82 FR 31070 - Phong Tran, M.D.; Decision and Order
DEPARTMENT OF JUSTICE
Drug Enforcement Administration Federal Register Volume 82, Issue 127 (July 5, 2017)
Drug Enforcement Administration
Federal Register Volume 82, Issue 127 (July 5, 2017)
| Page Range | 31070-31075 | |
| FR Document | 2017-14070 |
[Federal Register Volume 82, Number 127 (Wednesday, July 5, 2017)] [Notices] [Pages 31070-31075] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2017-14070] ----------------------------------------------------------------------- DEPARTMENT OF JUSTICE Drug Enforcement Administration [Docket No. 16-31] Phong Tran, M.D.; Decision and Order On June 29, 2016, the Deputy Assistant Administrator, Office of Diversion Control, Drug Enforcement Administration (hereinafter, DEA or Government), issued an Order to Show Cause to Phong Tran, M.D. (hereinafter, Respondent), the holder of 19 Certificates of Registration.\1\ Order to Show Cause, at 1-3. Citing 21 U.S.C. 823(f) and 824(a)(3), the Show Cause Order proposed the revocation of Respondent's 19 Certificates of Registration on the ground that Respondent does not have authority to dispense controlled substances in the State of California, the State in which he is registered. Id. at 4. --------------------------------------------------------------------------- \1\ The 19 Certificates of Registration referenced in the Order to Show Cause are: FT4325242 in Vista, California (expiration date: November 30, 2016); FT4123422 in Garden Grove, California (expiration date: November 30, 2016); FT4086888 in Chula Vista, California (expiration date: November 30, 2016); FT4086876 in Escondido, California (expiration date: November 30, 2016); FT4086698 in San Diego, California (expiration date: November 30, 2016); FT4086686 in San Bernardino, California (expiration date: November 30, 2016); FP4086864 in Long Beach, California (expiration date: November 30, 2016); FT4046707 in Van Nuys, California (expiration date: November 30, 2018); FT3965540 in Anaheim, California (expiration date: November 30, 2018); FT4046543 in Temecula, California (expiration date: November 30, 2018); BT3239945 in Westminster, California (expiration date: November 30, 2018); FT4083111 in Downey, California (expiration date: November 30, 2016); FT4932097 in Rialto, California (expiration date: November 30, 2017); FT4946957 in Indio, California (expiration date: November 30, 2017); FT4946971 in Palmdale, California (expiration date: November 30, 2017); FT4963117 in Pasadena, California (expiration date: November 30, 2017); FT4963129 in Pomona, California (expiration date: November 30, 2017); FT4963131 in Hemet, California (expiration date: November 30, 2017); and FT3933593 in San Bernardino, California (expiration date: November 30, 2018). Order to Show Cause, at 1-3. --------------------------------------------------------------------------- As the jurisdictional basis for the proceeding, the Show Cause Order alleged that each of Respondent's 19 Certificates of Registration ``are current and unexpired.'' Order to Show Cause, at 4. Respondent's registrations authorize him to dispense controlled substances in Schedules II through V. Government's Motion for Summary Disposition, Attachment 1, at 5-23. As the substantive grounds for the proceeding, the Show Cause Order alleged that on or about December 9, 2015, Respondent was criminally charged in the County of San Diego Superior Court (hereinafter, Superior Court) with 45 counts related to unlawful billing under the California Workers' Compensation System and that the charges were pending resolution. Id. at 4. The Show Cause Order further alleged that, in response to the criminal charges, the Medical Board of California (hereinafter, MBC) petitioned the Superior Court for an order suspending Respondent's medical license during the pendency of the criminal proceedings. Id. The Show Cause Order alleged that, on May 13, 2016, the Superior Court issued an Order granting the MBC's petition ``and thereby . . . indefinitely suspended . . . [Respondent's] California medical license effective June 3, 2016.'' Id. The Order to Show Cause alleged that Respondent's medical license remained suspended and, ``therefore, DEA must revoke . . . [Respondent's] DEA . . . [registrations] based upon . . . [his] lack of authority to handle controlled substances in the State of California.'' Id. (citing 21 U.S.C. 802(21), 823(f)(1), and 824(a)(3)). The Show Cause Order 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 consequences for failing to elect either option. Id. at 4-5 (citing 21 CFR 1301.43). It also notified Respondent of his right to submit a corrective action plan. Id. at 5 (citing 21 U.S.C. 824(c)(2)(C)). By letter dated August 25, 2016, Respondent requested a hearing stating that ``Dr. Tran's medical license is still active and valid, and not suspended as alleged.'' Hearing Request (August 25, 2016), at 1. On August 29, 2016, Chief Administrative Law Judge John J. Mulrooney, II (hereinafter, CALJ) issued an order setting September 9, 2016 as the date for the Government to submit evidence supporting the lack of state authority allegation and for any party's motion for summary disposition to be due. Order Directing the Filing of Proof of Service, Evidence of Lack of State Authority Allegation, and Briefing Schedule, at 2.\2\ --------------------------------------------------------------------------- \2\ The Order also set the date and time for the Government to furnish proof of when it served the Order to Show Cause on Respondent. Id. at 1. --------------------------------------------------------------------------- On September 9, 2016, the Government filed its proof of service evidence and Motion for Summary Disposition. Government's Proof of Service Evidence and Motion for Summary Disposition (hereinafter, Government's Motion). The Government's Motion argued that Respondent was ``without state authorization to handle controlled substances in California, and as [sic] result, is not entitled to maintain his DEA Certificates of Registration.'' Id. at 1. As support for its Motion, the Government provided a sworn Certification by the Chief of DEA's Registration and Program Support Section concerning each of Respondent's DEA registrations in California. Government's Motion, at Attachment 1 (Certification of Registration History dated June 29, 2016). The Certification attached a copy of each of Respondent's DEA registrations. Id. at 5-23. The Government also provided the MBC's Notice ``to recommend that the [Superior] Court issue an Order prohibiting . . . Phong Hung Tran, M.D. . . . from practicing or attempting to practice medicine as a physician in the State of California, as a condition of any bail or own recognizance release, during the pendency of . . . criminal proceedings.'' Government's Motion, at Attachment 2 (Notice of PC23 Appearance and Recommendation at PC1275 Bail Hearing dated April 12, 2016) (hereinafter, MBC Notice), at 2. The Government's Motion also attached the MBC's brief in support of the MBC Notice. Government's Motion, at Attachment 3 (Memorandum in Support of Penal Code Section 23 Appearance [[Page 31071]] and Recommendation to the Court dated April 12, 2016) (hereinafter, MBC Memorandum). Attached to the Government's Motion were two Orders of the Superior Court. The first Order concerned Respondent's Condition of Bail Release and the second denied reconsideration of the first Order. Government's Motion, Attachment 4 (Conditions of Bail Order dated May 13, 2016) (hereinafter, Conditions of Bail Order) and Government's Motion, Attachment 5, (Denial of Reconsideration of Conditions of Bail Order dated August 17, 2016). Also attached to the Government's Motion were a ``Public Document List'' and ``Notification of Court Order'' concerning Respondent's license from the California Department of Consumer Affairs. Government's Motion, Attachment 6. The September 8, 2016 Declaration of a DEA Diversion Investigator from the San Diego Field Division, also attached to the Government's Motion, described the status of Respondent's license as ``indefinitely suspended'' by the Superior Court. Government's Motion, Attachment 8 (Declaration of Drug Enforcement Administration Diversion Investigator, dated September 8, 2016) (hereinafter DI Declaration), at 2.\3\ --------------------------------------------------------------------------- \3\ The seventh attachment to the Government's Motion was a Declaration of a DEA Diversion Investigator from the Los Angeles Field Division concerning service of the Show Cause Order on Respondent. --------------------------------------------------------------------------- As further support for the Government's Motion, the Government provided the Declaration of a California Deputy Attorney General who represented the MBC. Government's Motion, Attachment 9 (hereinafter, MBC Attorney Declaration).\4\ The MBC Attorney Declaration's heading, ``United States Department of Justice Drug Enforcement Administration,'' and docket number, ``16-31,'' suggested that it was created specifically for this proceeding. Id. at 1. --------------------------------------------------------------------------- \4\ The MBC Attorney Declaration referenced five attachments. None, however, was provided. --------------------------------------------------------------------------- The last attachment to the Government's Motion was Respondent's request for a hearing. Government's Motion, Attachment 10 (Hearing Request dated August 25, 2016). Attached to the Hearing Request was a two-page printout from the California Department of Consumer Affairs (``https://www.breEZe.ca.gov'') titled ``License Details'' and dated August 25, 2016 (hereinafter, BreEZe License Details). The printout showed Respondent's license status as ``License Renewed & Current'' and secondary status as ``Limits On Practice.'' The document did not, however, state what limits were imposed on Respondent's practice. On September 27, 2016, Respondent filed his opposition to the Government's Motion (hereinafter, Respondent's Opposition). Attached to Respondent's Opposition were the transcripts of two Superior Court hearings. Respondent's Opposition, Exhibits 11 and 12 (Reporter's Transcript of Proceedings for the April 8, 2016 and May 13, 2016 hearings) (hereinafter, April Transcript and May Transcript, respectively).\5\ --------------------------------------------------------------------------- \5\ The cover sheet for the May Transcript mistakenly attributed its contents to the hearing on April 8, 2016. The first page of the May transcript, however, noted the actual May date of the transcribed proceedings. --------------------------------------------------------------------------- Respondent stated that the MBC had not suspended his medical license. He asserted that, ``The limitation on his practice arises from a Court Order issued by Judge Eyherabide on May 13, 2016, prohibiting respondent from practicing medicine during the pendency of his criminal matter as a condition of his bail.'' Respondent's Opposition, at 1. By Order dated October 4, 2016, the CALJ denied the Government's Motion. Order Denying the Government's Motion for Summary Disposition (hereinafter, Order Denying Government's Motion). The Order stated that ``the . . . [Superior Court] clearly imposed the prohibition on practice as a condition of bail release--not as a suspension or restriction on the Respondent's professional license itself.'' Order Denying Government's Motion, at 5. The Order cited ``[v]erification information available on the California Department of Consumer Affairs BreEZe Web site'' as providing ``further support for the proposition that the Superior Court's proscription against practicing medicine did not change . . . [Respondent's] medical licensure status.'' Id. at 5-6 (footnote omitted). The Order concluded that, ``Respondent (albeit at the peril of his release conditions) maintains the state authority requisite to retain his DEA . . . [registrations]'' and ``the Government has not met its burden to prove that the Respondent lacks state authority to handle controlled substances in California, the sole basis for its Motion.'' Id. at 8. Thus, it denied the Government's Motion for Summary Disposition noting that ``the Respondent has (inexplicably) not filed a motion for summary disposition.'' Id. at 8 n.20.\6\ --------------------------------------------------------------------------- \6\ The CALJ also granted leave to the Government, ``to the extent it is inclined to do so,'' to file and serve on Respondent a superseding Order to Show Cause no later than October 14, 2016 ``to allow the Government to pursue administrative enforcement in these proceedings.'' Id. at 8 n.21 (emphasis in original). By its filing dated October 14, 2016, the Government stated that it was not issuing a superseding Order to Show Cause concerning Respondent. Government's Notice Regarding the Filing of Superseding Order to Show Cause, at 1. --------------------------------------------------------------------------- On October 17, 2016, the CALJ conducted a status conference by telephone with the Government and counsel for Respondent. Order Granting Respondent's Request for a Continuance, at 1. During the status conference, counsel for Respondent sought, and was granted with the consent of the Government, a continuance until the afternoon of October 20, 2016 to file a motion for summary disposition. Id. at 1. By motion dated October 17, 2016, Respondent requested dismissal of the Order to Show Cause. Respondent's Motion for Summary Disposition (hereinafter, Respondent's Motion), at 1. Attached to the Respondent's Motion were the April and May Superior Court hearing transcripts, an updated but substantively identical version of the BreEZe License Details, and ``License Details--Public Record Actions--Court Order'' from the California Department of Consumer Affairs concerning Respondent's license (hereinafter, BreEZe License Details--Court Order). The ``Description of Action'' section of the BreEZe License Details--Court Order stated that the ``Superior Court of California, County of San Diego, issued an Order . . . . Dr. Tran shall not practice medicine during the pendancy [sic] of this case beginning 06/ 03/16.'' In further support of his Motion, Respondent stated that, ``The Superior Court of California's Order of May 13, 2016 prohibited Respondent from practicing medicine as a condition of bail release pursuant to Penal Code Sec. 1275, and not as a suspension or restriction on his professional medical license.'' Respondent's Motion, at 1. Respondent's Motion also stated that ``Respondent's professional medical license itself is currently active and is not restricted by the Court's Order,'' and alleged that his medical license ``entitles him to handle controlled substances in California.'' Id. The Government opposed the Respondent's Motion. Government's Response to Respondent's Motion dated October 27, 2016 (hereinafter, Government's Opposition). In its Opposition, the Government admitted that ``Respondent currently retains his state authority to practice medicine.'' Id. at 2. Referencing the second prong of 21 U.S.C. 824(a)(3), the Government posited that ``DEA is authorized to revoke a DEA . . . [registration] even `. . . where suspension or revocation of a practitioner's state license or [[Page 31072]] registration has merely been recommended by state authority,' and that DEA is not `. . . required to await a final decision from the State before acting to revoke' '' a DEA registration. Id. at 2 (citing Joseph Giacchino, M.D., 76 FR 71,374 (2011)); see also id. at 4. The Government's Opposition further stated that ``the State of California (on behalf of the Board) not only sought to have the criminal court suspend Respondent's medical license during pendency of criminal proceedings, but by the express wording of its April 12, 2016 court filing recommended that the court take this course of action.'' \7\ Id. at 6. The Government's Opposition concluded that ``[t]he Board's recommendation of licensure suspension as a condition of bail clearly fits within the recommendation of `competent State authority' wording of section 824(a)(3).'' Id. --------------------------------------------------------------------------- \7\ The Government's Opposition did not provide the page number on which this ``express wording'' appeared. I carefully reviewed the document the Government referenced multiple times and did not locate the ``express wording.'' --------------------------------------------------------------------------- On November 7, 2016, the CALJ granted the Respondent's Motion and recommended that the Government's petition for revocation of Respondent's certificates of registration be denied. Order Granting the Respondent's Motion for Summary Disposition (hereinafter, Order Granting Respondent's Motion), at 15. In the Order Granting Respondent's Motion, the CALJ, among other things, noted the Government's acknowledgement that Respondent had state authority to practice medicine, stated that the Order to Show Cause was insufficient to notice revocation of Respondent's registrations based on the second prong of 21 U.S.C. 824(a)(3), concluded that the ``recommendation'' in the second prong of 21 U.S.C. 824(a)(3) relates only to a practitioner's DEA registration, and determined that the MBC had not recommended a ``suspension'' of Respondent's registrations. Id. at 3, 10, 12-13, and 13, respectively. On November 25, 2016, the Government filed Exceptions to the Order Granting Respondent's Motion. Government's Exceptions to Order Granting Summary Disposition Motion (hereinafter, Exceptions). In its Exceptions, the Government addressed whether the Order to Show Cause sufficiently noticed action against Respondent based on the second prong of 21 U.S.C. 824(a)(3),\8\ whether a prerequisite to invocation of the second prong of 21 U.S.C. 824(a)(3) is a recommendation concerning a ``DEA registration,'' and whether the California State Medical Board recommended that the Superior Court ``suspend'' Respondent's medical license. Id. at 1-9. --------------------------------------------------------------------------- \8\ ``. . . has had the suspension, revocation, or denial of his registration recommended by competent State authority . . .'' --------------------------------------------------------------------------- On December 2, 2016, the record was forwarded to my Office for Final Agency Action. Having considered the record and the Order Granting Respondent's Motion in light of all relevant statutory, regulatory, and case law authorities, I conclude that there is no basis for revoking Respondent's registration on the record before me.\9\ Thus, I agree with the CALJ's ultimate conclusions that Respondent continues to have the State authority required for his registrations, and that the Government has not established the predicates under 21 U.S.C. 824(a)(3) to warrant revocation of Respondent's registrations.\10\ --------------------------------------------------------------------------- \9\ It is noted, however, that the issuance of a new Order to Show Cause would be appropriate if the MBC were to suspend or revoke Respondent's state license, or if Respondent's plea to, or conviction of, criminal charges resulted in mandatory exclusion under 42 U.S.C. 1320a-7(a). Further, the issuance of a new Order to Show Cause based on 21 U.S.C. 824(a)(4) would be appropriate if properly supported by evidence, including evidence gleaned from the criminal proceedings against Respondent. \10\ This matter raises novel issues, and my analysis differs from the analysis in the Order Granting Respondent's Motion. Thus, I do not adopt the Order Granting Respondent's Motion. --------------------------------------------------------------------------- I make the following factual findings. Findings of Fact Respondent's DEA Registrations The Order to Show Cause alleged that Respondent has held 19 registrations, all with addresses in California. Order to Show Cause, at 1-3. Based on the evidence submitted by the Government, I find that at least one of Respondent's registrations, FT3933593 in San Bernardino, California (expiration date November 30, 2018), is currently active. Government's Motion, at Attachment 1, at 10. Indictment of Respondent On January 28, 2016, Respondent was criminally charged with 45 felony counts related to kickbacks, including 21 counts of workers' compensation fraud and 24 counts of insurance fraud. MBC Memorandum, at 2, 3; May Transcript, at 4-5, lines 23-2; DI Declaration, at 2. According to a State prosecutor, Respondent paid kickbacks for access to patients on a per patient basis. May Transcript, at 5, lines 12-28; at 6, lines 9-10; at 7, lines 24-26. At the May Superior Court hearing, the prosecutor represented that the individual to whom Respondent paid the kickbacks was a chiropractor working off Federal charges. Id. at 5, lines 12-20. One of Respondent's Physician's Assistants, the prosecutor further alleged, would see up to 100 patients a day, once a month, and provide the patients with prescription medications and compound creams. Id. at 6, lines 2-9. Respondent would bill the insurance companies for the visits and for the prescription medications and compound creams, according to the prosecutor. Id. at 6, lines 2-9, 16-25. The prosecutor explained that billing for compound creams was particularly lucrative because there was no limit on how much could be billed for a compound cream. Id. at 7, lines 1-20. The Evidence Offered by the Parties in Support of Their Respective Motions The Superior Court Hearing in April, 2016 On April 8, 2016, the Superior Court held a hearing at the request of the MBC. Attendees included State prosecutors and attorneys for the MBC and Respondent. According to its attorney, the MBC ``provided notice to Respondent back in February that they will be appearing at the . . . [California Penal Code] 23 to make a recommendation to provide information . . ., not to ask for suspension, but to place a condition on . . . [Respondent's] bail O.R. release.'' \11\ April Transcript, at 30, lines 21-28 (emphasis added). A prosecutor explained that the California Attorney General decided, on behalf of the MBC, that ``this is so important to public safety that they are literally putting their reputation on the line.'' Id. at 23, lines 19-22. According to the prosecutor, ``the Medical Board is basically here telling you look, we may have to go through a certain number of procedures to do this, but we are asking you, in the interim, tell this individual not to practice medicine.'' \12\ Id. at 23, lines 22-26; see also id. at 30, lines 16-18 (Respondent's counsel stating that ``the [[Page 31073]] Medical Board has never once independently tried to suspend . . . [Respondent's] license.''). --------------------------------------------------------------------------- \11\ The MBC's February Notice to Respondent was not put in the record of this proceeding. California Penal Code 23 states, in pertinent part, ``In any criminal proceeding against a person who has been issued a license to engage in a business or profession by a state agency pursuant to provisions of the Business and Professions Code . . ., the state agency which issued the license may voluntarily appear to furnish pertinent information, make recommendations regarding specific conditions of probation, or provide any other assistance necessary to promote the interests of justice and protect the interests of the public, or may be ordered by the court to do so, if the crime charged is substantially related to the qualifications, functions, or duties of a licensee.'' ``O.R. release'' refers to a bail release on one's own recognizance. \12\ The prosecutor did not elaborate on what he meant by to do ``this.'' --------------------------------------------------------------------------- The Superior Court began the April 8, 2016 hearing by stating that ``apparently there is a motion to continue.'' Id. at 1, lines 22-23. One of Respondent's attorneys acknowledged the motion ``due to the unavailability of . . . a witness allowed him to confront.'' Id. at 1, lines 24-26. As the hearing proceeded, Respondent's counsel argued that his client was entitled to due process because placing a no-medical- practice bail condition on Respondent's medical license was tantamount to placing it under interim suspension. He stated that he brought a ``motion'' because ``basically we are talking about an interim suspension, it's another way of saying . . . a restriction on someone's license, and . . . that . . . requires that the evidence . . . be shown through affidavit . . . that the . . . licensee [ ] have . . . an effective right to confront those evidence.'' \13\ Id. at 4-5, lines 28-14. --------------------------------------------------------------------------- \13\ The motion Respondent's counsel referenced was not put in the record of this proceeding. --------------------------------------------------------------------------- The Superior Court stated that a co-defendant of Respondent had previously raised the issue of ``whether or not this court should or has the power to actually suspend'' a doctor's medical license. Id. at 2, lines 7-8. The Court indicated the response it had given to the co- defendant: I am not the Medical Board. I am not an attorney licensing board, I am not a real estate licensing board. The way I have framed this, frankly, is whether or not as a condition, . . . if somebody has a fourth DUI, and is asking for their own recognizance, as a part of bail there are conditions, one, they can't drive . . . if they make bail or are released. Id. at 2, lines 16-25. At the hearing, the Superior Court consistently indicated that ``the real issue here [ ] is whether or not, as a condition of Dr. Tran's O.R. release, . . . he should be practicing medicine, not that I would be suspending a license. I don't have any power to suspend a license.'' Id. at 3, lines 4-8. Stating that ``[t]here is no right to confront . . . for the Court considering safety purposes,'' the Superior Court rejected the due process arguments of Respondent's counsel and invited them to appeal her ruling. Id. at 12, lines 2-4; see also id. at 7, lines 21-24; id. at 11, lines 24-25. Throughout the April hearing, the Superior Court continuously and consistently stated that she was not able to suspend a license, whether the license in question was a truck driver's license, a license to practice law, or a medical license. Id. at 3, lines 22-23; at 4, lines 22-23; at 6, lines 12-15; at 9, lines 7-8. The Superior Court explained the extent of her authority with an analogy to a person put on probation. She stated, ``as a condition of probation, the Court can impose, you can't practice accounting, you can't drive a truck, you can't practice medicine . . . [and if] the person doesn't wish to accept it, they go to prison.'' Id. at 9, lines 10-14. She provided another example: [E]ven if I was placing a person on probation, a lawyer, who committed fraud, I can't say and a condition of probation is I am taking away your license. I don't have a power to take away a license. The State Bar only has the power to take away a license. I can say as a condition of probation, you are not to practice law. He can still pay his Bar dues. It means when he's done with probation in two years, he's still a practicing attorney. Id. at 9, lines 15-23. The Superior Court reiterated that she was not able to ``yank'' a person's license and ``[w]hether it's as a condition of bail, or probation, it's a condition one can accept or not accept.'' Id. at 9, lines 24-26. In the criminal case against Respondent, according to the Superior Court, she was able to place a no-medical-practice condition on Respondent's own recognizance release and she continued the hearing to May 13, 2016 for the purpose of determining whether to do so. Id. at 29, lines 8-25; see also id. at 10, lines 9-12. Some statements at the April hearing suggested that the MBC had filed a pre-hearing statement recommending the suspension of Respondent's medical license. The Superior Court had stated, ``Through the Attorney General's office, they \14\ have requested, pursuant to Penal Code Section 23, to bring me the information . . . and in the moving papers everybody talks about whether or not this Court should or has the power to actually suspend Dr. Tran's license.'' Id. at 2, lines 3-8; see also id. at 21, lines 21-27 (A prosecutor stating that ``[c]ommonly these questions are initiated by a request by the Attorney General, a recommendation as it's termed, . . . to take some action on a person's license. Just to be clear, . . . we are not joining in the request that any action be taken on the defendant's license.''); May Transcript, at 2, lines 11-14 (Superior Court noting that ``[t]here are numerous briefs here from the People'' and Respondent's counsel suggesting that, ``That's probably from the prior set of P[enal] C[ode] 23 brief [sic].''). --------------------------------------------------------------------------- \14\ The reference to ``they'' is not specified. --------------------------------------------------------------------------- Other statements tended to oppose that possibility. April Transcript, at 19-20, lines 26-3 (Superior Court stating that, under Penal Code section 23, the State agency that issued a license to a criminal defendant may voluntarily appear to ``furnish pertinent information, make recommendation [sic], regarding specific conditions of probation''); id. at 30, lines 21-28 (MBC provided notice to Respondent of its appearance ``to make a recommendation to provide information . . . not to ask for suspension, but to place a condition on his bail O.R. release.''). If there were any written submission by the MBC or a party in connection with the April Superior Court hearing recommending the suspension of Respondent's medical license or registration, it is not in the record before me. Thus, based on the evidence in the April Transcript, I conclude that the Superior Court did not suspend or revoke Respondent's California medical license at the Superior Court April hearing, and that the suspension, revocation, or denial of Respondent's medical license or registration was not recommended by competent California State authority in connection with the Superior Court April hearing. The Medical Board of California Notice and Memorandum In advance of the May Superior Court hearing, the MBC filed the MBC Notice and the MBC Memorandum. Supra. The MBC Notice stated, in pertinent part, that the MBC will appear before the Superior Court ``to recommend that the Court issue an Order prohibiting . . . [Respondent] from practicing or attempting to practice medicine as a physician in the State of California, as a condition of any bail or own recognizance release, during the pendency of . . . [the] criminal proceedings.'' MBC Notice, at 2. The MBC Notice explained the grounds for its recommendation, stating that ``if allowed to continue to practice medicine as a physician, . . . [Respondent] poses a continuing danger to the public health, safety, and welfare.'' Id. It referenced the Superior Court's statutory authority to consider public protection when imposing bail and own recognizance release conditions. Id. The MBC Notice did not state that the MBC was recommending the suspension, revocation, or denial of Respondent's medical license or registration. The MBC Memorandum made multiple points. First, it reiterated the [[Page 31074]] MBC's recommendation to, and request of, the Superior Court that Respondent, ``as a condition of any bail or own recognizance release, . . . be prohibited from practicing medicine until resolution of the . . . criminal proceedings.'' MBC Memorandum, at 2; see also id. at 4, 8. Second, it stated that Respondent held a valid physician's license that ``will expire on January 31, 2018, unless renewed.'' Id. at 2. The MBC Memorandum further explained that Respondent's physician's license enabled Respondent ``to provide medical services including issuing prescriptions for controlled substances to patients and conducting serious surgeries.'' Id. Third, the MBC Memorandum stated that the MBC was responsible for enforcing the disciplinary and criminal provisions of the California Medical Practice Act, and that protecting the public was its highest priority in exercising its licensing, regulatory, and disciplinary functions. Id. at 3. It explained that it had the ``power to suspend, revoke, or otherwise limit physicians and surgeons from practicing medicine for, among other things, unprofessional conduct and criminal convictions substantially related to the qualifications, functions, or duties of a physician and surgeon.'' Id. Fourth, the MBC Memorandum cited California Penal Code Sec. 23, supra, as authority for the MBC to appear in a criminal proceeding against a person to whom the MBC had issued a license to ``furnish pertinent information, make recommendations regarding specific conditions of probation, or provide any other assistance necessary to promote the interests of justice and protect the interest of the public.'' Id. at 4. It also cited California law to support the reasonableness of a bail condition prohibiting Respondent from practicing medicine during the pendency of the criminal case.\15\ MBC Memorandum, at 5-8. --------------------------------------------------------------------------- \15\ The MBC Memorandum cited Penal Code Sec. 1275 (the public safety is the primary consideration for judges in setting, reducing, or denying bail) and California Penal Code Sec. 1318 (interpreted to require defendants released on their own recognizance to promise to obey all reasonable conditions related to public safety). --------------------------------------------------------------------------- Fifth, the MBC Memorandum stated that, ``The felony charges in this case are extremely serious and are substantially related to the qualifications, functions, and duties of a physician and surgeon.'' Id. at 6; see also id. at 8. It stated that Respondent's alleged conduct ``is not only unprofessional, but also dangerous, and evinces poor character, a lack of integrity and an inability or unwillingness to follow the law.'' Id. Nowhere in the MBC Notice or the MBC Memorandum did the MBC recommend the suspension, revocation, or denial of Respondent's medical license or registration. The Superior Court Hearing in May, 2016 On May 13, 2016, the Superior Court resumed the hearing it began in April. The May Transcript contained more information about the criminal charges against Respondent and the MBC's request of the Superior Court. The prosecutor stated that Respondent was indicted for giving kickbacks for access to patients and filing fraud-based insurance claims based on those kickbacks. May Transcript, at 4-7, 11-12. The attorney representing the MBC stated that, ``[i]n setting[,] reducing[,] and denying bail, . . . [t]he public safety shall be the primary consideration.'' Id. at 13, lines 22-28. He argued: When patients are sold for money, . . . [Respondent is] going after patients, patients aren't coming after him, to seek medical help. He's seeking patients to make money. When patients are sold as commodities, does that pose a risk . . . to the public? Patient care? And when their patient's safety is at risk, is that a risk of the public safety? Well of course it is, Your Honor. Id. at 14, lines 6-12. The MBC attorney asserted that ``[t]his was one of the largest insurance and worker's compensation fraud cases in the history of this county . . . , a sophisticated large scale criminal enterprise.'' Id. at 14, lines 24-28. He summarized what the MBC sought from the Superior Court when he stated, ``We ask the Court, as a condition of bail, to prohibit . . . [Respondent] from practicing medicine during the pendency of this case.'' Id. at 15, lines 22-24. The Superior Court ruled that ``until the case is resolved, . . . [Respondent] not be allowed to practice medicine. . . . So that will be a condition of his continued bail.'' Id. at 20, lines 11-14. On August 17, 2016, the Court denied Respondent's request for reconsideration of this ruling. Government's Motion, Attachment 5, supra. Thus, the Superior Court, at its May hearing, conditioned Respondent's own-recognizance bail release on his not practicing medicine. At the May hearing, the Superior Court did not suspend or revoke Respondent's California medical license, and no competent California State authority recommended the suspension, revocation, or denial of Respondent's medical license or registration. The MBC Attorney Declaration The MBC Attorney Declaration contained five numbered paragraphs. The first paragraph stated that its declarant worked in the California Attorney General's Health Quality Enforcement Unit. MBC Attorney Declaration, at 1. Its second paragraph stated that Respondent was charged with 45 counts of felony crimes related to workers' compensation and insurance fraud. Id. Its third paragraph stated that, in April of 2016, the MBC attorney declarant ``voluntarily appeared'' on behalf of the MBC and recommended that the Superior Court issue an order, as a condition of bail, prohibiting Respondent from practicing medicine during the pendency of the criminal proceedings. Id. The fourth paragraph stated that the Superior Court, ``as a condition of bail, . . . issued an order prohibiting Dr. Tran from practicing medicine, effective June 3, 2016, during pendency of above criminal proceedings.'' Id. at 2. The last paragraph stated that the Superior Court denied Respondent's request for modification and/or removal of the bail condition. Id. While the MBC Attorney Declaration stated that it was sworn under penalty of perjury, neither the day of its execution in September, 2016 nor the signature on it was visible. For these reasons, I cannot give any credit to the MBC Attorney Declaration.\16\ --------------------------------------------------------------------------- \16\ Even if the date and signature on it were visible, the MBC Attorney Declaration contained no evidence tending to show that competent California State authority recommended the suspension, revocation, or denial of Respondent's medical license or registration. --------------------------------------------------------------------------- The Status of Respondent's California Medical License According to the evidence in the record, Respondent and the Government eventually agreed that Respondent's California medical license was current.\17\ Respondent's Motion, at 1 (``Respondent's professional medical license itself is currently active . . . .''); Government's Opposition, at 2 (``[T]his tribunal, as well as the Respondent in his pending summary disposition motion, have correctly pointed out that Respondent currently retains his state authority to practice medicine.''); see also id. at 5. Thus, there ended up being no dispute that Respondent's California medical license was current. As of the date of this Decision and Order, Respondent's California medical license [[Page 31075]] is current; it has not been suspended or revoked.\18\ --------------------------------------------------------------------------- \17\ California medical license number 74233. \18\ According to the Web site https://www.breEZe.ca.gov, Respondent's medical license has practice limits due to the Superior Court's imposition of an ``own recognizance'' bail condition. --------------------------------------------------------------------------- Discussion \19\ --------------------------------------------------------------------------- \19\ I need not address, and therefore decline to address, much of the content of the Recommended Decision, including most of the matters with which the Government took exception: Whether the Government sufficiently noticed action against Respondent based on the second prong of 21 U.S.C. 824(a)(3) and whether a prerequisite for invocation of the second prong of 21 U.S.C. 824(a)(3) is a recommendation concerning a ``DEA registration.'' I need not reach either of these matters because I find that the Government has not established that there was a suspension, revocation, or denial recommendation by competent State authority. --------------------------------------------------------------------------- Under Section 304 of the Controlled Substances Act (hereinafter, CSA), ``[a] registration . . . to . . . dispense a controlled substance . . . may be . . . revoked by the Attorney General upon a finding that the registrant . . . has had his State license or registration suspended, revoked, or denied by competent State authority and is no longer authorized by State law to engage in the . . . dispensing of controlled substances . . . or has had the suspension, revocation, or denial of his registration recommended by competent State authority . . . .'' 21 U.S.C. 824(a)(3). Moreover, 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 registration. This rule derives from the text of two provisions of the CSA. First, Congress defined ``practitioner'' to mean ``a physician . . . or other person licensed, registered, or otherwise permitted . . . by the . . . jurisdiction in which he practices . . . to distribute, dispense, . . . [or] administer . . . a controlled substance in the course of professional practice . . . .'' 21 U.S.C. 802(21). Second, in setting the requirements for obtaining a practitioner's registration, Congress directed that ``[t]he Attorney General shall register practitioners . . . if the applicant is authorized to dispense . . . controlled substances under the laws of the State in which he practices.'' 21 U.S.C. 823(f). Because Congress has clearly mandated that a practitioner possess state authority in order to be deemed a practitioner under the CSA, DEA has held repeatedly that revocation of a practitioner's registration is the appropriate sanction whenever a practitioner is no longer authorized to dispense controlled substances under the laws of the State in which he practices medicine. Frederick Marsh Blanton, 43 FR 27,616 (1978) (``State authorization to dispense or otherwise handle controlled substances is a prerequisite to the issuance and maintenance of a Federal controlled substances registration.''). See also James L. Hooper, 76 FR 71,371 (2011) (collecting cases), pet. for rev. denied, 481 Fed. Appx. 826 (4th Cir. 2012). Registrant's California Medical License Has Not Been Suspended or Revoked In this case, the Government and Respondent eventually agreed that Respondent's California medical license was neither suspended nor revoked. Respondent's Motion, 1 (``Respondent's professional medical license itself is currently active . . . .''); Government's Opposition, 2 (``[T]his tribunal, as well as the Respondent in his pending summary disposition motion, have correctly pointed out that Respondent currently retains his state authority to practice medicine.''); see also Government's Opposition, 5. Thus, there was no dispute between the parties concerning the status of Respondent's California medical license. I, therefore, conclude that the first prong of 21 U.S.C. 824(a)(3) does not support revocation of any of Registrant's registrations. Competent State Authority Suspension or Revocation Recommendation The Government's Opposition argues that revocation of Respondent's registrations is appropriate under the second prong of 21 U.S.C. 824(a)(3). However, the Government cites no case interpreting that provision. Given the clear factual record before me, there is no need to opine on it, including on the requisite ``recommendation'' and whether ``registration'' refers to a State license/controlled substance registration or a DEA registration. In other words, the record simply contains no evidence that a ``competent State authority'' ``recommended'' the ``suspension, revocation, or denial'' of any ``registration.'' Supra. Having thoroughly examined all of the evidence in the record, including the evidence from the MBC, the Superior Court, and every attorney representing California, I found evidence only that the MBC recommended a no-medical-practice condition on Respondent's own recognizance bail release. While the record hints at the possibility that the MBC made a suspension or revocation recommendation, the record contains no evidence of such a recommendation. The evidence in the record is clear that the Superior Court did not believe she had authority to suspend or revoke a license of any sort, let alone a DEA registration, and that she did not intend her orders to do so. The evidence in the record is equally clear that neither the Superior Court, the prosecutor, nor the MBC attorney recommended any suspension, revocation, or denial of any registration. Finally, the Government did not cite any decision holding that a no-medical-practice bail condition constitutes a recommendation of suspension, revocation, or denial. In sum, viewing the evidence in the record in the light most favorable to the Government, the non-moving party, I find no evidence, let alone substantial evidence, that the factual predicates for applying either prong of 21 U.S.C. 824(a)(3) have been established.\20\ Thus, in this case, the record does not support revocation of Respondent's registrations under either the first or second prong of 21 U.S.C. 824(a)(3). --------------------------------------------------------------------------- \20\ Although the Government cited 21 U.S.C. 823(f) and 21 U.S.C. 823(f)(1) in the Order to Show Cause, it did not squarely present, let alone develop, the theory that Respondent's registrations should be revoked based on 21 U.S.C. 823(f)(1) in conjunction with 21 U.S.C. 824(a)(4). Further, the cases the Government cited in the Order to Show Cause as providing ``a summary of the legal basis for this action'' did not rely on 21 U.S.C. 824(a)(4) and 823(f)(1) as legal bases. When invited by the CALJ to amend the Order to Show Cause, which included the possibility of developing a revocation theory under 21 U.S.C. 824(a)(4) and 21 U.S.C. 823(f)(1), the Government explicitly declined. Order Denying Government's Motion, at 8; Government's Notice Regarding the Filing of Superseding Order to Show Cause. As warranted with the passage of time and the garnering of relevant evidence, the Government is free to issue a new Order to Show Cause concerning Respondent's registrations based on appropriate legal authority. Supra. --------------------------------------------------------------------------- Order Pursuant to the authority vested in me by 21 U.S.C. 824(a)(3) and 28 CFR 0.100(b), I grant Respondent's Motion for Summary Disposition. I further order the dismissal of the Order to Show Cause. This order is effective August 4, 2017. Dated: June 24, 2017. Chuck Rosenberg, Acting Administrator. [FR Doc. 2017-14070 Filed 7-3-17; 8:45 am] BILLING CODE 4410-09-P
![31070 Federal Register / Vol. 82, No. 127 / Wednesday, July 5, 2017 / Notices
Animation L.L.C., Glendale, CA; Show Cause, at 1–3. Citing 21 U.S.C. plan. Id. at 5 (citing 21 U.S.C.
Microsoft Corporation, Redmond, WA; 823(f) and 824(a)(3), the Show Cause 824(c)(2)(C)).
Tongfang Global, Ltd. (Seiki), Diamond Order proposed the revocation of By letter dated August 25, 2016,
Bar, CA; and Walt Disney Pictures, Respondent’s 19 Certificates of Respondent requested a hearing stating
Burbank, CA, have been dropped as Registration on the ground that that ‘‘Dr. Tran’s medical license is still
parties to this venture. Respondent does not have authority to active and valid, and not suspended as
No other changes have been made in dispense controlled substances in the alleged.’’ Hearing Request (August 25,
either the membership or planned State of California, the State in which he 2016), at 1.
activity of the group research project. is registered. Id. at 4. On August 29, 2016, Chief
Membership in this group research As the jurisdictional basis for the Administrative Law Judge John J.
project remains open, and UHD Alliance proceeding, the Show Cause Order Mulrooney, II (hereinafter, CALJ) issued
intends to file additional written alleged that each of Respondent’s 19 an order setting September 9, 2016 as
notifications disclosing all changes in Certificates of Registration ‘‘are current the date for the Government to submit
membership. and unexpired.’’ Order to Show Cause, evidence supporting the lack of state
On June 17, 2015, UHD Alliance filed at 4. Respondent’s registrations authority allegation and for any party’s
its original notification pursuant to authorize him to dispense controlled motion for summary disposition to be
Section 6(a) of the Act. The Department substances in Schedules II through V. due. Order Directing the Filing of Proof
of Justice published a notice in the Government’s Motion for Summary of Service, Evidence of Lack of State
Federal Register pursuant to Section Disposition, Attachment 1, at 5–23. Authority Allegation, and Briefing
6(b) of the Act on July 17, 2015 (80 FR As the substantive grounds for the Schedule, at 2.2
42537). On September 9, 2016, the
proceeding, the Show Cause Order
The last notification was filed with Government filed its proof of service
alleged that on or about December 9,
the Department on March 9, 2017. A evidence and Motion for Summary
2015, Respondent was criminally
notice was published in the Federal Disposition. Government’s Proof of
charged in the County of San Diego
Register pursuant to Section 6(b) of the Service Evidence and Motion for
Superior Court (hereinafter, Superior
Act on April 10, 2017 (82 FR 17280). Summary Disposition (hereinafter,
Court) with 45 counts related to
Government’s Motion). The
Patricia A. Brink, unlawful billing under the California
Government’s Motion argued that
Director of Civil Enforcement, Antitrust Workers’ Compensation System and that
Respondent was ‘‘without state
Division. the charges were pending resolution. Id.
authorization to handle controlled
[FR Doc. 2017–14073 Filed 7–3–17; 8:45 am] at 4. The Show Cause Order further
substances in California, and as [sic]
BILLING CODE P alleged that, in response to the criminal
result, is not entitled to maintain his
charges, the Medical Board of California
DEA Certificates of Registration.’’ Id. at
(hereinafter, MBC) petitioned the
1.
DEPARTMENT OF JUSTICE Superior Court for an order suspending
As support for its Motion, the
Respondent’s medical license during the
Government provided a sworn
Drug Enforcement Administration pendency of the criminal proceedings.
Certification by the Chief of DEA’s
Id. The Show Cause Order alleged that,
[Docket No. 16–31] Registration and Program Support
on May 13, 2016, the Superior Court
Section concerning each of
Phong Tran, M.D.; Decision and Order issued an Order granting the MBC’s
Respondent’s DEA registrations in
petition ‘‘and thereby . . . indefinitely
On June 29, 2016, the Deputy California. Government’s Motion, at
suspended . . . [Respondent’s]
Assistant Administrator, Office of Attachment 1 (Certification of
California medical license effective June
Diversion Control, Drug Enforcement Registration History dated June 29,
3, 2016.’’ Id. The Order to Show Cause
Administration (hereinafter, DEA or 2016). The Certification attached a copy
alleged that Respondent’s medical
Government), issued an Order to Show of each of Respondent’s DEA
license remained suspended and,
Cause to Phong Tran, M.D. (hereinafter, registrations. Id. at 5–23. The
‘‘therefore, DEA must revoke . . .
Respondent), the holder of 19 Government also provided the MBC’s
[Respondent’s] DEA . . . [registrations]
Certificates of Registration.1 Order to Notice ‘‘to recommend that the
based upon . . . [his] lack of authority
[Superior] Court issue an Order
to handle controlled substances in the
1 The 19 Certificates of Registration referenced in prohibiting . . . Phong Hung Tran, M.D.
State of California.’’ Id. (citing 21 U.S.C.
the Order to Show Cause are: FT4325242 in Vista, . . . from practicing or attempting to
California (expiration date: November 30, 2016); 802(21), 823(f)(1), and 824(a)(3)).
practice medicine as a physician in the
FT4123422 in Garden Grove, California (expiration The Show Cause Order notified State of California, as a condition of any
date: November 30, 2016); FT4086888 in Chula Respondent of his right to request a
Vista, California (expiration date: November 30, bail or own recognizance release, during
2016); FT4086876 in Escondido, California hearing on the allegations or to submit the pendency of . . . criminal
(expiration date: November 30, 2016); FT4086698 in a written statement while waiving his proceedings.’’ Government’s Motion, at
San Diego, California (expiration date: November right to a hearing, the procedure for Attachment 2 (Notice of PC23
30, 2016); FT4086686 in San Bernardino, California electing either option, and the
(expiration date: November 30, 2016); FP4086864 in Appearance and Recommendation at
Long Beach, California (expiration date: November consequences for failing to elect either PC1275 Bail Hearing dated April 12,
30, 2016); FT4046707 in Van Nuys, California option. Id. at 4–5 (citing 21 CFR 2016) (hereinafter, MBC Notice), at 2.
(expiration date: November 30, 2018); FT3965540 in 1301.43). It also notified Respondent of The Government’s Motion also attached
Anaheim, California (expiration date: November 30,
sradovich on DSK3GMQ082PROD with NOTICES
his right to submit a corrective action the MBC’s brief in support of the MBC
2018); FT4046543 in Temecula, California
(expiration date: November 30, 2018); BT3239945 Notice. Government’s Motion, at
in Westminster, California (expiration date: 2017); FT4963117 in Pasadena, California Attachment 3 (Memorandum in Support
November 30, 2018); FT4083111 in Downey, (expiration date: November 30, 2017); FT4963129 in
California (expiration date: November 30, 2016); Pomona, California (expiration date: November 30, of Penal Code Section 23 Appearance
FT4932097 in Rialto, California (expiration date: 2017); FT4963131 in Hemet, California (expiration
November 30, 2017); FT4946957 in Indio, California date: November 30, 2017); and FT3933593 in San 2 The Order also set the date and time for the
(expiration date: November 30, 2017); FT4946971 in Bernardino, California (expiration date: November Government to furnish proof of when it served the
Palmdale, California (expiration date: November 30, 30, 2018). Order to Show Cause, at 1–3. Order to Show Cause on Respondent. Id. at 1.
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![Federal Register / Vol. 82, No. 127 / Wednesday, July 5, 2017 / Notices 31071
and Recommendation to the Court dated limits were imposed on Respondent’s On October 17, 2016, the CALJ
April 12, 2016) (hereinafter, MBC practice. conducted a status conference by
Memorandum). On September 27, 2016, Respondent telephone with the Government and
Attached to the Government’s Motion filed his opposition to the Government’s counsel for Respondent. Order Granting
were two Orders of the Superior Court. Motion (hereinafter, Respondent’s Respondent’s Request for a
The first Order concerned Respondent’s Opposition). Attached to Respondent’s Continuance, at 1. During the status
Condition of Bail Release and the Opposition were the transcripts of two conference, counsel for Respondent
second denied reconsideration of the Superior Court hearings. Respondent’s sought, and was granted with the
first Order. Government’s Motion, Opposition, Exhibits 11 and 12 consent of the Government, a
Attachment 4 (Conditions of Bail Order (Reporter’s Transcript of Proceedings for continuance until the afternoon of
dated May 13, 2016) (hereinafter, the April 8, 2016 and May 13, 2016 October 20, 2016 to file a motion for
Conditions of Bail Order) and hearings) (hereinafter, April Transcript summary disposition. Id. at 1.
Government’s Motion, Attachment 5, and May Transcript, respectively).5 By motion dated October 17, 2016,
(Denial of Reconsideration of Respondent stated that the MBC had Respondent requested dismissal of the
Conditions of Bail Order dated August not suspended his medical license. He Order to Show Cause. Respondent’s
17, 2016). Also attached to the asserted that, ‘‘The limitation on his Motion for Summary Disposition
Government’s Motion were a ‘‘Public practice arises from a Court Order (hereinafter, Respondent’s Motion), at 1.
Document List’’ and ‘‘Notification of issued by Judge Eyherabide on May 13, Attached to the Respondent’s Motion
Court Order’’ concerning Respondent’s 2016, prohibiting respondent from were the April and May Superior Court
license from the California Department practicing medicine during the hearing transcripts, an updated but
of Consumer Affairs. Government’s pendency of his criminal matter as a substantively identical version of the
Motion, Attachment 6. The September condition of his bail.’’ Respondent’s BreEZe License Details, and ‘‘License
8, 2016 Declaration of a DEA Diversion Opposition, at 1. Details—Public Record Actions—Court
Investigator from the San Diego Field By Order dated October 4, 2016, the Order’’ from the California Department
Division, also attached to the CALJ denied the Government’s Motion. of Consumer Affairs concerning
Government’s Motion, described the Order Denying the Government’s Respondent’s license (hereinafter,
status of Respondent’s license as Motion for Summary Disposition BreEZe License Details—Court Order).
‘‘indefinitely suspended’’ by the (hereinafter, Order Denying The ‘‘Description of Action’’ section of
Superior Court. Government’s Motion, Government’s Motion). The Order stated the BreEZe License Details—Court
Attachment 8 (Declaration of Drug that ‘‘the . . . [Superior Court] clearly Order stated that the ‘‘Superior Court of
Enforcement Administration Diversion imposed the prohibition on practice as
California, County of San Diego, issued
Investigator, dated September 8, 2016) a condition of bail release—not as a
an Order . . . . Dr. Tran shall not
(hereinafter DI Declaration), at 2.3 suspension or restriction on the
practice medicine during the pendancy
As further support for the Respondent’s professional license
[sic] of this case beginning 06/03/16.’’
Government’s Motion, the Government itself.’’ Order Denying Government’s In further support of his Motion,
provided the Declaration of a California Motion, at 5. The Order cited
Respondent stated that, ‘‘The Superior
Deputy Attorney General who ‘‘[v]erification information available on
Court of California’s Order of May 13,
represented the MBC. Government’s the California Department of Consumer
2016 prohibited Respondent from
Motion, Attachment 9 (hereinafter, MBC Affairs BreEZe Web site’’ as providing
practicing medicine as a condition of
Attorney Declaration).4 The MBC ‘‘further support for the proposition that
bail release pursuant to Penal Code
Attorney Declaration’s heading, ‘‘United the Superior Court’s proscription
§ 1275, and not as a suspension or
States Department of Justice Drug against practicing medicine did not
restriction on his professional medical
Enforcement Administration,’’ and change . . . [Respondent’s] medical
license.’’ Respondent’s Motion, at 1.
docket number, ‘‘16–31,’’ suggested that licensure status.’’ Id. at 5–6 (footnote
Respondent’s Motion also stated that
it was created specifically for this omitted). The Order concluded that,
‘‘Respondent’s professional medical
proceeding. Id. at 1. ‘‘Respondent (albeit at the peril of his
license itself is currently active and is
The last attachment to the release conditions) maintains the state
not restricted by the Court’s Order,’’ and
Government’s Motion was Respondent’s authority requisite to retain his DEA
alleged that his medical license ‘‘entitles
request for a hearing. Government’s . . . [registrations]’’ and ‘‘the
him to handle controlled substances in
Motion, Attachment 10 (Hearing Government has not met its burden to
California.’’ Id.
Request dated August 25, 2016). prove that the Respondent lacks state The Government opposed the
Attached to the Hearing Request was a authority to handle controlled Respondent’s Motion. Government’s
two-page printout from the California substances in California, the sole basis Response to Respondent’s Motion dated
Department of Consumer Affairs for its Motion.’’ Id. at 8. Thus, it denied October 27, 2016 (hereinafter,
(‘‘https://www.breEZe.ca.gov’’) titled the Government’s Motion for Summary Government’s Opposition). In its
‘‘License Details’’ and dated August 25, Disposition noting that ‘‘the Respondent Opposition, the Government admitted
2016 (hereinafter, BreEZe License has (inexplicably) not filed a motion for that ‘‘Respondent currently retains his
Details). The printout showed summary disposition.’’ Id. at 8 n.20.6 state authority to practice medicine.’’ Id.
Respondent’s license status as ‘‘License
at 2. Referencing the second prong of 21
Renewed & Current’’ and secondary 5 The cover sheet for the May Transcript
mistakenly attributed its contents to the hearing on U.S.C. 824(a)(3), the Government
status as ‘‘Limits On Practice.’’ The
April 8, 2016. The first page of the May transcript, posited that ‘‘DEA is authorized to
sradovich on DSK3GMQ082PROD with NOTICES
document did not, however, state what however, noted the actual May date of the revoke a DEA . . . [registration] even
transcribed proceedings.
3 The seventh attachment to the Government’s 6 The CALJ also granted leave to the Government,
‘. . . where suspension or revocation of
Motion was a Declaration of a DEA Diversion ‘‘to the extent it is inclined to do so,’’ to file and a practitioner’s state license or
Investigator from the Los Angeles Field Division serve on Respondent a superseding Order to Show
concerning service of the Show Cause Order on Cause no later than October 14, 2016 ‘‘to allow the Government stated that it was not issuing a
Respondent. Government to pursue administrative enforcement superseding Order to Show Cause concerning
4 The MBC Attorney Declaration referenced five in these proceedings.’’ Id. at 8 n.21 (emphasis in Respondent. Government’s Notice Regarding the
attachments. None, however, was provided. original). By its filing dated October 14, 2016, the Filing of Superseding Order to Show Cause, at 1.
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![31072 Federal Register / Vol. 82, No. 127 / Wednesday, July 5, 2017 / Notices
registration has merely been recommendation concerning a ‘‘DEA working off Federal charges. Id. at 5,
recommended by state authority,’ and registration,’’ and whether the California lines 12–20. One of Respondent’s
that DEA is not ‘. . . required to await State Medical Board recommended that Physician’s Assistants, the prosecutor
a final decision from the State before the Superior Court ‘‘suspend’’ further alleged, would see up to 100
acting to revoke’ ’’ a DEA registration. Respondent’s medical license. Id. at 1– patients a day, once a month, and
Id. at 2 (citing Joseph Giacchino, M.D., 9. provide the patients with prescription
76 FR 71,374 (2011)); see also id. at 4. On December 2, 2016, the record was medications and compound creams. Id.
The Government’s Opposition further forwarded to my Office for Final Agency at 6, lines 2–9. Respondent would bill
stated that ‘‘the State of California (on Action. Having considered the record the insurance companies for the visits
behalf of the Board) not only sought to and the Order Granting Respondent’s and for the prescription medications
have the criminal court suspend Motion in light of all relevant statutory, and compound creams, according to the
Respondent’s medical license during regulatory, and case law authorities, I prosecutor. Id. at 6, lines 2–9, 16–25.
pendency of criminal proceedings, but conclude that there is no basis for The prosecutor explained that billing for
by the express wording of its April 12, revoking Respondent’s registration on compound creams was particularly
2016 court filing recommended that the the record before me.9 Thus, I agree lucrative because there was no limit on
court take this course of action.’’ 7 Id. at with the CALJ’s ultimate conclusions how much could be billed for a
6. The Government’s Opposition that Respondent continues to have the compound cream. Id. at 7, lines 1–20.
concluded that ‘‘[t]he Board’s State authority required for his
recommendation of licensure registrations, and that the Government The Evidence Offered by the Parties in
suspension as a condition of bail clearly has not established the predicates under Support of Their Respective Motions
fits within the recommendation of 21 U.S.C. 824(a)(3) to warrant The Superior Court Hearing in April,
‘competent State authority’ wording of revocation of Respondent’s 2016
section 824(a)(3).’’ Id. registrations.10 On April 8, 2016, the Superior Court
On November 7, 2016, the CALJ I make the following factual findings. held a hearing at the request of the
granted the Respondent’s Motion and MBC. Attendees included State
Findings of Fact
recommended that the Government’s prosecutors and attorneys for the MBC
petition for revocation of Respondent’s Respondent’s DEA Registrations and Respondent. According to its
certificates of registration be denied. The Order to Show Cause alleged that attorney, the MBC ‘‘provided notice to
Order Granting the Respondent’s Respondent has held 19 registrations, all Respondent back in February that they
Motion for Summary Disposition with addresses in California. Order to will be appearing at the . . . [California
(hereinafter, Order Granting Show Cause, at 1–3. Based on the Penal Code] 23 to make a
Respondent’s Motion), at 15. In the evidence submitted by the Government, recommendation to provide information
Order Granting Respondent’s Motion, I find that at least one of Respondent’s . . ., not to ask for suspension, but to
the CALJ, among other things, noted the registrations, FT3933593 in San place a condition on . . .
Government’s acknowledgement that Bernardino, California (expiration date [Respondent’s] bail O.R. release.’’ 11
Respondent had state authority to November 30, 2018), is currently active. April Transcript, at 30, lines 21–28
practice medicine, stated that the Order Government’s Motion, at Attachment 1, (emphasis added). A prosecutor
to Show Cause was insufficient to notice at 10. explained that the California Attorney
revocation of Respondent’s registrations General decided, on behalf of the MBC,
based on the second prong of 21 U.S.C. Indictment of Respondent
that ‘‘this is so important to public
824(a)(3), concluded that the On January 28, 2016, Respondent was safety that they are literally putting their
‘‘recommendation’’ in the second prong criminally charged with 45 felony reputation on the line.’’ Id. at 23, lines
of 21 U.S.C. 824(a)(3) relates only to a counts related to kickbacks, including 19–22. According to the prosecutor,
practitioner’s DEA registration, and 21 counts of workers’ compensation ‘‘the Medical Board is basically here
determined that the MBC had not fraud and 24 counts of insurance fraud. telling you look, we may have to go
recommended a ‘‘suspension’’ of MBC Memorandum, at 2, 3; May through a certain number of procedures
Respondent’s registrations. Id. at 3, 10, Transcript, at 4–5, lines 23–2; DI to do this, but we are asking you, in the
12–13, and 13, respectively. Declaration, at 2. According to a State interim, tell this individual not to
On November 25, 2016, the prosecutor, Respondent paid kickbacks practice medicine.’’ 12 Id. at 23, lines 22–
Government filed Exceptions to the for access to patients on a per patient 26; see also id. at 30, lines 16–18
Order Granting Respondent’s Motion. basis. May Transcript, at 5, lines 12–28; (Respondent’s counsel stating that ‘‘the
Government’s Exceptions to Order at 6, lines 9–10; at 7, lines 24–26. At the
Granting Summary Disposition Motion May Superior Court hearing, the 11 The MBC’s February Notice to Respondent was
(hereinafter, Exceptions). In its prosecutor represented that the not put in the record of this proceeding.
Exceptions, the Government addressed individual to whom Respondent paid California Penal Code 23 states, in pertinent part,
whether the Order to Show Cause ‘‘In any criminal proceeding against a person who
the kickbacks was a chiropractor has been issued a license to engage in a business
sufficiently noticed action against or profession by a state agency pursuant to
Respondent based on the second prong 9 It is noted, however, that the issuance of a new provisions of the Business and Professions Code
of 21 U.S.C. 824(a)(3),8 whether a Order to Show Cause would be appropriate if the . . ., the state agency which issued the license may
MBC were to suspend or revoke Respondent’s state voluntarily appear to furnish pertinent information,
prerequisite to invocation of the second make recommendations regarding specific
license, or if Respondent’s plea to, or conviction of,
prong of 21 U.S.C. 824(a)(3) is a criminal charges resulted in mandatory exclusion conditions of probation, or provide any other
sradovich on DSK3GMQ082PROD with NOTICES
under 42 U.S.C. 1320a–7(a). Further, the issuance assistance necessary to promote the interests of
7 The Government’s Opposition did not provide of a new Order to Show Cause based on 21 U.S.C. justice and protect the interests of the public, or
the page number on which this ‘‘express wording’’ 824(a)(4) would be appropriate if properly may be ordered by the court to do so, if the crime
appeared. I carefully reviewed the document the supported by evidence, including evidence gleaned charged is substantially related to the qualifications,
Government referenced multiple times and did not from the criminal proceedings against Respondent. functions, or duties of a licensee.’’
locate the ‘‘express wording.’’ 10 This matter raises novel issues, and my ‘‘O.R. release’’ refers to a bail release on one’s
8 ‘‘. . . has had the suspension, revocation, or analysis differs from the analysis in the Order own recognizance.
denial of his registration recommended by Granting Respondent’s Motion. Thus, I do not adopt 12 The prosecutor did not elaborate on what he
competent State authority . . .’’ the Order Granting Respondent’s Motion. meant by to do ‘‘this.’’
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![Federal Register / Vol. 82, No. 127 / Wednesday, July 5, 2017 / Notices 31073
Medical Board has never once 3, lines 22–23; at 4, lines 22–23; at 6, the prior set of P[enal] C[ode] 23 brief
independently tried to suspend . . . lines 12–15; at 9, lines 7–8. [sic].’’).
[Respondent’s] license.’’). The Superior Court explained the Other statements tended to oppose
The Superior Court began the April 8, extent of her authority with an analogy that possibility. April Transcript, at 19–
2016 hearing by stating that ‘‘apparently to a person put on probation. She stated, 20, lines 26–3 (Superior Court stating
there is a motion to continue.’’ Id. at 1, ‘‘as a condition of probation, the Court that, under Penal Code section 23, the
lines 22–23. One of Respondent’s can impose, you can’t practice State agency that issued a license to a
attorneys acknowledged the motion criminal defendant may voluntarily
accounting, you can’t drive a truck, you
‘‘due to the unavailability of . . . a appear to ‘‘furnish pertinent
can’t practice medicine . . . [and if] the
witness allowed him to confront.’’ Id. at information, make recommendation
person doesn’t wish to accept it, they go
1, lines 24–26. As the hearing [sic], regarding specific conditions of
to prison.’’ Id. at 9, lines 10–14. She
proceeded, Respondent’s counsel probation’’); id. at 30, lines 21–28 (MBC
provided another example:
argued that his client was entitled to provided notice to Respondent of its
[E]ven if I was placing a person on appearance ‘‘to make a recommendation
due process because placing a no-
probation, a lawyer, who committed fraud, I to provide information . . . not to ask
medical-practice bail condition on can’t say and a condition of probation is I am
Respondent’s medical license was for suspension, but to place a condition
taking away your license. I don’t have a on his bail O.R. release.’’).
tantamount to placing it under interim power to take away a license. The State Bar
suspension. He stated that he brought a If there were any written submission
only has the power to take away a license.
‘‘motion’’ because ‘‘basically we are I can say as a condition of probation, you are
by the MBC or a party in connection
talking about an interim suspension, it’s not to practice law. He can still pay his Bar with the April Superior Court hearing
another way of saying . . . a restriction dues. It means when he’s done with recommending the suspension of
on someone’s license, and . . . that . . . probation in two years, he’s still a practicing Respondent’s medical license or
attorney. registration, it is not in the record before
requires that the evidence . . . be
me.
shown through affidavit . . . that the Id. at 9, lines 15–23. The Superior Court Thus, based on the evidence in the
. . . licensee [ ] have . . . an effective reiterated that she was not able to April Transcript, I conclude that the
right to confront those evidence.’’ 13 Id. ‘‘yank’’ a person’s license and Superior Court did not suspend or
at 4–5, lines 28–14. ‘‘[w]hether it’s as a condition of bail, or revoke Respondent’s California medical
The Superior Court stated that a co- probation, it’s a condition one can license at the Superior Court April
defendant of Respondent had previously accept or not accept.’’ Id. at 9, lines 24– hearing, and that the suspension,
raised the issue of ‘‘whether or not this 26. revocation, or denial of Respondent’s
court should or has the power to medical license or registration was not
actually suspend’’ a doctor’s medical In the criminal case against
Respondent, according to the Superior recommended by competent California
license. Id. at 2, lines 7–8. The Court State authority in connection with the
indicated the response it had given to Court, she was able to place a no-
medical-practice condition on Superior Court April hearing.
the co-defendant:
Respondent’s own recognizance release The Medical Board of California Notice
I am not the Medical Board. I am not an and she continued the hearing to May
attorney licensing board, I am not a real
and Memorandum
13, 2016 for the purpose of determining
estate licensing board. The way I have framed In advance of the May Superior Court
this, frankly, is whether or not as a condition,
whether to do so. Id. at 29, lines 8–25;
hearing, the MBC filed the MBC Notice
. . . if somebody has a fourth DUI, and is see also id. at 10, lines 9–12.
and the MBC Memorandum. Supra. The
asking for their own recognizance, as a part Some statements at the April hearing MBC Notice stated, in pertinent part,
of bail there are conditions, one, they can’t suggested that the MBC had filed a pre- that the MBC will appear before the
drive . . . if they make bail or are released. hearing statement recommending the Superior Court ‘‘to recommend that the
Id. at 2, lines 16–25. At the hearing, suspension of Respondent’s medical Court issue an Order prohibiting . . .
the Superior Court consistently license. The Superior Court had stated, [Respondent] from practicing or
indicated that ‘‘the real issue here [ ] is ‘‘Through the Attorney General’s office, attempting to practice medicine as a
whether or not, as a condition of Dr. they 14 have requested, pursuant to physician in the State of California, as
Tran’s O.R. release, . . . he should be Penal Code Section 23, to bring me the a condition of any bail or own
practicing medicine, not that I would be information . . . and in the moving recognizance release, during the
suspending a license. I don’t have any papers everybody talks about whether or pendency of . . . [the] criminal
power to suspend a license.’’ Id. at 3, not this Court should or has the power proceedings.’’ MBC Notice, at 2. The
lines 4–8. Stating that ‘‘[t]here is no to actually suspend Dr. Tran’s license.’’ MBC Notice explained the grounds for
right to confront . . . for the Court Id. at 2, lines 3–8; see also id. at 21, its recommendation, stating that ‘‘if
considering safety purposes,’’ the lines 21–27 (A prosecutor stating that allowed to continue to practice
Superior Court rejected the due process ‘‘[c]ommonly these questions are medicine as a physician, . . .
arguments of Respondent’s counsel and initiated by a request by the Attorney [Respondent] poses a continuing danger
invited them to appeal her ruling. Id. at General, a recommendation as it’s to the public health, safety, and
12, lines 2–4; see also id. at 7, lines 21– termed, . . . to take some action on a welfare.’’ Id. It referenced the Superior
24; id. at 11, lines 24–25. Throughout person’s license. Just to be clear, . . . Court’s statutory authority to consider
the April hearing, the Superior Court we are not joining in the request that public protection when imposing bail
any action be taken on the defendant’s
sradovich on DSK3GMQ082PROD with NOTICES
continuously and consistently stated and own recognizance release
that she was not able to suspend a license.’’); May Transcript, at 2, lines conditions. Id. The MBC Notice did not
license, whether the license in question 11–14 (Superior Court noting that state that the MBC was recommending
was a truck driver’s license, a license to ‘‘[t]here are numerous briefs here from the suspension, revocation, or denial of
practice law, or a medical license. Id. at the People’’ and Respondent’s counsel Respondent’s medical license or
suggesting that, ‘‘That’s probably from registration.
13 The motion Respondent’s counsel referenced The MBC Memorandum made
was not put in the record of this proceeding. 14 The reference to ‘‘they’’ is not specified. multiple points. First, it reiterated the
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![31074 Federal Register / Vol. 82, No. 127 / Wednesday, July 5, 2017 / Notices
MBC’s recommendation to, and request integrity and an inability or revocation, or denial of Respondent’s
of, the Superior Court that Respondent, unwillingness to follow the law.’’ Id. medical license or registration.
‘‘as a condition of any bail or own Nowhere in the MBC Notice or the
recognizance release, . . . be prohibited The MBC Attorney Declaration
MBC Memorandum did the MBC
from practicing medicine until recommend the suspension, revocation, The MBC Attorney Declaration
resolution of the . . . criminal or denial of Respondent’s medical contained five numbered paragraphs.
proceedings.’’ MBC Memorandum, at 2; license or registration. The first paragraph stated that its
see also id. at 4, 8. declarant worked in the California
The Superior Court Hearing in May,
Second, it stated that Respondent Attorney General’s Health Quality
2016
held a valid physician’s license that Enforcement Unit. MBC Attorney
‘‘will expire on January 31, 2018, unless On May 13, 2016, the Superior Court Declaration, at 1. Its second paragraph
renewed.’’ Id. at 2. The MBC resumed the hearing it began in April. stated that Respondent was charged
Memorandum further explained that The May Transcript contained more with 45 counts of felony crimes related
Respondent’s physician’s license information about the criminal charges to workers’ compensation and insurance
enabled Respondent ‘‘to provide against Respondent and the MBC’s fraud. Id. Its third paragraph stated that,
medical services including issuing request of the Superior Court. in April of 2016, the MBC attorney
prescriptions for controlled substances The prosecutor stated that declarant ‘‘voluntarily appeared’’ on
to patients and conducting serious Respondent was indicted for giving behalf of the MBC and recommended
surgeries.’’ Id. kickbacks for access to patients and that the Superior Court issue an order,
Third, the MBC Memorandum stated filing fraud-based insurance claims as a condition of bail, prohibiting
that the MBC was responsible for based on those kickbacks. May Respondent from practicing medicine
enforcing the disciplinary and criminal Transcript, at 4–7, 11–12. The attorney during the pendency of the criminal
provisions of the California Medical representing the MBC stated that, ‘‘[i]n proceedings. Id. The fourth paragraph
Practice Act, and that protecting the setting[,] reducing[,] and denying bail,
stated that the Superior Court, ‘‘as a
public was its highest priority in . . . [t]he public safety shall be the
condition of bail, . . . issued an order
exercising its licensing, regulatory, and primary consideration.’’ Id. at 13, lines
prohibiting Dr. Tran from practicing
disciplinary functions. Id. at 3. It 22–28. He argued:
medicine, effective June 3, 2016, during
explained that it had the ‘‘power to When patients are sold for money, . . . pendency of above criminal
suspend, revoke, or otherwise limit [Respondent is] going after patients, patients proceedings.’’ Id. at 2. The last
physicians and surgeons from practicing aren’t coming after him, to seek medical help.
paragraph stated that the Superior Court
medicine for, among other things, He’s seeking patients to make money. When
patients are sold as commodities, does that denied Respondent’s request for
unprofessional conduct and criminal
pose a risk . . . to the public? Patient care? modification and/or removal of the bail
convictions substantially related to the
And when their patient’s safety is at risk, is condition. Id. While the MBC Attorney
qualifications, functions, or duties of a
that a risk of the public safety? Well of course Declaration stated that it was sworn
physician and surgeon.’’ Id.
it is, Your Honor. under penalty of perjury, neither the
Fourth, the MBC Memorandum cited
Id. at 14, lines 6–12. The MBC day of its execution in September, 2016
California Penal Code § 23, supra, as
attorney asserted that ‘‘[t]his was one of nor the signature on it was visible. For
authority for the MBC to appear in a
the largest insurance and worker’s these reasons, I cannot give any credit
criminal proceeding against a person to
compensation fraud cases in the history to the MBC Attorney Declaration.16
whom the MBC had issued a license to
‘‘furnish pertinent information, make of this county . . . , a sophisticated The Status of Respondent’s California
recommendations regarding specific large scale criminal enterprise.’’ Id. at Medical License
conditions of probation, or provide any 14, lines 24–28. He summarized what
other assistance necessary to promote the MBC sought from the Superior Court According to the evidence in the
the interests of justice and protect the when he stated, ‘‘We ask the Court, as record, Respondent and the Government
interest of the public.’’ Id. at 4. It also a condition of bail, to prohibit . . . eventually agreed that Respondent’s
cited California law to support the [Respondent] from practicing medicine California medical license was
reasonableness of a bail condition during the pendency of this case.’’ Id. at current.17 Respondent’s Motion, at 1
prohibiting Respondent from practicing 15, lines 22–24. (‘‘Respondent’s professional medical
medicine during the pendency of the The Superior Court ruled that ‘‘until license itself is currently active . . . .’’);
criminal case.15 MBC Memorandum, at the case is resolved, . . . [Respondent] Government’s Opposition, at 2 (‘‘[T]his
5–8. not be allowed to practice medicine. tribunal, as well as the Respondent in
Fifth, the MBC Memorandum stated . . . So that will be a condition of his his pending summary disposition
that, ‘‘The felony charges in this case are continued bail.’’ Id. at 20, lines 11–14. motion, have correctly pointed out that
extremely serious and are substantially On August 17, 2016, the Court denied Respondent currently retains his state
related to the qualifications, functions, Respondent’s request for authority to practice medicine.’’); see
and duties of a physician and surgeon.’’ reconsideration of this ruling. also id. at 5. Thus, there ended up being
Id. at 6; see also id. at 8. It stated that Government’s Motion, Attachment 5, no dispute that Respondent’s California
Respondent’s alleged conduct ‘‘is not supra. medical license was current. As of the
only unprofessional, but also dangerous, Thus, the Superior Court, at its May date of this Decision and Order,
hearing, conditioned Respondent’s own- Respondent’s California medical license
sradovich on DSK3GMQ082PROD with NOTICES
and evinces poor character, a lack of
recognizance bail release on his not
15 The MBC Memorandum cited Penal Code practicing medicine. At the May 16 Even if the date and signature on it were
§ 1275 (the public safety is the primary hearing, the Superior Court did not visible, the MBC Attorney Declaration contained no
consideration for judges in setting, reducing, or suspend or revoke Respondent’s evidence tending to show that competent California
denying bail) and California Penal Code § 1318 State authority recommended the suspension,
(interpreted to require defendants released on their
California medical license, and no revocation, or denial of Respondent’s medical
own recognizance to promise to obey all reasonable competent California State authority license or registration.
conditions related to public safety). recommended the suspension, 17 California medical license number 74233.
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![Federal Register / Vol. 82, No. 127 / Wednesday, July 5, 2017 / Notices 31075
is current; it has not been suspended or the laws of the State in which he The evidence in the record is clear
revoked.18 practices medicine. Frederick Marsh that the Superior Court did not believe
Blanton, 43 FR 27,616 (1978) (‘‘State she had authority to suspend or revoke
Discussion 19
authorization to dispense or otherwise a license of any sort, let alone a DEA
Under Section 304 of the Controlled handle controlled substances is a registration, and that she did not intend
Substances Act (hereinafter, CSA), ‘‘[a] prerequisite to the issuance and her orders to do so. The evidence in the
registration . . . to . . . dispense a maintenance of a Federal controlled record is equally clear that neither the
controlled substance . . . may be . . . substances registration.’’). See also Superior Court, the prosecutor, nor the
revoked by the Attorney General upon James L. Hooper, 76 FR 71,371 (2011)
a finding that the registrant . . . has had MBC attorney recommended any
(collecting cases), pet. for rev. denied, suspension, revocation, or denial of any
his State license or registration 481 Fed. Appx. 826 (4th Cir. 2012).
suspended, revoked, or denied by registration. Finally, the Government
competent State authority and is no Registrant’s California Medical License did not cite any decision holding that a
longer authorized by State law to engage Has Not Been Suspended or Revoked no-medical-practice bail condition
in the . . . dispensing of controlled constitutes a recommendation of
In this case, the Government and
substances . . . or has had the suspension, revocation, or denial.
Respondent eventually agreed that
suspension, revocation, or denial of his Respondent’s California medical license In sum, viewing the evidence in the
registration recommended by competent was neither suspended nor revoked. record in the light most favorable to the
State authority . . . .’’ 21 U.S.C. Respondent’s Motion, 1 (‘‘Respondent’s Government, the non-moving party, I
824(a)(3). professional medical license itself is find no evidence, let alone substantial
Moreover, DEA has long held that the
currently active . . . .’’); Government’s evidence, that the factual predicates for
possession of authority to dispense
Opposition, 2 (‘‘[T]his tribunal, as well applying either prong of 21 U.S.C.
controlled substances under the laws of
as the Respondent in his pending 824(a)(3) have been established.20 Thus,
the State in which a practitioner engages
summary disposition motion, have in this case, the record does not support
in professional practice is a
correctly pointed out that Respondent revocation of Respondent’s registrations
fundamental condition for obtaining
currently retains his state authority to under either the first or second prong of
and maintaining a registration. This rule
practice medicine.’’); see also 21 U.S.C. 824(a)(3).
derives from the text of two provisions
Government’s Opposition, 5. Thus,
of the CSA. First, Congress defined Order
there was no dispute between the
‘‘practitioner’’ to mean ‘‘a physician
parties concerning the status of
. . . or other person licensed, registered, Pursuant to the authority vested in me
Respondent’s California medical
or otherwise permitted . . . by the . . . by 21 U.S.C. 824(a)(3) and 28 CFR
license. I, therefore, conclude that the
jurisdiction in which he practices . . . 0.100(b), I grant Respondent’s Motion
first prong of 21 U.S.C. 824(a)(3) does
to distribute, dispense, . . . [or] for Summary Disposition. I further order
not support revocation of any of
administer . . . a controlled substance the dismissal of the Order to Show
Registrant’s registrations.
in the course of professional practice Cause. This order is effective August 4,
. . . .’’ 21 U.S.C. 802(21). Second, in Competent State Authority Suspension 2017.
setting the requirements for obtaining a or Revocation Recommendation
practitioner’s registration, Congress Dated: June 24, 2017.
The Government’s Opposition argues Chuck Rosenberg,
directed that ‘‘[t]he Attorney General
that revocation of Respondent’s
shall register practitioners . . . if the Acting Administrator.
registrations is appropriate under the
applicant is authorized to dispense . . . [FR Doc. 2017–14070 Filed 7–3–17; 8:45 am]
second prong of 21 U.S.C. 824(a)(3).
controlled substances under the laws of
However, the Government cites no case BILLING CODE 4410–09–P
the State in which he practices.’’ 21
interpreting that provision. Given the
U.S.C. 823(f). Because Congress has
clear factual record before me, there is
clearly mandated that a practitioner
no need to opine on it, including on the
possess state authority in order to be
requisite ‘‘recommendation’’ and
deemed a practitioner under the CSA,
whether ‘‘registration’’ refers to a State
DEA has held repeatedly that revocation
license/controlled substance registration
of a practitioner’s registration is the 20 Although the Government cited 21 U.S.C.
or a DEA registration. In other words,
appropriate sanction whenever a 823(f) and 21 U.S.C. 823(f)(1) in the Order to Show
the record simply contains no evidence Cause, it did not squarely present, let alone
practitioner is no longer authorized to
that a ‘‘competent State authority’’ develop, the theory that Respondent’s registrations
dispense controlled substances under
‘‘recommended’’ the ‘‘suspension, should be revoked based on 21 U.S.C. 823(f)(1) in
18 According to the Web site https://
revocation, or denial’’ of any conjunction with 21 U.S.C. 824(a)(4). Further, the
‘‘registration.’’ Supra. cases the Government cited in the Order to Show
www.breEZe.ca.gov, Respondent’s medical license
Cause as providing ‘‘a summary of the legal basis
has practice limits due to the Superior Court’s Having thoroughly examined all of
imposition of an ‘‘own recognizance’’ bail for this action’’ did not rely on 21 U.S.C. 824(a)(4)
the evidence in the record, including and 823(f)(1) as legal bases.
condition.
19 I need not address, and therefore decline to the evidence from the MBC, the When invited by the CALJ to amend the Order to
address, much of the content of the Recommended Superior Court, and every attorney Show Cause, which included the possibility of
Decision, including most of the matters with which representing California, I found developing a revocation theory under 21 U.S.C.
the Government took exception: Whether the evidence only that the MBC
sradovich on DSK3GMQ082PROD with NOTICES
824(a)(4) and 21 U.S.C. 823(f)(1), the Government
Government sufficiently noticed action against explicitly declined. Order Denying Government’s
Respondent based on the second prong of 21 U.S.C.
recommended a no-medical-practice
condition on Respondent’s own Motion, at 8; Government’s Notice Regarding the
824(a)(3) and whether a prerequisite for invocation
Filing of Superseding Order to Show Cause. As
of the second prong of 21 U.S.C. 824(a)(3) is a recognizance bail release. While the
recommendation concerning a ‘‘DEA registration.’’ warranted with the passage of time and the
record hints at the possibility that the garnering of relevant evidence, the Government is
I need not reach either of these matters because I
find that the Government has not established that
MBC made a suspension or revocation free to issue a new Order to Show Cause concerning
there was a suspension, revocation, or denial recommendation, the record contains no Respondent’s registrations based on appropriate
recommendation by competent State authority. evidence of such a recommendation. legal authority. Supra.
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Document Created: 2017-07-04 02:00:45
Document Modified: 2017-07-04 02:00:45
| 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 | |
| Dates | November 30, 2016); FT4123422 in Garden Grove, California (expiration date: November 30, 2016); FT4086888 in Chula Vista, California (expiration date: November 30, 2016); FT4086876 in Escondido, California (expiration date: November 30, 2016); FT4086698 in San Diego, California (expiration date: November 30, 2016); FT4086686 in San Bernardino, California (expiration date: November 30, 2016); FP4086864 in Long Beach, California (expiration date: November 30, 2016); FT4046707 in Van Nuys, California (expiration date: November 30, 2018); FT3965540 in Anaheim, California (expiration date: November 30, 2018); FT4046543 in Temecula, California (expiration date: November 30, 2018); BT3239945 in Westminster, California (expiration date: November 30, 2018); FT4083111 in Downey, California (expiration date: November 30, 2016); FT4932097 in Rialto, California (expiration date: November 30, 2017); FT4946957 in Indio, California (expiration date: November 30, 2017); FT4946971 in Palmdale, California (expiration date: November 30, 2017); FT4963117 in Pasadena, California (expiration date: November 30, 2017); FT4963129 in Pomona, California (expiration date: November 30, 2017); FT4963131 in Hemet, California (expiration date: November 30, 2017); and FT3933593 in San Bernardino, California (expiration date: November 30, 2018). Order to Show Cause, at 1-3. | |
| FR Citation | 82 FR 31070 |
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