Harinder Takyar, M.D.; Decision and Order, 49665-49668 [2017-23338]
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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.
As a consequence of the Board’s Final
Decision and Order, Respondent is not
currently authorized to dispense
controlled substances in Massachusetts,
the State in which he is registered.
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, it is of no
consequence that the Board’s Order
provided that he may petition to stay
the suspension upon meeting certain
conditions. Cf. Hooper v. Holder, 481 F.
App’x at 828 (upholding revocation of a
physician’s registration as based on a
reasonable interpretation of the CSA,
notwithstanding that the physician’s
medical license was subject to a
suspension of known duration); see also
James L. Hooper, 76 FR 71371, 71371–
72 (2011).6 As of this date, Respondent
is not currently authorized to dispense
controlled substances in Massachusetts,
and therefore, he is not entitled to
maintain his registration in that State.
Accordingly, I will order that his
registration be revoked and that any
pending application to renew his
registration, or for any other registration
6 By contrast, Respondent’s suspension is of
unknown duration.
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in the Commonwealth of Massachusetts
be denied.
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. BC6966381 issued to
Yoon Choi, M.D., be, and it hereby is,
revoked. Pursuant to the authority
vested in me by 21 U.S.C. 823(f), I
further order that any application of
Yoon Choi, M.D., to renew or modify
this registration, or for any other
registration in the Commonwealth of
Massachusetts, be, and it hereby is,
denied. This Order is effective
November 27, 2017.
Dated: October 17, 2017.
Robert W. Patterson,
Acting Administrator.
[FR Doc. 2017–23329 Filed 10–25–17; 8:45 am]
BILLING CODE 4410–09–P
DEPARTMENT OF JUSTICE
Drug Enforcement Administration
Harinder Takyar, M.D.; Decision and
Order
On January 24, 2017, the Assistant
Administrator, Diversion Control
Division, Drug Enforcement
Administration (hereinafter, DEA or
Government), issued an Order to Show
Cause to Harinder Takyar, M.D.
(hereinafter, Respondent) of Mesa,
Arizona. GX 4. The Show Cause Order
proposed the revocation of
Respondent’s Certificate of Registration
on the grounds that Respondent does
‘‘not have authority to handle controlled
substances in the State of Arizona,’’ the
State in which he is registered, and that
Respondent’s ‘‘registration would be
inconsistent with the public interest.’’
GX 4, at 1 (citing 21 U.S.C. 823(f),
824(a)(3) and (4)).
As to the Agency’s jurisdiction, the
Show Cause Order alleged that
Respondent holds DEA Certificate of
Registration No. BT9321150 which
authorizes him to dispense controlled
substances in schedules II through V as
a practitioner at the registered address
of 9341 East McKellips Road, Mesa,
Arizona 85207. GX 4, at 1. See also GX
1 (Controlled Substance Registration
Certificate) (including ‘‘Reform
Physicians’’) and GX 2, at 1
(Certification of Registration History)
(9341 E McKellips Road, Mesa, AZ
85207–8520). The Show Cause Order
alleged that this registration expires on
November 30, 2019. GX 4, at 1. See also
GX 2, at 1.
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As the first substantive ground for the
proceeding, the Show Cause Order
alleged that Respondent is ‘‘currently
without authority to handle controlled
substances in Arizona.’’ GX 4, at 1. It
alleged that, on December 21, 2016,
Respondent ‘‘entered into an Interim
Consent Agreement for Practice
Restriction with the Arizona Medical
Board’’ which ‘‘prohibited [Respondent]
from engaging in the practice of
medicine in the State of Arizona . . .
until he applies to the Executive
Director and receives permission to do
so.’’ GX 4, at 1 and GX 3, at 5 (Interim
Consent Agreement For Practice
Restriction), respectively. The Show
Cause Order alleged that Respondent
was ‘‘still currently prohibited from
practicing medicine in the state in
which . . . [he is] registered with the
DEA . . . [and] therefore, the DEA must
revoke . . . [his] DEA . . . [registration]
based upon . . . [his] lack of authority
to handle controlled substances in the
State of Arizona.’’ GX 4, at 2 (citing 21
U.S.C. 802(21), 823(f), and 824(a)(3)).
As the second substantive ground for
the proceeding, the Show Cause Order
alleged that the Arizona Attorney
General’s Office and the Pinal County
(Arizona) Task Force ‘‘initiated an
investigation of . . . [Respondent’s]
medical practice after receiving
information from a cooperating source
that . . . [he] routinely prescribed large
quantities of oxycodone, a Schedule II
controlled substance, without
performing an examination.’’ GX 4, at 2.
After summarizing two law enforcement
officers’ undercover visits to
Respondent’s medical practice, the
Show Cause Order alleged that,
concerning the first undercover officer,
Respondent prescribed schedule II and
IV controlled substances ‘‘after
conducting only a cursory medical
examination[, or no physical
examination but falsely documenting a
full physical exam] . . . without
inquiring about whether the agent
experienced sleeplessness, anxiety, or
panic[, and without] . . . properly
execut[ing] . . . a prescription . . . as
required by 21 CFR 1306.05(a) by not
listing the full address of the patient on
the face of the prescription . . . [or]
maintain[ing] an adequate patient
chart.’’ GX 4, at 2–3.
Concerning the second undercover
officer, the Show Cause Order alleged
that Respondent prescribed a schedule
II controlled substance the first time
‘‘despite the agent informing . . .
[Respondent] that he felt no pain during
. . . [Respondent’s] brief examination of
him . . . [, and a second time without]
conduct[ing] a physical exam . . . and
falsely documenting a full physical
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exam.’’ GX 4, at 4. The Show Cause
Order concluded that Respondent
‘‘unlawfully prescribed controlled
substances to undercover law
enforcement officers for other than a
legitimate medical purpose and outside
the usual course of professional
practice’’ in violation of Federal and
State law, and violated Arizona medical
practice standards when he ‘‘failed to
maintain appropriate patient records
that supported the prescribing of
controlled substances and . . . failed to
conduct an appropriate physical
examination, or establish a . . . doctorpatient relationship before prescribing a
controlled substance.’’ GX 4, at 2 (citing
21 CFR 1306.04(a), Ariz. Rev. Stat. § 32–
1401.27(e), (j), (q), and (SS), and Ariz.
Rev. Stat. § 32–901(15)).
The Show Cause Order notified
Respondent of his right to request a
hearing on the allegations or to submit
a written statement while waiving his
right to a hearing, the procedures for
electing each option, and the
consequences for failing to elect either
option. GX 4, at 5 (citing 21 CFR
1301.43). The Show Cause Order also
notified Respondent of the opportunity
to submit a Corrective Action Plan. GX
4, at 5 (citing 21 U.S.C. 824(c)(2)(C)).
By letter dated February 22, 2017,
Respondent, by his counsel, asked the
Administrative Law Judge for ‘‘an
extension of 30 days within which to
file a written request for hearing
concerning the Order to Show Cause.’’
GX 5. The letter alleged that ‘‘good
cause’’ supported the request because
Respondent’s counsel ‘‘has only
recently been retained,’’ the ‘‘discovery
concerning the listed allegations is
voluminous,’’ and counsel ‘‘needed
[time] to gather necessary information
concerning the allegations . . . and
more effectively complete the request
for hearing letter.’’ Id. By Order dated
March 1, 2017, the Chief Administrative
Law Judge, John J. Mulrooney, II,
granted an ‘‘enlargement of the time
allotted to request a hearing . . . to the
extent (but only to the extent) that, if the
Respondent elects to request a hearing,
he must do so no later than March 17,
2017.’’ GX 6, at 2 (Order Granting in
Part the Respondent’s Request for an
Extension of the Time to File a Request
for Hearing).
By Motion dated March 27, 2017, the
Government requested that further
proceedings be terminated because ‘‘[a]s
of the date of this filing, Respondent has
not notified this tribunal or Government
counsel of any request for hearing.’’ GX
7, at 2 (Government’s Motion for
Termination of Proceedings). By Order
dated April 3, 2017, the Presiding Judge
issued an Order Terminating
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Proceedings, finding that ‘‘no request for
a hearing was filed.’’ GX 8 (Order
Terminating Proceedings).
I find that the Government’s service of
the Show Cause Order on Respondent
was legally sufficient, that the
Respondent did not timely request a
hearing, and that Respondent has
waived his right to a hearing and his
right to submit a written statement. 21
CFR 1301.43(d). I therefore issue this
Decision and Order based on the record
submitted by the Government. 21 CFR
1301.43(e).
Findings of Fact
Respondent’s DEA Registration
Respondent currently holds DEA
practitioner registration BT9321150
authorizing him to dispense controlled
substances in schedules II through V at
the address of Reform Physicians, 9341
E McKellips Road, Mesa, AZ 85207–
8520. GX 1. This registration expires on
November 30, 2019. Id.
The Investigations of Respondent and
the Status of Respondent’s State
Licenses
On December 21, 2016, Respondent
and the Executive Director of the
Arizona Medical Board (hereinafter,
‘‘Board’’) signed an ‘‘Interim Consent
Agreement for Practice Restriction.’’ GX
3. Pursuant to the Interim Consent
Agreement for Practice Restriction,
Respondent elected to relinquish all
rights to a hearing and to appeal, and
agreed not to dispute, but did not
concede, its allegations. GX 3, at 6, 4,
respectively. It contained the allegations
that Respondent ‘‘deviated from the
standard of care’’ for one patient by
‘‘failing to substantiate and justify a
reason for prescribing opioids to . . .
her[,] to acknowledge and deal with
aberrant behavior manifested by
frequent Emergency Room . . . visits
usually for overdoses and
documentation [sic] cocaine use[,] . . .
to utilize urine drug screens[,] . . . to
access [the patient’s] Controlled
Substance Prescription Monitoring
Program (‘‘CSPMP’’) profile to monitor
[the patient’s] prescription medication
use[, and] . . . by performing trigger
point injections without identifying
physical trigger points on examination,
usually with a concomitant IM injection
of Toradol.’’ GX 3, at 2. The Interim
Consent Agreement for Practice
Restriction contained the allegation that
this patient ‘‘experienced actual harm as
Respondent caused or contributed to her
abuse and apparent addiction of
controlled substances.’’ Id.
The Interim Consent Agreement for
Practice Restriction also contained
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allegations that Respondent deviated
from the standard of care for another
patient ‘‘by failing to substantiate and
justify a reason for prescribing opioids
to . . . [her], failing to monitor his
opioid prescribing, failing to access the
CSPMP, and failing to utilize urine drug
screens.’’ GX 3, at 3. Those allegations
included that Respondent ‘‘failed to
identify aberrant behavior including
frequent ER visits, and claims of lost or
stolen medications and requests for
early refills.’’ Id. According to the
allegations, Respondent’s patient
‘‘experienced actual harm in that
Respondent either created an addictive
state or contributed to a pre-existing
addictive state.’’ Id.
The Interim Consent Agreement for
Practice Restriction contained
allegations concerning a third patient of
Respondent’s. Those allegations
included that ‘‘Respondent deviated
from the standard of care for . . . [the
patient] by failing to identify a source of
pain for . . . [him], and failing to
demonstrate that the prescribing of
opioids met the goals of reduction of
pain and improvement of function.’’ Id.
Additional allegations concerning the
third patient were that ‘‘Respondent
failed to monitor his opioid prescribing,
failed to access the CSPMP and failed to
utilize urine drug screens until April of
2016.’’ Id. According to the allegations,
Respondent’s patient ‘‘experienced
actual harm in that Respondent ignored
abnormal urine drug screens and
aberrant behavior,’’ and faced the
‘‘potential for harm’’ due to
‘‘inappropriate medication prescribing,
including side effects such as sedation,
gastrointestinal dysfunction, cognitive
impairment, respiratory depression,
insomnia and addiction.’’ GX 3, at 3–4.
The Interim Consent Agreement for
Practice Restriction explicitly stated that
Respondent agreed not to dispute its
allegations ‘‘[f]or the purposes of
entering this Interim Consent
Agreement and for these purposes
only.’’ GX 3, at 4. It also stated that
Respondent did ‘‘not concede these
allegations and this Interim Consent
Agreement is not intended for use in
any subsequent proceeding, either civil
or criminal, as evidence of any kind.’’
Id.
The Interim Consent Agreement for
Practice Restriction’s Interim Order
prohibited Respondent from engaging in
the practice of medicine in the State of
Arizona ‘‘until he applies to the
Executive Director and receives
permission to do so.’’ GX 3, at 5 (citing
A.R.S. § 32–1401(22)). The Interim
Order stated that Respondent may
request release and/or modification of
the Interim Consent Agreement for
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Practice Restriction in writing
accompanied by ‘‘information
demonstrating that he is safe to practice
medicine, including having successfully
completed a competency evaluation at a
facility approved by the Board or its
staff.’’ GX 3, at 5. Among other things,
the Interim Order also stated that it is
not a ‘‘final decision by the Board,’’ is
‘‘subject to further consideration,’’ and
‘‘[o]nce the investigation is complete, it
will be promptly provided to the Board
for its review and appropriate action.’’
Id. The Interim Consent Agreement for
Practice Restriction was ‘‘effective on
the date signed by the Board’s Executive
Director,’’ December 21, 2016. GX 3, at
5, 8–9. Respondent entered into the
Interim Consent Agreement for Practice
Restriction voluntarily. GX 3, at 6. He
understood that ‘‘any violation of this
Interim Consent Agreement constitutes
unprofessional conduct under A.R.S.
§ 32–1401(27)(r).’’ GX 3, at 8.
On May 9, 2017, the DEA Diversion
Investigator assigned to the
investigation of Respondent’s medical
practice (hereinafter, DI) signed a
Declaration. GX 9. According to that
Declaration, the DI ‘‘confirmed’’ with
the Senior Investigator for the Board
that ‘‘the current prohibition on . . .
[Respondent’s] practice of medicine also
includes a prohibition on his
authorization to handle controlled
substances.’’ GX 9, at 2. Further, as of
April 24, 2017, the Declaration stated
that the Board’s Senior Investigator
informed the DI that Respondent
‘‘remains prohibited from practicing
medicine in Arizona, pending
revocation proceedings currently before
the Board.’’ Id.
As found above, Respondent waived
his right to a hearing and to submit a
written statement while waiving his
right to a hearing concerning the Show
Cause Order. Accordingly, there is no
evidence to refute the allegations of the
Show Cause Order. I, therefore, find that
Respondent currently is prohibited from
engaging in the practice of medicine,
and currently is without authority to
dispense controlled substances, in
Arizona, the State in which he is
registered.
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
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17:29 Oct 25, 2017
Jkt 244001
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 71,371
(2011), pet. for rev. denied, 481 Fed.
Appx. 826 (4th Cir. 2012); Bourne
Pharmacy, Inc., 72 FR 18,273, 18,274
(2007) (‘‘Under the Controlled
Substances Act . . . , it is irrelevant that
Respondent’s state registration is being
held in escrow pending state
proceedings. Under the Act, a
practitioner must be currently
authorized to handle controlled
substances in ‘the jurisdiction in which
[it] practices’ in order to maintain its
DEA registration.’’); Anne Lazar Thorn,
M.D., 62 FR 12,847, 12, 848 (1997) (The
‘‘controlling question’’ is ‘‘whether the
Respondent is currently authorized to
handle controlled substances in the
state.’’); Frederick Marsh Blanton, M.D.,
43 FR 27,616 (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.
801(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 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, 53 FR 11,919, 11,920
(1988); Thorn, supra, 62 FR at 12,848;
Blanton, supra, 43 FR at 27,616.
Under Arizona law, a ‘‘doctor of
medicine’’ is a ‘‘natural person holding
a license, registration or permit to
practice medicine pursuant to this
chapter.’’ A.R.S. § 32–1401(10) (2017).
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49667
See also A.R.S. § 32–1401(21) (2017) (A
‘‘physician’’ is a ‘‘doctor of medicine
who is licensed pursuant to this
chapter.’’) The ‘‘practice of medicine’’
means ‘‘the diagnosis, the treatment or
the correction of or the attempt or the
claim to be able to diagnose, treat or
correct any and all human diseases . . .
by any means, method, devices or
instrumentalities . . . .’’ A.R.S. § 32–
1401(22) (2017). ‘‘Medicine’’ means
‘‘allopathic medicine as practiced by the
recipient of a degree of doctor of
medicine.’’ A.R.S. § 32–1401(19) (2017).
‘‘Restrict’’ means ‘‘taking a disciplinary
action that alters the physician’s
practice or professional activities if the
board determines that there is evidence
that the physician is or may be
medically incompetent or guilty of
unprofessional conduct.’’ A.R.S. § 32–
1401(23) (2017). Further, a physician
who ‘‘wishes to dispense a controlled
substance . . . shall be currently
licensed to practice medicine in
Arizona.’’ Arizona Medical Board
Licensure, R4–16–301 (2017).
‘‘Dispense,’’ under Arizona law, means
‘‘the delivery by a doctor of medicine of
a prescription drug or device to a
patient . . . and includes the
prescribing, administering, packaging,
labeling and security necessary to
prepare and safeguard the drug or
device for delivery.’’ A.R.S. § 32–
1401(9) (2017).
In this case, the Arizona Medical
Board and Respondent entered into an
‘‘Interim Consent Agreement for
Practice Restriction’’ which prohibits
Respondent from engaging in the
practice of medicine in the State of
Arizona ‘‘until he applies to the
Executive Director and receives
permission to do so.’’ GX 3, at 5 (citing
A.R.S. § 32–1401(22)). Further, the
unrefuted DI Declaration stated that
‘‘the current prohibition on . . .
[Respondent’s] practice of medicine also
includes a prohibition on his
authorization to handle controlled
substances.’’ GX 9, at 2. Consequently,
Respondent is not currently authorized
to handle controlled substances in the
State of Arizona, the State in which he
is registered and, therefore, he is not
entitled to maintain his DEA
registration. Thorn, supra; Blanton,
supra. Accordingly, I will order that his
registration be revoked and that any
pending application for the renewal or
modification of his registration be
denied. 21 U.S.C. 824(a)(3).
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 BT9321150 issued to
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Harinder Takyar, M.D., be, and it hereby
is, revoked. I further order that any
pending application of Harinder Takyar,
M.D., to renew or modify this
registration, as well as any other
pending application by him for
registration in the State of Arizona, be,
and it hereby is, denied. This order is
effective November 27, 2017.
appropriate. Exec. Order No. 13798 § 4,
82 Fed. Reg. 21675 (May 4, 2017).
Consistent with that instruction, I am
issuing this memorandum and appendix
to guide all administrative agencies and
executive departments in the execution
of federal law.
Dated: October 18, 2017.
Robert W. Patterson,
Acting Administrator.
Religious liberty is a foundational
principle of enduring importance in
America, enshrined in our Constitution
and other sources of federal law. As
James Madison explained in his
Memorial and Remonstrance Against
Religious Assessments, the free exercise
of religion ‘‘is in its nature an
unalienable right’’ because the duty
owed to one’s Creator ‘‘is precedent,
both in order of time and in degree of
obligation, to the claims of Civil
Society.’’ 1 Religious liberty is not
merely a right to personal religious
beliefs or even to worship in a sacred
place. It also encompasses religious
observance and practice. Except in the
narrowest circumstances, no one should
be forced to choose between living out
his or her faith and complying with the
law. Therefore, to the greatest extent
practicable and permitted by law,
religious observance and practice
should be reasonably accommodated in
all government activity, including
employment, contracting, and
programming. The following twenty
principles should guide administrative
agencies and executive departments in
carrying out this task. These principles
should be understood and interpreted in
light of the legal analysis set forth in the
appendix to this memorandum.
[FR Doc. 2017–23338 Filed 10–25–17; 8:45 am]
BILLING CODE 4410–09–P
DEPARTMENT OF JUSTICE
[OLP Docket No. 165]
Federal Law Protections for Religious
Liberty
Department of Justice.
Notice.
AGENCY:
ACTION:
This notice provides the text
of the Attorney General’s Memorandum
of October 6, 2017, for all executive
departments and agencies entitled
‘‘Federal Law Protections for Religious
Liberty’’ and the appendix to this
Memorandum.
SUMMARY:
This notice is applicable on
October 6, 2017.
FOR FURTHER INFORMATION CONTACT:
Jennifer Dickey, Counsel, Office of Legal
Policy, U.S. Department of Justice, 950
Pennsylvania Avenue NW., Washington,
D.C. 20530, phone (202) 514–4601.
SUPPLEMENTARY INFORMATION: The
President instructed the Attorney
General to issue guidance interpreting
religious liberty protections in federal
law, as appropriate. Exec. Order 13798,
§ 4 (May 4, 2017). Pursuant to that
instruction and consistent with the
authority to provide advice and
opinions on questions of existing law to
the Executive Branch, the Attorney
General issued the following
memorandum to the heads of all
executive departments and agencies on
October 6, 2017.
DATES:
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Dated: October 20, 2017.
Beth Ann Williams,
Assistant Attorney General, Office of Legal
Policy.
MEMORANDUM FOR ALL EXECUTIVE
DEPARTMENTS AND AGENCIES
FROM: THE ATTORNEY GENERAL
SUBJECT: Federal Law Protections for
Religious Liberty
The President has instructed me to
issue guidance interpreting religious
liberty protections in federal law, as
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17:29 Oct 25, 2017
Jkt 244001
Principles of Religious Liberty
1. The freedom of religion is a
fundamental right of paramount
importance, expressly protected by
federal law.
Religious liberty is enshrined in the
text of our Constitution and in
numerous federal statutes. It
encompasses the right of all Americans
to exercise their religion freely, without
being coerced to join an established
church or to satisfy a religious test as a
qualification for public office. It also
encompasses the right of all Americans
to express their religious beliefs, subject
to the same narrow limits that apply to
all forms of speech. In the United States,
the free exercise of religion is not a mere
policy preference to be traded against
other policy preferences. It is a
fundamental right.
1 James Madison, Memorial and Remonstrance
Against Religious Assessments (June 20, 1785), in
5 The Founders’ Constitution 82 (Philip B. Kurland
& Ralph Lerner eds., 1987).
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2. The free exercise of religion includes
the right to act or abstain from action
in accordance with one’s religious
beliefs.
The Free Exercise Clause protects not
just the right to believe or the right to
worship; it protects the right to perform
or abstain from performing certain
physical acts in accordance with one’s
beliefs. Federal statutes, including the
Religious Freedom Restoration Act of
1993 (‘‘RFRA’’), support that protection,
broadly defining the exercise of religion
to encompass all aspects of observance
and practice, whether or not central to,
or required by, a particular religious
faith.
3. The freedom of religion extends to
persons and organizations.
The Free Exercise Clause protects not
just persons, but persons collectively
exercising their religion through
churches or other religious
denominations, religious organizations,
schools, private associations, and even
businesses.
4. Americans do not give up their
freedom of religion by participating in
the marketplace, partaking of the
public square, or interacting with
government.
Constitutional protections for
religious liberty are not conditioned
upon the willingness of a religious
person or organization to remain
separate from civil society. Although the
application of the relevant protections
may differ in different contexts,
individuals and organizations do not
give up their religious-liberty
protections by providing or receiving
social services, education, or healthcare;
by seeking to earn or earning a living;
by employing others to do the same; by
receiving government grants or
contracts; or by otherwise interacting
with federal, state, or local governments.
5. Government may not restrict acts or
abstentions because of the beliefs they
display.
To avoid the very sort of religious
persecution and intolerance that led to
the founding of the United States, the
Free Exercise Clause of the Constitution
protects against government actions that
target religious conduct. Except in rare
circumstances, government may not
treat the same conduct as lawful when
undertaken for secular reasons but
unlawful when undertaken for religious
reasons. For example, government may
not attempt to target religious persons or
conduct by allowing the distribution of
political leaflets in a park but forbidding
the distribution of religious leaflets in
the same park.
E:\FR\FM\26OCN1.SGM
26OCN1
]]>Agencies
[Federal Register Volume 82, Number 206 (Thursday, October 26, 2017)]
[Notices]
[Pages 49665-49668]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-23338]
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DEPARTMENT OF JUSTICE
Drug Enforcement Administration
Harinder Takyar, M.D.; Decision and Order
On January 24, 2017, the Assistant Administrator, Diversion Control
Division, Drug Enforcement Administration (hereinafter, DEA or
Government), issued an Order to Show Cause to Harinder Takyar, M.D.
(hereinafter, Respondent) of Mesa, Arizona. GX 4. The Show Cause Order
proposed the revocation of Respondent's Certificate of Registration on
the grounds that Respondent does ``not have authority to handle
controlled substances in the State of Arizona,'' the State in which he
is registered, and that Respondent's ``registration would be
inconsistent with the public interest.'' GX 4, at 1 (citing 21 U.S.C.
823(f), 824(a)(3) and (4)).
As to the Agency's jurisdiction, the Show Cause Order alleged that
Respondent holds DEA Certificate of Registration No. BT9321150 which
authorizes him to dispense controlled substances in schedules II
through V as a practitioner at the registered address of 9341 East
McKellips Road, Mesa, Arizona 85207. GX 4, at 1. See also GX 1
(Controlled Substance Registration Certificate) (including ``Reform
Physicians'') and GX 2, at 1 (Certification of Registration History)
(9341 E McKellips Road, Mesa, AZ 85207-8520). The Show Cause Order
alleged that this registration expires on November 30, 2019. GX 4, at
1. See also GX 2, at 1.
As the first substantive ground for the proceeding, the Show Cause
Order alleged that Respondent is ``currently without authority to
handle controlled substances in Arizona.'' GX 4, at 1. It alleged that,
on December 21, 2016, Respondent ``entered into an Interim Consent
Agreement for Practice Restriction with the Arizona Medical Board''
which ``prohibited [Respondent] from engaging in the practice of
medicine in the State of Arizona . . . until he applies to the
Executive Director and receives permission to do so.'' GX 4, at 1 and
GX 3, at 5 (Interim Consent Agreement For Practice Restriction),
respectively. The Show Cause Order alleged that Respondent was ``still
currently prohibited from practicing medicine in the state in which . .
. [he is] registered with the DEA . . . [and] therefore, the DEA must
revoke . . . [his] DEA . . . [registration] based upon . . . [his] lack
of authority to handle controlled substances in the State of Arizona.''
GX 4, at 2 (citing 21 U.S.C. 802(21), 823(f), and 824(a)(3)).
As the second substantive ground for the proceeding, the Show Cause
Order alleged that the Arizona Attorney General's Office and the Pinal
County (Arizona) Task Force ``initiated an investigation of . . .
[Respondent's] medical practice after receiving information from a
cooperating source that . . . [he] routinely prescribed large
quantities of oxycodone, a Schedule II controlled substance, without
performing an examination.'' GX 4, at 2. After summarizing two law
enforcement officers' undercover visits to Respondent's medical
practice, the Show Cause Order alleged that, concerning the first
undercover officer, Respondent prescribed schedule II and IV controlled
substances ``after conducting only a cursory medical examination[, or
no physical examination but falsely documenting a full physical exam] .
. . without inquiring about whether the agent experienced
sleeplessness, anxiety, or panic[, and without] . . . properly
execut[ing] . . . a prescription . . . as required by 21 CFR 1306.05(a)
by not listing the full address of the patient on the face of the
prescription . . . [or] maintain[ing] an adequate patient chart.'' GX
4, at 2-3.
Concerning the second undercover officer, the Show Cause Order
alleged that Respondent prescribed a schedule II controlled substance
the first time ``despite the agent informing . . . [Respondent] that he
felt no pain during . . . [Respondent's] brief examination of him . . .
[, and a second time without] conduct[ing] a physical exam . . . and
falsely documenting a full physical
[[Page 49666]]
exam.'' GX 4, at 4. The Show Cause Order concluded that Respondent
``unlawfully prescribed controlled substances to undercover law
enforcement officers for other than a legitimate medical purpose and
outside the usual course of professional practice'' in violation of
Federal and State law, and violated Arizona medical practice standards
when he ``failed to maintain appropriate patient records that supported
the prescribing of controlled substances and . . . failed to conduct an
appropriate physical examination, or establish a . . . doctor-patient
relationship before prescribing a controlled substance.'' GX 4, at 2
(citing 21 CFR 1306.04(a), Ariz. Rev. Stat. Sec. 32-1401.27(e), (j),
(q), and (SS), and Ariz. Rev. Stat. Sec. 32-901(15)).
The Show Cause Order notified Respondent of his right to request a
hearing on the allegations or to submit a written statement while
waiving his right to a hearing, the procedures for electing each
option, and the consequences for failing to elect either option. GX 4,
at 5 (citing 21 CFR 1301.43). The Show Cause Order also notified
Respondent of the opportunity to submit a Corrective Action Plan. GX 4,
at 5 (citing 21 U.S.C. 824(c)(2)(C)).
By letter dated February 22, 2017, Respondent, by his counsel,
asked the Administrative Law Judge for ``an extension of 30 days within
which to file a written request for hearing concerning the Order to
Show Cause.'' GX 5. The letter alleged that ``good cause'' supported
the request because Respondent's counsel ``has only recently been
retained,'' the ``discovery concerning the listed allegations is
voluminous,'' and counsel ``needed [time] to gather necessary
information concerning the allegations . . . and more effectively
complete the request for hearing letter.'' Id. By Order dated March 1,
2017, the Chief Administrative Law Judge, John J. Mulrooney, II,
granted an ``enlargement of the time allotted to request a hearing . .
. to the extent (but only to the extent) that, if the Respondent elects
to request a hearing, he must do so no later than March 17, 2017.'' GX
6, at 2 (Order Granting in Part the Respondent's Request for an
Extension of the Time to File a Request for Hearing).
By Motion dated March 27, 2017, the Government requested that
further proceedings be terminated because ``[a]s of the date of this
filing, Respondent has not notified this tribunal or Government counsel
of any request for hearing.'' GX 7, at 2 (Government's Motion for
Termination of Proceedings). By Order dated April 3, 2017, the
Presiding Judge issued an Order Terminating Proceedings, finding that
``no request for a hearing was filed.'' GX 8 (Order Terminating
Proceedings).
I find that the Government's service of the Show Cause Order on
Respondent was legally sufficient, that the Respondent did not timely
request a hearing, and that Respondent has waived his right to a
hearing and his right to submit a written statement. 21 CFR 1301.43(d).
I therefore issue this Decision and Order based on the record submitted
by the Government. 21 CFR 1301.43(e).
Findings of Fact
Respondent's DEA Registration
Respondent currently holds DEA practitioner registration BT9321150
authorizing him to dispense controlled substances in schedules II
through V at the address of Reform Physicians, 9341 E McKellips Road,
Mesa, AZ 85207-8520. GX 1. This registration expires on November 30,
2019. Id.
The Investigations of Respondent and the Status of Respondent's State
Licenses
On December 21, 2016, Respondent and the Executive Director of the
Arizona Medical Board (hereinafter, ``Board'') signed an ``Interim
Consent Agreement for Practice Restriction.'' GX 3. Pursuant to the
Interim Consent Agreement for Practice Restriction, Respondent elected
to relinquish all rights to a hearing and to appeal, and agreed not to
dispute, but did not concede, its allegations. GX 3, at 6, 4,
respectively. It contained the allegations that Respondent ``deviated
from the standard of care'' for one patient by ``failing to
substantiate and justify a reason for prescribing opioids to . . .
her[,] to acknowledge and deal with aberrant behavior manifested by
frequent Emergency Room . . . visits usually for overdoses and
documentation [sic] cocaine use[,] . . . to utilize urine drug
screens[,] . . . to access [the patient's] Controlled Substance
Prescription Monitoring Program (``CSPMP'') profile to monitor [the
patient's] prescription medication use[, and] . . . by performing
trigger point injections without identifying physical trigger points on
examination, usually with a concomitant IM injection of Toradol.'' GX
3, at 2. The Interim Consent Agreement for Practice Restriction
contained the allegation that this patient ``experienced actual harm as
Respondent caused or contributed to her abuse and apparent addiction of
controlled substances.'' Id.
The Interim Consent Agreement for Practice Restriction also
contained allegations that Respondent deviated from the standard of
care for another patient ``by failing to substantiate and justify a
reason for prescribing opioids to . . . [her], failing to monitor his
opioid prescribing, failing to access the CSPMP, and failing to utilize
urine drug screens.'' GX 3, at 3. Those allegations included that
Respondent ``failed to identify aberrant behavior including frequent ER
visits, and claims of lost or stolen medications and requests for early
refills.'' Id. According to the allegations, Respondent's patient
``experienced actual harm in that Respondent either created an
addictive state or contributed to a pre-existing addictive state.'' Id.
The Interim Consent Agreement for Practice Restriction contained
allegations concerning a third patient of Respondent's. Those
allegations included that ``Respondent deviated from the standard of
care for . . . [the patient] by failing to identify a source of pain
for . . . [him], and failing to demonstrate that the prescribing of
opioids met the goals of reduction of pain and improvement of
function.'' Id. Additional allegations concerning the third patient
were that ``Respondent failed to monitor his opioid prescribing, failed
to access the CSPMP and failed to utilize urine drug screens until
April of 2016.'' Id. According to the allegations, Respondent's patient
``experienced actual harm in that Respondent ignored abnormal urine
drug screens and aberrant behavior,'' and faced the ``potential for
harm'' due to ``inappropriate medication prescribing, including side
effects such as sedation, gastrointestinal dysfunction, cognitive
impairment, respiratory depression, insomnia and addiction.'' GX 3, at
3-4.
The Interim Consent Agreement for Practice Restriction explicitly
stated that Respondent agreed not to dispute its allegations ``[f]or
the purposes of entering this Interim Consent Agreement and for these
purposes only.'' GX 3, at 4. It also stated that Respondent did ``not
concede these allegations and this Interim Consent Agreement is not
intended for use in any subsequent proceeding, either civil or
criminal, as evidence of any kind.'' Id.
The Interim Consent Agreement for Practice Restriction's Interim
Order prohibited Respondent from engaging in the practice of medicine
in the State of Arizona ``until he applies to the Executive Director
and receives permission to do so.'' GX 3, at 5 (citing A.R.S. Sec. 32-
1401(22)). The Interim Order stated that Respondent may request release
and/or modification of the Interim Consent Agreement for
[[Page 49667]]
Practice Restriction in writing accompanied by ``information
demonstrating that he is safe to practice medicine, including having
successfully completed a competency evaluation at a facility approved
by the Board or its staff.'' GX 3, at 5. Among other things, the
Interim Order also stated that it is not a ``final decision by the
Board,'' is ``subject to further consideration,'' and ``[o]nce the
investigation is complete, it will be promptly provided to the Board
for its review and appropriate action.'' Id. The Interim Consent
Agreement for Practice Restriction was ``effective on the date signed
by the Board's Executive Director,'' December 21, 2016. GX 3, at 5, 8-
9. Respondent entered into the Interim Consent Agreement for Practice
Restriction voluntarily. GX 3, at 6. He understood that ``any violation
of this Interim Consent Agreement constitutes unprofessional conduct
under A.R.S. Sec. 32-1401(27)(r).'' GX 3, at 8.
On May 9, 2017, the DEA Diversion Investigator assigned to the
investigation of Respondent's medical practice (hereinafter, DI) signed
a Declaration. GX 9. According to that Declaration, the DI
``confirmed'' with the Senior Investigator for the Board that ``the
current prohibition on . . . [Respondent's] practice of medicine also
includes a prohibition on his authorization to handle controlled
substances.'' GX 9, at 2. Further, as of April 24, 2017, the
Declaration stated that the Board's Senior Investigator informed the DI
that Respondent ``remains prohibited from practicing medicine in
Arizona, pending revocation proceedings currently before the Board.''
Id.
As found above, Respondent waived his right to a hearing and to
submit a written statement while waiving his right to a hearing
concerning the Show Cause Order. Accordingly, there is no evidence to
refute the allegations of the Show Cause Order. I, therefore, find that
Respondent currently is prohibited from engaging in the practice of
medicine, and currently is without authority to dispense controlled
substances, in Arizona, the State in which he is registered.
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 71,371 (2011), pet. for rev. denied, 481 Fed. Appx. 826
(4th Cir. 2012); Bourne Pharmacy, Inc., 72 FR 18,273, 18,274 (2007)
(``Under the Controlled Substances Act . . . , it is irrelevant that
Respondent's state registration is being held in escrow pending state
proceedings. Under the Act, a practitioner must be currently authorized
to handle controlled substances in `the jurisdiction in which [it]
practices' in order to maintain its DEA registration.''); Anne Lazar
Thorn, M.D., 62 FR 12,847, 12, 848 (1997) (The ``controlling question''
is ``whether the Respondent is currently authorized to handle
controlled substances in the state.''); Frederick Marsh Blanton, M.D.,
43 FR 27,616 (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. 801(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 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, 53 FR 11,919, 11,920 (1988); Thorn, supra, 62 FR at 12,848;
Blanton, supra, 43 FR at 27,616.
Under Arizona law, a ``doctor of medicine'' is a ``natural person
holding a license, registration or permit to practice medicine pursuant
to this chapter.'' A.R.S. Sec. 32-1401(10) (2017). See also A.R.S.
Sec. 32-1401(21) (2017) (A ``physician'' is a ``doctor of medicine who
is licensed pursuant to this chapter.'') The ``practice of medicine''
means ``the diagnosis, the treatment or the correction of or the
attempt or the claim to be able to diagnose, treat or correct any and
all human diseases . . . by any means, method, devices or
instrumentalities . . . .'' A.R.S. Sec. 32-1401(22) (2017).
``Medicine'' means ``allopathic medicine as practiced by the recipient
of a degree of doctor of medicine.'' A.R.S. Sec. 32-1401(19) (2017).
``Restrict'' means ``taking a disciplinary action that alters the
physician's practice or professional activities if the board determines
that there is evidence that the physician is or may be medically
incompetent or guilty of unprofessional conduct.'' A.R.S. Sec. 32-
1401(23) (2017). Further, a physician who ``wishes to dispense a
controlled substance . . . shall be currently licensed to practice
medicine in Arizona.'' Arizona Medical Board Licensure, R4-16-301
(2017). ``Dispense,'' under Arizona law, means ``the delivery by a
doctor of medicine of a prescription drug or device to a patient . . .
and includes the prescribing, administering, packaging, labeling and
security necessary to prepare and safeguard the drug or device for
delivery.'' A.R.S. Sec. 32-1401(9) (2017).
In this case, the Arizona Medical Board and Respondent entered into
an ``Interim Consent Agreement for Practice Restriction'' which
prohibits Respondent from engaging in the practice of medicine in the
State of Arizona ``until he applies to the Executive Director and
receives permission to do so.'' GX 3, at 5 (citing A.R.S. Sec. 32-
1401(22)). Further, the unrefuted DI Declaration stated that ``the
current prohibition on . . . [Respondent's] practice of medicine also
includes a prohibition on his authorization to handle controlled
substances.'' GX 9, at 2. Consequently, Respondent is not currently
authorized to handle controlled substances in the State of Arizona, the
State in which he is registered and, therefore, he is not entitled to
maintain his DEA registration. Thorn, supra; Blanton, supra.
Accordingly, I will order that his registration be revoked and that any
pending application for the renewal or modification of his registration
be denied. 21 U.S.C. 824(a)(3).
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
BT9321150 issued to
[[Page 49668]]
Harinder Takyar, M.D., be, and it hereby is, revoked. I further order
that any pending application of Harinder Takyar, M.D., to renew or
modify this registration, as well as any other pending application by
him for registration in the State of Arizona, be, and it hereby is,
denied. This order is effective November 27, 2017.
Dated: October 18, 2017.
Robert W. Patterson,
Acting Administrator.
[FR Doc. 2017-23338 Filed 10-25-17; 8:45 am]
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