Waleed Khan, M.D.; Decision and Order, 79052-79054 [2016-27117]
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found that ‘‘it is undisputed that the
Respondent lacks state authorization to
handle controlled substances in
Colorado,’’ where he is registered. Id. at
3.
The ALJ further rejected Respondent’s
contention that the case is not ripe
because he is the subject of two pending
criminal cases in Colorado. Id. As the
ALJ explained, because Respondent’s
medical license has been revoked, the
case was not dependent ‘‘on future
events that may not occur’’ and
‘‘present[s] a concrete case or
controversy.’’ Id. at 3–4 (citing Thomas
v. Union Carbide Agric. Prod. Co., 473
U.S. 568, 579 (1985); Texas v. United
States, 523 U.S. 296, 300 (1998)). The
ALJ further noted that ‘‘these
proceedings are independent from
Colorado’s criminal proceedings and
any factual findings made therein’’ and
that ‘‘ ‘[i]t is not DEA’s policy to stay
proceedings . . . while registrants
litigate in other forums.’ ’’ Id. at 4
(quoting Newcare Home Health Servs.,
72 FR 42126, 42127 n.2 (2007)) (other
citations omitted). Finally, the ALJ
rejected Respondent’s argument that the
Board’s action in revoking his license
‘‘was arbitrary [and] capricious, an
abuse of discretion and contrary to
law,’’ as being a collateral attack on the
state proceedings. Id. As the ALJ
explained, ‘‘a registrant’s challenges to
the validity of a state action must be
litigated in the forums provided by the
state.’’ Id. (citing Zhiwei Lin, 77 FR
18862, 18864 (2012); also citing Kristen
Lee Raines, 81 FR 14890, 14891–92
(2016)).
The ALJ also declined to consider
Respondent’s CAP, reasoning that he
‘‘does not have the statutory authority to
evaluate it.’’ Id. The ALJ further
explained that ‘‘[t]he Administrator will
consider the Respondent’s corrective
action plan.’’ Id. (citing 21 U.S.C.
824(a)(3)).
On August 3, 2016, the Deputy
Assistant Administrator rejected
Respondent’s CAP. Letter from Deputy
Assistant Administrator Louis J. Milione
to Respondent. The Deputy Assistant
Administrator further explained that he
had ‘‘determined [that] there is no
potential modification of [it] that could
or would alter [his] decision.’’ Id.
Neither party filed exceptions to the
ALJ’s decision. Thereafter, on August
23, 2016, the ALJ forwarded the
recorded to me for Final Agency Action.
Having considered the record in its
entirety, I adopt the ALJ’s factual
finding that Respondent’s medical
license has been revoked and his legal
conclusion that he does not hold
authority under Colorado law to
dispense controlled substances and is
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therefore not entitled to maintain his
registration.4 I also adopt the ALJ’s
ruling that Respondent was not entitled
to appointed counsel, his ruling
rejecting Respondent’s claim that this
proceeding is not ripe for adjudication
and his ruling rejecting Respondent’s
challenge to the lawfulness of the State
Board proceedings.
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
practices . . . to distribute, dispense,
[or] administer . . . a controlled
substance in the course of professional
practice’’); id. § 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); see also 21 U.S.C.
824(a)(3). Thus, it is of no consequence
that Respondent has sought judicial
review of the Board’s action. See Fiaz
Afsal, 79 FR 61651, 61655 (2014) (citing
Calvin Ramsey, 76 FR 20034, 20036
(2011) (citing Michael G. Dolin, 65 FR
5661, 5662 (2000))). Rather, ‘‘[u]nder the
CSA, all that matters is that Respondent
is no longer currently authorized to
dispense controlled substances in’’
Colorado, the State in which he is
registered. Afsal, 79 FR at 61655.
As for Respondent’s CAP, I conclude
that there are adequate grounds for
denying it. Specifically, while
Respondent maintains that he holds a
Wyoming medical license and this
‘‘license establishes [his] continued
4I
further find that Respondent’s registration does
not expire until October 31, 2017. See Mot. for
Summ. Disp., at Appendix A.
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eligibility to hold’’ his registration, the
online records of the Wyoming Board
(of which I take official notice) show
that this license has been suspended.5
Accordingly, Respondent is not eligible
to be registered in Wyoming and I
therefore reject his CAP. 21 U.S.C.
802(21), 823(f).
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. BH2378025 issued to
Thomas Horiagon, M.D., be, and it
hereby is, revoked. I further order that
any pending application of Thomas
Horiagon, M.D., to renew or modify this
registration, be, and it hereby is, denied.
This Order is effective December 12,
2016.
Dated: November 2, 2016.
Chuck Rosenberg,
Acting Administrator.
[FR Doc. 2016–27116 Filed 11–9–16; 8:45 am]
BILLING CODE 4410–09–P
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
5 Respondent may refute this finding by filing a
properly supported motion with my Office no later
than fifteen (15) calendar days from the date of this
Order. See 5 U.S.C. 556(e).
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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
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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.
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
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.
PO 00000
Frm 00087
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79053
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 postdeprivation 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
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practices . . . to distribute, dispense,
[or] administer . . . a controlled
substance in the course of professional
practice’’); id. § 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
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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
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).
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
Dated: October 28, 2016.
Chuck Rosenberg,
Acting Administrator.
[FR Doc. 2016–27117 Filed 11–9–16; 8:45 am]
BILLING CODE 4410–09–P
NATIONAL FOUNDATION ON THE
ARTS AND THE HUMANITIES
National Endowment for the Arts
Arts Advisory Panel Meetings
National Endowment for the
Arts, National Foundation on the Arts
and Humanities.
ACTION: Notice of meetings.
AGENCY:
Pursuant to the Federal
Advisory Committee Act, as amended,
notice is hereby given that 27 meetings
of the Arts Advisory Panel to the
SUMMARY:
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).
4 Respondent’s registration does not expire until
December 31, 2018. Mot. for Summ. Disp., at
Appendix A.
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.
PO 00000
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National Council on the Arts will be
held by teleconference.
DATES: All meetings are Eastern time
and ending times are approximate:
Arts Education (review of
applications): This meeting will be
closed.
Date and time: December 1, 2016;
1:30 p.m. to 3:30 p.m.
Arts Education (review of
applications): This meeting will be
closed.
Date and time: December 6, 2016;
1:30 p.m. to 3:30 p.m.
Dance (review of applications): This
meeting will be closed.
Date and time: December 6, 2016;
12:00 p.m. to 2:00 p.m.
Dance (review of applications): This
meeting will be closed.
Date and time: December 6, 2016;
3:00 p.m. to 5:00 p.m.
Museums (review of applications):
This meeting will be closed.
Date and time: December 6, 2016;
11:30 a.m. to 1:30 p.m.
Museums (review of applications):
This meeting will be closed.
Date and time: December 6, 2016;
2:30 p.m. to 4:30 p.m.
Presenting and Multidisciplinary
Works (review of applications): This
meeting will be closed.
Date and time: December 6, 2016;
2:00 p.m. to 4:00 p.m.
Dance (review of applications): This
meeting will be closed.
Date and time: December 7, 2016;
12:00 p.m. to 2:00 p.m.
Literature (review of applications):
This meeting will be closed.
Date and time: December 7, 2016;
3:00 p.m. to 5:00 p.m.
Museums (review of applications):
This meeting will be closed.
Date and time: December 7, 2016;
11:30 a.m. to 1:30 p.m.
Museums (review of applications):
This meeting will be closed.
Date and time: December 7, 2016;
2:30 p.m. to 4:30 p.m.
Presenting and Multidisciplinary
Works (review of applications): This
meeting will be closed.
Date and time: December 7, 2016;
2:00 p.m. to 4:00 p.m.
Arts Education (review of
applications): This meeting will be
closed.
Date and time: December 8, 2016;
11:00 a.m. to 1:00 p.m.
Literature (review of applications):
This meeting will be closed.
Date and time: December 8, 2016;
3:00 p.m. to 5:00 p.m.
Media Arts (review of applications):
This meeting will be closed.
Date and time: December 8, 2016;
11:30 a.m. to 1:30 p.m.
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]]>Agencies
[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.
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\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.
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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\
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\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).
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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).
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\4\ Respondent's registration does not expire until December 31,
2018. Mot. for Summ. Disp., at Appendix A.
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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\
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\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
