Notice2022-14841
Bhanoo Sharma, M.D.; Decision and Order
Primary source
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Published
July 12, 2022
Issuing agencies
Justice DepartmentDrug Enforcement Administration
Full Text
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<title>Federal Register, Volume 87 Issue 132 (Tuesday, July 12, 2022)</title>
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[Federal Register Volume 87, Number 132 (Tuesday, July 12, 2022)]
[Notices]
[Pages 41355-41356]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[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, <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 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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