[Federal Register Volume 87, Number 132 (Tuesday, July 12, 2022)]
[Notices]
[Pages 41355-41356]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-14841]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration

[Docket No. 22-23]


Bhanoo Sharma, M.D.; Decision and Order

    On April 4, 2022, the Drug Enforcement Administration (hereinafter, 
DEA or Government), issued an Order to Show Cause (hereinafter, OSC) to 
Bhanoo Sharma, M.D. (hereinafter, Respondent). OSC, at 1 and 3. The OSC 
proposed the revocation of Respondent's Certificate of Registration No. 
FS3031034 at the registered address of 17577 Kedzie Avenue, Suite 108, 
Hazel Crest, Illinois 60429. Id. at 1. The OSC alleged that 
Respondent's registration should be revoked because Respondent is 
``without authority to handle controlled substances in the State of 
Illinois, the state in which [he is] registered with DEA.'' Id. at 2 
(citing 21 U.S.C. 824(a)(3)).
    By letter dated May 4, 2022, Respondent requested a hearing. On May 
4, 2022, Chief Administrative Law Judge John J. Mulrooney, II 
(hereinafter, the Chief ALJ) issued an Order Directing the Filing of 
Government Evidence Regarding Its Lack of State Authority Allegation 
and Briefing Schedule. On May 11, 2022, the Government filed its 
Submission of Evidence and Motion for Summary Disposition (hereinafter, 
Motion for Summary Disposition). On May 20, 2022, Respondent filed his 
Reply in Opposition to the Government's Motion for Summary Disposition 
(hereinafter, Respondent's Reply).\1\
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    \1\ In his Reply, Respondent argued that his DEA registration 
should not be revoked because, although his Illinois medical license 
was suspended, no specific action had been taken against his 
Illinois controlled substance license and there have been no 
allegations against him regarding his controlled substance 
prescribing. Respondent's Reply, at 2. Further, Respondent argued 
that his DEA registration should not be revoked because he is 
appealing the underlying action that resulted in the suspension of 
his Illinois medical license. Id. at 2-4. Finally, Respondent argued 
that the plain language of 21 U.S.C. 824(a)(3) does not mandate 
revocation of a DEA registration upon suspension of a practitioner's 
state medical license, but rather, implies that revocation is 
discretionary. Id. at 4-5. In support of his final argument, 
Respondent asserts that the Government has not put forth any 
argument indicating why his DEA registration must be revoked. Id.
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    On June 1, 2022, the Chief ALJ granted the Government's Motion for 
Summary Disposition and recommended the revocation of Respondent's DEA 
registration, finding that because Respondent lacks state authority to 
handle controlled substances, ``there is no other fact of consequence 
for [the] tribunal to decide in order to determine whether or not 
[Respondent] is entitled to hold a [DEA registration].'' 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 (hereinafter, Recommended Decision or RD), at 
6.\2\
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    \2\ By letter dated June 28, 2022, the Chief ALJ certified and 
transmitted the record to the Agency for final agency action, 
advising that neither party filed exceptions.
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    The Agency issues this Decision and Order based on the entire 
record before it, 21 CFR 1301.43(e), and makes the following findings 
of fact.

Findings of Fact

    On February 19, 2021, the Illinois Department of Financial and 
Professional Regulation issued an Order suspending Respondent's 
Illinois medical license. Government Exhibit 3, at 1-2. According to 
Illinois online records, of which the Agency takes official notice, 
Respondent's state medical license is still suspended.\3\

[[Page 41356]]

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 Respondent's state controlled 
substance license as ``inoperative.'' Id. Accordingly, the Agency finds 
that Respondent is not currently licensed to engage in the practice of 
medicine and his controlled substances license is inoperative in 
Illinois, the state in which he is registered with the 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, Respondent may dispute the Agency's 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#27434246094643434809465353485549425e546743424609525443484d09404851"><span class="__cf_email__" data-cfemail="ee8a8b8fc08f8a8a81c08f9a9a819c808b979dae8a8b8fc09b9d8a8184c0898198">[email protected]</span></a>.
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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, 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 \4\ 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 F. App'x 826 (4th 
Cir. 2012); Frederick Marsh Blanton, M.D., 43 FR 27,616, 27,617 
(1978).\5\
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    \4\ As such, the Agency finds Respondent's arguments regarding 
the permissive nature of 21 U.S.C. 824(a)(3) to be unavailing. See 
also John B. Freitas, D.O., 74 FR 17,524, 17,525 (2009) (``the CSA 
requires the revocation of a registration issued to a practitioner 
who lacks [such] authority.'').
    \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(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 
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, 
M.D., 53 FR 11,919, 11,920 (1988); Frederick Marsh Blanton, 43 FR at 
27,617.
    Moreover, because ``the controlling question'' in a proceeding 
brought under 21 U.S.C. 824(a)(3) is whether the holder of a 
practitioner's registration ``is currently authorized to handle 
controlled substances in the [S]tate,'' Hooper, 76 FR at 71,371 
(quoting Anne Lazar Thorn, 62 FR 12,847, 12,848 (1997)), the Agency 
has also long held that revocation is warranted even where a 
practitioner is still challenging the underlying action. Bourne 
Pharmacy, 72 FR 18,273, 18,274 (2007); Wingfield Drugs, 52 FR 
27,070, 27,071 (1987). Thus, it is of no consequence that the 
underlying action in this case is being appealed. What is 
consequential is the Agency's finding that Respondent is no longer 
currently authorized to dispense controlled substances in Illinois, 
the state in which he is registered with the DEA.
    Further, it is of no consequence the specific manner in which 
Respondent's state authority was lost. See, e.g., Alex E. Torres, 
M.D., 87 FR 3,352 (2022) (voluntary surrender of medical license); 
Humberto A. Florian, M.D., 86 FR 52,203 (2021) (state medical 
license revoked); Javaid A. Perwaiz, M.D., 86 FR 20,732 (2021) 
(state medical license expired). Thus, Respondent's argument that 
his DEA registration should not be revoked because no specific 
action was taken against his Illinois controlled substance license 
is without merit. Additionally, it is of no consequence that there 
have been no allegations against Respondent regarding his controlled 
substance prescribing. See, e.g., Kirk A. Hopkins, M.D., 87 FR 
21,154 (2022) (allegations of wire fraud); Florian, 86 FR 52,203 
(allegations of negligence in medical practice). Once again, what is 
consequential is the Agency's finding that Respondent is no longer 
currently authorized to dispense controlled substances in Illinois, 
the state in which he is registered with the DEA.
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    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).\6\
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    \6\ The Illinois Controlled Substances Act also authorizes the 
Department of Financial and Professional Regulation to discipline a 
practitioner holding a 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).
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    Here, the undisputed evidence in the record is that Respondent 
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, Respondent is not eligible to 
maintain a DEA registration in Illinois. Accordingly, the Agency will 
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. 
FS3031034 issued to Bhanoo Sharma, 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 applications of Bhanoo Sharma, M.D. to renew or modify 
this registration, as well as any other pending application of Bhanoo 
Sharma, M.D. for additional registration in Illinois. This Order is 
effective August 11, 2022.

Signing Authority

    This document of the Drug Enforcement Administration was signed on 
July 6, 2022, 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. 2022-14841 Filed 7-11-22; 8:45 am]
BILLING CODE 4410-09-P


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