[Federal Register Volume 88, Number 155 (Monday, August 14, 2023)]
[Notices]
[Pages 55076-55077]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-17391]


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

DEPARTMENT OF JUSTICE

Drug Enforcement Administration

[Docket No. 23-23]


Yogeshwar Gill, M.D.; Decision and Order

    On December 19, 2022, the Drug Enforcement Administration (DEA or 
Government) issued an Order to Show Cause (OSC) to Yogeshwar Gill, M.D. 
(Respondent). OSC, at 1, 3. The OSC proposed the revocation of 
Respondent's registration \1\ because Respondent is ``without authority 
to handle controlled substances in the State of Tennessee, the state in 
which [he is] registered with DEA.'' Id. at 2 (citing 21 U.S.C. 
824(a)(3)).
---------------------------------------------------------------------------

    \1\ Certificate of Registration No. FG1060603 at the registered 
address of 1034 McArthur Street, Manchester, Tennessee 37355. Id. at 
1.
---------------------------------------------------------------------------

    Respondent timely \2\ requested a hearing; thereafter, the 
Government filed and the CALJ granted a Motion for Summary Disposition 
recommending the revocation of Respondent's registration. RD, at 9-10. 
Respondent did not timely file exceptions to the RD.\3\ Having reviewed 
the entire record, the Agency adopts and hereby incorporates by 
reference the entirety of the CALJ's rulings, findings of fact, 
conclusions of law, and recommended sanction and summarizes and expands 
upon portions thereof herein.
---------------------------------------------------------------------------

    \2\ Respondent's Request for Hearing is dated February 17, 2023, 
see Request for Hearing, at 1, but was deemed filed on February 21, 
2023. The Government asserted that Respondent's Request for Hearing 
was untimely. Govt Termination Motion dated February 24, 2023, at 1-
2. Ultimately, the Chief Administrative Law Judge (CALJ) found, and 
the Agency agrees, that ``resolution of this matter is not 
imperative to issue a recommended decision'' and ``assumed, without 
deciding[,] that the service ambiguity raised by the Respondent 
either adjust[ed] the OSC service date to render the [Request for 
Hearing] timely, or supplie[d] sufficient good cause to consider a 
late-filed [Request for Hearing].'' 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 (Recommended Decision or RD), at 4-5.
    \3\ On April 28, 2023, after the deadline to file exceptions 
passed and the CALJ certified the record to the Administrator, 
Respondent submitted a pleading entitled ``Motion to Alter and 
Amend'' (Respondent's Motion). See 21 CFR 1316.66(a), 1316.67. 
Respondent's Motion requests that the CALJ ``amend his ruling and 
merely order an ongoing suspension until the [underlying state] case 
is heard on its merits.'' Respondent's Motion, at 1, 4. As such, 
Respondent's Motion appears to be an untimely attempt to file 
exceptions to the RD. Further, even if Respondent's Motion had been 
timely submitted, it merely reiterates arguments raised by 
Respondent in earlier filings that were addressed by the CALJ. See 
RD, at 8-9; see also infra at n.5. Accordingly, the Agency finds 
Respondent's Motion to be unpersuasive.
---------------------------------------------------------------------------

Findings of Fact

    On May 25, 2022, the Tennessee Board of Medical Examiners issued an 
Order of Summary Suspension that suspended Respondent's Tennessee 
medical license. RD, at 7; see also Government's Notice of Filing of 
Evidence and Motion for Summary Disposition, Exhibit 1, Attachment A, 
at 1, 6-7. According to Tennessee online records, of which the Agency 
takes official notice, Respondent's restricted Tennessee medical 
license expired on

[[Page 55077]]

August 31, 2022.\4\ Tennessee Department of Health License 
Verification, https://apps.health.tn.gov/licensure (last visited date 
of signature of this Order). Accordingly, the Agency finds that 
Respondent is not licensed to practice medicine in Tennessee, the state 
in which he is registered with the DEA.
---------------------------------------------------------------------------

    \4\ 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 the Agency's finding 
by filing a properly supported motion for reconsideration of 
findings of fact within fifteen calendar days of the date of this 
Order. Any such motion and response shall be filed and served by 
email to the other party and to Office of the Administrator, Drug 
Enforcement Administration at [email protected].
---------------------------------------------------------------------------

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 (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 F. App'x 826 (4th 
Cir. 2012); Frederick Marsh Blanton, M.D., 43 FR 27616, 27617 
(1978).\5\
---------------------------------------------------------------------------

    \5\ 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(g)(1) (this 
section, formerly section 823(f), was redesignated as part of the 
Medical Marijuana and Cannabidiol Research Expansion Act, Pub. L. 
117-215, 136 Stat. 2257 (2022)). 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., James L. Hooper, 76 FR 71371-72; Sheran Arden Yeates, M.D., 71 
FR 39130, 39131 (2006); Dominick A. Ricci, M.D., 58 FR 51104, 51105 
(1993); Bobby Watts, M.D., 53 FR 11919, 11920 (1988); Frederick 
Marsh Blanton, 43 FR 27617. Moreover, because ``the controlling 
question'' in a proceeding brought under 21 U.S.C. 824(a)(3) is 
whether the holder of a practitioner's registration ``is currently 
authorized to handle controlled substances in the [S]tate,'' Hooper, 
76 FR 71371 (quoting Anne Lazar Thorn, 62 FR 12847, 12848 (1997)), 
the Agency has also long held that revocation is warranted even 
where a practitioner is still challenging the underlying action. 
Bourne Pharmacy, 72 FR 18273, 18274 (2007); Wingfield Drugs, 52 FR 
27070, 27071 (1987). Thus, it is of no consequence that Respondent 
is still challenging the underlying action here, see Respondent's 
Answer, at 2-3; see also Respondent's Supplemental Response, at 5-6. 
What is consequential is the Agency's finding that Respondent is not 
currently authorized to dispense controlled substances in Tennessee, 
the state in which he is registered with DEA.
---------------------------------------------------------------------------

    According to Tennessee statute, ``dispense'' means ``to deliver a 
controlled substance to an ultimate user or research subject by or 
pursuant to the lawful order of a practitioner, including the 
prescribing, administering, packaging, labeling, or compounding 
necessary to prepare the substance for that delivery.'' Tenn. Code Ann. 
section 39-17-402(7) (2023). Further, a ``practitioner'' means ``a 
physician . . . or other person licensed, registered or otherwise 
permitted to distribute, dispense, conduct research with respect to or 
to administer a controlled substance in the course of professional 
practice or research in this state.'' Id. at section 39-17-402(23)(A).
    Here, the undisputed evidence in the record is that Respondent 
lacks authority to practice medicine in Tennessee. RD, at 7. As 
discussed above, a physician must be a licensed practitioner to 
dispense a controlled substance in Tennessee. Thus, because Respondent 
lacks authority to practice medicine in Tennessee and, therefore, is 
not authorized to handle controlled substances in Tennessee, Respondent 
is not eligible to maintain a DEA registration. RD, at 9. Accordingly, 
the Agency orders that Respondent's DEA registration be revoked.

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. 
FG1060603 issued to Yogeshwar Gill, M.D. Further, pursuant to 28 CFR 
0.100(b) and the authority vested in me by 21 U.S.C. 823(g)(1), I 
hereby deny any pending applications of Yogeshwar Gill, M.D., to renew 
or modify this registration, as well as any other pending application 
of Yogeshwar Gill, M.D., for additional registration in Tennessee. This 
Order is effective September 13, 2023.

Signing Authority

    This document of the Drug Enforcement Administration was signed on 
August 7, 2023, by Administrator Anne Milgram. That document with the 
original signature and date is maintained by DEA. For administrative 
purposes only, and in compliance with requirements of the Office of the 
Federal Register, the undersigned DEA Federal Register Liaison Officer 
has been authorized to sign and submit the document in electronic 
format for publication, as an official document of DEA. This 
administrative process in no way alters the legal effect of this 
document upon publication in the Federal Register.

Heather Achbach,
Federal Register Liaison Officer, Drug Enforcement Administration.
[FR Doc. 2023-17391 Filed 8-11-23; 8:45 am]
BILLING CODE 4410-09-P