[Federal Register Volume 82, Number 206 (Thursday, October 26, 2017)]
[Notices]
[Pages 49663-49665]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-23329]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration

[Docket No. 17-28]


Yoon H. Choi, M.D.; Decision and Order

    On April 4, 2017, the Assistant Administrator, Division of 
Diversion Control, issued an Order to Show Cause to Yoon H. Choi, M.D. 
(Respondent), of Brockton, Massachusetts. The Show Cause Order proposed 
the revocation of Respondent's DEA Certificate of Registration as a 
practitioner, on the ground that he does not have authority to dispense 
controlled substances in Massachusetts, the State in which he is 
registered with the Agency. Show Cause Order, at 1.
    As to the Agency's jurisdiction, the Show Cause Order alleged that 
Respondent holds DEA Certificate of Registration No. BC6966381, which 
authorizes him to dispense controlled substances in schedules II 
through V as a practitioner, at the registered address of Steward 
Medical Group, One Pearl Street, Suite 2200, Brockton, Massachusetts. 
Id. The Show Cause Order alleged that this registration does not expire 
until August 31, 2018. Id.
    As to the substantive ground for the proceeding, the Show Cause 
Order alleged that ``[o]n January 5, 2017, the Commonwealth of 
Massachusetts Board of Registration in Medicine indefinitely suspended 
[his] medical license'' and that ``[t]his order remains in effect.'' 
Id. The Order thus alleged that Respondent is ``without authority to 
handle controlled substances in . . . Massachusetts, the [S]tate in 
which [he is] registered,'' that he is ``required to

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possess authority from a [S]tate in order to obtain or retain a DEA 
registration,'' and that the Agency ``must revoke [his registration] 
based upon [his] lack of authority to handle controlled substances in . 
. . Massachusetts in violation of 21 U.S.C. 823(f) and 824(a)(3).'' \1\ 
Id. at 1-2.
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    \1\ The Government's allegation erroneously suggests that 
Respondent's mere holding of a registration when his state authority 
had been suspended constitutes a violation of these provisions. 
These provisions are, however, grants of authority to the Attorney 
General to grant an application or revoke an existing registration. 
While these provisions (along with 21 U.S.C. 802(21)) manifest that 
a practitioner must hold state authority to obtain or maintain a 
registration, a practitioner does not violate the CSA simply by 
continuing to hold a registration after a State suspends or revokes 
his medical license. If, however, a practitioner prescribed 
controlled substances without holding state authority, he would 
violate a DEA regulation. See 21 CFR 1306.03(a)(1).
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    The Show Cause Order also notified Respondent of his right to 
request a hearing on the allegations or to submit a written statement 
while waiving his right to a hearing, the procedure for electing either 
option, and the consequence for failing to elect either option. Id. at 
2. The Show Cause Order also notified Respondent of his right to submit 
a Corrective Action Plan under 21 U.S.C. 824(c)(2)(C). Id. at 2-3.
    On May 8, 2017, Respondent, through his counsel, timely requested a 
hearing.\2\ Resp.'s Hearing Request, at 1. The matter was placed on the 
docket of the Office of Administrative Law Judges and assigned to ALJ 
Charles Wm. Dorman, who issued a scheduling order the following day. 
Order Granting Summary Disposition, at 2. Under the ALJ's order, the 
Government was required to file any motion for summary disposition by 
May 16, 2017 and Respondent was required to file its opposition to the 
motion by ``2:00 p.m. EDT on May 26, 2017.'' Id.
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    \2\ In his hearing request, Respondent also noted that he had 
filed a Corrective Action Plan with the Assistant Administrator, 
Diversion Control Division. Hearing Request, at 1 n.1.
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    On May 16, 2017, the Government filed its motion for summary 
disposition. Therein, the Government maintained that it is undisputed 
that Respondent lacks authority to dispense controlled substances in 
Massachusetts, the State in which he is registered, and that therefore, 
he ``no longer meets the statutory definition of a practitioner.'' Mot. 
for Summ. Disp., at 3-4. As support for the motion, the Government 
attached a copy of the Final Decision and Order of the Commonwealth of 
Massachusetts Board of Registration in Medicine, which indefinitely 
suspended Respondent's medical license, effective January 5, 2017. The 
Government also attached a printout from the Board's Web site which it 
obtained on May 12, 2017 and which shows that Respondent's medical 
license was still suspended, as well as a copy of Respondent's 
Corrective Action Plan and his Certificate of Registration.
    Respondent did not file any pleading in response to the 
Government's motion. Order Granting Summary Disposition, at 2. 
Accordingly, on June 5, 2017, the ALJ granted the Government's motion, 
finding it undisputed that Respondent's state ``medical license is 
currently suspended'' and that he ``lacks state authorization to handle 
controlled substances in Massachusetts,'' the State in which he is 
registered. Id. at 5. Because ``DEA precedent requires that the 
Respondent cannot maintain a DEA registration for any location in that 
[S]tate,'' the ALJ recommended that I revoke his registration. Id. at 
5-6.
    Neither party filed exceptions to the ALJ's Order. Thereafter, on 
July 11, 2017, the ALJ forwarded the record to my Office for Final 
Agency Action.
    Upon review of the record, the former Acting Administrator noted 
that while Respondent had filed a Corrective Action Plan the record 
contained no evidence as to the Assistant Administrator's decision as 
to the adequacy of Respondent's Corrective Action Plan. Accordingly, on 
September 22, 2017, the former Acting Administrator issued an Order 
directing the Government to notify my Office of the status of 
Respondent's Corrective Action Plan, and in the event the Assistant 
Administrator had issued a decision on review of the Plan, to provide a 
copy of that decision. The former Acting Administrator provided 
Respondent with the right to reply to the Government's submission no 
later than five business days from the date of receipt of the 
Government's submission.
    On September 25, 2017, the Government submitted a copy of the 
former Assistant Administrator's letter of June 12, 2017 rejecting 
Respondent's Corrective Action Plan.\3\ The former Assistant 
Administrator also explained that ``there [was] no potential 
modification of [Respondent's Plan] that could or would alter my 
decision.'' Letter from Assistant Administrator, Diversion Control 
Division, to Respondent's Counsel (June 12, 2017). Respondent did not 
file a response to the Government's submission.
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    \3\ A copy of this letter does not appear to have been 
previously provided to the ALJ.
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    Having considered the record in its entirety, I adopt the ALJ's 
factual finding that Respondent's Massachusetts medical license has 
been suspended, as well as his legal conclusion that he currently lacks 
authority to dispense controlled substances in Massachusetts and thus, 
he ``cannot maintain'' his DEA registration. I also adopt the ALJ's 
recommended Order that I revoke his registration. I make the following 
factual findings.

Findings

    Respondent is the holder of DEA Certificate of Registration No. 
BC6966381, pursuant to which he is authorized to dispense controlled 
substances in schedules II through V as a practitioner, at the 
registered address of Steward Medical Group Brockton, One Pearl Street 
Suite 2200, Brockton, MA 02301. GX 1. This registration does not expire 
until August 31, 2018.
    Respondent is also the holder of Medical License No. 206555 issued 
by the Commonwealth of Massachusetts Board of Registration in Medicine. 
GX 2, at Attachment B. However, on January 5, 2017, the Board issued a 
Final Decision and Order which ``indefinitely suspended'' his medical 
license. GX 2, at Attachment A. According to the Board's Physician 
Profile Web page of which I take Official Notice, see 5 U.S.C. 
556(e),\4\ the suspension remains in effect as of the date of this 
Decision and Order.\5\
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    \4\ Respondent may refute this finding by filing a properly 
supported motion for reconsideration with the Office of the 
Administrator within 10 business days of the date of this Decision 
and Order.
    \5\ While the Board's Order provides that ``Respondent may 
petition to stay [the] suspension upon successful completion of a 
clinical skills assessment by a board-approved entity and entry into 
a Probation Agreement,'' the suspension remains in effect as of the 
date of this Order.
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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, ``upon a 
finding that the Registrant . . . has had his State license . . . 
suspended [or] revoked . . . by competent State authority and is no 
longer authorized by State law to engage in the . . . dispensing of 
controlled substances.'' Moreover, DEA has held repeatedly 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, 76 FR 71371 
(2011), pet. for rev. denied, 481 Fed Appx. 826 (4th Cir. 2012).
    This rule derives from the text of two provisions of the CSA. 
First, Congress defined ``the term `practitioner' [to] mean[] a . . . 
physician . . . or other

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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 physician possess state authority in order 
to be deemed a practitioner under the Act, DEA has held 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 medicine. See, e.g., Calvin 
Ramsey, 76 FR 20034, 20036 (2011); Sheran Arden Yeates, M.D., 71 FR 
39130, 39131 (2006); Dominick A. Ricci, 58 FR 51104, 51105 (1993); 
Bobby Watts, 53 FR 11919, 11920 (1988); see also Hooper v. Holder, 481 
Fed. Appx. at 828.
    As a consequence of the Board's Final Decision and Order, 
Respondent is not currently authorized to dispense controlled 
substances in Massachusetts, the State in which he is registered. 
Because the CSA makes clear 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 both obtaining and maintaining a practitioner's 
registration, it is of no consequence that the Board's Order provided 
that he may petition to stay the suspension upon meeting certain 
conditions. Cf. Hooper v. Holder, 481 F. App'x at 828 (upholding 
revocation of a physician's registration as based on a reasonable 
interpretation of the CSA, notwithstanding that the physician's medical 
license was subject to a suspension of known duration); see also James 
L. Hooper, 76 FR 71371, 71371-72 (2011).\6\ As of this date, Respondent 
is not currently authorized to dispense controlled substances in 
Massachusetts, and therefore, he is not entitled to maintain his 
registration in that State. Accordingly, I will order that his 
registration be revoked and that any pending application to renew his 
registration, or for any other registration in the Commonwealth of 
Massachusetts be denied.
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    \6\ By contrast, Respondent's suspension is of unknown duration.
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Order

    Pursuant to the authority vested in me by 21 U.S.C. 824(a), as well 
as 28 CFR 0.100(b), I order that DEA Certificate of Registration No. 
BC6966381 issued to Yoon Choi, M.D., be, and it hereby is, revoked. 
Pursuant to the authority vested in me by 21 U.S.C. 823(f), I further 
order that any application of Yoon Choi, M.D., to renew or modify this 
registration, or for any other registration in the Commonwealth of 
Massachusetts, be, and it hereby is, denied. This Order is effective 
November 27, 2017.

    Dated: October 17, 2017.
Robert W. Patterson,
Acting Administrator.
[FR Doc. 2017-23329 Filed 10-25-17; 8:45 am]
 BILLING CODE 4410-09-P