E9-10029. Roy Chi Lung, M.D.; Revocation of Registration

On October 22, 2008, the Deputy Assistant Administrator, Office of Diversion Control, Drug Enforcement Administration, issued an Order to Show Cause to Roy C. Lung, M.D. (Respondent), of Fountain Valley, California. The Show Cause Order proposed the revocation of Respondent's DEA Certificate of Registration, BL4971051, as a practitioner, and the denial of any pending applications to renew or modify his registration, on the grounds that Respondent is “not authorized to handle controlled substances in the state of California,” and that he falsified his most recent application for renewal of his DEA registration. Show Cause Order at 1.

More specifically, the Show Cause Order alleged that effective January 30, 2008, the Medical Board of California suspended Respondent's license to practice medicine. Id. The Show Cause Order thus alleged that Respondent is “currently without authority to handle controlled substances in the State of California, the State in which” Respondent is registered with DEA. Id. The Show Cause Order also alleged that on April 1, 2008, Respondent falsified his application for renewal of his DEA registration when he answered “no” to the question of whether he had ever had a state license suspended. Id. at 2.

Respondent requested a hearing on the allegations, and the matter was assigned to an Administrative Law Judge (ALJ), who proceeded to conduct pre-hearing procedures. Thereafter, the Government moved for summary disposition on the ground that under the terms of an order of the Medical Board of California, Respondent's state medical license was suspended. Gov. Mot. at 1. The motion noted that the Medical Board's Order of Interim Suspension not only suspended Respondent's license, it expressly “prohibited Respondent from handling controlled substances and ordered Respondent to deliver to the Board his DEA registration.” Id. at 3. The Government argued that there was no dispute that Respondent's license had been suspended in California, the State in which he maintains his DEA registration, and that under Federal Law, DEA “cannot register a practitioner to handle controlled substances who is without authority to handle controlled substances in the State in which he practices.” Id. at 2 (citing 21 U.S.C. 823(f)). Id. at 2.

In support of its motion, the Government attached a copy of the Order of Interim Suspension. The Order specifically stated that Respondent “shall not * * * [p]ractice or attempt to practice any aspect of medicine in the State of California * * * [nor] [p]ossess, order, purchase, receive, prescribe, furnish, administer, or otherwise distribute controlled substances or dangerous drugs as defined by federal or state law.” Johnston, Ex. Dir., v. Chi Wing Lung, M.D., OAH No. L2008010755, Order on Ex Parte Petition for Order of Interim Suspension, January 30, 2008, at 7. The Order also required that Respondent “immediately deliver to the Division of Medical Quality * * * all Drug Enforcement Administration forms, and all Drug Enforcement Administration permits.” Id.

The ALJ ordered the Respondent to respond to the Government's motion by December 9, 2008; Respondent filed his response on December 5, 2008. Respondent requested that the ALJ “delay ruling on the Government's motion until April 1, 2009,” as Respondent anticipated that the State Board would issue a final decision regarding his medical license by then. R. Resp. at 1-2.

On December 12, 2008, the ALJ issued her Recommended Rulings, Findings of Fact, Conclusions of Law, and Decision. The ALJ noted that “Respondent himself states that his ‘Medical license was suspended on an interim basis pending the recommendation of a California Administrative Law Judge.’ ” ALJ at 3. The ALJ thus concluded that “[t]hrough the Respondent's own admission, * * * Respondent lacks the authority to practice medicine in the State of California,” and “[c]onsequently, * * * lacks the ability to prescribe controlled substances in that State.” Id.

Because no material fact was in dispute, the ALJ determined that there was no need for a “plenary, administrative hearing.” Id. at 5. Applying the Agency's settled rule that it lacks authority under the Controlled Substances Act to maintain a registration if the registrant is without state authority to handle controlled substances in the State in which he practices medicine, the ALJ concluded that “the DEA lacks authority to continue the Respondent's DEA registration.” Id. at 5; see 21 U.S.C. 823(f), 824(a)(3). The ALJ thus granted the Government's motion for summary disposition and recommended that the Respondent's DEA Certificate of Registration be revoked and that any pending renewal applications be denied. ALJ at 5-6. The ALJ then forwarded the record to me for final agency action.

Having considered the record as a whole, I adopt the ALJ's decision in its entirety. I find that Respondent holds a current registration which does not expire until March 31, 2011. I also take official notice of the records of the Medical Board of California. See 5 U.S.C. 556(e). According to those records, effective March 30, 2009, the Medical Board of California adopted the Proposed Decision of a state ALJ to revoke Respondent's medical license. Thus, since the issuance of the State's Order of Interim Suspension, Respondent has lacked authority to handle controlled substances in California, the State in which he practices his profession. Respondent is therefore not entitled to maintain his DEA registration.^[1] See 21 U.S.C. 823(f), 802(21), and 824(a)(3). See also Michael Chait, 73 FR 40382, 40383 (2008); Dominick A. Ricci, 58 FR 51104 (1993). Accordingly, Respondent's registration will be revoked.

Order

Pursuant to the authority vested in me by 21 U.S.C. 823(f) & 824(a), as well as by 28 CFR 0.100(b) & 0.104, I hereby order that DEA Certificate of Registration, BL4971051, issued to Roy Chi Lung, M.D., be, and it hereby is, revoked. I further order that any pending application of Roy Chi Lung, M.D., for renewal or modification of his registration be, and it hereby is, denied. This order is effective June 1, 2009.

Dated: April 24, 2009.

Michele M. Leonhart,

Deputy Administrator.

Footnotes

1.  I note there is no evidence presented whether Respondent complied with the Order of Immediate Suspension and did in fact deliver his DEA registration to the California Board.