[Federal Register Volume 88, Number 209 (Tuesday, October 31, 2023)]
[Notices]
[Pages 74520-74521]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-23950]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration


Dmitry Anatolevich Shelchkov, M.D.; Decision and Order

    On July 21, 2021, the Drug Enforcement Administration (hereinafter, 
DEA or Government) issued an Order to Show Cause (hereinafter, OSC) to 
Dmitry Anatolevich Shelchkov, M.D. (hereinafter, Registrant). Request 
for Final Agency Action (hereinafter, RFAA), Appendix (hereinafter, 
RFAAX) H, at 1, 4. The OSC proposed the revocation of Registrant's 
Certificate of Registration No. BS8311502 at the registered address of 
1396 Myrtle Avenue, Brooklyn, New York 11237. Id. at 1. The OSC alleged 
that Registrant's registration should be revoked because Registrant is 
``without authority to handle controlled substances in New York, the 
state in which [he is] registered with DEA.'' Id. at 2 (citing 21 
U.S.C. 824(a)(3)).
    The Agency makes the following findings of fact based on the 
uncontroverted evidence submitted by the Government in its RFAA,\1\ 
which was fully received on July 12, 2023.\2\
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    \1\ The Government's RFAA is dated June 30, 2022. RFAA, at 6.
    \2\ Based on the Declaration from a DEA Diversion Investigator, 
the Agency finds that the Government's service of the OSC on 
Registrant was adequate. RFAAX F, at 1; see also RFAAX A (Form DEA-
12 signed by Registrant). Further, based on the Government's 
assertions in its RFAA, the Agency finds that more than thirty days 
have passed since Registrant was served with the OSC and Registrant 
has neither requested a hearing nor submitted a corrective action 
plan and therefore has waived any such rights. RFAA, at 2; see also 
21 CFR 1301.43 and 21 U.S.C. 824(c)(2).
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Findings of Fact

    On March 2, 2021, the New York State Commissioner of Health ordered 
that ``effective immediately, [Registrant] shall not practice medicine 
in the State of New York.'' RFAAX B, at 1, 3. On October 29, 2021, the 
New York State Board for Professional Medical Conduct issued a 
Determination and Order revoking Registrant's New York medical license. 
RFAAX C, at 3-4, 27. According to New York's online records, of which 
the Agency takes official notice, Registrant's New York medical license 
is revoked.\3\ New York State Department of Health Office of 
Professional Medical Conduct Physician Search, https://apps.health.ny.gov/pubdoh/professionals/doctors/conduct/factions/Home.action (last visited date of signature of this Order).\4\ 
Accordingly,

[[Page 74521]]

the Agency finds that Registrant is not licensed to engage in the 
practice of medicine in New York, the state in which he is registered 
with DEA.
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    \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, Registrant may dispute the Agency's finding 
by filing a properly supported motion for reconsideration of 
findings of fact within fifteen calendar days of the date of this 
Order. Any such motion and response shall be filed and served by 
email to the other party and to Office of the Administrator, Drug 
Enforcement Administration at <a href="/cdn-cgi/l/email-protection#fd99989cd39c999992d39c8989928f9398848ebd99989cd39a928b"><span class="__cf_email__" data-cfemail="0a6e6f6b246b6e6e65246b7e7e6578646f73794a6e6f6b246d657c">[email protected]</span></a>.
    \4\ The New York State Education Department Office of the 
Professions lists the status of Registrant's New York medical 
license as ``summary suspension'', but notes that because the office 
does not discipline physicians, the status listed might be impacted 
by New York State Department of Health action and accordingly 
provides a link to the New York State Department of Health Office of 
Professional Medical Conduct Physician Search. New York State 
Education Department Office of the Professions, Verification Search, 
https://www.op.nysed.gov/verification-search.
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Discussion

    Pursuant to 21 U.S.C. 824(a)(3), the Attorney General is authorized 
to suspend or revoke a registration issued under 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, 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 F. App'x 826 (4th 
Cir. 2012); Frederick Marsh Blanton, M.D., 43 FR 27616, 27617 
(1978).\5\
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    \5\ 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(g)(1) (this 
section, formerly section 823(f), was redesignated as part of the 
Medical Marijuana and Cannabidiol Research Expansion Act, Public Law 
117-215, 136 Stat. 2257 (2022)). Because Congress has clearly 
mandated that a practitioner possess state authority in order to be 
deemed a practitioner under the CSA, DEA has held repeatedly that 
revocation of a practitioner's registration is the appropriate 
sanction whenever he is no longer authorized to dispense controlled 
substances under the laws of the state in which he practices. See, 
e.g., James L. Hooper, 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); 
Frederick Marsh Blanton, 43 FR at 27,617.
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    According to the New York Controlled Substances Act (hereinafter, 
the Act), ``[i]t shall be unlawful for any person to manufacture, sell, 
prescribe, distribute, dispense, administer, possess, have under his 
control, abandon, or transport a controlled substance except as 
expressly allowed by this article.'' N.Y. Pub. Health Law section 3304 
(McKinney 2023). Further, the Act defines a ``practitioner'' as ``[a] 
physician . . . or other person licensed, or otherwise permitted to 
dispense, administer or conduct research with respect to a controlled 
substance in the course of a licensed professional practice. . . .'' 
Id. at section 3302(27). Finally, New York regulations state that ``[a] 
prescription for a controlled substance may be issued only by a 
practitioner who is . . . authorized to prescribe controlled substances 
pursuant to his licensed professional practice. . . .'' N.Y. Comp. 
Codes R. & Regs. tit. 10, section 80.64(a)(1) (2023).
    Here, the undisputed evidence in the record is that Registrant 
lacks authority to practice medicine in New York. As discussed above, a 
physician must be a licensed practitioner to dispense a controlled 
substance in New York. Thus, because Registrant lacks authority to 
practice medicine in New York and, therefore, is not authorized to 
handle controlled substances in New York, Registrant is not eligible to 
maintain a DEA registration. Accordingly, the Agency will order that 
Registrant's DEA registration be revoked.

Order

    Pursuant to 28 CFR 0.100(b) and the authority vested in me by 21 
U.S.C. 824(a), I hereby revoke DEA Certificate of Registration No. 
BS8311502 issued to Dmitry Anatolevich Shelchkov, M.D. Further, 
pursuant to 28 CFR 0.100(b) and the authority vested in me by 21 U.S.C. 
823(g)(1), I hereby deny any pending applications of Dmitry Anatolevich 
Shelchkov, M.D., to renew or modify this registration, as well as any 
other pending application of Dmitry Anatolevich Shelchkov, M.D., for 
additional registration in New York. This Order is effective November 
30, 2023.

Signing Authority

    This document of the Drug Enforcement Administration was signed on 
October 20, 2023, by Administrator Anne Milgram. That document with the 
original signature and date is maintained by DEA. For administrative 
purposes only, and in compliance with requirements of the Office of the 
Federal Register, the undersigned DEA Federal Register Liaison Officer 
has been authorized to sign and submit the document in electronic 
format for publication, as an official document of DEA. This 
administrative process in no way alters the legal effect of this 
document upon publication in the Federal Register.

Heather Achbach,
Federal Register Liaison Officer, Drug Enforcement Administration.
[FR Doc. 2023-23950 Filed 10-30-23; 8:45 am]
BILLING CODE 4410-09-P


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