Document Headings

                    Document headings vary by document type but may contain                    the following:                  
                -                       the agency or agencies that issued and signed a document                    
                -                       the number of the CFR title and the number of each part                      the document amends, proposes to amend, or is directly                      related to                    
                -                       the agency docket number / agency internal file number                    
                -                       the RIN which identifies each regulatory action listed in                      the Unified Agenda of Federal Regulatory and Deregulatory                      Actions                    

                    See the                                          Document Drafting Handbook                                        for more details.                  

###### Department of Justice

###### Drug Enforcement Administration

                    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] 

## 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,                           ( print 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.                

## 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] 

                    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.

# Footnotes

1.                             The Government's RFAA is dated June 30, 2022. RFAA, at 6.                    
        Back to Citation      

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).                    
        Back to Citation      

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                         *dea.addo.attorneys@dea.gov.*
        Back to Citation      

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.*
        Back to Citation      

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.                    
        Back to Citation      

[FR Doc. 2023-23950 Filed 10-30-23; 8:45 am]

BILLING CODE 4410-09-P