Nasim F. Khan, M.D.; Denial of Application, 4630-4633 [E8-1241]

Download as PDF 4630 Federal Register / Vol. 73, No. 17 / Friday, January 25, 2008 / Notices jlentini on PROD1PC65 with NOTICES permits at its East Liverpool facility; (4) certify that it does not currently process nonmetallic minerals at its East Liverpool facility, and in the event that it resumes such processing, comply with applicable provisions of NSPS; and, implement two Supplemental Environmental Projects valued at $386,592, consisting of a Truck Loadout Shed and Road Paving Projects at its East Liverpool facility. The Department of Justice will receive, for a period of thirty (30) days from the date of this publication, comments relating to the proposed Consent Decree. Comments should be addressed to the Assistant Attorney General, Environment and Natural Resources Division, and either emailed to pubcomment-ees.enrd@usdoj.gov or mailed to United States Department of Justice, P.O. Box 7611, Washington, DC 20044–7611, and should refer to United States v. S.H. Bell Co., Civil No. 4:08– cv–96 (N.D. Ohio), and DOJ Reference No. 90–5–2–1–07823. The proposed Consent Decree may be examined at: (1) The Office of the United States Attorney for the Northern District of Ohio, 801 West Superior Avenue, Suite 400, Cleveland, OH, 44113 (216–622–3600); and (2) the United States Environmental Protection Agency (Region 5), 77 West Jackson Blvd., Chicago, IL 60604–3507 (contact: John C. Matson (312–886–2243). During the public comment period, the proposed Consent Decree may also be examined on the following U.S. Department of Justice Web site, https://www.usdoj.gov/enrd/ Consent_Decrees.html. A copy of the proposed Consent Decree may also be obtained by mail from the Consent Decree Library, U.S. Department of Justice, P.O. Box 7611, Washington, DC 20044–7611 or by faxing or e-mailing a request to Tonia Fleetwood (tonia.fleetwood@usdoj.gov), fax no. (202) 514–0097, phone confirmation no. (202) 514–1547. In requesting a copy from the Consent Decree Library, please refer to the referenced case and DOJ Reference Number and enclose a check in the amount of $10 for the Consent Decree only (40 pages, at 25 cents per page reproduction costs), or $19.25 for the Consent Decree and Appendix A (77 pages), made payable to the U.S. Treasury or, if by e-mail or fax, forward a check in that amount to the Consent Decree Library at the stated address. William D. Brighton, Assistant Chief, Environmental Enforcement Section, Environment and Natural Resources Division. [FR Doc. 08–271 Filed 1–24–08: 8:45 am] BILLING CODE 4410–15–M VerDate Aug<31>2005 16:59 Jan 24, 2008 Jkt 214001 DEPARTMENT OF JUSTICE in the amount of $36.50 ($.25 per page) payable to the U.S. Treasury. Notice of Lodging Consent Decree Pursuant to the Clean Air Act, the Comprehensive Environmental Response, Compensation and Liability Act, and the Emergency Planning and Community Right-To-Know Act Robert D. Brook, Assistant Chief, Environmental Enforcement Section, Environment and Natural Resources Division. [FR Doc. 08–265 Filed 1–24–08; 8:45 am] In accordance with 28 CFR 50.7, notice is hereby given that on January 15, 2008, a proposed consent decree in United States v. Sinclair Wyoming Refining Co., et al., Case No. 08cv020– D, was lodged with the United States Court for the District of Wyoming. The proposed consent decree would resolve the United States’ claims against Sinclair Wyoming. Refining Company, Sinclair Casper Refining Company, and Sinclair Tulsa Refining Company (collectively the ‘‘Sinclair Refineries’’) brought pursuant to Section 113(b) of the CAA, 42 U.S.C. 7413(b); Section 103(a) of the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. 9603(a); and Section 304 of the Emergency Planning and Community Right-To-Know Act, 42 U.S.C. 11004. Under the terms of the consent decree, the Sinclair Refineries will pay civil penalties totaling $2,450,000 to the United States and the states of Oklahoma and Wyoming, undertake supplemental environmental projects valued at $150,000, and complete extensive injunctive relief. The Department of Justice will receive comments relating to the proposed consent decree for a period of thirty (30) days from the date of this publication. Comments should be addressed to the Assistant Attorney General, Environment and Natural Resources Division, P.O. Box 7611, U.S. Department of Justice, Washington, DC 20044–7611, and may be submitted electronic mail to the following address: pubcomment-ees.enrd@usdoj.gov. Comments should refer to United States v. Sinclair Wyoming Refining Co., et al., Case No. 08cv020–D, and Department of Justice Reference No. 90–5–2–1–07793. The consent decree may be examined on the following Department of Justice Web site, https://www.usdoj.gov/enrd/ Consent_Decrees.html. A copy of the consent decree may also be obtained by mail from the Consent Decree Library, P.O. Box 7611, U.S. Department of Justice, Washington, DC 20044–7611 or by faxing or e-mailing a request to Tonia Fleetwood (tonia.fleetwood@usdoj.gov), fax no. (202) 514–0097, phone confirmation number (202) 514–1547. In requesting a copy from the Consent Decree Library, please enclose a check PO 00000 Frm 00115 Fmt 4703 Sfmt 4703 BILLING CODE 4410–15–M DEPARTMENT OF JUSTICE Drug Enforcement Administration Nasim F. Khan, M.D.; Denial of Application On June 8, 2007, the Deputy Assistant Administrator, Office of Diversion Control, Drug Enforcement Administration, issued an Order to Show Cause to Nasim F. Khan, M.D. (Respondent), of Houston, Texas. The Show Cause Order proposed the denial of Respondent’s pending application for a DEA Certificate of Registration as a practitioner on two grounds: (1) That she lacked authority under state law to handle controlled substances, and (2) that her ‘‘registration would be inconsistent with the public interest.’’ Show Cause Order at 1; see also 21 U.S.C. 823(f). The Show Cause Order specifically alleged that ‘‘[o]n June 26, 2006, [Respondent’s] Texas Controlled Substance Registration was terminated,’’ and that she was therefore ‘‘not currently authorized by the State of Texas to prescribe, dispense, or otherwise handle controlled substances.’’ Show Cause Order at 1. The Show Cause Order further alleged that Respondent had committed acts inconsistent with the public interest because she had ‘‘allowed [her] DEA registration to be used to dispense controlled substances for other than legitimate medical purposes’’ and had ‘‘engage[ed] in self-prescribing of controlled substances, in violation of the Texas Controlled Substances Act.’’ Id. On June 15, 2007, the Show Cause Order, which also notified Respondent of her right to request a hearing on the allegations, was served on Respondent by Federal Express delivered to her residence. Because: (1) More than thirty days have passed since service of the Show Cause Order, and (2) neither Respondent, nor anyone purporting to represent her, has requested a hearing, I conclude that Respondent has waived her right to a hearing. See 21 CFR 1301.43(d). I therefore enter this Final Order without a hearing based on relevant material contained in the E:\FR\FM\25JAN1.SGM 25JAN1 Federal Register / Vol. 73, No. 17 / Friday, January 25, 2008 / Notices investigative file, see id. 1301.43(e), and make the following findings. jlentini on PROD1PC65 with NOTICES Findings Respondent is a physician with a specialty in psychiatry and pathology. Respondent previously held a DEA Certificate of Registration as a practitioner at the registered location of Houston Medical Clinic, 10881 Richmond Ave., Apt. 412, Houston, Texas. In July 2004, DEA Diversion Investigators with the Houston Field Division received information that Respondent was prescribing promethazine with codeine cough syrup, a schedule V controlled substance, see 21 CRR 1308.15(c), to an individual who had been arrested three times by the Houston Police Department for unlawfully possessing controlled substances. In August 2005, DEA Diversion Investigators (DIs) received information that two unlicensed individuals (F.K. and V.V.), who worked at the Main Medical Clinic (which was located in Jacinto City, Texas), were using Respondent’s DEA registration to issue controlled-substance prescriptions for drugs which included Lorcet 10/650 (a branded drug combining hydrocodone and acetaminophen and a schedule III controlled substance, see 21 CFR 1308.13(e), Xanax (alprazolam), a schedule IV controlled substance, see id. 1308.14(c), and promethazine with codeine cough syrup. Id. 1308.15(c). F.K. and V.V. charged $100 for each prescription. The DIs subsequently went to the clinic and interviewed several people. While the DIs were told that Respondent had terminated her employment at the clinic, they also obtained a stack of prescription carbons. The copies indicated the patient’s name, the name of a controlled substance, and Respondent’s DEA number. During other interviews, the DIs determined that Respondent had seen only one or two ‘‘patients’’ each day, and that most of the clinic’s ‘‘patients’’ were seen by other people including several foreign graduate students who were not licensed in any field of medical practice. The DIs also confirmed that V.V. had sold a stack of prescriptions, which bore a signature similar to Respondent’s, for a large amount of cash. Thereafter, on August 11, 2005, the DIs interviewed Respondent at the location of a clinic (named the ‘‘45 Clinic’’) which she was opening in Houston and for which she needed to change the address of her registered VerDate Aug<31>2005 16:59 Jan 24, 2008 Jkt 214001 location.1 During the interview, Respondent stated that she had seen approximately forty patients a day at the Main Medical Clinic and that the cost for a controlled-substance prescription was $80 cash. Respondent further stated that at the clinic, foreign graduate students worked under her supervision and wrote the prescriptions which she then signed. Respondent also stated that she had taken a continuing medical education class in pain management and that the only controlled substances she prescribed were Vicodin, Lorcet, and Lortab.2 In the course of the investigation, the DIs had previously determined that Respondent had obtained controlled substances based on 117 prescriptions issued to her under her DEA number. During the interview, Respondent denied that she had self-prescribed and claimed that her son was also a physician and had prescribed the controlled substances for her. Subsequently, the DIs searched the Texas Medical Board’s website and found that there was no listing for her son. The DIs had also previously determined that between January 1, 2004, and August 11, 2005, Respondent had obtained approximately 474 twentyfive ml. bottles of schedule V cough medicines. When asked as to why she had ordered the drugs, Respondent maintained that they were small containers of cough syrup which she used when she was unable to sleep. While at Respondent’s new clinic, the DIs interviewed V.V., the same individual who had been implicated in selling controlled-substance prescriptions at Respondent’s former employer. V.V. told the investigators that she had first met Respondent on that very day (when she had purportedly interviewed for a position at the clinic) and that her duties at Respondent’s clinic would include scheduling appointments, taking vital signs, and other duties performed by receptionists. Thereafter, on August 30, 2005, a registration technician changed Respondent’s registered location to the address of her new clinic. Approximately three weeks later, on September 19, 2005, Respondent notified a DI that V.V. was using her DEA number to write unauthorized prescriptions for unknown individuals. Later that day, two DIs interviewed Respondent at her residence. 1 According to the investigative file, Respondent did not own the clinic. 2 Respondent also stated that she prescribed Ritalin for her child psychiatric patients who had Attention Deficit Disorder. PO 00000 Frm 00116 Fmt 4703 Sfmt 4703 4631 Respondent told the DIs that she had terminated her employment at the Main Medical Clinic because she suspected that its owner was involved in illegal activities. Respondent stated that she had contacted DEA because she had received information that the Corpus Christi, Texas Police Department was looking for her regarding prescriptions she had written. Respondent further stated that during the previous week, she had gone to her new clinic and attempted to retrieve her prescriptions but was told that the pads belonged to the clinic. Respondent added that she had become concerned that someone was using her DEA number to issue prescriptions without her consent. Because of the unauthorized use of her number, Respondent then agreed to voluntarily surrender her DEA registration. She also surrendered her state controlled-substances registration. On September 30, 2005, Respondent applied for a new registration using the address of the 45 Clinic for her proposed registered location. Several days later, two DIs went to Respondent’s residence and attempted to interview her. Upon opening the door, Respondent started screaming at the DIs and stated that they should contact her attorney. When one of the DIs asked Respondent for her attorney’s phone number, Respondent stated that she would get the number and slammed the door. Several minutes later, Respondent opened the door, threw a piece of paper at the DI, and stated in a loud voice that ‘‘the White House knew who her father was and that she was his daughter.’’ After the DIs told Respondent that they were there to speak to her about her application, Respondent stated that ‘‘there would be no trick or treating here today.’’ One of the DIs again asked Respondent whether she had applied for a new registration. Respondent answered ‘‘yes’’ and again slammed the door shut. Thereafter, a local pharmacist notified DEA investigators that on October 3 and 4, he had received two prescriptions which were written under Respondent’s DEA number. The pharmacist told the DIs that when he had attempted to verify one the prescriptions, Respondent did not return the call. Respondent, in a subsequent interview, denied issuing the prescriptions. On January 5, 2006, a detective with the Garland, Texas Police Department notified one of the DIs that numerous prescriptions written under Respondent’s former DEA registration had been presented at a local pharmacy. The prescriptions bore the name and address of the Main Medical Clinic, Respondent’s former employer. E:\FR\FM\25JAN1.SGM 25JAN1 4632 Federal Register / Vol. 73, No. 17 / Friday, January 25, 2008 / Notices Thereafter, on March 28, 2006, an official of the Texas Department of Public Safety (DPS) notified a DI that the State intended to terminate Respondent’s state controlledsubstances registration. The state official further told the DI that Respondent’s application had been erroneously granted because at the time the application was approved, the State was upgrading its computer system and was unable to access her history. Subsequently, on June 26, 2006, DPS terminated Respondent’s state controlled-substances registration on the ground that she was prohibited under the State’s rules for re-applying for a period of one year following her surrendering of her state registration. I further find that the State has not reinstated her controlled-substances registration. I also find that on August 24, 2007, Respondent entered into an Agreed Order with the Texas Medical Board. Under the order, Respondent voluntarily and permanently surrendered her medical license. According to the Texas Medical Board’s website, ‘‘[t]he action was based on [Respondent’s] failure to meet the standard of care due [to] her nontherapeutic prescription of controlled substances to four patients and to herself.’’ jlentini on PROD1PC65 with NOTICES 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. VerDate Aug<31>2005 16:59 Jan 24, 2008 Jkt 214001 ‘‘[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 (DC 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 Texas law to handle controlled substances and thus does not meet an essential requirement for a registration under the CSA. Second, while it appears that Respondent will not be returning to medical practice anytime soon, her experience in dispensing controlled substances and her record of compliance with applicable laws make clear that granting her a registration ‘‘would be inconsistent with the public interest.’’ 21 U.S.C. 823(f). Under the Controlled Substances Act (CSA), a practitioner must be currently authorized to handle controlled substances in ‘‘the jurisdiction in which [she] 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. section 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 repeatedly held 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 Texas controlledsubstances registration was terminated on June 26, 2006. Moreover, there is no PO 00000 Frm 00117 Fmt 4703 Sfmt 4703 evidence that the State has issued a new controlled substance registration to her, and the Agreed Order which Respondent entered into with the Texas Medical Board suggests that the State will not grant her a new controlledsubstances registration any time soon. Because Respondent is without authority to handle controlled substances in Texas, the State in which she seeks a DEA registration, she does not meet an essential prerequisite for a new DEA registration. Accordingly, her application is denied on that basis. See 21 U.S.C. 823(f). I further note that even if Respondent possessed a state registration, the record would still support the denial of her application on the ground that her registration would be ‘‘inconsistent with the public interest.’’ 21 U.S.C. 823(f). As the State found, Respondent has engaged in the non-therapeutic prescription of controlled substances both to herself and others. With respect to her self-prescribing, the record establishes that Respondent issued to herself 117 prescriptions for narcotic-cough syrups, which are schedule V controlled substances. The record further establishes that Respondent’s statements to investigators that the prescriptions were issued to her by her son, and that her son was a physician, were false. Moreover, there is also substantial and disturbing evidence that Respondent failed to exercise proper control over her prescriptions pads and allowed unlicensed and un-registered individuals at the Main Medical Clinic to write prescriptions under her DEA registration. This conduct violates federal law and regulations, which require that a prescription be ‘‘issued for a legitimate medical purpose by an individual practitioner acting in the usual course of [her] professional practice,’’ 21 CFR 1306.04(a), and that each person writing a prescription be ‘‘[a]uthorized to prescribe controlled substances by the jurisdiction in which he is licensed to practice his profession and * * * [e]ither registered or exempted from registration.’’ Id. § 1306.03(a). Accordingly, even if Respondent held a state registration, her abysmal experience in dispensing controlled substances and her record of non-compliance with federal and state laws related to controlled substances would nonetheless require the denial of her 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 Nasim F. Khan, M.D., for E:\FR\FM\25JAN1.SGM 25JAN1 Federal Register / Vol. 73, No. 17 / Friday, January 25, 2008 / Notices a DEA Certificate of Registration as a practitioner be, and it hereby is, denied. This order is effective February 25, 2008. Dated: January 17, 2008. Michele M. Leonhart, Deputy Administrator. [FR Doc. E8–1241 Filed 1–24–08; 8:45 am] BILLING CODE 4410–09–P DEPARTMENT OF LABOR Office of the Secretary Submission for OMB Review: Comment Request jlentini on PROD1PC65 with NOTICES January 18, 2008. The Department of Labor (DOL) hereby announces the submission of the following public information collection requests (ICR) to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995 (Pub. L. 104–13, 44 U.S.C. chapter 35). A copy of each ICR, with applicable supporting documentation; including among other things a description of the likely respondents, proposed frequency of response, and estimated total burden may be obtained from the RegInfo.gov Web site at https://www.reginfo.gov/ public/do/PRAMain or by contacting Darrin King on 202–693–4129 (this is not a toll-free number)/e-mail: king.darrin@dol.gov. Interested parties are encouraged to send comments to the Office of Information and Regulatory Affairs, Attn: Bridget Dooling, OMB Desk Officer for the Employment Standards Administration (ESA), Office of Management and Budget, Room 10235, Washington, DC 20503, Telephone: 202–395–7316/Fax: 202–395–6974 (these are not toll-free numbers), E-mail: OIRA_submission@omb.eop.gov within 30 days from the date of this publication in the Federal Register. In order to ensure the appropriate consideration, comments should reference the OMB Control Number (see below). The OMB is particularly interested in comments which: • 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; VerDate Aug<31>2005 16:59 Jan 24, 2008 Jkt 214001 • Enhance the quality, utility, and clarity of the information to be collected; and • Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses. Agency: Employment Standards Administration. Type of Review: Extension without change of currently approved collection. Title: Certification of Funeral Expenses. OMB Control Number: 1215–0027. Form Number: LS–265. Estimated Number of Respondents: 195. Total Estimated Annual Burden Hours: 49. Total Estimated Cost Burden: $86. Affected Public: Private Sector: Business or other for-profits. Description: The Form LS–265 is used to report funeral expenses payable under section 9(a) of the Longshore and Harbor Workers’ Act [ 33 U.S.C. 909]. Agency: Employment Standards Administration. Type of Review: Revision of currently approved collection. Title: Comparability of Current Work to Coal Mine Employment. OMB Control Number: 1215–0056. Form Numbers: CM–913 (the Forms CM–918 and CM–1093 are being discontinued). Estimated Number of Respondents: 1,350. Total Estimated Annual Burden Hours: 675. Total Estimated Cost Burden: $594. Affected Public: Individuals or households. Description: Once a miner has been identified as having performed non-coal mine work subsequent to coal mine employment, the miner or the miner’s survivor is asked to complete a Form CM–913. The Form is used to compare the physical demands of the miner’s coal mine work with last or current noncoal mine work. This employment information, together with medical information, is used to establish whether the miner is totally disabled due to black lung disease caused by coal mine employment, a criterion for entitlement of benefits. Information collected on the Form CM–913 helps DOL to determine if the miner has or had a reduced ability to perform his usual and customary coal mine work. The Black Lung Benefits Act, as amended, 30 U.S.C. 901 et. seq. and 20 PO 00000 Frm 00118 Fmt 4703 Sfmt 4703 4633 CFR 718.204(b)(1) necessitate the collection of this information. Darrin A. King, Acting Departmental Clearance Officer. [FR Doc. E8–1291 Filed 1–24–08; 8:45 am] BILLING CODE 4510–CK–P DEPARTMENT OF LABOR Employment and Training Administration Notice of Determinations Regarding Eligibility To Apply for Worker Adjustment Assistance and Alternative Trade Adjustment Assistance In accordance with Section 223 of the Trade Act of 1974, as amended (19 U.S.C. 2273) the Department of Labor herein presents summaries of determinations regarding eligibility to apply for trade adjustment assistance for workers (TA–W) number and alternative trade adjustment assistance (ATAA) by (TA–W) number issued during the period of January 7 through January 11, 2008. In order for an affirmative determination to be made for workers of a primary firm and a certification issued regarding eligibility to apply for worker adjustment assistance, each of the group eligibility requirements of Section 222(a) of the Act must be met. I. Section (a)(2)(A) all of the following must be satisfied: A. A significant number or proportion of the workers in such workers’ firm, or an appropriate subdivision of the firm, have become totally or partially separated, or are threatened to become totally or partially separated; B. The sales or production, or both, of such firm or subdivision have decreased absolutely; and C. Increased imports of articles like or directly competitive with articles produced by such firm or subdivision have contributed importantly to such workers’ separation or threat of separation and to the decline in sales or production of such firm or subdivision; or II. Section (a)(2)(B) both of the following must be satisfied: A. A significant number or proportion of the workers in such workers’ firm, or an appropriate subdivision of the firm, have become totally or partially separated, or are threatened to become totally or partially separated; B. There has been a shift in production by such workers’ firm or subdivision to a foreign country of articles like or directly competitive with articles which are produced by such firm or subdivision; and E:\FR\FM\25JAN1.SGM 25JAN1

Agencies

[Federal Register Volume 73, Number 17 (Friday, January 25, 2008)]
[Notices]
[Pages 4630-4633]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-1241]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration


Nasim F. Khan, M.D.; Denial of Application

    On June 8, 2007, the Deputy Assistant Administrator, Office of 
Diversion Control, Drug Enforcement Administration, issued an Order to 
Show Cause to Nasim F. Khan, M.D. (Respondent), of Houston, Texas. The 
Show Cause Order proposed the denial of Respondent's pending 
application for a DEA Certificate of Registration as a practitioner on 
two grounds: (1) That she lacked authority under state law to handle 
controlled substances, and (2) that her ``registration would be 
inconsistent with the public interest.'' Show Cause Order at 1; see 
also 21 U.S.C. 823(f).
    The Show Cause Order specifically alleged that ``[o]n June 26, 
2006, [Respondent's] Texas Controlled Substance Registration was 
terminated,'' and that she was therefore ``not currently authorized by 
the State of Texas to prescribe, dispense, or otherwise handle 
controlled substances.'' Show Cause Order at 1. The Show Cause Order 
further alleged that Respondent had committed acts inconsistent with 
the public interest because she had ``allowed [her] DEA registration to 
be used to dispense controlled substances for other than legitimate 
medical purposes'' and had ``engage[ed] in self-prescribing of 
controlled substances, in violation of the Texas Controlled Substances 
Act.'' Id.
    On June 15, 2007, the Show Cause Order, which also notified 
Respondent of her right to request a hearing on the allegations, was 
served on Respondent by Federal Express delivered to her residence. 
Because: (1) More than thirty days have passed since service of the 
Show Cause Order, and (2) neither Respondent, nor anyone purporting to 
represent her, has requested a hearing, I conclude that Respondent has 
waived her right to a hearing. See 21 CFR 1301.43(d). I therefore enter 
this Final Order without a hearing based on relevant material contained 
in the

[[Page 4631]]

investigative file, see id. 1301.43(e), and make the following 
findings.

Findings

    Respondent is a physician with a specialty in psychiatry and 
pathology. Respondent previously held a DEA Certificate of Registration 
as a practitioner at the registered location of Houston Medical Clinic, 
10881 Richmond Ave., Apt. 412, Houston, Texas. In July 2004, DEA 
Diversion Investigators with the Houston Field Division received 
information that Respondent was prescribing promethazine with codeine 
cough syrup, a schedule V controlled substance, see 21 CRR 1308.15(c), 
to an individual who had been arrested three times by the Houston 
Police Department for unlawfully possessing controlled substances.
    In August 2005, DEA Diversion Investigators (DIs) received 
information that two unlicensed individuals (F.K. and V.V.), who worked 
at the Main Medical Clinic (which was located in Jacinto City, Texas), 
were using Respondent's DEA registration to issue controlled-substance 
prescriptions for drugs which included Lorcet 10/650 (a branded drug 
combining hydrocodone and acetaminophen and a schedule III controlled 
substance, see 21 CFR 1308.13(e), Xanax (alprazolam), a schedule IV 
controlled substance, see id. 1308.14(c), and promethazine with codeine 
cough syrup. Id. 1308.15(c). F.K. and V.V. charged $100 for each 
prescription.
    The DIs subsequently went to the clinic and interviewed several 
people. While the DIs were told that Respondent had terminated her 
employment at the clinic, they also obtained a stack of prescription 
carbons. The copies indicated the patient's name, the name of a 
controlled substance, and Respondent's DEA number. During other 
interviews, the DIs determined that Respondent had seen only one or two 
``patients'' each day, and that most of the clinic's ``patients'' were 
seen by other people including several foreign graduate students who 
were not licensed in any field of medical practice. The DIs also 
confirmed that V.V. had sold a stack of prescriptions, which bore a 
signature similar to Respondent's, for a large amount of cash.
    Thereafter, on August 11, 2005, the DIs interviewed Respondent at 
the location of a clinic (named the ``45 Clinic'') which she was 
opening in Houston and for which she needed to change the address of 
her registered location.\1\ During the interview, Respondent stated 
that she had seen approximately forty patients a day at the Main 
Medical Clinic and that the cost for a controlled-substance 
prescription was $80 cash. Respondent further stated that at the 
clinic, foreign graduate students worked under her supervision and 
wrote the prescriptions which she then signed. Respondent also stated 
that she had taken a continuing medical education class in pain 
management and that the only controlled substances she prescribed were 
Vicodin, Lorcet, and Lortab.\2\
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    \1\ According to the investigative file, Respondent did not own 
the clinic.
    \2\ Respondent also stated that she prescribed Ritalin for her 
child psychiatric patients who had Attention Deficit Disorder.
---------------------------------------------------------------------------

    In the course of the investigation, the DIs had previously 
determined that Respondent had obtained controlled substances based on 
117 prescriptions issued to her under her DEA number. During the 
interview, Respondent denied that she had self-prescribed and claimed 
that her son was also a physician and had prescribed the controlled 
substances for her. Subsequently, the DIs searched the Texas Medical 
Board's website and found that there was no listing for her son.
    The DIs had also previously determined that between January 1, 
2004, and August 11, 2005, Respondent had obtained approximately 474 
twenty-five ml. bottles of schedule V cough medicines. When asked as to 
why she had ordered the drugs, Respondent maintained that they were 
small containers of cough syrup which she used when she was unable to 
sleep.
    While at Respondent's new clinic, the DIs interviewed V.V., the 
same individual who had been implicated in selling controlled-substance 
prescriptions at Respondent's former employer. V.V. told the 
investigators that she had first met Respondent on that very day (when 
she had purportedly interviewed for a position at the clinic) and that 
her duties at Respondent's clinic would include scheduling 
appointments, taking vital signs, and other duties performed by 
receptionists.
    Thereafter, on August 30, 2005, a registration technician changed 
Respondent's registered location to the address of her new clinic. 
Approximately three weeks later, on September 19, 2005, Respondent 
notified a DI that V.V. was using her DEA number to write unauthorized 
prescriptions for unknown individuals.
    Later that day, two DIs interviewed Respondent at her residence. 
Respondent told the DIs that she had terminated her employment at the 
Main Medical Clinic because she suspected that its owner was involved 
in illegal activities. Respondent stated that she had contacted DEA 
because she had received information that the Corpus Christi, Texas 
Police Department was looking for her regarding prescriptions she had 
written. Respondent further stated that during the previous week, she 
had gone to her new clinic and attempted to retrieve her prescriptions 
but was told that the pads belonged to the clinic. Respondent added 
that she had become concerned that someone was using her DEA number to 
issue prescriptions without her consent. Because of the unauthorized 
use of her number, Respondent then agreed to voluntarily surrender her 
DEA registration. She also surrendered her state controlled-substances 
registration.
    On September 30, 2005, Respondent applied for a new registration 
using the address of the 45 Clinic for her proposed registered 
location. Several days later, two DIs went to Respondent's residence 
and attempted to interview her. Upon opening the door, Respondent 
started screaming at the DIs and stated that they should contact her 
attorney. When one of the DIs asked Respondent for her attorney's phone 
number, Respondent stated that she would get the number and slammed the 
door. Several minutes later, Respondent opened the door, threw a piece 
of paper at the DI, and stated in a loud voice that ``the White House 
knew who her father was and that she was his daughter.'' After the DIs 
told Respondent that they were there to speak to her about her 
application, Respondent stated that ``there would be no trick or 
treating here today.'' One of the DIs again asked Respondent whether 
she had applied for a new registration. Respondent answered ``yes'' and 
again slammed the door shut.
    Thereafter, a local pharmacist notified DEA investigators that on 
October 3 and 4, he had received two prescriptions which were written 
under Respondent's DEA number. The pharmacist told the DIs that when he 
had attempted to verify one the prescriptions, Respondent did not 
return the call. Respondent, in a subsequent interview, denied issuing 
the prescriptions.
    On January 5, 2006, a detective with the Garland, Texas Police 
Department notified one of the DIs that numerous prescriptions written 
under Respondent's former DEA registration had been presented at a 
local pharmacy. The prescriptions bore the name and address of the Main 
Medical Clinic, Respondent's former employer.

[[Page 4632]]

    Thereafter, on March 28, 2006, an official of the Texas Department 
of Public Safety (DPS) notified a DI that the State intended to 
terminate Respondent's state controlled-substances registration. The 
state official further told the DI that Respondent's application had 
been erroneously granted because at the time the application was 
approved, the State was upgrading its computer system and was unable to 
access her history.
    Subsequently, on June 26, 2006, DPS terminated Respondent's state 
controlled-substances registration on the ground that she was 
prohibited under the State's rules for re-applying for a period of one 
year following her surrendering of her state registration. I further 
find that the State has not re-instated her controlled-substances 
registration.
    I also find that on August 24, 2007, Respondent entered into an 
Agreed Order with the Texas Medical Board. Under the order, Respondent 
voluntarily and permanently surrendered her medical license. According 
to the Texas Medical Board's website, ``[t]he action was based on 
[Respondent's] failure to meet the standard of care due [to] her non-
therapeutic prescription of controlled substances to four patients and 
to herself.''

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 (DC 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 Texas law to handle controlled substances and thus 
does not meet an essential requirement for a registration under the 
CSA. Second, while it appears that Respondent will not be returning to 
medical practice anytime soon, her experience in dispensing controlled 
substances and her record of compliance with applicable laws make clear 
that granting her a registration ``would be inconsistent with the 
public interest.'' 21 U.S.C. 823(f).
    Under the Controlled Substances Act (CSA), a practitioner must be 
currently authorized to handle controlled substances in ``the 
jurisdiction in which [she] 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. section 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 repeatedly held 
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 Texas 
controlled-substances registration was terminated on June 26, 2006. 
Moreover, there is no evidence that the State has issued a new 
controlled substance registration to her, and the Agreed Order which 
Respondent entered into with the Texas Medical Board suggests that the 
State will not grant her a new controlled-substances registration any 
time soon. Because Respondent is without authority to handle controlled 
substances in Texas, the State in which she seeks a DEA registration, 
she does not meet an essential prerequisite for a new DEA registration. 
Accordingly, her application is denied on that basis. See 21 U.S.C. 
823(f).
    I further note that even if Respondent possessed a state 
registration, the record would still support the denial of her 
application on the ground that her registration would be ``inconsistent 
with the public interest.'' 21 U.S.C. 823(f). As the State found, 
Respondent has engaged in the non-therapeutic prescription of 
controlled substances both to herself and others.
    With respect to her self-prescribing, the record establishes that 
Respondent issued to herself 117 prescriptions for narcotic-cough 
syrups, which are schedule V controlled substances. The record further 
establishes that Respondent's statements to investigators that the 
prescriptions were issued to her by her son, and that her son was a 
physician, were false.
    Moreover, there is also substantial and disturbing evidence that 
Respondent failed to exercise proper control over her prescriptions 
pads and allowed unlicensed and un-registered individuals at the Main 
Medical Clinic to write prescriptions under her DEA registration. This 
conduct violates federal law and regulations, which require that a 
prescription be ``issued for a legitimate medical purpose by an 
individual practitioner acting in the usual course of [her] 
professional practice,'' 21 CFR 1306.04(a), and that each person 
writing a prescription be ``[a]uthorized to prescribe controlled 
substances by the jurisdiction in which he is licensed to practice his 
profession and * * * [e]ither registered or exempted from 
registration.'' Id. Sec.  1306.03(a). Accordingly, even if Respondent 
held a state registration, her abysmal experience in dispensing 
controlled substances and her record of non-compliance with federal and 
state laws related to controlled substances would nonetheless require 
the denial of her 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 Nasim F. 
Khan, M.D., for

[[Page 4633]]

a DEA Certificate of Registration as a practitioner be, and it hereby 
is, denied. This order is effective February 25, 2008.

    Dated: January 17, 2008.
Michele M. Leonhart,
Deputy Administrator.
 [FR Doc. E8-1241 Filed 1-24-08; 8:45 am]
BILLING CODE 4410-09-P

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