Notice2021-27431
Washington Bryan, M.D.; Decision and Order
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Published
December 20, 2021
Issuing agencies
Justice DepartmentDrug Enforcement Administration
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<title>Federal Register, Volume 86 Issue 241 (Monday, December 20, 2021)</title>
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[Federal Register Volume 86, Number 241 (Monday, December 20, 2021)]
[Notices]
[Pages 71924-71927]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-27431]
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DEPARTMENT OF JUSTICE
Drug Enforcement Administration
Washington Bryan, M.D.; Decision and Order
On June 16, 2021, a former Assistant Administrator, Diversion
Control Division, Drug Enforcement Administration (hereinafter, DEA or
Government), issued an Order to Show Cause to Washington Bryan, M.D.,
(hereinafter, Applicant), of Los Angeles, California. Order to Show
Cause (hereinafter, OSC), at 1. The OSC proposed the denial of
Applicant's application No. W19097421C for a DEA Certificate of
Registration, because the United States Department of Health and Human
Services, Office of Inspector General (hereinafter, HHS/OIG)
mandatorily excluded Applicant from participation in Medicare,
Medicaid, and all Federal health care programs for a minimum period of
10 years pursuant to 42 U.S.C. 1320a-7(a); and such exclusion
``warrants denial of [Applicant's] application for DEA registration
pursuant to 21 U.S.C. 824(a)(5).'' Id. at 2. The OSC also alleged that
Applicant had ``been convicted of a felony relating to controlled
substances.'' Id. (citing 21 U.S.C. 824(a)(2)).
The OSC alleged that on November 17, 2016, Applicant was
``convicted of twenty-nine felony counts of currency transaction
structuring, resulting in a thirty-three month federal incarceration.
The funds involved in the illegal structuring transactions were related
to [Applicant's] writing of controlled substance prescriptions.'' OSC,
at 1. The OSC alleged that as a result of this conviction, Applicant
surrendered his then-active DEA registration. Id. at 2. It proposed
denial of Applicant's application based on 21 U.S.C. 824(a)(2). Id. The
OSC further alleged that, based on such conviction, HHS/OIG
``mandatorily excluded [Applicant] from participation in Medicare,
Medicaid, and all Federal health care programs'' for a minimum period
of 10 years pursuant to 42 U.S.C. 1320a-7(a), effective January 18,
2018. Id. The OSC additionally proposed denial of Applicant's
application based on 21 U.S.C. 824(a)(5).
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The Show Cause Order notified Applicant 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 (citing 21 CFR 1301.43). The OSC also notified Applicant of the
opportunity to submit a corrective action plan. OSC, at 3 (citing 21
U.S.C. 824(c)(2)(C)).
Adequacy of Service
In a Declaration dated October 8, 2021, a Diversion Investigator
(hereinafter, DI) assigned to the Orange County District office, Los
Angeles Field Division, stated that on July 12, 2021, she sent the OSC
to Applicant's proposed registered address via United States Postal
Service (USPS) registered mail, but on July 15, 2021, the website
indicated that there was ``No Access To Delivery Location,'' and that
service would be attempted the next day, July 16, 2021. Request for
Final Agency Action dated October 12, 2021 (hereinafter, RFAA), Exhibit
(hereinafter, RFAAX) 1 (DI's Declaration).\1\ The DI stated that there
was ``no further tracking information on the USPS website,'' and that
she contacted USPS, who attempted delivery again, but it was unclear
what occurred thereafter. Id. at 2. Therefore, on September 8, 2021, DI
herself travelled to the proposed registered address and personally
handed the OSC to Applicant. Id. at 3.
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\1\ The DI also stated that she emailed a copy of the OSC on
July 14, 2021, to the email address Applicant had provided with his
application and that she did not receive a ``failure to send'' and
therefore believed that the email was received. Id. at 2.
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The Government forwarded its RFAA, along with the evidentiary
record, to this office on October 13, 2021. In its RFAA, the Government
represents that ``Applicant did not request a hearing.'' RFAA, at 1.
The Government requests that Applicant's Certificate of Registration as
a practitioner be denied ``due to his federal felony conviction related
to controlled substances'' \2\ and ``due to his mandatory exclusion
from Medicare, Medicaid, and all Federal health care programs by HHS/
OIG due to his felony controlled substance conviction.'' Id. at 3.
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\2\ It is noted that one of the alleged bases for denial of
Applicant's application in the OSC and the RFAA is 21 U.S.C.
824(a)(2) due to Applicant's alleged conviction of a felony related
to controlled substances. As evidence of the felony conviction, the
Government submitted a ``Judgment and Probation/Commitment Order''
from the United States District Court for the Central District of
California in U.S. v. Washington Bryan, II, Docket No. Cr-16-00320-
RGK, which demonstrates that Applicant was convicted of
``Structuring of Currency Transactions in violation of Title 31
U.S.C. 5324(a)(3), as charged in Counts 1 through 29 of the
Indictment.'' RFAAX 4, at 1. There is no mention of controlled
substances or any other details of the underlying conviction in this
document. In its RFAA, the Government cited to the DI's declaration
as support for this statement: ``The funds involved in the illegal
structuring transactions were related to Applicant's writing of
fraudulent controlled substance prescriptions.'' Id. The DI
similarly stated in her Declaration, ``The funds involved in the
illegal structuring transactions were related to Applicant's writing
of fraudulent controlled substance prescriptions.'' RFAAX 1, at 1-2
(citing the ``Judgment and Probation/Commitment Order''). Although
the Applicant has not contested the OSC, I do not have any direct
evidence to support the allegation that this conviction constitutes
a felony conviction ``relating to'' controlled substances as those
terms are defined in 21 U.S.C. 824(a)(2). The evidence related to
mandatory exclusion does contain an indication that the conviction
was related to controlled substances as defined under 1128(a)(4) of
the Social Security Act; however, according to the HHS decision, the
HHS ALJ drew this conclusion based on transcripts of proceedings in
District Court, which I do not similarly have in evidence, and
furthermore, he drew the conclusion under a different statutory
context than the CSA. RFAAX 6, at 4. Due to the limited evidence
before me regarding whether Applicant's conviction was relating to
controlled substances, and the fact that there are adequate reasons
to deny Applicant's registration under 21 U.S.C. 824(a)(5), I
decline to consider the felony conviction in this Decision.
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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 Applicant on or before
September 8, 2021. I also find that more than thirty days have now
passed since the Government accomplished service of the OSC. Further,
based on the Government's written representations, I find that neither
Applicant, nor anyone purporting to represent the Applicant, requested
a hearing, submitted a written statement while waiving Applicant's
right to a hearing, or submitted a corrective action plan. Accordingly,
I find that Applicant 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
Applicant's DEA Registration
On August 22, 2019, Applicant submitted an application for a DEA
Certificate of Registration as a practitioner in Schedules II through V
with a proposed registered address at 201 Veteran Avenue, Los Angeles,
California 90024. RFAAX 2 (Application). Applicant's application was
assigned Control No. W19097421C. RFAAX 1, at 1.
On November 21, 2017, Applicant surrendered his previous DEA
registration No. 684743414, ``because [his] California Medical License
Physician and Surgeon's Certificate No. A61799, [was] suspended by the
Medical Board of California by operation of law effective April 5,
2017.'' RFAAX 5 (email from Applicant surrendering his prior DEA
registration).
Applicant's Exclusion
The evidence in the record demonstrates that on March 6, 2017, the
United States District Court for the Central District of California
issued a ``Judgment and Probation/Commitment Order'' in U.S. v.
Washington Bryan, II, Docket No. Cr-16-00320-RGK (hereinafter,
Judgment). RFAAX 4. According to the Judgment, Applicant was found
guilty of ``Structuring of Currency Transactions in violation of Title
31 U.S.C. 5324(a)(3), as charged in Counts 1 through 29 of the
Indictment.'' Id. at 1.
In a decision from an HHS Administrative Law Judge (HHS ALJ), dated
September 18, 2018, HHS excluded Applicant from Medicare, Medicaid, and
all federal health care programs under 42 U.S.C. 1320a-7(a) for a
minimum period 10 years based on Applicant's felony conviction in the
United States District Court for the Central District of California.
RFAAX 6 (hereinafter, HHS Exclusion), at 1. The HHS ALJ found that
Applicant's conviction of ``29 felony counts of structuring cash
deposits'' was ``related to the unlawful manufacture, distribution,
prescription, or dispensing of a controlled substance,'' as defined in
Section 1128(a)(4) of the Social Security Act, such that Applicant was
mandatorily excluded under 42 U.S.C. 1320a-7(a). Id. at 5-6. The HHS
Exclusion stated that the exclusion would become effective on January
18, 2018. Id. at 8.
Accordingly, I find that HHS excluded Applicant from Medicare,
Medicaid, and all federal health care programs under 42 U.S.C. 1320a-
7(a) for a minimum of 10 years effective January 18, 2018.
Discussion
In its OSC, the Government relied upon grounds Congress provided to
support revocation/suspension, not denial of an application. Prior
Agency decisions have addressed whether it is appropriate to consider a
provision of 21 U.S.C. 824(a) when determining whether or not to grant
a practitioner registration application. For over forty-five years,
Agency decisions have concluded that it is. Robert Wayne
[[Page 71926]]
Locklear, M.D., 86 FR 33,738 33,744-45 (2021) (collecting cases); see
also, William Ralph Kincaid, M.D., 86 FR 40,636, 40,641 (2021). A
provision of section 824 may be the basis for the denial of a
practitioner registration application and allegations related to
section 823 remain relevant to the adjudication of a practitioner
registration application when a provision of section 824 is involved.
See Robert Wayne Locklear, M.D., 86 FR at 33,744-45.
Accordingly, when considering an application for a registration, I
will consider any actionable allegations related to the grounds for
denial of an application under 823 and will also consider any
allegations that the applicant meets one of the five grounds for
revocation or suspension of a registration under section 824. Id. See
also Dinorah Drug Store, Inc., 61 FR 15,972, 15,973-74 (1996).
1. 21 U.S.C. 823(f): The Five Public Interest Factors
Pursuant to section 303(f) of the Controlled Substances Act
(hereinafter, the CSA), ``[t]he Attorney General shall register
practitioners . . . to dispense . . . controlled substances . . . 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).
Section 303(f) further provides that an application for a
practitioner's registration may be denied upon a determination that
``the issuance of such registration . . . would be inconsistent with
the public interest.'' Id.
In this case, there is no indication that Applicant does not hold a
valid state medical license or is not authorized to dispense controlled
substances in the State of California where he practices.
Because the Government has not alleged that Applicant's
registration is inconsistent with the public interest under section
823, and although I have considered 823, I will not analyze Applicant's
application under the public interest factors. Therefore, in accordance
with prior agency decisions, I will move to assess whether the
Government has proven by substantial evidence that a ground for
revocation exists under 21 U.S.C. 824(a). Supra II.C.
2. 21 U.S.C. 824(a)(5): Mandatory Exclusion From Federal Health Care
Programs Pursuant to 42 U.S.C. 1320a-7(a)
Under Section 824(a) of the CSA, a registration ``may be suspended
or revoked'' upon a finding of one or more of five grounds. 21 U.S.C.
824. The ground in 21 U.S.C. 824(a)(5) requires that the registrant
``has been excluded (or directed to be excluded) from participation in
a program pursuant to section 1320a-7(a) of Title 42.'' Id. Here, the
undisputed record evidence demonstrates that HHS mandatorily excluded
Applicant from federal health care programs. RFAAX 6. Accordingly, I
will sustain the Government's allegation that Applicant has been
excluded from participation in a program pursuant to section 1320a-7(a)
of Title 42 and find that the Government has established that a ground
exists upon which a registration could be revoked pursuant to 21 U.S.C.
824(a)(5). Although the language of 21 U.S.C. 824(a)(5) discusses
suspension and revocation of a registration, for the reasons discussed
above, it may also serve as the basis for the denial of a DEA
registration application. Dinorah Drug Store, Inc., 61 FR at 15,973
(interpreting 21 U.S.C. 824(a)(5) to serve as a basis for the denial of
a registration because it ``makes little sense . . . to grant the
application for registration, only to possibly turn around and propose
to revoke or suspend that registration based on the registrant's
exclusion from a Medicare program''). Applicant's exclusion from
participation in a program under 42 U.S.C. 1320a-7(a), therefore,
serves as an independent basis for denying his application for DEA
registration. 21 U.S.C. 824(a)(5).
Where, in Section 824(a)(5) cases, the applicant offers no
mitigating evidence upon which the Administrator can analyze the facts,
the agency has consistently held that revocation is warranted. See,
e.g., Sassan Bassiri, D.D.S., 82 FR 32,200, 32,201 (2017); Richard
Hauser, M.D., 83 FR 26,308, 26,310 (2018) (revocation was sought under
Section 824(a)(5) and the registrant's certificate of registration was
revoked ``based on the unchallenged basis for his mandatory
exclusion.'') When the basis for revocation or suspension is clear and
the registrant has had notice and the opportunity to present evidence,
whether in a hearing or a written statement in accordance with 21 CFR
1301.43, but has chosen not to present any such evidence that could
inform the Administrator's decision, it is reasonable that the
Administrator should revoke or suspend. See KK Pharmacy, 64 FR 49,507,
49,510 (1999); Orlando Ortega-Ortiz, M.D. 70 FR 15,122 (2005); Lazaro
Guerra, 68 FR 15,266 (2003) (basis for revocation was both (a)(3) and
(a)(5)).
In this case, the HHS ALJ found that the evidence in front of him
demonstrated that Applicant ``was convicted of structuring cash
deposits and both the district court and the court of appeals accepted
evidence that those cash deposits were derived from unlawful
distribution or prescription of controlled substances.'' RFAAX 6, at
5.\3\ The HHS ALJ also applied aggravating factors to extend his
exclusion period, because Applicant's illegal activity spanned over a
year and Applicant was sentenced to 33 months of incarceration. RFAAX
6, at 7.
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\3\ It is noted that this Agency has concluded repeatedly that
the underlying crime requiring exclusion from federal health care
programs under Section 1320a-7(a) of Title 42 does not require a
nexus to controlled substances in order to be used as a ground for
revocation or suspension of a registration. Narciso Reyes, M.D., 83
FR 61,678, 61,681 (2018); KK Pharmacy, 64 FR at 49,510 (collecting
cases); Melvin N. Seglin, M.D., 63 Red. Reg. 70,431, 70,433 (1998);
Stanley Dubin, D.D.S., 61 FR 60,727, 60,728 (1996). Applicant's
extensive unlawful activity over the course of over a year
demonstrates a severe lack of honesty and a proclivity to prioritize
his greed over the public welfare, which also demonstrates the
potential for abuse of his CSA registration, and therefore, I need
not consider the HHS ALJ's finding that the underlying unlawful
activity in this case involved controlled substances under Section
1128(a)(4) of the Social Security Act. The substantial evidence
favors revocation.
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Sanction
Here, there is no dispute in the record that Applicant is
mandatorily excluded pursuant to Section 1320a-7(a) of Title 42 and,
therefore, that a ground for the denial of Applicant's application
exists.
Where, as here, the Government has met its prima facie burden of
showing that a ground for denial exists, the burden shifts to the
Applicant to show why he can be entrusted with a registration. Garrett
Howard Smith, M.D., 83 FR 18,882, 18,910 (2018) (collecting cases).
In this case, Applicant failed to respond to the Government's Order
to Show Cause and did not avail himself of the opportunity to refute
the Government's case. See RFAA, at 6. Therefore, Applicant has not
provided any remorse or assurances that he would implement remedial
measures to ensure such conduct is not repeated. Such silence weighs
against the Applicant's continued registration. Zvi H. Perper, M.D., 77
FR at 64,142, citing Medicine Shoppe, 73 FR at 387; see also Samuel S.
Jackson, 72 FR at 23,853. Further, due to the lack of a statement or
testimony from Applicant, it is unclear whether Applicant can be
entrusted with a DEA registration; and therefore, I find that sanction
is appropriate to protect the public from a recurrence of Applicant's
unlawful actions in the context of his CSA registration. See Leo R.
Miller, M.D., 53 FR 21,931, 21,932 (1988).
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Consequently, I find that the factors weigh in favor of sanction
and I shall order the sanctions the Government requested, as contained
in the Order below.
Order
Pursuant to 28 CFR 0.100(b) and the authority vested in me by 21
U.S.C. 823(f), I hereby deny the pending application for a Certificate
of Registration, Control Number W19097421C, submitted by Washington
Bryan, M.D., as well as any other pending application of Washington
Bryan, M.D. for additional registration in California. This Order is
effective January 19, 2022.
Anne Milgram,
Administrator.
[FR Doc. 2021-27431 Filed 12-17-21; 8:45 am]
BILLING CODE 4410-09-P
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</html>Indexed from Federal Register on December 20, 2021.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.