Binh M. Chung, M.D.; Decision and Order, 40601-40602 [2017-18081]

Agencies

• Drug Enforcement Administration
• Department of Justice

[Federal Register Volume 82, Number 164 (Friday, August 25, 2017)]
[Notices]
[Pages 40601-40602]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-18081]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration


Binh M. Chung, M.D.; Decision and Order

    On June 29, 2017, the Acting Assistant Administrator, Diversion 
Control Division, issued an Order to Show Cause to Binh M. Chung, M.D. 
(hereinafter, Registrant), of Las Vegas, Nevada. The Show Cause Order 
proposed the revocation of Registrant's Certificate of Registration and 
the denial of any pending application to renew his registration or for 
a new registration, on the grounds that: (1) He ``ha[s] been convicted 
of a felony relating to a controlled substance''; (2) he ``do[es] not 
have authority to handle controlled substances in . . . Nevada, the 
[S]tate in which [he is] registered''; and (3) he ``ha[s] committed 
acts which render [his] registration inconsistent with the public 
interest.'' GX 2, at 1 (citing 21 U.S.C. 824(a)(2), (3), & (4)).
    With respect to the Agency's jurisdiction, the Show Cause Order 
alleged that Registrant holds Certificate of Registration No. 
BC9308936, which ``is valid for Drug Schedules II-V,'' at the address 
of ``8785 Warm Springs Rd.[,] Suite 109, Las Vegas, NV.'' Id. The Order 
also alleged that his registration ``expires . . . on August 31, 
2017.'' Id.
    As to the substantive grounds for the proceeding, the Show Cause 
Order alleged that ``[o]n May 22, 2017, [Registrant was] found guilty 
of engaging in a scheme related to [his] administering ketamine to 
sedate patients and then raping them in [his] medical office.'' Id. The 
Order alleged that Registrant was found guilty in state court of 
``multiple sexual assault counts and multiple counts of the 
administering of a controlled substance to aid in the commission of a 
felony.'' Id. The Order then asserted that ``[t]his constitutes a 
conviction related to controlled substances under 21 U.S.C. 824(a)(2)'' 
and ``acts which are inconsistent with the public interest.'' Id. 
(citing 21 U.S.C. 824(a)(4) & 823(f)(5)).
    The Show Cause Order further alleged that on June 23, 2015, 
Registrant's medical license ``was summarily suspended'' by the Nevada 
Board of Medical Examiners and that he ``currently lack[s] authority to 
handle controlled substances in Nevada, the [S]tate in which [he is] 
registered with the'' Agency. Id. The Order thus asserted that 
Registrant's ``lack of authority to handle controlled substances in 
Nevada is a separate and independent ground to revoke [his] 
registration.'' Id. (citing 21 U.S.C. 802(21) and 824(a)(3)).
    The Show Cause Order notified Registrant of his right to request a 
hearing on the allegations or to submit a written statement while 
waiving his right to a hearing, the procedure for electing either 
option, and the consequence of failing to elect either option. Id. at 
2-3 (citing 21 CFR 1301.43). Finally, the Show Cause Order notified 
Registrant of his right to submit a Corrective Action Plan. Id. at 3 
(citing 21 U.S.C. 824(c)(2)(C)).
    On June 29, 2017, a DEA Diversion Investigator personally served 
the Show Cause Order on Registrant who was then incarcerated at the 
Clark County Detention Center, Las Vegas, Nevada. GX 3, at 2. According 
to the Government, as of August 15, 2017, Registrant had not requested 
a hearing nor submitted a written statement in lieu of requesting a 
hearing. Supplemental Request for Final Agency Action, at 2; see also 
Supplemental Declaration of Diversion Investigator, at 1. The 
Government further represents that Registrant has not submitted a 
Corrective Action Plan. See Supplemental Request for Final Agency 
Action, at 2; see also Supplemental Declaration of Diversion 
Investigator, at 1-2.
    On July 31, 2017, the Government submitted a Request for Final 
Agency Action (RFAA) and an investigative record, and on August 16, 
2017, it submitted a Supplemental Request for Final Agency Action. 
Therein, the Government seeks revocation of Registrant's registration 
pursuant to each of the three grounds set forth above.
    Based on the Government's submission, I find that more than 30 days 
have now passed since the Show Cause Order was served on Registrant, 
and that neither Registrant, nor anyone purporting to represent him, 
has requested a hearing on the allegations or submitted a written 
statement in lieu of hearing. I therefore find that Registrant has 
waived his right to request a hearing or to submit a written statement 
and issue this Decision and Order based on relevant evidence in the 
investigative record. See 21 CFR 1301.43(d) & (e). Having reviewed the 
record, I conclude that the Government is entitled to relief only on 
the loss of state authority ground. I make the following factual 
findings.

Findings

    Registrant is the holder of DEA Certificate of Registration No. 
BC9308936, pursuant to which he is authorized to dispense controlled 
substances in schedules II through V as a practitioner, at the 
registered address of 8785 W. Warmsprings Rd., Suite 109, Las Vegas, 
Nevada. GX 1. This Registration expires on August 31, 2017. Id.
    Registrant also holds a medical license issued by the Nevada State 
Board of Medical Examiners. GX 3B (Order of Summary Suspension & Notice 
of Hearing). However, on June 23, 2015, the Board's Investigative 
Committee immediately suspended his medical license based on 
``preliminary findings'' that Registrant ``injected a minor female 
[patient] with a medication that caused her to become groggy'' and 
proceeded ``to abuse her.'' Id. at 2. While the Board's Order set a 
hearing for July 27, 2015 ``to determine whether [the] suspension may 
continue,'' according to the Board's Web site, of which I take official 
notice, see 5 U.S.C. 556(e), the suspension remains in effect as of the 
date of this Order. I therefore find that Registrant is not currently 
authorized to dispense controlled substances under the laws of Nevada.
    On May 2, 2017, a Third Amended Indictment was issued in the 
criminal proceeding brought by the State of Nevada against Registrant. 
GX 3A, at 1. The indictment charged Registrant with, inter alia, four 
counts of sexual assault; one count of battery with intent to commit a 
sexual assault; one count of attempted sexual assault; and four counts 
of administering controlled substances including ketamine and/or 
midazolam, to aid in the commission of a felony (sexual assault and/or 
a kidnapping). Id. at 2-5. On May 22, 2017, following a trial, a jury 
found

[[Page 40602]]

Registrant guilty of each of the counts set forth above with the 
exception of one count of administering controlled substances to aid in 
the commission of a felony. Id. at 9 (verdict form). The Government did 
not, however, submit a judgment of conviction, and it is unclear as to 
whether a judgment of conviction has been entered by the state court.

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, ``upon a 
finding that the Registrant . . . has had his State license . . . 
suspended [or] revoked . . . by competent State authority and is no 
longer authorized by State law to engage in the . . . dispensing of 
controlled substances.'' Moreover, DEA has held repeatedly 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, 76 FR 71371 
(2011), pet. for rev. denied, 481 Fed Appx. 826 (4th Cir. 2012).
    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 physician possess state authority in order to be deemed a 
practitioner under the Act, DEA has 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, e.g., 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 Hooper v. Holder, 481 Fed. 
Appx. at 828.
    Also, because the CSA makes clear 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 both obtaining and maintaining a practitioner's 
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 a result of the Nevada Board's June 2015 Order of Summary 
Suspension, Registrant is not currently authorized to dispense 
controlled substances in Nevada, the State in which he is registered. 
Accordingly, I will order that his registration be revoked and that any 
pending application to renew his registration, or for any other 
registration in the State of Nevada be denied.\1\
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    \1\ While the Government also sought revocation on the ground 
that Registrant has been convicted of an offense related to 
controlled substances, it produced evidence only as to the existence 
of a jury verdict and not the existence of a judgment of conviction. 
The Agency has previously noted that the term ``conviction'' could 
mean either ``a judgment of conviction or simply a finding of guilty 
which precedes the entry of a final judgment of conviction.'' Roger 
A. Pellman, 76 FR 17704, 17709 n.10 (citing Deal v. United States, 
508 U.S. 129, 131 (1993)). The Government, however, makes no 
argument as to why, in the context of the CSA's registration 
provisions, the term includes a finding of guilty even where no 
final judgment has been entered.
     The Government also sought revocation under the public interest 
standard, arguing that his ``conduct demonstrates [his] negative 
experience in dispensing controlled substances and non-compliance 
with state law relating to controlled substances under the public 
interest factors.'' RFAA, at 5. However, because the Government 
produced no evidence that the court has entered a judgment of 
conviction, the jury's findings are not entitled to preclusive 
effect. Cf. Restatement (Second) of Judgments, Sec.  27 (``When an 
issue of fact or law is actually litigated and determined by a valid 
and final judgment, and the determination is essential to the 
judgment, the determination is conclusive in a subsequent action . . 
. whether on the same or a different claim.''). Similarly, because 
the Board's suspension order was based on its preliminary findings, 
and there is no evidence that the Board has issued a final decision 
affirming these findings, these findings cannot support revocation 
under the public interest standard.
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Order

    Pursuant to the authority vested in me by 21 U.S.C. 824(a), as well 
as 28 CFR 0.100(b), I order that DEA Certificate of Registration No. 
BC9308936 issued to Binh M. Chung, M.D., be, and it hereby is, revoked. 
I further order that any application of Binh M. Chung, M.D., to renew 
or modify this registration, or for any other registration in the State 
of Nevada, be, and it hereby is, denied. This Order is effective 
immediately.\2\
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    \2\ For the same reasons which led the Board to immediately 
suspend Registrant's registration, I conclude that the public 
interest necessitates that this Order be effective immediately. 21 
CFR 1316.67.

    Dated: August 17, 2017.
Chuck Rosenberg,
Acting Administrator.
[FR Doc. 2017-18081 Filed 8-24-17; 8:45 am]
 BILLING CODE 4410-09-P