John Yolman Salinas, M.D.; Decision and Order, 49552-49555 [2019-20420]

Download as PDF 49552 Federal Register / Vol. 84, No. 183 / Friday, September 20, 2019 / Notices khammond on DSKJM1Z7X2PROD with NOTICES according to the Consent Order, Respondent was unable to produce a biennial inventory, he failed to adequately maintain dispensing records for controlled substances, and he failed to maintain inventory records of controlled substances for two years. Id. The DIs also determined that: (a) Everyone in Respondent’s dental office had access to the controlled substances cabinet; (b) Respondent kept a fivehundred count bottle of Vicodin, a onehundred count bottle of Halcion, and a five-hundred count bottle of Valium in his home, a non-registered address; and (c) Respondent kept a one-hundred count bottle of Vicodin in his desk drawer. Id. Respondent also failed to complete the required nine hours of continuing education in sedation techniques for the 2009–2012 renewal cycle, and failed to ensure that his staff had completed the requisite training to assist him in dental sedation procedures. Id. Respondent and the IDFPR agreed, in the Consent Order, that Respondent’s Illinois dentist controlled substance license would be indefinitely suspended, and that his Illinois dentist license would be placed on indefinite probation with conditions for a minimum period of two years. Id. at 4. The Consent Order became effective on September 11, 2018, upon the approval and signature of the Director of the Division of Professional Regulation for the IDFPR. Id. at 7–8. According to the online records for the state of Illinois, of which I take official notice, Respondent’s Illinois dentist controlled substance license remains suspended.3 https:// ilesonline.idfpr.illinois.gov/DFPR/ Lookup/LicenseLookup.aspx (last visited September, 12, 2019). Accordingly, I find that Respondent is not currently licensed to dispense controlled substances in Illinois, the State in which Respondent is registered with the DEA. 3 Under the Administrative Procedure Act, an agency ‘‘may take official notice of facts at any stage in a proceeding—even in the final decision.’’ United States Department of Justice, Attorney General’s Manual on the Administrative Procedure Act 80 (1947) (Wm. W. Gaunt & Sons, Inc., Reprint 1979). Pursuant to 5 U.S.C. 556(e), ‘‘[w]hen an agency decision rests on official notice of a material fact not appearing in the evidence in the record, a party is entitled, on timely request, to an opportunity to show the contrary.’’ Accordingly, Respondent may dispute my finding by filing a properly supported motion for reconsideration within 15 calendar days of the date of this Order. Any such motion shall be filed with the Office of the Administrator and a copy shall be served on the Government. In the event Respondent files a motion, the Government shall have 15 calendar days to file a response. VerDate Sep<11>2014 18:24 Sep 19, 2019 Jkt 247001 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 Respondent . . . has had his State license or registration suspended . . . [or] revoked . . . by competent State authority and is no longer authorized by State law to engage in the . . . dispensing of controlled substances.’’ With respect to a practitioner, the DEA has also long held that the possession of authority to dispense controlled substances under the laws of the State in which a practitioner engages in professional practice is a fundamental condition for obtaining and maintaining a practitioner’s registration. See, e.g., James L. Hooper, M.D., 76 FR 71371 (2011), pet. for rev. denied, 481 Fed. Appx. 826 (4th Cir. 2012); Frederick Marsh Blanton, M.D., 43 FR 27616, 27617 (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. 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 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 71371–72; Sheran Arden Yeates, M.D., 71 FR 39130, 39131 (2006); Dominick A. Ricci, M.D., 58 FR 51104, 51105 (1993); Bobby Watts, M.D., 53 FR 11919, 11920 (1988); Blanton, supra, 43 FR at 27617. Pursuant to the Illinois Controlled Substances Act, a dentist is specifically included in the definition of a practitioner. ‘‘ ‘Practitioner’ means a physician licensed to practice medicine in all its branches, dentist . . . or other person licensed, registered, or otherwise lawfully permitted by the United States PO 00000 Frm 00047 Fmt 4703 Sfmt 4703 or this State to distribute, dispense, conduct research with respect to, administer or use in teaching or chemical analysis, a controlled substance in the course of professional practice or research.’’ 720 Ill. Comp. Stat. Ann. 570/102(kk) (Westlaw P.A. 100–863). Illinois law requires that ‘‘[e]very person who manufactures, distributes, or dispenses any controlled substances . . . must obtain a registration issued by the Department of Financial and Professional Regulation in accordance with its rules.’’ Id. at 570/ 302(a). Further, under Illinois law, the Illinois Controlled Substances Act authorizes the IDFPR to discipline a practitioner holding a dentist controlled substance license. ‘‘A registration under Section 303 to manufacture, distribute, or dispense a controlled substance . . . may be denied, refused renewal, suspended, or revoked by the Department of Financial and Professional Regulation.’’ Id. at 570/ 304(a). Here, the undisputed evidence in the record is that Respondent currently lacks authority to handle controlled substances as a dentist in Illinois. As already discussed, a dentist must hold a valid dentist controlled substance license to dispense a controlled substance in Illinois. Thus, because Respondent lacks authority to handle controlled substances in Illinois, Respondent is not eligible to maintain a DEA registration. Accordingly, I order that Respondent’s DEA registration be revoked. Order Pursuant to 28 CFR 0.100(b) and the authority vested in me by 21 U.S.C. 824(a), I hereby revoke DEA Certificate of Registration No. BW7668835 issued to Peter J. Waidzunas, D.D.S. This Order is effective October 21, 2019. Dated: September 9, 2019. Uttam Dhillon, Acting Administrator. [FR Doc. 2019–20418 Filed 9–19–19; 8:45 am] BILLING CODE 4410–09–P DEPARTMENT OF JUSTICE Drug Enforcement Administration [Docket No. 2019–10] John Yolman Salinas, M.D.; Decision and Order On December 18, 2018, the Assistant Administrator, Diversion Control Division, Drug Enforcement Administration (hereinafter, DEA or E:\FR\FM\20SEN1.SGM 20SEN1 khammond on DSKJM1Z7X2PROD with NOTICES Federal Register / Vol. 84, No. 183 / Friday, September 20, 2019 / Notices Government), issued an Order to Show Cause to John Yolman Salinas, M.D., (hereinafter, Respondent), of Atlanta, Georgia. Order to Show Cause (hereinafter, OSC), at 1. The OSC proposes the revocation of Respondent’s Certificate of Registration No. BS4014332 on the ground that Respondent does not have ‘‘state authority to handle controlled substances’’ in Georgia, the state in which Respondent is registered with the DEA. Id. (citing 21 U.S.C. 824(a)(3)). The substantive ground for the proceeding, as alleged in the OSC, is that Respondent has ‘‘no state authority to handle controlled substances.’’ OSC, at 1. Specifically, the OSC alleges that the Georgia Composite Medical Board (hereinafter, GCMB) issued a Final Decision revoking Respondent’s medical license on September 21, 2018. Id. This Georgia medical license revocation, according to the OSC, means that Respondent is ‘‘currently without authority to handle controlled substances in the State of Georgia’’ and, ‘‘[c]onsequently, DEA must revoke . . . [Respondent’s] DEA registration.’’ Id. The OSC notified Respondent of the right to request a hearing on the allegations or to submit a written statement, while waiving the right to a hearing, the procedures for electing each option, and the consequences for failing to elect either option. Id. at 2 (citing 21 CFR 1301.43). The OSC also notified Respondent of the opportunity to submit a corrective action plan. OSC, at 2–3 (citing 21 U.S.C. 824(c)(2)(C)). By a document entitled ‘‘Request for Hearing’’ submitted on January 16, 2019, Respondent timely requested a hearing.1 According to the Hearing Request, Respondent ‘‘is interested in continuing the practice of medicine in another state or Territory of the United States . . . and thus maintaining his DEA Registration active.’’ Hearing Request, at 1. Respondent’s Hearing Request states that he ‘‘is not handling any medications or drugs of ANY sort’’ and ‘‘has NEVER had any DEA violations or complaint to the present date.’’ Id. (emphases in original). Respondent attached a ‘‘Corrective Action Plan’’ (hereinafter, CAP) to his Request for Hearing. Id. at 3. The CAP states, among other things, that the ‘‘Georgia Medical Board did NOT find any violations against . . . [Respondent] of medication errors or standard of care issues.’’ Id. (emphasis in original). It states that Respondent ‘‘is NOT 1 The OSC is dated December 18, 2018. The Hearing Request was emailed on January 16, 2019. As such, I find that the Government’s service of the OSC was adequate and that Respondent’s request for a hearing was timely. VerDate Sep<11>2014 17:13 Sep 19, 2019 Jkt 247001 currently practicing medicine in any form . . . [and] wishes to continue the practice of medicine for which he trained for over a 24 years career.’’ Id. (emphasis in original). Respondent’s first proposed CAP concerns his ‘‘having submitted current applications for medical licensure in several States and U.S. Territories . . . . On procurement of an active state medical license, the DEA Registration will be transferred to the active State licensed.’’ Id. Respondent’s second proposed CAP concerns Respondent’s expressed interest in ‘‘actively applying for a position within the DEA with the hopes of procuring a position as an undercover physician to infiltrate pill mills and help in the war against drugs.’’ 2 Id. By letter dated January 30, 2019, the Assistant Administrator of the Diversion Control Division ‘‘den[ied] the request to discontinue or defer administrative proceedings’’ and stated that ‘‘there is no potential modification of . . . [Respondent’s proposed CAP] that could or would alter my decision in this regard.’’ Assistant Administrator CAP Letter, at 1. The Office of Administrative Law Judges put the matter on the docket and assigned it to the Chief Administrative Law Judge. The matter was subsequently reassigned to Administrative Law Judge Mark M. Dowd (hereinafter, ALJ). The Government timely complied with the ‘‘Order Directing the Filing of Government Evidence Regarding its Lack of State Authority Allegation and Briefing Schedule’’ by filing a Motion for Summary Disposition on January 28, 2019 (hereinafter, Government Motion). In its motion, the Government stated that Respondent lacks authority to handle controlled substances in Georgia because of the revocation of his Georgia medical license. Government Motion, at 3. ‘‘Because Respondent does not have state authority to prescribe, administer, or dispense controlled substances in the State of Georgia,’’ the Government Motion continued, ‘‘he is not entitled to hold a DEA registration.’’ Id. Respondent requested, and received, an additional ten business days to respond to the Government Motion.3 2 Respondent’s second proposed CAP ‘‘further requests any assistance from any DEA personnel in procurement of such a position.’’ Hearing Request, at 3. 3 The ALJ denied Respondent’s request for an extension of forty-five days. Respondent stated that the bases for his request were pending applications for medical licensure in Guam and Mississippi. Respondent suggested that forty-five days would give those jurisdictions time to act on his applications and ‘‘thus make moot the Administrative Law Court Summary Disposition.’’ Respondent’s Motion for Extension of Time to PO 00000 Frm 00048 Fmt 4703 Sfmt 4703 49553 Motion for Extension of Time to Respond to Governments [sic] Motion for Summary Disposition dated January 31, 2019, at 1; Order Granting the Respondent’s Request for Extension of Time dated February 4, 2019, at 1–2. According to the ALJ’s ‘‘Order Granting the Government’s Motion for Summary Disposition and Recommended Rulings, Findings of Fact, Conclusions of Law, and Decision of the Administrative Law Judge’’ dated February 21, 2019 (hereinafter, RD), ‘‘[t]o date, the Respondent has not filed any reply to the Government’s allegations.’’ RD, at 3. After the ALJ issued the RD, Respondent filed a ‘‘Motion for Reconsideration and Clarification of Decision of Administrative Law Judge’’ dated February 22, 2019 (hereinafter, RMRC). The ALJ construed the RMRC to be a motion for leave to file an out of time response to the Government Motion and gave the Government the opportunity to respond to it. The Government timely opposed the RMRC on procedural and substantive grounds. The ALJ denied the RMRC. Order Denying Respondent’s Motion to File an Out of Time Response and Reaffirming the Recommended Order Granting the Government’s Motion for Summary Disposition dated March 19, 2019 (hereinafter, RRD), at 5. Although the ALJ denied the RMRC, he addressed its substance in the RRD. RRD, at 4–5.4 The ALJ, in both the RD and the RRD, recommended that ‘‘Respondent’s registration be revoked, and any pending applications be denied’’ because ‘‘no dispute exists over the fact that the Respondent currently lacks state authority to handle controlled substances in the state of Georgia because the . . . [GCMB] has revoked his medical license.’’ RD, at 7–8. By letter dated March 19, 2019, the ALJ certified and transmitted the record to me. I issue this Decision and Order based on the entire record before me. 21 CFR 1301.43(e). I make the following findings of fact. Findings of Fact Respondent’s DEA Registration Respondent is the holder of DEA Certificate of Registration No. BS4014332 at the registered address of 3069 Amwiler Rd., Suite Two, Atlanta, Respond to Governments [sic] Motion for Summary Disposition dated January 31, 2019, at 2. I agree with the ALJ’s denial of Respondent’s request for an extension of forty-five days. The issue presented in the OSC concerns Respondent’s registration in Georgia, not his applications for medical licensure in Guam or Mississippi. 4 I agree with the ALJ’s procedural disposition of the RMRC. E:\FR\FM\20SEN1.SGM 20SEN1 49554 Federal Register / Vol. 84, No. 183 / Friday, September 20, 2019 / Notices khammond on DSKJM1Z7X2PROD with NOTICES GA 30360. Government Motion, Exh. 1, at 1. Pursuant to this registration, Respondent is authorized to dispense controlled substances in schedules II through V as a practitioner. Id. Respondent’s registration expires on February 28, 2021, and is ‘‘in an active pending status.’’ Id. The Status of Respondent’s State License On June 18, 2018, an Administrative Law Judge at the Georgia Office of State Administrative Hearings (hereinafter, Georgia ALJ) issued her Initial Decision concerning a matter initiated by the GCMB to sanction Respondent’s medical license. Government Motion, Exh. 2, at 1. According to the Initial Decision, a ‘‘board certified family practice physician with 39 years’ experience’’ completed a peer review of Respondent’s treatment and care of two individuals at the request of the GCMB. Id. at 12. Regarding the first individual, the peer reviewer opined that Respondent’s treatment fell below the standard of care when he (1) treated the individual as a patient when they were engaged in a sexual relationship; (2) failed to maintain medical records to support his prescription of medications, including controlled substances; (3) failed to maintain a medical record to support the ordering of a breast ultrasound and diagnostic mammogram; (4) failed to maintain a medical record when making a ‘‘lumbago’’ diagnosis; and (5) failed to use proper history, physical, laboratory tests, and radiological procedures to make a diagnosis. Id. at 12–13. As to the other individual, the peer reviewer opined that Respondent’s treatment fell below the standard of care when he (1) performed a gynecological examination without a female chaperone present; (2) had sexual relations with the individual after performing a gynecological examination; (3) failed to put a date on the purported record of the injections he gave the individual and the individual’s subsequent reaction; and (4) failed to perform a gynecological examination, pap smear, and mammogram before purportedly administering an initial injection of Depo-Provera. Id. at 21–22. The Georgia ALJ concluded that the GCMB established by a preponderance of the evidence that Respondent (1) knowingly made misleading, deceptive, untrue, or fraudulent representations in the practice of his profession in a purported medical record and to the GCMB; (2) indicated untrustworthiness and engaged in conduct discrediting the medical profession by his acts and omissions; (3) failed to conform to the VerDate Sep<11>2014 18:24 Sep 19, 2019 Jkt 247001 minimum standards of acceptable and prevailing medical practice; (4) mistreated both individuals; and (5) failed to timely respond to an investigative subpoena issued by the GCMB. Id. at 24–26, 28–29. She found that Respondent ‘‘was cavalier in prescribing medications, including controlled substances . . . [and] did not document any objective data to justify the prescriptions. Id. at 31. The Georgia ALJ concluded that Respondent’s conduct with regard to the two individuals was ‘‘egregious’’ and ‘‘reprehensible,’’ making revocation the appropriate sanction. Id. Thus, she revoked Respondent’s medical license. Id. On September 21, 2018, the GCMB issued a Final Decision (hereinafter, Final Decision). The Final Decision adopted the Findings of Fact and Conclusions of Law set forth in the Initial Decision and revoked Respondent’s medical license No. 38600, effective upon docketing. Government Motion, Exh. 3, at 2. The GCMB also denied Respondent’s Motion for Rehearing after finding that Respondent had not demonstrated that (1) the GCMB overlooked any material fact, controlling authority, or intervening change in controlling authority; (2) the GCMB or the Georgia ALJ made a clear error; (3) there was a manifest injustice; or (4) the legal authority was erroneously construed or misapplied. Order Denying Rehearing dated November 8, 2018, Government Motion, Exh. 4, at 5. According to Georgia’s online records, of which I take official notice, Respondent’s license is still revoked.5 GCMB Search for a Licensee, https:// gcmb.mylicense.com/verification (last visited September 9, 2019). Accordingly, I find that Respondent currently is not licensed to practice medicine in Georgia, the state in which he is registered with the DEA. 5 Under the Administrative Procedure Act, an agency ‘‘may take official notice of facts at any stage in a proceeding—even in the final decision.’’ United States Department of Justice, Attorney General’s Manual on the Administrative Procedure Act 80 (1947) (Wm. W. Gaunt & Sons, Inc., Reprint 1979). Pursuant to 5 U.S.C. 556(e), ‘‘[w]hen an agency decision rests on official notice of a material fact not appearing in the evidence in the record, a party is entitled, on timely request, to an opportunity to show the contrary.’’ Accordingly, Respondent may dispute my finding by filing a properly supported motion for reconsideration within 15 calendar days of the date of this Order. Any such motion shall be filed with the Office of the Administrator and a copy shall be served on the Government. In the event Respondent files a motion, the Government shall have 15 calendar days to file a response. PO 00000 Frm 00049 Fmt 4703 Sfmt 4703 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 71371 (2011), pet. for rev. denied, 481 Fed. Appx. 826 (4th Cir. 2012); Frederick Marsh Blanton, M.D., 43 FR 27616, 27617 (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. 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 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 71371–72; Sheran Arden Yeates, M.D., 71 FR 39130, 39131 (2006); Dominick A. Ricci, M.D., 58 FR 51104, 51,105 (1993); Bobby Watts, M.D., 53 FR 11919, 11920 (1988); Blanton, supra, 43 FR at 27617. According to Georgia statute, ‘‘Every person who . . . dispenses any controlled substances within this state . . . must obtain annually a registration issued by the State Board of Pharmacy.’’ Ga. Code Ann. § 16–13.35(a) (Westlaw, current through acts passed during the 2019 Session of the General Assembly). E:\FR\FM\20SEN1.SGM 20SEN1 49555 Federal Register / Vol. 84, No. 183 / Friday, September 20, 2019 / Notices A person who is licensed as a physician, however, is ‘‘registered’’ and exempt from the statute’s registration fee and application requirements. Ga. Code Ann. § 16–13–35(g)(2) (Westlaw, current through acts passed during the 2019 Session of the General Assembly). The Georgia Code defines ‘‘physician’’ as ‘‘a person licensed to practice medicine.’’ Ga. Code Ann. § 43–34–21(2) (Westlaw, current through acts passed during the 2019 Session of the General Assembly). Under Georgia law, ‘‘to practice medicine’’ includes ‘‘attaching the title ‘M.D.’ . . . to one’s name, indicating that such person is engaged in the treatment or diagnosis of disease, defects, or injuries to human beings.’’ Ga. Code Ann. § 43–34–21(3) (Westlaw, current through acts passed during the 2019 Session of the General Assembly). Here, the undisputed evidence in the record, including Respondent’s admission, is that Respondent currently lacks authority to practice medicine in Georgia. Government Motion, Exhs. 2–4; RMRC, at 2. As already discussed, a ‘‘physician,’’ under Georgia law, is a person licensed to practice medicine. Further, under Georgia law, a ‘‘physician’’ is registered to dispense controlled substances. Because Respondent lacks authority to practice medicine in Georgia, he is not registered to handle controlled substances in Georgia according to Georgia law. Accordingly, Respondent is not eligible to maintain a DEA registration and I will order that Respondent’s DEA registration be revoked.6 Order khammond on DSKJM1Z7X2PROD with NOTICES Pursuant to 28 CFR 0.100(b) and the authority vested in me by 21 U.S.C. 824(a), I hereby revoke DEA Certificate of Registration No. BS4014332 issued to John Yolman Salinas, M.D. Pursuant to 28 CFR 0.100(b) and the authority vested in me by 21 U.S.C. 823(f), I hereby deny any pending application of John Yolman Salinas to renew or to modify this registration, and any pending application of John Yolman Salinas to be registered in the state of Georgia. This Order is effective October 21, 2019. 6 Given my findings that Respondent is registered with the DEA in Georgia, that his Georgia medical license is revoked, and that he lacks authority in Georgia to dispense controlled substances, I find that both of Respondent’s CAPs—changing his registered address to another state or a Territory of the United States, and ‘‘procuring a position as an undercover physician to infiltrate pill mills and help in the war against drugs’’—provide no basis for me to discontinue or defer this proceeding. 21 U.S.C. 824(c)(3). VerDate Sep<11>2014 17:13 Sep 19, 2019 Jkt 247001 Dated: September 9, 2019. Uttam Dhillon, Acting Administrator. Dated: August 19, 2019. Neil D. Doherty, Acting Assistant Administrator. [FR Doc. 2019–20420 Filed 9–19–19; 8:45 am] [FR Doc. 2019–20414 Filed 9–19–19; 8:45 am] BILLING CODE 4410–09–P BILLING CODE 4410–09–P DEPARTMENT OF JUSTICE DEPARTMENT OF JUSTICE Drug Enforcement Administration Drug Enforcement Administration [Docket No. DEA–392] [Docket No. DEA–392] Importer of Controlled Substances Application: Fisher Clinical Services, Inc. Importer of Controlled Substances Application: Galephar Pharmaceutical Research Inc. ACTION: ACTION: Notice of application. Notice of application. Registered bulk manufacturers of the affected basic classes, and applicants therefore, may file written comments on or objections to the issuance of the proposed registration on or before October 21, 2019. Such persons may also file a written request for a hearing on the application on or before October 21, 2019. ADDRESSES: Written comments should be sent to: Drug Enforcement Administration, Attention: DEA Federal Register Representative/DPW, 8701 Morrissette Drive, Springfield, Virginia 22152. All requests for a hearing must be sent to: Drug Enforcement Administration, Attn: Administrator, 8701 Morrissette Drive, Springfield, Virginia 22152. All requests for a hearing should also be sent to: (1) Drug Enforcement Administration, Attn: Hearing Clerk/OALJ, 8701 Morrissette Drive, Springfield, Virginia 22152; and (2) Drug Enforcement Administration, Attn: DEA Federal Register Representative/DPW, 8701 Morrissette Drive, Springfield, Virginia 22152. SUPPLEMENTARY INFORMATION: In accordance with 21 CFR 1301.34(a), this is notice that on June 10, 2019, Galephar Pharmaceutical Research Inc., #100 Carr 198 Industrial Park, Juncos, Puerto Rico, 00777 applied to be registered as an importer of the following basic class of controlled substance: DATES: Registered bulk manufacturers of the affected basic classes, and applicants therefore, may file written comments on or objections to the issuance of the proposed registration on or before October 21, 2019. Such persons may also file a written request for a hearing on the application on or before October 21, 2019. DATES: Written comments should be sent to: Drug Enforcement Administration, Attention: DEA Federal Register Representative/DPW, 8701 Morrissette Drive, Springfield, Virginia 22152. All requests for a hearing must be sent to: Drug Enforcement Administration, Attn: Administrator, 8701 Morrissette Drive, Springfield, Virginia 22152. All requests for a hearing should also be sent to: (1) Drug Enforcement Administration, Attn: Hearing Clerk/OALJ, 8701 Morrissette Drive, Springfield, Virginia 22152; and (2) Drug Enforcement Administration, Attn: DEA Federal Register Representative/DPW, 8701 Morrissette Drive, Springfield, Virginia 22152. ADDRESSES: In accordance with 21 CFR 1301.34(a), this is notice that on July 19, 2019, Fisher Clinical Services, Inc., 700A–C Nestle Way, Breinigsville, Pennsylvania 18031–1522 applied to be registered as an importer of the following basic classes of controlled substances: SUPPLEMENTARY INFORMATION: Controlled substance Psilocybin ................. Methylphenidate ....... Levorphanol .............. Noroxymorphone ...... Tapentadol ................ Drug code 7437 1724 9220 9668 9780 Schedule I II II II II The company plans to import the listed controlled substances for clinical trials. PO 00000 Frm 00050 Fmt 4703 Sfmt 4703 Controlled substance Hydromorphone ........ Drug code 9150 Schedule II The company plans to import the listed controlled substance in finished dosage form for analytical purpose only. Dated: August 22, 2019. Neil D. Doherty, Acting Assistant Administrator. [FR Doc. 2019–20412 Filed 9–19–19; 8:45 am] BILLING CODE 4410–09–P E:\FR\FM\20SEN1.SGM 20SEN1

Agencies

[Federal Register Volume 84, Number 183 (Friday, September 20, 2019)]
[Notices]
[Pages 49552-49555]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-20420]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration

[Docket No. 2019-10]


John Yolman Salinas, M.D.; Decision and Order

    On December 18, 2018, the Assistant Administrator, Diversion 
Control Division, Drug Enforcement Administration (hereinafter, DEA or

[[Page 49553]]

Government), issued an Order to Show Cause to John Yolman Salinas, 
M.D., (hereinafter, Respondent), of Atlanta, Georgia. Order to Show 
Cause (hereinafter, OSC), at 1. The OSC proposes the revocation of 
Respondent's Certificate of Registration No. BS4014332 on the ground 
that Respondent does not have ``state authority to handle controlled 
substances'' in Georgia, the state in which Respondent is registered 
with the DEA. Id. (citing 21 U.S.C. 824(a)(3)).
    The substantive ground for the proceeding, as alleged in the OSC, 
is that Respondent has ``no state authority to handle controlled 
substances.'' OSC, at 1. Specifically, the OSC alleges that the Georgia 
Composite Medical Board (hereinafter, GCMB) issued a Final Decision 
revoking Respondent's medical license on September 21, 2018. Id. This 
Georgia medical license revocation, according to the OSC, means that 
Respondent is ``currently without authority to handle controlled 
substances in the State of Georgia'' and, ``[c]onsequently, DEA must 
revoke . . . [Respondent's] DEA registration.'' Id.
    The OSC notified Respondent of the right to request a hearing on 
the allegations or to submit a written statement, while waiving the 
right to a hearing, the procedures for electing each option, and the 
consequences for failing to elect either option. Id. at 2 (citing 21 
CFR 1301.43). The OSC also notified Respondent of the opportunity to 
submit a corrective action plan. OSC, at 2-3 (citing 21 U.S.C. 
824(c)(2)(C)).
    By a document entitled ``Request for Hearing'' submitted on January 
16, 2019, Respondent timely requested a hearing.\1\ According to the 
Hearing Request, Respondent ``is interested in continuing the practice 
of medicine in another state or Territory of the United States . . . 
and thus maintaining his DEA Registration active.'' Hearing Request, at 
1. Respondent's Hearing Request states that he ``is not handling any 
medications or drugs of ANY sort'' and ``has NEVER had any DEA 
violations or complaint to the present date.'' Id. (emphases in 
original).
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    \1\ The OSC is dated December 18, 2018. The Hearing Request was 
emailed on January 16, 2019. As such, I find that the Government's 
service of the OSC was adequate and that Respondent's request for a 
hearing was timely.
---------------------------------------------------------------------------

    Respondent attached a ``Corrective Action Plan'' (hereinafter, CAP) 
to his Request for Hearing. Id. at 3. The CAP states, among other 
things, that the ``Georgia Medical Board did NOT find any violations 
against . . . [Respondent] of medication errors or standard of care 
issues.'' Id. (emphasis in original). It states that Respondent ``is 
NOT currently practicing medicine in any form . . . [and] wishes to 
continue the practice of medicine for which he trained for over a 24 
years career.'' Id. (emphasis in original). Respondent's first proposed 
CAP concerns his ``having submitted current applications for medical 
licensure in several States and U.S. Territories . . . . On procurement 
of an active state medical license, the DEA Registration will be 
transferred to the active State licensed.'' Id. Respondent's second 
proposed CAP concerns Respondent's expressed interest in ``actively 
applying for a position within the DEA with the hopes of procuring a 
position as an undercover physician to infiltrate pill mills and help 
in the war against drugs.'' \2\ Id.
---------------------------------------------------------------------------

    \2\ Respondent's second proposed CAP ``further requests any 
assistance from any DEA personnel in procurement of such a 
position.'' Hearing Request, at 3.
---------------------------------------------------------------------------

    By letter dated January 30, 2019, the Assistant Administrator of 
the Diversion Control Division ``den[ied] the request to discontinue or 
defer administrative proceedings'' and stated that ``there is no 
potential modification of . . . [Respondent's proposed CAP] that could 
or would alter my decision in this regard.'' Assistant Administrator 
CAP Letter, at 1.
    The Office of Administrative Law Judges put the matter on the 
docket and assigned it to the Chief Administrative Law Judge. The 
matter was subsequently reassigned to Administrative Law Judge Mark M. 
Dowd (hereinafter, ALJ). The Government timely complied with the 
``Order Directing the Filing of Government Evidence Regarding its Lack 
of State Authority Allegation and Briefing Schedule'' by filing a 
Motion for Summary Disposition on January 28, 2019 (hereinafter, 
Government Motion). In its motion, the Government stated that 
Respondent lacks authority to handle controlled substances in Georgia 
because of the revocation of his Georgia medical license. Government 
Motion, at 3. ``Because Respondent does not have state authority to 
prescribe, administer, or dispense controlled substances in the State 
of Georgia,'' the Government Motion continued, ``he is not entitled to 
hold a DEA registration.'' Id.
    Respondent requested, and received, an additional ten business days 
to respond to the Government Motion.\3\ Motion for Extension of Time to 
Respond to Governments [sic] Motion for Summary Disposition dated 
January 31, 2019, at 1; Order Granting the Respondent's Request for 
Extension of Time dated February 4, 2019, at 1-2. According to the 
ALJ's ``Order Granting the Government's Motion for Summary Disposition 
and Recommended Rulings, Findings of Fact, Conclusions of Law, and 
Decision of the Administrative Law Judge'' dated February 21, 2019 
(hereinafter, RD), ``[t]o date, the Respondent has not filed any reply 
to the Government's allegations.'' RD, at 3. After the ALJ issued the 
RD, Respondent filed a ``Motion for Reconsideration and Clarification 
of Decision of Administrative Law Judge'' dated February 22, 2019 
(hereinafter, RMRC). The ALJ construed the RMRC to be a motion for 
leave to file an out of time response to the Government Motion and gave 
the Government the opportunity to respond to it. The Government timely 
opposed the RMRC on procedural and substantive grounds. The ALJ denied 
the RMRC. Order Denying Respondent's Motion to File an Out of Time 
Response and Reaffirming the Recommended Order Granting the 
Government's Motion for Summary Disposition dated March 19, 2019 
(hereinafter, RRD), at 5. Although the ALJ denied the RMRC, he 
addressed its substance in the RRD. RRD, at 4-5.\4\
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    \3\ The ALJ denied Respondent's request for an extension of 
forty-five days. Respondent stated that the bases for his request 
were pending applications for medical licensure in Guam and 
Mississippi. Respondent suggested that forty-five days would give 
those jurisdictions time to act on his applications and ``thus make 
moot the Administrative Law Court Summary Disposition.'' 
Respondent's Motion for Extension of Time to Respond to Governments 
[sic] Motion for Summary Disposition dated January 31, 2019, at 2. I 
agree with the ALJ's denial of Respondent's request for an extension 
of forty-five days. The issue presented in the OSC concerns 
Respondent's registration in Georgia, not his applications for 
medical licensure in Guam or Mississippi.
    \4\ I agree with the ALJ's procedural disposition of the RMRC.
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    The ALJ, in both the RD and the RRD, recommended that 
``Respondent's registration be revoked, and any pending applications be 
denied'' because ``no dispute exists over the fact that the Respondent 
currently lacks state authority to handle controlled substances in the 
state of Georgia because the . . . [GCMB] has revoked his medical 
license.'' RD, at 7-8. By letter dated March 19, 2019, the ALJ 
certified and transmitted the record to me.
    I issue this Decision and Order based on the entire record before 
me. 21 CFR 1301.43(e). I make the following findings of fact.

Findings of Fact

Respondent's DEA Registration

    Respondent is the holder of DEA Certificate of Registration No. 
BS4014332 at the registered address of 3069 Amwiler Rd., Suite Two, 
Atlanta,

[[Page 49554]]

GA 30360. Government Motion, Exh. 1, at 1. Pursuant to this 
registration, Respondent is authorized to dispense controlled 
substances in schedules II through V as a practitioner. Id. 
Respondent's registration expires on February 28, 2021, and is ``in an 
active pending status.'' Id.

The Status of Respondent's State License

    On June 18, 2018, an Administrative Law Judge at the Georgia Office 
of State Administrative Hearings (hereinafter, Georgia ALJ) issued her 
Initial Decision concerning a matter initiated by the GCMB to sanction 
Respondent's medical license. Government Motion, Exh. 2, at 1. 
According to the Initial Decision, a ``board certified family practice 
physician with 39 years' experience'' completed a peer review of 
Respondent's treatment and care of two individuals at the request of 
the GCMB. Id. at 12.
    Regarding the first individual, the peer reviewer opined that 
Respondent's treatment fell below the standard of care when he (1) 
treated the individual as a patient when they were engaged in a sexual 
relationship; (2) failed to maintain medical records to support his 
prescription of medications, including controlled substances; (3) 
failed to maintain a medical record to support the ordering of a breast 
ultrasound and diagnostic mammogram; (4) failed to maintain a medical 
record when making a ``lumbago'' diagnosis; and (5) failed to use 
proper history, physical, laboratory tests, and radiological procedures 
to make a diagnosis. Id. at 12-13.
    As to the other individual, the peer reviewer opined that 
Respondent's treatment fell below the standard of care when he (1) 
performed a gynecological examination without a female chaperone 
present; (2) had sexual relations with the individual after performing 
a gynecological examination; (3) failed to put a date on the purported 
record of the injections he gave the individual and the individual's 
subsequent reaction; and (4) failed to perform a gynecological 
examination, pap smear, and mammogram before purportedly administering 
an initial injection of Depo-Provera. Id. at 21-22.
    The Georgia ALJ concluded that the GCMB established by a 
preponderance of the evidence that Respondent (1) knowingly made 
misleading, deceptive, untrue, or fraudulent representations in the 
practice of his profession in a purported medical record and to the 
GCMB; (2) indicated untrustworthiness and engaged in conduct 
discrediting the medical profession by his acts and omissions; (3) 
failed to conform to the minimum standards of acceptable and prevailing 
medical practice; (4) mistreated both individuals; and (5) failed to 
timely respond to an investigative subpoena issued by the GCMB. Id. at 
24-26, 28-29. She found that Respondent ``was cavalier in prescribing 
medications, including controlled substances . . . [and] did not 
document any objective data to justify the prescriptions. Id. at 31. 
The Georgia ALJ concluded that Respondent's conduct with regard to the 
two individuals was ``egregious'' and ``reprehensible,'' making 
revocation the appropriate sanction. Id. Thus, she revoked Respondent's 
medical license. Id.
    On September 21, 2018, the GCMB issued a Final Decision 
(hereinafter, Final Decision). The Final Decision adopted the Findings 
of Fact and Conclusions of Law set forth in the Initial Decision and 
revoked Respondent's medical license No. 38600, effective upon 
docketing. Government Motion, Exh. 3, at 2. The GCMB also denied 
Respondent's Motion for Rehearing after finding that Respondent had not 
demonstrated that (1) the GCMB overlooked any material fact, 
controlling authority, or intervening change in controlling authority; 
(2) the GCMB or the Georgia ALJ made a clear error; (3) there was a 
manifest injustice; or (4) the legal authority was erroneously 
construed or misapplied. Order Denying Rehearing dated November 8, 
2018, Government Motion, Exh. 4, at 5.
    According to Georgia's online records, of which I take official 
notice, Respondent's license is still revoked.\5\ GCMB Search for a 
Licensee, https://gcmb.mylicense.com/verification (last visited 
September 9, 2019).
---------------------------------------------------------------------------

    \5\ Under the Administrative Procedure Act, an agency ``may take 
official notice of facts at any stage in a proceeding--even in the 
final decision.'' United States Department of Justice, Attorney 
General's Manual on the Administrative Procedure Act 80 (1947) (Wm. 
W. Gaunt & Sons, Inc., Reprint 1979). Pursuant to 5 U.S.C. 556(e), 
``[w]hen an agency decision rests on official notice of a material 
fact not appearing in the evidence in the record, a party is 
entitled, on timely request, to an opportunity to show the 
contrary.'' Accordingly, Respondent may dispute my finding by filing 
a properly supported motion for reconsideration within 15 calendar 
days of the date of this Order. Any such motion shall be filed with 
the Office of the Administrator and a copy shall be served on the 
Government. In the event Respondent files a motion, the Government 
shall have 15 calendar days to file a response.
---------------------------------------------------------------------------

    Accordingly, I find that Respondent currently is not licensed to 
practice medicine in Georgia, the state in which he is registered with 
the DEA.

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 71371 (2011), pet. for rev. denied, 481 Fed. Appx. 826 (4th 
Cir. 2012); Frederick Marsh Blanton, M.D., 43 FR 27616, 27617 (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. 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 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 71371-72; Sheran Arden Yeates, M.D., 71 FR 39130, 39131 (2006); 
Dominick A. Ricci, M.D., 58 FR 51104, 51,105 (1993); Bobby Watts, M.D., 
53 FR 11919, 11920 (1988); Blanton, supra, 43 FR at 27617.
    According to Georgia statute, ``Every person who . . . dispenses 
any controlled substances within this state . . . must obtain annually 
a registration issued by the State Board of Pharmacy.'' Ga. Code Ann. 
Sec.  16-13.35(a) (Westlaw, current through acts passed during the 2019 
Session of the General Assembly).

[[Page 49555]]

A person who is licensed as a physician, however, is ``registered'' and 
exempt from the statute's registration fee and application 
requirements. Ga. Code Ann. Sec.  16-13-35(g)(2) (Westlaw, current 
through acts passed during the 2019 Session of the General Assembly). 
The Georgia Code defines ``physician'' as ``a person licensed to 
practice medicine.'' Ga. Code Ann. Sec.  43-34-21(2) (Westlaw, current 
through acts passed during the 2019 Session of the General Assembly). 
Under Georgia law, ``to practice medicine'' includes ``attaching the 
title `M.D.' . . . to one's name, indicating that such person is 
engaged in the treatment or diagnosis of disease, defects, or injuries 
to human beings.'' Ga. Code Ann. Sec.  43-34-21(3) (Westlaw, current 
through acts passed during the 2019 Session of the General Assembly).
    Here, the undisputed evidence in the record, including Respondent's 
admission, is that Respondent currently lacks authority to practice 
medicine in Georgia. Government Motion, Exhs. 2-4; RMRC, at 2. As 
already discussed, a ``physician,'' under Georgia law, is a person 
licensed to practice medicine. Further, under Georgia law, a 
``physician'' is registered to dispense controlled substances. Because 
Respondent lacks authority to practice medicine in Georgia, he is not 
registered to handle controlled substances in Georgia according to 
Georgia law. Accordingly, Respondent is not eligible to maintain a DEA 
registration and I will order that Respondent's DEA registration be 
revoked.\6\
---------------------------------------------------------------------------

    \6\ Given my findings that Respondent is registered with the DEA 
in Georgia, that his Georgia medical license is revoked, and that he 
lacks authority in Georgia to dispense controlled substances, I find 
that both of Respondent's CAPs--changing his registered address to 
another state or a Territory of the United States, and ``procuring a 
position as an undercover physician to infiltrate pill mills and 
help in the war against drugs''--provide no basis for me to 
discontinue or defer this proceeding. 21 U.S.C. 824(c)(3).
---------------------------------------------------------------------------

Order

    Pursuant to 28 CFR 0.100(b) and the authority vested in me by 21 
U.S.C. 824(a), I hereby revoke DEA Certificate of Registration No. 
BS4014332 issued to John Yolman Salinas, M.D. Pursuant to 28 CFR 
0.100(b) and the authority vested in me by 21 U.S.C. 823(f), I hereby 
deny any pending application of John Yolman Salinas to renew or to 
modify this registration, and any pending application of John Yolman 
Salinas to be registered in the state of Georgia. This Order is 
effective October 21, 2019.

    Dated: September 9, 2019.
Uttam Dhillon,
Acting Administrator.
[FR Doc. 2019-20420 Filed 9-19-19; 8:45 am]
 BILLING CODE 4410-09-P

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