Notice2022-07696
Kirk A. Hopkins, M.D.; Decision and Order
Primary source
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Published
April 11, 2022
Issuing agencies
Justice DepartmentDrug Enforcement Administration
Full Text
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<title>Federal Register, Volume 87 Issue 69 (Monday, April 11, 2022)</title>
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[Federal Register Volume 87, Number 69 (Monday, April 11, 2022)]
[Notices]
[Pages 21154-21156]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-07696]
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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]
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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, <a href="https://online-dfpr.micropact.com/lookup/licenselookup.aspx">https://online-dfpr.micropact.com/lookup/licenselookup.aspx</a>
(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
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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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</html>Indexed from Federal Register on April 11, 2022.
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