82 FR 23300 - Shakeel A. Kahn, M.D.; Decision and Order

DEPARTMENT OF JUSTICE
Drug Enforcement Administration

Federal Register Volume 82, Issue 97 (May 22, 2017)

Page Range		23300-23301
FR Document		2017-10386
Federal Register, Volume 82 Issue 97 (Monday, May 22, 2017)
[Federal Register Volume 82, Number 97 (Monday, May 22, 2017)]
[Notices]
[Pages 23300-23301]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2017-10386]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration


Shakeel A. Kahn, M.D.; Decision and Order

    On December 20, 2016, the Assistant Administrator, Division of 
Diversion Control, Drug Enforcement Administration, issued an Order to 
Show Cause to Shakeel A. Kahn, M.D. (hereinafter, Registrant), of 
Casper, Wyoming. GX 1. The Show Cause Order proposed the revocation of 
Registrant's Certificate of Registration, on the ground that he 
``do[es] not have authority to handle controlled substances in the 
State of Wyoming, the [S]tate in which [he is] registered with the 
DEA.'' Id. (citing 21 U.S.C. 823(f) and 824(a)(3)).
    As for the jurisdictional basis of the proceeding, the Show Cause 
Order alleged that Registrant is registered ``as a practitioner in 
[s]chedules II-V pursuant to'' Certificate of Registration No. 
FK5578464, at the address of ``301 South Fenway St., Suite 202, Casper, 
Wyoming.'' Id. The Order alleged that this registration expires ``on 
December 31, 2018.'' Id.
    As for the substantive ground for the proceeding, the Show Cause 
Order alleged that on November 29, 2016, Registrant's ``authority to 
prescribe and administer controlled substances in the State of Wyoming 
was suspended,'' and that he is ``without authority to handle 
controlled substances.'' Id. The Show Cause Order thus asserted that 
his registration is subject to revocation. Id. (citing 21 U.S.C. 
802(21), 823(f), and 824(a)(3)) (other citations omitted).
    The Show Cause Order also notified Registrant of his right to 
request a hearing on the allegations or to submit a written statement 
on the matters of fact and law at issue while waiving his right to a 
hearing, the procedures for electing either option, and the consequence 
of failing to elect either option. Id. at 2. Also, the Show Cause Order 
notified Registrant of his right to submit a corrective action plan. 
Id. at 2-3 (citing 21 U.S.C. 824(c)(2)(C)).
    According to the declaration of a DEA Special Agent, on December 
20, 2016, he personally served the Show Cause Order on Registrant at 
his residence. GX 5. The Government represents that the Agency ``has 
not received a request for hearing or any other reply from'' 
Registrant. Gov. Request for Final Agency Action, at 2. Based on the 
representation of the Government, I find that more than 30 days have 
now passed since the Show Cause Order was served on Registrant, and 
that Registrant has neither requested a hearing nor submitted a written 
statement while waiving his right to a hearing. I therefore find that 
Registrant has waived his right to a hearing or to submit a written 
statement. Based on the evidence submitted by the Government, I make 
the following factual findings.

Findings

    Registrant is the holder of DEA Certificate of Registration No. 
FK5578464, pursuant to which he is authorized to dispense controlled 
substances in schedules II through V as a practitioner, at the address 
of 301 S. Fenway St., Suite 202, Casper, Wyoming. GX 2. His 
registration does not expire until December 31, 2018. Id.
    Registrant is also the holder of Wyoming Physician License No. 
7633A. GX 3, at 1. However, on November 29, 2016, the Wyoming Board of 
Medicine ordered the summary suspension of Registrant's Physician 
License effective the same day, thereby suspending ``his authority and 
ability to practice medicine in the state of Wyoming'' pending ``the 
completion of a contested case hearing.'' Id. at 18. According to the 
online records of the Wyoming Board of Medicine of which I take 
official notice, Registrant's medical license remains suspended as of 
the date of this Decision and Order. See 5 U.S.C. 556(e), 21 CFR 
1316.59(e).

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

[[Page 23301]]

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 Controlled 
Substances Act (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).
    Moreover, because ``the controlling question'' in a proceeding 
brought under 21 U.S.C. 824(a)(3) is whether the holder of a DEA 
registration ``is currently authorized to handle controlled substances 
in the [S]tate,'' Hooper, 76 FR at 71371 (quoting Anne Lazar Thorn, 62 
FR 12847, 12848 (1997)), the Agency has also long held that revocation 
is warranted even where a practitioner has lost his state authority by 
virtue of the State's use of summary process and the State has yet to 
provide a hearing to challenge the suspension. Bourne Pharmacy, 72 FR 
18273, 18274 (2007); Wingfield Drugs, 52 FR 27070, 27071 (1987). Thus, 
for the purposes of the CSA, it is of no consequence that the Wyoming 
Medical Board has employed summary process in suspending Registrant's 
state license.
    As found above, on November 29, 2016, the Wyoming Board of Medicine 
ordered the summary suspension of Registrant's Physician License 
effective the same day, thereby suspending ``his authority and ability 
to practice medicine in the state of Wyoming.'' GX 3, at 18. I 
therefore find that Registrant lacks authority to dispense controlled 
substances in Wyoming, the State in which he is registered with the 
Agency and that he is not entitled to maintain his registration. See 
Hooper, 76 FR at 71371; Blanton, 43 FR 27616. Accordingly, I will order 
that his registration be revoked. 21 U.S.C. 824(a)(3).

Order

    Pursuant to the authority vested in me by 21 U.S.C. 824(a), as well 
as 28 CFR 0.100(b), I order that DEA Certificate of Registration No. 
FK5578464 issued to Shakeel A. Kahn, M.D., be, and it hereby is, 
revoked. I further order that any application of Shakeel A. Khan, M.D., 
to renew or modify this registration be, and it hereby is, denied. This 
Order is effective immediately.\1\
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    \1\ For the same reasons that led the Wyoming Board to summarily 
suspend Registrant's medical license, I find that the public 
interest necessitates that this order be effective immediately. 21 
CFR 1316.67.

    Dated: May 15, 2017.
Chuck Rosenberg,
Acting Administrator.
[FR Doc. 2017-10386 Filed 5-19-17; 8:45 am]
 BILLING CODE 4410-09-P
23300 Federal Register / Vol. 82, No. 97 / Monday, May 22, 2017 / Notices

registration. Because Registrant does not application. For this reason as well, I (citing 21 U.S.C. 802(21), 823(f), and
meet the CSA’s essential requirement will order that his registration be 824(a)(3)) (other citations omitted).
for maintaining a practitioner’s revoked. 21 U.S.C. 824(a)(1). The Show Cause Order also notified
registration, I will order that his Registrant of his right to request a
Order hearing on the allegations or to submit
registration be revoked. See 21 U.S.C.
824(a)(3), 802(21); see also id. § 823(f). Pursuant to the authority vested in me a written statement on the matters of
by 21 U.S.C. 824(a) as well as 28 CFR fact and law at issue while waiving his
The Material Falsification Allegation right to a hearing, the procedures for
0.100(b), I order that DEA Certificate of
As found above, effective on February Registration AB7719860 issued to electing either option, and the
4, 2013, the State of New York revoked Steven Bernhard, D.O., be, and it hereby consequence of failing to elect either
Registrant’s Medical License and this is, revoked. I further order that any option. Id. at 2. Also, the Show Cause
Order was still in effect as of June 11, application of Steven Bernhard, D.O., to Order notified Registrant of his right to
2015, when Registrant submitted his renew or modify this registration, be submit a corrective action plan. Id. at 2–
application. Thus, Respondent denied. This Order is effective 3 (citing 21 U.S.C. 824(c)(2)(C)).
materially falsified his application in immediately.1 According to the declaration of a DEA
two ways. First, he falsely represented Special Agent, on December 20, 2016,
that he was ‘‘currently authorized to Dated: May 15, 2017.
he personally served the Show Cause
prescribe [or] dispense’’ controlled Chuck Rosenberg, Order on Registrant at his residence. GX
substances in New York State when he Acting Administrator. 5. The Government represents that the
listed his purported license number, [FR Doc. 2017–10363 Filed 5–19–17; 8:45 am] Agency ‘‘has not received a request for
indicated that it was issued by New BILLING CODE 4410–09–P hearing or any other reply from’’
York, and listed the license’s expiration Registrant. Gov. Request for Final
date as March 31, 2017. Second, he Agency Action, at 2. Based on the
falsely answered ‘‘N’’ for no to the DEPARTMENT OF JUSTICE representation of the Government, I find
question which asked if his state that more than 30 days have now passed
medical license had ever been revoked. Drug Enforcement Administration since the Show Cause Order was served
Each of these false statements was on Registrant, and that Registrant has
clearly material because it was capable Shakeel A. Kahn, M.D.; Decision and
Order neither requested a hearing nor
of affecting or influencing the Agency’s submitted a written statement while
decision as to whether to grant his On December 20, 2016, the Assistant waiving his right to a hearing. I
application. Kungys v. United States, Administrator, Division of Diversion therefore find that Registrant has waived
485 U.S. 759, 770 (1988) (other citation Control, Drug Enforcement his right to a hearing or to submit a
omitted); United States v. Wells, 519 Administration, issued an Order to written statement. Based on the
U.S. 482, 489 (1997) (quoting Kungys, Show Cause to Shakeel A. Kahn, M.D. evidence submitted by the Government,
485 U.S. at 770). As explained above, (hereinafter, Registrant), of Casper, I make the following factual findings.
the CSA defines the ‘‘[t]he term Wyoming. GX 1. The Show Cause Order
‘practitioner’ [to] mean[ ] a physician Findings
proposed the revocation of Registrant’s
. . . licensed, registered, or otherwise Certificate of Registration, on the ground Registrant is the holder of DEA
permitted, by . . . the jurisdiction in that he ‘‘do[es] not have authority to Certificate of Registration No.
which he practices . . . to distribute, handle controlled substances in the FK5578464, pursuant to which he is
dispense, [or] administer . . . a State of Wyoming, the [S]tate in which authorized to dispense controlled
controlled substance in the course of [he is] registered with the DEA.’’ Id. substances in schedules II through V as
professional practice,’’ 21 U.S.C. (citing 21 U.S.C. 823(f) and 824(a)(3)). a practitioner, at the address of 301 S.
802(21), and the registration provision Fenway St., Suite 202, Casper,
As for the jurisdictional basis of the
applicable to practitioners directs that Wyoming. GX 2. His registration does
proceeding, the Show Cause Order
‘‘[t]he Attorney General shall register not expire until December 31, 2018. Id.
alleged that Registrant is registered ‘‘as
practitioners . . . if the applicant is Registrant is also the holder of
a practitioner in [s]chedules II–V
authorized to dispense . . . controlled Wyoming Physician License No. 7633A.
substances under the laws of the State pursuant to’’ Certificate of Registration
No. FK5578464, at the address of ‘‘301 GX 3, at 1. However, on November 29,
in which he practices.’’ Id. § 823(f). As 2016, the Wyoming Board of Medicine
the Agency has long held, ‘‘[s]tate South Fenway St., Suite 202, Casper,
Wyoming.’’ Id. The Order alleged that ordered the summary suspension of
authorization to dispense or otherwise Registrant’s Physician License effective
handle controlled substances is a this registration expires ‘‘on December
31, 2018.’’ Id. the same day, thereby suspending ‘‘his
prerequisite to the issuance and authority and ability to practice
maintenance of a Federal controlled As for the substantive ground for the
medicine in the state of Wyoming’’
substances registration.’’ Blanton, 43 FR proceeding, the Show Cause Order
pending ‘‘the completion of a contested
at 27617. alleged that on November 29, 2016,
case hearing.’’ Id. at 18. According to
Because the possession of state Registrant’s ‘‘authority to prescribe and
the online records of the Wyoming
authority is a prerequisite to obtaining administer controlled substances in the
Board of Medicine of which I take
and maintaining a practitioner’s State of Wyoming was suspended,’’ and
official notice, Registrant’s medical
registration, Respondent’s false that he is ‘‘without authority to handle
license remains suspended as of the
representations that he currently controlled substances.’’ Id. The Show
date of this Decision and Order. See 5
mstockstill on DSK30JT082PROD with NOTICES

possessed a state license and that his Cause Order thus asserted that his
U.S.C. 556(e), 21 CFR 1316.59(e).
state license had never been revoked registration is subject to revocation. Id.
were capable of influencing the Discussion
1 Based on my finding that Respondent obtained
Agency’s decision to grant his June 11, Pursuant to 21 U.S.C. 824(a)(3), the
his registration by materially falsifying his
2015 renewal application. I therefore application, I conclude that the public interest
Attorney General is authorized to
also conclude that Respondent necessitates that this Order be effective suspend or revoke a registration issued
materially falsified his June 11, 2015 immediately. 21 CFR 1316.67. under section 823 of the Controlled

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Federal Register / Vol. 82, No. 97 / Monday, May 22, 2017 / Notices 23301

Substances Act (CSA), ‘‘upon a finding medicine in the state of Wyoming.’’ GX March 20, 2017, allowing for a 60 day
that the registrant . . . has had his State 3, at 18. I therefore find that Registrant comment period. BJS received and
license . . . suspended [or] revoked lacks authority to dispense controlled responded to one comment.
. . . by competent State authority and is substances in Wyoming, the State in DATES: Comments are encouraged and
no longer authorized by State law to which he is registered with the Agency will be accepted for 30 days until June
engage in the . . . dispensing of and that he is not entitled to maintain 21, 2017.
controlled substances.’’ Also, DEA has his registration. See Hooper, 76 FR at ADDRESSES: Questions about this notice
long held that the possession of 71371; Blanton, 43 FR 27616. should be addressed to the Bureau of
authority to dispense controlled Accordingly, I will order that his Justice Statistics, Office of Justice
substances under the laws of the State registration be revoked. 21 U.S.C. Programs, U.S. Department of Justice,
in which a practitioner engages in 824(a)(3). ATTN: Devon Adams, 810 7th Street
professional practice is a fundamental NW., Washington, D.C. 20531; email:
condition for obtaining and maintaining Order
Devon.Adams@usdoj.gov; telephone:
a practitioner’s registration. See, e.g., Pursuant to the authority vested in me 202–307–0765 (this is not a toll-free
James L. Hooper, 76 FR 71371 (2011), by 21 U.S.C. 824(a), as well as 28 CFR number).
pet. for rev. denied, 481 Fed. Appx. 826 0.100(b), I order that DEA Certificate of
FOR FURTHER INFORMATION CONTACT:
(4th Cir. 2012); see also Frederick Marsh Registration No. FK5578464 issued to
Blanton, 43 FR 27616 (1978) (‘‘State Shakeel A. Kahn, M.D., be, and it hereby Allina Lee by telephone at 202–305–
authorization to dispense or otherwise is, revoked. I further order that any 0765 (this is not a toll-free number); by
handle controlled substances is a application of Shakeel A. Khan, M.D., to email at Allina.Lee@usdoj.gov; or by
prerequisite to the issuance and mail or courier to the Bureau of Justice
renew or modify this registration be,
maintenance of a Federal controlled Statistics, Office of Justice Programs,
and it hereby is, denied. This Order is
substances registration.’’). U.S. Department of Justice, ATTN:
effective immediately.1
This rule derives from the text of two Allina Lee, 810 7th Street NW.,
Dated: May 15, 2017. Washington, D.C. 20531. Because of
provisions of the Controlled Substances
Chuck Rosenberg, delays in the receipt of regular mail
Act (CSA). First, Congress defined ‘‘the
term ‘practitioner’ [to] mean[ ] a . . . Acting Administrator. related to security screening,
physician . . . or other person licensed, [FR Doc. 2017–10386 Filed 5–19–17; 8:45 am] respondents are encouraged to use
registered or otherwise permitted, by BILLING CODE 4410–09–P electronic communications.
. . . the jurisdiction in which he SUPPLEMENTARY INFORMATION:
practices . . . to distribute, dispense, I. Abstract
[or] administer . . . a controlled DEPARTMENT OF JUSTICE
substance in the course of professional Federal statistics provide key
[OMB Number 1121–NEW]
practice.’’ 21 U.S.C. 802(21). Second, in information that the Nation uses to
setting the requirements for obtaining a Agency Information Collection measure its performance and make
practitioner’s registration, Congress Activities; Request for Comments; informed choices about budgets,
directed that ‘‘[t]he Attorney General Revision of the BJS Confidentiality employment, health, investments, taxes,
shall register practitioners . . . if the Pledge and a host of other significant topics.
applicant is authorized to dispense . . . Most federal surveys are completed on
controlled substances under the laws of AGENCY: Bureau of Justice Statistics, a voluntary basis. Respondents, ranging
the State in which he practices.’’ 21 U.S. Department of Justice. from businesses to households to
U.S.C. 823(f). ACTION: Notice. institutions, may choose whether or not
Moreover, because ‘‘the controlling to provide the requested information.
question’’ in a proceeding brought SUMMARY: The Bureau of Justice Many of the most valuable federal
under 21 U.S.C. 824(a)(3) is whether the Statistics (BJS), a component of the statistics come from surveys that ask for
holder of a DEA registration ‘‘is Office of Justice Programs (OJP) in the highly sensitive information such as
currently authorized to handle U.S. Department of Justice (DOJ), is proprietary business data from
controlled substances in the [S]tate,’’ seeking comments on revisions to the companies or particularly personal
Hooper, 76 FR at 71371 (quoting Anne confidentiality pledge it provides to its information or practices from
Lazar Thorn, 62 FR 12847, 12848 respondents. These revisions are individuals. BJS protects all personally
(1997)), the Agency has also long held required by the passage and identifiable information collected under
that revocation is warranted even where implementation of provisions of the its authority under the confidentiality
a practitioner has lost his state authority federal Cybersecurity Enhancement Act provisions of 42 U.S.C. § 3789g. Strong
by virtue of the State’s use of summary of 2015, which requires the Secretary of and trusted confidentiality and
process and the State has yet to provide the Department of Homeland Security exclusively statistical use pledges under
a hearing to challenge the suspension. (DHS) to provide Federal civilian Title 42 U.S.C. § 3789g and similar
Bourne Pharmacy, 72 FR 18273, 18274 agencies’ information technology statutes are effective and necessary in
(2007); Wingfield Drugs, 52 FR 27070, systems with cybersecurity protection honoring the trust that businesses,
27071 (1987). Thus, for the purposes of for their Internet traffic. More details on individuals, and institutions, by their
the CSA, it is of no consequence that the this announcement are presented in the responses, place in statistical agencies.
Wyoming Medical Board has employed SUPPLEMENTARY INFORMATION section Under statistical confidentiality
summary process in suspending below. The revisions to the protection statutes, federal statistical
mstockstill on DSK30JT082PROD with NOTICES

Registrant’s state license. confidentiality pledge were previously agencies make statutory pledges that the
As found above, on November 29, published in the Federal Register on information respondents provide will be
2016, the Wyoming Board of Medicine seen only by statistical agency
1 For the same reasons that led the Wyoming
ordered the summary suspension of personnel or their agents and will be
Board to summarily suspend Registrant’s medical
Registrant’s Physician License effective license, I find that the public interest necessitates
used only for statistical purposes. These
the same day, thereby suspending ‘‘his that this order be effective immediately. 21 CFR statutes protect such statistical
authority and ability to practice 1316.67. information from administrative, law

VerDate Sep<11>2014 23:17 May 19, 2017 Jkt 241001 PO 00000 Frm 00132 Fmt 4703 Sfmt 4703 E:\FR\FM\22MYN1.SGM 22MYN1
Document Created: 2018-11-08 08:51:01
Document Modified: 2018-11-08 08:51:01
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		82 FR 23300
82 FR 23300 - Shakeel A. Kahn, M.D.; Decision and Order

DEPARTMENT OF JUSTICEDrug Enforcement Administration

Federal Register Volume 82, Issue 97 (May 22, 2017)

DEPARTMENT OF JUSTICE
Drug Enforcement Administration
