2010-20209. Hung Thien Ly, M.D.; Revocation of Registration

On August 28, 2009, the Deputy Assistant Administrator, Office of Diversion Control, Drug Enforcement Administration, issued an Order to Show Cause to Hung Thien Ly, M.D. (Respondent), of McRae, Georgia. The Show Cause Order proposed the revocation of Respondent's DEA Certificate of Registration, BL8586147, which authorizes him to dispense controlled substances as a practitioner, and the denial of any pending applications to renew or modify his registration on two grounds. Show Cause Order at 1-2.

First, the Order alleged that, on August 6, 2009, the Georgia Composite Medical Board (Board) revoked his license to practice medicine in Georgia, the State in which he holds his DEA registration, and that therefore, he is not entitled to maintain his registration. Id. (citing 21 U.S.C. 824(a)(3)). Second, the Order alleged that on August 14, 2008, Respondent was convicted of 129 counts of violating 21 U.S.C. 841(a)(1), by dispensing controlled substances “outside the usual course of professional practice and for no legitimate medical purpose.” Id. at 2; see also id. at 1 (citing 21 U.S.C. 824(a)(2)).

On September 30, 2009, Respondent was served with a copy of the Order to Show Cause. Thereafter, on November 2, 2009, Respondent filed letter waiving his right to a hearing and responding to the Show Cause Order. Waiver of Hearing and Written Response to Order to Show Cause at 1. Therein, Respondent does not dispute either that he has been convicted by a United States District Court of violations of 21 U.S.C. 841 or that the Board has revoked his medical license. Id. Rather, he maintains that the Board's action “was based entirely” on his conviction and that his “trial was fundamentally flawed” because he was “denied appointed counsel by the District Court and represented himself at trial.” Moreover, he “is confident that the Eleventh Circuit will grant a new trial with appointed counsel and expert medical testimony that will demonstrate that his practice was consistent with the good faith treatment of chronic pain.” Id. at 1-2. Accordingly, he “requests that good cause is shown to suspend his registration [rather than revoke it] * * * until such time as the appeal [of his conviction] and any subsequent proceedings are complete.” Id.

Thereafter, the Government forwarded the record to me for final agency action. Having considered the record, I conclude that it establishes two separate grounds for revoking Respondent's registration. I further reject Respondent's request that his registration should be suspended and not revoked pending the completion of his appeal. I make the following findings.

Findings

Respondent is the holder of DEA Certificate of Registration, BL8586147, which authorizes him to dispense controlled substances in schedules II through V. Respondent's registration was last renewed on March 6, 2006, and was to expire on March 31, 2009. However, on February 13, 2009, Respondent submitted an application to renew the registration. I therefore find that Respondent's registration has remained in effect pending the issuance of this Decision and Final Order. See 5 U.S.C. 558(c).

I further find that on May 13, 2009, the United States District Court for the Southern District of Georgia entered a judgment in which it found Respondent guilty on 129 counts of violating 21 U.S.C. 841(a)(1), which prohibits “knowingly or intentionally * * * distribut[ing], or dispens[ing] * * * a controlled substance” except as authorized by the Controlled Substances Act (CSA). See United States v. Ly, No. CR407-00286-001 (S.D. Ga. May 13, 2009) (judgment). According to the indictment, the counts were for distributing hydrocodone (combined with acetaminophen), a schedule III controlled substance; alprazolam, a schedule IV controlled substance; and amphetamine sulfate, a schedule II controlled substance. For his crimes, the District Court sentenced Respondent to 97 months in prison; the Court also imposed an assessment of $12,900, a fine of $200,000, and a term of supervised release of five years following his release from prison.

I further find that on August 6, 2009, the Georgia Composite Medical Board issued a final decision which revoked Respondent's State medical license based on his convictions.

Discussion

Under Section 304(a) of the CSA, “[a] registration * * * to dispense a controlled substance * * * may be suspended or revoked by the Attorney General upon a finding that the registrant * * * has been convicted of a felony under this subchapter.” 21 U.S.C. 824(a)(2). The Attorney General may also revoke a registration “upon a finding that the registrant * * * has had his State license or registration suspended, revoked, or denied by competent State authority and is no longer authorized by State law to engage in the * * * dispensing of controlled substances.” Id. § 824(a)(3).

As found above, Respondent has been convicted of 129 counts of violating 21 U.S.C. 841(a)(1), a felony under subchapter I (the CSA). See id. § 801 (note). These convictions provide reason alone to revoke his registration.

Moreover, under the 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. § 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.”). As these provisions make plain, possessing authority under State law to handle controlled substances is an essential condition for holding a DEA registration.

Accordingly, 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. David W. Wang, 72 FR 54297, 54298 (2007); Sheran Arden Yeates, 71 FR 39130, 39131 (2006); Dominick A. Ricci, 58 FR 51104, 51105 (1993); Bobby Watts, 53 FR 11919, 11920 (1988). Respondent's loss of his State authority thus provides an additional ground for revoking his DEA registration.

I further reject Respondent's request that his registration only be suspended during the pendency of his appeal. As explained above, because Respondent does not have authority under Georgia law to prescribe controlled substances, he no longer meets the statutory requirement for holding a registration. Moreover, in the event that Respondent's confidence in the merits of his appeal is borne out, he can apply for a new registration upon persuading the Board to re-license him. However, given that it is entirely speculative whether both of these events will occur, there is no reason to continue his registration in the interim. Accordingly, Respondent's registration will be revoked and his pending application to renew his registration will be denied.

Order

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 order that DEA Certificate of Registration, BL8586147, issued to Hung Thien Ly, M.D., be, and it hereby is, revoked. I further order that any pending application of Hung Thien Ly, M.D., to renew or modify his registration, be, and it hereby is, denied. This Order is effective September 15, 2010.

Dated: August 3, 2010.

Michele M. Leonhart,

Deputy Administrator.