[Federal Register Volume 87, Number 69 (Monday, April 11, 2022)]
[Notices]
[Pages 21154-21156]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-07696]



[[Page 21154]]

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DEPARTMENT OF JUSTICE

Drug Enforcement Administration


Kirk A. Hopkins, M.D.; Decision and Order

    On December 2, 2021, a former Acting Assistant Administrator, 
Diversion Control Division, Drug Enforcement Administration 
(hereinafter, Government), issued an Order to Show Cause (hereinafter, 
OSC) to Kirk A. Hopkins, M.D. (hereinafter, Registrant) of Chicago, 
Illinois. Request for Final Agency Action (hereinafter, RFAA), Exhibit 
(hereinafter RFAAX) 2 (OSC), at 1 and 3. The OSC proposed the 
revocation of Registrant's Certificate of Registration No. BH9069205. 
Id. at 1. It alleged that Registrant is ``without authority to handle 
controlled substances in Illinois, the state in which [he is] 
registered with DEA.'' Id. at 2 (citing 21 U.S.C. 824(a)(3)).
    Specifically, the OSC alleged that on December 10, 2020, the 
Illinois Department of Financial and Professional Regulation entered an 
Order, effective December 24, 2020, indefinitely suspending 
Registrant's state medical license after finding that Registrant ``had 
been convicted of wire fraud, in violation of 18 U.S.C. 1343, as a 
result of a scheme [he] conducted to defraud Medicare and Medicaid.'' 
Id. According to the OSC, the Order also required Registrant to 
immediately surrender his state medical license. Id. Further, according 
to the OSC, because Registrant's state medical license was suspended, 
his Illinois controlled substance license was placed on ``inoperative'' 
status. Id.
    The OSC notified Registrant 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 2-3 (citing 21 
CFR 1301.43). The OSC also notified Registrant of the opportunity to 
submit a corrective action plan. Id. at 3 (citing 21 U.S.C. 
824(c)(2)(C)).

Adequacy of Service

    In a Declaration dated March 8, 2022, a Diversion Investigator 
(hereinafter, the DI) assigned to the Chicago Field Division stated 
that on December 9, 2021, she sent a copy of the OSC via certified mail 
to Registrant at the address where he is presently incarcerated. RFAAX 
3, at 1-2. The DI stated that on December 15, 2021, DEA received a 
signed return receipt indicating that the OSC had been delivered. Id. 
at 2; see also id. at Appendix (hereinafter, App.) B. Further, the DI 
stated that on December 16, 2021, she spoke with the mail room 
receptionist at Registrant's place of incarceration and confirmed that 
Registrant had received the copy of the OSC. Id. at 2.
    The Government forwarded its RFAA, along with the evidentiary 
record, to this office on March 15, 2022. In its RFAA, the Government 
represents that neither Registrant nor any attorney representing 
Registrant has requested a hearing or submitted a written statement. 
RFAA, at 2; see also RFAAX 3 (DI's Declaration), at 2. The Government 
requests that Registrant's DEA registration be revoked and that any 
applications for renewal of Registrant's DEA registration be denied 
because Registrant does not have state authority to handle controlled 
substances. RFAA, at 5.
    Based on the DI's Declaration, the Government's written 
representations, and my review of the record, I find that the 
Government accomplished service of the OSC on Registrant on or before 
December 16, 2021. I also find that more than thirty days have now 
passed since the Government accomplished service of the OSC. Further, 
based on the DI's Declaration, the Government's written 
representations, and my review of the record, I find that neither 
Registrant, nor anyone purporting to represent the Registrant, 
requested a hearing, submitted a written statement while waiving 
Registrant's right to a hearing, or submitted a corrective action plan. 
Accordingly, I find that Registrant has waived the right to a hearing 
and the right to submit a written statement and corrective action plan. 
21 CFR 1301.43(d) and 21 U.S.C. 824(c)(2)(C). I, therefore, issue this 
Decision and Order based on the record submitted by the Government, 
which constitutes the entire record before me. 21 CFR 1301.43(e).

Findings of Fact

Registrant's DEA Registration

    Registrant is the holder of DEA Certificate of Registration No. 
BH9069205 at the registered address of 4426 S King Drive, Chicago, 
Illinois 60653. RFAAX 1 (DEA Certificate of Registration). Pursuant to 
this registration, Registrant is authorized to dispense controlled 
substances in schedules II through V as a practitioner. Id. 
Registrant's registration expires on October 31, 2022. Id.

The Status of Registrant's State License

    On June 17, 2020, Registrant entered into a Plea Agreement in the 
United States District Court for the Northern District of Illinois, 
Eastern Division, in which Registrant agreed to enter a voluntary plea 
of guilty to two counts of wire fraud. RFAAX 3, App. A, at 7-8 and 24. 
By entering into the Plea Agreement, Registrant admitted that 
``[b]eginning in or around 2008, and continuing through in or around 
May 2014 . . . [he] knowingly devised, intended to devise, and 
participated in a scheme to defraud and to obtain money from Medicare 
and Medicaid by means of materially false and fraudulent pretenses, 
representations[,] and promises.'' Id. at 8. Registrant also admitted 
that as a result of the false claims that he submitted and caused to be 
submitted to Medicare and Medicaid, he received approximately 
$3,365,616. Id. at 11.
    As the Plea Agreement details, Registrant owned and controlled a 
facility that ``purported to provide psychotherapy services to Medicaid 
and Medicare beneficiaries [who] were bused from group and nursing 
homes to the clinic to participate in a day program.'' Id. at 8. 
However, Registrant ``submitted, and caused to be submitted, false 
claims to Medicare and Medicaid for psychiatric services purportedly 
provided to the participants in the day program, when such services 
were not provided . . . .'' Id. at 8-9. Specifically, ``[Registrant] 
purportedly provided individual psychotherapy sessions when, in fact, 
the services were not provided'' and ``purportedly provided, or 
[purportedly] supervised another therapist providing, group 
psychotherapy sessions when, in fact, the services were not provided 
either by [Registrant] or under his supervision.'' Id. at 9. Notably, 
``[n]umerous dates of services on the false claims included dates on 
which [Registrant] was traveling [outside of Illinois] and dates on 
which the beneficiaries were themselves unavailable to have received 
the purported services because they were admitted into a hospital 
facility or deceased.'' Id.
    Moreover, Registrant ``also paid, and caused his employees to pay, 
cash to certain beneficiaries in order to entice them to attend the day 
program'' when ``[i]n reality, rather than receive psychotherapy 
services[,] the participants of the day program were placed in a large 
holding room to watch television and, on occasion, received group 
therapy from unsupervised and often-unlicensed counselors.'' Id. As for 
the submission of the false claims, Registrant ``directed his employees 
to delay submission of the false claims until after beneficiaries' 
deductibles had been exhausted[ ] in order to insure [sic]

[[Page 21155]]

that [Registrant's facility] received payment because [Registrant] did 
not collect deductibles.'' Id.
    In addition, Registrant ``also purportedly provided psychotherapy 
services to Medicare and Medicaid beneficiaries residing at nursing 
home facilities'' and ``submitted, and caused to be submitted, false 
claims to Medicaid or Medicare for payment for services purportedly 
rendered to such nursing home residents when, in fact, [Registrant] had 
not provided the services because [he] was traveling [outside of 
Illinois] or the beneficiaries were themselves unavailable to have 
received the purported services because they were admitted into a 
hospital facility or deceased.'' Id. at 9-10.
    Finally, Registrant ``also offered and paid renumeration, including 
kickbacks and bribes'' to induce individuals, including employees of 
``Healthcare Facility A,'' to refer residents who were insured by 
Medicare or Medicaid to Registrant for psychotherapy treatment at 
either Registrant's facility or at Healthcare Facility A. Id. at 10. 
Further, Registrant ``submitted, and caused to be submitted, false 
claims to Medicare and Medicaid for psychiatric services purportedly 
provided to patients at Healthcare Facility A[ ] when such services 
were not provided.'' Id. Again, Registrant ``purportedly provided 
individual psychotherapy sessions when, in fact, the services were not 
provided'' and ``purportedly provided, or [purportedly] supervised 
another therapist providing, group psychotherapy sessions when, in 
fact, the services were not provided either by [Registrant] or under 
his supervision.'' Id. Additionally, ``dates of services on the false 
claims for services purportedly provided or supervised by [Registrant] 
at Healthcare Facility A included dates on which [Registrant] was 
traveling [outside of Illinois] and dates on which the beneficiaries 
were themselves unavailable to have received the purported services 
because they were admitted into a hospital facility or deceased.'' Id.
    On October 7, 2020, a Judgment was entered by the United States 
District Court for the Northern District of Illinois, Eastern District, 
after Registrant pleaded guilty to two counts of ``Fraud By Wire, 
Radio, Or Television.'' Id. at 25. Registrant was sentenced to 36 
months imprisonment followed by a one-year period of supervised 
release. Id. at 26-27. Registrant was also required to pay restitution 
of $3,189,007.88. Id. at 31-32.
    On October 9, 2020, the Illinois Department of Financial and 
Professional Regulation (hereinafter, the Department) issued to 
Registrant a Notice of Intent to Issue Indefinite Suspension Order in 
which the Department stated its intent to ``issue an order indefinitely 
suspending [Registrant's] license as an Illinois Physician and 
Surgeon'' following Registrant's guilty plea and conviction. Id. at 3. 
On December 10, 2020, the Department issued its Indefinite Suspension 
Order, effective December 24, 2020, in which Registrant's Illinois 
Physician and Surgeon License was indefinitely suspended and Registrant 
was ordered to surrender his license to the Department. Id. at 1-2.
    According to Illinois online records, of which I take official 
notice, Registrant's state medical license is still suspended.\1\ 
Illinois Department of Financial and Professional Regulation License 
Lookup, https://online-dfpr.micropact.com/lookup/licenselookup.aspx 
(last visited date of signature of this Order). Further, Illinois 
online records list the status of Registrant's state controlled 
substance license as ``inoperative.'' Id.
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    \1\ 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 my finding by filing 
a properly supported motion for reconsideration of finding 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#d8bcbdb9f6b9bcbcb7f6b9acacb7aab6bda1ab98bcbdb9f6adabbcb7b2f6bfb7ae"><span class="__cf_email__" data-cfemail="b3d7d6d29dd2d7d7dc9dd2c7c7dcc1ddd6cac0f3d7d6d29dc6c0d7dcd99dd4dcc5">[email protected]</span></a>.
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    Accordingly, I find that Registrant is not currently licensed to 
engage in the practice of medicine nor registered to dispense 
controlled substances in Illinois, 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 F. App'x 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., 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 27617.
    Pursuant to the Illinois Controlled Substances Act, a 
``practitioner'' means ``a physician licensed to practice medicine in 
all its branches . . . or other person licensed, registered, or 
otherwise lawfully permitted by the United States 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) (West 2022). Further, the Illinois Controlled 
Substances Act 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). The 
Illinois Controlled Substances Act also authorizes the Department of 
Financial and Professional Regulation to discipline a practitioner 
holding a

[[Page 21156]]

controlled substance license, stating that ``[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 Registrant 
currently lacks authority to handle controlled substances in Illinois 
as his Illinois medical license is suspended and his Illinois 
controlled substance license is inoperative. As already discussed, a 
practitioner must hold a valid controlled substance license to dispense 
a controlled substance in Illinois. Thus, because Registrant lacks 
authority to handle controlled substances in Illinois, Registrant is 
not eligible to maintain a DEA registration. Accordingly, I 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. 
BH9069205 issued to Kirk A. Hopkins, M.D. Further, 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 Kirk A. Hopkins, M.D. to renew or 
modify this registration, as well as any other pending application of 
Kirk A. Hopkins, M.D. for additional registration in Illinois. This 
Order is effective May 11, 2022.

Anne Milgram,
Administrator.
[FR Doc. 2022-07696 Filed 4-8-22; 8:45 am]
BILLING CODE 4410-09-P


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