) In support of its motion, the
Government cites Agency precedent and attaches the Notice of Temporary
Suspension and Order entered by the IDFPR as Exhibit A.
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\1\ The OSC provides Respondent with an opportunity to show
cause "as to why DEA should not revoke" Respondent's DEA COR. (OSC
at 1.) The OSC then factually alleges that Respondent's DEA COR
"expired by its terms on October 31, 2011," and that Respondent
filed a timely request to renew his registration. (Id.) The
Government requests that I "forward the matter to the Administrator
for a Final Order with a recommendation that Respondent's DEA
application for registration be denied." (Gov't Mot. Summ. Disp. at
2.) For purposes of this Recommended Decision, I will treat the
Government's request as one to revoke Respondent's DEA COR and deny
any pending applications for renewal or modification.
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B. Respondent
Although Respondent concedes that his "Illinois Controlled
Substances Registration is presently in suspended status," he argues
that the suspension is temporary in nature pending an evidentiary
hearing before the IDFPR. (Resp't Mot. in Opp'n at 1.) Respondent notes
that an evidentiary hearing will be scheduled "in the very near
future," and he believes that his license will be restored to active
status. (Id. at 1-2.) In support of his motion, Respondent cites Stuart
A. Bergman, M.D., 70 Fed. Reg. 33,193 (DEA 2005), and argues that the
facts of this case similarly warrant a delay in ruling on the
Government's motion until after the conclusion of the evidentiary
hearing before the IDFPR. (Id. at 2.)
III. Discussion
At issue is whether Respondent may maintain his DEA COR given that
Illinois, the State in which Respondent maintains his DEA COR, has
suspended Respondent's Physician and Surgeon License and Controlled
Substance License.
Under 21 U.S.C. 824(a)(3), a practitioner's loss of state authority
to engage in the practice of medicine and to handle controlled
substances is grounds to revoke a practitioner's registration.
Accordingly, this Agency has consistently held that a person may not
hold a DEA registration if he is without appropriate authority under
the laws of the state in which he does business. See Scott Sandarg,
D.M.D., 74 FR 17,528 (DEA 2009); David W. Wang, M.D., 72 FR 54,297 (DEA
2007); Sheran Arden Yeates, M.D., 71 FR 39,130 (DEA 2006); Dominick A.
Ricci, M.D., 58 FR 51,104 (DEA 1993); Bobby Watts M.D., 53 FR 11,919
(DEA 1988).
Summary disposition in a DEA revocation case is warranted even if
the period of suspension of a respondent's state medical license is
temporary, or even if there is the potential for reinstatement of state
authority because "revocation is also appropriate when a state license
had been suspended, but with the possibility of future reinstatement."
Bergman, 70 FR at 33,193; Roger A. Rodriguez, M.D., 70 FR 33,206 (DEA
2005).
It is well-settled that when no question of fact is involved, or
when the material facts are agreed upon, a plenary, adversarial
administrative proceeding is not required, under the rationale that
Congress does not intend administrative agencies to perform meaningless
tasks. See Layfe Robert
[[Page 29696]]
Anthony, M.D., 67 FR 35,582 (DEA 2002); Michael G. Dolin, M.D., 65 FR
5661 (DEA 2000); see also Philip E. Kirk, M.D., 48 FR 32,887 (DEA
1983), aff'd sub nom. Kirk v. Mullen, 749 F.2d 297 (6th Cir. 1984).
Accord Puerto Rico Aqueduct & Sewer Auth. v. EPA, 35 F.3d 600, 605 (1st
Cir. 1994).
In the instant case, the Government asserts, and Respondent
concedes, that Respondent's Illinois license to practice medicine and
handle controlled substances is suspended. This allegation is confirmed
by Government Exhibit A. I therefore find there is no genuine dispute
as to any material fact, and that substantial evidence shows that
Respondent is presently without state authority to handle controlled
substances in Illinois. I decline to delay ruling on the Government's
motion, particularly in light of the fact that Respondent does not
appear to have a scheduled hearing date before the IDFPR. Compare
Bergman, 70 FR at 33,193 (noting that the ALJ delayed ruling on the
Government's motion where the respondent had an evidentiary hearing
scheduled before the state board). Because "DEA does not have
statutory authority under the Controlled Substances Act to maintain a
registration if the registrant is without state authority to handle
controlled substances in the state in which he practices," Sheran
Arden Yeates, M.D., 71 FR 39,130, 39,131 (DEA 2006), I conclude that
summary disposition is appropriate. It is therefore
Ordered that the hearing in this case, scheduled to commence on
March 6, 2012, is hereby cancelled; and it is further
Ordered that all proceedings before the undersigned are stayed
pending the Agency's issuance of a final order.
Recommended Decision
I grant the Government's Motion for Summary Disposition and
recommend that Respondent's DEA COR AN1255733 be revoked and any
pending applications for renewal or modification be denied.\2\
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\2\ Notably, Respondent requests that I recommend the immediate
suspension of his registration, rather than revocation, citing 21
U.S.C. 824(a)(4). (Resp't Mot. in Opp'n at 3.)
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Dated: December 23, 2011.
Timothy D. Wing,
Administrative Law Judge.
[FR Doc. 2012-12121 Filed 5-17-12; 8:45 am]
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