[Federal Register Volume 84, Number 183 (Friday, September 20, 2019)]
[Notices]
[Pages 49552-49555]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-20420]
-----------------------------------------------------------------------
DEPARTMENT OF JUSTICE
Drug Enforcement Administration
[Docket No. 2019-10]
John Yolman Salinas, M.D.; Decision and Order
On December 18, 2018, the Assistant Administrator, Diversion
Control Division, Drug Enforcement Administration (hereinafter, DEA or
[[Page 49553]]
Government), issued an Order to Show Cause to John Yolman Salinas,
M.D., (hereinafter, Respondent), of Atlanta, Georgia. Order to Show
Cause (hereinafter, OSC), at 1. The OSC proposes the revocation of
Respondent's Certificate of Registration No. BS4014332 on the ground
that Respondent does not have ``state authority to handle controlled
substances'' in Georgia, the state in which Respondent is registered
with the DEA. Id. (citing 21 U.S.C. 824(a)(3)).
The substantive ground for the proceeding, as alleged in the OSC,
is that Respondent has ``no state authority to handle controlled
substances.'' OSC, at 1. Specifically, the OSC alleges that the Georgia
Composite Medical Board (hereinafter, GCMB) issued a Final Decision
revoking Respondent's medical license on September 21, 2018. Id. This
Georgia medical license revocation, according to the OSC, means that
Respondent is ``currently without authority to handle controlled
substances in the State of Georgia'' and, ``[c]onsequently, DEA must
revoke . . . [Respondent's] DEA registration.'' Id.
The OSC notified Respondent of the right to request a hearing on
the allegations or to submit a written statement, while waiving the
right to a hearing, the procedures for electing each option, and the
consequences for failing to elect either option. Id. at 2 (citing 21
CFR 1301.43). The OSC also notified Respondent of the opportunity to
submit a corrective action plan. OSC, at 2-3 (citing 21 U.S.C.
824(c)(2)(C)).
By a document entitled ``Request for Hearing'' submitted on January
16, 2019, Respondent timely requested a hearing.\1\ According to the
Hearing Request, Respondent ``is interested in continuing the practice
of medicine in another state or Territory of the United States . . .
and thus maintaining his DEA Registration active.'' Hearing Request, at
1. Respondent's Hearing Request states that he ``is not handling any
medications or drugs of ANY sort'' and ``has NEVER had any DEA
violations or complaint to the present date.'' Id. (emphases in
original).
---------------------------------------------------------------------------
\1\ The OSC is dated December 18, 2018. The Hearing Request was
emailed on January 16, 2019. As such, I find that the Government's
service of the OSC was adequate and that Respondent's request for a
hearing was timely.
---------------------------------------------------------------------------
Respondent attached a ``Corrective Action Plan'' (hereinafter, CAP)
to his Request for Hearing. Id. at 3. The CAP states, among other
things, that the ``Georgia Medical Board did NOT find any violations
against . . . [Respondent] of medication errors or standard of care
issues.'' Id. (emphasis in original). It states that Respondent ``is
NOT currently practicing medicine in any form . . . [and] wishes to
continue the practice of medicine for which he trained for over a 24
years career.'' Id. (emphasis in original). Respondent's first proposed
CAP concerns his ``having submitted current applications for medical
licensure in several States and U.S. Territories . . . . On procurement
of an active state medical license, the DEA Registration will be
transferred to the active State licensed.'' Id. Respondent's second
proposed CAP concerns Respondent's expressed interest in ``actively
applying for a position within the DEA with the hopes of procuring a
position as an undercover physician to infiltrate pill mills and help
in the war against drugs.'' \2\ Id.
---------------------------------------------------------------------------
\2\ Respondent's second proposed CAP ``further requests any
assistance from any DEA personnel in procurement of such a
position.'' Hearing Request, at 3.
---------------------------------------------------------------------------
By letter dated January 30, 2019, the Assistant Administrator of
the Diversion Control Division ``den[ied] the request to discontinue or
defer administrative proceedings'' and stated that ``there is no
potential modification of . . . [Respondent's proposed CAP] that could
or would alter my decision in this regard.'' Assistant Administrator
CAP Letter, at 1.
The Office of Administrative Law Judges put the matter on the
docket and assigned it to the Chief Administrative Law Judge. The
matter was subsequently reassigned to Administrative Law Judge Mark M.
Dowd (hereinafter, ALJ). The Government timely complied with the
``Order Directing the Filing of Government Evidence Regarding its Lack
of State Authority Allegation and Briefing Schedule'' by filing a
Motion for Summary Disposition on January 28, 2019 (hereinafter,
Government Motion). In its motion, the Government stated that
Respondent lacks authority to handle controlled substances in Georgia
because of the revocation of his Georgia medical license. Government
Motion, at 3. ``Because Respondent does not have state authority to
prescribe, administer, or dispense controlled substances in the State
of Georgia,'' the Government Motion continued, ``he is not entitled to
hold a DEA registration.'' Id.
Respondent requested, and received, an additional ten business days
to respond to the Government Motion.\3\ Motion for Extension of Time to
Respond to Governments [sic] Motion for Summary Disposition dated
January 31, 2019, at 1; Order Granting the Respondent's Request for
Extension of Time dated February 4, 2019, at 1-2. According to the
ALJ's ``Order Granting the Government's Motion for Summary Disposition
and Recommended Rulings, Findings of Fact, Conclusions of Law, and
Decision of the Administrative Law Judge'' dated February 21, 2019
(hereinafter, RD), ``[t]o date, the Respondent has not filed any reply
to the Government's allegations.'' RD, at 3. After the ALJ issued the
RD, Respondent filed a ``Motion for Reconsideration and Clarification
of Decision of Administrative Law Judge'' dated February 22, 2019
(hereinafter, RMRC). The ALJ construed the RMRC to be a motion for
leave to file an out of time response to the Government Motion and gave
the Government the opportunity to respond to it. The Government timely
opposed the RMRC on procedural and substantive grounds. The ALJ denied
the RMRC. Order Denying Respondent's Motion to File an Out of Time
Response and Reaffirming the Recommended Order Granting the
Government's Motion for Summary Disposition dated March 19, 2019
(hereinafter, RRD), at 5. Although the ALJ denied the RMRC, he
addressed its substance in the RRD. RRD, at 4-5.\4\
---------------------------------------------------------------------------
\3\ The ALJ denied Respondent's request for an extension of
forty-five days. Respondent stated that the bases for his request
were pending applications for medical licensure in Guam and
Mississippi. Respondent suggested that forty-five days would give
those jurisdictions time to act on his applications and ``thus make
moot the Administrative Law Court Summary Disposition.''
Respondent's Motion for Extension of Time to Respond to Governments
[sic] Motion for Summary Disposition dated January 31, 2019, at 2. I
agree with the ALJ's denial of Respondent's request for an extension
of forty-five days. The issue presented in the OSC concerns
Respondent's registration in Georgia, not his applications for
medical licensure in Guam or Mississippi.
\4\ I agree with the ALJ's procedural disposition of the RMRC.
---------------------------------------------------------------------------
The ALJ, in both the RD and the RRD, recommended that
``Respondent's registration be revoked, and any pending applications be
denied'' because ``no dispute exists over the fact that the Respondent
currently lacks state authority to handle controlled substances in the
state of Georgia because the . . . [GCMB] has revoked his medical
license.'' RD, at 7-8. By letter dated March 19, 2019, the ALJ
certified and transmitted the record to me.
I issue this Decision and Order based on the entire record before
me. 21 CFR 1301.43(e). I make the following findings of fact.
Findings of Fact
Respondent's DEA Registration
Respondent is the holder of DEA Certificate of Registration No.
BS4014332 at the registered address of 3069 Amwiler Rd., Suite Two,
Atlanta,
[[Page 49554]]
GA 30360. Government Motion, Exh. 1, at 1. Pursuant to this
registration, Respondent is authorized to dispense controlled
substances in schedules II through V as a practitioner. Id.
Respondent's registration expires on February 28, 2021, and is ``in an
active pending status.'' Id.
The Status of Respondent's State License
On June 18, 2018, an Administrative Law Judge at the Georgia Office
of State Administrative Hearings (hereinafter, Georgia ALJ) issued her
Initial Decision concerning a matter initiated by the GCMB to sanction
Respondent's medical license. Government Motion, Exh. 2, at 1.
According to the Initial Decision, a ``board certified family practice
physician with 39 years' experience'' completed a peer review of
Respondent's treatment and care of two individuals at the request of
the GCMB. Id. at 12.
Regarding the first individual, the peer reviewer opined that
Respondent's treatment fell below the standard of care when he (1)
treated the individual as a patient when they were engaged in a sexual
relationship; (2) failed to maintain medical records to support his
prescription of medications, including controlled substances; (3)
failed to maintain a medical record to support the ordering of a breast
ultrasound and diagnostic mammogram; (4) failed to maintain a medical
record when making a ``lumbago'' diagnosis; and (5) failed to use
proper history, physical, laboratory tests, and radiological procedures
to make a diagnosis. Id. at 12-13.
As to the other individual, the peer reviewer opined that
Respondent's treatment fell below the standard of care when he (1)
performed a gynecological examination without a female chaperone
present; (2) had sexual relations with the individual after performing
a gynecological examination; (3) failed to put a date on the purported
record of the injections he gave the individual and the individual's
subsequent reaction; and (4) failed to perform a gynecological
examination, pap smear, and mammogram before purportedly administering
an initial injection of Depo-Provera. Id. at 21-22.
The Georgia ALJ concluded that the GCMB established by a
preponderance of the evidence that Respondent (1) knowingly made
misleading, deceptive, untrue, or fraudulent representations in the
practice of his profession in a purported medical record and to the
GCMB; (2) indicated untrustworthiness and engaged in conduct
discrediting the medical profession by his acts and omissions; (3)
failed to conform to the minimum standards of acceptable and prevailing
medical practice; (4) mistreated both individuals; and (5) failed to
timely respond to an investigative subpoena issued by the GCMB. Id. at
24-26, 28-29. She found that Respondent ``was cavalier in prescribing
medications, including controlled substances . . . [and] did not
document any objective data to justify the prescriptions. Id. at 31.
The Georgia ALJ concluded that Respondent's conduct with regard to the
two individuals was ``egregious'' and ``reprehensible,'' making
revocation the appropriate sanction. Id. Thus, she revoked Respondent's
medical license. Id.
On September 21, 2018, the GCMB issued a Final Decision
(hereinafter, Final Decision). The Final Decision adopted the Findings
of Fact and Conclusions of Law set forth in the Initial Decision and
revoked Respondent's medical license No. 38600, effective upon
docketing. Government Motion, Exh. 3, at 2. The GCMB also denied
Respondent's Motion for Rehearing after finding that Respondent had not
demonstrated that (1) the GCMB overlooked any material fact,
controlling authority, or intervening change in controlling authority;
(2) the GCMB or the Georgia ALJ made a clear error; (3) there was a
manifest injustice; or (4) the legal authority was erroneously
construed or misapplied. Order Denying Rehearing dated November 8,
2018, Government Motion, Exh. 4, at 5.
According to Georgia's online records, of which I take official
notice, Respondent's license is still revoked.\5\ GCMB Search for a
Licensee, https://gcmb.mylicense.com/verification (last visited
September 9, 2019).
---------------------------------------------------------------------------
\5\ Under the Administrative Procedure Act, an agency ``may take
official notice of facts at any stage in a proceeding--even in the
final decision.'' United States Department of Justice, Attorney
General's Manual on the Administrative Procedure Act 80 (1947) (Wm.
W. Gaunt & Sons, Inc., Reprint 1979). Pursuant to 5 U.S.C. 556(e),
``[w]hen an agency decision rests on official notice of a material
fact not appearing in the evidence in the record, a party is
entitled, on timely request, to an opportunity to show the
contrary.'' Accordingly, Respondent may dispute my finding by filing
a properly supported motion for reconsideration within 15 calendar
days of the date of this Order. Any such motion shall be filed with
the Office of the Administrator and a copy shall be served on the
Government. In the event Respondent files a motion, the Government
shall have 15 calendar days to file a response.
---------------------------------------------------------------------------
Accordingly, I find that Respondent currently is not licensed to
practice medicine in Georgia, the state in which he is registered with
the DEA.
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 71371 (2011), pet. for rev. denied, 481 Fed. Appx. 826 (4th
Cir. 2012); Frederick Marsh Blanton, M.D., 43 FR 27616, 27617 (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 71371-72; Sheran Arden Yeates, M.D., 71 FR 39130, 39131 (2006);
Dominick A. Ricci, M.D., 58 FR 51104, 51,105 (1993); Bobby Watts, M.D.,
53 FR 11919, 11920 (1988); Blanton, supra, 43 FR at 27617.
According to Georgia statute, ``Every person who . . . dispenses
any controlled substances within this state . . . must obtain annually
a registration issued by the State Board of Pharmacy.'' Ga. Code Ann.
Sec. 16-13.35(a) (Westlaw, current through acts passed during the 2019
Session of the General Assembly).
[[Page 49555]]
A person who is licensed as a physician, however, is ``registered'' and
exempt from the statute's registration fee and application
requirements. Ga. Code Ann. Sec. 16-13-35(g)(2) (Westlaw, current
through acts passed during the 2019 Session of the General Assembly).
The Georgia Code defines ``physician'' as ``a person licensed to
practice medicine.'' Ga. Code Ann. Sec. 43-34-21(2) (Westlaw, current
through acts passed during the 2019 Session of the General Assembly).
Under Georgia law, ``to practice medicine'' includes ``attaching the
title `M.D.' . . . to one's name, indicating that such person is
engaged in the treatment or diagnosis of disease, defects, or injuries
to human beings.'' Ga. Code Ann. Sec. 43-34-21(3) (Westlaw, current
through acts passed during the 2019 Session of the General Assembly).
Here, the undisputed evidence in the record, including Respondent's
admission, is that Respondent currently lacks authority to practice
medicine in Georgia. Government Motion, Exhs. 2-4; RMRC, at 2. As
already discussed, a ``physician,'' under Georgia law, is a person
licensed to practice medicine. Further, under Georgia law, a
``physician'' is registered to dispense controlled substances. Because
Respondent lacks authority to practice medicine in Georgia, he is not
registered to handle controlled substances in Georgia according to
Georgia law. Accordingly, Respondent is not eligible to maintain a DEA
registration and I will order that Respondent's DEA registration be
revoked.\6\
---------------------------------------------------------------------------
\6\ Given my findings that Respondent is registered with the DEA
in Georgia, that his Georgia medical license is revoked, and that he
lacks authority in Georgia to dispense controlled substances, I find
that both of Respondent's CAPs--changing his registered address to
another state or a Territory of the United States, and ``procuring a
position as an undercover physician to infiltrate pill mills and
help in the war against drugs''--provide no basis for me to
discontinue or defer this proceeding. 21 U.S.C. 824(c)(3).
---------------------------------------------------------------------------
Order
Pursuant to 28 CFR 0.100(b) and the authority vested in me by 21
U.S.C. 824(a), I hereby revoke DEA Certificate of Registration No.
BS4014332 issued to John Yolman Salinas, M.D. Pursuant to 28 CFR
0.100(b) and the authority vested in me by 21 U.S.C. 823(f), I hereby
deny any pending application of John Yolman Salinas to renew or to
modify this registration, and any pending application of John Yolman
Salinas to be registered in the state of Georgia. This Order is
effective October 21, 2019.
Dated: September 9, 2019.
Uttam Dhillon,
Acting Administrator.
[FR Doc. 2019-20420 Filed 9-19-19; 8:45 am]
BILLING CODE 4410-09-P