Sanjay Trivedi, M.D.; Decision and Order, 7813-7815 [2013-02232]
Download as PDF
<![CDATA[
Federal Register / Vol. 78, No. 23 / Monday, February 4, 2013 / Notices
mstockstill on DSK4VPTVN1PROD with NOTICES
—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;
—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.
Overview of this information
(1) Type of Information Collection:
Renewal of a currently approved
collection (1121–0329 and 1121–0188).
(2) The Title of the Form/Collection:
OJP Solicitation Template
(3) The Agency Form Number, if any,
and the Applicable Component of the
Department Sponsoring the Collection:
No form number available. Office of
Justice Programs, Department of Justice.
(4) Affected Public Who Will be Asked
or Required to Respond, as well as a
Brief Abstract: The primary respondents
are state agencies, tribal governments,
local governments, colleges and
universities, non-profit organizations,
for-profit organizations, and faith-based
organizations. The purpose of the
solicitation template is to provide a
framework to develop program-specific
announcements soliciting applications
for funding. A program solicitation
outlines the specifics of the funding
program; describes requirements for
eligibility; instructs an applicant on the
necessary components of an application
under a specific program (e.g., project
activities, project abstract, project
timeline, proposed budget, etc.);
outlines program evaluation and
performance measures; explains
selection criteria and the review
process; and provides registration dates,
deadlines, and instructions on how to
apply within the designated application
system. This collection is also
incorporating the previously approved
collection for the OJP Budget Detail
Worksheet (1121–0188). The Budget
Detail Worksheet is only required
during the application process, and
therefore should be included in this
collection with the solicitation template,
reducing the number of OMB PRA
VerDate Mar<15>2010
19:26 Feb 01, 2013
Jkt 229001
reviews and approvals needed. The
primary respondents are the same, as
listed above, and the worksheet
provides auto calculated fields and
instructions for the necessary budget
information required for each
application submission (e.g. personnel/
benefits, travel, indirect cost rates, etc.).
The form is not mandatory and is
recommended as guidance to assist the
applicant in preparing their budget as
authorized in 28 CFR part 66 and 28
CFR part 70
(5) An Estimate of the Total Number
of Respondents and the Amount of Time
Estimated for an Average Respondent to
Respond: It is estimated that
information will be collected annually
from approximately 10,000 applicants.
Annual cost to the respondents is based
on the number of hours involved in
preparing and submitting a complete
application package. Mandatory
requirements for an application include
a program narrative and budget details
and narrative (formerly 1121–0188).
Optional requirements can be imposed
depending on the type of program to
include, but not limited to: Project
abstract, indirect cost rate agreement,
tribal authorizing resolution, timelines,
logic models, memoranda of
understanding, letters of support,
resumes, disclosure of pending
applications, and research and
evaluation independence and integrity.
Public reporting burden for this
collection of information is estimated at
up to 32 hours per application. The 32hour estimate is based on the amount of
time to prepare a research and
evaluation proposal, one of the most
time intensive types of application
solicited by OJP. The estimate of burden
hours is based on OJP’s prior experience
with the research application
submission process.
(6) An Estimate of the Total Public
Burden (in hours) Associated with the
collection: The estimated public burden
associated with this application is
320,000 hours.
If additional information is required
contact: Jerri Murray, Department
Clearance Officer, United States
Department of Justice, Justice
Management Division, Policy and
Planning Staff, Two Constitution
Square, 145 N Street NE., Room 3W–
1407–B, Washington, DC 20530.
Dated: January 29, 2013.
Jerri Murray,
Department Clearance Officer for PRA, U.S.
Department of Justice.
[FR Doc. 2013–02234 Filed 2–1–13; 8:45 am]
BILLING CODE 4410–18–P
PO 00000
Frm 00076
Fmt 4703
Sfmt 4703
7813
DEPARTMENT OF JUSTICE
Drug Enforcement Administration
[Docket No. 12–57]
Sanjay Trivedi, M.D.; Decision and
Order
On September 25, 2012,
Administrative Law Judge (ALJ) Gail A.
Randall issued the attached
recommended decision. Neither party
filed exceptions to the decision. Having
reviewed the entire record, I have
decided to adopt the ALJ’s rulings,
findings of fact, conclusions of law, and
recommended Order.
Order
Pursuant to the authority vested in me
by 21 U.S.C. 823(f) and 824(a), as well
as 28 CFR 0.100(b), I order that DEA
Certificate of Registration FT0896754,
issued to Sanjay Trivedi, M.D., be, and
it hereby is, revoked. I further order that
any pending application of Sanjay
Trivedi, M.D., to renew or modify his
registration, be, and it hereby is, denied.
This Order is effective immediately.1
Dated: January 25, 2013.
Michele M. Leonhart,
Administrator.
Michelle F. Gillice, Esq., for the Government.
Matthew R. Kachergus, Esq., for the
Respondent.
Recommended Rulings, Findings of
Fact, Conclusions of Law, and Decision
of the Administrative Law Judge
I. Facts
Gail A. Randall, Administrative Law
Judge. The Administrator, Drug
Enforcement Administration (‘‘DEA’’ or
‘‘Government’’), issued an Order to
Show Cause and Immediate Suspension
of Registration (‘‘Order’’) dated June 25,
2012, proposing to revoke the DEA
Certificate of Registration, No.
FT0896754, of Sanjay Trivedi, M.D.
(‘‘Respondent’’), as a practitioner,
pursuant to 21 U.S.C. 824(a)(4) (2006),
and deny any pending applications for
renewal or modification of such
registration pursuant to 21 U.S.C. 823(f)
(2006), because the continued
registration of the Respondent would be
inconsistent with the public interest, as
that term is used in 21 U.S.C. 823(f).
The Respondent’s registration will
expire by its own terms on November
30, 2013.
Specifically, the Order alleged that
the Respondent dispensed at least
1 For the same reason I ordered that Respondent’s
registration be immediately suspended, I conclude
that the public interest necessitates that this Order
be effective immediately. See 21 CFR 1316.67.
E:\FR\FM\04FEN1.SGM
04FEN1
mstockstill on DSK4VPTVN1PROD with NOTICES
7814
Federal Register / Vol. 78, No. 23 / Monday, February 4, 2013 / Notices
226,752 dosage units of controlled
substance prescriptions between April
24, 2011, and April 25, 2012. [Order at
2]. The Order alleged that the controlled
substances most frequently prescribed
during the year time period were:
oxycodone 30mg; hydrocodone/apap
10–500mg; and oxycodone/apap 10–
325mg. [Id.]. The Order further alleged
that the Respondent prescribed
controlled substances to undercover law
enforcement officers between October
and November 2011 in violation of
Federal, State, and local law because the
prescriptions were not for a legitimate
medical purpose. [Id. 2–3].
Additionally, the Order alleged that the
Respondent prescribed excessive and
unnecessary doses of controlled
substances to the undercover law
enforcement officers without a clinical
basis to do so, without conducting
adequate physical examinations,
without providing legitimate referrals
for evaluations, and without giving
proper attention to the possibility of
misuse or diversion of controlled
substances. [Id. at 3]. Lastly, the Order
alleged that the Respondent is involved
in a conspiracy in which controlled
substances are prescribed to patients
throughout the state of Florida without
a legitimate medical purpose. [Id. at 4].
On July 27, 2012, the Respondent,
through counsel, filed a letter with the
Court requesting an extension of time
(‘‘Respondent’s Request’’) to respond to
the Order to Show Cause. [Respondent’s
Request at 1]. Specifically, the
Respondent requested that in order to
properly respond to the Order to Show
Cause, the Respondent needed to obtain
the patient records at issue and these
records had been seized by law
enforcement in conjunction with the
criminal prosecution. [Id.].
On July 30, 2012, the Court issued an
Order Granting Respondent’s Request
for Extension of Time (‘‘Court’s Order’’).
Therein, the Court found that the
Respondent had demonstrated good
cause to justify granting a thirty-day
extension of time to respond to the
Order to Show Cause. [Court’s Order at
1].
On August 31, 2012, the Respondent,
through counsel, filed a letter with the
Court requesting an extension of time
(‘‘Respondent’s Second Request’’) to
respond to the Order to Show Cause.
[Respondent’s Second Request at 1].
Specifically, the Respondent explained
that he needed additional time to
respond to the Order to Show Cause
because the requested patient files at
issue in the above-captioned matter had
not yet been received since law
enforcement had seized the records in
conjunction with the criminal
VerDate Mar<15>2010
19:26 Feb 01, 2013
Jkt 229001
prosecution. [Id.]. That same day, the
Court issued an Order Granting
Respondent’s Request for Extension of
Time (‘‘Court’s Second Order’’).
Therein, the Court found that
Respondent had demonstrated good
cause to justify granting a second brief
extension of time. [Court’s Second
Order at 2]. The Court ordered that the
Respondent must clearly indicate his
desire for a hearing on or before
September 7, 2012. [Id.].
On September 7, 2012, the
Respondent, through counsel, timely
filed a Request for Hearing in the abovecaptioned matter.
On September 10, 2012, the
Government filed a Motion for
Summary Disposition and Motion to
Stay Proceedings (‘‘Government’s
Motion’’). Therein, the Government
requested that the Court summarily
revoke Respondent’s DEA registration
because the Respondent’s Florida state
medical license is under an emergency
suspension order. [Government’s
Motion at 1]. The Government stated
that the Respondent was no longer
authorized to handle controlled
substances in Florida, the state where
the Respondent is registered with the
DEA. [Id. at 1–2]. The Government
attached to its motion, a State of Florida
Department of Health Order of
Emergency Suspension of License
(‘‘Emergency Suspension’’), filed June
27, 2012, in which the State of Florida
Department of Health ordered the
emergency suspension of the
Respondent’s license. [Government’s
Motion at Exhibit A]. The Government
argues, therefore, that in accordance
with Agency precedent, the DEA is
barred by statute from continuing the
Respondent’s registration because his
state medical license was suspended.
[Id. at 1–2].
On September 11, 2012, the Court
issued an Order for Prehearing
Statements and an Order for
Respondent’s Response to Government’s
Motion for Summary Disposition and to
Stay Proceedings.
On September 19, 2012, the
Respondent, through counsel, filed
Respondent’s Response to Motion for
Summary Disposition and Motion to
Stay Proceedings and Request for
Extension of Time for Further Response
(‘‘Respondent’s Response’’). Therein,
the Respondent argues that the Court
should grant him a thirty-day extension
to respond to the Government’s Motion
because the Respondent is currently
involved in settlement negotiations with
the Florida Department of Health in
which his Florida medical state license
will be restored. [Respondent’s
Response at 1–3].
PO 00000
Frm 00077
Fmt 4703
Sfmt 4703
On September 19, 2012, the
Government filed Government’s Reply
to Respondent’s Response to Motion for
Summary Disposition and Motion to
Stay Proceedings and Request for
Extension of Time for Further Response
(‘‘Government’s Reply’’). Therein, the
Government argues that the only due
process that need be afforded to the
Respondent is an ‘‘opportunity to
oppose a motion for summary
disposition by showing that his state
authority has not been suspended or
revoked.’’ [Government’s Reply at 1].
The Government further argues that
because there has not been a showing
that Respondent’s state license is valid,
the Respondent currently lacks state
authority to handle controlled
substances and thus, the Respondent
cannot remain registered by the DEA.
[Id. at 2].
For the reasons set forth below, I will
grant the Government’s Motion and
recommend that the Administrator
revoke the Respondent’s DEA Certificate
of Registration. But, I note that,
pursuant to 21 CFR 1301.13(a) (2012),
the Respondent may apply for a new
DEA Certificate of Registration at any
time.
II. Discussion
A. Respondent Currently Lacks
Authority To Handle Controlled
Substances In Florida
The DEA will not maintain a
controlled substances registration if the
registrant is without state authority to
handle controlled substances in the
state in which the registrant practices.
The Controlled Substances Act (‘‘CSA’’)
provides that obtaining a DEA
registration is conditional on holding a
state license to handle controlled
substances. See 21 U.S.C. 802(21) (2006)
(defining ‘‘practitioner’’ as ‘‘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’’); 21 U.S.C. 823(f)
(2006) (‘‘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’’). The DEA, therefore, has
consistently held that the CSA requires
the DEA to revoke the registration of a
practitioner who no longer possesses a
state license to handle controlled
substances. See 21 U.S.C. 824(a)(3)
(2006) (stating ‘‘a registration may be
suspended or revoked by the Attorney
General upon a finding that the
registrant has had his State license or
E:\FR\FM\04FEN1.SGM
04FEN1
mstockstill on DSK4VPTVN1PROD with NOTICES
Federal Register / Vol. 78, No. 23 / Monday, February 4, 2013 / Notices
registration suspended, revoked or
denied by competent State authority’’);
Beverley P. Edwards, M.D., 75 FR 49,991
(DEA 2010); Joseph Baumstarck, M.D.,
74 FR 17,525 (DEA 2009).
In this case, the Respondent does not
dispute that he currently lacks state
authority to handle controlled
substances. However, the Respondent
argues that his current state medical
license suspension is temporary, as he
and the Florida Department of Health
are currently involved in settlement
negotiations in which he anticipates
that he will regain his Florida medical
license. [Respondent’s Response at 1–3].
Respondent argues that his DEA
registration should not be revoked
because he will soon likely regain his
state medical license in the state of
Florida. [Id. at 2–3]. However, the
Emergency Suspension from the Florida
Department of Health effectively
suspends the Respondent’s license to
practice medicine in the state of Florida.
Regardless of whether the Respondent
and the Florida Department of Health
eventually decide upon a settlement
agreement in which the Respondent’s
state license is reinstated, the
Respondent currently lacks the
necessary state authority to practice
medicine and handle controlled
substances in Florida. Consequently, his
DEA registration must be revoked. See
Joseph Baumstarck, M.D., 74 FR 17,525,
17,527 (DEA 2009) (stating that ‘‘a
practitioner may not maintain his DEA
registration if he lacks state authority to
handle controlled substances under the
laws of the state in which he
practices’’); Treasure Coast Specialty
Pharmacy, 76 FR 66,965 (DEA 2011);
Roy Chi Lung, M.D., 74 FR 20,346 (DEA
2009); Gabriel Sagun Orzame, M.D., 69
FR 58,959 (DEA 2004).
While the Respondent argues that his
state license may be reinstated in the
future, this possibility is immaterial in
light of the Respondent’s current lack of
state registration. Indeed, the CSA and
Agency precedent make clear that as a
prerequisite to registration the
Respondent must have state authority to
handle controlled substances, and that
without such authority all other issues
before this forum are moot. See 21
U.S.C. 802(21); 21 U.S.C. 823(f); Joseph
Baumstarck, M.D., 74 FR at 17,527 (DEA
2009). Thus, because there is no dispute
that the Respondent lacks state
authority to handle controlled
substances, the Respondent’s
registration must be revoked.
B. Respondent Is Entitled To Reapply
for Registration With the DEA
Any person who is required to register
with the DEA may apply for registration
VerDate Mar<15>2010
19:26 Feb 01, 2013
Jkt 229001
at any time. 21 CFR 1301.13(a) (2012)
(‘‘Any person who is required and who
is not registered may apply for
registration at any time. No person
required to be registered shall engage in
any activity for which registration is
required until the application for
registration is granted and a Certificate
of Registration is issued by the
Administrator to such person’’).
The Respondent is permitted to
reapply for a Certificate of Registration
with the DEA at any time in the future.
21 CFR 1301.13(a). However, the
Respondent will not be permitted to
engage in activity for which a
registration is required until his
application is granted by the DEA. Id.
III. Conclusion, Order, and
Recommendation
Consequently, there is no genuine
dispute of material fact regarding the
Respondent’s lack of state authority to
handle controlled substances. Thus,
summary disposition for the
Government is appropriate. It is well
settled that when there is no question of
material fact involved, there is no need
for a plenary, administrative hearing.
See Michael G. Dolin, M.D., 65 FR 5,661
(DEA 2000). Here, there is no genuine
dispute that the Respondent currently
lacks state authority to practice
medicine and to handle controlled
substances in Florida.
Accordingly, I hereby
grant the Government’s Motion for
Summary Disposition.
I also forward this case to the
Administrator for final disposition. I
recommend that the Respondent’s DEA
Certificate of Registration, Number
FT0896754, be revoked.2
Dated: September 25, 2012.
Gail A. Randall,
Administrative Law Judge.
[FR Doc. 2013–02232 Filed 2–1–13; 8:45 am]
BILLING CODE 4410–09–P
DEPARTMENT OF LABOR
Office of the Secretary
Agency Information Collection
Activities; Submission for OMB
Review; Comment Request; Gamma
Radiation Surveys
ACTION:
Notice.
The Department of Labor
(DOL) is submitting the Mine Safety and
SUMMARY:
2 The sole basis of my recommendation is the loss
of Respondent’s state licensure. I make no findings
or conclusions concerning the other allegations
asserted in the Order to Show Cause.
PO 00000
Frm 00078
Fmt 4703
Sfmt 4703
7815
Health Administration (MSHA)
sponsored information collection
request (ICR) titled, ‘‘Gamma Radiation
Surveys,’’ to the Office of Management
and Budget (OMB) for review and
approval for continued use in
accordance with the Paperwork
Reduction Act (PRA) of 1995 (44 U.S.C.
3501 et seq.).
DATES: Submit comments on or before
March 6, 2013.
ADDRESSES: A copy of this ICR with
applicable supporting documentation;
including a description of the likely
respondents, proposed frequency of
response, and estimated total burden
may be obtained from the RegInfo.gov
Web site, https://www.reginfo.gov/
public/do/PRAMain, on the day
following publication of this notice or
by contacting Michel Smyth by
telephone at 202–693–4129 (this is not
a toll-free number) or sending an email
to DOL_PRA_PUBLIC@dol.gov.
Submit comments about this request
to the Office of Information and
Regulatory Affairs, Attn: OMB Desk
Officer for DOL–MSHA, Office of
Management and Budget, Room 10235,
725 17th Street NW., Washington, DC
20503, Fax: 202–395–6881 (this is not a
toll-free number), email:
OIRA_submission@omb.eop.gov.
FOR FURTHER INFORMATION CONTACT:
Michel Smyth by telephone at 202–693–
4129 (this is not a toll-free number) or
by email at DOL_PRA_PUBLIC@dol.gov.
Authority: 44 U.S.C. 3507(a)(1)(D).
SUPPLEMENTARY INFORMATION:
Regulations 30 CFR 57.5047 requires a
covered mine operator to maintain a
record of cumulative individual gamma
radiation exposure to ensure that annual
exposure does not exceed five (5) Rems.
This requirement protects the health of
workers in mines with radioactive ores.
This information collection is subject
to the PRA. A Federal agency generally
cannot conduct or sponsor a collection
of information, and the public is
generally not required to respond to an
information collection, unless it is
approved by the OMB under the PRA
and displays a currently valid OMB
Control Number. In addition,
notwithstanding any other provisions of
law, no person shall generally be subject
to penalty for failing to comply with a
collection of information that does not
display a valid Control Number. See 5
CFR 1320.5(a) and 1320.6. The DOL
obtains OMB approval for this
information collection under Control
Number 1219–0039. The current
approval is scheduled to expire on
February 28, 2013; however, it should
be noted that existing information
E:\FR\FM\04FEN1.SGM
04FEN1
]]>Agencies
[Federal Register Volume 78, Number 23 (Monday, February 4, 2013)]
[Notices]
[Pages 7813-7815]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-02232]
-----------------------------------------------------------------------
DEPARTMENT OF JUSTICE
Drug Enforcement Administration
[Docket No. 12-57]
Sanjay Trivedi, M.D.; Decision and Order
On September 25, 2012, Administrative Law Judge (ALJ) Gail A.
Randall issued the attached recommended decision. Neither party filed
exceptions to the decision. Having reviewed the entire record, I have
decided to adopt the ALJ's rulings, findings of fact, conclusions of
law, and recommended Order.
Order
Pursuant to the authority vested in me by 21 U.S.C. 823(f) and
824(a), as well as 28 CFR 0.100(b), I order that DEA Certificate of
Registration FT0896754, issued to Sanjay Trivedi, M.D., be, and it
hereby is, revoked. I further order that any pending application of
Sanjay Trivedi, M.D., to renew or modify his registration, be, and it
hereby is, denied. This Order is effective immediately.\1\
---------------------------------------------------------------------------
\1\ For the same reason I ordered that Respondent's registration
be immediately suspended, I conclude that the public interest
necessitates that this Order be effective immediately. See 21 CFR
1316.67.
Dated: January 25, 2013.
Michele M. Leonhart,
Administrator.
Michelle F. Gillice, Esq., for the Government.
Matthew R. Kachergus, Esq., for the Respondent.
Recommended Rulings, Findings of Fact, Conclusions of Law, and Decision
of the Administrative Law Judge
I. Facts
Gail A. Randall, Administrative Law Judge. The Administrator, Drug
Enforcement Administration (``DEA'' or ``Government''), issued an Order
to Show Cause and Immediate Suspension of Registration (``Order'')
dated June 25, 2012, proposing to revoke the DEA Certificate of
Registration, No. FT0896754, of Sanjay Trivedi, M.D. (``Respondent''),
as a practitioner, pursuant to 21 U.S.C. 824(a)(4) (2006), and deny any
pending applications for renewal or modification of such registration
pursuant to 21 U.S.C. 823(f) (2006), because the continued registration
of the Respondent would be inconsistent with the public interest, as
that term is used in 21 U.S.C. 823(f). The Respondent's registration
will expire by its own terms on November 30, 2013.
Specifically, the Order alleged that the Respondent dispensed at
least
[[Page 7814]]
226,752 dosage units of controlled substance prescriptions between
April 24, 2011, and April 25, 2012. [Order at 2]. The Order alleged
that the controlled substances most frequently prescribed during the
year time period were: oxycodone 30mg; hydrocodone/apap 10-500mg; and
oxycodone/apap 10-325mg. [Id.]. The Order further alleged that the
Respondent prescribed controlled substances to undercover law
enforcement officers between October and November 2011 in violation of
Federal, State, and local law because the prescriptions were not for a
legitimate medical purpose. [Id. 2-3]. Additionally, the Order alleged
that the Respondent prescribed excessive and unnecessary doses of
controlled substances to the undercover law enforcement officers
without a clinical basis to do so, without conducting adequate physical
examinations, without providing legitimate referrals for evaluations,
and without giving proper attention to the possibility of misuse or
diversion of controlled substances. [Id. at 3]. Lastly, the Order
alleged that the Respondent is involved in a conspiracy in which
controlled substances are prescribed to patients throughout the state
of Florida without a legitimate medical purpose. [Id. at 4].
On July 27, 2012, the Respondent, through counsel, filed a letter
with the Court requesting an extension of time (``Respondent's
Request'') to respond to the Order to Show Cause. [Respondent's Request
at 1]. Specifically, the Respondent requested that in order to properly
respond to the Order to Show Cause, the Respondent needed to obtain the
patient records at issue and these records had been seized by law
enforcement in conjunction with the criminal prosecution. [Id.].
On July 30, 2012, the Court issued an Order Granting Respondent's
Request for Extension of Time (``Court's Order''). Therein, the Court
found that the Respondent had demonstrated good cause to justify
granting a thirty-day extension of time to respond to the Order to Show
Cause. [Court's Order at 1].
On August 31, 2012, the Respondent, through counsel, filed a letter
with the Court requesting an extension of time (``Respondent's Second
Request'') to respond to the Order to Show Cause. [Respondent's Second
Request at 1]. Specifically, the Respondent explained that he needed
additional time to respond to the Order to Show Cause because the
requested patient files at issue in the above-captioned matter had not
yet been received since law enforcement had seized the records in
conjunction with the criminal prosecution. [Id.]. That same day, the
Court issued an Order Granting Respondent's Request for Extension of
Time (``Court's Second Order''). Therein, the Court found that
Respondent had demonstrated good cause to justify granting a second
brief extension of time. [Court's Second Order at 2]. The Court ordered
that the Respondent must clearly indicate his desire for a hearing on
or before September 7, 2012. [Id.].
On September 7, 2012, the Respondent, through counsel, timely filed
a Request for Hearing in the above-captioned matter.
On September 10, 2012, the Government filed a Motion for Summary
Disposition and Motion to Stay Proceedings (``Government's Motion'').
Therein, the Government requested that the Court summarily revoke
Respondent's DEA registration because the Respondent's Florida state
medical license is under an emergency suspension order. [Government's
Motion at 1]. The Government stated that the Respondent was no longer
authorized to handle controlled substances in Florida, the state where
the Respondent is registered with the DEA. [Id. at 1-2]. The Government
attached to its motion, a State of Florida Department of Health Order
of Emergency Suspension of License (``Emergency Suspension''), filed
June 27, 2012, in which the State of Florida Department of Health
ordered the emergency suspension of the Respondent's license.
[Government's Motion at Exhibit A]. The Government argues, therefore,
that in accordance with Agency precedent, the DEA is barred by statute
from continuing the Respondent's registration because his state medical
license was suspended. [Id. at 1-2].
On September 11, 2012, the Court issued an Order for Prehearing
Statements and an Order for Respondent's Response to Government's
Motion for Summary Disposition and to Stay Proceedings.
On September 19, 2012, the Respondent, through counsel, filed
Respondent's Response to Motion for Summary Disposition and Motion to
Stay Proceedings and Request for Extension of Time for Further Response
(``Respondent's Response''). Therein, the Respondent argues that the
Court should grant him a thirty-day extension to respond to the
Government's Motion because the Respondent is currently involved in
settlement negotiations with the Florida Department of Health in which
his Florida medical state license will be restored. [Respondent's
Response at 1-3].
On September 19, 2012, the Government filed Government's Reply to
Respondent's Response to Motion for Summary Disposition and Motion to
Stay Proceedings and Request for Extension of Time for Further Response
(``Government's Reply''). Therein, the Government argues that the only
due process that need be afforded to the Respondent is an ``opportunity
to oppose a motion for summary disposition by showing that his state
authority has not been suspended or revoked.'' [Government's Reply at
1]. The Government further argues that because there has not been a
showing that Respondent's state license is valid, the Respondent
currently lacks state authority to handle controlled substances and
thus, the Respondent cannot remain registered by the DEA. [Id. at 2].
For the reasons set forth below, I will grant the Government's
Motion and recommend that the Administrator revoke the Respondent's DEA
Certificate of Registration. But, I note that, pursuant to 21 CFR
1301.13(a) (2012), the Respondent may apply for a new DEA Certificate
of Registration at any time.
II. Discussion
A. Respondent Currently Lacks Authority To Handle Controlled Substances
In Florida
The DEA will not maintain a controlled substances registration if
the registrant is without state authority to handle controlled
substances in the state in which the registrant practices. The
Controlled Substances Act (``CSA'') provides that obtaining a DEA
registration is conditional on holding a state license to handle
controlled substances. See 21 U.S.C. 802(21) (2006) (defining
``practitioner'' as ``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''); 21 U.S.C. 823(f)
(2006) (``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''). The DEA,
therefore, has consistently held that the CSA requires the DEA to
revoke the registration of a practitioner who no longer possesses a
state license to handle controlled substances. See 21 U.S.C. 824(a)(3)
(2006) (stating ``a registration may be suspended or revoked by the
Attorney General upon a finding that the registrant has had his State
license or
[[Page 7815]]
registration suspended, revoked or denied by competent State
authority''); Beverley P. Edwards, M.D., 75 FR 49,991 (DEA 2010);
Joseph Baumstarck, M.D., 74 FR 17,525 (DEA 2009).
In this case, the Respondent does not dispute that he currently
lacks state authority to handle controlled substances. However, the
Respondent argues that his current state medical license suspension is
temporary, as he and the Florida Department of Health are currently
involved in settlement negotiations in which he anticipates that he
will regain his Florida medical license. [Respondent's Response at 1-
3]. Respondent argues that his DEA registration should not be revoked
because he will soon likely regain his state medical license in the
state of Florida. [Id. at 2-3]. However, the Emergency Suspension from
the Florida Department of Health effectively suspends the Respondent's
license to practice medicine in the state of Florida. Regardless of
whether the Respondent and the Florida Department of Health eventually
decide upon a settlement agreement in which the Respondent's state
license is reinstated, the Respondent currently lacks the necessary
state authority to practice medicine and handle controlled substances
in Florida. Consequently, his DEA registration must be revoked. See
Joseph Baumstarck, M.D., 74 FR 17,525, 17,527 (DEA 2009) (stating that
``a practitioner may not maintain his DEA registration if he lacks
state authority to handle controlled substances under the laws of the
state in which he practices''); Treasure Coast Specialty Pharmacy, 76
FR 66,965 (DEA 2011); Roy Chi Lung, M.D., 74 FR 20,346 (DEA 2009);
Gabriel Sagun Orzame, M.D., 69 FR 58,959 (DEA 2004).
While the Respondent argues that his state license may be
reinstated in the future, this possibility is immaterial in light of
the Respondent's current lack of state registration. Indeed, the CSA
and Agency precedent make clear that as a prerequisite to registration
the Respondent must have state authority to handle controlled
substances, and that without such authority all other issues before
this forum are moot. See 21 U.S.C. 802(21); 21 U.S.C. 823(f); Joseph
Baumstarck, M.D., 74 FR at 17,527 (DEA 2009). Thus, because there is no
dispute that the Respondent lacks state authority to handle controlled
substances, the Respondent's registration must be revoked.
B. Respondent Is Entitled To Reapply for Registration With the DEA
Any person who is required to register with the DEA may apply for
registration at any time. 21 CFR 1301.13(a) (2012) (``Any person who is
required and who is not registered may apply for registration at any
time. No person required to be registered shall engage in any activity
for which registration is required until the application for
registration is granted and a Certificate of Registration is issued by
the Administrator to such person'').
The Respondent is permitted to reapply for a Certificate of
Registration with the DEA at any time in the future. 21 CFR 1301.13(a).
However, the Respondent will not be permitted to engage in activity for
which a registration is required until his application is granted by
the DEA. Id.
III. Conclusion, Order, and Recommendation
Consequently, there is no genuine dispute of material fact
regarding the Respondent's lack of state authority to handle controlled
substances. Thus, summary disposition for the Government is
appropriate. It is well settled that when there is no question of
material fact involved, there is no need for a plenary, administrative
hearing. See Michael G. Dolin, M.D., 65 FR 5,661 (DEA 2000). Here,
there is no genuine dispute that the Respondent currently lacks state
authority to practice medicine and to handle controlled substances in
Florida.
Accordingly, I hereby
grant the Government's Motion for Summary Disposition.
I also forward this case to the Administrator for final
disposition. I recommend that the Respondent's DEA Certificate of
Registration, Number FT0896754, be revoked.\2\
---------------------------------------------------------------------------
\2\ The sole basis of my recommendation is the loss of
Respondent's state licensure. I make no findings or conclusions
concerning the other allegations asserted in the Order to Show
Cause.
Dated: September 25, 2012.
Gail A. Randall,
Administrative Law Judge.
[FR Doc. 2013-02232 Filed 2-1-13; 8:45 am]
BILLING CODE 4410-09-P
