Notice2023-17391
Yogeshwar Gill, M.D.; Decision and Order
Primary source
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Published
August 14, 2023
Issuing agencies
Justice DepartmentDrug Enforcement Administration
Full Text
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<title>Federal Register, Volume 88 Issue 155 (Monday, August 14, 2023)</title>
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[Federal Register Volume 88, Number 155 (Monday, August 14, 2023)]
[Notices]
[Pages 55076-55077]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-17391]
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DEPARTMENT OF JUSTICE
Drug Enforcement Administration
[Docket No. 23-23]
Yogeshwar Gill, M.D.; Decision and Order
On December 19, 2022, the Drug Enforcement Administration (DEA or
Government) issued an Order to Show Cause (OSC) to Yogeshwar Gill, M.D.
(Respondent). OSC, at 1, 3. The OSC proposed the revocation of
Respondent's registration \1\ because Respondent is ``without authority
to handle controlled substances in the State of Tennessee, the state in
which [he is] registered with DEA.'' Id. at 2 (citing 21 U.S.C.
824(a)(3)).
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\1\ Certificate of Registration No. FG1060603 at the registered
address of 1034 McArthur Street, Manchester, Tennessee 37355. Id. at
1.
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Respondent timely \2\ requested a hearing; thereafter, the
Government filed and the CALJ granted a Motion for Summary Disposition
recommending the revocation of Respondent's registration. RD, at 9-10.
Respondent did not timely file exceptions to the RD.\3\ Having reviewed
the entire record, the Agency adopts and hereby incorporates by
reference the entirety of the CALJ's rulings, findings of fact,
conclusions of law, and recommended sanction and summarizes and expands
upon portions thereof herein.
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\2\ Respondent's Request for Hearing is dated February 17, 2023,
see Request for Hearing, at 1, but was deemed filed on February 21,
2023. The Government asserted that Respondent's Request for Hearing
was untimely. Govt Termination Motion dated February 24, 2023, at 1-
2. Ultimately, the Chief Administrative Law Judge (CALJ) found, and
the Agency agrees, that ``resolution of this matter is not
imperative to issue a recommended decision'' and ``assumed, without
deciding[,] that the service ambiguity raised by the Respondent
either adjust[ed] the OSC service date to render the [Request for
Hearing] timely, or supplie[d] sufficient good cause to consider a
late-filed [Request for Hearing].'' 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 (Recommended Decision or RD), at 4-5.
\3\ On April 28, 2023, after the deadline to file exceptions
passed and the CALJ certified the record to the Administrator,
Respondent submitted a pleading entitled ``Motion to Alter and
Amend'' (Respondent's Motion). See 21 CFR 1316.66(a), 1316.67.
Respondent's Motion requests that the CALJ ``amend his ruling and
merely order an ongoing suspension until the [underlying state] case
is heard on its merits.'' Respondent's Motion, at 1, 4. As such,
Respondent's Motion appears to be an untimely attempt to file
exceptions to the RD. Further, even if Respondent's Motion had been
timely submitted, it merely reiterates arguments raised by
Respondent in earlier filings that were addressed by the CALJ. See
RD, at 8-9; see also infra at n.5. Accordingly, the Agency finds
Respondent's Motion to be unpersuasive.
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Findings of Fact
On May 25, 2022, the Tennessee Board of Medical Examiners issued an
Order of Summary Suspension that suspended Respondent's Tennessee
medical license. RD, at 7; see also Government's Notice of Filing of
Evidence and Motion for Summary Disposition, Exhibit 1, Attachment A,
at 1, 6-7. According to Tennessee online records, of which the Agency
takes official notice, Respondent's restricted Tennessee medical
license expired on
[[Page 55077]]
August 31, 2022.\4\ Tennessee Department of Health License
Verification, <a href="https://apps.health.tn.gov/licensur">https://apps.health.tn.gov/licensur</a>e (last visited date
of signature of this Order). Accordingly, the Agency finds that
Respondent is not licensed to practice medicine in Tennessee, the state
in which he is registered with the DEA.
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\4\ 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
findings 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#046061652a6560606b2a6570706b766a617d77446061652a636b72"><span class="__cf_email__" data-cfemail="cbafaeaae5aaafafa4e5aabfbfa4b9a5aeb2b88bafaeaae5aca4bd">[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 (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).\5\
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\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(g)(1) (this
section, formerly section 823(f), was redesignated as part of the
Medical Marijuana and Cannabidiol Research Expansion Act, Pub. L.
117-215, 136 Stat. 2257 (2022)). 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 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 27617. 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 71371 (quoting Anne Lazar Thorn, 62 FR 12847, 12848 (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 18273, 18274 (2007); Wingfield Drugs, 52 FR
27070, 27071 (1987). Thus, it is of no consequence that Respondent
is still challenging the underlying action here, see Respondent's
Answer, at 2-3; see also Respondent's Supplemental Response, at 5-6.
What is consequential is the Agency's finding that Respondent is not
currently authorized to dispense controlled substances in Tennessee,
the state in which he is registered with DEA.
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According to Tennessee statute, ``dispense'' means ``to deliver a
controlled substance to an ultimate user or research subject by or
pursuant to the lawful order of a practitioner, including the
prescribing, administering, packaging, labeling, or compounding
necessary to prepare the substance for that delivery.'' Tenn. Code Ann.
section 39-17-402(7) (2023). Further, a ``practitioner'' means ``a
physician . . . or other person licensed, registered or otherwise
permitted to distribute, dispense, conduct research with respect to or
to administer a controlled substance in the course of professional
practice or research in this state.'' Id. at section 39-17-402(23)(A).
Here, the undisputed evidence in the record is that Respondent
lacks authority to practice medicine in Tennessee. RD, at 7. As
discussed above, a physician must be a licensed practitioner to
dispense a controlled substance in Tennessee. Thus, because Respondent
lacks authority to practice medicine in Tennessee and, therefore, is
not authorized to handle controlled substances in Tennessee, Respondent
is not eligible to maintain a DEA registration. RD, at 9. Accordingly,
the Agency orders 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.
FG1060603 issued to Yogeshwar Gill, M.D. Further, pursuant to 28 CFR
0.100(b) and the authority vested in me by 21 U.S.C. 823(g)(1), I
hereby deny any pending applications of Yogeshwar Gill, M.D., to renew
or modify this registration, as well as any other pending application
of Yogeshwar Gill, M.D., for additional registration in Tennessee. This
Order is effective September 13, 2023.
Signing Authority
This document of the Drug Enforcement Administration was signed on
August 7, 2023, 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. 2023-17391 Filed 8-11-23; 8:45 am]
BILLING CODE 4410-09-P
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