[Federal Register Volume 90, Number 121 (Thursday, June 26, 2025)]
[Notices]
[Pages 27341-27343]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2025-11729]
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DEPARTMENT OF JUSTICE
Drug Enforcement Administration
Bohdan Olesnicky, M.D.; Decision and Order
On November 13, 2024, the Drug Enforcement Administration (DEA or
Government) issued an Order to Show Cause (OSC) to Bohdan Olesnicky,
M.D., of Indian Wells, California (Registrant). Request for Final
Agency Action (RFAA), Exhibit (RFAAX) 1, at 1, 4. The OSC proposed the
revocation of Registrant's Certificate of Registration No. FO0628391,
alleging that Registrant's registration should be revoked because
Registrant is ``currently without authority to handle controlled
substances in the State of California, the state in which [he is]
registered with DEA.'' Id. at 2 (citing 21 U.S.C. 824(a)(3)).
The OSC notified Registrant of his right to file a written request
for hearing, and that if he failed to file such a
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request, he would be deemed to have waived his right to a hearing and
be in default. Id. at 2-3 (citing 21 CFR 1301.43). Here, Registrant did
not request a hearing. RFAA, at 4.\1\ ``A default, unless excused,
shall be deemed to constitute a waiver of the registrant's/applicant's
right to a hearing and an admission of the factual allegations of the
[OSC].'' 21 CFR 1301.43(e).
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\1\ Based on the Government's submissions in its RFAA dated
February 26, 2025, the Agency finds that service of the OSC on
Registrant was adequate. The included declaration from a DEA
Diversion Investigator (DI) indicates that on November 15, 2024, the
DI attempted to serve Registrant the OSC at his ``mail to'' address
and left a copy of the OSC at that location. RFAAX 2, at 2. On
November 20, 2024, the DI emailed a copy of the OSC to Registrant's
registered email address and the email was not returned. Id. On the
same date, the DI mailed copies of the OSC via certified mail to
Registrant's ``mail to'' address and address of record with the
Medical Board of California. Id. The copy of the OSC sent to
Registrant's ``mail-to'' address was returned as ``unclaimed.'' Id.
Finally, on November 27, 2024, the DI mailed a copy of the OSC to
Registrant's ``mail to'' address via First-Class mail. Id. at 3.
Here, the Agency finds that the DI's efforts to serve Registrant
were ```reasonably calculated, under all the circumstances, to
apprise [Registrant] of the pendency of the action.''' Jones v.
Flowers, 547 U.S. 220, 226 (2006) (quoting Mullane v. Central
Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950)). Therefore, due
process notice requirements have been satisfied.
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Further, ``[i]n the event that a registrant . . . is deemed to be
in default . . . DEA may then file a request for final agency action
with the Administrator, along with a record to support its request. In
such circumstances, the Administrator may enter a default final order
pursuant to [21 CFR] 1316.67.'' Id. at 1301.43(f)(1). Here, the
Government has requested final agency action based on Registrant's
default pursuant to 21 CFR 1301.43(a), (c), (f), 1301.46. RFAA, at 1;
see also 21 CFR 1316.67.
Findings of Fact
The Agency finds that, in light of Registrant's default, the
factual allegations in the OSC are deemed admitted. According to the
OSC, on December 5, 2023, Registrant surrendered his California
physician's and surgeon's license. RFAAX 1, at 1. According to
California online records, of which the Agency takes official
notice,\2\ Registrant's California medical license has a primary status
of ``License Surrendered.'' California DCA License Search, https://search.dca.ca.gov (last visited date of signature of this Order).
Accordingly, the Agency finds that Registrant is not licensed to
practice medicine in California, the state in which he is registered
with DEA.\3\
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\2\ 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).
\3\ 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.'' The material fact here is
that Registrant, as of the date of this decision, is not licensed to
practice medicine in California. Accordingly, Registrant 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 the DEA Office of the
Administrator, Drug Enforcement Administration, at
[email protected].
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Discussion
Pursuant to 21 U.S.C. 824(a)(3), the Attorney General is authorized
to suspend or revoke a registration issued under 21 U.S.C. 823 ``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, 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.
Gonzales v. Oregon, 546 U.S. 243, 270 (2006) (``The Attorney General
can register a physician to dispense controlled substances `if the
applicant is authorized to dispense . . . controlled substances under
the laws of the State in which he practices.' . . . The very definition
of a `practitioner' eligible to prescribe includes physicians
`licensed, registered, or otherwise permitted, by the United States or
the jurisdiction in which he practices' to dispense controlled
substances. Sec. 802(21).''). The Agency has applied these principles
consistently. See, e.g., James L. Hooper, M.D., 76 FR 71,371, 71,372
(2011), pet. for rev. denied, 481 F. App'x 826 (4th Cir. 2012);
Frederick Marsh Blanton, M.D., 43 FR 27,616, 27,617 (1978).\4\
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\4\ This rule derives from the text of two provisions of the
Controlled Substances Act (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). Because Congress has clearly mandated that a
practitioner possess state authority in order to be deemed a
practitioner under the CSA, 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, M.D., 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, M.D., 53 FR 11,919, 11,920
(1988); Frederick Marsh Blanton, M.D., 43 FR at 27,617.
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According to California 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, furnishing, packaging, labeling, or compounding necessary
to prepare the substance for that delivery.'' Cal. Health & Safety Code
Sec. 11010 (West 2024). Further, a ``practitioner'' means a person
``licensed, registered, or otherwise permitted, to distribute,
dispense, conduct research with respect to, or administer, a controlled
substance in the course of professional practice or research in [the]
state.'' Id. at Sec. 11026(c).
Here, the undisputed evidence in the record is that Registrant
currently lacks authority to practice medicine in California. As
discussed above, a physician must be a licensed practitioner to
dispense a controlled substance in California. Thus, because Registrant
currently lacks authority to practice medicine in California and,
therefore, is not currently authorized to handle controlled substances
in California, Registrant is not eligible to maintain a DEA
registration. Accordingly, the Agency will order that Registrant'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.
FO0628391 issued to Bohdan Olesnicky, 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 Bohdan Olesnicky, M.D., to
renew or modify this registration, as well as any other pending
application of Bohdan Olesnicky, M.D., for additional registration in
California. This Order is effective July 28, 2025.
Signing Authority
This document of the Drug Enforcement Administration was signed on
June 20, 2025, by Acting Administrator Robert J. Murphy. That document
with the original signature and date is maintained by DEA. For
administrative purposes only, and in compliance with requirements of
the
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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.
Gregory Aul,
Federal Register Liaison Officer, Drug Enforcement Administration.
[FR Doc. 2025-11729 Filed 6-25-25; 8:45 am]
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