On August 8, 2018, the Assistant Administrator, Diversion Control Division, Drug Enforcement Administration (DEA), issued an Order to Show Cause to Paul Surinder Singh, D.O. (Respondent), of Tehachapi, California. The Show Cause Order proposed the revocation of Respondent's DEA Certificate of Registration No. BS7367623 on the ground that he has “no state authority to handle controlled substances.” Order to Show Cause, at 1 (citing 21 U.S.C. 824(a)(3)). For the same reason, the Order also proposed the denial of any of Respondent's “applications for renewal or modification of such registration and any applications for any other DEA registrations.” Id.
With respect to the Agency's jurisdiction, the Show Cause Order alleged that Respondent is the holder of Certificate of Registration No. BS7367623, pursuant to which he is authorized to dispense controlled substances as a practitioner in schedules II through V, at the registered address of 276 C South Mill Street, Tehachapi, California. Id. The Order also alleged that this registration does not expire until February 28, 2019. Id.
Regarding the substantive grounds for the proceeding, the Show Cause Order alleged that on April 17, 2017, the Osteopathic Medical Board of California (OMBC) “adopted the Proposed Decision of an Administrative Law Judge . . . recommending revocation of” Respondent's “Osteopathic Physician's License,” effective on May 17, 2017. Id. As a result, the Order alleged that Respondent is “without authority to handle controlled substances in the State of California, the [S]tate in which [he is] registered with DEA.” Id. at 1-2. Based on his “lack of authority to [dispense] controlled substances in . . . California,” the Order asserted that “DEA must revoke” Respondent's registration. Id. at 2 (citing 21 U.S.C. 824(a)(3); 21 CFR 1301.37(b)).
The Show Cause Order notified Respondent of (1) his right to request a hearing on the allegations or to submit a written statement in lieu of a hearing, (2) the procedure for electing either option, and (3) the consequence for failing to elect either option. Id. (citing 21 CFR 1301.43). The Order also notified Respondent of his right to submit a corrective action plan. Id. at 2-3 (citing 21 U.S.C. 824(c)(2)(C)).
On October 15, 2018, Respondent filed a letter (dated October 9, 2018) indicating that the Show Cause Order was “delivered to [him] by DEA agents on September 19, 2018” and that he was “requesting a hearing on the subject matter of the revocation of [his] DEA license.” Oct. 9, 2018 Letter from Respondent to Hearing Clerk. The matter was then placed on the docket of the Office of Administrative Law Judges and assigned to Administrative Law Judge Mark M. Dowd (ALJ). On October 16, 2018, the ALJ issued an Order noting that “[n]othing in the record indicates when the [Show Cause Order] was served on Respondent besides Respondent's own assertion of the date [when that Order] was personally served on him.” Order Directing the Filing of Evidence of Lack of State Authority Allegation and Briefing Schedule, at 1-2. As a result, the ALJ ordered the Government (1) to “submit evidence showing when the Respondent first received” the Show Cause Order by October 19, 2018 and (2) to “file evidence to support its allegation that Respondent lacks state authority to handle controlled substances, or any other grounds upon which it seeks summary disposition” by October 23, 2018. Id. at 2. The ALJ also directed Respondent to file his response to any summary disposition motion no later than October 30, 2018. Id.
On October 18, 2018, the Government filed its Motion for Summary Disposition. In its Motion, the Government stated that “Respondent was personally served with the Order to Show Cause on September 19, 2018.” Government's Motion for Summary Disposition (Government's Motion or Govt. Mot.) at 1. In support of its position, the Government submitted a Declaration signed by a Diversion Investigator (DI) assigned to DEA's San Francisco Field Division. Government Exhibit (GX) 2 to Govt. Mot. In that Declaration, the DI stated that he, along with the Diversion Group Supervisor, traveled to Respondent's residence and personally served him on September 19, 2018. Id. at 1.
With respect to the substantive grounds for its Motion, the Government argued that Respondent currently lacks authority to handle controlled substances in California because, on April 17, 2017, the OMBC “adopted the Proposed Decision of an Administrative Law Judge . . . recommending revocation of Respondent's Osteopathic Physician's License number 20A7851.” Govt. Mot., at 3 (citing GX 3). The Government noted that the OMBC's revocation of Respondent's license was effective beginning on May 17, 2017. Id. The Government further argued that, “[a]bsent authority by the State of California to dispense controlled substances, Respondent is not authorized to possess a DEA registration in that state.” Id. Lastly, the Government argued that under Agency precedent, revocation is warranted even where a State has temporarily suspended a practitioner's state authority with the possibility of future reinstatement. Id. at 4 (citations omitted). As support for its summary disposition request, the Government submitted, inter alia, a certified copy of the OMBC's April 17, 2017 Decision adopting the California Administrative Law Judge's Proposed Decision to revoke Respondent's license, the March 21, 2017 Proposed Decision, and the April 13, 2016 “Accusation” against Respondent that the OMBC Executive Director filed with the OMBC. GX 3 to Govt. Mot.
After considering these pleadings, the ALJ issued an Order on November 2, 2018 recommending that I find that there was no dispute “over the fact that Respondent currently lacks state authority to handle controlled substances in the State of California because the [OMBC] has revoked his medical license.” Order Granting the Government's Motion for Summary Disposition, and Recommended Rulings, Findings of Fact, Conclusions of Law, and Decision of the Administrative Law Judge (hereinafter “Recommended Decision” or “R.D.”), at 6. As a result, the ALJ granted the Government's motion for summary disposition and recommended that I revoke Respondent's DEA registration. Id. at 7.
The ALJ issued his Recommended Decision after concluding “that the Respondent has forfeited his right to respond to the Government's allegations” set forth in the Government's Motion because he “has not filed any reply to the Government's allegations,” “has not submitted a request for an extension to reply to the Government's allegations, and has had no further communication with this tribunal apart from the submission of the Request for Hearing.” R.D., at 3.
After considering the Government's Motion, the ALJ also found that “Respondent's Request for Hearing was timely filed.” R.D., at 2 n.1. I agree and adopt the ALJ's finding that Respondent filed a timely hearing request.
Neither party filed exceptions to the ALJ's Recommended Decision. Thereafter, the record was forwarded to my Office for Final Agency Action. Having reviewed the record, I find that Respondent is currently without authority to handle controlled substances in California, the State in which he holds his registration with the Agency, and thus he is not entitled to maintain his DEA registration. I adopt the ALJ's recommendation that I revoke Respondent's registration. I make the following factual findings.
Findings of Fact
Respondent is the holder of DEA Certificate of Registration No. BS7367623, pursuant to which he is authorized to dispense controlled substances in schedules II through V as a practitioner at the registered address of 276 C South Mill Street, Tehachapi, California. GX 1 (Certification of Registration History) to Govt. Mot. This registration does not expire until February 28, 2019. Id.
Respondent was also the holder of California Osteopathic Physician's and Surgeon's License No. 20A7851, which was issued to him by the OMBC. GX 3 to Govt. Mot., at 4. However, on April 17, 2017, the OMBC issued its Decision adopting the March 21, 2017 Proposed Decision of a California Administrative Law Judge revoking Respondent's medical license “together with all licensing rights appurtenant thereto.” GX 3 to Govt. Mot., at 2, 11. The OMBC stated that its Decision “shall become effective on May 17, 2017.” Id. at 2. There is no evidence in the record that the OMBC ever issued a superseding order or decision reinstituting Respondent's license.
In its March 21, 2017, Proposed Decision, the California ALJ based his proposed decision to revoke Respondent's medical license primarily on his findings of fact related to Respondent's own admissions in connection with his federal felony conviction for mail fraud in violation of 18 U.S.C. 1341. See GX 3 to Govt. Mot., at 4, 9. The California ALJ recited Respondent's admission in his plea agreement that, in the course of committing his mail fraud scheme, he “knowingly obtained non-FDA approved copper IUDs [intrauterine devices] by purchasing them on the internet[,] knowingly inserted them into his patients[. . . and] failed to inform his patients that he had inserted a non-FDA approved copper IUD.” Id. at 4 (citations omitted). The California ALJ also recited Respondent's admission that he had “billed at least 10 different health care benefit programs for payment for the insertion of non-FDA approved copper IUDs in his patients . . . representing that he inserted an FDA-approved copper IUD when in fact he had not.” Id. at 5. The California ALJ also noted that the OMBC had “previously disciplined Respondent for his conduct arising out of the same general facts” on November 15, 2014. Id. Pursuant to these findings, the California ALJ concluded that Respondent violated sections 2234(e), 2236(a), and 2261 of California's Business and Professions Code related to unprofessional conduct and dishonest and corrupt acts. Id. at 9.
Accordingly, I find that Respondent currently does not possess a license to practice medicine in the State of California, the State in which he is registered with the DEA. See id.
Discussion
Pursuant to 21 U.S.C. 824(a)(3), the Attorney General is authorized to suspend or revoke a registration issued under section 823 of the Controlled Substances Act (CSA), “upon a finding that the registrant . . . has had his State license . . . suspended [or] revoked . . . by competent State authority and is no longer authorized by State law to engage in the . . . dispensing of controlled substances.” Also, DEA has long 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 obtaining and maintaining a practitioner's registration. See, e.g., James L. Hooper, 76 FR 71371 (2011), pet. for rev. denied, 481 Fed. Appx. 826 (4th Cir. 2012); see also Frederick Marsh Blanton, 43 FR 27616 (1978) (“State authorization to dispense or otherwise handle controlled substances is a prerequisite to the issuance and maintenance of a Federal controlled substances registration.”).
This rule derives from the text of two provisions of the CSA. First, Congress defined “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). Second, in setting the requirements for obtaining a practitioner's registration, Congress directed 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). Because Congress has clearly mandated that a practitioner possess state authority in order to be deemed a practitioner under the Act, DEA has long held that revocation of a practitioner's registration is the appropriate sanction whenever he is no longer authorized to dispense controlled substances under the laws of the State in which he engages in professional practice. See, e.g., Calvin Ramsey, 76 FR 20034, 20036 (2011); Sheran Arden Yeates, M.D., 71 FR 39130, 39131 (2006); Dominick A. Ricci, 58 FR 51104, 51105 (1993); Bobby Watts, 53 FR 11919, 11920 (1988); Blanton, 43 FR 27616 (1978).
Based on my finding that the OMBC revoked Respondent's Osteopathic Physician's and Surgeon's License to practice medicine, I find that Respondent is currently without authority to dispense controlled substances under the laws of California, the State in which he is registered. Accord Christopher D. Owens, M.D., 83 FR 13143, 13145 & n.1 (2018) (citing Cal. Health & Safety Code §§ 11024, 11150, 11210, 11352, 2051, 2052). Here, there is no dispute over the material fact that Respondent is no longer currently authorized to dispense controlled substances in California, the State in which he is registered. Accordingly, Respondent is not entitled to maintain his DEA registration. I will therefore adopt the ALJ's recommendation that I revoke Respondent's registration. R.D., at 7. I will also deny any pending application to renew or to modify his registration, or any pending application for any other DEA registration in California, as requested in the Show Cause Order. Order to Show Cause, at 1.
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 No. BS7367623, issued to Paul Surinder Singh, D.O., be, and it hereby is, revoked. I further order that any pending application of Paul Surinder Singh to renew or modify the above registration, or any pending application of Paul Surinder Singh for any other DEA registration in the State of California, be, and it hereby is, denied. This Order is effective March 13, 2019.
Dated: January 17, 2019.
Uttam Dhillon,
Acting Administrator.
[FR Doc. 2019-01849 Filed 2-8-19; 8:45 am]
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