Fiaz Afzal, M.D.; Decision And Order, 61651-61655 [2014-24373]

Download as PDF Federal Register / Vol. 79, No. 198 / Tuesday, October 14, 2014 / Notices States Program created by Public Law 110–246, which amended the Act. Public Disclosure Before including your address, phone number, email address, or other personal identifying information in your comment, please be advised that your entire comment—including your personal identifying information—may be made publicly available at anytime. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so. Dated: September 19, 2014. Brent Rhees, Acting Regional Director, Upper Colorado Region. [FR Doc. 2014–23595 Filed 10–10–14; 8:45 am] BILLING CODE 4332–90–P DEPARTMENT OF JUSTICE mstockstill on DSK4VPTVN1PROD with NOTICES Notice of Lodging of Proposed Consent Decree Under the Comprehensive Environmental Response, Compensation and Liability Act On October 7, 2014, the Department of Justice lodged a proposed consent decree with the United States District Court for the District of Massachusetts in United States v. Boston and Maine Corporation and Massachusetts Bay Transportation Authority, Civil Action No. 1:14–cv–13804. The proposed consent decree would resolve the claims of the United States for injunctive relief and recovery of response costs against the defendants under section 106 and 107(a) of the Comprehensive Environmental Response, Compensation, and Liability Act (‘‘CERCLA’’) relating to Operable Unit 4 of the Iron Horse Park Superfund Site in North Billerica, Massachusetts. The consent decree requires the defendants to pay $1,560,570 to the United States. 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[FR Doc. 2014–24306 Filed 10–10–14; 8:45 am] BILLING CODE 4410–15–P DEPARTMENT OF JUSTICE Drug Enforcement Administration [Docket No. 14–3] Fiaz Afzal, M.D.; Decision And Order On November 4, 2013, the Deputy Assistant Administrator, Office of Diversion Control, Drug Enforcement Administration, issued an Order to Show Cause to Fiaz Afzal, M.D. (Respondent), of Kenner, Louisiana. ALJ Ex. 1. The Show Cause Order proposed the revocation of Respondent’s DEA Certificate of Registration BA5142308, which authorizes him to dispense controlled substances as a practitioner, as well as the denial of any pending application to renew or modify the registration, on the ground that his ‘‘registration is inconsistent with the public interest.’’ Id. at 1 (citing 21 U.S.C. 823(f) & 824(a)(4)). PO 00000 Frm 00056 Fmt 4703 Sfmt 4703 61651 As the basis for the proceeding, the Show Cause Order specifically alleged that ‘‘[f]rom in or about 2006 through in or about March of 2012, [Respondent] issued prescriptions for controlled substances to fifteen patients outside the usual course of professional practice and for other than a legitimate medical purpose in violation of 21 CFR 1306.04(a).’’ Id. The Order also alleged that the prescriptions Respondent ‘‘issued to these patients also violated Louisiana . . . law pertaining to controlled substances.’’ Id. at 1–2 (citing La. Rev. Sta. § 37:1285A(6) & (14); La. Rev. Stat. § 46:6921). The Show Cause Order further alleged that a medical expert had reviewed the medical records of the fifteen patients and found that Respondent ‘‘did not take a sufficient, or, in some cases, any objective medical history about the patient, that there was often a lack of diagnosis to support the continu[ed] prescribing of controlled substances, and that there was often no individual treatment plan.’’ Id. at 2. The Order also alleged that the expert had found that Respondent ‘‘failed to commence treatment with alternative treatments . . . rather than commenc[e] immediately with controlled substance prescriptions.’’ Id. On November 14, 2013, Respondent requested a hearing on the allegations. ALJ Ex. 2. The matter was placed on the docket of the Office of Administrative Law Judges, and assigned to ALJ Christopher McNeil, who conducted an evidentiary hearing on February 25, 2014 in New Orleans, Louisiana. At the hearing, the Government submitted various exhibits including patient files for the record; it also presented the testimony of an expert. Respondent submitted no exhibits and presented no testimony. Both parties submitted post-hearing briefs. Thereafter, the ALJ issued his Recommended Decision (R.D.). Therein, the ALJ found, inter alia, that the Government had proved that Respondent had issued controlledsubstance prescriptions to fifteen patients ‘‘in a manner that was not in the ordinary course of professional medical practice and was not based upon a legitimate medical justification.’’ R.D. at 66–67. Based on this finding, the ALJ further concluded that the Government had demonstrated ‘‘that Respondent’s continued . . . registration would be inconsistent with the public interest.’’ Id. at 67. The ALJ further found that Respondent ‘‘ha[d] not provided substantial evidence that he has acknowledged any noncompliance with controlled substance laws, nor that he has E:\FR\FM\14OCN1.SGM 14OCN1 mstockstill on DSK4VPTVN1PROD with NOTICES 61652 Federal Register / Vol. 79, No. 198 / Tuesday, October 14, 2014 / Notices undertaken efforts to avoid such noncompliance in the future,’’ and had thus ‘‘failed to rebut the Government’s prima facie case.’’ Id. at 69. The ALJ thus recommended that I revoke Respondent’s registration and deny any pending application to renew or modify his registration. Id. Both parties filed exceptions to the ALJ’s decision. Thereafter, the record was forwarded to this Office for Final Agency Action. While the matter was under review, the Government notified this Office that on August 18, 2014, the Louisiana State Board of Medical Examiners had issued a Decision and Order in the case it had brought against Respondent. Govt’s Notification of, and Request to Add to the Record, the Decision and Order of the Louisiana State Board of Medical Examiners, at 1. Therein, the Government requested that the Board’s Decision and Order be added to the record and provided a copy of the Decision and Order. Id. The Government further served a copy of its filing on Respondent, care of the South Louisiana Correction Center in Basile, Louisiana. Id. at 2. Thereafter, Respondent submitted a letter to this Office opposing the Government’s request to add the Louisiana Board’s Decision to the record. See Opposition to Addition of Record, at 1. Therein, Respondent argues that he has requested both rehearing by the Board and judicial review of the Board’s action and that the Decision and Order ‘‘is NOT final yet so it is too early to add this to’’ the record. Id. He further maintains that ‘‘[s]everal issues regarding [the Government Expert’s] testimony at [the] DEA hearing are unanswered and were excluded from [the] Louisiana State Board hearing which is UNFAIR for [his] cause.’’ Id. Having considered Respondent’s contentions, I reject them. The Board’s Decision and Order is clearly final as it sets forth findings of fact, conclusions of law, and orders the imposition of various sanctions. La. Rev. Stat. § 49:958 (‘‘A final decision shall include findings of fact and conclusions of law.’’). Also, the decision is dated and signed by the President of the Board, in the name of the Board, and has since been posted on the Board’s disciplinary actions Web page. See La. Admin. Code 46:XLV.9927 (‘‘The final decision of the board in an adjudication proceeding shall, if adverse to the respondent . . . be, in writing, shall include findings of fact and conclusions of law, and shall be signed by the presiding officer of the hearing panel on behalf and in the name of the board.’’). In short, the Decision and VerDate Sep<11>2014 16:59 Oct 10, 2014 Jkt 235001 Order bears all of the hallmarks of a final decision and order. As for his suggestion that the Decision and Order is not yet final because he has sought rehearing before the Board, Respondent has provided no evidence that the Board has stayed its decision. Nor does he cite to any provision of either Louisiana law or the Board’s regulations which provides that the filing of a petition for rehearing renders the Board’s decision non-final. As for his further suggestion that the Board’s Decision and Order is not final because he has sought judicial review, under the Louisiana Administrative Procedure Act, ‘‘[t]he filing of the petition does not itself stay enforcement of the agency decision.’’ La. Rev. Stat. § 49:964. Accordingly, I conclude that the Board’s Decision and Order is final and will consider it as evidence in this matter. I make the following findings. Findings On some date not specified in its Decision, the Louisiana Board issued an Administrative Complaint to Respondent charging him with six different violations of Louisiana law and the Board’s rules. See In re Afzal, No. 13–A–006 (La. Bd. Med. Exam’rs., Aug. 18, 2014). Of consequence here, the charges included the following: 3. Pursuant to La. Rev. Stat. § 37:1285(6), Prescribing, dispensing, or administering legally controlled substances or any dependency-inducing medication without legitimate medical justification therefore or in other than a legal or legitimate manner; * * * * * 6. Board’s Pain and Obesity Rules, Section 6921 of the Board’s rules identify the provisions to which physicians should adhere in treating non-malignant chronic or intractable pain with controlled substances on a protracted basis (in excess of 12 weeks during any 12 month period). Among the items required by the rules, with which Respondent failed to satisfy with respect to this patient are the need to: perform an evaluation of the patient; arrive at a medical diagnosis; formulate a treatment plan; document the medical necessity for the use of more than one type or schedule of controlled substance in the patient’s chart; and document and maintain accurate and complete records of history, physical and other examinations and evaluations as required by Section 6921 of the Board’s rules. Id. at 2 (citing La. Admin. Code 46:XLV.6921). On June 16, 2014, the Board held a hearing at which Respondent was present. Id. at 1. After noting that the violations arose ‘‘out of Respondent’s treatment of ten patients as a physician licensed by the Board,’’ the Board explained that the evidence ‘‘in support of the complaint’’ included the PO 00000 Frm 00057 Fmt 4703 Sfmt 4703 ‘‘medical records pertaining to each patient’’ and the expert testimony of two physicians. Id. at 2. Regarding the testimony of the experts, the Board made the following findings: Dr. Aultman,1 Board Certified in Internal Medicine, testified as to [R]espondent’s treatment of the ten patients listed in the complaint. She reviewed the medical records of each patient. She was of the opinion that Respondent, in each case, failed to perform a complete physical exam, received no medical history, did not formulate or document a medical diagnosis, failed to consider other remedies other than treatment with drugs, did not develop an individualized treatment plan and performed no periodic assessments of the patients, all in violation of the Board’s Rules on Treatment of Chronic Pain. In addition, she was of the opinion that Respondent’s treatment of these patients failed to satisfy the physicians’ standard of care. Dr. Kathy Willis, an internist, testified that she reviewed all of these patients’ charts and was of the same opinion as Dr. Aultman. . . . She also testified that a number of prescriptions were given by Respondent with no visit shown on the chart. She was of the opinion that Respondent distributed controlled substances with no medical basis for administering these drugs. She was also of the opinion that Respondent was in violation of the Board’s Rules on Treatment of Chronic Pain and that his treatment of these patients did not meet the standard of care. Id. at 2–3. The Board thus found ‘‘that Respondent failed to perform a complete physical exam or formulate or document a medical diagnosis and failed to formulate an individualized treatment plan for any of these patients.’’ Id. at 3. The Board also found that Respondent ‘‘received no medical history on these patients,’’ ‘‘did not consider other remedies . . . than treatment with drugs,’’ and that he ‘‘performed no periodic assessments of these patient’s [sic] progress.’’ Id.2 The Board then found Respondent guilty of each of the charges, including that he violated the Board’s Pain Rules, see La. Admin. Code 46:XLV.6921 & 6923, and the provision of the Louisiana Medical Practice Act prohibiting the ‘‘[p]rescribing, dispensing, or administering [of] legally controlled substances or any dependency-inducing medication without legitimate medical justification therefor or in other than a legal or legitimate manner.’’ La. Rev. Stat. § 37:1285(6). Based on its findings, the Board suspended Respondent’s medical 1 Dr. Aultman also testified for the Government in the DEA proceeding. See Tr. 79–317. 2 The Board also found that Respondent had been convicted in state court of thirty-five counts of Medicaid Fraud. In re Afzal, at 3. E:\FR\FM\14OCN1.SGM 14OCN1 Federal Register / Vol. 79, No. 198 / Tuesday, October 14, 2014 / Notices license until the probation imposed by the state court in the criminal proceeding ‘‘is terminated or for two years, whichever is longer.’’ In re Afzal, at 4. The Board further ordered that upon his reinstatement, Respondent will be placed on probation subject to conditions which include that ‘‘[f]or as long as he holds a license to practice medicine in Louisiana, [Respondent] shall not prescribe . . . any substance which may be classified, defined, enumerated or included in 21 CFR 1308.11–15 . . . as a Controlled Substance.’’ Id. at 5. Respondent may, however, ‘‘apply for the ability to prescribe controlled substances [in schedules] III–IV after a period of five (5) years from date of his reinstatement.’’ Id.3 findings as to all of the factors.’’ Volkman, 567 F.3d at 222; see also Hoxie v. DEA, 419 F.3d 477, 482 (6th Cir. 2005); Morall v. DEA, 412 F.3d 165, 173–74 (D.C. Cir. 2005). Here, I have considered all of the factors. For reasons explained below, I conclude that the Board’s findings that Respondent violated Louisiana law, see La. Rev. Stat. § 37:1285(6), and the Board’s pain rules, see La. Admin. Code 46:XLV.6921 & 6923, establish that Registrant has also violated the prescription requirement of the Controlled Substances Act. See 21 CFR 1306.04(a). I further conclude that Respondent ‘‘has committed such acts’’ as to render his registration ‘‘inconsistent with the public interest.’’ 4 21 U.S.C. 824(a)(4). Discussion Factors Two and Four—Respondent’s Experience in Dispensing Controlled Substances and Compliance With Applicable Laws Related to Controlled Substances To effectuate the dual goals of conquering drug abuse and controlling both the legitimate and illegitimate traffic in controlled substances, ‘‘Congress devised a closed regulatory system making it unlawful to manufacture, distribute, dispense, or possess any controlled substance except in a manner authorized by the CSA.’’ Gonzales v. Raich, 545 U.S. 1, 13 (2005). Consistent with the maintenance of the closed regulatory system, a controlled substance may only be dispensed upon a lawful prescription issued by a practitioner. Carlos Gonzalez, M.D., 76 FR 63118, 63141 (2011). Fundamental to the CSA’s scheme is the Agency’s longstanding regulation which states that ‘‘[a] prescription for a controlled substance [is not] effective [unless it is] issued for a legitimate medical purpose by an individual practitioner acting in the usual course of his professional practice.’’ 21 CFR The Public Interest Analysis Section 304(a) of the Controlled Substances Act (CSA) provides that a registration to ‘‘dispense a controlled substance . . . may be suspended or revoked by the Attorney General upon a finding that the registrant . . . has committed such acts as would render his registration under section 823 of this title inconsistent with the public interest as determined under such section.’’ 21 U.S.C. § 824(a)(4). With respect to a practitioner, the Act requires the consideration of the following factors in making the public interest determination: mstockstill on DSK4VPTVN1PROD 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 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. § 823(f). ‘‘These 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. (emphasis added); see also Volkman v. DEA, 567 F.3d 215, 222 (6th Cir. 2009). While I must consider each factor, I am ‘‘not required to make 3 Based on the findings of the Louisiana Board’s Decision and Order, I deem it unnecessary to make any findings based on this Agency’s proceeding, or to address either party’s Exceptions to the ALJ’s Recommended Decision. VerDate Sep<11>2014 16:59 Oct 10, 2014 Jkt 235001 4 As for factor one, while the Board has not made a formal recommendation to DEA as to whether Respondent should retain his registration, the State Board has suspended Respondent’s medical license for at least two years and also provided that even upon his reinstatement, he is prohibited from prescribing controlled substances for at least five years thereafter. The consequence of the State’s Order is discussed more fully below. Regarding factor three, there is no evidence that Respondent has been convicted of an offense related to the manufacture, distribution or dispensing of controlled substances. However, as there are a number of reasons why a person may never be convicted of an offense falling under this factor, let alone be prosecuted for one, ‘‘the absence of such a conviction is of considerably less consequence in the public interest inquiry’’ and thus, it is not dispositive. David A. Ruben, 78 FR 38363, 38379 n. 35 (2013) (citing Dewey C. MacKay, 75 FR 49956, 49973 (2010), pet. for rev. denied, MacKay v. DEA, 664 F.3d 808 (10th Cir. 2011)). PO 00000 Frm 00058 Fmt 4703 Sfmt 4703 61653 1306.04(a). This regulation further provides that ‘‘an order purporting to be a prescription issued not in the usual course of professional treatment . . . is not a prescription within the meaning and intent of [21 U.S.C. 829] and . . . the person issuing it, shall be subject to the penalties provided for violations of the provisions of law relating to controlled substances.’’ Id. As the Supreme Court has explained, ‘‘the prescription requirement . . . ensures patients use controlled substances under the supervision of a doctor so as to prevent addiction and recreational abuse. As a corollary, [it] also bars doctors from peddling to patients who crave the drugs for those prohibited uses.’’ Gonzales v. Oregon, 546 U.S. 243, 274 (2006) (citing United States v. Moore, 423 U.S. 122, 135, 143 (1975)); United States v. Alerre, 430 F.3d 681, 691 (4th Cir. 2005), cert. denied, 574 U.S. 1113 (2006) (the prescription requirement stands as a proscription against doctors acting not ‘‘as a healer[,] but as a seller of wares.’’). Under the CSA, it is fundamental that a practitioner must establish and maintain a legitimate doctor-patient relationship in order to act ‘‘in the usual course of . . . professional practice’’ and to issue a prescription for a ‘‘legitimate medical purpose.’’ Paul H. Volkman, 73 FR 30629, 30642 (2008), pet. for rev. denied, 567 F.3d 215, 223– 24 (6th Cir. 2009); see also Moore, 423 U.S. at 142–43 (noting that evidence established that the physician exceeded the bounds of professional practice, when ‘‘he gave inadequate physical examinations or none at all,’’ ‘‘ignored the results of the tests he did make,’’ and ‘‘took no precautions against . . . misuse and diversion’’). The CSA, however, generally looks to state law to determine whether a doctor and patient have established a legitimate doctorpatient relationship. Volkman, 73 FR at 30642. As found above, subsequent to the DEA hearing, the Louisiana Board also conducted a hearing after which the Board found ‘‘that Respondent failed to perform a complete physical exam or formulate or document a medical diagnosis and failed to formulate an individualized treatment plan for any of these [ten] patients.’’ In re Afzahl, at 3. The Board also found that Respondent ‘‘received no medical history on these patients,’’ ‘‘did not consider other remedies . . . than treatment with drugs,’’ and that he ‘‘performed no periodic assessments of these patient’s [sic] progress.’’ Id. The Board thus found Respondent guilty of having violated the Board’s Pain Rules. See La. Admin. Code E:\FR\FM\14OCN1.SGM 14OCN1 mstockstill on DSK4VPTVN1PROD with NOTICES 61654 Federal Register / Vol. 79, No. 198 / Tuesday, October 14, 2014 / Notices 46:XLV.6921 & 6923. Most importantly, the Board found that Respondent violated the provision of the Louisiana Medical Practice Act which prohibits ‘‘[p]rescribing, dispensing, or administering legally controlled substances or any dependency-inducing medication without legitimate medical justification therefor or in other than a legal or legitimate manner.’’ La. Rev. Stat. § 37:1285(6). Under the doctrine of collateral estoppel, the Board’s findings of fact and conclusions of law are entitled to preclusive effect in this proceeding if Respondent had an adequate opportunity to litigate the issues in the state proceeding. See Thomas Neuschatz, 78 FR 76322, 76325 (2013) (citing Robert L. Dougherty, M.D., 76 FR 16823, 16830 (2011)); Univ. of Tenn. v. Elliot, 478 U.S. 788, 797–98 (1986) (‘‘When an administrative agency is acting in a judicial capacity and resolves disputed issues of fact properly before it which the parties have had an adequate opportunity to litigate, the courts have not hesitated to apply res judicata[.]’’) (internal quotations and citations omitted). Here, having reviewed the Board’s Decision and applicable Louisiana law, I conclude that Respondent had an adequate opportunity to litigate (and did litigate) the issues raised in that proceeding. Under the Board’s Rules of Procedure, Respondent was entitled to notice of the complaint, which was required to set forth ‘‘the material facts and matters alleged and to be proven,’’ including ‘‘the facts constituting legal cause under law for administrative action against’’ him. La. Admin. Code tit.46:XLV.§ 9903.B; see also id. § 9905. Moreover, while Respondent represented himself, he was entitled to ‘‘be represented . . . by an attorney at law duly admitted to practice in any state.’’ Id. § 9907.B. He was entitled to request subpoenas for both the testimony of witnesses and the production of documentary evidence. Id. § 9917.A. Also, at the hearing, he was entitled ‘‘to present evidence on all issues of law and argument on all issues of law and policy involved, to call, examine, and cross-examine witnesses, and to offer and introduce documentary evidence and exhibits as may be required for a full and true disclosure of the facts and disposition of the complaint.’’ Id. § 9921.B. Finally, he was entitled to a written decision, which included factual findings and legal conclusions. Id. § 9927.A. I therefore find that Respondent had an adequate opportunity to litigate the issues raised in the Board proceeding and give preclusive effect to the Board’s VerDate Sep<11>2014 16:59 Oct 10, 2014 Jkt 235001 findings of fact and conclusions of law. See Neuschatz, 78 FR at 76325; Dougherty, 76 FR at 16830. I further hold that Board’s findings and legal conclusions support the conclusion that Respondent lacked a legitimate medical purpose and acted outside the usual course of professional practice in prescribing controlled substances to the ten patients who were the subject of the Board proceeding. See 21 CFR 1306.04(a). This conclusion is supported by both the Board’s factual findings and its legal conclusion that Respondent violated La. Rev. Stat. § 37:1285(6). As for its factual findings, the Board found ‘‘that Respondent failed to perform a complete physical exam or formulate or document a medical diagnosis and failed to formulate an individualized treatment plan for any of these patients.’’ In re Afzahl, at 3. It also found that Respondent ‘‘received no medical history on these patients,’’ ‘‘did not consider other remedies . . . than treatment with drugs,’’ and that he ‘‘performed no periodic assessments of these patient’s [sic] progress.’’ Id. Numerous decisions of the courts (including the Supreme Court in Moore) and this Agency have recognized that the prescribing of a controlled substance (and the continued prescribing of a controlled substance) under the following circumstances establishes that a physician lacked a legitimate medical purpose and acted outside of the usual course of professional practice and therefore violated the CSA: • Without performing an appropriate physical examination, • without utilizing appropriate diagnostic testing, • failing to devise and document a written treatment plan, • failing to periodically reassess the effectiveness of the treatment, • continuing to prescribe controlled substances without pursuing alternative therapies, • repeatedly and continually prescribing without referring the patient to appropriate specialists, and • failing to keep and maintain records which contain adequate findings to support a diagnosis and the need to prescribe one or more medications. See, e.g.; Paul H. Volkman, 73 FR 30630 (2008), pet. for rev. denied, 567 F.3d. 215 (6th Cir. 2009); see also David A. Ruben, 78 FR 38363 (2013); Henri Wetselaar,77 FR 57126 (2012); Jack A. Danton, 76 FR 60900 (2011); George C. Aycock, 74 FR 17529, 17544 (2009). Accordingly, the Board’s factual findings alone support the conclusion that Respondent lacked a legitimate medical purpose and acted outside of PO 00000 Frm 00059 Fmt 4703 Sfmt 4703 the usual course of professional practice when he prescribed to the ten patients who were at issue in the Board proceeding. See 21 CFR 1306.04(a). Moreover, the Board specifically found that in his treatment of the ten patients, Respondent violated Section 37:1285(6) of the Louisiana Medical Practice Act. As discussed above, this provision prohibits ‘‘[p]rescribing, dispensing, or administering legally controlled substances or any dependency-inducing medication without legitimate medical justification therefore or in other than a legal or legitimate manner.’’ La. Rev. Stat. § 37:1285(6). This is not simply a malpractice standard. Rather, this standard is equivalent to the CSA’s requirement that a controlled substance prescription ‘‘must be issued for a legitimate medical purpose by an individual practitioner acting in the usual course of his professional practice.’’ 21 CFR 1306.04(a). Accordingly, I hold that the Board’s findings of fact and conclusions of law establish that Respondent knowingly diverted controlled substances to the ten patients at issue in the State proceeding. I further conclude that the Board’s Order establishes that Respondent has committed such acts as would render his registration ‘‘inconsistent with the public interest.’’ 21 CFR 1306.04(a). I further hold that Respondent’s misconduct is egregious and warrants the revocation of his registration. Loss of State Authority Grounds Not only does the State Board’s Order provide ground to revoke Respondent’s registration under the public interest standard, it also supports revocation under the separate and independent ground that he lacks state authority. Pursuant to 21 U.S.C. 824(a)(3), the Attorney General is authorized to revoke or suspend a registration ‘‘upon a finding that the registrant . . . has had his State license or registration suspended, revoked, or denied by competent State authority and is no longer authorized by State law to engage in the . . . distribution or dispensing of controlled substances.’’ With respect to a practitioner, DEA has repeatedly held that the possession of authority to dispense controlled substances under the laws of the State in which a practitioner engages in professional practice is a fundamental condition for obtaining and maintaining a practitioner’s registration. See James L. Hooper, 76 FR 71371, 71372 (2011) (citing Leonard F. Faymore, 48 FR 32886, 32887 (1983)), pet. for rev. denied, Hooper v. Holder, 481 Fed. E:\FR\FM\14OCN1.SGM 14OCN1 Federal Register / Vol. 79, No. 198 / Tuesday, October 14, 2014 / Notices mstockstill on DSK4VPTVN1PROD with NOTICES Appx. 826, 828 (4th Cir. June 6, 2012) (unpublished). This rule derives from the text of two provisions of the CSA. First, Congress defined ‘‘the term ‘practitioner’ [to] mean[] a physician . . . or other person licensed, registered or otherwise permitted, by . . . the jurisdiction in which he practices . . . to distribute, dispense, [or] administer . . . a controlled substance in the course of professional practice.’’ 21 U.S.C. 802(21). Second, in setting the requirements for obtaining a practitioner’s registration, Congress directed that ‘‘[t]he Attorney General shall register practitioners . . . 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) (emphasis added). Because Congress has clearly mandated that a practitioner possess state authority in order to be deemed a practitioner under the Act, DEA has held repeatedly that revocation of a practitioner’s registration is the appropriate sanction if the practitioner is no longer authorized to dispense controlled substances under the laws of the State in which he practices medicine.5 See, e.g., Calvin Ramsey, 76 FR 20034, 20036 (2011); Sheran Arden Yeates, M.D., 71 FR 39130, 39131 (2006); Dominick A. Ricci, 58 FR 51104, 51105 (1993); Bobby Watts, 53 FR 11919, 11920 (1988). It is of no consequence that Respondent has sought judicial review of the Board’s decision. See Ramsey, 76 FR at 20036 (citing Michael G. Dolin, 65 FR 5661, 5662 (2000)). Under the CSA, all that matters is that Respondent is no longer 5 It is unclear from the Board’s order whether Respondent offered any evidence in the State proceeding that he acknowledges his misconduct and has undertaken remedial measures to prevent its recurrence, and given the outcome of the proceeding and the absence of any discussion in the Order, it seems unlikely that he did. Indeed, while in the DEA proceeding, Respondent faced similar allegations of unlawful prescribing, he declined to testify and offered no evidence at all. See R.D. at 61–62. While under this Agency’s precedents, evidence that a practitioner acknowledges his misconduct and has undertaken remedial measures may refute the Government’s prima facie case when it seeks the revocation of a practitioner’s registration on public interest grounds, it is unnecessary to determine whether Respondent offered such evidence in the board proceeding. This is so because Respondent’s loss of his state authority provides a separate and independent ground for revoking his registration. And because under the CSA, possessing authority under state law to dispense controlled substances is a mandatory requirement for obtaining and maintaining a DEA practitioner’s registration, it does not matter whether Respondent offered such evidence in the state board proceeding. VerDate Sep<11>2014 16:59 Oct 10, 2014 Jkt 235001 currently authorized to dispense controlled substances in Louisiana. Id. Here, the Louisiana Board has suspended Respondent’s medical license for at least two years, and even in the event the Board reinstates his license, he will be prohibited from prescribing controlled substances for at least five years from the date of reinstatement. Accordingly, I conclude that Registrant is without authority under Louisiana law to handle controlled substances in the State in which he holds his DEA registration. Because Respondent no longer meets the CSA’s requirement that he be currently authorized to dispense controlled substances in the State in which he holds his registration, I will order that his registration be revoked. See Craig Bammer, 73 FR 34327, 34329 (2008); Richard Carino, M.D., 72 FR 71955, 71956 (2007) (citing cases). Order Pursuant to the authority vested in me by 21 U.S.C. 823(f) and 824(a)(3) & (4), as well as 28 CFR 0.100(b) and 0.104, I order that DEA Certificate of Registration BA5142308, issued to Fiaz Afzal, M.D., be, and it hereby is, revoked. I further order that any application of Fiaz Afzal, M.D., to renew or modify his registration, be, and it hereby is, denied. This Order is effectively immediately.6 Dated: October 2, 2014. Thomas M. Harrigan, Deputy Administrator. [FR Doc. 2014–24373 Filed 10–10–14; 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; Representative Payee Report, Representative Payee Report Short Form, and Physician’s/Medical Officer’s Statement ACTION: The Department of Labor (DOL) is submitting the Office of Workers’ Compensation Programs (OWCP) sponsored information collection request (ICR) revision titled, ‘‘Representative Payee Report, Representative Payee Report Short 6 Based on the extensive and egregious nature of the misconduct proved by the Government, I conclude that the public interest necessitates that this Order be effectively immediately. 21 CFR 1316.67. Frm 00060 Fmt 4703 Form, and Physician’s/Medical Officer’s Statement,’’ to the Office of Management and Budget (OMB) for review and approval for use in accordance with the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501 et seq.). Public comments on the ICR are invited. DATES: The OMB will consider all written comments that agency receives on or before November 13, 2014. 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 free of charge from the RegInfo.gov Web site at http://www. reginfo.gov/public/do/PRAViewICR ?ref_nbr=201405-1240-004 (this link will only become active on the day following publication of this notice) or by contacting Michel Smyth by telephone at 202–693–4129, TTY 202– 693–8064, (these are not toll-free numbers) or sending an email to DOL_ PRA_PUBLIC@dol.gov. Submit comments about this request by mail or courier to the Office of Information and Regulatory Affairs, Attn: OMB Desk Officer for DOL– OWCP, Office of Management and Budget, Room 10235, 725 17th Street NW., Washington, DC 20503; by Fax: 202–395–5806 (this is not a toll-free number); or by email: OIRA_submission@omb.eop.gov. Commenters are encouraged, but not required, to send a courtesy copy of any comments by mail or courier to the U.S. Department of Labor-OASAM, Office of the Chief Information Officer, Attn: Departmental Information Compliance Management Program, Room N1301, 200 Constitution Avenue NW., Washington, DC 20210; or by email: DOL_PRA_PUBLIC@dol.gov. FOR FURTHER INFORMATION CONTACT: Contact Michel Smyth by telephone at 202–693–4129, TTY 202–693–8064, (these are not toll-free numbers) or sending an email to DOL_PRA_PUBLIC@dol.gov. Authority: 44 U.S.C. 3507(a)(1)(D). Notice. SUMMARY: PO 00000 61655 Sfmt 4703 This ICR seeks approval under the PRA for revisions to the Representative Payee Report, Representative Payee Report Short Form, and Physician’s/Medical Officer’s Statement information collection. Benefits due a DOL black lung beneficiary may be paid to a representative payee on behalf of the beneficiary when he or she is unable to manage the benefits due to incapability or incompetence or because the beneficiary is a minor. The SUPPLEMENTARY INFORMATION: E:\FR\FM\14OCN1.SGM 14OCN1

Agencies

[Federal Register Volume 79, Number 198 (Tuesday, October 14, 2014)]
[Notices]
[Pages 61651-61655]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-24373]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration

[Docket No. 14-3]


Fiaz Afzal, M.D.; Decision And Order

    On November 4, 2013, the Deputy Assistant Administrator, Office of 
Diversion Control, Drug Enforcement Administration, issued an Order to 
Show Cause to Fiaz Afzal, M.D. (Respondent), of Kenner, Louisiana. ALJ 
Ex. 1. The Show Cause Order proposed the revocation of Respondent's DEA 
Certificate of Registration BA5142308, which authorizes him to dispense 
controlled substances as a practitioner, as well as the denial of any 
pending application to renew or modify the registration, on the ground 
that his ``registration is inconsistent with the public interest.'' Id. 
at 1 (citing 21 U.S.C. 823(f) & 824(a)(4)).
    As the basis for the proceeding, the Show Cause Order specifically 
alleged that ``[f]rom in or about 2006 through in or about March of 
2012, [Respondent] issued prescriptions for controlled substances to 
fifteen patients outside the usual course of professional practice and 
for other than a legitimate medical purpose in violation of 21 CFR 
1306.04(a).'' Id. The Order also alleged that the prescriptions 
Respondent ``issued to these patients also violated Louisiana . . . law 
pertaining to controlled substances.'' Id. at 1-2 (citing La. Rev. Sta. 
Sec.  37:1285A(6) & (14); La. Rev. Stat. Sec.  46:6921).
    The Show Cause Order further alleged that a medical expert had 
reviewed the medical records of the fifteen patients and found that 
Respondent ``did not take a sufficient, or, in some cases, any 
objective medical history about the patient, that there was often a 
lack of diagnosis to support the continu[ed] prescribing of controlled 
substances, and that there was often no individual treatment plan.'' 
Id. at 2. The Order also alleged that the expert had found that 
Respondent ``failed to commence treatment with alternative treatments . 
. . rather than commenc[e] immediately with controlled substance 
prescriptions.'' Id.
    On November 14, 2013, Respondent requested a hearing on the 
allegations. ALJ Ex. 2. The matter was placed on the docket of the 
Office of Administrative Law Judges, and assigned to ALJ Christopher 
McNeil, who conducted an evidentiary hearing on February 25, 2014 in 
New Orleans, Louisiana.
    At the hearing, the Government submitted various exhibits including 
patient files for the record; it also presented the testimony of an 
expert. Respondent submitted no exhibits and presented no testimony. 
Both parties submitted post-hearing briefs.
    Thereafter, the ALJ issued his Recommended Decision (R.D.). 
Therein, the ALJ found, inter alia, that the Government had proved that 
Respondent had issued controlled-substance prescriptions to fifteen 
patients ``in a manner that was not in the ordinary course of 
professional medical practice and was not based upon a legitimate 
medical justification.'' R.D. at 66-67. Based on this finding, the ALJ 
further concluded that the Government had demonstrated ``that 
Respondent's continued . . . registration would be inconsistent with 
the public interest.'' Id. at 67. The ALJ further found that Respondent 
``ha[d] not provided substantial evidence that he has acknowledged any 
noncompliance with controlled substance laws, nor that he has

[[Page 61652]]

undertaken efforts to avoid such noncompliance in the future,'' and had 
thus ``failed to rebut the Government's prima facie case.'' Id. at 69. 
The ALJ thus recommended that I revoke Respondent's registration and 
deny any pending application to renew or modify his registration. Id.
    Both parties filed exceptions to the ALJ's decision. Thereafter, 
the record was forwarded to this Office for Final Agency Action.
    While the matter was under review, the Government notified this 
Office that on August 18, 2014, the Louisiana State Board of Medical 
Examiners had issued a Decision and Order in the case it had brought 
against Respondent. Govt's Notification of, and Request to Add to the 
Record, the Decision and Order of the Louisiana State Board of Medical 
Examiners, at 1. Therein, the Government requested that the Board's 
Decision and Order be added to the record and provided a copy of the 
Decision and Order. Id. The Government further served a copy of its 
filing on Respondent, care of the South Louisiana Correction Center in 
Basile, Louisiana. Id. at 2.
    Thereafter, Respondent submitted a letter to this Office opposing 
the Government's request to add the Louisiana Board's Decision to the 
record. See Opposition to Addition of Record, at 1. Therein, Respondent 
argues that he has requested both rehearing by the Board and judicial 
review of the Board's action and that the Decision and Order ``is NOT 
final yet so it is too early to add this to'' the record. Id. He 
further maintains that ``[s]everal issues regarding [the Government 
Expert's] testimony at [the] DEA hearing are unanswered and were 
excluded from [the] Louisiana State Board hearing which is UNFAIR for 
[his] cause.'' Id.
    Having considered Respondent's contentions, I reject them. The 
Board's Decision and Order is clearly final as it sets forth findings 
of fact, conclusions of law, and orders the imposition of various 
sanctions. La. Rev. Stat. Sec.  49:958 (``A final decision shall 
include findings of fact and conclusions of law.''). Also, the decision 
is dated and signed by the President of the Board, in the name of the 
Board, and has since been posted on the Board's disciplinary actions 
Web page. See La. Admin. Code 46:XLV.9927 (``The final decision of the 
board in an adjudication proceeding shall, if adverse to the respondent 
. . . be, in writing, shall include findings of fact and conclusions of 
law, and shall be signed by the presiding officer of the hearing panel 
on behalf and in the name of the board.''). In short, the Decision and 
Order bears all of the hallmarks of a final decision and order.
    As for his suggestion that the Decision and Order is not yet final 
because he has sought rehearing before the Board, Respondent has 
provided no evidence that the Board has stayed its decision. Nor does 
he cite to any provision of either Louisiana law or the Board's 
regulations which provides that the filing of a petition for rehearing 
renders the Board's decision non-final. As for his further suggestion 
that the Board's Decision and Order is not final because he has sought 
judicial review, under the Louisiana Administrative Procedure Act, 
``[t]he filing of the petition does not itself stay enforcement of the 
agency decision.'' La. Rev. Stat. Sec.  49:964.
    Accordingly, I conclude that the Board's Decision and Order is 
final and will consider it as evidence in this matter. I make the 
following findings.

Findings

    On some date not specified in its Decision, the Louisiana Board 
issued an Administrative Complaint to Respondent charging him with six 
different violations of Louisiana law and the Board's rules. See In re 
Afzal, No. 13-A-006 (La. Bd. Med. Exam'rs., Aug. 18, 2014). Of 
consequence here, the charges included the following:

    3. Pursuant to La. Rev. Stat. Sec.  37:1285(6), Prescribing, 
dispensing, or administering legally controlled substances or any 
dependency-inducing medication without legitimate medical 
justification therefore or in other than a legal or legitimate 
manner;
* * * * *
    6. Board's Pain and Obesity Rules, Section 6921 of the Board's 
rules identify the provisions to which physicians should adhere in 
treating non-malignant chronic or intractable pain with controlled 
substances on a protracted basis (in excess of 12 weeks during any 
12 month period). Among the items required by the rules, with which 
Respondent failed to satisfy with respect to this patient are the 
need to: perform an evaluation of the patient; arrive at a medical 
diagnosis; formulate a treatment plan; document the medical 
necessity for the use of more than one type or schedule of 
controlled substance in the patient's chart; and document and 
maintain accurate and complete records of history, physical and 
other examinations and evaluations as required by Section 6921 of 
the Board's rules.

Id. at 2 (citing La. Admin. Code 46:XLV.6921).
    On June 16, 2014, the Board held a hearing at which Respondent was 
present. Id. at 1. After noting that the violations arose ``out of 
Respondent's treatment of ten patients as a physician licensed by the 
Board,'' the Board explained that the evidence ``in support of the 
complaint'' included the ``medical records pertaining to each patient'' 
and the expert testimony of two physicians. Id. at 2. Regarding the 
testimony of the experts, the Board made the following findings:

    Dr. Aultman,\1\ Board Certified in Internal Medicine, testified 
as to [R]espondent's treatment of the ten patients listed in the 
complaint. She reviewed the medical records of each patient. She was 
of the opinion that Respondent, in each case, failed to perform a 
complete physical exam, received no medical history, did not 
formulate or document a medical diagnosis, failed to consider other 
remedies other than treatment with drugs, did not develop an 
individualized treatment plan and performed no periodic assessments 
of the patients, all in violation of the Board's Rules on Treatment 
of Chronic Pain. In addition, she was of the opinion that 
Respondent's treatment of these patients failed to satisfy the 
physicians' standard of care.
---------------------------------------------------------------------------

    \1\ Dr. Aultman also testified for the Government in the DEA 
proceeding. See Tr. 79-317.
---------------------------------------------------------------------------

    Dr. Kathy Willis, an internist, testified that she reviewed all 
of these patients' charts and was of the same opinion as Dr. 
Aultman. . . . She also testified that a number of prescriptions 
were given by Respondent with no visit shown on the chart. She was 
of the opinion that Respondent distributed controlled substances 
with no medical basis for administering these drugs. She was also of 
the opinion that Respondent was in violation of the Board's Rules on 
Treatment of Chronic Pain and that his treatment of these patients 
did not meet the standard of care.
Id. at 2-3.

    The Board thus found ``that Respondent failed to perform a complete 
physical exam or formulate or document a medical diagnosis and failed 
to formulate an individualized treatment plan for any of these 
patients.'' Id. at 3. The Board also found that Respondent ``received 
no medical history on these patients,'' ``did not consider other 
remedies . . . than treatment with drugs,'' and that he ``performed no 
periodic assessments of these patient's [sic] progress.'' Id.\2\ The 
Board then found Respondent guilty of each of the charges, including 
that he violated the Board's Pain Rules, see La. Admin. Code 
46:XLV.6921 & 6923, and the provision of the Louisiana Medical Practice 
Act prohibiting the ``[p]rescribing, dispensing, or administering [of] 
legally controlled substances or any dependency-inducing medication 
without legitimate medical justification therefor or in other than a 
legal or legitimate manner.'' La. Rev. Stat. Sec.  37:1285(6).
---------------------------------------------------------------------------

    \2\ The Board also found that Respondent had been convicted in 
state court of thirty-five counts of Medicaid Fraud. In re Afzal, at 
3.
---------------------------------------------------------------------------

    Based on its findings, the Board suspended Respondent's medical

[[Page 61653]]

license until the probation imposed by the state court in the criminal 
proceeding ``is terminated or for two years, whichever is longer.'' In 
re Afzal, at 4. The Board further ordered that upon his reinstatement, 
Respondent will be placed on probation subject to conditions which 
include that ``[f]or as long as he holds a license to practice medicine 
in Louisiana, [Respondent] shall not prescribe . . . any substance 
which may be classified, defined, enumerated or included in 21 CFR 
1308.11-15 . . . as a Controlled Substance.'' Id. at 5. Respondent may, 
however, ``apply for the ability to prescribe controlled substances [in 
schedules] III-IV after a period of five (5) years from date of his 
reinstatement.'' Id.\3\
---------------------------------------------------------------------------

    \3\ Based on the findings of the Louisiana Board's Decision and 
Order, I deem it unnecessary to make any findings based on this 
Agency's proceeding, or to address either party's Exceptions to the 
ALJ's Recommended Decision.
---------------------------------------------------------------------------

Discussion

The Public Interest Analysis

    Section 304(a) of the Controlled Substances Act (CSA) provides that 
a registration to ``dispense a controlled substance . . . may be 
suspended or revoked by the Attorney General upon a finding that the 
registrant . . . has committed such acts as would render his 
registration under section 823 of this title inconsistent with the 
public interest as determined under such section.'' 21 U.S.C. Sec.  
824(a)(4). With respect to a practitioner, the Act requires the 
consideration of the following factors in making the public interest 
determination:

    (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. Sec.  823(f).

    ``These 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. (emphasis added); see also Volkman v. DEA, 567 F.3d 215, 
222 (6th Cir. 2009). While I must consider each factor, I am ``not 
required to make findings as to all of the factors.'' Volkman, 567 F.3d 
at 222; see also Hoxie v. DEA, 419 F.3d 477, 482 (6th Cir. 2005); 
Morall v. DEA, 412 F.3d 165, 173-74 (D.C. Cir. 2005).
    Here, I have considered all of the factors. For reasons explained 
below, I conclude that the Board's findings that Respondent violated 
Louisiana law, see La. Rev. Stat. Sec.  37:1285(6), and the Board's 
pain rules, see La. Admin. Code 46:XLV.6921 & 6923, establish that 
Registrant has also violated the prescription requirement of the 
Controlled Substances Act. See 21 CFR 1306.04(a). I further conclude 
that Respondent ``has committed such acts'' as to render his 
registration ``inconsistent with the public interest.'' \4\ 21 U.S.C. 
824(a)(4).
---------------------------------------------------------------------------

    \4\ As for factor one, while the Board has not made a formal 
recommendation to DEA as to whether Respondent should retain his 
registration, the State Board has suspended Respondent's medical 
license for at least two years and also provided that even upon his 
reinstatement, he is prohibited from prescribing controlled 
substances for at least five years thereafter. The consequence of 
the State's Order is discussed more fully below.
    Regarding factor three, there is no evidence that Respondent has 
been convicted of an offense related to the manufacture, 
distribution or dispensing of controlled substances. However, as 
there are a number of reasons why a person may never be convicted of 
an offense falling under this factor, let alone be prosecuted for 
one, ``the absence of such a conviction is of considerably less 
consequence in the public interest inquiry'' and thus, it is not 
dispositive. David A. Ruben, 78 FR 38363, 38379 n. 35 (2013) (citing 
Dewey C. MacKay, 75 FR 49956, 49973 (2010), pet. for rev. denied, 
MacKay v. DEA, 664 F.3d 808 (10th Cir. 2011)).
---------------------------------------------------------------------------

Factors Two and Four--Respondent's Experience in Dispensing Controlled 
Substances and Compliance With Applicable Laws Related to Controlled 
Substances

    To effectuate the dual goals of conquering drug abuse and 
controlling both the legitimate and illegitimate traffic in controlled 
substances, ``Congress devised a closed regulatory system making it 
unlawful to manufacture, distribute, dispense, or possess any 
controlled substance except in a manner authorized by the CSA.'' 
Gonzales v. Raich, 545 U.S. 1, 13 (2005). Consistent with the 
maintenance of the closed regulatory system, a controlled substance may 
only be dispensed upon a lawful prescription issued by a practitioner. 
Carlos Gonzalez, M.D., 76 FR 63118, 63141 (2011).
    Fundamental to the CSA's scheme is the Agency's longstanding 
regulation which states that ``[a] prescription for a controlled 
substance [is not] effective [unless it is] issued for a legitimate 
medical purpose by an individual practitioner acting in the usual 
course of his professional practice.'' 21 CFR 1306.04(a). This 
regulation further provides that ``an order purporting to be a 
prescription issued not in the usual course of professional treatment . 
. . is not a prescription within the meaning and intent of [21 U.S.C. 
829] and . . . the person issuing it, shall be subject to the penalties 
provided for violations of the provisions of law relating to controlled 
substances.'' Id.
    As the Supreme Court has explained, ``the prescription requirement 
. . . ensures patients use controlled substances under the supervision 
of a doctor so as to prevent addiction and recreational abuse. As a 
corollary, [it] also bars doctors from peddling to patients who crave 
the drugs for those prohibited uses.'' Gonzales v. Oregon, 546 U.S. 
243, 274 (2006) (citing United States v. Moore, 423 U.S. 122, 135, 143 
(1975)); United States v. Alerre, 430 F.3d 681, 691 (4th Cir. 2005), 
cert. denied, 574 U.S. 1113 (2006) (the prescription requirement stands 
as a proscription against doctors acting not ``as a healer[,] but as a 
seller of wares.'').
    Under the CSA, it is fundamental that a practitioner must establish 
and maintain a legitimate doctor-patient relationship in order to act 
``in the usual course of . . . professional practice'' and to issue a 
prescription for a ``legitimate medical purpose.'' Paul H. Volkman, 73 
FR 30629, 30642 (2008), pet. for rev. denied, 567 F.3d 215, 223-24 (6th 
Cir. 2009); see also Moore, 423 U.S. at 142-43 (noting that evidence 
established that the physician exceeded the bounds of professional 
practice, when ``he gave inadequate physical examinations or none at 
all,'' ``ignored the results of the tests he did make,'' and ``took no 
precautions against . . . misuse and diversion''). The CSA, however, 
generally looks to state law to determine whether a doctor and patient 
have established a legitimate doctor-patient relationship. Volkman, 73 
FR at 30642.
    As found above, subsequent to the DEA hearing, the Louisiana Board 
also conducted a hearing after which the Board found ``that Respondent 
failed to perform a complete physical exam or formulate or document a 
medical diagnosis and failed to formulate an individualized treatment 
plan for any of these [ten] patients.'' In re Afzahl, at 3. The Board 
also found that Respondent ``received no medical history on these 
patients,'' ``did not consider other remedies . . . than treatment with 
drugs,'' and that he ``performed no periodic assessments of these 
patient's [sic] progress.'' Id.
    The Board thus found Respondent guilty of having violated the 
Board's Pain Rules. See La. Admin. Code

[[Page 61654]]

46:XLV.6921 & 6923. Most importantly, the Board found that Respondent 
violated the provision of the Louisiana Medical Practice Act which 
prohibits ``[p]rescribing, dispensing, or administering legally 
controlled substances or any dependency-inducing medication without 
legitimate medical justification therefor or in other than a legal or 
legitimate manner.'' La. Rev. Stat. Sec.  37:1285(6).
    Under the doctrine of collateral estoppel, the Board's findings of 
fact and conclusions of law are entitled to preclusive effect in this 
proceeding if Respondent had an adequate opportunity to litigate the 
issues in the state proceeding. See Thomas Neuschatz, 78 FR 76322, 
76325 (2013) (citing Robert L. Dougherty, M.D., 76 FR 16823, 16830 
(2011)); Univ. of Tenn. v. Elliot, 478 U.S. 788, 797-98 (1986) (``When 
an administrative agency is acting in a judicial capacity and resolves 
disputed issues of fact properly before it which the parties have had 
an adequate opportunity to litigate, the courts have not hesitated to 
apply res judicata[.]'') (internal quotations and citations omitted).
    Here, having reviewed the Board's Decision and applicable Louisiana 
law, I conclude that Respondent had an adequate opportunity to litigate 
(and did litigate) the issues raised in that proceeding. Under the 
Board's Rules of Procedure, Respondent was entitled to notice of the 
complaint, which was required to set forth ``the material facts and 
matters alleged and to be proven,'' including ``the facts constituting 
legal cause under law for administrative action against'' him. La. 
Admin. Code tit.46:XLV.Sec.  9903.B; see also id. Sec.  9905. Moreover, 
while Respondent represented himself, he was entitled to ``be 
represented . . . by an attorney at law duly admitted to practice in 
any state.'' Id. Sec.  9907.B. He was entitled to request subpoenas for 
both the testimony of witnesses and the production of documentary 
evidence. Id. Sec.  9917.A. Also, at the hearing, he was entitled ``to 
present evidence on all issues of law and argument on all issues of law 
and policy involved, to call, examine, and cross-examine witnesses, and 
to offer and introduce documentary evidence and exhibits as may be 
required for a full and true disclosure of the facts and disposition of 
the complaint.'' Id. Sec.  9921.B. Finally, he was entitled to a 
written decision, which included factual findings and legal 
conclusions. Id. Sec.  9927.A. I therefore find that Respondent had an 
adequate opportunity to litigate the issues raised in the Board 
proceeding and give preclusive effect to the Board's findings of fact 
and conclusions of law. See Neuschatz, 78 FR at 76325; Dougherty, 76 FR 
at 16830.
    I further hold that Board's findings and legal conclusions support 
the conclusion that Respondent lacked a legitimate medical purpose and 
acted outside the usual course of professional practice in prescribing 
controlled substances to the ten patients who were the subject of the 
Board proceeding. See 21 CFR 1306.04(a). This conclusion is supported 
by both the Board's factual findings and its legal conclusion that 
Respondent violated La. Rev. Stat. Sec.  37:1285(6).
    As for its factual findings, the Board found ``that Respondent 
failed to perform a complete physical exam or formulate or document a 
medical diagnosis and failed to formulate an individualized treatment 
plan for any of these patients.'' In re Afzahl, at 3. It also found 
that Respondent ``received no medical history on these patients,'' 
``did not consider other remedies . . . than treatment with drugs,'' 
and that he ``performed no periodic assessments of these patient's 
[sic] progress.'' Id.
    Numerous decisions of the courts (including the Supreme Court in 
Moore) and this Agency have recognized that the prescribing of a 
controlled substance (and the continued prescribing of a controlled 
substance) under the following circumstances establishes that a 
physician lacked a legitimate medical purpose and acted outside of the 
usual course of professional practice and therefore violated the CSA:
     Without performing an appropriate physical examination,
     without utilizing appropriate diagnostic testing,
     failing to devise and document a written treatment plan,
     failing to periodically reassess the effectiveness of the 
treatment,
     continuing to prescribe controlled substances without 
pursuing alternative therapies,
     repeatedly and continually prescribing without referring 
the patient to appropriate specialists, and
     failing to keep and maintain records which contain 
adequate findings to support a diagnosis and the need to prescribe one 
or more medications.
    See, e.g.; Paul H. Volkman, 73 FR 30630 (2008), pet. for rev. 
denied, 567 F.3d. 215 (6th Cir. 2009); see also David A. Ruben, 78 FR 
38363 (2013); Henri Wetselaar,77 FR 57126 (2012); Jack A. Danton, 76 FR 
60900 (2011); George C. Aycock, 74 FR 17529, 17544 (2009).
    Accordingly, the Board's factual findings alone support the 
conclusion that Respondent lacked a legitimate medical purpose and 
acted outside of the usual course of professional practice when he 
prescribed to the ten patients who were at issue in the Board 
proceeding. See 21 CFR 1306.04(a).
    Moreover, the Board specifically found that in his treatment of the 
ten patients, Respondent violated Section 37:1285(6) of the Louisiana 
Medical Practice Act. As discussed above, this provision prohibits 
``[p]rescribing, dispensing, or administering legally controlled 
substances or any dependency-inducing medication without legitimate 
medical justification therefore or in other than a legal or legitimate 
manner.'' La. Rev. Stat. Sec.  37:1285(6). This is not simply a 
malpractice standard. Rather, this standard is equivalent to the CSA's 
requirement that a controlled substance prescription ``must be issued 
for a legitimate medical purpose by an individual practitioner acting 
in the usual course of his professional practice.'' 21 CFR 1306.04(a).
    Accordingly, I hold that the Board's findings of fact and 
conclusions of law establish that Respondent knowingly diverted 
controlled substances to the ten patients at issue in the State 
proceeding. I further conclude that the Board's Order establishes that 
Respondent has committed such acts as would render his registration 
``inconsistent with the public interest.'' 21 CFR 1306.04(a). I further 
hold that Respondent's misconduct is egregious and warrants the 
revocation of his registration.

Loss of State Authority Grounds

    Not only does the State Board's Order provide ground to revoke 
Respondent's registration under the public interest standard, it also 
supports revocation under the separate and independent ground that he 
lacks state authority. Pursuant to 21 U.S.C. 824(a)(3), the Attorney 
General is authorized to revoke or suspend a registration ``upon a 
finding that the registrant . . . has had his State license or 
registration suspended, revoked, or denied by competent State authority 
and is no longer authorized by State law to engage in the . . . 
distribution or dispensing of controlled substances.'' With respect to 
a practitioner, DEA has repeatedly held that the possession of 
authority to dispense controlled substances under the laws of the State 
in which a practitioner engages in professional practice is a 
fundamental condition for obtaining and maintaining a practitioner's 
registration. See James L. Hooper, 76 FR 71371, 71372 (2011) (citing 
Leonard F. Faymore, 48 FR 32886, 32887 (1983)), pet. for rev. denied, 
Hooper v. Holder, 481 Fed.

[[Page 61655]]

Appx. 826, 828 (4th Cir. June 6, 2012) (unpublished).
    This rule derives from the text of two provisions of the CSA. 
First, Congress defined ``the term `practitioner' [to] mean[] a 
physician . . . or other person licensed, registered or otherwise 
permitted, by . . . the jurisdiction in which he practices . . . to 
distribute, dispense, [or] administer . . . a controlled substance in 
the course of professional practice.'' 21 U.S.C. 802(21). Second, in 
setting the requirements for obtaining a practitioner's registration, 
Congress directed that ``[t]he Attorney General shall register 
practitioners . . . 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) (emphasis added).
    Because Congress has clearly mandated that a practitioner possess 
state authority in order to be deemed a practitioner under the Act, DEA 
has held repeatedly that revocation of a practitioner's registration is 
the appropriate sanction if the practitioner is no longer authorized to 
dispense controlled substances under the laws of the State in which he 
practices medicine.\5\ See, e.g., Calvin Ramsey, 76 FR 20034, 20036 
(2011); Sheran Arden Yeates, M.D., 71 FR 39130, 39131 (2006); Dominick 
A. Ricci, 58 FR 51104, 51105 (1993); Bobby Watts, 53 FR 11919, 11920 
(1988). It is of no consequence that Respondent has sought judicial 
review of the Board's decision. See Ramsey, 76 FR at 20036 (citing 
Michael G. Dolin, 65 FR 5661, 5662 (2000)). Under the CSA, all that 
matters is that Respondent is no longer currently authorized to 
dispense controlled substances in Louisiana. Id.
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    \5\ It is unclear from the Board's order whether Respondent 
offered any evidence in the State proceeding that he acknowledges 
his misconduct and has undertaken remedial measures to prevent its 
recurrence, and given the outcome of the proceeding and the absence 
of any discussion in the Order, it seems unlikely that he did. 
Indeed, while in the DEA proceeding, Respondent faced similar 
allegations of unlawful prescribing, he declined to testify and 
offered no evidence at all. See R.D. at 61-62.
     While under this Agency's precedents, evidence that a 
practitioner acknowledges his misconduct and has undertaken remedial 
measures may refute the Government's prima facie case when it seeks 
the revocation of a practitioner's registration on public interest 
grounds, it is unnecessary to determine whether Respondent offered 
such evidence in the board proceeding. This is so because 
Respondent's loss of his state authority provides a separate and 
independent ground for revoking his registration. And because under 
the CSA, possessing authority under state law to dispense controlled 
substances is a mandatory requirement for obtaining and maintaining 
a DEA practitioner's registration, it does not matter whether 
Respondent offered such evidence in the state board proceeding.
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    Here, the Louisiana Board has suspended Respondent's medical 
license for at least two years, and even in the event the Board 
reinstates his license, he will be prohibited from prescribing 
controlled substances for at least five years from the date of 
reinstatement. Accordingly, I conclude that Registrant is without 
authority under Louisiana law to handle controlled substances in the 
State in which he holds his DEA registration. Because Respondent no 
longer meets the CSA's requirement that he be currently authorized to 
dispense controlled substances in the State in which he holds his 
registration, I will order that his registration be revoked. See Craig 
Bammer, 73 FR 34327, 34329 (2008); Richard Carino, M.D., 72 FR 71955, 
71956 (2007) (citing cases).

Order

    Pursuant to the authority vested in me by 21 U.S.C. 823(f) and 
824(a)(3) & (4), as well as 28 CFR 0.100(b) and 0.104, I order that DEA 
Certificate of Registration BA5142308, issued to Fiaz Afzal, M.D., be, 
and it hereby is, revoked. I further order that any application of Fiaz 
Afzal, M.D., to renew or modify his registration, be, and it hereby is, 
denied. This Order is effectively immediately.\6\
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    \6\ Based on the extensive and egregious nature of the 
misconduct proved by the Government, I conclude that the public 
interest necessitates that this Order be effectively immediately. 21 
CFR 1316.67.

    Dated: October 2, 2014.
Thomas M. Harrigan,
Deputy Administrator.
[FR Doc. 2014-24373 Filed 10-10-14; 8:45 am]
BILLING CODE 4410-09-P