Hisham M. Shawish, M.D.; Decision and Order, 53900-53902 [2018-23273]
Download as PDF
<![CDATA[
53900
Federal Register / Vol. 83, No. 207 / Thursday, October 25, 2018 / Notices
information is accurate and complete to
the best of the submitter’s knowledge. In
making the certification, the submitter
will acknowledge that any information
that it submits to the Commission
during these investigations may be
disclosed to and used: (i) By the
Commission, its employees and Offices,
and contract personnel (a) for
developing or maintaining the records
of these or related investigations or
reviews, or (b) in internal investigations,
audits, reviews, and evaluations relating
to the programs, personnel, and
operations of the Commission including
under 5 U.S.C. Appendix 3; or (ii) by
U.S. government employees and
contract personnel, solely for
cybersecurity purposes. All contract
personnel will sign appropriate
nondisclosure agreements.
Authority: These investigations are
being conducted under authority of title
VII of the Tariff Act of 1930; this notice
is published pursuant to section 207.12
of the Commission’s rules.
By order of the Commission.
Issued: October 19, 2018.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2018–23287 Filed 10–24–18; 8:45 am]
BILLING CODE 7020–02–P
DEPARTMENT OF JUSTICE
Drug Enforcement Administration
[Docket No. 18–37]
daltland on DSKBBV9HB2PROD with NOTICES
Hisham M. Shawish, M.D.; Decision
and Order
On July 12, 2018, the Assistant
Administrator, Diversion Control
Division, Drug Enforcement
Administration (hereinafter, DEA or
Government), issued an Order to Show
Cause to Hisham M. Shawish, M.D.
(hereinafter, Respondent), of Erie,
Pennsylvania. Order to Show Cause
(hereinafter, OSC), at 1. The Show
Cause Order proposes the revocation of
Respondent’s Certificate of Registration
on the ground that he has ‘‘no state
authority to handle controlled
substances’’ in the Commonwealth of
Pennsylvania, the State in which
Respondent is registered with the DEA.
Id. (citing 21 U.S.C. 824(a)(3)). It also
proposes the denial of ‘‘any applications
for renewal or modification of such
registration and any applications for any
other DEA registrations.’’ OSC, at 1
(citing 21 U.S.C. 824(a)(3)).
Regarding jurisdiction, the Show
Cause Order alleges that Respondent
holds DEA Certificate of Registration
No. FS1974357 at the registered address
VerDate Sep<11>2014
18:10 Oct 24, 2018
Jkt 247001
of 650 East Ave., Erie, Pennsylvania
16503, with a mailing address of 5572
Copper Dr., #102, Erie, Pennsylvania
16509. OSC, at 1. This registration, the
OSC alleges, authorizes Respondent to
dispense controlled substances in
schedules II through V as a practitioner.
Id. The Show Cause Order alleges that
this registration expires on February 28,
2019. Id.
The substantive ground for the
proceeding, as alleged in the Show
Cause Order, is that Respondent is
‘‘currently without authority to practice
medicine or handle controlled
substances in the Commonwealth of
Pennsylvania, the state in which . . .
[he is] registered with DEA.’’ Id. at 2.
Specifically, the Show Cause Order
alleges that the Commonwealth of
Pennsylvania State Board of Medicine
issued an Order of Temporary
Suspension and Notice of Hearing
(hereinafter, Temporary Suspension
Order and Notice of Hearing) on April
25, 2018, and that this Order
‘‘suspended . . . [Respondent’s] license
to practice as a physician and surgeon.’’
Id.
The Show Cause Order notifies
Respondent of his right to request a
hearing on the allegations or to submit
a written statement while waiving his
right to a hearing, the procedures for
electing each option, and the
consequences for failing to elect either
option. Id. (citing 21 CFR 1301.43). The
Show Cause Order also notifies
Respondent of the opportunity to
submit a corrective action plan. OSC, at
2–3 (citing 21 U.S.C. 824(c)(2)(C)).
By letter dated July 26, 2018,
Respondent timely requested a hearing.1
Hearing Request, at 1. According to the
Hearing Request, ‘‘a Criminal Complaint
was filed against . . . [Respondent] in
Pennsylvania Magisterial District
Court,’’ which Respondent
‘‘categorically denies and is vigorously
fighting.’’ Id. Respondent’s Hearing
Request admits that his ‘‘license to
practice medicine and surgery in
Pennsylvania was temporarily placed in
suspension, effective April 26, 2018.’’
Id. It asserts that the ‘‘term of
suspension is 180 days from April 26,
2018, at which time . . . [Respondent’s]
Pennsylvania license will revert to
active unrestricted status by operation
of law.’’ Id.
The Office of Administrative Law
Judges put the matter on the docket and
assigned it to Administrative Law Judge
Charles Wm. Dorman (hereinafter, ALJ).
1 The Hearing Request is dated and was received
less than 30 days after the OSC’s issuance. It is,
thus, apparent that the Government’s service of the
OSC was sufficient and Respondent’s request for a
hearing was timely.
PO 00000
Frm 00054
Fmt 4703
Sfmt 4703
On July 27, 2018, the ALJ issued a
Briefing Schedule for Lack of State
Authority Allegations.
The Government timely complied
with the Briefing Schedule by filing a
Motion for Summary Disposition on
August 10, 2018 (hereinafter, Summary
Disposition Motion). The Summary
Disposition Motion is ‘‘based on
Respondent’s lack of state authority to
handle controlled substances.’’
Summary Disposition Motion, at 1. The
Government attached to its Summary
Disposition Motion the Temporary
Suspension Order and Notice of Hearing
that the Commonwealth of
Pennsylvania, Department of State, State
Board of Medicine issued to
Respondent. According to the Summary
Disposition Motion, Respondent ‘‘is not
entitled to hold a DEA registration’’
because he ‘‘does not have state
authority to prescribe, administer, or
dispense controlled substances in the
Commonwealth of Pennsylvania.’’ Id. at
3. The Government argues, citing
Agency precedent, that ‘‘even if the
period of suspension is temporary or if
there is the potential that Respondent’s
state controlled substances privileges
will be reinstated, summary disposition
is warranted.’’ Id. at 3–4.
Respondent timely filed its Reply in
Opposition to the Government’s Motion
for Summary Disposition dated August
24, 2018 (hereinafter, Reply in
Opposition). Attached to the Reply in
Opposition are Docket Sheets indicating
that the charges Respondent is facing
are indecent assault of a person less
than 13 years of age and corruption of
minors dating as far back as 2014. Reply
in Opposition, at Exh. 1.
Respondent argues that the
Government’s Summary Disposition
Motion should be denied because ‘‘[t]he
Government does not take into
consideration the fact that . . .
[Respondent’s] Pennsylvania medical
license is set to return to unrestricted
status on October 25, 2018.’’ Id. at 1.
Since, he states, ‘‘his license will revert
to active status as a matter of law in
approximately two months, on October
25, 2018, . . . [i]t would be a waste of
judicial resources, time, and expense to
revoke . . . [his] DEA registration and
then require . . . [him] to reapply for a
DEA registration.’’ Id. at 3. Respondent
argues that the Agency precedent cited
in the Summary Disposition Motion is
‘‘distinguishable, as it does not appear
that in any of the cases a firm date was
set on which each respective
respondents’ [sic] license was scheduled
to be reinstated.’’ Id. [emphasis in
original]. Thus, Respondent urges the
ALJ to ‘‘stay resolution’’ of the Summary
Disposition Motion for 90 days and to
E:\FR\FM\25OCN1.SGM
25OCN1
Federal Register / Vol. 83, No. 207 / Thursday, October 25, 2018 / Notices
hold ‘‘a status conference and/or
additional briefing to be scheduled
following the trial of . . .
[Respondent’s] criminal case and the
reinstatement of his Pennsylvania
medical license on October 25, 2018.’’
Id. at 1, 4.
The ALJ granted the Government’s
Summary Disposition Motion and
recommended that Respondent’s
registration be revoked. Order Granting
Summary Disposition and
Recommended Rulings, Findings of
Fact, Conclusions of Law, and Decision
dated August 27, 2018 (hereinafter,
R.D.). The ALJ notes Respondent’s
concession that his Pennsylvania
license to practice medicine and surgery
is temporarily suspended. R.D., at 3.
The ALJ characterizes as ‘‘speculative’’
Respondent’s assertion that his license
will revert to an active status on October
25, 2018. Id. at 4. The ALJ points out
that, ‘‘immediately following the
language’’ in the Temporary Suspension
Order and Notice of Hearing setting the
duration of the temporary suspension at
‘‘in no event longer than 180 days,’’
there is language ordering that ‘‘the
‘prosecuting attorney will commence a
separate action to suspend, revoke or
otherwise restrict Respondent’s
license.’’’ Id. [emphasis in original]. The
ALJ then reviews relevant Agency
precedent and concludes that, ‘‘[T]he
disposition of the . . . [Summary
Disposition Motion] depends only on
whether the Respondent currently
possesses state authority to dispense
controlled substances in Pennsylvania.’’
Id. at 6. Since Respondent conceded
that the Pennsylvania State Board of
Medicine temporarily suspended his
medical license, the ALJ granted the
Summary Disposition Motion and
recommends revocation of Respondent’s
registration. Id. at 6, 7.
By letter dated September 27, 2018,
the ALJ certified and transmitted the
record to me for final Agency action. In
that letter, the ALJ advises that neither
party filed exceptions and that the time
period to do so has expired.
I issue this Decision and Order based
on the entire record before me. 21 CFR
1301.43(e). I make the following
findings of fact.
daltland on DSKBBV9HB2PROD with NOTICES
Findings of Fact
Respondent’s DEA Registration
Respondent is the holder of DEA
Certificate of Registration No.
FS1974357, pursuant to which he is
authorized to dispense controlled
substances in schedules II through V as
a practitioner, at the registered address
of 650 East Ave., Erie, Pennsylvania
16503. Summary Disposition Motion, at
VerDate Sep<11>2014
18:10 Oct 24, 2018
Jkt 247001
Certification of Registration History.
Respondent’s registration expires on
February 28, 2019. Id.
The Status of Respondent’s State
License
The Pennsylvania State Board of
Medicine ordered the temporary
suspension of Respondent’s license to
practice as a physician and surgeon on
April 25, 2018. Reply in Opposition,
Exh. 3, at 1. According to the Temporary
Suspension Order and Notice of
Hearing, the Prosecuting Attorney
‘‘alleged facts in the Petition, which, if
taken as true, . . . make[ ] Respondent
an immediate and clear danger to the
public health and safety.’’ Id. It orders
that a preliminary hearing be scheduled
and conducted within 30 days to
determine ‘‘whether there is a prima
facie case to support the temporary
suspension of the Respondent’s license
and other authorizations to practice the
profession issued by the Board.’’ Id. at
2. If a prima facie case is not
established, Respondent’s license and
other authorizations ‘‘will be
immediately restored.’’ Id. If a prima
facie case is established, ‘‘the temporary
suspension shall remain in effect until
vacated by the Board, but in no event
longer than 180 days, unless otherwise
ordered or agreed to by the
participants.’’ Id. There is no evidence
in the record concerning the
preliminary hearing ordered in the
Temporary Suspension Order and
Notice of Hearing. The undisputed
evidence in the record, independently
submitted by both parties, is that
Respondent’s Pennsylvania license to
practice as a physician and surgeon is
currently suspended. Although
Respondent asserts unequivocally that
his license will be ‘‘return[ed] to
unrestricted status on October 25,
2018,’’ the evidence in the record, as the
ALJ correctly explicates, is to the
contrary. Reply in Opposition, at 1;
R.D., at 4. Thus, I reject Respondent’s
unequivocal assertion and agree with
the ALJ’s analysis.
Accordingly, I find that Respondent
currently is without authority to
practice as a physician or surgeon in the
Commonwealth of Pennsylvania, the
State in which he is registered.
Discussion
Pursuant to 21 U.S.C. 824(a)(3), the
Attorney General is authorized to
suspend or revoke a registration issued
under section 823 of the Controlled
Substances Act (hereinafter, CSA),
‘‘upon a finding that the registrant . . .
has had his State license or registration
suspended . . . [or] revoked . . . by
competent State authority and is no
PO 00000
Frm 00055
Fmt 4703
Sfmt 4703
53901
longer authorized by State law to engage
in the . . . dispensing of controlled
substances.’’ With respect to a
practitioner, the DEA has also long 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, e.g.,
James L. Hooper, M.D., 76 FR 71,371
(2011), pet. for rev. denied, 481 Fed.
Appx. 826 (4th Cir. 2012); Frederick
Marsh Blanton, M.D., 43 FR 27,616,
27,617 (1978).
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). Because Congress has
clearly mandated that a practitioner
possess State authority in order to be
deemed a practitioner under the CSA,
the DEA has held repeatedly that
revocation of a practitioner’s registration
is the appropriate sanction whenever he
is no longer authorized to dispense
controlled substances under the laws of
the State in which he practices. See,
e.g., Hooper, supra, 76 FR at 71,371–72;
Sheran Arden Yeates, M.D., 71 FR
39,130, 39,131 (2006); Dominick A.
Ricci, M.D., 58 FR 51,104, 51,105 (1993);
Bobby Watts, M.D., 53 FR 11,919, 11,920
(1988), Blanton, supra, 43 FR at 27,617.
Under longstanding Agency
precedent, DEA revokes the registration
of a practitioner who lacks State
authority to handle controlled
substances even when the practitioner’s
State authority was suspended
summarily or pending a final decision
on the merits. See, e.g., Bourne
Pharmacy, Inc., 72 FR 18,273, 18,274
(2007). Similarly, the facts that the
Pennsylvania State Board of Medicine
temporarily suspended a respondent’s
license and that the respondent may,
some day, regain his license to practice
as a physician and surgeon did not
change the salient fact—the respondent
was not currently authorized to handle
controlled substances in the State in
which he was registered. Mehdi
E:\FR\FM\25OCN1.SGM
25OCN1
53902
Federal Register / Vol. 83, No. 207 / Thursday, October 25, 2018 / Notices
Nikparvarfard, M.D., 83 FR 14,503,
14,504 (2018).
Here, the undisputed evidence in the
record is that Respondent’s
Pennsylvania license to practice as a
physician and surgeon is currently
suspended. There is no evidence in the
record that Respondent holds any
Pennsylvania registration, let alone as a
practitioner, to handle controlled
substances. As such, according to
Pennsylvania law, Respondent currently
does not have authority to handle
controlled substances in Pennsylvania.
In sum, Respondent’s Pennsylvania
license to practice as a physician and
surgeon is temporarily suspended. He
currently lacks authority in
Pennsylvania to practice medicine and
to handle controlled substances. He is,
therefore, not eligible for a DEA
registration. Accordingly, I will order
that Respondent’s DEA registration be
revoked and that any pending
application for the renewal or
modification of his registration be
denied. 21 U.S.C. 824(a)(3).
Order
Notice of Department of
Justice’s standing members of the Senior
Executive Service and Senior Level
Performance Review Boards.
ACTION:
Pursuant to 28 CFR 0.100(b) and the
authority thus vested in me by 21 U.S.C.
824(a), I order that DEA Certificate of
Registration No. FS1974357 issued to
Hisham M. Shawish, M.D., be, and it
hereby is, revoked. I further order that
any pending application of Hisham M.
Shawish, M.D., to renew or modify this
registration, as well as any other
pending application by him for
registration in the Commonwealth of
Pennsylvania, be, and it hereby is,
denied. This Order is effective
immediately.2
Dated: October 10, 2018.
Uttam Dhillon,
Acting Administrator.
[FR Doc. 2018–23273 Filed 10–24–18; 8:45 am]
BILLING CODE 4410–09–P
DEPARTMENT OF JUSTICE
Membership of the Senior Executive
Service and Senior Level Standing
Performance Review Boards
AGENCY:
Department of Justice.
Pursuant to the requirements
of 5 U.S.C. 4314(c)(4), the Department of
Justice announces the membership of its
2018 Senior Executive Service (SES)
and Senior Level (SL) Standing
Performance Review Boards (PRBs). The
purpose of a PRB is to provide fair and
impartial review of SES/SL performance
appraisals, executive development
plans, bonus recommendations and pay
adjustments.
The PRBs will make
recommendations regarding the final
performance ratings to be assigned, SES/
SL bonuses and/or pay adjustments to
be awarded.
FOR FURTHER INFORMATION CONTACT:
Mary A. Lamary, Director, Human
Resources, Justice Management
Division, Department of Justice,
Washington, DC 20530; (202) 514–4350.
SUMMARY:
Lee J. Lofthus,
Assistant Attorney General for
Administration.
2018 FEDERAL REGISTER
Name
Position title
Office of the Attorney General—OAG
HAMILTON, GENE ...........................
WHITAKER, MATTHEW ...................
TUCKER, RACHEL ..........................
BARNETT, GARY .............................
MORRISSEY, BRIAN .......................
CUTRONA, DANIELLE .....................
COUNSELOR TO THE ATTORNEY GENERAL.
CHIEF OF STAFF AND COUNSELOR.
COUNSELOR TO THE ATTORNEY GENERAL.
COUNSELOR TO THE ATTORNEY GENERAL.
COUNSELOR TO THE ATTORNEY GENERAL.
SENIOR COUNSELOR.
Office of the Deputy Attorney General—ODAG
O’CALLAGHAN, EDWARD ..............
GUAHAR, TASHINA .........................
BAUGHMAN, MATTHEW .................
COOK, STEVE .................................
CONNOLLY, ROBERT .....................
GOLDSMITH, ANDREW ..................
MICHALIC, MARK ............................
PRINCIPAL ASSOCIATE DEPUTY ATTORNEY GENERAL.
ASSOCIATE DEPUTY ATTORNEY GENERAL.
ASSOCIATE DEPUTY ATTORNEY GENERAL.
ASSOCIATE DEPUTY ATTORNEY GENERAL/LAW ENFORCEMENT.
DIRECTOR, OFFICE OF SMALL AND DISADVANTAGED BUSINESS UTILIZATION.
NATIONAL CRIMINAL DISCOVERY COORDINATOR.
EMERGENCY PREPAREDNESS AND CRISIS RESPONSE COORDINATOR.
Office of the Associate Attorney General—OASG
PANUCCIO, JESSE .........................
MCARTHUR, ERIC ...........................
COX, STEVE ....................................
BISSEX, RACHEL ............................
PRINCIPAL DEPUTY ASSOCIATE ATTORNEY GENERAL.
DEPUTY ASSOCIATE ATTORNEY GENERAL.
DEPUTY ASSOCIATE ATTORNEY GENERAL.
CHIEF OF STAFF AND COUNSEL TO THE ASSOCIATE ATTORNEY GENERAL.
daltland on DSKBBV9HB2PROD with NOTICES
Office of the Solicitor General—OSG
WALL, JEFFREY ..............................
DREEBEN, MICHAEL R ...................
KNEEDLER, EDWIN S .....................
STEWART, MALCOLM L .................
PRINCIPAL DEPUTY SOLICITOR GENERAL.
DEPUTY SOLICITOR GENERAL.
DEPUTY SOLICITOR GENERAL.
DEPUTY SOLICITOR GENERAL.
2 For the same reasons the Pennsylvania State
Board of Medicine suspended Respondent’s
VerDate Sep<11>2014
18:10 Oct 24, 2018
Jkt 247001
Pennsylvania license to practice as a physician and
surgeon, I find that the public interest necessitates
PO 00000
Frm 00056
Fmt 4703
Sfmt 4703
that this Order be effective immediately. 21 CFR
1316.67.
E:\FR\FM\25OCN1.SGM
25OCN1
]]>Agencies
[Federal Register Volume 83, Number 207 (Thursday, October 25, 2018)]
[Notices]
[Pages 53900-53902]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-23273]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF JUSTICE
Drug Enforcement Administration
[Docket No. 18-37]
Hisham M. Shawish, M.D.; Decision and Order
On July 12, 2018, the Assistant Administrator, Diversion Control
Division, Drug Enforcement Administration (hereinafter, DEA or
Government), issued an Order to Show Cause to Hisham M. Shawish, M.D.
(hereinafter, Respondent), of Erie, Pennsylvania. Order to Show Cause
(hereinafter, OSC), at 1. The Show Cause Order proposes the revocation
of Respondent's Certificate of Registration on the ground that he has
``no state authority to handle controlled substances'' in the
Commonwealth of Pennsylvania, the State in which Respondent is
registered with the DEA. Id. (citing 21 U.S.C. 824(a)(3)). It also
proposes the denial of ``any applications for renewal or modification
of such registration and any applications for any other DEA
registrations.'' OSC, at 1 (citing 21 U.S.C. 824(a)(3)).
Regarding jurisdiction, the Show Cause Order alleges that
Respondent holds DEA Certificate of Registration No. FS1974357 at the
registered address of 650 East Ave., Erie, Pennsylvania 16503, with a
mailing address of 5572 Copper Dr., #102, Erie, Pennsylvania 16509.
OSC, at 1. This registration, the OSC alleges, authorizes Respondent to
dispense controlled substances in schedules II through V as a
practitioner. Id. The Show Cause Order alleges that this registration
expires on February 28, 2019. Id.
The substantive ground for the proceeding, as alleged in the Show
Cause Order, is that Respondent is ``currently without authority to
practice medicine or handle controlled substances in the Commonwealth
of Pennsylvania, the state in which . . . [he is] registered with
DEA.'' Id. at 2. Specifically, the Show Cause Order alleges that the
Commonwealth of Pennsylvania State Board of Medicine issued an Order of
Temporary Suspension and Notice of Hearing (hereinafter, Temporary
Suspension Order and Notice of Hearing) on April 25, 2018, and that
this Order ``suspended . . . [Respondent's] license to practice as a
physician and surgeon.'' Id.
The Show Cause Order notifies Respondent of his right to request a
hearing on the allegations or to submit a written statement while
waiving his right to a hearing, the procedures for electing each
option, and the consequences for failing to elect either option. Id.
(citing 21 CFR 1301.43). The Show Cause Order also notifies Respondent
of the opportunity to submit a corrective action plan. OSC, at 2-3
(citing 21 U.S.C. 824(c)(2)(C)).
By letter dated July 26, 2018, Respondent timely requested a
hearing.\1\ Hearing Request, at 1. According to the Hearing Request,
``a Criminal Complaint was filed against . . . [Respondent] in
Pennsylvania Magisterial District Court,'' which Respondent
``categorically denies and is vigorously fighting.'' Id. Respondent's
Hearing Request admits that his ``license to practice medicine and
surgery in Pennsylvania was temporarily placed in suspension, effective
April 26, 2018.'' Id. It asserts that the ``term of suspension is 180
days from April 26, 2018, at which time . . . [Respondent's]
Pennsylvania license will revert to active unrestricted status by
operation of law.'' Id.
---------------------------------------------------------------------------
\1\ The Hearing Request is dated and was received less than 30
days after the OSC's issuance. It is, thus, apparent that the
Government's service of the OSC was sufficient and Respondent's
request for a hearing was timely.
---------------------------------------------------------------------------
The Office of Administrative Law Judges put the matter on the
docket and assigned it to Administrative Law Judge Charles Wm. Dorman
(hereinafter, ALJ). On July 27, 2018, the ALJ issued a Briefing
Schedule for Lack of State Authority Allegations.
The Government timely complied with the Briefing Schedule by filing
a Motion for Summary Disposition on August 10, 2018 (hereinafter,
Summary Disposition Motion). The Summary Disposition Motion is ``based
on Respondent's lack of state authority to handle controlled
substances.'' Summary Disposition Motion, at 1. The Government attached
to its Summary Disposition Motion the Temporary Suspension Order and
Notice of Hearing that the Commonwealth of Pennsylvania, Department of
State, State Board of Medicine issued to Respondent. According to the
Summary Disposition Motion, Respondent ``is not entitled to hold a DEA
registration'' because he ``does not have state authority to prescribe,
administer, or dispense controlled substances in the Commonwealth of
Pennsylvania.'' Id. at 3. The Government argues, citing Agency
precedent, that ``even if the period of suspension is temporary or if
there is the potential that Respondent's state controlled substances
privileges will be reinstated, summary disposition is warranted.'' Id.
at 3-4.
Respondent timely filed its Reply in Opposition to the Government's
Motion for Summary Disposition dated August 24, 2018 (hereinafter,
Reply in Opposition). Attached to the Reply in Opposition are Docket
Sheets indicating that the charges Respondent is facing are indecent
assault of a person less than 13 years of age and corruption of minors
dating as far back as 2014. Reply in Opposition, at Exh. 1.
Respondent argues that the Government's Summary Disposition Motion
should be denied because ``[t]he Government does not take into
consideration the fact that . . . [Respondent's] Pennsylvania medical
license is set to return to unrestricted status on October 25, 2018.''
Id. at 1. Since, he states, ``his license will revert to active status
as a matter of law in approximately two months, on October 25, 2018, .
. . [i]t would be a waste of judicial resources, time, and expense to
revoke . . . [his] DEA registration and then require . . . [him] to
reapply for a DEA registration.'' Id. at 3. Respondent argues that the
Agency precedent cited in the Summary Disposition Motion is
``distinguishable, as it does not appear that in any of the cases a
firm date was set on which each respective respondents' [sic] license
was scheduled to be reinstated.'' Id. [emphasis in original]. Thus,
Respondent urges the ALJ to ``stay resolution'' of the Summary
Disposition Motion for 90 days and to
[[Page 53901]]
hold ``a status conference and/or additional briefing to be scheduled
following the trial of . . . [Respondent's] criminal case and the
reinstatement of his Pennsylvania medical license on October 25,
2018.'' Id. at 1, 4.
The ALJ granted the Government's Summary Disposition Motion and
recommended that Respondent's registration be revoked. Order Granting
Summary Disposition and Recommended Rulings, Findings of Fact,
Conclusions of Law, and Decision dated August 27, 2018 (hereinafter,
R.D.). The ALJ notes Respondent's concession that his Pennsylvania
license to practice medicine and surgery is temporarily suspended.
R.D., at 3. The ALJ characterizes as ``speculative'' Respondent's
assertion that his license will revert to an active status on October
25, 2018. Id. at 4. The ALJ points out that, ``immediately following
the language'' in the Temporary Suspension Order and Notice of Hearing
setting the duration of the temporary suspension at ``in no event
longer than 180 days,'' there is language ordering that ``the
`prosecuting attorney will commence a separate action to suspend,
revoke or otherwise restrict Respondent's license.''' Id. [emphasis in
original]. The ALJ then reviews relevant Agency precedent and concludes
that, ``[T]he disposition of the . . . [Summary Disposition Motion]
depends only on whether the Respondent currently possesses state
authority to dispense controlled substances in Pennsylvania.'' Id. at
6. Since Respondent conceded that the Pennsylvania State Board of
Medicine temporarily suspended his medical license, the ALJ granted the
Summary Disposition Motion and recommends revocation of Respondent's
registration. Id. at 6, 7.
By letter dated September 27, 2018, the ALJ certified and
transmitted the record to me for final Agency action. In that letter,
the ALJ advises that neither party filed exceptions and that the time
period to do so has expired.
I issue this Decision and Order based on the entire record before
me. 21 CFR 1301.43(e). I make the following findings of fact.
Findings of Fact
Respondent's DEA Registration
Respondent is the holder of DEA Certificate of Registration No.
FS1974357, pursuant to which he is authorized to dispense controlled
substances in schedules II through V as a practitioner, at the
registered address of 650 East Ave., Erie, Pennsylvania 16503. Summary
Disposition Motion, at Certification of Registration History.
Respondent's registration expires on February 28, 2019. Id.
The Status of Respondent's State License
The Pennsylvania State Board of Medicine ordered the temporary
suspension of Respondent's license to practice as a physician and
surgeon on April 25, 2018. Reply in Opposition, Exh. 3, at 1. According
to the Temporary Suspension Order and Notice of Hearing, the
Prosecuting Attorney ``alleged facts in the Petition, which, if taken
as true, . . . make[ ] Respondent an immediate and clear danger to the
public health and safety.'' Id. It orders that a preliminary hearing be
scheduled and conducted within 30 days to determine ``whether there is
a prima facie case to support the temporary suspension of the
Respondent's license and other authorizations to practice the
profession issued by the Board.'' Id. at 2. If a prima facie case is
not established, Respondent's license and other authorizations ``will
be immediately restored.'' Id. If a prima facie case is established,
``the temporary suspension shall remain in effect until vacated by the
Board, but in no event longer than 180 days, unless otherwise ordered
or agreed to by the participants.'' Id. There is no evidence in the
record concerning the preliminary hearing ordered in the Temporary
Suspension Order and Notice of Hearing. The undisputed evidence in the
record, independently submitted by both parties, is that Respondent's
Pennsylvania license to practice as a physician and surgeon is
currently suspended. Although Respondent asserts unequivocally that his
license will be ``return[ed] to unrestricted status on October 25,
2018,'' the evidence in the record, as the ALJ correctly explicates, is
to the contrary. Reply in Opposition, at 1; R.D., at 4. Thus, I reject
Respondent's unequivocal assertion and agree with the ALJ's analysis.
Accordingly, I find that Respondent currently is without authority
to practice as a physician or surgeon in the Commonwealth of
Pennsylvania, the State in which he is registered.
Discussion
Pursuant to 21 U.S.C. 824(a)(3), the Attorney General is authorized
to suspend or revoke a registration issued under section 823 of the
Controlled Substances Act (hereinafter, CSA), ``upon a finding that the
registrant . . . has had his State license or registration suspended .
. . [or] revoked . . . by competent State authority and is no longer
authorized by State law to engage in the . . . dispensing of controlled
substances.'' With respect to a practitioner, the DEA has also long
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, e.g., James L. Hooper,
M.D., 76 FR 71,371 (2011), pet. for rev. denied, 481 Fed. Appx. 826
(4th Cir. 2012); Frederick Marsh Blanton, M.D., 43 FR 27,616, 27,617
(1978).
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). Because Congress has clearly mandated
that a practitioner possess State authority in order to be deemed a
practitioner under the CSA, the DEA has held repeatedly that revocation
of a practitioner's registration is the appropriate sanction whenever
he is no longer authorized to dispense controlled substances under the
laws of the State in which he practices. See, e.g., Hooper, supra, 76
FR at 71,371-72; Sheran Arden Yeates, M.D., 71 FR 39,130, 39,131
(2006); Dominick A. Ricci, M.D., 58 FR 51,104, 51,105 (1993); Bobby
Watts, M.D., 53 FR 11,919, 11,920 (1988), Blanton, supra, 43 FR at
27,617.
Under longstanding Agency precedent, DEA revokes the registration
of a practitioner who lacks State authority to handle controlled
substances even when the practitioner's State authority was suspended
summarily or pending a final decision on the merits. See, e.g., Bourne
Pharmacy, Inc., 72 FR 18,273, 18,274 (2007). Similarly, the facts that
the Pennsylvania State Board of Medicine temporarily suspended a
respondent's license and that the respondent may, some day, regain his
license to practice as a physician and surgeon did not change the
salient fact--the respondent was not currently authorized to handle
controlled substances in the State in which he was registered. Mehdi
[[Page 53902]]
Nikparvarfard, M.D., 83 FR 14,503, 14,504 (2018).
Here, the undisputed evidence in the record is that Respondent's
Pennsylvania license to practice as a physician and surgeon is
currently suspended. There is no evidence in the record that Respondent
holds any Pennsylvania registration, let alone as a practitioner, to
handle controlled substances. As such, according to Pennsylvania law,
Respondent currently does not have authority to handle controlled
substances in Pennsylvania.
In sum, Respondent's Pennsylvania license to practice as a
physician and surgeon is temporarily suspended. He currently lacks
authority in Pennsylvania to practice medicine and to handle controlled
substances. He is, therefore, not eligible for a DEA registration.
Accordingly, I will order that Respondent's DEA registration be revoked
and that any pending application for the renewal or modification of his
registration be denied. 21 U.S.C. 824(a)(3).
Order
Pursuant to 28 CFR 0.100(b) and the authority thus vested in me by
21 U.S.C. 824(a), I order that DEA Certificate of Registration No.
FS1974357 issued to Hisham M. Shawish, M.D., be, and it hereby is,
revoked. I further order that any pending application of Hisham M.
Shawish, M.D., to renew or modify this registration, as well as any
other pending application by him for registration in the Commonwealth
of Pennsylvania, be, and it hereby is, denied. This Order is effective
immediately.\2\
---------------------------------------------------------------------------
\2\ For the same reasons the Pennsylvania State Board of
Medicine suspended Respondent's Pennsylvania license to practice as
a physician and surgeon, I find that the public interest
necessitates that this Order be effective immediately. 21 CFR
1316.67.
Dated: October 10, 2018.
Uttam Dhillon,
Acting Administrator.
[FR Doc. 2018-23273 Filed 10-24-18; 8:45 am]
BILLING CODE 4410-09-P
