[Federal Register: September 24, 2007 (Volume 72, Number 184)]
[Notices]
[Page 54297-54298]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr24se07-69]
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DEPARTMENT OF JUSTICE
Drug Enforcement Administration
David W. Wang, M.D.; Revocation of Registration
On August 7, 2006, the Deputy Assistant Administrator, Office of
Diversion Control, Drug Enforcement Administration, issued an Order to
Show Cause to David W. Wang, M.D. (Respondent), of Orlando, Florida.
The Show Cause Order proposed the revocation of Respondent's DEA
Certificate of Registration, AW2834528, as a practitioner, and the
denial of his pending application to renew the registration, on two
grounds.
First, the Show Cause Order alleged that Respondent had committed
acts which render his continued registration inconsistent with the
public interest. See 21 U.S.C. 824(a)(4). More specifically, the Show
Cause Order alleged that Respondent had issued prescriptions for
controlled substances to undercover operatives for no legitimate
medical purpose and outside of the usual course of professional
practice. Id. at 1-2.
Second, the Show Cause Order alleged that on August 16, 2005, the
Florida Department of Health ordered the emergency suspension of
Respondent's state medical license and that the suspension remains in
effect. Id. at 2. The Show Cause Order thus alleged that Respondent
lacks ``state authorization to handle controlled substances,'' which is
``a necessary prerequisite for DEA registration.'' Id. (citing 21
U.S.C. 802(21), 823(f), & 824(a)(3)).
On August 17, 2006, the Show Cause Order was served on Respondent
by certified mail, return receipt requested. Thereafter, on September
5, 2006, Respondent submitted a letter in which he ``den[ied] all of
the allegations in the suspension of [his] Florida license,'' and
stated that he was pursuing various state law remedies to obtain
reinstatement of his medical license. Letter from Resp. to Hearing
Clerk (Sep. 5, 2006).
Respondent further requested that the DEA proceeding be continued
until the state administrative proceeding was completed. Respondent
stated that he was ``requesting to withdraw[] my renewal request and
that [DEA] hold all proceedings against [his] DEA registration pending
the outcome of the proceedings involving'' his medical license. Id.
Respondent added that ``if there is no possible way to stop [the DEA]
proceedings then I hereby request a formal hearing.'' Id. Respondent
added, however, that he would need to have the DEA hearing ``postponed
until I finish the'' Florida medical license proceedings.
The case was assigned to Administrative Law Judge (ALJ) Mary Ellen
Bittner. On September 25, 2006, the ALJ issued a Memorandum to the
Parties regarding the issues Respondent raised in his letter. In the
Memorandum, the ALJ denied Respondent's request ``to hold this
proceeding in abeyance pending the resolution of the Florida licensure
proceedings.'' Memorandum to Parties at 2. The ALJ further advised
Respondent of the procedures that must be followed under DEA
regulations to withdraw his renewal application. Id. The ALJ thus
directed Respondent to advise her by October 16, 2006, whether he
intended to withdraw his renewal application, or whether he intended to
proceed with his request for a hearing. Id. at 3.
Respondent did neither. Accordingly, on December 15, 2006, the
Government moved to terminate the proceeding on the ground that
Respondent had waived his right to a hearing. Motion to Terminate at 2.
On December 18, 2006, the ALJ found that Respondent had ``waived
his right to a hearing.'' Order Terminating Proceedings. The ALJ thus
granted the Government's motion and ordered that the proceeding be
terminated. Id.
Thereafter, on June 11, 2007, the investigative file was forwarded
to me for final agency action. Based on Respondent's failure to respond
to the ALJ's Memorandum, I find that he has waived his right to a
hearing. 21 CFR 1301.43(d). I therefore enter this Final Order without
a hearing based on relevant material contained in the investigative
file. Id. Sec. 1301.43(e). I make the following findings.
Findings
Respondent is the holder of DEA Certificate of Registration,
AW2834528, which authorizes him to handle controlled substances as a
practitioner at the registered location of 3827 Landlubber Street,
Orlando, Florida. Respondent's registration expired on May 31, 2006.
Respondent, however, applied for a renewal of his registration on May
24, 2006. Respondent's
[[Page 54298]]
registration has therefore remained in effect pending the issuance of
this Final Order. See 5 U.S.C. 558(c).
On August 19, 2005, the Secretary of the Florida Department of
Health issued to Respondent an ``Amended Order of Emergency Suspension
of License'' (hereinafter, State Order). The State Order alleged that
Respondent had prescribed drugs including controlled substances ``other
than in the course of the physician's professional practice.'' State
Order at 23. The State Order further alleged that Respondent had
``inappropriately and excessively prescribed controlled substances * *
* to six undercover agents without performing adequate physical
examinations of them; by repeatedly prescribing controlled substances
to these patients without ascertaining the etiology of their pain; and
by prescribing controlled substances to the patients without medical
justification.'' Id. at 20.
The State Order further alleged that ``[o]n or about August 16,
2005, the Circuit Court for Brevard County, Florida issued an arrest
warrant for [Respondent] based on charges of trafficking in hydrocodone
over 28 grams in violation of [Fla. Stat. Sec. 893.135], and unlawful
distribution of controlled substances in violation of'' Fla. Stat.
Sec. 893.13. Id. Relatedly, the State Order alleged that on August 17,
2005, Respondent was arrested by officers of the Melbourne, Florida
Police Department. Id.
The Order thus concluded that Respondent's ``continued practice as
a physician constitutes an immediate serious danger to the health,
safety, and welfare of the public,'' and ``immediately suspended'' his
Florida medical license. Id. at 23-34. According to the online records
of the Florida Department of Health, the emergency suspension order
remains in effect.
Moreover, according to the online records of the Brevard County
Clerk of Courts, on July 17, 2006, Respondent was charged with two
counts of trafficking in illegal drugs, a violation of Fla. Stat. Sec.
893.135.1(c).1.C, and a first degree felony under Florida law. The
criminal case remains pending.
Discussion
Under the Controlled Substances Act (CSA), a practitioner must be
currently authorized to handle controlled substances in ``the
jurisdiction in which he practices'' in order to maintain a DEA
registration. See 21 U.S.C. 802(21) (``[t]he term `practitioner' means
a physician * * * 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''). See also id. Sec. 823(f) (``The Attorney
General shall register practitioners * * * if the applicant is
authorized to dispense * * * controlled substances under the laws of
the State in which he practices.''). DEA has held repeatedly that the
CSA requires the revocation of a registration issued to a practitioner
whose state license has been suspended or revoked.\1\ See Sheran Arden
Yeates, 71 FR 39130, 39131 (2006); Dominick A. Ricci, 58 FR 51104,
51105 (1993); Bobby Watts, 53 FR 11919, 11920 (1988). See also 21
U.S.C. 824(a)(3) (authorizing the revocation of a registration ``upon a
finding that the registrant * * * has had his State license or
registration suspended [or] revoked * * * and is no longer authorized
by State law to engage in the * * * distribution [or] dispensing of
controlled substances'').
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\1\ DEA regulations allow a registrant to submit ``a written
statement regarding such person's position on the matters of fact
and law,'' along with a waiver of the opportunity for a hearing. 21
CFR 1301.44(c). Even if I was to hold that Respondent's letter
denying the allegations of the state suspension complied with this
regulation, his statement is immaterial to the ground I rely on in
revoking his registration.
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As found above, on August 19, 2005, the Secretary of the Florida
Department of Health immediately suspended Respondent's state medical
license and that suspension remains in effect. Respondent is therefore
without authority to handle controlled substances in the State in which
he is registered and is not entitled to maintain his DEA registration.
Order
Accordingly, pursuant to the authority vested in me by 21 U.S.C.
823(f) & 824(a), as well as 28 CFR 0.100(b) & 0.104, I hereby order
that DEA Certificate of Registration, AW2834528, issued to David W.
Wang, M.D., be, and it hereby is, revoked. I further order that any
pending applications for renewal or modification of such registration
be, and they hereby are, denied. This order is effective October 24,
2007.
Dated: September 14, 2007.
Michele M. Leonhart,
Deputy Administrator.
[FR Doc. E7-18778 Filed 9-21-07; 8:45 am]
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