[Federal Register Volume 77, Number 97 (Friday, May 18, 2012)]
[Notices]
[Pages 29694-29696]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-12121]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration

[Docket No. 12-19]


Richard H. NG, D.O.; Decision and Order

    On December 23, 2011, Administrative Law Judge (ALJ) Timothy D. 
Wing issued the attached recommended decision. Neither party filed 
exceptions to the decision. Having reviewed the entire record, I have 
decided to adopt the ALJ's rulings, findings of fact, conclusions of 
law, and recommended Order.
    To make clear, DEA's longstanding rule that a practitioner may not 
hold a registration if he lacks authority under state law to dispense 
controlled substances and that the loss of such authority subjects a 
practitioner's registration to revocation is not based solely on 21 
U.S.C. 824(a)(3), which is a grant of authority to either suspend or 
revoke a registration ``upon a finding'' that a 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.'' As explained 
in numerous cases, DEA's rule derives primarily from two other 
provisions of the CSA, 21 U.S.C. 802(21), which defines the term 
``practitioner,'' and 21 U.S.C. 823(f), which sets forth the 
requirements for obtaining a registration as a practitioner.
    More specifically, the CSA defines ``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). 
Consistent with this definition, Congress, in setting the requirements 
for obtaining a practitioner's registration, provided 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). Accordingly, 
because one cannot obtain a practitioner's registration unless one 
holds authority under state law to dispense controlled substances, and 
because where a

[[Page 29695]]

registered practitioner's state authority has been revoked or 
suspended, the practitioner no longer meets the statutory definition of 
a practitioner, DEA has repeatedly 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 both obtaining and maintaining a 
practitioner's registration. See ALJ at 4 (citing cases).\1\ So too, 
``revocation is warranted even where a practitioner's state authority 
has been summarily suspended and the State has yet to provide the 
practitioner with a hearing to challenge the State's action at which he 
may ultimately prevail.'' Kamal Tiwari, M.D., 76 FR 71604, 71606 
(2011); see also Bourne Pharmacy, Inc., 72 FR 18273, 18274 (2007); Anne 
Lazar Thorn, 62 FR 12847 (1997). Accordingly, I adopt the ALJ's 
recommended order.
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    \1\ This citation is to the slip opinion as issued by the ALJ.
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Order

    Pursuant to the authority vested in me by 21 U.S.C. 823(f) and 
824(a), as well as 28 CFR 0.100(b), I order that DEA Certificate of 
Registration AN1255733, issued to Richard H. Ng, D.O., be, and it 
hereby is, revoked. I further order that any pending application of 
Richard H. Ng, D.O., to renew or modify his registration, be, and it 
hereby is, denied. This Order is effective immediately.\2\
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    \2\ The suspension order of the Illinois Department of Financial 
and Professional Regulation found that ``the public interest, safety 
and welfare imperatively require emergency action'' and that 
``Respondent's actions constitute an imminent danger to the 
public.'' Department of Fin. & Prof. Reg. v. Richard H. Ng, D.O., 
No. 2011-08881 (Ill. Dep't of Fin. & Prof. Reg. Oct. 25, 2011) 
(order imposing temporary suspension). Accordingly, I likewise 
conclude that the public interest necessitates that this order be 
effective immediately. See 21 CFR 1316.67.

    Dated: May 4, 2012.
Michele M. Leonhart,
Administrator.
Jonathan P. Novak, Esq., for the Government
Glen D. Crick, Esq., Lillian Walanka, Esq.,
Michael D. Monico, Esq., Jacqueline Jacobson, Esq., for the Respondent

Recommended Ruling, Findings of Fact, Conclusions of Law and Decision 
of the Administrative Law Judge

    Timothy D. Wing, Administrative Law Judge. This proceeding is an 
adjudication governed by the Administrative Procedure Act, 5 U.S.C. 551 
et seq., to determine whether a practitioner's Certificate of 
Registration (COR) with the Drug Enforcement Administration (DEA, 
Government or Agency) should be revoked. Without this registration, 
Richard H. Ng, D.O. (Respondent) would be unable to lawfully possess, 
prescribe, dispense or otherwise handle controlled substances.

I. Procedural Posture

    On November 18, 2011, the Deputy Assistant Administrator, DEA, 
issued an Order to Show Cause (OSC) to Respondent. The OCS provided 
notice to Respondent of an opportunity to show cause as to why the DEA 
should not revoke Respondent's DEA COR AN1255733, pursuant to 21 U.S.C. 
824(a)(3)-(4) and 823(f), alleging that Respondent's continued 
registration is inconsistent with the public interest, as that term is 
used in 21 U.S.C. 823(f), and that Respondent's medical license in the 
State of Illinois has been suspended.
    On December 20, 2011, I issued an Order for Statements Addressing 
Respondent's State Authority and Order for Prehearing Statements 
(Order).
    On December 20, 2011, the Government filed a Motion for Summary 
Disposition. On December 21, 2011, I stayed the proceedings pending 
resolution of the Government's motion. On December 22, 2011, Respondent 
filed a Motion in Opposition to DEA's Motion for Summary Disposition.

II. The Parties' Contentions

A. The Government

    In support of its Motion for Summary Disposition, the Government 
asserts that on October 25, 2011, the Illinois Department of Financial 
and Professional Regulation (IDFPR) executed an order summarily 
suspending Respondent's medical license, effective immediately. (Gov't 
Mot. Summ. Disp. at 1.) The Government contends that such state 
authority is a necessary condition for maintaining a DEA COR and, 
therefore, asks that I grant its motion and forward the matter to the 
Administrator.\1\ (Id. at 1-2.) In support of its motion, the 
Government cites Agency precedent and attaches the Notice of Temporary 
Suspension and Order entered by the IDFPR as Exhibit A.
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    \1\ The OSC provides Respondent with an opportunity to show 
cause ``as to why DEA should not revoke'' Respondent's DEA COR. (OSC 
at 1.) The OSC then factually alleges that Respondent's DEA COR 
``expired by its terms on October 31, 2011,'' and that Respondent 
filed a timely request to renew his registration. (Id.) The 
Government requests that I ``forward the matter to the Administrator 
for a Final Order with a recommendation that Respondent's DEA 
application for registration be denied.'' (Gov't Mot. Summ. Disp. at 
2.) For purposes of this Recommended Decision, I will treat the 
Government's request as one to revoke Respondent's DEA COR and deny 
any pending applications for renewal or modification.
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B. Respondent

    Although Respondent concedes that his ``Illinois Controlled 
Substances Registration is presently in suspended status,'' he argues 
that the suspension is temporary in nature pending an evidentiary 
hearing before the IDFPR. (Resp't Mot. in Opp'n at 1.) Respondent notes 
that an evidentiary hearing will be scheduled ``in the very near 
future,'' and he believes that his license will be restored to active 
status. (Id. at 1-2.) In support of his motion, Respondent cites Stuart 
A. Bergman, M.D., 70 Fed. Reg. 33,193 (DEA 2005), and argues that the 
facts of this case similarly warrant a delay in ruling on the 
Government's motion until after the conclusion of the evidentiary 
hearing before the IDFPR. (Id. at 2.)

III. Discussion

    At issue is whether Respondent may maintain his DEA COR given that 
Illinois, the State in which Respondent maintains his DEA COR, has 
suspended Respondent's Physician and Surgeon License and Controlled 
Substance License.
    Under 21 U.S.C. 824(a)(3), a practitioner's loss of state authority 
to engage in the practice of medicine and to handle controlled 
substances is grounds to revoke a practitioner's registration. 
Accordingly, this Agency has consistently held that a person may not 
hold a DEA registration if he is without appropriate authority under 
the laws of the state in which he does business. See Scott Sandarg, 
D.M.D., 74 FR 17,528 (DEA 2009); David W. Wang, M.D., 72 FR 54,297 (DEA 
2007); Sheran Arden Yeates, M.D., 71 FR 39,130 (DEA 2006); Dominick A. 
Ricci, M.D., 58 FR 51,104 (DEA 1993); Bobby Watts M.D., 53 FR 11,919 
(DEA 1988).
    Summary disposition in a DEA revocation case is warranted even if 
the period of suspension of a respondent's state medical license is 
temporary, or even if there is the potential for reinstatement of state 
authority because ``revocation is also appropriate when a state license 
had been suspended, but with the possibility of future reinstatement.'' 
Bergman, 70 FR at 33,193; Roger A. Rodriguez, M.D., 70 FR 33,206 (DEA 
2005).
    It is well-settled that when no question of fact is involved, or 
when the material facts are agreed upon, a plenary, adversarial 
administrative proceeding is not required, under the rationale that 
Congress does not intend administrative agencies to perform meaningless 
tasks. See Layfe Robert

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Anthony, M.D., 67 FR 35,582 (DEA 2002); Michael G. Dolin, M.D., 65 FR 
5661 (DEA 2000); see also Philip E. Kirk, M.D., 48 FR 32,887 (DEA 
1983), aff'd sub nom. Kirk v. Mullen, 749 F.2d 297 (6th Cir. 1984). 
Accord Puerto Rico Aqueduct & Sewer Auth. v. EPA, 35 F.3d 600, 605 (1st 
Cir. 1994).
    In the instant case, the Government asserts, and Respondent 
concedes, that Respondent's Illinois license to practice medicine and 
handle controlled substances is suspended. This allegation is confirmed 
by Government Exhibit A. I therefore find there is no genuine dispute 
as to any material fact, and that substantial evidence shows that 
Respondent is presently without state authority to handle controlled 
substances in Illinois. I decline to delay ruling on the Government's 
motion, particularly in light of the fact that Respondent does not 
appear to have a scheduled hearing date before the IDFPR. Compare 
Bergman, 70 FR at 33,193 (noting that the ALJ delayed ruling on the 
Government's motion where the respondent had an evidentiary hearing 
scheduled before the state board). Because ``DEA does not have 
statutory authority under the Controlled Substances Act to maintain a 
registration if the registrant is without state authority to handle 
controlled substances in the state in which he practices,'' Sheran 
Arden Yeates, M.D., 71 FR 39,130, 39,131 (DEA 2006), I conclude that 
summary disposition is appropriate. It is therefore
    Ordered that the hearing in this case, scheduled to commence on 
March 6, 2012, is hereby cancelled; and it is further
    Ordered that all proceedings before the undersigned are stayed 
pending the Agency's issuance of a final order.

Recommended Decision

    I grant the Government's Motion for Summary Disposition and 
recommend that Respondent's DEA COR AN1255733 be revoked and any 
pending applications for renewal or modification be denied.\2\
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    \2\ Notably, Respondent requests that I recommend the immediate 
suspension of his registration, rather than revocation, citing 21 
U.S.C. 824(a)(4). (Resp't Mot. in Opp'n at 3.)

    Dated: December 23, 2011.
Timothy D. Wing,
Administrative Law Judge.
[FR Doc. 2012-12121 Filed 5-17-12; 8:45 am]
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