[Federal Register Volume 63, Number 46 (Tuesday, March 10, 1998)]
[Notices]
[Pages 11694-11695]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-6103]
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DEPARTMENT OF JUSTICE
Drug Enforcement Administration
[Docket No. 98-3]
Dong HA Chung, M.D.; Revocation of Registration
On October 8, 1997, the Deputy Assistant Administrator, Office of
Diversion Control, Drug Enforcement Administration (DEA), issued an
Order to Show Cause to Dong Ha Chung, M.D. (Respondent), of Anderson,
South Carolina. The Order to Show Cause notified him of an opportunity
to show cause as to why DEA should not revoke his DEA Certificate of
Registration BC0373465, and deny any pending applications for renewal
of such registration as a practitioner pursuant to 21 U.S.C. 823(f) and
824(a)(3) and (a)(5). The Order to Show Cause alleged that Respondent
is not currently authorized to handle controlled substances in the
State of South Carolina, and he has been excluded by the United States
Department of Health and Human Services from participating in the
Medicare, Medicaid and any state health care programs for a period of
ten years.
On November 5, 1997, Respondent, through counsel, filed a request
for a hearing, and the matter was docketed before Administrative Law
Judge Gail A. Randall. On November 6, 1997, Judge Randall issued an
Order for Prehearing Statements. On December 1, 1997, the Government
filed a Motion for Summary Disposition and Motion to Stay Proceedings,
alleging that Respondent is currently registered with DEA to handle
controlled substances in South Carolina, however he is currently
without state authority to handle controlled substances in South
Carolina.
On December 16, 1997, Respondent filed a Memorandum in Opposition
of Government's Motion for Summary Disposition arguing that
Respondent's state controlled substances license was canceled based
upon the suspension of his medical license, which has since been
reinstated. Respondent asserts that he is currently seeking
reinstatement of his controlled substances privileges in South
Carolina, but ``a scheduled hearing (on the reinstatement) was
postponed and for a reason not yet known, it has not been
rescheduled.'' Respondent does not deny that he is not currently
authorized to handle controlled substances in South Carolina.
On January 7, 1998, Judge Randall issued her Opinion and
Recommended Ruling, finding that Respondent lacks authorization to
handle controlled substances in the State of South Carolina; granting
the Government's Motion for Summary Disposition; and recommending that
Respondent's DEA Certificate of Registration be revoked. Neither party
filed exceptions to her opinion, and on February 9, 1998, Judge Randall
transmitted the record of these proceedings to the Acting Deputy
Administrator.
The Acting Deputy Administrator has considered the record in its
entirety, and pursuant to 21 CFR 1316.67, hereby issues his final order
based upon findings of fact and conclusions of law as hereinafter set
forth. The Acting Deputy Administrator adopts, in full, the Opinion and
Recommended Decision of the Administrative Law Judge.
The Acting Deputy Administrator finds that on July 12, 1996, the
South Carolina Department of Health and Environmental Control issued a
Notice of Cancellation of Controlled Substances Registration, canceling
Respondent's controlled substances registration in South Carolina.
Respondent argues that the cancellation of his state controlled
substances privileges was based upon the suspension of his medical
license in South Carolina, and that his state medical license has since
been reinstated. However, Respondent does not dispute that he is not
currently authorized to handle controlled substances in the State of
South Carolina. Therefore, the Acting Deputy Administrator finds that
Respondent is not currently authorized to handle controlled substances
in South Carolina, the state in which he is registered with DEA.
The DEA does not have statutory authority under the Controlled
Substances Act to issue or maintain a registration if the applicant or
registrant is without state authority to handle
[[Page 11695]]
controlled substances in the state in which he conducts his business.
21 U.S.C. 802(21); 823(f) and 824(a)(3). This prerequisite has been
consistently upheld. See Romeo J. Perez, M.D., 62 FR 16,193 (1997);
Demetris A. Green, M.D. 61 FR 60,728 (1996); Dominick A. Ricci, M.D.,
58 FR 51,104 (1993).
Here, it is clear that Respondent is not licensed to handle
controlled substances in South Carolina. Since Respondent lacks this
state authority, he is not entitled to a DEA registration in that
state.
In light of the above, Judge Randall properly granted the
Government's Motion for Summary Disposition. The parties did not
dispute the fact that Respondent is currently unauthorized to handle
controlled substances in South Carolina. Therefore, it is well-settled
that when no question of material fact is involved, a plenary,
adversary administrative proceeding involving evidence and cross-
examination of witnesses is not obligatory. See Phillip E. Kirk, M.D.,
48 FR 32,887 (1983), aff'd sub non Kirk v. Mullen, 749 F.2d 297 (6th
Cir. 1984); NLRB v. International Association of Bridge, Structural and
Ornamental Ironworkers, AFL-CIO, 549 F.2d 634 (9th Cir. 1997); United
States v. Consolidated Mines & Smelting Co., 44 F.2d 432 (9th Cir.
1971).
Since DEA does not have the statutory authority to maintain
Respondent's DEA registration because he is not currently authorized to
handle controlled substances in South Carolina, the Acting Deputy
Administrator concludes that it is unnecessary to determine whether
Respondent's DEA registration should be revoked based upon his
exclusion by the United States Department of Health and Human Services
from participating in the Medicare, Medicaid and any state health care
programs.
Accordingly, the Acting Deputy Administrator of the Drug
Enforcement Administration, pursuant to the authority vested in him by
21 U.S.C. 823 and 824 and 28 CFR 0.100(b) and 0.104, hereby orders that
DEA Certificate of Registration BC0373465, previously issued to Dong Ha
Chung, M.D., be, and it hereby is, revoked. The Acting Deputy
Administrator further orders that any pending applications for renewal
of such registration be, and they hereby are, denied. This order is
effective April 9, 1998.
Dated: March 3, 1998.
Donnie R. Marshall,
Acting Deputy Administrator.
[FR Doc. 98-6103 Filed 3-9-98; 8:45 am]
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