[Federal Register Volume 81, Number 218 (Thursday, November 10, 2016)]
[Notices]
[Pages 79052-79054]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-27117]


-----------------------------------------------------------------------

DEPARTMENT OF JUSTICE

Drug Enforcement Administration

[Docket No. 16-23]


Waleed Khan, M.D.; Decision and Order

    On April 12, 2016, the Deputy Assistant Administrator, of the then 
Office of Diversion Control, Drug Enforcement Administration, issued an 
Order to Show Cause to Waleed Khan, M.D. (hereinafter, Respondent). The 
Show Cause Order proposed the revocation of Respondent's DEA 
Certificate of Registration FK3499058, pursuant to which he is 
authorized to dispense controlled substances in schedules II through V 
as a practitioner, on the ground that he does not have authority to 
dispense controlled substances in Texas, the State in which he is 
registered with the Agency. Show Cause Order, at 1. See also 21 U.S.C. 
824(a)(3).
    The Show Cause Order specifically alleged that Respondent is 
registered as a practitioner, with authority to dispense schedule II 
through V controlled substances, at the registered address of 5101 
Avenue H, Suite 23, Rosenberg, Texas, and that his registration does 
not expire until December 31, 2018. Show Cause Order, at 1. The Show 
Cause Order then

[[Page 79053]]

alleged that ``[t]he Texas Medical Board issued an order, effective 
March 11, 2016, which suspended [Respondent's] authority to practice 
Medicine'' and that he is ``without authority to handle controlled 
substances in Texas, the [S]tate in which [he is] registered with the'' 
Agency. Id. Based on Respondent's lack of state authority, the Order 
asserted that Respondent's registration is subject to revocation. Id. 
The Order further advised Respondent of his right to request a hearing 
on the allegations or to submit a written statement of position on the 
matters of fact and law at issue, the procedure for electing either 
option, and the consequence of failing to elect either option. Id. at 
2.
    On May 12, 2016, Respondent, through his counsel, timely requested 
a hearing. The matter was placed on the docket of the Office of 
Administrative Law Judges and assigned to Administrative Law Judge 
Charles Wm. Dorman (hereinafter, ALJ). Thereafter, the ALJ ordered the 
Government to submit evidence to support the allegation as well as an 
accompanying motion for summary disposition by May 20, 2016; in the 
event the Government filed such a motion, the ALJ ordered Respondent to 
file his reply no later than May 27, 2016. Briefing Schedule for Lack 
of State Authority Allegations, at 1.
    On May 17, 2016, the Government filed its motion; as support for 
the motion, the Government attached a copy of the Texas Medical Board's 
(hereinafter, Board or TMB) Order of Temporary Suspension (Without 
Notice of Hearing), pursuant to which the Board's Disciplinary Panel 
found that ``Respondent's continued practice of medicine would 
constitute a continuing threat to the public welfare.'' Appendix B to 
Mot. for Summ. Disp., Order of Temporary Suspension, at 6 (Tex. Med. 
Bd. Mar. 11, 2016). The Board thus ordered the temporary suspension of 
Respondent's medical license, effective on the date of the Order. Id. 
at 6-7. Based on the Agency's longstanding interpretation that under 
the Controlled Substances Act, 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, the Government argued that revocation of Respondent's 
registration is warranted. Mot. for Summ. Disp., at 3-4. The Government 
also argued that under Agency precedent, revocation is warranted even 
where a State Board has summarily suspended a practitioner's state 
authority and the State has yet to provide the practitioner with a 
hearing to challenge the State's action. Id. at 4.
    Respondent opposed the Government's motion. While Respondent did 
not dispute that the Board has temporarily suspended his medical 
license, he argues that ``it is clear that the action of the Texas 
Medical Board . . . was based on an investigation conducted by DEA'' 
and that his ``registration should not be revoked by summary 
disposition where the underlying state action was triggered solely by 
the DEA, and [he] has been afforded no opportunity to be heard `at a 
meaningful time and in a meaningful manner.' '' Resp. Opp., at 5 
(quoting Mathews v. Eldridge, 424 U.S. 319, 333 (1976)).\1\ Respondent 
also noted that the Texas Department of Public Safety had not revoked 
his state controlled substance registration. Id. at 2.
---------------------------------------------------------------------------

    \1\ As support for his contention that the Medical Board's 
action was based on the DEA's investigation, Respondent cites to the 
transcript of the proceeding conducted by the Disciplinary Panel 
when it issued the Temporary Suspension Order. Specifically, 
Respondent asserts that the transcript shows that ``TMB employees 
first met with Houston DEA before entering the premises,'' that 
``the DEA secured the premises,'' and ``the affidavits for the 
Search . . . and Arrest Warrant[s] were made out by . . . a police 
officer assigned to the DEA Houston . . . Tactical Diversion 
Squad.'' Resp. Opp. at 5-6.
     In his Opposition, Respondent also argued that his registration 
is consistent with the public interest. Id. at 7-9. However, the 
sole ground on which the Government seeks revocation is Respondent's 
lack of state authority. Because the loss of state authority 
provides an independent and adequate ground for revoking 
Respondent's registration, I do not address whether Respondent's 
registration is consistent with the public interest.
     Respondent also challenges the Government's motion arguing that 
the latter is attempting to moot his case. Respondent bases his 
argument on the Government's purported statement that ```when no 
question of fact is involved, or when the material facts are agreed 
upon, an adversarial proceeding is not required.''' Opp. at 6 
(citing Mot. for Summ. Disp., at 2). The actual rule is that a 
plenary hearing (i.e., a trial type hearing) is not required when 
the material facts are not in dispute. See NLRB v. International 
Ass'n of Bridge Structural and Ornamental Ironworkers, 549 F.2d 634, 
639 (9th Cir. 1977); see also Rezik A. Saqer, 81 FR 22122, 22124 
(citing cases). Putting aside that Respondent was allowed to file an 
opposition to the Government's motion (thus rendering this an 
adversarial proceeding), the proposition recited by the Government 
is not an argument for mootness, but rather, for the resolvability 
of this matter on summary disposition.
---------------------------------------------------------------------------

    The ALJ granted the Government's motion. Order Granting Summary 
Judgment and Recommended Rulings, Findings of Fact, Conclusions of Law, 
and Decision, at 4 (hereinafter, R.D.). The ALJ noted that ``[t]o 
maintain a DEA registration, a practitioner must be currently 
authorized to handle controlled substances in the jurisdiction in which 
[he] is registered.'' Id. at 3 (citing 21 U.S.C. 802(21) and 823(f)). 
Reasoning that ``the disposition of the Government's Motion depends 
only on whether the Respondent possesses state authority to handle 
controlled substances'' and finding it ``undisputed that [he] lacks 
state authorization to handle controlled substances in Texas,'' the 
State in which he holds his registration, the ALJ held that Respondent 
was not entitled to maintain his registration. Id. at 3-4. The ALJ thus 
recommended that Respondent's registration be revoked. Id. at 4.
    I adopt the ALJ's recommended order. While in his Opposition, 
Respondent asserted that the Texas Department of Public Safety had not 
revoked his state controlled substances registration, Opp. at 2, and 
the Government presented no evidence as to the status of his state 
registration, Respondent subsequently acknowledged that he ``does not 
possess valid authority to handle controlled substances in the 
jurisdiction in which he is registered.'' Id. at 7-8. However, based on 
the Board's resort to post-deprivation process in suspending his 
registration, Respondent raises two challenges to the revocation of his 
registration.
    First, Respondent argues that because the Board's suspension of his 
license was based on the DEA investigation and he has not had has ``an 
opportunity to be heard `at a meaningful time and in a meaningful 
manner' under the Texas statutory scheme,'' the Agency's use of 
``summary disposition in this instance would be a mistake.'' Id. at 6-
7. Second, in discussing factor one of the public interest standard, 
Respondent offers an argument which is, in essence, a fleshing-out of 
his due process claim. Specifically, he argues that because the ``TMB 
relied almost exclusively on the DEA to suspend his state authority,'' 
and the TMB's Order ``offers little insight with regard to its own 
factual findings'' and he ``was given no notice of the proceeding out 
of which the Order issued[] and . . . has not . . . had an opportunity 
to address findings or their underlying allegations in a contest case 
hearing,'' the Board's findings and actions ``do not significantly 
weigh for or against [him] with regard to the temporary suspension.'' 
Id. at 8.
    While it is true that Respondent's state license was suspended 
prior to the TMB's providing him with a hearing, as the ALJ explained, 
the Controlled Substances Act requires that a practitioner possess 
state authority to dispense controlled substances in order to maintain 
his registration. R.D. at 3; see also 21 U.S.C. 802(21) (defining ``the 
term `practitioner' [to] mean[] a . . . physician . . . or other person 
licensed, registered or otherwise permitted, by . . . the jurisdiction 
in which he

[[Page 79054]]

practices . . . to distribute, dispense, [or] administer . . . a 
controlled substance in the course of professional practice''); id. 
Sec.  823(f) (``The Attorney General shall register practitioners . . . 
if the applicant is authorized to dispense . . . controlled substances 
under the laws of the State in which he practices.''). Because Congress 
has clearly mandated that a physician possess state authority in order 
to be deemed a practitioner under the Act, DEA has long held 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 medicine. See 
Frederick Marsh Blanton, M.D., 43 FR 27616, 27617 (1978); see also 
Hooper v. Holder, 481 Fed. Appx. 826, 828 (4th Cir. 2012); Calvin 
Ramsey, 76 FR 20034, 20036 (2011); Sheran Arden Yeates, M.D., 71 FR 
39130, 39131 (2006); Dominick A. Ricci, 58 FR 51104, 51105 (1993); 
Bobby Watts, 53 FR 11919, 11920 (1988). And because the CSA makes clear 
that a practitioner must possess state authority to maintain his 
registration, ``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, 76 FR 71604, 71606 
(2011); see also Bourne Pharmacy, Inc., 72 FR 18273, 18274 (2007); Anne 
Lazar Thorn, 62 FR 12847 (1997).
    As for Respondent's due process challenge based on the Board's use 
of an ex parte procedure in issuing the Order of Temporary Suspension, 
the Order specifically provided that ``[a] hearing on the Application 
for Temporary suspension (WITH NOTICE) will hereby be scheduled before 
a Disciplinary Panel of the Board at a date to be determined as soon as 
practicable . . . unless such hearing is specifically waived by 
Respondent.'' Order of Temporary Suspension, at 7. Whether Respondent 
availed himself of his right to a hearing to challenge the Suspension 
Order is not disclosed by the record. DEA, however, presumes that the 
Board's procedures provide Respondent with a constitutionally adequate 
means of challenging the Suspension Order. Cf. Gonzales v. Oregon, 546 
U.S. 243, 270 (2006) (``The structure and operation of the CSA presume 
and rely upon a functioning medical profession regulated under the 
States' police powers.''); see also Gary Alfred Shearer, 78 FR 19009 
(2013). Because in this proceeding, Respondent was provided with the 
opportunity to challenge the only fact which is material for the 
disposition of this proceeding--whether he currently holds authority 
under Texas law to dispense controlled substances \2\--the Agency's 
procedures provided him with due process.\3\
---------------------------------------------------------------------------

    \2\ Since the ALJ's ruling, Respondent has not submitted any 
evidence to the Agency showing that the Board's suspension is no 
longer in effect.
    \3\ As for Respondent's contention that his lack of state 
authority should not be given weight under the public interest 
standard, the Government did not seek revocation based upon a 
finding that he committed acts which render his registration 
inconsistent with the public interest. Show Cause Order, at 1. 
Rather, the Government sought revocation solely based upon a finding 
that Respondent's state license had been suspended and he is no 
longer authorized to dispense controlled substances. Id. (citing 21 
U.S.C. 824(a)(3)). The latter is an independent and adequate ground 
for revocation. See 21 U.S.C. 824(a).
---------------------------------------------------------------------------

    Accordingly, because Respondent is without authority under Texas 
law to dispense controlled substances, I will adopt the ALJ's 
recommendation that I revoke his registration.\4\ See 21 U.S.C. 
824(a)(3).
---------------------------------------------------------------------------

    \4\ Respondent's registration does not expire until December 31, 
2018. Mot. for Summ. Disp., at Appendix A.
---------------------------------------------------------------------------

Order

    Pursuant to the authority vested in me by 21 U.S.C. 824(a)(3) and 
28 CFR 0.100(b), I order that DEA Certificate of Registration No. 
FK3499058 issued to Waleed Khan, M.D., be, and it hereby is, revoked. I 
further order that any application of Waleed Khan, M.D., to renew or 
modify said registration be, and it hereby is, denied. This Order is 
effective immediately.\5\
---------------------------------------------------------------------------

    \5\ For the same reasons that led the Medical Board to order the 
emergency suspension of Respondent's medical license, I concluded 
that the public interest necessitates that this Order be effective 
immediately. 21 CFR 1316.67.

    Dated: October 28, 2016.
Chuck Rosenberg,
Acting Administrator.
[FR Doc. 2016-27117 Filed 11-9-16; 8:45 am]
 BILLING CODE 4410-09-P