Robert T. Perez, M.D.; Decision and Order, 3247-3248 [2019-01855]

Agencies

• Drug Enforcement Administration
• Department of Justice

[Federal Register Volume 84, Number 28 (Monday, February 11, 2019)]
[Notices]
[Pages 3247-3248]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-01855]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration


Robert T. Perez, M.D.; Decision and Order

    On September 28, 2018, the Assistant Administrator, Diversion 
Control Division, Drug Enforcement Administration (DEA), issued an 
Order to Show Cause to Robert T. Perez, M.D. (Registrant), of Santa 
Ana, California. The Show Cause Order proposed the revocation of 
Registrant's DEA Certificate of Registration No. BP4317740 on the 
ground that he does ``not have authority to handle controlled 
substances in the State of California, the [S]tate in which [he] is 
registered with the DEA.'' Appendix (App.) 1 (Order to Show Cause) to 
Government's Request for Final Agency Action (RFAA), at 1 (citing 21 
U.S.C. 823(f), 824(a)(3)).
    With respect to the Agency's jurisdiction, the Show Cause Order 
alleged that Registrant is the holder of Certificate of Registration 
No. BP4317740, pursuant to which he is authorized to dispense 
controlled substances as a practitioner in schedules II through V, at 
the registered address of 1420 E. Edinger Ave., Suite 123, Santa Ana, 
California. Id. The Order also alleged that this registration does not 
expire until March 31, 2019. Id.
    Regarding the substantive grounds for the proceeding, the Show 
Cause Order alleged that on or about August 27, 2018, the Medical Board 
of California (MBC) issued ``an Order On Noticed Petition For Order of 
Interim Suspension'' (hereinafter ``Interim Order'') that ``suspended'' 
Registrant's ``authority to prescribe and administer controlled 
substances in the State of California, the [S]tate in which [he] is 
registered with the DEA.'' Id. at 2. The Show Cause Order more 
specifically alleged that the Interim Order stated that Registrant 
``shall not `[p]ossess, order, purchase, receive, prescribe, furnish, 
administer, or otherwise distribute controlled substances or dangerous 
drugs as defined by federal or state law.'' Id. As a result, the Show 
Cause Order alleged that ``DEA must revoke [his] registration . . . 
based upon [his] lack of authority to handle controlled substances in 
the State of California.'' Id. (citing 21 U.S.C. 824(a)(3)). Id.
    The Show Cause Order notified Registrant of (1) his right to 
request a hearing on the allegations or to submit a written statement 
in lieu of a hearing, (2) the procedure for electing either option, and 
(3) the consequence for failing to elect either option. Id. at 2-3. 
(citing 21 CFR 1301.43). The Order also notified Registrant of his 
right to submit a corrective action plan. Id. at 3-4 (citing 21 U.S.C. 
824(c)(2)(C)).
    With respect to service, a Diversion Investigator (DI) with DEA's 
Los Angeles Field Division executed a Declaration on January 8, 2019 
stating that she ``learned that [Registrant] was incarcerated at Santa 
Ana Jail located in Santa Ana, CA.'' App. 10 (Declaration of DI) to 
RFAA, at 1. As a result, the DI stated that on October 16, 2018, she 
``personally served a copy of the [Show Cause Order] on [Registrant] at 
the prison.'' Id. The Declaration also attached DEA Form 12 Receipt for 
Cash or Other Items bearing ``Registrant's signature confirming his 
receipt'' of the Show Cause Order on October 16, 2018. Id. at 2; 
Attachment A to App. 10, at 1.
    On January 17, 2019, the Government forwarded its Request for Final 
Agency Action and evidentiary record to my Office. In its Request, the 
Government represents that more than 30 days have passed since 
Registrant had been served and that ``DEA has not received a request 
for hearing or any other reply from him.'' RFAA, at 5. Based on the 
Government's representation and the record, I find that more than 30 
days have passed since the Order to Show Cause was served on the 
Registrant, and he has neither requested a hearing nor submitted a 
written statement in lieu of a hearing. See 21 CFR 1301.43(d). 
Accordingly, I find that Registrant has waived his right to a hearing 
or to submit a written statement and issue this Decision and Order 
based on relevant evidence submitted by the Government. See id. I make 
the following findings.

Findings of Fact

    Registrant is the holder of DEA Certificate of Registration No. 
BP4317740, pursuant to which he is authorized to dispense controlled 
substances in schedules II through V as a practitioner at the 
registered address of 1420 E. Edinger Ave., Suite 123, Santa Ana, 
California. App. 2 (Certification of Registration Status) to Govt. 
Mot., at 1. This registration does not expire until March 31, 2019. Id.
    Registrant is also the holder of California Physician's and 
Surgeon's License No. G80178, which was issued to him in 1994 by the 
MBC. App. 8 to Govt. Mot., at 2. However, on August 27, 2018, an 
Administrative Law Judge of the MBC issued an Interim Order suspending 
Registrant's medical license after determining that, under California 
law, he was ``mentally incompetent to practice medicine safely'' and 
that ``[p]ermitting [Registrant] to continue to engage in the 
unrestricted practice of medicine will endanger the public health, 
safety and welfare.'' Id. at 7-8.\1\ Among other things, the Interim 
Order stated that, pending a full administrative determination, 
Registrant ``shall not'' ``[p]ractice or attempt to practice any aspect 
of medicine in the

[[Page 3248]]

State of California'' or ``[p]ossess, order, purchase, receive, 
prescribe, furnish, administer, or otherwise distribute controlled 
substances or dangerous drugs as defined by federal or state law.'' Id. 
at 8. The Interim Order further directed Registrant to ``immediately 
deliver to the [MBC], or its agent, . . . all indicia of his licensure 
as a physician and surgeon, . . . as well as all prescription forms, 
all prescription drugs not legally prescribed to [Registrant] . . ., 
all [DEA] Drug Order forms, and all [DEA] permits'' ``pending a final 
administrative order.'' Id. at 9. There is no evidence in the record 
that the MBC ever issued a superseding order or decision ending the 
suspension of Registrant's license.\2\ In addition, I take official 
notice of the results of a search of the Board's license verification 
web page showing that, as of the date of this Decision, Registrant's 
California Physician's and Surgeon's License remains revoked. See 
https://search.dca.ca.gov/results.\3\
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    \1\ The California ALJ issued the Interim Order after 
considering the allegations set forth in multiple Accusations that 
the MBC's Executive Director filed with the MBC from 2015-2018 
alleging that Registrant, inter alia, (1) engaged in dishonest acts 
toward a female patient; (2) failed to maintain adequate and 
accurate records; (3) engaged in unprofessional conduct; (4) engaged 
in sexual misconduct and unprofessional misconduct related to 
Registrant's romantic relationship with a female patient who 
subsequently became his wife; and (5) failed to participate in 
professional and ethical courses and to provide MBC-mandated 
quarterly declarations. App. 8 to RFAA, at 2-7; see also Apps. 3-7 
to RFAA.
    \2\ The record does show that on September 25, 2018, the MBC's 
Executive Director filed a Third Amended Accusation against 
Registrant. See App. 9 to RFAA. The legal effect of this filing 
appears to be that it ensures that the Interim Order remains in 
effect until a decision is reached on the Third Amended Accusation. 
See RFAA, at 4 n.1 (citing Cal. Govt. Code Sec.  11529(f)'s 
requirement that interim orders ``shall be dissolved'' within 30 
days unless a subsequent accusation is filed).
    \3\ Under the Administrative Procedure Act (APA), an agency 
``may take official notice of facts at any stage in a proceeding--
even in the final decision.'' U.S. Dept. of Justice, Attorney 
General's Manual on the Administrative Procedure Act 80 (1947) (Wm. 
W. Gaunt & Sons, Inc., Reprint 1979). In accordance with the APA and 
DEA's regulations, Registrant is ``entitled on timely request to an 
opportunity to show to the contrary.'' 5 U.S.C. 556(e); see also 21 
CFR 1316.59(e). To allow Registrant the opportunity to refute the 
facts of which I take official notice, Registrant may file a motion 
for reconsideration within 15 calendar days of service of this order 
which shall commence on the date this order is mailed.
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    Accordingly, I find that Registrant currently does not possess a 
license to practice medicine in the State of California, the State in 
which he is registered with the DEA, and that the MBC has expressly 
prohibited Registrant from dispensing controlled substances in 
California. See id.; App. 8 to RFAA, at 8.

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 (CSA), ``upon a finding that the registrant . 
. . has had his State license . . . suspended [or] revoked . . . by 
competent State authority and is no longer authorized by State law to 
engage in the . . . dispensing of controlled substances.'' Also, DEA 
has 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, 
76 FR 71371 (2011), pet. for rev. denied, 481 Fed. Appx. 826 (4th Cir. 
2012); see also Frederick Marsh Blanton, 43 FR 27616 (1978) (``State 
authorization to dispense or otherwise handle controlled substances is 
a prerequisite to the issuance and maintenance of a Federal controlled 
substances registration.'').
    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 Act, DEA has long held 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 engages in professional practice. See, e.g., 
Calvin Ramsey, 76 FR 20034, 20036 (2011); Sheran Arden Yeates, M.D., 71 
FR 39130, 39131 (2006); Dominick A. Ricci, 58 FR 51104, 51105 (1993); 
Bobby Watts, 53 FR 11919, 11920 (1988); Blanton, 43 FR 27616 (1978).
    Moreover, because ``the controlling question'' in a proceeding 
brought under 21 U.S.C. 824(a)(3) is whether the holder of a 
practitioner's registration ``is currently authorized to handle 
controlled substances in the [S]tate,'' Hooper, 76 FR at 71371 (quoting 
Anne Lazar Thorn, 62 FR 12847, 12848 (1997)), the Agency has also long 
held that revocation is warranted even where a practitioner has lost 
his state authority by virtue of the State's use of summary process and 
the State has yet to provide a hearing to challenge the suspension. 
Bourne Pharmacy, 72 FR 18273, 18274 (2007); Wingfield Drugs, 52 FR 
27070, 27071 (1987). Thus, it is of no consequence that the MBC 
summarily suspended Registrant's state medical license.
    What is consequential is my finding that Registrant is no longer 
currently authorized to dispense controlled substances in California, 
the State in which he is registered. Here, the MBC expressly precluded 
Registrant from prescribing controlled substances in California during 
the pendency of his suspension. App. 8 to RFAA, at 8. Furthermore, even 
if the MBC had not been so explicit, the MBC's suspension of 
Registrant's Physician's and Surgeon's License to practice medicine in 
California alone has the same legal effect. See Christopher D. Owens, 
M.D., 83 FR 13143, 13145 & n.1 (2018) (citing Cal. Health & Safety Code 
Sec. Sec.  11024, 11150, 11210, 11352, 2051, 2052). Accordingly, 
Registrant is not entitled to maintain his DEA registration, and I will 
therefore order that his registration be revoked.

Order

    Pursuant to the authority vested in me by 21 U.S.C. 823(f) and 
824(a), as well as 28 CFR 0.100(b), I order that DEA Certificate of 
Registration No. BP4317740, issued to Robert T. Perez, M.D., be, and it 
hereby is, revoked. I further order that any pending application of 
Robert T. Perez to renew or modify the above registration, or any 
pending application of Robert T. Perez for any other DEA registration 
in the State of California, be, and it hereby is, denied. This Order is 
effective immediately.\4\
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    \4\ For the same reasons which led the MBC to suspend 
Registrant's license and prescriptive authority, I conclude that the 
public interest necessitates that this Order be effective 
immediately. 21 CFR 1316.67.

    Dated: January 29, 2019.
Uttam Dhillon,
Acting Administrator.
[FR Doc. 2019-01855 Filed 2-8-19; 8:45 am]
 BILLING CODE 4410-09-P