Abolghasem Rezaei, M.D.; Decision and Order, 25425-25427 [2016-09973]
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Federal Register / Vol. 81, No. 82 / Thursday, April 28, 2016 / Notices
make a mockery of judicial power.’’ SBC
Commc’ns, 489 F. Supp. 2d at 15.
In its 2004 amendments, Congress
made clear its intent to preserve the
practical benefits of utilizing consent
decrees in antitrust enforcement, adding
the unambiguous instruction that
‘‘[n]othing in this section shall be
construed to require the court to
conduct an evidentiary hearing or to
require the court to permit anyone to
intervene.’’ 15 U.S.C. § 16(e)(2); see also
U.S. Airways, 38 F. Supp. 3d at 76
(indicating that a court is not required
to hold an evidentiary hearing or to
permit intervenors as part of its review
under the Tunney Act). The language
wrote into the statute what Congress
intended when it enacted the Tunney
Act in 1974, as Senator Tunney
explained: ‘‘[t]he court is nowhere
compelled to go to trial or to engage in
extended proceedings which might have
the effect of vitiating the benefits of
prompt and less costly settlement
through the consent decree process.’’
119 Cong. Rec. 24,598 (1973) (statement
of Sen. Tunney). Rather, the procedure
for the public interest determination is
left to the discretion of the court, with
the recognition that the court’s ‘‘scope
of review remains sharply proscribed by
precedent and the nature of Tunney Act
proceedings.’’ SBC Commc’ns, 489 F.
Supp. 2d at 11.5 A court can make its
public interest determination based on
the competitive impact statement and
response to public comments alone.
U.S. Airways, 38 F. Supp. 3d at 76.
VIII. DETERMINATIVE DOCUMENTS
There are no determinative materials
or documents within the meaning of the
APPA that were considered by the
United States in formulating the
proposed Final Judgment.
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Date: April 20, 2016
Respectfully Submitted,
ll/s/ Kenneth A. Libby
Kenneth A. Libby
Special Attorney
5 See United States v. Enova Corp., 107 F. Supp.
2d 10, 17 (D.D.C. 2000) (noting that the ‘‘Tunney
Act expressly allows the court to make its public
interest determination on the basis of the
competitive impact statement and response to
comments alone’’); United States v. Mid-Am.
Dairymen, Inc., No. 73–CV–681–W–1, 1977–1 Trade
Cas. (CCH) ¶ 61,508, at 71,980, *22 (W.D. Mo. 1977)
(‘‘Absent a showing of corrupt failure of the
government to discharge its duty, the Court, in
making its public interest finding, should . . .
carefully consider the explanations of the
government in the competitive impact statement
and its responses to comments in order to
determine whether those explanations are
reasonable under the circumstances.’’); S. Rep. No.
93–298, at 6 (1973) (‘‘Where the public interest can
be meaningfully evaluated simply on the basis of
briefs and oral arguments, that is the approach that
should be utilized.’’).
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IN THE UNITED STATES DISTRICT
COURT FOR THE DISTRICT OF
COLUMBIA
UNITED STATES OF AMERICA, c/o
Department of Justice, Washington, D.C.
20530, Plaintiff, v. LEUCADIA NATIONAL
CORPORATION, 520 Madison Avenue, New
York, NY 10022, Defendant.
CASE NO.: 1:15–cv–01547
JUDGE: Randolph D. Moss
FILED: 09/22/2015
FINAL JUDGMENT
Plaintiff, the United States of
America, having commenced this action
by filing its Complaint herein for
violation of Section 7A of the Clayton
Act, 15 U.S.C. 18a, commonly known as
the Hart-Scott-Rodino Antitrust
Improvements Act of 1976, and Plaintiff
and Defendant Leucadia National
Corporation, by their respective
attorneys, having consented to the entry
of this Final Judgment without trial or
adjudication of any issue of fact or law
herein, and without this Final Judgment
constituting any evidence against or an
admission by the Defendant with
respect to any such issue:
Now, therefore, before the taking of
any testimony and without trial or
adjudication of any issue of fact or law
herein, and upon the consent of the
parties hereto, it is hereby Ordered,
Adjudged, and Decreed as follows:
I.
The Court has jurisdiction of the
subject matter of this action and of the
Plaintiff and the Defendant. The
Complaint states a claim upon which
relief can be granted against the
Defendant under Section 7A of the
Clayton Act, 15 U.S.C. 18a.
II.
Judgment is hereby entered in this
matter in favor of Plaintiff United States
of America and against Defendant, and,
pursuant to Section 7A(g)(1) of the
Clayton Act, 15 U.S.C. 18a(g)(1), the
Debt Collection Improvement Act of
1996, Pub. L. 104–134 31001(s)
(amending the Federal Civil Penalties
Inflation Adjustment Act of 1990, 28
U.S.C. 2461), and Federal Trade
Commission Rule 1.98, 16 CFR 1.98, 61
FR 54549 (Oct. 21, 1996), and 74 FR 857
(Jan. 9, 2009), Defendant Leucadia
National Corporation is hereby ordered
to pay a civil penalty in the amount of
two hundred forty thousand dollars
($240,000). Payment of the civil penalty
ordered hereby shall be made by wire
transfer of funds or cashier’s check. If
the payment is made by wire transfer,
Defendant shall contact Janie Ingalls of
the Antitrust Division’s Antitrust
Documents Group at (202) 514–2481 for
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instructions before making the transfer.
If the payment is made by cashier’s
check, the check shall be made payable
to the United States Department of
Justice and delivered to: Janie Ingalls,
United States Department of Justice,
Antitrust Division, Antitrust Documents
Group, 450 5th Street NW., Suite 1024,
Washington, DC 20530.
Defendant shall pay the full amount
of the civil penalty within thirty (30)
days of entry of this Final Judgment. In
the event of a default or delay in
payment, interest at the rate of eighteen
(18) percent per annum shall accrue
thereon from the date of the default or
delay to the date of payment.
III.
Each party shall bear its own costs of
this action.
IV.
Entry of this Final Judgment is in the
public interest.
Dated: lllll
lllllllllllllllllllll
United States District Judge
[FR Doc. 2016–09915 Filed 4–27–16; 8:45 am]
BILLING CODE 4410–11–P
DEPARTMENT OF JUSTICE
Drug Enforcement Administration
Abolghasem Rezaei, M.D.; Decision
and Order
On November 16, 2015, the Deputy
Assistant Administrator, Office of
Diversion Control, Drug Enforcement
Administration, issued an Order to
Show Cause to Abolghasem Rezaei,
M.D. (hereinafter, Registrant) of Lawton,
Oklahoma. GX 1. The Show Cause
Order proposed the revocation of
Registrant’s DEA Certificate of
Registration, pursuant to which he is
authorized to dispense controlled
substances in schedules IV and V as a
practitioner, on the ground that he does
‘‘not have authority to handle controlled
substances in the State of Oklahoma, the
State in which [he is] registered with
the’’ Agency. Id. at 1.
More specifically, the Show Cause
Order alleged that effective May 28,
2013, the Oklahoma State Bureau of
Narcotics and Dangerous Drugs Control
(hereinafter, OBNDD) issued a
Stipulation and Agreed Order to
Registrant, pursuant to which his
authority to dispense controlled
substances in schedules II and III was
suspended ‘‘for two years’’; the Order
then alleged that his Oklahoma
registration ‘‘expired on October 31,
2014,’’ and had not been renewed. Id.
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The Show Cause Order thus alleged that
Registrant did ‘‘not have authority in
Oklahoma to order, dispense, prescribe
or administer any controlled
substances,’’ and that as a consequence,
DEA ‘‘must revoke [his] . . .
registrations.’’ Id. (citing 21 U.S.C.
802(21), 823(f), and 824(a)(3)).1
Thereafter, a DEA Diversion
Investigator (DI) determined that
Registrant was no longer practicing at
his registered location and was advised
by Agents of the OBNDD that the
premises appeared vacant. GX 9, at 1.
The DI did, however, obtain an address
for Registrant in Lawton, Oklahoma,
which appeared to be that of a
residence, and mailed the Show Cause
Order to Registrant by certified mail,
return receipt requested to this address.
Id. On November 30, 2015, the DI
received back the signed return-receipt
card. Id. According to the DI, ‘‘[t]he
signature appeared similar to the
signature of [Registrant] . . . on other
DEA records, which [Registrant]
signed.’’ Id. The DI also emailed the
Show Cause Order to Registrant at an
email address which Registrant had
listed when he applied for registration.
Id.; GX 2, at 1; GX 8. According to the
DI, ‘‘[t]he emailed copy was sent
successfully on November 16, 2015, but
I never received a response to’’ it. Id.
On January 5, 2016, the Government
submitted its Request for Final Agency
Action. Therein, the Government stated
that neither Registrant, ‘‘nor anyone
representing him[,] has requested a
hearing or otherwise corresponded with
DEA.’’ Req. for Final Agency Action, at
5. In its Request, the Government sought
a final order revoking Registrant’s DEA
registration based on the May 28, 2013
Stipulation and Agreed Order between
the OBNDD and Registrant, as well as
his act of allowing his state registration
to expire on October 31, 2014. Id. at 3.
However, on March 21, 2016, the
Government filed a further pleading.
See Request for Dismissal of Order to
Show Cause. Therein, the Government
noted that effective March 4, 2016,
Registrant had entered a subsequent
Stipulation and Agreed Order with the
OBNDD, pursuant to which the OBNDD
agreed to renew his state registration
subject to four conditions; the
Government provided a copy of the
Order with its filing. Id. at 2. Those
stipulations were that Registrant shall:
(1) ‘‘Remain on probation for 18 months
beginning on the date of entry of’’ the
1 The Show Cause Order also notified registrant
of his right to request a hearing on the allegations
or to submit a written statement while waiving his
right to a hearing, the procedure for electing either
option, and the consequence for failing to elect
either option. GX 1, at 2.
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Order; (2) ‘‘be prohibited from ordering,
storing, dispensing or administering’’
any controlled substances ‘‘during his
probation’’; (3) ‘‘be prohibited from’’
prescribing controlled substances in
schedule II or III ‘‘until January 1,
2017’’; and (4) run a PMP report of ‘‘his
own prescribing . . . at the end of each
calendar month’’ and submit an
‘‘affidavit that he has reviewed the
PMP’’ report to the OBNDD and state
that it ‘‘accurately reflects the
[controlled substance] prescriptions he
has authorized.’’ In re Rezaei,
Stipulation and Agreed Order, at 2
(OBNDD, Mar. 4, 2016).
Noting that the sole basis for this
proceeding was Registrant’s lack of state
authority and that the OBNDD’s Order
has restored his authority to prescribe
schedule IV and V controlled
substances, the Government no longer
seeks the revocation of Registrant’s DEA
registration.2 See Request for Dismissal
of Order to Show Cause, at 3.
Notwithstanding that the Government
seeks an Order dismissing the Show
Cause Order, it also requests an Order
restricting Registrant’s DEA registration
‘‘to the extent of his controlled
substances authorization under
Oklahoma state law.’’ Id.
Based on the record submitted by the
Government, I find that Respondent has
2 The State Order, upon which this proceeding
was based, contained numerous stipulated findings
that clearly would have supported a prima facie
case for revocation under the public interest
standard of 21 U.S.C. 824(a)(4). These include: (1)
That during a November 5, 2012 inspection, an
OBNDD Agent and Oklahoma Board of Medical
Licensure Investigator had conducted an inspection
of Respondent’s clinic and found that Demerol and
other drugs were kept in a locked desk located in
a common area of the clinic and that the key was
kept in an unlocked drawer at the receptionist’s
desk; (2) that ‘‘Respondent was unable to produce
any . . . order forms, invoices, or inventories’’ for
the drugs in the desk; (3) that Respondent stored
other controlled substances in an unlocked cabinet
in an area of the clinic which all employees, as well
as construction workers who were renovating the
clinic, had access to; (4) that Respondent also kept
controlled substances in a large plastic storage box
on a counter below the aforesaid cabinet; (5) that
during the inspection, Respondent submitted to a
urinalysis and tested positive for oxycodone and
that he ‘‘did not have a valid prescription’’ for the
drug; (6) that Respondent’s administration logs
showed that ‘‘on at least 3 occasions,’’ controlled
drugs ‘‘were administered to either [himself] or [his]
wife’’; (6) that there was no patient file for two
patients who were listed in the administration log;
(7) that the drug administration log listed 11 entries
for Demerol injections for ‘‘skin care’’ but did not
list a patient name; (8) that Respondent’s wife
owned a skin care clinic that ‘‘had a separate
address from the medical clinic’’ and which was
unregistered, and that the OBNDD Agent inspected
the clinic and found that controlled drugs were
stored in an unlocked drawer in a treatment room
and Respondent stated that the drugs had been
prescribed but returned by his patients; (9) and that
controlled drugs that were stored at the skin care
clinic were either administered or dispensed to that
clinic’s ‘‘clients without maintaining an
administration log.’’ GX 6, at 1–4.
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been served in a constitutionally
adequate manner and I find that service
was effective no later than November
30, 2015. Based on the Government’s
further representation that since the
date of service, neither Registrant, nor
anyone representing him, has either
requested a hearing or submitted a
written statement in lieu of a hearing, I
find that Registrant has waived his right
to either request a hearing or to submit
a written statement. I therefore issue
this Decision and Final Order based
solely on the Investigative Record
submitted by the Government. I make
the following findings.
Findings
Registrant is the holder of DEA
Registration #FR4496267, pursuant to
which he is authorized to dispense
controlled substances in schedules IV
and V, at the registered address of
Family Practice Clinic & Minor
Emergency Medicine, 4645 W. Gore
Blvd., Suite 1–2, Lawton, Oklahoma. GX
2. Registrant’s registration does not
expire until April 30, 2017. Id.
Registrant is also the holder of an
active medical license issued by the
Oklahoma State Board of Medical
Licensure and Supervision. According
to the Board’s Web site, Respondent is
now practicing at 2502 West Gore Blvd.,
Lawton, Oklahoma. See https://
www.okmedicalboard.org/licensee/MD/
23655. He has also recently obtained a
new state registration from the OBNDD.
However, Registrant’s OBNDD
registration prohibits him ‘‘from
ordering, storing, dispensing, or
administering [controlled substances]
from any [s]chedule during his
probation,’’ which runs for 18 months
beginning on March 4, 2016, and it
further prohibits him ‘‘from authorizing
prescriptions for [s]chedule II or
[s]chedule III [controlled substances]
until January 1, 2017.’’ Stipulation and
Agreed Order, at 2.
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, ‘‘upon a finding that
the registrant . . . has had his State
license . . . suspended [or] revoked
. . . by competent State authority and is
no longer authorized by State law to
engage in the . . . dispensing of
controlled substances.’’ Moreover,
Congress has 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
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substance in the course of professional
practice.’’ 21 U.S.C. 802(21). Likewise,
the CSA conditions the granting of a
practitioner’s application for registration
on his/her possession of authority to
dispense controlled substances under
state law. See 21 U.S.C. 823(f) (‘‘The
Attorney General shall register
practitioners . . . to dispense . . .
controlled substances . . . if the
applicant is authorized to dispense . . .
controlled substances under the laws of
the State in which he practices.’’). And
of further note, the CSA defines the term
‘‘dispense’’ as meaning ‘‘to deliver a
controlled substance to an ultimate user
. . . by, or pursuant to the lawful order
of, a practitioner.’’ Id. § 802(10)
(emphasis added).
Thus, the Agency has repeatedly 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, 76 FR 71371 (2011),
pet. for rev. denied, 481 Fed. Appx. 826
(4th Cir. 2012). And because a
practitioner’s authority under the CSA
is based on his/her authority to dispense
controlled substances under the laws of
the State in which he practices, the
Agency has further held that ‘‘to the
extent a practitioner is not authorized
under state law to dispense certain
categories or schedules of controlled
substances, he can no longer lawfully
dispense them under federal law.’’
Kenneth Harold Bull, 78 FR 62666,
62672 (2013).
For the same reason, where a state
board limits a practitioner’s controlled
substance authority by prohibiting him
from possessing controlled substances
or by limiting his authority to
prescribing, the practitioner’s authority
under his DEA registration must also be
so limited. See, e.g., Steven M.
Abbadessa, 74 FR 10077, 10082 (2009)
(noting ambiguity in state agency’s order
as to whether it authorized physician to
administer controlled substances at his
clinic and requiring him to provide
evidence that such activity was
authorized by the State prior to doing
so); cf. United States v. Moore, 423 U.S.
122, 140–41 (1975) (‘‘In the case of a
physician, [the CSA] contemplates that
he is authorized by the State to practice
medicine and to dispense drugs in
connection with his professional
practice. The federal registration . . .
extends no further.’’).
Accordingly, although the OBNDD’s
Stipulation and Agreed Order
effectively authorizes Registrant to
prescribe schedule IV and V controlled
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substances, it affirmatively prohibits
him from ordering, storing (possessing),
administering and directly dispensing
all controlled substances. While
Registrant’s DEA registration does not
authorize him to handle schedule II and
III controlled substances in any manner,
his registration currently provides
authority for him to order, store,
administer and directly dispense
schedule IV and V controlled
substances. Because Registrant’s DEA
registration can only grant him authority
to the extent that the State has granted
him authority, I will order that his
registration be restricted to authorize
only the prescribing of controlled
substances in schedules IV and V.
Also, in the event Registrant intends
to seek authority to prescribe schedule
II or III controlled substances upon the
expiration of the OBNDD’s condition, he
must apply for a modification of his
DEA registration before doing so. See 21
CFR 1301.51. So too, in the event
Registrant seeks to engage in the
ordering, storing, dispensing or
administering of any controlled
substance upon the expiration of his
probation, he must apply for a
modification of his DEA registration
before doing so. Finally, because the
Oklahoma Medical Board’s records list
Registrant’s practice address as being
different from his DEA registered
address, and it appears that Registrant is
no longer practicing at the latter
address, he is directed to inquire of the
local DEA office as to whether he must
obtain a modification of his registration
to reflect his new practice address. See
21 CFR 1301.12(a) & (b).
Order
Pursuant to the authority vested in me
by 21 U.S.C. 824(a), as well as 28 CFR
0.100(b), I order that DEA Certificate of
Registration# FR4496267 issued to
Abolghasem Rezaei, M.D., be, and it
hereby is, restricted to authorize only
the prescribing of controlled substances
in schedules IV and V. This Order is
effective immediately.
Dated: April 21, 2016.
Chuck Rosenberg,
Acting Administrator.
[FR Doc. 2016–09973 Filed 4–27–16; 8:45 am]
BILLING CODE 4410–09–P
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DEPARTMENT OF JUSTICE
[OMB Number 1140–0011]
Agency Information Collection
Activities; Proposed eCollection
eComments Requested; Application To
Make and Register a Firearm (ATF
Form 1 (5320.1)
Bureau of Alcohol, Tobacco,
Firearms and Explosives, Department of
Justice
ACTION: 30-Day notice.
AGENCY:
The Department of Justice
(DOJ), Bureau of Alcohol, Tobacco,
Firearms and Explosives (ATF), will
submit the following information
collection request to the Office of
Management and Budget (OMB) for
review and approval in accordance with
the Paperwork Reduction Act of 1995.
The proposed information collection
was previously published in the Federal
Register 81 FR 8099, on February 17,
2016, allowing for a 60-day comment
period.
DATES: Comments are encouraged and
will be accepted for an additional 30
days until May 31, 2016.
FOR FURTHER INFORMATION CONTACT: If
you have additional comments
especially on the estimated public
burden or associated response time,
suggestions, or need a copy of the
proposed information collection
instrument with instructions or
additional information, please contact
Gary Schaible, Industry Liaison Analyst,
Bureau of Alcohol, Tobacco, Firearms
and Explosives (ATF), 99 New York
Ave. NE., Washington, DC 20226 at
email: nfaombcomments@atf.gov.
Written comments and/or suggestions
can also be directed to the Office of
Management and Budget, Office of
Information and Regulatory Affairs,
Attention Department of Justice Desk
Officer, Washington, DC 20503 or sent
to OIRA_submissions@omb.eop.gov.
SUPPLEMENTARY INFORMATION: Written
comments and suggestions from the
public and affected agencies concerning
the proposed collection of information
are encouraged. Your comments should
address one or more of the following
four points:
• Evaluate whether the proposed
collection of information is necessary
for the proper performance of the
functions of the agency, including
whether the information will have
practical utility;
• Evaluate the accuracy of the
agency’s estimate of the burden of the
proposed collection of information,
including the validity of the
methodology and assumptions used;
SUMMARY:
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]]>Agencies
[Federal Register Volume 81, Number 82 (Thursday, April 28, 2016)]
[Notices]
[Pages 25425-25427]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-09973]
-----------------------------------------------------------------------
DEPARTMENT OF JUSTICE
Drug Enforcement Administration
Abolghasem Rezaei, M.D.; Decision and Order
On November 16, 2015, the Deputy Assistant Administrator, Office of
Diversion Control, Drug Enforcement Administration, issued an Order to
Show Cause to Abolghasem Rezaei, M.D. (hereinafter, Registrant) of
Lawton, Oklahoma. GX 1. The Show Cause Order proposed the revocation of
Registrant's DEA Certificate of Registration, pursuant to which he is
authorized to dispense controlled substances in schedules IV and V as a
practitioner, on the ground that he does ``not have authority to handle
controlled substances in the State of Oklahoma, the State in which [he
is] registered with the'' Agency. Id. at 1.
More specifically, the Show Cause Order alleged that effective May
28, 2013, the Oklahoma State Bureau of Narcotics and Dangerous Drugs
Control (hereinafter, OBNDD) issued a Stipulation and Agreed Order to
Registrant, pursuant to which his authority to dispense controlled
substances in schedules II and III was suspended ``for two years''; the
Order then alleged that his Oklahoma registration ``expired on October
31, 2014,'' and had not been renewed. Id.
[[Page 25426]]
The Show Cause Order thus alleged that Registrant did ``not have
authority in Oklahoma to order, dispense, prescribe or administer any
controlled substances,'' and that as a consequence, DEA ``must revoke
[his] . . . registrations.'' Id. (citing 21 U.S.C. 802(21), 823(f), and
824(a)(3)).\1\
---------------------------------------------------------------------------
\1\ The Show Cause Order also notified registrant of his right
to request a hearing on the allegations or to submit a written
statement while waiving his right to a hearing, the procedure for
electing either option, and the consequence for failing to elect
either option. GX 1, at 2.
---------------------------------------------------------------------------
Thereafter, a DEA Diversion Investigator (DI) determined that
Registrant was no longer practicing at his registered location and was
advised by Agents of the OBNDD that the premises appeared vacant. GX 9,
at 1. The DI did, however, obtain an address for Registrant in Lawton,
Oklahoma, which appeared to be that of a residence, and mailed the Show
Cause Order to Registrant by certified mail, return receipt requested
to this address. Id. On November 30, 2015, the DI received back the
signed return-receipt card. Id. According to the DI, ``[t]he signature
appeared similar to the signature of [Registrant] . . . on other DEA
records, which [Registrant] signed.'' Id. The DI also emailed the Show
Cause Order to Registrant at an email address which Registrant had
listed when he applied for registration. Id.; GX 2, at 1; GX 8.
According to the DI, ``[t]he emailed copy was sent successfully on
November 16, 2015, but I never received a response to'' it. Id.
On January 5, 2016, the Government submitted its Request for Final
Agency Action. Therein, the Government stated that neither Registrant,
``nor anyone representing him[,] has requested a hearing or otherwise
corresponded with DEA.'' Req. for Final Agency Action, at 5. In its
Request, the Government sought a final order revoking Registrant's DEA
registration based on the May 28, 2013 Stipulation and Agreed Order
between the OBNDD and Registrant, as well as his act of allowing his
state registration to expire on October 31, 2014. Id. at 3.
However, on March 21, 2016, the Government filed a further
pleading. See Request for Dismissal of Order to Show Cause. Therein,
the Government noted that effective March 4, 2016, Registrant had
entered a subsequent Stipulation and Agreed Order with the OBNDD,
pursuant to which the OBNDD agreed to renew his state registration
subject to four conditions; the Government provided a copy of the Order
with its filing. Id. at 2. Those stipulations were that Registrant
shall: (1) ``Remain on probation for 18 months beginning on the date of
entry of'' the Order; (2) ``be prohibited from ordering, storing,
dispensing or administering'' any controlled substances ``during his
probation''; (3) ``be prohibited from'' prescribing controlled
substances in schedule II or III ``until January 1, 2017''; and (4) run
a PMP report of ``his own prescribing . . . at the end of each calendar
month'' and submit an ``affidavit that he has reviewed the PMP'' report
to the OBNDD and state that it ``accurately reflects the [controlled
substance] prescriptions he has authorized.'' In re Rezaei, Stipulation
and Agreed Order, at 2 (OBNDD, Mar. 4, 2016).
Noting that the sole basis for this proceeding was Registrant's
lack of state authority and that the OBNDD's Order has restored his
authority to prescribe schedule IV and V controlled substances, the
Government no longer seeks the revocation of Registrant's DEA
registration.\2\ See Request for Dismissal of Order to Show Cause, at
3. Notwithstanding that the Government seeks an Order dismissing the
Show Cause Order, it also requests an Order restricting Registrant's
DEA registration ``to the extent of his controlled substances
authorization under Oklahoma state law.'' Id.
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\2\ The State Order, upon which this proceeding was based,
contained numerous stipulated findings that clearly would have
supported a prima facie case for revocation under the public
interest standard of 21 U.S.C. 824(a)(4). These include: (1) That
during a November 5, 2012 inspection, an OBNDD Agent and Oklahoma
Board of Medical Licensure Investigator had conducted an inspection
of Respondent's clinic and found that Demerol and other drugs were
kept in a locked desk located in a common area of the clinic and
that the key was kept in an unlocked drawer at the receptionist's
desk; (2) that ``Respondent was unable to produce any . . . order
forms, invoices, or inventories'' for the drugs in the desk; (3)
that Respondent stored other controlled substances in an unlocked
cabinet in an area of the clinic which all employees, as well as
construction workers who were renovating the clinic, had access to;
(4) that Respondent also kept controlled substances in a large
plastic storage box on a counter below the aforesaid cabinet; (5)
that during the inspection, Respondent submitted to a urinalysis and
tested positive for oxycodone and that he ``did not have a valid
prescription'' for the drug; (6) that Respondent's administration
logs showed that ``on at least 3 occasions,'' controlled drugs
``were administered to either [himself] or [his] wife''; (6) that
there was no patient file for two patients who were listed in the
administration log; (7) that the drug administration log listed 11
entries for Demerol injections for ``skin care'' but did not list a
patient name; (8) that Respondent's wife owned a skin care clinic
that ``had a separate address from the medical clinic'' and which
was unregistered, and that the OBNDD Agent inspected the clinic and
found that controlled drugs were stored in an unlocked drawer in a
treatment room and Respondent stated that the drugs had been
prescribed but returned by his patients; (9) and that controlled
drugs that were stored at the skin care clinic were either
administered or dispensed to that clinic's ``clients without
maintaining an administration log.'' GX 6, at 1-4.
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Based on the record submitted by the Government, I find that
Respondent has been served in a constitutionally adequate manner and I
find that service was effective no later than November 30, 2015. Based
on the Government's further representation that since the date of
service, neither Registrant, nor anyone representing him, has either
requested a hearing or submitted a written statement in lieu of a
hearing, I find that Registrant has waived his right to either request
a hearing or to submit a written statement. I therefore issue this
Decision and Final Order based solely on the Investigative Record
submitted by the Government. I make the following findings.
Findings
Registrant is the holder of DEA Registration #FR4496267, pursuant
to which he is authorized to dispense controlled substances in
schedules IV and V, at the registered address of Family Practice Clinic
& Minor Emergency Medicine, 4645 W. Gore Blvd., Suite 1-2, Lawton,
Oklahoma. GX 2. Registrant's registration does not expire until April
30, 2017. Id.
Registrant is also the holder of an active medical license issued
by the Oklahoma State Board of Medical Licensure and Supervision.
According to the Board's Web site, Respondent is now practicing at 2502
West Gore Blvd., Lawton, Oklahoma. See https://www.okmedicalboard.org/licensee/MD/23655. He has also recently obtained a new state
registration from the OBNDD. However, Registrant's OBNDD registration
prohibits him ``from ordering, storing, dispensing, or administering
[controlled substances] from any [s]chedule during his probation,''
which runs for 18 months beginning on March 4, 2016, and it further
prohibits him ``from authorizing prescriptions for [s]chedule II or
[s]chedule III [controlled substances] until January 1, 2017.''
Stipulation and Agreed Order, at 2.
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, ``upon a
finding that the registrant . . . has had his State license . . .
suspended [or] revoked . . . by competent State authority and is no
longer authorized by State law to engage in the . . . dispensing of
controlled substances.'' Moreover, Congress has 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
[[Page 25427]]
substance in the course of professional practice.'' 21 U.S.C. 802(21).
Likewise, the CSA conditions the granting of a practitioner's
application for registration on his/her possession of authority to
dispense controlled substances under state law. See 21 U.S.C. 823(f)
(``The Attorney General shall register practitioners . . . to dispense
. . . controlled substances . . . if the applicant is authorized to
dispense . . . controlled substances under the laws of the State in
which he practices.''). And of further note, the CSA defines the term
``dispense'' as meaning ``to deliver a controlled substance to an
ultimate user . . . by, or pursuant to the lawful order of, a
practitioner.'' Id. Sec. 802(10) (emphasis added).
Thus, the Agency has repeatedly 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, 76 FR 71371 (2011), pet. for
rev. denied, 481 Fed. Appx. 826 (4th Cir. 2012). And because a
practitioner's authority under the CSA is based on his/her authority to
dispense controlled substances under the laws of the State in which he
practices, the Agency has further held that ``to the extent a
practitioner is not authorized under state law to dispense certain
categories or schedules of controlled substances, he can no longer
lawfully dispense them under federal law.'' Kenneth Harold Bull, 78 FR
62666, 62672 (2013).
For the same reason, where a state board limits a practitioner's
controlled substance authority by prohibiting him from possessing
controlled substances or by limiting his authority to prescribing, the
practitioner's authority under his DEA registration must also be so
limited. See, e.g., Steven M. Abbadessa, 74 FR 10077, 10082 (2009)
(noting ambiguity in state agency's order as to whether it authorized
physician to administer controlled substances at his clinic and
requiring him to provide evidence that such activity was authorized by
the State prior to doing so); cf. United States v. Moore, 423 U.S. 122,
140-41 (1975) (``In the case of a physician, [the CSA] contemplates
that he is authorized by the State to practice medicine and to dispense
drugs in connection with his professional practice. The federal
registration . . . extends no further.'').
Accordingly, although the OBNDD's Stipulation and Agreed Order
effectively authorizes Registrant to prescribe schedule IV and V
controlled substances, it affirmatively prohibits him from ordering,
storing (possessing), administering and directly dispensing all
controlled substances. While Registrant's DEA registration does not
authorize him to handle schedule II and III controlled substances in
any manner, his registration currently provides authority for him to
order, store, administer and directly dispense schedule IV and V
controlled substances. Because Registrant's DEA registration can only
grant him authority to the extent that the State has granted him
authority, I will order that his registration be restricted to
authorize only the prescribing of controlled substances in schedules IV
and V.
Also, in the event Registrant intends to seek authority to
prescribe schedule II or III controlled substances upon the expiration
of the OBNDD's condition, he must apply for a modification of his DEA
registration before doing so. See 21 CFR 1301.51. So too, in the event
Registrant seeks to engage in the ordering, storing, dispensing or
administering of any controlled substance upon the expiration of his
probation, he must apply for a modification of his DEA registration
before doing so. Finally, because the Oklahoma Medical Board's records
list Registrant's practice address as being different from his DEA
registered address, and it appears that Registrant is no longer
practicing at the latter address, he is directed to inquire of the
local DEA office as to whether he must obtain a modification of his
registration to reflect his new practice address. See 21 CFR 1301.12(a)
& (b).
Order
Pursuant to the authority vested in me by 21 U.S.C. 824(a), as well
as 28 CFR 0.100(b), I order that DEA Certificate of Registration#
FR4496267 issued to Abolghasem Rezaei, M.D., be, and it hereby is,
restricted to authorize only the prescribing of controlled substances
in schedules IV and V. This Order is effective immediately.
Dated: April 21, 2016.
Chuck Rosenberg,
Acting Administrator.
[FR Doc. 2016-09973 Filed 4-27-16; 8:45 am]
BILLING CODE 4410-09-P
