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)

[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