Alaaeldin A. Babiker, M.D.; Decision and Order, 50723-50726 [2016-18278]
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Office and Grand Canyon Parashant
National Monument, within the Arizona
Strip District.
Preliminary issues from internal and
external public scoping include but are
not limited to: Excessive fuel loading
leading to increased wildfire risk;
impacts from past management
activities such as grazing and fire
suppression; pinyon and juniper
encroachment into sagebrush and
ponderosa communities; soil erosion;
and the need to treat decadent
sagebrush stands.
After careful consideration of
preliminary issues, public scoping
comments, and field-verification of
existing resource conditions, BLM
modified the proposed action to specific
vegetation treatment units within the
overall project area, of which 18,675
acres is proposed to receive manual,
mechanical, seeding, erosion control,
and chemical treatments and 38,713
acres are proposed to receive fire
treatments. The proposed action and
one other action alternative, which
would implement only the fire
treatments, were developed. Design
features, applicable to all action
alternatives, were also modified to
include special resource protections to
mitigate the environmental impacts,
such as avoiding all known cultural
resources following intensive surveys,
treating areas when soils are not
saturated to minimize soil compaction,
ensuring mechanical treatment
equipment is cleaned prior to use to
minimize the spread of noxious weeds,
avoiding old growth ponderosa stands,
and designing treatments in irregular
shapes to reduce visual contrast.
The BLM evaluated the modified the
proposed action, no action, and an
alternative action, against the CEQ
significance criteria (40 CFR 1508.27)
and determined that the anticipated
effects from the treatment methods are
consistent with the preparation of an EA
rather than an EIS.
Thus, the BLM hereby terminates
preparation of an EIS for the proposed
Uinkaret Mountains Landscape
Restoration Project. National
Environmental Policy Act public
involvement procedures will be adhered
to in the development on the Uinkaret
Mountains Landscape Restoration
Project EA.
Authority: 40 CFR 1506.6, 40 CFR 1506.10
Timothy J. Burke,
District Manager.
[FR Doc. 2016–18272 Filed 8–1–16; 8:45 am]
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DEPARTMENT OF JUSTICE
Drug Enforcement Administration
Alaaeldin A. Babiker, M.D.; Decision
and Order
On January 21, 2015, the Deputy
Assistant Administrator, Office of
Diversion Control, Drug Enforcement
Administration, issued an Order to
Show Cause to Alaaeldin A. Babiker,
M.D. (hereinafter, Registrant), of Yuma,
Arizona. The Show Cause Order
proposed the revocation of Registrant’s
DEA Certificate of Registration
BB7566461, pursuant to which he is
authorized to dispense controlled
substances in schedules II through V as
a practitioner, as well as the denial of
any applications, on two grounds. GX 1,
at 1.
First, the Show Cause Order alleged
that on October 4, 2014, the Arizona
Medical Board issued Registrant an
‘‘Order for Decree of Censure, Probation,
and Practice Restriction and Consent to
the Same’’ which ‘‘restricted [him] from
prescribing any controlled substances.’’
Id. The Show Cause Order thus alleged
that because Registrant does not have
authority to dispense controlled
substances in Arizona, the State in
which he is registered with DEA, his
registration is subject to revocation. Id.
(citing 21 U.S.C. 802(21), 823(f),
824(a)(3)).
Second, based on various findings of
fact and legal conclusions contained in
the Board’s Order, the Show Cause
Order alleged that Registrant had
committed acts which render his
registration ‘‘inconsistent with the
public interest’’ in that he ‘‘did not
comply with applicable state law related
to controlled substances.’’ Id. at 2 (citing
21 U.S.C. 823(f)(4)). More specifically,
the Show Cause Order alleged that: (1)
‘‘[F]rom 2008 through 2012, [Registrant]
issued controlled substance
prescriptions to [his] wife’’; and that (2)
on December 8, 2012, he was
‘‘diagnosed with opioid dependence,
Xanax abuse and Adderall abuse.’’ Id.
Ariz. Rev. Stat. § 32–1401(27)(h) & (g)).
The Show Cause Order then made
multiple allegations regarding
Registrant’s prescribing of narcotics to
patient B.S. These included that: (1)
During the period he prescribed
oxycodone to B.S., he ‘‘added morphine
to the patient’s medications’’ and also
increased B.S.’s oxycodone
prescriptions without explaining why
he did so in B.S.’s chart; (2) he ‘‘did not
treat [B.S.’s] chronic pain with
additional evaluations or other
therapeutic interventions’’; and (3) that
he ‘‘deviated from the standard of care
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50723
by failing to address’’ lab results which
suggested that B.S. was using marijuana
as well as by failing to adequately
document B.S.’s marijuana usage. Id.
(citing Ariz. Rev. Stat. § 32–1401(27)(e)
& (q)).
Finally, the Show Cause Order
notified Registrant of his right to request
a hearing on the allegations or to submit
a written statement of position while
waiving his right to a hearing, the
procedure for electing either option, and
the consequence of failing to elect either
option. GX 1, at 2–3 (citing 21 CFR
1301.43; id. § 1301.46).
On January 29, 2015, a Special Agent
went to an address in Yuma, Arizona
which was identified as Registrant’s
address by a lawyer who had
represented him before the Arizona
Medical Board. According to the Special
Agent, he arrived at the residence at
4:30 p.m. at which time he
‘‘encountered no persons at the
residence’’ and there were ‘‘[n]o
vehicles or indications of any persons at
the residence during the time’’ he was
present. GX 7, at 1. The Special Agent
reported that he left a copy of the Show
Cause Order ‘‘in the door jamb of the
front door in plain sight.’’ Id. However,
at this juncture, the Government
undertook no other steps to effect
service.
Several months later, the Government
submitted a Request for Final Agency
Action contending that 30 days had
passed since Registrant was served with
the Show Cause Order and that neither
he, nor anyone representing him, had
requested a hearing or sent any
correspondence to DEA. Request for
Final Agency Action, at 7–8. On review
by my Office, service was deemed to be
inadequate and the Government was
directed to re-serve Registrant with the
Show Cause Order.
On October 2, 2015, a Diversion
Investigator mailed the Show Cause
Order to Registrant at his residence
address (as identified by his lawyer) by
first class mail. GX 9, at 2
(Supplemental Declaration of DI).
Thereafter, ‘‘[o]n or about January 20,
2016,’’ the DI mailed the Show Cause
Order to Registrant by Certified Mail,
Return Receipt Requested addressed to
him at the same address as well as at
two other reported addresses. Id.
However, each of these mailings was
returned unclaimed. Id. Subsequently,
on April 6, 2016, the DI re-mailed the
Show Cause Order to Registrant by
regular First Class Mail to each of the
three addresses. Id. According to the
affidavit of a Legal Assistant with the
Office of Chief Counsel, as of July 13,
2016, the Office of Administrative Law
Judges had not received either a hearing
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request or a written statement of
position from him.
Based on the above, I find that the
Government has satisfied its obligation
under the Due Process Clause ‘‘to
provide ‘notice reasonably calculated,
under all the circumstances, to apprise
interested parties of the pendency of the
action and afford them an opportunity
to present their objections.’ ’’ Jones v.
Flowers, 547 U.S. 220, 226 (2006)
(quoting Mullane v. Central Hanover
Bank & Trust Co., 339 U.S. 306, 314
(1950)). As more than 30 days have now
passed since Registrant was served with
the Show Cause Order and neither
Registrant nor anyone representing him
has either requested a hearing or
submitted a written statement of
position, I find that Registrant has
waived his right to a hearing or to
submit a written statement. I therefore
issue this Decision and Order based on
relevant evidence contained in the
Investigative File. I make the following
findings.
with the PHP’’ and call in to a hotline
‘‘on a daily basis to determine if he
[wa]s required to submit to a drug test.’’
Id. Registrant did not, however, call in
‘‘[f]rom February 3 through February 8,
2015,’’ and ‘‘completely ceased
checking in with the hotline on
February 12, 2015.’’ Id. Based on his
noncompliance with the PHP and the
Board’s Order, on February 26, 2015,
Registrant entered into an Interim
Consent Agreement for Practice
Restriction with the Board which barred
him from practicing medicine in the
State. Id. at 5–6.
In the October 3, 2014 Order, the
Board also made various findings
regarding Registrant’s prescribing of
controlled substances to both his wife
and patient B.S. GX 3, at 1–2, 4–5. As
to the former, the Board found that
Registrant ‘‘had prescribed controlled
substances to his wife on multiple
occasions beginning in 2008’’ and that
in an August 2013 ‘‘interview with
Board staff, [he] said that he had only
prescribed controlled substances to [her]
Findings of Fact
a few times starting in 2012.’’ Id. at 1.
Registrant is the holder of DEA
The Board also found that Registrant
Certificate of Registration BB7566461,
only ‘‘began to maintain medical
pursuant to which he is authorized to
records for his wife in 20011’’ and ‘‘did
dispense controlled substances in
not maintain complete records for’’ her.
schedules II through V, as a practitioner, Id. at 2.
at the registered address of 2140 W. 24th
As to his patient B.S., the Board found
St., Suite A, Yuma, Arizona. GX 2.
that Registrant first treated B.S. in April
Registrant’s registration does not expire
2012, when the latter ‘‘requested
until July 31, 2016. Id.
prescriptions so he could continue with
Registrant also previously held a
the same dosing of Alprazolam 1mg
medical license issued by the Arizona
(TID), oxycodone 30mg 6/day, and
Medical Board. GX 3, at 1. While as of
oxycodone 15mg 6/day’’ and that
the date on which the Show Cause
Registrant kept B.S. on this regimen
Order was issued, Registrant still had a
until September 2012, when he added
license, albeit one which was restricted
morphine sulfate 30mg 2/day. Id. at 4.
to prohibit him from prescribing
The Board found, however, that
controlled substances, on March 17,
Registrant did not document an
2016, Registrant entered into an Order
explanation in B.S.’s chart for adding
For Surrender Of License And Consent
the morphine. Id.
To The Same with the Board, which the
The Board further found that in May
latter approved on April 7, 2016. GX 9,
2013, Registrant prescribed ‘‘an
at 9,11.
additional 60 pills of oxycodone 30mg
Therein, the Board found that
and an additional 60 pills of OxyContin
pursuant to its October 3, 2014 Order for 80mg for the month.’’ Id. at 4–5. While
Decree of Censure, Probation, and
the Board found that ‘‘this was the only
Practice Restriction and Consent to the
month in which the increase occurred,
Same, Registrant was required to
there [was] no explanation in the
participate in the Board’s Physician
patient’s chart to explain the change.’’
1 Id. at 5. Pursuant
Health Program (PHP).
Id.
to the Order, Registrant was required to
The Board also found that Registrant
‘‘submit to random biological fluid, hair, conducted drug testing on B.S. several
or nail testing to ensure compliance
times during the course of treatment.
While the Board found that B.S.
1 The October 2014 Order found that in December
properly tested positive for the
2013, Registrant underwent a clinical evaluation
medications he was prescribed, ‘‘he also
and was diagnosed ‘‘with opioid dependence,
alcohol abuse, Xanax abuse, and Adderall abuse.’’
tested positive for THC, suggesting
GX 3, at 2–3. After Registrant completed inpatient
marijuana usage.’’ Id. The Board further
and outpatient treatment, the Board determined that
found that while the positive test for
he could resume practicing, subject to probationary
marijuana ‘‘was circled on one of the lab
terms and restrictions, if he was ‘‘enrolled in the
PHP for a five year term.’’ Id. at 3.
reports,’’ it was ‘‘not otherwise
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documented in the chart.’’ Id. (emphasis
added).
The Board then found that Registrant
deviated from the standard of care in
multiple ways. First, he deviated by
failing to address B.S.’s positive test for
marijuana. Id. Second, he deviated ‘‘by
managing B.S.’s chronic pain with pain
medications without additional
evaluations or other therapeutic
interventions.’’ Id. Third, he deviated
‘‘by dramatically increasing B.S.’s pain
medication in May 2013,’’ and that ‘‘[a]s
a result of the dramatic increase, B.S.
could have suffered an accidental
overdose.’’ Id. Finally, the Board found
that Registrant ‘‘failed to maintain
adequate, legible medical records.’’ Id.
at 6.
Based on these findings, the Board
found that Registrant had engaged in
multiple forms of unprofessional
conduct. These included by: (1) ‘‘failing
or refusing to maintain adequate records
on a patient’’; (2) ‘‘habitual
intemperance in the use of alcohol or
habitual substance abuse’’; (3) ‘‘using
controlled substances except if
prescribed by another physician for use
during a prescribed course of
treatment’’; (4) ‘‘prescribing or
dispensing controlled substances to
members of the physician’s immediate
family’’; (5) engaging in ‘‘[a]ny conduct
or practice that is or might be harmful
or dangerous to the health of the patient
or the public’’; and (6) ‘‘making a false
or misleading statement to the board.’’
Id. at 6 (citing Ariz. Rev. Stat. § 32–
1401(27) (e), (f), (g), (h), (q), and (jj)).2
2 In agreeing to the Order, Registrant waived ‘‘any
rights to a hearing or judicial review in state or
federal court on the matters alleged.’’ GX 3, at 13.
He also agreed that ‘‘[t]his Order is a public record
that will be publicly disseminated as a formal
disciplinary action of the Board.’’ Id. at 14. Thus,
as between Registrant and the Board, the Order was
entitled to preclusive effect even though the issues
were not litigated. See Chaney Building Co., v. City
of Tuscon, 716 P.2d 28, 30 (Ariz. 1986) (en banc)
(even where a judgment is entered by stipulation or
consent, it ‘‘may be conclusive, with respect to one
or more issues, if the parties have entered an
agreement manifesting such intention’’)(citing
Restatement (Second) of Judgments § 27 comment
e)). The Order nonetheless states that:
[a]ll admissions made by [Registrant] are solely
for final disposition of this matter and any
subsequent related administrative proceedings or
civil litigation involving the Board and [Registrant].
Therefore, said admissions by [Registrant] are not
intended or made for any other use, such as in the
context of another state or federal government
regulatory agency proceeding, civil or criminal
court proceeding, in the State of Arizona or any
other state or federal court.
GX 3, at 13.
Notwithstanding this language, I give preclusive
effect to the findings of the October 2014 Board
Order. Notably, most of the findings discussed
above do not appear to be based on admissions
made by Registrant but on other evidence. See
David A. Ruben, 78 FR 38363, 38366–66 n.7 (2013),
pet. for review denied, Ruben v. DEA, 617 Fed.
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Discussion
Loss of State Authority
Pursuant to 21 U.S.C. 824(a)(3), ‘‘[a]
registration . . . to . . . dispense a
controlled substance . . . may be
suspended or revoked by the Attorney
General 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 . . . dispensing of
controlled substances.’’ This Agency has
further held that notwithstanding that
this provision grants the Agency
authority to suspend or revoke a
registration, other provisions of the
Controlled Substances Act ‘‘make plain
that a practitioner can neither obtain nor
maintain a DEA registration unless the
practitioner currently has authority
under state law to handle controlled
substances.’’ James L. Hooper, 76 FR
71371, 71372 (2011), pet. for rev.
denied, Hooper v. Holder, 481 F. App’x
826 (4th Cir. 2012). See also Frederick
Marsh Blanton, M.D., 43 FR 27616,
27617 (1978) (‘‘State authorization to
dispense or otherwise handle controlled
substances is a prerequisite to the
issuance and maintenance of a Federal
controlled substances registration.’’).
These provisions include section
102(21), which defines the term
‘‘practitioner’’ to ‘‘mean[ ] 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.
802(21), as well as section 303(f), which
directs that ‘‘[t]he Attorney General
shall register practitioners . . . to
dispense . . . controlled substances
. . . if the applicant is authorized to
dispense . . . controlled substances
under the laws of the State in which he
practices.’’ Id. § 823(f). As the Supreme
Court has explained, ‘‘[i]n the case of a
physician, this scheme contemplates
that he is authorized by the State to
practice medicine and to dispense drugs
in connection with his professional
practice.’’ United States v. Moore, 423
U.S. 122, 140–41 (1975).
Here, the evidence shows that
Registrant has been without state
authority since the Board’s October 3,
2014 Order restricted his prescribing
authority and the Board has since
ordered Registrant to surrender his
Appx. 837, 838–39 (Mem.) (9th Cir. 2015). To the
extent any of these findings relied on Registrant’s
admissions, neither the Arizona Medical Board nor
Registrant can dictate to an Agency of the United
States what weight it can attach to the Order’s
findings. Cf. id. at 38365–67.
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medical license. I therefore find that
Registrant is without authority to
dispense controlled substances in
Arizona, the State in which he is
registered. Because Registrant no longer
meets the CSA’s prerequisite for
maintaining a practitioner’s registration,
I will order that his registration be
revoked and that any pending
application be denied.
Public Interest Grounds
Under the CSA, ‘‘[a] registration
pursuant to section 823 of this title to
manufacture, distribute, or 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). The Act further provides that
in determining ‘‘the public interest’’
with respect to a practitioner, the
following factors are to be considered:
(1) The recommendation of the appropriate
State licensing board or professional
disciplinary authority.
(2) The [registrant’s] experience in
dispensing, or conducting research with
respect to controlled substances.
(3) The [registrant’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.
21 U.S.C. 823(f).
‘‘[T]hese factors are . . . considered
in the disjunctive.’’ Robert A. Leslie,
M.D., 68 FR 15227, 15230 (2003). It is
well settled that 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.; see
also MacKay v. DEA, 664 F.3d 808, 816
(10th Cir. 2011); Volkman v. DEA, 567
F.3d 215, 222 (6th Cir. 2009); Hoxie v.
DEA, 419 F.3d 477, 482 (6th Cir. 2005).
Moreover, while I am required to
consider each of the factors, I ‘‘need not
make explicit findings as to each one.’’
MacKay, 664 F.3d at 816 (quoting
Volkman, 567 F.3d at 222 (quoting
Hoxie, 419 F.3d at 482)).3
3 While I have considered all of the factors, the
Government does not argue that any of the other
factors are relevant in making the public interest
determination in this matter. Be that as it may, ‘‘this
is not a contest in which score is kept; the Agency
is not required to mechanically count up the factors
and determine how many favor the Government
and how many favor the registrant. Rather, it is an
inquiry which focuses on protecting the public
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50725
The Government has the burden of
proving, by a preponderance of the
evidence, that the requirements for
revocation or suspension pursuant to 21
U.S.C. 824(a) are met. 21 CFR
1301.44(e). This is so even in a noncontested case.
In this matter, the Government argues
that the Board’s findings of fact and
conclusions of law are entitled to
preclusive effect and establish that
Registrant ‘‘violated applicable
controlled substance state laws under’’
factor four of the public interest
standard. Request for Final Agency
Action, at 6 (citing 21 U.S.C. 823(f)(4)).
I agree that Registrant failed to comply
with state laws related to controlled
substances as evidenced by the findings
that he prescribed controlled substances
to his wife, notwithstanding that under
Arizona law, ‘‘[p]rescribing or
dispensing controlled substances to
members of the physician’s immediate
family’’ is ‘‘unprofessional conduct.’’
Ariz. Rev. Stat. § 32–1401(27)(h). Based
on the plain language of this provision,
I conclude that even though it is found
in the State’s medical practice act, it is
a law ‘‘relating to controlled
substances.’’ 21 U.S.C. 823(f)(4).
The Board also found that Registrant
has been diagnosed as dependent on
opioids, and that he has abused both
Xanax (alprazolam), a schedule IV
benzodiazepine, and Adderall,
(amphetamine and
dextroamphetamine), a schedule II
stimulant. See 21 CFR 1308. 14(c)(2); id.
1308.12 (d)(1). Based on these findings,
the Board concluded that Registrant has
committed ‘‘unprofessional conduct’’ by
engaging in ‘‘habitual substance abuse’’
and ‘‘using controlled substances except
if prescribed by another physician for
use during a prescribed course of
treatment.’’ Ariz. Rev. Stat. § 32–
1301(27)(f) & (g). Here too, while these
provisions are located in the State’s
medical practice act, the plain language
of these provisions supports the
conclusion that they are laws ‘‘relating
to controlled substances.’’ 21 U.S.C.
823(f) (4).4
interest; what matters is the seriousness of the
registrant’s misconduct.’’ Jayam Krishna-Iyer, 74 FR
459, 462 (2009). Accordingly, as the Tenth Circuit
has recognized, findings under a single factor can
support the revocation of a registration. See
MacKay, 664 F.3d at 821.
4 While not cited by the Government, DEA has
long held that a practitioner’s self-abuse of a
controlled substance is actionable under factor five
as ‘‘[s]uch other conduct which may threaten public
health and safety.’’ See Tony T. Bui, 75 FR 49979,
49989 (2010) (citing cases).
The Board also made several findings that
Registrant deviated from the standard of care when
he prescribed narcotic controlled substances to B.S.
and which are highly suggestive of a finding that
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The Board’s conclusions of law that
Registrant committed unprofessional
conduct by prescribing controlled
substances to his wife, as well as by
engaging in habitual substance abuse
and using controlled substances which
were not prescribed to him by another
physician in the course of treatment,
support the conclusion that he has
committed such acts as to render his
registration ‘‘inconsistent with the
public interest.’’ 21 U.S.C. 824(a)(4).
These findings provide an additional
and independent basis to revoke
Registrant’s registration.
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Order
Pursuant to the authority vested in me
by 21 U.S.C. 824(a) and 823(f), as well
as 28 CFR 0.100(b), I order that DEA
Certificate of Registration BB7566461
issued to Alaaeldin Babiker, M.D., be,
and it hereby is, revoked. I further other
that any application of Alaaeldin
Babiker, M.D., to renew or modify this
registration, or for any other registration,
be, and it hereby is denied. This Order
is effective immediately.5
he acted outside of the usual course of professional
practice and lacked a legitimate medical purpose in
prescribing to B.S. 21 CFR 1306.04(a). These
include that he failed to address B.S.’s positive test
for marijuana, that he did not perform additional
evaluations or use therapeutic interventions other
than prescribing controlled substances, that he
dramatically increased B.S.’s pain medications and
did not document an explanation for doing so, and
that he failed to maintain adequate and legible
medical records.
The Board did not, however, find that Registrant
engaged in ‘‘[p]rescribing, dispensing, or
administering any controlled substance . . . for
other than accepted therapeutic purposes,’’ Ariz.
Rev. Stat. § 32–1401(27)(j), a standard similar to that
of 21 CFR 1306.04(a). See GX 3, at 6; see also
Kenneth Harold Bull, 78 FR 62666, 62674 (2013)
(holding that physician’s violation of a State’s
‘‘injudicious prescribing’’ standard did not establish
a violation of 21 CFR 1306.4(a) when the State also
had a standard prohibiting ‘‘prescribing . . . or
dispensing of narcotic, stimulant or hypnotic drugs
for other than accepted therapeutic purposes’’ but
did not find a violation). Instead, the Board found
that he committed unprofessional conduct by
engaging in ‘‘[a]ny conduct or practice that is or
might be harmful or dangerous to the health of the
patient or the public.’’ GX 3, at 6 (citing Ariz. Rev.
Stat. § 32–1401(27)(q)).
In its Request for Final Agency Action, the
Government did not allege that the Board’s findings
with respect to B.S. supported a finding that
Registrant violated 21 CFR 1306.04(a). Nor did it
argue that the Board’s findings establish reckless or
negligent conduct in the handling of controlled
substances, which is a basis to revoke a registration
under Paul J. Caragine, 63 FR 51592, 51601 (1998).
Moreover, the Government offers no argument as
to why the Board’s standard of ‘‘[a]ny conduct or
practice that is or might be harmful or dangerous
to the health of the patient or the public’’ is a law
related to controlled substances under factor four.
I therefore do not consider whether this provision
falls within factor four. Nor do I consider the
Board’s findings with respect to B.S.
5 For the same reasons which led the Board to
order Registrant to immediately surrender his state
license, I conclude that this Order should be
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Dated: July 22, 2016.
Chuck Rosenberg,
Acting Administrator.
Comments may be submitted either by
email or by mail:
To submit
comments:
Send them to:
By e-mail ......
[FR Doc. 2016–18278 Filed 8–1–16; 8:45 am]
pubcomment-ees.enrd@
usdoj.gov.
Assistant Attorney General,
U.S. DOJ–ENRD, P.O. Box
7611, Washington, DC
20044–7611.
BILLING CODE 4410–09–P
DEPARTMENT OF JUSTICE
By mail .........
Notice of Lodging of Proposed
Consent Decree Under the Clean Air
Act
On July 27, 2016, the Department of
Justice lodged a proposed Consent
Decree with the United States District
Court for the Eastern District of
Tennessee in the lawsuit entitled United
States and Knox County, Tennessee, Ex
Rel, Lynne Liddington, Director Of Air
Quality Management For Knox County,
Tennessee v. Cemex Inc., et al., Civil
Action No. 3:16–cv–471.
This case involves claims for alleged
violations of the Prevention of
Significant Deterioration (‘‘PSD’’)
program of the Clean Air Act (‘‘CAA’’),
CAA’s Title V operating permit
requirements, and related Tennessee
and Texas state law requirements at
Portland cement facilities in Knoxville,
Tennessee and Odessa, Texas owned or
operated by Cemex, Inc. or related
corporate entities (collectively,
‘‘Cemex’’). The complaint seeks
injunctive relief for installation of
control technology to reduce emissions
of nitrogen oxides (NOX), civil penalties,
and mitigation of past excess NOX
emissions. The settlement resolves the
liability at these facilities and also
resolves similar potential liability at
additional Cemex cement plants in New
Braunfels, Texas, Louisville, Kentucky
and Demopolis, Alabama, and requires
Cemex to install pollution control
equipment, agree to federally
enforceable limits for NOX and SO2
emissions, pay $1,690,000 in civil
penalties, and perform an
environmental mitigation project.
The publication of this notice opens
a period for public comment on the
Consent Decree. Comments should be
addressed to the Assistant Attorney
General, Environment and Natural
Resources Division, and should refer to
United States and Knox County,
Tennessee, Ex Rel, Lynne Liddington,
Director Of Air Quality Management For
Knox County, Tennessee v. Cemex Inc.,
et al., D.J. Ref. No. 90–5–2–1–09716. All
comments must be submitted no later
than thirty (30) days after the
publication date of this notice.
effective immediately. GX 9, at 9; see also 21 CFR
1316.67.
PO 00000
Frm 00045
Fmt 4703
Sfmt 4703
During the public comment period,
the Consent Decree may be examined
and downloaded at this Justice
Department Web site: https://
www.justice.gov/enrd/consent-decrees.
We will provide a paper copy of the
Consent Decree upon written request
and payment of reproduction costs.
Please mail your request and payment
to: Consent Decree Library, U.S. DOJ–
ENRD, P.O. Box 7611, Washington, DC
20044–7611.
Please enclose a check or money order
for $13.50 (25 cents per page
reproduction cost) payable to the United
States Treasury.
Henry Friedman,
Assistant Section Chief, Environmental
Enforcement Section, Environment and
Natural Resources Division.
[FR Doc. 2016–18161 Filed 8–1–16; 8:45 am]
BILLING CODE 4410–15–P
DEPARTMENT OF JUSTICE
Parole Commission
Sunshine Act Meeting; Record of Vote
of Meeting Closure (Pub. L. 94–409) (5
U.S.C. 552b)
I, J. Patricia W. Smoot, of the United
States Parole Commission, was present
at a meeting of said Commission, which
started at approximately 11:00 p.m., on
Wednesday, July 27, 2016 at the U.S.
Parole Commission, 90 K Street NE.,
Third Floor, Washington, DC 20530.
The purpose of the meeting was to
discuss six original jurisdiction cases
pursuant to 28 CFR 2.27. Three
Commissioners were present,
constituting a quorum when the vote to
close the meeting was submitted.
Public announcement further
describing the subject matter of the
meeting and certifications of the General
Counsel that this meeting may be closed
by votes of the Commissioners present
were submitted to the Commissioners
prior to the conduct of any other
business. Upon motion duly made,
seconded, and carried, the following
Commissioners voted that the meeting
be closed: J. Patricia W. Smoot, Patricia
Cushwa and Charles T. Massarone.
E:\FR\FM\02AUN1.SGM
02AUN1
Agencies
[Federal Register Volume 81, Number 148 (Tuesday, August 2, 2016)]
[Notices]
[Pages 50723-50726]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-18278]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF JUSTICE
Drug Enforcement Administration
Alaaeldin A. Babiker, M.D.; Decision and Order
On January 21, 2015, the Deputy Assistant Administrator, Office of
Diversion Control, Drug Enforcement Administration, issued an Order to
Show Cause to Alaaeldin A. Babiker, M.D. (hereinafter, Registrant), of
Yuma, Arizona. The Show Cause Order proposed the revocation of
Registrant's DEA Certificate of Registration BB7566461, pursuant to
which he is authorized to dispense controlled substances in schedules
II through V as a practitioner, as well as the denial of any
applications, on two grounds. GX 1, at 1.
First, the Show Cause Order alleged that on October 4, 2014, the
Arizona Medical Board issued Registrant an ``Order for Decree of
Censure, Probation, and Practice Restriction and Consent to the Same''
which ``restricted [him] from prescribing any controlled substances.''
Id. The Show Cause Order thus alleged that because Registrant does not
have authority to dispense controlled substances in Arizona, the State
in which he is registered with DEA, his registration is subject to
revocation. Id. (citing 21 U.S.C. 802(21), 823(f), 824(a)(3)).
Second, based on various findings of fact and legal conclusions
contained in the Board's Order, the Show Cause Order alleged that
Registrant had committed acts which render his registration
``inconsistent with the public interest'' in that he ``did not comply
with applicable state law related to controlled substances.'' Id. at 2
(citing 21 U.S.C. 823(f)(4)). More specifically, the Show Cause Order
alleged that: (1) ``[F]rom 2008 through 2012, [Registrant] issued
controlled substance prescriptions to [his] wife''; and that (2) on
December 8, 2012, he was ``diagnosed with opioid dependence, Xanax
abuse and Adderall abuse.'' Id. Ariz. Rev. Stat. Sec. 32-1401(27)(h) &
(g)).
The Show Cause Order then made multiple allegations regarding
Registrant's prescribing of narcotics to patient B.S. These included
that: (1) During the period he prescribed oxycodone to B.S., he ``added
morphine to the patient's medications'' and also increased B.S.'s
oxycodone prescriptions without explaining why he did so in B.S.'s
chart; (2) he ``did not treat [B.S.'s] chronic pain with additional
evaluations or other therapeutic interventions''; and (3) that he
``deviated from the standard of care by failing to address'' lab
results which suggested that B.S. was using marijuana as well as by
failing to adequately document B.S.'s marijuana usage. Id. (citing
Ariz. Rev. Stat. Sec. 32-1401(27)(e) & (q)).
Finally, the Show Cause Order notified Registrant of his right to
request a hearing on the allegations or to submit a written statement
of position while waiving his right to a hearing, the procedure for
electing either option, and the consequence of failing to elect either
option. GX 1, at 2-3 (citing 21 CFR 1301.43; id. Sec. 1301.46).
On January 29, 2015, a Special Agent went to an address in Yuma,
Arizona which was identified as Registrant's address by a lawyer who
had represented him before the Arizona Medical Board. According to the
Special Agent, he arrived at the residence at 4:30 p.m. at which time
he ``encountered no persons at the residence'' and there were ``[n]o
vehicles or indications of any persons at the residence during the
time'' he was present. GX 7, at 1. The Special Agent reported that he
left a copy of the Show Cause Order ``in the door jamb of the front
door in plain sight.'' Id. However, at this juncture, the Government
undertook no other steps to effect service.
Several months later, the Government submitted a Request for Final
Agency Action contending that 30 days had passed since Registrant was
served with the Show Cause Order and that neither he, nor anyone
representing him, had requested a hearing or sent any correspondence to
DEA. Request for Final Agency Action, at 7-8. On review by my Office,
service was deemed to be inadequate and the Government was directed to
re-serve Registrant with the Show Cause Order.
On October 2, 2015, a Diversion Investigator mailed the Show Cause
Order to Registrant at his residence address (as identified by his
lawyer) by first class mail. GX 9, at 2 (Supplemental Declaration of
DI). Thereafter, ``[o]n or about January 20, 2016,'' the DI mailed the
Show Cause Order to Registrant by Certified Mail, Return Receipt
Requested addressed to him at the same address as well as at two other
reported addresses. Id. However, each of these mailings was returned
unclaimed. Id. Subsequently, on April 6, 2016, the DI re-mailed the
Show Cause Order to Registrant by regular First Class Mail to each of
the three addresses. Id. According to the affidavit of a Legal
Assistant with the Office of Chief Counsel, as of July 13, 2016, the
Office of Administrative Law Judges had not received either a hearing
[[Page 50724]]
request or a written statement of position from him.
Based on the above, I find that the Government has satisfied its
obligation under the Due Process Clause ``to provide `notice reasonably
calculated, under all the circumstances, to apprise interested parties
of the pendency of the action and afford them an opportunity to present
their objections.' '' Jones v. Flowers, 547 U.S. 220, 226 (2006)
(quoting Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314
(1950)). As more than 30 days have now passed since Registrant was
served with the Show Cause Order and neither Registrant nor anyone
representing him has either requested a hearing or submitted a written
statement of position, I find that Registrant has waived his right to a
hearing or to submit a written statement. I therefore issue this
Decision and Order based on relevant evidence contained in the
Investigative File. I make the following findings.
Findings of Fact
Registrant is the holder of DEA Certificate of Registration
BB7566461, pursuant to which he is authorized to dispense controlled
substances in schedules II through V, as a practitioner, at the
registered address of 2140 W. 24th St., Suite A, Yuma, Arizona. GX 2.
Registrant's registration does not expire until July 31, 2016. Id.
Registrant also previously held a medical license issued by the
Arizona Medical Board. GX 3, at 1. While as of the date on which the
Show Cause Order was issued, Registrant still had a license, albeit one
which was restricted to prohibit him from prescribing controlled
substances, on March 17, 2016, Registrant entered into an Order For
Surrender Of License And Consent To The Same with the Board, which the
latter approved on April 7, 2016. GX 9, at 9,11.
Therein, the Board found that pursuant to its October 3, 2014 Order
for Decree of Censure, Probation, and Practice Restriction and Consent
to the Same, Registrant was required to participate in the Board's
Physician Health Program (PHP).\1\ Id. at 5. Pursuant to the Order,
Registrant was required to ``submit to random biological fluid, hair,
or nail testing to ensure compliance with the PHP'' and call in to a
hotline ``on a daily basis to determine if he [wa]s required to submit
to a drug test.'' Id. Registrant did not, however, call in ``[f]rom
February 3 through February 8, 2015,'' and ``completely ceased checking
in with the hotline on February 12, 2015.'' Id. Based on his
noncompliance with the PHP and the Board's Order, on February 26, 2015,
Registrant entered into an Interim Consent Agreement for Practice
Restriction with the Board which barred him from practicing medicine in
the State. Id. at 5-6.
---------------------------------------------------------------------------
\1\ The October 2014 Order found that in December 2013,
Registrant underwent a clinical evaluation and was diagnosed ``with
opioid dependence, alcohol abuse, Xanax abuse, and Adderall abuse.''
GX 3, at 2-3. After Registrant completed inpatient and outpatient
treatment, the Board determined that he could resume practicing,
subject to probationary terms and restrictions, if he was ``enrolled
in the PHP for a five year term.'' Id. at 3.
---------------------------------------------------------------------------
In the October 3, 2014 Order, the Board also made various findings
regarding Registrant's prescribing of controlled substances to both his
wife and patient B.S. GX 3, at 1-2, 4-5. As to the former, the Board
found that Registrant ``had prescribed controlled substances to his
wife on multiple occasions beginning in 2008'' and that in an August
2013 ``interview with Board staff, [he] said that he had only
prescribed controlled substances to [her] a few times starting in
2012.'' Id. at 1. The Board also found that Registrant only ``began to
maintain medical records for his wife in 20011'' and ``did not maintain
complete records for'' her. Id. at 2.
As to his patient B.S., the Board found that Registrant first
treated B.S. in April 2012, when the latter ``requested prescriptions
so he could continue with the same dosing of Alprazolam 1mg (TID),
oxycodone 30mg 6/day, and oxycodone 15mg 6/day'' and that Registrant
kept B.S. on this regimen until September 2012, when he added morphine
sulfate 30mg 2/day. Id. at 4. The Board found, however, that Registrant
did not document an explanation in B.S.'s chart for adding the
morphine. Id.
The Board further found that in May 2013, Registrant prescribed
``an additional 60 pills of oxycodone 30mg and an additional 60 pills
of OxyContin 80mg for the month.'' Id. at 4-5. While the Board found
that ``this was the only month in which the increase occurred, there
[was] no explanation in the patient's chart to explain the change.''
Id.
The Board also found that Registrant conducted drug testing on B.S.
several times during the course of treatment. While the Board found
that B.S. properly tested positive for the medications he was
prescribed, ``he also tested positive for THC, suggesting marijuana
usage.'' Id. The Board further found that while the positive test for
marijuana ``was circled on one of the lab reports,'' it was ``not
otherwise documented in the chart.'' Id. (emphasis added).
The Board then found that Registrant deviated from the standard of
care in multiple ways. First, he deviated by failing to address B.S.'s
positive test for marijuana. Id. Second, he deviated ``by managing
B.S.'s chronic pain with pain medications without additional
evaluations or other therapeutic interventions.'' Id. Third, he
deviated ``by dramatically increasing B.S.'s pain medication in May
2013,'' and that ``[a]s a result of the dramatic increase, B.S. could
have suffered an accidental overdose.'' Id. Finally, the Board found
that Registrant ``failed to maintain adequate, legible medical
records.'' Id. at 6.
Based on these findings, the Board found that Registrant had
engaged in multiple forms of unprofessional conduct. These included by:
(1) ``failing or refusing to maintain adequate records on a patient'';
(2) ``habitual intemperance in the use of alcohol or habitual substance
abuse''; (3) ``using controlled substances except if prescribed by
another physician for use during a prescribed course of treatment'';
(4) ``prescribing or dispensing controlled substances to members of the
physician's immediate family''; (5) engaging in ``[a]ny conduct or
practice that is or might be harmful or dangerous to the health of the
patient or the public''; and (6) ``making a false or misleading
statement to the board.'' Id. at 6 (citing Ariz. Rev. Stat. Sec. 32-
1401(27) (e), (f), (g), (h), (q), and (jj)).\2\
---------------------------------------------------------------------------
\2\ In agreeing to the Order, Registrant waived ``any rights to
a hearing or judicial review in state or federal court on the
matters alleged.'' GX 3, at 13. He also agreed that ``[t]his Order
is a public record that will be publicly disseminated as a formal
disciplinary action of the Board.'' Id. at 14. Thus, as between
Registrant and the Board, the Order was entitled to preclusive
effect even though the issues were not litigated. See Chaney
Building Co., v. City of Tuscon, 716 P.2d 28, 30 (Ariz. 1986) (en
banc) (even where a judgment is entered by stipulation or consent,
it ``may be conclusive, with respect to one or more issues, if the
parties have entered an agreement manifesting such
intention'')(citing Restatement (Second) of Judgments Sec. 27
comment e)). The Order nonetheless states that:
[a]ll admissions made by [Registrant] are solely for final
disposition of this matter and any subsequent related administrative
proceedings or civil litigation involving the Board and
[Registrant]. Therefore, said admissions by [Registrant] are not
intended or made for any other use, such as in the context of
another state or federal government regulatory agency proceeding,
civil or criminal court proceeding, in the State of Arizona or any
other state or federal court.
GX 3, at 13.
Notwithstanding this language, I give preclusive effect to the
findings of the October 2014 Board Order. Notably, most of the
findings discussed above do not appear to be based on admissions
made by Registrant but on other evidence. See David A. Ruben, 78 FR
38363, 38366-66 n.7 (2013), pet. for review denied, Ruben v. DEA,
617 Fed. Appx. 837, 838-39 (Mem.) (9th Cir. 2015). To the extent any
of these findings relied on Registrant's admissions, neither the
Arizona Medical Board nor Registrant can dictate to an Agency of the
United States what weight it can attach to the Order's findings. Cf.
id. at 38365-67.
---------------------------------------------------------------------------
[[Page 50725]]
Discussion
Loss of State Authority
Pursuant to 21 U.S.C. 824(a)(3), ``[a] registration . . . to . . .
dispense a controlled substance . . . may be suspended or revoked by
the Attorney General 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 . . . dispensing of controlled substances.'' This Agency
has further held that notwithstanding that this provision grants the
Agency authority to suspend or revoke a registration, other provisions
of the Controlled Substances Act ``make plain that a practitioner can
neither obtain nor maintain a DEA registration unless the practitioner
currently has authority under state law to handle controlled
substances.'' James L. Hooper, 76 FR 71371, 71372 (2011), pet. for rev.
denied, Hooper v. Holder, 481 F. App'x 826 (4th Cir. 2012). See also
Frederick Marsh Blanton, M.D., 43 FR 27616, 27617 (1978) (``State
authorization to dispense or otherwise handle controlled substances is
a prerequisite to the issuance and maintenance of a Federal controlled
substances registration.'').
These provisions include section 102(21), which defines the term
``practitioner'' to ``mean[ ] 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. 802(21),
as well as section 303(f), which directs that ``[t]he Attorney General
shall register practitioners . . . to dispense . . . controlled
substances . . . if the applicant is authorized to dispense . . .
controlled substances under the laws of the State in which he
practices.'' Id. Sec. 823(f). As the Supreme Court has explained,
``[i]n the case of a physician, this scheme contemplates that he is
authorized by the State to practice medicine and to dispense drugs in
connection with his professional practice.'' United States v. Moore,
423 U.S. 122, 140-41 (1975).
Here, the evidence shows that Registrant has been without state
authority since the Board's October 3, 2014 Order restricted his
prescribing authority and the Board has since ordered Registrant to
surrender his medical license. I therefore find that Registrant is
without authority to dispense controlled substances in Arizona, the
State in which he is registered. Because Registrant no longer meets the
CSA's prerequisite for maintaining a practitioner's registration, I
will order that his registration be revoked and that any pending
application be denied.
Public Interest Grounds
Under the CSA, ``[a] registration pursuant to section 823 of this
title to manufacture, distribute, or 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). The Act further provides that in determining ``the public
interest'' with respect to a practitioner, the following factors are to
be considered:
(1) The recommendation of the appropriate State licensing board
or professional disciplinary authority.
(2) The [registrant's] experience in dispensing, or conducting
research with respect to controlled substances.
(3) The [registrant'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.
21 U.S.C. 823(f).
``[T]hese factors are . . . considered in the disjunctive.'' Robert
A. Leslie, M.D., 68 FR 15227, 15230 (2003). It is well settled that 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.; see also MacKay v. DEA, 664 F.3d
808, 816 (10th Cir. 2011); Volkman v. DEA, 567 F.3d 215, 222 (6th Cir.
2009); Hoxie v. DEA, 419 F.3d 477, 482 (6th Cir. 2005). Moreover, while
I am required to consider each of the factors, I ``need not make
explicit findings as to each one.'' MacKay, 664 F.3d at 816 (quoting
Volkman, 567 F.3d at 222 (quoting Hoxie, 419 F.3d at 482)).\3\
---------------------------------------------------------------------------
\3\ While I have considered all of the factors, the Government
does not argue that any of the other factors are relevant in making
the public interest determination in this matter. Be that as it may,
``this is not a contest in which score is kept; the Agency is not
required to mechanically count up the factors and determine how many
favor the Government and how many favor the registrant. Rather, it
is an inquiry which focuses on protecting the public interest; what
matters is the seriousness of the registrant's misconduct.'' Jayam
Krishna-Iyer, 74 FR 459, 462 (2009). Accordingly, as the Tenth
Circuit has recognized, findings under a single factor can support
the revocation of a registration. See MacKay, 664 F.3d at 821.
---------------------------------------------------------------------------
The Government has the burden of proving, by a preponderance of the
evidence, that the requirements for revocation or suspension pursuant
to 21 U.S.C. 824(a) are met. 21 CFR 1301.44(e). This is so even in a
non-contested case.
In this matter, the Government argues that the Board's findings of
fact and conclusions of law are entitled to preclusive effect and
establish that Registrant ``violated applicable controlled substance
state laws under'' factor four of the public interest standard. Request
for Final Agency Action, at 6 (citing 21 U.S.C. 823(f)(4)). I agree
that Registrant failed to comply with state laws related to controlled
substances as evidenced by the findings that he prescribed controlled
substances to his wife, notwithstanding that under Arizona law,
``[p]rescribing or dispensing controlled substances to members of the
physician's immediate family'' is ``unprofessional conduct.'' Ariz.
Rev. Stat. Sec. 32-1401(27)(h). Based on the plain language of this
provision, I conclude that even though it is found in the State's
medical practice act, it is a law ``relating to controlled
substances.'' 21 U.S.C. 823(f)(4).
The Board also found that Registrant has been diagnosed as
dependent on opioids, and that he has abused both Xanax (alprazolam), a
schedule IV benzodiazepine, and Adderall, (amphetamine and
dextroamphetamine), a schedule II stimulant. See 21 CFR 1308. 14(c)(2);
id. 1308.12 (d)(1). Based on these findings, the Board concluded that
Registrant has committed ``unprofessional conduct'' by engaging in
``habitual substance abuse'' and ``using controlled substances except
if prescribed by another physician for use during a prescribed course
of treatment.'' Ariz. Rev. Stat. Sec. 32-1301(27)(f) & (g). Here too,
while these provisions are located in the State's medical practice act,
the plain language of these provisions supports the conclusion that
they are laws ``relating to controlled substances.'' 21 U.S.C. 823(f)
(4).\4\
---------------------------------------------------------------------------
\4\ While not cited by the Government, DEA has long held that a
practitioner's self-abuse of a controlled substance is actionable
under factor five as ``[s]uch other conduct which may threaten
public health and safety.'' See Tony T. Bui, 75 FR 49979, 49989
(2010) (citing cases).
The Board also made several findings that Registrant deviated
from the standard of care when he prescribed narcotic controlled
substances to B.S. and which are highly suggestive of a finding that
he acted outside of the usual course of professional practice and
lacked a legitimate medical purpose in prescribing to B.S. 21 CFR
1306.04(a). These include that he failed to address B.S.'s positive
test for marijuana, that he did not perform additional evaluations
or use therapeutic interventions other than prescribing controlled
substances, that he dramatically increased B.S.'s pain medications
and did not document an explanation for doing so, and that he failed
to maintain adequate and legible medical records.
The Board did not, however, find that Registrant engaged in
``[p]rescribing, dispensing, or administering any controlled
substance . . . for other than accepted therapeutic purposes,''
Ariz. Rev. Stat. Sec. 32-1401(27)(j), a standard similar to that of
21 CFR 1306.04(a). See GX 3, at 6; see also Kenneth Harold Bull, 78
FR 62666, 62674 (2013) (holding that physician's violation of a
State's ``injudicious prescribing'' standard did not establish a
violation of 21 CFR 1306.4(a) when the State also had a standard
prohibiting ``prescribing . . . or dispensing of narcotic, stimulant
or hypnotic drugs for other than accepted therapeutic purposes'' but
did not find a violation). Instead, the Board found that he
committed unprofessional conduct by engaging in ``[a]ny conduct or
practice that is or might be harmful or dangerous to the health of
the patient or the public.'' GX 3, at 6 (citing Ariz. Rev. Stat.
Sec. 32-1401(27)(q)).
In its Request for Final Agency Action, the Government did not
allege that the Board's findings with respect to B.S. supported a
finding that Registrant violated 21 CFR 1306.04(a). Nor did it argue
that the Board's findings establish reckless or negligent conduct in
the handling of controlled substances, which is a basis to revoke a
registration under Paul J. Caragine, 63 FR 51592, 51601 (1998).
Moreover, the Government offers no argument as to why the
Board's standard of ``[a]ny conduct or practice that is or might be
harmful or dangerous to the health of the patient or the public'' is
a law related to controlled substances under factor four. I
therefore do not consider whether this provision falls within factor
four. Nor do I consider the Board's findings with respect to B.S.
---------------------------------------------------------------------------
[[Page 50726]]
The Board's conclusions of law that Registrant committed
unprofessional conduct by prescribing controlled substances to his
wife, as well as by engaging in habitual substance abuse and using
controlled substances which were not prescribed to him by another
physician in the course of treatment, support the conclusion that he
has committed such acts as to render his registration ``inconsistent
with the public interest.'' 21 U.S.C. 824(a)(4). These findings provide
an additional and independent basis to revoke Registrant's
registration.
Order
Pursuant to the authority vested in me by 21 U.S.C. 824(a) and
823(f), as well as 28 CFR 0.100(b), I order that DEA Certificate of
Registration BB7566461 issued to Alaaeldin Babiker, M.D., be, and it
hereby is, revoked. I further other that any application of Alaaeldin
Babiker, M.D., to renew or modify this registration, or for any other
registration, be, and it hereby is denied. This Order is effective
immediately.\5\
---------------------------------------------------------------------------
\5\ For the same reasons which led the Board to order Registrant
to immediately surrender his state license, I conclude that this
Order should be effective immediately. GX 9, at 9; see also 21 CFR
1316.67.
Dated: July 22, 2016.
Chuck Rosenberg,
Acting Administrator.
[FR Doc. 2016-18278 Filed 8-1-16; 8:45 am]
BILLING CODE 4410-09-P