Richard Carter, M.D.; Decision and Order, 13960-13961 [2019-06835]

Agencies

• Drug Enforcement Administration
• Department of Justice

[Federal Register Volume 84, Number 67 (Monday, April 8, 2019)]
[Notices]
[Pages 13960-13961]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-06835]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration


Richard Carter, M.D.; Decision and Order

    On October 15, 2018, the Assistant Administrator, Diversion Control 
Division, Drug Enforcement Administration (DEA), issued an Order to 
Show Cause to Richard Carter, M.D. (Registrant), of Tifton, Georgia. 
The Show Cause Order proposed the revocation of Registrant's DEA 
Certificate of Registration No. AC2515596 on the ground that he ``ha[s] 
no state authority to handle controlled substances.'' Government 
Exhibit (GX) 2 (Order to Show Cause) to Government's Request for Final 
Agency Action (RFAA), at 1 (citing 21 U.S.C. 824(a)(3)). For the same 
reason, the Order also proposed the denial of ``any applications for 
renewal or modification of such registration and any applications for 
any other DEA registrations.'' Id.
    With respect to the Agency's jurisdiction, the Show Cause Order 
alleged that Registrant is the holder of Certificate of Registration 
No. AC2515596, pursuant to which he is authorized to dispense 
controlled substances as a practitioner in schedules II through V, at 
the registered address of 2617 Wilson Avenue, Tifton, Georgia. Id. The 
Order also alleged that this registration does not expire until August 
31, 2020. Id.
    Regarding the substantive grounds for the proceeding, the Show 
Cause Order alleged that on June 12, 2018, the Georgia Composite 
Medical Board (GCMB) ``issued an Order of Summary Suspension summarily 
suspending [Registrant's] Georgia medical license.'' Id. The Show Cause 
Order alleged that, as a result, he is ``currently without authority to 
handle controlled substances in the State of Georgia, the [S]tate in 
which [he is] registered with the DEA.'' Id. Based on his ``lack of 
authority to handle controlled substances in the State of Georgia,'' 
the Order asserted that ``DEA must revoke'' his registration. Id. at 1-
2 (citing 21 U.S.C. 824(a)(3); 21 CFR 1301.37(b)).
    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 
(citing 21 CFR 1301.43). The Order also notified Registrant of his 
right to submit a corrective action plan. Id. at 2-3 (citing 21 U.S.C. 
824(c)(2)(C)).
    With respect to service, a Diversion Investigator (DI) in the 
Savannah Resident Office of DEA's Atlanta Field Division executed a 
Declaration on February 11, 2019, stating that on November 26, 2018, he 
``physically mailed the [Show Cause Order] to Registrant's home address 
at 2617 Wilson Ave. N, Tifton, GA 31794, via United States Postal 
Service certified mail, return receipt requested.'' GX 4 (Declaration 
of DI) to RFAA, at 1-2. The DI also stated in his Declaration that on 
November 30, 2018, he received the signed return receipt for the Show 
Cause Order he had mailed on November 26, 2018. Id. at 2. The DI 
attached to his Declaration and authenticated a return receipt from the 
U.S. Postal Service bearing what appears to be Registrant's signature 
and indicating that the mailing was delivered to Registrant's address 
on November 28, 2018. See id.; Exhibit (Ex.) B to GX 4, at 2.\1\ The DI 
also attached and authenticated a printout from the U.S. Postal 
Service's website showing that a package with a tracking number 
matching the one on the return receipt was delivered to Registrant's 
address on November 28, 2018. See GX 4 to RFAA, at 2; Ex. C to GX 4, at 
1-2. I therefore find that the Government accomplished service on 
November 28, 2018.
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    \1\ The DI stated that on November 26, 2018, he mailed a second 
copy of the Show Cause Order to Registrant's home address ``via 
first-class United States mail, postage prepaid.'' Id. He further 
stated that ``[t]he second copy of the [Show Cause Order] that [he] 
had mailed via first-class United States mail, postage prepaid, did 
not come back to the Savannah Resident Office.'' Id.
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    On March 8, 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 with the Show Cause Order and that 
``Registrant has not requested a hearing and has not otherwise 
corresponded or communicated with DEA regarding the Order served on 
him, including the filing of any written statement in lieu of a 
hearing.'' RFAA, at 1-2. Based on the Government's representation and 
the record, I find that more than 30 days have passed since the Show 
Cause Order was served on 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 and the findings below. See id. I make the following 
findings.

Findings of Fact

    Registrant is the holder of DEA Certificate of Registration No. 
AC2515596 pursuant to which he is authorized to dispense controlled 
substances in schedules II through V as a practitioner at the 
registered address of Richard Carter MD PC, 2617, Tifton, Georgia. GX 1 
(Certification of Registration Status) to RFAA, at 1. The ``mail to 
address'' is Richard Carter MD PC, 2617 Wilson Avenue, Tifton, Georgia. 
Id. This registration does not expire until August 31, 2020. Id.
    On June 12, 2018, the GCMB issued an ``Order of Summary 
Suspension'' (Suspension Order) suspending Registrant's Georgia medical 
license based largely on the findings of the North Carolina Medical 
Board that Registrant ``suffered from severe alcohol use disorder'' and 
``was unable to practice medicine with reasonable skill and safety to 
patients.'' GX 3 to RFAA,

[[Page 13961]]

at 3.\2\ The GCMB found that Registrant had not been examined since 
2014 ``with regard to whether he suffers from a mental or physical 
condition that would affect his ability to practice medicine.'' Id. The 
GCMB also found that Registrant ``has not been treated for alcohol use 
disorder nor has a physician with expertise in addiction psychiatry 
determined that [Registrant] does not suffer from that condition or 
that [his] condition is in remission.'' Id. As a result of these 
findings, the GCMB ``SUMMARILY SUSPENDED'' Registrant's license to 
practice medicine in Georgia because the GCMB concluded that 
Registrant's ``continued practice of medicine poses a threat to the 
public health, safety, and welfare and imperatively requires emergency 
action.'' Id. at 4. Finally, the Suspension Order further states that 
Registrant's Georgia medical license ``will expire on January 31, 
2019.'' Id. at 2.
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    \2\ Specifically, the Suspension Order states that the North 
Carolina Medical Board (NCMB) ``summarily suspended'' Registrant's 
North Carolina medical license in December 2015 ``based on, in part, 
a determination by a healthcare provider that [Registrant] suffered 
from severe alcohol use disorder, that [Registrant's] condition was 
untreated and unmonitored, and that [Registrant] continued to 
practice medicine.'' Id. Registrant eventually ``agreed to have his 
[North Carolina medical] license placed on inactive status . . . 
effective March 18, 2016'' after the NCMB ``concluded that 
[Registrant] was unable to practice medicine with reasonable skill 
and safety to patients.'' Id.
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    In addition, I take official notice of the results of a search of 
the GCMB's license verification web page showing that, as of the date 
of this Decision, Registrant's Georgia medical license remains 
``suspended.'' \3\ Accordingly, I find that Registrant currently does 
not possess a license to practice medicine in the State of Georgia, the 
State in which he is registered with the DEA--both because the GCMB 
suspended his Georgia medical license on June 12, 2018 and because his 
Georgia license expired on January 31, 2019.
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    \3\ See https://gcmb.mylicense.com/verification/SearchResults.aspx. 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. The Government also attached an unverified copy of 
the GCMB's license verification page as an exhibit to its Request 
for Final Agency Action that also shows that Registrant's Georgia 
medical license is suspended. See GX 5 to RFAA.
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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 GCMB 
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 the State of 
Georgia, the State in which he is registered. Specifically, the GCMB's 
decision to suspend Registrant's medical license also means that 
Registrant is currently without authority to dispense controlled 
substances under the laws of Georgia. See, e.g., Ga. Code Ann. 
Sec. Sec.  43-34-21 (2009) (defining ``practice of medicine'' to 
include prescribing any form of treatment); 43-34-26(a) (2010) 
(requiring state license to obtain the right to practice medicine). 
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. AC2515596, issued to Richard Carter, M.D., be, and it 
hereby is, revoked. I further order that any pending application of 
Richard Carter to renew or modify the above registration, or any 
pending application of Richard Carter for any other DEA registration in 
the State of Georgia, be, and it hereby is, denied. This Order is 
effective May 8, 2019.

    Dated: March 22, 2019.
Uttam Dhillon,
Acting Administrator.
[FR Doc. 2019-06835 Filed 4-5-19; 8:45 am]
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