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)

[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