81 FR 64937 - Charles Szyman, D.O.; Decision and Order

DEPARTMENT OF JUSTICE
Drug Enforcement Administration

Federal Register Volume 81, Issue 183 (September 21, 2016)

Page Range		64937-64940
FR Document		2016-22677
Federal Register, Volume 81 Issue 183 (Wednesday, September 21, 2016)
[Federal Register Volume 81, Number 183 (Wednesday, September 21, 2016)]
[Notices]
[Pages 64937-64940]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2016-22677]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration


Charles Szyman, D.O.; Decision and Order

    On February 10, 2016, the Deputy Assistant Administrator, Office of 
Diversion Control, Drug Enforcement Administration (DEA), issued an 
Order to Show Cause to Charles Szyman, D.O. (hereinafter, Respondent), 
of Manitowoc, Wisconsin. The Show Cause Order proposed the revocation 
of Respondent's DEA Certificate of Registration AS3236406, pursuant to 
which he is authorized to dispense controlled substances in schedules 
II through V as a practitioner, on the ground that he does not have 
authority to handle controlled substances in Wisconsin, the State in 
which he is registered with the Agency. Order to Show Cause, at 1 
(citing 21 U.S.C. 823(f) and 824(a)(3)).
    The Show Cause Order alleged that Respondent is registered as a 
DATA-waived/100 practitioner pursuant to Certificate of Registration 
No. AS3236406, with authority to handle controlled substances in 
schedules II through V, at the registered address of P.O. Box 1450, 
3200 Western Avenue, Manitowoc, Wisconsin. Id. The Order also alleged 
that Respondent's registration does not expire until February 28, 2017. 
Id.
    The Show Cause Order then alleged that State of Wisconsin Medical 
Examining Board (hereinafter, Board) issued an order suspending 
Respondent's authority to practice medicine and surgery, effective 
October 21, 2015. Id. The Show Cause Order thus asserted that ``DEA 
must revoke [Respondent's registration] based upon [his] lack of 
authority to handle controlled substances in the State of Wisconsin.'' 
Id. (citing 21 U.S.C. 802(21), 823(f) and 824(a)(3)). The Show Cause 
Order also notified Respondent of his right to request a hearing on the 
allegations or to submit a written statement while waiving his right to 
a hearing, the procedure for electing either option, and the 
consequence of failing to electing either option. Id. at 2 (citing 21 
CFR 1301.43).
    On March 7, 2016, Respondent, through his counsel, requested a 
hearing on the allegations of the Show Cause Order. Resp.'s Hrng. Req., 
at 1. In his hearing request, Respondent conceded that his state 
license had been summarily suspended, but argued that 21 U.S.C. 
824(a)(3) does not require that DEA revoke a registration if the 
practitioner has had his state license suspended. Id. at 2. He also 
requested a stay of the proceeding until after the resolution of the 
Board's case. Id.
    The matter was placed on the docket of the Office of Administrative 
Law Judges, and assigned to the Chief Administrative Law Judge 
(hereinafter, CALJ). Order Directing the Filing of Government Evidence 
of Lack of State Authority Allegation and Briefing Schedule, at 1. The 
same day, the CALJ issued an order directing the Government to 
``provide its position regarding the Respondent's request for a stay'' 
and to file evidence to support its allegation of Respondent's lack of 
state

[[Page 64938]]

authority. Id. at 1-2. He also ordered Respondent to file a timely 
reply if the Government filed a motion for summary disposition. Id. at 
2.
    On March 18, 2016, the Government filed it Motion for Summary 
Disposition, which it supported by attaching a copy of the Board's 
October 21, 2015 Order of Summary Suspension. Mot. for Summ. Disp., at 
Appendix B. Therein, the Government argued that it was undisputed that 
the Board suspended Respondent's state license on October 21, 2015. 
Mot. for Summ. Disp., at 2. The Government further argued that because 
Respondent no longer meets the statutory definition of a practitioner 
and ``the Agency has consistently held that `the CSA requires the 
revocation of a registration issued to a practitioner . . . even where 
a state board has suspended . . . a practitioner's authority with the 
possibility that the authority may be restored at some point in the 
future,' '' it was entitled to summary disposition and the 
recommendation that Respondent's registration be revoked. Id. at 4 
(citations omitted). The Government also requested that the CALJ deny 
Respondent's stay request. Id.
    In his Reply, Respondent argued that ``the plain language of 
section 824(a)(3) provides that the loss of state authority constitutes 
a discretionary, not mandatory, basis for revocation.'' Respondent 
Reply to Gov. Mot. for Summ. Disp., at 1 (citing James Alvin Chaney, 80 
FR 57391 n.1 (2015)).\1\ Respondent's Reply, at 1. However, Respondent 
also acknowledged that the CALJ's recommended decision in Chaney 
``deferred to Agency precedent'' and recommended revocation, and thus 
he would not ``belabor his objection.'' Id. Respondent argued, however, 
that ``[a] stay . . . would afford [him] with his due process right to 
be heard in a meaningful manner in the State . . . proceeding.'' Id. 
(citing Dusenberry v. United States, 543 U.S. 161 (2002); Mathews v. 
Eldridge, 424 U.S. 319 (1976)).
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    \1\ Respondent's citation refers to Footnote 1 of the 
Recommended Decision in Chaney and not to the Agency's Decision and 
Order. In the latter, the Agency made clear that although the 
language of section 824(a) authorizes either the suspension or 
revocation of a registration upon the making of one of the five 
findings enumerated therein, based on the CSA's definition of the 
term practitioner, see 21 U.S.C. 802(21), and the provision which 
sets forth the criteria for evaluating an application for a 
practitioner's registration, see id. Sec.  823(f), the Agency has 
consistently interpreted the CSA as mandating the revocation of a 
practitioner's registration where the practitioner's state authority 
has been suspended or revoked. 80 FR 57392 n.2. This interpretation 
has been upheld by the federal courts. As the Fourth Circuit has 
held, ``[b]ecause sections 823(f) and 802(21) make clear that a 
practitioner's registration is dependent upon the practitioner 
having state authority to dispense controlled substances, the 
[Administrator's] decision to construe section 824(a)(3) as 
mandating revocation upon suspension of a state license is not an 
unreasonable interpretation of the CSA.'' Hooper v. Holder, 481 
Fed.Appx. 826, 828 (4th Cir. 2012).
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    On March 29, 2016, the CALJ granted the Government's Motion for 
Summary Disposition, finding that Respondent conceded in his Hearing 
Request that he is currently without state authority to handle 
controlled substances in Wisconsin, and thus ``no genuine dispute 
exists over the fact that [Respondent] lacks state authority to handle 
controlled substances in Wisconsin.'' Recommended Rulings, Findings of 
Fact, Conclusions of Law and Decision of the Administrative Law Judge, 
at 7. The CALJ also denied Respondent's request for a stay, noting that 
``the Agency has previously stated that a stay is ``unlikely to ever be 
justified due to ancillary proceedings'' and ``it is not DEA's policy 
to stay [administrative] proceedings . . . while registrants litigate 
in other forums.'' Id. (citing Grider Drug #1 & Grider Drug #2, 77 FR 
44070, 44104 n.97 (2012); Newcare Home Health Services, 72 FR 42126 
(2007)).
    Neither party filed Exceptions to the CALJ's Recommended Decision. 
Thereafter, the record was forward to this office for Final Agency 
Action. Having considered the entire record, I will adopt the ALJ's 
ruling that a stay of the proceeding was not warranted, his finding 
that ``Respondent lacks state authority to handle controlled 
substances'' and ``is not entitled to maintain his DEA registration,'' 
and his recommendation that I revoke Respondent's registration. I make 
the following factual findings.

Findings

    Respondent holds DEA Certificate of Registration AS3236406. 
Pursuant to this registration, Respondent is authorized to dispense 
controlled substances in schedules II through V, at the registered 
location of P.O. Box 1450, 2300 Western Avenue, Manitowoc, Wisconsin. 
Appendix A to Gov. Mot. for Summ. Disp., at 1. Under this registration, 
Respondent is also authorized to treat up to 100 patients as a DATA-
waived physician. Id. Respondent's registration does not expire until 
February 28, 2017. Id.
    It is undisputed that the Wisconsin Medical Board issued an Order 
summarily suspending Respondent's state license to practice medicine 
effective on October 21, 2015. See also Appendix B to Gov. Mot. for 
Summ. Disp., at 3. While according to Respondent's Hearing Request, a 
hearing to challenge the Board's action was set for May 18, 2016, 
Respondent's state license remains suspended as of the date of this 
Decision and Order.\2\ Resp. Hrng. Req., at 2. See also https://app.wi.gov/LicenseSearch/IndividualLicense/SearchResultsSummary 
(visited Sept. 13, 2016).
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    \2\ In its Order, the Board found that Respondent ``prescribes 
unusually large amounts of controlled substances, opioid pain 
medications in particular, without adequate or any medical support'' 
and ``without adequate or any physical examinations or medical 
testing,'' that he ``allowed patients to request specific drugs and 
dosages,'' and that he ``knows or should know the prescriptions he 
writes are being diverted, abused and are causing the accidental and 
intentional deaths of patients and others in the community where he 
practices.'' Appendix B (Board Order), at 1-2. The Board concluded 
that ``there is probable cause to believe that unprofessional 
conduct has occurred'' and that ``it is necessary to suspend the 
license and registration of Respondent . . . immediately to protect 
the public health, safety or welfare.'' Id. at 2 (citing Wis. Admin. 
Code Sec.  Med. 10.02(2)(h) (Nov. 2002) and Wis. Admin. Code 
Sec. Sec.  Med. 10.03(2)(b) and (c) (Oct. 2013)).
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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, ``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.'' Moreover, DEA has held repeatedly 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).
    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 physician possess state authority in order to be deemed a 
practitioner under the Act,

[[Page 64939]]

DEA has held repeatedly 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 practices medicine. 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); see also Hooper v. Holder, 481 Fed. Appx. at 
828.
    In his Reply to the Government's Motion, Respondent argues that 
``the plain language of section 824(a)(3) provides that the loss of 
state authority constitutes a discretionary, not mandatory, basis for 
revocation.'' Resp. Reply, at 1. This Agency has explained, however, 
that Section 824(a)'s grant of authority to suspend or revoke a 
registration applies across all categories of registration, including 
manufacturers, distributors, importers, exporters, narcotic treatment 
programs, list I distributors, and practitioners, and it applies to 
five different grounds for sanctioning a registrant. Hooper, 76 FR, at 
71372. The Agency has further explained that ``this general grant of 
authority in imposing a sanction must be reconciled with the CSA's 
specific provisions which mandate that a practitioner hold authority 
under state law in order to obtain and maintain a DEA registration.'' 
\3\ Id. See also Gozlon-Peretz v. United States, 498 U.S. 395, 407 
(1991) (``A specific provision controls over one of more general 
application.''); Bloate v. United States, 559 U.S. 196, 207 (2010) 
(``language of a statutory provision, although broad enough to include 
it, will not be held to apply to a matter specifically dealt with in 
another part of the same enactment.' '').
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    \3\ By contrast, in Bio-Diagnostic International, 78 FR 39327 
(2013), a case involving a list I chemical distributor which did not 
possess state authority, the Agency held that granting summary 
disposition to the Government on this basis was improper because 
neither the provision setting forth the standards for the 
registration of list I distributors, nor the definition of a 
distributor, requires that a distributor possess state authority in 
order to be registered. While Bio-Diagnostic involved an 
application, in a footnote, the decision explained that while 
``section 824(a)(3) authorizes revocation where a registrant `has 
had [its] State license suspended, revoked, or denied by competent 
state authority and is no longer authorized by State law to engage 
in the manufacturing [or] distribution of . . . list I chemicals[,]' 
[this] does not mean that revocation is warranted in all 
instances.'' Id. at 39330 n.6. Continuing, the decision explained 
that ``[t]his provision grants the Agency discretionary authority to 
impose an appropriate sanction; the failure to consider factors such 
as the egregiousness of the misconduct and mitigating factors in 
imposing the sanction would render the sanction arbitrary and 
capricious.'' Id.
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    Thus, in Hooper v. Holder, a physician whose state authority was 
suspended for a period of one year, challenged the revocation of his 
registration, arguing that the Agency ``failed to recognize the 
discretion under Sec.  824(a) to revoke or suspend a registration and 
that it was impermissible for the [Agency] to conclude that the CSA 
requires revocation of a practitioner's DEA registration when the 
practitioner's State license is suspended.'' 481 Fed. App'x, at 826. 
The Fourth Circuit rejected the physician's challenge, explaining:

    We find Hooper's contention unconvincing. Section 824(a) does 
state that the [Agency] may ``suspend or revoke'' a registration, 
but the statute provides for this sanction in five different 
circumstances, only one of which is loss of a State license. Because 
Sec.  823(f) and Sec.  802(21) make clear that a practitioner's 
registration is dependent upon the practitioner having state 
authority to dispense controlled substances, the [Agency's] decision 
to construe Sec.  824(a)(3) as mandating revocation upon suspension 
of a state license is not an unreasonable interpretation of the CSA. 
The [Agency's] decision does not ``read[] the suspension option'' 
out of the statute, because that option may still be available for 
the other circumstances enumerated in Sec.  824(a).

Id. See also Maynard v. DEA, 117 Fed. Appx. 941, 945 (5th Cir. 2004) 
(upholding revocation of DEA registration after Texas DPS summarily 
suspended practitioner's controlled substance registration, noting that 
the Agency ``has construed the CSA to require revocation when a 
registrant no longer possesses valid state authority to handle 
controlled substances''; ``We agree with [the] argument that it may 
have been arbitrary and capricious had the DEA failed to revoke [the 
physician's] registration under the circumstances.'').
    Indeed, DEA has interpreted the CSA in this manner for nearly 40 
years. See Frederick Marsh Blanton, M.D., 43 FR 27616 (1978). In 
Blanton, a physician's state license was suspended for a period of one 
year. Id. at 27616. The Agency nonetheless revoked the physician's 
registration, explaining that ``it is the Administrator's finding and 
conclusion that there is a lawful or statutory basis for the revocation 
of the Respondent's DEA registration. State authorization to dispense 
or otherwise handle controlled substances is a prerequisite to the 
issuance and maintenance of a Federal controlled substances 
registration. The Respondent's registration must, therefore, be 
revoked.'' Id. at 27617 (emphasis added). See also Alfred Tennyson 
Smurthwaite, 43 FR at 11873 (same).
    Put another way, because a practitioner's registration is dependent 
upon state authority to dispense controlled substances, when that 
practitioner's state authority has been revoked or suspended, the 
practitioner no longer meets the statutory definition. See 21 U.S.C. 
Sec.  802(21). And because the CSA makes clear 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, ``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, 
76 FR 71604, 71606 (2011); see also Bourne Pharmacy, Inc., 72 FR 18273, 
18274 (2007); Anne Lazar Thorn, 62 FR 12847 (1997).
    In his Reply to the Motion for Summary Disposition, Respondent also 
argues that a stay ``would afford [him] with his due process right to 
be heard in a meaningful manner in the State Medical Examining Board 
proceeding.'' Reply, at 1. Respondent, however, offers no explanation 
as to how my adjudication of this matter impacts, in any manner, his 
right to be heard in the State proceeding. Indeed, in circumstances 
similar to those of Respondent, this Agency ``has repeatedly denied 
requests to stay the issuance of a final order of revocation . . . 
[because] under the Controlled Substances Act, `a practitioner must be 
currently authorized to handle controlled substances . . . to maintain 
[his] DEA registration.' '' Gregory F. Saric, M.D., 76 FR 16821 (2011) 
(quoting 21 U.S.C. Sec.  802(21)); see also Irwin August, 81 FR 3158 
(2016). As the Agency has explained, because ``whether Respondent's 
state license will be re-instated is entirely speculative, id., `[i]t 
is not DEA's policy to stay proceedings . . . while registrants 
litigate in other forums.' '' August, 81 FR at 3159 (quoting Newcare 
Home Health Servs., 72 FR 42126, 42127 n.2 (2007) (citing Bourne 
Pharmacy, 72 FR 18273 (2007))). I therefore affirm the ALJ's ruling 
denying Respondent's stay request.
    In conclusion, because Respondent is not currently authorized to 
dispense controlled substances in Wisconsin, the State in which he is 
registered with the Agency, he is not entitled to maintain his 
registration. Accordingly, I will adopt the ALJ's recommendation that I 
revoke Respondent's registration.

[[Page 64940]]

Order

    Pursuant to the authority vested in me by 21 U.S.C. Sec.  824(a), 
as well as 28 CFR 0.100(b), I order that DEA Certificate of 
Registration AS3236406, issued to Charles Szyman, D.O., be, and it 
hereby is, revoked. This Order is effective immediately.\4\
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    \4\ For the same reasons which led the Wisconsin Board to 
summarily suspend Respondent's osteopathic license, see supra note 
2, I find that the public interest necessitates that this Order be 
effective immediately. 21 CFR 1316.67.

    Dated: September 13, 2016.
Chuck Rosenberg,
Acting Administrator.
[FR Doc. 2016-22677 Filed 9-20-16; 8:45 am]
 BILLING CODE 4410-09-P
64938 Federal Register / Vol. 81, No. 183 / Wednesday, September 21, 2016 / Notices

authority. Id. at 1–2. He also ordered his due process right to be heard in a hearing to challenge the Board’s action
Respondent to file a timely reply if the meaningful manner in the State . . . was set for May 18, 2016, Respondent’s
Government filed a motion for summary proceeding.’’ Id. (citing Dusenberry v. state license remains suspended as of
disposition. Id. at 2. United States, 543 U.S. 161 (2002); the date of this Decision and Order.2
On March 18, 2016, the Government Mathews v. Eldridge, 424 U.S. 319 Resp. Hrng. Req., at 2. See also https://
filed it Motion for Summary (1976)). app.wi.gov/LicenseSearch/Individual
Disposition, which it supported by On March 29, 2016, the CALJ granted License/SearchResultsSummary (visited
attaching a copy of the Board’s October the Government’s Motion for Summary Sept. 13, 2016).
21, 2015 Order of Summary Suspension. Disposition, finding that Respondent
Mot. for Summ. Disp., at Appendix B. conceded in his Hearing Request that he Discussion
Therein, the Government argued that it is currently without state authority to Pursuant to 21 U.S.C. 824(a)(3), the
was undisputed that the Board handle controlled substances in Attorney General is authorized to
suspended Respondent’s state license Wisconsin, and thus ‘‘no genuine suspend or revoke a registration issued
on October 21, 2015. Mot. for Summ. dispute exists over the fact that under section 823, ‘‘upon a finding that
Disp., at 2. The Government further [Respondent] lacks state authority to the Registrant . . . has had his State
argued that because Respondent no handle controlled substances in license . . . suspended [or] revoked
longer meets the statutory definition of Wisconsin.’’ Recommended Rulings, . . . by competent State authority and is
a practitioner and ‘‘the Agency has Findings of Fact, Conclusions of Law no longer authorized by State law to
consistently held that ‘the CSA requires and Decision of the Administrative Law engage in the . . . dispensing of
the revocation of a registration issued to Judge, at 7. The CALJ also denied controlled substances.’’ Moreover, DEA
a practitioner . . . even where a state Respondent’s request for a stay, noting has held repeatedly that the possession
board has suspended . . . a that ‘‘the Agency has previously stated of authority to dispense controlled
practitioner’s authority with the that a stay is ‘‘unlikely to ever be substances under the laws of the State
possibility that the authority may be justified due to ancillary proceedings’’ in which a practitioner engages in
restored at some point in the future,’ ’’ and ‘‘it is not DEA’s policy to stay professional practice is a fundamental
it was entitled to summary disposition [administrative] proceedings . . . while condition for obtaining and maintaining
and the recommendation that registrants litigate in other forums.’’ Id. a practitioner’s registration. See, e.g.,
Respondent’s registration be revoked. (citing Grider Drug #1 & Grider Drug #2, James L. Hooper, 76 FR 71371 (2011),
Id. at 4 (citations omitted). The 77 FR 44070, 44104 n.97 (2012); pet. for rev. denied, 481 Fed. Appx. 826
Government also requested that the Newcare Home Health Services, 72 FR (4th Cir. 2012).
CALJ deny Respondent’s stay request. 42126 (2007)). This rule derives from the text of two
Id. Neither party filed Exceptions to the provisions of the CSA. First, Congress
In his Reply, Respondent argued that CALJ’s Recommended Decision. defined ‘‘the term ‘practitioner’ [to]
‘‘the plain language of section 824(a)(3) Thereafter, the record was forward to mean[ ] a . . . physician . . . or other
provides that the loss of state authority this office for Final Agency Action. person licensed, registered or otherwise
constitutes a discretionary, not Having considered the entire record, I permitted, by . . . the jurisdiction in
mandatory, basis for revocation.’’ will adopt the ALJ’s ruling that a stay of which he practices . . . to distribute,
Respondent Reply to Gov. Mot. for the proceeding was not warranted, his dispense, [or] administer . . . a
Summ. Disp., at 1 (citing James Alvin finding that ‘‘Respondent lacks state controlled substance in the course of
Chaney, 80 FR 57391 n.1 (2015)).1 authority to handle controlled professional practice.’’ 21 U.S.C.
Respondent’s Reply, at 1. However, substances’’ and ‘‘is not entitled to 802(21). Second, in setting the
Respondent also acknowledged that the maintain his DEA registration,’’ and his requirements for obtaining a
CALJ’s recommended decision in recommendation that I revoke practitioner’s registration, Congress
Chaney ‘‘deferred to Agency precedent’’ Respondent’s registration. I make the directed that ‘‘[t]he Attorney General
and recommended revocation, and thus following factual findings. shall register practitioners . . . if the
he would not ‘‘belabor his objection.’’ applicant is authorized to dispense . . .
Id. Respondent argued, however, that Findings controlled substances under the laws of
‘‘[a] stay . . . would afford [him] with Respondent holds DEA Certificate of the State in which he practices.’’ 21
Registration AS3236406. Pursuant to U.S.C. 823(f). Because Congress has
1 Respondent’s citation refers to Footnote 1 of the this registration, Respondent is clearly mandated that a physician
Recommended Decision in Chaney and not to the authorized to dispense controlled possess state authority in order to be
Agency’s Decision and Order. In the latter, the
Agency made clear that although the language of
substances in schedules II through V, at deemed a practitioner under the Act,
section 824(a) authorizes either the suspension or the registered location of P.O. Box 1450,
revocation of a registration upon the making of one 2300 Western Avenue, Manitowoc, 2 In its Order, the Board found that Respondent

of the five findings enumerated therein, based on Wisconsin. Appendix A to Gov. Mot. for ‘‘prescribes unusually large amounts of controlled
the CSA’s definition of the term practitioner, see 21 substances, opioid pain medications in particular,
U.S.C. 802(21), and the provision which sets forth Summ. Disp., at 1. Under this without adequate or any medical support’’ and
the criteria for evaluating an application for a registration, Respondent is also ‘‘without adequate or any physical examinations or
practitioner’s registration, see id. § 823(f), the authorized to treat up to 100 patients as medical testing,’’ that he ‘‘allowed patients to
Agency has consistently interpreted the CSA as request specific drugs and dosages,’’ and that he
mandating the revocation of a practitioner’s
a DATA-waived physician. Id. ‘‘knows or should know the prescriptions he writes
registration where the practitioner’s state authority Respondent’s registration does not are being diverted, abused and are causing the
has been suspended or revoked. 80 FR 57392 n.2. expire until February 28, 2017. Id. accidental and intentional deaths of patients and
This interpretation has been upheld by the federal It is undisputed that the Wisconsin others in the community where he practices.’’
mstockstill on DSK3G9T082PROD with NOTICES

courts. As the Fourth Circuit has held, ‘‘[b]ecause Medical Board issued an Order Appendix B (Board Order), at 1–2. The Board
sections 823(f) and 802(21) make clear that a concluded that ‘‘there is probable cause to believe
practitioner’s registration is dependent upon the summarily suspending Respondent’s that unprofessional conduct has occurred’’ and that
practitioner having state authority to dispense state license to practice medicine ‘‘it is necessary to suspend the license and
controlled substances, the [Administrator’s] effective on October 21, 2015. See also registration of Respondent . . . immediately to
decision to construe section 824(a)(3) as mandating protect the public health, safety or welfare.’’ Id. at
revocation upon suspension of a state license is not
Appendix B to Gov. Mot. for Summ. 2 (citing Wis. Admin. Code § Med. 10.02(2)(h) (Nov.
an unreasonable interpretation of the CSA.’’ Hooper Disp., at 3. While according to 2002) and Wis. Admin. Code §§ Med. 10.03(2)(b)
v. Holder, 481 Fed.Appx. 826, 828 (4th Cir. 2012). Respondent’s Hearing Request, a and (c) (Oct. 2013)).

VerDate Sep<11>2014 18:19 Sep 20, 2016 Jkt 238001 PO 00000 Frm 00070 Fmt 4703 Sfmt 4703 E:\FR\FM\21SEN1.SGM 21SEN1
Federal Register / Vol. 81, No. 183 / Wednesday, September 21, 2016 / Notices 64939

DEA has held repeatedly that revocation Thus, in Hooper v. Holder, a Put another way, because a
of a practitioner’s registration is the physician whose state authority was practitioner’s registration is dependent
appropriate sanction whenever he is no suspended for a period of one year, upon state authority to dispense
longer authorized to dispense controlled challenged the revocation of his controlled substances, when that
substances under the laws of the State registration, arguing that the Agency practitioner’s state authority has been
in which he practices medicine. See, e. ‘‘failed to recognize the discretion under revoked or suspended, the practitioner
g., Calvin Ramsey, 76 FR 20034, 20036 § 824(a) to revoke or suspend a no longer meets the statutory definition.
(2011); Sheran Arden Yeates, M.D., 71 registration and that it was See 21 U.S.C. § 802(21). And because
FR 39130, 39131 (2006); Dominick A. impermissible for the [Agency] to the CSA makes clear that the possession
Ricci, 58 FR 51104, 51105 (1993); Bobby conclude that the CSA requires of authority to dispense controlled
Watts, 53 FR 11919, 11920 (1988); see revocation of a practitioner’s DEA substances under the laws of the State
also Hooper v. Holder, 481 Fed. Appx. registration when the practitioner’s in which a practitioner engages in
at 828. State license is suspended.’’ 481 Fed. professional practice is a fundamental
In his Reply to the Government’s App’x, at 826. The Fourth Circuit condition for both obtaining and
Motion, Respondent argues that ‘‘the rejected the physician’s challenge, maintaining a practitioner’s registration,
plain language of section 824(a)(3) explaining: ‘‘revocation is warranted even where a
provides that the loss of state authority We find Hooper’s contention practitioner’s state authority has been
constitutes a discretionary, not unconvincing. Section 824(a) does state that summarily suspended and the State has
mandatory, basis for revocation.’’ Resp. the [Agency] may ‘‘suspend or revoke’’ a yet to provide the practitioner with a
Reply, at 1. This Agency has explained, registration, but the statute provides for this hearing to challenge the State’s action at
however, that Section 824(a)’s grant of sanction in five different circumstances, only which he may ultimately prevail.’’
one of which is loss of a State license.
authority to suspend or revoke a Because § 823(f) and § 802(21) make clear
Kamal Tiwari, 76 FR 71604, 71606
registration applies across all categories that a practitioner’s registration is dependent (2011); see also Bourne Pharmacy, Inc.,
of registration, including manufacturers, upon the practitioner having state authority 72 FR 18273, 18274 (2007); Anne Lazar
distributors, importers, exporters, to dispense controlled substances, the Thorn, 62 FR 12847 (1997).
narcotic treatment programs, list I [Agency’s] decision to construe § 824(a)(3) as In his Reply to the Motion for
distributors, and practitioners, and it mandating revocation upon suspension of a Summary Disposition, Respondent also
applies to five different grounds for state license is not an unreasonable
argues that a stay ‘‘would afford [him]
interpretation of the CSA. The [Agency’s]
sanctioning a registrant. Hooper, 76 FR, with his due process right to be heard
decision does not ‘‘read[] the suspension
at 71372. The Agency has further option’’ out of the statute, because that in a meaningful manner in the State
explained that ‘‘this general grant of option may still be available for the other Medical Examining Board proceeding.’’
authority in imposing a sanction must circumstances enumerated in § 824(a). Reply, at 1. Respondent, however, offers
be reconciled with the CSA’s specific Id. See also Maynard v. DEA, 117 Fed. no explanation as to how my
provisions which mandate that a Appx. 941, 945 (5th Cir. 2004) adjudication of this matter impacts, in
practitioner hold authority under state (upholding revocation of DEA any manner, his right to be heard in the
law in order to obtain and maintain a registration after Texas DPS summarily State proceeding. Indeed, in
DEA registration.’’ 3 Id. See also Gozlon- suspended practitioner’s controlled circumstances similar to those of
Peretz v. United States, 498 U.S. 395, substance registration, noting that the Respondent, this Agency ‘‘has
407 (1991) (‘‘A specific provision Agency ‘‘has construed the CSA to repeatedly denied requests to stay the
controls over one of more general require revocation when a registrant no issuance of a final order of revocation
application.’’); Bloate v. United States, longer possesses valid state authority to . . . [because] under the Controlled
559 U.S. 196, 207 (2010) (‘‘language of handle controlled substances’’; ‘‘We Substances Act, ‘a practitioner must be
a statutory provision, although broad agree with [the] argument that it may currently authorized to handle
enough to include it, will not be held to have been arbitrary and capricious had controlled substances . . . to maintain
apply to a matter specifically dealt with the DEA failed to revoke [the [his] DEA registration.’ ’’ Gregory F.
in another part of the same physician’s] registration under the Saric, M.D., 76 FR 16821 (2011) (quoting
enactment.’ ’’). circumstances.’’). 21 U.S.C. § 802(21)); see also Irwin
Indeed, DEA has interpreted the CSA August, 81 FR 3158 (2016). As the
3 By contrast, in Bio-Diagnostic International, 78
in this manner for nearly 40 years. See Agency has explained, because
FR 39327 (2013), a case involving a list I chemical ‘‘whether Respondent’s state license
distributor which did not possess state authority,
Frederick Marsh Blanton, M.D., 43 FR
the Agency held that granting summary disposition 27616 (1978). In Blanton, a physician’s will be re-instated is entirely
to the Government on this basis was improper state license was suspended for a period speculative, id., ‘[i]t is not DEA’s policy
because neither the provision setting forth the of one year. Id. at 27616. The Agency to stay proceedings . . . while
standards for the registration of list I distributors, registrants litigate in other forums.’ ’’
nor the definition of a distributor, requires that a
nonetheless revoked the physician’s
distributor possess state authority in order to be registration, explaining that ‘‘it is the August, 81 FR at 3159 (quoting Newcare
registered. While Bio-Diagnostic involved an Administrator’s finding and conclusion Home Health Servs., 72 FR 42126,
application, in a footnote, the decision explained that there is a lawful or statutory basis 42127 n.2 (2007) (citing Bourne
that while ‘‘section 824(a)(3) authorizes revocation Pharmacy, 72 FR 18273 (2007))). I
where a registrant ‘has had [its] State license
for the revocation of the Respondent’s
suspended, revoked, or denied by competent state DEA registration. State authorization to therefore affirm the ALJ’s ruling denying
authority and is no longer authorized by State law dispense or otherwise handle controlled Respondent’s stay request.
to engage in the manufacturing [or] distribution of substances is a prerequisite to the In conclusion, because Respondent is
mstockstill on DSK3G9T082PROD with NOTICES

. . . list I chemicals[,]’ [this] does not mean that
revocation is warranted in all instances.’’ Id. at
issuance and maintenance of a Federal not currently authorized to dispense
39330 n.6. Continuing, the decision explained that controlled substances registration. The controlled substances in Wisconsin, the
‘‘[t]his provision grants the Agency discretionary Respondent’s registration must, State in which he is registered with the
authority to impose an appropriate sanction; the therefore, be revoked.’’ Id. at 27617 Agency, he is not entitled to maintain
failure to consider factors such as the egregiousness
of the misconduct and mitigating factors in
(emphasis added). See also Alfred his registration. Accordingly, I will
imposing the sanction would render the sanction Tennyson Smurthwaite, 43 FR at 11873 adopt the ALJ’s recommendation that I
arbitrary and capricious.’’ Id. (same). revoke Respondent’s registration.

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64940 Federal Register / Vol. 81, No. 183 / Wednesday, September 21, 2016 / Notices

Order question: ‘‘Has the applicant ever his registered address from Tennessee to
Pursuant to the authority vested in me surrendered (for cause) or had a state an address in Dolores, Colorado. Id. at
by 21 U.S.C. § 824(a), as well as 28 CFR professional license or controlled 4. The Order alleged that Respondent
0.100(b), I order that DEA Certificate of substances registration revoked, made several additional requests to
Registration AS3236406, issued to suspended, restricted, or placed on modify his registered address,
Charles Szyman, D.O., be, and it hereby probation, or is any such action concluding with his February 18, 2015
is, revoked. This Order is effective pending?’’ and that ‘‘[i]n furtherance of request to change his address to a
[his] answer,’’ Respondent explained location in Grand Junction, Colorado
immediately.4
that on July 17, 2012, ‘‘the Arizona and that the Agency approved this
Dated: September 13, 2016. Board of Osteopathic Examiners placed request on March 17, 2015. Id.
Chuck Rosenberg, my license on a 5 year probation,’’ and The Order then alleged that prior to
Acting Administrator. that as a result, ‘‘I voluntarily the Agency’s approval of his
[FR Doc. 2016–22677 Filed 9–20–16; 8:45 am] surrendered my Arizona license and modification request, Respondent
BILLING CODE 4410–09–P DEA registration as I knew I was moving issued controlled substance
to Tennessee in the next few months.’’ prescriptions in Colorado, ‘‘in violation
Id. at 1–2. of 21 U.S.C. 810(10),1 822(e), and
DEPARTMENT OF JUSTICE The Government then alleged that 841(a)(1).’’ Id. at 4 (citing, inter alia, 21
Respondent’s answer was materially CFR 1301.12(a), 1301.13(a)).
Drug Enforcement Administration false because he was ‘‘aware of at least Specifically, the Order alleged that
two . . . other state professional license ‘‘from July 2014 through February 2015,
Richard J. Settles, D.O.; Decision and actions’’ when he submitted the [Respondent] issued over 250
Order application and failed to disclose them. prescriptions when [he] lacked the
On September 9, 2015, the Deputy Id. at 2. The Government alleged that requisite federal authority to issue
Assistant Administrator, Office of these actions included a November 17, prescriptions in Colorado.’’ Id. The
Diversion Control, Drug Enforcement 2012 Interim Consent Order issued by Order then set forth multiple instances
Administration, issued an Order to the Arizona Board, which restricted of such prescriptions. Id. at 5–6. The
Show Cause to Richard J. Settles, D.O. Respondent’s license to practice Order further alleged that Respondent
(hereinafter, Respondent), of Grand osteopathic medicine pending the ‘‘issued multiple prescriptions to
Junction, Colorado. The Show Cause Board’s investigation into whether he patients within a thirty-day window,
violated its July 17, 2012 Order by amounting to prescriptions for large
Order proposed the revocation of
prescribing controlled substances as his dosages of highly abused controlled
Respondent’s DEA Certificate of
authority to do so had been restricted by substances’’ and set forth a dozen
Registration FS3717975, pursuant to
that Order. Id. As for the second Board patients to whom he issued the
which he is authorized to dispense
action, the Government alleged that on prescriptions. Id. at 6–7.
controlled substances in schedules II On September 14, 2015, the Show
February 6, 2013, Respondent entered
through V, as a practitioner, at the Cause Order, which also notified
into a Stipulation and Order with the
registered address of 715 Horizon Drive, Respondent of his right to request a
Utah Division of Occupational and
Suite 200, Grand Junction, Colorado. GX hearing on the allegations or to submit
Professional Licensing, in which he
2, at 1 (citing 21 U.S.C. 824(a)(1) and a written statement in lieu of a hearing,
admitted that he had falsified a May 4,
(4)). The Show Cause Order also 2012 application for licensure in that the procedure for electing either option,
proposed the denial of any pending State, because he failed to disclose that and the consequence for failing to elect
application to renew or modify he was then under investigation by the either option, was served on
Respondent’s registration, on the ground Arizona Board, and that he had Respondent by certified mail, return
that his ‘‘continued registration is surrendered his Utah license to practice receipt requested. GX 4, at 1. Thereafter,
inconsistent with the public interest.’’ as an osteopath. Id. at 2–3 (citing 21 on October 14, 2015, Respondent,
Id. U.S.C. 824(a)(1), 823(f), 843(a)(4)(A)). through his attorney, filed a document
As grounds for the proposed actions, As for the prescribing allegations, the entitled ‘‘Waiver of Hearing, Statement
the Government alleged that Government alleged that pursuant to the of Position on the Facts and Law’’
Respondent had materially falsified his July 17, 2012 Arizona Board Order, (hereinafter ‘‘Position Statement’’) with
March 4, 2013 application for Respondent was restricted from the Office of Administrative Law Judges.
registration. Id. at 2 (21 U.S.C. prescribing schedule I through IV See 21 CFR 1301.43(c); GX 5. Therein,
824(a)(1)). The Order also alleged that controlled substances. Id. at 3. The Respondent acknowledged service of
he had issued prescriptions for Order alleged that the Board the Order to Show Cause on September
controlled substances without authority subsequently found that after the 14, 2015, see GX 5 at 5, and explained
to do so under both Arizona and Federal effective date of the Order, Respondent he was waiving his right to a hearing
law. Id. at 3 (citing 21 U.S.C. 824(a)(4)). became the medical director of a and filing his ‘‘Statement of Position on
With respect to the material hospice program and prescribed the Facts and Law regarding the matters
falsification allegation, the Government controlled substances to 10 of the alleged in the Order to Show Cause.’’
alleged that on March 4, 2013, program’s patients. Id. The Order then GX 5, at 2.
Respondent applied for a DEA alleged that ‘‘[p]rescribing controlled On February 29, 2016, the
registration at a location in Chattanooga, substances without appropriate Government forwarded its Request for
Tennessee. Id. at 1. The Government authority is contrary to Federal law.’’ Id. Final Agency action, the Investigative
mstockstill on DSK3G9T082PROD with NOTICES

alleged that Respondent provided a at 3 (citations omitted). Record, and Respondent’s Position
‘‘yes’’ answer to the application Next, the Order alleged that on May Statement. Subsequently, on March 21,
7, 2014, one day before the Tennessee 2016, the Government filed an
4 For the same reasons which led the Wisconsin
State Board of Osteopathic Examination Addendum to its Request for Final
Board to summarily suspend Respondent’s
osteopathic license, see supra note 2, I find that the
issued a Consent Order which Agency Action (hereinafter, First
public interest necessitates that this Order be indefinitely suspended his Tennessee
effective immediately. 21 CFR 1316.67. license, Respondent applied to modify 1 There is no such provision in the CSA.

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Document Created: 2016-09-21 01:31:36
Document Modified: 2016-09-21 01:31:36
Category		Regulatory Information
Collection		Federal Register
sudoc Class		AE 2.7: GS 4.107: AE 2.106:
Publisher		Office of the Federal Register, National Archives and Records Administration
Section		Notices
FR Citation		81 FR 64937
81 FR 64937 - Charles Szyman, D.O.; Decision and Order

DEPARTMENT OF JUSTICEDrug Enforcement Administration

Federal Register Volume 81, Issue 183 (September 21, 2016)

DEPARTMENT OF JUSTICE
Drug Enforcement Administration
