Alan H. Olefsky, M.D.; Denial of Application, 42127-42129 [E7-14820]

Download as PDF Federal Register / Vol. 72, No. 147 / Wednesday, August 1, 2007 / Notices practices * * * to * * * dispense * * * 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 [it] practices.’’). State authority is thus an essential prerequisite to maintaining a DEA registration.2 Moreover, this Agency has repeatedly revoked the DEA registrations of those registrants who no longer hold state authority to handle controlled substances, regardless of whether that authority has been revoked or suspended pending further proceedings. See Bourne Pharmacy, 72 FR at 18274; The Medicine Shoppe, 71 FR 42878, 42879 (2006); Rx Network of South Florida, LLC, 69 FR 62093 (2004); Wingfield Drugs, Inc., 52 FR 27070 (1987). Because Respondent is not currently authorized to handle controlled substances in the State in which it engages in the practice of pharmacy, it is not entitled to maintain its DEA registration.3 Therefore, its registration will be revoked and any pending applications for renewal or modification of its 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) and 0.104, I hereby order that DEA Certificate of Registration, BN3795892, issued to Newcare Home Health Services, 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 August 31, 2007. Dated: July 20, 2007. Michele M. Leonhart, Deputy Administrator. [FR Doc. E7–14819 Filed 7–31–07; 8:45 am] jlentini on PROD1PC65 with NOTICES BILLING CODE 4410–09–P 2 The ALJ properly rejected Respondent’s request for a stay. It is not DEA’s policy to stay proceedings under section 304 while registrants litigate in other forums. See Bourne Pharmacy, Inc., 72 FR 18273 (2007); Oakland Medical Pharmacy, 71 FR 50100 (2006); Kennard Kobrin, M.D., 70 FR 33199 (2005). As the ALJ explained, Respondent can always apply for a new registration if it prevails in the pending state administrative proceeding. 3 Based on this Agency’s records, I find that Respondent is the holder of DEA Certificate of Registration, BN3795892, which does not expire until October 31, 2008. VerDate Aug<31>2005 20:12 Jul 31, 2007 Jkt 211001 material in the investigative file and make the following findings. DEPARTMENT OF JUSTICE Drug Enforcement Administration Alan H. Olefsky, M.D.; Denial of Application On May 25, 2005, the Deputy Assistant Administrator, Office of Diversion Control, Drug Enforcement Administration, issued an Order to Show Cause to Alan H. Olefsky, M.D. (Respondent), of Chicago, Illinois. The Show Cause Order proposed to revoke Respondent’s DEA Certificate of Registration, BO3661104, as a practitioner, and to deny any pending applications for renewal or modification of his registration, on the ground that the Illinois Department of Financial and Professional Regulation had suspended his state medical license and state controlled substance license. Show Cause Order at 1. The Show Cause Order thus alleged that Respondent was not authorized to handle controlled substances in the State where he was registered and was thus not entitled to maintain his registration. Id. (citing 21 U.S.C. 824(a)(3)). The Show Cause Order also alleged that Respondent had committed acts which rendered his registration inconsistent with the public interest. Id. (citing 21 U.S.C. 824(a)(4)). More specifically, the Show Cause Order alleged that from December 2002 through October 2004, Respondent had ‘‘issued false prescriptions for controlled substances in the names of’’ three individuals, and that the prescriptions were for his ‘‘personal use.’’ Id. The Show Cause Order also notified Respondent of his right to request a hearing on the allegations. On June 8, 2005, the Show Cause Order was served on Respondent by certified mail as evidenced by the signed return receipt card. Neither Respondent, nor anyone purporting to represent him, requested a hearing on the allegations within the time period set forth in 21 CFR 1301.43(a) and the Show Cause Order. The matter was held in abeyance after the State restored Respondent’s medical license. On March 30, 2007, the State again suspended Respondent’s medical license. Accordingly, on May 10, 2007, the investigative file was forwarded to my Office for final agency action. As an initial matter, I find that because Respondent did not request a hearing within thirty days of receipt of the Show Cause order he has waived his right to hearing. See 21 CFR 1301.43(d). I therefore enter this Final Order without a hearing based on relevant PO 00000 Frm 00086 Fmt 4703 Sfmt 4703 42127 Findings Respondent was the holder of DEA Certificate of Registration, BO3661104, which authorized him to handle schedule II through V controlled substances as a practitioner. Respondent’s registration expired on December 31, 2004. According to the investigative file, Respondent did not submit a renewal application until February 24, 2005, nearly two months after his registration expired. Accordingly, I find that Respondent’s renewal application was not timely submitted and his registration expired on December 31, 2004. See 5 U.S.C. 558(c) (requiring submission of a ‘‘timely and sufficient application for a renewal’’ in order for a registration to be continued until the Agency makes a ‘‘final determin[ation]’’ on the application). I further find, however, that Respondent does have an application pending before the agency. According to the investigative file, on February 18, 2005, the Illinois Department of Financial and Professional Regulation summarily suspended Respondent’s state medical license and controlled substance registrations. In support of the suspension, the State alleged, inter alia, that ‘‘Respondent issued false prescriptions for controlled substances under other names for personal use.’’ Pet. For Temp. Susp. 1. The petition was supported by the sworn affidavit of Larry G. McClain, M.D., the Chief Medical Coordinator of the Illinois Department of Financial and Professional Regulation. In his affidavit, Dr. McClain averred that ‘‘the Department has learned that Respondent has repeatedly issued false prescriptions for Xanax, Dilaudid and Viagra. He calls in these prescriptions in the names of [M.G., V.G. and T.C.] He obtains these prescriptions for personal use and pays cash to remain untraceable.’’ Dr. McClain further averred that ‘‘Respondent was arrested for a DUI in June of 2004 and * * * has an extensive criminal history.’’ In September 2006, Respondent and the State entered into a consent order under which his medical license was restored based on his having entered a treatment program and an Aftercare Agreement. Consent Order at 2. In the order, ‘‘Respondent admit[ted] the allegations raised by the Department.’’ Id. The consent order, which became effective on November 21, 2006, placed Respondent on ‘‘Indefinite Probation,’’ and also imposed various conditions including that he comply with the terms E:\FR\FM\01AUN1.SGM 01AUN1 42128 Federal Register / Vol. 72, No. 147 / Wednesday, August 1, 2007 / Notices of an Aftercare Agreement and abstain from the use of alcohol and ‘‘mood altering and/or psychoactive drugs’’ except as ‘‘prescribed by a primary care and/or treating physician.’’ Id. at 3. Thereafter, on March 30, 2007, the State again imposed a summary suspension of Respondent’s medical license, which remains in effect. See Notice of Temporary Suspension. In the Complaint, the State alleged that in January 2007, Respondent had been hospitalized with ‘‘a blood alcohol level of 327.’’ Complaint at 2. The State also alleged that in February 2007, Respondent had been admitted to Rush Behavioral Care to be treated for ‘‘alcohol dependence.’’ Id. The State further alleged that in February 2007, Respondent had applied for a new state Controlled Substance Registration. Id. Finally, the Complaint alleged that Respondent had failed to comply with the conditions of Consent Order.1 There is no evidence in the file that the State has granted Respondent a new Controlled Substance Registration. Moreover, the State’s summary suspension further ordered Respondent to ‘‘immediately surrender all indicia of licensure to the Department.’’ March 30, 2007 Summary Suspension Order at 1–2. I therefore find that Respondent does not hold a current Illinois Controlled Substance Registration. Discussion Section 303(f) of the Controlled Substances Act provides that ‘‘[t]he Attorney General shall register practitioners * * * to dispense * * * controlled substances in schedule II, III, IV, or V, if the applicant is authorized to dispense * * * controlled substances under the laws of the State in which he practices.’’ 21 U.S.C. 823(f). Section 303(f) further provides that ‘‘[t]he Attorney General may deny an application for such registration if he determines that the issuance of such registration would be inconsistent with the public interest.’’ Id. In making the public interest determination, the Act requires the consideration of the following factors: jlentini on PROD1PC65 with NOTICES (1) The recommendation of the appropriate State licensing board or professional disciplinary authority. (2) The applicant’s experience in dispensing * * * controlled substances. (3) The applicant’s conviction record under Federal or State laws relating to the 1 I also take official notice of the fact that on January 9, 1992, the Administrator of this Agency ordered the revocation of Respondent’s registration based on his having presented fraudulent prescriptions for Percocet and Halcion to a pharmacy. See Alan H. Olefsky, 57 FR 928, 929 (1992). VerDate Aug<31>2005 20:12 Jul 31, 2007 Jkt 211001 manufacture, distribution, or dispensing of controlled substances. (4) Compliance with applicable State, Federal, or local laws relating to controlled substances. (5) Such other conduct which may threaten the public health and safety. Id. ‘‘[T]hese factors are * * * considered in the disjunctive.’’ Robert A. Leslie, M.D., 68 FR 15227, 15230 (2003). I ‘‘may rely on any one or a combination of factors, and may give each factor the weight [I] deem[ ] appropriate in determining whether a registration should be revoked.’’ Id. Moreover, I am ‘‘not required to make findings as to all of the factors.’’ Hoxie v. DEA, 419 F.3d 477, 482 (6th Cir. 2005); see also Morall v. DEA, 412 F.3d 165, 173–74 (D.C. Cir. 2005). In this case, I conclude that there are two independent grounds for denying Respondent’s application. First, Respondent is not currently authorized under Illinois law to handle controlled substances and thus does not meet an essential requirement for a registration under the CSA. Second, Respondent’s experience in dispensing controlled substances and his record of compliance with applicable laws make clear that granting him a registration would be inconsistent with the public interest. Respondent’s Lack of State Authority 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. 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.’’). Relatedly, DEA has held repeatedly that the CSA requires the revocation of a registration issued to a practitioner who no longer possesses authority under state law to handle controlled substances. 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 PO 00000 Frm 00087 Fmt 4703 Sfmt 4703 authorized by State law to engage in the * * * distribution [or] dispensing of controlled substances’’). Here, the investigative file establishes that Respondent’s Illinois controlled substance registrations were suspended pursuant to the State’s February 18, 2005 order. Moreover, there is no evidence that the State has issued a new controlled substance registration to him, and in any event, the State’s March 30, 2007 order directed him to ‘‘immediately surrender all indicia of licensure to the Department.’’ Therefore, Respondent is without authority to handle controlled substances in Illinois, the State in which he seeks registration. Respondent thus does not meet an essential prerequisite for a new DEA registration and his application will be denied on that basis. See 21 U.S.C. 823(f). The Public Interest Analysis Because the State’s summary suspension is not a final order, review of Respondent’s application under the public interest factors is also warranted. Here, Dr. McClain’s affidavit establishes that Respondent ‘‘repeatedly issued false prescriptions’’ in the names of other persons for Xanax (alprazolam), a schedule IV controlled substance, see 21 CFR 1308.14(c), and Dilaudid (hydromorphone), a schedule II controlled substance. See id. 1308.12(b)(1). Respondent then filled the prescriptions and personally abused the drugs. Respondent admitted to this conduct in the Consent Order. I thus find that Respondent violated Federal law. See 21 U.S.C. 843(a)(3) (rendering it ‘‘unlawful for any person knowingly or intentionally * * * to acquire or obtain possession of a controlled substance by misrepresentation, fraud, forgery, deception, or subterfuge’’). Moreover, as noted above, this is not the first time that Respondent has engaged in such criminal behavior. See Olesky, 57 FR at 928–29. Accordingly, Respondent’s experience in dispensing controlled substances and his record of compliance with Federal law amply demonstrate that granting his application for registration would be ‘‘inconsistent with the public interest.’’ 21 U.S.C. 823(f). Therefore, even if the State were to restore his medical license and grant him a new state controlled substance registration, I would still deny his application. Order Pursuant to the authority vested in me by 21 U.S.C. 823(f), as well as 28 CFR 0.100(b) & 0.104, I order that the application of Alan H. Olefksy, M.D., for a DEA Certificate of Registration as a E:\FR\FM\01AUN1.SGM 01AUN1 Federal Register / Vol. 72, No. 147 / Wednesday, August 1, 2007 / Notices practitioner be, and it hereby is, denied. This order is effective August 31, 2007. Dated: July 20, 2007. Michele M. Leonhart, Deputy Administrator. [FR Doc. E7–14820 Filed 7–31–07; 8:45 am] BILLING CODE 4410–09–P DEPARTMENT OF LABOR Employee Benefits Security Administration [Application No. D–11324] Withdrawal of the Notice of Proposed Exemption Involving Deutsche Bank AG (DB); Located in Germany, With Affiliates in New York, NY and Other Locations In the Federal Register dated February 13, 2007, (72 FR 6747), the Department of Labor (the Department) published a notice of pendency (the Notice) of a proposed exemption from the prohibited transaction restrictions of the Employee Retirement Income Security Act of 1974 and from certain taxes imposed by the Internal Revenue Code of 1986. The Notice concerned an application filed on behalf of DB and its affiliates (the Applicants) which would have amended and superseded Prohibited Transaction Exemption 2003–24 (PTE 2003–24) (68 FR 48637, August 14, 2003, as corrected, 68 FR 55993, September 29, 2003) with respect to the Applicants. By e-mail dated June 19, 2007, the Applicants requested that the application for exemption be withdrawn. Accordingly, the Department has determined to withdraw the above-cited Notice. FOR FURTHER INFORMATION CONTACT: Angelena C. Le Blanc of the Department, telephone (202) 693–8540. (This is not a toll-free number.) Signed at Washington, DC, this 27th day of July 2007. Ivan L. Strasfeld, Director of Exemption Determinations, Employee Benefits Security Administration, U.S. Department of Labor. [FR Doc. E7–14880 Filed 7–31–07; 8:45 am] jlentini on PROD1PC65 with NOTICES BILLING CODE 4510–29–P VerDate Aug<31>2005 20:12 Jul 31, 2007 Jkt 211001 Statutory Findings DEPARTMENT OF LABOR Employee Benefits Security Administration Prohibited Transaction Exemption 2007–10 Through 2007–13; Grant of Individual Exemptions involving; D– 11393 & D–11394, (PTE 2007–10), Paul Niednagel IRAs and Lynne Niednagel IRAs (Collectively, the IRAs); D–11406, (PTE 2007–11), The Revlon Employees Savings, Investment and Profit Sharing Plan (the Plan); L–11365, (PTE 2007– 12), American Maritime Officers Safety & Education Plan (the S&E Plan); and L–11382, (PTE 2007–13), Sheet Metal Workers Local Union 17 Insurance Fund (the Fund) Employee Benefits Security Administration, Labor. AGENCY: ACTION: Grant of individual exemptions. SUMMARY: This document contains exemptions issued by the Department of Labor (the Department) from certain of the prohibited transaction restrictions of the Employee Retirement Income Security Act of 1974 (ERISA or the Act) and/or the Internal Revenue Code of 1986 (the Code). A notice was published in the Federal Register of the pendency before the Department of a proposal to grant such exemption. The notice set forth a summary of facts and representations contained in the application for exemption and referred interested persons to the application for a complete statement of the facts and representations. The application has been available for public inspection at the Department in Washington, DC. The notice also invited interested persons to submit comments on the requested exemption to the Department. In addition the notice stated that any interested person might submit a written request that a public hearing be held (where appropriate). The applicant has represented that it has complied with the requirements of the notification to interested persons. No requests for a hearing were received by the Department. Public comments were received by the Department as described in the granted exemption. The notice of proposed exemption was issued and the exemption is being granted solely by the Department because, effective December 31, 1978, section 102 of Reorganization Plan No. 4 of 1978, 5 U.S.C. App. 1 (1996), transferred the authority of the Secretary of the Treasury to issue exemptions of the type proposed to the Secretary of Labor. PO 00000 Frm 00088 Fmt 4703 Sfmt 4703 42129 In accordance with section 408(a) of the Act and/or section 4975(c)(2) of the Code and the procedures set forth in 29 CFR part 2570, subpart B (55 FR 32836, 32847, August 10, 1990) and based upon the entire record, the Department makes the following findings: (a) The exemption is administratively feasible; (b) The exemption is in the interests of the plan and its participants and beneficiaries; and (c) The exemption is protective of the rights of the participants and beneficiaries of the plan. Paul Niednagel IRAs and Lynne Niednagel IRAs (collectively, the IRAs), Located in Laguna Niguel, California [Prohibited Transaction Exemption 2007–10; Exemption Application Numbers: D–11393 and D–11394] Exemption The sanctions resulting from the application of section 4975 of the Code, by reason of sections 4975(c)(1)(D) and (E) of the Code, shall not apply to the purchase (the Purchase) by the respective IRAs 1 of Paul and Lynne Niednagel (the Account Holders) of certain ownership interests (the Units) from Pacific Island Investment Partners, LLC. (Pacific Island) (the issuer of the Units), an entity which is indirectly controlled by Daniel and Stephen Niednagel (the Principals), both of whom are lineal descendents of the Account Holders and therefore disqualified persons with respect to the IRAs, provided that the following conditions are satisfied: Conditions (a) The Purchase of the Units by each IRA is for cash; (b) The price paid by each IRA to purchase a Unit ($10,000) is identical to the price paid by other Pacific Island investors to acquire a Unit; (c) The terms and conditions of each Purchase are at least as favorable as those available in an arm’s length transaction with an unrelated third party; (d) Each IRA does not pay any commissions or other expenses in connection with each Purchase; and (e) Each IRA does not acquire Units if, after acquisition, the aggregate fair market value of the Units would exceed 25% of the fair market value of such IRA. 1 Because each IRA has only one participant, there is no jurisdiction under 29 CFR § 2510.3–3(b). However, there is jurisdiction under Title II of the Act pursuant to section 4975 of the Code. E:\FR\FM\01AUN1.SGM 01AUN1

Agencies

[Federal Register Volume 72, Number 147 (Wednesday, August 1, 2007)]
[Notices]
[Pages 42127-42129]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-14820]


-----------------------------------------------------------------------

DEPARTMENT OF JUSTICE

Drug Enforcement Administration


Alan H. Olefsky, M.D.; Denial of Application

    On May 25, 2005, the Deputy Assistant Administrator, Office of 
Diversion Control, Drug Enforcement Administration, issued an Order to 
Show Cause to Alan H. Olefsky, M.D. (Respondent), of Chicago, Illinois. 
The Show Cause Order proposed to revoke Respondent's DEA Certificate of 
Registration, BO3661104, as a practitioner, and to deny any pending 
applications for renewal or modification of his registration, on the 
ground that the Illinois Department of Financial and Professional 
Regulation had suspended his state medical license and state controlled 
substance license. Show Cause Order at 1. The Show Cause Order thus 
alleged that Respondent was not authorized to handle controlled 
substances in the State where he was registered and was thus not 
entitled to maintain his registration. Id. (citing 21 U.S.C. 
824(a)(3)).
    The Show Cause Order also alleged that Respondent had committed 
acts which rendered his registration inconsistent with the public 
interest. Id. (citing 21 U.S.C. 824(a)(4)). More specifically, the Show 
Cause Order alleged that from December 2002 through October 2004, 
Respondent had ``issued false prescriptions for controlled substances 
in the names of'' three individuals, and that the prescriptions were 
for his ``personal use.'' Id. The Show Cause Order also notified 
Respondent of his right to request a hearing on the allegations.
    On June 8, 2005, the Show Cause Order was served on Respondent by 
certified mail as evidenced by the signed return receipt card. Neither 
Respondent, nor anyone purporting to represent him, requested a hearing 
on the allegations within the time period set forth in 21 CFR 
1301.43(a) and the Show Cause Order.
    The matter was held in abeyance after the State restored 
Respondent's medical license. On March 30, 2007, the State again 
suspended Respondent's medical license. Accordingly, on May 10, 2007, 
the investigative file was forwarded to my Office for final agency 
action.
    As an initial matter, I find that because Respondent did not 
request a hearing within thirty days of receipt of the Show Cause order 
he has waived his right to hearing. See 21 CFR 1301.43(d). I therefore 
enter this Final Order without a hearing based on relevant material in 
the investigative file and make the following findings.

Findings

    Respondent was the holder of DEA Certificate of Registration, 
BO3661104, which authorized him to handle schedule II through V 
controlled substances as a practitioner. Respondent's registration 
expired on December 31, 2004. According to the investigative file, 
Respondent did not submit a renewal application until February 24, 
2005, nearly two months after his registration expired. Accordingly, I 
find that Respondent's renewal application was not timely submitted and 
his registration expired on December 31, 2004. See 5 U.S.C. 558(c) 
(requiring submission of a ``timely and sufficient application for a 
renewal'' in order for a registration to be continued until the Agency 
makes a ``final determin[ation]'' on the application). I further find, 
however, that Respondent does have an application pending before the 
agency.
    According to the investigative file, on February 18, 2005, the 
Illinois Department of Financial and Professional Regulation summarily 
suspended Respondent's state medical license and controlled substance 
registrations. In support of the suspension, the State alleged, inter 
alia, that ``Respondent issued false prescriptions for controlled 
substances under other names for personal use.'' Pet. For Temp. Susp. 
1. The petition was supported by the sworn affidavit of Larry G. 
McClain, M.D., the Chief Medical Coordinator of the Illinois Department 
of Financial and Professional Regulation. In his affidavit, Dr. McClain 
averred that ``the Department has learned that Respondent has 
repeatedly issued false prescriptions for Xanax, Dilaudid and Viagra. 
He calls in these prescriptions in the names of [M.G., V.G. and T.C.] 
He obtains these prescriptions for personal use and pays cash to remain 
untraceable.'' Dr. McClain further averred that ``Respondent was 
arrested for a DUI in June of 2004 and * * * has an extensive criminal 
history.''
    In September 2006, Respondent and the State entered into a consent 
order under which his medical license was restored based on his having 
entered a treatment program and an Aftercare Agreement. Consent Order 
at 2. In the order, ``Respondent admit[ted] the allegations raised by 
the Department.'' Id. The consent order, which became effective on 
November 21, 2006, placed Respondent on ``Indefinite Probation,'' and 
also imposed various conditions including that he comply with the terms

[[Page 42128]]

of an Aftercare Agreement and abstain from the use of alcohol and 
``mood altering and/or psychoactive drugs'' except as ``prescribed by a 
primary care and/or treating physician.'' Id. at 3.
    Thereafter, on March 30, 2007, the State again imposed a summary 
suspension of Respondent's medical license, which remains in effect. 
See Notice of Temporary Suspension. In the Complaint, the State alleged 
that in January 2007, Respondent had been hospitalized with ``a blood 
alcohol level of 327.'' Complaint at 2. The State also alleged that in 
February 2007, Respondent had been admitted to Rush Behavioral Care to 
be treated for ``alcohol dependence.'' Id. The State further alleged 
that in February 2007, Respondent had applied for a new state 
Controlled Substance Registration. Id. Finally, the Complaint alleged 
that Respondent had failed to comply with the conditions of Consent 
Order.\1\
---------------------------------------------------------------------------

    \1\ I also take official notice of the fact that on January 9, 
1992, the Administrator of this Agency ordered the revocation of 
Respondent's registration based on his having presented fraudulent 
prescriptions for Percocet and Halcion to a pharmacy. See Alan H. 
Olefsky, 57 FR 928, 929 (1992).
---------------------------------------------------------------------------

    There is no evidence in the file that the State has granted 
Respondent a new Controlled Substance Registration. Moreover, the 
State's summary suspension further ordered Respondent to ``immediately 
surrender all indicia of licensure to the Department.'' March 30, 2007 
Summary Suspension Order at 1-2. I therefore find that Respondent does 
not hold a current Illinois Controlled Substance Registration.

Discussion

    Section 303(f) of the Controlled Substances Act provides that 
``[t]he Attorney General shall register practitioners * * * to dispense 
* * * controlled substances in schedule II, III, IV, or V, if the 
applicant is authorized to dispense * * * controlled substances under 
the laws of the State in which he practices.'' 21 U.S.C. 823(f). 
Section 303(f) further provides that ``[t]he Attorney General may deny 
an application for such registration if he determines that the issuance 
of such registration would be inconsistent with the public interest.'' 
Id. In making the public interest determination, the Act requires the 
consideration of the following factors:

    (1) The recommendation of the appropriate State licensing board 
or professional disciplinary authority.
    (2) The applicant's experience in dispensing * * * controlled 
substances.
    (3) The applicant's conviction record under Federal or State 
laws relating to the manufacture, distribution, or dispensing of 
controlled substances.
    (4) Compliance with applicable State, Federal, or local laws 
relating to controlled substances.
    (5) Such other conduct which may threaten the public health and 
safety.

Id.

    ``[T]hese factors are * * * considered in the disjunctive.'' Robert 
A. Leslie, M.D., 68 FR 15227, 15230 (2003). I ``may rely on any one or 
a combination of factors, and may give each factor the weight [I] deem[ 
] appropriate in determining whether a registration should be 
revoked.'' Id. Moreover, I am ``not required to make findings as to all 
of the factors.'' Hoxie v. DEA, 419 F.3d 477, 482 (6th Cir. 2005); see 
also Morall v. DEA, 412 F.3d 165, 173-74 (D.C. Cir. 2005).
    In this case, I conclude that there are two independent grounds for 
denying Respondent's application. First, Respondent is not currently 
authorized under Illinois law to handle controlled substances and thus 
does not meet an essential requirement for a registration under the 
CSA. Second, Respondent's experience in dispensing controlled 
substances and his record of compliance with applicable laws make clear 
that granting him a registration would be inconsistent with the public 
interest.

Respondent's Lack of State Authority

    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. 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.''). Relatedly, DEA has held repeatedly that the CSA 
requires the revocation of a registration issued to a practitioner who 
no longer possesses authority under state law to handle controlled 
substances. 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'').
    Here, the investigative file establishes that Respondent's Illinois 
controlled substance registrations were suspended pursuant to the 
State's February 18, 2005 order. Moreover, there is no evidence that 
the State has issued a new controlled substance registration to him, 
and in any event, the State's March 30, 2007 order directed him to 
``immediately surrender all indicia of licensure to the Department.'' 
Therefore, Respondent is without authority to handle controlled 
substances in Illinois, the State in which he seeks registration. 
Respondent thus does not meet an essential prerequisite for a new DEA 
registration and his application will be denied on that basis. See 21 
U.S.C. 823(f).

The Public Interest Analysis

    Because the State's summary suspension is not a final order, review 
of Respondent's application under the public interest factors is also 
warranted. Here, Dr. McClain's affidavit establishes that Respondent 
``repeatedly issued false prescriptions'' in the names of other persons 
for Xanax (alprazolam), a schedule IV controlled substance, see 21 CFR 
1308.14(c), and Dilaudid (hydromorphone), a schedule II controlled 
substance. See id. 1308.12(b)(1). Respondent then filled the 
prescriptions and personally abused the drugs. Respondent admitted to 
this conduct in the Consent Order. I thus find that Respondent violated 
Federal law. See 21 U.S.C. 843(a)(3) (rendering it ``unlawful for any 
person knowingly or intentionally * * * to acquire or obtain possession 
of a controlled substance by misrepresentation, fraud, forgery, 
deception, or subterfuge'').
    Moreover, as noted above, this is not the first time that 
Respondent has engaged in such criminal behavior. See Olesky, 57 FR at 
928-29. Accordingly, Respondent's experience in dispensing controlled 
substances and his record of compliance with Federal law amply 
demonstrate that granting his application for registration would be 
``inconsistent with the public interest.'' 21 U.S.C. 823(f). Therefore, 
even if the State were to restore his medical license and grant him a 
new state controlled substance registration, I would still deny his 
application.

Order

    Pursuant to the authority vested in me by 21 U.S.C. 823(f), as well 
as 28 CFR 0.100(b) & 0.104, I order that the application of Alan H. 
Olefksy, M.D., for a DEA Certificate of Registration as a

[[Page 42129]]

practitioner be, and it hereby is, denied. This order is effective 
August 31, 2007.

    Dated: July 20, 2007.
Michele M. Leonhart,
Deputy Administrator.
 [FR Doc. E7-14820 Filed 7-31-07; 8:45 am]
BILLING CODE 4410-09-P

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