E7-1711. Sunil Bhasin, M.D.; Revocation of Registration

On August 4, 2005, the Deputy Assistant Administrator, Office of Diversion Control, Drug Enforcement Administration, issued an Order to Show Cause to Sunil Bhasin, M.D. (Respondent), of San Bernardino, CA. The Show Cause Order proposed to revoke Respondent's Certificate of Registration, BB2195116, as a practitioner, on the ground that Respondent had surrendered his California medical license, and was therefore without authority to handle controlled substances in the state where he practiced medicine. Show Cause Order at 1. The Show Cause Order further notified Respondent of his right to a hearing. Id. at 2.

The Show Cause Order was served by certified mail, return receipt requested. On September 2, 2005, Respondent acknowledged receipt of the Show Cause Order as demonstrated by the signed return receipt card which is contained in the investigative file.

In a letter dated September 5, 2005, Respondent wrote the Deputy Assistant Administrator asserting that he had rejected the Medical Board of California's settlement stipulation. Respondent further asserted that the stipulation was illegal because its terms were illusory, fraudulent and unconscionable and that he was litigating these issues in federal district court.

On September 26, 2005, the Government filed a request with the Office of Administrative Law Judges to docket the matter for a hearing. While the Government noted that Respondent “did not specifically request a hearing,” it expressed the view that the case required an on-the-record “factual determination of the licensing issue” before the case was transmitted to me for final agency action. Govt. Req. to Docket Matter for Hearing at 1.

Simultaneously, the Government moved for summary disposition. The basis of the Government's motion was that a Diversion Investigator (DI) would testify that she had received documents from the Medical Board of California (MBC) which showed that Respondent had surrendered his state license on September 27, 2004, that the MBC had adopted the surrender stipulation on December 6, 2004, and that the MBC Web site indicated that Respondent's license had been surrendered. Id. at 1-2. Attached to the motion were documents supporting each of the Government's contentions.

The matter was assigned Administrative Law Judge (ALJ) Mary Ellen Bittner. On October 7, 2005, the ALJ issued a Memorandum to Parties (Memo 1). In Memo 1, the ALJ offered Respondent the opportunity to respond to the Government's request to docket the matter for hearing no later than October 31, 2005. Memo 1, at 2.

A copy of Memo 1 was sent to Respondent by certified mail. The mailing, however, was returned unclaimed. Thereafter, the ALJ issued a new Memorandum to Parties which offered Respondent the opportunity to respond to the Government's request by December 19, 2005. Memorandum to Parties 1 (Nov. 28, 2005) (Memo 2). The ALJ further directed that Memo 2 be sent to Respondent by both registered mail with restricted delivery and first class mail. See id. Again, Respondent did not respond. See Memorandum to Parties 2 (Mar. 24, 2006) (Memo 3).

Thereafter, on January 19, 2006, the Government moved to terminate the proceedings. Motion to Terminate Proceedings 1. The Government also requested that the ALJ find that Respondent had waived his right to a hearing. Id.

On March 24, 2006, the ALJ issued a further Memorandum to Parties (Memo 3). In Memo 3, the ALJ offered Respondent the opportunity to respond to the Government's motion to terminate by April 13, 2006. Memo 3, at 2. When once again, Respondent failed to respond, the ALJ granted the Government's motion and ordered that the proceedings be terminated. See Order Terminating Proceedings 2. In her order, the ALJ also found that Respondent had failed to request a hearing and had waived his right to a hearing. See id.

The investigative file was then forwarded to me for final agency action. I adopt the ALJ's finding that Respondent has waived his right to a hearing. I therefore enter this final order without a hearing based on information contained in the investigative file.

Findings

Respondent holds DEA Certificate of Registration, BB2195116, which authorizes him to act as a practitioner under the Controlled Substances Act. Respondent's registered location is 909 N. D Street, San Bernardino, CA. Respondent's registration does not expire until July 31, 2007.

Respondent was also the holder of a Physician and Surgeon's license (G67327) issued by the Medical Board of California. According to the official records of the Medical Board (which were checked on December 18, 2006), Respondent surrendered his license with an effective date of December 16, 2004. Moreover, Respondent has submitted no evidence to this Agency showing that the State's order has been vacated or that he has been granted a new license. Respondent therefore lacks authority under California law to practice medicine and handle controlled substances.

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. 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”).

Following service of the Show Cause Order, Respondent submitted a letter asserting that he had rejected the Medical Board's settlement stipulation. Respondent also contended that the stipulation was illegal because its terms were illusory, fraudulent and unconscionable.

As found above, the official records of the Medical Board of California indicate that Respondent does not hold a current state medical license and therefore is without authority to handle controlled substances in the State where he is registered with DEA. As for Respondent's conclusory assertions regarding the illegality of the stipulation, DEA precedents hold that a registrant can not collaterally attack the results of a state criminal or administrative proceeding in a proceeding under section 304 of the CSA. See Shahid Musud Siddiqui, 61 FR 14818, 14818-19 (1996); Robert A. Leslie, 60 FR 14004, 14005 (1995). Thus, even if Respondent had submitted evidence establishing the illegality of the stipulation, a DEA Show Cause Proceeding is not the proper forum to litigate the issue. Because Respondent lacks authority under California law to handle controlled substances, he 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, BB2195116, issued to Sunil Bhasin, 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 March 5, 2007.

Dated: January 26, 2007.

Michele M. Leonhart,

Deputy Administrator.