82 FR 56992 - Kofi E. Shaw-Taylor, M.D. Decision and Order

DEPARTMENT OF JUSTICE
Drug Enforcement Administration

Federal Register Volume 82, Issue 230 (December 1, 2017)

[Federal Register Volume 82, Number 230 (Friday, December 1, 2017)]
[Notices]
[Pages 56992-56993]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2017-25922]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration


Kofi E. Shaw-Taylor, M.D. Decision and Order

    On June 12, 2017, the Assistant Administrator, Diversion Control 
Division, Drug Enforcement Administration (hereinafter, DEA or 
Government), issued an Order to Show Cause to Kofi E. Shaw-Taylor, M.D. 
(hereinafter, Respondent) of Baltimore, Maryland. GX 1. The Show Cause 
Order proposed the revocation of Respondent's Certificate of 
Registration on the ground that Respondent does ``not have authority to 
handle controlled substances in the State of Maryland,'' the State in 
which he is registered. GX 1, at 1 (citing 21 U.S.C. 823(f) and Sec.  
824(a)(3)).
    As to the Agency's jurisdiction, the Show Cause Order alleged that 
Respondent holds DEA Certificate of Registration No. AS2145476 which 
authorizes him to dispense controlled substances in schedules II 
through V as a practitioner at the registered address of 4419 Falls 
Road, Suite C, Baltimore, Maryland 21211. GX 1, at 1. See also GX 2 
(Controlled Substance Registration Certificate) (including ``Westside 
Medical Group''). The Show Cause Order alleged that this registration 
expires on February 29, 2020. GX 1, at 1. See also GX 2.
    As the substantive ground for the proceeding, the Show Cause Order 
alleged that Respondent is ``without authority to handle controlled 
substances in Maryland, the state in which . . . [he is] registered 
with the DEA.'' GX 1, at 1. It further alleged that, on May 9, 2017, 
Respondent's ``authority to prescribe and administer controlled 
substances in the State of Maryland was suspended.'' GX 1, at 1. See 
also GX 3 (Maryland State Board of Physicians Order of Summary 
Suspension of License to Practice Medicine, hereinafter Order of 
Summary Suspension). The Show Cause Order alleged that ``DEA must 
revoke . . . [his] DEA . . . [registration] based upon . . . [his] lack 
of authority to handle controlled substances in the State of 
Maryland.'' GX 1, at 1 (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 procedures for electing each 
option, and the consequences for failing to elect either option. GX 1, 
at 2 (citing 21 CFR 1301.43). The Show Cause Order also notified 
Respondent of the opportunity to submit a corrective action plan. GX 1, 
at 2 (citing 21 U.S.C. 824(c)(2)(C)).
    By letter dated July 17, 2017 addressed to the Office of the [DEA] 
Administrative Law Judges, Respondent, by his counsel, requested a 
hearing. GX 5, at 1. The letter admitted that the Maryland State Board 
of Physicians issued an Order of Summary Suspension of Respondent's 
license to practice medicine on May 9, 2017. Id. According to the 
letter, Respondent was challenging that Order ``on grounds of abuse of 
and lack of due process.'' Id.
    On July 24, 2017, the Chief Administrative Law Judge, John J. 
Mulrooney, II, ordered the Government to file proof of service and 
evidence in support of its allegation that Respondent lacked State 
authority to practice medicine. GX 6, at 1 (Order Directing the Filing 
of Proof of Service and Government Evidence of Lack of State Authority 
Allegation and Briefing Schedule). The Order also established a 
briefing schedule ``if the Government files a motion based on 
timeliness of the hearing request and/or a motion for summary 
disposition based on its allegation that the Respondent lacks state 
authority to handle controlled substances.'' Id. at 1-2.
    By submission dated July 28, 2017, Respondent, by his counsel, 
submitted an ``Order to Show Cause Waiver of Hearing and Statement on 
the Matter.'' GX 7. According to that submission, Respondent's counsel 
stated that Respondent was served with the Show Cause Order on June 20, 
2017. GX 7, at 1. He also stated that Respondent was waiving a hearing 
on the Show Cause Order. Id. Further, the submission admitted that the 
Maryland State Board of Physicians issued an Order of Summary 
Suspension of Respondent's license to practice medicine, characterizing 
the Order as being ``based on alleged but unproven charges.'' Id. It 
expressed ``our fervent belief that the Respondent shall prevail in 
this matter and his Medical license reinstated.'' Id. It asked that 
``the DEA suspend the revocation'' of Respondent's registration 
``pending the restoration of the Medical license to save the Respondent 
the inconvenience, trauma and the lengthy process of reapplication of 
this same license.'' Id.
    By Order dated August 2, 2017, the Chief Administrative Law Judge 
terminated the proceedings based on Respondent's ``Order to Show Cause 
Waiver of Hearing and Statement on the Matter.'' GX 8, at 1 (Order 
Terminating Proceedings).
    On August 2, 2017, the Government submitted a Request for Final 
Agency Action and an evidentiary record to support the Show Cause 
Order's allegation.
    I find that the Government's service of the Show Cause Order on 
Respondent was legally sufficient. I find that, by letter from his 
counsel dated July 17, 2017, Respondent requested a hearing. I find 
that, by submission of his counsel dated July 28, 2017, Respondent 
sought to file an ``Order to Show Cause Waiver of Hearing and Statement 
on the Matter.'' Respondent was entitled to waive his right to a 
hearing and to fail to follow up on his request for a hearing. See 21 
CFR 1301.43(d). DEA regulations, however, limit the time for Respondent 
to exercise his right to submit a written statement of position to 
``the period permitted for filing a request for a hearing or a notice 
of appearance,'' absent a showing of good cause. 21 CFR 1301.43(c). 
Respondent's ``Statement on the Matter'' was not filed within the 
period specified in the regulation, and Respondent did not make a 
showing of good cause to excuse the untimeliness. I decline, therefore, 
to consider any factual assertions or arguments that Respondent raised 
in the ``Statement on the Matter.'' \1\ I issue this Decision and Order 
based on the record submitted by the Government and on Respondent's 
request for a hearing. 21 CFR 1301.43(e).
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    \1\ Respondent's ``Statement on the Matter'' did not claim that 
Respondent's medical license had been reinstated. To the contrary, 
it reiterated Respondent's admission that the Maryland State Board 
of Physicians issued an Order of Summary Suspension of Respondent's 
medical license.
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Findings of Fact

Respondent's DEA Registration

    Respondent currently holds DEA practitioner registration AS2145476 
authorizing him to dispense controlled substances in schedules II 
through V at the address of Westside Medical Group, 4419 Falls Road, 
Suite C, Baltimore, Maryland 21211. GX 1, at 1; GX 2. This registration 
expires on February 29, 2020. Id.

[[Page 56993]]

The Status of Respondent's State License

    On May 9, 2017, the Executive Director of the Maryland State Board 
of Physicians signed a 34-page Order summarily suspending Respondent's 
license to practice medicine. GX 3. The Order of Summary Suspension 
discussed numerous complaints against Respondent, including complaints 
about Respondent's controlled substance prescribing practices, the 
conclusions of an independent peer review agency that Respondent did 
not meet quality standards for pain medicine, and allegations 
concerning Respondent's unprofessional conduct. Id. The Order of 
Summary Suspension concluded that Respondent acted unprofessionally in 
his pain medicine practice, among other areas, and determined that the 
public health, safety, or welfare imperatively required the emergency 
action of the suspension of Respondent's medical license. Id. at 31-32. 
The terms of the Order of Summary Suspension included the requirement 
that Respondent surrender his original Maryland license D26832 and his 
current license renewal certificate. Id. at 33.
    On July 11, 2017, the DEA Diversion Investigator assigned to the 
investigation of Respondent (hereinafter, DI) signed a Declaration. GX 
4. In that Declaration, the DI stated that Respondent's license to 
practice medicine in Maryland was suspended effective May 9, 2017 and 
that Respondent ``currently has no authority to practice medicine in 
Maryland.'' Id. at 1.
    Respondent's hearing request admitted that the Maryland State Board 
of Physicians summarily suspended Respondent's Maryland medical 
license. GX 5, at 1. Respondent did not submit any evidence that his 
Maryland medical license was reinstated. Respondent, thus, admitted 
that he currently is not authorized to practice medicine in Maryland.
    Accordingly, I find that Respondent currently is without authority 
to engage in the practice of medicine in Maryland, the State in which 
he is registered.

Discussion

    Pursuant to 21 U.S.C. 824(a)(3), the Attorney General is authorized 
to suspend or revoke a registration issued under section 823 of the 
Controlled Substances Act (hereinafter, CSA), ``upon a finding that the 
registrant . . . has had his State License or registration suspended 
[or] revoked by competent State authority and is no longer authorized 
by State law to engage in the . . . dispensing of controlled 
substances.'' With respect to a practitioner, the DEA has also long 
held that the possession of authority to dispense controlled substances 
under the laws of the State in which a practitioner engages in 
professional practice is a fundamental condition for obtaining and 
maintaining a practitioner's registration. See, e.g., James L. Hooper, 
M.D., 76 FR 71,371 (2011), pet. for rev. denied, 481 Fed. Appx. 826 
(4th Cir. 2012); Frederick Marsh Blanton, M.D., 43 FR 27,616, 27,617 
(1978).
    This rule derives from the text of two provisions of the CSA. 
First, Congress defined the term `` `practitioner' [to] mean[ ] a 
physician . . . or other person licensed, registered, or otherwise 
permitted, by . . . the jurisdiction in which he practices . . ., to 
distribute, dispense, . . . [or] administer . . . a controlled 
substance in the course of professional practice.'' 21 U.S.C. 802(21). 
Second, in setting the requirements for obtaining a practitioner's 
registration, Congress directed that ``[t]he Attorney General shall 
register practitioners . . . if the applicant is authorized to dispense 
. . . controlled substances under the laws of the State in which he 
practices.'' 21 U.S.C. 823(f). Because Congress has clearly mandated 
that a practitioner possess State authority in order to be deemed a 
practitioner under the CSA, the DEA has held repeatedly that revocation 
of a practitioner's registration is the appropriate sanction whenever 
he is no longer authorized to dispense controlled substances under the 
laws of the State in which he practices. See, e.g., Hooper, supra, 76 
FR at 71,371-72; Sheran Arden Yeates, M.D., 71 FR 39,130, 39,131 
(2006); Dominick A. Ricci, M.D., 58 FR 51,104, 51,105 (1993); Bobby 
Watts, 53 FR 11,919, 11,920 (1988); Blanton, supra, 43 FR at 27,617.
    According to Maryland Department of Health regulations, a 
``prescription for a controlled dangerous substance may be issued only 
by an individual practitioner who is . . . [a]uthorized to prescribe 
controlled dangerous substances in the State of Maryland, in which the 
practitioner is licensed to practice the practitioner's profession.'' 
MD Code Regs. 10.19.03.07B(1)(a) (2017). The Maryland Department of 
Health regulations define an ``individual practitioner'' to be a 
``physician . . . or other individual licensed, registered, or 
otherwise permitted by . . . the jurisdiction in which the individual 
practitioner practices, to dispense a controlled dangerous substance in 
the course of professional practice.'' MD Code Regs. 10.19.03.02C(7)(a) 
(2017). Under Maryland law, a ``physician'' is ``an individual who 
practices medicine,'' and a ``licensed physician'' is a physician ``who 
is licensed by the Board [of Physicians] to practice medicine.'' West's 
MD Code Ann., Health Occupations, Sec.  14-101(m) and (i) (2017). 
Further, in Maryland, to ``practice medicine'' means ``to engage . . . 
in medical (i) Diagnosis; (ii) Healing; (iii) Treatment; or (iv) 
Surgery.'' Id. at Sec.  14-101(o)(1)(i-iv). Thus, in Maryland, a 
physician may be authorized to dispense controlled substances only if 
he is licensed to practice medicine.
    In this case, the Maryland State Board of Physicians suspended 
Respondent's license to practice medicine. Consequently, Respondent is 
not currently eligible to handle controlled substances in the State of 
Maryland, the State in which he is registered with the Agency and, 
therefore, he is not entitled to maintain his DEA registration. Hooper, 
supra; Blanton, supra. Accordingly, I will order that Respondent's 
registration be revoked and that any pending application for the 
renewal or modification of his registration be denied. 21 U.S.C. 
824(a)(3).

Order

    Pursuant to the authority vested in me by 21 U.S.C. 824(a), as well 
as 28 CFR 0.100(b), I order that DEA Certificate of Registration 
AS2145476 issued to Kofi E. Shaw-Taylor, M.D., be, and it hereby is, 
revoked. I further order that any pending application of Kofi E. Shaw-
Taylor, M.D., to renew or modify this registration, as well as any 
other pending application by him for registration in the State of 
Maryland, be, and it hereby is, denied. This order is effective 
immediately.\2\
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    \2\ For the same reasons the Maryland State Board of Physicians 
of the Maryland Department of Health and Mental Hygiene suspended 
Respondent's Maryland Medical License summarily, I find that the 
public interest necessitates that this Order be effective 
immediately. 21 CFR 1316.67.

    Dated: November 20, 2017.
Robert W. Patterson,
Acting Administrator.
[FR Doc. 2017-25922 Filed 11-30-17; 8:45 am]
 BILLING CODE 4410-09-P